Happy Cinco de Mayo!
As of Monday, we will be 17/20ths of the way through the session, which does not reduce. It also marks the stage of the session when all schedules are tentative, all notices are inadequate, and all guarantees are fleeting.
The threshing floor
Next week, House deadlines will cut a swath of destruction through many people’s hopes and dreams. Here are the official deadlines:
Monday, May 8: Last day for a House bill to be reported from committee
Tuesday, May 9, 10 pm: Final general calendar for House bills must be printed
Thursday, May 11: House bills must receive approval on second reading
That said, the reality is even worse for those trying to pass legislation. For instance, the House was on the floor for 13 hours yesterday, but by the time the Speaker called it quits around 11:00 pm, they still had not reached more than 80 bills on the “to do” list for that day. As a result, those bills roll over to today, which pushes all the bills scheduled for today farther back in line, which pushes the bills that were originally set for Saturday farther back in line, and so on. This is why we said last week that if a bill you like (or dislike) is not given a reserved spot on a House calendar by this weekend, it’s probably dead regardless of next week’s deadlines because there are simply too many bills and too few hours left.
Nevertheless, the deadlines listed above will still provide official times of death for most filed bills. Hundreds of House bills that were never voted out of committee will be dead before you wake up on Tuesday, several hundred more will die when they are not placed on a general calendar by 10 pm that evening, and—on what is traditionally the cruelest evening of the session—even more bills that actually make it on to a House calendar will still die on Thursday when they are not reached before midnight (so close, yet so far!). So, if you awake from your slumber in the wee hours of that night and hear what sounds like millions of voices crying out in terror and being suddenly silenced, it’s not dying Alderaans, but merely the cries of lobbyists, legislators, and their staffers. (Consider that our belated nod to yesterday’s fake holiday.) But just because a bill dies does not mean the game is over; legislators can try to amend (or may have already amended) their preferred language onto someone else’s bill that is going to pass the House or Senate. So remember, even when a specific bill is dead, its language may live on as an amendment to another bill. The fun never ends, does it? For a good read about why the waning days of a session are so stressful, check out this article.
Sandra Bland Act
It is a truism in the Texas Legislature that all the logic and persuasion in the world cannot move a bill any faster than one heart-tugging horror story, and the Sandra Bland Act may be yet another example of that—but not just because of the woman for whom the bill is named.
The killing of Mesquite High School freshman Jordan Edwards by a Balch Springs police officer earlier this week has spurred reformers’ efforts to pass the Sandra Bland Act. The filed version of this bill was so over-the-top that the House author actually apologized for its anti-law enforcement tone when he initially laid out the bill in committee; however, behind-the-scenes negotiations to limit the scope of HB 2702 by Coleman (D-Houston) have moved slowly, and the bill is still pending in House Homeland Security and Public Safety. But not so in the Senate, where a substitute version of its companion, SB 1849 by Whitmire (D-Houston), was voted out of committee this week with a promise from that author to continue working with law enforcement agencies on something more acceptable to them. Among the remaining provisions of that slimmed-down version that were still raising some eyebrows are a section encouraging the pre-arrest diversion of anyone suffering from mental illness or substance abuse (DWIs, anyone?) and restrictions on the use of consent searches. Neither of those provisions apply to the tragic incidents involving the bill’s namesake or the young man killed earlier this week, but many criminal justice reform advocates are also aware of another popular adage in policymaking: “Never let a serious crisis go to waste … it’s an opportunity to do things you think you could not do before.”
Big ticket items
Time for a status check on some of the other major issues that we have been following for you this session (listed here alphabetically):
Asset forfeiture: Two House bills—HB 344 by Canales (D-Edinburg) and HB 805 by Dale (R-Cedar Park)—voted out of the Criminal Jurisprudence Committee are in the House Calendars Committee but have not come out yet. In the Senate, no hearings have been held.
Bail bond reform: SB 1338 by Whitmire (D-Houston) passed the Senate yesterday on a 22–9 vote and will now head to the House, where its companion, HB 3011 by Murr (R-Junction), has been pending in the House Criminal Jurisprudence Committee. (If your local bail bondsmen appear more stressed out than usual next week, now you know why.)
Budget: In conference committee. We await white smoke from the chimney on the top of the Capitol telling us that a final product has been drafted.
Constitutional carry: HB 1911 by White (R-Hillister) is still pending in the Calendars Committee.
CPS reform: Monday, the full House will consider HB 6 by Frank (R-Wichita Falls) (community-based foster care) and HB 7 by Wu (D-Houston) (legal procedures in CPS cases), while SB 11 by Schwertner (R-Georgetown) awaits a House committee hearing. At last check, there are more than 45 other bills related to CPS reform had been approved by various committees in one chamber or the other, so as of now, the only thing we can guarantee is that there will be a lot of changes to CPS practice after this session—we just can’t tell you what they will be yet.
Death penalty: There has been some late movement on death penalty reform bills. HB 1676 by White (R-Hillister) to create a statewide capital appellate defender hasn’t budged in House Calendars, but HB 3054 by Herrero (D-Robstown) to change the jury instructions on unanimity was just voted out of the House Criminal Jurisprudence Committee, and HB 3080 by Rose (D-Dallas) exempting certain mentally ill offenders from the death penalty was voted out earlier in the week. Now we’ll see if death penalty opponents handle legislative deadlines any better than they handle court deadlines.
Drugs: HB 81 by Moody (D-El Paso), which would decriminalize < 1 oz. of marijuana, is still pending in the House Calendars Committee. HB 2107 by Lucio III (D-Brownsville) to regulate the use of medical marijuana was heard this week in the House Public Health Committee but has not been voted out yet.
DWI: HB 2089 by White (R-Hollister), which would authorize deferred adjudication for certain first-time offenders, appears to be stuck in House Calendars. Its companion, SB 761 by Menendez (D-San Antonio), may get a hearing before the Senate Criminal Justice Committee on Tuesday, but the outlook there is hazy at best. This session, the big impediment is the ignition interlocks—some insist on them at every turn (MADD and the vendors who fund them) while others oppose mandating them (probation chiefs and advocates for poor offenders), and never the twain shall meet, it seems.
Grand jury reform: HB 2640 by S. Thompson (D-Houston) is still pending without a vote in House Criminal Jurisprudence.
Innocence: HB 34 by Smithee (R-Amarillo) on recorded confessions, jailhouse informants, and eyewitness identifications is now in the Senate Criminal Justice Committee, where it is being tweaked even further. Meanwhile, SB 1253 by West (D-Dallas)—a stand-alone recorded confessions bill—passed the Senate and is in the House Criminal Jurisprudence Committee.
Juveniles: HB 122 by Dutton (D-Houston), the Raise the Age bill, is now in the Senate Criminal Justice Committee, where both the chairman and vice-chairwoman are on record as opposing it.
Sanctuary cities: By now, you’ve probably heard all about this in the mainstream media. As we predicted a few weeks ago, it was indeed “a nasty fight,” but as we’ve said all along, the passage of this was one of the few sure-fire bets of this session. Upon getting SB 4 by Perry/Geren back from the House, the Senate quickly concurred in the few House changes, and the bill is now on its way to Governor Abbott, who is eager to sign it.
Felony arrestee DNA samples
HB 3513 by Faircloth (R-Galveston) is currently pending in the House Calendars Committee. The bill was proposed by Chambers County DA Cheryl Lieck, and it would mandate that law enforcement agencies swab all felony arrestees for DNA at the time of arrest so it can be placed into CODIS. If anyone has a prosecuted a case that was solved with an out-of-state CODIS hit, Chamber County ADA Eric Carcerano would like to hear from you. You can email him at [email protected].
Bills on the move
These bills exhibited signs of life this past week:
Bills passed by both chambers and sent to the governor
SB 4 by Perry/Geren (sanctuary city ban)
SB 259 by Huffines/Neave (web-based jury questionnaires)
SB 843 by Perry/Herrero (confidentiality of CVC information)
SB 1576 by Perry/King (civil commitment of sexually violent offenders)
House bills headed to the Senate
HB 12 by Price (mentally ill defendants)
HB 34 by Smithee (preventing wrongful convictions)
HB 214 by Canales (online viewing of SCOTX and CCA proceedings)
HB 435 by K. King (first responders carrying handguns)
HB 681 by Wu (nondisclosure of Class C offenses)
HB 1404 by Allen (retroactive nondisclosures)
HB 1808 by Meyer (enhancement of trafficking offenses + various sex crimes amendments)
HB 2286 by Landgraf (grand juror selection and qualifications)
HB 2529 by Meyer (trafficking coercion)
HB 2671 by Dean (placing various controlled substances in penalty groups)
HB 3016 by S. Thompson (retroactive nondisclosures expanded to include DWI and drug offenses)
HB 3237 by Moody (confidentiality of search warrant affidavits)
HB 3872 by Lucio III (subsequent post-conviction DNA testing)
Bills in (or on the way to) the House Calendars Committee [For a complete list of bills pending in the Calendars Committee, contact Shannon.]
HB 344 by Canales (clear and convincing evidence for asset forfeiture)
HB 574 by S. Thompson (limits on Class C arrests)
HB 805 by Dale (exclusionary rule for asset forfeiture)
HB 1274 by Moody (parole eligibility for certain juvenile 3g offenders in TDCJ)
HB 1327 by Metcalf (intoxication assault/manslaughter enhancements)
HB 1820 by Springer (pen packet substitute proof)
HB 2085 by Alvarado (grand juror counseling)
HB 2655 by Nevarez (illegal transfer of firearm)
HB 3080 by Rose (ban on death penalty for certain offenders with several mental illness)
HB 3301 by Gervin-Hawkins (continuous injury to a child)
HB 3539 by Landgraf (assault of pregnant woman)
HB 3729 by White (Class C alternative consequences)
Senate bills headed to the House
SB 179 by Menendez (cyber bullying and harassment)
SB 515 by V. Taylor (elected officials’ access to non-public information)
SB 762 by Menendez (cruelty to animals enhancement)
SB 900 by Huffman (family violence enhancements)
SB 1338 by Whitmire (pretrial release reform)
SB 1588 by Huffines (eliminating annual vehicle safety inspections)
SB 1893 by Birdwell (creating two additional administrative judicial regions)
SB 2238 by Garcia (“sexploitation” and revenge porn)
SB 1913 by Zaffirini (limiting the consequences for non-payment of court fines/fees/costs)
SB 2054 by West (exception allowing guns in airports)
SJR 6 by Zaffirini (notice to OAG by court considering constitutionality of criminal statute)
Bills eligible for debate on the Senate floor
SB 50 by Zaffirini (hazing)
SB 630 by Buckingham (submitting PC affidavits to magistrates)
SB 631 by Buckingham (changing venue for disposition of stolen property)
SB 635 by Huffines (plaintiffs’ costs in certain actions against local governments)
Upcoming floor debates
The House floor agenda for later today, Saturday, and next week includes (in order of scheduled consideration):
HB 1999 by Israel (decriminalizing minor in possession/consumption of alcohol)
HB 2068 by Phillips (repeal and replace DPS driver responsibility program)
HB 362 by Moody (limits on re-arrest and adjustment of bond in certain cases)
HB 3649 by Herrero (family violence advocate privilege)
HB 1935 by Frullo (legalizing the carrying of illegal knives)
HB 25 by Simmons (eliminating straight-ticket party voting)
HB 72 by Keough (victim-offender mediation in certain criminal cases)
HB 3150 by Burns (merchant diversion of shoplifters)
SB 7 by Bettencourt (improper teacher-student relationships)
HB 1258 by Clardy (electronic court record database)
HB 2533 by Geren (limiting county ability to enforce certain environmental laws)
HB 2883 by Allen (limiting conditions of probation from a court)
HB 3391 by Geren (creating a specialty court for public safety employees)
In the Senate, all bills reported from committee are eligible for debate; click for the list of what may be considered from day to day. Otherwise, see the “bills on the move” list above.
House committees are done hearing House bills. Senate committees are almost done hearing Senate bills as well. The real action this week will be on the floors of those chambers. The little committee action that is still occurring is summarized below, based on hearing notices received at press time (to see the full agenda and links to the individual bills, click on the committee name). However, most committees will hold hearings with little or no notice from here on out.
*** MONDAY, MAY 8 ***
Senate State Affairs, 9:00 a.m., Senate Chamber
SB 824 by Burton removing a cap on salary supplements for certain district judges
SB 1989 by Campbell eliminating straight-ticket voting for judicial benches
HB 873 by Pickett prohibiting business owners from excluding peace officers carrying weapons
HB 1761 by Smithee revising the jurisdiction of the state supreme court
*** TUESDAY, MAY 9 ***
House Public Health, 8:00 a.m., Room E2.012
SB 316 by Hinojosa improving the operation of the prescription monitoring program
SB 584 by West creating guidelines for prescribing opioid antagonists
*** WEDNESDAY, MAY 10 ***
*** THURSDAY, MAY 11 ***
[No relevant hearings posted yet]
Hale DA Wally Hatch and Lubbock CDA Matt Powell kept watch for you over the circus in Austin this week … Fort Bend ADA Michael Hartman testified for SB 1322 by Kolkhorst (child pornography enhancements) … other than that, it was pretty light on the committee front … 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!
Registration is now open for TDCAA’s Cybercrime Seminar. The course will run from June 7–9 in lovely San Antonio. Topics will cover the collection and use of electronically stored evidence as well as those offenses commonly committed with the assistance of computers. Don’t forget to book your hotel room now—the discounted TDCAA rate expires May 16, 2017!
Quotes of the week
“We’re not closing them because we can’t afford to run them. We’re closing them because we can afford to close them. We don’t have the population needed to run them, which is a good thing.”
—Brian Collier, executive director of TDCJ, on this session’s bipartisan plan to shutter four of its 108 correctional facilities.
“After getting a few hours’ sleep, I felt that I was disrespectful to the office and disrespectful to the man, and it wasn’t called for. Nobody asked me to do it, but I wanted to apologize to him.”
—State Rep. Roland Gutierrez (D-San Antonio), on why he felt the need to apologize to Lt. Gov. Dan Patrick the morning after some heated House floor debate on SB 4, the sanctuary city bill.
“They chose to give up on the policy considerations in exchange for the ability to grandstand for six hours.”
—State Rep. Matt Rinaldi (R-Irving), giving his explanation for why a House compromise on SB 4 by Perry (R-Lubbock), the sanctuary city bill, fell through when House Democrats would not agree to take a deal offered by House Republicans; read this article for a great account of the behind-closed-doors negotiations on that bill.
“It is hard to comprehend that in 50 years there had never been a violent murder on our campus, and to have two in one year is simply unexplainable.”
—Greg Fenves, president at UT-Austin, after a student was stabbed to death and three others were injured by another student who went on a campus slashing spree.
“I understand now what your position is, but you didn’t talk to me before [killing my bill] and that’s why you got that cuss-out a while ago.”
—State Rep. Senfronia Thompson (D-Houston), in a personal privilege speech addressed to the full House, but really to the six members in particular who used a parliamentary move to kill one of her human trafficking-related bills.