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!