Interim Update: April 2016

            It may be a pain in the neck now, but you’re going to miss all this rain come August.

 

Mandatory electronic filing in criminal cases?

            Electronic filing (e-filing) in Texas courts is mandatory for civil cases but currently optional for criminal cases, for which e-filing varies county by county. (For more details about civil and criminal e-filing in Texas, view the slides from a presentation on the topic at http://www.txcourts.gov/media/1291322/eFileTexas-Status-JCIT-01292016.pdf.) However, earlier this month the Court of Criminal Appeals held a hearing to determine whether mandatory electronic filing in criminal cases “would be beneficial to parties, the public, and practicing attorneys.”

            For many of the witnesses who testified at the hearing, the answer is “no,” and there were many reasons. Brazoria County CDA Jeri Yenne expressed concerns about the privacy rights of victims, witnesses, and defendants if all court filings were electronic and available through the internet. Those concerns were echoed by Randall Chapman with Texas Legal Services Center, which advocates for the poor in legal matters. Some judges expressed concern that courtroom docket management would slow to a crawl if the judges and clerks are constantly grappling with various electronic records. One CCA judge observed that a substantial number of filings are by pro se defendants, which would be exempted from mandatory e-filing and thus require criminal courts to still maintain a paper system of some sort. And our own Rob Kepple testified on behalf of prosecutors who are struggling with solutions for the Michael Morton Act, body cam video management, and important projects like the DNA mixture snafu by pointing out that mandatory e-filing would place a huge strain on already-taxed local resources.

            Notwithstanding theses concerns, Rebecca Simmons, Chair of the Judicial Committee on Information Technology (JCIT), and David Slayton, the Director of the Office of Court Administration, remained enthusiastic about the idea of mandatory e-filing. Slayton testified that there was a difference between e-filing and allowing public access to files over the internet, and he said that docket management concerns could be addressed with technological solutions. As far as the cost to counties … well, no one directly addressed that.

            After sitting through the entire hearing, Rob found it odd that that no one ever discussed why mandatory e-filing is needed or helpful. His observation was that it all had the feel of the federal mandates on automobile gas mileage—“We don’t know how to do this efficiently yet, but if we mandate it, people will have to figure it out. Problem solved!” We don’t know if or when the CCA will make any decisions on this issue, but if you have concerns about mandatory e-filing, we suggest you convey them to the members of the CCA and the JCIT (http://www.txcourts.gov/jcit/members.aspx). The headache you save may be your own.

 

Interim hearing recap

            It was a relatively slow month for committee hearings in April. The main action was in the Senate Committee on Health & Human Services, which heard testimony about a variety of problems at CPS and DFPS during the course of a 9-hour committee hearing. We’ll spare you the details and just say that it remains to be seen whether the Legislature intends to do more than re-arrange deck chairs at the agency again—which seems to have been their favorite solution over the past decade or more—but hope springs eternal.

 

Upcoming hearings

            Here is a list of relevant interim committee hearings posted for May:

 

House Committee on Environmental Regulation

Monday, May 2, at 1:00 p.m., State Capitol Extension, Room E1.026

Topic: State vs. local regulation authority

 

Senate Subcommittee on Border Security

Wednesday, May 4, 2016, at 9:00 a.m., State Capitol Extension, Room E1.028

Topic: Interstate compact on border security

 

Joint Legislative Committee on Border Security

Thursday, May 5, 2016, at 10:30 a.m., State Capitol Extension, Room E1.028

Topic: Implementation of HB 11 and related border security efforts

 

House Committee on Criminal Jurisprudence

Monday, May 16, at 11:00 a.m., State Capitol Extension, Room 2.030

Topic: Asset forfeiture

 

House Committees on Correction and Criminal Jurisprudence (joint hearing)

Tuesday, May 17, at 9:00 a.m., John H. Reagan Bldg., Room 140

Topics: Probation and parole fees; technical revocations

 

Senate Committee on Criminal Justice

Tuesday, May 17, at 1:30 p.m., State Capitol Extension, Room E1.016

Topics: Pre-trial diversion programs; bulk dissemination of criminal records; more

 

House Committee on Judiciary & Civil Jurisprudence

Thursday, May 19, at 10:30 a.m., State Capitol Extension, Room E2.010

Topics: human trafficking; jury service

 

House Committees on Government Transparency & Operation and Emerging Issues in Law Enforcement (joint hearing)

Tuesday, May 24, at 1:00 p.m., State Capitol Extension, Room E1.030

Topic: Collection, management, and access of law enforcement data

 

House Committees on Government Transparency & Operation and Homeland Security & Public Safety (joint hearing)

Wednesday, May 25, at 10:00 a.m., State Capitol Extension. Room E1.030

Morning Topic: Criminal history records

Afternoon Topic: PIA

 

If you have questions about any of these hearings, call or email Shannon for more information.

 

Let’s talk about the budget

            First, the good news: Despite the dark clouds forming on the horizon, the Legislature’s Rainy Day Fund has a balance of almost $10 billion, and last session’s budget writers left at least $4 billion unspent this biennium.

            Now, the bad news (note that this paragraph is much, much longer than the one on “good news”). For starters, the projected budget surplus of more than $4 billion is misleading because only around $600 million of that is true general revenue not dedicated to a specific purpose. Second, oil and gas prices continue to hover well below the estimated prices used in the previous budget and overall sales tax receipts have been decreasing for the past several months, which means projected revenues are almost certain to fall short of the estimates used to arrive at that $4 billion cushion. Third, that nest egg will be further eroded when the next legislature has to write checks to cover end-of-year expenses that were not budgeted for, such as Medicaid cost growth and natural disaster recovery, which could combine to exceed $1 billion. In addition, you might have noticed that our state’s population continues its rapid growth, putting further strain on the state’s roads, schools, and related infrastructure. And finally, the budget writers could be on the hook for several large judgments and future lost revenue if the state loses pending litigation involving school finance (up to $10 billion this biennium), foster care (up to $100 million annually), oilfield pipe and equipment sales taxes ($4+ billion in initial refunds plus $500 million annually thereafter), and movie theater franchise taxes ($4+ billion in initial refunds and $1.5 billion per year after that—although that case probably won’t be finalized before the end of this session).

            Keep all this in mind when you consider coming to Austin to seek funding for some pet project next session. That’s not to say that such a task is impossible, we just don’t want anyone eating the cheese about how many billions of dollars the state has at its disposal next session.

 

Funding for public integrity prosecutions

            OK, we can’t finish this update on such a depressing note, so let’s wrap up with two more positive news items on the financial front.

            When the Legislature passed HB 1690 to move the prosecution of some public integrity cases to a politician’s home jurisdiction, it also included $500,000 for the biennium to cover the “extraordinary costs of prosecuting an offense against public administration.” Last week, we spoke to the Comptroller’s Office and learned that no one has yet asked for reimbursement for such expenses. (That may be because the venue provisions of HB 1690 did not actually take effect until December 1, 2015, so it’s possible there have not been any qualifying cases to investigate or prosecute yet.) Therefore, consider this your reminder that if you are investigating or prosecuting an eligible case against a public official (see the list of offenses HERE) under the new Public Integrity Unit statute (Government Code §411.0251, et seq.), you can be reimbursed for things such as your travel, investigator travel, and witness travel. Call Leonard Higgins, chief of the Judiciary Section, Comptroller’s Department, at 512/936-6100, for more details.

 

Free TxDOT book mail-out

            TDCAA will soon be shipping free copies of the 2017 edition of Punishment & Probation to all prosecutors in Texas, courtesy of grant funds from the Texas Department of Transportation. Punishment & Probation, first published in 2014, has been updated with the latest statutes (from the 2015 session) and caselaw from the U.S. Supreme Court and Texas courts.

            Note that the law governing probation will change in a significant way on January 1, 2017. The legislature has rewritten Texas’ long-standing probation statute (Code of Criminal Procedure art. 42.12) into a new Chapter 42A of the Code of Criminal Procedure. While the recodification through HB 2299 was intended to be nonsubstantive, getting used to the new numbering scheme and reorganization will take some time. Therefore, we wanted to get the 2017 edition in your hands in time to familiarize you and your staff members with the changes. The book includes references to the old art. 42.12 provisions (effective through December 31) and new Chapter 42A provisions (effective January 1, 2017). A disposition chart on pages 125–128 of the book shows the relationship between the old art. 42.12 provisions and the new Chapter 42A provisions.

            If you have questions about the shipment, please contact Sales Manager Jordan Kazmann.

 

Quotes of the month

“It’s a really strange phenomenon. We sometimes refer to April as the beginning of the killing season.”
            —Heidi Beirich, domestic terrorism expert, in an article detailing why certain historical dates in April are attractive to some domestic mass murderers.

 

“Writing a balanced and disciplined budget that appropriately funds our top priorities is going to be a significant challenge.”
            —House Speaker Joe Straus (R-San Antonio), in a letter to members of the House Appropriations Committee, cautioning them about the impending challenges they face next session.

 

“The numbers do go up and down. We’re a long way from the ’80s.”
            —Capt. Dwayne Ready, a homicide detective with Houston PD, commenting upon the latest crime rate numbers that show Texas holding relatively steady at historic lows.

 

“There is an ironclad rule of politics: No funny hats.”
            —Senator Ted Cruz (R-TX), Republican candidate for president, invoking the “Dukakis Rule” when refusing to don a cheesehead hat at a campaign stop in Wisconsin.

 

“Lucifer in the flesh. I have Democrat friends and Republican friends. I get along with almost everyone, but I have never worked with a more miserable son of a bitch in my life.”
            —Former U.S. House Speaker John Boehner (R-OH), giving a frank opinion of Senator Cruz during a discussion of the current presidential field.

 

“Who in the world would have ever thought that the Legislature would intend to allow handguns to be carried in a psychiatric hospital? Anybody who thinks we should have guns there deserves to be in the institution.”
            —Steve Wolens, former state representative (D-Dallas), on the loophole discovered this past year that prohibits state mental institutions from barring entry to LTC holders who want to carry in those facilities.

 

“I feel based on my religion and what’s instructed in the Bible, it’s a God-given right.”
            —Defendant Jason Tarango, explaining to an Ector County jury why he believed he should be acquitted of state jail felony possession of marijuana charges. In response, the jury handed down a maximum two-year sentence.

 

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