Friday, August 14, 2020

Having a former prosecutor on a presidential ticket puts yet another spotlight on the profession of prosecution. Consider taking this opportunity to educate your community about what it is you really do, as opposed to what Hollywood and partisan political commentators claim you do.

First online criminal jury trial in Texas

Kudos to the crew at the Travis County Attorney’s Office who teed up a Class C speeding case in JP court this week via Zoom. That’s right—from jury selection to jury verdict, the entire case was tried virtually. While such an approach may not be suitable for all criminal cases, credit goes to those who are helping the rest of us learn valuable lessons about the future uses and limitations of modern technology.

Preview of a George Floyd Act in Texas

Yesterday the Legislative Black Caucus gave more details about what it intends to file as its preferred George Floyd Act. The bullet points are:

  • Create a new state civil rights cause of action against peace officers (think “§1983 actions”), but without qualified immunity or caps on damages
  • New mandates for peace officers to identify and intervene in excessive force cases and render aid to victims of excessive force (unclear what the remedy/punishment would be)
  • Prohibit the use of chokeholds by peace officers
  • Sharply limit permissible uses of force by peace officers
  • Prohibit arrests by peace officers for non-jailable, fine-only offenses
  • Require corroboration of testimony from undercover peace officers in drug cases
  • Limit police unions’ ability to overturn disciplinary actions through labor contracts

During the online press conference rolling out these proposals, it was stated that there will be “countless other” stand-alone bills filed to separately address other aspects of “police reform” (such as banning no-knock warrants and limiting “pretext stops”), so keep that in mind when we discuss this proposed bill in future updates. The caucus chairman also noted that they have not received the governor’s input or opinion on these proposals, but they hoped he would make this an emergency issue so it can be debated immediately after the next legislature convenes.

As always, when talking about major pieces of legislation in any policy area, the devil is in the details—of which there are precious few right now, other than the broad-brush strokes described above. We will share more details with you when we have them. (And for those interested, you can view the complete archived video of that virtual press conference HERE.)

Covid and the Legislature, Part II

Having discussed the coronavirus’ carnage caused to the legislature’s normal summer schedule in last week’s update, we will now turn to what the future may hold for a legislative session in Austin. We’ll look to the past and review other states’ recent experiences, then move on to more speculative analysis.

Texas History
Not much has stopped the Lege from carrying out its appointed duties every other year, but can we glean anything from the experiences of the 36th Legislature, which convened in January 1919 in the midst of a flu pandemic similar to our current situation? Perhaps.

The devasting “Spanish flu” reached Texas by September 1918, causing mayors and other local officials to temporarily close schools and businesses and ban public gatherings. However, with pandemic conditions improving over the winter, the Lege convened in Austin as usual in January 1919 for the 36th Regular Session probably thinking that the worst had passed. Little did they know that another deadly phase of the flu would strike again later that spring, but Texas was truly the land of local control back then, so state leaders left the disease response to city and county officials—for better or worse—and limited themselves to things like making sure the windows in the Capitol were opened at night to disperse any bad humors from the building.

Perhaps in response to the resurgence of the influenza pandemic, the 36th Lege met in regular session for only 65 days, adjourning sine die in mid-March. That was followed by another 35 days of work in two special sessions called by the governor during May and June of that year, plus two more special sessions in 1920. Among the issues they tackled in those five total sessions were boll weevil eradication, eliminating the poll tax, imposing Prohibition after passage of the 18th Amendment, being the first southern state to give women the vote following passage of the 19th Amendment, investigating allegations of brutality by the Texas Rangers along the Texas-Mexico border (at the behest of the only Hispanic legislator at the time), and making the pecan tree the Official State Tree of Texas. (Priorities, right?) So clearly, a little matter like a deadly pandemic does not have to keep legislators from legislating, especially if they spread out their work over several sessions as did the 36th Lege.

That said, the idea of a 65-day regular session adjourning in mid-March is inconceivable to many modern Capitol observers. After all, today’s legislators have barely gotten down to business by Spring Break! But for the first 50-or-so years after adoption of the current Texas Constitution in 1876, legislators almost never met in regular session for the full 140 days allotted to them by that document. (See HERE for an historical rundown). Short regular sessions followed by several special sessions were rather the norm until the Great Depression era. Can that model work again?

Other States
Among Texas’ many blessings is the fact that its legislature meets only every other year, which allows us to learn from other states’ adventures in coronavirus legislating. (We are going to ignore Congress as a model because it meets in fits and starts already, it has health and safety resources far beyond the reach of many state legislatures, and … well, it’s Congress. We don’t recommend anyone ever using it as a model for much of anything.) While there is very little uniformity among their responses, it does appear that many state legislatures adjourned during the height of the pandemic earlier this year and are now using longer adjournments between regular session business or calling shorter special sessions to complete their business.

Of course, legislators must not only decide when to meet, but where and how as well. Other state legislatures have gotten creative in fulfilling their duties where state laws or rules require in-person presence (as will be the case in Texas—at least until legislators can meet in person and change those rules). For instance, coronavirus social distancing recommendations have resulted in the New Hampshire House temporarily meeting in a college hockey rink, the Virginia General Assembly convening in an outdoor tent (House) and a nearby museum (Senate), and the Arkansas House meeting in a basketball arena for a short special session, among other creative solutions. And then there was the Mississippi Legislature, which initially declined to institute coronavirus protocols and met as usual, only to have 36 members and staffers test positive for COVID-19, including the Lt. Governor and House Speaker. That legislature cut short its regular session due to the pandemic and then came back in-person with more safety precautions in place, but apparently to no avail—the coronavirus was out the bag by that point. All told, the AP reported last month that at least 73 lawmakers in 27 states have tested positive for the coronavirus since the outbreak began (not to mention many more staffers), and at least three lawmakers have died (!) from COVID-19 in Louisiana, Michigan, and South Dakota.

As for those legislatures meeting in person, several have installed plexiglass dividers throughout their meeting spaces—which must turn their capitol building into something resembling a giant salad bar. (Side note: buy stock in plexiglass companies.) Other legislative bodies have banned the public from their visitor galleries and used that added space for members to gather in a more socially distanced manner, and most have also adopted mask mandates for members, staffers, and visitors. (Won’t that be an interesting chamber rules debate for our legislators!)

Many state legislatures are also adopting new chamber rules or passing new laws to allow their legislative business to be conducted virtually. Such options include virtual committee hearings (with and without virtual testimony from the public), virtual floor voting by legislators from remote locations, and proxy voting by present legislators on behalf of absent ones (what we in Texas call “ghost voting,” which is currently forbidden by rule and therefore happens only every day of every session in the Texas House). You can be sure that Texas’ legislative leaders are keeping up with all these options, but to date, no one has committed to anything.

Perhaps the most important thing to remember is that this is still a very fluid situation. As recently as this week, Michigan’s legislature had to postpone a planned special session due to a legislator’s positive coronavirus test, Mississippi’s legislature re-convened in a special session over their governor’s objections by means of a special power they voted themselves earlier this year, and Idaho’s governor announced that he is calling that legislature into a special session later this month to deal with continuing coronavirus issues. Welcome to the new normal.

#TxLege 2021 or bust!
While there is no legal or constitutional reason that Texas could not adopt a similar model of shortened serial sessions using various degrees of virtual participation, doing so requires one very important thing: Legislators must come to agreed solutions within their chambers, with the other chamber, and/or with the governor, depending upon the issue at hand. And in today’s political climate—with partisanship at a peak pitch and legislators in both parties having criticized the governor’s go-it-alone emergency response to the pandemic—that kind of cooperation is far from a sure thing.

If you’re the optimistic sort, you might recall that the most recent 2019 regular session was lauded for the cooperation between the House and Senate leadership and the Governor on several important items. However, a lot has happened since then: the House Speaker announced his suprise retirement after an unforced political error, a new pandemic has killed thousands of Texans and shut down the economy (blowing a multi-billion-dollar hole in current and future state budgets and unraveling some societal and political norms), the state capitol has been closed to the public for five months with no plans to re-open, a contentious election is approaching in which the Democrats may retake the House or draw into a dead heat with the Republicans (further fraying an already-strained relationship between the two chambers), and <inhale here> we haven’t even mentioned the impending decennial knife fight over redistricting—which will probably be delayed beyond the normal sine die date due to the federal Census Bureau’s inability to complete its job on time. And yet, a successful legislative response to operating during next year’s unique pandemic conditions will hinge upon the level of cooperation or dysfunction within and between the various actors in the face of these challenges.

Obviously, with all that uncertainty in play, making predictions is foolish at this point—but we’ve been called worse than that before, so here are nine speculative, take-everything-with-a-grain-of-salt predictions about the upcoming session (assuming pandemic conditions in Austin do not improve):

  • The 87th Legislature will convene in person on Tuesday, January 12, 2021, at noon, to be sworn in, pick a House Speaker, and adopt new rules for each chamber—but that may not happen in the Capitol building. Both chambers must also conduct certain duties in person during the opening weeks, such as certifying election returns and the like, but most other work (filing bills, etc.) can be done virtually.
  • The House will select a new speaker, but anyone who tells you they know who it will be is lying.
  • After contentious debate, both chambers will approve new rules for their own operation, but those rules will probably differ, with the smaller Senate taking a more conservative (pun intended) approach that tries to maintain traditional practices as much as possible, while the larger House will likely have to employ some virtual technologies or proxy voting to conduct its business. Note that the daily sessions of each chamber must be “open” (Tex. Const. Art. III, §16), but what that means in practice will be hotly debated.
  • The Capitol will either remain closed to the public or admission will be sharply limited, with those lucky few outsiders allowed in to be subjected to temperature checks or other precautions. Ditto for Capitol tours and the gift shop, and perhaps the cafeteria as well (although legislators will continue to allow lobbyists to “donate” food for them and their staffs—where there’s a will, there’s a way). The time-worn practices of “legislative days”—in which cities, counties, and lobbying groups descend en masse upon the Capitol—and legislative floor recognitions of visitors in the galleries will be ended.
  • Neither chamber can adjourn for more than three days without the consent of the other (Tex. Const. Art. III, §17). Traditionally granted as a professional courtesy, don’t be surprised if one chamber uses that power against the other when negotiating something of greater importance.
  • Some legislators may suggest limiting the number of bills that each member can file or each committee can hear, but the bodies as a whole will not agree to such rules. After all, legislators get elected to legislate, bills are already filed electronically nowadays, and legislators will have a free “It was the coronavirus’s fault!” excuse if they have to explain why a constituent’s favorite bill didn’t pass.
  • Bills must be “reported” by a committee (Tex. Const. Art. III, §37), but no public testimony need be taken; therefore, committee business will be limited to invited witnesses, virtual testimony, and/or written testimony—or none at all. That means late-night hearings at which random members of the public show up to get their three minutes of say will be a thing of the past. (OK, this one probably sounds pretty good to anyone who has had to endure those marathons!)
  • Current legislative video capability is one-way (broadcast, not interactive), and not very user-friendly at that. Prepare yourselves to sit through many, many technological problems with any newly adopted forms of virtual testimony or voting, as well as multiple (and sometimes comical) examples of the same “user errors” you have seen in your virtual court hearings.
  • All of these changes will concentrate power even more than usual into the hands of the Speaker and Lieutenant Governor and their hand-picked committee chairmen, as well as dramatically increase the importance of the Governor in designating emergency issues, calling special sessions, and wielding his veto pen; conversely, the power of the individual members will be significantly diluted.

As for predicting the outcomes of specific bills or policy issues, you’ll notice that we have demurred. After all, we might be foolish, but we’re not crazy—we don’t make those kinds of predictions during a “normal” session, so we’re darn sure not going to try that now. You’ll just have to binge-watch the 87th Lege for yourself to find out how those stories end!

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 June 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 you will have until the end of December to complete the training.

Meanwhile, 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

All our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available HERE. If you find or create something useful that you’d like to share with your peers, send it our way!

Quotes of the Week

“People have gotten to the point where they just don’t give a damn. I don’t care about me. I certainly don’t care about you. And so, I can go shoot your house or shoot you right on the spot because you talked to me crazy [or] you looked at me crazy.”
            —Rev. Darren Faulkner, who runs a Kansas City program that provides social support to those deemed most at risk of violence, on why he thinks shootings are increasing nationwide.

“[My constituents] want to see cops in the community. They don’t want to see excessive force. They don’t want to see cops putting their knees in our necks. But they want to be safe as they go to the store.”
            —Vanessa L. Gibson (D-West Bronx), a self-identified liberal Black New York City Councilmember, on the growing ideological rift over the “defund policing” reform movement in that city.

“The idea of taking up the Black movement and turning it into a white occupation, it’s white privilege in its finest definition. And that’s what [Antifa] did.”
            —Faizel Khan, a Texan who moved to Seattle and opened a coffee shop in the neighborhood that became the CHOP zone. Mr. Khan and other local business owners—who must now pay private security to keep their businesses open—are suing the City of Seattle for abandoning them during the recent unrest.

“If you have been in contact with anyone in the Legislature, or if you have been in contact with any staff person that works at the Legislature, you need to get tested.”
            —Mississippi Gov. Tate Reeves (R), after at least 15 percent of MS legislators tested positive for COVID-19 by the end of their regular legislative session.

“It’s a grand experiment. Whether or not it will comply with the Constitution still remains to be seen.”
            —Laurie Levenson, Loyola (CA) Law School professor, on the use of virtual technology in criminal trials.

“I have tested positive for COVID-19. I began to exhibit symptoms last night. I appreciate the well wishes while I diligently comply with isolation and contact tracing guidelines as put out by the Governor and CDC.”
            —Tweet Wednesday evening from State Sen. Kel Seliger (R-Amarillo), who is the second Texas legislator to publicly announce a positive result during this interim.

“While our meeting scheduled on August 19, 2020 was intended to have in-person, invited testimony only, I have already received feedback from individuals not comfortable showing up in person to testify before the Commission. Therefore, due to the risk and uncertainty of these times, the August 19 meeting has been canceled.”
            —Except from a letter issued yesterday by State Rep. John Cyrier (R-Lockhart), chairman of the Sunset Advisory Commission, cancelling that agency’s upcoming meeting.

“All it will take is one member dying for us to wish we had done more. I pray we make the right choices.”
            —Comment by an anonymous Texas House member in from a recently released in-House (see what we did there?) survey seeking input from members on what coronavirus precautions should be taken by that chamber during the pandemic.

“Sports are the reward for a functioning society.”
            —Tweet earlier this week by Jeff Asher of AH Datalytics, in reference to certain athletic conferences postponing or cancelling college football this fall.

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