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Legislative Update Archives | Page 2 of 2 | Fort Worth Criminal Defense, Personal Injury, and Family Law

Sep 19
3
Texas Open Carry Laws

Locked and Loaded: What You Need to Know About Texas’ New Open Carry Laws

By | Open Carry

Texas Open Carry LawsTexans love their guns and many folks in Texas are excited about the new “Open Carry” laws that were passed this year. Some people imagine a wild west where handguns are worn on the hips of everyone in town. Other are terrified that gun-related incidents will increase. Well, the new open carry laws do not come without their rules.

With the passage of House Bill 910, beginning January 1, 2016, Texans in possession of a concealed carry license (CHL) will be allowed to openly carry a holstered handgun. While “open carry” sounds simple enough, there is much more to it. This article explains some of the rules that Texans need to know if they plan to openly carry a handgun in 2016.

Who is eligible to openly carry a handgun?

Only CHL holders may open carry. Subchapter H of Chapter 411 of the Texas Government Code sets out the basic requirements for a person to be eligible to apply for a handgun license and openly carry a firearm.

To open carry in Texas, a person MUST:

1) Be a legal resident of the State of Texas for the preceding six months before applying for his or her handgun license;
2) Be at least 21 years of age*;
3) Have never been convicted of a felony;
4) Not be charged with the commission of:
• Class A or B Misdemeanor or equivalent offense
• the offense of Disorderly Conduct or equivalent; or
• a felony offense;
5) Not be a fugitive from justice for a felony, Class A or B Misdemeanor or equivalent offense;
6) Not be a chemically dependent person;
7) Not be incapable of exercising sound judgment with respect to the proper use and storage of a handgun;
8) Have not, in the prior five years before applying, been convicted of a Class A or B Misdemeanor or equivalent offense or of the offense of Disorderly Conduct or equivalent offense;
9) Be fully qualified under applicable federal and state law to purchase a handgun;
10) Have not been finally determined to be delinquent in making child support payments or collected by the attorney general;
11) Have not been finally determined to be delinquent in the payment of taxes or other money collected by the State;
12) Not be currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests;
13) Have not, in the 10 years preceding the date of application, been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; or
14) Have not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174. (Perjury).

*The age restriction is lowered down to 18 for honorably discharged military veterans who meet all other qualifications.

What types of firearms can be openly carried in Texas?

Currently, under Texas Penal Code Section 46.03, a person cannot carry, either openly or by concealment, a handgun unless that person is on the person’s own premise or inside of a motor vehicle that is owned or under the person’s control (the weapon must still be concealed if carried in a vehicle under 46.03 (a-1)). There is no language in Texas Penal Code 46.03 regarding firearms other than handguns. Therefore, there are no laws prohibiting openly carrying rifles and shotguns (subject to the “where” restrictions to be addressed below). The exception to Texas Penal Code 46.03 is that the provision doesn’t apply to those in possession of a license issued under Subchapter H, Chapter 411 of the Texas Government Code.

In addition to carrying a concealed handgun under Subchapter H, the new House Bill 910 now grants the opportunity for Texans in possession of a concealed carry to openly carry a holstered “handgun.” A “handgun” is defined by Texas Penal Code 46.01 (5) as “any firearm that is designed, made or adapted to be fired by one hand.” Shotguns can be openly carried now in addition to holstered handguns as long as a person is in possession of a license granted under Subchapter H, Chapter 411 of the Texas Government Code.

How can handguns be openly carried?

Use a holster. Under Texas Penal Code 46.15(b) (6), a person carrying a valid CHL may carry a handgun either in a concealed manner or in a shoulder or belt holster. Under these new provisions, if the handgun is carried any other way, a person would be unlawfully carrying the handgun.

Where can handguns be openly carried?

In general, even if a person possesses a CHL, Texas Penal Code 46.03 strictly prohibits the carrying of a handgun or firearm from the following places:
1) School or educational institutions;
2) An election site during regular or early voting;
3) Government or court offices;
4) At a racetrack;
5) Airports (in the restricted section); or
6) Within 1,000 feet of premises of an execution site on the day of an execution.

In addition to the locations listed above, Texas Penal Code 30.06 prohibits individuals, and creates a criminal offense of trespass, for those who hold a license to carry a handgun when notified that their presence on the property with a handgun is expressly forbidden. To provide notice, a property owner must display written notice on the property that specifically complies with the notice requirements of Texas Penal Code 30.06.

With the new Open Carry law, those that wish to prohibit others from carrying a handgun on their premises, must also post a notice in accordance with section 30.07 of the Texas Penal Code.  This notice is in addition to the 30.06 sign.

Conclusion

The term “open carry” has been loosely thrown around as new legislation has been debated and ultimately passed regarding openly carrying handguns. It is important to remember that “open carry” isn’t a free-for-all regarding handguns. “Open Carry” is still highly regulated and a person considering openly carrying a handgun should be familiar with all of these new laws and regulations, so that they do not end up needing our services.

Luke Williams is a criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas.

Barnett Howard & Williams PLLC
500 Main Street, Suite 610
Fort Worth, Texas 76102
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Aug 20
0
Tarrant County Veterans Court

Texas Broadens Eligibility for Veterans Treatment Courts

By | Veterans

Tarrant County Veterans Court Programs | Fort Worth Criminal Defense Lawyers

Tarrant County Veterans CourtTexas has more military veterans than any other state. In the wake of the recent wars in Iraq and Afghanistan, many have difficulty transitioning from military service to civilian life. Some veterans suffer from PTSD or Traumatic Brain Injuries and others fall into addiction. Plagued by these ailments, some Texas veterans find themselves in the criminal justice system.

Recognizing a need, Texas has led the nation in addressing veteran criminal issues through special courts. Beginning in 2009, these court were designed to provide treatment and accountability for veterans in an effort to keep them out of the criminal justice system. There are currently 20 veterans courts in the state.

Under current law, which created the veterans courts programs, only veterans who suffer from an injury received while serving in a combat zone or other similar hazardous duty area are eligible to participate in a veterans court. Some veterans that have suffered similar injuries the occurred outside of a combat zone are not eligible despite the fact that the struggle for rehabilitation remains the same.

This has been a point of frustration for Fort Worth criminal defense attorneys who regularly handle cases involving Texas veterans.  We were often met with opposition when trying to admit a veteran to the specialty court program.

New Legislation Expands Veterans Court Eligibility

S.B. 1474, which takes effect on 9/1/15, broadens the eligibility for veteran participation in these special courts. The bill would provide the courts with more flexibility over who was admitted into the program by removing the requirement that any illness or injury have occurred “in a combat zone or other similar hazardous duty area.” There is also another provision that gives courts discretion to admit a veteran if he/she does not fit any of the other categories. Finally, the amendments allow a veteran who is being supervised by a veterans’ court program to transfer counties to another program if desired. These are all good changes that will help veterans and make these specialty courts worthwhile.

See the 2015 Veteran’s Court Update.

Aug 19
2
Fort Worth DWI Lawyers

Coming Soon: DWI Videos Releasable to Defendant

By | DWI

Legislative Changes to Texas DWI Laws | Fort Worth DWI Defense Attorneys

Fort Worth DWI LawyersDWI Update:  Some clients want to see their DWI video.  Some don’t.  Some want to take it home and show their friends and some want to dig a deep hole and bury it away forever.  Since the passing of the Michael Morton act, regardless of their clients’ wishes, criminal defense lawyers could not provide a copy of the DWI video without first obtaining a court order or prosecutor permission.  This all changes on 9/1/15.

This past legislative session, the Texas legislature passed House Bill 3791 which amends Chapter 2 of the Texas Code of Criminal Procedure by adding the following paragraph:

Art. 2.139. VIDEO RECORDINGS OF ARRESTS FOR INTOXICATION OFFENSES.

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1) the stop;

(2) the arrest;

(3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or

(4) a procedure in which a specimen of the person’s breath or blood is taken.

Now (beginning 9/1/15) DWI defendants are entitled to receive a copy of the DWI video (if they want it).  There is no clarification regarding whether the defense attorney, or the DA may provide the copy, but at a minimum it may come from the police agency.

DWI Trial Lawyers | Free Consultations

Barnett Howard & Williams PLLC practices DWI defense in Fort Worth, Texas.  Our office is located in Sundance Square in downtown Fort Worth.  Call (817) 993-9249 for free consultation of your DWI case.

Aug 18
2
Texas Theft Update

Theft is On the Rise in Texas

By | Theft

Changes to Texas Theft Laws | Fort Worth Theft Crimes Attorneys

Texas Theft Update Fort Worth Theft CrimesAs the prices of gas and groceries rise, so must the theft laws in Texas. With House Bill 1396, the Texas Legislature has amended the Texas theft laws (and several other laws involving the monetary value of property), raising the monetary values of the property involved as follows:

  • Theft Under $50 Theft Under $100
  • Theft $50 – $500 Theft $100 – $750
  • Theft $500 – $1,500 Theft $750 – $2,500
  • Theft $1,500 – $20,000 Theft 2,500 – $30,000
  • Theft $20,000 – $100,000 Theft $30,000 – $150,000
  • Theft $100,000 – $300,000 Theft $150,000 – $300,000

The new values for these offenses will apply to all offenses committed on or after September 1, 2015.  For offenses that pre-date 9/1/15, that theft offenses will remain under the old statutory scheme.

The New Value Ladder

The Texas Penal Code uses a standard value ladder in cases of theft and many other property and economic crimes to determine the grade of an offense. On September 1, 2015, HB 1396 changed the standard value ladder for theft in Texas—this is the first time this has happened since 1993. Under the value ladder, as the value of property lost increases, the seriousness of the crime increases. Below are the updated values:

  • Under $100 is a Class C Misdemeanor;
  • $100 or more, but less than $750 is a Class B Misdemeanor;
  • $750 or more, but les than $2,500 is a Class A Misdemeanor;
  • $2,500 or more, but less than $30,000 is a State Jail Felony;
  • $30,000 or more, but less than $150,000 is a Third Degree Felony;
  • $150,000 or more, but less than $300,000 is a Second Degree Felony; and
  • More than $300,000 is a First Degree Felony.

The change in law also includes a savings clause. This clause provides that the change in law applies only to an offense committed on or after the effective date of the article. As such, an offense is committed before the effective date of the article if any element of the offense occurs before the effective date. This savings clause is an important factor when dealing with aggregate theft.

What is Aggregate Theft?

Aggregate theft is an offense where two or more thefts were committed “pursuant to one scheme or continuing course of conduct” and the amounts are combined to determine the grade of the offense. Tex. Penal Code § 31.09. Pursuant to Section 31.09 of the Texas Penal Code, aggregate theft may be considered as one offense—it is a sum of all its parts. The Court of Criminal Appeals has held that the State need only prove beyond a reasonable doubt that the defendant unlawfully appropriated enough property to meet the aggregated value alleged. Since the value alleged will determine the grade of offense charged, applying the correct statute is essential.

How Does the New Value Ladder Apply to Aggregate Thefts?

The Court of Criminal Appeals has held time and time again that we are to interpret statutes in accordance with their plain meaning unless the language is ambiguous or the plain meaning would lead to absurd results. Thus, applying the plain meaning of the savings clause found in Section 31.09, the former law’s penalties apply to the offense of aggregated theft if any element of a continuing theft was committed before the effective date of the new law. The Court of Criminal Appeals held that this “interpretation does not lead to absurd results because one could reasonably conclude that the legislature intended for the old penalties to attach to a scheme or continuing course of conduct that was begun before the effective date of the new law.” Dickens v. State, 981 S.W.2d 186, 187-88 (Tex. Crim. App. 1998). Thus, if a defendant is being charged with aggregate theft and any element of their charge occurred before September 1, 2015, former law will apply to determine the grade of the offense.

Theft Crime Defense Lawyers | Fort Worth Criminal Defense Firm

The Fort Worth criminal defense attorneys at Barnett Howard & Williams PLLC handle all ranges of property crimes from simple shoplifting to armed robbery and everywhere in between. If you are under investigation for a property or theft offense or have already been charged, contact Barnett Howard & Williams PLLC today for a free consultation of your case at 817.993.9249.

Jul 27
0
Fort Worth Grand Jury Attorneys

The Big Needed Change To Grand Jury Selection

By | Grand Jury

Fort Worth Grand Jury AttorneysYears ago, I was employed as an assistant district attorney in a DA’s office out in West Texas. From time to time, I would oversee the grand jury and the presentation of felony cases for indictment. At the first of every month, the county would summon potential jurors from a random selection process to serve on the grand jury. The first fourteen (twelve to serve as grand jurors and two as alternates) who were not disqualified by statute were seated on the grand jury.

Those fourteen citizens were always different. Different ethnicity. Different gender. Different religions. Different socio-economic status. Most importantly, different political parties. The goal was to create an impartial jury of peers to review the evidence in criminal cases and determine whether probable cause existed for indictment.

You can imagine my surprise when I moved to the DFW area and discovered jurisdictions here which used the other method of selecting grand jurors.

Article 19.01 of the Texas Code of Criminal Procedure allows the “pick a pal” method wherein judges can hand pick “jury commissioners” who individually select citizens to serve on the grand jury. As you can imagine, there has been a serious influence of politics on the grand jury process a result of this practice. It’s hard to have an impartial grand jury when everybody comes from the same political party and economic sector of society.

Fortunately, House Bill 2150 was signed into law last month. On September 1, 2015, the “pick a pal” process will no longer be an option. Instead, the newly revised Article 19.01 will require all jurisdictions to apply the random selection process to the grand jury selection process.

This change is long overdue. An accused’s right to an impartial jury should be the same at the grand jury as it is at trial.

Jan 07
1

Jessica’s Law: Continuous Sexual Abuse of a Child

By | Sex Crimes

A Review of Jessica’s Law in Texas | Sex Crimes Defense Attorneys

The 80th Texas legislature enacted the “Jessica Lunsford Act” (H.B. 8) to create a criminal offense of Continuous Sexual Abuse of a Child (Texas Penal Code 21.02).  The chart below details the particulars of the offense of Continuous Sexual Abuse of a Child under Section 21.02.

The elements of Jessica’s Law:

  • The sexual abuse may be committed against 1 or more victims. (Texas Penal Code 21.02 (b)(1))
  • The complaining witness must be a child younger than the age of 14. (Texas Penal Code 21.02(b)(2))
  • This offense does not apply to juvenile offenders. (Texas Penal Code 21.02(b)(2))
  • A jury is not required to agree unanimously on which specific acts of sexual abuse the defendant committed or the exact date when those acts were committed. (Texas Penal Code 21.02(d))
  • The jury must agree unanimously that the defendant committed 2 or more acts of sexual abuse during a duration of 30 days or more. (Texas Penal Code 21.02(d))
  • An affirmative defense does exist for the offense. If the defendant was not more than 5 years older than the complaining witness; did not use duress, force, or threat; and was not a registered sex offender, then the defendant may raise these points as an affirmative defense. (Texas Penal Code 21.02(g))

Punishment:

  • For a first time offense, regardless of prior criminal history, the range of punishment is 25 to 99 years or life in prison. (Texas Penal Code 22.02(h))
  • Any subsequent offense will result in life in prison without parole (Texas Penal Code 12.42(c)(4))
  • Even for a first time offense, there is no deferred adjudication community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 5(d) (3)), no judge-ordered community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 3(e)(1)), or no jury-recommended community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 4(d)(1)).
  • Essentially, probation in any form or fashion is not an option under Jessica’s Law.
  • Additionally, a defendant convicted under this law has no eligibility for parole. (Texas Government Code Section 508.145 (a)).

Aside from a capital murder charge, the offense of Continuous Sexual Abuse of a Child is now considered the highest level of offense a person in Texas can be charged with. We’ve had several years to watch juries handle these types of cases and we’ve seen that juries tend to punish severely when presented with continuous sexual abuse of a child.

If you or a loved one is facing a serious criminal charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249. We offer free consultations.

Sep 16
0
Texas Penal Code Fort Worth Criminal Attorneys

Criminal Law Legislative Updates 2013

By | Legislative Update

Texas Penal Code Fort Worth Criminal AttorneysBelow is a summary of the most recent Texas legislative updates 2013 as they relates to Criminal Law:

– In an attempt to reduce wrongful convictions in Texas, Senate Bill 1611 requires prosecutors to open their files to defendants and keep records of evidence they disclose. While the United States Supreme Court has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” Senate Bill 1611 requires disclosure of not only all police reports and witness statements, but also any other evidence that is material to any matter regardless of whether such evidence is “material to guilt or punishment.”

– Senate Bill 344 allows courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. During an appeals process, Senate Bill 344 authorizes courts to grant relief on applications for writs of habeas corpus if there is currently available relevant scientific evidence that was not available at the time of conviction. The current relevant scientific evidence is only admissible if the evidence was not ascertainable through reasonable diligence at the time of trial.

– Senate Bill 1238 authorizes the Texas Forensic Science Commission to investigate unaccredited forensic disciplines such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

– House Bill 1847 requires prosecutors to complete at least one hour of ethics training relating to the duty to disclose exculpatory and mitigating evidence.

– Under Senate Bill 825, an exoneree is permitted to file a grievance up to four years following release from prison against a prosecutor alleged to have violated the ethics rule regarding the duty to disclose. This bill further prohibits a private reprimand for such a violation.

– In an effort to reduce the possibility of a false confession being admitted at trial by a person who does not speak or understand English, House Bill 2090 requires that a written statement by an accused be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding.

– Upon a second conviction for a “sexually violent offense” against a child under the age of 14, House Bill 1302 requires an automatic life sentence in prison without parole. Furthermore, House Bill 1302 specifically prohibits registered sex offenders from working at amusement parks or seeking employment as cab, bus, or limousine drivers.

– Under Senate Bill 124, the offense of Tampering With A Governmental Record is enhanced from a Class A misdemeanor to a 3rd Degree Felony if the governmental record was a public school record, report, or state-mandated assessment instrument. If the actor’s intent was to defraud or harm another, the offense is enhanced instead to a 2nd Degree Felony.

– In an effort to address human trafficking, House Bill 8 enhances all Prostitution offenses from a Class B misdemeanor to a 2nd Degree Felony if the person solicited is younger than 18, regardless of whether the actor knew the age of the person solicited at the time of the offense. House Bill 8 also significantly alters the definition of the crime of Possession of Child Pornography. Accordingly, a person commits the crime of Possession of Child Pornography if they knowingly or intentionally “access with the intent to view” child pornography.

– If the underlying official proceeding in a criminal case involves family violence, Senate Bill 1360 enhances the penalty to the greater of a 3rd Degree Felony or the most serious offense charged in the criminal case. Senate Bill 1360 also provides a statutory forfeiture-by-wrongdoing provision, which specifies that a party to any criminal case, who causes a witness to be unavailable for trial through his wrongful acts, forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

– Senate Bill 275 enhances the penalty for the offense of leaving the scene of an accident resulting in the death of a person from a 3rd Degree Felony to a 2nd Degree Felony. – Upon conviction for a 1st Degree Felony Engaging in Organized Crime offense, Senate Bill 549 enhances the minimum penalty from five to fifteen years in prison. In addition, there is an automatic life sentence without parole upon conviction of Engaging in Organized Crime if the underlying offense is an Aggravated Sexual Assault and the defendant is 18 or older and the victim was either younger than six; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

– House Bill 2539 places a duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography. It is a Class B misdemeanor offense if the computer technician fails to make such report.

– Senate Bill 12 suspends evidentiary Rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt-innocence phase of the trial regarding a separate enumerated sex offense that the defendant has committed. While evidentiary Rules 404 and 405 prohibit the use of evidence of a person’s character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait, Senate Bill 12 allows such evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Senate Bill 12 further requires the trial judge to make a determination that the defendant committed the separate offense beyond a reasonable doubt prior to the introduction of this evidence and outside the presence of the jury.

– Senate Bill 2 was passed in an effort to address the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). This posed a unique issue for 17 year olds in Texas, who are treated as adults and not juveniles. Prior to the passage of Senate Bill 2, the only punishment available for an individual (17 and older) who was convicted of capital murder was either an automatic life sentence in prison without the possibility of parole or the death penalty. In an effort to address the unconstitutionality of this punishment on those younger than 18, Senate Bill 2 provides that an individual younger than 18 who is convicted of capital murder be punished with an automatic life sentence in prison with the possibility of parole.

– House Bill 434 expands the list of those who are authorized to draw blood from an individual during a DWI investigation. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. Now, the list of those authorized to draw blood also includes emergency medical technicians and paramedics. This bill allows for a person’s blood to be drawn without having to transport the individual to a separate facility, such as a hospital, during an intoxication-related investigation.

– House Bill 1862 removes switchblade knives from Texas’ prohibited-weapons statute. There are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

– Senate Bill 821 brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers or “hot drafts.”

If you have a question about how these changes in the law might affect your criminal case, please call us at (817) 993-9249.

Sep 19
0
Texas Penal Code Fort Worth Criminal Attorneys

New Criminal Laws in Texas 2011

By | Legislative Update

This month’s Texas Bar Journal alerts us to a few new criminal laws in Texas that our elected officials have just added to the books.  Below are some of the more interesting (imo) additions:

Bath Salts – House Bill 2118 outlaws the possession of bath salts, or the chemicals contained in bath salts.  Apparently, folks were using bath salts as alternatives to cocaine, LSD, ecstasy, and methamphetamine.  This is now a felony offense.

Spice – Senate Bill 331similarly bans the possession of synthetic marijuana (i.e. “K2” or “Spice”).  Depending on the quantity of the substance possessed, this new offense will be a Class B misdemeanor up to a first-degree felony.

Sexting for Minors – Under Senate Bill 407, Texas teenagers that send naked photographs via text message will no longer be deemed to have sent “child pornography.”  Sexting will now be considered a Class C misdemeanor for a first offense.