2019 Criminal Law Update | 40 New Criminal Laws

texas legislative update 2019

Updated: July 22, 2019

Here are the changes you need to be aware of from the 86th legislative session in Texas. Most of the new laws took effect on September 1, 2019. This article will be periodically updated with more changes to criminal laws that are going into effect in the coming months.

2019 Legislative Update - Criminal Edition

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Here's a look at the changes to criminal laws in Texas that you need to be aware of: 

House Bill 2048 - Mandatory Special Fines for DWIs

Signed by the Governor, Effective Sept. 1, 2019

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higher DWI fines

HB 2048 eliminates the so-called Driver Responsibility Program and the controversial surcharges that went with it. These surcharges were  added on to court fines and criminal penalties for Texas drivers who were convicted of offenses ranging from driving without a valid license to driving while intoxicated.

(As it pertains to DWI, a first time DWI resulted in $3,000 in surcharges due to DPS; a subsequent DWI carried a surcharge of $4,500; a DWI with a BAC greater than .15 resulted in a $6,000 surcharge). Before you begin the applause for this effort, however, the same bill increases the fines for individuals convicted of DWIs.

In addition to the $2,000 - $10,000 fines already applicable to DWIs, individuals convicted of DWIs will now be required to pay:

  • $3,000 as an additional fine for the first DWI in a 36-month period;
  • $4,500 for a subsequent DWI in a 36-month period; and
  • $6,000 fine for a DWI BAC >/= 0.15.

Notice these fines are mandatory and that the fines do not provide for a range. In other words, it is a $3,000 fine, not a fine of "up to $3,000."

In order for the fines to be waived, the court must find that the client was indigent.

It's important to point out that HB 2048 eliminates surcharges going forward and wipes the slate for any outstanding surcharge. That means any surcharge you presently owe - because of a DWI or otherwise - will be zeroed out on September 1, 2019.  Additionally, if your license was suspended as a result of not paying surcharges, your license will be reinstated. If you have a pending DWI (that occurred/occurs before September 1, 2019) you will not have to pay a surcharge.

If you get arrested for and are convicted of a DWI on or after September 1, 2019, you will not have to pay a surcharge, but if you are convicted you will be subject to new and equivalent fines as discussed above.


Link: HB 2048

House Bill 3703 - Medical Marijuana

Signed by the Governor, Effective  Sept. 1, 2019

medical marijuana in Texas

HB 3703 expands the state's medical marijuana program by allowing Board Certified doctors to prescribe low-THC marijuana for:

1. Terminal cancer.
2. Epilepsy (not just intractable)
3. Seizures
4. Multiple Sclerosis
5. Spasticity (a condition in which certain muscles are continuously contracted)
6. ALS (amyotrophic lateral sclerosis, is a progressive neurodegenerative disease that affects nerve cells in the brain and the spinal cord)
7. Autism
8. An incurable neurodegenerative disease

The bill redefines low-THC cannabis as any part of the marijuana plant (or derivative or oil of the marijuana plant) that contains not more than .5 percent by weight of THC. 

Link: HB 3703

House Bill 446 - Brass Knuckles, Clubs, and ASP Batons Legalized

Signed by the Governor, Effective Sept. 1, 2019
legal brass knuckles are coming to texas

HB 446 amends Penal Code 46.02(a) and takes clubs off the list of prohibited weapons.

The definition of "club" remains "an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument....

H.B. 446 also amends Penal Code 46.05 to remove knuckles from the list of items that are illegal to possess, manufacture, transport, repair, or sell.

This means things like nunchucks, tomahawks, and ASP batons will be legal effective September 1, 2019.

Link: HB 446

House Bill 1325 - Legalization of CBD

Signed - Effective Immediately
legal cbd in texas

House Bill 1325  legalizes hemp production, removes hemp from the Controlled Substances Act, and legalize CBD products that contain .3 percent or less THC. This would also restrict prosecutors like the Tarrant County District Attorney from prosecution of CBD (with less than .3 percent THC) cases either as felonies or misdemeanors.

Link HB 1325

House Bill 2789 - Dick Pics By Request Only

Signed - Effective September 1, 2019
dick pics against the law

Get those First Amendment challenges ready. H.B. 2789 creates a new offense by added Section 21.19 to the Penal Code. This makes it illegal to send a picture or video of a sexual act, an intimate part, or a covered, but erect, penis - that is not at the request or with the express consent of the recipient. The "dick pic" bill creates a Class C offense that is punishable by up to a $500 fine.

Just wait for this one to be found unconstitutional.

Link: HB 2789

Senate Bill 2136- Expands 38.371 to All Cases with Family Members.

Signed - Effective September 1, 2019
family member means relationship evidence comes in

Senate Bill 2136 makes a massive change to the type of evidence that can be introduced in the guilt-innocence portion of a case where the defendant and victim are related. By Amending Code of Criminal Procedure 38.371, evidence, the legislature made Article 38.371 apply to ALL offenses of any type where the alleged victim is a family member (including individuals who have or had a dating relationship under Family Code Section 71.0021(b); family members under FC Section 71.003 including former spouses, siblings, foster children/parents, individuals related by a common ancestor, parents and and children, in-laws; and household members under FC Section 71.005.)

Article 38.371 allows the introduction - by either the defense or state - and subject to the Rules of Evidence - testimony and evidence regarding "all relevant facts and circumstances" that would "assist the trier of fact in determining whether the actor committed the offense" specifically "including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim."

Link: SB 2136

Senate Bill 20 - Probation for Prostitution Mandatory

Signed - Effective September 1, 2019
mandatory probation

Senate Bill 20 creates a new Article in the Code of Criminal Procedure - 42A.515 - which now requires judges to impose probation as the sentence for anyone convicted of a Class B misdemeanor prostitution (without distinction between johns and prostitutes) unless a jury imposes a jail sentence. Similarly, a person charged with a state jail felony prostitution case (who does does not a previous conviction for that state jail offense) must be placed on probation.

Link: SB 20

House Bill 2758 - No Probation for Indecency from Judge/Jury

Signed - Effective September 1, 2019
no probation for indecency

House Bill 2758 prohibits a judge from imposing straight probation after a plea or verdict of guilt for the offense of Indecency with a Child by Contact or by Exposure if the offense took place on or after September 1, 2019. By amending Code of Criminal Procedure Article 42A.056, HB 2758 also prohibits juries from probation individuals found guilty of indecency is the child was under 14 at the time of the offense.

House Bill 2758 also prohibits deferred adjudication for Trafficking or Continuous Trafficking. 

Link: HB 2758

House Bill 1399 - DNA Required Upon Arrest

Signed - Effective September 1, 2019
DNA Required

House Bill 1399 makes the mandatory DNA sample post-arrest instead of post-indictment.

Through Amendments to CCP 42A.352 and Government Code Section 411.1425, law enforcement agencies will now collect a DNA specimen from individuals merely arrested (as opposed to indicted) for:

- murder;
- capital murder;
- kidnapping
- aggravated kidnapping;
- human smuggling;
- continuous human smuggling;
- human trafficking;
- continuous human trafficking;
- continuous sexual abuse of young child or children;
- indecency with a child;
- assault;
- sexual assault;
- aggravated assault;
- aggravated sexual assault;
- prohibited sexual conduct;
- robbery;
- aggravated robbery;
- burglary;
- theft;
- promotion of prostitution;
- aggravated promotion of prostitution;
- compelling prostitution;
- sexual performance by a child; or
- possession or promotion of child pornography

Link: HB 1399

House Bill 98 - Revenge Porn v. 2.0

Signed - Effective September 1, 2019

revenge porn 2.0 texas

House Bill 98 addresses concerns that "have been raised regarding the constitutionality" of the civil and criminal Revenge Porn statutes. House Bill 98 amends Penal Code 21.16(b) by adding an intent element - that the intimate visual material was released with the intent to harm the depicted individual. (Quote from bill analysis.)

Link: HB 98

House Bill 37 - Mail Theft

Signed - Effective September 1, 2019

MAIL THEFT

Porch pirates beware!

HB 37 creates a state offense for mail theft with enhancements for stealing mail from elderly or disabled individuals. Generally, stealing mail from fewer than 10 addresses will be a Class A misdemeanor; 10 to 29 addresses is a state jail felony; and anything over that is a third-degree felony. The offenses are enhanced one level if it is shown that identifying information was taken for the purpose of committing fraud.

Link: HB 37

House Bill 902 - Assault on a Pregnant Woman

Signed - Effective September 1, 2019

ASSAULT ON PREGNANT WOMAN

HB 902 makes assaulting a woman whom the accused knows is pregnant a third- degree felony, instead of a Class A misdemeanor.

Link HB 902 

House Bill 3582 - The (Mostly) Illusory Deferred DWI Bill

Signed - Effective September 1, 2019

the illusory DWI bill

House Bill 3582 is a bill supported by MADD for a reason - it creates the illusion of a new and more desirable outcome for first-time DWIs. The reality is there is very little practical effect to this bill other than a shortened period before the person can apply for a nondisclosure - assuming there was not an accident involving another person. A judge must require an interlock device on any DWI that is deferred, even though the blood alcohol concentration is less than .15, unless after substance and alcohol evaluation the judge rules that the use of interlock is not necessary for the safety of the community. (Probation for a first-time DWI with a BAC less than .15 currently does not require interlock as a condition.) Deferred for a DWI is considered a conviction for enhancement purposes for any future DWI allegation. The nondisclosure waiting period is two years, instead of the standard 3-to-5 years for a probated DWI. A nondisclosed DWI can still be used for enhancement purposes.

Link: HB 3582

madd supports deferred DWI

House Bill 51 - Creation of Standard Criminal Forms

Vetoed the Governor

standard criminal forms

HB 51 calls for the creation of standard forms by the Office of Court Administration by September 1, 2020 for:

  1. A plea of guilty in a felony case.
  2. A plea of no contest in a felony case.
  3. A plea of guilty in a misdemeanor case.
  4. A plea of no contest in a misdemeanor case.
  5. Trial court admonishments.
  6. Client's Acknowledgement of trial court admonishments.
  7. Waiver of discovery under 39.14
  8. Evidence disclosure receipt
  9. Plea agreements
  10. Expunction and nondisclosure waivers

The Texas Supreme Court will set a date by which these forms must be adopted by all courts.

Link: HB 51

House Bill 2894 - Healthcare Fraud

Signed - Effective September 1, 2019

healthcare fraud

HB 2894 significantly expands the Medicaid Fraud statue and creates Healthcare Fraud as a state criminal cause of action.

Link: HB 2894

Senate Bill 1802 - Registration for Aggravated Promotion of Prostitution

Registration for Aggravated Promotion of Prostitution

Signed - Effective September 1, 2019

Senate Bill 1802 amends CCP Article 62.001(5) to require sex offender registration for aggravated promotion of prostitution.

Link: SB 1802

House Bill 101 - Spoofing Calls is a Crime

spoofed calls are illegal

Signed - Effective September 1, 2019

House Bill 101 creates a Spoofed Calls statute under Penal Code 33A.051 that makes it illegal to spoof a phone number when the call is made with the intent to defraud, harass, or cause harm. Subsection (d) allows officers to spoof phone calls while on official duty.

Link: HB 101

Senate Bill 38 - Hazing Statute Expanded

hazing criminal case texas

Signed - Effective September 1, 2019

Senate Bill 38 expands Section 37.151 of the Education Code from sororities and fraternities to also include "student government, a band or musical group or an academic, athletic, cheerleading, or dance team, including any group or team that participates in National Collegiate Athletic Association competition"

Link: SB 38

Senate Bill 1754 - Prosecutors No Longer Need to Prove Intent: Taking a Weapon from a Peace Officer

taking a weapon from an officer

Signed - Effective September 1, 2019

SB 1754 removes the intent element from taking (or attempting to take) a weapon from a peace officer. Prosecutors no longer have to show that the weapon was taken with the intent to harm an officer or third person.

Link: SB 1754

Senate Bill 405: Every Sexual Assault Investigation into FBI Database

every sexual assault investigation is going into an FBI database

Signed - Effective September 1, 2019

Effective September 1, 2019, pursuant to Government Code 420.035, every investigation (charged or uncharged) into any sexual assault or other sex offense is required to be entered into the national database of the Violent Criminal Apprehension Program established and maintained by the Federal Bureau of Investigation. If a person is merely investigated for a sexual offense their name, date of birth, suspected offense, and a description of the offense is to be entered into the database. Learn more about "Molly Jane's Law.

Link: HB 3106

Senate Bill 8 - 90 Day Recommendation for Rape Kits

rape kits in 90 days

Signed - Effective September 1, 2019

On the surface this bill requires rape kits to be analyzed within 90 days of submission to a public accredited crime lab, but leaves open a huge loophole - that the kits only have to be tested in 90 days "if sufficient personnel and resources are available."

Link: HB 8

Senate Bill 20 - Online Promotion of Prostitution

online promotion of prostitution

Signed - Effective September 1, 2019

Senate Bill 20 creates the new offense of Online Promotion of Prostitution. This third degree charge applies to a person who owns, manages, or operates a website with the intent to promote prostitution or facilitate prostitution. A repeat offense or an offense involving someone 18 or under - regardless of whether the person knew the age - is a second degree offense.

Aggravated Online Promotion of Prostitution is one level higher (so a second degree or first degree) when the website is operated to facilitate prostitution for five or more persons.

Link: SB 20

House Bill 2625 - Fraudulent Credit and Debit Cards

fraudulent cards criminal offense

Signed - Effective September 1, 2019

HB 2625 creates an offense under Penal Code 32.315 for obtaining, possessing, transferring or using a counterfeit credit or debit card with the intent to harm or defraud another person. Possessing less than five items would be a state jail felony, five to nine items would be a third degree felony, 10 to 49 items would be a second degree felony, and 50 or more items would be a first degree felony.

Link: HB 2625

House Bill 1279 - Changing Parole Eligibility Jury Instruction

Signed - Effective September 1, 2019

parole eligibility

HB 1279 changes the language to be used in a jury instruction in the punishment phase of a criminal jury trial, updating the language relating to good conduct time.

Link: HB 1279

House Bill 8 - Removing Statute of Limitation for Certain Sexual Assaults

Signed - Effective September 1, 2019

no SOL in sexual assault cases

HB 8 removes the statute of limitation for sexual assault cases where biological evidence was collected but has yet to be tested for DNA. The bill also creates a "Telehealth" center for Sexual Assault Nurse Exams so SANE exams may be done remotely, especially if you are in a smaller jurisdiction.

Link: HB 8

House Bill 1899 - Denial of Professional Licenses After Deferred or Conviction

Signed - Effective September 1, 2019

denial of professional licenses

If a healthcare professional is found guilty or placed on deferred for an offense requiring registration as a sex offender or if the professional is found guilty of a sexual offense against a patient, the court must inform the Texas Medical Board and DPS.

The bill also creates an automatic revocation or denial of professional licenses for a variety of medical professionals including dentists, dental hygienists, nurses, occupational therapists, optometrists, physical therapists, pharmacists, doctors, psychologists, social workers, and speech pathologists. It also requires licenses be denied for anyone placed on deferred adjudication or convicted of a felony offense involving the use or threat of force (think about collateral consequence warnings for individuals contemplating pleas for aggravated assault, for instance). Licenses must be denied to individuals required to register as sex offenders or who have been convicted or placed on deferred adjudication for a sexual offense against a patient. 

Link: HB 1899

House Bill 2945 - Service Station Owners: Beware of Skimmers

Signed - Effective September 1, 2019

service stations beware of skimmers

House Bill 2945 creates an offenses for disposing of card skimmers, which is aimed at owners of unattended point-of-sale terminals or kiosks. Negligently disposing of a card skimmer is a Class B misdemeanor but disposing of a card skimmer knowing a criminal investigation is under way commits a third degree felony.

Link: HB 2945

House Bill 427 - New Punishments for Switching Price Tags

Signed - Effective September 1, 2019

switching price tags

HB 427 changes the punishment range for switching price tags. The offense, formally known as "fraudulent destruction, removal, or concealment of a writing" will now be tied to the difference in the value of the new tag and the original price of the item and will follow the standard theft ladder valuations: under $100 is a Class C misdemeanor, $100-750 is a Class B, $750-2,500 is a Class A, $2,500 - $30,000 is a state jail felony, $30,000 - $150,000 is a third degree felony, $150,000 - 300,000 is a second degree felony and anything over that is a first- degree felony.

Link: HB 427

Senate Bill 550 - Allowing Nondisclosure after Judicial Clemency

Signed - Effective September 1, 2019

nondisclosure after clemency

SB 550 allows offenses that have been set aside through Judicial Clemency under 42A.701 to non-disclosed after a waiting period.

Link: SB 550

Senate Bill 194 - Indecent Assault, Groping

This Act takes effect September 1, 2019, except Section 16 takes effect immediately. 

indecent assault texas

SB 194 creates the offense of Indecent Assault. A person commits Indecent Assault if without the other person's consent and with the intent to arouse or gratify the sexual desire of any person, they touch the breast, butt, or genitals of another person; touch another person with their butt, breast, or genitals. This offense also covers contacting another person with seminal fluid, vaginal fluid, saliva, urine, or feces. Indecent Assault is a Class A misdemeanor.

Link: SB 194

Senate Bill 719 - Lauren's Law: Capital Murder includes Children Under Age 15

Signed - Effective September 1, 2019

capital murder 10-15 year old

SB 719, also known as Lauren's Law,  raised the age from 10 to 15 for a capital murder for the murder of a child. Prosecutors may not seek the death penalty for child victims between 10 and 15, so anyone convicted only under this subsection shall receive life without parole.

Link: SB 719

Senate Bill 535 - Carrying a Gun to Church

Signed - Effective September 1, 2019

bringing a gun to church

SB 535 allows individuals with a license to carry to bring their handgun to church or other place of worship if the church has not posted a 30.06 (concealed) / 30.07(open carry) notice.

Link: SB 535

House Bill 3490 - Expanding Harassment Statute

Bill vetoed by the Governor.

expanded harassment statute

HB 3490 expands the definition of harassment to include posting repeated messages on the internet, including on social media platforms.

Link: HB 3490

Senate Bill 346 - Consolidating Court Costs

Bill signed by Governor. Effective January 1, 2020.

consolidating court costs

SB 346 increases the court costs for felonies from $133 to $185. For Class A and B misdemeanors, the court costs increase from $83 to $147. These changes reflect consolidation of some costs and repeal of others such as a repeal of the fees for the services of county and district clerks.

Link: SB 346

Senate Bill 1802 - Enhanced Punishment for Human Trafficking

Signed - Effective September 1, 2019

enhanced punishment range

SB 1802 increases the level of punishment for human trafficking offenses by one level.

Link: SB 1802

House Bill 374 - New Probation Policies

Signed - Effective September 1, 2019

new probation policies

HB 374 requires probation departments to adopt policies so that meetings with probationers are set after taking into consideration the probationer's work schedule, treatment, and community service. Probation departments mays allow reporting by videoconference. 

Link: HB 374

Senate Bill 306 - Public Intoxication Release Options

Signed by Governor. Effective Immediately

public intox release options

SB 306 broadens the ability of officers to release individuals who are publicly intoxicated in lieu of arresting them. In addition to releasing them to a responsible adult or  substance abuse program, officers may now release them a facility to sober up under supervision.

Link: SB 306

Senate Bill 1700 - Release Inmates Before Dark

Signed - Effective September 1, 2019

inmate release before dark

SB 1700 amends the Code of Criminal Procedure to require discharge of inmates by 5 p.m. instead of 7 p.m. under most circumstances. An inmate can agree to be released after 5 pm.

Link: SB1700

Many legislative efforts died on the vine this session. It'll be two years before the legislature meets again and has another go at decriminalization of marijuana and approving medical marijuana for PTSD patients. Other notable legislative defeats include:

Dead - House Bill 2754 would have limited the instances when a police officer could arrest for a fine only or ticketable offense. A campaign of misinformation by CLEAT led to the demise of this bill despite two years of bipartisan effort.

Dead - House Bill 1139 - which would have added standards in evaluating whether a person on death row is intellectually disabled or not in light of the 2002 United States Supreme Court decision prohibiting the execution of individuals with intellectual disabilities. Without legislation to address this issue, individuals on death row must have their cases work through the court system again if they raise an issue of intellectual disability - delaying executions and increasing costs. 

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese
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