August 30, 2005
More new laws

If you've ever wondered why there are so-called "activist" judges who "legislate from the bench", here's one reason.

Texas doctors who perform abortions without parental approval or after the third trimester could face capital murder charges because of a new law that takes effect this week, a prosecutors group says.

The Texas District and County Attorneys Association has outlined that scenario in its new book updating the Texas penal code and in public presentations around the state. The group says such charges could occur under the new law because of the 2003 fetal protection law.

Key legislators said Monday that wasn't their intent.

Sen. Jane Nelson, R-Lewisville, who pushed the parental consent measure, said in a prepared statement that her legislation was strictly limited to giving parents the right to consent when a minor is considering an abortion and to preventing late-term abortions.

"There were no discussions about the death penalty during our legislative discussions of this issue," Nelson said.

A capital murder conviction can result in the death penalty.

Rep. Ray Allen, R-Grand Prairie, who sponsored the 2003 bill defining an embryo or fetus as an "individual," said the law may need clearing up in a future legislative session.

"I don't see the Legislature wanting to charge doctors with capital murder based on a technical legal issue over whether parental consent was properly documented," Allen said.

In other words, do what we mean and not what we say. Brilliant.

Sometimes even when a law gets clarified, it's still not clear what it means.

Motorists arrested for carrying pistols in their cars without a concealed handgun license will continue to be prosecuted in Houston, despite a new law that purports to give them a legal defense, Harris County District Attorney Chuck Rosenthal said Monday.

Although the sponsor said the law should reduce the number of arrests for unlawful handgun possession, Rosenthal said it won't change enforcement practices in Houston after it goes into effect on Thursday.

"It is still going to be against the law for (unlicensed) persons to carry handguns in autos," the district attorney said, adding that the new legal defense can still be challenged by prosecutors.


"The intent of the law is to keep innocent people from going to jail," said the sponsor, Rep. Terry Keel, R-Austin, a former prosecutor and former Travis County sheriff who now is a candidate for the Texas Court of Criminal Appeals.


Keel said he hoped the law will prompt police officers to think twice about arresting motorists who meet the new legal presumption and spare them the expense and "indignity" of arrest and prosecution.

Otherwise, he said, "They basically are going to arrest innocent people and make them prove their innocence."

Rosenthal and Rob Kepple, executive director of the Texas District and County Attorneys Association, disagreed.

Rosenthal said the new presumption about "traveling" doesn't define what constitutes traveling and can be challenged in court by prosecutors, leaving it to juries to decide verdicts "based upon the facts of the case."

A prosecutor could summon witnesses to successfully argue that a defendant wasn't traveling because he was simply "driving around the corner for a carton of milk," Kepple said.

"I really don't think (the law) should affect how police officers respond in arresting somebody," he added.

Houston Police Department spokeswoman Johanna Abad indicated Houston police were going to take their advice from Rosenthal's office.

"A law means what I say it means, nothing more, nothing less." Are we all ready for a dose of Maalox yet? Can't help you with that, but at least Scott has a little good news to help this all go down.

Posted by Charles Kuffner on August 30, 2005 to That's our Lege | TrackBack