If you are frustrated by the fact that the Legislature has been in session for two weeks and still hasn’t done anything, you are looking at this situation from the wrong perspective.
Looking ahead …
After their Inauguration hangover wears off, legislators will return to business on Tuesday for another short work week. The Senate Finance committee will start discussing their initial version of the budget, but it should be at least another week or two (or three, if we’re lucky) before House committees are assigned by the Speaker. That will be the next landmark event of the early session, along with the Governor’s State of the State Address, the traditional signpost for the “end of the beginning” of a session.
Senate committee assignments
As we mentioned last week, committee assignments have historically been released in a manner that limits the ability of unhappy lawmakers to complain in person to the Speaker or Lite Guv, and this session is no different. We joked with someone earlier in the week that the Lite Guv would probably drop them from his plane as it lifted off and headed to D.C. for the Inauguration, and based on the timing of the actual release, we may have been correct.
Senate committee assignments were publicly released on Wednesday and can be viewed online by committee or by senator. With only three new additions to the upper chamber, there was never going to be much change, and as a result, only one Senate committee chair changed hands from last session. Of most interest for our purposes is the make-up of the Criminal Justice Committee, which has been expanded from seven to nine members (new members noted by *):
Chair: John Whitmire (D-Houston)
Vice-chair: Joan Huffman (R-Houston)
Brian Birdwell (R-Granbury)*
Konni Burton (R-Colleyville)
Brandon Creighton (R-Conroe)
Sylvia Garcia (D-Houston)*
Bryan Hughes (R-Mineola)*
Jose Menendez (D-San Antonio)
Charles Perry (R-Lubbock)
Missing from this list is Sen. Juan “Chuy” Hinojosa (D-McAllen), who has been on the committee since he came to the Senate in 2003. He was replaced by Sen. Birdwell (who was also promoted to chair the Nominations Committee), Sen. Garcia (a civil lawyer and former Harris County Commissioner), and freshman Sen. Bryan Hughes (a plaintiff’s lawyer who served on the House Criminal Jurisprudence Committee in 2013). It’s hard to know how these new members are going to affect the voting patterns of the other returning committee members, but having two extra votes to corral makes it that much harder to pass or defeat bills in which you are interested.
What’s so important about committees?
Let’s do some math. Based on historical data, these general rules of thumb should hold true again this session:
- Approximately 7,000 substantive bills will be filed and referred to a committee
- Roughly half of all those bills will never be set for a hearing in that committee (= dead)
- Of the remaining 50-ish percent of bills set for a committee hearing, half of them will not move out of that committee (= dead)
- Of the remaining 25-or-so percent of all filed bills that are approved by a committee, 85 percent of them will be approved by that chamber, pass the other chamber, and end up on the governor’s desk
Stated another way, only ~20 percent of the bills filed last session ever reached the governor’s desk for final passage into law, but if a bill was approved by a committee, it had a very high likelihood of becoming law. THAT is why committee work is so important, and THAT is why any prosecutor who has a local legislator on a committee that could affect your business can have out outsized influence on the fate of that legislation.
So, with that in mind: If you have a senator on the Senate Finance or Senate Criminal Justice Committees, now is the time to reach out and convey your priorities to him or her. You should also make sure they or their staff member(s) assigned to criminal justice issues know how to reach you on short notice, because there will be dozens (hundreds?) of bills on various topics that they will be asked to consider, and most of them will want to know your thoughts on those bills before casting a vote. To help you anticipate those questions, we will post notices of committee hearings in future weekly updates, but it will be up to you to keep up with that information and use it wisely.
Aside from Senate committee assignments, the other big news from the second week of this session is the proposed budgets rolled out by both chambers which—as is usually the case—are not identical. Yes, the vast majority of the 1,049-page House Bill 1 matches what is in the 1,021-page Senate Bill 1, but all anyone cares about at this early stage are the differences and what they portend for future budget negotiations between the two chambers.
We’ll spare you the big numbers and get to the red meat: The initial version of HB 1 proposes to spend about $2 billion more than the current state budget that was approved in 2015, while the filed version of SB 1 spends approximately $3 billion less than that last state budget, so at the starting line, the House wants to spend ~$5 billion more than the Senate. The House number is also roughly $4 billion more than the comptroller said would be available to them this biennium, but that discrepancy is not unheard of at this early stage—remember, there are other ways the Legislature can “make money” and still balance the budget without increasing taxes, including drawing down the Rainy Day fund or using some accounting slight-of-hand.
The major differences between the House and Senate budgets are in the areas of education and health and human services—which is no surprise, because those two categories make up 75 percent of the state budget (transportation also accounts for 10 percent and the dreaded “other”—which includes criminal justice, public safety, the courts, natural resources, energy, agriculture, and everything else—must fight over the remaining 15 percent of scraps). The House and Senate differences in those two major areas are most easily summarized by saying that the House budget accounts for expected growth in HHS and public and higher ed populations while the Senate continues to party like it’s 2015 (with a few exceptions). Now let’s take a little deeper dive into the parts of the state budget that will affect your business.
The Senate and House appropriations bills are nearly identical when it comes to funding for prosecutors, and they continue to provide very little of your overall funds. Felony elected prosecutor salaries, CA supplements, assistant prosecutor supplements, and DA apportionment funds for the 2018–2019 biennium are all at current funding levels in both versions. Both proposed budgets also continue to include modest funding for the supplement that felony prosecutors started to receive last session to offset increased payroll deductions for retirement benefits.
That said, there are two interesting differences in the Senate and House versions of the budget bill. First, the House version includes $2.5 million per year for Travis County’s State Fraud Unit that handles insurance fraud and general state government investigations (read: state employee theft, not prosecution of public officials). Second, the Senate bill eliminates funding for the Forensic Science Commission, the Criminal Justice Correctional Management Institute, and the Law Enforcement Management Institute, which are all housed within the budget of Sam Houston State University. This may be more of a budget re-organization than a cut, meaning those funds could reappear in a more appropriate spot in the budget at some point down the road, but we don’t think those entities expected to be “zeroed-out” at this point of the game and they are scrambling to find a safe haven. (Consider this a good reminder that there is always someone at the Capitol worse off than you!)
Some issues to watch
By law, the first 60 days of a session are dedicated to bill filing, networking, bill filing, socializing, bill filing, grand standing, and bill filing. Upwards of 7,000 bills and resolutions will be filed by the 60-day deadline (Friday, March 10), and many press releases, news stories, and social media campaigns will spring up to support/oppose the passage of various bills. But don’t confuse the “heat” around some of those bills with the “light” indicating that something might actually pass. Our job is to help you discern the difference between the two. With that in mind, here are some issues that may be gaining traction behind the scenes at the Capitol and which you should be prepared to discuss with your local legislators
Stop us if you have heard this before: CPS is broken and the Legislature is finally going to fix it!
Looking back over the last two decades, it seems as if every few years the Legislature re-arranges the deck chairs on this Titanic, but in the end, the foster care system and CPS caseworkers remain overrun. With a new commissioner (former Texas Ranger Hank Whitman), and under the shadow of federal litigation, the Legislature recently appropriated $150 million for 800 new CPS caseworkers and a $12,000 raise for current caseworkers. That’s a good start, and one that is included in each chamber’s proposed budget going forward.
Going forward, don’t be surprised if the Legislature relies on greater privatization of foster care and CPS caseworker services. Senate Bill 11 by Schwertner (R-Georgetown) (or its identical companion, HB 914 by Thompson (D-Houston)) will be the primary vehicles for CPS reform this session. Although at this point they are “shell bills” that will undergo quite a bit of revision, the framework is there: Foster care capacity plans developed by DFPS, service providers, faith-based entities, and community organizations; better tracking of kids in foster care; a pilot program in one region to outsource CPS case management to a non-profit entity; and more. That last point has some members wondering about the implications for our representation of DFPS if it outsources its end of the operation. As far as we can tell, those of you who do CPS work would be talking to a caseworker who is an employee of a non-profit under contract with DFPS—likely the same CPS caseworker you’re working with now, only with a different payor on her paycheck—so at this point, we don’t see a problem with it. However, if you’re curious, read SB 11 and contact Rob with any questions or concerns.
Civil Asset Forfeiture Reform
Pressure is building on the political right to “do something” about all these cops who are stealing property from honest, hard-working citizens on our highways and byways! What’s that, you say? You haven’t heard of any actual cases like that in your jurisdiction, or anywhere else in Texas? Well, you are almost certainly correct about that—but what does reality have to do with it? Legislators are in the business of responding to constituent concerns, and those on the right side of the political spectrum have been inundated with complaints from their primary voters about things those folks just know to be the gospel truth because they read it on social media. If you’re a felony prosecutor and you’ve been paying attention to our frequent discussions of this topic, you’ve already talked to your local legislators about it. What do you hear from them? What is their take on things? We’d love to know.
As for legislation, a dozen forfeiture-related bills have been filed to date, a list of which is available in the attachment below. It’s unclear what, if anything, will happen in the House, but the two major bills to watch in the Senate are SB 380 by Burton (R-Colleyville) and SB 401 by Huffman (R-Houston). The former is the bill to end civil forfeiture, and the latter is a more nuanced tweaking of current law by someone who spent her professional career in the criminal justice system. We know more about both bills than we can squeeze into this small space, so if you have an interest in this topic, review the list of bills posted at the link above and then call or email Shannon for more specific details or with information about the view from your county seat.
Drug Penalty Reduction
Twenty-four years ago, the Legislature re-wrote the Penal Code from soup to nuts. One of the big drivers of change back then was the need to handle drug offenders more appropriately, leading to the creation of state jail felonies and related facilities which were supposed to be “therapeutic communities” in which offenders could be rehabilitated and released back into society as hard-working, conscientious taxpayers. That idea worked swell for about two years, until money got tight and the Legislature stripped most rehab funding from the state jail system, most never to return. Guess how that worked out? Of course, you all know the answer to that question. But can you guess the next big solution from the same advocates who brought us state jails? That’s right—let’s reduce penalties from drug offenders yet again! Only this time, they want to knock them down to misdemeanors with a promise that treatment and rehabilitation funding from the state will follow them down to the county court system—because that will never be taken away, will it?
One change from two decades ago is the players who are pushing this agenda. Then, it was the ACLU and related groups. Now those folks have friends from the center, like the Texas Association of Business (TAB), and from the right, like the Texas Public Policy Foundation (TPPF), a.k.a. the midwife that birthed “Right on Crime.” Together, they all formed the Texas Smart on Crime Coalition last session to pass drug penalty reduction legislation. But there’s more! The same group from San Francisco that got California’s infamous Proposition 47 passed in that state by referendum is also spending upwards of $200,000 to achieve the same goal here this session. That outfit is called the Advocacy Fund, and you can read more about them here.
If you’re not familiar with California’s Prop 47, a 30-second Google search revealed several interesting entries:
- Wikipedia entry
- “Unintended consequences of Prop. 47 pose challenge for criminal justice system,” LA Times
- “California Set a Bunch of Drug Offenders Free—and Then Left Them Hanging,” by that paragon of tough-on-crime thinking, Mother Jones (noting that an LA County drug court has basically closed shop because no offenders want treatment when easy jail sentences became available)
- “Two years after Prop 47, addicts walk free with nowhere to go,” Palm Springs Desert Sun
- “An explosion of California property crimes—due to Prop. 47,” San Francisco Chronicle
- “Prop. 47 is breaking its promise to California voters,” Sacrament Bee
- “A ‘virtual get-out-of-jail-free card,’” Washington Post
Anyway, you get the point. But hey, it sure has helped California cut its state budget by $100+ million!
Oh, and by the way, all of this is just on the “hard drugs” front—it doesn’t even include the out-of-state lobbying on marijuana penalties coming from groups like the Marijuana Policy Project out of D.C., which has dedicated hundreds of thousands of dollars to an multi-year effort to decriminalize marijuana in Texas. No bill has been filed yet, but trust us, it’s coming.
Now, if you have read this and conclude your humble correspondents are rabid anti-drug crusaders, then you are missing the point. Instead, what we are trying to point out to you is that “reduce now, fund later” promises have failed to come to fruition in at least two major situations—Texas state jails and California’s Prop 47—and that is relevant because some of the same groups who pushed those efforts are going to be banging their drums for similar changes at the Legislature again this session. That doesn’t mean all drug reform efforts are necessarily a mistake, nor does it mean that such discussions might not yield other benefits—such as in 1993, when prosecutors obtained long-sought truth-in-sentencing provisions for violent offenders (a.k.a. “3g offenders”) in exchange for their support on lowering drug penalties. But what it does mean is: caveat emptor.
Grand jury reform
Wait, didn’t we just do this? Well, if you are referring to eliminating grand jury commissioners, then yes. That maybe hasn’t worked out so well in those parts of the state that are having trouble getting enough people—or a diverse-enough group of people—to fill out a grand jury, but that could possibly be fixed if anyone wanted to take the ball and run with it. However, that’s not what we mean here by “grand jury reform.”
Instead, we are talking about efforts from the Right on Crime crew to pass a bill to codify the reforms they laid out a few months ago here. We’ll have to wait and see what is filed, but most of their proposals to date have been cut-and-pasted from a 2011 “study” commissioned by the National Association of Criminal Defense Lawyers (NACDL) that took New York as its model. The unstated goal of the legislation will be to prevent politicians and other powerful people from getting indicted, but it could also make it that much more difficult to obtain indictments in organized criminal activity cases and officer-involved shootings. We haven’t seen the bill yet, but make no mistake—grand jury winter is coming. Prepare accordingly.
Remember, we keep live tracking updates for the Penal Code and CCP bills on the Legislative page of our website, but if you are curious to know exactly what bills we are tracking under any particular category, email Shannon and he can send you a live list that will include hyperlinks to each bill on the state’s legislative website. Next week we’ll start listing some specific bills of interest as more of them are filed.
Our dance card is starting to fill up, but we are still seeking a dozen or so volunteers to come to Austin during the weeks beginning February 6th and ending May 15th. Please call or email Shannon to learn more about our legislative volunteer program. It’s a great learning opportunity, and it will make you the most knowledgeable person back home when it comes to what’s going on in Austin this session.
Quotes of the month
“It was designed to accommodate these times that we’re in right now. It has been raided and reduced to near zero three times in the past.”
—State Rep. Drew Darby (R-San Angelo), addressing the possibility of using the Rainy Day Fund to help cover a $4 billion gap between the revenue estimate and the House’s proposed budget.
“If the purpose of [Proposition] 47 was largely to rehabilitate drug offenders, that’s not what’s happening.”
—Mike Feuer, Los Angeles City attorney, in a recent article about the unintended consequences of large-scale drug reform in California.
“Ladies and gentlemen, I promise you that in a Donald Trump administration, there will be no bullshit.”
—Bobby Knight, former basketball coach at Texas Tech (and some other school up north), at the Texas State Society’s Black Tie & Boots Inaugural Ball last night.
Sen. Franken (D-MN): “Did you enjoy meeting me?”
Gov. Perry (R-TX): “I hope you are as much fun on that dais as you were on your couch.”
[Laughter in audience; Franken looks concerned]
Perry: “May I rephrase that, sir?”
Franken: “Please, please, please, oh my Lord, oh my Lord ….”
Perry [laughing]: “Well, I think we found our Saturday Night Live soundbite.”
—An exchange at yesterday’s confirmation hearing for former Texas Governor Rick Perry, nominated to be Secretary of Energy in the Trump Administration.