Legislation Advances Strengthening Penalties Against Child Sexual Offenders

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Several bills advanced through the State Senate last week aiming to make Tennessee’s state government more efficient and effective, including legislation to revamp the Tennessee Regulatory Authority (TRA) which regulates utilities across the state.  The TRA is currently governed by four full-time members, called directors, with salaries of $152,000 per year. Senate Bill 2247 would replace them with five part-time members who are paid in the mid $30,000 range and a full-time executive director to manage the agency's day to day operations.

The proposal for part-time directors follows deregulation of many industries previously governed by the TRA, including the trucking and phone industries and most electric utilities.  The TRA does not regulate the Tennessee Valley Authority (TVA) or other utilities owned by local government.  As a result, only 19 rate cases have come before the agency since 2003.  The legislation also follows a comptroller report which showed the TRA needs a better management structure to optimize functions of the agency.

Under the bill, TRA directors would be appointed by the governor and the speakers of the House and Senate.  The directors would then elect a chair and vice-chair from among themselves.  The legislation requires monthly meetings unless waived by a majority vote.  It also creates an executive director position to be appointed by joint agreement among the governor and the speakers of the House and Senate for the initial three-year term and establishes the minimum qualifications to ensure a high level of competency.

Thirty one other states have an Executive Director at the helm of similar agencies.  The new Executive Director would also do a top to bottom review of the TRA to see where further savings can be realized, while emphasizing a more effective agency forTennesseerate-payers and the industries who come before them.

Boards and Commissions / Efficient and Effective Government – In another effort to operate state government in a more efficient and effective manner, Senate Bill 2249 was presented to the Senate Finance Committee for consideration this week.  The bill focuses on performance, accountability and effectiveness by making structural changes to 20 boards, commissions and licensing programs.

Over the past year, heads of many of the state’s departments and agencies conducted a top to bottom review to thoroughly analyze operational and organizational efficiency.  The review was fueled out of concerns thatTennesseemust practice greater fiscal constraint due to cuts that will likely come from Washington and the need to downsize state government as state revenues are still below pre-recession levels.  Through this comprehensive review, the departments were also asked to establish a culture of customer service, efficiency and effectiveness.

Currently,Tennesseehas more than 200 boards and commissions, many of which have independent hiring and spending authority with little oversight.  The legislation merges six boards into three for increased efficiency including the Conservation Trust Fund Board, which will absorb the Conservation Commission.  The Oil and Gas Board and Water Quality Control Board would be combined to form the Board of Water Quality, Oil and Gas.  The Petroleum Underground Storage Tank Board and the Solid Waste Board would be combined to form the Underground Storage Tank and Solid Waste Disposal Control Board.  The proposal would eliminate 138 board positions, a move which will save money and increase effectiveness.

In addition, the legislation gives a Cabinet level commissioner oversight over five boards for increased accountability.  They are the Peace Officers Standards and Training Commission; Tennessee Corrections Institute and Commission on Firefighting Personnel Standards and Training within the Department of Commerce and Insurance; the Council on Career and Technical Education within the Department of Education; and the Conservation Trust Fund Board within the Department of Environment and Conservation.

Finally, the bill gives the Governor hiring authority for four Commission’s executive directors including the Commission on Aging and Disability, Commission on Children and Youth, the Arts Commission, and the Higher Education Commission.

A vote is expected on the proposal in the Finance Committee on Tuesday.

Government Accountability / Reporting Fraud – The State Senate gave final approval to legislation this week that would require officials of any state agency to notify the Comptroller of the Treasury upon having knowledge of any act of theft, forgery, credit card fraud or any other unlawful act regarding public money, services or property.  Senate Bill 3331 provides for state agencies to establish guidelines for the reporting of fraud to the Comptroller of the Treasury.

Resolutions would change how judges selected

Action in the State Senate last week was highlighted by consideration of two proposals that would allow Tennesseans to vote on whether or not they want to use a merit-based appointment system for selecting the state’s Supreme Court and intermediate appellate judges, followed by a retention vote of the people.  Senate Joint Resolution 183 and Senate Joint Resolution 710 were approved by the Senate Finance Committee on Tuesday and moved to the full Senate for the first and second readings on Wednesday and Thursday.  A final vote on the matter is scheduled for Monday.

The action follows an announcement made earlier this year by Governor Bill Haslam, Lt. Governor Ron Ramsey (R-Blountville) and House Speaker Beth Harwell (R-Nashville) that legislative action is needed under the present system for selecting appellate judges in order to be constitutionally correct.  Article VI, Section 3 ofTennessee’s Constitution requires that Supreme Court justices “shall be elected by the qualified voters of the state,” which concerns many lawmakers who believe the current system does not fully satisfy that mandate.  Under the state’s current Tennessee Plan for selecting Supreme Court and other appellate judges, a 17-member Judicial Nominating Commission reviews applicants and sends the governor a panel of three nominees for consideration.  The governor must then appoint one of the nominees or reject the panel and request a second panel.  After being appointed through this process, the appellate judges must stand for approval by the voters after completion of their term, with the people deciding whether to “retain” or “replace” them.

Senate Joint Resolution 183 provides that as an alternative to contested elections, the legislature is authorized to establish in the law a system of merit-based appointments with retention elections for judges of the Supreme Court and the intermediate appellate courts.  The changes set out in the resolution would only go into effect if the Constitution is amended by a vote of the people.  First, the resolution must be approved by a simple majority of the legislature this year after three readings and must receive a two-thirds majority of both chambers in the following General Assembly.  Then it would go to a vote of the people in 2014.

The other proposal, Senate Joint Resolution 710, calls for appointment of state appellate judges in a manner similar to the federal model by allowing Tennessee’s Governor to appoint judges to the Supreme Court and state appellate courts, subject to confirmation by the General Assembly, for eight year terms.

Legislation advances strengthening penalties against child sexual offenders

The Senate Judiciary Committee worked late into the night on Tuesday and Wednesday, approving many anti-crime bills, including legislation that strengthens penalties against child sexual offenders.

Aggravated Rape / Multiple Offenders – The Judiciary Committee approved Senate Bill 2349 which requires a person convicted of aggravated rape on or after July 1, 2012 to serve 100 percent of the sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn. In addition, the proposal adds an "aggravated rapist" to the list of persons who must serve their entire sentence undiminished by sentence reduction credits.

Minor Victim / Undercover Officer – Judiciary Committee members voted to advance Senate Bill 2605 which corrects an error in current law to ensure that prosecution and conviction is authorized for displaying sexual activity to a minor via electronic communication.  The law would apply regardless of whether the victim is a minor or an undercover police officer posing as a minor.

Sexual Trafficking – Two bills regarding sexual trafficking were approved by the Judiciary Committee during the two-day marathon meetings.  Senate Bill 2590 states that it is a defense to prosecution when a person charged with prostitution is charged for conduct that occurred because a person was a victim as defined under the federal Trafficking Victims Protection Act.  Similarly,  Senate Bill 2371 was approved which would make it a Class B felony for a trafficker to advertise the sale of a sexual act with a minor, except when the victim is a child between ages 13 and 15, which would be a Class A felony offense.

Sexual Offenders / DNA – The committee voted to approve Senate Bill 2922 that provides for a procedure to ensure law enforcement has a DNA sample for a sexual offender when that person is on the Registry but is not incarcerated.

Sexual Offenders / Indecent Exposure – Senate Bill 3076 was approved by Senate Judiciary Committee members.  The bill revises the punishment for the offenses of public indecency and indecent exposure.  It specifies that indecent exposure would be a Class E felony if the defendant is 18 years of age or older and the victim is under 13 years of age and the offense occurs on the property of any public school, private or parochial school, licensed day care center or other child care facility during a time at which children are likely to be present.  It also provides that if a person is charged with such Class E felony offense and the court grants judicial diversion, the court must order, as a condition of probation, that the person be enrolled in a satellite-based monitoring program for the full extent of the person's term of probation in a manner consistent with the requirements of the Tennessee Serious and Violent Sexual Offender Monitoring Pilot Project Act.

Sexual Offenders / Registration – Another bill is pending action on the Senate floor on Monday calls for judicial forfeiture of a registered sexual offender’s automobile if they are found to be in violation of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act.  Senate Bill 3635 would allow judges to consider forfeiture when the registered offender violates the terms of the Registry Act by being at a day care, school or other places in which he or she is banned.

Drug Abuse legislation continues to highlight action in 2012 legislative session

Legislation to curtail illegal and prescription drug abuse inTennesseecontinued to headline action on Capitol Hill this week as it remains a top issue for the 2012 session of the General Assembly. Lawmakers have numerous bills traveling through the legislative process to address the growing problem of synthetic drugs and meth, as well as abuse of drugs prescribed legally.

Prescription Drug Abuse – The Senate Finance Committee approved a proposal to curb prescription drug abuse by requiring doctors or their designees to check the state’s Controlled Substance Monitoring Database for patients’ prescription history before initially prescribing an opioid or benzodiazepine substance or at every six months thereafter for the same episode of treatment.   Senate Bill 2253, which is included in Governor Bill Haslam’s legislative package, requires pharmacies to collect a patient’s prescription information and report that information to the database within seven days.  Currently it must be reported within 40 days.  The bill also enhances penalties for doctor shopping from a Class A misdemeanor offense to a Class E Felony when it involves 250 or more pills.  The stiffer penalties allow law enforcement officials to go after dealers who distribute the drugs illegally.

Synthetic Drugs / Methcathinone – Senate Bill 2507 was approved by the full Senate on Thursday. The bill adds chemical compounds considered to be derivatives of methcathinone to the Class A misdemeanor offense of production, manufacture, distribution, possession or sale of synthetic derivatives or analogues of methcathinone.  This drug is a Schedule I psychoactive stimulant which is highly addictive and illegal in theUnited States for clinical use.  The legislation removes the intent requirement from the offense of possession of synthetic derivatives or analogues of methcathinone.

Prescription Drug Abuse / Hospital Employees – The full Senate also approved Senate Bill 2407 to authorize the Controlled Substance Database Committee to provide a hospital an employee’s prescribing information.  The information could be forwarded to that hospital’s Quality Improvement Committee if there is suspicion that the employee was writing prescriptions for his or her own personal use.

Issues in Brief

Change in method to select state’s Attorney General – Legislation that would allow Tennessee’s Governor to appoint the State Attorney General was approved by the Senate Finance Committee on Tuesday.  Senate Joint Resolution 693, sponsored by Senator Beavers, would amend the state’s Constitution to allow the Governor to appoint the Attorney General for a six-year term subject to legislative confirmation. Tennessee is the only state in the nation that allows the State Supreme Court to select the attorney general.  Other states either call for popular election or the Attorney General is selected by either the popularly elected Governor or the state legislature.

Illegal Aliens / Risk of Flight – The Senate Finance Committee voted to approve Senate Bill 2604 that allows the court clerk to set bail for traffic violations at a higher amount than normally permitted for a defendant who is unlawfully present in the U.S. and is deemed a risk of flight.

Jaclyn’s Law / 911 Responders – Legislation received final Senate approval this week that makes it clear that emergency responders have immunity if they force entry into a home after someone calls 911 and then doesn't answer the door.  Senate Bill 2480 is named Jaclyn's Law, for aCalifornia woman who died after first responders failed to use forcible entry because of liability concerns.  The legislation was brought to lawmakers by the woman’s sister who is aTennessee resident.  The bill seeks to clear up any gray area regarding the right of first responders to force entry after receiving a 911 call to render emergency medical assistance if no one answers the door, without fear of criminal or civil charges.

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