“Do Not Pass Go: Texas Legislature Cracks Down on Lewd Photos”

Come September 1, certain digital behavior of a number of Texans across the state will be criminalized: HB 2789, signed by Gov. Abbott, classifies nude or sexually explicit photos sent without consent as a Class C misdemeanor, punishable by a fine of up to $500. Essentially garnering the same punishment as a speeding ticket, the bill set forth by Rep. Morgan Meyer (R-Dallas) includes electronic forms of crude communication through text messages, social media, and online dating profiles.

The creator of Austin-based dating app Bumble, Whitney Wolfe Herd, has teamed up with Rep. Meyer to create some consequences for the perpetrators of online sexual harassment. According to Herd, a recent study of Bumble users found that one out of every three users had received an unsolicited lewd picture. “What is illegal in the real world must be illegal in the digital world, and this legislation is a first step in the right direction in adding that accountability,” Herd said.

However, some legal experts maintain that the bill’s sweeping language is expected to face challenges. J.T. Morris, an Austin-based lawyer specializing in First Amendment rights claims the bill “looks to be significantly overbroad because it looks to criminalize the sending of information that could have legitimate purposes […] This has some real First Amendment concerns.” Some of these legitimate reasons could be concerning a medical issue or a photo of a woman breastfeeding, both of which would fall under the bill’s scope.

The bill is also not retroactive in that it wouldn’t address instances that have happened before September 1, 2019. To this point, Senator Charles Schwertner (R-Georgetown), who was accused of sending explicit photos to a University of Texas student last year, would not face any penalties as the investigation was concluded prior to this legislative session.

Ultimately, Rep. Meyer remains confident: “We understand enforcement will be a challenge. We really do. However, this bill is intended to serve as a deterrent as well in keeping people aware that sending unsolicited lewd photos will now be a crime and will not be tolerated as a message we want to send.”

Criminal case against Texas Attorney General Ken Paxton remains threatened after court upholds prosecutor pay decision

BY EMMA PLATOFF

After mulling the question for nearly six months, the nine Republican judges on Texas’ highest criminal court will not reconsider their 2018 ruling that threatens to imperil the criminal case against Texas Attorney General Ken Paxton.

In November, a fractured Texas Court of Criminal Appeals ruled that a six-figure payment to the special prosecutors appointed to take Paxton to trial for felony securities fraud fell outside legal limits for what such attorneys may be paid. A month later, the attorneys asked the high court to reconsider that decision in a spirited legal filing that went unanswered until this week.

The court did not provide any reason for rejecting the motion, nor did any judges write dissenting opinions. Few expected that the high court would reconsider its own ruling.

Payments for special prosecutors are based on strict fee schedules, but judges are permitted to approve payments outside those strictures in unusual circumstances, as a North Texas GOP judge did for the prosecutors in the Paxton case. But after Jeff Blackard, a Paxton donor, sued in December 2015, claiming that the fees were exorbitant, the Dallas Court of Appeals voided the prosecutors’ invoice and the payment has been in question. Meanwhile, the trial itself has been derailed again and again.

Wednesday’s ruling threatens the long-delayed prosecution of Texas’ top lawyer, as the prosecutors —unpaid in years — have signaled they may withdraw from the case if they cannot be paid. The prosecutors have also argued that the pay ruling, in limiting how much attorneys may be paid even in cases of extraordinary circumstances, threatens the state’s ability to adequately compensate lawyers representing indigent defendants.

Paxton, who was indicted in July 2015, spent nearly all of his first term under a legal cloud and was narrowly re-elected in November with criminal charges dogging him. As the indictment nears its fourth birthday, his trial continues to be pushed off.

The makeup of the high court has changed since the last decision came down, but just a little, with the election of Judge Michelle Slaughter. Slaughter replaced Elsa Alcala, who passionately dissented from the decision against the prosecutors.

Paxton is accused of misleading investors into buying stock in a North Texas tech firm and failing to register with the state. The Texas State Securities Board fined him $1,000 in connection with one instance of soliciting clients without being registered; Paxton signed the order and did not dispute its findings. He has been cleared of related civil charges brought by the U.S. Securities and Exchange Commission.

Paxton has denied the charges. A spokesman did not immediately return a request for comment.

Paxton’s trial was, once upon a time, set for May 2017, but has seen delay after delay — many of them entirely unmoored from his guilt or innocence. The longest-dragging has been the pay case, which the Court of Criminal Appeals agreed to hear in December 2017. More than 18 months later, it has yet to be resolved. The high court, often criticized for its slow pace, is not bound by external deadlines.

Meanwhile, if the prosecutors do withdraw, their replacements would likely be chosen under a new protocol; a new law going into effect Sept. 1 bars private attorneys from serving as special prosecutors.

Under Senate Bill 341, which moved quietly and without controversy through the Texas Legislature, only county attorneys, district attorneys and assistant attorneys general would be qualified to serve in the high-stakes, often high-profile affairs that require specially appointed prosecutors. Currently, judges may appoint “any competent attorney,” which some have argued is an insufficient standard.

The author of that bill, Houston Republican Sen. Joan Huffman, has presented it as a cost-saving effort for counties — special prosecutors will now be government attorneys who would not require additional funds — and also as a way to raise the bar of qualifications for special prosecutors.

That would limit the selection pool from the more than 100,000 practicing attorneys in Texas to a much smaller group of several hundred elected prosecutors or attorneys employed by the agency Paxton runs. The replacement for Wice and Schaffer would have to be either a Democratic district attorney, who might be seen as overly aggressive in her prosecution of a Republican statewide official; a Republican district attorney, who could be seen as overly sympathetic to a leader of his own party; or an assistant attorney general, who would be an employee of the defendant.

The Legislature had already passed a law barring private attorneys from serving as special prosecutors in certain public corruption cases, but the new bill this session widely expands that measure so that it includes Paxton’s case.


Chen Button: Texas Women Must Wait for Solutions for Maternal Mortality

At a Texas Tribune panel last week, State Rep. Angie Chen Button (R-Richardson) told Texas women to “give a little time” for the Texas Legislature’s piecemeal solutions for women’s health to be implemented. In the meantime, Texas women are dying because there is a health coverage crisis. The latest data shows one in four Texas women of reproductive age are uninsured. Even worse, nearly half of the women of reproductive age in Dallas County lack health insurance.

Lack of access to care plays a big role in pregnancy related deaths in Texas, according to the state’s own data. The #1 surefire way to improve this rate and health outcomes for Texas women is to expand Medicaid and accept the billions of federal tax dollars Texans already pay.

“I’m a CPA. I know how to count money,” said Button, who voted against Medicaid expansion when it came to a vote on the floor of the House.

One of her issues, she claimed, with Medicaid expansion was how few doctors see Medicaid patients. She claimed only 17 percent do, which is false. In fact, according to the Texas Medical Association, 42 percent of physicians are willing to accept new Medicaid patients and that is in large part due to “inadequate payment” to the physicians who do.

The Legislature created this problem and failed again this session to change payment rates to physicians who give care to Medicaid patients.

Button also said she would not support Medicaid expansion because it was not “easy” and is politically toxic to her and other Republicans, despite surveys showing bipartisan consensus in Texas in favor of the policy.

When asked what was done this session for women’s health, Button touted her bill increasing information provided to women eligible for the family planning program, Healthy Texas Women.

Reverend Deneen Robinson of the Afiya Center, pushed Button on her bill, saying the Healthy Texas Women program was “not a Medicaid replacement” and was simply “a band-aid… a screening program.”

“If you need further care, you’re going to have to go some place else.”

The Healthy Texas Women program has received similar criticism from advocates for being a political concession from lawmakers after the Legislature cut funding to women’s health programs in 2011. The program has also been bogged down for issues of mismanagement, providers serving less women than before the cuts.

A bill to extend Medicaid maternity coverage from two months postpartum to 12 months postpartum, the #1 recommendation of the Texas Maternal Mortality and Morbidity Task Force, failed to pass this session.

House District 112 constituents deserve better than political gestures. Saving women’s lives should not be a question of what is politically easy. It should be what is in the best interest of your constituents.

After Gov. Greg Abbott vetoes cyberbullying prevention bill, some worry forms of online harassment will continue unchecked

Two years ago, Texas Gov. Greg Abbott signed into law a bill criminalizing cyberbullying, with an increased punishment if there’s proof a bully intended for a victim to harm or kill herself or himself. Widely supported by advocates, David’s Law came to Abbott’s desk after 16-year-old San Antonio high school student David Molak took his own life after being harassed online.

But it didn’t protect children who are indirectly bullied, such as when people post or send hostile messages about them to others. The Texas House and Senate passed a bill that would criminalize such indirect harassment, but Abbott vetoed the measure Saturday.

During the hearings on the bill, a Texas woman testified that her daughter was one of those students left unprotected due to what advocates say is a loophole in current law.

When a Texas middle school student posted video montages online of six female classmates, including her 13-year-old daughter, along with obscene and sexually explicit comments, the woman said, the post wasn’t directly addressed to any of the students. But that didn’t lessen the effects of the bullying, she said. Even after the videos were taken down, she testified, her daughter continued to deal with harassment and social challenges, and another one of the middle schoolers attempted suicide.

“A lot of vile and nasty, vulgar things were said about her to other people,” said the bill’s author, state Rep. Sheryl Cole, D-Austin. “It got way out of hand, but most of it didn’t go directly to her — and that’s not covered under [David’s Law].”

In his veto statement, Abbott said House Bill 3490 was “overbroad” and “would sweep in conduct that legislators did not intend to criminalize,” including repeated criticisms of elected officials online.

Under the bill, for example, some frequent commenters on Abbott’s social media accounts could have been charged for posting multiple messages and tweets likely to annoy or harass.

“It was hard for us to not make it overbroad and still fit in the boundaries of the general statutes — you don’t want two different standards,” Cole said. “More likely than not, given his statement, we’re going to take steps to just rewrite the whole section of the penal code that’s applicable.”

Cole expressed disappointment at the veto, but she said she wasn’t “entirely shocked” because of the potential legal issues surrounding the legislation.

“When there is a gap in the law that doesn’t protect victims that are driven to self-harm or suicide, it is clear that we must take action to fix the law,” Cole said in a Monday afternoon statement posted on Twitter. “Unfortunately, this veto means that it will be another two years before we can try to provide these victims protection and help them seek justice.”

In the past few years, multiple Texas teens — including 18-year-old Brandy Vela, whom an ex-boyfriend allegedly cyberbullied about her weight — have died by suicide after experiencing online harassment.

Piper Nelson, chief marketing and communications officer for human services nonprofit The SAFE Alliance, said the priority ahead of the 2021 session should be bringing prevention efforts to a school level and educating children about healthy relationships.

“This bill might not have been perfect,” Nelson said,”but we look forward to next session making sure that further legislation is passed.”