[* - we got a week ahead of ourselves two weeks ago--call it wishful thinking--but we're back on track now.]

Posted: Friday, April 5, 2013

            Our prayers are with the men and women of the Kaufman County Criminal DA’s Office as they struggle to comprehend the unthinkable.   We pray with them and for them, and we ask all our members to re-commit themselves to courageously doing the job that must be done. 

          Responses to events in Kaufman County.  One problem with our part-time legislature is its difficulty in responding to current events that don’t conveniently happen prior to various bill-filing deadlines. As a result, we often see incomplete bills filed on the fly while other problems go unaddressed.  Among the bills filed in response to the Kaufman County cases are:

HB 1845 by Gooden explicitly making murder of an elected prosecutor a capital crime

HB 2063 by Gooden authorizing prosecutors to openly carry handguns

HB 2147 by Hilderbran authorizing county officers/employees to carry concealed in a courthouse

HB 3134 by Lucio III explicitly making murder of an elected prosecutor a capital crime

Regardless of the merits of these proposed policies, all of these bills have drafting errors or other problems that must be fixed before they pass.  But the question for prosecutors is, even if they are fixed, do these bills make you and your staff feel safer?  And if not, what else needs to be done?  We hear many prosecutors are ramping up local security efforts, but if you have an idea for a legislative change needed to make that happen, contact Shannon ASAP to discuss it in greater detail.

            In addition to legislative solutions, some prosecutors have asked what they can do for their fellow prosecutors in Kaufman County.  TDCAA’s board of directors met today to discuss various issues related to that question and it appears that their neighboring prosecutors and members of our board of directors are going to provide any direct assistance they may need.  But if you are still seeking a way to channel that compassionate impulse, the board adopted a resolution today encouraging prosecutors to donate funds to the Kaufman County CrimeStoppers reward currently being offered in these murder investigations.  Bexar County Criminal DA Susan Reed has already donated $10,000 from her asset forfeiture funds—which is a discretionary expenditure permitted as an “official purpose” of a prosecutor’s office under CCP Art. 59.06(d-2)(1)(A)—and other prosecutors are doing the same.  Anyone interested in making contributions to that cause should visit http://www.kaufmancountycrimestoppers.org/ or call 877-847-7522 and ask for Ms. Tassie Gamble, president of the local CrimeStoppers chapter.

          House passes a budget.  Yesterday, the House gave preliminary approval to Senate Bill 1, the state budget.  There were a few fireworks during the 12-hour deliberation, but not as many fights as in past sessions.  The key point we drew from the floor debate is that none of the fights had much to do with prosecutors, and that is a good thing.  It was a timely reminder of the wisdom of seeking funding from local sources rather than the state government, if for no other reason than it spares you the agony of the unpredictable state budget process.  Next, SB 1 will go through some procedural motions and then head to a conference committee where differences between the two bills will be hashed out behind closed doors.  The outcome of those negotiations won’t be known for another month or so.

          Discovery reform is still reforming.  One thing that makes the Legislature entertaining is its unpredictability.  For instance, the latest version of SB 1611 by Ellis (D-Houston) and Duncan (R-Lubbock), now titled “The Michael Morton Act,” was passed out of committee and sent to the Senate floor with an understanding that language protecting victim/witness information still needed to be settled upon.  The problem is, that has not happened, but the bill is scheduled to be debated on the Senate floor on Monday anyway.  That could lead to some fireworks on the Senate floor between the bill’s authors and Senator Joan Huffman (R-Houston), a former prosecutor and judge who is seeking to add her own language protecting that information from distribution to third parties or the public.  We’d be lying if we told you we knew how it was all going to shake out, but if you need more information before you make a recommendation to your own senator(s), contact Rob Kepple for additional background.

          Floor action.  Other than the state budget bill, the House failed to debate or pass anything that is on our radar as being a priority.  Across the dome, the Senate is churning out the sausage at a much faster pace.  This week, the Senate sent the following bills to the House:

SB 122 by Jose Rodriguez authorizing the removal from office of ISD trustees

SB 152 by Nelson creating a duty to disclose certain abuse that an adult suffered as a child

SB 213 by Whitmire, the TDCJ sunset bill

SB 270 by Seliger authorizing certain defense lawyers access to juror information

SB 275 by Watson increasing the penalty for hit-and-run fatalities to a second-degree felony

SB 299 by Estes narrowing the offense of unintentional display of a concealed handgun

SB 393 by West restricting the ability to cite students for certain Class C misdemeanors

SB 987 by Hegar requiring the AG to enjoin local gov’ts from adopting certain firearm regulations

SB 1238 by Hinojosa revising the duties and authority of the Forensic Science Commission

SJR 13 by Eltife imposing term limits on certain statewide officeholders

These bills will now be referred to House committees, where they will sit for a few weeks before being set for hearings in those committees.

          Upcoming floor calendars.  Notice of floor debates is sporadic and subject to change at any moment, so follow along by checking the latest House General Calendar or Senate Intent Calendar on your own.  As for next week, the House will slowly recover from its budget debate by considering various bills that are unlikely to interest you, so we will spare you that list.  In the Senate, bills that could be debated next week include:

SB 262 by Huffman relating to the reporting of criminal disposition completeness data

SB 966 by West creating a new commission to regulate various court-related non-legal professions

SB 1611 by Ellis/Duncan mandating open-file discovery in criminal cases

If you have questions about the House or Senate bills up for floor debate, contact Shannon.

          Committee recap.  The following bills were favorably voted out of a House committee this week: 

HB 21 by Martinez Fischer creating a family violence offender registry

HB 385 by S. Thompson allowing counties to self-insure certain officeholder bonds

HB 517 by Pitts limiting parole eligibility for intoxication-offense sentences of 25 or more years

HB 928 by Krause banning local & state officials from enforcing certain federal firearms laws

HB 1076 by Toth banning local & state officials from enforcing certain federal firearms laws

HB 1314 by Creighton banning local & state officials from enforcing certain federal firearms laws

HB 2443 by Parker changing the composition of the Texas Juvenile Justice Board

            Across the dome, Senate committees approved the following bills:

SB 263 by Huffman expanding synthetic cannabinoids (PG 2-A) and analogues

SB 264 by Huffman relating to synthetic hallucinogens (PG 2)

SB 336 by Jose Rodriguez relating to the qualifications for appointment as a medical examiner

SB 670 by Whitmire authorizing defense lawyers to copy juvenile prosecutors’ files

SB 727 by L. Taylor making burglary with intent to commit sexual assault a 3g offense

SB 743 by Nelson creating an offense for repeated violations of a protective order/bond condition

SB 745 by Nelson relating to Crime Victims’ Comp and sexual assault victims’ services

SB 826 by Whitmire relating to notice of civil commitment

SB 970 by Huffman relating to the execution of a search warrant for DNA

SB 1173 by West authorizing post-confinement probation for state jail felons

SB 1363 by Huffman limiting the immunity that can be granted to legislative witnesses

To read these bills, go to the Texas Legislature Online.  Remember, House bills voted out of their initial committee must then be approved for debate by the secretive House Calendars Committee, so if you want a bill to be—or not be—debated, reach out to any friendly House members you know on that committee.  In the other chamber, the Senate employs its traditional two-thirds rule to decide which bills senators will debate.  If you have questions about how that works, contact Shannon and he can explain it.

          Upcoming hearings.  If you thought committees had heard some bad ideas before this week, just wait until you get a load of this list!  Check out next week’s list of bills being considered in committee and then think about coming down to testify for/against them or weighing in with any of your local legislators who are on those committees (remember, this is a partial list):

Monday, April 8

House Judiciary & Civil Jurisprudence (2:00 p.m. or upon adjournment, Room E2.012) 

HB 1245 by Syl. Turner allocating money from the judicial and court personnel training fund

HB 1282 by Syl. Turner permitting defense lawyers to copy juvenile prosecutors’ files

HB 1512 by Lewis authorizing ADR/mediation in certain criminal cases

HB 1847 by Carter requiring elected prosecutors’ annual CLE to include Brady/misconduct training

HB 3153 by Lewis creating various county courts-at-law and district courts

Tuesday, April 9

Senate Business & Commerce (8:00 a.m., E1.016) 

SB 236 by Hinojosa expanding hours for the sale of liquor (including Sundays)

SB 1034 by Carona creating a criminal penalty for unauthorized use of a liquor license 

House Criminal Jurisprudence (10:30 a.m. or upon adjournment, Room E2.016) 

HB 60 by Guillen creating “Caylee’s Law” in Texas (failure to report missing/dead child)

HB 319 by Dutton banning the death penalty for someone convicted as a party

HB 330 by Riddle allowing certain extraneous offenses to be admitted in a child sex crime

HB 439 by Dutton restoring various rights to a person convicted of a crime

HB 734 by Murphy enhancing certain penalties for repeat/habitual misdemeanants

HB 820 by Taylor fixing a (non-existent?) loophole in the child porn offense

HB 990 by S. Thompson creating a decennial state commission to revise criminal laws

HB 1258 by Zedler creating a (weird?) stacking law for certain evading with a vehicle crimes

HB 1292 by Anchia relating to protective orders for certain sex/stalking/trafficking offenses

HB 1425 by Moody adding pets to the definition of property under the stalking law

HB 1436 by Lucio III mandating minimum jail terms for certain FV sentences/probations

HB 1562 by Harless relating to notice provided when a bail bond surety is in default

HB 1667 by Carter restricting the release on personal bond of certain repeat burglars

HB 1713 by Lozano reimbursing property owners for damage from certain criminal acts

HB 1845 by Gooden making capital murder of an elected prosecutor a capital crime

HB 1862 by Dutton legalizing switchblade knives in Texas

HB 2219 by Wu expanding the punishment for attempted murder

HB 2227 by Wu authorizing telephonic search warrants

HB 2258 by Moody making confidential certain witness names listed in an indictment

HB 2268 by Frullo relating to search warrants for certain electronically-stored information

HB 2403 by M. Gonzalez expanding the “Romeo & Juliet” defense to same-sex offenses

HB 2541 by Villalba enhancing FV offenses and mandating prison time for FV felony probations

HB 2587 by Justin Rodriguez relating to conditions placed on graffiti offenders

HB 2595 by Parker relating to restitution liens

HB 2653 by Allen authorizing probation officers to impose intermediate sanctions

HB 2678 by Moody relating to certain offenses in immigration detention facilities

HB 2803 by Toth mandating probation for a person’s first three state jail felony convictions

HB 2988 by Canales requiring prosecutors to discover, identify, and disclose exculpatory information

HB 3062 by Herrero creating “Caylee’s Law” in Texas (failure to report missing/dead child)

HB 3240 by Phillips creating an offense for delivering certain controlled substances to kids

HB 3334 by Hughes requiring all grand jury testimony to be recorded

HB 3336 by Hughes requiring judges to make various findings in drug cases

HB 3632 by Canales mandating rehab/education programs for certain minors

HB 3815 by Carter suspending a driver’s license upon a 5th DWI conviction

House Human Services (10:30 a.m. or upon adjournment, E2.030)

HB 1396 by S. King requiring the collection of data relating to drug babies

HB 1947 by Burkett relating to the criteria for mental illness commitments

HB 2038 by Dukes relating to disproportionality and disparities in juvenile justice, etc.

HB 2495 by Parker relating to reporting child abuse/neglect at schools, etc.

HB 2620 by Collier creating a domestic violence task force

House Licensing & Administrative Procedures (11:00 a.m. or upon adjournment, E1.010)

HB 1012 by S. King creating a SJF offense for providing alcohol to a minor who injures another

HB 1013 by S. King expanding civil liability for providing alcohol to a minor who injures another

HB 1020 by Reynolds relating to alcohol programs for certain minors

Senate Criminal Justice (1:30 p.m. or upon adjournment, Room 1.016)

SB 357 by Hinojosa relating to protective orders for certain sexual/stalking/trafficking offenses

SB 834 by Estes making confidential the names of grand jurors

SB 892 by Carona creating defenses for certain OAG and US Attorney prosecutors with CHLs

SB 893 by Carona relating to the conditions of and penalties for violating certain protective orders

SB 991 by West expanding the release of inmates on medical parole

SB 1052 by Carona relating to search warrants for certain electronically stored information

SB 1292 by Ellis mandating pre-trial DNA testing of all biological material in a capital case

SB 1316 by Whitmire expanding the “Romeo & Juliet” defense to same-sex offenses

SB 1522 by Hegar authorizing bonds for parole violators pending their hearings

SB 1839 by Whitmire relating to the detention of certain juveniles in adult facilities

Senate Jurisprudence (1:30 p.m. or upon adjournment, Room 2E.20)

SB 915 by West relating to the automatic sealing of certain juvenile records

SB 1419 by West relating to funding for juvenile case managers 

Wednesday, April 10

House Corrections (2:00 p.m. or upon adjournment, E2.010)

HB 1234 by Price limiting eligibility for early release for injury to a child/elderly/disabled

HB 1992 by W. Smith relating to inmate transfers following pronouncement of sentence

HB 2289 by Price, the TDCJ sunset bill

HB 2862 by McClendon relating to various procedures involving juveniles

Thursday, April 11

House Select Committee on Criminal Procedure Reform (10:30 a.m. or upon adj., E2.028)

HB 2804 by Toth creating a commission to study certain penal laws

Note that these committees may be hearing other bills that are not listed here and that these lists may change with little notice.  Also, hearing notices for the House County Affairs Committee and the House Homeland Security and Public Safety Committee (which meet on Thursday mornings) are not usually received until after this update is distributed.  Therefore, be sure to check all the applicable committee pages on the Texas Legislature Online.  The bills listed above are available for review on that same website, or you can contact Shannon for more details about an individual bill (but please don’t contact him without first reading the bill itself!).

          Quotes of the week.  A few laughs, but mostly tears this week.

“I think the individuals in North Korea understand that Austin, Texas, is now a very important city in America, as do corporate CEOs and other people who are moving here in record numbers.”
            —Governor Perry, after North Korea allegedly included Austin on its list of nuclear missile targets.

“If everyone would take a deep breath and remember that the whole world sucks, America sucks less, and Texas during the deer season doesn’t suck at all.”
            —Ted Nugent, musician, testifying at the Capitol on a bill relating to deer breeding and hunting.

“People were talking about how he might be next.  But he wasn’t just going to hunker down someplace and hide.  He was going to do his job.”
            —Darrell Boltin, former grand juror in Kaufman County, providing a fitting epitaph for Kaufman County Criminal DA Mike McLelland. 

“In this day and age, whether it’s Gabby Gifford or a local county attorney, everybody has to be more attentive to security issues.”
            —State Rep. Phil King (R-Weatherford), commenting upon the recent events in Kaufman County. 

“Those of us who have been in the courtroom seeking justice carry an especially heavy heart … we’re wearing black ribbons on our lapels to honor the memory of those fine folks who have given so much to Kaufman County. … May they rest in peace, and may those who took them from us be brought to justice.”
            —State Rep. Joe Moody (D-El Paso), calling for a moment of silence on the floor of the Texas House yesterday.  Rep. Moody joined State Reps. Gene Wu (D-Houston), Naomi Gonzalez (D-El Paso), Justin Rodriguez (D-San Antonio), and Stefani Carter (R-Dallas) and State Sens. Joan Huffman (R-Houston) and Jose Rodriguez (D-El Paso) in wearing black ribbons in memory of the Kaufman County victims.  All seven are former TDCAA members. 

“The people in my line of work are going to have to get better at it because they’re going to need it more in the future.”
            —Kaufman Co. Criminal DA Mike McLelland, discussing how he handled the dangers of his job in an interview with the Associated Press a few days before his own death.

Posted: Friday, March 22, 2013

            We have (only?) 66 days left in this regular session.  Things are about to get serious, as you will see from the committee hearing notices below.  Not exactly any disasters of Biblical proportions yet, but we’ll let you know when something merits mass hysteria.  Meanwhile, here’s the scoop from the past week and a peek forward to next week.

         Speaking of dogs and cats living together ...  As we told you last week, both the House Criminal Jurisprudence and Senate Criminal Justice Committees will hold hearings on discovery reform on Tuesday (3/26).  The bill numbers are HB 1426 by Moody (D-El Paso) and SB 1611 by Duncan (R-Lubbock) and Ellis (D-Houston).  (Oh, and HB 1625 by McClendon, but you can probably forget about that one.)  You could look up these bills online for details, but there are likely to be new, as-yet-unrevealed committee substitutes that dramatically change most or all of the language in the bills.  Therefore, we are going into the committee meetings on Tuesday still uncertain of what will be discussed or who will be on what side of which issue.  (Crazy way to make policy, ain’t it???)  If you have questions about any of this, contact Rob.  And in case you are wondering, we no longer take off weekends, so you don’t have to wait until Monday if you don’t want to.

         Halfway there!  The following bills have been approved by the Senate and now head across the dome for consideration by the House, where the same referral/committee hearing/committee vote/floor debate/floor vote process must occur again before the bill can be sent to the Governor:

SB 36 by Zaffirini relating to the detention and transportation of persons with mental illness

SB 68 by Nelson relating to the waiting period before human remains may be cremated

SB 222 by Watson expanding venue for certain computer crimes

SB 245 by West relating to the operation of child advocacy centers

SB 270 by Seliger permitting writ lawyers to access certain juror information from trial

SB 391 by West extending a defendant’s obligation to pay beyond the expiration of his probation

SB 484 by Whitmire creating a prostitution prevention program (mandated in larger counties)

SCR 12 by Schwertner designating pecan pie as the official State Pie of Texas

SJR 13 by Eltife imposing term limits on non-judicial statewide elected officials

The House has yet to pass any bills that affect your business, but that will end next week.

         Committee recap.  The following bills were favorably voted out of committee: 

HB 32 by Menendez increasing penalties for certain prostitution-related crimes

HB 434 by Riddle authorizing EMTs to draw mandatory blood in DWI investigations (Ch. 724)

HB 516 by Pitts allowing DWI blood search warrants to be executed in contiguous counties

HB 1658 by P. King requiring arrest and collection of a blood sample in certain DWI cases

HJR 42 by Larson imposing term limits on legislators and certain statewide non-judicial officers

SB 213 by Whitmire continuing the functions of TDCJ and BPP (sunset bill)

SB 262 by Huffman relating to reporting criminal history dispositions

SB 275 by Watson increasing the penalty for FSRA w/ fatalities to a 2nd-degree felony

SB 767 by Dan Patrick authorizing DNA collection upon conviction for jailable misdemeanors

SB 1238 by Hinojosa expanding the duties of the Texas Forensic Science Commission

To read these bills, go to the Texas Legislature Online.  Remember, House bills voted out of their initial committee must then be approved for debate by the secretive House Calendars Committee, so if you want a bill to be—or not be—debated, reach out to any friendly House members you know on that committee.  In the other chamber, the Senate employs its traditional two-thirds rule to decide which bills senators will debate.  If you have questions about how that works, contact Shannon and he can explain it.

         Floor debates.  Now that bills are being approved by committees and sent on for consideration by the full House or Senate, we’ll try to update you on what they will be considering.  That is an inexact science due to the limited posting rules they must follow, but we’ll do the best we can.  For instance, on Tuesday the House will take up and consider HB 281 by Lucio III to grant to a family member of a peace officer killed in the line of duty the right to orally address the court before any plea bargain is reached in the resulting criminal case.  Other than that, though, we don’t have any information on House floor bills.

            In the Senate, bills that could be debated next week include:  SB 12 by Huffman (extraneous sex crimes admissible at trial), SB 188 by Huffman (expanding wiretaps), SB 344 by Whitmire (authorizing subsequent writs based on scientific evidence), and SB 825 by Whitmire (toughening prosecutor grievance procedures).  If you have questions about the House or Senate bills up for floor debate, contact Shannon.

         Upcoming hearings.  Check out next week’s list of bills being considered in committee and then weigh in with any of your local legislators who are on those committees (and remember, this is a partial list).  There are some controversial bills up next week, so don’t snooze through this list!

Monday, March 25

House Elections (11:00 a.m., E2.028) 

HB 728 by Price making a person with a prior felony deferred adjudication ineligible for office

House Judiciary & Civil Jurisprudence (2:00 p.m. or upon adjournment, E2.012) 

HB 1043 by Lewis relating to the unauthorized duplication of certain recordings

HB 1366 by Lucio III revising certain procedures in juvenile and family law cases

House Pensions (2:00 p.m. or upon adjournment, E2.026) 

HB 2432 by Murphy relating to theft from certain public retirement systems

HB 1577 by V. Taylor limiting retirement benefit eligibility after conviction for certain offenses

HB 1467 by Sheets limiting retirement benefit eligibility after conviction for certain offenses

Senate Ag, Rural Affairs, & Homeland Security (2:30 p.m. or upon adjournment, E1.012)

SB 987 by Hegar requiring the AG to sue local governments that try to regulate firearms, etc.

SB 1395 by Estes relating to the regulation of dangerous wild animals

Tuesday, March 26

House Transportation (8:00 a.m., Room E2.012)

HB 1294 by Price relating to the dismissal of charges for failure to have/use a child safety seat

HB 2741 by Phillips relating to the county regulation of motor vehicles

HB 3048 by Phillips creating remedies for nonpayment of certain tolls

House Human Services (8:30 a.m., Room E2.030)

HB 1205 by Parker revising and expanding the offense of failure to report child abuse/neglect

House Criminal Jurisprudence (10:30 a.m. or upon adjournment, Room E2.016)

HB 1417 by S. Thompson reducing the penalty for certain POCS offenses

HB 2914 by S. Thompson requiring a usable amount to prosecute PG 1 POCS offenses

HB 1540 by Pitts relating to the prosecution of theft/fraud involving electronic transactions

HB 212 by Alonzo mandating pretrial hearings upon request in criminal cases

HB 996 by Giddings permitting electronic delivery of certain documents in a criminal case

HB 1125 by Lavender permitting JPs to conduct extradition waiver proceedings

HB 2230 by Wu authorizing orders of nondisclosure for certain fine-only misdemeanors

HB 899 by Perry protecting a victim’s right not to talk to mitigation experts in capital cases

HB 167 by McClendon allowing commissioners to impose victim-offender mediation programs

HB 1625 by McClendon requiring reciprocal discovery in a criminal case

HB 1426 by Moody requiring reciprocal discovery in a criminal case (*but see above discussion!)

HB 2809 by Toth expanding the list of two-strike sex crimes that result in LWOP

HB 1608 by Hughes requiring search warrants for various cell phone-related records, etc.

HB 2371 by Leach creating the offense of voyeurism

HB 2090 by Canales relating to the language in which written custodial statements are recorded

HB 1849 by Carter listing/limiting the permissible uses of criminal asset forfeiture proceeds

HB 2130 by Herrero revising and clarifying penalties for the offense of evading arrest

HB 3060 by Herrero relating to the offense of tampering with a witness

HB 912 by Gooden criminalizing the capture/use of images from unmanned vehicles/aircraft

Senate Criminal Justice (1:30 p.m. or upon adjournment, Room 1.016)(*tentative*)

SB 299 by Estes de-criminalizing the unintentional display of a concealed handgun by a licensee

SB 481 by Hinojosa relating to out-of-state CHLs

SB 545 by Hancock relating to peace officers authorized to conduct a police escort

SB 669 by Whitmire restricting the forfeiture of bail bonds (and related changes)

SB 670 by Whitmire relating to the copying of juvenile files by others, including defense counsel

SB 686 by Huffman changing TCLEOSE’s name

SB 786 by Hinojosa requiring search warrants for various cell phone-related records, etc.

SB 876 by Patrick releasing bail bond sureties from their liabilities after five years

SB 990 by West restricting criminal history record dissemination by a private entity

SB 1114 by Whitmire restricting the prosecution of certain Class C offenses at schools

SB 1289 by Williams regulating private businesses that publish mug shots, etc.

SB 1348 by West expanding the offense of unlawful transfer or purchase of certain weapons

SB 1611 by Ellis relating to reciprocal discovery in a criminal case

Senate Jurisprudence (1:30 p.m. or upon adjournment, Room 2E.20)

SB 946 by Nelson authorizing certain victims to terminate a lease w/o liability

SB 1237 by Schwertner authorizing ADR procedures, including victim-offender pretrial mediation

Wednesday, March 27

House Corrections (2:00 p.m. or upon adjournment, E2.010)

HB 517 by Pitts limiting the parole eligibility for certain habitual felony DWI offenders

HB 1566 by R. Miller authorizing the testing of a juvenile for certain STDs

HB 1567 by R. Miller authorizing post-disposition victim allocution in juvenile cases

HB 2069 by D. Bonnen relating to medical parole for certain violent inmates

HB 2544 by Rose relating to victim-offender mediation services offered by TDCJ

HB 2733 by White denying bail to certain offenders who commit offenses in TJJD facilities

Note that these committees may also be hearing other bills that are not listed here and that these lists may change with little notice.  Also, hearing notices for the House Homeland Security & Public Safety Committee and the House County Affairs Committee (which both meet on Thursday mornings) are not usually received until after this update is distributed, limiting our ability to inform you about bills referred to those committees.  Therefore, be sure to check all the applicable committee pages on the Texas Legislature Online.  Also, these bills listed above are available for review on that same website, or you can contact Shannon for more details about an individual bill (but please don’t contact him without first reading the bill itself!).

         Quote of the week.  You know you love it.

“The Titus County Commissioners Monday did one of the smartest things I’ve ever seen them do, and then within minutes they went and did one of the stupidest things I ever saw.”
            —Lou Antonelli of the Mount Pleasant Daily Tribune, commenting upon the local dispute that led Titus County Attorney John Mark Coburn to seek an AG opinion on whether his local commissioners can bar him from bringing his 16-year old Dachshund to work. 

That’s all for now!

Posted:  Tuesday, March 12, 2013

          Newly-filed bills.  Here is it, the final list of new bills.  Obviously, we can’t summarize all of them for you, but these are some to put on your radar for now.  (And if you think this list is mind-numbing, just imagine how much fun we had reading a dozen other bills for every one listed here!)  You’ll want to pay special attention to the bills marked with an asterisk. 

HB 2804 by Toth creating a commission to review criminal offenses in state law

HB 2825 by K. King authorizing centralized sex offender registration authorities

HB 2842 by Wu revising penalties for engaging in organized criminal activity

HB 2849 by White lowering penalties for criminal mischief and graffiti

HB 2867 by Carter expanding forfeiture of vehicles used in DWI cases

HB 2868 by Carter permitting execution of a DWI blood warrant anywhere in the state

HB 2890 by Syl. Turner consolidating criminal court costs

HB 2914 by S. Thompson setting a weight threshold for certain POCS cases

HB 2964* by Alonzo authorizing new writ remedies for Padilla and other plea errors

HB 2988* by Canales imposing duties on prosecutors to disclose exculpatory evidence

HB 3004 by Allen authorizing TDCJ (not the judge) to issue credits to SJF confines

HB 3018* by Gutierrez relating to prosecutors’ budgets

HB 3027 by Zedler relating to squatters who claim adverse possession of real property

HB 3062 by Herrero creating Caylee’s Law relating to dead or missing children

HB 3117 by Burkett authorizing the AG to settle certain environmental suits by counties

HB 3134 by Lucio III creating the offense of capital murder of a prosecutor

HB 3138 by Sheets relating to money laundering and bank fraud and forfeitures

HB 3192 by Otto relating to the operation of the special (prison) prosecution unit

HB 3220* by Springer creating a presumption regarding evidence of prior convictions

HB 3241* by S. Thompson creating a civil action of racketeering and authorizing the OAG to use it to intervene in pending human trafficking investigations

HB 3259 by Wu relating to child advocacy center videos

HB 3275 by Simmons criminalizing the use of certain secret compartments in vehicles

HB 3297 by Guillen expanding the use of the wiretap law to certain offenses

HB 3336 by Hughes requiring certain findings before sentencing certain drug offenders

HB 3381 by Hilderbran dividing up the 198th Judicial District

HB 3402 by Raymond granting a child a privilege not to testify against a parent

HB 3403 by Raymond granting a parent a privilege not to testify against a child

HB 3458 by Eiland returning evading with a motor vehicle to a state jail felony

HB 3479 by Simpson restricting certain interrogation techniques

HB 3575* by Fallon authorizing (only) the AG to prosecute certain public integrity crimes

HB 3588 by Gutierrez relating to the consequences for official oppression

HB 3617* by Burnam making capital murder by offenders under 18yoa a 1st-degree felony

HB 3727* by Raymond increasing hot check collection fees

HB 3743 by Wu authorizing state’s appeals in certain juvenile cases

HB 3765 by Coleman revising the insanity defense

HB 3773 by Coleman limiting the use of deadly force in defense of person or residence

HB 3774 by Coleman revising the insanity defense and related procedures

SB 213* by Whitmire to re-authorize TDCJ (the TDCJ sunset bill)

SB 1111 by Duncan dividing up the 198th Judicial District

SB 1187 by Huffman reducing the time period to restore certain defendants to competency

SB 1211 by West permitting expunction of deferred adjudication records

SB 1238 by Hinojosa relating to the duties/authority of the Forensic Science Commission

SB 1270* by West prohibiting seeking/imposing the death penalty on a racial basis

SB 1285 by Williams relating to the operation of the special (prison) prosecution unit

SB 1291 by Ellis making POCS < 0.02g a Class C misdemeanor for PG 1 substances

SB 1292 by Ellis requiring the DNA testing of all biological material in a capital case

SB 1349 by West limiting the use of deadly force in defense of person or property

SB 1360 by J. Rodriguez relating to forfeiture by wrongdoing

SB 1363 by Huffman relating to legislative grants of testimonial immunity

SB 1416 by Deuell restricting self-defense claims by felons who possess weapons

SB 1428* by Hinojosa retroactively reforming juvenile LWOP sentences

SB 1439 by West moving various evidence statutes from the CCP to the Occupations Code

SB 1512* by Ellis granting the media access to certain crime scene photos/videos

SB 1611* by Ellis relating to discovery in a criminal case

SB 1645 by Williams adding Carisoprodol and other substances to PG 3

SB 1661 by Estes relating to organized criminal activity and human smuggling

SB 1738* by J. Rodriguez relating to the defense/indemnification of county officials

SB 1757 by Uresti criminalizing the possession/use/etc. of a license plate flipper

As always, to follow these and other bills, visit the Texas Legislature Online or contact Shannon for more information.

          Upcoming hearings.  There was one hearing for this week that was not posted in time for inclusion in our Friday update, so we’ll add it here:

Thursday, March 14

House Homeland Security & Public Safety (8:00 a.m., E2.010) 

HB 434 by Riddle authorizing EMTs to draw blood in DWI cases under Trans. Code Ch. 724

HB 435 by Syl. Turner prohibiting peace officers from drawing blood in DWI cases

HB 1658 by P. King requiring blood draws in certain DWI investigations

HB 1038 by Eiland expanding DNA collection upon arrest to all jailable offenses

HB 972 by Fletcher allowing concealed carry on college campuses

HB 1313 by Creighton allowing concealed carry on college campuses

HB 1078 by Kleinschmidt allowing concealed carry on college campuses

HB 706 by Capriglione allowing concealed carry on college campuses

HB 1009 by Villalba creating “school marshals” in public schools

HB 1298 by Stickland allowing concealed carry at any public or private school or college

HB 700 by Lavender authorizing open carry in Texas

HB 1194 by Paddie authorizing open carry in Texas

For the full details of the latest committee postings, check the Texas Legislature Online.  All of these bills are available for review on that same website, or you can contact Shannon for more details about an individual bill (but please don’t contact him without first reading the bill itself!).

That’s all until Friday.  Look for our next update then!

Posted: Friday, March 1, 2013

Happy March 1st!  It’s a big day, depending upon where you are.  In Rome, the Pope’s seat is vacant.  In Washington, the sequester has hit.  And in Austin … the local politburo’s citywide ban on plastic grocery bags goes into effect.  Needless to say, that last story is the topic of most water cooler conversations here in the Live Music Capital of the World™.  As for action over at the state capitol, though, things are still at a low simmer, even though fewer than 90 days remain in the 83rd Regular Session.  With that in mind:  Do you know happens when a butcher crams three pounds of bologna into a two-pound bag?  If not … well, you’re about the see the legislative equivalent of that resulting mess.  Don’t say we didn’t warn you!

         County retirement bill is dead.  As we previously predicted, the author of the bill to roll back TDCRS yields has decided not to pursue that concept this session.  State Rep. Rob Orr (R-Burleson), who filed HB 958 on behalf of a county judge outside his district, has taken stock of the situation and chosen discretion (and good common sense) over valor.  Kudos to Rep. Orr for his decision.  Of course, we have known for some time this bill was not going anywhere, but let this be a good reminder to those of you who got worked up about this bill based on information from other sources.  Remember: Half of all filed bills are dead on arrival and don’t merit concern. 

         Thar’ she blows!  For those of you who have followed attempts over the past decade to create a statewide innocence commission, it’s time to once again pop some popcorn and watch the re-run in Austin.  Next week, the House Criminal Jurisprudence Committee will hear testimony on HB 166 by McClendon (D-San Antonio), which would create a nine-member “Timothy Cole Exoneration Review Commission” to review all cases in which an innocent person was convicted and exonerated for the purposes of recommending future changes in law.  In addition, this session’s version of the bill would charge the new commission with reviewing every writ ruling (ever?) issued by the CCA to identify misconduct by judges, prosecutors, and defense lawyers and report that conduct to the State Bar, the State Commission on Judicial Conduct, or the Attorney General’s Office (?!?) for action.  And there’s more in the bill, too—read it yourself for all the details. 

            For those who don’t recall, last session’s version of this bill (HB 115 by McClendon) made it out of committee (after no one testified against it), made it to the House floor, and received an initial vote of support (82-54) before it was eventually defeated on third reading by a mostly party-line vote of 91-51 after some heated debate.  Look for a repeat of that nasty floor fight if the bill gets that far this session.  But whether you’re for it or against it, the topic will be debated next week, so come on down and/or contact committee members if you have an interest in this topic.  For more historical information on the bill, contact Shannon.

         “Prosecutor accountability” bill gets filed.  Senator John Whitmire (D-Houston) has filed SB 825 at the request of Williamson County exoneree Michael Morton.  (An identical companion was filed in the House as HB 1921 by S. Thompson [D-Houston]).  The bill would change the State Bar’s grievance system in two ways: (1) the four-year statute of limitations for Brady-related grievances would not start to run in a wrongful conviction case until the exoneree is released from prison; and (2) prosecutors would be ineligible for a private reprimand from the Bar in Brady-related grievances.  If you have been paying attention to our past briefs on this issue, these changes should not surprise you; this topic was discussed in the Association’s report on prosecutorial misconduct, and some prosecutors who are up to speed on the issue have already expressed qualified support for the change (while reserving the right to seek a tweak here or there).  And that is important, because this bill will be heard in the author’s own committee (probably on March 12), so it almost certainly will be voted out of committee on that date, and the full Senate almost certainly will approve it when it reaches them a week or two later.  That doesn’t mean that the language can’t be altered along the way if there are specific concerns about it, but it does mean that prosecutors must read the bill now and then contact Rob with any questions, concerns, or suggestions—not because we can make them for you, but because we can tell you how to be most effective in doing that.

         New report issued on discovery.  Some of you may recall getting an open records request from Texas Appleseed, a social justice non-profit, asking for details about your local discovery policy.  Based on those responses, Appleseed partnered with the Texas Defender Service (a non-profit that represents death row inmates) to issue a report that faults Texas’ current criminal discovery system for falling short of various ABA recommendations calling for greater sharing of information between prosecutors and defense attorneys.  Those ABA recommendations includes reciprocal criminal discovery, which (as the report points out) is used pretty much everywhere else in these United States except for Texas.  The Appleseed report provides general support for SB 91 by Ellis (D-Houston), the primary vehicle for discovery reform this session.  But don’t take our word for it—read the report yourself (and check to see if you are praised or criticized!) by clicking here (PDF version).  And again, contact Shannon or Rob if you want to get involved for, against, or on this topic.

         DPS lab budget update.  For those of you struggling with lab result backlogs, we have some potential good news.  The House Appropriations Committee approved additional funding for the DPS crime labs to hire 28 additional lab-related personnel (at a cost of $8.75 million).  The hope is that this will help reduce the time required to complete testing of evidence.  In addition, a second “exceptional item” will provide almost $11 million to help DPS expedite the analysis of tens of thousands of untested sexual assault kits that law enforcement agencies have collected throughout the state.  However, before you get too excited, remember that this is just a preliminary approval, and only by one committee—the full House must also approve this expenditure, and then the Senate must also agree.  Over in that other chamber, the Senate Finance Committee has yet to decide on these two exceptional items, so if you know any members of that committee, now would be a good time to ring them up and chime in with your support for these two items (DPS exceptions items #17 [crime lab] and #18 [rape kits]).

         Committee recap.  Committees are hearing more bills, but many wait for a week or two before voting on them, so there isn’t much to report on the bills heard last week.  Next week we will start listing bills making it out of committee.  One bill that might need help doing that is HB 1065 by Hernandez Luna (D-Houston), which would permit victims of certain serious crimes to take time off work to come to court without fear of retaliation from their employers.  A few members of the Business & Industry Committee expressed doubts that the law was needed, so if you have a good example of that happening, contact Shannon and he can pass along that information to the right people. Another bill that faces an unknown fate is HB 70 by Fletcher (R-Houston).  That bill would give prosecutors the option of exempting one State’s witness from The Rule, as every other litigant gets to do and as prosecutors get to do in most other states, but the proposal faced opposition from several members of the Criminal Jurisprudence Committee. 

         Upcoming hearings.  Senate Criminal Justice won’t hold its first meeting until March 12, so our belief that discovery changes could be taken up next week proved too optimistic.  However, it’s probable that both the discovery and Bar grievance bills mentioned above could be heard in Senate Criminal Justice on Tuesday, March 12, so if you want to be involved in either discussion, prepare accordingly.

            Meanwhile, here are some bills that are cued up for hearings next week:

Monday, March 4

House Elections (2:00 p.m. or upon adjournment, E2.028)

HB 289 by Zedler expanding the AG’s authority to investigate election-related crimes

House Judiciary & Civil Jurisprudence (2:00 p.m. or upon adjournment, E2.012) 

HB 293 by E. Rodriguez authorizing the release of attorneys’ email addresses to CLE providers

Tuesday, March 5

House Transportation (8:00 a.m., Room E2.012) 

HB 77 by Guillen requiring an officer to electronically verify insurance before issuing a citation

HB 625 by Harper-Brown providing a penalty for operating a vehicle without a license plate

HB 955 by Isaac increasing the punishment for reckless driving that causes SBI/death

House Criminal Jurisprudence (10:30 a.m. or upon adjournment, Room E2.016)

HB 166 by McClendon creating a commission to prevent wrongful convictions

HB 281 by Lucio III permitting a deceased peace officer’s family member to testify regarding the terms of a plea bargain

HB 516 by Pitts authorizing cross-county-line blood search warrants in DWI cases

HB 688 by Marquez maintaining the confidentiality of certain autopsy records

HB 884 by Murphy relating to the disposition of abandoned/unclaimed property in Class C cases

HB 1196 by Clardy relating to court cost collection programs in certain counties

House Human Services (10:30 a.m. or upon adjournment, Room E2.030)

HB 747 by Raymond requiring certain higher education officials to report child abuse

House Licensing & Administrative Procedures (noon or upon adjournment, Room E1.010)

HB 137 by Raymond relating to coin-operated machine licenses and gambling promotion

HB 394 by S. Thompson expanding limits on bingo prizes

HB 1127 by W. Smith regulating game rooms in certain counties (Harris County)

Senate Jurisprudence (1:30 p.m. or upon adjournment, Room 2E.20)

SB 92 by Van de Putte creating a pre-adjudication diversion program for juvenile prostitutes

SB 393 by West relating to deferred prosecutions for juveniles accused of certain Class C offenses

SB 394 by West restricting access to records of certain juveniles in certain Class C cases

SB 395 by West relating to fines and court costs imposed on juveniles in certain Class C cases

Wednesday, March 6

House Corrections (2:00 p.m. or upon adjournment, E2.010)

HB 321 by Dutton prohibiting a dismissal and discharge from probation from being used for certain non-judicial purposes

HB 517 by Pitts requiring repeat felony DWI offenders to serve one-half of a sentence prior to becoming eligible for parole

HB 694 by Phillips granting military recruiters access to certain juveniles’ records

Thursday, March 7

House Homeland Security & Public Safety (8:00 a.m., E2.010)

HB 24 by Martinez Fischer creating a state DWI czar

HB 710 by Callegari prohibiting peace officers from using that status to promote private business

HB 919 by Fletcher exempting certain law enforcement vehicles’ locations from open records

HB 1216 by Craddick increasing the penalty for reckless driving

Senate Health & Human Services (9:00 a.m., Senate Chamber)

SB 746 by Nelson relating to Medicaid fraud

Note that these committees may also be hearing other bills that are not listed here and that these lists may change almost without notice.  For the full details, check the applicable committee pages on the Texas Legislature Online.  Also, all of these bills are available for review on that same website, or you can contact Shannon for more details about an individual bill (but please don’t contact him without first reading the bill itself!).

         Newly-filed bills.  Here is a list of select bills filed late last week and earlier this week (through yesterday).  The high volume of bills to be filed next week (probably in excess of 1,500) means we will get behind next week, but we will catch up soon after the Friday (March 8) filing deadline.  Some of these will make you very happy, others very not-so-happy, so please read carefully.

HB 1540 by Pitts relating to theft or fraud involving electronic transactions

HB 1567 by Miller permitting victim allocution in juvenile cases

HB 1599 by Fletcher imposing LWOP for a 1st offense of super-aggravated sexual assault

HB 1606 by Moody relating to harassment and stalking

HB 1608 by Hughes requiring search warrants to obtain wireless location information

HB 1620 by G. Bonnen to treat Burg/Hab-sex crimes like other sex crimes for probation/parole purposes

HB 1625 by McClendon mandating certain discovery practices in criminal cases

HB 1628 by Harper-Brown enhancing penalties for repeat indecent exposures

HB 1658 by P. King mandating arrest and blood draws in certain DWI investigations

HB 1669 by Carter expanding admissibility of evidence in certain trafficking/sex crimes

HB 1677 by Frullo relating to reports of, and training on, missing or exploited children

HB 1713 by Lozano reimbursing certain property owner victims from funds derived from assets seized in certain investigations

HB 1734 by Johnson creating a “good Samaritan” defense to certain drug prosecutions

HB 1790 by Longoria permitting the post-probation reduction of certain SJF convictions to a Class A misdemeanor

HB 1845 by Gooden relating to the capital murder of certain prosecutors

HB 1847 by Carter mandating ethics CLE for certain elected prosecutors

HB 1849 by Carter creating a list of permissible expenditures of asset forfeiture funds

HB 1861 by Dutton relating to service of process on certain public officials

HB 1862 by Dutton legalizing switch-blade knives

HB 1991 by Sy. Turner banning prosecutors from debt collection

HB 2044 by Sy. Turner reducing penalties for certain drug offenses

HB 2045 by Sy. Turner further reducing penalties for certain drug offenses

HB 2063 by Gooden authorizing prosecutors to openly carry handguns

HB 2073 by E. Rodriguez relating to driving with untreated sleep disorders

HB 2090 by Canales relating to written custodial confessions

HB 2098 by Guillen authorizing legal “social poker establishments”

SB 720 by Ellis instructing juries about the effect of an NGRI verdict

SB 721 by Ellis expanding the insanity defense

SB 731 by Huffman creating an offense for the production or delivery of marihuana plants

SB 743 by Nelson creating an offense for continuous violation of protective orders

SB 750 by Ellis creating a process for determining mental retardation in capital cases

SB 786 by Hinojosa requiring search warrants to obtain wireless location information

SB 787 by Hinojosa relating to DPS surcharges assessed after DWI convictions

SB 834 by Estes making grand jurors’ names confidential

SB 876 by D. Patrick allowing a surety to discharge liability on a bond after five years

SB 878 by D. Patrick creating a list of permissible expenditures of asset forfeiture funds

SB 897 by Estes waiving sovereign immunity for suits involving certain illegal arrests

SB 969 by West requiring written confessions (and warnings) to be electronically recorded

SB 970 by Huffman expanding the use of search warrants to obtain DNA specimens

SB 975 by West discharging bonds upon acceptance to pre-trial diversion or other events

As always, these are just a few of the bills filed this week that could impact your business.  To follow these and other bills, visit the Texas Legislature Online or contact Shannon for more information.

         Quotes of the week.  As always, we end with a bang.

“Everybody just go out tonight, drink, get behind the wheel, drive through neighborhoods, and hit innocent people that aren’t wearing dark clothing, on a dark street, when anyone should be able to see them.”
            —Laurie Griffin, mother of the woman killed by former Capitol staffer Gabrielle Nestande, upon hearing a jury’s verdict convicting Nestande of criminally negligent homicide and recommending she receive probation.

“It’s a huge problem.  If the public knew, they’d be shocked.”
            —Matt Hill, Fresno (CA) parole officer, in an LA Times exposé on the high number of released California sex offenders who are disabling or removing their GPS tracking devices without fear of punishment due to jail/prison overcrowding problems in that state.

That’s all for now!

Posted:  Friday, February 15, 2013

            Someday, we might look back at this 83rd Regular Session and call it “The Session That Would Never Start.”  Pre-occupied with its budget discussions, the Legislature has so far shown little interest in criminal justice or public safety issues.  (And again, let us reiterate that this is not a bad thing.)  It appears that trend will continue for one more week, and then bills we are tracking will finally start to move.  Meanwhile, here’s what went on in Austin this week.

         State budget updates.  This week the Senate Finance Committee broke into workgroups to mark up Senate Bill 1, which involves prioritizing all requests for basic funding and for additional funding, the latter of which are called “exceptional items.”  Next week, the workgroups will report back to the full committee, and by the end of the week we may have a nearly complete version of the Senate’s budget bill.  All of the basic items relating to prosecutors are fully funded at this intermediate stage. One item many of you care about—a judicial pay raise—has been referred to a workgroup chaired by Senator Robert Duncan (R- Lubbock) that has yet to meet.  We will keep you informed of any news on that front, but this is not a reason to be alarmed—historically, judicial pay raises have not found their way into the state’s budget until late in the process.

            Across the dome, the House Appropriations Committee (HAC) also broke into subcommittees to take testimony on different segments of the house budget proposals.  The hearings were equally uneventful, with all items of interest to prosecutors being funded at current levels.  The House has not talked about the prospect of a pay raise at this point either, but once again, it is early.  The HAC will begin the mark-up of its bill Monday morning.  If you have questions about any this, email Rob or call him at 512/474-2436.

            TCDRS retirement changes.  As we mentioned in this space last week, State Rep. Rob Orr (R-Burleson) filed HB 958, which would reduce the interest rate payable on contributions to Texas County and District Retirement System (TCDRS) member accounts from 7 percent to 5 percent.  We have had lots of calls on the bill this week, but at this point it is not something to lose sleep over.  The bill author and other legislators have already heard from various county employee groups in the state that there is no reason to mess with a healthy retirement system.  We will keep you informed if something changes, but for now, put this on the back burner.

         Discovery reform.  As we expected, several legislators are (quietly, behind closed doors) starting to express an interest in changing criminal discovery in Texas.  Those ideas have taken several different approaches, a few of which have already been filed, while others are still in the works.  If you are interested in this topic, there are two concepts on which you should get up to speed.  The first has already been filed as SB 91 by Senator Rodney Ellis (D-Houston), and may be pushed by him or others.  That legislation would create a reciprocal discovery system loosely based on recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions (2010); however, it has been opposed in the past by those in the criminal defense bar who don’t want to provide the State with any information (even though that how almost every other jurisdiction in the country does discovery).  The second approach to this issue is still in drafting stage, but it might be based on the mutual discovery system used in North Carolina; for more on that, check out Chapter 15A of the North Carolina Criminal Procedure Act, §§903-910.  We don’t yet know what that NC law would look like when translated into “Texas-ese,” but we are educating ourselves about it, and you should too.

         State jails still fail?  We told you before the session started that several advocacy groups on both the political left and the right have their sights set on radically changing a state jail system that delivers very little bang for the buck when it comes to recidivism/rehabilitation.  Right now, the most talked-about “solution” would impose mandatory probation for an offender’s first three(!) state jail felonies, with a fourth conviction being a second-degree felony.  (Yes, you read that correctly.)  The “logic” behind such a proposal seems to be that offenders in the state jails have a high recidivism rate, as do those offenders on probation, so if time in the state jail doesn’t fix them any better than probation, why not put them all these offenders on probation and save the state a lot of money?  Of course, that all sounds rather silly to those of us in what we like to call the “reality-based community”—not to mention that fact that it’s similar to some of California’s drug law policies, and who in Texas wants to follow that lead?—but the overall discontent may present opportunities for prosecutors to change things in the state jail system.  However, before some of you start sending us your favorite state jail punishment enhancement ideas, stop!  Remember, the Legislature wants to save money, not spend it, so locking up low-level offenders for longer periods of time is a non-starter.  But if you have other bright ideas on how the criminal justice system could better deal with its incorrigible population of thieves and addicts, contact Shannon for more guidance and information. 

         Hot checks and EFTs.  It’s the 21st Century, and electronic fund transfers are quickly replacing checks as a preferred method of commerce.  While our hot check statutes have been amended to cover sight orders and other new-fangled electronic transactions, that doesn’t always work well in practice.  Some Texas businesses have sought TDCAA’s help in making it easier to prosecute those cases through legislation, but they need help in figuring out what needs fixing.  If this is something that interests you, contact Shannon for more information. 

         Committee recap.  Nothing very interesting happened in committees this week.  (Hey, the truth hurts.)  That doesn’t mean we aren’t working hard on your behalf here in Austin, it’s just the type of work that won’t bear obvious fruit until later in the session.

         Committee hearings.  House committees will hold their organizational meetings next week and then start hearing bills the following week.  Senate committees are hearing bills now.  Your biggest issues are not on their front burners, but here are a few back-burner bills being heard next week:

Tuesday, February 19

House Transportation (8:00 a.m., Room E2.012) 

HB 38 by Menendez increasing the penalty for an offense involving motor vehicle airbags

HB 240 by Guillen relating to license suspensions for provisional DLs

HB 248 by Walle regulating automotive wrecking and salvage yards in certain counties

HB 299 by E. Rodriguez regulating traffic when certain traffic-control signals do not work

HB 406 by Fletcher relating to parking placards for vehicles of persons with disabilities

HB 567 by W. Smith re-defining authorized emergency vehicle

Senate Health and Human Services (9:00 a.m., Senate Chamber)

SB 128 by Nelson relating to DARS access to certain criminal history record information

SB 245 by West relating to CACs’ provision of services in child abuse and neglect cases

SB 313 by Uresti raising the age to purchase/consume tobacco products from 18 to 21

SB 423 by Nelson relating to DFPS’s flexible response system for investigating abuse or neglect

SB 429 by Nelson relating to dismissal/non-suit of termination suits by a governmental entity

Senate Jurisprudence (1:30 p.m. or upon adjournment of the Senate, 2E.20)

SB 250 by West regulating the use of certain technology in mental health hearings or proceedings

SB 268 by Seliger adding the 287th DA to the Professional Prosecutors Act

SB 389 by West relating to determining the appropriate court costs in certain criminal proceedings

SB 390 by West relating to the effective date of a new or amended court cost or fee

SB 391 by West holding a defendant to his obligation to pay a fine/cost after probation expires

Note that these committees may also be hearing other bills that we are not tracking.  For the full details, check the applicable committee pages on the Texas Legislature Online.  Also, all of these bills are available for review on that same website, or you can contact Shannon for more details about an individual bill (but please don’t contact him without first reading the bill itself!).

         Newly-filed bills.  Speaking of filing bills, here’s a list of some filed this past week:

HB 1147 by N. Gonzalez requiring prosecutors to give the state data on human trafficking

HB 1163 by Moody relating to tampering with witnesses

HB 1166 by Villalba dropping the “OSE” part of TCLEOSE’s name

HB 1176 by Gooden revising the drug presumption for endangering a child

HB 1188 by S. Thompson limiting civil liability for persons who employ ex-cons

HB 1194 by Paddie permitting open carry of handguns

HB 1206 by Parker relating to law enforcement duties regarding certain missing children

HB 1216 by Craddick increasing the penalty for reckless driving

HB 1236 by Price prohibiting deferred adjudication for offenses involving child victims

HB 1242 by Geren authorizing probation revocation “warnings” that include jail time

HB 1246 by S. Turner authorizing a defendant to amend a motion for new trial

HB 1269 by Martinez Fischer requiring certain businesses to offer non-alcoholic beverages

HB 1278 by Lozano adding the 79th DA to the Professional Prosecutors Act

HB 1282 by S. Turner authorizing others to have copies of a prosecutor’s juvenile file

HB 1302 by Clardy revising LWOP sentences for certain sex offenders

HB 1304 by Sheets legalizing certain intentional displays of a concealed handgun

HB 1314 by Creighton creating an offense for enforcing certain federal firearms laws

HB 1322 by Fletcher sealing certain documents related to mobile tracking devices

HB 1323 by Zerwas limiting certain investigations of child abuse and neglect

HB 1344 by Canales permitting certain deferred adjudications to be expunged

HJR 81 by Craddick designating sheriffs as the chief law enforcement officers in a county

SB 462 by Huffman regulating specialty courts

SB 463 by Huffman creating an exception to The Rule for certain State’s witnesses

SB 479 by Hinojosa adding the 79th DA to the Professional Prosecutors Act

SB 484 by Whitmire authorizing/mandating the use of prostitution prevention programs

SB 511 by Whitmire relating to the commitment and release of certain juvenile offenders

SB 532 by Van de Putte, this session’s omnibus human trafficking bill

SB 538 by J. Rodriguez repealing the offense of homosexual conduct

SB 549 by Williams relating to the penalties for organized criminal activity

SB 558 by W. Davis preventing rape victims from being prosecuted for false report

SJR 28 by D. Patrick revising the constitutional resign-to-run rule

SJR 34 by Duncan providing for the appointment and retention of state judges

As always, these are just a few of the bills filed this week that could impact your business.  To follow these and other bills, visit the Texas Legislature Online, or you can contact Shannon for more information.

         Observations on bills filed to date.  For those of you who are curious, through yesterday (February 14), the Legislature has filed 2,026 bills and resolutions, 585 of which we are currently tracking.  Of those we are tracking, 78 bills would create new criminal offenses, 55 bills would increase current punishments, 11 bills would decrease a current punishment, 45 bills are firearms-related (this session’s apparent issue du jour), and 14 bills task local prosecutors with a new unfunded mandate/duty.  And all of those numbers are only going to grow over the next few weeks!

         Quotes of the week.  As always, we end on a humorous/shocking/puzzling note. 

“Anderson’s obnoxious stubbornness could help the cause of justice. With allegations of prosecutor misconduct arising from exonerations around Texas, lawmakers have been looking for ways to ensure the state lives up to its constitutional duty to divulge evidence that casts doubt on a defendant’s guilt. Anderson’s testimony clarifies how badly reform is needed.”
            —Dallas Morning News editorial on the court of inquiry in Williamson County. 

“Two years from now, if this thing is as broken as it is now, we’re going to try another model.”
            —State Sen. John Whitmire (D-Houston), Chairman of the Senate Criminal Justice Committee, to TJJD Director Mike Griffiths during a budget hearing in which several senators suggested shuttering another former TYC facility, leaving the state with only five. 

“I can’t get excited by the question of whether [U.S.] Senator Robert Menendez had sex with a prostitute in Central America.  It is her word against his—and when it comes to a prostitute’s word against a politician’s word, that is too close to call.”
            —Thomas Sowell, conservative columnist

That’s all for now!

Posted: Friday, February 1, 2013

         Tragedy strikes the heart of our profession.  If you are not already aware, Kaufman County (and former Dallas County) prosecutor Mark Hasse was gunned down and killed outside his courthouse yesterday morning by unidentified assailant(s) who remain at large.  While the investigation into Mark’s death continues, please keep him, his family, and his co-workers at the Kaufman County Criminal DA’s Office in your thoughts and prayers.  We will update our website and our Twitter feed with additional information as we learn it.

         The State of the State.  Governor Perry gave his seventh (and perhaps final?) State of the State address on Tuesday.  The political junkies have already parsed every jot and tittle, so we’ll dispense with that kind of review and simply note that from a prosecutorial perspective, there wasn’t the slightest mention of issues that impact your business.  And you know what?  That’s A-Okay with us.  But for those of you who missed the governor’s address, don’t worry, you can still catch Chief Justice Jefferson’s State of the Judiciary address to the Legislature on March 6 at 11:00 a.m.  Yes, it has traditionally been as ignored by the Lege as you think it would be, but the constitution requires it, so let the kabuki theater continue!

         The end of the beginning.  The Speaker (finally) issued his committee line-ups for the House.  This marks the end of the beginning of the session, in that once the committees get up and running, things will actually happen at the Capitol.  When they do, prosecutors will be dealing with four new committee chairmen, one new committee, and drastically different committee memberships than last session.  (Such is the price of being in a policy area that is not a lucrative source of campaign funds for legislators.)  With that in mind, here are some relevant committee assignments (listed alphabetically by committee):

APPROPRIATIONS:  Pitts, chair; S. Turner, vice-chair; Ashby, Bell, G. Bonnen, Carter, Crownover, Darby, S. Davis, Dukes, Giddings, L. Gonzales, Howard, Hughes, S. King, Longoria, Marquez, McClendon, Munoz, Orr, Otto, Patrick, Perry, Price, Raney, Ratliff, Zerwas.

CALENDARS:  Hunter, chair, Lucio III, vice-chair; Alonzo, Alvarado, Branch, Button, Cook, Crownover, S. Davis, Eiland, Frullo, Geren, Giddings, Kuempel, Miller.

CORRECTIONS:  Tan Parker (R-Flower Mound), chair (*new*); James White (R-Woodville), vice-chair; Alma Allen (D-Houston), Debbie Riddle (R-Houston), Toni Rose (D-Dallas), J.D. Sheffield (R-Gatesville), Steve Toth (R-The Woodlands).

COUNTY AFFAIRS:  Garnet Coleman (D-Houston), chair; Joe Farias (D-San Antonio), vice-chair; Mary Gonzalez (D-El Paso), Ana Hernandez Luna (D-Houston), Todd Hunter (R-Corpus Christi), Lois Kolkhorst (R-Brenham), Matt Krause (R-Fort Worth), David Simpson (R-Longview), Jonathan Stickland (R-Bedford).

CRIMINAL JURISPRUDENCE:  Abel Herrero (D-Robstown), chair (*new*); Stefani Carter (R-Dallas), vice-chair; Lon Burnam (D-Fort Worth), Terry Canales (D-Edinburg), Bryan Hughes (R-Mineola), Jeff Leach (R-Plano), Joe Moody (D-El Paso), Matt Schaefer (R-Tyler), Steve Toth (R-The Woodlands). (For you counting at home, that’s two former prosecutors, one current criminal defense lawyer, four civil lawyers, and two non-lawyers on the committee.)

HOMELAND SECURITY & PUBLIC SAFETY:  Joe Pickett (D-El Paso), chair (*new*); Allen Fletcher (R-Houston), vice-chair; Philip Cortez (D-San Antonio), Tony Dale (R-Cedar Park), Dan Flynn (R-Van), Tim Kleinschmidt (R-Lexington), George Lavender (R-Texarkana), Kenneth Sheets (R-Dallas), Ron Simmons (R-Carrolton).

JUDICIARY & CIVIL JURISPRUDENCE:  Tryon Lewis (R-Odessa), chair (*new*); Jessica Farrar (D-Houston), vice-chair; Marsha Farney (R-Georgetown), Lance Gooden (R-Terrell), Ana Hernandez Luna (D-Houston), Todd Hunter (R-Corpus Christi), Ken King (R-Canadian), Richard Pena Raymond (D-Laredo), Senfronia Thompson (D-Houston).

For all House committee assignments listed by committee, go to http://www.house.state.tx.us/_media/pdf/committee.pdf.  For committee assignments by House member, go to http://www.house.state.tx.us/_media/pdf/member.pdf. 

         But wait, there’s more!  In addition to the standard committees mentioned above, the Speaker also named a Select Committee on Criminal Procedure Reform.  The proclamation creating this committee notes that the CCP “has not been rewritten since 1965.  As a result, it has become overcrowded, disorganized, and difficult to navigate, such that there is a pressing need to consider rewriting and reorganizing it.”  To that end, this committee will spend the next two years making recommendations to do that, with the final result (probably) being a draft bill that will be considered by the 84th Legislature in 2015.  It remains to be seen whether this effort gets farther than the last attempt to re-write the CCP back in the mid-1990s when Governor Bush’s office formed a blue-ribbon panel of judges, prosecutors, defense lawyers, and professors to tackle the job.  That effort died for lack of interest among legislators.  (For a copy of that bill, which was never heard in committee, check out SB 1608 by Whitmire (75th R.S., 1997).)  The lucky House members tasked with the job this time around are:  Debbie Riddle (R-Houston), chair; Stefani Carter (R-Dallas), Abel Herrero (D-Robstown), Joe Moody (D-El Paso), and Tan Parker (R-Flower Mound).  Beyond that, we don’t know much more at this time.  Consistent with the comment we made a few weeks ago, neither TDCAA nor any prosecutors were consulted before this project was launched, but I have a feeling we’ll be taking a great interest in this two-year experiment.  Won’t that be FUN?!?

         We’re not done yet!  To further furrow the collective brow of the Capitol crowd, the Speaker also created a Select Committee on Transparency in State Agency Operations.  The enabling proclamation states that this committee is intended to “encourage greater transparency in the expenditure of state funds” by overseeing “the reporting of financial transactions of judicial and executive state agencies … as well as affiliated agencies, entities, foundations, and related support groups.”  The committee shall also “monitor the hiring and compensation practices of judicial and executive state agencies, including any affiliated entities, whether public or private.  It shall also oversee the purchasing decisions made by judicial and executive state agencies and affiliated entities.”  What all that means is anyone’s guess—we’ve been too pre-occupied with yesterday’s tragic news to run all of this to ground right now, but we’ll know more by this time next week and pass along anything that you need to know about.  For those interested, the committee members are:  Carol Alvarado (D-Houston), co-chair; Dan Flynn (R-Van), co-chair; Naomi Gonzalez (D-El Paso), Eric Johnson (D-Houston), Lyle Larson (R-San Antonio), Trey Martinez Fischer (D-San Antonio), Charles Perry (R-Lubbock), and Four Price (R-Amarillo).

         Committee hearings.  It will take House committees another week or so to staff up and get running, so Senate committees will get out of the gate first.  Here are the postings to date:

Monday, February 4

Senate Finance - 10:00 a.m., E1.036
The committee will take invited testimony on Article IV (Judiciary) of the proposed state budget, including the appellate courts, OCA, TIDC, SPA, SCJC, OCW, and the Comptroller’s Judiciary Section. 

Tuesday, February 5

Senate Jurisprudence - 1:30 p.m., 2E.20 (Betty King Committee Room)
The committee will meet to adopt its rules, introduce staff, and take invited testimony from the Office of Court Administration and the State Commission on Judicial Conduct. 

Thursday, February 7

Senate Finance - 10:00 a.m., E1.036
The committee will take invited testimony on Article V (Public Safety & Criminal Justice) of the proposed state budget, including DPS, TDCJ, BPP, TJJD, and TCLEOSE. 

         Next week.  The Senate Finance Committee will have its first bite at the judicial pay raise apple on Monday, as noted above.  We will recap its progress in next week’s update, but for now, sit tight—no action is required on your part.  Other than that, the Legislature is still pre-occupied with issues that have little to do with your business, for which you should all be thankful.

         Newly-filed bills.  Here is a list of some bills filed this past week:

HB 747 by Raymond expanding the duty to report child abuse to college employees

HB 765 by P. King relating to the disposition of Class C offenses by CDL holders

HB 766 by P. King relating to the mental commitment of defendants who escape

HB 790 by S. Turner repealing the Driver Responsibility Program (DPS surcharges)

HB 793 by Lozano creating the crime of Unlawful Transport of an Undocumented Person

HB 820 by Taylor relating to the accessing of child pornography

HB 821 by Dutton relating to tampering with physical evidence of a homicide

HB 823 by Anchia requiring magistration to include an immigration admonition

SB 249 by Patrick expanding breach of computer security to include obtaining a benefit

SB 251 by West creating a new jurat for unsworn declarations made by public servants

SB 254 by Deuell allowing probationers to choose a charitable recipient of a donation

SB 262 by Huffman revising statutes on the reporting of criminal history data

SB 263 by Huffman adding Penalty Group 2-A substances to the analogue offense and adding other new substances to Penalty Group 2-A

SB 264 by Huffman addition new substances to Penalty Group 2

SB 271 by Seliger repealing the “I have one” defense for failure to use a child safety seat

SB 275 by Watson making hit-and-run fatalities a 2nd-degree felony

SB 299 by Estes legalizing the (unintentional) display of a weapon by a CHL holder 

         Quotes of the week.  In light of yesterday’s events in Kaufman County, we only have one quote for you this week. 

“Hey, let’s be careful out there.”

            —Sgt. Phil Esterhaus, as played by Michael Conrad on the 1980s hit TV series “Hill Street Blues.”

Until next week,

+Mark E. Hasse, 1956­­-2013, RIP

Posted: Friday, January 18, 2013

         Have you ever been driving down the road only to have people pull out in front of you or change lanes into you as if you weren’t there?  Well, we’re starting to get the same feeling at the Capitol.  Bills and policy reports and press releases on criminal justice issues keep coming across our desks, and few (if any) of them appears to have sought or considered input from YOU, the people who bear the primary responsibility for implementing the law.  Isn’t that odd?  Perhaps you are a victim of your own success—after all, the crime rate in Texas is down 45% since 1992—and in general, “crime” no longer moves the needle on polls asking the public what issues are most important to them.  But still, can you imagine policymakers proposing changes in health care without consulting doctors?  Or changes in education without consulting teachers?  And yet, time and again we see legislators and lobby groups embark on criminal justice policy initiatives without constructive input from prosecutors.  If you ask us, that sounds like a pretty silly way to run a railroad, but it does explain the messed-up state of the law, doesn’t it? 

         Texas Association of In-Your-Business?  Earlier this week, the president of the Texas Association of Business (TAB) announced that their association—which represents local chambers of commerce and various other business entities—was partnering with groups on the political left and right to support … well, it isn’t exactly clear, to be honest, but apparently it involves putting fewer people in prison so that money can be better spent elsewhere (or not spent at all).  The American-Statesman article announcing this news was pretty vague about what the group wants to see happen, but terms like “enhanced probation programs” hint at yet-to-be-filed bills that would return us to the mandatory probation days of state jail felony drug crimes (as we discussed last week) or even the resurrection of failed bills from the past that would extend mandatory probation to 3rd-degree felony drug crimes.

            Of course, what will be really interesting is whether these moneyed interests will put that money where their mouth is and support other money-saving bills to roll back penalties for property crimes instead of just drug crimes.  After all, the phrase “non-violent drug and property offenders” has been frequently used at the Capitol to describe defendants who are not to be locked up for their transgressions, but last we heard, local businesses that have been victimized by those same offenders are not always so sanguine about thieves and burglars receiving lesser punishments.  (Perhaps you should ask your local chambers of commerce what they think about this new development—we’d love to hear some responses from the field on this topic.)  But most likely, the simplest explanation for the emergence of this newest participant in an old debate came yesterday, when TAB also released a proposal to roll back more than $4 billion in state corporate tax revenues.  If adopted, the missing revenue would have to be made up in spending cuts elsewhere, and it looks like prison costs may be one of those targets.

         TDCJ-CJAD probation report.  The Criminal Justice Assistance Division (CJAD) of TDCJ recently released its annual report on community supervision in Texas (click for PDF copy).  Specifically, it reported to the Legislature that the additional treatment and rehabilitation funding provided to probation departments since 2006 has resulted in decreased revocations to TDCJ, decreased revocations for technical violations, and increased early terminations of probations.  However, probation departments are now experiencing an increasing demand for treatment services and they are supervising a “more challenging population,” as they put it—meaning more high-risk offenders are now on probation instead of behind bars, putting new strains on probation departments and their officers (who have an average caseload of 109 offenders to watch).  In addition, the report shows that the two types of offenders most likely to fail on probation and be revoked in spite of all these new treatment options are property and drug offenders.  (Hey, weren’t we just talking about them?)  Put it all together and one conclusion that can be drawn is that the Legislature might want to consider providing better rehabilitation options for the people the courts are already putting (and keeping) on probation before they shove even more “challenging populations” down the throats of an overloaded probation system.

         New LBB recommendations.  Speaking of reports, the Legislative Budget Board (LBB) recently issued a 480-page whopper of one on “Government Effectiveness and Efficiency” that contained numerous recommendations to the Legislature on how to save money.  We want to alert you to two of those recommendations that apply to the criminal justice system.

            First, the LBB believes that Texas can save money by creating a “permanent mechanism to review sentencing policies and control criminal costs.”  Specifically, it recommends the establishment of a sentencing commission to comprehensively review Texas sentencing laws and properly (re-)align penalties with offenses, modernize laws, and study statewide sentencing every 10 years, at the cost of about $1 million for this next biennium.  Timing-wise, this should be no surprise; Texas created its first model Penal Code in 1973, then re-wrote it 20 years later in 1993, and now it’s 2013, another 20 years down the road.  (Perhaps this is proof that the Legislature simply can’t go more than 20 years without screwing up a good thing.)  In addition, about half the states have some form of sentencing commission—but unlike Texas, none of those states permit jury sentencing, so it is an open question whether the two concepts are mutually exclusive.  Perhaps of greatest interest to prosecutors, however, is the LBB’s belief that this decennial commission would give “cost containment” a greater role in future criminal justice policy.  That is most certainly their primary concern in the criminal justice system; is it yours?

            Since we’re talking about cost containment, the other recommendation we’ll mention concerns medically-recommended intensive supervision, or “MRIS.”  As medical care becomes increasingly expensive, the prison system has struggled with the high cost of treating hospitalized inmates.  The MRIS system has existed since the early 1990s, but the parole board has been reluctant to grant releases under the program due to allegedly terminally ill inmates who were released in the past and then miraculously recovered and committed additional crimes.  To make the program more efficient, the LBB suggests removing elderly inmates from per se consideration (which will reduce the number of inmates that must be reviewed for release) but expanding eligibility to include 3g and sex offenders who suffer from a condition that does not rise to the current law’s requirement of “a terminal illness.”  Under the LBB’s proposal, any inmate with a terminal illness OR a physical disability OR a condition requiring long-term care OR a mental illness OR mental retardation can be released on medical parole if the parole board determines the inmate is not a threat to public safety.  (And such a bill has already been filed; see HB 512 by S. Thompson.) As far as we can tell, what the LBB proposal does not include is any opportunity for prosecutors to weigh in on this process or learn about the offender’s condition.  But that should hardly be surprising; after all, they are the Legislative BUDGET Board, not the public safety board.  Therefore, it will be up to prosecutors to provide that perspective, if any, this session.

         Discovery reform meets technology.  There will be multiple bills filed this session to change the way discovery is done in criminal cases, but technology can often make those amendments obsolete.  For example, the Governor’s Criminal Justice Division (CJD) just released its Request for Applications (RFA) for the 2013-2014 Justice Assistance Grant (JAG) program.  One significant development for prosecutors is that there is a new grant priority directed to “technology that promotes electronic discovery for defense counsel.”  If you’ve always wanted to move your county to a new, less paper-reliant discovery system, this could be just the seed money you need.  The deadline for grant applications is February 28, 2013, so don’t delay!  The RFA includes more detailed information and can be found on our website at http://www.tdcaa.com/announcements/rfa-jag-grant-funds-now-available.

         CJD grants and reporting requirements.  Speaking of grants, today the CJD also issued a memo reminding all its grant applicants that CJD will not award funds to any unit of government or non-profit agency located in a county that reports less than 90% of its adult and juvenile criminal history dispositions to DPS as of August 1, 2013.  When this policy was initiated in regard to the reporting of adult dispositions last year, 227 of the 254 counties met the 90% requirement by the deadline, but it remains to be seen if the same compliance can be reached when juvenile dispositions are included.  As with last year’s announcement, CJD will consider requests for short-term grant funding to assist counties in meeting the 90% requirement; contact Judy Switzer (judy.switzer@gov.texas.gov) if you would like to discuss that assistance.  Also, if you have any technical questions about criminal history data reporting requirements or would like contact information for the DPS field liaison for your area, contact Angie Kendall (angie.kendall@dps.texas.gov) at DPS.

         Next week.  It should be another relatively quiet week as legislators recover from their post-inauguration party hangovers and get back to work mid-week.  It’s expected that committee assignments could be handed down on Friday, which will give us an idea of which legislators will have the primary role in your business this session.  Until then, we wait and watch.

         Newly-filed bills.  Speaking of bills, here’s a list of some filed this past week:

HB 452 by Dukes increasing penalties for certain acts of deadly conduct

HB 469 by Hernandez Luna loosening the eligibility requirements for visiting judges

HB 470 by White requiring elected officers to be physically present in office

HB 501 by Hernandez Luna permitting asset forfeiture funds from law enforcement agencies to be used for certain college scholarships

HB 512 by S. Thompson changing eligibility rules for medical parole

HB 516 by Pitts relating to DWI blood search warrants issued by certain judges

HB 517 by Pitts increasing the parole eligibility rules for felony DWI offenders

HB 526 by Capriglione limiting confidentiality of public retirement system records

HB 528 by S. Turner further restricting access to juveniles’ fine-only misdemeanor records

HB 530 by Fletcher expanding the interception of wire/oral/electronic communications

HB 534 by Kleinschmidt increasing penalties for repeated acts of resisting arrest

HB 544 by Kleinschmidt lowering penalties for theft of certain metals under $500

HB 553 by Otto creating a criminal offense for enforcing certain federal gun regulations

HB 557 by L. Gonzales requiring only one rear license plate on a vehicle

HB 574 by Lozano making bail jumping for murder or capital murder a 1st-degree felony

SB 178 by Davis expanding disclosures on candidates’ personal financial statements

SB 182 by Birdwell authorizing concealed handguns on college campuses

As always, you can read these bills at www.capitol.state.tx.us or use the bill tracking buttons on the top of our legislative webpage to check the status of bills amending the Penal Code, Code of Criminal Procedure, and some other important bills we are watching.

         Quotes of the week.  Here are some bon mots from the second week of the session to inform and/or entertain you. 

“The Legislature is tough on crime and potential criminal defendants, except when it’s them.”
            —Fred Lewis, ethics watchdog, explaining why the Texas Ethics Commission has no teeth.

“We’re sending too many people to the slammer.  The taxpayers and the business community are both being harmed.”
            —Bill Hammond, TAB president, explaining why his group wants fewer people incarcerated. 

“Every dollar spent on prisons that doesn’t need to be spent there can’t be spent on roads, infrastructure, schools, and all the other priorities that the state needs to have, to have a successful business environment. … An inefficient corrections system hurts business with higher taxes.”
            —Marc Levin, with the conservative/libertarian Texas Public Policy Foundation, explaining why the business community should support a smaller prison system.

“It appears that even though the OU defense couldn’t stop him, the City of Ennis P.D. is a different story altogether.”
            —Ennis Municipal Court Judge Lee Johnson, posting comments on his Facebook page after Heisman Trophy-winning Aggie QB Johnny Manziel recently received a speeding ticket in his city.  Judge Johnson (a graduate of Baylor) may face sanctions from the State Commission on Judicial Conduct due to the post.

Have a great weekend!

Posted: Friday, January 4, 2013 

          Four days and counting until the start of the 83rd Regular Session of the Texas Legislature.  Guess this thing is actually going to happen.  Can’t tell you how peeved we are that the Mayans were wrong.

          #StateJailFail.[1]  This hash tag neatly sums up the conclusions reached by several policy groups on opposite ends of the political spectrum.  On the left, the Texas Criminal Justice Coalition (TCJC) recently issued talking points attacking the state jail system for needlessly locking up non-violent offenders who they believe should be on community supervision.  On the right, the Texas Public Policy Foundation (TPPF) has a Center for Effective Justice that also issued a white paper and an editorial attacking the state jail system for being too costly and having a higher recidivism rate than inmates coming out of (what used to be known as) TDCJ’s institutional division.  The topic also made for a weekend cover story in the Austin American-Statesman, which pointed out that the lack of treatment and rehabilitation programs in state jails, combined with the proliferation of drug courts and other specialty programs in local communities, might have made the 1990s-era state jail model obsolete. 

               And truth be told, prosecutors as a group have never seemed very enamored of the state jail system.  The initial mandatory probation aspect of the punishment scheme was considered necessary to make the prison (read: state budget) numbers more manageable and was part of a well-intentioned belief that combining lots of treatment programs with short stays in the state jail for misconduct would reduce recidivism.  Unfortunately, the mandatory probation aspect of the system created an immediate train wreck on court dockets throughout the state and it proved to be politically unpopular with legislators and state leaders facing re-election, so the legislature quickly back-tracked on the whole idea (followed by a see-saw effect over the years as various offenses were again granted or subsequently denied mandatory probation status).  In addition, the odd enhancement provisions and unique rules applying only to state jail felonies have always created confusion and/or frustration.  Legislative tinkering around the edges—like the “diligent participation credits” enacted by last session’s HB 2649—have usually not panned out, either.  (Not only is that kind of non-parole clemency of questionable constitutionality, but no one in the system—including the inmates themselves—seems to like it.)  Finally, the legislature’s continued failure to adequately fund the “therapeutic treatment community” model originally envisioned by the system’s creators have hamstrung to state jail model from the outset, leaving it as little more than a fourth-degree felony without parole.

               So, where does the state go from here?  Well, the coordinated attacks from the right and the left both propose essentially the same solution: returning to mandatory probation for state jail felons, reserving temporary confinement only for use as a modification/revocation option, and implementing an early release/parole aspect for re-entry of those who are revoked and confined.  This concept appeals to these strange political bedfellows because neither want anyone locked up for any non-violent crime (albeit for different reasons).  Of course, that “back to the future” solution was exactly the kind of poorly-thought-out policy that didn’t work in the mid-1990s because it ignored the realities of the plea bargaining and trial process that puts offenders into the state jail system in the first place.  It also doubles-down on the failed concept of tasking all judges with micro-managing state jail probationers, which is not why anyone runs for a seat on a district court bench.  But if it’s true that those who don’t their know history are destined to repeat it, then we could be in for another verse of this same old tune unless prosecutors educate today’s policymakers on why their predecessors’ policies failed.  This could also be an opportunity to float new ideas for these offenders —keeping in mind that anything costing the state more than it currently spends on the state jail system will be dead on arrival, of course.

          Pre-filed bills.  Legislators pre-filed almost 130 bills in December.  (That might sound like a lot, but later in the session, they will be filing that many [or more] bills every single day.)  Several of them might sound familiar from past sessions, while others have been newly sprung from the clever/devious minds at the Capitol.  Here’s a sampling:

HB 220 by Price authorizing courts to stack certain injury to a child cases
HB 235 by Riddle enhancing the punishment for burglary of a vehicle
HB 255 by Miles expanding early prison release programs for certain drug offenders
HB 256 by Miles expanding early prison release programs for certain probation violators
HB 260 by Callegari mandating ignition interlock for DWI-1st offense
HB 261 by Miles requiring severance of co-defendants’ trials in death penalty cases
HB 266 by Miles increasing the penalty for official oppression by peace officers
HB 279 by Lucio III enhancing the punishment for theft of a pet
HB 281 by Lucio III granting deceased peace officer’s families a right of allocution
HB 289 by Zedler expanding the AG’s authority to investigate election-related crimes
HB 295 by Rodriguez creating a commission to study drowsy driving
HB 309 by Fletcher creating an offense for sex-selective abortions
HB 319 by Dutton prohibiting the death penalty for defendants convicted as a party
HB 320 by Dutton mandating recordings of custodial interrogations in death penalty cases
HB 321 by Dutton limiting the collateral consequences of a deferred adjudication
HB 328 by Dutton making intentional Brady violations a felony w/ no statute of limitations
HB 330 by Riddle authorizing extraneous evidence in the trial of certain sex crimes
HJR 51 by Murphy denying bail to certain felons who are unlawfully present in the U.S.
SB 12 by Huffman authorizing extraneous evidence in the trial of certain sex crimes
SB 20 by Patrick criminalizing certain searches (“Don’t Touch My Junk” bill) 

As always, you can read these bills at www.capitol.state.tx.us or contact Shannon or Rob at TDCAA for more information. 

          Quotes of the week.  As always, we save the best for last. 

“I don’t think we ought to do away with state jails, but I don’t think it’s practical to go back to the original concept, either.  A lot has changed in our criminal justice system since 1995.”
               —State Sen. John Whitmire (D-Houston), chairman of the Senate Criminal Justice Committee, commenting upon the various proposals to change the state jail system. 

“I’ve heard of people being killed playing ping-pong—ping-pongs are more dangerous than guns.  Flat-screen TVs are injuring more kids today than anything.”
               —State Rep.-elect Kyle Kacal (R-Bryan), telling the Bryan-College Station Eagle why he opposes certain gun control initiatives in the wake of the Sandy Hook (CT) school shooting. 

“A Michigan lawyer has been arrested for manufacturing crystal meth in his office.  I hope the fact that this guy’s a lawyer doesn’t send the message that somehow all meth dealers are sleaze balls.”
               —Jay Leno 

               That’s all for now!  The real fun will start next week, so tune in again next Friday for more scoop.

Posted (from previous version): November 16, 2012

FOR AN UPDATED LIST OF NEWLY-ELECTED PROSECUTORS, CLICK HERE.

         New legislative line-up, or same-old, same-old?  The shortest way to summarize Texas’ legislative races is that many of the faces will change, but the numbers won’t.  For example, there will be 44 new House members (out of 150 total seats), but the overall partisan split moved by only seven seats.  The GOP gave back some of the gains it made in 2010, but Republicans still hold a 95-55 advantage over their Democratic colleagues.  Over in the Senate, five new members (out of 31 total seats)—all Republicans—will claim their spots in the upper chamber, but the overall split is the same as before: a 19-12 GOP advantage.  This leaves Republicans in firm control of the state legislature, but just shy of wielding super-majorities in both chambers.  For more on what looms ahead, be sure to come to our Elected Prosecutor Conference in four weeks!

         Bill filing starts Monday.  Legislators can start to file legislation for the impending 83rd Regular Session on Monday.  If history is any guide, a few hundred bills will be filed next week, then that brief burst of action will slow to a crawl until after the holiday season.  As always, TDCAA will be tracking various bills of interest to prosecutors, and you can follow along with us through the links at the top of our Legislative webpage.  There you can find bill tracking reports for legislation that amends the Penal Code, the Code of Criminal Procedure, and a general “Bills to Watch” category for the most important bills (like those that affect your funding, your jurisdiction, and your conduct).

            Beginning with our next update in two weeks, we will provide a summary of the most important, outrageous, or sneaky bills being filed in the Legislature.  The pre-filing period usually consists of a large volume of several hundred bills being filed immediately, after which the filings slow to a trickle until the second week of January.  Statistically, pre-filed bills have no greater chance of success than bills filed after the session begins, and they arguably fare worse than bills filed as late as March, but that doesn’t stop legislators from doing it anyway.  Pre-filing is mostly an opportunity for legislators to draw attention to themselves their legislative priorities during the holiday season’s slow news cycle, so don’t get too worked up about anything you see before 2013. 

         Legislative rotation.  Starting with next month’s Elected Prosecutor Conference, we will be signing up prosecutors to volunteer to come to Austin to watch/learn about/impact the legislative process.  This popular rotation program enables prosecutors to come to Austin for two to four days of legislative sausage-making.  The program is open to any TDCAA member from any office.  If interested, email Shannon or call him at 512/474-2436 to request more information and/or reserve your spot during a week of your choice.  We will schedule two prosecutors per week on a first-come, first-served basis, so don’t delay—talk to your judge(s) and your staff and plan a trip to Austin soon.  We’d love to see you this session, so reserve your week today!

         Elected Prosecutor Conference.  As previously mentioned, our Elected Prosecutor Conference is set for December 5–7 at the Omni Southpark in Austin.  We already have more than 160 elected prosecutors pre-registered for the event, so this is shaping up to be one of the biggest Elected courses in recent history.  If you aren’t already signed up, register for the course today athttp://www.tdcaa.com/training/2012-elected-prosecutor-conference.  Also, if you have any questions about the newly-elected prosecutor boot camp that accompanies the conference, call Rob Kepple at 512/474-2436 or email him.

         Quotes of the month.  As always, we save the best for last.

“It’s pretty hard for the caucus to be more conservative than it has been.”

            —Eric Bearse, Republican consultant to Speaker Joe Straus, answering claims that the make-up of the next Texas House will be more conservative than ever.

“We’re relevant again.”

            —State. Rep. Jessica Farrar (D-Houston), leader of the House Democratic Caucus, referring to the end of the Republican super-majority in that chamber.

“Federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or gold fish too quickly.”

            —Colorado Governor John Hickenlooper (D), cautioning his citizens about the limits of their state’s new constitutional amendment legalizing the recreational possession of up to 1 oz. of marijuana for adults.  Washington state also passed a similar measure.

And finally, one of our favorite post-election quotes, applicable to every election at every level of government:

“Democracy is the theory that the common people know what they want and deserve to get it good and hard.”

            —American satirist H.L. Mencken (1880-1956).

Posted:  Friday, September 28, 2012

         Thanks to everyone who came down to South Padre to make this year’s Annual Update one of the best ever.  We loved seeing people enjoy themselves while logging some quality MCLE and TCLEOSE hours.  Next year’s Annual will be in Galveston, so reserve your rooms now!

         New TDCAA officers for 2013.  The TDCAA Annual Business Meeting was held last week in South Padre.  Here are the results of the elections for Board:

Chairman of the Board:                     Lee Hon, CDA in Livingston
President:                                         David Escamilla, CA in Austin
President Elect:                                 Rene Peña, DA in Floresville
Secretary/Treasurer:                         Staley Heatly, DA in Vernon
Criminal District Attorney-at-Large:   Joe Shannon, CDA in Fort Worth
County Attorney-at-Large:                Daphne Session, CA in Crockett
Region 1 Director:                              Randall Sims, DA in Amarillo
Region 2 Director:                              Randy Reynolds, DA in Pecos
Region 4 Director:                              Patrick Flanigan, DA in Sinton
Region 7 Director:                              Maureen Shelton, CDA in Wichita Falls
Assistant Prosecutor-At-Large:         Dan Joiner, Asst. CDA in Abilene (by appointment)

These prosecutors assume their new office on January 1, 2013.  Next time you see any of them, wish them luck in their new endeavors and thank them for their service!

         The future of public retirement systems. The House Committee on Pensions, Investments, and Financial Services held an interim hearing earlier this month on the status of various public pension systems and what changes (if any) they need.  The Texas County & District Retirement System (TCDRS) was first in the dock and received positive reviews from several committee members, some of whom went so far as to ask what lessons from TCDRS’s success could be applied to other, less robust public pension systems.  However, it wasn’t all hugs and kisses—Collin County Judge Keith Self testified to complain about his county having to supplement their employees’ retirement payments and suggested that TCDRS’ seven-percent guaranteed return be abolished and replaced by pure market returns to help counties meet (read: stop funding) that obligation in the future.  There was also public testimony from several taxpayers from Collin and Grayson Counties complaining about TCDRS (which leads us to wonder if there is something in the water up in North Texas that makes people get worked up about this issue).

            The retirement systems for state employees (ERS), teachers (TRS), and municipal workers (TMRS) all had their say as well.  Among the points made by representatives of those groups was the observation that the state can’t switch them to defined contribution (401(k)-type) systems for new hires without destroying the funding system for existing obligations.  Other studies conducted by these systems concluded that switching to defined contribution plans would cost more to deliver the same returns as the current defined benefit plan.  Of course, many of those advocating for the elimination of public pensions are just fine with shrinking the retirement benefits provided to public employees, but right now, it appears that the only reason to change the nature of public retirement systems in Texas is ideology, not fiscal security. 

         Interim hearings.  Work at the Capitol will slow down as the November elections consume the politicians’ attention, but here are a few hearings of interest:

COMMITTEE:          Senate Criminal Justice (with the Senate Education Committee)
TIME & DATE:          Tuesday, October 30, 2012, at 9:30 a.m.
PLACE:                      E1.036 (Senate Finance Hearing Room)
CHARGES:                 Joint hearing on school discipline practices, including juvenile referrals, Class C citations, “zero tolerance” policies, and school police departments

COMMITTEE:          Senate Criminal Justice
TIME & DATE:          Tuesday, October 30, 2012, 15 minutes after joint hearing
PLACE:                      E1.016
CHARGE:                   Prescription drug abuse 

COMMITTEE:          Senate Select Committee on Open Government
TIME & DATE:          Monday, November 26, at 10:00 a.m.
PLACE:                      2E.20 (Betty King Committee Room)
CHARGE:                   Study all five charges (privatization, security, retention, frivolous requests, and prior legislation)

         Victim services award.  The Victim Services Board is accepting nominations for the first-ever Suzanne McDaniel Award in honor and memory of the special person who served as TDCAA’s first Victim Services Director. The person selected for this award should exemplify the qualities that were so evident in Suzanne herself:  advocacy, empathy, and the constant recognition of rights of victims.  The criteria necessary for an individual to be nominated are as follows:

• The person must be employed by a County Attorney, District Attorney or Criminal District Attorney’s Office in Texas;
• At least a portion of the individual’s job duties must involve working directly with victims; and
• The person must have a demonstrated history of service to TDCAA, victim services, and prosecution.

Anyone working in a prosecutor’s office may nominate a person who meets the above qualifications, even someone working in another office.  To nominate someone, please provide the nominee’s name, office of employment, phone number, and a short 50-word description of why you believe the person deserves this award.  This information should be emailed to Diane Beckham.  The nomination must be sent by 5:00 p.m. this Wednesday, October 3, 2012.  The presentation of the award will take place during the Key Personnel/VAC conference (November 7­–9, 2012, at the Dallas Sheraton).

         Victim services board update.  The chairman of the Victim Services board of directors for 2013 will be Jill McAfee (Bell County DA’s Office), who will take over for Cyndi Jahn (Bexar County CDA’s Office).  Mary Robinson (Lubbock County CDA’s Office) was also elected to be the new Region 1 representative.  TDCAA has sent letters this week to all elected prosecutors in four other regions—Regions 3, 5, 7 and 8—seeking nominations for regional representatives in those locations for two-year terms that begin January 1, 2013.  (Click HERE for a map of TDCAA regions.)  Regional representatives are responsible for helping plan training for victim assistance coordinators (VACs) at prosecutor offices and answering technical assistance questions from VACs in the region.  Elected prosecutors may send nominations to Diane Beckham by Monday, October 15.  Nominations will be forwarded to current VS Board Chair Cyndi Jahn, who will then choose the new board members from the pool of nominees.

         Time for another DWI Summit!  Our third DWI Summit, entitled Guarding America’s Roadways: Investigating & Prosecuting the Impaired Driving Crash, will be broadcast over the Anheuser-Busch Company’s satellite network on November 15.  It’s free to all Texas prosecutors and law enforcement officers and includes five hours of MCLE/TCLEOSE credit, plus three free TDCAA publications.  Online registration opens on October 9, so keep an eye on our website to sign up.

         Preview of Elected Prosecutor Conference.  The Elected Prosecutor Conference is set for December 5–7 at the Omni Southpark in Austin.  You can register for the course at www.tdcaa.com/training. We will have great presentations on topics such as charging decisions, use of deferred prosecutions, office policies, discretionary funds, open government, ethics and the media, and the upcoming legislative session.  In addition, we will continue our series of district and county attorney forums, where you have the opportunity to share your concerns and get help from fellow prosecutors.

            Because this conference comes shortly after an election, we will also be hosting a Newly-Elected Boot Camp exclusively for prosecutors who have taken office in the last year or who will take office on January 1, 2013.  This program will begin on Tuesday, December 4, at 2:00 p.m. (at the same location) and continue Wednesday morning before the general session begins.  This boot camp program, taught by experienced district and county attorneys, is designed to prepare newly-elected prosecutors for the challenges of being their community’s chief law enforcement officer and running a modern law office.  If you have any questions about the boot camp, contact Rob Kepple.   

         Quote of the month.  As always, we save the best for last.

“I had the defendant secure the squirrel and then exit the vehicle.”
            —from the offense report detailing the DUI arrest of Warren Michael III, who blamed his erratic driving on the squirrel in his shirt.

Posted: July 27, 2012

Don’t forget to vote in the primary run-off of your choice on Tuesday—if one vote could ever make a difference in an election, these odd July run-offs could be it!

         CJIS reporting and grant applications.  For several months we’ve been updating you on the criminal history reporting edict from the Governor’s Criminal Justice Division (CJD) and how it may affect future grant awards from that office.  If you recall, that new mandate requires agencies seeking grants under CJD’s Justice Assistance Grant (JAG) program to certify by August 1 of this year that their county reports to DPS at least 90 percent of their completed dispositions for adult arrests for calendar years 2006–2010.  Each office in a non-compliant county will be ineligible for JAG funds if that threshold has not been met by the county by next week.  Furthermore, effective September 1, 2013, all entities—public and private—in a county that does not successfully report at least 90-percent of its adult and juvenile dispositions will be ineligible to receive grants from any state or federal fund managed by CJD.

            At our most recent stakeholders meeting, DPS reported that most counties have made significant progress in reporting criminal dispositions.  From January through June 2012, the number of counties reporting 90 percent or more of their adult dispositions has increased from 55 to 181 (and 32 additional counties are within 5 percentage points of that mark).  That’s a pretty impressive increase, even if the tactics to get there were not popular.  And yet, as of last week there were JAG requests from agencies in at least five counties (Brooks, Cameron, El Paso, Gregg, and Tyler) that were in jeopardy of denial due to inadequate reporting from those counties.  In addition, DPS’s State Administrative Agency (SAA), which administers the state’s Homeland Security Grant Program, may also be denying all grant applications from non-compliant counties.  But all of that pales in comparison to the deadline looming on September 1, 2013, when all grant funds administered by CJD are at risk.  We don’t keep track of which prosecutors receive which grants from the state, so you are on your own in that regard, but don’t get caught napping on this issue—the grant you save may be your own.

         Appleseed discovery request.  Last week we caught wind of a survey that is being distributed to prosecutors and defense attorneys by Texas Appleseed.  Despite no mention of this project on the non-profit organization’s website, a cover letter that accompanied a survey sent to one jurisdiction stated that “[t]he goal of the project is to collect data about the discovery practices in counties around Texas and to make recommendations for changes that will bring uniformity to the process.”  In other words, whatever you say is going to be used by Appleseed to support discovery reform legislation they will be pushing.  We aren’t sure that the Appleseed folks are contacting the elected prosecutor in each office, so be forewarned that assistant prosecutors may get this survey directly.  If you have any questions about this, contact Rob or Shannon at the association.

         VICARS.  Speaking of random prosecutor surveys, there’s yet another one floating around the state that originated with a group called VICARS (Victims Initiative for Counseling, Advocacy, and Restoration of the Southwest).  This advocacy group for victims of identity theft is asking prosecutors around Texas for information regarding their protective orders practices.  (From ID theft to protective orders?  Huh?)  As with the Appleseed effort, this request appears to be a voluntary survey that you may complete or not, as you see fit; unlike Appleseed, we’ve neither heard of nor worked with VICARS before, and we have been unable to learn much of anything about it online.  As always, use your best judgment in responding to requests from information from your office, and if you have further questions about this, contact Diane at the association.

         The ABA’s (anti-)death penalty circus comes to Texas.  While we’re on the subject of surveys, consider this to be advance notice of one that you will get in the near future.  For the past decade, the American Bar Association (ABA) has conducted a series of death penalty “studies” on various states’ capital punishment laws.  It should come to no one’s surprise that the ABA—an organization that has taken a strong position against the death penalty, notwithstanding its lawyerly parsing of its position as being in favor of only a moratorium for now—has been critical of every state system examined to date.  With a dozen separate state reports under its belt, the ABA has now turned its attention to Texas and Virginia, two states with very active capital punishment systems.  Let the fun begin!

            Now, before you protest that we are being unfair about the motives of our friends at the ABA, let’s examine two pieces of evidence.  First, if you click on the initial link in the above paragraph, you’ll notice that the ABA now admits something it originally kept under wraps last decade, when it started these state reviews; namely, that the project is funded by the European Union.  Yes, that’s right; the American Bar Association is taking money from a foreign government to “study” an issue that foreign government strongly opposes.  As ridiculous as it sounds, the ABA still claims that it isn’t in the abolition business; however, that’s certainly not what the EU thinks they are getting for their euros:

EU funding also allows non-governmental organisations [sic] to campaign for the abolition of the death penalty. Projects may range from the monitoring of the use of the death penalty to assistance to prisoners, support for constitutional reform, training, advocacy and awareness-raising campaigns.

But you keep sticking to your party line, ABA—you know the mainstream (and anti-death penalty) media will never call you on the carpet to answer for it.

            Further evidence that “the fix is in” can be gleaned from the recent announcement of the members of the Texas Capital Punishment Assessment Team.  They are (in alphabetical order after the chairwoman, with our comments added):

• Professor Jennifer Laurin, UT School of Law, chairwoman (who recently hosted the Innocence Commission’s “Prosecutorial Oversight” tour stop in Austin to highlight the supposed lack of prosecutor accountability in Texas)
• Ronald Breaux, Haynes & Boone, LLP (a federal white-collar criminal defense lawyer who was involved in a state habeas action that led to a federal lawsuit against Lamb County Attorney Mark Yarbrough, who had to go to jury trial before being absolved of liability)
• Paul Coggins, Locke Lord LLP (another federal white-collar criminal defense lawyer, albeit one with federal prosecution experience as a former U.S. Attorney)
• State Senator Rodney Ellis (D-Houston) (an admitted skeptic about the death penalty)
• Judge Royal Furgeson, Jr., U.S. District Court, Northern District of Texas (and future dean of the new law school opening at the University of North Texas at Dallas)
• Former Judge Deborah Hankinson of the Texas Supreme Court (not the CCA, mind you, but SCOTX, the one that does not hear criminal cases)
• Professor Ana Otero, Thurgood Marshall College of Law (and author of such articles as Tinkering with the Machinery of Death in Texas: A Chronicle of Unbridled Injustice and Abuse, 16 Geo. Mason U. Civ. Rts. L. J. 183 (2006))
• Jack Stoffregen, Director of the Regional Public Defender for Capital Cases (who at least practices state death penalty law, even if it is in opposition to it)
• Charles Terrell, Sr., former Chairman of the Texas Department of Criminal Justice (who famously asked that Texas’ Death Row facility not be named after him because of his objections to the death penalty)
• Former Gov. Mark White, who is also co-chairman of the Constitution Project’s (anti-) Death Penalty Committee

Joining this group will be a token sacrificial lamb lone prosecutor, El Paso DA Jaime Esparza, who is the only member of the panel to prosecute a state death penalty case in the past 20 years (if at all).  So … congratulations, Jaime!  As they say about the Texas Rangers, “One Riot, One Ranger!” Good luck with that, even though we already know how it’s going to turn out. 

            One last note for consideration: When Missouri prosecutors were recently faced with the same situation, they adopted a position of non-cooperation with the ABA’s review; see http://www.sfgate.com/news/article/Mo-prosecutors-stay-quiet-on-death-penalty-study-3703062.php for the details, including information on why some prosecutors in that state refused to answer the exhaustive questionnaires submitted to them by the ABA committee.  It is not our place to say whether Texas prosecutors should do the same, but we thought you should know how prosecutors in other states have most recently addressed the issue.

         Interim hearings.  Not much to report on this front.  The Senate Finance Committee heard testimony on prison health care costs, including the usual complaints about sick and/or elderly prisoners costing the state too much money, but no recommendations were made.  The State Judicial Conduct Commission also took some heat during a hearing of the House Judiciary & Civil Jurisprudence Committee over its lack of due process for judges accused of misconduct, but again, it is unclear at this stage whether anything will come of that discussion.  Lastly, the House County Affairs Committee debated the impact of various pre-trial bail practices on county jail overcrowding without coming to any conclusions.  All of these topics (and others we’ve mentioned in this space during the interim) are likely to find their way into committees’ final interim reports, which should be issued between October and December of this year.  Until then, we wait.  Meanwhile, there are no (zero, zip, zilch) interim committee hearings scheduled for August on issues that directly affect TDCAA members, so be thankful for small favors.

         Have you registered for the Annual Conference yet?  If not, visit our registration page at http://www.tdcaa.com/training/2012-annual-criminal-and-civil-law-update and sign up today so you can join us at TDCAA’s 2012 Annual Criminal and Civil Law Update, which will be held September 19–21 on South Padre Island.

         Foundation news.  The Texas District and County Attorneys Foundation is hosting a summer social function for the district attorney and county attorney offices and TDCAA members living in Central Texas (especially Hays, Travis, and Williamson Counties). Please join us for drinks and snacks on Wednesday, August 1, from 6:00 p.m.–8:00 p.m. at Speakeasy Bar at 412 Congress Ave., in downtown Austin. For more information, email Jennifer Vitera at vitera@tdcaa.com. The Foundation will be hosting social gatherings across the State throughout the year, and we will keep you posted on one coming to you in the near future.

         Quotes of the month.  As always, we save the best for last.

“I mean, it sounds great; it makes really good news.  It makes quite a story and it sounds very inflammatory, but when you get down to the nuts and bolts of the legal explanation, that’s when people go, ‘Oh, yeah, I can see that.’”
            —Karen Morris, Harris County Assistant DA, quoted in an article about court challenges to the state’s asset forfeiture laws and why claims made by advocacy groups do not pan out. 

“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what is will be tomorrow.  Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
            —Publius (James Madison), Federalist Papers, No. 62, printed February 27, 1788 (and still relevant to anyone familiar with the work of the Texas Legislature). 

“Who among us should have immunity for what we do in our job?”
            —Exoneree Michael Morton, expressing his outlook on the purpose of the court of inquiry into his original prosecution by Williamson County authorities (at the 12:50 mark of this video following his interview on PBS’s Overheard; to view the interview that aired earlier this month, check out http://video.klru.tv/video/2258252533).

Thursday, May 31, 2012

            Here’s the news you’ve all been waiting for, listed by county.  (If you see any errors or omissions, please send them to Shannon).  And now, without further ado … drum roll, please ...

District Attorney results 

Primary winners with no general election opponent (congratulations to all!):

Bosque/Comanche/Hamilton (220th JD):  (R) B.J. Shepherd (i) beat Ricky Bryan

Coryell:  (R) Asst. CA Dusty Boyd beat David Castillo (i)

Dawson/Gaines/Garza/Lynn (106th JD):  (R) Garza CA Mike Munk defeated Brian Kingston (i)

El Paso/Hudspeth/Culberson (34th JD):  (D) Jaime Esparza (i) defeated James Lucas

Gray/Wheeler/Hemphill/Lipscomb/Roberts (31st JD):  (R) Hutchinson Asst. DA Franklin McDonough beat Asst. DA Jason Ferguson (to replace retiring DA Lynn Switzer)

Guadalupe/Gonzales/Lavaca (25th JD):  (R) Heather McMinn (i) defeated Patricia Finch

Kerr/Kimble/Mason/McCulloch/Menard/Edwards (198th):  (R) Scott Monroe defeated Asst. DA Brad McCullouch (to replace retiring DA Amos Barton)

Liberty:  (R) Asst. DA Logan Pickett defeated Asst. CA Karen McNair (to replace retiring DA Mike Little)

Medina/Real/Uvalde (38th JD):  (R) Danny Kindred (i) beat former DA Tony Hackebeil

Montgomery:  (R) Brett Ligon (i) defeated Gilbert Garcia and Tracy Pullan

Pecos/Crockett/Reagan/Sutton/Upton (112th JD):  (D) Laurie English (i) defeated James Jepson

Starr/Duval/Jim Hogg (229th JD):  (D) Omar Escobar defeated Heriberto Silva (i)

Tom Green/Schleicher/Sterling/Coke/Irion (51st JD):  (R) Asst. DA Allison Palmer defeated Andrew Graves and Nathan Butler (to replace retiring DA Steve Lupton)

Tom Green/Runnels/Concho (119th JD):  (R) George McCrea (i) beat Evan Pierce-Jones

Travis:  (D) Rosemary Lehmberg (i) defeated former CCA judge Charlie Baird

Washington/Burleson (21st JD):  (R) Washington CA Julie Renken beat Bill Parham (i)

Young/Stephens (90th JD):  (R) Dee Peavy defeated Brenda Gray (i)

Primary run-offs with no general election opponent (winner take all):

Brazos:  (R) Asst. DA Jarvis Parsons vs. David Hilburn (to replace retiring DA Bill Turner)

Burnet/Blanco/Llano/San Saba (33rd JD):  (R) Angela Dowdle vs. Wiley “Sonny” McAfee (to replace retiring DA Sam Oatman)

Pecos/Brewster/Jeff Davis/Presidio (83rd):  (D) Former DA Frank Brown vs. Former Presidio CA Rod Ponton (Jesse Gonzales (i) failed to make the run-off)

Wharton:  (R) Asst. DA Ross Kurtz vs. former DA John Roades (to replace retiring DA Josh McCown)

Primary winners headed to general election:

Harris:  (R) Former ADA/district judge Mike Anderson defeated Pat Lykos (i); (D) Lloyd Wayne Oliver defeated Zack Fertitta

Jim Wells/Brooks (79th JD):  (D) Kleberg Asst. DA Carlos Omar Garcia beat Armando Barrera (i) (but only by 18 votes, so expect a re-count); will face (R) Christina Flores in November

Williamson:  (R) CA Jana Duty defeated John Bradley (i); will face (D) Ken Crain

Primary run-offs headed to general election:

Shelby:  (R) Asst. DA Ken Florence vs. former DA Karren Price (to replace retiring Lynda Russell); will face (D) Stephen Shires in November

County Attorney results (*=office with felony jurisdiction)

Primary winners with no general election opponent (congratulations!):

Bell:  (R) Asst. CA Jim Nichols defeated Bobby Barina (to replace retiring CA Rick Miller)

Brewster:  (D) Steve Houston (i) defeated Pecos Asst. DA Sandy Wilson

Crane:  (R) Susan Loyless (i) defeated James McDonald 

Ellis*:  (R) Patrick Wilson (i) defeated Rodney Pat Ramsey

Ector:  (R) Asst. DA Scott Layh defeated Cindy Weir-Nutter (i)

Falls*:  (R) Jody Gilliam (i) beat Denny Lessman

Guadalupe:  (R) Asst. DA David Willborn beat Asst. CA Robert Etlinger (to replace CA Elizabeth Murray-Kolb, who ran for Railroad Commissioner)

Kimble:  (R) Allen Ahlschwede (i) defeated Larry Harrison (but only by seven votes, so there may be a recount)

Leon:  (R) Jim Witt (i) defeated J.B. Davis

Liberty:  (R) Wes Hinch (i) defeated James Farmer

Llano:  (R) Cheryll Mabray (i) beat Brandie Hussin

Ochiltree*:  (R) Barrett Dye defeated David Scott (i)

Reagan:  (R) Chad Elkins defeated Russell Ash (i)

Rusk*:  (R)  Mike Jimerson (i) defeated Allison Biggs

Washington:  (R) Former DA Renee Mueller beat Asst. CA Eric Berg (to replace Julie Renken, who will be the new DA)

Wheeler:  (R) Former Roberts CA Leslie Standerfer defeated Misty Walker (i)

Williamson:  (R) Asst. CA Dee Hobbs defeated Rick Kennon and Jeff Maurice (to replace Jana Duty, who is running for DA)

Primary run-offs with no general election opponent (winner take all):

Montgomery:  (R) Asst. CA Phyllis Rainey vs. J.D. Lambright (to replace retiring CA David Walker)

Primary winners headed to general election:

Cameron*: (R) Asst. CA Chuck Mattingly defeated former Willacy CA Gus Garza; will face winner of Dem. runoff in November (to replace Armando Villalobos, who ran for Congress)

Harris:  (R) Former state rep. Robert Talton beat Leslie Johnson; will face (D) Vince Ryan (i) in November

Primary run-offs headed to general election:

Cameron*:  (D) Willacy Asst. CA Carlos Masso vs. former CA Luis Saenz (to face (R) Chuck Mattingly in November to replace Armando Villalobos)

         Reminder regarding certain expenditures.  For you felony prosecutors leaving office (voluntarily or not) at the end of this year, please remember that the Legislature has imposed new requirements on the expenditure of asset forfeiture funds by “lame ducks.”  Specifically, Code of Criminal Procedure Art. 59.06(d-1)(6) prohibits an out-going office-holder from making any expenditure from those funds absent prior approval from the commissioners court.  This change was made to prevent a defeated or retiring official from emptying his or her forfeiture account before a successor took office.  We know none of YOU would ever consider doing that, but we thought we’d remind everyone of this recent change in state law anyway.  Similarly, for you county attorneys on your way out, remember that after the vote is officially canvassed in your unsuccessful re-election bid, Local Government Code Sec. 130.908 grants your commissioners court the right of approval over any expenditure by you that exceeds an amount set by them (assuming they have set such a threshold for that situation).

         Committee posting.  While we have you, notice of this hearing was just posted yesterday and we thought we’d put it on your radar:

The Joint Interim Committee to Study Human Trafficking will hear invited and public testimony on Tuesday, June 26  at 10:00 a.m. in the Alamo Area Council of Governments (AACOG) Board Room, 8700 Tesoro Dr., San Antonio, TX, to:

            • Study the services available for victims of human trafficking provided by federal, state, and local agencies and non-governmental organizations, including the long-range need for safe houses and shelters and the best practices for public/private partnerships providing services to victims; and
             • Review procedures and services available for youth identified as sex trafficking victims, including analysis of the appropriate criminal penalties associated with prostitution.

         Final arrangements for Suzanne McDaniel.  As most of you know by now, Suzanne McDaniel, TDCAA’s first Victim Services Director, passed away May 21 after a long struggle with pancreatic cancer.  (For more about Suzanne, read this Houston Chronicle article that ran last week.)  We still do not have details on any ceremony in Houston, but a memorial service celebrating Suzanne’s life will be held in Austin on Thursday, June 7, from 4 to 6 p.m. at the Westwood Country Club; directions to the club can be found at this website: http://www.westwoodcountryclub.com/default.aspx?p=DynamicModule&pageid=239803&ssid=93910&vnf=1.  Please keep checking the home page of our website for additional details.  Meanwhile, all inquiries that formerly would have gone to Suzanne should be directed to Diane Beckham for the time being.

         Quotes of the week.  As always, we leave you with a little humor ...

“They’ve seen my name on the ballot long enough, maybe they just thought I was the incumbent and voted for me.  Sometimes you just can’t beat dumb luck.”
            —Lloyd Wayne Oliver, perennial candidate and new Democratic nominee for Harris County DA, on his unexpected victory in this week’s primary.

“I’m hoping to get a phone call from some Democratic Super PAC that will send me a lot of money.  If so, I’m going to get me a John Edwards $300 haircut.  That’s the first thing I’m going to do.”
            —Oliver, in the same article, when asked about his strategy for the general election campaign.

“If John Bradley loses his election in Williamson County, then that’s a loud message to prosecutors all over the state that there actually are consequences to engaging in prosecutorial misconduct.”
            —Gary Udashen, criminal defense lawyer and president of the Innocence Project of Texas, expressing his opinion on the impact of the Michael Morton exoneration (which is interesting, coming from the president of a group that recently claimed there are no real consequences for prosecutorial misconduct).

“If the race tightens, Kelly, a male, will still have the advantage of a female name.  It may be the only time in his life he is glad his parents named him Kelly.”
            —Robert Miller, a Houston-based lobbyist and political handicapper, blogging last week about the primary race between House Reps. Kelly Hancock (R-Ft. Worth) and Todd Smith (R-Bedford) for an open state senate seat in Tarrant County.  (In the end, the name-bounce was not needed; Hancock handily beat Smith.)

“I kind of feel like Ron Burgundy after Veronica Corningstone changed the teleprompter tagline.”
            —Congressman Thaddeus McCotter (R-Michigan), making an Anchorman reference after finding out that he isn’t on the fall ballot for re-election and must now run as a write-in candidate.

            That’s all for now.  Look for our interim updates to resume their regular schedule at the end of June.

Posted:  April 27, 2012

As primary races get down to the lick-log, here’s what happened in Austin this month.

         ALERT:  DPS regional crime lab problem.  Please see http://www.tdcaa.com/announcements/alert-dps-houston-regional-crime-lab-issue. 

         DPS lab inspections.  Speaking of the DPS crime labs, they are being inundated with requests from defense lawyers to “inspect” the lab that tested evidence in a particular client’s case.  This latest bright idea being circulated at defense bar conferences is virtually certain to yield no actionable information for the lawyer, but it does serve to shut down each lab being “inspected” for an extended period of time.  In an effort to limit these work stoppages that contribute to backlogs at their labs, DPS would like to work with local prosecutors on ways to defeat these motions when they are specious or insert reasonable accommodations in any court order that is granted.  We’ll have more details on this front in the coming weeks, but for now, if you are confronted with this situation and need help, contact Shannon and he will connect you with the appropriate resource at DPS.

          CJIS reporting and grants.  OK, here’s one more DPS-related entry (but it’s the last one, we promise!)  There was yet another work group meeting earlier this month on the topic of criminal history reporting.  No new policy changes were announced by DPS or the Governor’s Criminal Justice Division (CJD), but we do have some interesting data to relay to you.  Specifically, by the end of last month, 97 counties were successfully reporting at least 90% of their criminal dispositions, up from 55 counties in early January.  In addition, more than 180 counties are currently reporting at 80% or higher, which is encouraging (but again, there has been no change in the 90% threshold previously set by CJD).  Overall, the statewide average reporting percentage has increased from 78% to 82% during the first quarter of 2012.  All of this is good news, but there are still some outliers potentially putting at risk future grant funds in those counties due to these compliance issues.  How this will all work out remains to be seen, but remember that CJD grant money exists to help counties improve their reporting rates; for more details, contact Shannon.

          Interim hearings.  With primaries just around the corner, the Capitol will be relatively quiet this month.  There were some committee hearings in April, but none of them resulted in anything concrete.  Looking ahead, the only relevant hearing announced for May is a Senate Health and Human Service Committee meeting scheduled for May 9, 2012, in the Senate Chamber, to review the state’s public mental health system.  And don’t forget:  Tuesday, June 5 will mark the sunset review hearings on TDCJ and related agencies (including the Board of Pardons and Paroles).  Stay tuned for more about that in next month’s interim update.

         Website changes.  Those of you who have recently visited TDCAA’s website might have noticed some changes designed to bring our association’s Internet presence into the 21st Century.  Here’s a brief description/explanation of some of those changes.

            For starters, there’s a new photographic slide show on our home page that will instantly take you to new content on the website if you click on the image.  Elsewhere on the front page, the former “TDCAA News” category in now “TDCAA Announcements,” and the former “Issues in Prosecution” list of news articles has been outsourced to our brand-new @TDCAANews feed on Twitter, which is mirrored on the website in real time as the “TDCAA News Twitter Feed.”  In addition to this new Twitter feed focusing on the latest news in the world of prosecution, we continue to increase our presence in the Twitterverse with our original @TDCAA account for legislative and policy issues, which now has over 250 followers (and adds more every week).

            In response to requests from our members, we’ve also upgraded our user forum to make it more robust and user-friendly.  For example, members of the forum can now post images, videos, and attachments within topic threads, obviating the need for follow-up phone calls or emails between prosecutors working together to solve a particular problem.  We’ve made several other improvements as well, so if you haven’t stopped by the user forum in a while, check it out!

         CCA survey on Brady.  We have been told that the Court of Criminal Appeals (CCA) has sent out an email survey to prosecutors concerning your training and practices in the area of Brady and disclosure of exculpatory evidence.  We hope that you will take the time to complete the survey.  If you have any questions, feel free to give Rob a call at 512/474-2436.

         Forensic science conference.  The CCA’s Criminal Justice Integrity Unit (CJIU) and the Texas Forensic Science Commission (TFSC) will jointly host a two-day forensic science conference on June 4–5, 2012 at the Texas State Capitol.  The course will provide 13.5 hours of free CLE (including one hour of ethics).  For details—including an agenda and a registration form—visit http://www.tdcaa.com/news/free-forensic-science-cle-conference.

         Help (still) wanted.  (OK, last month’s entry on this topic received zero responses, so let’s try a different tack …)  Do you complain about the State Bar being hostile to prosecutors?  Do you think it favors defendants and defense lawyers over your interests?  Well, here’s your chance to do something about it.  The State Bar has a Committee on Legal Services to the Poor that was created to help the State Bar improve the quality of indigent defense in Texas.  Shannon Edmonds currently serves on that committee, but his term ends later this year.  The committee has done good work lately, but if there is no prosecutor representation among its membership, the group could easily slide back into some of the anti-death penalty, anti-prosecution practices of the past.  If you want to help improve the quality of indigent defense in a reasonable yet meaningful way, review the committee’s website and then contact Shannon.  If nothing else, it will give you an excuse to come to Austin a couple of times each year (on the State Bar’s nickel, too!).

         Quote of the month.  “Given the defense lawyer’s casual relationship to truth, there is a stunning change of perspective when a lawyer represents an innocent person. Suddenly there is nothing more important than the truth, nothing more sacred. Now the lawyer who is ordinarily indifferent to the truth is plagued by it and outraged that the system is indifferent to it.”
            —Abbe Smith, in “Case of a Lifetime: A Criminal Defense Lawyer’s Story” (2008). 

February 24, 2012

           Do you know what the best news we received this month is?  Governor Perry has publicly rejected requests to call a special session on education funding.  That may not be good for public schools, but it’s great for those of us who would have to waste spend time at the Capitol during such a session watching for random policy fires that need to be put out.  But enough of our personal issues, let’s get on to the news from February (which we’re sending out a week early due to some time-sensitive information included below).

         Primary election dates.  Nothing dramatic has occurred in the past week on this front, so we won’t bore you with old news.  Talks of a split primary have apparently died a quiet death (mainly due to lack of funds), but no primary election date (or new filing period) has been set.  The earliest the election could be held is probably Tuesday, May 29, with run-offs held July 31 (if necessary), but even those dates are contingent on maps being finalized by this time next week, which is a crapshoot.  These delays create problems for the two political parties and their conventions, but that ain’t our problem (although if they need tips on how to put on a re-scheduled convention on short notice, our hurricane-tested Training Team has written the book on pulling that kind of rabbit out of the hat!).  The federal court panel is currently reviewing briefs on several contested Congressional and state House districts, but it is unknown when it will make a final decision on a primary election date.  Local election administrators told the court that they need finalized maps by March 3 to pull off a May 29 election.  If that deadline is blown, the next likeliest date is June 26.  For those of you keeping score at home, a June 26 primary would make Texas the last state in the Union to hold its presidential primary election this year (tied with Utah).  Check TDCAA’s website and Twitter feed for breaking news on this front, or if you are a true redistricting junkie, be sure to bookmark http://txredistricting.org/ for the inside scoop.

         CJIS reporting and grants.  TDCAA recently participated in another meeting with DPS and the Governor’s CJD regarding the latter office’s grant ultimatum on criminal history disposition reporting that we discussed last month.  Here’s what we learned from this meeting:

• In the past 30 days, 11 counties have improved their 5-year reporting ratio to 90 percent or greater.
• The new “absconder” code is now active and being accepted by DPS.  All counties were notified of the change by last week, but if you did not get that update, contact your local DPS representative (for contact information, see the attachment found on our website at http://www.tdcaa.com/content/cjis-information).  Remember, when you use the new code, be sure your court has issued—and your sheriff has uploaded—the absconder’s warrant into the state’s database; otherwise, you won’t get credit for it.
• Some counties have a significant number of entries (20–40 percent) rejected due to errors created by their local information systems. In other words, the human properly enters the records, but technical errors prevent them from being accepted by DPS.  And according to DPS, many county officials are unaware of the problem because their local IT people do not tell them about the errors.  If you are not already receiving these error reports, you should request them from your IT vendors and/or DPS.  Fixing those problems will increase your successful reporting completion rate.

Those are the highlights of last week’s meeting.  We will touch base with DPS and CJD in a few weeks to get an update on the latest numbers after the absconder codes start trickling in.  Meanwhile, CJD says it has not had many takers on its offer to award grant funds to help counties become compliant with the 90-percent reporting goal.  If your county hasn’t already asked for CJD’s help, you should consider doing so ASAP.  Otherwise, if you have any specific questions on this topic, contact Shannon.

         Interim hearings.  The House Appropriations Committee got its first report from the Legislative Budget Board (LBB) previewing the revenue estimates for the FY 2014–2015 state budget.  The good news?  Revenue growth from an improving state economy, driven largely by higher energy commodity prices and improved consumer spending, means that Texas budget writers could have $1.6 billion more to spend during the next biennium, plus an additional $7.3 billion in the Rainy Day Fund with which to play.  (Side note:  Texas has now created enough new jobs to offset all those lost from the recession; nationally, only 36 percent of lost jobs have been replaced.  Yay, us!)  The bad news?  By August 2013, the current budget (FY 2012-2013) will be almost $4 billion in the hole due to increased Medicaid costs alone, not to mention shortfalls caused by wildfire losses, prisoner health care, and other potholes, both anticipated and unanticipated.  (And none of this includes restoring any of the cuts made last session to public or higher education.)  There is as yet no word on how everything will work out, but it’s a safe bet that money won’t be growing on the trees lining the Capitol grounds next session.

            Looking ahead, the following hearings have been announced for subsequent weeks:

House Border & Intergovernmental Affairs:  Joint hearing on border security with the House Homeland Security & Public Affairs Committee, March 1–2 at the McAllen Convention Center, Room 101. 

Joint Interim Committee to Study Human Trafficking:  Monday, March 5, at 10:00 a.m. in Room E1.036 in the Capitol Extension to review implementation of bills passed last session and to receive an update from the Human Trafficking Prevention Task Force administered by the AG’s Office.  (Note that this meeting has not been officially posted yet.)

House Corrections: Tuesday, March 6, at 10:00 a.m. in Room E2.014 in the Capitol Extension, to discuss these juvenile justice topics:

• Review the implementation of SB 653 (which created the Texas Juvenile Justice Department) and make recommendations to enhance the integration of the Texas Youth Commission and the Texas Juvenile Probation Commission;
• Study ways to reduce the number of juvenile referrals (including mental health services, diversion and early intervention programs, and other prevention methods); and
• Study and make recommendations related to the certification of juveniles as adults.

If you would like to weigh in on any of these issues, contact Shannon ASAP.

House Judiciary & Civil Jurisprudence:  Thursday, March 15, at 10:00 a.m. in Room E2.010, Capitol Extension, to take invited testimony on the pros/cons of allowing courts to issue agreed protective orders without a finding of violence.  (Again, to find out how to get “invited,” contact Shannon.)

         News from the swamp.  We purposely don’t pay much attention to what’s going on in Washington, D.C.—mostly in an effort to maintain our sanity, but also because we aren’t equipped to do business up there, unlike groups like the National District Attorneys Association (NDAA).  However, we are occasionally asked to get word out to Texas prosecutors about developments on Capitol Hill.  Recently, someone enlisted us to alert Texas prosecutors to a measure that would create a National Criminal Justice Commission.  This Commission would review every aspect of our criminal justice system—federal, state, and local—with an eye toward reshaping the country’s criminal justice system from top to bottom.  Language creating the commission was most recently defeated by a three-vote margin in October 2011, with both Texas senators voting against the measure and Sen. Kay Bailey Hutchinson speaking in opposition to it.  The issue is now in limbo until supporters can find another vehicle for passing the measure (such as a FY 2013 spending bill) while opponents try to gather letters in opposition from local officials in preparation for future amendments.  If you are interested in participating in that debate, visit http://www.tdcaa.com/content/information-proposed-national-criminal-justice-commission-aka-webb-commission for more information and/or contact Shannon.

         Details on new DPS lab reports. By now, all offices that use DPS’s Crime Lab should have received a letter from DPS Lab Director Pat Johnson regarding its new lab reports, which will include information regarding margins of error and sampling size as required by a national accrediting body.  The reports should be in use at all DPS labs by the end of March.  If you have not received that letter, you can view a sample copy of those and other changes at http://www.tdcaa.com/news/information-new-dps-lab-reports.

         New training.  TDCAA is excited to host its first-ever Domestic Violence seminar April 11–13 at the Omni Colonnade in San Antonio.  The training features state- and nationally-recognized experts in the field of domestic violence and will include split tracks (Basic and Advanced) on Thursday to provide exactly the level of training your office may need.  Register at www.tdcaa.com/training today!

         Free training.  The CCA’s Criminal Justice Integrity Unit, under the direction of Judge Barbara Hervey, will offer a free CLE seminar on mental health issues in the criminal justice system.  The seminar will be held March 22–23 at the Texas State Capitol Auditorium.  For additional details about this course (which is co-sponsored by TDCAA), download this PDF file: http://www.cca.courts.state.tx.us/tcjiu/pdf/Flyer2012.pdf.

         Quote of the month.  “I don’t want a lot from politics.  I just don’t want people dumber than me telling me what to do.  I guess that’s asking a lot, actually.” —Frank J. Fleming, NY Post humorist and arrogant blogger.

December 21, 2011

Now that there is finally some clarity on what HB 79's changes mean--namely, that an original term of court in effect at the turn of the new year in a district court that was not already subject to the "first Monday in January" rule* will continue until Sunday, July 1, 2012--we've received several inquiries best summed up as:  "Okay, but what does that mean for ME?"  We will continue to answer individual questions as we receive them, but we thought we'd put together these frequently asked questions (FAQs) to address the most common questions we've been receiving here at TDCAA (and at OCA, who helped compile this information).  [*Note that this clarification was added on 12/22/11; district courts that previously were on the same term of court schedule now imposed upon all courts are not affected by HB 79's changes.]

Q:  Do we really have to use the current grand jury impaneled in October 2011 all the way through June 2012?  I’m afraid the grand jurors may revolt if kept that long!  Can we just go ahead and impanel a new grand jury in January instead?

A:  That question appears to be up to the discretion of the impaneling judge.  The state constitution and state statutes are silent on whether a district court can impanel more than one grand jury per term of court, but the Court of Criminal Appeals has, on at least two occasions, found no prohibition to doing so.  State v. Broaddus, 3 S.W.3d 919 (Tex.Crim.App. 1999)(indictment by grand jury convened by special prosecutor not voided by existence of regularly-impaneled grand jury); Farrar v. State, 277 S.W.2d 114 (1955)(indictment by regularly-impaneled grand jury not voided by existence of hold-over grand jury from previous term).  Therefore, if your district judge wants to discharge the current grand jury and impanel a new one in the same term, that appears to be permissible.  The judge could also allow the current grand jury to adjourn (see next question) and then discharge both grand juries at the end of the term.  “The decision whether two grand juries are needed to carry the burden of work is for the judge …” (Broaddus, at 922).

Q:  If we don’t want to impanel a new grand jury in January, can we just give this one a break and then call them back into service later in this extended term of court?

A:  Yes.  You can do this one of two ways; either (1) with the consent of the impaneling court, the grand jury can adjourn for a specific period of time until a date certain in the future (CCP Art. 20.08), or (2) the impaneling court can discharge the grand jury and then re-assemble it again at a date of the court’s choosing (CCP Art. 19.41).

Q:  We have multiple impaneling courts in our county.  Can we wait until mid-term to impanel some of our grand juries in order to stagger our grand juries between those district courts that are all now on the same term?

A:  That appears to be fine.  A grand jury “may be convened on the first or any subsequent day of the term” (CCP Art. 19.13).  While a grand jury cannot extend beyond its regular term (except for hold-over grand juries as provided by CCP Art. 19.07), there is no minimum period of time in statute for which a grand jury must be impaneled, so a judge can discharge a panel at any time.  Therefore, if you want to impanel a grand jury in one district court from January through March, discharge it, and then impanel a new grand jury under a different district court in April and run it through the end of the term, that should be permissible. (Note that this is just one example of how that might work.)

Q:  We have a grand jury whose original term would have ended in late October 2011 but it was held over for 90 days pursuant to Art. 19.07. Does that grand jury extension to late January 2012 remain in effect past the first of the year, or is it terminated then, or does it continue until the end of June?

A:  The term of that hold-over grand jury expires at the end of the original 90-day extension. HB 79 should have no effect on grand juries that have had their original term extended under CCP Art. 19.07. The change in law only extends grand juries whose original term was to expire after 1/1/12 under the old law.

We hope these FAQs help to answer some of your local issues.  Should you have more specific questions about the particular situation in your jurisdiction, feel free to call or email us at TDCAA.  Again, we’re sorry for the initial confusion about this topic, but look on the bright side—we’ve all learned more about grand jury impaneling than we probably ever wanted to know in the first place!

December 16, 2011

The primaries are less than three months away—for now. We don't know about you, but nothing puts us in the holiday mood more than some good old-fashioned political mud-slinging. Cheers!

Are we done yet?  Apparently not—at least in regard to the campaign filing period. The original deadline for filing for a spot in a 2012 election was December 12. That was extended by the courts to December 15 (a.k.a., "yesterday") due to the redistricting mess. But now, once again, a court hearing one of the redistricting disputes has granted another extension, making Monday, December 19 (at 6:00 p.m.) the final deadline to file for all elected offices, including yours. Now, despite this new deadline, the filing period may be re-opened (or should that be "re-re-opened?") for legislative and congressional races once the final maps are settled upon, then close for good around February 1 (or so the rumor goes), but who knows how that will work.

Due to this uncertainty, the court has ruled that any candidate who has filed to run for a particular office may change or amend his or her ballot application in any way the candidate deems appropriate, including changing the office being sought or withdrawing his or her ballot application and seeking a refund of the filing fee. (Again, how that will work in practice is unknown.) And for now, the two political parties and the court are undecided about whether there should be one primary or two and about the date(s) of the primary/primaries—although as we write this today, the two parties are rumored to have agreed to jointly recommend to the court a single primary date of April 3. This stuff changes by the hour, so while we follow these machinations as interested observers, we aren't glued to the proceedings like our job depends upon it. Therefore, those of you who are directly affected by these changes are best served by consulting your local political parties for all the details.

Senate interim charges. The Lt. Governor is announcing his interim studies to his committees in piecemeal fashion, issue by issue. Earlier this month, he assigned the following border security-related issues to these committees:

Criminal Justice
• Money laundering [including a reference to "administrative and criminal actions," which may re-open discussions from 2009 about the "racketeering" bill]

Transportation & Homeland Security
• The impact of border violence and illegal trafficking on the Texas economy
• The role of Texas state military forces along the border

Joint Interim Committee to Study Human Trafficking
• Services available/needed for human trafficking victims
• Appropriate criminal penalties for young human trafficking victims of prostitution

No word yet on when any of these committees will start meeting on these issues. For more information, you can view the original press release here. 

Important new grant conditions from CJD.  Remember back in 2009, when the Legislature amended CCP Arts. 60.10 and 60.21 to require counties to report at least 90 percent of CJIS-related dispositions to DPS? At that time, we told you that the only "remedy" for those who failed to get their ducks in a row was being forced to sit through a meeting of local officials to decide who was to blame. Well, now the Governor's Criminal Justice Division (CJD)—which provides Justice Assistance Grants to local governmental and non-governmental agencies—has decided to impose a new remedy. According to a recent e-mail memorandum from that division, as of September 1, 2012, any county that does not have a 90-percent or better disposition completeness rate for 2006–2010 will be ineligible for CJD grants, as will any political subdivision within that non-compliant county—including prosecutors' offices. Furthermore, effective September 1, 2013, any public or private entity (including child advocacy centers, Crime Stoppers, etc.) in a county that does not report at 90 percent or above will also be ineligible to receive grants from CJD.

The genesis of this new mandate is a recent CJIS audit performed by the State Auditor's Office. To see how your county has fared to date, view the latest reporting compliance data. TDCAA has been in contact with TAC and other groups who intend to bring their concerns about this new policy to CJD's attention after the holidays, and we will keep you posted as we learn new information.

Terms of court. We have received numerous questions of late regarding a statewide change to district court terms that will take effect on January 1, 2012. Pursuant to HB 79, which passed during the First Special Session, every district court will now have two (and only two) terms of court. The first term of court begins on the first Monday in January, while the second term of court begins on the first Monday in July. That schedule differs from the existing terms of some courts, so this new law raises a question about grand juries impaneled by those courts that are in the middle of a current term on January 1, 2012, and whether they retain the power to act until the end of the originally-scheduled term. We have been answering that question in the negative, as has the Office of Court Administration. (For OCA's complete answer, see Director Carl Reynolds' CourTex blog entry on this subject, with which we concur.) Accordingly, those shortened grand juries should wrap up their business by the end of the year, and new grand juries must be impaneled sometime after January 2, 2012. If you have further questions about this change, feel free to contact TDCAA for more information.

Open records changes afoot.  If you haven't already heard, the Office of the Attorney General (OAG) is creating an electronic filing system designed to streamline and modernize governmental bodies' submission of ruling requests to the Open Records Division. The new system, which will be available for use in February 2012, will allow governmental bodies to submit their requests electronically through the system. Interested third parties that wish to submit briefing materials supporting or opposing governmental bodies' ruling requests will also be able to submit their documentation electronically. As a result, as of January 3, 2012, the Open Records Division will no longer accept faxed or emailed submissions from governmental bodies or interested third parties; governmental bodies who choose not to use the new electronic filing system must instead submit their documents to the OAG through First-Class U.S. Mail, common or contract carrier, interagency mail, or hand delivery during normal business hours. If you have questions about requesting an attorney general open records decision and/or submitting materials for OAG review, you can contact the OAG's toll-free Open Government Hotline at (877) OPEN-TEX. More information about the electronic filing system may be found here.

E-books are now available!  TDCAA is now offering electronic versions of the Texas Penal Code and Code of Criminal Procedure for sale on Amazon, Barnes and Noble, and Apple's iTunes. Each book contains the code with strikethrough/underline format, plus all the annotations from TDCAA's Criminal Laws of Texas. The Penal Code is available for $9.99, and the Code of Criminal Procedure is $25. TDCAA is testing the sales and usefulness of these e-books, and after one sales cycle, we will evaluate whether to offer any additional publications as e-books. For now, only the PC and CCP are available, and they may be bought individually through only the three vendors listed above. Search for "Diane Beckham" on any of the vendor sites to find the TDCAA e-books.

@TDCAA.  Having once before tried and failed to capture the magic of social media, TDCAA is again stepping off into the great unknown with a new and improved Twitter feed. This one has been open to the public for the past few weeks, and responses have been positive. Follow us @TDCAA if you have a Twitter account, but even if you don't have a Twitter account of your own, you can still click on the link in the upper right-hand corner of this page and keep abreast of the latest news affecting Texas prosecutors.

Quotes of the month.  Some political cheer to end the year ...

"I don't know where I'm going to run. I don't know where to file, what district I live in, or what district goes where."
—Congressman Blake Farenthold (R-Corpus Christi), commenting upon the redistricting mess in Texas.

"That's one of the things that I like about him, because he's been consistent since he changed his mind."
—Christine O'Donnell, former senate candidate from Delaware (and definitely not a witch), telling CNN why she endorsed Mitt Romney.

"I'm not going to kiss his ring and I'm not going to kiss any other part of his anatomy. This is exactly what is wrong with politics. It's show business over substance."
—Jon Huntsman, telling Fox News why he wouldn't appear at Donald Trump's proposed debate between GOP presidential candidates.

"It's too late for Perry. ... Even those who want to like Perry based on his positions or his Texas record can't do it because he's been such an incompetent candidate."
—Fergus Cullen, former New Hampshire Republican Party Chairman, as told to the Houston Chronicle.

"All he had to do was make a respectable showing and he would have been anointed. All he had to do was walk and talk and chew gum and he would have won it. This race was Perry's to lose."
—John Podhoretz, conservative columnist, on Rick Perry's campaign missteps.

"This guy's rich."
—Andrew Wheat of Texans for Public Justice, referring to Lt. Governor David Dewhurst, whose recent financial disclosures during his race for U.S. Senate revealed a net worth in the neighborhood of $225 million.

"To save electricity costs, this year the maintenance staff plans to illuminate the [White House Christmas] tree with dimmer bulbs. They are screwing members of Congress into the light sockets."
—Argus Hamilton, political comedian

That's all for this month year. It's been a wild one! We hope you have found these updates to be informative, useful, and (sometimes) entertaining.  We wish you all a safe and happy holiday season.  See you in 2012!

 October 28, 2011

We’re baaaaaack!  While our biennial legislature only meets for about six months every other year (thank goodness), occasionally there are important developments in Austin that might interest you.  Accordingly, we will be sending all member offices a monthly legislative update during the interim leading up to the next regular session in January 2013.

House interim charges.  The Speaker of the House has assigned his committees their list of busy work interim charges for the next year.  Some of the highlights include (as identified by the numbered charge given to the committee):

House Appropriations
 3.  Examine the investment and management of funds held outside the treasury, including whether the funds are being utilized for their statutory or constitutional purposes, and whether opportunities exist to utilize these funds in the state budget to reduce the demand on General Revenue. [Note:  could include local discretionary funds like asset forfeiture.]
 4.  Examine the growth of constitutionally and statutorily dedicated accounts and their utilization in the budget. Recommend methods to reduce the reliance on dedicated accounts for budget certification purposes, and examine ways to maximize the use of such accounts. [Note:   could affect TDCAA training grant, assistant prosecutor longevity pay, etc.]
 12.  Review the status of the sexually oriented business fee and collections to date, as well as funding demands for programs for which the fee is intended.  [Note:  This is the “pole tax.”]

House Corrections
 2.  Study ways to reduce the number of youth referred to the juvenile justice system.  Consider the availability of mental health services, diversion and early intervention programs, and other prevention methods.
 3.  Study and make recommendations about issues related to the certification of juveniles as adults.

House County Affairs
 2.  Study opportunities for cost savings through the abolishment of certain elected offices or the consolidation of county services.
 3.  Conduct a general study of issues facing county jails.  The study should include innovative ways to address overcrowding, the impact homelessness has on the county jail population, and recommendations for handling inmates undergoing detoxification and withdrawal from drugs and alcohol.

House Criminal Jurisprudence
 1.  Study and make recommendations for criminal penalties for the failure of a parent or guardian to report a missing child or the death of a child. [Note:  aka “Caylee’s Law,” which you heard about this summer if you came to one of our legislative update seminars.]
 2.  Review and make recommendations for improving the level of funding for the Crime Victims Compensation Fund. (Joint with the Committee on Appropriations)
 3.  Study and make recommendations regarding the current procedures used in the testing of DNA evidence in Texas.  Include a review of the feasibility of certifying additional DNA testing centers.
 4.  Review the current sentencing practices for defendants with mental illnesses and make recommendations.  Study practices in other states.  Compare recent incarceration trends between those who have mental illnesses and those who do not.

House General Investigating/Ethics
 1.  Review the Texas Ethics Commission’s sworn complaint process and civil and criminal penalty provisions.  Determine whether changes should be made aligned with the mission and purpose of the commission.
 2.  Study and determine whether all appointees to state entities should be required to sign additional governance documents prior to serving in an official state capacity. [Note:  may include recent controversy over medical examiners.]

House Homeland Security & Public Safety
 1.  Examine the extent of interstate coordination concerning border security and intelligence sharing and determine whether any changes to state law are needed to enhance that coordination and cooperation. (Joint with the Committee on Border & Intergovernmental Affairs)
 4.  Examine the role of law enforcement personnel assigned to school district campuses and postsecondary education campuses and determine whether any changes to laws concerning the enforcement of safety and discipline are necessary.  Determine whether additional training of law enforcement personnel assigned to school district and secondary education campuses is necessary.

House Judiciary & Civil Jurisprudence
 1.  Study the potential effects on victims of family and domestic violence in the judicial process if courts are allowed to issue agreed protective orders without a finding of violence.
 3.  Study the rules of statutory construction and establish a method of determining legislative intent.

House Public Education
 4.  Review and make recommendations on the effectiveness of Disciplinary Alternative Education Programs (DAEPs) and Juvenile Justice Alternative Education Programs (JJAEPs) in reducing students’ involvement in further disciplinary infractions.  Determine the appropriate role of disciplinary alternative placements in promoting education achievement and how technology could be used to supplement education services.  Consider appropriate placements in DAEPs or JJAEPs and consistent funding models for those programs.  Consider options for counties without a JJAEP or inefficiently few placements in a JJAEP.  Identify positive behavioral models that promote a learning environment for teachers to appropriately instruct while addressing any behavioral issues and enforcing student discipline.

For a complete list of interim charges for the House, see the attached PDF file below.  Meanwhile, Senate committees have yet to receive their interim marching orders from the Lt. Governor (other than some preliminary requests to look into issues relating to this infernal drought, including how to improve responses to future wildfires).  We will let you know when those are issued.

Sunset review.  In addition to interim studies, the other thing that keeps state policymakers busy between sessions is the Sunset review process, in which the Sunset Advisory Committee checks under the hood of every state agency every 12 years (at the latest) to determine whether that agency is still needed and, if so, how it can be improved.  This interim, the following agencies are being reviewed:  the Texas Dept. of Criminal Justice (TDCJ), the Board of Pardons and Parole (BPP), the State Commission on Judicial Conduct (SCJC), and the Texas Ethics Commission (TEC).  For more details about the Sunset process, visit http://www.sunset.state.tx.us.

Eyewitness identification changes.  As you should know by now, the Legislature has tasked the Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT) with the job of developing a model state policy for eyewitness identification procedures involving line-ups.  LEMIT is working toward that goal, and we were originally led to believe that a preliminary draft would be available for public comment by now; however, that has not happened.  Because we are unable to direct you to that draft policy at this time, please keep checking TDCAA’s website and/or LEMIT’s website (http://www.lemitonline.org/) for details about that proposal when it becomes available.  It is important for prosecutors to take an active role in this rulemaking process to ensure that your ideas and insights are considered.

Asset forfeiture reports are due.  Those of you who qualify under CCP Chapter 59 as an “attorney representing the state” for asset forfeiture purposes should remember that certified copies of your forfeiture fund’s audit are to be delivered to the attorney general’s office by October 31, 2011 (see CCP Art. 59.06(g)(1)).  Last year around this time, some of you disagreed with the AG’s decision to require your county judge’s signature on those audit forms.  If that is an issue for you, note that the AG appears willing to accept a filing without that official’s signature—but be sure to first contact Kent Richardson at the AG’s office to verify that from the horse’s mouth, so to speak.

An e-MERS-ging trend?  The housing bubble that burst on Wall Street emitted toxic monetary plumes that dropped acid rain on various parts of the national economy.  (How’s that for a metaphoric assault on the English language?!?)  One of those mushroom clouds involved mortgage-backed securities (MBSs), sub-prime mortgages, and lots of other financial terms that may make the eyes of many of you glaze over, but stay with us for a second, because this is important.  You see, one of the tools that enabled financiers to seemingly create revenue streams out of thin air involved the creation and use of a secondary mortgage recording system called the Mortgage Electronic Recording System, or “MERS,” which is owned by various mortgage banks, title companies, and the like who formed MERSCORP for that purpose.  By creatively using MERS, mortgages could be bought and sold as commodities among MERS members without the “inconvenience” (and cost) of recording each transfer with the local clerk, under the theory that MERS maintained an interest in the mortgage throughout, so there was no transaction triggering the need to record anything.  However, some Texas counties are now claiming that MERS had a duty to file notice of each of those transactions in the applicable county and pay the requisite fees attached to those filings, which may have involved millions of property transactions in Texas alone.  Claims for the recovery of this alleged lost revenue are now the basis of civil actions being filed or contemplated in Dallas, Harris, Bexar, Hidalgo, and Travis Counties, to name a few.  In addition, the Attorney General’s Office is investigating some MERS-related foreclosure issues from a consumer protection standpoint.  If you are a county attorney or criminal district attorney, all of this adds up to something that may soon come across your desk (if it hasn’t already).  If you would like to learn more about this situation as it develops, Harris County Vince Ryan has graciously tasked John Odam in his office with fielding those questions.  Call or email Shannon at TDCAA for John's contact information.

Upcoming training opportunities.  While we have your attention … online registration for this year’s Elected Prosecutor Conference is now open!  The conference will run from November 30th through December 2nd at the Sheraton Hotel in downtown Dallas.  The course includes various timely, relevant, and accessible topics, including employment law, defending §1983 cases, management courses, victim issues, and more.  Please visit http://www.tdcaa.com/training for more information and to register.  We hope to see you in Dallas!

In addition to TDCAA-sponsored training, note that TxDOT, in coordination with TMPA, is offering free SFST Refresher Training Programs to improve the administration of the SFST test battery by individual police officers.  Law enforcement officers across the state have the opportunity to receive 8 hours of free training to increase expertise in DWI deterrence and decrease alcohol-related crashes, deaths, and injuries through this curriculum (which requires a minimum of 15 officers per class).  If you would like to host an SFST refresher training for officers in your local jurisdiction, contact:

Ray Dittrich
SFST Program Manager
Texas Municipal Police Association
SFST@tmpa.org  
 
 
Quotes of the month.  It wouldn’t be a TDCAA Update without some parting humor, now would it?

“If the numbers stay like they are, all Rick Perry is going to do is make some noise and sell some books.”
 —Fox News host Shepard Smith, referring to the governor’s lagging national poll numbers.

“The other Republicans have sucked so bad we didn’t have any choice.”
 —An unnamed political ally of President Obama, explaining the decision to start attacking Mitt Romney, whom the campaign reportedly believes will win the Republican nomination.

“We’ve created the obligation, but we haven’t written the check. So when we come back, that scary budget is going to be there.”
 —State Rep. Drew Darby (R-San Angelo), on the budget deficit facing Texas lawmakers returning to Austin in 2013.

“Tell me this isn’t the craziest World Series you’ve ever seen."
 —C.J. Wilson, pitcher for the Texas Rangers, after last night’s extra-inning loss to the St. Louis Cardinals in Game 6.

“My feeling is this:  If a man wants to divorce me and says our relationship has no value to him, and then he asks me if he can sleep with me, the answer is ‘No!’”
 —Kim Mulkey, coach of Baylor’s women’s basketball team, on why she does not plan to schedule future games against Texas A&M after the Aggies leave the Big XII conference next year.

Governor Perry has officially vetoed 23 bills during the most recent regular session.  Very few criminal justice- or county government-related bills were vetoed.  The bills that could have impacted prosecutors but now will not include:

HB 242 by Craddick/Hegar “relating to the enforcement of public safety, including the privileges and duties of certain types of law enforcement officers.”

     This bill was filed to extend certain weapon-carrying privileges to retired officers, but it was amended late in the session with a statewide ban on texting while driving.  The governor’s veto proclamation focused on the texting ban, which he characterized as “a government effort to micromanage the behavior of adults.”  (If that’s his standard for vetoing bills, there should’ve been a heck of a lot more vetoes than a mere 23!)

HB 1616 by Geren/Estes “relating to the reporting of political contributions, political expenditures, and personal financial information, and to complaints filed with the Texas Ethics Commission.”

     This already controversial bill was changed late in the process by Sen. Mike Jackson (R-La Porte) with an amendment that “would inadvertently cripple the Texas Ethics Commission's authority to enforce compliance with state campaign finance laws,” according to the veto proclamation.  Realizing he had goofed, Sen. Jackson made a request to the governor to veto the bill (and save him from his own mistake), and the governor obliged.

HB 1768 by Munoz/Hinojosa “relating to the regulation of roadside vendors and solicitors in certain counties.”

     This bill would allow the commissioners court of a county with a population of 450,000 or more to regulate vendors in unincorporated areas of a county who are in the right-of-way of a public road or highway or in a parking lot.  This was too much for the governor, who feared the bill “would encroach upon the rights of private enterprise and property owners while fundamentally altering and expanding the role of county government” by potentially preventing “a Girl Scout troop with cartons of cookies from reaching their consumers.”  Apparently the lesson to be learned here is not to get between the governor and his Thin Mints.  (Note, however, that the existing law applying this ban to counties with a population of more than 1.3 million still exists; see Transportation Code §285.001.)

HB 2889 by Madden/Hinojosa “relating to the expunction of records and files relating to a person’s arrest.”

     At least six different elected prosecutors sought a veto of this bill, which we discussed at length in our previous updates.  Mission accomplished.

SB 167 by West/Veasey “relating to the automatic expunction of arrest records and files after an individual receives a pardon or a grant of certain other relief with respect to the offense for which the individual was arrested.”

     This bill was vetoed because the gist of it was also included in HB 351, which was signed into law in a slightly different form.  HB 351 and its companion, SB 462, make some big changes in expunction law starting this September, so read up on them.

SB 1035 by Williams/Harless “relating to motor vehicle title services; providing penalties.”

     This bill would’ve expanded county permitting of motor vehicle title service companies, created a state licensing requirement, and established new criminal and civil penalties relating to consumer fraud in this area.

Due to this weekend's holiday—which we do NOT get to enjoy, thanks to these @#$%&!s who won't leave Austin until Monday afternoon—we are issuing this update one day early. (If you find yourself not having good Memorial Day holiday, just stop and think how little fun you'd have sitting in Austin watching the Legislature screw things up, and you should feel much better in no time.) Note that after the session ends on Monday, your TDCAA legislative crew will take off a few well-earned vacation days, but we'll follow up late next week with an initial summary of bills that may merit your attention for possible vetoes.

Picking up after the storm

The session doesn't end until Monday, but everything important to us (aside from the budget) is done now except for the yelling and finger-pointing. Following the imposition of last night's deadlines, the only bills still alive are those that have been passed by both chambers in different forms, requiring one chamber to agree to the other's changes or form a conference committee to hash out the differences. That all happens behind closed doors, so most of our next four days will be spent watching them on TV, hoping no one tries to slip yet another fast one by us. Once the dust has settled completely, we'll see what bad stuff they tried to do to you and start a list of bills for you to review for potential vetoes, which must be issued by the governor no later than Sunday, June 19. We'll also try to summarize what happened to some of the bills we've been following all session. If you are wondering what happened to a bill you've been following, feel free to email Shannon to have it included in the list.

Special session?

We've predicted all year long that there would be a special session over something, even if we never predicted what that something would be. It is still conceivable that legislators could pull a rabbit out of their hat on the budget, but the odds of that are unknown right now. Special sessions are called at the whim of the governor, and the topics discussed during those special sessions are determined solely by the governor, so we won't hazard a guess at any of that right now. Just know that if there is a special session, we will provide you with the same weekly updates you get now, and that our publication and training schedules will continue as planned despite the Legislature's inability to get its work done on time.

DA apportionment funding cuts for FY 2011

Every session, the Legislature considers an appropriation clean-up bill—also known as the "supplemental budget"—that adjusts the finances for the state in the last few months of the current fiscal year. No one usually notices that bill—until now. In order to help the FY 2011 budget limp to August 31st without a deficit, the Senate just approved HB 4, this year's supplemental budget, which includes a 2.5 percent across-the-board cut in most state expenditures for the remainder of this fiscal year. This does not include any of your salaries, supplements, or longevity pay, but it does include DA apportionment funding. The Senate's version of the bill hasn't been approved by the House or sent to the Governor yet, but state agencies like the Comptroller's Office are under instructions to implement the cuts now in anticipation of final passage. If for some reason the bill doesn't become law and the money is available, the Comptroller will be able to "catch up" in July and/or August, but that is unlikely. We had not previously reported on this matter because it was in such a state of flux this session that we never knew what was eventually going to happen, but now we feel confident enough to provide you with information you can rely upon to some degree. And by the way, the folks in the Judiciary Section of the Comptroller's Office are truly sorry about this; they generally take good care of you and hate this almost as much as you do!

The new math

This session's infusion of Tea Party sentiment in the legislative process has affected the standard law and order calculus that we use to gauge the potential fate of various bills. That "Tea Party sentiment" can be boiled down to this: "The government is the enemy. You work for the government. Do the math." Think we're kidding? Earlier this session, unsuspecting prosecutors who came to testify on a bill that would impair your budgets had to fend off a chairman who equated prosecutors with the Mafia, prompting one DA to profess surprise that he had apparently traded his white hat for a black one when he entered the Capitol. But that was just one early incident; let us share with you a more recent example.

Earlier this week, SB 1717 by Duncan/Lewis, an omnibus judicial reform bill, became what we call a "Christmas tree," so named because of all the amendments that other members tried to "hang" on it. Many of those amendments were formerly dead bills, including HB 1507 by Christian, a prosecutor-supported bill that would authorize non-lawyer JPs to issue evidentiary search warrants in smaller counties. Once offered, the amendment immediately started taking fire from several House members—urban and rural, Democrat and Republican—who expressed concerns about expansive searches, especially relating to blood draws in DWI cases. Now, there has always been some generalized resistance at the capitol to the existence of non-lawyer magistrates, but this time, the anti-government Tea Party effect crystallized that opposition into a solid voting bloc that defeated the amendment by a stunning vote of 17-121. As a result, the author of the amendment joined the ignominious "100 Club" for putting forth a matter that drew over 100 "nay" votes. We bring this to your attention because it is only one of several indications that things are changing at the state capitol. Just be glad that we passed some blood draw legislation last session, because if we hadn't, that bill would be D.O.A. this session. And that, friends, is the new legislative math for the foreseeable future.

OK, time for the relentless march of bill numbers for the rest of this update ...

Signed into law

Unlike the federal system, Texas' weak-governor system doesn't require the chief executive to sign a law before it goes into effect. Instead, a bill passed by the Legislature becomes law without the governor's signature unless that officer vetoes that bill. However, that doesn't stop a governor from signing into laws most bills—after all, how can a governor take credit for something if he doesn't at least rubber-stamp it? Accordingly, the following bills have been passed and signed into law and will become effective on September 1, 2011, unless otherwise noted: HB 905 (child hearsay statements admissible in protective order proceedings), HB 1806 (fishing tournament fraud; effective May 21, 2011), SB 24 (human trafficking), SB 653 (creating Texas Juvenile Justice Department), SB 877 (discharging sureties' liability; effective May 19, 2011), SB 934 (theft of or from automatic teller machine [ATM]), SB 1269 (honorariums), SB 1490 (international child custody), and SB 1680 (evidence in Medicaid/Medicare fraud cases).

Sent to the governor

The volume of bills being passed in this final, 20th week of the session will probably meet or exceed that of the 19 preceding weeks. As a result, we can barely begin to report on what legislators did. However, we can pass along news on a few topics we know some of you have been following, including these bills sent to the governor: HB 260 (unlawful transport), HB 1573 (amended with post-conviction DNA expansion), HB 1610 (amended with expansion of educator/student sex prohibitions), HB 2649 (credits for inmates in state jail facilities), HB 2735 (parole violator summons), HB 2889 (expanded right to expunction if prosecutor does not object), HB 3384 (revised state jail felony enhancements), SB 116 (third-party protective orders), SB 578 (facilitating child testimony in court), SB 1308 (counsel qualifications for death penalty appointments), and SB 1787 (adding blood draw info to DIC-24s).

Pending concurrence or conference committee

The following bills have passed both chambers, but the second chamber made changes that must either be accepted by the originating chamber or settled by means of a conference committee: HB 3 (life without parole for certain repeat sex offenders), HB 274 ("loser pays" civil bill), HB 1043 (cockfighting), HB 1658 (refunding cash bonds), HB 1754 (indigent defense commission), HB 2015 (juvenile prostitution = CINS), HB 2357 (amended with DPS border checkpoints), HB 3396 (breach of computer security), HB 3691 (amended with revocation reduction plans), SB 377 (capital murder of certain children older than 6 years of age), SB 407 (sexting), SB 462 (expunction changes), SB 789 (extended duration protective orders), SB 958 (regulation of dangerous wild animals), SB 1010 (notifying certain victims of plea bargains), SB 1233 (efficiency of certain county functions), SB 1616 (preservation of biological evidence), SB 1636 (testing of rape kits), SB 1649 (border prosecution grants), and SB 1717 (judicial branch changes). Getting a change made in a conference committee is very difficult—but not impossible. If you are concerned about any last-minute changes that need to be fixed, contact Shannon or Rob at 512/474-2436 for details on what, if anything, can be done before the bill is finally passed.

Note to DAs on asset forfeiture reform

One bill still pending in conference committee is SB 316 by Whitmire/Gallego. A conference committee report was issued in which all the House floor amendments—including the one giving the AG rule-making authority over your expenditures—were stripped out (except for one harmless change regarding the state auditor). Included in those "dead amendments" was language related to drug-related seizures by DPS troopers that was designed to encourage DPS to keep those cases in the state system. DPS has been working overtime to get that back in, and earlier today, the House rejected the conference committee and returned it to the Senate with a request that the DPS amendments be restored. This also opens up the bill to other amendments directed at one particular judicial district. However, what's most important to note is how vital it was that we got the AG's rule-making amendment repealed before the House sent the bill back to the Senate. If not for your quick action, that language would also now be in play again. So, once again, pat yourself on the back for a job well done—having to ride herd on that bad idea all weekend would've really spoiled our holiday!

Legislative training

Our popular Legislative Update seminars are starting to fill up. The initial offering in Austin already has 50 registrants, and it's still two months away! Don't be left out of the fun—sign up yourself, your office, and your local peace officers at http://www.tdcaa.com/seminars/signup.asp. Space is limited at some locations, so don't delay! 

Last Friday, we promised you drama.  Little did we know that we’d only have to wait 18 hours to see it.  For parliamentary rules geeks, last Saturday’s “Mother’s Day Meltdown” in the House was as good as it gets.  For the other 99.5 percent of you, rumors of near-fisticuffs on the House floor last weekend should keep your attention on the Capitol as the Legislature careens towards the finish line.  If not, we bet our recent unpleasantness involving surprise House floor amendments will keep you glued to future updates!

Black Wednesday

For a session that’s been relatively quiet for us, Wednesday was a real kick in the pants.  Within a span of about four hours on the House floor, several bills supported by prosecutors received unfavorable floor amendments, and several bills previously killed by prosecutors resurrected themselves as amendments to other bills.  Some were low-grade problems that are still being worked on, but the major development was what happened to SB 316 by Whitmire/Gallego, the asset forfeiture reform bill.

We won't rehash all the details here, but suffice it to say, the bill was eventually fixed.  Many of you played key roles in achieving this success.  That was no easy feat due to the timing of events, but we pulled it off thanks to everyone’s hard work.  Now the bill is likely headed to a conference committee to resolve one local issue.

A note to our county attorney friends

Those of you who don’t do felony work may have been wondering why we’ve been so focused on DA-related issues.  We can assure you, that is not by choice.  It just seems that your felony friends have been in the cross-hairs much more than you this session.  That may make for boring updates for you, but if you feel slighted, call up your local DA and ask how he or she has enjoyed the rollercoaster ride the past few weeks.  That should put some perspective on things—remember, boring sessions are never bad!

The Big Picture

While we were running around tending to our issues, the House and Senate were busy driving school finance reform into the ditch and taking the overall state budget with it.  This has resulted in several rounds of the “What if?” game around the Capitol.  There’s no telling how that will all sort itself out, but it sure doesn’t make a special session any less likely.  Elsewhere, redistricting is causing some legislative chafing in the Senate, and the House is licking its self-inflicted wounds from a contentious debate over the anti-sanctuary city bill (HB 12 by Solomons, R-Carrollton), which now heads to the Senate for more debate.

Thursday’s thresher

When the clock on the House floor struck midnight last night, hundreds of bills met their untimely deaths.  Among the bills we were watching that failed to pass before the deadline were HB 1477 by Allen (parole revocation credit for street time), HB 1696 by Zedler (election investigation referrals to the AG), HB 2352 by Allen (expanding mandatory early release), HB 219 by Gallego (mandated recording of certain confessions), HB 220 by Gallego (creating a new “scientific” writ), and HB 2448 by Harper-Brown (Office of Inspector General referrals to the AG).  If you have questions about another bill that you were following, check it online or contact Shannon.  The next major deadline is in 11 days—Senate bills must be heard on second reading in the House by midnight on Tuesday, May 24, and all bills must receive final approval by a second chamber no later than midnight on Wednesday, May 25.  After that, only bills that have passed both chambers in different forms (like SB 316, the forfeiture bill discussed above) can be debated and passed to the governor’s desk.

Sent to the governor

The following bills were sent to the governor this past week:  HB 1806 by Flynn/Hegar (fishing tournament fraud), HB 3000 by Thompson/Van de Putte (continuous human trafficking), SB 198 by West/T. Smith (exempting certain young sex offenders from registration), SB 250 by Zaffirini/Anchia (stalking protective orders), SB 279 by W. Davis/ Laubenberg (including pets in protective orders), SB 1024 by Rodriguez/Rodriguez (theft of service), SB 1490 by Uresti/Hunter (international child custody/abduction), SB 1608 by Carona/ Rodriguez (enhancing No DL penalties involving certain injuries), and SB 1680 by Ellis/Murphy (Medicaid/Medicare fraud evidence).

Passed second chamber with changes

HB 2014 by Thompson/Van de Putte (human trafficking consequences) and SB 316 by Whitmire/Gallego (asset forfeiture reforms).

Passed first chamber

The rush to beat the deadline in the House resulted in a large volume of bills passed on second reading, some of which still need to be finally approved by the House by today to go to the Senate.  We’re still catching up on everything that has passed, but this is a list of the bills that are halfway to becoming law, so read them carefully!  Here is a sampling:  HB 12 by Solomons (anti-sanctuary city bill), HB 96 by Fletcher (excusing a State’s witness from The Rule), HB 189 by T. Smith (deferred for DWI-1st), HB 274 by Creighton (“loser pays” civil bill), HB 278 by Alonzo (mandatory pre-trial hearings), HB 351 by Veasey (expanding expunctions), HB 595 by Raymond (false identification as a peace officer), HB 597 by Madden (fake weed), HB 748 by Menendez (incompetency to stand trial procedures), HB 783 by Y. Davis (impersonating a peace officer), HB 892 by C. Howard (transport of illegal alien), HB 940 by Dukes (expanding offense of improper educator/student relationship), HB 1043 by Christian (cockfighting), HB 1122 by Weber (human trafficking), HB 1205 by Turner (time credits for early release from probation), HB 1856 by Woolley (enhancement for retaliation), HB 1937 by Simpson (criminalizing certain TSA searches at airports), HB 1988 by Gallego (certain victims’ statements about plea bargains), HB 2329 by Zedler (pseudonyms and protective orders for trafficking victims), HB 2649 by Allen (diligent participation credit at state jail facilities), HB 2889 by Madden (expunctions upon prosecutors’ acquiescence), HB 2993 by Miles (continuous sex with an inmate), HB 3001 by Thompson (monitoring of high-risk sex offenders), HB 3473 by Gallego (prostitution defenses and enhancements), HB 3691 by Gallego (victim-offender mediation in property crimes (per amendment on floor)), and HB 3746 by Frullo (administrative subpoenas in internet child sex crimes).

Scheduled floor debates

Now that the House is done with its own bills, it will focus on Senate bills.  The House is still on the floor as this goes to press, so future calendars have not been finalized.  Among those currently calendared for debate next week are SB 544 by Seliger/Shelton (Medicaid fraud offenses), SB 688 by Nichols/Creighton (Medicaid fraud prosecutions), and SB 1106 by Harris/Madden (exchange of juvenile information between agencies).  The Senate calendar is also in flux because redistricting maps may consume a good portion of senators’ time next week, as could these bills:  HB 215 by Gallego/Ellis (eyewitness identification procedures), HB 1754 by Gallego/Ellis (indigent defense task force), HB 2482 by Pena/Williams (organized retail theft), and HB 2725 by Hartnett/Williams (incompetency procedures).

Committee hearings

Next week will be the last week for real committee hearings—and the last week we get any notice of what they are doing and when they are doing it.  Everything heard in committee at this point has already passed several hurdles, so from here on out, bills will be considered in committees with little or no notice, requiring us to be quick on our feet.  Among those bills that will be considered next week are:

Monday, May 16

Senate Transportation and Homeland Security (8:00 a.m., E1.012)
HB 243 by Craddick/Zaffirini creating an offense for reading text messages while driving
HB 343 by Fletcher/Huffman relating to accidents involving government vehicles
HB 1395 by Parker/Watson relating to the requirements to operate certain watercraft/boats
HB 1523 by Phillips/Watson relating to transporting household goods

Senate State Affairs (9:00 a.m., Senate Chamber)
HB 274 by Creighton/Huffman instituting “loser pays” for civil actions

House Criminal Jurisprudence (8:00 a.m., E1.012)
SB 121 by Ellis revising photograph and live lineup identification procedures
SB 152 by Huffman making admissible certain extraneous evidence in child sex cases
SB 844 by Dan Patrick expanding the offense of escape to a person lawfully detained
SB 905 by Dan Patrick applying certain CHL defenses to legislators and other officials
SB 1616 by West relating to biological evidence storage and destruction

House Elections (2:00 p.m., E2.028)
SJR 37 by Van de Putte revising the “resign to run” constitutional provision

Tuesday, May 17

Senate Criminal Justice (1:30 p.m. or upon adjournment, E1.016) 
[not posted yet]

Wednesday, May 18

House Corrections (8:00 a.m., E2.014)
SB 1209 by Whitmire relating to the detention of certain juvenile offenders
SB 1617 by Harris relating to the discretionary transfer from a juvenile court to a criminal  court of certain alleged offenses arising out of a single criminal transaction

TDCAA Summer Regionals

TDCAA’s popular Legislative Update regional seminars will be coming to a location near you this summer.  We will offer more than 20 three-hour legislative trainings this year during a two-month period, all of which qualify for credit as both CLE and TCLEOSE’s mandated Course 3182.  All attendees will also receive a copy of our Legislative Update book.  Several of our locations have limited seating that will be made available on a first-registered, first-served basis.  Flyers are probably in your mailboxes, and pre-registration is now open on our Training webpage (registration is online only).  TDCAA members who pre-register save 25 percent off the walk-up price, so don’t delay—sign up today!

As of today, there are 31 days remaining in the 82nd Regular Session—and so far, they really haven't accomplished anything yet. (Kind of like Prince William and Kate What's-Her-Name—but that didn't stop the world from stopping to gape at their wedding today, did it?) But don't be fooled by this lack of results; the Legislature is about to pass about 1,000 bills in a manner that gives a bad name to sausage-makers everywhere. The sheer volume of this "legislarrhea" makes it impossible for us to keep you updated on everything that is happening, especially when it comes to some bad stuff that might crop up. We'll do the best we can, but at this time, all we can do is ask you to please return to your seats because we are about to turn on the seatbelt sign in preparation for a bumpy landing!

The Big Picture

The Senate should have voted out its version of the state budget by now, but that hasn't happened thanks to sniping from the right and the left about what is or is not being spent in that proposed budget. Meanwhile, the House debated its own redistricting map and finally passed a version that will result in several of you having new state representatives next session. If you haven't already heard the details from your local news source of choice, go here and select Base Plan H283—that will show you all the messy details. The Senate has to approve the House plan before it goes to the Governor, but the two chambers usually don't mess in each other's business, so there shouldn't be many more changes to the House map (assuming the Governor doesn't veto it for some reason). Now the House will move forward to tackle Congressional redistricting and various agency sunset bills, while the Senate lags behind, having yet to debate its own new districts, let alone anyone else's. As the clock begins to tick faster and faster toward the end of session, these issues will take center stage, leaving little time or attention for your issues. We'll let you decide whether that is a good thing or a bad thing.

Is your retirement safe?

We think the answer to that question is still an unqualified "yes," but don't take anything for granted. This week, the House Pensions, Investments, and Financial Services Committee took testimony on two very scary bills: HB 2261 by Zedler (R-Arlington) and HB 2506 by Chisum (R-Pampa). Representative Zedler's bill allows all retirement systems to ignore overtime or supplemental pay when calculating benefits, while Rep. Chisum's bill ends the defined benefits plan of state employees in the ERS and TRS plans (including elected felony prosecutors) and replaces it with a "defined contributions" (read: 401(k)) plan. As laid out in committee, HB 2506 would apply to all members of ERS (including elected felony prosecutors) who are elected after September 1, 2011, or who have not yet vested by then.

Our latest information is that HB 2261 by Zedler will be watered down to a study (if it moves at all). As for HB 2506 ... well, we can tell you that Rep. Chisum scooted from the room after he laid it out to avoid the beating the bill took from enraged state employees. Although many government pension plans have gone south in the last few years, expert witnesses reported that ERS, TRS, and TDCRS were all in very good shape by comparison. Making any changes to the existing systems would require a huge amount of legal work, IRS pre-clearances, and an infusion of state cash to fund existing obligations that would lose the benefit of support from future contributions if employees started keeping their retirement money in 401(k) plans. In light of that, it is likely that HB 2506 won't move this session, but put this issue on your back-burner because it will come up again.

Passed second chamber

SB 653 by Whitmire/Madden (combining TYC & TJPC into a new agency) passed the House and now returns to the Senate for approval of those changes.

Passed first chamber

In addition to the bills that have been posted for committee hearings next week (see below for that list), the following bills are on the march to or through the second half of their legislative journey: HB 38 by Menendez (changing graffiti punishments), HB 243 by Craddick (no texting while driving), HB 927 by Harper-Brown (enhancement for repeated indecent exposures), HB 1072 by Solomons (exempting OAG attorneys from State Bar dues), HB 1106 by Johnson (providing information to defendants placed on deferred adjudication), HB 1529 by S. Miller (ID theft), HB 1666 by Castro (online harassment), HB 2118 by Coleman (bath salts), HB 2337 by Gallego (juvenile statements), HB 2482 by Pena (organized retail theft expansion), HB 2734 by Madden (parole of illegal criminal aliens), HB 3003 by Hughes (ID cards for county security), SB 9 by Williams (omnibus homeland security bill, including changes to organized criminal activity laws), SB 121 by Ellis (eyewitness identification procedures), SB 279 by Davis (including pets in protective orders), SB 331 by Shapiro (fake weed), SB 377 by Huffman (capital murder of a child under 10 yoa), SB 838 by Dan Patrick (Class A DWI if BAC > 0.15), SB 877 by Hinojosa (procedures for discharge of surety's liability), SB 878 by Whitmire (prohibition on partial cash bonds), SB 958 by Wentworth (dangerous wild animal exemption), SB 1010 by Huffman (notice of plea bargain to certain victims), SB 1066 by Estes (bath salts), SB 1331 by Watson (defenses for minors who report alcohol abuse), SB 1522 by Hinojosa (pleas by inmates), SB 1608 by Carona (enhanced penalty for No DL + No insurance + injury), and SB 1717 by Duncan (county court reorganization and other changes). If you are concerned about any of these bills, you are running out of time to stop them!

Bills awaiting consideration by House Calendars Committee

Speaking of stopping or moving certain bills, the following legislation is in the lawmaking equivalent of Purgatory, having passed from committee but not yet received approval for debate on the House floor: HB 12 by Solomons (sanctuary cities), HB 48 by Pena (southbound DPS checkpoints), HB 96 by Fletcher (excusing State's witness from The Rule), HB 189 by T. Smith (deferred adjudication for DWI-1st), HB 274 by Creighton ("loser pays" rule for civil lawsuits), HB 351 by Veasey (expunctions), HB 892 by C. Howard (unlawful transport of illegal alien), HB 940 by Dukes (expanding offense of improper relationship between educator and student), HB 1043 by Christian (cockfighting), HB 1121 by Weber (human trafficking), HB 1406 by Riddle (permitting EMTs to draw blood in certain DWI investigations), HB 1457 by Fletcher (expanding wiretaps, etc.), HB 1477 by Allen (street time credit), HB 1507 by Christian (authorizing search warrants by certain non-lawyer JPs), HB 1696 by Zedler (election fraud cases by AG), HB 1919 by Price (defense to cruelty to non-livestock animals), HB 2019 by McClendon (victim-offender mediation), HB 2374 by Gallego (taking juveniles into custody), HB 2822 by Coleman (voyeurism in public restroom = SJF), and HB 3386 by Madden (shock revocation, other changes). If you want to have input on what happens to these bills, you can start by contacting the members of the Calendars Committee, who do their work largely behind closed doors, ASAP.

Committee news

We are retiring this category because, quite simply, events are moving too fast for us to keep up with them. Sorry!

Scheduled floor debates

The House floor schedule for Monday and Tuesday is pretty light on bills of interest to you, and we don't know what they will tee up later in the week. The Senate list of bills eligible for debate next week should include HB 1 (the state budget bill), but that list can and will be supplemented with dozens (hundreds?) of bills not yet posted. Note also that the House will probably hold Saturday floor debates starting next week, while the Senate will try to maintain its "bankers' hours" for as long as possible.

Committee hearings

If you are following a bill that has still not been heard in a committee of its originating chamber, you can probably stick a fork in it. However, remember that the language from dead bills can always reappear as an amendment somewhere else! With that in mind, here are some of the bills that will be considered next week:

Monday, May 2

House Judiciary & Civil Jurisprudence (2:00 p.m. or upon adjournment, E2.010)
SB 283 by Harris relating to the appointment of associate judges in CPS cases
SB 789 by Harris relating to the duration of a protective order
SB 819 by Harris relating to family violence and protective orders
SB 1026 by Harris relating to the powers and duties of an attorney ad litem in SAPCR
SB 1271 by Duncan authorizing alternative dispute resolution in criminal cases
HB 2641 by Burnam relating to a civil action for deprivation of rights

Tuesday, May 3

House Criminal Jurisprudence (10:30 a.m. or upon adjournment, JHR 120)
SB 198 by West exempting certain sex offenders from registering as a sex offender
SB 295 by Watson enhancing the penalty for assault against ER hospital personnel
SB 316 by Whitmire relating to criminal asset forfeiture accountability
SB 407 by Watson creating the offense of sexting
SB 623 by Whitmire disqualifying a DA or CA who is the subject of an investigation
SB 688 by Nichols relating to criminal Medicaid fraud and related offenses
SB 887 by Carona enhancing the penalty for theft of an automated teller machine
SB 1308 by Seliger relating to attorneys representing indigent defendants in capital cases
SB 1680 by Ellis relating to certain evidence in a prosecution of Medicaid/Medicare fraud
SB 1752 by Uresti relating to confidentiality of Class C misdemeanor juvenile records
SJR 9 by West proposing a constitutional amendment authorizing the governor to grant a pardon to a person who successfully completes a term of deferred adjudication

Senate Criminal Justice (1:30 p.m. or upon adjournment, E1.016)
SB 578 by Fraser facilitating the testimony of children in criminal cases
SB 1358 by Lucio relating to electronically transmitting a warrant for emergency detention
SB 1503 by Huffman relating to procedures regarding certain MHMR criminal defendants
SB 1526 by Hinojosa mandating reciprocal discovery in a criminal case
SB 1713 by Whitmire authorizing the use of CVC funds for a forensic exam in a FV case
SB 1787 by Dan Patrick amending the DIC-24 language used in DWI cases
HB 27 by Guillen relating to fines/costs by indigent defendants in misdemeanor cases
HB 200 by Parker relating to the notification of the release of certain sex offenders
HB 350 by Walle discharging juvenile fines/costs through community service or tutoring
HB 1344 by Burkett relating to a defense to the display of harmful material to a minor
HB 1573 by Gallego relating to certain pre-trial and post-trial procedures (clerk bill)
HB 1754 by Gallego reorganizing the Task Force on Indigent Defense
HB 1779 by Naishtat exempting mitigation experts from private security regulations
HB 2014 by Thompson relating to the trafficking of persons
HB 2725 by Hartnett relating to the restoration of competency in criminal cases
HB 3000 by Thompson creating the offense of continuous trafficking of persons

Senate Jurisprudence (1:30 p.m. or upon adjournment, 2E.20)
HB 734 by Diane Patrick relating to truancy courts in certain populous counties
SB 1643 by Uresti relating to mandatory dismissal deadlines and extended jurisdiction in SAPCRs to which the Department of Family and Protective Services is a party

Six weeks left. Six weeks of ugly, messy, cringe-inducing lawmaking. Now, in light of last week's eerily correct prediction of the eventual winner of the Master's Invitational, many of you may think we have a special insight into what will come out of this legislative session. Let us disabuse you of that notion, for two reasons: First, the Golf Channel has very little to say on what the Texas Legislature will pass, so last week's primary source of information is no help. And second, even the legislators themselves don't know what they will or won't pass this session—including the redistricting maps that are being rolled out this week. So, with that in mind, join us as we continue on our voyage into the unknown ...

News from D.C. on federal student loan repayment

When Congress averted a government shutdown last week, it didn't just mean that you could keep going to your national parks—it meant that funding for the fledgling John R. Justice Student Loan Repayment Program survived for 2011. Details have yet to be worked out with the Department of Justice, but it looks like the program will be cut anywhere between 17- to 25-percent. What's important is that the program lives on, and because the Texas Higher Education Coordinating Board submitted its application for funding early in the process, Texas recipients should be fully-funded. As for the 2012 federal budget, continued funding may depend on a grass-roots campaign to demonstrate the importance of supporting young, talented lawyers to join the ranks of prosecutors. We will keep you posted on what needs to be done and when.

Sent to the governor

Well, it only took three months to finally get an entry for this category. Senate Bill 24 by Van de Putte/Thompson (human trafficking) has been sent to the Governor's desk, where it is sure to be signed into law. Come to one of our legislative updates this summer to learn what's in the bill before it goes into effect September 1st!

Floor recap

The full House approved HB 119 by Castro (third-party protective orders), HB 1072 by Solomons (exempting OAG attorneys from paying State Bar dues), HB 2015 by Thompson (juvenile prostitution), and HB 3000 by Thompson (continuous human trafficking). In related news, the House did not pass HB 115 by McClendon (innocence commission); that bill was postponed from yesterday to a date yet to be determined because its author ran into opposition on the House floor. We'll keep you posted on how that bill fares in the future.

The bills passed by the House this week now head to the Senate, which was busy passing SB 407 by Watson (sexting), SB 653 by Whitmire (combining TYC & TJPC), SB 688 by Nichols (Medicaid fraud), SB 789 by Harris (extending the duration of certain protective orders), SB 844 by Dan Patrick (escape from detention), SB 910 by Lucio (prosecutors called to active duty), SB 1010 by Huffman (duty to notify certain victims of plea offers), SB 1416 by Hinojosa (tire deflation devices), and SB 1701 by Williams (forfeiture of substitute assets)—all of which will head over to the House for further consideration. (Back and forth, back and forth ... dizzy yet?)

Committee news

If you are following a House bill that is still in committee, consider it dead if it isn't voted out by this time next week. With that in mind, here are some bills that have escaped that fate ... House Judiciary & Civil Jurisprudence approved HB 323 by Laubenberg (including pets in protective orders) and HB 2973 by Hunter (limiting SLAPP lawsuits) ... House Criminal Jurisprudence voted out HB 385 by Menendez (enhanced penalties for property crimes against disabled victims), HB 696 by Hunter (escape from lawful detention), HB 1658 by Y. Davis (refunding cash bond to depositor), HB 1666 by Castro (online harassment expansion), HB 2662 by Hochberg (child abduction reports), HB 2725 by Hartnett (criminal incompetency procedures), and HJR 98 by Burkett (denying bond to certain repeat offenders) ... Senate Criminal Justice approved SB 878 by Whitmire (limits on cash deposit bonds) ... and Senate State Affairs voted out SB 1271 by Duncan (authorizing ADR in criminal cases).

Scheduled floor debates

Once again, the House calendars for early next week don't list many bills of interest to you (although that is subject to change). As of now, the bills scheduled for debate in the House include HB 470 by Anderson (adding salvia to PG3), HB 1137 by Darby (electronic tracking of certain OTC drug sales), and HB 1601 by Price (stacking of 1st-degree injury to a child/elderly/disabled person cases). In the Senate, where even less notice is given, we know that the list of bills eligible for debate includes SB 152 by Huffman (extraneous evidence in sex crimes), SB 167 by West (expunction after pardon), SB 843 by Dan Patrick (failure to identify during detention), SB 976 by Hinojosa (mandatory release of inmates at 90% of sentence), SB 1103 by Carona (theft venue), SB 1565 by Ellis (limiting SLAPP lawsuits), and SB 1617 by Harris (juvenile court transfers).

Committee hearings

Here's a glimpse of what will be considered next week:

Monday, April 18

House Judiciary & Civil Jurisprudence (2:00 p.m. or upon adjournment, E2.010)
HB 1989 by Gallego relating to certifications of SANE programs and nurses
HB 2101 by Hernandez Luna sealing court records containing certain information
HB 2307 by Smithee exempting state agency lawyers from annual CLE requirements
HB 2496 by N. Gonzalez authorizing teen dating violence court programs
HB 2711 by Thompson sealing records of juveniles who engaged in certain conduct
HB 3172 by N. Gonzalez authorizing agreed protective orders without FV findings
HB 3796 by Gallego changing the composition of certain judicial districts in West Texas

Tuesday, April 19

House Licensing & Administrative Procedures (8:00 a.m., E2.012)
HB 3583 by Harless relating to enforcement of laws regulating coin-operated machines

House Criminal Jurisprudence (10:30 a.m. or upon adjournment, JHR 120)
HB 17 by Riddle creating the offense of criminal trespass by an illegal alien
HB 685 by Dutton restricting prosecutors' authority to dismiss a criminal action
HB 686 by Dutton limiting the secrecy of grand jury proceedings
HB 778 by N. Gonzalez authorizing the execution of lawful process by county jailers
HB 939 by V. Gonzales relating to the fee for certain services performed by a peace officer
HB 952 by Lozano creating the offense of obstruction/retaliation against a process server
HB 1200 by McClendon creating of the offense of improper photography or visual recording of certain identifying information
HB 1213 by Fletcher increasing the penalty for leaving the scene of certain accidents
HB 1410 by Bonnen increasing the punishment for the offense of attempted murder
HB 1640 by Dutton relating to official oppression by a peace officer
HB 1723 by Lucio III increasing penalties for violations of bond/protective orders
HB 2065 by Allen authorizing victim-offender mediation programs
HB 2180 by Isaac relating to disorderly conduct involving unreasonable noise
HB 2285 by Nash authorizing probation reimbursement for certain investigation costs
HB 2303 by Alvarado expanding Crime Victims' Compensation for certain victims
HB 2323 by Raymond increasing the penalty for certain manslaughters
HB 2326 by McClendon lowering penalties for the offense of theft
SB 316 by Whitmire reforming criminal asset forfeiture practices and procedures
SB 623 by Whitmire disqualifying a prosecutor from an investigation of himself
SB 887 by Carona increasing the penalty for theft of an automated teller machine
SB 1308 by Seliger relating to the standards for attorneys appointed in capital cases
SJR 9 by West proposing a constitutional amendment authorizing the governor to grant a pardon to a person who successfully completes deferred adjudication

Senate Criminal Justice (1:30 p.m. or upon adjournment, E1.016)
Not posted when this went to press; visit http://bit.ly/hBvwTw on Monday for details.

House Homeland Security & Public Safety (2:00 p.m. or upon adjournment, E1.026)
HB 440 by Turner restricting a peace officer's authority to take a blood specimen for DWI
HB 1530 by S. Miller authorizing county commissioners to carry concealed handguns in their meetings
HB 2528 by Harper-Brown restricting the use of vehicles that mimic law enforcement
HB 2957 by J. Davis creating due process rights for law enforcement officer suspects

Wednesday, April 20

House Corrections (2:00 p.m. or upon adjournment, E2.014)
HB 542 by Dutton relating to the successful completion of deferred adjudication
HB 1299 by Guillen mandating early release of certain inmates nearing their discharge date
HB 2412 by Miles mandating early release of certain drug offenders with prior crimes
HB 2583 by Walle creating a gang remediation task force
HB 3359 by Miles mandating release of certain inmates who were revoked on probation
HB 3691 by Gallego relating to certain probation programs and services
HB 3762 by Marquez requiring public hearings for determining execution procedures

Thursday, April 21

House Homeland Security & Public Safety, Subcommittee on Law Enforcement Issues
(8:30 a.m., E2.028)
HB 512 by Dutton restricting the authority of peace officers to conduct certain searches
HB 3227 by Hernandez Luna authorizing the use of forfeiture proceeds for college scholarships for children of peace officers killed in the line of duty
HB 2756 by Lavender authorizing the open (unconcealed) carrying of a handgun
HB 3147 by McClendon relating to DNA evidence of sexual assaults 

As we write this, state representatives are debating House Bill 1, the state appropriations act for the next two years. While we watch that thrilling debate on Austin access cable, we are gearing up for next week's "sex offender" day, a second week of cockfighting debates, and more bills to open the prison doors and release inmates early because, doggone it, we just can't afford to keep them locked up anymore. (Seriously—this is not an April Fools' joke.) Sounds exciting, doesn't it? If we could sell tickets and popcorn for the show, we'd be ... well, we'd be as broke as the state is, because who wants to pay to watch a slow-motion G-rated train wreck?

Floor recap

This week, the Senate passed SBs 158 and 159 by Williams (fraudulent drug diversion), SB 331 by Shapiro (fake weed), and SB 377 by Huffman (death penalty for murder of child under 10). Across the rotunda, the House passed HB 215 by Gallego (eyewitness ID reform)—now that House bill goes to the Senate and the Senate bill sits in the House while both chambers fight over whose bill will pass first (ain't politics grand?).

Committee news

The House Elections Committee approved HB 1696 by Zedler (expanding the AG's authority over election fraud cases) ... House State Affairs approved HB 892 by C. Howard (unlawful transport of an illegal alien) ... House Judiciary & Civil Jurisprudence voted out HB 1072 by Solomons (waiving State Bar dues for attorneys employed by the state), HB 2014 by Thompson (human trafficking), HB 2015 by Thompson (making juvenile prostitution a CINS offense), HB 2294 by Hunter (limiting Declaratory Judgment Act claims), and HB 3000 by Thompson (continuous human trafficking) ... and House Criminal Jurisprudence voted out HB 1106 by Johnson (notice to defendants placed on deferred adjudication) and HB 2725 by Hartnett (incompetency procedures). And over in the Senate, the Senate Criminal Justice Committee voted out SB 1416 by Hinojosa (tire deflation devices).

Scheduled floor debates

Assuming the House members survive today's budget discussion, upon their return on Monday they are scheduled to debate and vote on HB 371 by Hochberg (no deferred adjudication for certain murderers) among other business. Over in the Senate, bills eligible for debate include SB 153 by Huffman (overruling Ivey v. State), SB 170 by Ellis (making the Task Force on Indigent Defense a permanent agency), SB 789 by Harris (extending the duration of certain protective orders), SB 1308 by Seliger (standards for appointed counsel in death penalty cases), and SB 1702 by Williams (creating a money laundering task force in the AG's office).

Committee hearings

Here's a glimpse of what will be considered next week:

Monday, April 4

House Licensing and Administrative Procedures (8:00 a.m., E2.030)

HB 1822 by Harless relating to the withdrawal of security by a bail bond surety
HB 1823 by Harless relating to who can execute bail bonds and act as sureties

Senate Government Organization (9:00 a.m., 2E.20)

SB 653 by Whitmire abolishing TYC and TJPC; creating a new Juvenile Justice Dept.

Senate State Affairs (9:00 a.m., Senate Chamber)

SB 1718 and SJR 45 by Duncan relating to the appointment/retention of state judges

House Homeland Security & Public Safety, Subcommittee on Law Enforcement Issues (1:00 p.m. or upon adjournment, E1.026)

HB 19 by Riddle increasing penalties for operation of a motor vehicle without a license
HB 595 by Raymond increasing the punishment for false identification as a peace officer

Senate Agriculture and Rural Affairs (1:30 p.m. or upon adjournment, E1.012)

SB 958 by Wentworth relating to the regulation of dangerous wild animals
SB 1480 by Hegar relating to the regulation of exotic aquatic species

House Elections (2:00 p.m. or upon adjournment, E2.028)

HB 304 by Pena limiting the assistance a person may provide a voter
HB 2589 by Pena increasing the penalty for certain fraudulent acts by a voter registrar
HB 2629 by Branch clarifying certain honorariums offered to/accepted by public servants
HB 3498 by Aliseda increasing the penalty for illegal voting

House Judiciary & Civil Jurisprudence (2:00 p.m. or upon adjournment, E2.010)

HB 1381 by Madden relating to the service of civil process on a TDCJ inmate
HB 1418 by Hughes relating to inmate litigation
HB 1559 by S. Davis prohibiting the destruction of certain court documents
HB 1771 by Madden establishing the Specialty Courts Advisory Council
HB 1911 by Bonnen limiting the liability for damages arising from training exercises
HB 1985 by S. Turner relating to the collection of court costs, fees, and fines
HB 2976 by Hunter relating to the issuance of a warrant to take physical custody of a child in certain suits affecting the parent-child relationship

Tuesday, April 5

House Licensing and Administrative Procedures (8:00 a.m., E2.012)

HB 1822 by Harless relating to the withdrawal of security by a bail bond surety
HB 2728 by Thompson relating to the operation and regulation of charitable bingo

House Criminal Jurisprudence (10:30 a.m. or upon adjournment, JHR 120) (sex crimes day!)

HB 36 by Menendez increasing the penalty for certain prostitution offenses
HB 649 by Gallego relating to certain protective orders for victims of sexual assault
HB 764 by Lozano authorizing general-law municipalities to impose child safety zones
HB 772 by Riddle cleaning up certain statutory discrepancies relating to sex offenses
HB 867 by Darby limiting eligibility for jury-recommended community supervision
HB 927 by Harper-Brown increasing the punishment for habitual indecent exposure
HB 940 by Dukes expanding the offense of improper relationship between educator/student
HB 1049 by Woolley authorizing evidence of other offenses in certain sex crimes trials
HB 1471 by Miles increasing the penalty prescribed for official oppression
HB 1345 by Veasey relating to the statute of limitations for kidnapping of a minor
HB 3001 by Thompson relating to the electronic monitoring of certain sex offenders
HB 2227 by Coleman expanding hate crimes to include gender identity or expression
HB 604 by Farrar repealing the offense of homosexual conduct
HB 2156 by Coleman repealing the offense of homosexual conduct
HB 1721 by Lucio III relating to protective orders for stalking or sexual assault
HB 2966 by Naishtat relating to the confidentiality of certain communications and records made or collected in reference to certain sexual assault survivors
HB 2993 by Miles increasing penalties for improper sexual activity with an inmate
HB 3 by Thompson imposing life without parole on certain repeat sex offenders
HB 825 by Anchia relating to protective orders for stalking victims
HB 3177 by S. King expanding venue for certain crimes against children
HB 1722 by Lucio III relating to the failure to stop/report certain crimes against a child
HB 3176 by S. King relating to failure to stop/report aggravated sexual assault of a child
HB 1874 by Zedler expanding the offense of improper relationship between educator/student
HB 1909 by Coleman relating to indecency with a child between members of the same sex
HB 3746 by Frullo relating to providing resources to combat crimes against children
HB 1994 by Weber creating a first-offender prostitution prevention program
HB 2019 by McClendon authorizing victim-offender mediation programs for certain property crimes (that do not give prosecutors a role in who enters the program)
HB 2196 by Rodriguez relating to the prosecution of the offense of theft of service
HB 3031 by McClendon creating "shock" deferred adjudication
HB 3077 by Gallego relating to discharging a surety's liability on a bail bond
HB 1070 by Scott relating to the taking of a defendant's bail bond by county jailers
HB 3692 by Gallego authorizing citations for persons with mental illness/incompetency
HB 47 by Pena creating a crime relating to tire deflation devices
HB 3695 by Gallego making confidential certain Class C misdemeanor records of a child
HB 3396 by Hernandez Luna increasing the penalty for breach of computer security
HB 1707 by Gutierrez changing the value ladder for the offense of misdemeanor theft
HB 385 by Menendez relating to theft/fraud committed against a disabled individual

Senate Criminal Justice (1:30 p.m. or upon adjournment, E1.016)

SB 152 by Huffman authorizing evidence of other offenses in sex crimes trials
SB 167 by West relating to expunction after a pardon
SB 348 by Estes relating to the sale or delivery of salvia to a child
SB 496 by Fraser relating to evading arrest or detention in a watercraft
SB 757 by Deuell limiting certain defenses to display of harmful material to a minor
SB 843 by D. Patrick relating to failure to identify after a detention
SB 844 by D. Patrick relating to escape from custody by a person lawfully detained
SB 913 by Estes relating to records regarding over-the-counter sales of certain drugs
SB 939 by Lucio creating an offense for cockfighting
SB 976 by Hinojosa mandating the early release of TDCJ inmates with less than 1 year or 10% of their sentence remaining to be served
SB 1010 by Huffman providing a victim with notice of a plea bargain agreement
SB 1014 by W. Davis, relating to time during which prisoners may be released from jails
SB 1055 by Carona authorizing "commitment reduction plans" by CSCDs
SB 1103 by Carona expanding the venue for prosecution of certain theft offenses
SB 1273 by Williams relating to the lawful manufacture, distribution, and possession of and prescriptions for controlled substances
SB 1600 by Whitmire relating to peace officers registering as private security officers
SB 1676 by Ellis requiring peace officer training on ethical decision making
SB 1680 by Ellis relating to certain evidence in Medicaid or Medicare fraud cases

Senate Jurisprudence (1:30 p.m. or upon adjournment, 2E.20)

SB 910 by Lucio relating to elected prosecutors called into active duty military service
SB 1490 by Uresti relating to the custody of a child in certain SAPCR suits
SB 1607 by Carona relating to the duties and responsibilities of county clerks
SB 1617 by Harris relating to the discretionary transfer of certain juvenile offenders

House Homeland Security & Public Safety (2:00 p.m. or upon adjournment, E1.026)

HB 2990 by Deshotel relating to the electronic storage of personal identification information obtained from driver's licenses
HB 48 by Pena authorizing DPS to investigate the feasibility of southbound checkpoints

Wednesday, April 6

Senate Transportation & Homeland Security (8:00 a.m., E1.016)

SB 150 by West granting limited state law enforcement authority to special agents of the Inspector General of the U.S. Department of Veterans Affairs
SB 530 by Huffman granting limited state law enforcement authority to special agents of the Inspector General of the U.S. Social Security Administration
SB 947 by D. Patrick granting limited state law enforcement authority to certain criminal investigators of the United States and to other federal law enforcement personnel

Senate Intergovernmental Relations (9:30 a.m., E1.028)

SB 373 by Duncan expanding authority of county treasurers and auditors
SB 1233 by West promoting efficiencies in certain county services and functions
SB 1243 by West authorizing the use of a county risk management pool by certain county and district officers instead of the execution of bonds

House Corrections (2:00 p.m. or upon adjournment, E2.014)

HB 961 by S. Turner sealing and restricting access to certain juvenile records
HB 2649 by Allen awarding a type of good time credit to state jail confinees
HB 2650 by Allen mandating intermediate sanctions for persons on probation
HB 2735 by Madden authorizing bonds for blue warrant violations of parole
HB 3538 by Thompson expanding release of certain inmates on medically recommended intensive supervision or on super-intensive supervision parole

Thursday, April 7

House Defense and Veteran's Affairs (2:00 p.m. or upon adjournment, E2.014)

HB 1178 by Flynn extending certain veterans' employment protection
HB 2122 by Lozano relating to elected prosecutors called into active duty military service

SOS

Due to circumstances beyond their control, both of the elected prosecutors who volunteered to come to Austin to help out during the week of April 11 are now unavailable. If you are free that week—or at least the first three days of that week—and are willing to lend a hand, please contact Shannon for more details.

Happy belated St. Patrick's Day! Erin Go Bragh and all that blarney. Forgive us for not being more festive, but all this legislative work during Spring Break, South by Southwest, March Madness, and St. Paddy's Day really leaves us a bit off our nut. But who knows, maybe someone will stumble across a leprechaun's pot o' gold and donate it to the state budget writers! Then they'd only be $23 billion in the hole. Speaking of which ...

Budget update: Probation edition

We don't have anything new to add to our last update about longevity pay or DA apportionment, so we thought we'd fill you in on the (sorry) state of the proposed state budget with respect to probation. Here are the low-lights of the House and Senate versions of the original budget bills, as we discussed earlier this session:

• State funding of misdemeanor probation (about one-third of the total cost) is eliminated
• Felony probation funding is also reduced
• Support of treatment/diversion programs is rolled back to 2007 levels
• Supervision officers and direct care staff salaries are rolled back to 2009 levels
• BIPP funding is eliminated
• TAIP funding is cut (90% cut in the House, 51% in the Senate)
• Mental health services are slashed

The Senate version is currently more favorable in several areas, but that was based on using some of the Rainy Day Fund. Now that the Governor has made that a non-starter for the next budget (see our Quotes section below), the House's more drastic reductions in probation funding appear to be closer to the eventual product. Furthermore, several new bills—including HB 3664 by Otto, HB 3649 by Otto, and SB 1583 by Ogden—would permanently remove TDCJ's obligation or ability to fund any part of misdemeanor probation in the future (perhaps under the theory that misdemeanors are a local issue, not a state problem). The impact of those bills and that final budget will vary by location, so talk to your local CSCD for the details on your local situation. However, it is probably safe to say that several residential treatment facilities will close and specialized caseloads will be reduced or eliminated, while CSCDs will be forced to spread around what little felony probation funding they still get to help with other unfunded obligations. How that will all shake out is still to be determined, but it won't be pretty.

Student loan repayment

Remember this issue? It isn't legislative in nature, but we recently received word from the Texas Higher Education Coordinating Board (THECB) that the first 10 awards under the John R. Justice student loan repayment program were made this week. The THECB expects to receive enough federal funds later this month to make all but a handful of the remaining awards. (They have a few awards that are on hold pending receipt of an IRS transcript, additional employment verification, or student loan information—apparently some of our prosecutors are not too good at following instructions!) As originally planned, a total of 198 awards will be made in the amount of $5,000 to 66 to public defenders and $2,500 to 132 prosecutors. We have received indications from other states that our disparity between prosecutors and public defenders in the number and amount of awards—which is partially due to the way the federal program was designed—is also being experienced in other states. Hopefully that is something we can work on after this session, assuming the federal government ever passes an actual budget.

Bill rundown

The bill filing deadline has come and gone, and we're still standing. After surveying the damage, senators filed a total of 1,871 bills (down from 2,439 two years ago), while House members filed 3,801 (down from 4,697). The total number of bills and joint resolutions (to amend the state constitution) fell from 7,325 in 2009 to 5,873, a difference of 1,452 fewer pieces of legislation to be considered this session. Chalk up the decrease in bill filings to two factors: lack of money to pay for new programs and lack of experience among the freshman in the House (none of whom have a drawer full of old, failed bills to re-file this session, either). Whatever the cause, though, color us grateful!

Of the 5,873 bills filed this session, we are currently tracking 1,473 (25%) because of their potential impact on you or your office. The categories and respective number of bills we are tracking include the following:

Bail bonds 34
Death penalty 30
Criminal records 35
CCP 407
Civil 61
Drugs 40
DWI 48
Enhancements 106
Human trafficking 21
Juvenile 61
New duties 81
New felonies 88
New A/B misds. 114
Penal Code 215
Sex offenders 53
Transportation Code 138
Victims' issues 63

Halftime score: Senate 76, House 1

In the big picture, the Senate is lapping the House in their race to move legislation from one chamber to the other. To date, the Senate has sent 76 bills to the House, which has only passed one House bill to the Senate in return (and that bill is a sonogram/abortion bill that the Senate has already passed in a different form). For instance, this week the Senate passed SB 121 by Ellis (reforming line-up identification procedures), SB 316 by Whitmire (asset forfeiture reforms), and SB 321 by Hegar (authorizing employees to transport/store firearms while at work). But don't be alarmed, such a disparity is normal for this time of year—consider it proof that it is easier to herd 31 cats than it is to herd 150.

Committee recap

This past week, the House Judiciary & Civil Jurisprudence committee approved HB 7 by Thompson (human trafficking omnibus bill) ... House State Affairs voted out HB 12 (sanctuary cities) ... House Public Health approved HB 670 by Crownover (banning smoking in public places) ... House Homeland Security & Public Safety gave the green light to HB 750 by Driver (concealed handguns on campus) ... and House Criminal Jurisprudence voted out HB 341 by Fletcher (burglary in the course of evading arrest) and HB 690 by Martinez Fischer (graffiti of historic structure/property).

In the Senate, the Criminal Justice Committee approved SB 24 by Van de Putte (human trafficking omnibus bill), SB 144 by West (pardons for deferred adjudications), SB 153 by Huffman (overruling Ivey v. State), SB 623 by Whitmire (prosecutor disqualification), and SB 1436 by Van de Putte (continuous human trafficking), while Transportation & Homeland Security voted out SB 119 by Uresti (no texting while driving).

Scheduled floor debates

The House will finally take up SB 14 by Fraser (voter ID) on Monday. In the Senate, SB 116 by Uresti is ready for debate. Other than that, most of our issues are so far off the front burner that they're not even in the Legislature's kitchen right now.

Committee hearings

Here's a glimpse of what's on tap for next week; as you can see, Tuesdays are getting completely out-of-hand. But despite the large volume of postings, it is still very important to READ THIS LIST—history shows that a bill voted out of a committee has almost a 50% chance of becoming law, so this is where the rubber really meets the road.

Monday, March 21

House Judiciary & Civil Jurisprudence (2:00 p.m. or upon adjournment, E2.010)

HB 1890 by Fletcher relating to barratry and AG prosecutions of related offenses
HB 2163 by Scott including barratry as a deceptive trade practice
HB 2164 by Scott relating to barratry and solicitation of professional employment

Tuesday, March 22

Senate Health and Human Services (9:00 a.m., Senate Chamber)

SB 544 by Seliger relating to unlawful acts and criminal offenses involving Medicaid
SB 688 by Nichols relating to Medicaid fraud and AG prosecutions of related offenses
SB 751 by Hegar relating to the regulation of catfish and certain other fish

House Criminal Jurisprudence (10:30 a.m. or upon adjournment, JHR 120)

HB 49 by Pena adding certain synthetic derivatives of marihuana to Penalty Group 2
HB 189 by T. Smith authorizing deferred adjudication for certain DWI-1st offenders
HB 278 by Alonzo mandating continuances upon request of a party
HB 290 by J. Jackson increasing the penalty for employment harmful to children
HB 351 by Veasey expanding expunctions
HB 546 by Dutton permitting expunctions for certain deferred adjudications
HB 696 by Hunter expanding the offense of escape to include a person lawfully detained
HB 703 by Gutierrez enhancing penalties for assault of health care services providers
HB 770 by Lozano increasing the punishment for certain bail jumping and failure to appear
HB 913 by Dutton relating to the automatic expunction of criminal records
HB 922 by Riddle increasing the penalty for theft of an automated teller machine
HB 1028 by Phillips limiting contact between a defendant and a victim
HB 1101 by Lucio III authorizing certain surviving family members of a victim to make an oral statement regarding the terms of a plea bargain agreement
HB 1102 by Lucio III relating to the penalty for theft of a pet
HB 1106 by Johnson providing defendants with information about deferred adjudications
HB 1121 by Weber relating to certain offenses involving trafficking of persons
HB 1122 by Weber relating to the trafficking of persons
HB 1243 by D. Miller relating to the ingestion of a controlled substance while pregnant
HB 1344 by Burkett relating to defenses for the display of harmful material to a minor
HB 1489 by Naishtat authorizing to an oral victim impact statement before a plea
HB 1601 by Price authorizing stacking for certain injury to a child offenses
HB 1666 by Castro relating to the prosecution of the offense of online harassment
HB 1754 by Gallego relating to indigent defense
HB 1856 by Woolley relating to the offense of tampering with a witness
HB 1891 by S. Davis relating to the time for execution of certain search warrants
HB 1937 by Simpson relating to making certain TSA airport searches a sex crime
HB 1988 by Gallego authorizing surviving family members of certain victims to make an oral statement regarding the terms of a plea bargain agreement
HB 2159 by Coleman changing the insanity defense in a criminal case
HB 2318 by Kolkhorst expanding expunctions to all probations
HB 2385 by Geren relating to the DNA database at the UNT Health Science Center
HB 2397 by S. Miller increasing the punishment for breach of computer security
HB 2689 by Deshotel authorizing certain pleas by mail or secure electronic transmissions
HB 2725 by Hartnett relating to the determination of incompetency in criminal cases
HJR 98 by Burkett proposing a constitutional amendment denying bail to certain persons charged with a violent or sexual offense after having been previously convicted of a violent or sexual offense
HJR 97 by Naishtat proposing a constitutional amendment relating to a moratorium on the execution of persons convicted of capital offenses

Senate Criminal Justice (1:30 p.m. or upon adjournment, E1.016)

SB 82 by Nelson relating to the prosecution of the offense of stalking
SB 122 by Ellis expanding access to post-conviction forensic DNA testing
SB 158 by Williams relating to the fraudulent obtaining of a controlled substance
SB 159 by Williams relating to the diversion of a controlled substance
SB 331 by Shapiro including certain synthetic cannabinoids to Penalty Group 2 (Note: This bill is not yet posted, but it is likely to be added to the list)
SB 354 by Wentworth authorizing the carrying of concealed handguns on certain campuses
SB 364 by Ogden gathering statistical information on the prosecution of DWI offenses
SB 377 by Huffman relating to the murder of a child as a capital offense
SB 779 by Whitmire creating to a central database and registry for animal cruelty offenders
SB 882 by Whitmire relating to the filing of certain records related to personal bond
SB 887 by Carona increasing the penalty for theft of an automated teller machine

Senate Jurisprudence (1:30 p.m. or upon adjournment, 2E.20)

SB 480 by Hegar relating to certain appeals from judgments of municipal courts of record
SB 519 by Hegar relating to motions for a new trial in Class C misdemeanor proceedings
SB 789 by Harris relating to the duration of a protective order against family violence
SB 819 by Harris relating to family violence and protective orders.

House Homeland Security & Public Safety (2:00 p.m. or upon adjournment, E1.026)

HB 299 by Berman repealing the driver responsibility program (DPS surcharges)
HB 588 by Guillen relating to the advance payment of DPS surcharges
HB 242 by Craddick relating to certain retired peace officers carrying certain firearms
HB 607 by S. Miller relating to the eligibility of CDL holders for dismissal of certain charges on completion of a driving safety course
HB 1137 by Darby relating to over-the-counter sales of ephedrine, pseudoephedrine, and norpseudoephedrine and a person's civil liability for certain acts arising from the sale of those products

Wednesday, March 23

House Corrections (2:00 p.m. or upon adjournment, E2.014)

HB 1477 by Allen awarding credit to certain TDCJ inmates for time between release on and revocation of parole or mandatory supervision
HB 1962 by Villarreal relating to programs that a JP/muni court may require of a juvenile
HB 1964 by Villarreal relating to discharging fines and costs assessed against juveniles
HB 2352 by Allen expanding mandatory supervision (early release) from TDCJ
HB 2354 by Madden authorizing the use of certain surveillance equipment within TDCJ

Bill filings

We're pretty much finished with this entry (hallelujah!). To follow the most important bills of the session, click on the relevant buttons near the top of tjos page. For details on specific bills, contact us directly.