There is an urgent need for legislation overruling Mata and progeny. I am just not sure this bill is a constitutional means of accomplishing that goal. Anyone else share that concern? HB 1530
As I understand Leary v. U.S., 395 U.S. 6 a presumption must more likely than not flow from the proved fact. It seems to me Mata says this is not true with respect to unextrapolated test results. Plus this is a mandatory presumption. See County Court v. Allen, 442 U.S. 140 I hope I am wrong, but I would hate to see this bill pushed as the only solution if I am right.

We're always open to different ways to skin the cat, Martin -- please feel free to make some constructive suggestions. My limited research on this topic (with the heavy lifting done by Colorado Co. C&DA Ken Sparks) shows that other states use similar presumptions; that's why we did so here.

BTW, I should inform everyone that it was next to impossible to get someone to file anything on this topic, and moving it forward may be even more difficult. One mention of "retrograde extrapolation" at the Capitol and peoples' eyes start darting around the room looking for the nearest escape route. This means WE NEED HELP to get this passed. Consider yourself put on notice, readers ...

Martin, on the subject of our opinions on legislation. If you have a thought that perhaps could be critical of a TDCAA bill, perhaps it would be better to express it by more private means. Perhaps a fax to Shannon or a phone call. These bills are hard enough to get passed without alerting others to concerns you may have about the bill.

On the other hand, if you feel like hammering a criminal defense bill, have at it. Just never say anything bad about the sponsor of a bill.

PS. Given your expression of urgency on the Mata issue, can we schedule you for some testimony and appearances at the Legislature?

[This message was edited by John Bradley on 03-05-03 at .]

In the Mata opinion itself, the Court of Criminal Appeals noted that their extrapolation analysis would be unnecessary if Texas had a statute creating a presumption and listed the statutes of 5 other states that had such a presumption. I took the hint and got the legislation introduced. If there was a constitutional problem, I doubt the court would have made such a suggestion.

Additionally, if this legislation passes, the jury charge would include instructions pursuant to PC Sec. 2.05 to comply with the due process requirements of Sandstrom v. Montana, 442 U.S. 510 (1979).

[This message was edited by Ken Sparks on 03-05-03 at .]

John: While I have now gone back and found Ken's earlier post and put 2 and 2 together, I can assure you I did not originally recognize this as his "baby". I had no intention of being critical either, just cautious. As I understood the comments from 2 years ago, is there such a thing as a "TDCAA bill"?

Ken: Thanks for pointing out the effect of 2.05, that should certainly avoid any Ulster problem. I just hope and pray we get help in some form.

This bill was referred to Criminal Jurisprudence yesterday (3/6) has not been set for a hearing. Keep checking the Legislative page for updates on hearings. The notice rules are short (5 days in House, 2 days in Senate, and both can be [and are] waived as the end of session nears), but we'll do our best to keep you posted.

Shannon