Friday, August 21, 2020

Allow us to propose a new, weather-related definition for “The Texas Two-Step”: That thing where you pray a Gulf hurricane doesn’t damage anything or hurt anyone, but you also really need some rain, dangit.

The state budget process (finally) begins

As we mentioned earlier this month, by this point in a normal interim legislative cycle our state’s budget writers should have already collected all state agency funding requests (called legislative appropriations requests, or LARs) and started reviewing them in public hearings. But nothing is normal about our current reality, which is why on Tuesday of this week, the Legislative Budget Board (LBB) finally took the first step in that process by posting the deadline for each state agency to submit its LAR. Here are some deadlines that might interest you:

September 11: State Prosecuting Attorney, TCOLE
September 18: Appellate courts (including SCOTX and the CCA), OCA, Comptroller’s Judiciary Section (which includes judge and prosecutor pay, DA apportionment, CA supplements, assistant prosecutor longevity pay, and the Special Prosecution Unit)
September 25: TABC, TxDMV
October 9: OAG, Governor’s office (including its grant programs and the Border Prosecution Unit), ERS, HHSC, TDCJ, DPS

The governor, lieutenant governor, and speaker have further ordered all agency LAR submissions to reflect a base funding request that is five percent less than the amounts appropriated to those agencies by the last legislature for the FY 2020–21 biennium. As you may recall, the governor requested a similar across-the board reduction of five percent for the current biennium back in May after the pandemic hit, with some exceptions for DPS and border security operations (see below for more on that issue). The comptroller was kind enough to not apply that mid-interim five-percent cut to salary items for judges and prosecutors, but we do not know whether the initial LAR submission by the Comptroller’s Judiciary Section for the next biennium will include a cut to salaries, supplements, apportionment, and longevity pay. All we can say for now is that there was a collective sigh of relief from state agencies that the request to cut FY 2022–23 budgets wasn’t deeper. (For now.)

Note that if the comptroller does start with a baseline budget for FY 2022–23 that is reduced by five percent across the board—including judicial branch salaries, etc.—the agency can include a restoration of that five percent as an “exceptional item” request. As the budget process advances and the state gets more accurate revenue estimates in the winter, that would allow state budget writers to move exceptional items like that back into the agency’s baseline budget. That is how things played out during the last major state budget crunch in 2011; the Judiciary Section’s baseline budget began with a five-percent across-the-board reduction that was later restored. And as with that session a decade ago, this upcoming process will require patience! Where budgets end is often different from where they begin, but it is always better for your funding item to be included in an agency’s baseline budget when a session convenes, so keep your fingers crossed.

Narrative, narrative, narrative

Current state leadership has long held a special place for law enforcement-related funding, as exemplified by the current budget cut exemptions granted to DPS and related state law enforcement functions during the pandemic. That special concern was re-affirmed this week when, in response to the Austin city council’s recent decision to reduce and re-allocate Austin Police Department funds, the “Big Three”—Governor Abbott, Lt. Gov. Patrick, and Speaker Bonnen—announced their intent to push legislation next session to freeze property tax revenue collection for any cities that cut police budgets.

As with the Legislative Black Caucus’ recent announcement of its intent to file a George Floyd Act (which we discussed last week), there was much more heat than light at the Big Three’s press conference. (By which we mean more speechifying than details, including whether this freeze will apply to counties and not just cities or prosecutors and not just law enforcement.) There are also significant questions about whether such a proposal is constitutional (which might also explain the lack of details right now). As with any future George Floyd law, we will share more details with you when they are made official. Until then, we’ll sit back and watch the political theatrics play out.

On that note, perhaps is a good time to point out that campaign season is in full swing. (What?!? Yes, it is true.) The historical practice of fall campaigns not starting in earnest until after Labor Day weekend is long past, killed by the 24/7 news cycle and political campaign operatives who needed more billing opportunities. (After all, boats and beach condos don’t pay for themselves, do they?) Thus, we now find ourselves in an atmosphere in which it becomes increasingly difficult to separate the wheat from the chaff when reading about criminal justice and policing reform. The recent kerfuffle over Austin’s police “defunding” is a good example of this.

From where we sit (just a few blocks from Austin City Hall), we can tell you that what the city council really did was make some relatively small cuts to APD and then propose moving several APD functions—9-1-1 dispatch, crime laboratory operations, etc.—to other city departments in a shell game that allowed self-proclaimed “defunders” on the council to claim victory (even though the end result for most city residents may not be much different.) However, budding movements need progress and victories to maintain momentum, and counter-movements need reasons to rally their troops to offset them, so what we get during campaign season is not objective analysis but news reports and press releases in which “The Narrative” swallows the facts and each side spins an event in a manner most likely to appeal to their bases. We know this because we see emails, texts, posts, tweets, and voicemails from both sides urging their supporters to act, to vote, and—perhaps most importantly for some—to donate. (Yes, part of the downside of being strictly non-partisan actors at the capitol is that we receive solicitations from both parties. Lucky us. But that does allow us to confirm that they use similar fundraising playbooks.) Ultimately, all of this makes it very hard to know what is really happening and what the real consequences will be—but perhaps that is where we can help you out.

As for what this latest sparring match can tell us about the criminal justice-related budget outlook, let us return to what we said in this space two months ago:

Budgets are about to be slashed and burned at the local and state level to balance them, which means that no one is likely to see any “re-investment” in their pet issues. As a result, if [local and] state budget-writers “defund police” by reducing their budgets over the next two years, it will probably be as much or more of a result of COVID-19 than policy activists. The real questions will be how deep the cuts go and whether anything replaces what our local communities will be losing.

In a political campaign vacuum, the recent cuts to the services currently performed by Austin PD may not have been much different than what they would’ve suffered due to the pandemic. But we don’t live in a political vacuum. Instead, in the political and social media-driven reality to which we are currently condemned, our only takeaway from the Austin fuss is that if the #BackTheBlue folks have figured out a clever way to temporarily insulate themselves from future COVID-caused budget cut, we will tip our cap to them and say, “Well played.”

TDCAA online webinar catalog continues to grow

Now that some of your kids are back in class, it’s time for you to get your schoolin’ in as well. Our Training crew is cranking out the content you need to do that thanks to an updated Training webpage optimized for online CLE that includes two new remote courses.

The first, Mental Health: The Sequential Intercept Model, features Travis Parker of Policy Research Associates discussing the titular model as a guide for use in mental health diversions at various contact, or “intercept,” points. After each intercept is presented, our own Rob Kepple and Travis County Assistant CA Jason Steans discuss the practical application of the model’s guidance. Registration information can be found HERE.

Second, and continuing our series of multiple presenter training (MPT) courses, we have just released Issues in Domestic Violence in which experienced prosecutors detail their methods for dealing with a variety of domestic violence challenges. After each submission, Training Director Brian Klas and his co-host, Montgomery County Assistant DA Tiana Sanford, offer commentary and a recap. Any prosecutor interested in reinforcing their current domestic violence procedures or acquiring new tools will benefit from this training. Click HERE to sign up.

These two new courses are in addition to our first two MPT courses, General Advocacyand Caseload Management. And if you haven’t already registered for our 2020 Annual Criminal & Civil Law Conference, 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 for the Annual, you will be able to view your selected tracks at your convenience after they are made available in mid-September.

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!

Trauma-informed prosecution resources

The Institute for Innovation in Prosecution (IIP) at John Jay College recently released its Trauma-Informed Prosecution Project offering guidance for prosecutors who want to incorporate trauma-informed best practices into their work. The resources include a PowerPoint presentation, script, and workbook. If you think you or your office would benefit from a better understanding of basic trauma and how it affects your cases, you can check it out HERE.

TYLA project

The Texas Young Lawyers Association (TYLA) is currently running a project to help increase voter registration and turnout in Texas in advance of the 2020 election and in future elections. For more information about their Vote America: Court the Vote program to encourage voter registration and educate the public on the right to vote, click HERE.

Quotes of the Week

“What you hear—rumor is—they are very afraid that, perhaps, they might get grieved by their clients if they volunteer, or recommend they should volunteer, for a virtual trial.”
            —Judge Antonia “Toni” Arteaga, 57th Civil District Court (Bexar County), after a lawyer withdrew consent for an attempted virtual civil jury trial in her court.

“Officers are very afraid that even if they are out here trying to do the right thing, making the best decision they can with the information they are presented at the time, that they are now open to personal liability, and it’s opening their families up to personal liability.”
            —Sgt. Rob Pride, Loveland (CO) Police Department, on the impact of Colorado’s Senate Bill 217, a policing reform bill passed in that state to circumvent qualified immunity defenses in federal court by creating a new state court civil rights action against peace officers that subjects them to up to $25,000 in personal liability.

“If they’re leaving [law enforcement] because of this accountability, then maybe it’s time to think of a new profession. It should be that an officer has some personal skin in the game.”
            —Colorado State Rep. Leslie Herod (D-Denver), chairwoman of that state’s Black Democratic Legislative Caucus and primary author of SB 217 referenced above, in response to recent reports of an usually high number of early retirements among Colorado law enforcement officers.

“If we have police brutality, we don’t need fewer police, we need less police brutality, and so we need to take action—whether it be as a Legislature or in police departments or whatever the case may be—we do need to take action to ensure that law enforcement officers are trained in ways in which they will not engage in police brutality.”
            —Governor Greg Abbott, earlier this week.

“We have not been told yet what’s going to happen. I don’t expect that we’ll be given an option. I think it’s just going to be decreed.”
            —State Rep. Steve Toth (R-The Woodlands), in an interview about possible coronavirus precautions at the legislature next session.