Friday, August 7, 2020

Welcome to August. Don’t bother asking for rain, you can’t have any—unless there is a hurricane, in which case you might get more rain than you want. Sorry, we don’t make the rules, that’s just how it is.

Continuing coronavirus court complications

The Texas Supreme Court issued Emergency Order No. 22 this week, which extends the previous emergency order (No. 18) governing most court proceedings and amends those prior rules to generally prohibit jury proceedings until October 1 (rather than September 1). However, the new order still authorizes a limited number of jury proceedings under the same conditions as before, such as with this Class C traffic case in Travis County being tried to a virtual jury next week. Good luck to those of you who have been volun-told to serve as guinea pigs for the rest of us!

Mixed mask messages making way?

After a spring and summer of mixed messages, it looks like most people* have reached the conclusion that masking up around strangers is a relatively small price to pay to try to get the upper hand on this damn virus. (*Some of your local judges not included, unfortunately.) That consensus may have been strengthened this week by the release of two Attorney General opinions. In KP-0322, the OAG confirmed that various local public officials may implement face covering requirements for anyone entering county buildings, offices, courthouses, and courts, and they may enforce those mask mandates by fines and trespass actions, including physical removal of the mask-less masses. (However, the opinion writers punted on the issue of which local officials’ orders takes precedent when there is a conflict, leaving that to future case-by-case determinations.) Similarly, in KP-0323 the OAG confirmed that a public transit authority like the Harris County METRO may deny services to, or even remove, a person who refuses to comply with a mask mandate imposed by that entity. These opinions come on the heels of last week’s news that the Texas Supreme Court continues to be unimpressed with legal challenges from certain conservative activists contesting state and local officials’ authority to issue such mask mandates. Perhaps these opinions will help resolve the Great Mask Debate of 2020—or not, judging from the contentious mask/no-mask fights of 100 years ago during the “Spanish Flu” epidemic. Like the Good Book says, “Nothing is new under the sun” (Eccles. 1:9).

Hemp hindrances

We have learned that DPS crime laboratory services has just successfully completed its first official THC analysis of cannabis plant evidence using the “Texas Method” that we told you about during last summer’s legislative updates and at our Elected Prosecutor Conference in December 2019. This represents what you might call a “soft opening” of DPS crime lab capabilities for cannabis, hemp, and marijuana testing in the wake of House Bill 1325, the bill that legalized hemp last summer. Our information is that the agency plans to start working on the backlog of felony cases submitted by its own state troopers first, then later this fall move on to evidence submissions from non-DPS law enforcement agencies. However, as we have previously discussed, DPS crime labs’ lack of resources limits them to testing only felony (not misdemeanor) amounts of cannabis plant material (not liquids, gummies, or the like). For everything else, you and your local law enforcement agencies remain left to your own devices.

If you are still struggling to dispose of marijuana cases in the wake of last session’s hemp legalization, now is the time to start thinking about potential legislative solutions. Absent a (highly unlikely) increase in state crime lab funding for this purpose, the legal and scientific problems in distinguishing legal hemp from illegal marijuana—including the use of vape cartridges and the like—are not going to magically disappear. If you have strong feelings about this topic and want to be part of a legislative solution, contact Shannon and he can try to put you in touch with other prosecutor offices and law enforcement agencies of like mind.

Covid and the Legislature, Part I

Speaking of legislation, the 87th Texas Legislature will be elected in November and convene a little more than five months from today, so this may be a good time for us to look ahead at the unique challenges that body will face if pandemic conditions have not receded by January 2021. In short: If you think the coronavirus’ impact on the courts has been crazy, wait until you see what it’s going to do at the state capitol! But before we talk about January, let’s discuss the impact the coronavirus pandemic is already having on the normal ebb and flow of the state legislature.

Our beloved “Lege” regularly convenes on the second Tuesday in January of every odd-numbered year and meets in session for 140 days, finally adjourning sine die (“without day”) at the end of that following May. Following sine die and the conclusion of the governor’s veto period, the legislative interim begins in the June of odd-numbered years (barring any special sessions called by the governor). Unlike this past year, most legislative interims are noted for their lack of action or drama, focusing instead on three things: 1) preparations for the next budget cycle, 2) Sunset review of certain state agencies, and 3) interim committee hearings on topics given to them by their presiding officers. However, the coronavirus outbreak that flared up in March of 2020 has effectively short-circuited even those interim half-efforts. Allow us to break down each of those three interim functions separately to explain that in more detail.

State Budget
The state’s budget-writing process (the revenues for which we briefly previewed two weeks ago) is a perpetual enterprise, as shown by this graphic of the state’s two-year budget-writing cycle. However, the work really begins in earnest with the preparation of state agencies’ funding requests (which are known as Legislative Appropriation Requests or “LARs”) throughout the summer before a legislative session (which would be now). Those agencies’ LARs are usually finalized in late July or early August, after which staff members from the Legislative Budget Board (LBB) and the Governor’s Office hold public hearings on each agency’s request throughout the early fall months. As of now, though, whether or how those agency budget hearings will be held is anyone’s guess. Not only is the lack of public hearings a blow to fiscal transparency, but if the agency reviews are delayed too much longer, the entire budget-writing process immediately starts off in a hole—not a money hole (which they will also face) but a “time hole”—because the one thing the next legislature must do is pass a balanced budget. Any delay in that process spells trouble for finishing before sine die and could trigger a special session (or sessions) to finish the state budget before the drop-dead date of August 31, 2021.

Sunset Commission
The second front for legislative action during an interim is the Sunset Advisory Commission, which is overseen by a board of 10 legislators and two public members and employs a large staff that reviews state agencies to assess their performance and recommend discontinuation (“sunsetting”) or continuation with or without changes. For the 2021 session, agencies up for renewal include TPWD, TDLR, TCOLE, and TCJS. (For help deciphering that alphabet soup, see this chart of all the many agencies under review and their proposed timelines.) Normally, the Commission would review these agencies in public hearings this summer and fall and then make final recommendations to the full legislature; but, as with budget hearings, how these Sunset reviews will work during the ongoing pandemic is anyone’s guess. The commission is already running behind its normal interim schedule, and a commission meeting held earlier this week to set an accelerated review timeline using virtual hearings went off the rails when several state senate members insisted upon in-person agency review hearings, apparently catching the commission’s staff and the other commission members from the House by surprise. The result was an adjourned meeting with no new timeline, no guidance for the agencies pending review, and no help for those (like us) who hoped to find some clue as to what the next session might look like. (Or maybe we did get our answer and it’s one we don’t like.)

Interim committee hearings
The third legislative function during an interim comes in the form of interim hearings held by House and Senate committees on topics and issues assigned to them by their chamber’s presiding officer. (Complete PDF lists of all those charges for the 2019–20 interim can be found here: HOUSE and SENATE). These interim committee hearings serve multiple purposes, including: researching issues and hammering out agreements in preparation for the filing of future legislation; giving a public airing to certain controversial issues in lieu of filing or passing legislation on it; and allowing legislators to bring public hearings to their districts instead of holding them in Austin. The final product for most* of these committees is an interim report summarizing the information and testimony taken in public hearings and making recommendations for future legislation based on that information. (*We say “most” because some committees never hold hearings on all their charges, or if they do hold hearings, the chairman may choose not to issue a final report—something not uncommon when the chairman is retiring or finds himself suddenly unelected two months before the next session.)

Of course, the coronavirus pandemic has put a stop to all of this, with the last in-person interim committee hearing having been held about four months ago. The apparent plan back then was to wait out the pandemic in the hopes that it would recede by the summer. (Remember when everyone thought the heat and humidity of a Texas summer would stop the spread of the coronavirus? Ah, good times.) With that optimistic option becoming increasingly untenable, the new plan for some House committees is to eschew in-person or virtual hearings in favor of solicitations for written testimony and information on each of their interim charges. Thus, we are beginning to see committee notices like this one from the House Appropriations Subcommittee on Articles I, IV, and V—that’s the subcommittee that handles your funding issues—seeking “information and input from the public” on all its interim charges at one time. The other alternative for committee chairmen who still wish to meet in person was recently leaked in a draft policy that combines protocols from the CDC, OCA, and your local HEB—none of which sounds very conducive to public testimony or debate, to be honest. It remains to be seen whether any committee chairmen attempt to thread that in-person meeting needle during these last few months of the interim; we predict most committees will instead solicit online information or merely issue their final reports based on internal research (if they issue reports at all).

We will now polish our crystal ball and peer into it to make some predictions based on these interim headwinds currently facing the Lege.

For starters, we will state the obvious: The traditional, time-honored ways of legislating and lobbying are impossible during a communicable disease pandemic. Period, full stop. We don’t know the solution to that problem just yet, but the problem is inescapable barring a miraculously speedy suppression of the coronavirus. There will be very little “business as usual” at the state capitol next session.

Second, those in charge who try to solve this problem by hewing as closely as possible to past legislative procedures with only minimal changes risk finding themselves painted into a corner if circumstances don’t improve or worsen. The rules of societal interaction have changed for now, and legislative rules and procedures will have to change along with them, although what those will eventually look like could vary greatly between the House and Senate. All of this is likely to be an inefficient and ugly process because the people in charge must literally make it up as they go, so say a prayer for them to find wisdom and inspiration (and quickly!).

And third, we expect a decrease in the public’s ability to participate in the legislative process due to the pandemic, which will increase the importance of policymakers’ personal connections with the policy experts, practitioners, and advocates to whom they already listen and trust. If you are not yet on that list for your local legislators, now is the time to work your way onto it. Those personal relationships may be the only way to effectively have your voice heard during the upcoming session.

OK, that’s enough vague prognostication for now. Next week, we’ll try to hazard a guess as to what the “coronavirus session” will and won’t look like and how that might determine the output of the next legislature, for better or for worse.

TDCAA Elected Prosecutor Conference postponed

The Court of Criminal Appeals has requested that training associations like ours postpone, cancel, or convert to online content all remaining live training events scheduled for the rest of the 2020 calendar year. In response to that news, TDCAA’s Board of Directors has postponed December’s Elected Prosecutors Conference until Summer 2021 (dates TBD) rather than convert it into a virtual conference. We apologize for the postponement, but if we wait, we might be able to come together in person, which seemed like a much better option than an online training for that conference.

TDCAA online webinars

Registration for our 2020 Annual Conference is now open! Check your (snail) mailbox and your (email) inbox for our latest brochure or click HERE for all the details. Once you are registered and paid up, you will be able to view your selected tracks at your convenience after they are made available in mid-September.

And if you haven’t checked out our two latest online training videos, these dog days of summer are a great time to get some high-quality CLE from the air-conditioned comfort of your home or office before our Annual Conference offerings are made available. To learn more about our new General Advocacy and Caseload Management multi-presenter courses, click HERE.

New TDCAA coronavirus resources

Courtesy of Kendall County CDA Nicole Bishop, we have added three new jury trial documents to our website:

  • Court guidance for attorneys
  • COVID-19 pre-screening questions for prospective jurors
  • General questions for prospective juror

That office has a trial scheduled for late August, and a few other counties are also experimenting with jury trials (with OCA’s approval), so let us know if you make that leap yourself in the near future and tell us what you learned. And remember, all our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available at HERE.

Quotes of the Week

“I felt like they did a fine job in this part of it, but I was very uncomfortable when they started describing the trial portion.”
            —Doug White, a Brazos County resident called (but not selected) for in-person jury duty this week, referring to the health protocols adopted by the district court empaneling a jury for that county’s first criminal jury trial since the pandemic began.

“We have people that have been booked for murder, charged with murder, released while charged with murder, and murdering again. … The proof is in the real victims in this city that are dying at the hands of people that should not have been running around loose.”
            —Art Acevedo, Houston Police Chief, in response to an investigation showing numerous murders in that city allegedly committed by suspects out on bond for other serious cases (usually over the objection of local prosecutors).

“You just can’t hand out these PR bonds like popcorn and that’s what appears to be happening down at the courthouse. … Bail reform has gone too far, and it needs to be stopped.”
            —State Sen. Paul Bettencourt (R-Houston), on his plans to file “Caitlynne’s Law” next session in memory of a pregnant woman killed in an alleged act of intimate partner violence by a man released from jail on multiple personal bonds.

“Things were violent and aggressive, but it was because people were losing money. It wasn’t about a constitutional issue; it was a money issue.”
            —Brian Dolan, a UC–San Francisco medical historian, on the threats of violence—including an attempted bombing of a government building—by those who opposed mask mandates during the 1918–19 influenza pandemic.

“I truly thought last Friday was gonna be my last.”
            —State Rep. Tony Tinderholt (R-Arlington), who was hospitalized in late July for COVID-19 but is now recovering at home. Tinderholt is the first Texas state legislator with a confirmed coronavirus infection.

“We could be in a session or a special session all the way through September of next year. I say that because the budget is going to take a lot of wrangling this time. … Secondly, the census, which drives redistricting, we may not get those numbers until June or July. … I’ve told my staff and I’ve told senators: Don’t plan any vacations until maybe after September 30th of next year.”
            —Lt. Gov. Dan Patrick, in an address to the San Antonio Chamber of Commerce during a virtual event.

Until our next update, keep check our website and Twitter feed for the latest COVID-19 news.