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.