Criminal Law

by Mary Alice Robbins (Texas Lawyer)

The Texas Legislature has sex offenders in its sights, with more than 30 bills dealing with sexual offenses � including legislation that would toughen the penalties for offenders who prey on children � pre-filed for the 2007 session.

Robert Black, Gov. Rick Perry's press secretary, says Perry supports the enactment of Jessica' Law-type legislation, modeled after a Florida law that sets a mandatory minimum sentence of 25 years in prison for first-time offenders who commit sex crimes against children younger than 14. The Florida Legislature first enacted the Jessica Lunsford Act, named for a 9-year-old girl whom a convicted sex offender allegedly kidnapped, raped and murdered in 2005.

Perry favors even tougher punishment than the Florida law permits, however. Black says Perry supports giving child molesters the death penalty if, after their first conviction, they subsequently are convicted of further sexual offenses against children.

The governor is not alone. H.B. 8, sponsored by state Rep. Debbie Riddle, R-Tomball, and S.B. 68, sponsored by state Sen. Robert Deuell, R-Greenville, would add sex crimes against children to the list of offenses for which courts could impose the death penalty.

Criminal-defense lawyers are likely to oppose those proposals. Former state Rep. Allen Place Jr., a lobbyist for the Texas Criminal Defense Lawyers Association (TCDLA) owner of the Place Law Firm in Gatesville, says Texas always has tied the death penalty to homicide cases with aggravating circumstances.

"There would be some concern on our end to have the death penalty be a punishment for a nonhomicide case," Place says.

Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association, says prosecutors particularly favor two bills that state Sen. Florence Shapiro, R-Plano, pre-filed to strengthen sex offender laws.

S.B. 78, sponsored by Shapiro, would create a new offense: continuing sexual abuse of a child under age 14, punishable by 25 years to life in prison. Under the bill, the state could prosecute a defendant for continuing sexual abuse if, during a 90-day period, he or she commits more than one offense against one child or multiple children.

Currently, when the state alleges multiple sexual offenses against a child, a defendant can request that the prosecution elect a specific date on which the defendant committed an offense, Edmonds says. Under S.B. 78, the jury just has to find that the alleged offenses occurred during the 90-day period specified, he says.

The bill eliminates the problem of the jury having to agree unanimously that the defendant sexually assaulted a child on a particular date, Edmonds says.

Edmonds says prosecutors also back Shapiro's S.B. 77, which would eliminate a jury's ability to give probation to sex offenders. "That doesn't mean a person still couldn't get deferred adjudication and probation through a plea agreement," he says.

Place says criminal-defense attorneys hope to persuade the Legislature to redefine who is a sex offender. Under current law, anyone convicted of a sexual offense must register as a sex offender. That includes a 19-year-old youth who is convicted for having sex with his 16-year-old girlfriend, Place says.

"Maybe the registration requirement doesn't make sense in that instance," he says.

Edmonds says prosecutors are watching H.B. 330 by state Rep. Dan Flynn, R-Van, which changes the definition of a gambling device in an attempt to criminalize eight-liners in Texas.

Texas Penal Code �47.01 defines a gambling device as "any electronic, electromechanical or mechanical contrivance" on which a player can win any thing of value, based at least partly on chance. But the Legislature provided an exception to that provision for games designed, made and adapted solely for bona fide amusement purposes.

H.B. 330 eliminates this so-called "fuzzy animal exception" provided in �47.01(4)(B).

Edmonds says the bill provides a new definition for "bona fide amusement" to allow game machines at establishments such as Chuck E. Cheese's. However, the bill disallows gambling machines such as eight-liners.

Edmonds says prosecutors support the idea of clarifying what constitutes a gambling device. "Prosecutors for years have not taken a position on gambling," he says. "They've just wanted clarity so they know what's legal, what's illegal and can act accordingly."

Austin solo Keith Hampton, co-chairman of TCDLA's Legislative Committee, says he hopes the Legislature will clarify who has the burden of proof � the state or the defendant � when a judge is deciding whether to revoke a defendant's probation and send the individual to prison.

Hampton says he supports the approach that state Rep. Sylvester Turner, D-Houston, takes in H.B. 312. Under that bill, if a defendant faces revocation solely for failing to pay probation fees, restitution, court costs or compensation to court-appointed counsel, the state must prove by "a preponderance of the evidence" that the defendant was able but unwilling to pay the amount a court ordered he or she to pay.

Alison Brock, Turner's chief of staff, says Texas Department of Criminal Justice requests for funding to build more prisons have raised concerns about all factors that affect prison overcrowding. Brock says probation fees are exceptionally high in Texas, costing a probationer as much as $150 a month.

H.B. 312 tracks the reasoning in the U.S. Supreme Court's 1983 decision in Bearden v. Georgia, in which the high court held that in revocation hearings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for failure to pay.

"If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment," then-Justice Sandra Day O'Connor wrote for the majority. Four other justices then on the court � William J. Brennan Jr., Harry Blackmun, Thurgood Marshall and John Paul Stevens � joined O'Connor in the decision.

Hampton says he also supports Turner's H.B. 327, which includes a provision that requires a court considering the revocation of an individual's probation to make the punishment proportional to the nature of the violation. That also would address the problem of overcrowding in the state's prisons, he says.

"Judges get to be tough on crime in their communities, but all of us are paying for it," Hampton says.