Texas prosecutors may not enforce new laws passed by the Legislature this year dealing with human trafficking, sexting and domestic abuse because of problems with how they were written.
The Texas District & County Attorney Association, an Austin group that trains prosecutors, has started warning members that some new laws have loopholes or mistakes that may make them unworkable from a prosecutorial standpoint. Shannon Edmonds, the group's legislative guru, is widely viewed as an influential analyst in the state's legal community. All the laws are set to go into effect Sept. 1.
Two laws with problems relate to protective orders issued by Texas courts in abusive situations.
A measure from Rep. Bill Zedler, R-Arlington, and Sen. Leticia Van de Putte, D-San Antonio, will allow human trafficking victims to apply for protective orders against those who trafficked them and receive that order under a pseudonym to protect their privacy.
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The bill left out a key reference to the penal code, a single line of language that, because it's not in the new law, means that anyone violating the protective order is not committing a crime, Edmonds said. Instead, a trafficker who, say, gets too close to a victim under a protective order that draws on the new law could be charged with contempt.
"That's clearly insufficient to give protective-order applicants the peace of mind they are seeking," Edmonds said. "A contempt order is nothing essentially."
Zedler conceded that Edmonds is right about the lack of criminal enforcement, but he disagreed that the law lacks much punch.
"That contempt order is not insignificant," Zedler said.
Someone facing a contempt violation can be punished with up to six months in jail and a fine up to $500, said Ann Diamond of the Tarrant County district attorney's office.
Law has 'no teeth'
Katrina Daniels, a Bexar County assistant district attorney who has worked on trafficking issues, said the new law "has no teeth to it," which could make it tougher for some victims to break free from traffickers.
However, another new law allows specifically for sex-related trafficking victims to request protective orders, and prosecutors may be able to use those in some cases, she said. Cases that involve trafficking of other sorts, such as forced labor, will still have the weaker protective order as an option.
Zedler said that the attorney general's office asked him to file the bill and that the Texas Legislative Council, a state agency, drafted the language.
"The state attorney's general's office, they wanted this. ... I understood what we were doing but, on the other hand, nobody came to me and said there's no criminal offense here," Zedler said.
Zedler and Van De Putte said they will consider changing the law in the next legislative session.
Another law drawing questions was written by Sen. Wendy Davis, D-Fort Worth, and allows domestic-abuse victims to include pets in a protective order against an abuser. During the session, supporters like Davis and the House sponsor, Jodie Laubenberg R-Parker, said some domestic-abuse victims delay leaving an abusive situation out of concern got a pet. Battered-women shelters usually don't allow animals.
The new law is "unprosecutable" in most cases, Edmonds said. At issue is how the law is restricted to animals that are "possessed" by the victim. Legally, if a victim leaves his or her animal while fleeing for safety, the person is no longer in possession of the animal, Edmonds said. He argues that the law should have referred to "ownership" rather than "possession."
Davis was asked Thursday and Friday for comment, and a spokesman said she was not available.
Dallas lawyer John Browning, an advocate for the new law, said defining pet ownership can be legally tricky, such as when a couple purchases an animal together.
"I think the term 'possession' is definitely adequate," Browning said.
Patt Nordyke of the Texas Federation of Animal Care Societies said she hopes prosecutors will find a way to use the law to help domestic-abuse victims and their pets.
"The only solace that those people in domestic-abuse situations have is often their pet, and conversely the only solace the animal has is the person being abused," Nordyke said.
Many state lawmakers praised a law passed this session addressing "sexting": teenagers texting nude photos of themselves and others.
Privately, some prosecutors expressed concern about it. Edmonds is advising them to largely ignore the law because of problems including vague descriptions and conflicting rules.
"It's a bill written by people who don't understand the criminal-justice system," Edmonds said. "Prosecutors and police officers are going to have to use their discretion and ignore the absurdity that was written into the law."
Among the problems with the sexting law, Edmonds said, is that it creates a Catch-22 for adults who come across any explicit photos that were involved in an incident. The law tries to block such adults from being charged with possessing child pornography if they are holding on to the material to aid in an investigation, but Edmonds said it wasn't written properly.
"You could either destroy the evidence and be prosecuted for destruction of evidence or you could not destroy it and arguably be prosecuted for child pornography," Edmonds said, though he added that it's unlikely that a prosecutor would apply pornography charges in such a situation.
The law's lead author, Sen. Kirk Watson, D-Austin, said in a statement that he and other lawmakers worked with local prosecutors to "ensure this solution was sensible, appropriate and, most of all, workable."
That the group didn't bring up their concern earlier is "surprising and disappointing," Watson said.
Texas Attorney General Greg Abbott's office has praised the law and said Edmonds' criticisms "ring hollow since he did not bother to raise his purported concerns" during the session, Abbott's spokesman Jerry Strickland said.
Edmonds said members of his group helped work on the House version of the bill because they were requested. The Legislature adopted the Senate version.
Lauren Rose of the advocacy group Texans Care for Children said her group opposed the sexting law because of concerns about prosecuting kids for "childish behavior."
"If this means they are not prosecuting sexting, I would say that's a good thing," Rose said. "If they all of a sudden start prosecuting for child pornography, which is at a higher level, then that's not a good thing."