Texas Commission on Law
Enforcement Course 3182
Legislative
LEGAL
“Up-DATES”
George D. Little
Deputy Chief
INTEL – Homeland Security
& TRAINING
Texas State Legislature
82nd Session
January 11, 2011 – May 30, 2011
Governor Rick Perry
Lt. Governor David Dewhurst
House Speaker- Joe Straus
This legislative update course
contains the following:
1. Selected new laws and
legislative changes passed by
the 82nd Regular Session of the
Texas State Legislature; and
2. New Federal Laws or Recent
Court Decisions from the U. S.
Supreme Court.
The goal of this curriculum is
to provide Texas Peace
Officers (Our Deputy
Constables) with updates of
state and federal legislative
changes along with state and
federal court decisions that
impact law enforcement.
TCLEOSE Learning Objectives
To inform and educate Texas Peace Officers
about new legislative changes in Texas Laws and
new Federal Laws or recent U. S. Supreme Court
decisions impacting local law enforcement,
including, but not limited to the following codes:
Penal Code
Code of Criminal Procedure
Family Code
Transportation Code
Government Code
Occupation & Labor Codes
Students will be evaluated
by an exam and must pass
with a minimum score of 70%
or better to be eligible to
receive credit for this course.
This course was developed, utilizing the
following resources:
Texas State Legislature
(www.capitol.state.tx.us)
Texas District & County Attorneys
Association (TDCAA)
Texas Municipal Courts Education
Center (TMCEC)
Media and Internet Resources
All legislation passed by the 82nd
Regular Session, including any
Special Session, is accessible at the
website maintained by the Texas
Legislature.
To view the full text of any bill, go to
the Texas Legislative website and
enter the bill number; then, select
the “enrolled” version. Examples:
HB3389
SB1
www.capitol.state.tx.us
Student Workbook
The Texas District & County Attorneys
Association (TDCAA) provides regional training
for local prosecutors and the law enforcement
community. Prosecutor- Shannon Edmonds
highlights legislative changes to Texas Laws in
his publication:
Chapter 1 (Texas Laws)
Chapter 2 (Tables & Charts)
Instructors are authorized to use this workbook
in their presentations.
www.tdcaa.com
As your instructor, I will provide you (student)
with information about new legislative changes
in Texas Laws, new Federal Laws, and recent
court decisions affecting Texas Peace Officers.
I AM NOT AN ATTORNEY-AT-LAW AND
CANNOT GIVE YOU LEGAL ADVICE!
If you have any legal questions, you should
consult with the legal advisor for your agency.
Each student is responsible to take appropriate
notes. If further clarification is warranted, It is
strongly recommend that youRead the Entire Bill; and
Consult with your Legal Advisor (Prosecutor)
82 nd State Legislature
Some of the top priorities facing the Texas
State Legislature were:
Budget Deficit
School Financing
Re-districting
Voter Identification
Immigration
Witness Identification Procedures
(reform)
According to the Legislative
Reference Library, the Texas State
Legislature took the following action
during the 82nd Regular Session,
which ended May 30:
* Introduced 5,796 new bills.
* Passed 1,379 new laws.
* Governor vetoed 24 bills.
* 52 New Crimes. * All codes*
June 25, 2011
Special Session
Only the Texas Governor can call a “Special Session” and
set the agenda. Immediately following the “Regular
Session”, (Wednesday- June 1, 2011), Governor Rick Perry
called a “Special Session”, which runs for 30-days, to
address the following agenda:
HB-3
Texas Windstorm Insurance (14 counties);
SB-1
Fiscal bill (public school funding);
SB-9
Sanctuary Cities- illegal immigrants;
Medicaid Reform- state savings by expanding
privatization;
Congressional Redistricting; and
Criminalizing intrusive pat-down searches at airports.
All the bills passed with the exception of “sanctuary
cities” and criminalizing intrusive pat-down searches.
Budget
The Texas Legislature is
constitutionally obligated to adopt a
two-year state budget. The Texas
Legislature agreed on $172.5 billion
budget.
No new taxes
Massive spending cuts ($15 billion)
Rainy Day Fund (balance of $10
billion)
Penal Code
PC Chapter 1.07
HB 3423
Subsection (46-b) added to
define (Federal Special
Investigator) as a person
defined by the Code of
Criminal Procedure under
article 2.122
Title 2
PC 3.03
Chapter 3
SB 24
Subsection (b)(5) added to permit the
stacking of sentences for offenses
arising out of PC 20A.02 or
PC 43.05.
( Trafficking of persons )
or
( Compelling Prostitution )
Title 3
PC 12.35
Punishments
HB 3000
Subsection (c) amended to
enhance a state jail felony to a
third degree felony if the person
has been previously convicted of
an offense under the new PC 20
.03 statute.
( Continuous trafficking of
persons )
PC 12.42
HB 3 & 3000
Subsection C 4 amended
( Life without the possibility of parole )
References to 22.021 ( Agg. Sexual Assault ) &
20A.03 (Continuous Trafficking of Persons )
A person convicted of either of those offenses
or an offense under PC 21.02
( Continuous sexual abuse of a young child) or
(children ) who have previously been convicted
of one of those three offenses Shall be
sentenced to life without parole.
PC 12.42
SB 24
Additionally SB 24 amends
subsection (c) (2) or the two
strikes = automatic life provision
and adds references to persons
convicted under PC 20A.02 (a )
(7) or (8) (Trafficking of persons
involving sexual conduct by a
child)
PC 12.425
HB 3384
HB 3384 removes references to
state jail felony enhancements
and the re - codifies them under
the new section PC 12.425.
HB 3384 then amends the title of
the section to confirm that it
applies only to non state jail
felonies.
PC 12.425
HB 3384
Created new section in order
to clarify the enhancement
laws applicable to state jail
felonies and non state jail
felonies. This section consists
solely of the state jail felony
enhancements that were
previously located under PC
1242 .
PC 16.01
HB 2577
Unlawful use of a criminal instrument or
mechanical security device.
Adds the improper use or possession of a
mechanical security device to this offense.
Mechanical security device for the
purpose of this section is defined as Something designed or manufactured for
use by a locksmith to perform services for
a customer whom is seeking entry into a
structure, motor vehicle or other property.
PC 16.01
HB 2577
Adds the improper use or
possession of a mechanical security
device to this offense. Mechanical
security device for the purpose of
this section is defined as Something designed or
manufactured for use by a locksmith
to perform services for a customer
whom is seeking entry into a
structure, motor vehicle or other
property.
Title 5 Criminal Homicide
PC 19.03
SB 377 Amends subsection
(a) (8) to expanded eligibility
for the death penalty to
persons who murder a child
under 10 years of age . The
prior version capped a child
victims age at 6 years.
Human Trafficking Legislation
HB-3000 / SB-24
On May 25, 2011, Governor Rick Perry signed two
bills creating tougher penalties for individuals
convicted of “human trafficking.”
“Human traffickers exploit their
victims’ hopes and dreams, promising
better days and better lives, but
delivering them instead into a world
that’s nothing more than modern-day
slavery”, said Governor Rick Perry
after signing HB-3000 and SB-24.
This legislation has given law
enforcement new tools to combat
human trafficking in Texas.
Chapter 20 Kidnapping, Unlawful
Restraint, and Smuggling of
Persons
PC 20.05
SB 260
Amends the title which was ( Unlawful
Transport ) and changes important
elements of the offense.
PC 20.05
SB 260
A person commits an offense if
the person intentionally
transports an individual with the
intent to conceal the individual
from a peace officer or special
investigator or to flee from one
of those officials attempting to
arrest, detain the actor.
State jail felony
May be enhanced to a third degree felony
if the actor commits the offense for a
pecuniary benefit or does so in such a
way that it endangers the transported
individual.
The two enhancements in this version
were previously elements of the offense
which made it difficult to prove.
Current version should be easier.
Section (d) adds an affirmative
defense, if the actor is
transporting someone whom he
is related to within the second
degree of consanguinity or
affinity.
Section (e) allows prosecution
under any and all applicable
Penal Code offenses.
Chapter 20A
Trafficking of persons
SB 24 adds definitions for child (
Someone younger than 18 years of age),
and sexual conduct.
Streamlines the definition of forced labor
and services
New definitions should be much
easier to work with.
Penal Code
20A.02 SB 24
Tweaks the matters and means of
committing the offense found in
subsection (a) and adds an
additional 6 subdivisions listing
additional ways in which this
offense can be committed.
Subdivisions are numbered 3
through 8.
Penal Code
20A.02 SB 24
CONTINUED:
(3) Forced prostitution
related trafficking of an adult.
(4) Benefitting from or
engaging in sexual conduct
with an adult victim trafficked
under subsection (3).
Second degree felony
Penal Code
20A.02 SB 24
(5) Trafficking of a child for forced
labor services.
(6) Benefitting from a child victim
trafficked under subsection (5).
(7) Trafficking a child whom
engages in prostitution related
crimes or becomes a victim of
various sex crimes. ( and )
Penal Code
20A.02 SB 24
(8) Benefitting from or
engaging in sexual conduct
with a child trafficked under
subsection.
1st Degree felony
subsections 5 through 8
*Note* (a) (7) and (8) do not
require proof of the use of
force, fraud, or coercion.
PC 20A.03 Human Trafficking
HB-3000 / SB-24
Relating to the creation of the offense
of continuous trafficking of persons;
providing a penalty and other civil
consequences.
A person commits an offense if,
during a period that is 30 days or
more, the person engages two or
more times in conduct that constitutes
an offense of human trafficking.
PC 20A.03 Human Trafficking
HB-3000 / SB-24
Felony 1st Degree (25-99
years)
No Limitation (CCP, Art.
12.01)
Violent Offense (CCP, Art.
17.032) (a)
Recommend Reading (41pages)
Chapter 21 Sexual Off enses
21.02 continuous sexual abuse of a
young child or children .
SB 24 amends subsection ( c ) and
adds violations of 20A.02(a)(7) or
(8) Trafficking of Persons involving
sexual conduct by a child and 43.05
(a)(2) Compelling Prostitution
involving a child to the types of acts
of sexual abuse that constitute
criminal conduct under this section.
Penal Code 21.12
HB 1610
Improper relationship between educator and
student.
Expands the scope of this offense beyond the
limits of one school and limits the offense by the
ages of those involved.
Several new subsections added along with a
Romeo – Juliet Type defense.
Recommend that the statute be read as well as
the bill’s history for clarity.
Romeo and Juliet Bill
PC 22.011
Decriminalizes consensual sex
between a young adult and someone
15 or older.
Changes the definition of a Child
from a person younger than 17
years of age to a person younger
than 15 years of age.
HB 545
Did Not Pass!
Penal Code Chapter 22
22.021 Aggravated Sexual Assault
SB 24 amends the aggravating factors .
(a)(2) To include placing the victim
in fear that someone will become the
victim of certain human trafficking
offenses or threatening to cause
someone to become a victim of
human trafficking offenses.
Penal Code 22.04
SB 688 removes references in this
section to ( Exploitation )
Which now has it’s own offense
located under the new PC 32.53
Titled
Exploitation of child, elderly
individual or disabled
individual.
Chapter 25
Offenses against the family
25.01 Bigamy
HB 253 Fixes an error in the
punishment for offense.
Second degree felony if the victim is
17
First degree if the victim is 16 years of
age or younger
Additional Changes to Chapter 25
25.03 Interference with child custody
HB 3439 Criminalizes the act of taking a
child outside of the country without the
consent of the person entitled to the
possession of the child, and is done
with the intent to deny that person
possession or access to the child.
Does not apply to certain victims of
family violence who flee the country
with a child.*
25.07 Violation of certain court orders
or conditions of bond in family
violence case.
SB 279
New manner and means of committing
this offense(A)(5) for someone who
harms threatens or interferes with
the care, custody, or control of a pet,
companion animal, or assistance
animal that is possessed by the person
protected by the order.
Penal Code 25.08
Sale or purchase of a child
HB 2014 Expands the enhancement
provision of subsection (c) takes this
offense from a third degree felony to a
second degree felony if the actor commits
this offense with the intent to commit an
offense under PC 20A.02 Trafficking of
Persons,.
PC 43.02 Prostitution, or
PC 43.05 Compelling Prostitution
Title 7 Offenses against
property
PC 31.03 Theft HB 2482 Cleans up and
relocates an enhancement that was
originally located in 31.16.
Enhances the offense to the next
category if a person intentionally,
knowingly or recklessly sets off a fire exit
alarm, deactivates a fire exit alarm or retail
theft detector, or uses a shielding or
deactivation instrument to avoid detection.
31.03 continued
SB 694 amends the state jail felony
minimum punishments for theft of
certain aluminum, bronze or copper
described by subsection (e)(4)(F) to
remove the modifier requiring that
the stolen property be insulated or
non insulated tubing rods, water
gate stems, wire or cable of at least
50% of that metal.
The bill also added brass to that list of metals.
The value just went up!
31.03 Theft
SB 887 Amends the second
degree felony punishment
provisions of subsection (e)(6) to
add thefts in which the value of
the property is less than
$200,000 and is an automated
teller machine, or the contents
or components of an ATM
machine.
Definition of ATM is very
broad and could possibly
cover more than an ATM
machine depending on
interpretation.
31.04 Theft of service
SB 1024
Several changes in the language with
one being important, the word full
was added in subsection (a)(4) in
reference to the actor failing to make
full payment after receiving notice
demanding payment for services
rendered.
Recommend reading the bill and consulting
with your prosecutors.
31.16 Organized retail theft
HB 2482
Multiple changes to this section.
Repeals subsection a defining retail
merchandise and moves it to 31.01
definitions.
Repeals subsection (e) enhancement for
creating a distraction by means of setting
off an alarm which has been added to (d),
and then moved to 31.03 for non retail
theft.
Subsection (d) expanded to provide
an enhancement to the next highest
category of offense if the actor
intentionally, knowingly, or
recklessly sets off a fire exit alarm,
deactivates a fire exit alarm, or
retail theft detector, or uses a
shielding or deactivation
instrument to avoid detection.
Continued………..
HB 2482 Amends subsection
b to apply to property of less
than $1,500 and amends
subsection c to make the
punishment value ladder one
degree higher than the
equivalent value of non-retail
merchandise under PC 31.03
Continued………..
( Theft)
Criminalizes the intentional
possession of the stolen retail
merchandise including by
the person who stole it.
31.17 Unauthorized acquisition or
transfer of certain financial
information
New Offense
It is an offense to use a device to
capture personal information from
another persons check, financial sight
order, credit card or debit card without
that persons permission.
Class B unless the illegally obtained info is
transferred to a third party then it
becomes a class A.
New Offense
CCP 2.295 Required to report
and provide copy upon request.
CCP 3.295 May be prosecuted
in any county the offense
occurred or the county in which
he victim resides.
Chapter 33 Computer Crimes
33.0.2. HB 3396 Breach of
computer security, multiple
changes made to statute
33.07 Online Impersonation
HB 1666 changes title from
the original Online
Harassment.
Also cleans up elements of the
offense and extends it to include
internet websites other than
commercial social networking sites.
The main target of the expansion is to
include Craigslist and related
communities that do not already meet
the definition.
Email and message boards are still
exempt.
Chapter 38 Obstructing
governmental operation
38.04 HB 3423 adds federal
investigator as another type of
official from whom a person
may be prosecuted for
evading.
SB 496 adds the use of watercraft
while evading to the existing
punishment enhancements.
Chapter 38 cont……..
SB 1416 Use of a vehicle in flight
a 3rd degree felony regardless of
whether the actor has been
previously convicted under this
section.
Use of tire deflation device
against the officer while in flight
3rd degree felony.
Causing another to suffer serious
bodily injury as a result of the use
of a tire deflation device while in
flight 2nd degree felony.
Caltrop
Title 9 Offenses against public
order and decency
42.01 Disorderly Conduct HB 359
Clarifies that impermissible language,
gestures, odors, noises and fights do
not apply to a student in the sixth or
lower grade who commit those
prohibited acts on a public school
ground during regular school hours.
42.055 Funeral Disruption
HB 718 amends this offense to
prohibit certain proscribed
picketing three hours prior to
and three hours after a funeral
service.
42.072 Stalking
SB 82 removes “ including following
the other person”
Adds protections for third parties
with whom a victim has a dating
relationship.
Expands enhancement provision to
include prior stalking convictions
from other jurisdictions.
42.072 Stalking
Continued
Subsection c clarifies that the same
scheme or continuous course of
conduct can include different types of
conduct described by subsection a.
See CCP 38.46 for additional
changes by this bill
42.105
HB 1043 Cockfighting New offense
Does not explicitly criminalize the
operation of a facility used for
cockfighting.
Prohibits the prosecution of someone
under the age of 16 for being a
spectator at a cockfight.
Staging, operating, buying, or selling
(State Jail Felony)
42.105
HB 1043 Cockfighting
New offense – Continued….
Owning or training (Class A
Misdemeanor)
Spectators (Class C Misdemeanor)
* Consult bill and statute for
affirmative defenses concerning
owning.*
Chapter 43 Obscenity
43.261 SB 407
Electronic transmission of certain
Visual material depicting a minor ( Sexting )
New offense created to address sexting between minors
20 page bill
Affirmative Defense to ProsecutionSpouse
Dating Relationship + 2 years older
Promoted + received only to or from the actor and the
other minor
Defense to ProsecutionDid not produce or solicit the visual material
Destroyed the visual image after receiving
Title 10 Offenses against public
health, safety, and morals
46.01 SB 1416 Definitions adds 17 to
define tire deflation devices.
46.02 HB 25 Unlawful Carrying
Weapons: amends subsection (a)(2) to
permit a person to carry a handgun,
illegal knife, or club inside of or enroute to a watercraft owned by or
under the control of that person.
46.05 SB 1416 Prohibited
Weapons: Adds tire
deflation device to the
list of prohibited
weapons. Possession,
manufacture,
transportation, repair or
sale of a tire deflation
device State Jail Felony
Chapter 49 Intoxication and
Alcoholic Beverage Offenses
49.04 Driving while intoxicated
HB 1199
Subsection (d) added to make a
DWI 1ST a class a misdemeanor if
the defendant had a BAC of 0.15
or higher at the time the analysis
was performed.
49.09 Enhanced offenses and penalties HB
1199
Subsection b-4 added to increase the
penalty for an offense under 49.07
Intoxication Assault
2nd degree felony if serious bodily injury is
in the nature of a traumatic brain injury
resulting in a persistent vegetative state.
Abdallah Khader Act
Criminal Code of Procedure
Article 2.12 Who are peace officers
Four bills affected this article:
(1) HB 2702 Amends subsection 11
to further limit its description
of airport police officers by
population.
(2) SB 601 Subsection 18 adds
officers commissioned by the El
Paso County Hospital District.
(Effective 6/17/11 )
Article 2.12 Who are peace officers
Four bills affected this article:
(3) HB 3815 Subsection 18 adds
officers commissioned by the Ector
County Hospital District Board of
Directors.
( Effective 6/17/11 )
(4) SB 653 Subsection’s 29 & 35
amended to provide proper
references to the new Texas
Juvenile Justice Department
Article 2.122 Special
Investigators
SB 150 & SB 530 ( Both effective
6/17/11 )
Updates language referring to
the various Federal officers.
Adds Special Agents of the
Treasury Inspector General.
Article 2.122 Special Investigators
Adds Special Agents of The Office of
the Inspector General of the Social
Security Administration.
Adds Special Agents of The Office
Inspector General of the Department
of Veterans Affairs.
Article 2.126 SB 1378 Peace officers
commissioned by the
Alabama Coushatta Indian Tribe
Enacts this article to authorize the tribal
council of the Alabama Coushatta Tribe
to employ and commission peace officers
for the purpose of enforcing state law on
the tribes reservation. These officers may
also serve as peace officers outside the
boundaries of their reservation as
long as they are summoned by or
another law enforcement agency.
Article 2.271 Investigation of
certain reports alleging abuse,
neglect or exploitation SB 7
Effective 9/28/11
Requires local law enforcement to
investigate a report of abuse, neglect,
exploitation , or other similar complaints
as required by the new Health and
Safety Code 260a.017 ( Duties of Law
Enforcement Joint Investigation )
Article 2.31 County Jailers
(Effective 6/17/11) SB 1233 & SB
604
New article authorizing county
jailers to execute lawful process
on a person confined in the jail in
which the jailer is employed.
SB 604 requires that
jailers complete
training however does
not provide information
regarding the training.
SB 1233 Does not
require training. May be
best to provide training
on the execution of
process and document
the training.
Chapter 5 Family Violence Prevention
Article 5.05 Requires that a peace officer
making a written report of family
violence to record whether the suspect
is a member of the state military
forces or is on active duty status as a
member of the U.S. armed forces and if
so provide written notice to either the
staff judge advocate at Joint Force
Headquarters ( Texas National Guard ) or
the provost marshal of the military
installation to which the suspect is
assigned.
Protective Orders
Article 6.09 Stalking Protective
order HB 1721 (Not located
under chapter 7a)
Chapter 7a Protective order for
certain victims of trafficking,
sexual assault and stalking.
Four bills amend this section………..
Continued……..
SB 24 Permits victims of sex
trafficking or compelling
prostitution to apply for a
protective order or prosecutor
may apply on their behalf.
SB 250 adds stalking
Article 7a.070 Duration of
protective order
HB 649 Removes the requirement
that a protective order may have
only a lifetime duration if etc…
Provides courts with discretion in
that regard…. Effective 9/1/11
Article 7a.070 Duration of
protective order
HB 649 Removes the
requirement that a protective
order may have only a lifetime
duration if etc… Provides courts
with discretion in that regard….
Effective 9/1/11
Chapter 12 Limitation and
Venue
Four separate bills
SB 24 (No limitation) for sex trafficking of
children.
HB 3000 adds subsection (g) for continuous
human trafficking.
SB 24 (10 years for the date of offense) Adds
subsection (g) for human trafficking where
adults are forced into labor services,
prostitution, and new subsection (h)
compelling prostitution of an adult.
Continued
HB 253 (7 years from the date of offense)
Adds subsection (h) for bigamy SB 688
also adds Medicare fraud.
HB 253 ( 10 years from the 18th
birthday of the victim) Offense of
human trafficking of children for no
sexual labor or services and
compelling of prostitution of children.
HB 253 also adds bigamy involving a
party younger than the age of 18 at the
time the offense was committed.
Chapter 13 Venue
Several changes which allow
for various offenses to be
tried
Articles affected
13.075 Child injured in one
county residing in another
Chapter 13 Venue
13.08 Theft
13.12 Trafficking of Persons,
false imprisonment,
kidnapping and smuggling of
persons.
13.13 Conspiracy
13.21 Organized criminal activity
13.271 Prosecution of Mortgage fraud
13.295 Unauthorized acquisition or
transfer of certain financial
information.
13.35 Money Laundering
13.36 Stalking
Recommended reading!
Chapter 15
Art. 15.27
Notification of schools required
HB 1907 makes multiple changes to
include:
Accelerating deadlines for
providing oral notice to 24 hours or
before the next school day (
whichever is earliest)
Requires more facts and details be
provided
Notification of schools required
Requires school superintendent or their
designee to provide copies of written
notices to school district employee who
directly supervises.
Requires school superintendent or
principals that learn of failure by a law
enforcement agency to comply with this
article to report that failure to
T.C.L.E.O.S.E.
Also requires juvenile court officials and
parole or probation officials to report
failures to their perspective director’s or
elected prosecutors.
Chapter 18 Search Warrants
SB 483 amends subsection (c)
to permit a magistrate with
jurisdiction over criminal
cases serving a district court
to issue evidentiary search
warrants under 18.01
See government code chapter
54a for additional information
related to associate judges
Article 18.07 Days allowed for
warrant to run:
Subsection (c) added to treat search warrants for
data or information contained in or a computer
cell phone, data storage device etc. as having
been executed within the 3 day time limit of
subsection ( a ) if the device was seized before
that time expired. The bill also clarifies that the
actual recovery and analysis of whatever data or
information on that device may occur after the
time limit. Applies to warrants issued after 9/1/11
Regardless of the date of the seizure or any related
offense.
Eye-Witness Identification
(Reform)
A common element in wrongful convictions
has been eyewitness misidentification. Eyewitness identification has proven to be
unreliable and inaccurate in 4-out-of-5 (75%)
of wrongful convictions. The Innocence
Project of Texas, Criminal Defense Lawyers
Association, Texas Criminal Justice Coalition,
and Tim Cole Advisory Panel are promoting
reforms, encouraging new legislation to
change witness identification procedures used
by law enforcement, including:
Blind administration
Lineup composition
Instructions
Confidence statements
Recording (videotaped)
Sequential presentation of lineup
Eyewitness Identification
Procedures
Ar t. 38.20
HB 215 / SB 121
Purpose: to reduce
erroneous eyewitness
identifications and to
enhance objectivity and
reliability.
BREAK – TAKE
20 -MINUTES
Effective 09/01/2012, each law enforcement
agency shall adopt and implement a detailed
written policy regarding the administration of
photograph and live lineup identification
procedures.
The LEMIT shall develop, adopt, and disseminate
a model policy (training), relating to eyewitness
identification based upon best law enforcement
practices.
LEMIT (December 31, odd-numbered years)
Review
LE Agency (September 1, even-numbered
years) Review
The law enforcement agency policy must be
based upon credible information regarding
eyewitness memory, relevant policies, guidelines,
and best practices designed to reduce erroneous
eyewitness identifications and to enhance the
reliability and objectivity of eyewitness
identifications; AND address the following topics:
Selection of photos or participants (live line-up)
Instructions (witness)
Documentation and Preservation of the lineup
results
Procedures for Administrating the line-up
(blind manner)
* Non-Compliance does not bar the admission of
eyewitness identification testimony.*
Chapter 63 Missing children
and missing persons
Article 63.001 HB 2662 and SB 1551
amended the definition of missing child
and adds a new subsection:
(3)(d) includes a child taken or retained
without the permission of the permission
of the Childs custodian, unless the taking
or retention was prompted by the
commission or act of family violence
against the child or the actor.
HB 943 CCP 63.009
Law Enforcement Requirements
Requires a local law enforcement agency
to enter the name of a child or missing
person into the missing children and
missing persons information
clearinghouse and other related systems
no later than two hours after receiving a
report that the child or person is reported
as missing.
Health and Safety Code
CCP Subchapter D: Offenses
and Penalties
481.103 Penalty Group 2
HB 2118
Technical correction to two substances
listed in subdivision 1 and the adds a new
subdivision 4 which lists complex synthetic
substances currently marketed and sold as
( Bath Salts) AKA Mephedrone, Methylone,
MDPV.
Previously not regulated by state or
federal law due to them being marked (Not
for human consumption) Read complete article
481.1031 Penalty group 2-a
New penalty group for synthetic cannabinoids
(K2 , SPICE)
Manufacture/Delivery will be prosecuted under 481.113
Possession prosecuted under new 481.1161
(SB 331) which has no requirement for the
amount possessed to be usable. Penalties
vary and are determined by aggregate
weight to including adulterants and
dilutanats. So the weight of the organic
material onto which the synthetic
cannabinoids is sprayed is to be included
when determining the punishment phase.
481.1285 Diversion of controlled substance by registrants,
dispensers and certain other persons SB 158
Offense criminalizes the conversion or
diversion of controlled substances by
persons who have access to them by virtue
of their employment of profession.
Conversion to the persons own use is a
state jail felony and diversion to another
person is a 3rd degree felony.
481.134 SB 331 Drug free zones
References added criminalizing the
possession of synthetic cannabinoids to
the drug free enhancement.
481.129 Fraud
SB 158
Adds subsection (a-1 ) in an attempt to
criminalize doctor shopping. When a patient
seeks out multiple doctors to prescribe
excessive amounts of drugs/medications. It is
a crime to obtain or attempt to obtain a
controlled substance or a prescription for a
controlled substance by misrepresentation ,
fraud, forgery deception, subterfuge, or
concealment of fact
( a prescription through another doctor) with intent to obtain
controlled substances that are not medically necessary.
Penalties located in subsection (d)-(1)
Family Code
Title 4 Protective orders and
Family violence
71.0021 Dating Violence SB 116
*Effective 6/17/11*
Definition of dating violence amended
Now includes ( Because of the
victims marriage to or dating
relationship) with an individual with
whom the actor is or has been in dating
relationship or marriage.
Title 4 Protective orders and
Family violence
71.0021 Dating Violence SB 116 *Effective 6/17/11*
Allows third party individuals to
apply for protective orders against
their current or former significant
others ex-spouse , partner, family
member or household members.
Definition of family violence
expanded in 71.004(3)
Contents of protective orders
85.021 SB 279 Requirements of
order applying to any party.
Authorizes a court to prohibit any
party from removing a pet,
companion animal or service
animal from the possession of
another named in the order.
85.022 SB 279 Requirements of
order applying to person who
committed family violence .
85.021 SB 279 Requirements of order applying to any party.
Expands this to authorize a court to
prohibit someone found to have committed
family violence from harming,
threatening or interfering with the care,
custody or control of a pet etc… that is
possessed by a member of the family or
household of a person protected by the
order.
Potential problems with enforcing this prohibition due to definition of
possession ( Having care custody and control or management of ).
May not be the case if the victim left the pet behind to flee from the
violence.
Talk with your prosecutors.
Duration of protective order
SB 789 85.025
Multiple changes to this section
85.025 (a)(1) permits a court to render
a protective order for more than two
years if the court makes certain findings
relating to the threats posed by the
person who is the subject of the order.
Refer to the article or bill for additional
changes.
Delivery of a protective order
HB 2624 Adds subsection (a)-(1) to 85.042
for cases in which the respondent is a
member of the State Military Forces or
on active duty service in the U.S. Armed
forces at the time the protective order is
issued or modified.
The clerk of the court must provide a copy of the
protective order to the staff judge advocate at
Joint Force Headquarters or the Provost Marshal
of the military installation that the suspect is
assigned.
Gover nment Code
Chapter 411 Department of Public
Safety of The State of Texas
411.0206 HB 2256
Allows D.P.S. to abate or defer a
mandatory suspension or revocation of a
driver’s license holder if the license holder
presents evidence to D.P.S. that the act or
omission leading up to the suspension or
revocation was caused by a person against
whom a criminal complaint has been filed
under Penal Code 32.51 (Fraudulent Use or
Possession of Identifying Information) in
which the license holder was the victim.
Subchapter L : Amber Alert
HB 1075 Permits the use of the AMBER Alert system for
missing persons with intellectual disabilities.
420.042 Analysis of sexual assault evidence SB 1636
Requires law enforcement agencies to submit sexual
assault evidence to an appropriate crime lab no later than
30 days after receiving it.
Requires person submitting the evidence to initiate a written
chain of custody.
Requires crime labs to analyze it as soon as possible.
Permits D.P.S. to contract with private labs.
SB 1636 also provides that failure of law enforcement to submit
evidence in accordance with these timelines does not prohibit
future submission or analysis of that evidence.
Chapter 422 Internet Based
Sexual Exploitation of a minor
422.001 Definitions
422.002 Internet Crimes Against Children
Account
422.003 Administrative Subpoena
422.004 Confidentiality of information
HB 3746 Enacts this chapter to facilitate investigations
of certain offenses involving the internet based sexual
exploitation of a child.
Of particular interest is 422.003
Permits a prosecuting attorney or a peace
officer with an internet crimes against
children task force to issue an
administrative subpoena that requires the
production of certain records and
documents relating to an investigation
involving the exploitation of a of a minor in
which an internet, electronic
communication , or remote computing
device has been used.
Additionally HB 3746 also requires the OAG to assist in
obtaining the administrative subpoenas.
Refer to the bill for complete information.
508.251 Issuance of warrant or summons
HB 2735 Amends subsection (c) to require TDCJ’s Parole
division to issue summons as opposed to (Blue Warrants )
for a parolee who:
Has been on parole for at least 3 years
Is alleged of committing only a technical
violation of release
Is not on intensive or super intensive
supervision
Is not an absconder and is of no threat to public
safety.
Intent of these changes is to address
overcrowding in county jails housing parolees
awaiting parole hearings.
Transpor tation Code
Reporting of MV Accidents
Sec. 521.042(c)
HB-341
The (drivers license) record of a peace
officer, fire fighter, or EMS employee, may
not include information relating to a traffic
accident that occurs while the employee is
driving an official vehicle in the course and
scope of his official duties, if:
Property damages less than $1,000; or
Employee- not at fault.
Changes in state accident report form.
Texas Peace Officer DL
Sec. 521.1211
SB 1292
DPS shall issue a driver’s license to
a Texas Peace Officer that omits the
officer’s actual residence address,
instead an alternative address.
The peace officer must apply to DPS
and provide sufficient evidence of
the applicant’s status as a peace
officer; and surrender any other
driver’s license.
Texas Peace Officer DL Sec. 521.1211
SB 1292
You have 30-days to notify DPS
of any changes, including:
Address change
Name changes; or
Ceases being a peace officer.
Chapter 545 Operation and
movement of vehicles
545.157 Passing authorized
emergency vehicle
HB 378 amends this section to require a
vehicle operator to change lanes or slow
down when passing a stationary tow
truck that is using emergency lighting
while at the scene of an accident or while
hooking up to a disabled vehicle on a
roadway.
545.4145 Riding in a boat or personal
watercraft drawn by a vehicle.
HB 2981 creates an offense to
prohibit a person from operating a
motor vehicle on a highway or
street while a child younger than 18
years of age is occupying a boat or
personal watercraft that is being
drawn by that vehicle.
* Exception for parades, emergencies or
operating on a beach.*
Speed Limits
Sec. 545.352
HB 1353
Authorizes TX DOT to raise the
speed limit on designated
highways to 75 MPH, based
upon engineering and traffic
studies.
Eliminate night-time speed
limit
545.425
Wireless communication devices
HB 1899 amends this section to allow a
municipality or political subdivision that
already prohibits within its boundaries
the use of a wireless communication
device while operating a vehicle. is not
required to post the signs required by
this section at school crossing zones if
that political subdivision posts similar
signs at which point a state, U.S. or
interstate highway enters that political
subdivision.
Local Government Code
Release of Photo of Police Officer
Sec. 143.090
HB-2006 / SB-484
Under Civil Service Law, a department, commission,
or municipality MAY NOT release a photograph of a
police officer unless the officer:
1. Charged with a offense by indictment or
information;
2. Party to a civil service hearing or a case before a
hearing examiner or arbitration;
3. Photo is introduced as evidence in a judicial
proceeding; or
4. Written consent by the officer.
Purchase of a Firearm
Sec. 170.002
HB 1379
A honorably retired peace officer may purchase a
firearm from the county if:
1. Honorably retired from the county;
2. Firearm was issued to the peace officer by the
county; and
3. Firearm is not a prohibited weapon (PC 46.05).
4. Purchase only one firearm
5. Commissioner’s Court shall establish the
amount.
Alcohol Beverage Code
Title 4 Regulatory and penal
provisions.
Chapter 106 Provisions relating to age
106.04 Consumption of alcohol by a minor:
In an attempt to encourage minors to seek
help during alcohol related emergencies
HB 3473 & SB 1331 Exempts a person
under 21 years of age from prosecution
who reports a medical emergency for
that person or someone else.
Also applies to
106.05 Possession of alcohol by a minor
Occupation Code
Law Enforcement Training Fund
The Texas House Appropriations
current bill proposes eliminating
all funding for the law
enforcement officer’s training
funds.
Annually, every law enforcement agency receives some
training funds from the state to support their training
needs.
Sworn Texas Peace Officers
February 21, 2011
Employee Termination Reports
1701.452
HB-520 / SB-545
When an employee resigns, retires, or is
terminated, the Chief or Sheriff shall
submit a “termination” report on a
prescribed TCLEOSE form, within 7
business days. The Chief or Sheriff must provide
the employee a copy of the termination report, within 7
business days.
The terminated employee may file a written petition for
correction of the report within 30 days.
TCLEOSE shall refer the petition to the State
Office of Administrative Hearings (SOAH).
If the alleged misconduct is not
supported by a preponderance of
evidence, the administrative law
judge shall order the report to be
changed.
Administrative Penalty
Confidential
HB 1402
1701
Occupations Code
Exempts persons licensed under 1701 from
Occupations Code Chapter 53.
H.B. 1402 amends current law relating
to the applicability of the law on the
consequences of a criminal conviction
to law enforcement officer license
holders and applicants.
Allows for equal action to be taken on all
individuals who are licensed.
HB 3823
1701.001.
Adds telecommunicators to the definitions in
1701.001
Requires all agencies to report
telecommunicators to the Commission.
Requires the Commission to set minimum
standards for telecommunicators.
Requires agencies employing
telecommunicators to submit reports to the
Commission.
Requires the Commission to set reporting
standards for employment and termination of
telecommunicators.
Includes training of telecommunicators in the inspection
and risk assessment process.
Disqualifies persons convicted of a felony from being
appointed or employed as a telecommunicators.
Requires agencies that employ telecommunicators to provide
them with 24 hours of crisis communications on or before
the first anniversary of the telecommunicators first day of
employment.
Adds training on federal and state statutes that relate to
employment issues to the basic certificate requirements for
telecommunicators.
Establishes age, education, and training requirements for
telecommunicators.
Adds an offense for employing or retaining an unqualified
telecommunicators.
SB 244 allows peace officer who is
second in command to a police
chief to attend a program from Bill
Blackwood to be exempt from
continuing education
requirements under 1701.351 and
1701.352.
SB 542 clarifies the standards for the issuance
of a license.
Requires a blood or other medical test to determine drug
dependency or illegal drug use.
Clarifies the continuing education requirements for all
licensees.
Identifies the training requirements for a chief of police.
SB 545 requires the agency to submit the
separation form after the officer has
exhausted all administrative appeals.
Requires officers to use Commission forms for petition
to change separation status.
Directs the Commission to refer petitions to SOAH.
Allows for an administrative penalty to agencies that do
not comply with changes directed by SOAH.
Makes all information related to separation confidential.
Allows all information related to separation subject to
subpoena.
SB 1303
Re-numbers 1701.258 Firearms
Training Program for Juvenile
Probation Officers to 1701.259.
Also re-letters 1701.402(h)
intermediate requirements to (j)
Education Code
School Bullying
Sec. 37.0832 - HB1942
Relating to bullying in public schools:
Bullying is any effort to harass or
intimidate another student.
Texas joins 39 other states in strengthening anti-bullying
provisions for students and schools.
Student transfers
Placement & discipline decisions (IDEA)
Juvenile Criminal History
Ed code Sec. 37.084
HB-3385 / SB-1106
Relating to the exchange of confidential
information concerning certain juvenile
offenders.
Issue: Teacher Safety v. Privacy of
Students
In response to the fatal stabbing of a high
school teacher in Tyler (2009), this
legislation provides teachers with the
criminal histories of their students.
Old state law allows teachers to be
notified verbally of a student’s crimes
at the discretion of school
administrators.
Under the new measure, law
enforcement must provide school
superintendents with all pertinent
details of the offenses committed,
AND superintendents must inform
teachers.
Written Notice of Student’s Arrests
College Education
Sec. 54.208 - HB1163
Texas Colleges and Universities shall
exempt from the payment of tuition
and lab fees for a criminal justice or
law enforcement course or courses an
undergraduate student who:
Employed as a Texas Peace Officer;
or
Enrolled in a criminal justice or law
enforcement-related degree program;
and
Making satisfactory academic progress
toward the student’s degree; and
Applies for the exemption at least one
week before the last date of the
institution regular registration
period for the applicable semester.
Fall Semester of 2011
Command Staff training
Ed Code, Sec. 96.641
HB-480 / SB-244
The LEMIT may establish and offer a
continuing education program for
Command Staff. The command staff
continuing education program must
satisfy the requirements for the police
chief continuing education program.
Exempt (Occupation Code, Sec. 1701.351)
Federal Law
U.S. Supreme Court Decisions
DHS (Terror Alert System)
Effective 04/27/2011, the DHS
replaced the five color-coded terror
alerts with a new “Terror Alert”
system, having two levels:
Elevated
Imminent
The old terror alert system was too vague and confusing.
The new terror alerts will also be published on
Facebook and Twitter.
Law Enforcement Officers
Safety Act-2004
HR-218
On 07/22/2004, President George W. Bush
signed into law the Law Enforcement
Officers Safety Act of 2004 (LEOSA).
Also known as the “National Concealed
Carry for Cops”, HR-218 allows an
“individual who is a qualified law
enforcement officer or a qualified retired
law enforcement officer to carry a
concealed firearm in any jurisdiction in
the United States.”
Law Enforcement Officers
Safety Act
Amends Title 18, U.S.C. to exempt
qualified current and former law
enforcement officers from State laws
prohibiting the carrying of concealed
handguns:
Qualified law enforcement officer
Qualified retired law enforcement officer
Qualified law enforcement
officer
Qualified LEO means an employee of a governmental
agency who-
1. Is authorized by law to engage in or
supervise the prevention, detection,
investigation, or prosecution of, or
the incarceration of any person for,
any violation of the law, and has
statutory powers of arrest;
2. Is authorized by the agency to carry a firearm;
3. Is not the subject of any disciplinary action by the agency;
Qualified LEO means an employee
of a governmental agency who 1. Is authorized by law to engage in or supervise the prevention,
detection, investigation, or prosecution of, or the incarceration of
any person for, any violation of the law, and has statutory powers
of arrest;
2. Is authorized by the agency to carry
a firearm;
3. Is not the subject of any disciplinary action by the agency;
Photographic identification
Qualified LEO means an employee
of a governmental agency who 1. Is authorized by law to engage in or supervise the prevention,
detection, investigation, or prosecution of, or the incarceration of
any person for, any violation of the law, and has statutory powers
of arrest;
2. Is authorized by the agency to carry a firearm;
3. Is not the subject of any disciplinary
action by the agency;
Qualified LEO means an employee
of a governmental agency who 1.
Is authorized by law to engage in or supervise the
prevention, detection, investigation, or prosecution of, or the
incarceration of any person for, any violation of the law, and
has statutory powers of arrest;
2.
Is authorized by the agency to carry a firearm;
3.
Is not the subject of any disciplinary action by the agency;
4. Meets standards established by the
agency which require the
employee to regularly qualify in the
use of a firearm;
5.
Is not under the influence of alcohol or another intoxicating
or hallucinatory drug or substance; and
6.
Is not prohibited by Federal law from receiving a firearm.
Qualified LEO means an employee
of a governmental agency who 1.
Is authorized by law to engage in or supervise the prevention,
detection, investigation, or prosecution of, or the incarceration of any
person for, any violation of the law, and has statutory powers of
arrest;
2.
Is authorized by the agency to carry a firearm;
3.
Is not the subject of any disciplinary action by the agency;
4. Meets standards established by the agency which require the
employee to regularly qualify in the use of a firearm;
5. Is not under the influence of alcohol or
another intoxicating or hallucinatory drug
or substance; and
6.
Is not prohibited by Federal law from receiving a firearm.
Qualified LEO means an employee
of a governmental agency who 1. Is authorized by law to engage in or supervise the prevention,
detection, investigation, or prosecution of, or the incarceration of
any person for, any violation of the law, and has statutory powers
of arrest;
2. Is authorized by the agency to carry a firearm;
3. Is not the subject of any disciplinary action by the agency;
4. Meets standards established by the agency which require
the employee to regularly qualify in the use of a firearm;
5. Is not under the influence of alcohol or another intoxicating
or hallucinatory drug or substance; and
6. Is not prohibited by Federal law from
receiving a firearm.
Qualified Retired LEO means an individual who1. Retired in good standing from service with a
public agency as a law enforcement officer, other
than for reasons of mental instability;
2. Before retirement, was authorized by law to
engage in or supervise the prevention,
detection, investigation, or prosecution of, or the
incarceration of any person for, any violation of
the law, and had statutory powers of arrest;
3. Before retirement, was regularly employed as a
law enforcement officer for an aggregate of 15
years or more; or retired from service with such
agency, after completing any applicable
probationary period of such service, due to a
service-connected disability, as determined by
such agency;
4. Has a no forfeitable right to benefits under
the retirement plan of the agency.
5. During the most recent 12-month period, has
met, at the expense of the individual, the State’s
standards for training and qualification for
active law enforcement officers to carry
firearms.
6. Is not prohibited by Federal law from receiving
a firearm.
Photographic identification
LEOSA (Words of Caution)
Law enforcement officers should be cautions
against carrying guns into airports, schools,
casinos, and other sensitive secure locations.
There are two types of state laws that are not
overridden by the LEOSA, such as:
1. Permit private persons or entities to prohibit or
restrict the possession of concealed firearms
on their property; or
2. Prohibit or restrict the possession of firearms
on any State or local government property,
installation, building, base, or park.
Secure Communities Program
The Secure Communities Program is a
fingerprint-sharing system operated
by the Immigration and Customs Enforcement that
automatically checks the immigration status of criminal
suspects booked in local jails.
In Texas, this nationwide crackdown began in the
Houston Jails. By 09/29/2010, the program expanded
(statewide) to all 254 counties.
Nationally- more than 41,000 deportations of illegal
immigrants
40% of those occurred in Texas
By 2013, President Barack Obama’s Administration
wants Secure Communities operating nationwide.
Fifth U.S. Circuit Court of
Appeals
Estate of Ceballos v.
Bridgwater, Porras, & Mull
09-10076 (5th Circuit 2010)
Use of Deadly Force
On September 11, 2006, the Plainview
Police were called to a family
disturbance, involving Jose Ceballos, age
34, who was armed with a knife. Jose’s
sister called the police for help. During
this domestic disturbance, Jose Ceballos
was shot and killed by Officer William
Bridgwater.
The estate of Jose Ceballos filed a civil
lawsuit, claiming that the use of deadly
force was excessive force and
unreasonable… that Jose Ceballos did not
pose an immediate threat to himself or
others.
Jose Ceballos, Jr. was shot and killed by
Officer William Bridgwater of the
Plainview Police Department, in regards
to a family violence incident. The
Ceballos family filed a civil lawsuit (42
U.S.C. 1983) against Officer William
Bridgwater, Sgt. Jose Porras, Chief William
Mull, and the City of Plainview. The
Federal District Court ruled that the
police were not at fault and granted
summary judgment of behalf of the
individual officers and the City of
Plainview.
The Ceballos family appealed the
decision to the 5th Circuit Court of
Appeals, who overturned the state
district court’s ruling that granted
summary judgment on the issues of
“qualified immunity” to Officer
William Bridgwater, who fired the fatal
shot. The 5th Circuit Court of Appeals
stated the facts did not support an
“immediate threat” from Ceballos.
Sgt. Porras, Chief Mull granted qualified immunity
State Claims dismissed
Use of Deadly Force (Police)
Penal Code, Sec. 9.51.
A peace officer is justified in using
deadly force against another when
and to the degree the peace officer
reasonably believes the deadly force
is immediately necessary to make
an arrest and the officer reasonably
believes there is a substantial risk of
serious bodily injury or death.
Penal Code, Sec. 9.51.
When is “deadly force”
appropriate?
According to the 5th U.S. Circuit
Court of Appeals, the cases on
deadly force are clear: “an
officer cannot use deadly force
without an immediate threat to
himself or others”.
Penal Code, Sec. 9.51.
Tennessee v. Garner (1985):
Deadly force is not justified
unless a suspect poses a risk of
serious harm.
The legal issue is whether the
officer reasonably perceived an
“immediate threat” at the time
he used deadly force.
Texas Open Meetings Act
Gov’t Code, Chapter 551
In 1967, the Texas State Legislature
approved the Open Meetings Act to
ensure transparency in local
government. Under the Texas Open
Meetings Act, every meeting of a
governmental body, including city
council, county commissioner’s court,
and school boards, must be open to
the public in compliance with state
law.
There are seven exceptions that authorize closed
meetings, known as “Executive Sessions”:
Purchase or lease of real property;
Security reasons;
Receipt of gifts (????????);
Consultation with attorney;
Personnel matters;
Economic development; and
Homeland security matters.
While they may meet in private for discussion, all
final actions, decisions, or votes must be
public.
Texas Open Meetings Act
Stiff Punishment
In 2003, the Texas State Legislature enhanced the
punishment for violating the “Open Meetings act”
Fine up to $500
Six months in jail
In 2009, city officials in Alpine (11 other cities) filed a
lawsuit in Federal Courts seeking to lessen the
punishment for elected officials convicted of violating the
Open Meetings Act.
On 03/25/2011, U.S. District Judge Robert Junell upheld
the Texas Open Meetings Act. Judge Junell wrote, “that
the law doesn’t muzzle the 1st Amendment right
to free speech, but instead protects the
compelling interest of governmental
transparency.”
U.S. Supreme Court
Snyder v. Phelps
06-51067 (2011)
1st Amendment Right
On 03/02/2011, the Supreme Court ruled that the
1st Amendment protects fundamental church
members, who mount anti-gay protests outside
military funerals, despite the pain they may
cause grieving families.
The court ruled 8-1 in favor of the Westboro
Baptist Church of Topeka, KS. The Supreme
Court decision upheld an appeals court ruling
that threw out a $5 million judgment to Albert
Snyder, the father of the dead Marine.
The court ruled that the 1st Amendment (free
speech) shields the funeral protesters, noting
that the protesters obeyed police instructions
and were 1,000 feet from the church.
Westboro Baptish Church
Chief John Roberts, said, “Speech is powerful. It
can stir people to action, move them to tears of
both joy and sorrow, and - as it did here – inflict
great pain. On the facts before us, we cannot react
to that pain by punishing the speakers. As a nation,
we have chosen a different course – to protect
even hurtful speech on public issues to ensure
that we do not stifle public debate.”
Justice Alito strongly disagreed, saying: “Our
profound national commitment to free and open
debate is not a license for the vicious verbal
assault that occurred in this case.”
H u m b e r t o L e a l G a rc i a v. Tex a s
11-5001 (2011)
Consular notification
Humberto Leal Garcia was a Mexican National, who lived
in the United States since he was two years old. In 1994,
Garcia kidnapped, raped, and murder a 16-year old
girl. He was convicted of Capital Murder and
sentenced to death.
During the 11th hour, Leal Garcia requested a stay of
execution on the ground that his conviction was obtained
in violation of the Vienna Convention on Consular
Relations. The International Court of Justice held that the
United States (State of Texas) had violated the Vienna
Convention by failing to notify him of his right
to Mexican-Consular assistance.
In compliance with international
treaties, when the police arrest
foreign nationals, they are
required to notify the
appropriate Consular.
U.S. State Department’s
publication, entitled:
“Consular Notification and
Access”
Leal Garcia v. Texas
Sandra Babcock, who was Leal Garcia’s attorney, along
with the White House asked the U.S. Supreme Court to
stay the execution so that Congress could consider
whether to enact appropriate federal legislation. The
U.S. Supreme Court denied Leal Garcia’s request for stay
of execution, pending future federal legislation.
“Our task is to rule what the law is, not
what it might eventually be.”
Justice Scalia
On 07/08/2011, convicted
murder Humberto Leal Garcia
was executed by lethal
injection at Huntsville, Texas.
Garcia v. Texas, Nos. 11-5001 (11A1), 11-5002 (11A2), and
11-5081 (11A21), SUPREME COURT OF THE UNITED
STATES, 131 S. Ct. 2866
Miranda Warnings
In 1966, the U.S. Supreme Court decided
the landmark decision of Miranda v.
Arizona, regarding the admissibility of
confessions obtained from a criminal
suspect, while in police custody. Miranda
reaffirmed the constitutional standard
governing police “custodial”
interrogations established in Escobedo v.
Illinois (1964) by proscribing the
following warnings:
The person has the right to remain silent;
That anything the person says can be used
against him in a court of law;
That the person has the right to the
presence of an attorney;
That if the person cannot afford an
attorney one will be appointed for him
prior to any questioning.
Since the 1960s, there have been countless Supreme Court
cases addressing a variety of Miranda Warnings issues,
including Florida v. Powell.
Florida v. Powell -Miranda
Warnings
Florida v. Powell, No. 08-1175, SUPREME COURT OF THE UNITED
STATES, 130 S. Ct. 1195
On August 24, 2004, law enforcement officers in
Tampa, Florida arrested Kevin Powell in
regards to a robbery investigation. During
the arrest, the police found a loaded 9mm
handgun. At the police department, the
officers read Powell the standard Tampa PD
Consent and Release Form:
“You have the right to remain silent. If you give up the
right to remain silent, anything you say can be used
against you in court. You have the right to talk to a
lawyer before answering any of our questions. If you
cannot afford to hire a lawyer, one will be appointed for
you without cost and before any questioning. You have
the right to use any of these rights at any time you want
during this interview.”
Powell acknowledged that he understood
his rights and signed them, admitting that
the gun was his. Powell was charged with
possession of a firearm by a felon. Later,
he moved to suppress the statement,
arguing that the Miranda Warnings he
received were inadequate.
Florida v. Powell
08-1175 (2010) - Miranda War nings
In 2010, the Supreme Court clarified
that while the four Miranda Warnings
do not vary, the words the police use
to convey those warnings may vary.
There is no specific wording that
must be followed by the police. The
Supreme Court ruled that the (Tampa)
police were entitled to give
alternative Miranda Warnings.
While the Supreme Court did not specify
the exact wording of the Miranda
Warnings, the Court ruled that the police
MUST “explicitly” advise a criminal
suspect of his right to have a lawyer
present to advise him.
The best police practice is to adhere to Texas
Law, closely following Article 38.22 of the
Code of Criminal Procedure.
Maryland v. Shatzer
(Edward’s Rule)
Maryland v. Shatzer, No. 08-680, SUPREME COURT OF THE
UNITED STATES, 130 S. Ct. 1213
In 1981, Edwards v. Arizona created a
presumption that once a suspect invokes
his Miranda right to the presence of
counsel, any future waiver of his rights is
involuntary.
Edwards’ fundamental purpose is to
preserve the suspect’s right to
communicate with police through his
attorney.
In 2003, a police detective tried to
question Michael Shatzer, who was
incarcerated at a Maryland prison,
about allegations that he had sexually
abused of his son. During this
police contact, Shatzer invoked his
Miranda rights, so the detective
terminated the interrogation.
In 2006, another detective reopened
the investigation involving Shatzer’s
sexual abuse of his son. Shatzer was
still incarcerated at the Maryland
prison. This time, Shatzer waived
his Miranda Rights and made
incriminating statements about
abusing his son.
The trial court refused to suppress
his statements, reasoning that the
Edward’s Rule did not apply
because Shatzer experienced a
break in Miranda custody prior to
the 2006 interrogation. Shatzer
was convicted of sexual child
abuse. The Court of Appeals of
Maryland reversed, saying the
mere passage of time does not
end the Edwards protections.
Maryland v. Shatzer
08-680 (2010)
Edward’s Rule
The Supreme Court relaxed its previous
ruling, known as the Edward Rule, which
prohibited further questioning by the
police without the presence of legal
counsel. Instead, the Supreme Court
established a 14-day rule.
Edwards v. Arizona (1981)
14-day rule
Kentucky v. King
09-1272 (2011)
Search and Seizure
(Warrantless Entry)
Kentucky v. King, No. 09-1272, SUPREME COURT
OF THE UNITED STATES, 131 S. Ct. 1849
In Lexington, KY, the police set up a controlled buy of
crack cocaine outside an apartment complex. After
the sale, the police chased a drug dealer into the
apartment complex. The suspect ran into a breezeway where there were two apartments. Police heard a
door slam, but did not know which of the two
apartments the suspect had entered. They smelled
marijuana outside the apt door, knocked loudly, and
announced their presence. Hearing sounds
consistent with the destruction of evidence, the
officers kicked in the door and entered the apt w/o a
warrant. They found Hollis King and two other people
inside, smoking marijuana. Later, they police
discovered that the drug dealer was hiding in the
other apartment, on the right.
Reasonable or Unreasonable (4th Amendment)?
Search and Seizure: “Police-Created Exigency”
Does not invalidate “warrantless” entry.
“Although the Fourth Amendment does not specify
when a search warrant must be obtained, [Supreme
Court] has inferred that a warrant must generally be
secured.”
“Searches and seizures inside a home without a
warrant are presumptively unreasonable.”
One of the established exceptions to the warrant
requirement is “exigent” circumstances, such as:
Emergency aid
Destruction of evidence
The central test of the 4th Amendment is whether the
actions of the police are “reasonable”. The police
did not violate the 4th Amendment.
Texas Police Journal (July/August-2011)
The U.S. Supreme Ct. ruled by an 8-1 vote
that the police can enter a home w/o a
warrant under the “exigent”
circumstances exception. A key
exception arises when the police believe
evidence is being destroyed or some other
emergency is underway.
The 4th Amendment mandates that citizens shall be free
from “unreasonable” searches and seizures.
Exceptions-
Search Warrant
Owner’s Consent
Exigent Circumstances
City of Ontario v. Quon
08-1332 (2010)
4 th Amendment (reasonable
search)
City of Ontario v. Quon, No. 08-1332,
SUPREME COURT OF THE UNITED
STATES, 130 S. Ct. 2619
In 2002, Sgt. Jeff Quon (SWAT) with
the City of Ontario Police
Department. used his agency-issued
pager to exchange numerous nonwork related texts, some sexuality
explicit with his wife and girl-friend.
Each month, Lt. Steven Duke would collect
from the employees for overage fees.
After several months, Lt Duke expressed
his displeasure with Chief Lloyd Scharf of
having to act as a “bill collector”.
Chief Scharf decided to audit the
usage details to determine whether
the city’s contractual character limit
was sufficient to meet the city’s needs.
Both the city and OPD had a legitimate
interest in ensuring that employees
were not being forced to pay for workrelated expenses or that the city was
not paying for expensive personal
communications.
Although Sgt. Quon had exceeded
his monthly allotment a number of
times, the city requested transcripts
for only August and September
(2002). During the review process, Lt.
Duke discovered violations of agency
polices. The Chief called for an IA
investigation of the records.
The IA investigation revealed that of the
456 on-duty text messages Sgt. Quon sent
during the month of August, only 57 were
work-related. The IA investigator found
that many of the texts were sexually
explicit messages to his wife and
girlfriend. The investigation found that
Sgt. Quon sent as many as 80 texts daily.
Sgt. Quon was disciplined for violating
agency policies.
Sgt. Quon filed a civil lawsuit claiming that Police
Administrators violated his constitutional rights by auditing
his text messages:
4th Amendment (unreasonable search and seizure)
1st Amendment (expectation to privacy)
While he may have an expectation to
privacy, the U.S. Supreme Court ruled
that the search/seizure (audit) was
“reasonable”. The Police Chief’s
review was not “excessively
intrusive”. There was no constitutional
violation of the 4th Amendment .
Fourth Amendment
“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated…”
The 4th Amendment guarantees a person’s
privacy, dignity, and security against arbitrary
and invasive governmental acts, without regard
to whether the government actor is investigating
crime or performing another function.
Skinner v. Railway Labor Executives’ Assn.
It applies as well when the government acts in its
capacity as an employer.
Treasury Employees v. Von Raab
In reality, if an employee violates
agency policy or misuses
government-issued equipment, the
employee can be disciplined. A
“legitimate work-related” purpose
empowers public employers to
search agency-issued computers,
cell-phones, pagers, etc. for a variety
of reasons.
Impact on Open Records: E-mails and text messages
may fall within the scope of the Texas Public
Information Act or Open Records and Freedom of
Information Act.
Justice Kennedy stated: “As a law enforcement
officer, he would or should have known that his
actions were likely to come under legal scrutiny, and
that this might entail an analysis of his on-the-job
communications. Under the circumstances, a
reasonable employee would be aware that sound
management principles might require the audit of
messages to determine whether the pager was being
appropriately used.”
“Given that the city issued the pagers to Quon and other SWAT Team members in order to help
them more quickly respond to crises-and given that Quon had received no assurances of
privacy- Quon could have anticipated that it might be necessary for the city to audit pager
messages to assess the SWAT Team’s performance in particular emergency situations.”
City of Ontario v. Quon
Agency Policy
The City of Ontario had a Computer Policy that
applied to all employees. Among other
provisions it specified that the City “reserves the
right to monitor and log all network activity,
including e-mail and Internet use, with or without
notice”. “Users should have no expectation of
privacy or confidentiality when using these
resources”.
In March-2000, Sgt. Quon signed a statement,
acknowledging that he had read and understood
the Computer Policy.
However, the computer policy did not include
any references to text messaging. While the
computer policy did not explicitly cover text
messaging, the City made it clear to employees
that it would treat text messages the same as
e-mails. On April 18, 2002, Lt. Steven Duke, who
was responsible for the Arch Wireless contract,
told officers that messages sent on the pagers
“are considered e-mail messages.” On April
29, 2002, Chief Scharf documented the intended
policy in the form of a memorandum.
Again, this illustrates the importance of
maintaining current policies. You don’t expect
the U.S. Supreme Court to review your agency
policies.
Skinner v. Switzer
09-9000 (2011)
Post-conviction DNA testing
In 1993, on New Years Eve, Hank Skinner
was convicted of the brutal killings his
girl-friend and her two sons in Pampa,
TX. He claimed that alcohol / drug abuse
rendered him physically unable to
commit the brutal murders. Skinner
testified that his girlfriend’s uncle was the
likely perpetrator.
In this case, the Supreme Court decided
that Skinner can use a federal civil
rights law (42 U.S.C. 1983) to persuade
a federal judge to order the
Prosecutor-Switzer to turn over
evidence to be tested for DNA.
Title 42 U.S.C. Section 1983
Federal Writ of Habeas Corpus
On 03/07/2011, the U.S. Supreme Court
allowed convicted murderer- Hank
Skinner to pursue his federal civil rights
lawsuit (42 U.S.C. 1983).
Test Time
Thank you for attendance,
patience, tolerance and
remember this presentation
consists of selected articles
only, please read and be
aware of any and all changes.