[*updated: Friday, March 26 5:15pm*]

The Lege has crested the halfway point of its regular session and is now heading downhill to sine die. This will be a high-speed ride that includes climbing, dropping, tilting, sudden and dramatic changes in speed, and occasional backwards motion. Please remain seated, hold onto your lap bar, and keep your hands inside the car for the duration of your ride.

Thursday. Wow.

The roller-coaster nature of the Lege was evident yesterday. House committees went deep into the night and early morning taking testimony on multiple high-profile issues: the George Floyd Act, constitutional carry, election law reforms, taxpayer-funded lobbying, public camping bans, defund the police bans, and more. And little of it went smoothly. One committee abruptly ended with 180 registered witnesses yet to testify; in another hearing, a witness and her supporters had to be escorted out by DPS troopers after some obscenity-filled tirades (which she and others filmed on their cellphones while it happened—welcome to 2021). Two other committees did not adjourn until around 5:00 a.m. today. Heck, even a bill to legalize fantasy sports wagering led to a shouting match between House members. (And no, they weren’t arguing over who to bet on in March Madness.) It was as if all the normal stress of a session that had been pent up by social distancing and masking and limited attendance finally broke loose and flooded the Capitol Extension. It wasn’t pretty, and it was also too much, too fast, and too late into the evening (and morning) for us to recap here. On the other hand, in some ways it was more “normal” (for our legislature) than the way in which this pandemic-tinged session had proceeded so far. All we know for sure is that this session is bound to get weirder before it ends, so stay tuned!

House vs. Senate?

Capitol observers have long known that the differences between legislative chambers can be just as contentious as those between the donkeys and elephants. As this session progresses, the importance placed on criminal justice “reform” may turn into one of the many distinctions between chambers. While Senate committees have mostly focused on non-criminal justice issues, House committees have taken up bills that would limit civil asset forfeitures, raise the age of juvenile jurisdiction, grant early parole consideration for prisoners sentenced for violent offenses, reclassify certain felony drug offenses as misdemeanors, expand the use of subsequent writs, and make substantial policing reforms in the context of the George Floyd Act. (And more House bills in that vein are set next week—see below for details.) This may not be a surprise in the wake of the turnover in the lower chamber—including the selection of a new speaker who was a founding member of the House Criminal Justice Reform Caucus—but it may be useful for you to keep this new dynamic in mind when processing news from Austin this session.

Prosecutorial immunity

On Wednesday, the House Judiciary and Civil Jurisprudence Committee heard HB 2335 by Middleton (R-Wallisville). This bill would make a prosecutor personally liable for significant physical injury, death, or property damage that was a foreseeable outcome of a riot if the prosecutor had established, prior to the riot, a “formal or informal policy” not to prosecute rioters. The hearing started with testimony about the disposition of cases arising out of protests at the state capitol last summer, but it soon morphed into a larger discussion about the proper role of lawmakers and prosecutors in deciding what gets prosecuted and how. Judging from similar discussions elsewhere in the nation, this is not the last time this will be discussed, so let’s take a deeper dive into that debate.

The hearing began with a resource witness from DPS testifying that all of the 22 criminal charges that his agency had filed after summer protests at the state capitol had been dismissed by the local county attorney and district attorney. Now, law enforcement complaints that prosecutors don’t prosecute enough of their cases are not new—and you probably won’t be surprised to learn that the Travis County CA and DA are prosecuting some cases arising out of this past summer’s unrest—but the solution to this problem as proposed by this bill should alarm Texas prosecutors because it would strip you of your immunity from civil lawsuits. That’s very dangerous ground, because part of your job is to make decisions that will disappoint or anger someone no matter what you do. As was pointed out during the hearing, prosecutors need the discretion and ability to be innovative in their approaches to seeking “justice”—a term that was often discussed in the hearing, but never defined.

Another key term in this debate that was not clearly defined is “formal or informal policy.” Many elected prosecutors have established priorities that meet the expectations of their communities, and some advocacy groups encourage prosecutors to adopt this or that “best practice” when handling certain types of cases. However, any prosecutor’s announcement of an official policy—e.g., “My office will no longer enforce ‘x’ law”—is bound to get the attention of the people who wrote “x” law. For instance, at one point in the hearing a committee member opined that prosecutors should not be free to “tear out sections of the Penal Code,” while another pointed out that there are things lawmakers put in statute—such as the now-unconstitutional crime of homosexual conduct still on the books—which prosecutors cannot legally or ethically pursue. And that debate went back and forth.

The legislature usually tries to address local prosecutors who don’t do what they want them to do in one of two ways. The first is to threaten to cut off state grant funding for not enforcing a law. See, e.g., HB 1925 by Capriglione (R-Southlake), which would prohibit local officials (including prosecutors) from establishing a policy not to enforce the public camping ban created by that bill. (That bill was heard in a different committee yesterday and left pending). The second “stick” used by the Lege is to try to give the prosecution job to the attorney general, the state’s chief civil lawyer. See, e.g., SB 252 by Bettencourt (R-Houston), which purports to give public corruption prosecution authority to the AG due to the perceived failure of a local prosecutor to prosecute a specific instance of that conduct. (That bill was heard in committee the previous week and is still pending in that committee.) Now add to that one-two punch this new attack on your prosecutorial immunity in the form of HB 2335, which had support from a local Austin police officer who testified that he supported stripping prosecutors of their immunity even though he opposed efforts in other bills being heard this week to strip peace officers of their qualified immunity. (What can we say, except to note that stress-free cognitive dissonance at the state capitol is a real thing.)

So, how should all this be resolved by policymakers? In our experience, even when a prosecutor’s office tends to handle certain cases a certain way, there are very few absolutes in prosecution. Time and time again we have seen prosecutors use statutes they aren’t necessarily in love with when the case demands it or make exceptions from their usual practice when justice demands it in an individual case. But we are also living in a political culture that seems to be increasingly less tolerant of nuance or compromise or settlement, replacing those qualities with a preference for simplified absolutes: black or white, no gray. The challenge for you is to decide whether or how you want to protect your discretion and authority in such a dichotomous world, because a bill to remove your immunity—even if only initially targeted at a type of case that may have never crossed your desk—directly threatens both of them.

House Bill 2335 was left pending in the House Judiciary & Civil Jurisprudence Committee (membership available here), but this is not the last time this topic will be discussed. If you haven’t already done so, now might be a good time to sit down with your local legislators and educate them about what you do and how you do it.

State of the Judiciary Address

On Tuesday, Texas Supreme Court Chief Justice Nathan Hecht gave his State of the Judiciary Address online. He bragged on how well the court system handled the pandemic compared to some of our sister states, but he also noted that the number of jury trials in Texas dropped from ~9,000 in 2019 to fewer than 250 in 2020. As a result, he predicts we have a three-year backlog on our criminal and civil dockets right now, and he’s seeking more money for visiting judges to help work through that.

The chief also mentioned several policy priorities for the judiciary, including:

• allowing greater use of remote technology in post-pandemic courtrooms (SB 690 by Zaffirini and HB 3611 by Leach);
• bail reform like that proposed by HB 20 by Murr and HJR 4 by Kacal (but not SB 21 by Huffman); and
• gathering data on racial disparities in the court system and improving judicial training.

To watch the full 25-minute address for yourself, click here.

What Schoolhouse Rock left out

That old “How a bill becomes a law” episode was entertaining, but it neglected to mention that the entire legislative system is set up to kill bills, not to pass them. That’s why only 20 percent or so of filed bills ever become law. The primary hurdle is at the committee level—which is why we spend so much time updating you on what is being heard there—but only slightly less important is what happens to bills that emerge from committee. However, that process varies depending on which chamber you are in. Now that bills are being approved by committees, allow us to remind you how things work from there.

In the upper chamber, bills that have a committee’s stamp of approval may be placed on the Intent Calendar to indicate the author’s intent (duh) to bring the bill up for a vote on the floor. That floor consideration requires the approval of five-eighths of the senators present (or 18 of the 31 senators if all of them are on the floor). But even if a senator can clear that hurdle, there is another, larger one: The lieutenant governor, as presiding officer, has the sole authority to recognize a senator to bring up a bill. If the Lite Guv doesn’t like a bill, he can ignore the author’s request to bring up that bill and kill it—even if it has unanimous support otherwise. It’s like a veto that cannot be overridden. (And now you know one of the reasons our state’s lieutenant governor is so powerful.) This system is also why there is no way to know what bills on each day’s Intent Calendar will be heard when—it entirely up to the Lite Guv to call on senators for bills to debate on the floor.

Across the rotunda, House rules are both more (little-D) democratic and more orderly—which is one of the few times that can be said about what is usually the more boisterous lower chamber. Rather than give the speaker powers similar to those of the Lite Guv, the House uses a Calendars Committee to decide (without any public testimony) which bills already approved by a committee get debated on the House floor and in what order the lucky winners get heard. This makes the Calendars Committee members increasingly powerful as the session goes on and bills start dying on the vine due to various deadlines that kick in about six weeks from now. Therefore, if you are interested in a House bill that has received committee approval and you know any members of the Calendars Committee, now is the time to give them a ring and let them know your thoughts. Some bills will fly through House Calendars like a missile, while others will die a mysterious death with nary a fingerprint left behind to determine what happened to it—and that is a feature of this system, not a bug.

For the curious, the members of the House Calendars Committee are: Dustin Burrow (R-Lubbock), chair; Joe Moody (D-El Paso), vice-chair; Tom Craddick (R-Midland), Cody Harris (R-Palestine), Cole Hefner (R-Mount Pleasant), Ana Hernandez (D-Houston), Ben Leman (R-Iola), Jared Patterson (R-Frisco), Toni Rose (D-Dallas), Shelby Slawson (R-Stephenville), and James Talarico (R-Round Rock). Bills currently in (or headed to) that Calendars Committee include:

• HB 39 by Neave (protective orders)
• HB 187 by S. Thompson (subsequent writs w/ prosecutor’s consent)
• HB 225 by S. Thompson (subsequent writs for non-scientific evidence)
• HB 375 by Smith (continuous sexual abuse of disabled individuals)
• HB 488 by Wu (street clothes and no restraints for juveniles in court)
• HB 567 by Frank (limiting termination of parental rights)
• HB 686 by Moody (“second look” early parole consideration for certain offenders)
• HB 744 by Collier (law enforcement agency duty to provide information to prosecutor)
• HB 789 by Geren (evidence tampering punishment in misdemeanor cases)
• HB 873 by Collier (limits on dog tethering)
• HB 1071 by Harris (regulating therapy dogs in court)
• HB 1193 by Wu (sealing of certain juvenile determinate sentence records)
• HB 1403 by Ann Johnson (stacking of sentences)
• HB 1441 by Schaefer (State’s burden to disprove innocent owner in asset forfeitures)
• HB 1540 by S. Thompson (omnibus human trafficking bill)

As the session goes on, we’ll continue to let you know when some tracked bills get to the Calendars Committee; after that, it’s up to you to act on that information. If you have any questions on how to do that, contact Shannon or Rob.

Bill filings

To view the status of bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon.

Floor action

The House passed HB 1024 by Geren (legalizing alcohol-to-go) over to the Senate, while the Senate sent to the House some random bills we aren’t tracking closely.

Upcoming floor calendars

The House and Senate will reconvene on Monday. The House has posted a calendar for Tuesday’s floor debates, but no bills of interest are on it. The Senate Intent Calendar includes SB 12 by Hughes (internet censorship), SB 155 by Perry (purging voter lists), SB 516 by Huffman (ATM damage = 3^rd-degree felony), SB 768 by Huffman (fentanyl delivery enhancements), and a half-dozen anti-abortion bills, some of which include new civil and/or criminal sanctions.

Committee news

The House Criminal Jurisprudence Committee approved several bills on Monday, including HB 1441 by Schaefer (State’s burden to disprove innocent ownership in asset forfeitures). For more approved bills, see the list of those now in the Calendars Committee (above). A House committee also approved HB 976 by Price (regional specialty courts), while HB 2190 by White (diversion/deferral of some SJF drug cases) was withdrawn for further revision.

The Senate Jurisprudence Committee voted out SB 343 by Kolkhorst (FV bond conditions in TCIC), SB 516 by Huffman (ATM damage = 3^rd-degree felony), and SB 768 by Huffman (fentanyl delivery enhancements). The Senate Criminal Justice Committee will hold its first meeting on Tuesday morning.

Committee notices

The following bills have been posted for hearing in committee this week. For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.

Monday, March 29

House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 890 by VanDeaver authorizing remote juvenile proceedings over a party’s objection
HB 2669 by Guillen relating to the confidentiality of a child’s misdemeanor records
HB 2772 by Campos relating to the scope of crime victims’ compensation
HB 2924 by Dutton limiting involuntary terminations in CPS cases
HB 2926 by Parker relating to reinstatement of parental rights
HB 3165 by Meyer relating to an affirmative defense to truancy
HB 3315 by Crockett mandating counties create diversion programs for 17-year-old offenders

House Criminal Jurisprudence – 1:00 p.m. or upon final adjournment, Room E2.010 [*note earlier time*]
HB 9 by Klick increasing punishments for obstructing highways during a protest
HB 217 by S. Thompson expanding post-conviction DNA testing
HB 462 by Shaheen increasing penalties for prostitution involving trafficking victims
HB 492 by Wu prohibiting certain no-knock warrants
HB 1002 by Lucio III barring the use of hypnotically-induced testimony
HB 1038 by Beckley repealing the criminal offense of homosexual conduct
HB 1156 by Thierry creating the offense of financial abuse of an elderly individual
HB 1272 by Crockett prohibiting certain no-knock warrants
HB 1599 by Jarvis Johnson barring the use of hypnotically-induced testimony
HB 1717 by S. Thompson prohibiting retaliation against prosecutors for Brady obligations
HB 2315 by Turner relating to street racing
HB 2446 by Canales relating to reimbursement of certain appointed counsel expenses
HB 2448 by Canales relating to discharging a surety’s liability on a bail bond
HB 2631 by Krause limiting the use of in-custody informant testimony
HB 2725 by Martinez Fischer criminalizing vaccine scams
HB 2864 by Collier relating to the Texas Indigent Defense Commission
HB 3022 by Herrero authorizing statutory county courts to process expunctions
HB 3224 by Leach exempting certain peace officers from exclusion under The Rule
HB 3478 by Rose relating to street racing (pulled from consideration)
HB 3830 by Collier relating to a prosecutor’s continuing Brady duties
HB 3875 by Crockett narrowing the definition of compelling prostitution

Tuesday, March 30

House Human Services – 8:00 a.m., E2.030 [*updated*]
HB 3041 by Frank authorizing a pilot program alternative to child removal in CPS cases
HB 3379 by Leman revising the duty to report child abuse and neglect
HB 3820 by Klick limiting medical consulations in child abuse investigations

Senate Criminal Justice – 8:30 a.m., E1.016
SB 36 by Zaffirini relating to hazing
SB 48 by Zaffirini mandating supervision conditions in certain animal cruelty cases
SB 111 by West clarifying law enforcement duties to provide information to prosecutors
SB 112 by West relating to applications for and orders installing mobile tracking devices
SB 237 by Bettencourt adding certain criminal trespasses to the cite-and-release statute
SB 281 by Hinojosa barring hypnotically-induced testimony at trial
SB 476 by Nelson mandating sexual assault review teams in all counties

Senate Veterans Affairs and Border Security – 8:30 a.m., 2E.20
SB 623 by Blanco relating to sexual assaults by or against Texas Military Forces members
SB 1093 by Creighton relating to veterans treatment court programs
SB 1179 by Birdwell relating to juror pay donations

Wednesday, March 31

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.014
HB 1177 by Crockett prohibiting the imposition of court costs/fees on indigent defendants
HB 1837 by Gonzalez banning profiling of motorcyclists by peace officers
HB 2441 by White cleaning up various fine, fee, and court cost changes from last session
HB 2485 by Herrero exempting cops and firefighters from jury service
HB 2702 by Landgraf revising information in OCA’s protective order registry
HB 2703 by Landgraf removing certain information from OCA’s protective order registry
HB 3295 by S. Thompson authorizing local prosecutors’ DTPA actions vs massage parlor
HB 3377 by Krause allowing the recovery of attorney’s fees in certain civil cases

House Corrections – 8:00 a.m., E2.026
HB 1640 by Sherman relating to medication-assisted opioid treatment at TDCJ
HB 3002 by Burns authorizing pre-arrest theft diversion programs by merchants
HB 3432 by Murr relating to the civil commitment of sexually violent predators

Senate State Affairs – 9:00 a.m., E1.028
SB 56 by Zaffirini making confidential federal prosecutors and public defenders’ personal information
SB 1025 by Birdwell revising disaster declaration powers and authority
SB 1134 by Hughes relating to address confidentiality of certain federal officials
SJF 45 by Birdwell proposing a constitutional amendment on disaster powers

Thursday, April 1

House Elections – 8:00 a.m., E2.028 [*new*]
HB 6 by Cain relating to election fraud

Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
(not posted yet; check here for future postings)

House Homeland Security & Public Safety – 10:30 a.m. or upon adj., E2.030 [*new*]
HB 929 by Sherman, aka the “Botham Jean Act”, aka “Bo’s Law”
HB 1550 by Cyrier, the TCOLE Sunset re-authorization bill
HB 1920 by Capriglione relating to firearms in a secured area of an airport
HB 2650 by Jarvis Johnson regarding placement of children after an arrest

Prosecutor rotation

Thanks to Cherokee DA Elmer Beckworth and Midland DA Laura Nodolf and the assistant prosecutors who came to Austin this week to work on legislation.

If you want to see how the sausage is made, contact Shannon for details on how to get involved in Austin. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.

COVID and the capitol

For those coming to the legislature in the remaining weeks of the session, remember that Senate committee rooms require proof you are negative for COVID-19 for entry or to provide testimony. You can obtain that proof in the M*A*S*H tents outside the north doors of the capitol either by submitting to a free rapid test or by presenting a COVID-19 vaccine card and matching ID. Don’t forget to factor that additional time into your visits.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Texas’ George Floyd Act seeks to reform violent police behavior. But a sticking point centers on protecting officers from lawsuits.” (The Texas Tribune)
• “Child Protective Services draws scrutiny from Texas lawmakers eager to trim its duties, powers” (Dallas Morning News)
• “The rioter next door: How the Dallas suburbs spawned domestic terrorists” (The Washington Post [reprinted for free courtesy of The Texas Tribune])
• “Mass shootings are soaring, with Black neighborhoods hit hardest” (The Trace)
• “Lawmakers, mermaids, pie, elephants, pen pals and Dr Pepper” (Austin American-Statesman)
• “‘Back the Blue Act’ passes Texas Senate committee as GOP seeks to rein in defunding efforts” (Dallas Morning News)
• “Virginia, with 2^nd-most executions, outlaws death penalty” (AP)

Rural prosecutor internships

The Deason Criminal Justice Reform Center at SMU Law School is launching a program to place law school interns with rural prosecutors and public defenders this summer. For more details, see this posting on our website.

Welcome, Stephanie!

TDCAA has a new research attorney! Stephanie Huser started this week after taking the bar exam last week. (Can you imagine having to take that test mid-pandemic and post-winter freeze?!?) We are thrilled to have her on board, and she is ready to take your legal questions. You can reach her at our office number (512/474-2436) or [email protected].

Quotes of the Week

“In Texas, we have to stand for public safety. … Law enforcement, innocent individuals, and small businesses have suffered from criminal conduct over the past year, and frankly, prosecutors should be liable for those damages when justice is willfully not served by design.”
            —State Rep. Mayes Middleton (R-Wallisville), laying out HB 2335 in committee, his bill to impose personal liability upon prosecutors who fail to prosecute certain riot cases. (Committee footage available here; the 75-minute-long discussion of the bill starts around the 0:38:30 mark.)

“I am concerned about the number of alcohol-related accidents and deaths in the state of Texas.”
            —State Rep. Matt Shaheen (R-Plano), explaining his lone “nay” vote against HB 1024 by Geren (R-Fort Worth), the alcohol-to-go bill arising out of pandemic practices.

“It may be back to the same situation you had over the interim, where the Legislature [adjourns] sine die, and it’s again back in the hands of the governor, without the Legislature having anything to say about it.”
            —State Rep. Donna Howard (D-Austin), raising concerns that recently-approved federal recovery funds may not arrive from Washington, D.C., quickly enough for the Legislature to appropriate it before the end of the session.

“All we do is go on Twitter and TV and call the other side douchebags.”
            —Congressman Adam Kinzinger (R-IL), bemoaning the sorry state of political interaction in the country right now.

###

[* = Updated Friday, March 19 at 4:50pm; again at 6:30pm]

This Monday will mark the halfway point of the 87^th Regular Session. And like a lot of things in life right now, it’s going to get worse before it gets better. Read on for details.

Bail reform

The Senate Jurisprudence Committee took testimony on SB 21 by Huffman (R-Houston) yesterday after posting notice for it earlier in the week. The hearing included dramatic testimony from Harris County citizens victimized by offenders who were free on bond for other cases—sometimes on quite serious charges. Harris County DA Kim Ogg was also invited to testify before the committee about the situation in her county. For a run-down of that hearing courtesy of our friends at TAC, see this article. (We’d never heard of someone out on bonds for 18 different cases, but apparently that is “a thing” in Harris County now!)

The importance of understanding the Harris County situation is that, as the largest jurisdiction in the state, Harris County’s criminal justice problems are often the tail that wags the dog for the rest of Texas. With a governor, lieutenant governor, and several powerful legislators also being from Harris County, it’s a certainty that any “bail bond reform” passed by this legislature will address this situation of Harris County judges granting violent and/or sex offenders personal bonds or low cash/surety bonds for offense after offense after offense.

As for the hearing itself, the bill was laid out by its author (from Harris County, natch) with the caveat that it is a work in progress, and prosecutors from other jurisdictions who testified either for (Comal and Fort Bend Counties) or against (Bexar County) the filed bill did so based on the impact the proposed changes might have on their specific counties. That is a great example of how prosecutors engage at the Lege—we can tell you (as best we can) what is going on, but you have to pay attention to these measures as they move through the process, decide how they impact your jurisdiction, and let your local legislators know that.

With that in mind, now might be a good time for some of you to watch how things went yesterday. The testimony on SB 21—which was the first bill taken up by the committee—lasted a little more than three hours. You can watch the entire hearing, or you can focus on the testimony from prosecutors from Harris County (0:23:30 to 1:02:20), Comal and Fort Bend Counties (1:23:40-1:34:05), and Bexar County (1:43:45–1:49:00). You might also want to familiarize yourself with the filed version of SB 21 and competing House proposals in the form of HB 20 by Murr and HJR 4 by Kacal, the latter of which would amend the state constitution to authorize—or in some cases, require—the denial of bail in more types of cases than currently permitted. Those House proposals have not been set for a hearing yet, but they might soon be.

And as always, you can follow up with Shannon for more information as needed.

Prosecution powers

As if you needed more proof that Harris County events often drive discussions at the Lege, the Senate Local Government Committee took testimony Monday on SB 252 by Bettencourt (R-Houston), a bill to grant the state attorney general novel (read: unconstitutional) original concurrent jurisdiction over abuse of office crimes. A summary of that bill’s discussion and the unique situation it is trying to address can be found in this Houston Chronicle article, and video of the hearing can be viewed at this archived link (discussion on SB 252 begins at the 0:44:45 mark). There was a quite interesting discussion about who can—or should—prosecute public officials, but we found it interesting that not once during the discussion was there any mention of the AG’s office offering assistance to the Harris County DA in that specific case discussed in the Chronicle article, as is already authorized under the law the bill would amend.

If you want a peek into how these issues are being considered in the Texas Senate, watch that video (linked above) for yourself. And if you were unable to attend the hearing but would like to weigh in on SB 252, the committee membership is listed here; it next meets on Monday at 1:00 p.m. to vote on this and other bills.

Bill filings

The deadline to file general bills ended last week and the final tally was impressive: More than 2,600 bills were filed the week before the deadline, and more than 7,000 bills and resolutions were filed in all. That makes this 87^th Regular Session the third most voluminous session for bill filing in Texas history. (It also shows how much legislative work can be done from home via electronic bill filing. Isn’t technology great?) Furthermore, we are tracking a record-high 1,590 bills right now, which constitutes more than one out of every five bills filed this session. (It’s hell being popular, ain’t it?) That high bill load—combined with pandemic limitations, a new committee schedule, and the resumption of trial work in your local courthouses—will make it more difficult for both us and you to stay on top of happenings at the capitol, but we’ll do our best to get you the information you need to act on the issues that are important to you.

Meanwhile, to view the bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon.

Floor action

The Senate started sending bills to the House this week, including SB 25 by Kolkhorst guaranteeing a right to in-person visitation for certain facility residents, and SB 2142 by Hughes, a bill on energy re-pricing that was filed, referred to committee, voted from committee, and voted out of the full Senate in a single day. The House will start passing its bills to the Senate next week, and then the real fun will start.

Committee news

Bills to emerge from committees this week included: HB 39 by Neave (protective orders), HB 817 by Moody (authorizing Keno in Texas restaurants and bars), and HB 1024 by Geren (booze to go). So far, none of the bills heard in the House Criminal Jurisprudence Committee have been called up for a vote, but that is likely to change by Monday, so if you have opinions about bills already placed before the committee on topics like civil asset forfeiture, hate crimes, subsequent writs, and more, check our past updates (archived here) and weigh in with the committee members directly as you see fit. (Note that bills originally posted for hearing to require the recording of grand jury testimony (HB 1313 by Deshotel) and the appointment of counsel before magistration (HB 277 by Collier) were withdrawn and have not been heard by the committee.)

For those interested, a review of this week’s hearing on asset forfeiture bills by our friends at TAC can read here.

Committee notices

The following bills have been posted for hearing in committee this week. For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.

Monday, March 22
House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 162 by Thierry prohibiting prosecution of prostitution/sellers under 18 years old
HB 967 by Dutton raising the age of juvenile jurisdiction to include 17-year-olds
HB 1430 by Dutton changing juvenile jurisdiction to only 12- to 17-year-olds
HB 1783 by White exempting children under 12 from juvenile jurisdiction
HB 486 by Wu raising the age of juvenile jurisdiction to include 17-year-olds
HB 487 by Wu exempting children under 12 from juvenile jurisdiction
HB 1709 by Neave removing runaways from consideration as status or CINS offenders

House Criminal Jurisprudence – 2:00 p.m. or upon final adjournment, Room E2.010
HB 239 by Murr relating to drug-free zones
HB 246 by Murr clarifying the definition of “sexual contact” in educator/student cases
HB 376 by Smith increasing the punishment for improper sexual activity with a person in custody
HB 402 by Hernandez directing certain forfeiture funds to trafficking victim services
HB 489 by Wu creating a new admonition regarding jury punishment elections
HB 703 by Gervin-Hawkins allowing stacking of all injury to a child cases
HB 816 by Krause reducing various non-Penal Code punishments and creating a commission to study other penal laws for further revision
HB 836 by Dutton imposing a new requirement for resisting arrest charging instruments
HB 842 by Moody allowing criminal history disclosures to be made to the defense
HB 1086 by Moody creating 4^th-degree felonies and reducing various drug felonies to misdemeanors
HB 1293 by Smithee authorizing new trials at any time with a prosecutor’s consent
HB 1352 by Crockett accelerating release times under CCP Art. 17.151
HB 1394 by White expanding eligibility and granting of orders of non-disclosure
HB 1509 by Murphy enhancing certain repeat misdemeanors to felonies
HB 1605 by Dutton creating an inmate legal services office at TDCJ
HB 1773 by Cook creating an offense for obtaining unneeded medical treatment by deception

Tuesday, March 23 (No relevant postings)

Wednesday, March 24
House Public Health – 8:00 a.m., JHR 140
HB 1694 by Raney creating a “good Samaritan” defense for drug possession charges
HB 2051 by Klick relating to public access to hospital investigation materials

House Corrections – 8:00 a.m., E2.026
HB 379 by Smith delaying parole eligibility for certain inmates convicted of online solicitation
HB 465 by Shaheen delaying parole eligibility for certain inmates convicted of human trafficking
HB 2190 by White mandating pretrial diversion or deferred adjudication for certain state jail felony offenders
HB 2386 by Moody making public certain information about execution drugs

*House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.014* [updated]
HB 2549 by Dutton relating to suits against certain governmental employees
HB 1493 by Herrero relating to an entity name that falsely implies gov’t affiliation
HB 2709 by Julie Johnson regarind applications for court-ordered MH services
HB 2335 by Middleton creating civil liability for prosecutors who fail to prosecute rioters

Thursday, March 25
*House State Affairs – 8:00 a.m., E1.004 (Capitol Extension Auditorium)* [updated]
HB 393 by Moody redefining Penal Code definition of “bet” to exclude fantasy sports
HB 749 by Middleton barring certain legislative activities w/ local gov’t funds
HB 1804 by Meyer barring settlements of certain harassment claims w/ public funds
HB 1925 by Capriglione prohibiting camping in certain public places
HB 1960 by Slawson relating to local gov’ts that “defund the police”
HB 2362 by Harris relating to local gov’ts that “defund the police”
HB 3151 by Leman relating to local gov’ts that “defund the police”

*House Elections – 8:00 a.m., E2.028* [updated]
HB 6 by Cain relating to election integrity; creating new election crimes, enhancing existing crimes, and creating a new method for appointing pro tem prosecutors

Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
(not posted yet; check here for future postings)

*House Homeland Security & Public Safety – 10:30 a.m. or upon adj., E2.030* [updated]
HB 54 by Talarico barring law enforcement agency contracts with TV shows
HB 88 by S. Thompson, the George Floyd Act
HB 127 by Ortega relating to the unlawful carrying of certain firearms
HB 788 by Geren making 9-1-1 operators eligible for certain treatment court programs
HB 830 by S. Thompson limiting officers’ authority to arrest for certain offenses
HB 1069 by Harris authorizing certain first responders to carry firearms on duty
HB 1094 by Oliverson relating to carrying a handgun without a license
HB 1238 by Biedermann authorizing unlicensed carrying of a handgun
HB 1396 by White regarding the report of misconduct to TCOLE
HB 1911 by White authorizing unlicensed carrying of a handgun
HB 1927 by Schaefer authorizing unlicensed carrying of a handgun
HB 2462 by Neave relating to forensic sexual assault exams
HB 2555 by Neave relating to the statewide tracking system for sexual assault exams
HB 2675 by Guillen relating to a license to carry a handgun for certain victims
HB 2733 by Tinderholt creating a database for reporting and tracking DWI interlock conditions and violations
HB 2900 by Hefner authorizing unlicensed carrying of a handgun

Prosecutor rotation

Thanks to Comal CDA Jennifer Tharp, Harris DA Kim Ogg, Bexar CDA Joe Gonzales, Kleberg/Kenedy DA John Hubert, 47^th DA Randall Sims, 106^th DA Philip Mack Furlow, and numerous other assistant prosecutors from those and other offices for coming to Austin to weigh in important issues this week.

If you want to come to Austin to see how the sausage is made, contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.

COVID and the capitol

For those coming to the legislature in the remaining weeks of the session, remember that Senate committee rooms require proof you are negative for COVID-19 for entry or to provide testimony. You can obtain that proof in the M*A*S*H tents outside the north doors of the capitol either by submitting to a free rapid test or by presenting a COVID-19 vaccine card and matching ID. Don’t forget to factor that additional time into your visits.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “In Texas’ top 10 scandals of the past century, how does the 2021 electricity crisis rank?” (Dallas Morning News)
• “Why Is Art Acevedo Leaving Houston?” (Texas Monthly)
• “New bill would give AG Ken Paxton, accused of abuse of office, new power to prosecute same crime” (Dallas Morning News)

Quotes of the Week

“I definitely think it is really more a ploy in the court of public opinion than a sound legal strategy.”
            —Amy Kristin Sander, media law expert at UT’s School of Journalism and Media, on the claims by two North Texas men arrested for entering the Capitol during January’s riot that they were only there as “alternative news journalists” to document events.

“I went from being on a very hot seat to having one of the safest jobs in Texas. I think it’s just going to be me for a while.”
            —Arthur D’Andrea, the (formerly) lone remaining member of the Public Utility Commission, who later tendered his resignation after Texas Monthly obtained comments from him in which he said the PUC would resist state senate efforts to “re-price” consumer energy bills incurred during the recent winter storm.

“Unfortunately, I noticed that my deed had such language in my neighborhood. I didn’t know whether to burn the house down or to come pass the legislation, and we chose this positive path.”
            —State Sen. John Whitmire (D-Houston), co-author of SB 30 by West (D-Dallas), which would make it easier for property owners to remove racially discriminatory language from old deed records purporting to bar ownership by non-whites. The bill is one of Lt. Gov. Patrick’s 31 priority issues this session and it has already been voted favorably from committee.

“Yeah, it is a weird town when mommy and daddy are fighting.”
            —Unidentified Republican, commenting upon the on-going Abbott-Patrick rift this session (as reported by Dallas Morning News Austin bureau chief Bob Garrett).

“I am not running against Greg Abbott, OK? He and I work very well together, we’ve had a very successful run together, and I don’t think there’s much daylight on this.”
            —Lt. Gov. Dan Patrick (R-Houston), responding to rumors that his recent policy fights with Governor Abbott may be a preview of a primary battle in 2020.

“Am I considering that? Sure. What I’ve got to choose for myself is, [do] I want to get into a leadership role in the next chapter of my life?”
            —Matthew McConaughey, Oscar-winning actor and famous Austin resident, when asked by Today Show co-host Al Roker whether he was considering a run for governor of Texas.

“My concern is—it’s obvious in this case, probably somebody should do something—but in our history, in our state’s history, occasionally we get some renegade attorney generals who, if they really didn’t like you, could harass the individual official.”
            —State Sen. Robert Nichols (R-Jacksonville), expressing doubts about the provision of SB 252 by Bettencourt (R-Houston) that would give the attorney general original criminal jurisdiction over abuse of office prosecutions.

###

[Updated and corrected March 13, 2021]

The 87^th Regular Session is 40 percent done on the calendar but only 20 percent done based on its output, so while many of you enjoy Spring Break next week, the Lege will be making up for lost time. That means committee hearings on bills about grand juries, civil asset forfeiture, hate crimes, discovery, and human trafficking on Monday, and an expansion of AG prosecution authority on Tuesday. Read on for details!

COVID and the courts

Last Friday, we sent out our Week 8 update with the wry observation that “[k]nowing our luck, new guidance from that court will probably be issued 30 minutes after we hit ‘send’ on this update.” In fact, it only took 13 minutes. Are we good, or what?

Now that the governor’s Executive Order GA-34 has taken effect to “re-open Texas 100 percent” and “eliminate statewide mask mandates,” some are realizing that it doesn’t necessarily do that in practice. Not only are private businesses free to adopt policies for their property, but those who run your local courthouses and courtrooms can still decide whether or when to require masks, distancing, temperature checks, and whatnot.

In that vein, the Texas Supreme Court issued its 36th Emergency Order of the COVID-19 pandemic last Friday afternoon. In a nutshell, the order:

• rescinds prior edicts that court proceedings must be conducted remotely (while still encouraging it);
• requires a court to permit remote participation of some parties or witnesses upon request and a showing of good cause; and
• defers to local presiding judges on what health and safety precautions should be imposed in local courtrooms and courthouses.

As with past orders from that court, the Office of Court Administration has issued court operation guidance for implementing this new emergency order. In addition to imposing several specific requirements for in-person jury proceedings, those guidelines also prohibit judges in jailable criminal cases from conducting any remote jury proceedings without the consent of the prosecution and defense. For more details, please refer to OCA’s Court Operations Guidelines webpage.

Of course, all this talk about in-person proceedings is fine in theory; how you convince your local constituents to come serve on in-person grand juries and petit juries is another matter altogether. We have no easy solutions for that problem, so … good luck with that!

COVID and the capitol

For those coming to the legislature this spring, things remain the same (for now). Rapid COVID-19 testing is available for visitors and masks are “encouraged” while doing business in the building, according to the latest information from the State Preservation Board (which operates the state capitol). However, each chamber governs the rules and conduct of its own members, and neither has announced a change in those rules yet, so we will proceed accordingly until told differently.

Money for nothing and your hot checks for free

The “American Rescue Plan Act of 2021” finally passed Congress this week. The $1.9 trillion aid package includes almost $17 billion in pandemic aid for our state government and another $10+ billion for city and county governments in Texas. This one-time windfall has the potential to totally change the tenor of the state and local budget discussions. As one pundit put it, after all the money is handed out, it will be as if the pandemic recession never happened (at least from the perspective of government budgets).

What that means for your office remains to be seen. Can counties use some of that funding to help you add staff to address your docket backlogs caused by the pandemic? Perhaps. (That was a question that Congressman Pete Sessions (TX-17) asked the Treasury Department this week, but without a clear answer.) This latest round of federal government largesse does appear to come with fewer spending restrictions than past aid packages, but there are still plenty of details to work out. More information will follow once the final version of the package is reviewed. In the meantime, you can check out TAC’s analysis of the new law that was posted last week and includes a list of what each Texas county might receive.

Senate Finance subcommittees

The Senate Finance Committee announced its subcommittee work groups, so we now know that the senators tasked with going over the budget for the judicial branch (plus other public safety agencies) will be Sens. Joan Huffman (R-Houston), chair; Donna Campbell (R-New Braunfels), Charles Schwertner (R-Georgetown), and John Whitmire (D-Houston). As previously reported, all funding items relating to prosecution are currently fully funded in the Senate version of the next budget, but if one of your senators is on this subcommittee, consider touching base with Rob so he can keep you posted if anything goes south during the session.

Committee news

Committees started taking testimony on bills this past week, but most were left pending. If you were unable to come to Austin to testify for or against a bill we notified you about last week but you still want to weigh in, better start making those phone calls to committee members ASAP because last week’s bills might be voted upon as soon as Monday.

Committee notices

The following bills have been posted for hearing in committee this week. For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name.

Monday, March 15
Senate State Affairs – 9:00 a.m., Senate Chamber
SB 9 by Paxton creating new civil and criminal penalties relating to abortion
SB 798 by Nelson relating to birth records and DLs for victims of family violence
SB 808 by Hughes relating to the recovery of attorney’s fees in civil cases
SB 1173 by Hancock creating new criminal penalties relating to abortion
SB 1647 by Perry criminalizing conduct related to certain types of abortions

House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 193 by Rose destroying juvenile records relating sex trafficking referrals
HB 488 by Wu relating to a juvenile’s physical appearance in court
HB 576 by White / HB 1319 by Noble establishing a deadline for rendering a final order in certain CPS cases
HB 1193 by Wu authorizing the sealing of certain juvenile determinate sentence records
HB 1372 by Guerra relating to a protective order applicant’s cell phone service
HB 1401 by A. Johnson authorizing juvenile sealing applications/orders to be sent electronically

House Criminal Jurisprudence – 2:00 p.m., Room E2.010
HB 73 by G. Hinojosa banning use of a “gay panic defense”
HB 132 by Canales requiring clear and convincing evidence in asset forfeiture cases
HB 148 by Toth extending the statute of limitations for certain family violence crimes
HB 251 by S. Thompson requiring a criminal conviction for asset forfeiture
HB 366 by Sherman extending the duration of hate crimes protective orders
HB 367 by Sherman relating to the reporting of and punishment for certain hate crimes
HB 375 by Smith including disabled victims w/in continuous sexual abuse offense
HB 667 by Dutton requiring a criminal conviction for asset forfeiture
HB 744 by Collier requiring law enforcement agencies to provide info to prosecutors
HB 789 by Geren changing the punishment range for tampering with evidence
HB 978 by Metcalf relating to releasing unclaimed property to an owner’s victim|
HB 1313 by Deshotel requiring the recording of all grand jury testimony
HB 1402 by A. Johnson revising hate crimes based on orientation or gender identity
HB 1441 by Schaefer shifting burden for innocent owner defense to state
HB 1540 by S. Thompson relating to human trafficking (omnibus bill)

Senate Local Government – 2:00 p.m., Extension Auditorium [*corrected]
SB 252 by Bettencourt granting the AG original concurrent prosecution jurisdiction over abuse of office crimes

Tuesday, March 16
(no relevant hearings)

Wednesday, March 17
House Corrections – 8:00 a.m., E2.026
HB 408 by Metcalf relating to veterans treatment court programs
HB 460 by Shaheen barring the solicitation of pen pals by certain TDCJ inmates
HB 787 by Allen allowing probationers to have contact with certain prohibited persons

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.014 [*updated]
HB 167 by Ortega authorizing temporary restraining orders in certain nuisance actions
HB 228 by Murr allowing electronic recording devices in lieu of court reporters
HB 1071 by Harris regulating the use of therapy dogs in civil & criminal cases
HB 1374 by Minjarez creating privileged communications in sexual assault cases
HB 1495 by Dutton regarding attorney’s fees in certain governmental lawsuits
HB 1706 by Neave creating specialty courts for sexual assault victims? (unclear)
HB 1880 by Schofield linking judicial salaries to the consumer price index

House Licensing & Administrative Procedures ­– 10:30 a.m. or upon adj., JHR 120
HB 770 by Wu regulating poker clubs in certain counties

Thursday, March 18
Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
(not posted yet; check here for future postings)

House Homeland Security & Public Safety – 10:30 a.m. or upon adj. [*updated]
HB 8 by Pacheco relating to the hiring of peace officers
HB 496 by Wu requiring peace officers to display name and identification
HB 766 by Harless requiring certain bond information entered into TCIC
HB 1035 by Dutton limiting the use of force by peace officers
HB 1172 by Howard authorizing counseling advocates at sexual assault interviews
HB 1674 by Holland mandating blood draws after certain DWI arrests

Prosecutor rotation

Special thanks to Laurie English, 112^th Judicial DA (Ozona), for helping to man the ramparts this week!

If you want to come to Austin to see how the sausage is made, contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.

Bill filing deadline

The deadline to file general bills this session is 6:00 p.m. today. There will be upwards of 2,000 bills filed this week alone, so please be patient with us as we slog through them all.

We are caught up with most bills filed through the early part of this week and—as is common every session—some very interesting bills are being filed right at the deadline. Among those we noted from this past week are the following new bills or new twists on old ideas:

HJR 4 by Kacal (constitutional amendment to allow denial of bail in some cases)
HB 20 by Murr (governor’s revised bail bond reform proposal; enabling law for HJR 4)
HB 2916 by Schofield (OAG prosecution of public order and public corruption crimes—as we predicted)
HB 3392 by Moody (judicial commutation on motion of a prosecutor)
HB 3508 by Ellzey (OAG prosecution of certain riot-related crimes)
SB 10 by Bettencourt (ban on local government funds being used to impact legislation)
SB 23 by Huffman (ban on defunding the police)
SB 24 by Huffman (transparency in peace officer background and hiring)
SB 990 by Gutierrez (notice and hearing before court can increase bail)
SB 1119 by N. Johnson/HB 3421 by G. Hinojosa (defense lawyer invited into grand jury)

We hope to have a more thorough review of bill filings next week (assuming we can still see straight after reviewing all of them). Meanwhile, to view the bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Analysis: How Gov. Greg Abbott’s attack on ‘defunding the police’ has divided Texas Democrats” (The Texas Tribune)
• “Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic” (The Texas Tribune)
• “As Federal Courts Strike Down Bail Practices, Texas Chief Justice Proposes Reforms” (Arnold Ventures)
• “12 jurors must set aside what they saw in the George Floyd video. How will lawyers find an impartial jury?” (USA Today)
• “Michigan Zoom hearing adjourned when attorney spots alleged assaulter, victim in same home” (USA Today)

Looking ahead

The House will re-convene on the floor Monday afternoon (and may even vote on bills later in the week), while the Senate re-convenes on the floor on Tuesday. Now that bill filing is done, all eyes turn to committee hearings. This is the time of the session when the public—and you—can have the greatest impact on legislation. (Game on!)

Free CLE opportunity

The Texas Tech Law Review is hosting its Annual Criminal Law Symposium on April 8–9, 2021. The two-day symposium will cover double jeopardy, the Fourth Amendment, confessions, and substantive criminal law. For more information about this free live-streamed CLE event, please go to the Symposium registration page. If you have any questions, please contact Neely Brown at [email protected].

Quotes of the Week

“I’m a libertarian and believe there are very few things government should do, [but] power and water and sewage are things that government should be doing.”
            —Bryan Frasier, a computer engineer from Tarrant County, as quoted in a story on the results of a new Dallas Morning News/UT-Tyler poll released in the wake of the recent storms and resulting power and water outages.

“It looks almost like the district had a hernia across [I-]35 to encompass my house.”
            —Overheard at a meeting of the Senate Redistricting Committee this week.

“There isn’t any specific provision in the law that places that responsibility on a certain agency or party. It’s not clear if it’s the role of the judge, the sheriff, the police, or a prosecutor. Because of that, nothing happens. That is why we need legislation to address this issue.”
            —Staley Heatly, 46^th Judicial DA (Vernon), expressing support for legislation on gun surrender protocols for family violence offenders.

“We hope this isn’t a case of moving too fast, too soon.”
            —Grant Scheiner, president of the Texas Criminal Defense Lawyers Association, urging judges to remain vigilant against the coronavirus in the wake of the state supreme court’s latest emergency order lifting many of its previous restrictions on court proceedings.

###

No power, no water, no masks, no problem! God bless the good people working in the Texas tourism industry right about now.

COVID and the courts

To the surprise of no one who has been closely following Texas GOP intraparty politics, the governor announced this week that, effective Wednesday, March 10, 2021, he is rescinding past Executive Orders GA-17 (“Strike Force to Open Texas”), GA-25 (limits on in-person jail visitation), GA-29 (statewide face mask mandate), GA-31 (hospital capacity), and GA-32 (partial re-opening) and allowing private businesses to fully reopen without restriction. And in addition to rescinding the statewide face mask mandate, the governor is also prohibiting local governments from enforcing any general mask mandates on their citizenry. Note, however, that the new emergency order does not revoke Executive Order GA-13 (suspension of some jail releases per CCP Arts. 15.21, 17.03, 17.151, 42.032, or 42.035). For all the details of the new order, read the text of Executive Order GA-34 itself (it’s not very long).

That said, one place that is still not “open for maskless business” is your local courtrooms. Current Texas Supreme Court Emergency Order No. 33 (Jan. 14, 2021) still requires Texas courts to abide by the Office of Court Administration’s Guidance for All Court Proceedings During COVID-19 Pandemic (last updated Dec. 31, 2020), and that guidance includes mandated face coverings for in-person court business. (Whether that is enforceable in real life has never been very clear, but as we all know, just a because a judge can’t make you do something doesn’t mean she can’t make you wish you had done something.) We know the Texas Supreme Court met this week to discuss potential changes to its emergency orders in light of the governor’s change of course, but as of when this update went to press, there were no changes to report. (Knowing our luck, new guidance from that court will probably be issued 30 minutes after we hit “send” on this update, so check this website for the latest from that court.)

Committee news

Most House committees held their organizational meetings this week in preparation for taking up bills next week—a key step in the legislative process that would normally start in late February. But this is not a normal session, and the capitol’s pandemic precautions will be put to the test when more members of the public come to the building to testify. Let’s check in again at the end of the month to see how things go. (More on testifying below, for those interested.)

One item of note from yesterday’s House Elections Committee meeting involved witnesses from the Office of the Attorney General testifying that they would be amenable to being granted the authority to request that a district court convene a special OAG grand jury for election fraud purposes. That will probably show up soon in bill format, so now is a good time to start deciding how you feel about that.

Committee notices

Now that committees are getting down to business, we will try to provide you with weekly notice of relevant bills being heard in the upcoming week. Due to space limitations, we won’t list all the bills posted for a hearing, but you can click on the underlined hyperlink in the committee’s name for a full listing of each notice, including more bill information (such as the text of a proposal) that can be accessed by clicking on any bill number in that online notice.

NEW THIS SESSION: Some important committees will meet on Mondays, which makes Friday afternoon notice not very helpful to those of you who might want to get involved on a bill. Therefore, we will try to send you short emails on Thursdays with information about the upcoming Monday’s hearings (as well as re-printing those Monday bills in our usual Friday update). You should have received your first such bonus notices yesterday.

Monday, March 8
House Juvenile Justice & Family Issues
10:00 a.m., Room E2.014, Capitol Extension
HB 39 by Neave, an omnibus protective order bill
HB 454 by Metcalf creating juvenile family drug court programs
HB 567 by Frank limiting parental right terminations
HB 686 by Moody authorizing early parole for certain youthful violent offenders now in prison

House Criminal Jurisprudence
2:00 p.m., Room E2.010
HB 187 by S. Thompson authorizing subsequent writs w/ a prosecutor’s consent
HB 225 by S. Thompson allowing a subsequent writ for non-scientific evidence
HB 252 by Moody requiring unanimity for capital special issue verdicts for the defense
HB 275 by Moody authorizing subsequent scientific writs for punishment issues
HB 277 by Collier requiring appointment of counsel before magistration (withdrawn)
HB 372 by Gonzalez on appointment of habeas counsel w/ a prosecutor’s consent
HB 569 by Sanford expanding jail credits for certain Class C offenders
HB 679 by Gervin-Hawkins relating to standards for appointed counsel in capital cases
HB 689 by Collier relating to magistration using remote video technology
HB 743 by Collier establishing a maximum assigned caseload for defense attorneys
HB 873 by Collier relating to unlawful restraint of a dog

Tuesday, March 9
House Business & Industry
8:00 a.m., E2.028
HB 390 by S. Thompson relating to human trafficking in commercial lodgings
HB 455 by Deshotel barring criminal history inquiries of job applicants by employers

House Judiciary & Civil Jurisprudence
10:00 a.m., E2.026
HB 976 by Price authorizing the appointment of regional specialty court judges

Wednesday, March 10
House Corrections
8:00 a.m., E2.026
Invited testimony from TDCJ, Texas Probation Association, et al.

Thursday, March 11
House Homeland Security & Public Safety
10:30 a.m. or upon adj.
(not posted, but check here for future postings)

New committee procedures

Are you wondering how COVID precautions will impact the committee hearings process and how you might best advocate for yourself on issues that are important to you despite the changes? If so, you are not alone. Let us lay out here what we know so far based on early House committee notices.

For starters, some committees have allowed invited witnesses to testify remotely, but House rules limit that option to invited witnesses. For everyone else, normal in-person testimony is available for all House committees, and in our opinion, in-person testimony is still the best way to convey your thoughts and opinions to committee members. (As we like to say, the Lege is like most raffles—you must be present to win!) Personal appearances may be complicated by new health protocols for working in the Capitol, but as of right now, if you bring a face mask and factor into your schedule an extra 20–30 minutes of time to self-administer a rapid COVID test and await the results before entering the Capitol, everything else will resemble a more distanced version of past sessions.

One new twist is this option now included in each House committee notice: “Texas residents who wish to electronically submit comments related to agenda items on this notice without testifying in person can do so until the hearing is adjourned by visiting <url>.” (For an example of what one of those electronic comment pages looks like, see this example, which will remain open until the committee hearing is adjourned Monday afternoon.) Committee members will supposedly have access to the online comments during the hearing, and the online comments will also be posted under “handouts” several days after each committee meeting, as you can see for the March 1 hearing of the House Juvenile Justice & Family Issues Committee. (Go ahead and click the “handouts” link on that webpage for that date to see what the Lege is going to be receiving online this session, then decide if that’s how you want to interact with them this session.)

Among the many shortcomings of this new communication tool is that commenters’ opinions and positions for/against bills will not appear in the summary or the official committee witness lists or floor reports for a bill, and there is no way to guarantee committee members access or see the submitted comments (especially if hundreds or thousands of comments are submitted on a particular bill by advocacy groups). As a result, we cannot recommend using this new online comment portal except as a last-ditch, better-than-nothing option, and one that pales in effectiveness compared to coming to the capitol or calling the committee members or their offices to register your opinion. That’s how you move the needle on issues that are important to you.

Two final thoughts about the new online comment options. First, if you do use this new option, be sure to complete it using your work contact info and entering your office title for “organization/representing.” Do not say “self”, despite that being offered as an option. (That’s for private citizens.) And second, elected prosecutors might consider adopting a policy for their employees’ use of this comment option, lest some employees submit comments on behalf of their office that are not authorized by or aligned with the elected prosecutor’s position on a particular bill.

Fun stuff, eh? If you have questions about any of it, please contact Shannon.

Prosecutor rotation

Now that we have a better idea of when the Lege will really get down to business (answer: next week!), we can open up the process for elected prosecutors to come to Austin and have a say in that business. We get little notice of what bill or issue will crop up when, but if you want to come to Austin to see how the sausage is made, contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to come participate in the three-ring circus that is the Texas Legislature.

Also, some of you might be interested in watching a webinar put together by the State Bar’s Legislative and Campaign Law Section called “Introduction to the Texas Legislative Process 2021,” for which you can receive 1 hour of MCLE credit (including 0.25 hours of ethics). The webinar is being offered Friday, March 12, starting at 12:30 p.m. for a fee of $65, and registrants have roughly one month to watch the program. For more information or to register, click here.

New stuff

While it sometimes feels like most of a session is spent rehashing old, failed bill ideas, each session also sees new ideas, concepts, and policies proposed. Among some of the more interesting or noteworthy “new” bill ideas this session are these 15 proposals:

HB 3 by Burrows (pandemic disaster powers)
HB 368 by Sherman (alternative address option for prosecutor’s driver’s license)
HB 614 by S. Thompson (eliminating civil immunity for certain public servants)
HB 658 by Gonzalez (prosecutor request for tracking device installation)
HB 1313 by Deshotel (recording of all witness testimony before grand jury)
HB 1374 by Minjarez/SB 295 by Perry (privileged communications in sexual assaults)
HB 1717 by S. Thompson (ban on retaliation for prosecutors’ discharge of Brady duties)
HB 2162 by Raymond (creation of OAG conviction integrity unit)
HB 2190 by White (mandatory pretrial diversion or deferred adjudication for SJFs)
HB 2233 by Ramos (mandatory cite and release policies)
HB 2282 by Toth (bar on cross-designated prosecutors handling federal gun cases)
HB 2335 by Middleton (civil liability for prosecutors who do not enforce riot laws)
HB 2346 by Y. Davis (pretrial review/diversion of criminal cases by community panels)
HB 2655 by Crockett (peace officer misconduct database)
SB 553 by Blanco (five-day mandatory CJIS reporting of criminal case dispositions)
SB 690 by Zaffirini (remote court proceedings)

Bill filings

Through Tuesday of this week—yes, when they file 200 bills a day we start to get behind!—we are tracking 975 (24%) of 4,130 filed bills. To view the current bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Pandemic response tops Texas voters’ legislative priorities, poll finds” (The Texas Tribune)
• “TCOLE launches disciplinary action against Texas police agencies over missed racial profiling deadline” (KXAN News)
• “Texas GOP lawmakers want to bar cities from hiring lobbyists, but delay review of state’s DC office” (Houston Chronicle)
• “Harris County got rid of cash bail for many people accused of minor crimes. GOP lawmakers want to walk that back” (The Texas Tribune)
• “Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic” (The Texas Tribune)

Forensic grant correction

We mentioned last month that the governor’s Criminal Justice Division still has grant funds available for the forensic testing of physical evidence in criminal cases, and the deadline for applying for those funds is March 14, 2021. Please note that our previous notices erroneously titled this topic as “DNA” testing rather than “DA” testing. These funds are *not* limited to DNA testing. Therefore, if you have a good idea for making this grant work for you and your community, now is the time to put that plan to paper ASAP and send it in. For more details, see the “District Attorney Testing of Forensic Evidence” announcement listed on this webpage and download the details as a PDF.

Looking ahead

The Senate finally started referring bills to its committees, which are likely to begin the process of organizing in preparation for considering some of those bills in the upcoming weeks. House committees are a few weeks ahead of their upper chamber counterparts in that regard, but both sides of the rotunda will be focused on beating next Friday’s bill filing deadline.

Quotes of the Week

“There has been a stunning drop in the financial value of bonds set by the courts since the implementation of Rule 9[,] from $135 million in 2015 to $13 million in 2020—one-tenth of the previous amount. Defendants paid bond companies over $4.4 million in 2016. However, since 2018, bail-bond companies have earned less than $1 million annually on low-level misdemeanor cases.”
            —Excerpt from the executive summary of the second report by federal court-appointed monitor of the Harris County bail bond litigation, issued earlier this week. (Just in case you were wondering why the bail bondsmen and their underwriters are so interested in the topic.)

“The governor is saying Texas will be 100% open and no masks. Texans were like, ‘Fix our electrical grid!’ and the governor was like, ‘OK, no masks it is!’”
            —Jimmy Fallon, host of NBC’s The Tonight Show, joking earlier this week about Governor Abbott’s latest executive order on COVID-19.

“I do feel that we’ll probably lose guests based on whatever decision we do make, but I guess that’s just part of the environment that we are in now. It’s either you wear masks and piss a couple people off, or you don’t wear masks and you piss a couple people off.”
            —Jessica Johnson, general manager of Sichuan House in San Antonio, on the impact of the governor’s latest edict on her business.

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Legislators spent a good part of yesterday being mad at people, so maybe things really are starting to return to normal.

Thawing out

Now that the state is on the road to recovery from #Snowpocalypse2021 / #SNOVID-21 / “The Big Chill” / #TexasFreeze (take your pick), it’s become even more obvious that this will be a session unlike any other. The lost week put the 87^th Legislature yet further behind schedule when compared to the pace of a “normal” session, with more delays to come due to the coronavirus pandemic (remember that?). However, there were some new signs of life, such as the House finally starting to refer filed bills to committees. That is generally considered only the second of roughly 15 steps a bill must take on its way to the governor’s desk, but for those hoping to pass bills this session, it’s welcome news. The unanswered question is how the Lege will prioritize its 94 remaining days this spring when things are moving so slowly.

Lite Guv’s chart toppers

For a glimpse into how the Senate may answer that question, look no further than the lieutenant governor’s list of 31 priority bills that he released earlier this week, all of which will be given highly-coveted bills numbers (SB 1­–SB 31) once they are filed by their Senate authors. Among those that may impact your business are:

• Senate Bill 1 by Nelson (R-Flower Mound) (state budget)
• SB 7 (election and ballot security)
• SB 10 (taxpayer funded lobbying)
• SB 11 by Huffman (R-Houston) (appellate court reorganization)
• SB 20 (gun possession defenses)
• SB 21 (bail reform)
• SB 23 (don’t defund the police)
• SB 24 (law enforcement transparency)

All we have for most of these high priority bills right now are labels, not actual words on paper in bill format. As a result, we can’t get into a detailed analysis of any of them now (with one exception we’ll discuss below). What we can say is that these are 31 bill topics that will get to cut to the front of the line when it comes to committee hearings and floor debates in the upper chamber; how they will fare across the rotunda remains to be seen.

Appellate re-org?

One bill in the above list that might jump out to you as an odd topic to prioritize is SB 11 by Huffman (R-Houston), a bill to re-organize our state’s appellate court system. This is something we noted in passing a few weeks ago through one of our “quotes of the week” taken from a news story out of El Paso in which local officials expressed concerns about what the bill might morph into. Here’s more on that story.

While the Lege is constitutionally required to redistrict itself, Congressional seats, State Board of Education seats, and the state’s judicial districts every decade (the latter of which they routinely ignore), the boundaries of the state’s courts of appeals are determined solely by the Lege and are not required to be redrawn. However, that doesn’t mean there aren’t good policy reasons to reconsider the wisdom (such as it is) behind our state’s large, decentralized appellate court system. That’s where the tort-reforming folks at Texans for Lawsuit Reform come in. They released a study last year titled “A System Needing Structural Repair” which describes the somewhat haphazard historical development of our appellate court system, then compares it to other states’ (usually smaller and more centralized) appellate court systems and advocates for a replacing our current 14-court system with a more centralized five- to seven-court system. You can read the report for all the details; it’s linked above, and we found it interesting from both an historical perspective and a nerdy appellate public policy perspective.

So, that report contains the policy pitch for re-organizing the appellate courts by merging them into a more efficient and centralized system. But what other consequences might it have? As pointed out in the El Paso story mentioned above, some observers have wondered what impact the proposed changes might have on recent gains Democrats have made on the appellate courts in the larger metropolitan areas of the state, gains which might be rolled back or diluted if those urban courts’ districts included more outlying counties that traditionally vote Republican. And during a session in which partisan distrust may be at its peak due to the redistricting duties already on its agenda, this could end up being a stealthily controversial topic for the Lege this year, especially if certain Republican legislators from smaller communities decide that voting their district—especially those that might lose their local appellate courts in a re-organization—is a higher priority than voting their party.

That said, what does this mean for prosecutors who could be directly affected by any wholesale re-organization of the appellate court system? For starters, the conventional wisdom is that the current version of SB 11 is a “shell bill”—a placeholder for more detailed language to come when the bill is heard in committee—so don’t get wound up about anything currently in it. However, you should start weighing the pros and cons of potential changes to your current appellate district, including how far away your “local” district might move, how that might impact your office’s budget and operations, and who might ultimately serve on those courts, among other concerns. Meanwhile, we will continue monitoring the issue and let you know when more actionable information comes to light.

Remote court proceedings

The long-awaited bill to allow the greater use of technology for remote proceedings during non-pandemic times has been filed. Senate Bill 690 by Zaffirini (D-Laredo) was filed this week and it should spur an important discussion of these issues.

Unfortunately, the initial filed version of the bill is not very illuminating. In a nutshell, it would allow any judge to remotely conduct a court proceeding or a portion of a court proceeding—such as jury selection or a witness’s testimony—without the consent of the parties, unless the state or federal constitutions require that consent, in which case either party may object. And when, you might be wondering, is a party’s consent constitutionally required? Good question, and it’s one not answered by the bill. Which means the current language provides no real guidance on resolving the issue of when remote technology can or can’t be done, which is the only answer many of you care about. But the good news is that the author’s office is open to constructive feedback from practitioners with the intent to improve the bill as it moves through the process, so if you have thoughts on this topic that you want to share, reach out to Shannon for more information on how to most effectively do that.

Bill filings

Bill filings continued at a steady pace this week and are only a few hundred bills behind historical norms despite the challenges posed by the pandemic and the recent storm outages. Through yesterday, we are tracking 870 (26%) of the 3,315 bills filed to date. Time permitting, next week we will try to highlight some of this session’s most interesting “new” bills (as opposed to the many, many, many bills that are re-filed versions of old bills which failed to pass in prior session.)

To view the current bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

House committee schedule

In addition to the referral of House bills to committees, the committee schedule was also released. Among those committees that prosecutors may most often find themselves in front of will be:

Juvenile Justice & Family Issues        Mondays, 10:00am, E2.014
Criminal Jurisprudence                       Mondays, 2:00pm or upon adjournment, E2.010
Corrections                                          Wednesdays, 8:00am, E2.026
Judiciary & Civil Jurisprudence         Wednesdays, 8:00am, E2.014
Homeland Security & Public Safety  Thursdays, 10:30am or upon adj., E2.030

Many of these committees will hold their organizational meetings in the next week or two, at which time they will adopt their rules and prepare for hearings on actual bills later in March.

Scattershooting

Here’s a few stories we read this week that you might find interesting:

• “What drove the historically large murder spike in 2020?” (The Intercept)
• “Why cities have more people but less clout” (Governing)

Looking ahead

Next week’s menu will still feature budget hearings as the main course, with House committee organizational meetings serving as appetizers and desserts. No word on when Senate committee might organize for action, but don’t be surprised if they wait until after the bill filing deadline (March 12). In preparation for those eventual bill hearings, next week’s update will include a look at how the committee hearings process will differ from past sessions and how you might best advocate for yourself on issues that are important to you.

Quotes of the Week

“Unfortunately, the last few days have been a black eye on the reputation of Texas.”
            —Texas comptroller Glenn Hegar (R-Katy), during testimony before the Senate Finance Committee on the fiscal impact of the recent winter storms.

“Some of the blame belongs right here in this building. There’s blame out there for everybody.”
            —State Rep. Charlie Geren (R-Fort Worth), during this week’s House hearings on the causes of, and potential cures for, the state’s recent power outages.

“There’s a powerful commitment to that base ideology of small government, low taxes, and deregulation … [that will] limit the amount of reform that is mandated. … Once we’re in the spring, we’ve got pleasant weather, the sun is out, we have a cooling breeze, a lot of the ardor for this series of reforms is going to evaporate.”
            —Cal Jillson, author and political scientist at SMU, when asked how he thinks state leadership will respond to last week’s energy debacle.

“It’s like H-E-B is the moral center of Texas. There seems to be in our state a lack of real leadership, a lack of real efficiency, on the political level. But on the business level, when it comes to a grocery store, all of those things are in place.”
            —Stephen Harrigan, Austin-based novelist, quoted in a NY Times article about the role the iconic Texas grocery store chain plays during natural disasters in Texas.

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It’s been a rough week for everyone and we all could probably use a break. Who’s up for a quick trip to Cancun?

Deep freeze

TDCAA World Headquarters took a direct hit from Snowpocalypse 2021. Building power (heat, phone, internet) went down Monday morning and is only just now coming back online in fits and starts. The water is currently shut off in the hopes of avoiding flooding from potentially busted pipes, and we cannot resume heating until the good people at Trane oversee a re-start of our previously frozen rooftop equipment. (Their slogan may be “It’s hard to stop a Trane®,” but Mother Nature found a way.) Meanwhile, TDCAA staff in the greater Austin area are in still in various stages of recovery; most have power again but several still lack internet service, while city water has been out since Wednesday-ish and it may be several more days before water pressure returns to needed levels. In short: We can’t promise prompt responses to your calls, emails, or requests, but we’re doing the best we can, just like all of you. Hang in there.

Wipe out

A whole lotta nuthin’ got accomplished in Austin this week. (That doesn’t just describe the Lege, but we will confine our comments to it because you already know about <gesticulates wildly in every direction to indicate “this”>.) The House and Senate were required to meet this Tuesday, so they gaveled in without quorums and punted things to today, when they punted again until Tuesday afternoon (because they can only recess for a few days at a time without the agreement of their other chamber, which neither can obtain right now due to a lack of a quorum.) That leaves the schedule for the next few weeks completely up in the air. All that can be said for certain is that dozens or even hundreds of fewer bills will be passed this session due to this “lost week.”

Meanwhile, Governor Abbott added “ERCOT reform” to his list of emergency legislative items earlier this week, which means that not only has the Lege lost a week of productivity, but it now has another hot-potato issue to take up in the increasingly short time remaining to conduct business this regular session.

Appropriations subcommittee

The chairman of the House Appropriations Committee named his subcommittees yesterday. The House members tasked with doing a deep dive on court- and prosecutor-related funding are on the Subcommittee for Articles I, IV, and V, which consists of: Mary Gonzalez (D-Clint), chair; Matt Schaefer (R-Tyler), vice-chair; Trent Ashby (R-Lufkin), Justin Holland (R-Rockwall), Carl Sherman, Sr. (D-DeSoto). If any of those members are your local legislators, please call or email Rob if you’d like to know what you can do to help protect against budget cuts this session.

Scattershooting

Here are a few state stories we read this week that we found interesting:

• “How judicial appointments in Texas will work—or not—under a Democratic president and two GOP senators” (Dallas Morning News)
• “2021: Such a disappointment” (Austin American-Statesman)

Bill filings

Due to this week’s work stoppages, it’s probably safe to say that if you have a bill idea that has not yet been submitted to the Legislative Council for drafting, that ship has sailed. Instead, just ask that it be filed as-is and worry about the details later. (If you need a bill draft template for doing so, contact Shannon—he has one he can share.) However, those of you with bill ideas already in the Legislative Council drafting process still have several weeks for them to be returned and filed before the March 12 deadline.

Despite the deep freeze, bills continued to be filed this week thanks to the modern miracle of electronic filing. As a result, we are now tracking 782 (29%) of the 2,725 bills filed to date, and that number of filed bills could double (or triple?) between now and the filing deadline.

To view the bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

Looking ahead

Well, it will be warmer and drier, so that’s a start. House and Senate activities may resume on Tuesday afternoon, assuming no further biblical plagues are visited upon us. That likely means that most of what was to happen this week—namely, budget hearings and a roll-out of the lite guv’s legislative priorities—could get taken up next week, along with some very heated (see what we did there?) legislative hearings about the recent power failures across the state. And if you are feeling poorly about your current predicament, just remember that there is always someone worse off than you—in this case, the people who run ERCOT.

Quotes of the Week

“By, number one, not defunding the police.”
            —President Joe Biden, in response to a question at a CNN town hall meeting this week asking how law enforcement can protect citizens in high crime neighborhoods.

“The ERCOT grid has collapsed in exactly the same manner as the old Soviet Union. It limped along on underinvestment and neglect until it finally broke under predictable circumstances. … It happened before and will continue to happen until Texas restructures its electricity market.”
            —Ed Hirs, an energy fellow in the UH Economics Department, on the causes of the recent power blackouts around the state.

“There’s no evidence that I can see that tells me he’s vulnerable in a Republican primary, but I will also say that if he gets indicted again a second time, that changes things. … He’s in a dicey situation right now. He knows that. But I also think he’s a hell of a fighter.”
            —Matt Mackowiak, GOP strategist, on the current political status of Attorney General Ken Paxton (R-McKinney), whose latest kerfuffle has arisen after he declined to reveal who paid for his trip to Washington, D.C., to participate in the “Stop the Steal” rally that preceded the storming of the U.S. Capitol last month.

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So much for enjoying the three-day weekend outside. (Be careful out there, y’all!)

Senate Finance

This week the Senate Finance Committee began its work on SB 1, the General Appropriations Act. The committee members were almost giddy when the comptroller reported that the looming fiscal crisis for the next biennium wasn’t looking as bad as he once feared; sales tax revenues from online purchases have been a welcome surprise, and federal COVID-19 relief money has been squirreled away to assist in budget planning. So, instead of being $4.5 billion short for the upcoming biennium, the state is still on target to end this current biennium with a small surplus while facing a shortfall of less than a billion dollars for FY 2022–2023. The sighs of relief were palpable.

Looking ahead, Chairwoman Jane Nelson (R-Flower Mound) repeatedly emphasized that the committee has four funding priorities: public education, the coronavirus, the economy, and public safety. The committee made good on the public safety part as far as prosecutors are concerned by fully funding (at 2020 levels) prosecutor salaries, county attorney supplements, felony prosecutor apportionment funding, and assistant prosecutor longevity pay at the outset.

One item we will continue to monitor is visiting judge appropriations. Texas Supreme Court Chief Justice Nathan Hecht requested additional funding for visiting judges to help reduce the pandemic backlog in local courthouses, and while the committee wasn’t necessarily against the idea, it asked the chief justice to come back with a more detailed plan for exactly what was needed and how that would work in action. This caught our attention because more visiting judges generally creates a need for more prosecutors and defense attorneys, at least in the short term. State Sen. Joan Huffman (R-Houston), a former prosecutor and district judge, raised the issue of using federal COVID-19 relief funding in that effort, and we will keep you informed if that idea gains traction.     

ERS woes

In other Senate Finance Committee news, one of the first agencies it examined was the Employee Retirement System (ERS) that manages the retirement benefits for elected felony prosecutors (among many others). The news here isn’t good. Even after increasing participant contributions in 2017, the investment fund will still be depleted by 2061 if no additional increases are made. The committee members did not have a ready solution during the hearing, but it was clear that there is no room to increase participant contributions over the current 9.5 percent. If this issue impacts you, then keep an eye on SB 321 by Huffman (R-Houston); this is a shell bill* that will serve as the vehicle for any yet-to-be-determined additional state contributions to put ERS back on the path to stability. (*A “shell bill” is a bill filed with the understanding that the contents of the bill will change as it moves through the legislative process.) If you are an elected felony prosecutor who visits with your legislators about their work, you might want to put this on your list of things to talk about. To see the ERS PowerPoint presentation explaining things in more detail, click here for a PDF version.

Gubernatorial wish list

With the Lege still trying to shift into second gear during these early stages of the session, the spotlight remains on the governor, who released his recommended state budget last Friday. This document is significant not for what it is—governors have no real role in crafting state budgets until it comes to veto time—but it does highlight the gubernatorial priorities that could come into play at the end of a session. With that in mind, some of those priorities are:

• Improving TCOLE’s IT system for maintaining peace officer employment records
• Authorizing and funding online TCOLE training
• Increasing grant funding for body cameras
• Clearing the remaining backlog of untested sexual assault evidence kits
• Funding the development and implementation by the Office of Court Administration of a statewide pretrial risk assessment tool for use in bail determinations

Whether these ideas will find favor with legislative budget writers remains to be seen, but we will continue to follow these issues during the session to the extent they impact your business.

Scattershooting

We see a lot of good news coverage of legislative issues that we retweet on our social media account, but for those who don’t keep up with us there, we thought we’d re-post a few of them in this space. Some of those we came across this week included:

• “Winners and losers: Texas House Speaker shakes up chamber’s leadership with emphasis on new faces” (Dallas Morning News)
• “No ‘meaningful relief’: Harris County trials plunge from 1,600 a year to 52 since COVID” (Houston Chronicle link)
• “Texas Senators scold AG Ken Paxton for violating his budget authority with $40M in staff raises” (Houston Chronicle)
• “Gov. Greg Abbott prioritized changing how bail is set. He isn’t addressing people stuck behind bars because they can’t afford to pay.” (Texas Tribune)

Bill filings

Consider this your reminder that if you have a bill idea that has not been submitted to a legislator by now, you have one more week to get that done; after that, your idea’s chances of making it into law rapidly approach zero.

To view the bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop. We are tracking more than 700 bills, so if you have an interest in a specific issue, there’s probably already a bill (or seven) filed on it.

Looking ahead

The House and Senate conducted minimal floor duties this week and will return on Tuesday, February 16, for … probably more of the same. (Although to be honest, this isn’t much different from the floor output of a non-pandemic session other than the absence of legislative recognitions and resolutions that normally fill the constitutionally-imposed inactivity of the first 60 days.) Meanwhile, the House Appropriations Committee will start its review of the initial House budget bill next week in an attempt to catch up with the Senate Finance Committee, which got the jump on them by starting last week. We also expect Lt. Gov. Patrick to roll out his list of legislative priorities next week. Unlike a governor—who can designate an issue as an emergency but can’t make the Lege act on it—a lieutenant governor has ways to make sure his chamber moves his preferred bills. (But of course, that’s only half the battle, isn’t it?) Look for more details on those bills next week.

Counties at the Capitol

TAC’s “Counties at the Capitol” WebEx meeting will be held remotely on the morning of February 16 and you can “attend” from the comfort of your home or office; for an agenda of speakers and related information, visit this page of their website.

PROTECT

PROTECT, the state’s online protective order registry operated by the Office of Court Administration (OCA), should now be available for access by prosecutors and peace officers and can be found at https://protect.txcourts.gov/. For security purposes, this PROTECT portal is separate from the portal utilized by courts and the public and is designated only for use by prosecutor and law enforcement personnel.

Pursuant to Government Code §72.155, PROTECT allows prosecutors and peace officers to view comprehensive protective order information from across the State. Texas courts have been entering applications, protective orders (POs), and magistrate’s orders of emergency protection (MOEPs) into the registry since October 15, 2020—including images of the actual signed orders—which may be a useful tool for enforcement, investigation, and safety planning for survivors of family violence and other related crimes.

Earlier this week you should have received an email from Kimberly Piechowiak, OCA’s Domestic Violence Training Attorney, with more information on getting access to the registry and adding your staff users. In the coming weeks, Kimberly will also be sending out invitations for a webinar about the registry and how it can enhance prosecution and investigation of the violent offenses endured by survivors and their families, so please be on the lookout for that information.

Quotes of the Week

“Three years.”
            —Texas Supreme Court Chief Justice Nathan Hecht, when asked to guess how long it would take the Texas criminal courts to work through the backlog created by COVID-related shutdowns. (Our unofficial Twitter poll on that topic was not as confident, though.)

“Who will pass the last bill of the year in October? Or however long we’re going to be here?”
            —Lt. Gov. Dan Patrick (R-Houston), rhetorically asked from the Senate dais with tongue firmly planted in cheek after that chamber passed its first resolution of the regular session, which will end in May.

“I’m very careful not to get emotionally invested [in my bills] because they might not see the light of day.”
            —State Rep. Ina Minjarez (D-San Antonio), in a Texas Monthly article discussing the impact of pandemic-related slow-downs on the legislative process this session.

“There’s so much infighting and competition among all the people in that arena, that’s why it never goes anywhere, and so it’s not even an issue that’s going to see the light of day this session.”
            —Lt. Gov. Patrick, when asked about the prospects for legalized sports betting in Texas.

“The problem is he is really fixed on just his language. I can’t get him to understand the legislative process: You don’t always get what you want.”
            —State Sen. John Whitmire (D-Houston), chairman of the Senate Criminal Justice Committee, referring to his discussions with Gov. Abbott on various bail reform proposals.

“It’s kinda like when you get on the tiger—you can’t get off it ’cuz it will eat you. … My point, I guess, is that we need to figure out a way to fix what we’ve got.”
            —State Sen. Charles Perry (R-Lubbock), during the Senate Finance Committee’s discussion of the state’s predicament in funding its Employee Retirement System obligations.

“We were social distancing when social distancing wasn’t cool.”
            —Bonnie Sudderth, Chief Justice of the 2^nd Court of Appeals, explaining to the Senate Finance Committee why COVID-related restrictions did not impair the appellate courts as badly as the trial courts.

“It’s a good thing she did it last session, because it would not have happened this session.”
            —State Sen. Jane Nelson (R-Flower Mound), chairwoman of the Senate Finance Committee, in response to a judge who began his testimony in her committee by thanking State Sen. Joan Huffman (R-Houston) for passing judicial branch pay raises last session.

“I was [embarrassed] at first, but the more I think about it—well, shit happens. … If the country can have a chuckle at my expense today, I’ll accept it, because we’ve all been going through a stressful time. I just don’t want to repeat it on a frequent basis.”
            —Rod Ponton, Presidio County Attorney, who gave everyone a good chuckle this week by  going viral as the #CatLawyer on Zoom.

“If I stumble upon a legal issue that I want to get oriented to, I will look for Cathy’s opinions just as a starting place. Her scholarship was so wide and her curiosity so great that when she decided to take on a subject … she gave every issue the treatment of a scholar and the best lawyer you can imagine.”
            —Andy Drumheller, speaking of one-time co-worker and former Court of Criminal Appeals Judge Cathy Cochran, who passed away this week after a long illness. Judge Cochran led a distinguished career as a prosecutor, defense lawyer, and jurist and actively supported our Foundation as a member of the Texas Prosecutors Society; all of us at TDCAA mourn her passing. #RIP

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It’s Day 25 of our 140-day voyage, but it still feels like we have yet to weigh anchor and leave port. That may change when the Senate Finance Committee begins its budget hearings next week. Let’s hope for weather more fair than foul in the offing.

“Brimming with promise”

Or at least that was the term used by Governor Abbott to describe Texas in Monday’s State of the State Address (transcript here). Fair enough.

The main news to come from this speech was the governor’s identification of five issues he has deemed “emergency items,” qualifying them for immediate action by the legislature. Those five items are: expanding broadband internet access, punishing local governments that “defund the police,” bail reform (of the lock-’em-up variety), “election integrity,” and limiting civil liability for businesses open during the pandemic. Other than the first item, which enjoys broad bipartisan support, the rest of these issues will get a head start by being deemed emergencies, but none are guaranteed to pass. Furthermore, the mention of these issues in Monday night’s speech is not actually binding—instead, the governor must file proclamations with the legislature to make it official, and that will be where the rubber meets the road regarding the specificity and scope of what will or won’t constitute an emergency.

Besides these five emergency items, the governor also mentioned dozens of other policy issues that he supports or wants to see passed by the legislature, and Lt. Gov. Patrick is expected to roll out Senate bills on many of those topics soon. Stay tuned for a review of those bills as soon as next week.

House committees

House Speaker Dade Phelan (R-Beaumont) released this session’s House committee assignments yesterday. The turnover was significant: Of the 35 standing House committees, 29 (!) now have new chairs. What that means for the future of individual bills remains to be seen. All that can be said with certainty right now is that there will be a distinct lack of certainty in predicting the fate of many issues in the House because of these changes. The chairs are the gatekeepers for which legislation gets heard in committee, and in a session in which fewer committee hearings are expected to be held, these new chairs are in a position to kill thousands of bills by mere indifference. With that in mind, here’s the skinny on some House committees relevant to your work.

            APPROPRIATIONS: G. Bonnen (R-Friendswood), chair; M. Gonzalez (D-Clint), vice-chair; Ashby (R-Lufkin), C. Bell (R-Magnolia), Capriglione (R-Southlake), Dean (R-Longview), Dominguez (D-Brownsville), Gates (R-Rosenberg), Holland (R-Rockwall), Howard (D-Austin), A. Johnson (D-Houston). Ja. Johnson (D-Houston), Ju, Johnson (D-Dallas) [yes, there are three Democratic Johnsons on one committee!], Minjarez (D-San Antonio), Morrison (R-Victoria), Raney (R-Bryan), Rose (D-Dallas), Schaefer (R-Tyler), Sherman (D-Dallas), Stucky (R-Denton), E. Thompson (R-Pearland), Toth (R-The Woodlands), VanDeaver (R-New Boston), Walle (D-Houston), Wilson (R-Marble Falls), Wu (D-Houston), Zweiner (D-Driftwood).
            Notes: R chair, D vice-chair, 14 Rs, 12 Ds. Wholesale changes include a new chair, vice-chair, and 10 of the 26 members. The former subcommittee chairman for your budget items is also gone; stay tuned for news on that appointment in a few weeks.

            CALENDARS: Burrows (R-Lubbock), chair; Moody (D-El Paso), vice-chair; Craddick (R-Midland), Harris (R-Palestine), Hefner (R-Mt. Pleasant), Hernandez (D-Houston), Leman (R-Iola), Patterson (R-Frisco), Rose (D-Dallas), Slawson (R-Stephenville), Talarico (D-Round Rock).
            Notes: R chair, D vice-chair, 7 Rs, 4 Ds. Nine of 11 members are new, including the chair, which means there could be a substantial change in how the committee operates. This is the committee that determines what bills do—and do not—get to the House floor, and its real work is done almost entirely behind closed doors. If your House member is on this list, we hope you have a good relationship with him/her because you may need it this session.

            CORRECTIONS: Murr (R-Junction), chair; Allen (D-Houston), vice-chair; Bailes (R-Shepherd), Burrows (R-Lubbock), Martinez Fischer (D-San Antonio), Rodriguez (D-Austin), Sherman (D-Dallas), Slaton (R-Royce City), White (R-Hillister).
            Notes: R chair, D vice-chair, 5 Rs, 4 Ds. New chair, four new members (of nine). Oversees TDCJ, TJJD, BPP.

            CRIMINAL JURISPRUDENCE: Collier (D-Fort Worth), chair; K. Bell (R-Forney), vice-chair; Cason (R-Bedford), Cook (R-Mansfield), Crockett (D-Dallas), G. Hinojosa (D-Austin), A. Johnson (D-Houston), Murr (R-Junction), Vasut (R-Angleton).
            Notes: D chair, R vice-chair, 5 Rs, 4 Ds. Same chair, but six of nine members are new, including five freshmen. While that is more new faces than usual, seven of the nine committee members are lawyers, which is an unusually high rate. However, to our knowledge only two have practiced criminal law—Crockett (a former public defender) and Johnson (a former Asst. DA in Harris County). Compared to the Senate Criminal Justice Committee’s heavy Harris County contingent, House “Crim Jur” (as we call it) looks weighted toward the DFW Metroplex, which should make for an interesting contrast. This committee handles the largest percentage of bills we track in the House during a session, so if you have any House members on this committee, be sure to reach out to them—they may become your new best friends at the capitol this session.

            HOMELAND SECURITY & PUBLIC SAFETY: White (R-Hillister), chair; Bowers (D-Rowlett), vice-chair; Goodwin (D-Austin), Harless (R-Spring), Hefner (R-Mt. Pleasant), E. Morales (D-Eagle Pass), Patterson (R-Frisco), Schaefer (R-Tyler), Tinderholt (R-Arlington).
            Notes: R chair, D vice-chair, 6 Rs, 3 Ds. New chair and vice-chair, both of whom are new to the committee; in fact, seven of nine members are new. Some hot-potato policing reform bills may get referred here, so this committee could be in the spotlight more than usual.

            JUDICIARY & CIVIL JURISPRUDENCE: Leach (R-Plano), chair; Y. Davis (D-Dallas), vice-chair; Dutton (D-Houston), Ju. Johnson (D-Dallas), Krause (R-Fort Worth), Middleton (R-Wallisville), Moody (D-El Paso), Schofield (R-Katy), Smith (R-Van Alstyne).
            Notes: R chair, D vice-chair, 5 Rs, 4 Ds. Same chair, plus four other returning members. Seven of nine members are lawyers. If you are seeking a statutory change to your office’s authority or if your local jurisdiction is seeking a new court, this is the committee that will hear it in the House.

            JUVENILE JUSTICE & FAMILY ISSUES: Neave (D-Dallas), chair; Swanson (R-Spring), vice-chair; Cook (R-Mansfield), Frank (R-Wichita Falls), Leach (R-Plano), Ramos (D-Richardson), Talarico (D-Round Rock), Vasut (R-Angleton), Wu (D-Houston).
            Notes: D chair, R vice-chair, 5 Rs, 4 Ds. All but one member is new to the committee, including the chair and vice-chair.

            STATE AFFAIRS: Paddie (R-Marshall), chair; Hernandez (D-Houston), vice-chair; Deshotel (D-Beaumont), Harless (R-Spring), Howard (D-Austin), Hunter (R-Corpus Christi), P. King (R-Weatherford), Lucio III (D-Brownsville), Metcalf (R-Conroe), Raymond (D-Laredo), Shaheen (R-Plano), Slawson (R-Stephenville), Smithee (R-Amarillo).
            Notes: R chair, D vice-chair, 8 Rs, 5 Ds. New chair; all told, six of 13 members are new. This committee traditionally gets referred bills on several very controversial social and political issues, including the issue of local government advocacy. Interestingly, these returning members voted 7-5 against the “taxpayer-funded lobbying” ban last session, with the new chairman voting “nay.” It will be interesting to see if any of those votes change in 2021.

These are the House committees in which prosecutors are most likely to find themselves during a session, but for others, you can find the full list of committee line-ups here. If you are so inclined, now is a good time to reach out to your local legislator(s) to congratulate them—or commiserate with them—on their committee assignments. And if they are on one of the committees listed above, this is also the time to start educating them on the issues relevant to those committees that are important to you. Due to the significant turnover reflected in these assignments, much of your past work and relationship-building in that regard may need to be repeated with new members. Such is the circle of life at the Lege.

Bill filings

Bill filings continue to increase despite the pandemic-related challenges faced by the agency tasked with drafting the official versions of legislation. Due to the resulting delays, if you have a bill idea that has not already been submitted by a legislator for drafting, then we suggest you get that done ASAP or you’ll have to punt it to next session. As for those of you with bill language requests already in the hopper at the Legislative Council, you are probably safe to wait a couple of more weeks for progress, but if your bill author doesn’t have a finished or almost-finished draft in hand by the end of this month, you may want to consider asking them to file a non-council draft and then fix things during the process as needed. (If this is Greek to you or you have questions about the bill-filing process, contact Shannon.)

As of yesterday, we are tracking 665 bills in more than 40 different bill tracks. So far, the 10 most popular tracks are:

Track                                                   Bills
Code of Criminal Procedure           199 bills
Penal Code                                         163
New crimes                                        106
Guns                                                    91
Policing/new officer duties               87
Drugs/controlled substances           45
Enhancements                                     40
New prosecutor powers/duties       31
COVID & disaster laws                      29
Sex crimes                                           27

If this were a normal session, we’d expect the bill filing volume to triple between now and March 12, the deadline for filing most bills. However, this is anything but a normal session, so this time around we have no idea what to expect; we just know that they will keep filing bills and we will keep reading them.

To view the bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

Looking ahead

The House and Senate will return for some minimal floor actions on Tuesday and maybe Wednesday of next week, and then … who knows? Rumor has it that both chambers might adjourn again until Tuesday, February 23, but we won’t know for certain until this time next week.

Counties at the Capitol Day

One of the many session traditions put on pause by the pandemic are “advocacy days,” those events during which people united by place (Chambers County Day!) or politics (Republican Women’s Day!) or other predilection (Texas Biker Day!) descend on the capitol to lobby during the day and socialize during the night (and vice versa). Regrettably, current coronavirus restrictions have put an end to most of those events, some of which are being replaced by “virtual” legislative days. One such opportunity that may interest you is TAC’s “Counties at the Capitol” WebEx meeting on the morning of February 16; for details, visit this page of their website.

Legislative CLE

The State Bar will air “Introduction to the Texas Legislative Process 2021” on Tuesday, February 9, from 12:30 to 1:30 p.m. The webcast costs $65 and is approved for one hour of MCLE credit, including 0.25 hours of ethics. Click here for registration information.

Quotes of the Week

“Texas has always been a law-and-order state and we are going to stay that way. We will not let Texas cities follow the lead of cities like Portland, Seattle, and Minneapolis by defunding the police.”
            —Gov. Greg Abbott (R-Houston), in his State of the State Address Monday night.

“This is a very stupid problem to have. The technology that was created specifically to eliminate car thefts, such as key fob technology, is now being used against us.”
            —Anonymous police department official, as recounted in a story about the proliferation of car thefts in the NYC tri-state area.

“It’s been a failure. I wouldn’t want to see Texas go down that route. I don’t think it’s great for this state. I think we’re doing just fine without legalized marijuana.”
            —House Speaker Dade Phelan (R-Beaumont), speaking at a Texas Lyceum event last week on the inability of marijuana legalization to eliminate black market sales and related crimes in places like California. (He also downplayed the likelihood of legalized casino gambling in Texas at that same event.)

“If you’re a high-risk danger to the public, you should receive no bond. I don’t know anyone who would argue that, but the Constitution of Texas guarantees a bond. It’s outdated and should be changed.”
            —State Sen. John Whitmire (D-Houston), quoted in response to the filing of SB 532 by Bettencourt (R-Houston), aka “Caitlynne’s bill,” which would deny personal bond eligibility to certain offenders and set minimum cash or surety bail amounts for other offenders.

“I don’t have any idea, and neither does anybody else know what it would look like. … So, it’s kind of like fighting a phantom, because I don’t know what that plan exactly entails.”
            —Chief Justice Yvonne Rodriguez (D-El Paso), 8^th Court of Appeals, referring to rumors about a redistricting of Texas’ appellate courts that would cut the number of courts in a manner that would dilute recent Democratic gains on the urban appellate courts.

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Having now made several trips to the Capitol, we’re going to warn any of you who come to Austin this session that the building is eerily quiet. If you’ve spent any time in the middle of the beehive that is the capitol during a session, it’s nothing like that right now. For a deeper look into how the building looks and sounds during this sporadic session, check out this video from the Texas Tribune.

Big Issues

In last week’s update, we mentioned five general policy areas that have the potential to cause a meltdown at the Lege: policing, budget, elections, redistricting, and COVID. This week, we’re going to examine five other areas of controversy this session that may be especially important to prosecutors: forfeitures, bail, grand juries, discretion, and advocacy.

5. Civil asset forfeiture
Texas’ current civil asset forfeiture system has long been in the crosshairs of criminal justice reformers on the left and right ends of the political spectrum, even though bi-partisan legislative changes made in 2009, 2011, and 2013 have helped ensure that it works as intended. Nevertheless, multiple bills have been filed again this session to limit or abolish the current forfeiture system, something the Lege has considered—and rejected—the past three sessions. What is new this session is that some usual forfeiture opponents also campaigned this summer and fall against “defunding” the police—which is exactly what could result if the current civil asset forfeiture system were scaled back or abolished. The fact that a vote to limit or abolish civil asset forfeiture can be easily portrayed as a vote to “defund the police” by an election challenger may make some legislators less likely to want to risk that kind of headache down the road, but don’t underestimate the ability of other legislators to ignore the cognitive dissonance they have created in professing two contrary positions this session and try once again to limit this crime-fighting tool.

Bills to watch so far: HB 132 by Canales (D-Edinburg), HB 251 by S. Thompson (D-Houston), HB 667 by Dutton (D-Houston), HB 1331 by Canales (D-Edinburg), HB 1441 by Schaefer (R-Tyler).

4. Bail/pre-trial release
The topic of “bail bond reform” is a great example of the inadequacy of the word “reform.” From the left, “reform” means eliminating cash and surety bail and letting out most defendants before trial on a form of release that may or may not include pre-trial supervision by government officials; while from the right, “reform” means ending revolving-door releases on low or no bail that lead to additional victimizations by dangerous offenders, something that has been especially noticeable in Harris County (despite the best efforts by the Harris County DA to obtain higher bond amounts on dangerous offenders who are unlikely to re-appear for trial). Thus, anytime someone mentions “bail bond reform” to you, be sure you know which type they mean before proceeding.

There have been at least 16 bills filed to date that amend CCP Ch. 17 or otherwise alter pre-trial release practices, but none of them are likely to be the bail bond reform bill of the session. Instead, you can expect bills still to come from both sides of the “reform” debate. From the “release” camp, the Texas Judicial Council, et al., will make a third attempt to impose a default release presumption in most cases along with an unwieldy preventive detention mechanism, all of which we summarized in more detail in this update from last session; while on the “no revolving door” side, the governor has expressed support for further restrictions on pre-trial releases in the form of:

• expanded criteria that must be considered by judges when setting bail;
• limits on which judges are authorized to set bail in certain cases; and
• the creation of a uniform statewide court management system that will provide judges more criminal history information when setting bail (although why they can’t get that for free from their local sheriff or jailer is unclear).

And just yesterday, State Sen. Joan Huffman (R-Houston), chairwoman of the new Senate Jurisprudence Committee, issued a press release promising to file a bill with provisions similar to some of those supported by the governor. How this will all shake out in the end in anyone’s guess, but it will definitely be a hot topic again this session, and one that needs the input of prosecutors if it is to be resolved in a manner that improves our criminal justice system.

3. Grand juries
Those of you working in the trenches may see this heading and think, “Ah, finally! The Lege is ready to help us fix the grand jury problems we’ve experienced during the pandemic!” But alas, that is not what we refer to.

While prosecutors throughout Texas have struggled to convene functional grand juries to review the felony cases required to be presented to a grand jury, leading to massive backlogs and contributing to local criminal justice systems grinding almost to a halt, the people most interested in tinkering with grand jury proceedings are those who want to make the process more adversarial, more time-consuming, and more expensive. We refer, of course, to efforts like those from the previous two sessions that we summarized in greater detail in this 2019 update, when a version of the bill passed the Senate before dying in the House in the waning days of that session. These measures have been almost uniformly opposed by prosecutors for the past 30 years, but pressure behind the scenes from several current and former statewide elected officials may put them front-and-center once again this session.

Bills to watch so far: HB 179 by S. Thompson (D-Houston) (the Texas Public Policy Foundation’s omnibus reform bill), HB 713 by Reynolds (D-Missouri City) (defense lawyer in the grand jury), HB 1313 by Deshotel (D-Beaumont) (recording of all grand jury witnesses).

Meanwhile, for those of you still struggling with seating in-person grand juries in a safe manner, we’ve updated our COVID-19 grand jury resources with a remote grand jury policy submission from the 49^th Judicial DA’s Office (Webb and Zapata Counties).

2. Prosecutor discretion
Once again, the questions of who can prosecute what cases and how they should be prosecuted are shaping up to be go-to-the-mattresses-type issues for local prosecutors this session.

Despite repeated rejections over the past 20 years (or more) of the idea of giving the state attorney general greater power to independently prosecute local crimes, we expect that proposal to be filed and pushed again this session with the active encouragement of the current holder of that office. We know this is a frustrating issue for many of you who hold the assistant prosecutors in that office in high regard and rely on their help from time to time, but the more tenured of you know that this has long been an issue regardless of the party or personality holding that office.

Last session this topic was in play until the waning days of the session, and this session it may be even further complicated by those at the capitol who want to dictate not just who, but also how, certain cases should be prosecuted. For instance, one faction in the House came out this week in favor of “revoking the governmental immunity of local prosecutors who refuse to charge rioters and other violent actors,” while the governor and a few others have objected to certain local prosecutors’ handling of various low-level misdemeanor property and marijuana offenses. Combine that with the continued mission creep and concentration of prosecution and policing powers in the state attorney general’s office that has occurred over the past 20 years and you have a recipe for a busy session of whack-a-mole this spring.

Bills to watch so far: HB 715/HJR 41 by Reynolds (D-Missouri City) (AG prosecution of peace officers), SB 252 by Bettencourt (R-Houston) (AG prosecution of abuse of office cases [yes, you read that correctly]).

1. Advocacy
If you read through the list above and think, “Wait a minute, these are the same issues I have to go to Austin to work on every session!”—you are correct. And it’s that successful work that some in Austin are not happy about, so they intend to make it more difficult in the future.

We’ve always considered it a recognition of your effectiveness at the state capitol that some people want to muzzle your voice there. (Congratulations?) But unfortunately, those of you who have come to Austin in the past to educate legislators and advocate for or against certain policies have been lumped in with various other local officials and deemed “suitable for cancellation” by a faction who have made it a priority to end what they call “taxpayer-funded lobbying.” We put that term in quotes because it is a poorly-defined effort that changes in scope and focus depending on who or what is the target; it excludes prosecutors in some iterations (“Abolish the Texas Association of Counties”) but includes them in others (“Local officials must spend their personal funds to advocate for their work-related matters in Austin”). But make no mistake: Your—and TDCAA’s—inclusion on the “naughty list” is intentional, and it is a result of your past opposition to some of the issues on this list. As a result, you can expect this to again be an ad hominem, kill-the-messenger frontal assault approach on locally-elected officials. The Senate version of this bill passed the Senate last session before dying on the House by an 18-vote margin, but proponents believe they have gained more supporters this session, so it will have to be confronted again unless you want to forego your ability in the future to be effective advocates on the issues important to you, your office staff, and your constituents.

Bills to watch: SB 234 by Hall (R-Edgewood), HB 749 by Middleton (R-Wallisville).

State budget

The House and Senate filed their versions of the “baseline” state budget last week which will serve as a starting point for the Senate Finance and House Appropriations Committees to craft the state’s budget for the 2022-2023 biennium. Both bills—HB 1 and SB 1—spend about $119.7 billion for the biennium which, according to current revenue estimates, is $7 billion too much. (The comptroller has estimated that the state will generate $112.5 billion in the next biennium, which is a 0.4 percent decrease from the current biennium.) The filed budgets reflect a five-percent overall reduction in spending, but more cuts or delays in spending may be needed unless the comptroller provides an improved revenue outlook later in the spring, legislators tap the Rainy Day Fund, or more federal COVID relief funds fill the gap.

As for the judicial branch in general, the good news is that, at only 0.4 percent, it is a very small part of the state’s budget, which may be why budget writers decided not to apply the five-percent reduction in baseline budgets to judicial salary items, including those that fund district and county attorney salaries, supplements, and longevity pay. We had previously predicted that the legislature would likely restore any salary cuts during the process if they started with them in the baseline bills, but it is much less stressful when you start budget deliberations with your salaries intact. (And your legislators may be thankful that they don’t get hundreds of calls from judges and prosecutors asking for their salaries to be restored!). That said, nothing is set in stone yet. Finance Committee hearings begin February 8 and they will take up judiciary-related items on February 11, so we will have a better idea of how these items will be handled afterwards.

The one exception to the full funding of prosecution-related items in the baseline budgets can be found in HB 1, which cuts $5,000 from the annual apportionment funding for felony prosecutor offices serving jurisdictions of less than 50,000 people. This reduction from $27,500 to the statutory minimum of $22,500 (as in larger offices) would save the state about $1 million over the biennium, but we all know how crucial that extra $5,000 per year is to smaller prosecutor offices. Once the House committees are named, we will have a better idea about whom you can talk to on this issue if it affects you; until then, keep your powder dry.

For those of you who don’t want to wade through the 1,000-page filed versions of HB 1 and SB 1, summaries of them, complete with informative graphs and charts, can be found here and here, respectively.

Committee testimony

Speaking of the state budget, the Senate Finance Committee has posted a string of notices for hearings in February, providing us a first glimpse into how that chamber might handle public input this session. As currently posted, that committee will allow oral and/or written testimony from members of the public who pre-register and provide proof of a negative COVID test prior to entering the hearing room. Whether those rules will be used for all Senate committees remains to be seen, but if you anticipate testifying before a Senate committee this session, you might check out those detailed instructions now to get a head start on how that may proceed.

Looking ahead

The governor will give his State of the State Address on Monday, February 1, at 7:00 p.m.—a prime-time first, and one attributable to a pandemic that makes it unwise for the combined House and Senate to meet in person on the House floor, as is customary. That address will be telecast live on TV and the internet by various news outlets, during which time the governor will lay out his policy agenda for the current session and proclaim certain issues as “emergency items.” That designation allows the Lege to vote on them before the normal (and constitutional) 60-day wait after the beginning of a session to vote. You can learn about those emergency issues in your local news, but watch this space later in the week for insights into what those moves might mean to you.

Joining those of you who take a #Netflixandchill approach to watching the State of the State Address will be most members of the legislature, whose presence on their respective floors is not required until Tuesday, February 9, thanks to a lengthy adjournment agreed to after this week’s brief floor session last Tuesday. The other big happening expected during this two-week break is the naming of House committees, which the speaker will make public and then turn off his cellphone and scoot out of town to avoid any members who are less than pleased with their assignments for the session. (Past speakers always seem to become avid hunters of whatever is still in season the weekend after committee assignments come out, usually on a lease that has very poor cellphone service. Go figure.)

Bill filings

We are tracking more than 550 bills in more than 40 different bill tracks for various topics so far. For a list of bills filed through yesterday that would amend the Penal Code or Code of Criminal Procedure or that fall into our subjective “Bills to Watch” category, use the links on the right-hand side of our Legislative page. If you ever have questions about bills affecting a particular issue, feel free to contact Shannon.

DNA testing grants update

We mentioned last week that the governor’s Criminal Justice Division has grant funds available for the forensic testing of physical evidence in criminal cases, and this week we learned that the deadline for applying for those funds has been extended from February 11 to March 14, 2021, along with a technical correction to make sure all felony prosecutor offices are eligible to apply. This is a welcome resource that has been included in the governor’s office new budget request for FY 2022-23, but you know how government funding works: Use it or lose it! So, if you have a good idea for making this grant work for you and your community, now is the time to put that plan to paper and send it in. For more details, see the “District Attorney Testing of Forensic Evidence” announcement listed on this webpage and download the details as a PDF.

Quotes of the Week

“I am working with the legislature to develop strategies to end the revolving door bail system that we have in Texas.”
            —Gov. Greg Abbott (R-Houston), at a press conference on public safety issues last Friday.

“We’re going to see, historically, the largest one-year rise in murder that we’ve ever seen.”
            —Jeff Asher, criminal justice data consultant, who recently noted that it’s been more than 50 years since the U.S. saw as large an increase in murder rates as in 2020.

“We’re going to have to use some of the tactics that the left do [sic]. I’m not talking about violence, of course, but I am talking about showing up at state reps’ or state senators’ offices, showing up at their homes, not tormenting their families, I’m not advocating for that, but they got to know that we’re deadly serious about this.”
            —David Robert Thomas, self-professed Texas secessionist, expressing support during a virtual town hall meeting for HB 1359 by Biedermann (R-Fredericksburg), the “Texas Independence Referendum Act.”

“This is the tip of the spear. If we succeed, this is going to be the piece that succeeds first. … If we can’t get this done, it’s likely that there’s not much they can get done this session.”
            —Scott Henson, aka the “Gritsforbreakfast” blogger, on renewed attempts to prohibit arrests for most fine-only offenses this session following a recent wrongful arrest in Tarrant County.

“My guess is you all will be back in a special session sometime this summer or early fall.”
            —Lloyd Potter, Texas state demographer, explaining to the Senate Redistricting Committee the impact of this week’s news that the census data needed to finalize their maps won’t arrive until this session is over.

“And here’s a bonus tip: Don’t try to make plans with nobody on Sundays. Sunday is for church and football. They take both of those very seriously.”
            —Nikalaus Peiler, professional photographer who recently moved from California to San Antonio, in a viral TikTok video he posted last week on what his fellow Californians can expect if they move to Texas.

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Eleven days completed, 129 to go—but we’re betting the coronavirus will make it feel longer, as it does with everything in life right now.

Senate committees

The Lite Guv released his committee assignments for this session and the following appointments (with related commentary scrubbed clean for public consumption) may be of interest to you:

            CRIMINAL JUSTICE: Whitmire (D-Houston), chair; Huffman (R-Houston), vice-chair; Bettencourt (R-Houston), Birdwell (R-Granbury), Hinojosa (D-McAllen), Miles (D-Houston), Nichols (R-Jacksonville).
            Notes: Four Rs and three Ds, but this is the lone Senate standing committee (out of 17) chaired by a Democrat. Four new members: Bettencourt, Birdwell, Hinojosa, and Nichols (although Birdwell and Hinojosa have been on Criminal Justice in past sessions). Four of seven members (57%) are from Harris County, so expect that tail to wag the dog on many criminal justice issues (as it often does, seeing as how it has almost twice the population of Dallas, the next largest county).

            FINANCE: Nelson (R-Flower Mound), chair; Lucio, Jr. (D-Brownsville), vice-chair; Bettencourt (R-Houston), Buckingham (R-Lakeway), Campbell (R-New Braunfels), Creighton (R-Conroe), Hancock (R-North Richland Hills), Huffman (R-Houston), Kolkhorst (R-Brenham), Nichols (R-Jacksonville), Perry (R-Lubbock), Schwertner (R-Georgetown), Taylor (R-Friendswood), West (D-Dallas), Whitmire (D-Houston).
            Notes: Twelve Rs and three Ds. New vice-chair in Lucio, who replaces Hinojosa (D-McAllen).

            JURISPRUDENCE: Huffman (R-Houston), chair; Hinojosa (D-McAllen), vice-chair; Creighton (R-Conroe), Hughes (R-Mineola), Johnson (D-Dallas).
            Notes: A new committee composed entirely of lawyers (but only two with significant criminal law experience). Three Rs and two Ds. The subject matter jurisdiction is still unclear, but we expect it to be given certain issues that formerly may have been referred to the Criminal Justice or State Affairs Committees, such as judicial selection (more on that below) and possibly some hot-button issues such as policing and/or bail reform.

            LOCAL GOVERNMENT: Bettencourt (R-Houston), chair; Menendez (D-San Antonio), vice-chair; Eckhardt (D-Austin), Gutierrez (D-San Antonio), Hall (R-Edgewood), Nichols (R-Jacksonville), Paxton (R-McKinney), Springer (R-Muenster), Zaffirini (D-Laredo).
            Notes: A new committee replacing the former Intergovernmental Relations Committee. Five Rs and four Ds. Its jurisdiction is still unknown, but it could be tasked with vetting various local control bills or disaster-related bills, which will be a hot topic this session.

            STATE AFFAIRS: Hughes (R-Mineola), chair; Birdwell (R-Granbury), vice-chair; Campbell (R-New Braunfels), Hall (R-Edgewood), Lucio, Jr. (D-Brownsville), Nelson (R-Flower Mound), Powell (D-Burleson), Schwertner (R-Georgetown), Zaffirini (D-Laredo).
            Notes: Six Rs and three Ds, with Hughes as the new chairman (a role he took over during the interim). This committee previously handled high-profile issues like AG jurisdiction, “taxpayer-funded lobbying,” abortion, and election laws; whether that will change due to the new committees is unknown.

For a full list of committee assignments, you can view them online here. If you have one or more local legislators on any of the committees listed above, now is a great time to reach out to them when they are back home to let them know that you are interested in the work of that committee and can be a resource for them on the issues that will come before those committees during this session. And speaking of the issues to come before them, they will do so in the form of bills that get referred to each committee, a process that can now begin in the Senate. (But don’t be surprised if that is a slower process than in past sessions due to the pandemic, etc.)

Across the rotunda, House members have until 3:00 p.m. today to submit to the Speaker’s office their requested committee assignments, with no deadline given for when the Speaker might release his new line-ups.

The Big Issues

While we will spend most of the rest of the session talking about criminal justice, public safety, and related local government issues, the break this week has allowed us to give you an overview of the “big picture” issues that will consume most of the oxygen in the capitol this session. We provided a link in our initial Zero Week update to a general overview of issues as summarized by the House Research Organization (which you can access here if you didn’t catch it then), but now we’d like to give you a look at what we think might be the five hot-button issues on which legislators spend the most time and effort this session (in order of increasing importance): Policing, budget, elections, redistricting, and COVID.

5. Policing
Policing reform and law enforcement funding is not a new issue, but the events of 2020 have given it heightened importance coming into this session. To be honest, “our issues” rarely qualify as being of top importance at the Lege, but the polarizing and highly politicized nature of the debates over this topic the past year have secured it a spot on this list. As we’ve said before (such as here and here), we think it is a near-certainty that something will pass that changes how law enforcement perform their duties or how those duties are funded, but we don’t know right now what that will be or who will or won’t be happy with the finished product(s). Further complicating matters, policing reform is also related to the debate over the proper roles and boundaries of the powers of state officials versus local officials, and that state/local tension—which almost merited its own stand-alone inclusion in this Top Five list—will run through several of the issues on this list.

4. Budget
Along with redistricting (and arguably some agency sunset bills), passing a state budget is the one thing legislators must accomplish this year. (Note we didn’t say “this session” because the deadline for a budget agreement is really August 31, the end of the fiscal year, but it’s been many years since a budget was not put to bed in a regular session. [Dang it, there we go, jinxing ourselves!]) In the big picture, the state’s General Appropriations Act is always the single most important bill of any session. As we discussed last week, legislators must figure out how to fund the massive increase in public education spending that they passed last session while navigating the shoals of social shutdowns and the perils of a pandemic economy. Due to the importance of the budget to every other piece of legislation that might have a positive or negative fiscal impact to the state, the House Appropriations and Senate Finance Committees may be the only legislative committees to hold hearings during the first 60 days of the session. What those hearings will look like is anyone’s guess, but if state budget negotiations go south during a session, then everything goes south.

3. Elections
In a highly partisan two-party political system that relies on votes to determine winners and losers, the battle over who can vote and how they can vote is always a heated one. This session, however, recent events—even if mostly outside of Texas—have added more fuel than ever before to this fire. The controversy surrounding the past two presidential elections and the growth of different partisan narratives around each one will make it difficult for either side to find common ground with the other, especially now that the state GOP party platform has identified “election integrity” as its top legislative priority. Despite all the high-falutin’ talk about the sanctity of the vote, etc., etc., these issues involve power politics at its most intense, which can lead to frayed nerves and volatile outbursts at the Lege. Legislators have already filed 100+ bills related to elections, election integrity, voting rights, and the like, and there are more to come. If you are wondering what issue might be most likely to cause the Lege to melt down and grind to a halt, election laws are a good “dark horse” wager.

2. Redistricting
Some of you who have been around the block a few times might recall Texas Democrats breaking quorum and hiding out across state lines two decades ago. The cause? Redistricting. It’s been said about this topic that “every two years, voters pick their legislators; but every 10 years, legislators pick their voters.” And trust us, that picking process can get ugly. While most election-related issues are of partisan importance, redistricting is highly personal for legislators, especially those who are forced to fight for their political life. Few issues lead to as much hurt feelings and bad blood at the capitol, which can make the end of a redistricting session very chippy as legislators pick their moments to retaliate against others—even within their own party—who they think have wronged them by stealing “their” voters or drawing them into unfavorable districts. Due to a delay in receiving federal census data, it is doubtful legislators can finish the redistricting process before adjourning the regular session sine die at the end of May, but whenever it happens, you can be certain that the closer they come to finishing that job, the hotter their tempers will run.

1. COVID recovery & disaster powers
Duh, right? When one issue dominates the news cycle for more than a year, it doesn’t require rocket science to predict that it will also be front and center for legislators. Whether it’s the administration of vaccines, the disaster powers granted to state and local government officials, how businesses are helped or hindered by government actions during a pandemic, or who does or does not have to wear a mask—including in the capitol building itself—the issue of how government has responded, or can or should respond, to a coronavirus-like situation will be perhaps the most contentious topic this session. These debates will involve disputes between state and local governments, the executive branch and the legislative branch, and intra-party Republican battles on the scope and role of government in such situations. What makes the outcome of these issues even more uncertain is the fact that, unlike other issues on this list, they will be issues of first impression for most legislators. As a result, we have no idea how these policy and political debates will be resolved, but let’s pray they get it right.

So, that’s one perspective on the biggest issues facing the Lege this session. Next week—assuming no big news events happen when legislators return for a few days before breaking again—we will look at some hot-button issues more directly affecting prosecutors, along with an overview of the initial House and Senate versions of the state budget that were both released yesterday.

Judicial elections

The Texas Commission on Judicial Selection, which was created by the previous legislature to review the method by which Texas judges are selected for office, published its final report last month. The upshot of its deliberations was that an ever-so-slight one-vote majority of the commission recommended ending the partisan election of future judges, but there was no consensus among the commission members on what should replace it. Perhaps more revealing was that six of the eight legislators on the commission voted against ending partisan judicial elections, which is probably a better indicator of this issue’s fate before the Lege than the final tally. Term limits for judges also failed to gain a single supporter on the commission, while more popular recommendations from the report include:

• increasing the minimum qualifications for judges;
• further regulating campaign funding in judicial elections; and
• continuing the work of the commission in future years.

We expect a bill to be filed to accomplish these latter three recommendations; beyond that, who knows. If this topic interests you, you can read the commission’s final report here.

Bill filings

For a list of bills filed through yesterday that would amend the Penal Code or Code of Criminal Procedure or that fall into our subjective “Bills to Watch” category, use the links on the right-hand side of our Legislative page. We are currently tracking more than 500(!) bills in more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been proposed so far. And if you ever have questions about an individual bill, feel free to contact Shannon.

Legislative involvement

You can contact Shannon for details on how to get involved in the legislative process. Remember, the squeaky wheel gets the grease at the Capitol, so don’t be shy—your legislators need to hear from you!

Looking ahead

Both chambers will resume work in person on Tuesday, January 26, for a day or two of paper-shuffling, but neither is expected to do anything substantive on the floor next week—although that’s as much a function of the early stages of a session as it is a response to any pandemic or security threat this year. Other than that, no news is good news at this stage.

COVID and the courts

FYI, if you are interested in seeing what other counties’ COVID-19 operating plans and re-certifications look like, the Office of Court Administration has kindly posted them (along with related information) on their website here.

DNA grant funds

The Criminal Justice Division of the Governor’s Public Safety Office has posted notice of $1 million in grant funds available statewide for the forensic testing of physical evidence in state fiscal year 2022. For details, see the “District Attorney Testing of Forensic Evidence” announcement listed ninth on this webpage and download the details as a PDF. The deadline for applications is Thursday, February 11, 2021. For questions or further information, please refer to the eGrants website.

Quotes of the Week

“We must make it fiscally impossible for cities to defund police. This session, Texas must pass laws that give cities a clear choice: Eeither fulfill their duty to keep their residents safe or lose access to all of their tax revenue.”
            —Gov. Greg Abbott (R-Houston), in a roundtable event on the topic of public safety held at DPS headquarters in Austin this week.

“I do not believe the citizens, [or] my constituents, of the state of Texas want this right taken away from them, and I’m not going to be in a position or be the one who does that.”
            —State Sen. Joan Huffman (R-Houston), former district judge, on why she voted against ending partisan judicial elections as a member of the Texas Commission on Judicial Selection.

“There’s a lady that I’m taking care of that I’ve known since I was a child … we grew up together, and I know she’s going to die … It’s the same thing: ‘We got together for Christmas.’ Now we’re seeing the ramification of it.”
            —Ivan Melendez, Hidalgo County Health Authority, quoted in an article on the dire state of hospital capacity due to the current surge of COVID-19 cases.

“I don’t know where it came from. It rather shocked me when the guy told me. … You can certainly have [the coronavirus] and not know it, I can tell you that.”
            —State Rep. Joe Deshotel (D-Beaumont), who tested positive for COVID-19 on the third day of session last week.

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