Legislative Update: Week 11


            Things are getting so awkward and tense between the House and Senate leadership that if you dropped some uncooked popcorn kernels in the rotunda under the dome, they might spontaneously pop. That’s not unusual for a legislative session in, say, May, but it is very unusual for things to be like this in March. 

Looking ahead

            We are 11/20ths of the way through the session, which does not reduce … Asset forfeiture, DWI deferred adjudication, constitutional carry, and the Senate’s budget bill will all be front and center next week, while bail bond reform is expected to get teed up for a committee hearing during the first week of April … read on for all the details!

First, they came to release the non-violent offenders …

            “Criminal justice reform” is almost too broad a topic to mean much nowadays. It can include procedural reform (like the eye-witness identification changes of 2011), pre-trial detention (personal vs. commercial bail bonds), specific subject matters (the death penalty, human trafficking, etc.), and more. But one of the biggest areas of “reform” being advocated for the past 10 years has been the move toward decarceration—moving convicted offenders out of jails and prisons and into community supervision or pre-trial diversion programs (or legalizing their conduct altogether). To date, the “decarceration movement” has focused almost entirely on low-level, non-violent property and drug offenders—but that is about to change.

            The problem with decarcerating only drug and property offenders is that, contrary to the conventional wisdom, those are by and large not the offenders we lock up! The majority of offenders in TDCJ are there for violent crimes, sex crimes, and/or are habitual offenders. Therefore, if the anti-incarceration crowd really wants to shrink prison capacity in Texas, they are going to have to go after the red meat: 3g offenders. [Note: Yes, we know the Legislature repealed CCP Art. 42.12 last session and re-organized it so that the old list of crimes in Section 3g is now found in Art. 42A.054, but you’ll have to pry the “3g” moniker from our cold, dead hands.] And we got a glimpse into that future yesterday, when the House Corrections Committee heard HB 2120 by S. Thompson (D-Houston).

            Although the language of HB 2120 was confusing to all, the intent was clear from the testimony supporting it: Inmate family members and criminal justice reform advocates on the political left and the right testified in favor of granting 3g offenders— past, current, and future—credits for certain good behavior behind bars that would accelerate their parole eligibility to a time earlier than the standard 3g term that today not does allow for consideration of good time. Testimony at the hearing from the chairman of the Board of Pardons and Paroles indicated that more than 19,000 3g offenders would be immediately eligible for earlier parole consideration if such a bill passed!

            More than 45 witnesses testified either for or against this bill in yesterday’s hearing. It was disappointing to see crime victims and survivors be re-victimized by this attempt to go back on the promises the State has made to them, but they and the prosecutors who showed up to testify may have helped stop it in its tracks—for now. Special recognition goes out to Bexar County CDA Nico LaHood, Llano County First Asst. DA Perry Thomas, Fort Bend County First Asst. DA Fred Felcman, Fort Bend County Asst. DA Jenna Rudoff, Travis County Asst. DA Justin Wood, and more than a dozen victims of violent crime who stood in the breach yesterday.

            Going forward, it may be time for prosecutors to ask themselves an important question: Where do we draw the line? As ministers of justice, many of you are doing great work in your communities to divert more low-level, non-violent offenders from incarceration—but like many things at the Capitol, it seems like advocates on the other side may take the inches you are giving and insist on the full mile, with no recognition of the difference in offenders’ conduct. After all, if the people who gave us the phrase “We should be locking up the people we are afraid of, not the people we are mad at” are now arguing for us to release the people we are most afraid of, there could be no end to this. Prepare yourselves accordingly.

Budget update

            The full Senate will take up SB 1 by Nelson (R-Flower Mound), this year’s budget bill, on Tuesday. You can follow your mainstream media source of choice for the general details. A good breakdown of how the Senate and House differ on what CPS improvements they want to fund can be read here. There’s also a big debate brewing between the two chambers over whether to tap the state’s Rainy Day Fund, and if so, for what that money should be used. The House leadership would like to draw down money for one-time expenses like repairs and improvements to state mental health hospitals, but the Senate budget-writers have so far resisted calls to touch that money. (For more on that side debate, read this.) The Senate does include more than $200 million in additional mental health services of various types, which never hurts, but most requests for additional funding have either been denied or tabled until later in the session when additional money may materialize. We’ll have a better idea of what’s in the Senate budget after they pass it (where have we heard that before?) and we’ll send along anything of note that does not get reported by the usual suspects.

Innocence legislation

            During the interim between sessions, the Timothy Cole Exoneration Review Commission came up with a set of policy recommendations to change various criminal laws in Texas. (The commission’s report can be viewed here.) Those recommendations have now appeared in bill form as HB 34 (and a second identical version, HB 3127) by Smithee (R-Amarillo) and their Senate companion, SB 1577 by Perry (R-Lubbock). These bills include the following major provisions (listed with additional, separate bills that make only those changes):

  • JAILHOUSE INFORMANTS (HB 3133): All prosecutors must adopt a written policy and a system for handling jailhouse informant testimony (deals, criminal history, past testimony, etc.); jailhouse informants’ complete criminal history and all prior bad acts are admissible at trial; current duties in regard to pre-trial disclosure are further codified.
  • CONFESSIONS (HB 3134): Requires electronic recording of custodial interrogations in felony investigations absent a good cause exception (five are listed).
  • LINE-UPS: All law enforcement agencies must adopt the LEMIT model policy on eyewitness identifications (including the current mandate to use sequential instead of simultaneous line-ups, despite recent research showing that may not be a best practice); requires a new predicate for the admissibility of an in-court identification.

There are also bills out there that came from the Commission’s interim work but did not make it into their official recommendations, such as HB 2873 by Smithee (and its companion, SB 1273 by Rodriguez) which create a new “11.075 writ” allowing a trial judge to grant a writ for relief when both parties agree and eliminating the need for the Court of Criminal Appeals to approve it.

            These bills will get hearings, so be sure to read them. The bill authors are open to suggestions on how to improve them, but you must weigh in now, not later, if you want to be effective. Contact Shannon for more information on where these bills will go from here and what you can do about them.

State Bar sunset review

            On Tuesday, the House Judiciary and Civil Jurisprudence Committee heard testimony on HB 2102 by S. Thompson (D-Houston), the Sunset Commission’s bill to continue the State Bar for another 12 years. The bill makes a few structural changes to the Bar’s operations, including in the area of attorney discipline. For instance, the bill would create a committee to annually review all Bar disciplinary rules and report to the Texas Supreme Court whether they are adequate. The bill also creates various ways in which Bar disciplinary rules can be changed, including a new process that would allow a proposed change to be put forth by legislative resolution, a request by 10 percent or more of the bar membership, or a petition process requiring the signatures of “at least 20,000 people.” That last provision includes no requirement that those “people” be eligible voters, or Texas residents—or even American citizens—but fortunately, we caught that ambiguity in time to get the Senate companion amended when it was heard in the Senate State Affairs Committee on Thursday. That bill—SB 302 by Watson (D-Austin)—was left pending in committee, as was the House bill.

            Interestingly, what got the most attention from House committee members is a proposed requirement that all Texas attorneys who haven’t already submitted fingerprints to the Board of Law Examiners submit fingerprints to the Bar for purposes of a criminal history background check. Sunset Commission staff defended the requirement as being consistent with all other licensed occupations in Texas, but several committee members chafed at the notion that, once this was done, a full 30 percent of the general public who are in licensed occupations would be under the watchful eye of Big Brother here in Austin. As of now, though, that requirement remains in both bills.

            We will continue to monitor these bills, but if you have an interest in how your profession is regula