Friday, June 5, 2020
We’re not even halfway done with 2020 and it’s already staking its claim to the annus horribilis title belt. What we wouldn’t give for a boring week—just one quiet, boring, uneventful week! Is that too much to ask? <sigh>
TDCAA coronavirus resources
All our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available at https://www.tdcaa.com/covid-19-information/. Recent additions include these sample motions opposing in-person pleas and sentencing hearings in courts without approved COVID-19 safety measures in place (shared by Tarrant CDA Sharen Wilson).
If you or someone in your office has something you would like to share with your peers, consider emailing it to Shannon for inclusion.
New TDCAA online training
We have been developing a spate of online courses to bridge the pandemic-fueled live training gap and are pleased to announce the launch of our first General Advocacy online CLE course. This training features prosecutors from across Texas who have submitted videos in which they detail tips, processes, and advice on how become a better advocate. Each submission is discussed in turn with our special host, Erik Nielsen of the Travis County District Attorney’s Office. Click here for more details or to access the webinar. The fee is $25, and attorneys who complete the course will receive one hour of CLE credit.
Check back periodically for additional events, as this is just the first in a series of similar online offerings we plan to offer. The future is now!
In response to threats of violence arising out of the urban protests/riots following the killing of former Houston resident George Floyd by a Minneapolis police officer, Governor Abbott issued a non-COVID-19-related proclamation last Sunday declaring another 30-day statewide disaster. This disaster declaration specifically suspends various provisions of Occupations Code Chapter 1701 (Law Enforcement Officers) and related administrative rules to authorize the Texas Commission on Law Enforcement (TCOLE) to allow federal law enforcement officers to perform peace officer duties in Texas. However, how this will work in real life is still a bit unclear.
As you know, federal law enforcement officers do not qualify as “peace officers” in Texas under CCP Art. 2.12 (Who Are Peace Officers); instead, the authority of federal officers to make arrests in Texas is limited to felony offenses or to offenses occurring on certain federal property, as described by CCP Art. 2.122 (Special Investigators). But neither of those statutes are expanded by this latest edict, only the licensing provisions of the Occupations Code. Sources tell us that TCOLE is temporarily commissioning federal officers as state peace officers under CCP Art. 2.12(30) (“investigators commissioned by [TCOLE] under §1701.160, Occupations Code”). However, that statute authorizes TCOLE only to “commission certified peace officers as investigators employed by the commission for the limited purpose of assisting the commission in administering this chapter” (emphasis added). The governor’s proclamation does “suspend all relevant provisions within Chapter 1701 of the Texas Occupations Code … to the extent necessary for the Texas Commission on Law Enforcement to allow federal law enforcement officers to perform peace officer duties in Texas” (emphasis added again), so perhaps the limitations of §1701.160 are also waived by this gubernatorial edict, but “peace officer duties” are not further defined in the proclamation itself. Therefore, to whichever of you will be the first to have to figure this all out in a pre-trial hearing on a criminal trespass, criminal mischief, or obstructing a highway arrest by a federal officer, we say: Good luck with that! You get to make new law.
In related news, the governor also announced on Monday that crowd violence or looting-related cases involving out-of-state suspects will be referred to the four U.S. Attorneys’ Offices in Texas for prosecution under federal law. Keep that option in mind for appropriate cases.
Latest statewide executive orders
The governor issued another proclamation this week announcing “Phase Three” of his plan to re-open Texas’ economy during the COVID-19 pandemic. Executive Order GA-26 took effect Wednesday and picks up where Executive Order GA-23 (“Phase Two” re-openings) left off. The details of this latest micromanagement of the state economy exceeds the scope of these updates and has also been thoroughly covered by the mainstream media, but there is also an entire website dedicated to explaining all of this, so for specific questions on what can open when and how much, visit https://open.texas.gov/. And unlike its predecessor, GA-26 comes without an expiration date, so it will remain in effect until “modified, amended, rescinded, or superseded by the governor.”
Meanwhile, someone finally got around to legally challenging the governor’s authority to issue his executive orders (as described in this Austin American-Statesman article from last Friday), something we wondered aloud about more than two months ago. However, these particular relators have taken a scorched-earth, burn-it-all-to-the-ground approach to the legal issues which may be less likely to succeed than a more limited challenge. It remains an interesting exercise for constitutional law nerds like us, but if that kind of thing doesn’t excite you, don’t worry—we’ll keep you posted if anything of note comes of this litigation.
The Office of Court Administration (OCA) is making available copies of counties’ approved COVID-19 operating plans via Dropbox; if your county judicial officials have still not adopted a plan, feel free to use those as a resource.
Things have been stressful this past week, so let’s take it down a notch and mellow out with an update on the hemp laws passed last year. (Remember when that was your biggest problem? Ah, good times.)
The Texas Department of Agriculture (TDA) adopted rules for regulating the growth and processing of non-consumable hemp products in Texas, and details on those rules and regulations can be found on TDA’s Hemp Regulations webpage. Next up is the Texas Department of State Health Services (DSHS), which has its own Hemp Program webpage. That agency has also proposed its rules for regulating the manufacture, processing, distribution, and retail sale of consumable hemp products (such as those CBD shops that have seemingly cropped up in every strip center in Texas). The agency’s proposals generally follow House Bill 1325, the enabling statute for all of this, and include the following:
- DSHS inspectors may enter any consumable hemp-related facility or vehicle without a warrant to confirm compliance with the rules and statutes governing those products (proposed §300.103);
- DSHS may request without a warrant or court order any relevant records from a person or company licensed to make, process, or distribute consumable hemp products to confirm the legality of the operation or product (§300.203);
- Each consumable hemp product intended for retail sale must include six bits of information, including a valid THC analysis (§300.402); and
- DSHS may assess administrative and regulatory penalties for violations of these rules (§§300.601–.606).
However, the most controversial new rule is proposed §300.104, which states that “the manufacture, processing, distribution, or retail sale of consumable hemp products for smoking will be prohibited” (emphasis added). If you recall from our legislative update classes last summer, the statute bans those first two (manufacture or process) but is silent regarding the latter two (distribute or sell). By regulating distribution and sale, though, the agency is using the rulemaking authority granted to it by the Legislature to administratively prohibit Texas retailers from selling out-of-state hemp products to smoke or vape as well.
This proposed rule will certainly make life easier for peace officers and agency regulators charged with enforcing the sometimes confusing new hemp laws—although, as we noted last summer, neither the statute nor the rules prohibit the actual smoking or vaping of hemp products by consumers if they can get it by other lawful means. Nevertheless, some pro-hemp/CBD/cannabis/weed advocates aren’t keen on this newly proposed limitation and are encouraging their supporters to submit public comments opposing its adoption. If you have an opinion on the wisdom of this proposed rule, you can access the relevant rules and the means for commenting upon them here. The comment period for these proposals ends at 11:59 p.m. on Monday, June 8—just a few days from now*—so if you want to weigh in, you must do so ASAP. Official comments on the proposal may most easily be submitted by email to [email protected]; when emailing comments, DSHS asks that you please indicate “Comments on Proposed Rule 19R074 Hemp Program” in the subject line.
(*We apologize for the late notice. The rules were filed on April 23. We can’t imagine what could have distracted us from this issue over the past several months!)
New TDCAA book
From investigation through trial, the first edition of Family Violence tells prosecutors, officers, and others in the criminal justice system everything they need to know about how to handle the prosecution of family violence cases. Written by Staley Heatly, the 46th Judicial District Attorney in Vernon, the book includes checklists, forms, and sample pleadings as well as a narrative that leads readers through every step of the process and offers common-sense tips. A CD that accompanies the book contains forms from the book as well as other helpful resources. To order a copy, see our publications page or click here.
Quotes of the Week
“This too shall pass … but I’m not smart enough to know whether that is in a year or three years or five years. And that’s why we’ve got to prepare ourselves accordingly for massive uncertainty. … We’ve got to continue to be very cautious about thinking normal is just around the corner.”
—Gary Kelly, CEO of Southwest Airlines, on why he will not predict a timeframe for when air travel might return to normal. (Good advice for all.)
“The virus doesn’t care about the nature of a protest, no matter how deserving the cause is.”
—Drew Holden, a commentary writer and former GOP staffer on Capitol Hill, quoted in a Politico article about the emerging controversy over conflicting advice coming from certain public health officials regarding recent public protests.
“Throughout the years as District Attorney, I have worked to ensure that justice is done, crime victims are protected, the public is safe, and that no innocent person is convicted of a crime. The time has now come for me to pass this responsibility to someone else. … As I leave you, I ask that in the future you insist that your elected officials of all parties continue to set aside their differences and work for the common good because you deserve it.”
—Jeri Yenne, Brazoria County Criminal DA since 1999, in a public letter to her constituents announcing her retirement effective September 30, 2020. (Her husband, Lake Jackson City Manager Bill Yenne, announced his impending retirement earlier in the week. Happy trails to them both!)