We’re not sure if it’s the change of seasons, global warming, or the hot air being spewed from under the Capitol dome, but things are definitely starting to heat up in Austin!
We are 15/20ths of the way through the session, which reduces to 3/4ths. Hot topics next week include sanctuary cities (it’s baaaaaack!), removing local prosecutors from officer-involved shooting cases, medical marijuana, and more. Read on for all the details!
Tick … tock … tick … tock
The session ends five weeks from this upcoming Monday, which means the deadlines imposed on the legislative process have begun to loom over the process. Here’s a summary of the major deadlines:
Monday, May 8 Last day for House bills to be reported from committee
Thursday, May 11 Last day for House bills to be passed on second reading (other than local or consent bills)
Tuesday, May 23 Last day for Senate bills to be passed in the House on second reading
Wednesday, May 24 Last day for House bills to be passed in the Senate
Sunday, May 28 Last day for House and Senate to approve conference committee reports
Monday, May 29 Legislature adjourns sine die
In layman’s terms, if a House bill you are watching isn’t approved by a committee sometime during the next two weeks, it’s dead (barring resurrection as an amendment to another related bill). Proceed accordingly.
Grand jury discussion
On Monday, the House Criminal Jurisprudence Committee took testimony on HB 2640 by Senfronia Thompson (D-Houston). The author of the bill and the advocacy groups who testified for the bill didn’t come forward with any particular allegations of grand jury abuses but instead argued for reform on general public policy grounds. In short, they said that the purpose of the grand jury is to protect citizens from an overzealous government, but that over the years it has tilted in favor of the State with little or no protection for the accused, so now is the time to restore that balance. Their solution to this vaguely defined problem? A slightly tweaked substitute version of the filed bill that still provides attorneys for targets and witnesses (at county expense if necessary), recording and transcription of everything short of deliberations, full Michael Morton Act-style discovery before indictment, mandatory presentation of exculpatory evidence, prohibition on re-presentments, and increased opportunities to defendants to litigate over the actions of the previously secret grand jury.
Prosecutors were well-represented at the hearing by Galveston CDA Jack Roady, Coryell DA Dusty Boyd, Washington DA Julie Renken, and Llano DA Sonny McAfee. One committee member essentially took several of the prosecutors on cross, arguing that the grand jury is an adversarial process that demands an attorney to protect an accused’s rights. (And as you could probably already guess, the prosecutors had to field questions about indicting the proverbial ham sandwich, too!) In response, they helped the committee members—most of whom are not attorneys—understand that the purpose of the grand jury is to evaluate probable cause, not create an adversarial procedure that could grind the system to a halt. Protecting grand jury secrecy was the watchword for prosecutors opposed to the bill, and the practical difficulties of conducting a grand jury investigation when a drug kingpin or family violence abuser had hired the lawyers for the witnesses seemed to strike a chord with several of the committee members.
Although it didn’t come up in the hearing, we decided to do a little research of our own into how this bill stacks up against grand jury procedures in other states. There is great variety among the states on this topic—for example, only 19 states (including Texas) still require the prosecution to obtain an indictment from a grand jury in order to initiate felony charges—but we did learn some interesting things. For instance, of those 19 mandatory grand jury states, the only ones that require counsel for both targets and witnesses in the grand jury are Massachusetts and New York—two states not normally mentioned in the same sentence as Texas when it comes to criminal justice policy. But hey, it’s a brave new “right on crime” world, and despite repeated “Don’t California my Texas” pleas from some of the Legislature’s most partisan members, others seem fine with the idea of “Massachusettsing” our grand jury system, if this bill is any indication.
House Bill 2640 was left pending for possible consideration by the committee in the future, but if you want to learn more about this issue and coordinate with other prosecutors who are working on it, contact Rob.
On Monday, the House Human Services Committee heard testimony on SB 11 by Schwertner (R-Georgetown), the Senate’s version of CPS reform. The House sponsor of the bill, Representative Frank (R-Wichita Falls), offered a substitute for SB 11 that mirrored some of HB 6, which is Frank’s version of reform that has already been voted out of the committee. However, this latest committee substitute is chock full of never-before-seen provisions—a phenomenon that is becoming frustratingly common among bills on this topic. These new provisions include foster parents’ right to medical information, mandatory medical exams for foster children, monetary assistance for daycare services, creation of community engagement groups in all catchment areas (prosecutors aren’t on it), strong confidentiality and attorney-client privilege provisions, and language detailing the access to data by the new non-profit contractor who will take over case management services.
For the first time, the discussions in committee took an unexpected turn to funding. While the fiscal note for the bill (read: how much it will cost the state) is about $13.8 million for the biennium, the current single-source contractor doing the foster care work in Region 3b outside of Fort Worth said that it would need $35 million to take on the casework piece, including $18 million alone for transferring files and records. That left the committee members wondering out loud how the Legislative Budget Board came up with its much lower fiscal note. In addition, one witness questioned what would happen if the money offered to the non-profit contractor was not sufficient to induce a contract. Right now, CPS has to do the work no matter how much they get from the state, but a non-profit is free to negotiate the contract, which means it could cost the state a lot more than anticipated in the future. Finally, the committee heard from a new group—the Texas State Employees Union. They testified neither for nor against, but “on” the bill and attributed at least part of the initial success of the Region 3b single-source continuum contractor’s foster care work to the good casework support provided by current CPS workers. The union representative also noted that recent increases in CPS pay have resulted in increased retention rates among CPS caseworkers, and he also pointed out contract management and supervision issues that may be created by this bill. After hearing all of this testimony and more, the committee left SB 11 pending in committee, with the sponsor intending to seek a vote of the committee early next week.
Budget talks go underground
Surprising absolutely no one, the Senate refused to agree to the House’s changes to Senate Bill 1 and named five senators who will try to negotiate a final agreed budget deal via a conference committee. The Senate line-up is: Nelson (chair, R-Flower Mound), Hinojosa (D-McAllen), Huffman (R-Houston), Kolkhorst (R-Brenham) and Schwertner (R-Georgetown). The House then returned the favor, appointing Zerwas (chair, R-Richmond), Ashby (R-Lufkin), S. Davis (R-West University Place), Gonzales (R-Round Rock), and Longoria (D-Mission) to the budget face-off. Now those 10 conference committee members will try to hash out a version of the budget bill for both chambers to give one final thumbs-up. Those negotiations will happen behind closed doors, but we will alert you with any actionable information we get if that becomes necessary.
Raise the age
As it did last session, the House approved a bill to move most 17-year old offenders into the juvenile system in a prospective manner that attempts to avoid paying for any of it this biennium (or maybe ever). House Bill 122 by Dutton (D-Houston) was the first true criminal justice-related issue to draw heated floor debate this session, most of which centered on the fiscal impact of the move and who (if anyone) was going to pay for it. After being amended to delay implementation until December 1, 2020, if passed, the House eventually approved the bill on second reading by a vote of 83-53 (all 53 opponents being Republicans). It now heads to the Senate, where Criminal Justice Committee chairman John Whitmire (D-Houston) squelched a similar bill last session. Only time will tell if the bill will have a different fate this session.
One side-note: Much was made in this debate about the immaturity of 17-year olds and all the areas of the law that are currently foreclosed to them by their youth (voting, smoking, etc.). However, nothing has been said to date about those characteristics in regard to another statutory age cut-off in the Penal Code: the age of sexual consent. One would think that if a 17-year old is to be treated as a child for purposes of criminal responsibility, then a 17-year old should also be treated as a child for purposes of sexual consent—yet that topic is never discussed by policymakers for or against this issue. Perhaps it will be left to future legislators to tackle that topic?
Bills sent to the Governor
With five weeks to go, it’s finally time to add this new heading to our update. As you might expect, it’s going to start small and grow longer each week, so for now there is only one entry under our category of “tracked bills that have passed both chambers and are headed to the governor’s desk”: SB 492 by West/Koop authorizing county tax assessor-collectors to use private collection vendors in lieu of local prosecutors hot check services.
We will include information in future updates about how to request a veto.
Bills on the move
These bills all exhibited signs of life this past week (this is only a minuscule sampling, but it’s the best we can do right now considering the high volume):
House bills headed to the Senate
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)
HB 3107 by Ashby (abusive open records requests)
House bills sent to the Calendars Committee
HB 34 by Smithee (recorded confessions, jailhouse informants, eyewitness identification)
HB 72 by Keough (victim-offender mediation)
HB 667 by Canales (ban on waivers of expunctions and nondisclosures)
HB 790 by Lozano (legalizing daggers)
HB 1322 by Burns (authorizing non-lawyer JPs to issue DWI blood search warrants)
HB 1404 by Allen (retroactive eligibility for nondisclosures)
HB 1457 by Raymond (legalizing daily fantasy sports gambling)
HB 1911 by White (constitutional carry variation)
HB 1935 by Frullo (legalizing all currently illegal knives)
HB 2089 by White (deferred adjudication for DWI-1st offense)
HB 2286 by Landgraf (larger grand jury impaneling)
HB 2529 by Meyer (coercion in trafficking cases)
HB 3016 by Thompson (retroactive eligibility and expansion of nondisclosures to DWIs and felony drug offenses)
HB 3237 by Moody (confidentiality of search warrant affidavits)
HB 3872 by Lucio (subsequent post-conviction DNA writs)
HB 3978 by Moody (redefining “consent” for sexual assault purposes)
Senate bills headed to the House
SB 239 by Campbell (parental viewing of deceased child)
SB 707 by Birdwell (admissibility of CAC videos)
SB 1232 by Huffman (bestiality)
SB 1264 by Huffman (counseling for grand jurors)
SB 1304 by Perry (juvenile records)
SB 1408 by Huffines (first-responder concealed carry)
SB 1728 by Birdwell (open courts for juvenile cases)
SB 1823 by Burton (cell phone search warrants)
Senate bills now eligible for debate on the Senate floor
SB 524 by Birdwell (enhancement for abuse of a corpse)
SB 966 by Watson (Good Samaritan defense for alcohol offenses involving sexual assault)
SB 1326 by Zaffirini (competency revisions)
SB 1338 by Whitmire (bail bond reform)
SB 1477 by West (creating an offense for ransomware)
SB 1584 by Garcia (restricting conditions of community supervision)
SB 1913 by Zaffirini (limiting the consequences for non-payment of court fines/fees/costs)
Upcoming floor debates
The main action at the Legislature is starting to move from committee rooms to the chamber floors, so the list of bills to be debated by each chamber is getting longer and longer and is changing frequently.
As of right now, the House floor agenda for the upcoming week includes (in order of scheduled consideration): HB 670 by Canales (expunction of deferred adjudication records), HB 682 by Wu (extending statute of limitations for aggravated assault), HB 53 by Romero (public settlement of claims against counties), SB 4 by Perry/Geren (sanctuary cities), HB 1266 by Geren (notice for hearings in criminal cases), HB 1156 by S. Davis (unlawful restraint of dogs), HB 104 by White (DA notice of indictment to TDCJ Victim Services), and HB 2328 by Lucio III (expedited PIA response).
In the Senate, bills eligible for debate starting Monday include (in numerical order): SB 524 by Birdwell (abuse of corpse enhancement), SB 1253 by West (recording certain felony custodial interrogations), and SB 1326 by Zaffirini (competency revisions).
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 24 ***
House Human Services, 8:00 a.m., Room E2.030
HB 723 by Wu establishing county boards to oversee the provision of child protection services
HB 3561 by Klick relating to assistance for foster children and homeless/unaccompanied youth
House Business & Industry, 10:00 a.m., Room E2.016
HB 718 by Wu authorizing family care leave for certain employees
HB 2727 by Lucio relating to access to a residence to retrieve personal property
HB 3150 by Burns allowing a suspected shoplifter to complete an education program offered by a merchant
HB 3902 by S. Thompson authorizing county and district attorneys to file certain DTPA actions
House Criminal Jurisprudence, 2:00 p.m. or upon adjournment, Room E2.014
HB 722 by Longoria authorizing a “wobbler” sentence for certain defendants who successfully complete state jail felony probation
HB 1110 by E. Thompson changing the punishment for assault against certain sports participants
HB 1111 by S. Thompson clarifying the extent of certain child safety zones
HB 1327 by Metcalf enhancing the penalty for certain intoxication assault and intoxication manslaughter cases
HB 1824 by Shaheen encouraging the prompt execution of a certain parole violation warrants
HB 1997 by Minjarez authorizing a supervision fee for certain pretrial services offices
HB 2200 by Hinojosa authorizing the medical use of marihuana and prohibiting the investigation or prosecution of doctors who recommend it
HB 2315 by Landgraf establishing a protective order registry
HB 2440 by Geren reducing the punishment for habitual Class C thefts
HB 2450 by Koop revising procedures for the search of a cellular telephone
HB 2458 by Price authorizing non-lawyer JPs to issue DWI blood search warrants
HB 2586 by S. Thompson relating to the electronic filing of bail bonds
HB 2622 by S. Thompson relating to subpoenas to an online service provider in the investigation or prosecution of certain criminal offenses
HB 2736 by Frullo relating to a succession plan for a regional public defender's office that primarily handles capital cases
HB 2769 by Walle eliminating certain transactions fees relating to the court collections
HB 2773 by Walle repealing the time payment fee imposed after certain convictions
HB 2974 by Dale creating an offense for sexual coercion and increasing penalties for revenge porn
HB 3249 by Leach creating the offense of improper contact with an adult victim
HB 3301 by Gervin-Hawkins creating the offense of continuous injury to a child, elderly individual, or disabled individual
HB 3473 by Gervin-Hawkins adding criminal trespass to the cite-and-release law
HB 3513 by Faircloth expanding the collection and storage of DNA records from a person arrested for a felony
HB 3515 by Gervin-Hawkins authorizing officers to divert certain Class B misdemeanors (absent the involvement of the prosecutor)
HB 3539 by Landgraf increasing the penalty for assault of a pregnant woman
HB 3786 by Oliverson making burglary of an occupied habitation ineligible for probation from a judge
HB 3819 by Howard creating the offense of improper contact with an adult victim
HB 4015 by Neave creating a Good Samaritan defense to consumption or possession of alcoholic beverages by a minor
House Licensing & Administrative Procedures, 2:00 p.m. or upon adjournment, Room E2.026
HB 1999 by Israel replacing alcoholic beverage crimes for minors with civil infractions to be enforced by local prosecutors
HB 3453 by Landgraf relating to the regulation of game rooms in certain counties
HB 3611 by Lucio suspending the entitlement of a county to a local share of a bingo prize fee in counties where certain illegal gambling occurs to the detriment of charitable bingo
Government Transparency & Operation, 2:00 p.m. or upon adjournment, Room E2.028
HB 233 by E. Rodriguez relating to certain information related to the humane disposition of an animal by a municipality or county
HB 349 by Canales relating to certain information related to parades, concerts, or other events open to the general public that are paid for with public funds
HB 526 by Schofield relating to certain persons’ entitlement to public information
HB 792 by Capriglione relating to information related to competition or bidding
HB 793 by Capriglione relating to the definition of a governmental body for PIA purposes
HB 839 by Ortega relating to information contained in a bid or proposal after a contract is executed or awarded
HB 1530 by Workman relating to the publication of required notice by a political subdivision in media other than a newspaper
HB 2670 by Hunter relating to public information in the possession, custody, or control of a current or former officer or employee of a governmental body
HB 2710 by Hunter relating to the availability of dates of birth under the public information law
HB 3222 by Goldman relating to the availability under the public information law of certain documents filed with a county clerk or a district clerk
HB 3234 by Moody relating to access to certain law enforcement, corrections, and prosecutorial records under the public information law
HB 3581 by Capriglione relating to the availability of certain electronic information under the public information law
HB 3848 by Hunter relating to temporary and former custodians of public information and other changes; creating an offense
HB 4144 by Paddie relating to the applicability of the public information law to entities that assert its inapplicability to them
*** TUESDAY, APRIL 25 ***
House Homeland Security & Public Safety, 8:00 a.m., Room E2.014
HB 854 by Reynolds authorizing the OAG to appoint special prosecutors in officer-involved shootings
HB 968 by Metcalf relating to possessing a weapon in certain schools
HB 981 by Wray relating to the carrying of handguns by security guards at churches
HB 1229 by Blanco prohibiting the transfer of a firearm to a person on the terrorist screening database
HB 1430 by S. Thompson relating to the indigent status of a person for the purposes of the driver responsibility program
HB 2003 by Swanson authorizing certain court clerks to carry handguns in courthouses
HB 2034 by Blanco requiring a national instant criminal background check in connection with certain firearm sales; creating an offense
HB 2044 by S. Thompson relating to racial profiling, use of force, and disciplinary procedures
HB 4003 by Tinderholt creating an ignition interlock database
HB 4121 by White relating to the use of rapid DNA technology to identify, document, and record all persons arrested for a felony or Class A misdemeanor
Senate Criminal Justice, 1:30 p.m. or upon adjournment, Room E1.016
SB 50 by Zaffirini relating to the offense of hazing
SB 527 by Birdwell relating to a defendant's payment of costs associated with a court-appointed counsel
SB 536 by Hinojosa increasing punishments for burglary and theft of controlled substances
SB 1214 by Perry relating to a succession plan for a regional public defender's office that primarily handles capital cases
SB 1369 by Menéndez relating to offenses in boarding homes regarding disabled individuals
SB 1577 by Perry relating to measures to prevent wrongful convictions
SB 1824 by Burton relating to punishment for the offense of forgery
SB 2238 by Garcia creating an offense for sexual coercion and increasing penalties for revenge porn
House Judiciary & Civil Jurisprudence, 2:00 p.m. or upon adjournment, Room E2.026
HB 236 by Anchia relating to compensation for certain wrongfully imprisoned persons
HB 1246 by Anchia relating to eligibility for compensation of persons wrongfully imprisoned
HB 1374 by S. Thompson authorizing a court to return certain fees to a person who is the subject of an order of nondisclosure
HB 2612 by Meyer relating to civil liability of a person who produces, distributes, sells, provides, or aids in the production, distribution, sale, or provision of certain synthetic substances to another
HB 3391 by Geren authorizing the creation of a specialty court for certain public safety employees
*** WEDNESDAY, APRIL 26 ***
House Juvenile Justice & Family Issues, 10:30 a.m. or upon adjournment, Room E2.016
(click link for update)
*** THURSDAY, APRIL 27 ***
[No hearings posted yet]
Washington (Co.) DA Julie Renken and Coryell DA Dusty Boyd tackled the grand jury reform bill and other hot potatoes this week … Haskell DA Mike Fouts testified for HB 1820 by Springer (presumption of accuracy on prior conviction records) … Harris DA Kim Ogg testified in support of HB 3881 (attachment of witnesses) … Comal CDA Jennifer Tharp testified for HB 2960 (trafficking and sex crimes) … El Paso DA Jaime Esparza spoke in favor of HB 3649 (family violence advocate privilege) … Montgomery ADA Tiana Sanford testified for HB 2085 (counseling for grand jurors) … Travis ADA Justin Wood testified in opposition to HB 147 and HB 316 (ban on death penalty for party liability) … 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!
Quotes of the week
“Would everyone in this room who feels that the majority of the Texas Legislature is the intellectual equivalent of our founding fathers, please raise your hand right now?”
—Michael Openshaw of the North Texas Tea Party, testifying against the provision of HB 506 by P. King (R-Weatherford) that would require Texas delegates to an Article V Convention of the States to be legislators.
“We know, as admitted, we have 69 days of state employees traveling to exotic locations, all paid for by the taxpayer. Actions like this are why people no longer have faith in the government and our institutions. … I personally believe that there is a culture at the TABC of pay-to-play and that everyone in that agency is untouchable.”
—State Rep. Sarah Davis (R-University Place), chairwoman of the House General Investigating and Ethics Committee, during a legislative scourging of the upper management of TABC for some training boondoggles they have taken. The then-director of the agency stepped down the following day.
“It’s just a bad idea to prosecute people of limited means.”
—Ted Wood, Assistant Harris County Public Defender, testifying in support of HB 3729 by White (R-Hillister), which would change the alternatives to fines and court costs for certain fine-only offenders.
“To put more on the local juvenile probation departments when we have put them behind, and then adding on a group of youth and what their unique challenges are in mental health, behavioral health, where we would expect success, we would probably be setting up for some challenging situations.”
—State Rep. James White (R-Hillister), expressing reservations earlier this week about HB 122, which would move 17-year-olds to the juvenile system. White eventually voted for the bill on the House floor, where it passed, but it faces opposition in the Senate from some important legislators.
“I promised Jeff that I and Chairman Dutton and Rep. Canales would do everything that we can this session to ensure that another case like Jeff Wood’s case would never happen again in the state of Texas.”
—State Rep. Jeff Leach (R-Plano), speaking at a press conference in favor of bills that would ban the death penalty for murderers convicted under the law of parties.
“He played [football] at Odessa Permian. It’s like being Jesus in Nazareth.”
—Brandon Rottinghaus, political science professor at U of H, on the rising political profile of U.S. Congressman Mike Conaway (R-Midland). [Ed. Note—Mr. Rottinghaus must’ve slept through his Bible study class when they discussed how Jesus was treated in Nazareth (see, e.g., Mark, Chapter 6).]
“You’ve heard of speed traps? We have weed traps.”
—Tweet by the Iowa State University Police Department on April 20, also known as National Weed Day.