Has asset forfeiture reform been ‘Trumped’?
As you probably know by now, President Trump met with representatives from the National Sheriffs Association this week and during that meeting, Rockwall County Sheriff Harold Eavenson made some off-hand comments about an un-named Texas state senator pushing asset reform legislation in Austin that drew an emphatic response from the president. This immediately created a firestorm of speculation in Austin and denials from various state senators that they were the target of his ire, following by hurried responses from asset forfeiture reformers that they intend to double-down on their efforts both in Austin and in Washington. Regardless of your position on the issue of asset forfeiture, it was first-class political theater.
Entertainment value aside, though, you might be wondering what this means for the fate of that issue in Austin this session. Frankly, that’s hard to divine right now. On one hand, not many GOP legislators are eager to bow up to the new president on such a fringe issue, and the confirmation of Jeff Sessions (R-AL) as the next U.S. Attorney General has many observers in D.C. speculating that the federal asset forfeiture efforts may increase with renewed vigor due to General Session’s long-standing affinity for that law enforcement tool. On the other hand, State Sen. Konni Burton (R-Colleyville), one of the primary advocates for forfeiture reform in Texas, was a dyed-in-the-wool Ted Cruz supporter during the presidential campaign and has made no secret of her dislike of the current Commander-in-Chief or her intention to continue to press ahead on this issue in Austin. In addition, pro-reform libertarian-leaning groups like Right on Crime are financially supported by some very wealthy benefactors who were also rainmakers for the Trump campaign and have direct access to the new president, and they are probably scurrying to D.C. to try to convince him to walk back his comments on forfeiture as you read this. It’s even possible that this little tempest could put some wind behind the reformers’ sails if other state senators feel that they need to circle the wagons around one of their own who has been (anonymously) attacked. Then again, the president’s comments may make some members of the House leadership even less inclined to support a policy position pushed by fellow party members who have spent the recent interim and election season repeatedly attacking them on other issues.
Whew! We are exhausted just thinking about all of that. Who needs to watch House of Cards when the Texas Legislature is in session, eh? Anyway, we hope this answers some of your questions on this issue, and we will continue to keep you posted on this issue as it changes. (P.S. If you want to watch the complete discussion of this topic at the Washington meeting, here is a five-minute clip from C-SPAN that gives you a little more context, including further encouragement from the president on the general subject of forfeiture.)
House committee assignments
Speaker Straus released his committee assignments on Wednesday (and then probably went into the witness protection program for a few days to avoid any House members with hurt feelings). A few weeks ago, we told you how important committee assignments are in the legislative process and how important it is that you cultivate (and use) a positive relationship with any of your local legislators who are on committees that affect your business. If you have a good relationship with anyone on these committees listed below, you can impact legislation without even leaving the comfort of your office—but only if you stay informed and act when appropriate. And remember, empowering you to take advantage of those opportunities is the purpose of these weekly updates!
Appropriations: Zerwas (R-Richmond), chair; Longoria, vice-chair; Ashby, G. Bonnen, Capriglione, Cosper, Davis, Dean, Dukes, Giddings, L. Gonzales, M. Gonzalez, Howard, Koop, R. Miller, Munoz, Perez, Phelan, Raney, Roberts, J. Rodriguez, Rose, Sheffield, Simmons, VanDeaver, Walle, Wu.
Calendars (they decide which bills get to the floor): Hunter (R-Corpus Christi), chair; Howard, vice-chair; Alonzo, Ashby, Cook, S. Davis, Geren, Giddings, Kacal, K. King, Koop, Nevarez, Paddie, Phelan, Rose.
Corrections: White (R-Hillister), chair; Allen, vice-chair; S. Davis, Romero, Sanford, Schaefer, Tinderholt.
Criminal Jurisprudence: Moody (D-El Paso), chair; Hunter, vice-chair; Canales, Gervin-Hawkins, Hefner, Lang, Wilson.
Homeland Security & Public Safety: P. King (R-Weatherford), chair; Nevarez, vice-chair; Burns, Hinojosa, Holland, J. Johnson, Metcalf, Schaefer, Wray.
Judiciary & Civil Jurisprudence: Smithee (R-Amarillo), chair; Farrar, vice-chair; Gutierrez, Hernandez, Laubenberg, Murr, Neave, Rinaldi, Schofield.
Juvenile Justice & Family Issues: Dutton (D-Houston), chair; Dale, vice-chair; Biedermann, Cain, Moody, Schofield, Thierry.
One other important thing to mention about House committee assignments: If you have a bill you’ve been wanting to file but you haven’t yet found someone to carry it, TIME IS A-WASTIN’! Get it in the hands of a member of the committee to which you think it will be referred ASAP—and if you need help in that regard, contact Shannon.
Senate Finance news
This week, the Senate Finance Committee took testimony on Article IV (the Judiciary). The discussion was uneventful; even with a predicted budget shortfall, the committee members didn’t seem inclined to take it out on the branch of government that only accounts for about 0.5 percent of the entire state budget. The Committee appears well on its way to restoring the mandated 4 percent cuts in the baseline budget, so it’s likely no judges or prosecutors will be taking a state pay cut. The committee members also listened politely when the Office of Court Administration passed along the Judicial Compensation Commission’s recommendation of a district judge pay raise of 10.2 percent (from $140,000 to $154,280). And they didn’t even blink an eye when Court of Criminal Appeals Presiding Judge Sharon Keller, chairwoman of the Texas Indigent Defense Commission, requested that the state take over funding all of indigent defense to the tune of an additional $248 million a year (the state picks up only about 12 percent of the cost statewide right now). Now, don’t confuse that politeness for widespread agreement—oftentimes, when someone floats an idea at the Capitol and no one bothers to object, it’s because the idea is already dead—but it is too early to be gloomy, so let’s see what the House does!
Senate Bill 4: Sanctuary cities
The Senate has sent SB 4, the sanctuary cities ban, to the House for its consideration. There were dozens of amendments and a lot of floor debate, but the result for every amendment and for the final version of the bill was the same as the committee hearing: a party-line vote (20-11), again and again and again and again.
Among the many changes made to the bill on the Senate floor was the inclusion of a Class A misdemeanor for any local official who “adopt[s], enforce[s], or endorse[s] a policy … discouraging the enforcement of immigration laws.” We don’t know about you, but we’re thinking any crime for “endorsing” a policy is flat-out unconstitutional under the First Amendment. That point was raised during the debate but the Senate majority ignored it and plowed forward, while the governor Tweeted his approval of that language and expressed his hopes that it would lead to the removal of any local official convicted of that offense. Unfortunately, this new crime/removal law amendment now puts SB 4 back on our radars, so we’ll be spilling more electronic ink on it as the House takes it up (Just when we thought we were out, they pull us back in!). The bill is expected to pass the House and eventually be sent to the governor’s desk, but things will move much more slowly there.
The House and Senate leadership seem to agree on very little nowadays, but one idea that both the Speaker and Lite Guv favored before they became “the leadership” was doing away with straight-ticket voting for judges. This issue was also highlighted by Chief Justice Hecht’s State of the Judiciary Address last week, so it might be something that gets some traction this session (but only if someone can pry those straight-ticket ballots from the cold, dead hands of the local party apparatchiks who survive on them). So far, the only bill filed on this topic is HB 433 by Simmons (R-Carrollton), which would end all straight-ticket voting. However, it is possible that HB 433 or another bill could be limited to judicial races, which raises an interesting questions: Should prosecutor races also be exempt from straight-ticket voting? If you haven’t thought about that possibility, now might be a good time to do so. Unexpected opportunities/challenges always arise in the midst of a legislative session, so it’s good to think ahead and be prepared for those possibilities. If you have an opinion on this topic, let us know!
We are 5/20ths of the way through the 85th Regular Session of the Texas Legislature. (That reduces to 1/4th completion, for those of you who aren’t very mathy.) They key thing to know about this mile marker is that if you don’t get your bill draft idea into a legislator’s hands by next Friday, the chance of it becoming law is rapidly approaching 0.0 percent. We know the bill filing deadline is not for another four weeks, but trust us on this one.
Elsewhere … House committee members will start to get to know each other, meaning it will be at least another week or two before they consider bills, and the House Appropriations Committee will start its overview of the state budget, while the Senate Finance Committee will wrap up its initial review and then start working on article mark-ups in smaller groups.
The only non-budget committee hearing posted for next week is:
MONDAY, FEBRUARY 13
Senate State Affairs Committee, 8:00 a.m., Senate Chamber
SB 44 by Zaffirini regarding signature requirements for certain judicial office races
SB 46 by Zaffirini allowing judges to use juror ID numbers when polling the jury
SB 378 by Perry allowing JPs to exchange benches for inquest purposes
(Note: These committee hearing notices will get very long in the near future, so our practice is to only list bills of greatest interest to our members; for the full agenda—including hyperlinks to the bills themselves—click on the link to the committee itself.)
New bills to watch
We are four weeks away from the bill filing deadline. More than half of all the bills to be filed this session will be filed during this upcoming period. (Gulp.) Here’s a taste of what dropped this week:
HB 1554 by Lozano revising the elements of human smuggling (suggested by Kleberg Co. DA John Hubert)
HB 1588 by Lozano exempting certain firefighters and peace officers from jury duty
HB 1592 by Bohac making assault of a teacher a third-degree felony
HB 1601 by Lozano expanding bond eligibility for parole violations
HB 1676 by White creating a statewide capital appellate public defender office
HB 1714 by Reynolds permitting defense counsel in the grand jury
SB 761 by Menendez authorizing deferred adjudication for certain DWI-1st offenders (suggested by Comal Co. CDA Jennifer Tharp and Bexar Co. CDA Nico LaHood)
SB 762 by Menendez relating to family violence findings in certain animal cruelty cases
To follow along with us during the week as more bills are filed, check our live tracking updates on the Legislative page of our website. If you are curious to know exactly what bills we are tracking under any other category, email Shannon and he can send you a list that will include hyperlinks to each bill’s text online.
NDAA work on encryption problem
The National District Attorneys Association (NDAA) has been very involved with federal, state, and local partners to address the “going dark”/smartphone encryption problem that has hampered the ability of law enforcement and prosecutors to access crucial electronic evidence for investigative purposes. As part of that effort, NDAA has participated in a technical working group in partnership with the National Domestic Communications Assistance Center (NDCAC) to develop a statistics collection tool to quantify the “going dark” problem. This tool captures data on how many phones encountered are encrypted, the types of cases impacted, and the response time if relevant from service providers to respond to legal process. To quantify that problem and present data to members of Congress, we need more jurisdictions to participate in submitting data. If you or your local agencies are willing to participate in this data collection initiative and submit information on phones encountered in your jurisdiction, please contact NDAA Director of Policy, Nelson Bunn, at [email protected].
Who wants to be on TV?
Wolf Films (Law & Order and Cold Justice), in partnership with Emmy Award-winning production company Shed Media, is producing a new documentary TV series for NBCUniversal’s Oxygen Channel profiling successful investigations that led to a confession from the perpetrator of the crime. The goal of the show is to highlight skilled law enforcement and their investigations that led to the perpetrator telling the truth about their crime. They are focusing on convictions in which there is a videotaped confession. They are currently seeking cases, investigators, and prosecutors to highlight on their new program. If you know of any appropriate cases that you think would be a great example of investigative work to showcase on their program, or if you have any further questions about this project, please contact Josh Kirschner at [email protected], or 323/904-4680, ext. 1052.
Speaking of asking for favors: We are still three prosecutors short of having a full volunteer rotation in Austin this session. Please call or email Shannon for more information about our session volunteer program.
Quotes of the month
“In November, many good judges lost solely because voters in their districts preferred a presidential candidate in the other party. … Such partisan sweeps are demoralizing to judges and disruptive to the legal system. But worse than that, when partisan politics is the driving force and the political climate is as harsh as ours has become, judicial elections make judges more political, and judicial independence is the casualty.”
—Chief Justice Nathan Hecht, advocating for an end to straight-ticket judicial elections in his State of the Judiciary Address.
“Mr. President, on asset forfeiture, we’ve got a state senator in Texas that was talking about introducing legislation to require conviction before we can receive that forfeiture money, and I told him that the cartel would build a monument to him in Mexico if he could get that legislation passed.”
—Rockwall County Sheriff Harold Eavenson, during a White House panel discussion between the president and the National Sheriffs Association on border security.
“Can you believe that? Who’s the state senator? Want to give his name? We’ll destroy his career. [Everyone in room laughs]”
—President Trump, in reply to Eavenson (same link as above).
“I will not be discouraged nor deterred. The moment for reform of our system of asset forfeiture has arrived.”
“When you come in brand new, it’s like that high school student that comes to college and wants to talk about how great they were in high school. That’s the way most of the new members who spout term limits sound like. If the whole Congress was made up of people like this, nothing would get done.”
—Former U.S. Sen. Ted Kaufman (D-DE), on why he thinks Congressional term limits are a bad idea.
“Our drunks are drunker than the statewide average. … Everybody knows the person who is slightly buzzed as opposed to the commode-hugging drunk. The commode-hugging drunk seems to be what we have a lot of in Montgomery County.”
—Montgomery County DA Brett Ligon, in an article discussing the data behind DWI enforcement in his county.