The Legislature adjourned earlier today and will take advantage of the long holiday weekend to return home for rest and recuperation—their last opportunity to do so between now and Memorial Day. From here on out, things will be pedal-to-the-metal from Mondays through Fridays (and even some Saturdays), so don’t forget to add us to your prayers this weekend.
We are 14/20ths of the way through the session, which reduces to 7/10th. Hot topics next week include grand jury reform, bail bond reform, and repealing/limiting the death penalty—and that’s just on Monday alone. The final six weeks of this session are going to be a roller coaster ride—read on for all the details!
Grand jury reform
The House Criminal Jurisprudence Committee has a full slate of controversial bills set for Monday afternoon (and late into the night, most likely)—you can see the full list further below in that section of this update. But of all the issues in that committee, the one we think you will be most concerned about is HB 2640 by Thompson (D-Houston), which is the Right on Crime people’s “grand jury reform” bill. We discussed this general topic about a month ago, but if you’ve forgotten about this particular bill, here’s the short list of the parade of horribles:
- Defense lawyers in the grand jury
- Appointment of counsel for all indigent grand jury witnesses
- Full Michael Morton-style discovery to those lawyers before grand jury testimony
- Requirement to present all exculpatory evidence to grand jury
- All grand jury testimony/proceedings recorded & provided to defendant upon indictment
- No-billed targets and indicted defendants can immediately sue prosecutors
If you can find much of anything to like about this bill, you’ll be the first prosecutor to tell us so. Even the proponents of the bill know this, which is why they’ve come to us to try to negotiate the bill down to something more palatable to prosecutors. But honestly, when any special interest group rolls out a bill that is the legislative equivalent of double-barreled middle fingers to all felony prosecutors and thereby demonstrates in black and white what they really think of you, can you trust them to negotiate anything in good faith? Prosecutors went to the mattresses to oppose milder versions of this bill 25 years ago when it last had some momentum, and we don’t know what has changed since then to draw any different conclusions today.
With that in mind, if you have objections to this bill, now is the time to register them. In person. In Austin. And don’t worry, we’ll supply plenty of left-over Easter candy to fuel you through the late night if needed. To learn more on this topic and join forces with other prosecutors who want to work on this bill, contact Rob.
Judicial pay raise
On Tuesday, the House Judiciary and Civil Jurisprudence Committee heard HB 3971 by Schofield (R-Houston) and left the bill pending. This bill is Chief Justice Hecht’s attempt to take the biennial discussion about judicial pay raises out of the hands of the Legislature and make it “automatic.” Here is the formula: The bill sets the benchmark salary of an associate justice of the Texas Supreme Court (or judge of the Court of Criminal Appeals) by adding up each of the following:
(1) one-third of the average salary of supreme court justices in the nine most populous states;
(2) one-third of the salary of a judge on a US court of appeals; and
(3) one-third of the average salary of new attorneys employed at the five largest law firms in Texas.
Under the bill, the Comptroller would annually adjust Texas judges’ salaries using this formula, with district judges making 82.5 percent of that amount. The effective date of the bill is January 1, 2019 (to avoid any fiscal note this biennium), but if the bill was in effect now, the district judge benchmark salary would increase from $140,000 to about $164,000 (and y’all can do your own math from there). The big question, of course, is whether the Legislature will buy the “automatic” feature of the bill. There would still need to be an appropriations process to fund the salaries every session, so we shall have to wait and see if the Legislature is willing to cede its control over the budgeting of judicial salaries to a formula based on factors outside its control.
(By the way, as a side note on “how not to testify,” remember that it is never a good idea when asking for a pay raise from the Legislature to testify that you were forced to quit the bench because you could not afford to send your kids to a private college. Consider that your “pro tip” of the week from us.)
As the Legislature takes one final breather this weekend before sprinting towards the goal line, we thought it would be a good idea to run down some of the other major issues (besides grand jury reform) being debated this session and give you a short status report. Here are where things stand from our viewpoint (topics listed alphabetically):
Asset forfeiture: The House sent multiple forfeiture bills to a subcommittee, where they remain pending. In the Senate, no hearings have been held, but don’t be surprised if the State Affairs Committee calls up two or three of the reform bills for a hearing later this month.
Bail bond reform: SB 1338 by Whitmire (D-Houston) is pending in his Criminal Justice Committee; a slimmed-down version may be voted out of committee next week (if at all). The House companion, HB 3011 by Murr (R-Junction), is set for a hearing Monday, where a slimmed-down version will also be laid out.
Budget: The House and Senate conferees (members of the conference committee) will likely be appointed next week, then those 10 legislators will disappear for a month and emerge with a finished budget product that both chambers will have to approve on an up-or-down vote. None of the budgetary items for district and county attorneys were increased in either version of the bill, but nor were they decreased, so count yourselves among the fortunate in this tight budget cycle. We’re also likely to see increased state funding for CPS and mental health treatment (details yet to be finalized).
Court security: SB 42 by Zaffirini (D-Laredo) passed the Senate and has been referred to the House Judiciary and Civil Affairs Committee, where its House companion, HB 1487 by Smithee (R-Amarillo), is awaiting a vote. Both bills create a statewide courthouse security coordinator and local security committees (which are to include prosecutors). The bills also create a $5 filing fee on civil cases to pay for the new coordinator position and additional training for courthouse security officers, and they beef up various privacy/confidentiality provisions for judges (and to a lesser extent, some prosecutors).
CPS reform: HB 6 by Frank (R-Wichita Falls), whose long-term goal is to devolve foster care and casework services to non-profits and local governmental entities in local communities, will likely hit the House floor in a couple of weeks. SB 11 by Schwertner (R-Georgetown) will be heard in the House Human Services Committee on Monday, and it will be up to the House to try to reconcile the differences in the bills before sending something back to the Senate.
Death penalty: Monday is “Statewide Texas Lobby Day to Abolish the Death Penalty” and we expect a vigorous discussion of HB 147 by Dutton (D-Houston) and HB 316 by Canales (D-Edinburg), the law of parties exemption bills, set that day in House Criminal Jurisprudence (unless no prosecutors show up, in which case it will be a rather one-sided affair). Other death penalty bills that have shown signs of life include HB 1676 by White (R-Hillister) to create a statewide capital appellate defender (now in the House Calendars Committee), HB 3054 by Herrero (D-Robstown) to change the jury instructions on unanimity (pending in the House Criminal Jurisprudence Committee), and HB 3080 by Rose (D-Dallas) exempting certain mentally ill offenders from the death penalty (also pending in House Criminal Jurisprudence).
Drugs: Regarding marijuana, HB 81 by Moody (D-El Paso), which would decriminalize < 1 oz. of marijuana, was voted from committee and is now pending in the House Calendars Committee. Otherwise, not much has moved on this front this session, including SB 1461 by Hinojosa (D-McAllen) or HB 2398 by King (R-Weatherford), the “drug recalibration” bills.
DWI: HB 2089 by White (R-Hollister), which would authorize deferred adjudication for certain first-time offenders, has been voted out of committee. Nothing else on the DWI front has budged this session.
Expunction/nondisclosure: Lots of bills dealing with criminal records are on the march at the Capitol, including: HB 269 by S. Thompson (D-Houston) to vacate and expunge certain prostitution convictions (on the House calendar for Monday), HB 322 by Canales (D-Edinburg) to ease expunction of veterans court records (passed House), HB 670 by Canales (D-Edinburg) to expunge certain successfully-completed deferred adjudications (on the House calendar for Monday, April 24), and HB 1404 by Allen (D-Houston) and HB 3016 by S. Thompson (D-Houston), which apply last session’s nondisclosure expansions retroactively and (in the latter bill) expand nondisclosures to convictions for certain DWIs and drug offenses. However, HB 677 by Wu (D-Houston) to seal records of certain juvenile determinate sentences was voted down in committee this week.
Innocence: HB 34 by Smithee (R-Amarillo), which reflects some of the recommendations of the Tim Cole Exoneration Review Commission on recorded confessions, jailhouse informants, and eyewitness identifications, is awaiting a final agreed bill draft so that it can get a committee vote. Over in the Senate, SB 1253 by West (D-Dallas)—a stand-alone recorded confessions bill—is eligible for Senate floor consideration next week, but the author may have to make one or two more concessions before that happens.
Juveniles: HB 122 by Dutton (D-Houston), the Raise the Age bill, has been sent to the Calendars Committee, where the author’s deferral of the $35 million annual cost of the bill to the next legislative session may or may not pass the smell test. HB 2879 by Dutton (D-Houston) to roll back various sex offender registration requirements for juveniles was heard this week and left pending in committee. SB 1304 by Perry (R-Lubbock), which would revise the use of and access to juvenile records, will likely pass the Senate next week and head to the House, where its companion has also faced no opposition.
Sanctuary cities/counties: Yesterday, the House State Affairs committee approved a slimmed-down version of SB 4 by Perry/Geren; we don’t have a copy of the new language yet, but the bill will next head to the Calendars Committee, where we expect it to “simmer” for a while before it is finally released onto the House floor for what is sure to be a nasty fight.
As the Legislature enters its final six weeks of work, one of the biggest “choke points” in the legislative process is the House Calendars Committee. That is the body that determines which bills make it to the House floor for debate and in what order they appear. The usual committee rules do not apply to this 15-member group that has life-and-death power over bills already approved by another standing committee. Calendars Committee members can fast-track controversial bills or slow down (or kill) bills that have overwhelming support, and all of it happens in secret. As a result, if you have a good relationship with any legislators on the Calendars Committee, you can have an outsized impact on the fate of legislation you like or dislike this session. For more information on how to make use of that opportunity, contact Shannon.
Bills on the move
These bills all exhibited signs of life this past week:
House bills headed to the Senate
HB 281 by Howard (rape kit tracking system)
HB 322 by Canales (expunction of veterans’ court records)
HB 1178 by Kuempel (enhancements for theft from pharmacies)
House bills approved by committee and sent to the Calendars Committee
HB 47 by Guillen (legalizing and regulating powdered alcohol)
HB 56 by Flynn (concealed carry by first responders)
HB 81 by Moody (decriminalizing possession of < 1 oz. of marijuana)
HB 133 by Alvarado (legalizing and regulating powdered alcohol)
HB 1266 by Geren (3 business days’ notice for hearings)
HB 1268 by Schaefer (challenges to grand jurors)
HB 1357 by Moody (cruelty to animal enhancements)
HB 1551 by Krause (repealing/reducing penalties for non-Penal Code offenses)
HB 2089 by White (deferred adjudication for DWI-1st offense)
HB 2273 by Lang (county attorney donation programs)
HB 2671 by Dean (adding controlled substances to penalty groups)
HB 2680 by Canales (statewide standardization of court forms in criminal cases)
HJR 45 by Schofield (notice to AG of constitutional challenge)
Senate bills headed to the House
SB 42 by Zaffirini (court security)
SB 970 by Watson (sexual assault policies for colleges and universities)
SB 1090 by Lucio (unlawful restraint of a dog)
SB 1576 by Perry (omnibus civil commitment bill)
Senate bills approved by committee
SB 707 by Birdwell (admissibility of CAC videos)
SB 1232 by Huffman (bestiality)
SB 1253 by West (recording custodial interrogations)
SB 1304 by Perry (confidentiality and use of juvenile records)
SB 1728 by Birdwell (open courts for juvenile cases)
SB 1823 by Burton (cell phone search warrants)
SB 1871 by Zaffirini (theft of oilfield equipment)
SB 2189 by Huffman (excluding non-prosecutors from serving as prosecutors pro tem)
Upcoming floor debates
The holiday weekend makes it difficult to predict what will be added to next week’s floor calendars, but as of now, the House floor agenda for the upcoming week includes: HB 9 by Capriglione (cybercrime), HB 29 by S. Thompson (omnibus human trafficking bill), HB 100 by Paddie (statewide regulation of ride-sharing companies), HB 269 by S. Thompson (vacating prostitutes’ convictions), and HB 3107 by Ashby (abusive open records requests).
In the Senate, bills eligible for debate starting Monday include: SB 1253 by West (recording certain felony custodial interrogations), SB 1304 by Perry (juvenile records), SB 1408 by Huffines (first responder concealed carry), and SB 1823 by Burton (cell phone search warrants).
Here’s a partial list of what is coming up this week (based on hearing notices received at press time). To see the full agenda and links to the individual bills, click on the committee name.
*** MONDAY, APRIL 17 ***
House Human Services, 9:00 a.m., Room E2.030
HB 1642 by Bell streamlining reporting requirements for abuse allegations in certain facilities
HB 2992 by Neave relating to the offense of misrepresenting an animal as an assistance animal
HB 3420 by Darby designating the San Angelo SSLC as a forensic facility
SB 11 by Schwertner, the CPS reform/privatization bill
House Criminal Jurisprudence, 2:00 p.m. or upon adjournment, Room E2.014
HB 64 by Dutton abolishing the death penalty
HB 147 by Dutton prohibiting the death penalty for certain party conspirators to a homicide
HB 316 by Canales prohibiting the death penalty for anyone convicted as a party to a homicide
HB 607 by Minjarez authorizing post-shock probation sentence reformation to deferred adjudication
HB 749 by Farrar creating a central database for certain offenses involving animal cruelty
HB 1436 by Wu relating to possessing an open container of alcohol in a motor vehicle
HB 1537 by Farrar abolishing the death penalty
HB 1820 by Springer creating a presumption for certain evidence of a prior conviction
HB 1884 by C. Anderson relating to the penalties for certain littering offenses
HB 1919 by Raymond adding first responders as a protected group under the hate crimes enhancement
HB 2085 by Alvarado relating to providing psychological counseling to certain grand jurors
HB 2640 by S. Thompson revising grand jury proceedings
HB 2960 by Parker increasing the penalty for certain trafficking and sexual offenses
HB 3011 by Murr reforming pretrial release of defendants
HB 3019 by Burkett relating to injury to a child/elderly/disabled person in boarding homes
HB 3167 by Paddie excluding certain counties from the court collection program
HB 3411 by Gervin-Hawkins revising standards for attorneys in certain capital cases
HB 3649 by Herrero creating a privilege for confidential communications of family violence victims
HB 3881 by Alvarado revising the process for issuance of a writ of attachment
HB 3948 by Geren reducing the punishment for tampering with certain physical evidence
House Licensing & Administrative Procedures, 2:00 p.m. or upon adjournment, Room E2.026
HB 894 by Raymond authorizing local option elections to legalize eight-liners
HJR 23 by Raymond amending the constitution to authorize local option elections to legalize eight-liners
House Business & Industry, 2:30 p.m. or upon adjournment, Room E2.016
HB 2483 by Parker increasing penalties for unauthorized recordings
HB 2828 by Oliveira regulating certain sweepstakes
*** TUESDAY, APRIL 18 ***
Senate Criminal Justice, 1:30 p.m. or upon adjournment, Room E1.016
SB 524 by Birdwell increasing the punishment for abuse of a corpse
SB 966 by Watson creating a Good Samaritan defense for alcohol violations by minors
SB 1192 by Buckingham creating an alert for a missing senior citizen or person with Alzheimer's disease
SB 1399 by Whitmire relating to the creation of a pretrial drug diversion program
SB 1477 by West creating a criminal offense for ransomware
*** WEDNESDAY, APRIL 19 ***
House Juvenile Justice & Family Issues, 10:30 a.m. or upon adjournment, Room E2.016
HB 697 by Wu relating to the inadmissibility of certain evidence of abuse or neglect of a child
HB 3519 by White relating to the payment of certain fees or court costs in juvenile court
HB 3538 by Minjarez relating to post-discharge services offered by a juvenile probation department
*** THURSDAY, APRIL 20 ***
[No hearings posted yet]
In addition to those TDCAA members we mentioned earlier … Haskell DA Mike Fouts and Aransas DA Kristen Barnebey represented prosecutors at the Capitol this week on a variety of issues … Ellis C&DA Patrick Wilson testified for HB 1122 by Wray (CAC videos) … El Paso ACA Holly Lytle testified for HB 3053 by Ortega (confidentiality of certain dates of birth) … El Paso ACA Cygne Nemir testified in favor of HB 3165 by Moody (pretrial supervision records) … Tarrant ACDA Riley Shaw testified in support of HB 2863 by White (confidentiality of juvenile records) … Tarrant ACDA Vincent Giardino appeared in support of HB 557 by Collier (expunctions after acquittals) … and Montgomery ADA Tiana Sanford testified in opposition to the filed version of HB 3491 by Meyer (limits on the use of biometric identifiers) … did we miss anyone else? If so, let us know. And remember, if you’re coming to Austin, TDCAA headquarters is your one-stop shop for free parking, free refreshments, free wi-fi, and free reconnaissance for that day at the Capitol. Don’t be shy, we’re here to help!
Training subsidies for prosecutors
For the first time, the Criminal Justice Section of the State Bar is offering scholarships to our Criminal and Civil Law Update in September (along with other CLE conferences). To learn about that program, read more on our website.
Request for feedback
We have received a request from a statewide elected official’s office for information regarding the use by local prosecutors of Penal Code Sec. 21.16, the revenge porn law passed last session. If you have filed, rejected, or prosecuted one of these cases, please drop Shannon a line so he can follow up with you for a brief question or two.
Quotes of the week
“It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment. That was unheard-of 10 years ago.”
—David Sklansky, Stanford Law School professor, on the growing number of elected prosecutors nationwide who are declining to seek the death penalty.
“I was like, ‘you’ve got to be kidding me.’ It’s not the normal tip you would get, or lead you would get on a place committing criminal activity, but it happened, so that helped us out.”
—Sgt. Kevin Covington of the Austin PD Vice Unit, after a report of hundreds of used condoms being removed from a clogged sewage pipe led authorities to a prostitution ring.
“It’s up to the visitor to declare the agenda. He just sits there. It’s like you are in a bar, and you just start talking to him.”
—An unnamed foreign diplomat, describing President Donald Trump’s unorthodox style in his unscripted meetings with world leaders.
“We have a feeling it’s time for another Spaniard (Garcia or Rahm) to don the green jacket. Let’s see what happens!”
—From our update last Friday, which proved clairvoyant. We don’t gamble, but it’s OK with us if someone used our tip on that 30/1 longshot to help buy a new Easter outfit for this weekend!