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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And they’re off! (Literally. As in, the Lege met for a few days and then adjourned for two weeks.)

First week follies

Legislators convened in Austin on Tuesday to take their oaths of office in what served as the first (but surely not the last) coronavirus super-spreader event of the 87^th Regular Session, and then the fireworks began in each chamber.

Senate
Senate members were sworn in and then debated and approved the Senate rules that will govern their business for the next two years. The biggest change to standard Senate operating procedures was a further relaxing of the traditional Two-Thirds Rule (21 of 31 senators) for floor debate. That mechanism was reduced to a Three-Fifths Rule (19 of 31) in 2015 but going forward it was further watered down to a Five-Ninths Rule (18 of 31) to keep the shrinking GOP majority in the Senate above the threshold needed to bring legislation to the Senate floor. Everyone who could count knew the outcome ahead of time, but they debated it anyway, beginning like this after the rule change was laid out and explained by author Sen. Bryan Hughes (R-Mineola):

Sen. Whitmire (D-Houston): “First of all, would you be offended if I called you a snake-oil salesman?”
Hughes: “Not in the least, senator. I’m a politician and a lawyer.”
Whitmire: “An East Texas lawyer. And I’m glad it’s you trying to sell it and not me.”

Of course, the Senate being the Senate, they all had a good laugh at this exchange, and things continued in that vein until everyone had their say and then the rule change passed by a party-line vote of 18-13.

In addition to this change, the new Senate rules also resurrect the Jurisprudence Committee (which was last seen back in 2013 and will have five members this session) and change the Committee on Intergovernmental Relations into the Local Government Committee (which will have nine members instead of seven). But the Senate declined to change any committee rules—such as allowing remote testimony—at this time, with the understanding that most Senate committees (other than the Senate Finance and Redistricting Committees) will not meet for the first 60 days of session. The plan may be to revisit these rules at that time if pandemic conditions in Austin have not improved, but regardless of rules, don’t be surprised if many Senate committees hold no more than two or three hearings on Senate bills for the entirety of this regular session. That would represent a drastically reduced number of hearings compared to a normal session, so keep that in mind when figuring out how to accelerate or slow down Senate legislation you care about.

House
Across the rotunda in the House, members were sworn in on Tuesday and officially selected State Rep. Dade Phelan (R-Beaumont) to be the Speaker of the House, with the only “nay” votes coming from freshmen State Reps. Bryan Slayton (R-Royce City) and Jeff Cason (R-Bedford), two hard-right members of a group that some have dubbed the “Freedom Freshmen.” (Perhaps that’s a new pledge program for the Texas House Freedom Caucus?) Also, in what could be a preview of coming challenges, four House members were absent on the first day: two due to their own positive COVID-19 test results before the session, and two who feared contracting the disease due to lax mask-wearing on the House floor. And sure enough, yesterday a House member who had declined to be tested for COVID-19 before Opening Day announced that he has now tested positive after spending three days on the House floor with other members, leading some of those other members to announce self-quarantines between now and when the Lege reconvenes. (Welcome to the new normal, #txlege-style.)

The House later considered its rules for the next two years, and after a few hours of debate it adopted rules that include a pandemic addendum now in effect, but which can be revoked by a vote of the House later if conditions improve. Those new pandemic rules include temporary changes so that House members can attend floor sessions from the House gallery and can also vote on floor measures from secure House laptops placed in adjacent rooms and the gallery. Like the Senate, the House then adjourned until Tuesday, January 26.

So, that is a brief preview of how legislators will conduct their business during this pandemic session, but what about the rest of Texans who must come to the capitol if they want to get something done?

Public participation

The general rules for public access to the capitol building are available here and include single-point entry/exit, voluntary COVID-19 testing, the mandatory wearing of face masks in public spaces, unspecified capacity limits, and more. However, the House and Senate rules include differing requirements for how the public might participate in committee proceedings during the pandemic. (Nothing can ever be easy with the Lege, can it?)

In specific regard to the pandemic, the new Senate rules limit public attendance in the Senate gallery or in Senate committee rooms to only those with a wristband indicating a negative COVID-19 test or completed vaccination. The rules also require face masks be used in public areas of the Senate except when speaking into a microphone during a committee hearing or floor debate. However, senators will still make their own rules for admission to their individual offices, and they needn’t wear masks when at their floor desks, which are already spaced out. (“Membership has its privileges,” as they say.) The Senate’s COVID-19 testing requirement was not included in the new House rules, but unless you’ll only be handling House business when in the capitol, the temporary Senate requirement will probably bear following for now.

Other than these temporary mask-and-test rules, the Senate has largely taken a wait-and-see approach to its committee and floor proceedings with the understanding that there won’t be many Senate committee hearings or floor discussions until mid-March. However, the House adopted new pandemic floor and committee procedures that go into effect immediately. Under these new rules for the lower chamber, committees will be allowed to hold hearings and take testimony with an in-person quorum of any two committee members as long as other members of the usual quorum requirement participate remotely. At those hearings, each House committee chair will have the discretion to invite witnesses to appear before the committee remotely, but any other witnesses will have to testify or register their support or opposition in person. However, as was sometimes done over the interim, House committees will electronically accept written public testimony on each bill heard by a committee from “persons domiciled in this state” in a manner yet to be determined, and that submitted testimony will be publicly accessible in some form or fashion.

So, what does this mean for you? Our guess is that experienced capitol advocates and well-organized special interest groups will have an advantage over the general public in obtaining coveted “remote testimony” invitations if they lobby committee chairs and other committee members for them ahead of time. For everyone else, the new mask and room/building capacity requirements may make the new electronic participation option attractive, but we think that alternative is likely to be ineffective for at least two reasons. First, it will be difficult for committees to police the “Texas resident” limitation on online submissions, resulting in a glut of content being submitted online; and second, legislators have historically been unlikely to read written submissions at the committee stage, and a high volume of submitted testimony may make it even less likely that public comments submitted online ever reach their intended audience. Therefore, your relationships with, and access to, your local legislators who end up serving on relevant committees this session will be more important than ever before, as will some tolerance for masking up and waiting (… and waiting … and waiting …) for those of you who wish to get involved in person.

Legislative involvement

This is probably a good point at which to remind you that you can contact Shannon for details on how you can 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!

Budget revenue estimate

The comptroller issued his biennial revenue estimate (BRE) this week to give a snapshot of the state’s current finances and set the bar going forward for how much money the legislature can spend in its next two-year state budget.

The good short-term news is that the state should end up only ~$1 billion short of revenue for the current biennium despite the economic downturn caused by the pandemic. The Lege had given itself an almost $3 billion cushion in the original FY 2020-21 budget, but the pandemic and resulting economic downturn blew a hole in that plan and some estimates last summer projected as much as a $5 billion deficit in lieu of that original cushion. Thus, ending that teeter-totter ride of projections down only ~$1 billion looks relatively good in context, for which you can thank Uncle Sam’s largesse, along with whoever in your house has been doing all the internet shopping and helped to keep state sales tax collections steady. For a state that annually blows through more than $120 billion in state and federal funds, a $1 billion hiccup is not too bad, and that number could be further reduced once the impact of agency budget cuts from last summer are factored in. The Lege also has the cushion of the state’s Rainy Day Fund, which weighs in at roughly $8.5 billion right now and could grow to around $11 billion if left untouched for the next two years.

Going forward, the state budget writers will have to write a check to cover the current biennial shortfall invoices coming due now (for a total of ~$1.5 billion). They will also have a hair less to spend over the next two years than they had during the current biennium, which is not good news considering the growing demand placed upon government coffers by the pandemic and our state’s growing population, not to mention looming problems like the continued underfunding of the state’s Employee Retirement System (ERS)—in which you elected DAs are members of the Elected Class. As a result of these competing demands and a lack of new revenue, budget writers are likely to take a “hold the line” approach on most funding this session unless they hear differently in April or May when the comptroller can fine-tune his projections for the final budget negotiations. Between that flat-line plan and the possibility of yet more federal pandemic funds coming our way, we don’t expect the Lege to seriously consider passing anything that smacks of a new tax or other revenue source this session—and that includes sin taxes like casino gambling or marijuana.

For any budget nerds out there, the full BRE can be found 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 already tracking more than 450 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.

Looking ahead

Both chambers have adjourned until Tuesday, January 26, at which time they are likely to come together to caucus behind closed doors and perhaps hear the governor’s State of the State Address, although that could be delayed until early February. Such a long break is unusual, but it serves at least three purposes: It allows Democratic legislators to jet off to D.C. for President-elect Biden’s “inauguration lite” festivities on Wednesday without missing anything important back in Austin; it keeps large legislative crowds from congregating inside the state capitol during a pandemic; and it gives legislators and their staffers a reason to not be in the Big Pink Building the latter part of next week, when the FBI expects more “stop the steal”-type protests at all 50 state capitol buildings. And after they convene for a few days two weeks from now, don’t be surprised if the House and Senate adjourn again until the second week of February for further pandemic-avoidance reasons. Such long adjournments are practically unheard of during the early weeks of a session, but guess what, Toto—we are not in Kansas anymore.

Assuming nothing goes sideways on us next week, we will try to use our free time to pen a “big picture” analysis of the upcoming session for our next update. Look for that next Friday!

Quotes of the Week

“Be prepared for fewer bills to pass the House and Senate.”
            —State Rep. Charlie Geren (R-Fort Worth), as quoted during a remote conference with the Texas Taxpayers and Research Association about the impact of pandemic restrictions on the legislative process.

“There is so much potential for lack of transparency, for back-dealing, for really shady business to happen during a session when much of the public is shut out of the process.”
            —Stephanie Gharakhanian, advocate for the Workers Defense Project, on why she worries that some of the health and safety proposals put forth for the session could have adverse consequences on the end product.

“It basically means you don’t need to negotiate with the other party in order to get things passed.”
            —Robert Lowry, political science professor at UT-Dallas, on the change in the threshold rule for considering legislation on the Senate floor.

“We’re the majority. Elections matter. If we don’t change the rules today… the Democrats would be controlling the Senate.”
            —Lt. Gov. Dan Patrick (R-Houston), as quoted in that same article.

“Just like you gotta wear pants.”
            —House Speaker Dade Phelan (R-Beaumont), when asked during a pre-session interview whether visitors would have to face coverings in the public areas of the state capitol this session.

“I’ve long said Texas lawmakers are just like the Texas people they represent. Some are insightful people here to do the most good for the most people. Some are thieving crooks killing time before they become lobbyists. And some are just wondering what’s for lunch.”
            —Ken Herman, Austin American-Statesman columnist, in an article discussing new press restrictions at the state capitol.

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Is it too soon to wish it were already 2022?

New phone, who dis?

Welcome to the inaugural TDCAA legislative update for 2021. For those of you who are newly elected, this will be the first of a series of weekly updates from us in Austin that are intended to help you keep up with the important happenings at the state capitol. The goal of these updates is to make you the most well-informed person in your courthouse on the legislative issues that affect your offices and our court system at large. These updates will be emailed to elected prosecutors and other key office staff who track legislative issues; to add, delete, or correct an email on this distribution list, please email Shannon Edmonds. Note also that most content in these updates will be publicly archived on our Legislative webpage if you want to direct interested parties to that resource as well.

Mandatory training

Congratulations to all our new and returning elected prosecutors! Now it’s time for you to read the fine print on the job you just won, and that includes two mandatory training requirements.

The first training mandate is for all new and returning elected prosecutors who were just sworn in and it relates to the Public Information Act, as required by Gov’t Code §552.012. Every elected prosecutor—or that prosecutor’s public information officer if the office has one—must complete this open records course within 90 days of taking the oath of office. You old-timers might recall that we used to offer this at our December Elected Prosecutor Course, but the 2020 version of that training was postponed due to the pandemic, meaning that all of you who were just sworn in—whether for the first of fifth time—will probably need to take it online. Fortunately, the Office of the Attorney General (OAG) has created an online course that satisfies this training requirement; to complete it, visit this webpage.

The second mandatory training course relates to a prosecutor’s duty to disclose exculpatory and mitigating evidence and is required by Gov’t Code §41.111. Every new elected and assistant prosecutor—whether elected, appointed, or hired—has 180 days from the date of his or her election/hire/appointment to complete this required Brady training. Thanks to funding from the Criminal Justice Section of the State Bar and the Court of Criminal Appeals, prosecutors can complete the required training for FREE through our website. This course (from 2018) is required every four years; contact [email protected] if you aren’t sure whether or when you last took the class.

OK, now on to the main event!

Important legislative dates

If your Texas civics lessons have gotten a little fuzzy after all these years, never fear! We are here to remind you how this works. (Or doesn’t work, as the case may be.)

Every odd-numbered year, the Texas legislature convenes on the second Tuesday in January and meets in regular session for a maximum of 140 days. For the upcoming 87^th Regular Session, the following dates might deserve a place on your 2021 calendar:

            Tuesday, January 12:              86^th Legislature convenes (“Opening Day”)
            Tuesday, January 19:              Inauguration Day for the governor and lt. governor
            Friday, March 12:                   60^th Day; final day to file most bills
            Monday, May 31:                   140^th Day (“Adjournment Sine Die”); session ends
            Sunday, June 20:                     Deadline for governor to veto a bill
            Sunday, September 1:             General effective date for most legislation

Other things that will take place the first six weeks of the session include the release of the comptroller’s official revenue estimates (letting the state’s budget writers know how much they have to spend for FY 2022–23), the election of the speaker of the House, the adoption of House and Senate rules, the governor’s State of the State address, the chief justice’s State of the Judiciary address, the naming of committee members, and the filing of several thousand more bills. (Don’t worry, we will read them so you don’t have to.) The 60-day bill-filing deadline forces the first month or two of session to focus on drafting and filing bills; the remaining 80 days are then dedicated to passing or killing them, and that is when prosecutors who are interested in supporting or opposing legislation can have the greatest impact on the process.

Legislative involvement

This is probably a good point at which to remind you that you can contact Shannon for details on how you can get involved in the legislative process—even if it is only to get an up-close-and-personal view of the sausage-making for your first time. Remember, the squeaky wheel gets the grease at the Capitol, so don’t be shy—your legislators need to hear from you!

That said, the coronavirus pandemic will make this a session like no other. Uncertainty regarding the public’s access to the capitol makes it impossible to plan ahead or to know what issues will be taken up when, much less in what format that will happen. We will keep you posted as news trickles out regarding rules for accessing the capitol and participating in committee hearings and such, but if you already know you are interested in coming to Austin during the session to get more involved, reach out to Shannon now to get on his list for whatever that may look like.

Capitol access

The state capitol, which has been closed to the public since March 2020 due to the pandemic, was finally opened to the public this past Monday—only to be locked up tight again on Wednesday in response to the rioting in the nation’s capital. The Big Pink Building then re-opened on Thursday with an increased security presence, and they will probably be taking things day by day from there.

The initial rules for public access to the capitol building are available here and include single-point entry/exit, recommended COVID-19 testing, unspecified capacity limits, and more. As for who’s in charge of all this, access to the capitol proper is the purview of the little-known agency called the State Preservation Board (SPB), which is chaired by the governor and includes the speaker, lite guv, and other legislators. What will make capitol access challenging this session is that the SPB can issue one set of general rules for the capitol complex, but the House and Senate will also adopt rules for own their members’ access and conduct, and all three sets of rules may conflict. (One example: Both House and Senate are planning to kick the media off their cushy floor-level seating and into the gallery above with the hoi polloi, but the House is permitting four times as many press observers as the Senate, and the Senate may bar media from committee rooms, unlike the House.) As a result, trying to interact with legislators in person in Austin will be even more of a chore than usual. If you are planning to make a trip to Austin for that purpose, feel free to contact Rob or Shannon ahead of time to get the latest information if you don’t want to make a potentially fruitless trip. At a minimum, we expect any in-person capitol visits for the first 60 days of the session to require face coverings, delays in entering due to capacity issues, and legislators or staff who may meet only by pre-arranged appointments.

Big issues and bill filings

For a glimpse at some of the issues the 87^th Legislature may tackle this session, check out Topics for the 87^th Legislature (PDF), a preview prepared by the House Research Organization. We’ll delve into some of these issues in greater detail in future updates, including some that may not be on your radar yet but should be. (How’s that for a teaser?)

We are also keeping up with daily bills filings at the capitol. For a list of bills filed to date 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 almost 400 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.

COVID and the courts

We didn’t have much to add to our COVID-19 resource webpage over the final month of 2020, but some newsworthy things happened over the holiday period, including:

• The Texas Supreme Court blocked restaurant and bar restrictions imposed in Travis County (and by extension, Bexar and El Paso Counties) over the New Year’s holiday after the governor and attorney general registered opposition;
• The Texas Supreme Court, through its Office of Court Administration (OCA), has extended to January 11 the deadline for local administrative district judges to re-certify their COVID-19 local operating plans, with a continuing emphasis on limiting all in-person proceedings; and
• OCA noted that “workers supporting the operations of the judicial system, including judges, lawyers, and others providing legal assistance” are identified as “essential critical infrastructure workers” by the U.S. Department of Homeland Security, a fact that may become relevant to who is eligible for COVID-19 vaccination when Texas reaches Phase 1C. Those details have not been confirmed by the state—which has only addressed Phases 1A and 1B to date—but we will let you know when that decision is made.

Online CLE

Registration is now open for this year’s “Fundamentals of Prosecution,” an online course designed to give new (and new-ish) prosecutors the tools they need to effectively accomplish the mission of their offices. Starting January 11, the course consists of 13.5 hours of recorded training over core subjects such as bonds, plea-bargaining, search and seizure law, case analysis, and ethical decision-making. Additionally, optional live webinars are scheduled after each of four consecutive weekly content releases to allow attendees to confer with experienced TDCAA faculty regarding that week’s training (or prosecution issues in general). Prosecutors who complete the course will also receive four TDCAA publications (Predicates, DWI Investigation and Prosecution, Punishment and Probation, and Traffic Stops) by mail. Registration and additional information for this groundbreaking new course can be found here.

Quotes of the Month

“Senators have agreed to a much shorter opening day ceremony to reduce the time spent in a large gathering. The Senate is reducing all ceremonial events and gatherings this session to focus solely on their constitutional legislative duties.”
            —Lt. Gov. Dan Patrick (R-Houston), in a memo announcing the state Senate’s coronavirus protocols for the opening day festivities at the capitol next week.

“This will make it even harder for the public to engage in the legislative process. If you’re an activist on any given topic, it’ll be harder for you to have an impact.”
            —Brendan Steinhauser, GOP political consultant, on health and safety protocols that will limit public access to the state capitol during the upcoming session.

“I found out it’s not good to talk about my troubles. Eighty percent of the people who hear them don’t care, and the other 20 percent are glad you’re having trouble.”
            —Tommy Lasorda, Hall of Fame former manager of the Los Angeles Dodgers, who passed away yesterday at the age of 93. #RIP

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The 86^th Legislature adjourned sine die yesterday. What a wild ride it’s been!

Game over

The best news from this session might be that legislators can return home and stay there until January 2021. With the passage of HB 1 (the state budget), SB 2 (property taxes), and HB 3 (school finance), there’s no reason for the governor to call legislators back to Austin for a special session—and for that, we can all be grateful. (They did kinda-sorta-accidentally abolish the State Board of Plumbing Examiners, but that’s nothing a few extra plungers can’t keep in check until next session, right?)

Now that the session is over, the frequency of these updates will decrease to once a month or as events warrant. We hope you found them to be informative and helpful this past session!

Attorney general bill dies

As you know by now, legislation to grant new prosecution authority to the attorney general in human trafficking-related cases failed to become law. That is a direct result of your personal communications with your local legislators. It is also something that we will no doubt be working on later in the interim. Until then, it’s good for you to know what some legislators said and heard about how that all went down on Sunday, so we want to share with you the video links to the relevant floor discussions on SB 1257:

House: May 26, 2019 floor footage (Starts at 4:15:25, ends at 4:18:45)

Senate: May 26, 2019 floor footage (Starts at 2:40:10, ends at 2:47:21)

We’ll have more to say about this during our summer Legislative Update tour, but until then, be sure to thank those legislators who listened to you; there were many of them in the House, and they deserve credit for taking your concerns to heart.

Veto period

We are now in the veto period, the three weeks after a session during which the governor holds all the cards. This year, he has until Sunday, June 16 to sign or veto a bill. (In Texas, the governor can also allow a bill to become a law without his signature, but what’s the fun of being governor unless you take the opportunity to have the last word on everything?) To date, Governor Abbott has vetoed six bills sent to him, but more are sure to follow. If you want information on how to request a bill be vetoed, contact Shannon for more information.

New laws with immediate effect

More than 250 of our tracked bills made their way to the governor’s desk this session. It will take us several weeks to summarize them all for our Legislative Update book and related publications, but some have already been signed into law by the governor. Most new laws take effect on September 1, 2019, but a few bills take effect immediately upon being signed. Here are three “immediate effect” bills that have already been signed into law:

• HB 81 by Canales/Hinojosa requiring disclosure of public information relating to certain public entertainment events (effective May 17, 2019)
• SB 306 by Watson/Israel authorizing officers to divert certain intoxicated offenders to sobering centers (effective April 25, 2019)
• SB 416 by Huffman/Walle authorizing the attorney general to provide legal counsel to local governments during a declared state of disaster (effective May 20, 2019)

Curious about any other bills or issues? Contact Shannon with a bill number or issue and he’ll let you know what happened to it.

Legislative Update tour coming soon!

    Online registration for our Legislative Update summer tour is now open. Here is the schedule:

• Friday, July 19 – Austin
• Thursday, July 25 – Midland
• Friday, July 26 – San Antonio
• Friday, July 26 – Bryan
• Thursday, August 1 – Denton
• Friday, August 2 – Dallas
• Friday, August 2 – Waco
• Thursday, August 8 – Galveston
• Friday, August 9 – Houston
• Thursday, August 15 – Amarillo
• Thursday, August 15 – Beaumont
• Friday, August 16 – Lubbock
• Friday, August 16 – Conroe
• Friday, August 16 – Jacksonville
• Thursday, August 22 – McKinney
• Thursday, August 22 – Laredo
• Friday, August 23 – Fort Worth
• Friday, August 23- Edinburg
• Thursday, August 29 – Georgetown
• Friday, August 30 – Richmond
• Friday, August 30 – El Paso
• Tuesday, Sept. 17 – Corpus Christi

If you haven’t already received your brochure listing all the locations and details, a PDF version is available online here. Find a date and location convenient for you and your staff and sign up now—seating at some locations is limited and will be filled on a first-registered, first-served basis!

Scattershots

For your reading pleasure, here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

• How Kel Seliger gets by in the Texas Senate dog house (Texas Tribune)
• Texas lawmakers are done. Here are this session’s winners and losers. (Texas Tribune)
• Despite bipartisan support, bill tackling intellectual disability in death penalty cases fails (Texas Tribune)
• Analysis: Texas legislators had a successful session, but not a historic one (Texas Tribune)

Quotes of Sine, Die

“But even in states where the attorney general has prosecutorial powers, convictions are still low.”

Conclusion reached in an AP story on the relatively poor success rates of human trafficking prosecutions around the country, regardless of who prosecutes them. (Coincidentally, this story was released the same day SB 1257 was withdrawn from consideration).

“You will never please or appease those folks and I’m sure as hell not going to waste my time trying. … You are fooling yourself and you are not respecting your constituents and you are not respecting this institution if you are chasing their wants and their desires.”

House Speaker Dennis Bonnen (R-Angleton), responding to press questions about criticism of the legislature’s performance by conservative grassroots organizations like Empower Texans and Texas Right to Life.

“Pretty much, we just couldn’t get any buy in from our Senate colleagues on this.”

State Rep. James White (R-Hillister), explaining the failure of various House attempts to limit officers’ ability to arrest for certain fine-only offenses.

“I’m still doing penance for 2017.”

State Sen. Kel Seliger (R-Amarillo), on why he thinks the Lt. Governor failed to recognize him to pass any bills this entire session.

“I love being lieutenant governor. This is the coolest job in politics in the country, and it’s a very powerful job. … This rumor has absolutely been the craziest thing I’ve ever seen.”

Lt. Governor Dan Patrick (R-Houston), denying rumors that he is seeking a job in President Trump’s administration.

“Thanks Senators for your work with the House to pass legacy legislation that will improve the lives of every generation. See you in 2 years. NO SPECIAL SESSION. #txlege”

Sine die tweet by Gov. Greg Abbott.

Four days are left in this session. Major doomsday deadlines kicked in the last two nights, officially putting thousands of bills out of their misery. Both chambers killed the other’s bills due to a toxic mixture of official deadlines, unofficial retaliations, and general petulance. And things could get weirder from here!

What happens next

Due to House and Senate rules, the only legislation still alive as of 12:00 a.m. this morning are bills that have been approved by both chambers. However, many of those bills will have been substituted or amended in the second chamber, resulting in a different version being approved by each chamber. Those differences must now be reconciled in one of two ways.

First, the originating chamber that receives back one of its bills in a form that differs from what it approved may simply concur with those changes, take one final vote, and send the bill to the governor’s desk. However, if the originating chamber doesn’t like what the other chamber did, a second procedure applies—the originating chamber can refuse to concur with those changes, request the appointment of a conference committee, and appoint five members (the bill’s author plus four others named by the presiding officer) to negotiate a compromise version. The second chamber then does the same, and the eventual compromise is usually hashed out by the author of the bill in the originating chamber and the sponsor of the bill in the second chamber, who must then obtain the approval of at least two of their own conferees (for a majority of three of five conferees per chambers). If successful, then a conference committee report of that compromise goes before each full chamber for a final, up-or-down vote; no changes, no amendments, just “aye” or “nay.” Furthermore, a conference committee generally cannot go “outside the bounds” of the versions of the bill approved by each chamber, greatly limiting the opportunities for mischief—such as dead language re-appearing without notice at the last minute on a different bill. As a result, most of the remaining drama of the session depends on whether the less-predictable House can vote down a bill on which the Senate would not compromise or kill a bill due to a point of order.

Status of various issues

Here is the latest information on a variety of issues that we have been following this session (listed alphabetically):

AG prosecution authority: The Senate refused to concur with the Moody amendment to SB 1257 by Huffman/Leach. A conference committee has been requested by the Senate, whose conferees are Huffman, chair; Nelson, Creighton, Alvarado, and Flores. The House appointed Leach, chair; G. Bonnen, Collier, P. King, and Moody. We will alert you when the final version is official, at which point you will want to alert your House member(s) of your position on the bill depending on what is in it.

The language of SB 1257 was also grafted onto HB 3800 by S. Thompson/Huffman in a  Senate committee and passed. The House author must now concur or go to conference to strip out that added language. Again, you should alert your House member(s) if you want to weigh in on that issue.

Assistant prosecutor longevity pay: Preserved with a supplemental appropriation for this fiscal year and an infusion of general revenue for fiscal years 2020 and 2021. 

Bail bond reform: Dead.

Budget: The conference committee report for the State Appropriations Act, a.k.a. HB 1, should be out soon so that it can be debated this weekend.

Civil asset forfeiture: Everything is dead but for HB 2613 by Frullo/Huffman, which expands (rather than limits) civil asset forfeiture; it passed the Senate yesterday and is on its way to the governor’s desk.

Contingent fee contract limitations: HB 2826 by G. Bonnen/Huffman is on its way to the governor’s desk.

Death penalty. Bills limiting the death penalty or creating new procedures for defendants with serious mental illness are dead, but a dramatically stripped-down version of HB 1139 by S. Thompson/Miles to prohibit the execution of a person with intellectual disability was approved by the Senate yesterday and now returns to the House for it to concur.

Deferred adjudication for certain DWIs: HB 3582 by Murr/Menendez is awaiting House approval of the Senate’s changes.

Driver Responsibility Program repeal: HB 2048 by Zerwas/Huffman is awaiting House approval of the Senate’s changes.

Grand jury reform: Dead. (SB 1492 by Whitmire/Collier failed to make it through the House process quickly enough to make the final House calendar.)

Hemp/CBD legalization/regulation: The House concurred in Senate changes to HB 1325 by T. King/Perry, and the bill is off to the governor.

Judicial branch pay raise: House Bill 2384 by Leach/Huffman passed the Senate at 12:15 a.m. this morning—don’t worry, the Senate is not as persnickety about its midnight deadlines as the House—and now returns to the House for that chamber to agree with the Senate’s changes or go to conference.

Limits on local government lobbying: After numerous floor amendments that limited its scope, SB 29 by Hall/Middleton was defeated by a vote of 85–58. (To see how your representative(s) voted, click here.)

Marijuana: Everything else cannabis-related is dead except for HB 3703 by Klick/Campbell, which incrementally expands the state’s compassionate use program; that bill passed the Senate and now returns to the House for concurrence or conference.

State jail felony reforms: Dead.

Curious about any other bills or issues? Contact Shannon with a bill number or issue and he’ll let you know.

What’s passed so far?

Believe it or not, the Legislature has already passed more than 125 of the bills we are tracking this session. We’ll have more details in future session wrap-ups, but here’s a short list of bills destined to become law if they can avoid the governor’s veto stamp.

House: HB 51 by Canales/Zaffirini creating standard forms for statewide use in criminal matters; HB 98 by Gonzalez/Huffman revising the state’s revenge porn offense; HB 302 by Paul/Hughes providing defenses to carrying firearms on certain residential or commercial property; HB 446 by Moody/Perry legalizing clubs and brass knuckles; HB 667 increasing the penalty range for certain sexual assaults involving incest; HB 892 by Kuempel/Hughes authorizing county regulation of game rooms; HB 902 by Landgraf/Huffman increasing penalties for assaulting a pregnant woman; HB 2730 by Leach/Hughes narrowing the scope of the anti-SLAPP TCPA; HB 2789 by Meyer/Huffman criminalizing unsolicited adult sexting; and HB 3490 by Cole/Huffman criminalizing online harassment.

Senate: SB 201 by Huffman/Oliverson enhancing punishments for certain looting-related crimes; SB 325 by Huffman/Landgraf creating a state protective order registry; SB 1259 by Huffman/Klick criminalizing fertility fraud; SB 1268 by Watson/Moody authorizing multiple victim allocutions; and SB 1802 by Huffman/Hunter increasing penalties for various prostitution and sex trafficking-related crimes.

If historical trends hold, another 150–200 of our tracked bills will also be sent to the governor’s desk over the next five days. That’s a lot of new laws! Gee, if only there was someone out there who summarized all those impending changes for you. …

Legislative Update seminars

This seems like a good time to tell you that we have opened online registrations for our Legislative Update tour this summer! We’ll visit more than 20 locations throughout Texas in July and August to teach you, your staff, and your local court and law enforcement communities about all the new laws that will impact your work. If you haven’t already received your brochure listing all the locations and details, a PDF version is available online here. Find a date and location convenient for you and your staff and join us for the big show!

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

• Analysis: Welcome to Hell Week for the Texas legislature (Texas Tribune)
• To avoid infighting in the House, did Speaker Bonnen kill controversial bills? (Dallas Morning News)
• Some prosecutors want to keep low-level criminals out of jail, but some state officials and police aren’t happy (Texas Tribune)

Quotes of the Week

“It’s still such a new area of reform that we’re not sure exactly how it’s going to end up. But it’s encouraging that the reform movement has expanded beyond just police accountability and beyond judicial accountability.”

Jay Jenkins, attorney with the Texas Criminal Justice Coalition, on new policies being adopted by some metro-area prosecutors in Texas.

“I’m sick of this sh!t.”

State Rep. Jonathan Stickland (R-Bedford), overheard at the dais during a heated argument over whether the House rules allowed that chamber to resurrect SB 10, one of the governor’s emergency items on mental health funding that Stickland had killed earlier on a point of order. The bill’s language was successfully amended onto SB 11 (school security) and returned to the Senate in an effort to avoid triggering a special session.

“No one has talked more and done less.”

State Rep. Travis Clardy (R-Nacogdoches), when asked to describe Rep. Stickland in a recent profile of the controversial legislator.

Only 10 days left, and the end can’t come soon enough—especially since the House and Senate are both still working as we send this out, and the House will work Saturday while the Senate will work Sunday, leaving us with about 18 hours of “weekend” to enjoy, most of which we hope to spend sleeping.

Expanding AG authority

After being amended on second reading with language that conditions the AG’s prosecution of human trafficking cases on the consent of the local prosecutors, SB 1257 by Huffman/Leach was passed on third reading today by a vote of 120-14 (vote tally available here). The bill was originally scheduled for a vote yesterday but was postponed to give the bill’s proponents more time to whip support for the amended bill on the floor; that work, combined with the floor amendment’s consent language, resulted in the vote margin on the amended version of the bill.

The bill now heads back across the rotunda where the bill’s Senate author must decide whether to concur with the House’s change or not. If the latter, then the Senate and House will appoint a conference committee and agree on a version which is likely to be the original language (without the House floor amendment’s consent requirement). We will let you know if that happens and what comes next.

Meanwhile, in the furious final Senate committee hearings that occurred today, HB 3800 by S. Thompson—which requires some jurisdictions to report certain human trafficking data to the AG—was changed by Senator Huffman in the Senate Criminal Justice Committee to include SB 1257’s original language granting the AG original criminal jurisdiction in trafficking cases. That bill now heads to the Senate floor, and if it passes with that new language on it, then it returns to the House to decide whether to keep the amendment or not.

We know more about these events than we can share here, so if you have further questions, contact Rob or Shannon.

Grand jury reform

As it did in 2017, a slimmed-down version of grand jury revisions made it out of the Senate late in the session and—as of 5:00 p.m. today—has just been approved by the House Criminal Jurisprudence Committee. That’s where the bill in 2017 died, but this session’s version—in the form of SB 1492 by Whitmire/Collier, which is very different from last session’s language—is unlikely to meet that same fate this session, so look for it on the floor next week. The danger is that it gets loaded up with amendments on the House floor, but we will watch it for you and let you know if so.

Judicial branch pay raise

House Bill 2384 by Leach/Huffman, the tiered pay raise bill that includes district and county attorneys, was voted from the Senate State Affairs Committee yesterday but the new text is not yet available online. The original layout in that committee still included prosecutors so we assume all is well until we hear differently; when we know more, you will know more.

Limits on local government input

SB 29 by Hall/Middleton, which would limit local government input in the legislative process on certain issues and potentially bar them from paying association dues for their employees, was on today’s calendar but had to be returned to committee to fix a paperwork problem. It now returns to the Calendars Committee for likely consideration next week. That committee also has before it SB 702 by Bettencourt/Harless, which requires county commissioners to publicly vote on legislative expenditures and annually report those expenditures.

Other major issues

Here’s a rundown of where some other issues that we’ve been following this session currently stand (listed alphabetically):

Bail bond reform: HB 2020 by Kacal (R-College Station) was never referred to a committee in the Senate, so it appears there will be no significant statutory changes to pretrial release this session.

Deferred adjudication for certain DWIs: HB 3582 by Murr/Menendez passed the Senate and now returns to the House for that body to concur with the changes made in the Senate.

Driver Responsibility Program repeal: HB 2048 by Zerwas/Huffman passed the Senate today and how returns to the House for it to concur with the Senate’s changes.

Marijuana/hemp/CBD/kitchen sink: HB 1325 by T. King/Perry, which would legalize and regulate hemp—including consumable hemp products like CBD oils and such—was approved by the Senate; it now returns to the House for its consideration of the Senate’s changes. A Senate committee also revised and passed HB 3703 by Klick/Campbell, which will incrementally expand the state’s compassionate use program, and that bill will now head to the Senate floor.

Deadlines

Here are the looming deadlines for bills that have not already passed both chambers:

Sunday, May 19, 10 p.m.: Last House calendar for SBs must be printed

Tuesday, May 21, midnight: Last day for House to pass SBs on 2^nd reading

Wednesday, May 22, midnight: Last day for Senate to pass HBs on 2^nd & 3^rd reading

In other words: The threshing floor will be littered with dead bills by this time next week.

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

• Inside the story of how Democrats killed a law that could have saved Sandra Bland (Texas Monthly)
• Comptroller increases state budget revenue estimate by another $500 million (Texas Tribune)
• Opinion: Hometown control, freedom under attack in Texas Legislature (Fort Worth Star-Telegram)
• Changes looming for pretrial practice in civil cases as bills pass State Senate committee (Texas Lawyer)
• Bill to ban red light cameras is one step from becoming law (Dallas Morning News)

More Quotes of the Week

“The fight against human trafficking requires more investigating and less grandstanding, and local Texas prosecutors stand ready to carry out that mission.”

Closing line of an op/ed by Travis County DA Margaret Moore, El Paso County DA Jaime Esparza, and Harris County DA Kim Ogg, written in opposition to SB 1257.

“Have enough bills passed yet transferring more power to the Office of the Attorney General? There are only 12 days left, y’all.”

Tongue-in-cheek tweet by Scott Braddock, editor of the Quorum Report.

“We’re officially changing ‘hump day’ to ‘hemp day.’”

State Sen. Charles Perry (R-Lubbock), laying out his bill to legalize hemp earlier today.

“House Bill 2754 died due to a toxic mixture of incompetence and bad faith in a lawmaking environment that speeds to a blur in the weeks at the end of the session, when it can be difficult for even veteran lawmakers to keep track of what’s going on on the floor. That creates fertile ground for mistakes, and for interest groups to take advantage of those mistakes.”

Christopher Hooks, Texas Monthly reporter, on the demise of a bill to limit peace officers’ ability to make arrests for fine-only offenses.

“I think it’s a meaningless, ineffectual way to proceed, and I’m opposed to it, and I’m opposed to how this committee has worked with us, … and to find out as I’m sitting out in the audience that you gutted the entire bill I think is inexcusable, and I’m upset about it. … I may just join you on the bench [sic] next time to make sure that I prevail. In other words, maybe I’ll just run [for state senate] and make sure I can have my voice heard more clearly. This will be the encouragement I need.”

Elsa Alcala, policy director for the Texas Defender Service (and former Court of Criminal Appeals judge), arguing with senators on the Senate State Affairs Committee after they narrowed the scope of HB 1139 by S. Thompson/Miles, the bill on intellectual disability and the death penalty. (To watch the entire uncomfortable exchange, click here for the video feed and fast-forward to the 43:35 mark.)

Aaaaand down the stretch they come! A mere 13 days remain in this regular session, which means we’ll be on the clock around the clock from now through Memorial Day, when the 86^th Legislature will adjourn sine die (“without day,” meaning a final adjournment). And unlike this year’s Kentucky Derby, legislators will be obstructing the heck out of each other with impunity as they approach the finish line. With that in mind, some bills we have been watching all session are making their final push for passage—read on for details.

AG authority

After being held in the Calendars Committee for almost two weeks, SB 1257 by Huffman/Leach will come before the full House tomorrow (Wednesday). The bill itself—which has faced opposition from a bipartisan group of elected prosecutors—has been placed on the calendar for a floor vote. In addition, the language of the bill may be offered as an amendment to SB 20 by Huffman/S. Thompson, this session’s omnibus human trafficking bill. (We told you in our most recent update that the sponsor of SB 1257 might add that language to SB 20 by amendment, and that prediction turned out to be correct, but debate on SB 20 was postponed to Wednesday.) If you object to SB 1257’s language and want to rally your state reps to your side, you’ll have to call them ASAP—and remember to note both ways in which the topic may come before them tomorrow.

Grand jury reform

Those of you who recall last session’s battle of “grand jury reform” might be feeling a bit of déjà vu right now. In 2017, a slimmed-down version of grand jury revisions made it out of the Senate during the penultimate week of that session and went to the House, where that bill made it out of committee but died before it could be calendared.

Well, guess what? As we enter the penultimate week of this session, a committee substitute version of this session’s “grand jury reform”— SB 1492 by Whitmire (D-Houston)—could be debated on the Senate floor as soon as tomorrow (Wednesday), and if it passes it will be sent to the House for quick consideration. For details of this session’s bill—which would require the recording of certain witnesses, bar certain re-presentments, and create a new commission to recommend future changes—please re-read the description in our more recent update and let us know what you think. Keep in mind as well that the make-up in the House is different from last session, so as they say on Wall Street, “past performance is no guarantee of future results.” For more information on this topic, contact Rob or Shannon.

Assistant prosecutor longevity supplements

On Monday, the HB 1 (state budget) conference committee announced decisions on several pending budget items for the upcoming 2020–21 biennium, including assistant prosecutor longevity pay. The good news is that the conference committee accepted the House’s recommendation to fully fund the supplement with additional general revenue through the next biennium. That still leaves work to do over the interim to identify a more stable stream of future funding for the supplement, but it is gratifying to know that legislators didn’t leave assistant prosecutors in the lurch. Particular thanks go to Senator Joan Huffman (R-Houston) and Representative Oscar Longoria (D-Mission), the conference committee members who made sure this got done.

Updates on other major issues

Here’s a rundown of where some other issues that we’ve been following this session currently stand (listed alphabetically):

Bail bond reform: HB 2020 by Kacal (R-College Station) will be heard in the Senate Criminal Justice Committee tomorrow (Wednesday).

Death penalty: HB 1139 by S. Thompson (D-Houston) to require pre-trial determination of intellectual disability in death penalty cases is pending in the Senate Criminal Justice Committee. HB 1936 by Rose (D-Dallas) to exclude the serious mentally ill from the death penalty was received in the Senate but has not yet been referred to the Criminal Justice Committee.

Deferred adjudication for certain DWIs: HB 3582 by Murr (R-Junction) is on the Senate Local and Uncontested Calendar tomorrow. Should it pass, it must return to the House for that body to concur with the changes made in the Senate.

Driver Responsibility Program: HB 2048 by Zerwas (R-Richmond), the repeal-and-replace bill that changes DWI surcharges into state fines, is eligible for Senate floor debate today. If it passes without further changes, it will be sent to the governor for his approval.

Judicial branch pay raises: House Bill 2384 by Leach/Huffman, the tiered pay raise bill that includes district and county attorneys, is still pending in the Senate State Affairs Committee. We are still tracking down the official details, but we believe the HB 1 conference committee has set aside money for a raise if HB 2384 passes; if not, then there will be no raise. We will pass along confirmation of that when we see it on paper.

Limits on contingent fee legal contracts: HB 2826 by G. Bonnen (R-Friendswood) was voted from the Senate State Affairs Committee on Monday and will be eligible for consideration by the full Senate later this week. A similar Senate bill, SB 970 by Creighton (R-Conroe), passed the Senate last week and has been referred to the House Judiciary & Civil Jurisprudence Committee.

Limits on legislative input: SB 29 by Hall (R-Edgewood) remains stuck in the House Calendars Committee.

Marijuana/hemp/CBD/kitchen sink: HB 63 by Moody (D-El Paso), the bill to change low-level marijuana possession to a civil infraction, and HB 1365 by Lucio III (D-Brownsville), a broad medical marijuana bill, have been received but not referred to committees in the Senate, which is the Lite Guv’s way of saying “thanks but no thanks.” However, HB 3703 by Klick (R-Fort Worth), which is a less dramatic expansion of Texas’ compassionate use program (“T-CUP”), has been referred to a Senate committee, so look for that bill to move (although its scope might be further narrowed in the upper chamber). Also, a substitute version of HB 1325 by T. King/Perry, which would legalize and regulate hemp—including consumable hemp products like CBD oils and such—is eligible for approval by the full Senate as soon as tomorrow.

Committee hearings

This will be the final week for committee hearings. Notices are being posted and revised with little or no warning as we near the end of session. Here’s what has been posted so far, keeping in mind that these postings are almost guaranteed to change on a moment’s notice:

Wednesday, May 15

Senate Criminal Justice – 8:30 a.m., Room 2E.20

• HB 51 by Canales/Zaffirini creating standardized criminal court forms for statewide use
• HB 616 by Neave/Nelson regarding rape kit reimbursements
• HB 667 by K. King/Perry increasing penalties for sexual assaults that involve incest
• HB 902 by Landgraf/Huffman increasing penalties for assault of a pregnant woman
• HB 1343 by Leach/Paxton expanding the offense of improper inmate/victim contact
• HB 1355 by Button/Johnson expanding the jurisdictions in which certain DWI blood warrants may be executed
• HB 1590 by Howard/Watson creating a statewide Office for Sexual Assault Survivor Assistance
• HB 1661 by Herrero/Hinojosa clarifying the scope of and venue for continuous family violence prosecutions

Thursday, May 16

House Corrections Committee – 8:00 a.m., E2.030

• SB 550 by West authorizing non-disclosures for set-aside probations
• SB 1147 by Buckingham authorizing medication-assisted treatment for DWI probationers
• SB 1217 by Alvarado barring the consideration of dismissed charges in occupational licensing

Floor calendars

Bills set for floor debate this week in the House include (in order of appearance): SB 21 by Huffman/Zerwas (raising smoking age to 21), SB 362 by Huffman/Price (mental health/competency diversions), SB 20 by Huffman/S. Thompson (omnibus human trafficking), and SB 1257 by Huffman/Leach (AG prosecutions of human trafficking).

Across the rotunda, the Senate Intent calendar this week includes (in numerical order): SB 1492 by Whitmire (grand jury reforms), HB 504 by Dutton/Miles (employment protections for grand jury service), HB 869 by Cole/Hughes (credit card skimmers at gas pumps), HB 892 by Kuempel/Hughes (county regulation of game rooms), HB 1325 by T. King/Perry (legalizing hemp), and HB 2048 by Zerwas/Huffman (DRP repeal-and-replace).

Deadlines

The second wave of legislative deadlines are nearing, as follows:

Sunday, May 19, 10 p.m.: Last House calendar for SBs must be printed

Tuesday, May 21, midnight: Last day for House to pass SBs on 2^nd reading

Wednesday, May 22, midnight: Last day for Senate to pass HBs on 2^nd & 3^rd reading

Sunday, May 26, midnight: Last day for House & Senate to concur/adopt reports

This means that a Senate bill must make it onto a House calendar and be voted upon no later than next Tuesday at midnight, while a House bill must be voted upon by the Senate on second and third reading by Wednesday at midnight. Those deadlines will kill several hundred more bills.

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

• Analysis: The Texas Legislature’s unexciting, no drama, very humdrum session (Texas Tribune)
• Sandra Bland-inspired bill to limit arrests for fine-only crimes fails due to House infighting (Texas Tribune)
• Texas cities’ legislative efforts have struggled this session (Texas Tribune)
• What Texas lawmakers may sacrifice to get judges a pay raise (Dallas Morning News)
• Meet the staffers who keep Texas lawmakers in check under the dome (Texas Tribune video)

Quotes of the Week

“Legislators don’t want to give themselves a raise.”

State Sen. Joan Huffman (R-Houston), explaining the origin of the tiered structure of the judicial branch pay raise in HB 2384 by Leach/Huffman.

“I had never been more discouraged in our leadership. How did settling personal scores become more important than policy?”

George Fuller, mayor of McKinney, giving his explanation for why local government groups like the Texas Municipal League are struggling to be heard this session.

“No. Funny to Jonathan Stickland, not funny to me.”

State Rep. Mary Gonzalez (D-Clint), when asked if she thought it was funny how State Rep. Jonathan Stickland (R-Bedford) over-dramatically killed her bill on the House’s Local and Consent Calendar that would have regulated certain pecan buyers.

Madame Guillotine dropped with a fury last night as the primary House bill deadline of the session killed several thousand bills. Of the 7,000-plus bills and resolutions filed this session, about 2,000 are still “alive” with 17 days remaining in the regular session. And of the 1,600-or-so bills we have been tracking this session, about 400 are still alive in bill form (not counting dead bill language that may be resurrected as an amendment to a live bill).

Judicial branch pays raises

House Bill 2384 by Leach/Huffman, the tiered pay raise bill that currently includes district and county attorneys, was heard in the Senate State Affairs Committee this week and left pending. We told you earlier in the week what the new committee substitute includes and what it does not include. Overall, it will result in a raise for most elected felony prosecutors and county attorneys, but your mileage may vary. Now the bill awaits a vote in Senate State Affairs and potential consideration by the full Senate. One further caveat, though: Even if this bill passes and is signed by the governor, any raises are still contingent on state budget writers funding it, which is never guaranteed until the HB 1 conference committee report comes out (and that might not be for another two weeks).

We will keep you posted on this topic as events warrant. If you have questions about any of this, contact Rob.

Grand jury bill voted from committee

Earlier today, the Senate Criminal Justice Committee voted out a committee substitute of SB 1492 by Whitmire (D-Houston), this session’s only remaining grand jury reform bill. (House Bill 2398 by S. Thompson never emerged from the House Criminal Jurisprudence Committee.) The Senate’s new version (PDF text available on our website here) does three things:

• Grand jury testimony of any fact witness must be recorded, with a “fact witness” defined as someone with personal knowledge of events relevant to an investigation (such as an eyewitness or victim or arresting officer);
• Bars re-presentment of no-billed cases absent material evidence unknown to the prosecutor at the previous presentment; and
• Creates a temporary Texas Commission on Grand Juries to meet during the coming interim and explore improvements and alternatives to the current system for formally charging felony cases, such as a direct-file-plus-examining-trial option in lieu of a grand jury.

The bill now heads to the Senate floor for consideration. It has 12 days to be approved by both chambers, but that is enough time for a bill like this being privately pushed by certain public figures. Therefore, each of you who opposed the original version needs to read the new one and let us know your thoughts—many inquiring minds at the capitol want to know! We have more relevant information and details about this topic for those interested, so consider contacting Rob or Shannon before acting on any of the details described above.

Committee hearings

Hearing notices are being posted and revised with little notice as we near the end of session. Here’s what has been posted so far:

Monday, May 13

Senate State Affairs – 9:00 a.m., Senate Chamber

• SB 93 by Canales/Hinojosa requiring a magistrate’s name on certain signed orders
• HB 888 by Landgraf/Perry criminalizing the misrepresentation of a child’s family status at a port of entry
• HB 1177 by Phelan/Creighton legalizing the unlicensed carrying of a handgun during a disaster
• HB 2730 by Leach/Hughes limiting the scope of the ant-SLAPP Texas Citizens Participation Act
• HB 2826 by G. Bonnen/Huffman limiting local gov’t contingent fee legal contracts
• HB 2955 by Price/Zaffirini shifting oversight of specialty courts to the Office of Court Administration (OCA)

FYI, no elected prosecutors have volunteered for legislative duties next week, so if you have an interest in any “live” bills, you will have to take matters into your own hands. This may be your last chance to push a bill you like or stop a bill you dislike. All the other committees we usually follow will post notice for their hearings later today or early next week, so if you are following a bill that is alive and still needs to be considered in a committee in the other chamber, check with Shannon for posting details.

Floor calendars

Monday’s House floor calendar includes SB 20 by Huffman/S. Thompson, the omnibus human trafficking bill. That bill has been well-vetted, but it’s possible someone could try to amend it with language from SB 1257 (AG prosecution authority), so if you opposed that bill (which is stuck in the Calendars Committee), now might be a good time to alert your House member(s) to watch out for that proposal. Such an amendment would violate House Rule 11, Section 2, for not being germane to the language of SB 20, but germaneness is like traveling in basketball—if no referee (read: House member) calls the foul (read: point of order) as it happens, then the basket still counts.

Across the rotunda, the Senate Intent calendar for Monday includes: HB 892 by Kuempel/Hughes authorizing county regulation of game rooms; HB 2048 by Zerwas/Huffman repealing and replacing the DRP with new fines, etc.; HB 2502 by Moody/Watson imposing jail time as a condition of probation in certain hit-and-run fatalities; HB 2624 by Perez/Zaffirini facilitating certain fraud prosecutions; HB 3106 by Goldman/Huffman requiring certain sex crime investigation information to be entered into a federal database; and HB 3582 by Murr/Menendez authorizing deferred adjudication for certain DWI-1^st offenders.

Bills in House Calendars

For those of you working with members of the Calendars Committee, some of the Senate bills pending before it include: SB 29 by Hall/Middleton limiting local government dues to statewide associations and local officials’ activity at the capitol; SB 194 by Perry/Moody creating the offense of indecent assault; SB 891 by Huffman/Leach, the omnibus court/prosecutor office creation bill; SB 1257 by Huffman/Leach granting new prosecution authority to OAG; and SB 1640 by Watson/Phelan to fix the “walking quorum” offense. If you support or oppose any of these bills and have not already weighed in with the Calendars Committee, now is the time to do that; bills not out of the Calendars Committee by Sunday, May 19, are dead.

Looking ahead

Legislators will get this weekend off (Happy Mother’s Day!) before the final dash to the sine die finish line. Next week will see the last round of committee hearings in which hundreds of House bills will be considered by Senate committees and hundreds of Senate bills will be considered by House committees. (More specifics on that below). Both chambers will also hold daily floor calendars and will likely schedule floor debates on Saturday, May 18, in their rush to complete work on various bills before the deadlines that kick in on Tuesday, May 21 (for SBs in the House) and Wednesday, May 22 (for HBs in the Senate). After that, it’s pretty much all over but the crying.

More Quotes of the Week

“Be pro-life from the womb to the tomb.”

State Rep. Toni Rose (D-Dallas), arguing for passage of her HB 1936 which exempts people with serious mental illness from the death penalty. After minimal debate, the bill passed the House on third reading Thursday by a vote of 77-66 and now heads to the Senate.

“I don’t miss 39 little league baseball games [during session] just to pass a study.”

State Rep. Dade Phelan (R-Beaumont), rejecting a suggestion during debate on his SB 1152 (limiting municipal cable/telecommunications fees) that the Legislature should study the issue during the next interim rather than pass a law now.