What happens to people convicted under now-unconstitutional online solicitation statute?

In the wake of the Court of Criminal Appeals' ruling yesterday that portions of Texas' online solicitation of a minor statute are unconstitutional, the question arises, what happens to people who've already been convicted under that now-nullified criminal law? In a blog post on that topic, Mark Bennett, who argued the case before the high court, noted that:

Alan Curry, Chief of the Har­ris County Dis­trict Attorney’s Office’s Appel­late Divi­sion, “said pend­ing cases would likely be dis­missed and the office will have to review what to do about any­one con­victed under the voided law.” (Chron.)

I don’t know what the DA’s Office will wind up doing, but it doesn’t seem like a dif­fi­cult call: the right thing to do (once the deci­sion is final) is to give every­one con­victed or placed on deferred-adjudication pro­ba­tion for vio­lat­ing Sec­tion 33.021(b) the option of reopen­ing their cases.

There could be instances, he pointed out, where defendants may not seek relief:

Why give [defendants] the option, instead of just reopen­ing the cases? Because some of them may have pled more seri­ous charges (with longer max­i­mum sen­tences or life­time sex-offender reg­is­tra­tion require­ments) down to 33.021(b) vio­la­tions, and they should have the ben­e­fit of their bar­gain if they still want it.

But most would likely not choose to remain in prison or on pro­ba­tion, and reg­is­ter as sex offend­ers for ten years after they have done their time, for some­thing that is not a crime.

Grits followed up in the comments to ask, "pro­ce­du­rally what would 'reopen­ing the case' look like? Do you envi­sion the DA dis­miss­ing old charges on their own (and poten­tially refil­ing under some other statute)? Would the [defendants] have to file habeas writs? What would that look like on the ground?" Mark helpfully responded:

The DA’s Office should notify con­victed defen­dants and their trial lawyers, and be will­ing to agree to relief. But I think defen­dants are going to have to do some­thing to get relief—file a motion for new trial, or file a writ of habeas corpus.

How they best get the appro­pri­ate relief is some­thing I’m work­ing on—there are pro­ce­dural hur­dles, but pro­ce­dural hur­dles can be over­come by agree­ment; there may be sub­stan­tive hur­dles (was each lawyer who forewent a First-Amendment chal­lenge to 33.021(b) with­out get­ting her client some­thing in return inef­fec­tive? My opin­ion is that she was) as well.

If a defen­dant chooses to reopen a case, the State may refile under some other statute for which the statute of lim­i­ta­tions has not passed (though the pen­dency of a pros­e­cu­tion under an invalid statute doesn’t toll the run­ning of lim­i­ta­tions), but if they could file more seri­ous charges now, they prob­a­bly could have (and prob­a­bly did) back then. That’s some­thing that the defen­dant and his lawyer ought to care­fully con­sider before decid­ing whether there’s a fire wait­ing out­side the fry­ing pan.

My takeaway from this exchange is that District Attorneys around the state now should be obligated to go back and re-examine their old cases to identify all defendants who've been convicted of this non-crime and notify them. Perhaps it should even be incumbent on judges to appoint counsel for indigents among them  to represent them in habeas proceedings or in seeking a new trial. There are more than a few folks locked up today based on this statute, which has been in place since 2005 - how many, who can tell? But the high court's ruling isn't the end of the process. For folks already convicted of this non-offense, it's only the beginning.

In the wake of the Court of Criminal Appeals' ruling yesterday that portions of Texas' online solicitation of a minor statute are unconstitutional, the question arises, what happens to people who've already been convicted under that now-nullified criminal law? In a blog post on that topic, Mark Bennett, who argued the case before the high court, noted that:

Alan Curry, Chief of the Har­ris County Dis­trict Attorney’s Office’s Appel­late Divi­sion, “said pend­ing cases would likely be dis­missed and the office will have to review what to do about any­one con­victed under the voided law.” (Chron.)

I don’t know what the DA’s Office will wind up doing, but it doesn’t seem like a dif­fi­cult call: the right thing to do (once the deci­sion is final) is to give every­one con­victed or placed on deferred-adjudication pro­ba­tion for vio­lat­ing Sec­tion 33.021(b) the option of reopen­ing their cases.

There could be instances, he pointed out, where defendants may not seek relief:

Why give [defendants] the option, instead of just reopen­ing the cases? Because some of them may have pled more seri­ous charges (with longer max­i­mum sen­tences or life­time sex-offender reg­is­tra­tion require­ments) down to 33.021(b) vio­la­tions, and they should have the ben­e­fit of their bar­gain if they still want it.

But most would likely not choose to remain in prison or on pro­ba­tion, and reg­is­ter as sex offend­ers for ten years after they have done their time, for some­thing that is not a crime.

Grits followed up in the comments to ask, "pro­ce­du­rally what would 'reopen­ing the case' look like? Do you envi­sion the DA dis­miss­ing old charges on their own (and poten­tially refil­ing under some other statute)? Would the [defendants] have to file habeas writs? What would that look like on the ground?" Mark helpfully responded:

The DA’s Office should notify con­victed defen­dants and their trial lawyers, and be will­ing to agree to relief. But I think defen­dants are going to have to do some­thing to get relief—file a motion for new trial, or file a writ of habeas corpus.

How they best get the appro­pri­ate relief is some­thing I’m work­ing on—there are pro­ce­dural hur­dles, but pro­ce­dural hur­dles can be over­come by agree­ment; there may be sub­stan­tive hur­dles (was each lawyer who forewent a First-Amendment chal­lenge to 33.021(b) with­out get­ting her client some­thing in return inef­fec­tive? My opin­ion is that she was) as well.

If a defen­dant chooses to reopen a case, the State may refile under some other statute for which the statute of lim­i­ta­tions has not passed (though the pen­dency of a pros­e­cu­tion under an invalid statute doesn’t toll the run­ning of lim­i­ta­tions), but if they could file more seri­ous charges now, they prob­a­bly could have (and prob­a­bly did) back then. That’s some­thing that the defen­dant and his lawyer ought to care­fully con­sider before decid­ing whether there’s a fire wait­ing out­side the fry­ing pan.

My takeaway from this exchange is that District Attorneys around the state now should be obligated to go back and re-examine their old cases to identify all defendants who've been convicted of this non-crime and notify them. Perhaps it should even be incumbent on judges to appoint counsel for indigents among them  to represent them in habeas proceedings or in seeking a new trial. There are more than a few folks locked up today based on this statute, which has been in place since 2005 - how many, who can tell? But the high court's ruling isn't the end of the process. For folks already convicted of this non-offense, it's only the beginning.