The House Committee on Criminal Jurisprudence met Monday to discuss a large number of bills, many dealing with changes to criminal procedure. The slate included the following bills:
- House Bill 1002 by Rep. Eddie Lucio III (D-Brownsville) – Relating to the use of hypnotically induced testimony in a criminal trial.
- House Bill 1717 by Rep. Senfronia Thompson (D-Houston) – Relating to the state’s continuing duty to disclose exculpatory, impeachment, or mitigating evidence in a criminal case and prohibited retaliation against local assistant prosecutors for discharging that duty.
- House Bill 2631 by Rep. Matt Krause (R-Fort Worth) – Relating to the use of in-custody informant testimony in a criminal trial.
- House Bill 3224 by Rep. Jeff Leach (R-Plano) – Relating to the exclusion of certain witnesses during a criminal proceeding.
HB 1002 prohibits the use of hypnosis to induce testimony in a criminal trial. Captain Wende Wakeman from the Texas Department of Public Safety (DPS) testified as a resource, informing the committee that DPS in the past had a hypnosis program, but has since suspended it. The Senate Committee on Criminal Justice on Tuesday heard the companion to HB 1002, Senate Bill 281 by Sen. Chuy Hinojosa (D-Edinburg). Both bills were left pending in committee.
The companion to HB 1717 is Senate Bill 1903 by Sen. John Whitmire (D-Houston).
Rep. Thompson laid out a committee substitute for HB 1717, stating it is designed to ensure that the Michael Morton Act applies to post-conviction cases that were filed before the Act was passed. Referring to Hillman v. Nueces County, Rep. Thompson said the Texas Supreme Court held in that case that the Michael Morton Act does not protect assistant prosecutors who are fired for refusing to violate disclosure laws. She stated that the intent of her bill is to protect assistant prosecutors in those situations by creating a civil cause of action against district attorneys.
Thomas Wilson, Chief of the Civil Division in the Smith County District Attorney’s Office, testified against the bill. He stated that he took no issue with the transparency section of the bill, however, he pointed out that the civil cause of action created in HB 1717 does not follow the traditional mechanism by which “whistleblower” claims usually proceed. He said the cause of action might be abused by employees who were rightfully terminated for reasons that have nothing to do with evidence disclosure. Wilson said he fears that district attorneys would first hear about these issues when they are served with a lawsuit petition. Wilson said Texas Supreme Court Justice Eva Guzman, in a concurrence in Hillman, wrote that the assistant prosecutor in that case might have pursued a claim for equitable relief under an ultra vires theory, but declined to do so. Wilson explained that, as such, assistant prosecutors who are terminated for refusing to break the law could already obtain injunctive relief.
Rep. Leach said the intent of HB 3224 is to allow the prosecuting attorney to designate a single court representative – a law enforcement officer – who would be an exclusion to “the rule.” Invoking Rule 614, simply known by practitioners as “the rule,” requires a court to order witnesses out of the courtroom so that they cannot hear other witnesses’ testimony. This bill enables a designated officer to remain in the courtroom for the duration of the trial but still be able to testify. Sabine County Sheriff Tom Maddox, President of the Sheriffs’ Association of Texas, testified in favor of the bill. Shannon Edmonds, Director of Governmental Relations for the Texas District and County Attorneys Association, testified as a resource. Edmonds described different versions of the bill that have been filed in past sessions and how the legislation has been narrowed over the years. He pointed out that criminal prosecutors are the only litigators who are not allowed to have someone with them in the courtroom that represents the party, so it might be helpful to some to have another set of eyes, especially in extremely complex cases.
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