Has anyone responded to a Motion to declare this provision unconstitutional? I have the first case in my county that we are going forward on and the defense attorney has filed this motion on 2 grounds. First, that it violates the unamimity clause of the Texas Constitution. Second, that it violates the Due Process of Law Clause. Any ideas?

It was modeled after a California statute, so perhaps there might be some law out of that jurisdiction. Plus, Kitchens v. State probably gives you something to work with as well. Since HB 8 was such a monster the legislative history may not have anything helpful.

The jury still has to be unanimous, they just have to be unanimous about different conduct. Before, it was which thing went inside which place. Now, it is that there two or more acts within 30 days. Their argument really holds no water.

For example, look at People v. Adams, 54 Cal.App.4th 198, 62 Cal.Rptr.2d 631 (Cal. Ct. App. 1997), holding that California's continuous sexual abuse statute was constitutional and rejecting a claim that it violated a jury unanimity requirement. The key is the continuing course of conduct.

Contact me. I did all the research on that stuff before the bill was drafted. Those issues have been litigated in five other states.

Thank you. I have some case law - from California, Wisconsin, California, Alabama and Hawaii. Hawaii is the only one that seems to go against us. I am just trying to organize the case law into a coherent response brief. Our appellate section is short staffed right now. Did you have any of the legislative history on it? I can't seem to find that anywhere.

Hawaii initially did go against us. But the people of Hawaii rose up and amended their state constitution, expressly authorizing a conviction against sexual predators for continuous sexual abuse. Amazing.

As for legislative history, you should go to the Legislature Online website and go through the bill history. On dates of hearings, go to the archived video and listen to the testimony. The Senate Criminal Justice testimony on HB and the parallel senate bill is the most complete testimony. Also, the bill description is pretty good.

Jane Starnes of Williamson County is trying our first continuous sexual abuse case this week. Just curious, where have there been other trials thus far?

I'm presenting one to the Grand Jury tomorrow. As of yet, we haven't tried one as far as I know.

Does anyone have a bench brief addressing the constitutional and notice issues they would be willing to share? Judge's office just let us know that the judge wants one on a case by next week.
Thanks in advance.

I've sent you an advance copy of an article I wrote for use at next month's annual conference in Corpus Christi. Those issues have been litigated in several other states that have adopted similar laws. The Texas law was modeled on some of those provisions, so we should be OK. But, as far as I know, no one has take up the issue yet in Texas.

Your best argument is the concurring opinion by Judge Cathy Cochran in Dixon, encouraging the legislature to adopt such a law to deal with the notice and unanimity issues.

Will your article be available for those of us who can't go to the Annual this year?

I would be glad to e-mail it to any prosecutor that requests it. Just contact me.

Although designated "not for publication," some of the constitutionality issues were recently addressed in Render

Why in the world would the court of appeals not publish that opinion? It addresses a significant constitutional issue for the first time in Texas under a new statute. Sounds like the court of appeals thinks they can avoid PDR by sneaking under the radar. Sad.

[I understand a motion to publish the opinion may be presented to the court of appeals. Yay.]

[This message was edited by JB on 03-26-10 at .]

The Third Court of Appeals has yet again affirmed the constitutionality of the CSA law: Details.