Texas: House Passes Two NRA-Backed Bills This Week

Texas: House Passes Two NRA-Backed Bills This Week

 Thursday, April 11, 2019

 This week, the Texas House passed two pro-Second Amendment measures to further protect your rights in the Lone Star State. 

House Bill 121:

NRA-supported legislation by Rep. Valoree Swanson (R-Spring), provides a legal defense for License To Carry holders who unknowingly enter establishments with 30.06 or 30.07 signs, as long they promptly leave when verbally informed of the policy.  HB 121 passed on third reading by a 119-25 vote.

House Bill 302:

An NRA-backed measure by Rep. Dennis Paul (R-Houston), protects the rights of tenants to possess lawfully-owned firearms and ammunition in residential units, and to transport them directly en route between their personal vehicles and their apartments or condominiums.  Provisions relating to commercial tenants and leases were removed from the bill, but protections for tenants on manufactured home lots were added, so that it now mirrors the Senate version.  HB 302 passed on third reading by a 101-44 vote.

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Once Again, Texas Lawmakers Target Fees for Driving Offenses


By Chuck Lindell 
Posted Mar 13, 2019 at 3:02 PM

Updated Mar 13, 2019 at 6:50 PM


In what has become a rite of spring in the Texas Capitol, work began Wednesday on legislation to dismantle the Driver Responsibility Program, one of the most despised yet persistent policies to bedevil lawmakers in recent sessions.

By adding three years of extra fees for certain driving offenses, then taking away the driver’s license of anyone who doesn’t pay, the program has placed a significant number of low-income Texans into a cycle of debt that has solidified opposition from liberal Democrats, tea party Republicans and many lawmakers in between.

But the fees have also funneled significant sums toward trauma hospitals — about $55 million annually in recent years — supporting a crucial safety net across Texas.

Ending the program without sacrificing the trauma hospital money has been the sticking point that doomed efforts in previous legislative sessions.

Breaking the ice this session was House Bill 1145 by Rep. Matt Krause, R-Fort Worth. It’s one of almost a dozen filed bills that would repeal the Driver Responsibility Program and the first to get a committee hearing Wednesday.

Krause told the House Homeland Security and Public Safety Committee that his measure was almost identical to a bill that passed the House 133-4 in 2017, though too late in the session to get Senate agreement.

The idea, Krause said, is to continue assessing a one-time extra fee for those convicted of driving while intoxicated or ticketed for driving without insurance, plus add $30 to state traffic fines, to continue funding trauma centers.

DWI fees would range from $3,000 to $6,000, while driving without insurance would cost an extra $750 — unchanged from current surcharges assessed over three years.

John Hawkins with the Texas Hospital Association spoke in favor of the bill, saying money from the program helps offset about $320 million a year in unreimbursed trauma care in state hospitals.

“The current funding has worked well,” Hawkins said. “And the need will still be there with population growth.”

But Emily Gerrick with the Texas Fair Defense Project said Krause’s bill would still leave people susceptible to having their driver’s license suspended under a separate program for unpaid fines and traffic tickets.

“Unfortunately, this bill would cause some other problems and result in the same people losing their licenses under a different program,” Gerrick said.

Continuing to assess the same fees — particularly a $750 surcharge for failure to have insurance, which disproportionately affects low-income Texans — won’t solve the problem, she said.

Krause committed to working with Gerrick to address the driver’s license issue.

“It was not my intention to be able to lose your license if you couldn’t pay your fine. That’s so counter-intuitive because, if you can’t drive to where you need to go, you can’t continue to have a job in order to pay the fines or surcharge,” Krause said. “That is one of the flaws of the DRP.”

Since the program started 16 years ago, more than 1.3 million drivers have had their licenses revoked for nonpayment.

Currently, the program assess fees over three years for offenses that include driving while intoxicated ($1,000 a year), a subsequent DWI ($1,500 annually) and DWI with a blood-alcohol concentration of 0.16 percent or higher ($2,000 a year).

In addition, driving without insurance or a valid license adds a $250 annual surcharge, while driving with an expired license adds $100 annually. Drivers who accumulate at least six points for moving violations also pay $100 annually, with an another $25 for each additional point.

There is still plenty of time for action on other bills to repeal the program, though several do not continue funding trauma hospitals, a situation that doomed similar bills in prior sessions. Some bills also seek to reduce surcharges or ensure that information on waiving fees is provided to low-income people.

Texas Supreme Court justices call for beefed-up Michael Morton Act

Chuck Lindell

Austin American Statesman

Posted at 2:35 PM

Updated at 4:43 PM

The Texas Supreme Court on Friday dismissed a lawsuit by a former Nueces County prosecutor who said he was fired for refusing an illegal order to hide evidence favorable to a criminal defendant.

But the ruling came with a pointed warning, and a plea for action by the Legislature, from three of the court’s nine members.

The Supreme Court was unanimous in deciding that Eric Hillman could not sue the county and the district attorney’s office because, as government agencies, they are immune from lawsuits over wrongful termination.

The court rejected Hillman’s argument that the 2013 Michael Morton Act, named for a Williamson County man who spent almost 25 years in prison for a murder he did not commit, waived government immunity from Hillman’s lawsuit because the act makes it a state crime to hide favorable evidence from defendants.

Hillman’s lawyers argued that making it a crime to withhold evidence, but allowing an assistant district attorney to be fired for refusing to do so, was “nonsensical” and contrary to the Legislature’s intent with the Michael Morton Act.

However, the court ruled, waiving government immunity from lawsuits requires specific language, and nothing in the act addresses immunity.

“We defer to the Legislature to decide whether such a waiver would be appropriate as a matter of public policy,” said the opinion by Justice Jeff Boyd.

Friday’s decision to dismiss Hillman’s lawsuit followed similar rulings by a trial court and an intermediate appeals court based on immunity, a legal concept that shields many government decisions from lawsuits as a way to protect public tax dollars.

Writing a separate concurring opinion, Justice Eva Guzman said the Hillman case exposed shortcomings in the Morton Act that the Legislature should address.

If Hilllman could prove he was fired for failing to hide favorable evidence, “by any measure of law and morality in a civilized country, that is wrongful termination,” Guzman wrote in the opinion joined by Justices Debra Lehrmann and John Devine.

“Those we entrust to pursue justice should not be put to the Hobson’s choice of earning a living or doing the right thing,” Guzman wrote. “Cloaking governmental employers with absolute immunity in such circumstances erodes public confidence in the criminal justice system and undermines concerted legislative efforts to reform that system.”

If illegal practices are encouraged or rewarded, prosecutors might be enticed “to cross the line” or be discouraged from following the disclosure law, Guzman added.

“It’s fair to assume that the Legislature did not envision such a consequence when enacting the Morton Act without adopting measures to ensure prosecutors could comply with the Act without losing their job,” she wrote. “In light of the underbelly this case exposes, it would be appropriate for the Legislature to do so now.”

However, the deadline to file bills for action in the 2019 legislative session has passed. It might be possible to amend existing bills to answer the justices’ call, but the legislation would have to be germane to issues of immunity or the Morton Act.

Nueces County officials denied wrongdoing in Hillman’s case, a dispute that began with the prosecution of David Sims on charges of intoxication assault and leaving the scene of an accident in 2013.

According to court records, Hillman found a witness who was not in the police report and who said Sims was not drunk at the time of the accident, but a supervisor ordered him to keep the information about the witness to himself, saying it did not have to be disclosed to defense lawyers because it came from his independent investigation.

After consulting with experts in legal ethics who disagreed, Hillman disclosed the witness and was fired for refusing to follow orders, his lawsuit said.

DWI and Consent to Breath or Blood Specimen

I was “passed out” in a hospital bed, how could the police draw my blood without my consent?

Anyone licensed by the State of Texas to drive a motor vehicle on public highways is deemed to have consented to the taking of a blood or breath test to determine alcohol concentration. Tex. Trans. Code sec 724.011. This consent is in effect, in most situations, unless the driver expressly withdraws it (i.e. “refuses” the arresting officer’s request for a sample). See, Tex. Trans. Code sec 724.013. If the arrested person is alive but otherwise incapable of refusing the test, for example unconscious, the person has not withdrawn their consent and, pursuant to Texas statute, a specimen may be taken by a physician, qualified technician, registered professional nurse, licensed vocational nurse, or a licensed or certified emergency medical technician-intermediate or paramedic appropriately authorized to take a specimen, without first obtaining the unresponsive person’s contemporaneous consent. Tex. Trans. Code sec 724.014.

Lawyer Suspended

Proud Boys Lawyer Jason Lee Van Dyke Suspended By Texas Bar After Threats

After months of threats, slurs and lawsuits, the State Bar of Texas is disciplining Van Dyke.

By Andy Campbell

02/21/2019 06:16 pm ET Updated Feb 22, 2019

Jason Lee Van Dyke, the suit-happy lawyer who represented and briefly led the Proud Boys extremist gang, has been suspended from practicing law in Texas after he threatened to kill a man he was suing, the State Bar of Texas confirmed.

Van Dyke, who has a penchant for targeting those who oppose him with violent threats, is banned from practicing law for three months and will be on probation for another nine, if he complies with a slew of conditions from the state bar, according to case documents.

Van Dyke has been in and out of legal trouble for months ― he was arrested in September and accused of filing a false police report, released on bond, then given a new bail hearing for threatening a man named Thomas Retzlaff, whom he was suing for defamation. Van Dyke didn’t show up to that bail hearing in December and again found himself in handcuffs, the Denton Record-Chronicle reported.

And those were just the incidents on the books. The state bar told HuffPost as early as November 2017 that it was aware of other threats Van Dyke had made and admitted to, including acknowledging over the phone that he’d threatened to kill a “f**king n****r” on Twitter, as well as an entire family. At the time, Van Dyke was suing an anti-fascist for calling him and the Proud Boys neo-Nazis.

The state bar confirmed to HuffPost that it had forwarded statements to its disciplinary arm. Since the agency doesn’t normally comment on individuals, it wasn’t clear at the time whether it had opened a case against Van Dyke.

Now, if he wants to practice law again, he’ll have to pay a $7,500 fine, stay out of trouble and “seek mental health treatment,” according to the state bar documents. It wasn’t immediately clear how the outcome of other Van Dyke’s case ― which alleges he filed a false report for a burglary at his home that he was involved in ― might affect his probation.

Amid his own legal trouble, Van Dyke was intermittently promoted from lawyer to leader of the Proud Boys ― a gang of extremists known for harassing people online and attacking them in real life ― but was quickly ousted when he accidentally released the personal information of the group’s leadership and then threatened those who reached out to him about it.

Upon his ouster in November 2018, he sent me this email:

“Now that I am no longer part of the Proud Boys and no longer representing them, I want to let you know that you are a despicable and evil human being. It is my hope that your duties as a HuffPo reporter bring you to the metroplex this holiday season so that I can give you the gift of a left hook. Kiss my ass, faggot.”

In the News

Ex-death row inmate in Houston declared innocent by special prosecutor

by: Matthew Prendergast

Posted: Mar 01, 2019 / 01:57 PM CST / Updated: Mar 01, 2019 / 01:57 PM CST

HOUSTON (KXAN) — A former death row inmate who had his capital murder charge dismissed and was released from prison in 2015 has officially been declared innocent by the Harris County District Attorney's office, KPRC in Houston reports.

Alfred Dewayne Brown was convicted back in 2005 of capital murder for shooting and killing Houston police officer Charles Clark and store clerk Alfredia Jones.

Brown was released from prison in 2015 when the highest criminal court in Texas ruled that prosecutors violated his human rights when they failed to show phone records supporting his alibi. (emphasis added).

A special prosecutor appointed by Harris County District Attorney Kim Ogg was investigating the case and tasked with determining if Brown should be re-indicted, declared legally innocent or if the status should remain unchanged.

Special prosecutor John Raley said he and his team reviewed the case for 1000 hours. He said after several interviews and reviewing multiple trials and appeals, he believes Brown is innocent.

What did he do?

“Our procedure has always been haunted by the ghost of the innocent man convicted.”

—Judge Learned Hand (1923)

How many prospective jurors walk into a courtroom for jury selection, look at the defendant, and wonder “what did he do?” Why, one might ask, don’t prospective jurors instead ask themselves “I wonder what he was wrongfully accused of?” Doesn’t this question better reflect the “presumption of innocence?”

The concept of “Presumption of Innocence” is so important to criminal jurisprudence in the United States that it is a right guaranteed under the Constitution. But, what does it mean to be presumed innocent? You’ve heard it before. It means an accused is, and must continue to be, innocent until proven guilty.

But, how long should a juror presume a defendant is innocent? Until the person is arrested by the police? Or, until the Grand Jury returns an indictment? Until the case is set for trial?

No. Any person accused of a crime is innocent until and unless the State proves each and every element of the case beyond a reasonable doubt!!!

Therefore, if a prospective juror has heard no evidence from the courtroom, and that juror is asked to vote right then on the guilt of the accused without any courtroom evidence, their vote can only be … NOT GUILTY.

So, again, why wouldn’t a prospective juror ask themselves “I wonder what he was wrongfully accused of?” Does a failure to do so tilt the scales of justice against a defendant and, thereby, risk convicting an innocent man?

JD Slaughter, March 1, 2019

Open Meetings Act - TCCA

Texas Criminal Court of Appeals Strikes Down Quorum Provision in Texas Open Meetings Act

The Texas Criminal Court of Appeals on Wednesday struck down a quorum provision of the Texas Open Meetings Act as "unconstitutionally vague."

By Mark Bauer Texas Lawyer

February 27, 2019 at 11:55 AM

The Texas Criminal Court of Appeals on Wednesday struck down a quorum provision of the Texas Open Meetings Act as “unconstitutionally vague.”

Writing for the majority, Judge Sharon Keller wrote that the statute lacked any specificity. The open records law makes it a crime for government officials to circumvent public access and information about government meetings by knowingly conducting meetings that fail to meet a quorum.

“We conclude that the statute before us is vague in much the same way as the statutes in Johnson and Dimaya. Like those statutes, the statute before us is hopelessly indeterminate by being too abstract. As we shall see, the statute has little in the way of limiting language and notably lacks language to clarify its scope,” Judge Keller wrote for the majority.

The decision stems from a case involving Montgomery County judge Craig Doyal, who was indicted for circumventing the Texas Open Meetings Act after he met with a political consultant and a political action committee without a quorum to discuss a road bond.

“We have a duty to employ a reasonable narrowing construction to avoid a constitutional violation, but we can employ such a construction only if the statute is readily susceptible to one,” Judge Keller wrote.

“We do not doubt the legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act. But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views,” she said. “This we decline to do.”