For most of this session we have been in the eye of the storm, a zone of tranquility from which we could watch storm clouds rage all around us without rocking our boat. But next week is the first true week of committee hearings and the last week to file bills, which means many of the really ugly bills that we’ve been expecting to materialize are finally emerging from the storm clouds and heading our way—both in the form of new bills filed and filed bills getting committee hearings. Time to batten down the hatches and get ready for rough seas, mateys—the leisurely cruise is ending.
We are 8/20ths of the way through the session, which reduces to 2/5ths … committee hearings begin in earnest with topics like “raise the age,” expunging deferred adjudications, bestiality (!), the “bathroom bill” (!!) … a big dog fight between the state Office of Court Administration and your local clerks over online court records (details on all of those and more in the committee notice list below) … bills on mental health reforms, pretrial bail reform, and other biggies will soon be filed … and the House and Senate floors will be mostly quiet for one more week as everyone struggles to beat next Friday’s bill-filing deadline … read on for more!
This week the House Pensions Committee took introductory testimony from the various retirement administrations. The reported outlook for prosecutors’ retirement funds is good, and so far, no major legislation has appeared that would impact you.
The Employee Retirement System of Texas (ERS) that manages the retirement plans of elected felony prosecutors within its Elected Class (state officials, legislators, and felony prosecutors) experienced a healthy influx of revenue in response to the increase in contributions required of all state employees last session. ERS is now back on the path to eventually being 100 percent funded in a few years (and by “few” we mean 35 years, but the bean counters seem to think that’s just swell, so if they aren’t worried, we aren’t worried). And while the Legislature is still playing coy on judicial raises, last session’s budget rider appropriating a pass-through to fund elected felony prosecutors’ increased retirement contributions is in both chambers’ proposed budgets again. So, while we can’t promise a raise, at least it looks like there won’t be any last-minute panic about a potential pay cut,as happened last session.
On the county side, the Texas County and District Retirement System (TCDRS) that funds county attorney and prosecutor employee retirement is even better off than ERS. Therefore, early indications are that the Pensions Committee will spend most of its time this session trying to salvage the pension plans of Dallas and Houston and the health care side of the Teacher Retirement System. Good luck to the beneficiaries of those plans!
One final note: Legislation has been filed again to de-link the ERS Elected Class from the judicial benchmark salary, which always makes us nervous. So far, all the bills on that topic correctly distinguish prosecutors (who pay the full freight on those benefits) from legislators (who pay pennies on the dollar for those same benefits), so the proposed changes would not affect any prosecutors. Nevertheless, we will continue to closely monitor the progress of those bills to make sure that there is no adverse impact to our members.
The House and Senate both passed their preferred versions of CPS reform this week, in accordance with the governor’s designation of that issue as an emergency. Naturally, the two chambers’ solutions are completely different from each other—and the piece of the puzzle related to funding is also far from decided—so we’re still a long way from having much clarity on the final product. To catch up with what each chamber has passed so far, read the “engrossed” versions of HB 4 by Burkett (R-Sunnyvale), HB 5 by Frank (R-Wichita Falls), and SB 11 by Schwertner (R-Georgetown). These bills are sort of apples-and-oranges at this stage, but now each chamber gets to consider the other house’s preferred solution and tinker with it, which is where the real fun begins. Plus, there are likely to be dozens of other, smaller-in-scope bills related to CPS which will start moving through the system. The only thing we can say at this stage is that change is coming—just don’t ask us to predict what it will look like in May.
Last week, State Rep. Phil King (R-Weatherford) filed HB 2398, which reduces current state jail felony-level drug possession crimes to Class A misdemeanors. The plan behind the bill goes like this:
- Reduce the penalties for ~7,000 state jail drug offenders per year
- Take the “savings” from those offenders not going to state jails and return (part of) it to local probation departments
- Put the (now misdemeanor) drug offenders who didn’t previously want treatment through pre-trial diversion in county court with mandated treatment
- To make it look like we’re not being soft on drugs, throw in a random enhancement for delivery of <1g of synthetic marijuana to make it a third-degree felony
- To further make it look like we’re not being soft on drugs, call it “recalibration” (not de-criminalization or reduction or whatnot)—and as an added bonus, people who hear “recalibration” may think they need to check the brakes on their car, which distracts them from what’s in the bill.
- Problem solved!
This bill was written by, and has the full support of, the “Smart on Crime” Coalition we told you about back in our Week 2 Update (see that update for the full background on this issue). And to their credit, they have tried to address the “promise now, defund later” habit of the Legislature by including language that says none of this goes into effect unless the Legislature includes in the state budget a rider that directs money to the probation departments to implement this rehabilitation. Of course, the problem with that is that it is only good for two years, and that it does not (and really cannot) say exactly how much money that will be, which leaves open the possibility that the budget writers could assign $100,000 to “implementation” throughout the state and call it good. But we suppose you can’t say they aren’t trying.
If this bill interests you, here are two key questions: First, how will this affect my workload? And second, is reducing the sanction for this crime more likely to make people who don’t currently want treatment decide that they should do it? Color us skeptical of the latter, but the advocates for the bill seem to truly believe that it will work. And even if it doesn’t, they will also probably admit that they see value in all these offenders not having a felony conviction (and/or not costing the state prison system any money), regardless of all other factors.
This is an issue on which your local legislators are likely to reach out to you for “cover,” so even if you don’t have a strong position, mull it over and decide where you stand. Inquiring minds will want to know.
Word on the street is that SB 2 by Bettencourt (R-Houston) may get a hearing in the next week or two. If you are not familiar with this issue, the Texas Association of Counties (TAC) has provided some background material here. We know that some of you are concerned about the negative impact this legislation could have on your local budgets, so if you want to get more involved on this issue—either by contacting your senators or by testifying at an actual committee hearing—contact Shannon and he can refer you to people at TAC who are working on this issue.
The full Senate approved SB 44 by Zaffirini (D-Laredo) restoring/expanding the petition requirements (removed last session) to get on the ballot for statewide judicial races and certain local district and county court races in large counties … and the Senate Education Committee approved SB 7 by Bettencourt (R-Houston) to broadly expand the scope of the offense of Improper Educator/Student Relationship and make other changes designed to stop school districts from “passing the trash.” That bill now heads to the Senate floor in a week or two.
New bills to watch
We stayed on top of bill filings for almost two months, but now March has roared in like a lion and the legislature is filing 150+ bills per day trying to beat next week’s deadline, so we’re falling behind. (It happens every session, but that doesn’t make it any less frustrating.) As a result, this section on newly filed bills is going to lag behind the times for another week or two, but the good news is that after that, it will be gone, and the Legislature will turn from cooking up things to serving to eating what they put on their plate.
Here’s a sampling of what has been filed this week:
HB 2440 by Geren reducing the penalty for habitual Class C theft
HB 2441 by Goldman preserving public access to juvenile court proceedings (proposed by Tarrant County CDA Sharen Wilson)
HB 2458 by Price authorizing non-lawyer JPs to issue DWI blood search warrants
HB 2509 by Parker expanding nondisclosure eligibility for certain convicted victims of human trafficking
HB 2521 by Perez banning the release or publication of mug shots by criminal justice agencies
HB 2533 by Geren requiring OAG approval of certain environmental enforcement actions by local officials
HB 2552 by Thompson, this session’s omnibus human trafficking bill (companion to SB 1226 by Huffman)
HB 2609 by Miller increasing the penalty for Assault-Family Violence in the presence of a child
HB 2640 by Thompson allowing defense lawyers in the grand jury and much, much more (more on this next week!)
HCR 92 by Klick designating the breakfast taco as the official state breakfast item of Texas
SB 1058 by West allowing defense lawyers in the grand jury
SB 1106 by Bettencourt adding criminal trespass (non-habitation) to the cite-and-release law
SB 1110 by Birdwell clarifying merchants’ ability to run their own pre-arrest shoplifting diversion programs
SB 1121 by Garcia removing the theft-by-check presumption for cases of consumer debt
SB 1165 by Garcia creating a “vacatur” process for convicted victims of human trafficking to have their cases re-opened, overturned, and expunged by the convicting court
SB 1183 by Perry regarding criminal competency (more on this next week, too)
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.
This section of our update is going to be really long for the next two months, and we aren’t even listing every bill in these highlighted committees. To see the full agenda for each listed committee—including links to the individual bills—click on the committee name.
MONDAY, MARCH 6
10:00 a.m., Capitol Extension Room E1.036
SB 492 by West authorizing county tax assessor-collectors to turn over hot checks to private collection agencies instead of local prosecutors
House Criminal Jurisprudence
2:00 p.m. or upon adjournment, Capitol Extension Room E2.014
HB 142 by Moody creating the offense of indecent assault
HB 244 by Anchia relating to the duties of a magistrate to inform an arrested person of consequences of a plea of guilty or nolo contendere
HB 268 by Lozano relating to venue in obstruction or retaliation cases
HB 351 by Canales authorizing the discharge/waiver of fines/costs imposed on indigent defendants
HB 591 by Minjarez increasing the punishment for aggravated assault that results in permanent paralysis
HB 670 by Canales authorizing the expunction of certain misdemeanor deferred adjudications
HB 790 by Lozano removing daggers from the definition of an illegal knife
HB 913 by Alvarado removing an element in certain prohibited explosive weapons prosecutions
HB 1087 by Alvarado creating the offense of bestiality
HB 1178 by Kuempel increasing the punishment for certain property crimes involving controlled substances
Senate Criminal Justice
2:30 p.m. or upon adjournment, Capitol Extension Room E1.016
SB 1138 by Whitmire creating a “Blue Alert” to help apprehend certain suspects
SB 12 by West creating a grant program for providing protective vests to peace officers
TUESDAY, MARCH 7
Senate State Affairs
8:00 a.m., Capitol Extension Room E1.012
SB 6 by Kolkhorst regulating bathroom usage (aka the Texas Women’s Privacy Act)
House Public Health
8:00 a.m., Capitol Extension Room E2.012
HB 14 by Murr making it a civil infraction for an LTC holder to carry a handgun at a state hospital facility
House Homeland Security & Public Safety
8:00 a.m., Capitol Extension Room E2.014
HB 459 by Dale granting JPs the authority to waive suspension of a DL despite overdue surcharges
HB 625 by J. Johnson requiring peace officers to pass biennial psychological examinations
House Judiciary & Civil Jurisprudence
2:00 p.m. or upon adjournment, Capitol Extension Room E2.026
HB 298 by Larson allowing a parent to view the body of a deceased child before an autopsy
HB 431 by Metcalf relating to a temporary justice of the peace.
HB 744 by Farrar relating to recovery of attorney’s fees in certain civil cases.
HB 799 by Murr relating to the persons authorized to conduct an inquest in certain counties
HB 1258 by Clardy prohibiting the state judiciary from putting county clerks’ records online without the consent of that clerk
WEDNESDAY, MARCH 8
House Juvenile Justice & Family Issues
10:30 a.m. or upon adjournment, Capitol Extension Room E2.016
HB 122 by Dutton raising the age of criminal responsibility to 18 (and related changes)
It’s great to see our members at the Capitol, and we thought we should start recognizing those who volunteer their time and talents to the legislative process so that the rest of you know who is carrying the flag for you this session.
We enjoyed having Aransas County DA Kristen Barnebey hang out with us as she worked on several county issues at the Capitol—we hope her local officials back home appreciate all her hard work! … Bexar County Criminal DA Nico LaHood was joined by Jim WHEAT (that’s for you, Jim ;-) ) and Christopher Cox from his office to make a presentation before the House Criminal Jurisprudence Committee … We ran into Lamb County C&DA Scott Say at the Texas Chili Parlor, which is always a sure sign that someone has been at the Capitol … Kenedy & Kleberg County DA John Hubert was seen delving into the Big Pink Building (we hope he made it back out alive!) … 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 particular day at the Capitol. Don’t be shy, we’re here to help!
Quotes of the month
“If we’re starting like this, what the hell is the rest of the session going to be like?”
—State Rep. Rafael Anchia (D-Dallas), during floor debate on an amendment by Rep. Keough (R-The Woodlands) to one of the CPS reform bills that would have excluded the undocumented family members of foster children from receiving kinship funds to help care for those children. The amendment was eventually pulled down after more than an hour of heated debate.
“I would hate to see Don Huffines go to jail for two years.”
—State Sen. Eddie Lucio, Jr. (D-Brownsville), referring to one of his Senate colleagues during Senate floor debate on SB 21, the bill authorizing a constitutional convention of the states that includes an amendment to make it a state jail felony for a convention delegate to “go rogue” against the wishes of his state delegation.
“I would talk to them and say, ‘Look, here’s how our criminal justice system works: If I steal your bulldozer, what do you want? You want your bulldozer back so you can go back to business. Well, here’s what happens: The government comes in, takes your bulldozer, impounds it for evidence, throws me in jail, and sends you a bill for it. So you didn’t get justice. The focus is not on you. We’re building government power, but we’re not protecting the citizens.”
—Tim Dunn, millionaire Midland oilman and libertarian philanthropist, explaining how he sells other like-minded people on his “Right on Crime” concepts, which he has almost single-handedly funded for the past decade (full self-congratulatory video available at https://t.co/JPNHAJbh90.)
“[Dunn’s] agenda is one that Texas elected officials are very aware of and sensitive to.”
—Cal Jillson, political science professor at SMU, in an article about Dunn’s financing of Gov. Abbott’s emergency measure to authorize a constitutional convention of the states.
“I’ve asked members of both parties not to do it, but that doesn’t mean they can or cannot. I don’t think it’s very professional, but if they do it, they do it.”
—State Rep. Charlie Geren (R-Fort Worth), chairman of the House Administration Committee, in response to rumors that some House Republicans are surreptitiously recording other House Republicans during private conversations about tapping the Rainy Day Fund this session.