Legislative Update: Week 7

            In honor of the famous Travis letter written at the Alamo 181 years ago today, we humbly submit our own legislative version for your enjoyment:

Travis letter 


Commandancy of TDCAA
Austin, Feby. 24th. 2017

To the Prosecutors of Texas & all Americans in the World—

Fellow Citizens and Compatriots—

I am besieged, by a thousand or more of the #fakenews media under Santa Anna—I have sustained a continual Bombardment of bad bills & cannonade of crazy ideas for 24 days & have not lost a man (although Kepple is a little shell-shocked from so many early-morning Appropriations hearings)—The enemy has demanded a surrender at discretion, otherwise the forfeiture laws are to be put to the sword, if the fort is taken—I have answered the demand with a cannon shot, & our flag still waves proudly from the walls—I shall never surrender or admit that allowing defense lawyers in the grand jury is a good idea. Then, I call on you in the name of Liberty, of patriotism & everything dear to the American character, to come to our aid with all dispatch—The criminal defense lawyers are receiving reinforcements daily & the number of truly awful bills will no doubt increase to three or four thousand in four or five days. If this call is neglected, I am determined to sustain myself as long as possible & die like a soldier who never forgets what is due to his own honor & that of his honorable profession—Vetoes or Death.

William Barret Travis
Lt. Col. comdt. 

P.S. The Lord is on our side—When the “smart on crime” lobbyists appeared in sight we had not three cases of Diet Coke—We have since found in deserted houses 80 or 90 cans, and got into the walls 20 or 30 Subway sandwiches—

Where’s the beef?

            All in all, criminal justice issues are moving slowly at the Legislature. (One could make the case that “sanctuary cities” is the exception, but we don’t consider that a true criminal justice issue—it’s more of an immigration/politics issue.) Despite us tracking hundreds upon hundreds of bills, there are still many “big deals” yet to appear in official bill form, including the “Sandra Bland Act,” pre-trial release reform, reduction of penalties for hard drugs,* rolling back grand jury secrecy, and more. We’ll be swamped with those things soon enough, but every day those bills are not filed is another day wasted by their advocates.
            [* - oops, that one just got filed; see the new bill list below, and we’ll have more on that next week.]

House Appropriations update

            On Thursday, the House Appropriations Subcommittee on Articles I, IV, and V considered budget items relating to the courts, but there were no major surprises. It appears that judicial branch salaries and supplements will escape the 4 percent across-the-board cuts mandated at the beginning of the budget process for most agencies. The committee members politely listened to the judiciary’s request for a 10.2 percent pay raise—highlighted by Supreme Court Chief Justice Hecht’s testimony that of the 10 most populous states, our justices’ salaries of $168,000 languished near the bottom—but it didn’t appear that anyone on the panel was as offended as the chief justice by that disparity.

            One interesting item in the House budget—rising like a phoenix from the ashes—is the recently-defunded Travis County Public Integrity Unit, now smartly re-branded the “State Fraud Unit.” The House has budgeted $4.7 million for the biennium to that unit to fund insurance fraud and motor vehicle tax fraud prosecutions in Travis County, where most of those cases used to be handled before their funding was cut two years ago and those cases were passed out to local prosecutors. The presence of that money in the House budget is encouraging at this early stage, but there is no similar appropriation in the Senate’s budget, so it is far from a done deal. And on a related note: Remember the $500,000 that was put aside last session to fund the prosecutions you would do under HB 1690, the public integrity prosecution reform bill from last session? Not a penny has been spent to date, but they will keep that money in the budget in case you need it someday.

Courthouse security

            Other than a raise in salary, one the judges’ biggest priorities this session is the passage of SB 42 by Zaffirini, aka the “Judge Julie Kocurek Judicial and Courthouse Security Act of 2017” (named in honor of the Travis County judge who was shot outside her home in 2015). To read more about the bill’s background and contents, check out this article. You should also read the bill itself (linked above) to see what they have planned for your local courthouses.

CPS Reform

            On Monday, the House Human Services Committee considered three bills relating to CPS reform: HB 4 by Burkett (R-Sunnyvale) proposes to increase financial support for “kin care”; HB 5 by Frank (R-Wichita Falls) pulls DFPS out from under Health and Human Services and makes it a stand-alone executive agency; and HB 6, also by Frank, is the House’s riff on moving foster care and case work services from CPS to non-profits in the community.

            HB 4 and HB 5 were fairly well-received and both were voted out of the committee unanimously during the hearing. (The Calendars Committee has set HB 4 and HB 5 for consideration by the full House on Wednesday, March 1.) However, HB 6 had a rockier road. The question of “community-based” foster care and case services—meaning, by anyone but the government—precipitated wide-ranging questions on everything from the impact of faith-based foster care on LGBT children to potential conflicts of interest for an organization that is paid for foster care yet makes decisions on the length of foster care placements. Many witnesses testified that the Legislature should slow down on this front, in part because the current non-profit foster care placement pilot program in DFPS Region 3b seems promising, but more time is needed before everyone can agree that it will work long-term and throughout the state.

            At one point Representative Wu (D- Houston) worried aloud that under the bill, county and district attorneys would be forced to represent a non-profit instead of a state agency, and that could be a legal problem. The deputy commissioner for DFPS assured the committee that as a contractual matter, the non-profit would be an agent of the State so county and district attorneys would still be representing the State in court. Andy Homer, the governmental affairs representative for Texas CASA, testified in support of the bill but recommended strong oversight of the contract performance by DFPS and provisions requiring the non-profit to cooperate with the prosecutor and the courts. At the end of the committee hearing, Chairman Raymond (D-Laredo) announced the creation of a CPS subcommittee and sent HB 6 to it for further work. The subcommittee will be chaired by Rep. Keough (R-The Woodlands) and includes Reps. Frank (R-Wichita Falls), Klick (R-Fort Worth), Minjarez (D-San Antonio), and Wu (D-Houston). Often a bill is referred to a subcommittee with the unstated intent that it never returns, but we suspect this one is going in for some repairs and then might come out again, so if you have an interest in how this “outsourcing” issue is resolved on the House side, now is the time to get involved, especially if you have a House member on this subcommittee. If you have questions about how to do that, contact Rob.

            On the Senate side, the Health and Human Services Committee voted out the committee substitute for SB 11 by Schwertner (R-Georgetown) on Thursday by a vote of 9-0. The substitute requires that a single source contractor take over foster care and case management services for regions that currently are served by a non-profit (read: Region 3b) and extends the concept to any region that has a non-profit ready to contract and take over foster care and case management. The bill has a number of provisions relating to representation, with the intent that there be a seamless transition that does not impact your ability to represent the department. We suggest that you read the committee substitute and contact Rob if you have any concerns.   

Schoolhouse Rock time

            Speaking of bills getting to the House and Senate floors for debate, let us pause here to remind you of how all this works.

            In the House, all bills approved by a substantive committee then go to the Calendars Committee, where it is then up to the members of that committee to decide which of those bills will be set for debate by the full House, and in what order. This makes that committee very, very important, for two reasons. First, the Calendars Committee does not deliberate in public—all of their decisions are made behind closed doors. Furthermore, their decisions are not made by normal majority vote; instead, Calendars Committee members have the ability to work together (in groups constituting less than a majority) to hold up bills they don’t like, sometimes long enough to run out the clock on a bill—even though another committee already approved it. The other thing that makes them powerful is their ability, as a body, to determine the order in which bills are placed on the House Calendar. This is important because the House Rules require floor debate on bills to proceed in the order those bills are listed on the calendar, and those calendars can be supplemented and re-ordered on a daily basis by the Calendars Committee. In other words, the Calendars Committee is the gatekeeper of all floor debate, and while its members can’t guarantee passage of a bill, they can darn sure slow down or kill a bill. (And if you haven’t already checked to see if you know anyone on that committee, the membership list available here.)

            Now that you’ve read this last paragraph a time or two and think you understand how things get to the House floor, let’s discuss the Senate process. Step One: Forget everything we just told you about the House’s calendaring process, because the Senate is completely different! In the upper chamber, the Senate Rules essentially grant to the lieutenant governor the powers of the House Calendars Committee. If he doesn’t want a bill debated on the Senate floor, he can simply refuse to recognize a senator who wants to call up that bill, and the bill is dead. Furthermore, the Senate uses an Intent Calendar, which is a list of bills approved by a committee and eligible to be debated and which a Senator intends to bring to the floor. However, the Senate does not consider bills in any particular order—that all depends upon the Lite Guv’s blessing and the bill author’s ability to get three-fifths of the other senators present on that floor at that time to agree to debate the bill. (If all hands are on deck, that equates to 19 of the 31 senators.) Stated another way, any 12 senators can band together to prohibit a bill from being debated on the Senate floor, even if the Lite Guv likes the bill. Together, these two mechanisms perform the gatekeeping function on the Senate side that is handled in the House by the Calendars Committee.

            Thoroughly confused yet? Well, don’t be ashamed, it’s not supposed to be easy to understand. Just remember that we will always be here to help you navigate these Byzantine rules if you need assistance.

New bills to watch

            As of mid-week, ~3500 bills and resolutions had been filed, of which we are tracking more than 900. Here’s a sampling of what has been filed this week:

HB 9 by Capriglione creating new cybercrime offenses

HB 2085 by Alvarado authorizing psychological counseling for certain former grand jurors (proposed by Montgomery Co. DA Brett Ligon)

HB 2089 by White authorizing deferred adjudication for certain DWI-1st offenders (proposed by Comal Co. CDA Jennifer Tharp and Bexar Co. CDA Nico LaHood)

HB 2107 by Lucio III authorizing medical marijuana

HB 2273 by Lang restricting certain county attorneys from accepting gifts or grants

HB 2286 by Landgraf relating to grand juror qualifications and selection (proposed by the district clerks’ association)

HB 2315 by Landgraf creating a statewide protective order registry

HB 2316 by Capriglione enhancing the penalty for assault of a pregnant woman

HB 2359 by Ortega expanding grounds for common nuisance actions

HB 2398 by P. King reducing felony penalties for possession of certain controlled substances

SB 958 by J. Rodriguez changing the deadline for filing writs in death penalty cases

SB 967 by Watson relating to the consent required for sexual conduct

SB 1011 by Huffman creating a SJF shock program with vocational training

SB 1065 by Lucio revising death penalty sentencing procedures and jury instructions

SB 1077 by Burton reducing the penalty for theft of certain metals

To follow along with us during the week as more bills are filed, check our live tracking updates on the Legislative page of our website. If you are curious to know exactly what bills we are tracking under any other category, email Shannon and he can send you a list that will include hyperlinks to each bill’s text online.

Committee hearings

            Next week will be our last one without lots of bills set for committee discussion. Enjoy the serenity while it lasts. Meanwhile, if you follow open records issues, here’s one committee hearing of interest that has been posted for next week:

Senate Business & Commerce Committee (click link for access to bill language)

SB 79 by Nelson relating to the production of public information available online
SB 408 by Watson expanding the definition of “governmental body” for PIA purposes
SB 515 by Taylor granting county officers access to information held by the county commissioners court

Looking ahead

            We are 7/20ths of the way through the session, which does not reduce to a smaller fraction … House committees are starting to hold organizational meetings and a few are hearing some bills, but it will be at least another week before any of the criminal or civil law committees start to debate specific bills … the full Senate is likely to take up the governor’s emergency request to pass a resolution authorizing a constitutional convention of the states, so that could be an interesting exercise in constitutional law from 31 people who don’t practice it … and the overall tension level in the Capitol will increase as the bill filing deadline of March 10 grows ever nearer.

Update on a new law from last session

            You might remember that not long after the Legislature passed HB 11, 2015’s the omnibus border security bill, immigration advocates challenged the constitutionality of a new provision in Penal Code §20.05(a)(2) (Smuggling) and a federal district judge granted an injunction against enforcement of that provision. Yesterday, however, a three-judge panel of the Fifth Circuit reversed that injunction and dismissed the case (order available here). We can’t predict whether there will be further litigation on this point, but early indications are that the plaintiffs intend to declare victory and quit the fight. Accordingly, that offense is prosecutable again—but be sure to read the opinion for the federal court’s interpretation of terms like “harbor” or “detection” before you charge anyone under that subsection of the new law.

Quotes of the month

“The 5th Circuit provided us with a narrow definition of harboring that will prevent Texas law enforcement officers from arresting humanitarian workers and landlords for simply providing shelter and conducting business with undocumented immigrants. … In these days of increased concern that state and local police will take up the duties of federal immigration agents, today’s ruling restricts Texas to only the most limited enforcement of the harboring statute.”
            —Nina Perales, MALDEF lawyer, on the Fifth Circuit’s interpretation of new Penal Code §20.05(a)(2).


“This doesn’t go anywhere without bipartisan support.”
            —State Rep. Joe Moody (D-El Paso), chairman of the House Criminal Jurisprudence Committee, describing the challenges he faces in passing HB 81, his bill to make possession of less than one ounce of marijuana punishable by a civil infraction.


“Are we going to jail or not?”
            —Vince Young, former Texas Longhorn quarterback, to the officer who eventually arrested him for DWI last year (recently released dash-cam video available here).