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COVID-19 UPDATE No. 26

Friday, August 28, 2020

When “Not being wiped out by a hurricane” is the highlight of your year, you know it’s been a rough year. (Now go knock on wood because we still have a couple months of hurricane season left.)

Texas Judicial Council update

Legislative committees are still not holding interim hearings, but the Criminal Justice Committee of the Texas Judicial Council met via Zoom this week for the first time since February (so it can be done). That committee has been tasked by the chief justice with making legislative recommendations to the full council about bail and pretrial release; grand jury and petit jury processes; juvenile Class C misdemeanors; and admonitions about a defendant’s ineligibility to possess a firearm or ammunition. Although the committee has not yet voted on any of the proposals given them by the chief justice, you may be interested in some of their discussions, which we will break down in more detail here (in reverse order):

Firearms admonitions
The committee was presented with proposed text for written and oral admonitions for certain defendants who may become ineligible to possess a firearm or ammunition due to a criminal action. Initial drafts referenced the ban on possessing ammunition that is illegal under federal, but not state, law; assuming those details get ironed out by the wordsmiths, look for that admonition to be required by rule before the end of the year after the full Judicial Council approves it. Note, however, that the effective date of the rule, the type of cases to which this new admonition rule might apply, and the remedy for any failure by a court to properly admonish someone under that rule, are still unclear, so some of you will have to litigate those issues if judges make mistakes.

Class C misdemeanors and juveniles
The committee appears ready to recommend support for a new version of House Bill 4606 by White (R-Hillister), which would direct thousands of youthful Class C misdemeanor offenders away from justice and municipal courts and into local diversion programs. That bill passed the House last session but was never considered by the Senate.

Grand jury and trial jury processes
Despite the broad nature of this charge from the chief justice and input at a previous meeting from both TDCAA and TCDLA on a variety of grand jury-related issues, the committee continues to consider only the “grand jury reform” provisions contained in Senate Bill 1492 by Whitmire (D-Houston), the same bill opposed by so many prosecutors last session. (And the session before that, and the one before that, and … well, you get the idea. This has been going on for decades.) Those proposals include allowing defense lawyers in the grand jury, recording all testimony before a grand jury, a bar on re-presentment of certain cases, and a prosecutorial duty to find and present exculpatory evidence to a grand jury.

To the committee’s credit, several members expressed concerns about some of these proposals, including what the remedies would be for noncompliance and who would pay for the new mandates. (Answer: no one knows.) And to their further credit, a couple committee members wondered why the Judicial Council wasn’t focusing more on problems relating to impaneling and safe conduct of grand and petit juries during the current calamity rather than on these hot-button political issues. (Answer: no one had a good response for that either.) Nevertheless, despite the disastrous intervening impact of the coronavirus on both trial and grand jury proceedings since this committee last met in February, the committee members’ discussions continue to be limited to these controversial topics rather than pivoting to pandemic-related issues that present a much more pressing problem.

Bail/pretrial release
As with the grand jury issue, the committee restricted its discussions on pretrial release to the twice-failed proposals of past Judicial Councils most recently filed as House Bill 1323 by Murr (R-Junction) and Senate Bill 628 by Whitmire (D-Houston). Those proposals include mandatory pretrial risk assessments for all defendants; presumptive release on personal bond absent aggravating factors; preventive detention without bail for some 3g-type offenders only after an evidentiary hearing and required judicial findings; pretrial supervision by counties; judicial training on release decisions; data collection; a grant of rulemaking authority to the CCA for crafting further release procedures; and a phased transition over time. The committee members discussed tinkering around the edges of some of these planks—such as amending the list of offenses for which preventive detention might be an option—but no one proposed any changes that would accommodate the objections of the policy advocates who have successfully defeated these proposals the past two sessions. (Perhaps this is a good place to note that several bail bondsmen were monitoring the meeting by phone.) As with the grand jury issue, the Judicial Council’s apparent take-it-or-leave-it position on bail reform seems to contradict the well-worn adage that “politics is the art of the possible,” but if they want to keep trying the same thing over and over again expecting a different result, that is their prerogative.

Going forward, it appears that the committee will decide at a yet-to-be-determined time whether to forward some or all of these proposals to the full Judicial Council (which next meets on September 24, 2020) for its consideration. There is no guarantee that further debate or a vote on these topics will be public, so if you’d like to discuss these recommendations with any committee members before they vote, feel free to reach out those you know and share your thoughts with them. The current Criminal Justice Committee members are (* = present at this week’s virtual meeting):

*Hon. Kelly Moore, Chairman (former District Judge, 121st District Court; now executive director of the Lubbock Private Defender’s Office)
*Hon. Sharon Keller (Presiding Judge, Court of Criminal Appeals)
Hon. Bill Gravell (County Judge, Williamson County)
*Hon. Maggie Sawyer (Justice of the Peace, McCulloch County)
Hon. Ed Spillane (Presiding Municipal Judge, City of College Station)
State Sen. Brandon Creighton (R-Conroe)
Ms. Rachel Racz (citizen member, Vista Proppants & Logistics, Fort Worth)

TDCAA online webinars

Check out our Training web page for our latest online webinars, including:

Also, keep an eye on our website next week for information about new DWI online training on Effective Courtroom Testimony. This free (yes, FREE!) online training will be limited to the first 750 peace officers who register, all of whom will receive four hours of TCOLE credit upon completion. Again, check our website starting next week for more information and share it with any local law enforcement agencies you think might benefit from it.

And finally, if you haven’t already registered for our 2020 Annual Criminal & Civil Law Conferencethat launches in mid-September, click HERE for all the details. Almost 700 people have registered so far—don’t get left behind, join them by signing up today!

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

“There is a lot of grumbling that is taking place because the Legislature has historically held the power of the purse. So, for changes to be made to a budget … without our input, it’s not the process that we’re used to.”
            —State Rep. Sarah Davis (R-West University Place), House Appropriations Committee member, expressing concerns about the process by which five-percent budget cuts have been ordered by the Governor, Lt. Governor, and Speaker for both the current state budget cycle and future budget requests.

“I recommend everyone quit losing their minds because that number—they’re going to wish that’s all they had to cut.”
            —House Speaker Dennis Bonnen (R-Angleton), responding to state agencies and advocacy groups expressing concerns about those five-percent budget cuts.

“Just tell the Texans to slow down on the highways. They really like to drive fast and pass in dangerous places. And you know, the roads are really crowded right now. We really want to encourage them to just enjoy the view and slow down and drive the speed limit. … Nine times out of ten, when that vehicle blows by you in a no-passing zone, it has a Texas license plate.”
            —Brandon Slate, owner of Rocky Mountain Outdoor Center in Buena Vista, Colorado, as quoted in an article about Texans flocking to that state this summer.

“We have three things to get past. One is the hurricane, two is the opening of schools, and three is Labor Day. If we can continue the downtrends through those three different challenges … then we will be taking a look at further openings.”
            —Governor Greg Abbott (R), when asked about further re-openings of the state economy.

“As I asked everybody how they feel about working their way through this hurricane everyone pretty much had the same phrase, and that is: ‘We dodged a bullet.’ It could have been far worse.”
            —Gov. Abbott, after surveying the damage from Hurricane Laura in Southeast Texas.

Time for a break

These updates are going on hiatus for the next two weeks while the primary author logs some much-needed beach time at an undisclosed location. (Don’t worry, we’re sure nothing will happen before we return. After all, 2020 has just been one boring week after another, hasn’t it?) Look for our next update in mid-September.

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