Friday, September 25, 2020

Having finally checked a (much-belated) 2020 summer vacation off our “to do” list, allow us to share with you one key lesson we learned: Ignoring social media and the 24/7 news industry for days at a time will lower your blood pressure and improve your general outlook on life. Give it a try this weekend—you’ll thank us later!


The spam bots and phishers have hacked some TDCAA email addresses and may now be using them for nefarious purposes, so please be cautious when opening links or attachments in emails purporting to be from a TDCAA employee (other than these updates or our case summaries, which are vetted through a legitimate bulk email vendor). Texas’ local governments also continue to be targets for hackers—as the good folks in Hamilton County can attest—so always be vigilant! We apologize for any inconvenience this breach may cause you.

Austin proclamations

Last week the Texas Supreme Court has issued Emergency Order No. 26, which will take effect on October 1, 2020, and govern court proceedings through December 1, 2020, unless otherwise amended, replaced, or rescinded. It’s mostly more of the same: a preference for video-conferenced proceedings plus some Mother-may-I rules for jury trials in county and district courts. However, this latest order will limit remote jury proceedings in criminal cases to those in which all parties consent, and it also includes an outright ban on in-person justice court jury proceedings until December 1 at the earliest. For all the details, read the text of the order itself.

Meanwhile, Governor Abbott issued Emergency Order GA-30 to further expand business re-openings in certain parts of the state, effective as of this past Monday. We won’t go into further details due to the decreased emphasis on criminal enforcement of these decrees, but you can always call or email us if you have a specific question about the latest edict from Austin.

We also heard that the governor’s campaign arm rolled out a series of legislative proposals to combat civil unrest, but we’re not going to bother with them right now because (a) it’s campaign season, (b) we can’t find language for the actual proposals beyond the campaign’s vague PowerPoint slides, (c) what we did hear appears to be a cut-and-paste proposal generated outside of Texas, and (d) did we mention it’s campaign season? There will be plenty of time to dig into the details and pass along that key information when the post-election dust has settled. What’s more important at this stage is recognizing that this roll-out indicates that “combatting civil unrest” could be something the governor designates as an emergency issue next session, thereby permitting the legislature to take it up right away.

Prosecutor funding

As we discussed last month, the Legislative Budget Board (LBB) requested that all state agencies submit a Legislative Appropriation Request (LAR) for the 2022–2023 biennium that reflects a five-percent reduction. Last week, the Judiciary Section of the Comptroller’s Department did just that, submitting an LAR that includes an across-the-board five-percent reduction in all line items, including judicial and prosecutor salaries, county attorney supplements, DA apportionment funding, and assistant prosecutor longevity pay. As we mentioned before, this was not unexpected; however, while it is hard to imagine the legislature would adopt cuts to judicial and felony prosecutor salaries so soon after increasing them, the same cannot be said for the various supplement, apportionment fund, and longevity pay cuts including in the initial LAR. Restoring those proposed funding cuts will require future action from those who receive them; for now, though, you can start by alerting your local county officials to these proposed cuts and how they might adversely impact your office. We will follow up with more tips in the future when the time for action is ripe.

Judicial Council

The full Texas Judicial Council met yesterday and took up the recommendations from its Criminal Justice Committee (and other committees) that we told you about a few weeks ago in Update No. 26. After discussion, the following actions were taken:

Class C misdemeanors and juveniles
The Council voted to recommend diverting more youthful Class C offenders from municipal and justice courts (more akin to the options in the juvenile system), as proposed by House Bill 4606 by White (R-Hillister) last session, which passed the House but was never considered by the Senate.

Bail/pretrial release
The Council voted to recommend the same song, different verse on bail reform—essentially the same legislation that has failed twice before, most recently as House Bill 1323 by Murr (R-Junction) and Senate Bill 628 by Whitmire (D-Houston)—but with even more restrictions on preventive detention. Specifically, the bills’ new preventive detention procedures will be limited to only those offenders currently charged with the certain enumerated violent offenses, making it unavailable to a judge who might want to deny release to someone arrested on a present non-violent offense despite a well-established criminal history of past violent conduct or failures to appear in court. However, even in its more limited application, the bill would still require the State to prove by clear and convincing evidence a present threat of violence or flight after a full evidentiary hearing held within a very short time frame—much like the current version of preventive detention permitted by the state constitution (Article I, Section 11a) which goes largely unused because of its unreasonably high procedural hurdles. In contrast, the Council is proposing a new law modeled after the federal court system but without the funding or resources available to the Feds (because there will be no state funding available for any of these pre-trial hearings or subsequent pre-trial supervision in this tight budget session). As a result, from a public safety perspective the new version of the Council’s bill might arguably be worse than the failed attempts of last session, which were in turn worse than the version in 2017 that passed the Senate (with prosecutor input) before dying in the House, none of which bodes well for comprehensive bail reform in 2021.

Grand jury and trial jury processes
The Council followed the Criminal Justice Committee’s recommendation to pass on making any legislative recommendations regarding grand jury reform at this time. Committee members were prevented by the pandemic from doing the kind of research they rightly felt was needed for such a complicated issue, so rather than rubber-stamp someone else’s proposal, the committee demurred while reserving the right to further study the issue when conditions are more favorable.

Firearms admonitions
The Council retroactively approved details on the written and oral admonitions now required to be given to certain offenders regarding an ineligibility to possess firearms. As we have pointed out before, there is nothing in the Supreme Court’s rules about a remedy for a court failing to comply with, or properly administer, such an admonition. That will have to be worked out on a case-by-case basis in the appellate courts. Good luck with that.

Public Trust & Confidence
The Council also adopted recommendations developed by its Public Trust & Confidence Committee to:

  • allow courts to continue using remote online court proceedings during non-disaster periods by removing current statutory barriers;
  • create and require a comprehensive civic education for school-aged children; and
  • require judges to receive implicit bias training.

How all these issues will fare under the capitol dome remains to be seen, but the judiciary has put forth plenty of food for thought heading into next session.

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

“Texas will always defend the First Amendment right to peacefully protest, but Texas is not going to tolerate violence, vandalism, or riot.”
            —Gov. Greg Abbott (R), at a campaign event announcing various new crimes and enhancements of existing crimes that he is proposing in response to current events.

“I worry that people might feel misled by the media’s coverage when the whole story is not told publicly. … [Jurors] don’t see the whole video broadcast and are surprised by what else is there.”
            —Scarlett Wilson, 9th Circuit State Solicitor (Charleston, SC), discussing how some of the most disturbing viral video footage of officer-involved shootings can paradoxically make it more difficult to obtain convictions, as when her murder prosecution of North Charleston PD Officer Michael Slager for killing Walter Scott in April 2015 ended in a hung jury. (Slager later pled guilty to civil rights violations in federal court and was sentenced to 20 years in prison, but he was never convicted of a homicide.)

“We’re doing what Texans should do, which is, if you are affected, quarantine so the rest of Texas can stay open and go to work.”
            —State Rep. Drew Springer (R-Muenster), who quarantined himself after his wife tested positive for COVID-19 last week. Springer is one of several candidates running in the special election on September 29 to fill the open Senate District 30 seat being vacated by State Sen. Pat Fallon (R-Prosper).

“I’ve heard there’s going to be only two committee rooms where legislation will be heard on the Senate side. … You’re not going to be able to get in the Capitol unless you’re a witness.”
            —Bill Miller, Austin lobbyist and political consultant, speculating on how business will (or won’t) be conducted in the legislature next session. (For context, there are 16 standing Senate committees as of now.)

“It’s not unusual in the past to show up for work, even with a cold, and to try to tough that out. That’s not going to be the right decision this year.”
            —John Carlo, former chairman of the Texas Public Health Coalition, on how the coronavirus pandemic will make the upcoming flu season different from those of the past.