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Legislative Update

Criminal Law

By Allen D. Place Jr. and Shea Place

The 88th Texas Legislature saw an unusually high number of bills filed in both the House and Senate chambers. Of those filed bills, over 1,000 were related to substantive or procedural changes to criminal law. Following the veto period, over 100 criminal law bills made it through the process to become new law in Texas. All bills are effective September 1, 2023, unless otherwise noted.

The following bills detailed below address procedural changes to Texas criminal law:

SB 991 creates a central computerized online laboratory portal to process requests for records and transmits them among the appropriate parties. Implementation of this process will take time, but it is believed that once operational, the current cumbersome procedure to obtain the following will be streamlined: lab notes, testing procedures, proficiency tests, and disciplinary issues.

SB 338 makes statements inadmissible as evidence in a criminal trial if made during or after a hypnotic session. The bill does clarify this only applies if the hypnotic session giving rise to the statement was performed to investigate the offense made the subject of the trial. In 1987, the Legislature authorized the Texas Commission on Law Enforcement to establish minimum requirements for investigative hypnosis. In 2021, the Department of Public Safety announced suspension of its hypnosis program. The enactment of this policy follows a similar movement in other states.
HB 1710, effective on September 1, 2024, requires the Texas Department of Criminal Justice, on request of a judge, to notify the judge not later than the 60th day after the date a defendant is received into the custody of a state jail felony facility that the defendant has served 75 days in the facility. This bill was based on an interim report recommendation regarding more effective procedures for community supervision in state jail facilities.
HB 2015 raises the age at which one qualifies for an exemption from jury service from 70 to 75. It was suggested this change mirrors the age 75 mandatory requirement for Texas judges and justices to retire.
HB 3956 seeks to clarify the process for an individual seeking expunction of records upon notice from the court of an acquittal, dismissal, or a grant of relief. This bill also follows the nationwide trend of expanding DNA collection procedures.
HB 4528 recognizes technological advances by removing the requirement for a peace officer to take an individual’s driver’s license upon refusal to take an intoxication test or upon failing such a test as a means of suspending the license.
SB 402 amends the Government Code to include murder and capital murder among the offenses to which trial courts must give preference over other criminal actions when setting hearings and trials.

The following bills detailed below address substantive changes to Texas criminal law:

HB 6 seeks to address reports of increased production and smuggling of fentanyl. Testimony elicited on this bill indicated approximately 75,000 Americans died from an overdose of synthetic opioids, mostly fentanyl. This bill addresses this issue by increasing criminal penalties for manufacture or delivery of fentanyl, and by expanding criminal offenses involving the manufacture or delivery of certain opioids. ?
HB 17 relates to official misconduct by and removal of Texas prosecuting attorneys. The bill amends the definition of official misconduct under the Local Government Code by adding language addressing a prosecuting attorney’s adoption or enforcement of a policy or refusing to prosecute a class or type of criminal offense under state law, or instructing law enforcement to refuse to arrest individuals suspected of committing a class or type of offense under state law, with some exceptions. Section 87.015 of the Local Government Code is amended to reflect that a petition for removal of a prosecuting attorney may be filed by any resident of this state who has lived for at least six months in the county in which the petition is filed, so long as the person filing the petition is not currently charged with a criminal offense in that county. The bill further addresses the assignment of judges in these cases.
HB 165 defines a mass shooting under Penal Code Section 1.07 as harm to four or more persons during the same criminal transaction or same scheme or course of conduct. The penalty for a mass shooting is increased from a second-degree felony to a first-degree felony.
HB 446 updates state law regarding the terminology used for individuals with intellectual disabilities. The bill changes the current language of mental retardation to intellectual disability in numerous state codes and statutes.
HB 611 creates the criminal offense of unlawful disclosure of a residence address or telephone number by setting out the elements of unlawful conduct and of prima facie evidence of intent. The punishment is a Class B misdemeanor unless bodily injury occurs, which would raise the punishment to a Class A misdemeanor.
HB 1243 increases the penalty for illegal voting from a Class A misdemeanor to a second-degree felony, except an attempt is classified as a state jail felony.
HB 1819 was based on a published report indicating juvenile curfew ordinances are an ineffective way to reduce crime and often lead to negative outcomes for school youth. This bill amends the Local Government Code by prohibiting a political subdivision from adopting or enforcing an ordinance imposing a curfew to regulate the movements or actions of persons younger than 18 years of age, except under the Texas Emergency Management Act.
HB 2715 seeks to protect individuals from protective orders that would allow the tracking or monitoring of a person without their consent. This bill authorizes a court issuing a protective order to prohibit such conduct and further authorizes a magistrate to require as a condition of release on bond that a person charged with an offense involving family violence refrain from such conduct.
HB 4635 amends current law relating to organized crime, racketeering activities, and collection of unlawful debts. The bill provides for civil penalties and criminal offenses. This bill, in a nod to the federal RICO statute, sets out to strengthen the legal tools in gathering evidence and enhances sanctions for those engaged in organized crime.
SB 189 creates a Class A misdemeanor for the owner of a building who leases a building to a person operating a boarding home facility, and who has actual knowledge of abuse, neglect, or exploitation of a facility resident, but who fails to report that conduct.
SB 372 was enacted in response to the U.S. Supreme Court draft of the Dobbs v. Jackson Women’s Health Organization being leaked to the public. This bill creates a Class A misdemeanor offense for a person who knowingly discloses, in whole or in part, the contents of any non-public work product to any person other than court judges or staff.
SB 409 amends Chapter 56 of the Code of Criminal Procedure by adding new rights for a victim or close relative of a deceased victim to certain information on a criminal case, such as a decision not to file or dismissal of charges and views regarding plea bargains or pre-trial diversion programs.
SB 602 amends Section 2 of the Code of Criminal Procedure by adding to authority currently held by border patrol agents the following powers: the powers of arrest and search and seizure as to any felony offense under the laws of this state if the arrest, search, or seizure occurs on the premises of a port facility operated by U.S. Customs and Border Protection as a port of entry or at a border patrol traffic checkpoint and is incident to a detainment under federal law.
SB 1004 creates a felony offense for tampering with an electronic monitoring device by knowingly removing or disabling the device. This bill applies to a person under community supervision, parole, or mandatory supervision.
SB 1045 amends the Government Code to create the 15th Court of Appeals District composed of all counties in Texas, consisting of a chief justice and four justices. Specifically, this court has exclusive intermediate jurisdiction over matters arising out of civil cases brought by and against the state or state agency or state agency employees with enumerated exceptions. This court will not have appellate criminal law jurisdiction as currently written. Section 73.001 allows the Supreme Court to adopt rules for the transfer into and out of the 15th Court of Appeals.
SB 1727 is a 56-page bill continuing the operation of the Texas Juvenile Justice Department, or TJJD, commonly referred to as a Sunset bill. This legislation makes changes and continues the operation of TJJD as a state agency.

As of July 13, 2023, the first two called special sessions of the 88th Texas Legislature have adjourned sine die. Neither special session passed any legislation pertaining to criminal law.

ALLEN D. PLACE JR. has been practicing law for 44 years. He is a former member of the Texas Legislature and was House author of the Texas Penal Code. For the past 13 sessions, Place has represented the Texas Criminal Defense Lawyers Association at the Capitol.

Headshot of Ben Aderholt SHEA PLACE is an attorney for Place Law Office, practicing in Austin and Gatesville since 2016 with a focus on parole law. She has represented the Texas Criminal Defense Lawyers Association as legislative counsel since 2017.