The final House calendar for non-local House bills has been set for tomorrow; bills not on it are dead, and some bills that are on it are also dead—they just don’t know it yet—because they won’t be reached before Thursday’s midnight deadline. Pour one out for everyone whose bill will turn into a pumpkin then.

Judicial branch pay raises

House Bill 2384 by Leach (R-Plano), the tiered pay raise bill that currently includes district and county attorneys, is up for consideration in the Senate State Affairs Committee tomorrow at 9:00 a.m. in the Senate chamber. Earlier this evening, we were given a preview of the committee substitute version to be laid out in that hearing. The good news is that prosecutors are still in it, but it has been slimmed down to fit within the state budget writers’ original parameters. Here’s a quick thumbnail of the (somewhat complicated) provisions that affect prosecutors:

• The original three 10-percent raise tiers are reduced to two for DAs and district judges:
  • $140k for 0-4 years (current baseline)
  • $154k for 4-8 years
  • $168k for 8+ years
• District judges and DAs lose the third-tier raise (after 12 years) in the original version, but the most experienced judges will get some of it back through an acceleration and increase of their current longevity pay, which will kick in at 12 (instead of 16) years of service
• Elected prosecutors have no similar longevity pay, but DAs’ county supplements will remain uncapped; however, highly-supplemented prosecutors may see no raise from this bill—it will depend on their years of service and supplement amount
• DAs’ 2.3-percent retirement multiplier will be maintained
• The fate of the retirement “make-up” pay that DAs currently get from the comptroller is uncertain and it may go away; its fate will be decided by the HB 1 conference committee
• The House amendment to credit district judges for prior service as a DA is being dropped to help control the cost of the bill (That may create a financial disincentive for a DA to run for a district court bench, but we’re betting the current judges don’t mind that)
• The county attorney supplement provisions are still in the bill and will be calculated under the new formula using the service credit of a similarly-tenured district judge
• Retired DAs will receive no ERS increase
• In some circumstances, the new formula could encourage a county to cut a DA supplement and allow the state to pick up the salary, which might negatively impact the DA’s TCDRS retirement benefits; that will vary by jurisdiction and will be up to each local community to work out.

So, in summary: Under this plan, most DAs will get a raise after four years and against at eight years; others will see no raise after four but will see a raise after eight; a few high-salaried DAs will not see a raise at all under this plan; and CA supplements will also increase, but in smaller percentages due to the existing formula already in place. In each case, the amounts in question will vary from person to person and county to county, so if you have questions about any of this, email Rob or call him at 512/971-8425. He stands ready to calculate your expected pay under this bill if you are curious!

Meanwhile, if you still support this proposal in its new format, now is the time to let your senator(s) know that.

Continuing attempts to limit your voice in Austin

House Bill 281 by Middleton (R-Wallisville) was not calendared for debate before the applicable deadline and is now dead. Congratulations to all of you who opposed that bill and worked to keep it from reaching the House floor. But unfortunately, the march to muzzle local officials at the legislature continues; here’s the latest information we have on that front.

While HB 281 is dead, its more robust cousin, SB 29 by Hall, is still alive and kicking. That bill is now in the Calendars Committee and has until Sunday, May 19 to be placed on the final House calendar for Senate bills later that week. The bill has been narrowed somewhat (latest version available here), but it would still:

• prohibit local governments from spending funds to attempt to influence legislation pertaining to taxation, bond elections, tax-supported debt, or “ethics and transparency of public servants” (whatever that means);
• prohibit local governments from paying dues or other monies to any association or organization unless it exists “for the betterment of all local officials” (not just a particular group like prosecutors or clerks, but all local officials); and
• requires local governments to issue an annual report publicizing how much money they spend on lobbyists.

As we’ve repeatedly noted, this bill prohibits expenditures of county funds for membership in organizations like TDCAA, TCDLA (for public defenders), TAC, the Sheriffs’ Association of Texas, and numerous other similar groups. Even though SB 29’s anti-lobby provision has been limited to certain subjects, legislation on those subjects may be extremely detrimental to your ability to address the needs of your respective offices and communities—not to mention the fact that the list of prohibited policy topics could be expanded on the House floor by amendment. Therefore, if you are concerned about this legislation, you should consider contacting any members of the House Calendars Committee that you know and ask them to hold SB 29 in committee (just as they did with HB 281).

In addition, the House State Affairs Committee heard SB 702 by Bettencourt (R-Houston) earlier today which would require any lobby expenditure by a political subdivision to be specifically authorized by the governing body of the subdivision in an open meeting by a majority vote of the governing body as a stand-alone measure, as well as requiring various public disclosures of that funding to the public. How this bill would apply to expenditures by a prosecutor—who is an independent constitutional officer but who relies on local counties for his or her funding—is unclear. Should it be interpreted to give your local commissioners a “purse string veto” over your involvement in the legislative process, it may be very concerning to some of you. The bill was left pending in House State Affairs, so if you oppose this idea, consider contacting the members of that committee (and if it proceeds from there, then the House Calendars Committee members as well).

House floor fun

If you had any doubts about our frequent warnings that otherwise palatable bills can metastasize into something bad on the often-unruly House floor, last night was a good lesson of that maxim in action.

Yesterday’s House calendar included HB 2613 by Frullo (R-Lubbock), a non-controversial, uncontested bill creating a new trafficking-related crime and directing forfeiture proceeds from the prosecution of that crime to trafficking victim services. Upon being called up around 7:30 p.m., the bill immediately starting getting amended on the floor, first with increased forfeiture auditing and reporting requirements, then with language that applied the exclusionary rule to those civil cases. Despite vocal opposition from Reps. Frullo, Andy Murr (R-Junction), Phil King (R-Weatherford), and several other House members, both amendments were approved on division (non-record) votes, at which time Rep. Frullo postponed his bill to a date past sine die, killing it. Some saw that as a drastic measure, but we recognized it as him keeping his word to interested stakeholders earlier in the session that he would not let his bill be hijacked by unfriendly amendments. It is no small thing for a legislator to kill one of his own bills—especially one so close to possible passage—but it’s nice to know that some legislators are true to their word, and Rep. Frullo deserves credit for doing so. And it all worked out well for him in the end, because earlier today he was able to resurrect HB 2613, strip off the uninvited amendments, and pass a “clean” version of the original. So sometimes these legislative stories do have a happy ending.

That said, there is yet another vehicle for forfeiture-related amendments on the horizon: HB 2058 by Hernandez (D-Houston) is on the final House calendar for Thursday, and if it is reached, it will likely be subject to the same attacks. Her staff has given us assurances similar to those given by Rep. Frullo, but once again we will watch with interest and keep everyone updated as events warrant.

Updates on other major issues

House bills are dying by the hundreds (thousands?) this week (but see our caveat in the section following). With that in mind, here’s where things stand on some issues that we’ve been following this session (listed alphabetically):

AG’s expanded authority: HB 3979 by Leach (R-Plano) was not calendared and is dead. Its Senate companion, SB 1257 by Huffman/Leach, is pending in the House Calendars Committee.

Asset Forfeiture: HB 1615 by Schaefer (R-Tyler) to require the State to disprove the innocent owner defense was not calendared and is dead.

Bail bond reform: HB 2020 by Kacal (R-College Station) (limitations on bail) is on today’s House calendar for debate and took several amendments before being temporarily postponed due to some points of order. However, HB 1323 and HJR 62 by Murr (R-Junction) (preventative detention) and HB 3283 by White (R-Hillister) (bondsmen’s version) were not calendared and are dead.

Death penalty: HB 1139 by S. Thompson/Miles to require pre-trial determination of intellectual disability in death penalty cases was heard today in the Senate Criminal Justice Committee and left pending. HB 1936 by Rose (D-Dallas) to exempt seriously mentally ill offenders from the death penalty was heard today on second reading and passed without debate or objection, but we are told it may lack the votes to pass by record vote on third reading tomorrow, so that may or may not happen.

Deferred adjudication for certain DWIs: HB 3582 by Murr/Menendez was heard today in the Senate Criminal Justice Committee and voted out as substituted; it will be eligible for consideration by the full Senate next week.

Driver Responsibility Program: HB 2048 by Zerwas/Huffman, the repeal-and-replace bill that changes DWI surcharges into criminal fines, is awaiting debate on the Senate floor.

Grand juries: HB 2398 by Thompson (D-Houston) was never calendared and is dead. Its semi-companion, SB 1492 by Whitmire (D-Houston), is pending in the Senate Criminal Justice Committee, but a slimmed-down committee substitute version may emerge from that committee soon (contact Rob for the latest intel).

Limits on contingent fee legal contracts: HB 2826 by G. Bonnen (R-Friendswood) is now awaiting consideration in the Senate State Affairs Committee.

Marijuana: HB 63 by Moody (D-El Paso) (Class C POM) passed the House but has not been referred to a committee yet. HB 1365 by Lucio III (D-Brownsville)—a relatively expansive “medical cannabis” law—and HB 3703 by Klick (R-Fort Worth) (compassionate use program) passed the House this week and are also awaiting referral to a committee in the Senate. If not referred to committees by the Lite Guv, these bills will be dead.

It ain’t over ’til it’s over

Even though the clock has run out on most House bills, it’s too early to throw dirt on the ideas they contained. Some have Senate companions that are still alive, and any idea or language that has not been voted down can re-appear as a floor amendment at any time. Senate bills have 11 days (until Sunday, May 19, at 10:00 p.m.) to be placed on the final House calendar for consideration in that chamber, and both chambers have until Wednesday, May 22 at midnight to finally pass on third reading. In other words, … there’s no rest for the weary just yet!

Scattershots

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

• Texas House passes two medical cannabis bills, one much narrower than the other (Texas Tribune)
• Texas lawmakers want to send fewer moms to prison (NPR)
• Analysis: No bills are finally dead yet, but some are starting to smell funny (Texas Tribune)

Quotes of the Week

“I’m dealing with my three kids, I’m dealing with my career, the fourth baby coming and the stress of law school. Just because you do an apprenticeship does not mean that it’s anything less—I mean, you have to put in 18 hours a week. It is a full commitment. I won’t have time for events, for favors, for friends, for literally anything, for four years.”

Kim Kardashian West, bemoaning the time and effort it takes to become a lawyer.

“Vote yes if you support open season on drones so you can protect your private property from gun-toting drones that could have lasers.”

State Rep. Briscoe Cain (R-Houston), arguing in support of his floor amendment to HB 4448 by Springer (R-Muenster) that would have allowed people to shoot down drones with a shotgun. Rep. Cain’s amendment failed on a vote of 81–56, and Springer’s bill was eventually voted down by a 95-50 vote.

“Members, I move to postpone further consideration of HB 2613 until 12:00 noon, January 12, 2021.”

State Rep. John Frullo (R-Lubbock), temporarily killing his own bill on the House floor after it took several unfriendly amendments that he could not defeat.

“TX House had a discussion abt civil asset forfeiture that was long overdue. Proud to lead us forward w/2 significant reforms that passed w/bipartisan support. Ultimately the bill was pulled down, but opponents to reform should note the votes and be very afraid. #txlege #CJReform”

Tweet by State Rep. Joe Moody (D-El Paso) after Rep. Frullo initially pulled down his bill.

Sorry for spamming you one day after sending you a weekend update, but we are reacting to news as it happens and have information to pass along that may interest you.

Judicial branch pay raises

House Bill 2384 by Leach/Huffman, the tiered pay raise bill that currently includes district and county attorneys, has been set for a hearing in the Senate State Affairs Committee at 9:00 a.m. on Thursday. We do not yet know what version will be rolled out at that hearing, but we do know that the sponsor of the bill—who is also the chairwoman of the committee—intends to change the House’s language to bring the fiscal cost of the bill under the (as-yet-unpublicized) threshold set by the budget conference committee (on which she also sits). She has also instructed her committee staff to share with us the new language when it is returned by the drafters on Wednesday afternoon. Our plan is to review that language and let you know on Wednesday evening where everyone stands—and then you can take it from there.

If you have questions about any of this, contact Rob.

Committee hearings

As we mentioned yesterday, hearing notices are being posted and re-posted with little notice as we near the end of session. Here’s what has been added or changed since our previous update:

Tuesday, May 8

Senate Agriculture – 9:00 a.m., Room 2E.20

• HB 1325 by T. King/Perry to legalize hemp and hemp products

Wednesday, May 8

House State Affairs – 8:00 a.m., Room E2.014

• SB 702 by Bettencourt requiring the reporting of expenditures for local gov’t lobbying activities
• SB 1577 by Alvarado prohibiting the settlement of certain sexual harassment claims with public funds

Senate Criminal Justice – 8:30 a.m., 2E.20 (Betty King Committee Room)

• HB 8 by Neave/Nelson expanding the required testing of evidence in sex crimes
• HB 226 by Krause/Hughes revising/repealing various criminal laws outside the Penal Code
• HB 427 by Shaheen/Hughes reducing the punishment for tampering with a price tag
• HB 446 by Moody/Perry legalizing clubs and knuckles
• HB 869 by Hefner/Hughes relating to gas pump card skimmers and organized criminal activity
• HB 979 by Hernandez/Perry allowing DNA to be taken upon arrest for assault and unlawful restraint
• HB 1139 by S. Thompson/Miles requiring a pre-trial hearing to determine intellectual disability in a death penalty case
• HB 1279 by Allen/Menendez correcting certain jury instructions regarding parole and good time
• HB 2502 by Moody/Watson imposing minimum jail time as a condition of probation for certain hit-and-run cases resulting in death
• HB 2624 by Perez/Zaffirini to facilitate the prosecution of certain fraud crimes
• HB 2758 by Hernandez/Huffman limiting community supervision for certain human trafficking- and prostitution-related crimes
• HB 3106 by Goldman/Huffman requiring sex crime investigation information to be entered into certain databases

Thursday, May 9

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

• HB 98 by M. Gonzalez/Huffman to narrow the revenge porn offense
• HB 504 by Dutton granting certain employment protections for jury service
• HB 1028 by Guillen increasing certain punishments during disaster declarations
• HB 1168 by Anchia revising the offense of possessing a weapon in an airport
• HB 2164 by Burns imposing civil and criminal penalties for establishments that bar officers from carrying firearms
• HB 2384 by Leach/Huffman increasing salaries for certain judicial branch officers
• HB 2789 by Meyer/Huffman create an adult “sexting” crime for explicit images
• SB 2365 by Hughes protecting parental rights in CPS cases

In case you were curious, there are no other elected prosecutors signed up to volunteer for legislative duties the rest of this session, so if you have an interest in any of these bills listed above you should consider taking matters into your own hands.

Quotes of the Week Quote of the Day

“If you can’t beat them, silence them.”

Bennet Sandlin, executive director of the Texas Municipal League, expressing his opinion on the motivation behind bills this session that would limit the involvement of locally-elected officials in the legislative process.

Happy Cinco de Mayo! With three weeks and a day left to this session, our updates will become even shorter and more irregular due to the lack of notice from the legislature on what it is going to do and when it is going to do it.

Floor calendars

The House is entering the final week in which it can pass its own bills (other than local bills, which have an additional week of life.) When the House convenes Monday, it will take up a few dozen bills originally calendared for last Wednesday, then several score of bills originally set Thursday, and then the members can start on new bills set for the first time on Monday. This backlog means that any House bill that does not appear on a House daily calendar for Tuesday is in serious, serious trouble, even though the official deadline is not until midnight Thursday.

With that in mind, House bills scheduled to be debated Monday or Tuesday include (in order of appearance on the calendar): HB 1936 by Rose (no death penalty if “serious mental illness”), HB 1590 by Howard (creating statewide Office for Sexual Assault Survivor Assistance), HB 24 by Romero (FV enhancement if child present), HB 1365 by Lucio III (legalizing medical cannabis), HB 3703 by Klick (expansion of low-THC “compassionate use program” [“TCUP”]), HB 37 by Minjarez (mail theft), HB 4448 by Springer (drones), HB 2613 by Frullo (spending certain civil asset forfeiture proceeds on human trafficking victim services), HB 1631 by Stickland (ban on red light cameras), HB 2754 by White (no arrest for fine-only offenses absent danger), HB 3824 by Sherman (FV findings), HB 760 by Wu (porch piracy theft), HB 1686 by Smith (automatic sexual assault protective orders), HB 2020 by Kacal (the Damon Allen Act limiting bail), HB 4163 by S. Thompson (judicial commutation of parole sentence), and HB 4202 by Smithee (out-of-time agreed motion for new trial).

Across the rotunda, the Senate plans to take up HB 3 by Huberty/Taylor, the school finance reform bill, on Monday (resulting in all Senate hearings being cancelled on Monday). Other bills eligible to be considered as of Monday include: SB 653 by Hall (ban on red light cameras), SB 970 by Creighton (contingent fee agreements), SB 1543 by Menendez (notice of right to record CPS interviews), and SB 2136 by Powell (extraneous evidence in FV trials).

House Calendars Committee update

Among the bills that have recently been sent to the House Calendars Committee and are hoping to win the golden ticket to floor debate are: HB 3303 by Bowers (limiting probation revocations of sole caretakers of children), HJR 71 by Canales (exempting county court-at-law judges from the resign-to-run rule), and SB 1257 by Huffman/Leach (attorney general prosecution of trafficking-related crimes). If you support or oppose these bills, or any of the other bills we told you about late last week, then contact the members of that committee to have your say.

Committee hearings

These are summaries of relevant committee notices posted for the upcoming week. The lists are pretty scanty right now, but bills may be added to these lists with little or no notice:

Monday, May 6

House Elections – 8:00 a.m., Room E2.016

• SB 751 by Hughes criminalizing a deceptive video intended to influence an election

House Criminal Jurisprudence – 2:00 p.m. or upon adjournment, E2.012

• HB 95 by Hinojosa creating offense for strawman purchases/transfers of firearms
• SB 1820 by Huffman relating to impersonating a public servant

Tuesday, May 7

House Public Education – 8:00 a.m., E2.036

• SB 11 by Taylor, this session’s omnibus school safety bill

Senate Health and Human Services – 8:00 a.m., Senate Chamber

• HB 16 by Leach/Kolkhorst creating a civil action and new felony for failing to provide medical treatment to a child born alive after an abortion
• SB 2091 by Hughes limiting the State’s ability to take possession of a child or terminate the parent-child relationship

Wednesday, May 8

House State Affairs – 8:00 a.m., E2.014

• SB 702 by Bettencourt requiring the reporting of expenditures for local gov’t lobbying activities

Thursday, May 9

Senate State Affairs (tentative; cancellation from Monday)

• HB 93 by Canales/Hughes requiring a magistrate’s name to appear on certain orders/warrants
• HB 98 by M. Gonzalez/Huffman to narrow the revenge porn offense
• HB 2789 by Meyer/Huffman create an adult “sexting” crime for explicit images
• SB 2365 by Hughes protecting parental rights in CPS cases

Remember, if you see anything on this list that you like or don’t like, don’t count on anyone else carrying your water for you. Instead, contact Shannon and find out how to get personally involved.

Scattershots

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

• Austin police DWI video upload delays create roadblock to justice (Austin American-Statesman)
• Electric scooters to be kicked off sidewalks? (Texas Tribune)
• Attacks on the Dallas DA signal trouble for the criminal justice reform movement (Texas Monthly)
• The big blue obstacle to bipartisan criminal justice reform (Texas Observer)
• Session likely to end with little change to marijuana laws (Austin American-Statesman)

More Quotes of the Week

“What about my personal liberty, my personal safety, when I’m walking on a sidewalk? Not a ‘side scooter-way,’ a ‘side runway,’ or a ‘side speedway,’ but a sidewalk?” 

State Sen. Joan Huffman (R-Houston), speaking in support of a Senate measure that would impose a statewide ban on electric scooters from sidewalks.

“Look, I’m not going to lie to you. This stinks!”

Bay Scoggin, state director for the Texas Public Interest Research Group, when asked about questionable campaign fund expenditures made by Harris County Commissioner Rodney Ellis, a former state senator.

“It’s been tough. I never envisioned the level of insane, continuous, vicious attacks from these people that live out in the woods in a cave somewhere on an issue that simply is about letting a felon carry a gun.”

House Speaker Dennis Bonnen (R-Angleton), commenting upon threats he has received over the failure of a bill to legalize the permitless carrying of handguns.

Only 25 days left in the regular session. Time and pressure may turn coal into a diamond, but at the state capitol, time and pressure turn diamonds into coal and then drop them in everyone’s sine die stockings.

Deadlines

Some important deadlines are coming up in the House for non-local bills:

Tuesday, May 7, 10 pm: Last House calendar for HBs must be printed

Thursday, May 9, midnight: Last day for House to pass HBs on 2^nd reading

Friday, May 10, midnight: Last day for House to pass HBs on 3^rd reading

What this means in English: If a House bill (other than a local bill) is not placed on a House floor calendar by Tuesday night, it is dead by rule. And in reality, if a House bill is not placed on a calendar by Tuesday, it may be dead for practical purposes because for the last two sessions, bills calendared for the first time on or after that day have not been reached before Thursday’s midnight deadline. That means several thousand bills will be getting fitted for a toe tag by this time next week, especially after Speaker Bonnen announced this morning that the House would not be working on Saturday after all.

Across the rotunda, Senate deadlines don’t kick in until the final week of the session; more on that when the time comes.

Judicial branch pay raises

House Bill 2384 by Leach (R-Plano), the tiered pay raise bill that currently includes district and county attorneys, was passed by the full House on Wednesday. The final vote was nearly unanimous, but there was plenty of discussion on 2^nd and 3^rd reading on the House floor before that happened.

To view the full floor debate of HB 2384 on Tuesday’s 2^nd reading, including the adoption of various amendments that were acceptable to the author, click on this link and fast-forward to the period from 3:00:35–3:18:25. If you don’t want to watch the entire 18-minute discussion, we’ll direct you to the discussion between Rep. Joe Moody (D-El Paso) and Chairman Leach about the addition of elected prosecutors to the House language and what the prospects for your continued inclusion may be in the Senate; that footage can be found at the 3:11:21–3:12:40 mark. It’s too long for us to transcribe for you, but you should definitely watch it.

On 3^rd and final reading, House members had a 30-minute discussion of another potential amendment by Rep. Yvonne Davis (D-Dallas) that would have given a 10-percent bump to judges and elected prosecutors with less than four years of experience. That sometimes-heated debate about the potentially disparate impact of the tiered pay raise plan can be viewed at this link from the 1:40:00–2:46:25 section of the video, although the debate abruptly ended around the 2:11:10 mark, followed by a 35-minute down period where members tried to get guidance offline from the parliamentarians about the potential impact of the amendment on their own retirement funds (which was zero, for the record, but it took them awhile to figure it out). The debate eventually ended with Rep. Davis withdrawing her amendment and the bill being voted out with 143 members in support.

The bill will now be engrossed and sent to the Senate, where it will be referred to the Senate State Affairs Committee chaired by Sen. Joan Huffman (R-Houston), the author of the Senate companion bill that does not include several beneficiaries of the raise who were added by the House, including prosecutors. The fate of the House language in the Senate is unknown, so if you want the bill to pass the Senate with you in it, you better go find your senator(s) over the weekend and let them know how you feel about it because the bill could be heard in committee as soon as Monday if Chairwoman Huffman wants to move it.

If you have questions about any of this, contact Rob.

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):

AG’s expanded authority: HB 3979 by Leach (R-Plano) is still in the House Calendars Committee, where it has been joined by its Senate companion, SB 1257 by Huffman (R-Houston).

Asset Forfeiture: HB 1615 by Schaefer (R-Tyler) to require the State to disprove the innocent owner defense is in the House Calendars Committee.

Bail bond reform: HB 1323 and HJR 62 by Murr (R-Junction) (preventative detention), HB 2020 by Kacal (R-College Station) (limitations on bail), and HB 3283 by White (R-Hillister) (bondsmen’s version) are all in the House Calendars Committee.

Death penalty: HB 1139 by S. Thompson (D-Houston) to require pre-trial determination of intellectual disability in death penalty cases was passed by a 102-37 vote in the House on Tuesday and will now go to the Senate. HB 1936 by Rose (D-Dallas) was placed on the House calendar for debate yesterday but was not reached; it should be debated later today.

Deferred adjudication for certain DWIs: HB 3582 by Murr (R-Junction) should pass the House today with an amendment adding language from HB 2258 by Smith (R-Van Alstyne) that requires an ignition interlock as a condition of bond following a DWI with child arrest. After approval on 3^rd reading today, it will head to the Senate.

Driver Responsibility Program: HB 2048 by Zerwas (R-Richmond), the repeal-and-replace bill that changes DWI surcharges into state fines, was approved by the House on 2^nd reading with several clarifying amendments and will head to the Senate after final House approval on 3^rd reading later today.

Grand juries: SB 1492 by Whitmire (D-Houston), the Senate version of grand jury reform, is pending in the Senate Criminal Justice Committee. Its semi-companion, HB 2398 by Thompson (D-Houston), remains pending in the House Criminal Jurisprudence Committee.

Limits on contingent fee legal contracts: The House tentatively approved HB 2826 by G. Bonnen (R-Friendswood) on 2^nd reading after adding several amendments that limited the new authority given to the attorney general. It should pass on 3^rd reading today and be sent to the Senate. A similar—perhaps narrower—version of the same idea, in the form of HB 2003 by Leach (R-Plano), is also scheduled for debate on today’s House calendar, and that bill has a Senate companion, SB 970 by Creighton (R-Conroe), which is set on the Senate Intent calendar this week.

Limits on legislative input: HB 281 by Middleton (R-Wallisville) remains stuck in the House Calendars Committee but its proponents are trying hard to get it set for a floor debate. SB 29 by Hall (R-Edgewood) has been referred to the House State Affairs Committee.

Marijuana: HB 63 by Moody (D-El Paso), the bill to change low-level marijuana possession to a civil infraction, passed by a 103-42 margin after being watered down (at the governor’s direction) into a Class C offense for POM < 1 oz. (although it would not be an arrestable crime by itself). The bill now heads to the Senate, where that chamber’s presiding officer has pronounced the bill dead on arrival due to his general opposition to lessening any drug penalties.

Bills in House Calendars Committee

We are currently tracking 250 House and Senate bills in the House Calendars Committee. In addition to the bills we told you about last week here and here, other bills of interest include: HB 324 by Murr (educator/student clean-up language), HB 480 by Schaefer (grand jury voir dire), HB 1359 by Wu (attorney bypass of courthouse security), HB 1381 by Wray (agg. assault at a school), HB 2120 by Leach (omnibus court/prosecutor office bill), HB 2874 by Y. Davis (abandoning/endangering elderly), HB 2875 by Y. Davis (evidence in injury to child/elderly/disabled trial), HB 3424 by S. Thompson (expanded post-conviction DNA testing), HB 3500 by J. Gonzalez (appointment of counsel for writs), HB 3824 by Sherman (FV findings), HB 3831 by Sherman (no revocations for technical violations), and HB 4202 by Smithee (out-of-time new trial). If you support or oppose any of them and know members of that committee, speak now or forever hold your peace (in the House).

Looking ahead

Both chambers have full calendars today and local and consent/uncontested calendars tomorrow, then they will take the weekend off (for perhaps the last time). Neither chamber’s floor calendar has been printed for next week, and committees will give little if any notice of their hearings in these waning weeks of the session, so check our next update for what (little) we will know heading into 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:

• Bexar County DA begins streamlining office, working on criminal justice reforms (The Rivard Report)
• Public health officials see a tobacco industry “Trojan Horse” behind bills to raise the smoking age to 21 (Politico)
• Texas House speaker says he’s received “repeated death threats” from gun rights advocates (Dallas Morning News)
• Texas House passes intellectual disability bill for death penalty cases (Texas Tribune)
• Lt. Gov. Patrick declares marijuana bill dead in Senate (Texas Tribune)
• It’s crunch time (Texas Tribune’s “Under the Dome” video series)

Quotes of the Week (John Whitmire edition)

“The damage is done.”

State Sen. John Whitmire (D-Houston), on why he is still opposed to the confirmation of Secretary of State David Whitley, whose appointment will expire if not confirmed by the Senate before the end of the session.

“It’s not about whether marijuana is good or bad; it’s about whether what we’re doing on enforcement right now is good policy, and we all know it’s not.”

State Rep. Joe Moody (D-El Paso), rebutting an argument on the House floor that his HB 63 would lead to the legalization of recreational marijuana.

“I try not to bring issues that are going to be time-consuming if they’re not going to get support. At this stage, time is value. I still don’t want to do a show-and-tell. I’d like to have a hearing on something that’s got some traction.”

Sen. Whitmire, chairman of the Senate Criminal Jurisprudence Committee, when asked earlier in the week about the prospects in the Senate of HB 63, which would lower POM < 1 oz. to a Class C misdemeanor.

“The reality is we don’t have the votes in the Senate as we talk. … I don’t believe it’s dead and I’m going to do the best I can (to round up support). I’m trying to see if we have the votes in the Criminal Justice Committee to get it to the (Senate) floor.”

Sen. Whitmire, later in the week after HB 63 passed the House.

“Once they’re executed that should be the end. If they want to write something, I would suggest that TDCJ throw it in the trash with all his other belongings.”

Sen. Whitmire (again), criticizing TDCJ for publishing the written statement of John King, who was executed earlier this week for his role in the notorious hate crime slaying of James Byrd, Jr., in 1998. The prison system announced an end to that practice the next day.

“Also, I intend to ask Lt. Governor Patrick to authorize an interim study of the Senate Criminal Justice Committee to review how someone like Mr. King could be on death row for 20 years. It is entirely too long and not fair to the Byrd family and to the State of Texas.”

Sen. Whitmire (yet again), in his official letter to TDCJ after the King execution.

“Were we surprised by that? Absolutely. The Texas Constitution charges the attorney general, the state of Texas’ top lawyer, with defending our state laws and our state constitution. He’s charged with representing the state in litigation that challenges state laws or in lawsuits against state agencies or state employees. In our view, the state constitution doesn’t allow the attorney general to pick and choose which laws he is willing to defend.”

Laura Gibson, chairwoman of the State Bar’s board of directors, in response to news that Texas Attorney General has filed an amicus brief in support of three lawyers suing the Bar over its use of mandatory dues for certain activities.

House leadership told its members to not make any plans for Saturday as they intend to set a calendar for floor business that day. Guess we’ll be watching the Kentucky Derby on our office TV this year; please send us your best mint julep recipes so we can be in the proper mind-set for both events.

Bail bond reform bills moving again

Earlier this week, the House Criminal Jurisprudence Committee voted out all three of the “bail bond reform” bills they heard two weeks ago, but substantial changes have been made to two of them, and we could be in store for quite a mess if all three of them are finally passed and become law. Here’s why.

The reform advocates’ preferred changes were originally contained in HB 1323 by Murr (R-Junction); that’s the bill the Chief Justice touted earlier in the session. However, the committee substitute version of that bill has been slimmed down to two main provisions: (a) judges may not adopt a bail schedule “inconsistent with the laws of this state,” and (b) judges may order preventative detention for offenders accused of 3g offenses. For those of you concerned about that latter concept—which still includes an evidentiary hearing within 10 days of arrest with live witnesses, cross-examination, and a new State’s burden of clear and convincing evidence, as in the filed bill—this may not be great news. But it also requires a constitutional amendment, which was voted out later in the week as a substitute version of HJR 62 by Murr and will require approval of two-thirds of each chamber in order to make it on November’s ballot. The new language of the bill and resolution are not yet available on the legislature’s public website, but a PDF copy of CSHB 1323 can be accessed at this link. (We don’t have the CSHJR yet but are told it is changed to conform to the bill’s new language.)

The other major bail reform bill is HB 2020 by Kacal (R-College Station). The substitute version of this bill maintains the “Damon Allen Act” moniker identifying it as the governor’s preferred bill. (Interestingly, that name has been stripped from HB 1323.) The main thrust of HB 2020 is two-fold. First, it creates a Bail Advisory Commission under the direction of the governor’s office that is tasked with working with the Texas Judicial Council to create and approve a new validated risk assessment to be used as a part of bail determinations made on or after September 1, 2020. Second, it limits the types of judges who can issue bail for all felonies and for jailable misdemeanors under Penal Code Chapters 21 (Sexual Offenses) and 22 (Assaultive Offenses). For those cases, only judges licensed to practice law for four or more years who live in the counties/districts they serve and who have not been removed or retired in lieu of removal can set bail—something that may create heartburn for rural Texas where lawyer-judges are sparse, but that will vary by jurisdiction. Like HB 1323, the substitute version of HB 2020 is not yet available on the legislature’s public website, but we have a PDF version available here if you want to read it for yourself.

The third bail bill passed by the committee is HB 3283 by White (R-Hillister), which contains the bail bondsmen’s preferred “reforms.” It permits standing bail schedules (possibly contradicting HB 1323) and allows a type of “bail bargaining” in which a defendant who cannot make his initial assigned bail amount may counter-offer an amount he can make and request a hearing on that counter-offer within 48 hours, and if that is denied, he gets a second hearing for reconsideration within another four days. Unlike HB 1323, there are no details on how these hearings would be conducted, which judges would conduct them (unlike HB 2020), or who needs to be at them, but the assumption is that it would work within the context of current procedures. This purports to create the kind of individualized assessment required by recent federal court rulings out of Harris County while changing as little as possible elsewhere, but we’ll leave it to others to decide if it really does so.

So, that’s our quick take on these bills. All of them now head to the House Calendars Committee for further consideration, so if you have an interest in one or more of them, now is the time to reach out to the members of that committee (more on that below) and let them know your thoughts. If you have questions about any of this, contact Shannon.

Bills in House Calendars Committee

Bills sent to the House Calendars Committee over the past three days include: HB 464 by Moody (expands scientific writs to punishment errors), HB 1223 by VanDeaver (custody interference), HB 1323 and HJR 62 by Murr (preventative detention), HB 1365 by Lucio (medical marijuana), HB 1615 by Schaefer (imposing innocent owner burden on State in forfeiture cases), HB 2020 by Kacal (limitations on bail), HB 2754 by White (limits on arrests in certain Class C proceedings), HB 3554 by Farrar (out-of-state forensic testimony), HB 3979 by Leach (AG original criminal jurisdiction), and SB 1640 by Watson/Phelan (walking quorum fix). These bills now sit in purgatory awaiting a golden ticket to floor debate; to help make that happen—or not happen—on any specific bill, contact the members of the Calendars Committee.

Committee hearings

Here are summaries of relevant committee notices posted for the upcoming week. See our previous update for Monday’s listings.

Tuesday, April 30

Senate Intergovernmental Relations – 8:30 a.m., Room E1.016

• HB 892 by Kuempel authorizing all counties to regulate game rooms
• HB 1476 by Anderson authorizing McLennan County to regulate game rooms
• SB 1469 by Powell authorizing municipal regulation of game rooms and related machines
• SB 1470 by Power relating to zoning regulations for certain coin-operated machines

Wednesday, May 1

House Homeland Security & Public Safety – 8:00 a.m., E2.016

• HB 4017 by Calanni limiting LTCs for identified members of criminal street gangs
• SB 71 by Nelson creating a statewide telehealth system for SANE exams
• SB 284 by Hinojosa relating to disciplinary proceedings for licensed forensic analysts
• SB 324 by Huffman relating to the disposition of firearms seized from mentally ill persons
• SB 363 by Watson requiring a warrant/subpoena/court order for PMP prescription information
• SB 1804 by Kolkhorst requiring certain bond conditions in FV cases be entered into TCIC

Senate Criminal Justice – 8:30 a.m., 2E.20 (Betty King Committee Room)

• SB 336 by West granting jail credits to certain offenders
• SB 550 by West authorizing orders of non-disclosure following set-asides
• SB 815 by Rodriguez relating to the preservation of certain criminal records
• SB 1269 by Watson extending the time for sealing a search warrant affidavit
• SB 1637 by Zaffirini waiving or excusing various fines, fees, and costs
• SB 2045 by Fallon relating to mutual aid law enforcement task forces
• SB 2093 by Hughes regulating access to location information and other electronic customer data
• SB 2136 by Powell expanding the scope of evidence admissible in a family violence prosecution

House Juvenile Justice & Family Issues – 10:30 a.m. or upon adjournment, E2.012

• HB 758 by Wu relating to public access to juvenile court proceedings
• HB 1871 by Goldman also relating to public access to juvenile court proceedings
• HB 4038 by Dominguez expanding the Romeo & Juliet affirmative defense

Thursday, May 2

House Corrections – 8:00 a.m., E2.030

• SB 1154 by Perry relating to the powers and duties of the Texas Civil Commitment Office

Interested in something else?

Try as we might, we cannot both keep up with the thousands of bills that are still moving through the legislature in a panicked rush to beat various deadlines and provide detailed updates on all of them to you. Therefore, if you want information on a specific issue or bill, please call or email Shannon for the details.

More Quotes of the Week

“Well, I know, Stickland, you’re not going to vote for it anyway, so if you could just, uh, be quiet ….”

State Rep. Sarah Davis (R-West University Place), shutting down State Rep. Jonathan Stickland (R-Bedford) as he tried to ask questions on the House’s back mic about a joint resolution she was proposing (video via Twitter).

“I think this is a terrible Big Brother, big government bill, and if you think that Big Brother, big government is what you want, vote for this. It’s crap.”

State Rep. Terry Canales (D-Edinburg), arguing against passage of HB 1399 by Smith (R-Sherman) to expand DNA collection upon arrest. The bill eventually passed the House by a 77-68 vote and has been referred to the Senate for its consideration.

Only 31 days left to this regular session. (Serenity now!)

The Senate is basically done until Monday, while the House is still debating bills on the floor as we send this out. It’s been a busy week due to the Easter break—for example, we were at the Capitol until 2am this morning finishing up yesterday’s hearings—so this update will be a tad skimpy, with more information to follow this weekend.

Judicial branch pay raises

House Bill 2384 by Leach (R-Plano), the tiered pay raise bill that includes district and county attorneys, has been set for debate on the House floor sometime on Monday, April 29 (although it could be pushed back a day or two). The fiscal note has been updated to include county attorneys, but we are still working with the author to resolve the 2.0-vs.-2.3 multiplier error we briefed you about last week. This bill may be your lone opportunity for a pay raise from this legislature, so now is the time to contact your state representative(s) and let them know you want one!

Grand jury hearing

On Wednesday, the Senate Criminal Justice Committee took testimony on SB 1492 by Whitmire (D-Houston), the Senate version of grand jury reform. Harris County DA Kim Ogg, Midland County DA Laura Nodolf, Coryell County DA Dusty Boyd, Galveston County CDA Jack Roady, 46^th (Vernon) DA Staley Heatly, and Kenedy & Kleberg County DA John Hubert all provided expert testimony in opposition to the bill. There was significant discussion among the committee members about the system in general and whether an interim study might be in order—one that would look at how Texas’ felony charging practices compare to other states and what might be more suitable for a modern, 21^st-century court system. That suggestion was well-taken by several prosecutors opposing the bill, but the advocates and public figures pushing the bill behind the scenes may not be convinced that they need to throw in the towel and go that route just yet. The bill was left pending due to lack of a voting quorum, but the chairman could call a vote on his bill at any time next week. Meanwhile, the Senate bill’s near-companion in the House, HB 2398 by S. Thompson (D-Houston), remains pending in that chamber’s Criminal Jurisprudence Committee. If you know members of those House or Senate committees, feel free to reach out and remind them of your position; we know certain current and former statewide officials are still lobbying hard for these bills, so you should too!

Updates on other major issues

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

AG’s expanded authority: HB 3979 by Leach (R-Plano) is now in the House Calendars Committee, where we expect General Paxton and his staff to continue advocating for it to be put on the House calendar for full debate. The Senate companion, SB 1257 by Huffman (R-Houston), has been referred to the House Criminal Jurisprudence Committee and awaits consideration—although that may be a perfunctory one because the companion bill has already had a public hearing.

Asset Forfeiture: HB 1615 by Schaefer (R-Tyler) to require the State to disprove the innocent owner defense will head to the House Calendars Committee as soon as the paperwork is put in order.

Death penalty: HB 1139 by S. Thompson (D-Houston) to require pre-trial determination of intellectual disability in death penalty cases was on the House floor calendar for yesterday but was not reached on the calendar due to other business; it is likely to be considered Monday or Tuesday of next week. Note that we expect it to be amended on the floor to address some prosecutors’ concerns about the timing of this hearing and the State’s right to appeal; if you need more information about that, contact Shannon.

Deferred adjudication for certain DWIs: HB 3582 by Murr (R-Junction) is set for consideration on the House floor next week.

Restrictions on legislative input: HB 281 by Middleton (R-Wallisville) remains stuck in the House Calendars Committee but its proponents are trying hard to get it set for a floor debate. SB 29 by Hall (R-Edgewood) passed the Senate and has been received in the House, but it has not yet been referred to a House committee. It also does not have a House companion pending elsewhere (a good sign for those concerned about it).

Bills in House Calendars Committee

There are currently more than 600 bills in the House Calendars Committee, of which we are tracking more than 160. We are going to list here some of those tracked bills on which prosecutors testified for or against. If you support or oppose any of them and know members of that committee, consider letting them know.

Those bills include: HB 24 (FV enhancement if child is present), HB 64 (expunging deferred adjudications), HB 176 (no waiver of expunction/OND rights), HB 281 (limits on local gov’t lobbying), HB 309 (indecent assault), HB 1223 (custody interference), HB 1609 (protecting grand jurors’ names), HB 1635 (CSCD pretrial diversion funding), HB 1753 (early release from parole), HB 1771 (decriminalizing prostitution if < 18), HB 1936 (no death penalty if serious mental illness), HB 2003 (contingent fee agreements), HB 2134 (limits on medical experts in CPS cases), HB 2260 (non-lawyer JP blood draws), HB 2826 (contingent fee agreements), HB 3331 (CPS investigations), HB 3402 (walking quorums), HB 3512 (probation reforms), and HB 3800 (human trafficking case reporting).

Floor calendars

Yesterday was the first time this session that the House did not complete its daily calendar of bills to be considered on the floor. (That’s what happens when the TABC sunset bill turns into a Christmas tree on which members try to hang all their dead booze bills as amendments!) The House will now “roll the calendar,” which means bills that should’ve been heard this week will be heard early next week, with subsequently-calendared bills also being pushed back, and so on and so on. Bills scheduled to be debated early next week include (in order of appearance on the calendar): HB 629 by Landgraf (protective order registry), HB 3106 by Goldman (sex assault investigation information-sharing), HB 4009 by Toth (victim-offender mediation), HB 63 by Moody (civil infraction for POM [to be amended on floor into a Class C criminal penalty]), HB 1139 by S. Thompson (intellectual disability in death penalty cases), HB 2730 by Leach (anti-SLAPP civil actions), HB 1528 by Rose (reporting of family violence findings in Class Cs), HB 2384 by Leach (judicial branch pay raises), HB 354 by Herrero (providing police officers and firefighters an exemption from jury duty), HB 2303 by Moody (legalizing certain fantasy sports betting), HB 2048 by Zerwas (DRP repeal), HB 3582 by Murr (DWI deferred adjudication), and HB 2321 by Morrison (enhancing penalties for illegal oyster harvesting).

In the Senate, bills eligible to be considered as of Monday include: SB 11 by Taylor (omnibus school safety bill), SB 562 by Zaffirini (incompetency commitments), SB 653 by Hall (ban on red light cameras), SB 691 by Johnson (ending automatic DL suspension for drug convictions), SB 970 by Creighton (contingent fee agreements), and SB 1125 by Hinojosa (video teleconferencing for forensic analyst testimony).

Committee hearings

Here are summaries of relevant committee notices posted for Monday. Senate bills being heard in House committees (and vice-versa) have a high likelihood of passage if they are being heard this early. We may supplement this list in a subsequent update if more committees post relevant notices.

Monday, April 29

House Judiciary & Civil Jurisprudence – 8:00 a.m., Room E2.026

• SB 346 by Zaffirini consolidating state and local court costs
• HB 2936 by Hinojosa revising notice and filing requirements in certain mental health proceedings

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

• HB 121 by Swanson increasing notice requirements for certain handgun trespass cases
• HB 1996 by Leman requiring immigration admonitions to be given orally and in writing

House Criminal Jurisprudence – 2:00 p.m. or upon adjournment, E2.012

• HB 949 by Minjarez increasing punishments for certain aggravated assaults
• HB 977 by Thierry relating to financial abuse of the elderly
• HB 1073 by Meyer increasing the statutes of limitations for certain crimes against children
• HB 1317 by Moody altering the compensation of certain court-appointed attorneys
• HB 1513 by Coleman adding gender identity or expression to the hate crimes statute
• HB 1719 by S. Thompson reducing penalties for certain Penalty Group 1 offenses
• HB 2258 by Smith requiring ignition interlock as a condition of bond in certain DWI cases
• HB 2388 by Landgraf increasing the penalty for DOC-Peeping Tom
• HB 2749 by Neave creating grants for pretrial diversion of pregnant defendants
• HB 3027 by Ramos relating to orders of non-disclosure for certain trafficking/prostitution cases
• HB 3031 by Calanni requiring sex offender registration for certain prostitution and online solicitation cases involving child victims
• HB 3426 by S. Thompson creating a new subsequent writ based on non-scientific evidence
• HB 3920 by Dutton creating the Inmate Legal Services Office
• HB 3956 by Hefner facilitating the testimony of a witness with a disability
• HB 3982 by Leach creating an offense for providing material support to foreign terrorists
• HB 4341 by Collier increasing penalties for making a firearm accessible to a child
• HB 4375 by Stephenson relating to anti-theft electronic monitoring devices
• HB 4602 by J. Gonzalez changing the culpable mental state for organized retail theft

Scattershots

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

How Dallas County’s DA shook—and confused—police and politicians with plan for “ending mass incarceration” (Dallas Morning News)

Travis DA making new rules for small-amount drug cases (Austin American-Statesman)

Jacqui Saburido, the face of campaigns against drunken driving, dies at 40 (Austin American-Statesman)

Gun rights activist wants House Speaker to apologize (Texas Tribune)

Quotes of the Week

“I’m always struggling to recruit and retain staff. Why would you want to go work behind bars and get spit on or sworn at?”

Dr. Joseph Penn, director of mental health services for TDCJ. 

“It is reckless and irresponsible for a district attorney, or any public official, to say theft for less than $750 is not going to be prosecuted. That is legalizing stealing for property less than $750. What kind of message does that send, for one? But for another—listen, if your district attorney wants to change the law, he’s in the wrong job. He needs to run for the legislature and come here to try to change the law. His job, his oath, is to enforce the law that exists, and he should prosecute anybody for stealing anything!”

Gov. Greg Abbott (R-Houston), criticizing a new policy announced by Dallas County Criminal DA John Creuzot (D), on KXAS-TV’s Lone Star Politics last weekend (video here starting at 16:00 mark).

“We’re pretty liberal when it comes to pretrial diversion. He took his punishment and it was done.”

El Paso DA Jaime Esparza, referring to the resolution of presidential candidate Beto O’Rourke’s 1998 DWI charge.

Happy Passover, Good Friday, and Easter, y’all! Sorry to interrupt your holiday festivities, but even when the legislature is on a break there is still work to be done.

Grand jury bill set for Wednesday

The Senate Criminal Justice Committee has posted a hearing for Wednesday at 8:30 a.m. to consider various bills in a public hearing, including SB 1492 by Whitmire (D-Houston). That bill is similar to HB 2398 by S. Thompson (D-Houston) in that it puts counsel in the grand jury room during questioning, imposes delays to allow witnesses to hire and consult with counsel, requires recording of all proceedings, requires presentation of exculpatory evidence, and limits re-presentments. Unlike the House bill, though, the Senate bill does not include pre-presentment discovery to the witness or allow prosecutors to be sued.

If you want to participate in the consideration of SB 1492 at Wednesday’s hearing, contact Rob. To date, prosecutors have done a good job in the House making clear why these bills may be mis-directed, have unintended consequences, or simply be bad policy. However, we know that advocates for the bills are working hard behind the scenes lobbying committee members to vote for them anyway. Politics can trump policy at the legislature, so those of you who know senators on the committee (membership available here) should consider doing the same.

Committee hearings

Here are summaries of relevant committee notices posted for the upcoming week. You’ll notice that some Senate bills are now being heard in House committees and vice-versa; those bills have a high likelihood of passage if they are being heard this early. Also, all of these hearing are likely to have bills added to them at the last minute.

Monday, April 22

Closed

Tuesday, April 23

House Judiciary & Civil Jurisprudence – 8:00 a.m., Room JHR 120 (Reagan Bldg.)

• SB 362 by Huffman to release incompetent non-violent arrestees to outpatient treatment
• HB 1383 by Lozano exempting firefighters and police officers from jury service
• HB 1637 by Miller requiring trauma-informed training for judges and attorneys in CPS cases
• HB 3136 by Cain relating to judicial permission for carrying a handgun in a courthouse
• HB 3409 by Reynolds requiring trauma-informed training for judges, prosecutors, and officers
• HB 3918 by Dutton authorizing lawsuits against government employees for certain torts
• HB 4021 by Dominguez prohibiting carrying of a weapon within 100’ of courthouse premises
• HB 4551 by Dutton authorizing costs and fees in lawsuits against local officials who fail to perform a lawful duty

Wednesday, April 24

Senate Criminal Justice – 8:30 a.m., 2E.20 (Betty King Committee Room)

• SB 207 by Kolkhorst expanding money laundering laws to include digital currency
• SB 696 by Huffman mandating peace officer training on human trafficking
• SB 803 by Rodriguez requiring certain mental health reports be shared with a sheriff and personal bond office
• SB 1147 by Buckingham authorizing “medication-assisted treatment” for DWI probationers
• SB 1331 by Hinojosa expanding the authority of the Texas Forensic Science Commission
• SB 1377 by Buckingham expanding Medicaid fraud statutes to apply to all health care fraud
• SB 1492 by Whitmire mandating new grand jury procedures and remedies

House Juvenile Justice & Family Issues – 10:30 a.m. or upon adjournment, E2.012

• HB 4103 by White allowing discretionary sealing of certain juvenile records
• HB 4267 by Wu requiring a juvenile to be allowed to wear normal clothing during proceedings

Thursday, April 25

House Corrections – 8:00 a.m., E2.030

• HB 3563 by Farrar creating an offense for tampering with an electronic monitor while on probation or parole
• HB 4460 by Allen barring revocation for technical violations while on probation for state jail and third-degree felonies

House Criminal Jurisprudence – 2:00 p.m. or upon adjournment, E2.016

• SB 201 by Huffman increasing looting penalties during a disaster or evacuation
• SB 341 by Huffman barring appointment of defense lawyers as prosecutors pro tem
• SB 961 by Bettencourt authorizing cite-and-release for certain criminal trespasses
• SB 1259 by Huffman criminalizing fertility fraud
• SB 2191 by Whitmire prohibiting pretrial detention in out-of-state facilities
• HB 1261 by K. Bell expanding the presumption of child endangerment
• HB 1955 by Dutton requiring personal bond for misdemeanors absent good cause
• HB 2049 by Collier expanding the lack of consent list for sexual assault crimes
• HB 2499 by Springer making intrusive touching by TSA/security officers a crime
• HB 2524 by Anderson relating to notices in certain theft of service offenses
• HB 3135 by Cain removing certain defenses to showing children obscene/harmful material
• HB 3424 by S. Thompson expanding certain definitions for post-conviction DNA testing
• HB 3555 by Farrar adding massage therapy to the sexual assault lack-of-consent law
• HB 3594 by S. Thompson applying certain elements of the Michael Morton Act retroactively
• HB 3849 by C. Bell clarifying the powers of personal bond/pretrial services offices
• HB 3926 by Tinderholt creating an offense for Munchausen-by-proxy conduct
• HB 4143 by Dutton increasing the jail layout rate from $100 to $200
• HB 4169 by Moody changing state jail felonies to fourth-degree felonies; reducing certain punishment ranges for drug and property offenses
• HJR 62 by Murr authorizing the denial of bail for certain offenders

By the way, if you are watching a House bill that has not yet been heard in a House committee and is not listed above, you better get it added to one of these lists or it is dead. (Senate bills still have another week or two of wiggle room in the Senate, though.)

Other bills on the move

Here are updates on a fraction of the bills making progress this past week:

Passed the House, headed to the Senate: HB 8 by Neave (testing evidence in sex crimes), HB 11 by E. Thompson (transferring DL program from DPS to DMV), HB 667 by K. King (sexual assault enhancement involving incest), HB 892 by Kuempel (county regulation of game rooms), HB 902 by Landgraf (assault of pregnant woman), HB 979 by Hernandez (DNA sample upon arrest for Class A assault), HB 1177 by Phelan (carrying handgun during disaster declaration), HB 1355 by Button (extra-jurisdictional execution of DWI blood warrants), HB 1364 by Wu (limiting juvenile jurisdiction over children aged 10–11), HB 1452 by S. Thompson (accelerating eligibility for certain nondisclosures), and HB 1661 by Herrero (continuous family violence).

Approved by a House committee (heading to the Calendars Committee): HB 1359 by Wu (statewide courthouse security access pass for lawyers), HB 1631 by Stickland (banning red light cameras), HB 1753 by Allen (early release from parole supervision), HB 2003 by Leach (limits on counties’ contingent legal fee arrangements), HB 2826 by G. Bonnen (more limits on counties’ contingent legal fee arrangements), HB 3016 by Schaefer (handguns in cars), HB 3976 by Leach (civil collection of criminal restitution), and HB 3979 by Leach (AG trafficking authority).

Passed the Senate, headed to the House: SB 29 by Hall (ban on local funds for influencing legislation), SB 370 by Watson (employment protections for jurors), SB 719 by Fallon (death penalty for murder of child under 15), SB 891 by Huffman (new courts/prosecutors), SB 903 by Hughes (election integrity, including allowing OAG to prosecute “any offense that involves any part of the election process”), SB 1257 by Huffman (AG trafficking authority), SB 1259 by Huffman (fertility fraud), and SCR 18 by Campbell (designating Kyle as the Official Pie Capital of Texas).

Approved by a Senate committee: SB 405 by Birdwell (false report to jailer), SB 562 by Zaffirini (diversion of incompetent offenders from maximum security beds), SB 693 by West (family violence findings), SB 1268 by Watson (multiple victim allocutions), SB 1698 by Whitmire (limiting certification and transfer for juvenile state jail felonies), SB 1803 by Huffman (limiting probation for certain trafficking and prostitution crimes), SB 2114 by West (law enforcement discovery certification), and SB 2381 by Hughes (limiting places where long knives are prohibited).

More Quotes of the Week

“You can put lipstick on a pig. It’s still a pig.”

State Rep. Jarvis Johnson (D-Houston), explaining why his HB 1183 would remove Confederate Heroes Day from the state calendar rather than renaming it “Civil War Remembrance Day” as some others have proposed in the past.

“The die was cast and the bill was gonna pass anyway. My vote wasn’t for the measure. My vote was for the Senate itself.”

State Sen. Kel Seliger (R-Amarillo), explaining why he voted to allow the Senate to consider SB 2 by Bettencourt (R-Houston), the property tax cap bill, even though he later voted against it.

“You just watch. There is going to be more hemp grown [in Texas] than we could ever process.” 

Agriculture Commissioner Sid Miller (R-Stephenville), advocating for passage of HB 1325 by T. King (D-Uvalde), which would legalize hemp and hemp products in Texas.

Looking ahead

Upon completion of today’s duties, the House and Senate are taking a much-needed break for the Easter holiday before returning on Tuesday for the final five-week push towards the sine die finish line. With no hearings on Monday, our usual schedule will be compacted; we will update you with a list of bills to be heard next week when we get them.

Budget conferees are set

The Lt. Governor named the Senate’s conferees on HB 1, the state budget bill: Nelson (R-Flower Mound), chair; Huffman (R-Houston), Kolkhorst (R-Brenham), Nichols (R-Jacksonville), and Taylor (R-Friendswood). Starting next week, they will work with the House conferees to craft a final version of HB 1 for both chambers to approve. Those House conferees are: Zerwas, (R-Richmond), chair; G. Bonnen (R-Galveston), S. Davis (R-West University Place), Longoria (D-Mission) and Walle (D-Houston).

Random observations: Six of the ten conferees are from the Greater Houston area. Only two conferees are from north of the I-10 corridor (but one of those two is the Senate chairwoman from the Metroplex). No conferees are from west of the I-35 corridor. (Sorry, West Texas!). Only two conferees are Democrats (both from the House). The Senate conferees are all Republicans, a partisan move not seen since at least 1987. And there are only two minority members despite Texas being a majority-minority state.

We don’t know what any of that means for the final product, but these are the ten legislators who will meet to determine issues like judicial branch pay raises, assistant prosecutor longevity pay, crime lab funding, and more. We’ll let you know if we see white smoke coming from the conference committee chimney on any of those issues.

Judicial branch pay raise

The updated fiscal note for HB 2384 by Leach (R-Plano), the tiered pay raise bill that now includes district and county attorneys, was recently posted online. There are four items in that fiscal note we wanted to mention to you. First, the total cost to the state weighs in at a whopping $59,515,828 for the 2020-2021 biennium. Second, the fiscal note forgot to include an additional $1 million or so needed for county attorney supplement increases. That omission makes the bill even more expensive, but it does not prevent it from passing or being funded. Third, in the opinion of the lawyers at the Employee Retirement System (ERS), this bill resets the multiplier for any DA retiring in the future from the current 2.3 percent to 2 percent. According to ERS, this means that any DA retiring with 8 years of service will actually retire at a lesser annuity than those who retired before the bill takes effect. We are talking with the author about fixing that through an amendment on the House floor to set the multiplier in statute at 2.3 percent. Fourth and finally, this may not be the last version of this bill that you see. House and Senate budget writers have only set aside $34–$42 million for a judicial and DA pay raise, so the benefits under the bill must shrink considerably if it has a chance of passing. To fit under the budgeted amounts, the legislature could choose one or more of the following options: reduce the various percentage of raises (say, from 10 percent down to 5); cut the $10 million bump in judicial retirement benefits; delay the effective date until September 1, 2020 (aka, kicking the can down the road to a future legislature); or cut out prosecutors—which, as you might recall, has always been a possibility in the Senate. Any of these options (and others) are now on the table in the HB 1 conference committee negotiations; we expect Rep. Oscar Longoria (D-Mission) and Sen. Joan Huffman (R-Houston) to take the lead on this issue.

We will continue to monitor this situation closely. If you have questions, contact Rob.

Help *not* wanted

This week the Senate passed SB 29 by Hall (R-Edgewood), the bill that purports to “ban taxpayer-funded lobbying” by barring the expenditure of public funds by local governments:

• To influence legislation; or
• For membership dues “or for any other purpose” related to an association that works on legislation or that doesn’t exist “for the betterment of … all local officials.”

According to proponents, the main goal of the bill is to prohibit local cities, counties, and school districts from hiring outside lobbyists to represent them at the capitol—both hired-gun lobbyists and association employees who interact with legislators. But the language of the bill goes much farther than that. If SB 29 passes in its current form, elected and assistant prosecutors must pay their own way if they want to come to Austin to work on legislation, and y’all will have to reach into your other pocket to pay for any TDCAA conferences, publications, or other services we provide to our members, whether it is related to legislation or not. Thus, while this bill is not primarily directed at you (as a prosecutor) or us (as your professional association), you and we *are* purposely included—make no mistake about that.

The next step for SB 29 is referral to the House State Affairs Committee, which has an 8R–5D partisan split but which is also more independent than its Senate counterpart. If you object to this bill and know a member of that committee, now is the time to make that connection.

Updates on priority issues

Here’s another run-down of where some issues that we’ve been following this session currently stand. Here’s the latest (listed alphabetically):

AG’s expanded authority: SB 1257 by Huffman (R-Houston) passed the Senate by a 28-3 vote yesterday. It will now head to the House, where a substitute version of HB 3989 by Leach (R-Plano) was voted from the House Criminal Jurisprudence Committee on Tuesday by a 6-3 vote (all Rs and Chairwoman Collier [D-Fort Worth] voting aye, remaining Ds voting no). Once the paperwork is completed, the bill will go to the House Calendars Committee, where we expect General Paxton and his staff to continue advocating for it.

Asset Forfeiture: Three civil asset forfeiture reform bills were heard in the House Criminal Jurisprudence Committee and left pending: HB 404 by S. Thompson (D-Houston), HB 472 by Dutton (D-Houston), and HB 1615 by Schaefer (R-Tyler). (Two other bills by Rep. Canales [D-Edinburg] were not heard.) Prosecutors and law enforcement officers opposed the bills as they have in the past, but in case you haven’t noticed, “past results are no guarantee of future success” this session. Those bills are eligible to be voted upon in a formal committee meeting to be held Tuesday morning, so if you are concerned about any of them, reach out to those members. We have reason to believe as of today that HB 1615 (requiring the State to disprove the innocent owner defense) has the greatest likelihood of being approved.

Bail bonds: The House Criminal Jurisprudence Committee did not vote on any of the bail bond reform bills pending before it but may consider one or more of them Tuesday morning.

Death penalty: HB 472 by Dutton (D-Houston) (law of parties) and HB 3938 by Moody (considering victims’ wishes) were heard in committee on Monday and left pending.

Grand jury: HB 2427 by Reynolds (D-Missouri City) and HB 2398 by S. Thompson (D-Houston) are still pending in the House Criminal Jurisprudence Committee; neither has the votes to get out as of today despite intense lobbying by a former governor, among others. It is up to Chairwoman Collier (D-Fort Worth) to decide whether to bring it up for a vote. If you are curious where things stand as of our last vote check, contact Shannon. Across the rotunda, we have been hearing for several weeks that the Senate version—SB 1492 by Whitmire (D-Houston)—may be set for a hearing in the author’s Criminal Justice Committee at any time. If you want to be notified when those details are confirmed, contact Rob.

Floor calendars and committee notices

Tuesday’s House calendar includes scheduled debate on HB 574 by Dutton (ban on using deferred adjudications to enhance non-sex crimes), HB 1325 by King (legalizing hemp products), HB 1399 by Smith (taking DNA from certain arrestees), HB 1711 by Paddie (digital license plates), HB 2502 by Moody (jail time during probation for hit-and-run fatalities), and HB 2758 by Hernandez (eliminating probation for various trafficking and prostitution crimes). Wednesday’s calendar includes HB 98 by Gonzalez (re-writing the revenge porn law even though the issue is still pending before the CCA) and HB 2789 by Meyer (criminalizing unsolicited “sexting” between adults).

In the Senate, bills on the Intent Calendar for Tuesday include SB 901 by Hughes (election integrity).

Few committees have posted notices for after the holiday break, so we will send a supplemental update when we have more information about those hearings (plus information about other bills moving through the system).

Scattershots

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

• He committed a $300 million fraud, but left prison under Trump’s justice overhaul (NY Times)
• New census estimates show Texas suburbs dominating national growth (Texas Tribune)
• South Dakota case reflects national debate on banning executions for the mentally ill (The Marshall Project)

Legislative rotation sign-up

Thanks to Callahan County CA Shane Deel, 106^th DA Philip Mack Furlow, Smith County Asst. CDA Chris Gatewood, and Midland County ADA Suzy Prucka for coming to Austin this past week and helping to put out some fires. We still have several volunteer slots open for the next few weeks of the session, so if you want to come to Austin to interact with legislators while you still can, contact Shannon for details.

Quotes of the Week

“If it ain’t dead on arrival, it’s awful close.”

State Sen. Kirk Watson (D-Austin), when asked about the prospects for raising the state sales tax by 1 cent in order to buy down property taxes.

“I knew he had schizophrenia. I knew he would need to get in trouble to get help, but I never thought he would do something violent.”

Aleesha DeKnikker, sister of Heath Otto, a South Dakota man who killed his mother and nephew and now faces a possible death sentence.

“Reform is one thing. Actions that abandon the rule of law and that could promote lawlessness are altogether different. Texas law gives criminal district attorneys the duty to enforce the laws the Legislature writes. It grants no power to criminal district attorneys to categorically rewrite the law. Constitutionally, ‘reforming’ state law is the province of the Legislature.”

Text from a public letter released today by Gov. Greg Abbott (R) and AG Ken Paxton (R) and addressed to Dallas CDA John Creuzot (D) in response to recently announced policies adopted by Creuzot.

Current legislators are about to find out why previous legislatures never tackled school finance reform except when the courts forced them into it.

Property tax drama

There was a major stand-off last week between the two chambers as each urged the other to take up their respective property tax reform bills first. The House was supposed to take up HB 2 by Burrow (R-Lubbock) on Thursday but temporarily postponed it in hopes the Senate would bring up SB 2 by Bettencourt (R-Houston). But SB 2 still lacks the three-fifths vote necessary for consideration under Senate rules because Sen. Kel Seliger (R-Amarillo) has joined the Senate Democrats in opposition. Once it was clear SB 2 was failing to launch on Thursday, the House re-scheduled debate on HB 2 for Monday (potentially making that day’s committee schedule a very, very, very late one because the bill has more than 180 pre-filed amendments). Meanwhile, in the Senate the Lite Guv has threatened to use the “nuclear option” to pass SB 2 on Monday over the top of the objectors. (You don’t even have to know what the “nuclear option” is to know that it’s (a) rare and (b) perceived negatively by those on the receiving end, but you can click on that link in the previous sentence for the details.)

Note also that next week is probably the final week a House bill can be heard in committee and still hope to pass; after that, House bills will still be heard in committees but high volume and impending deadlines will combine to hamstring them before they can cross the finish line.

Looking ahead

Monday could be a long day: HB 2 and SB 2 floor debates; committee hearings on asset forfeiture, the death penalty, LGBTQ issues, sex crimes, DWI blood draws, and more; and a four-day Easter break (finally!) at the end of the week.

Update on various policy topics

Part I of this week’s update included an overview of where various money issues stand, but we thought we’d also give you a quick run-down of where some other issues that we’ve been following this session stand. Here’s the latest (listed alphabetically):

AG authority: SB 1257 by Huffman (R-Houston) has been voted from committee and may soon be posted on one of their “uncontested” calendars; any Senator can knock a bill off that calendar (but doing so invites retaliation). HB 3989 by Leach (R-Plano) is awaiting a vote in House Criminal Jurisprudence on Monday and General Paxton and his staff have been advocating for it with committee members. It is up to Chairwoman Collier (D-Fort Worth) to decide whether to bring it up for a vote.

Bail bonds: All the “reform” bills (in both directions) are pending and awaiting a vote in the House Criminal Jurisprudence Committee.

Death penalty: HB 1030 by Moody (D-El Paso) was amended on the House floor to make it more defendant-friendly; that bill now heads to the Senate Criminal Justice Committee. HB 1139 by S. Thompson (intellectual disability) and HB 1936 by Rose (serious mental illness) are in House Calendars. SB 719 by Fallon (capital murder for child under 15) is on the Senate Intent Calendar. HB 472 by Dutton (law of parties) and HB 3938 (victims’ wishes) will be heard in committee Monday.

DRP repeal: HB 2048 by Zerwas (R-Richmond) received committee approval and now heads to the Calendars Committee while SB 918 by Huffman (R-Houston), its companion, awaits a vote in committee. These bills repeal the surcharge program and transform the existing DWI surcharges into DWI state fines (which can be waived/bargained away like anything else).

Grand jury: HB 2427 by Reynolds (D-Missouri City) and HB 2398 by S. Thompson (D-Houston) are pending in House Criminal Jurisprudence and may be called up for a vote as soon as Monday if Chairwoman Collier wishes.

Local gov’t lobbying: SB 29 by Hall (R-Edgewood) is on the Senate Intent Calendar.

Judicial branch pay: The substitute version of HB 2384 by Leach (R-Plano) that includes prosecutors was reported from committee late Friday and is now in the Calendars Committee.

Budget conferees

The House conferees for HB 1 have been appointed by the Speaker. They are: Zerwas, (R-Richmond), chair; G. Bonnen (R-Galveston), S. Davis (R-West University Place), Longoria (D-Mission) and Walle (D-Houston). The Lite Guv is expected to appoint the Senate conferees next week, and then those ten legislators will disappear for a month to hammer out the final budget compromise.

Scattershots

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

• Dallas DA enacts reforms to end mass incarceration (Texas Observer)
• These three lawyers want to dismantle the State Bar (Texas Lawyer [$])
• Republican lawmaker who halts abortion bill now faces security concerns (Texas Tribune)
• Obstructionist or principled stand? State rep stalls other members’ bills (Dallas Morning News)

More committee hearings

For a reminder of everything set for Monday, April 8, see Thursday’s report. Here are summaries of the relevant committee notices posted for later in the week:

Monday, April 15

House Judiciary & Civil Jurisprudence – 8:00 a.m., Room E2.026

The following bills were added to the postings in our previous update:

• HB 3807 by Springer creating a criminal district attorney’s office in Cooke County
• HJR 71 to exempt county court-level judges from the constitutional resign-to-run rule
• HJR 148 to authorize a judicial appointment and retention system

House Criminal Jurisprudence – 2:00 p.m. or upon adjournment, E2.012

The following bills were added to the postings in our previous update:

• HB 3177 by Smith criminalizing the continuous sexual abuse of a disabled individual
• HB 3588 by Hunter increasing the penalties for child pornography

Tuesday, April 16

Senate Criminal Justice – 1:30 p.m., Room E1.016

• SB 405 by Birdwell relating to false reports made to jailers or corrections officers
• SB 562 by Zaffirini relating to competency determinations
• SB 583 by Hinojosa relating to representation by public defenders
• SB 1164 by Rodriguez regulating the disposition of counterfeit trademark items
• SB 1268 by Watson authorizing multiple allocution witnesses in a case
• SB 1649 by Kolkhorst authorizing the TIDC to review criminal defense attorney’s fees

Wednesday, April 17

House Homeland Security & Public Safety – 8:00 a.m., E2.016

• HB 107 by Raymond creating a DWI offender registry
• HB 842 by Hernandez creating a registry for certain violent crimes
• HB 1791 by Krause limiting local gov’t ability to restrict licensed carry on their premises
• HB 745 by Rose changing statutes mandating arrests in certain situations
• HB 2607 by K. King establishing DPS checkpoints along the OK and NM borders
• HB 418 by VanDeaver making confidential certain personal information of federal prosecutors
• HB 738 by Harless authorizing bond conditions to be entered into TCIC
• HB 1713 by Ramos requiring family violence offenders to surrender firearms
• HB 2672 by Zweiner requiring DPS to conduct a study on sex crimes prosecutions
• HB 2678 by Zweiner collecting statistics on certain sexual assault kit exams

House Juvenile Justice & Family Issues – 10:30 a.m. or upon adjournment, E2.012

• HB 556 by S. Thompson authorizing entry of a default protective order
• HB 2382 by Dutton reducing certain evading arrest conduct to a CINS offense
• HB 3139 by Bowers relating to personal service of an application for a protective order
• HB 3257 by Raney making imitation firearms a deadly weapon

Thursday, April 18

House Corrections – 8:00 a.m., E2.030

• HB 1076 by White expanding eligibility for an order of non-disclosure for certain state jail felony offenses
• HB 4163 and HJR 130 by S. Thompson authorizing a court to commute a punishment after parole
• HB 4460 by Allen prohibiting revocation of supervision for certain state jail and third-degree felony offenders
• HB 4566 by Allen mandating diligent participation credits for all state jail felony offenders

House County Affairs – 9:00 a.m., E2.028

• SB 710 by Creighton authorizing local ethics commissions in any county
• HB 3294 by Raymond authorizing the use for forfeiture funds to pay autopsy transportation costs
• HB 3716 by Parker limiting the medical examiner mandate to counties with a population of greater than 2 million

If you want to learn more about a bill or find out how to get involved for or against it, contact Shannon for details.

House Calendars Committee

Bills sent to the House Calendars Committee since our last update include: HB 15 by Thompson (omnibus human trafficking bill), HB 309 by Moody (indecent assault), HB 1325 by T. King (industrial hemp), HB 1399 by Smith (DNA collection upon certain arrests), HB 1711 by Paddie (digital license plates), HB 2384 by Leach (judicial branch pay raises), HB 2502 by Moody (minimum jail time ACOP for hit-and-run offenders), HB 3402 by Phelan (walking quorum fix), and HB 3582 by Murr (DWI deferred adjudication).

Upcoming calendars

The following bills have been calendared for consideration on the House floor next week: HB 892 by Kuempel (county regulation of game rooms), HB 629 by Landgraf (statewide protective order registry), HB 1355 by Button (DWI blood search warrants across jurisdictions)

The following bills are eligible to be considered on the Senate Intent Calendar: SB 29 by Hall (limiting local gov’t and association lobbying), SB 346 by Zaffirini (new court cost consolidation), SB 719 by Fallon (capital murder for victims under 15), SB 891 by Huffman (omnibus court/prosecutor creation bill)

These lists change daily, so click on this link to access the latest House Calendar or Senate Intent Calendar.

Other bills on the move

The House passed the following bills over to the Senate: HB 51 by Canales (standardized forms in criminal actions), HB 302 by Paul (limiting landlord regulation of tenant carrying firearms), and HB 1030 by Moody (changing jury instructions in capital cases).

The Senate passed the following bills over to the House: SB 38 by Zaffirini (hazing), SB 341 by Huffman (ban on defense lawyers serving as attorneys pro tem), and SB 1259 by Huffman (fertility fraud). A committee also gave preliminary approval to SB 970 by Creighton (limit on contingent fee legal contracts), which can now go to the floor for full consideration.

Finally, we can announce a sure sign that the end of session is approaching: a bill we are tracking has been passed by both chambers. Specifically, SB 306 by Watson/Israel (sobering centers in lieu of arrest) passed the House and is on its way to the governor’s desk. There will be at least a thousand more bills that follow that path over the next six weeks—let’s pray they are good ones!

Legislative rotation sign-up

Thanks to this week’s scheduled volunteer, Cherokee County DA Elmer Beckworth, for coming to Austin this past week—he set the record for most testimony in one week! Now let’s see who else is ready to step up and challenge that record. We still have volunteer slots open for the next few weeks of the session, so if you want to come to Austin to interact with legislators, contact Shannon for details.

More Quotes of the Week

“Members, we are respectfully working with the Senate on this issue.”

House Speaker Dennis Bonnen (R-Angleton), announcing from the House dais why that chamber is postponing its deliberations on HB 2, their version of property tax reform.

“In this instance, I am the deciding vote unless they go with the nuclear option. I’ve been the deciding vote before. I’m going to vote the way that I think is best for my district.”

State Sen. Kel Seliger (R-Amarillo), the lone Republican hold-out on bringing SB 2 (property tax caps) to the Senate floor.

“I respect our Senate rules, but I do not intend to let a procedural motion stop the Senate from passing this important bill.”

Lt. Gov. Dan Patrick (R-Houston), on his intentions for Monday.

“I’m not going to Washington, I’m staying here. In fact, I can break the news for you on your show right now. It’s a little early, but I plan to run—not plan to run, I am running—for lieutenant governor in 2022. I’m not going anywhere.”

Lt. Gov. Dan Patrick (R-Houston), dispelling rumors that he is interested in the newly-open position of Secretary of Homeland Security in the Trump Administration.

“Everyone is worried that Washington is like House of Cards, while hoping it is like West Wing. [The] truth is that it’s more like Veep.”

Tweet by Congressman Dan Crenshaw (R-TX).

There are fewer than 50 days left in this regular session, but bills opposed by prosecutors are still making progress. If you care about any of them, now is the time to get off the sidelines and into the game. Five different bills to limit or abolish civil asset forfeiture will be heard on Monday, if that’s any incentive for you. Read on for details.

Budgets and paychecks

Earlier this week, the Senate passed its version of HB 1 by Zerwas (R-Richmond), the General Appropriations Act, that will fund state government for the next biennium. The Senate substitute contains ~$248 billion in spending for the biennium, $11.9 billion of which is new spending (a 5.1-percent increase). The bill will now go back to the House, which will reject the Senate changes to HB 1 and seek the appointment of a conference committee of five representatives and five senators who will work out the differences in the two versions of the bill behind closed doors.

There are a number of items of interest to prosecutors in the competing budgets when you look at them together. For starters, all the various judicial branch pay raise options remain on the table in the two budget proposals: an across-the-board pay raise of 10 (or 15) percent, a stair-stepped raise that includes experienced judges and prosecutors, or a stair-stepped raise for those judges that excludes prosecutors. Much depends on the fate of HB 2384 by Leach (R-Plano), the pay raise bill for experienced judges and prosecutors that was approved by the committee on April 1 but has not yet been sent to the Calendars Committee (likely because the fiscal note paperwork is delayed). Meanwhile, everything else is still in play and subject to negotiation and compromise when the conference committee meets behind closed doors. That means we won’t know anything for certain on this topic until a few days before the end of the session.

On assistant prosecutor longevity pay, the House dedicated ~$1.3 million in new general revenue to support the fund through the next biennium. The Senate did not make that appropriation, but we have reason to believe the Senate is waiting to see if a long-term fix to the recurring shortfall emerges after some other budget issues are worked out (fingers crossed).

In other budget news, the Senate version of the budget contains more than $85 million in human trafficking-related funding, including an additional $5.1 million to hire 19 new employees for the attorney general’s human trafficking division, plus an additional $4.5 million to beef up the AG’s election fraud unit. The Senate’s budget also includes $49.2 million in additional funding for DPS crime lab services, compared to Article XI of the House version, which contains $26.6 million to support the hiring of an additional 122 forensic analysists and related staff. Either way, it looks like the state may come through with some much-needed relief for those of you waiting (and waiting … and waiting …) on crime lab results.

Bail bond reform

Monday’s House Criminal Jurisprudence Committee lasted almost 10 hours, ending around 2 o’clock on Tuesday morning. A significant portion of that meeting consisted of a discussion of various bail bond reform bills (HB 1323, HB 2020, and HB 3283). We’d love to provide you with some insight into what the ultimate result will be, but frankly, this issue is still a mess with no clear consensus on what the legislature will do about it, if anything. We’ll let you know more when we know more.

Grand jury changes, Round 2

A week after hearing HB 2427 by Reynolds (D-Missouri City)—which is still pending without a vote in that committee—the House Criminal Jurisprudence Committee took up HB 2398 by S. Thompson (D-Houston) for Round 2 of this policy debate. House Bill 2398 is the broad version from last session that not only puts defense counsel in the grand jury room with their clients but also provides greater discovery, requires recording of proceedings, increases delays, and allows prosecutors to be sued for vexatious litigation, among other “highlights.”

Supporters testifying for the bill were the Texas Defender Service, the Innocence Project of Texas, Just Liberty, and three witnesses from the Texas Public Policy Foundation/Right on Crime, which has been the biggest advocate for these changes. Prosecutors testifying against the bill were Ellis County C&DA Patrick Wilson, Brazoria County CDA Jeri Yenne, Galveston County CDA Jack Roady, Cherokee County DA Elmer Beckworth, and Harris County Assistant DAs Natasha Sinclair and Johna Stallings.

You can watch the debate for yourself at this link beginning at the 00:33:20 mark. Most of the discussion centered on the question of whether defense lawyers should be allowed in the grand jury with their clients (for a second week in a row). The major concern from some committee members seemed to be a fear that otherwise-innocent witnesses and suspects are being misled or coerced into perjuring themselves or otherwise admitting conduct that gets them indicted under circumstances that would not happen if they had a lawyer with them during questioning before the grand jury. Testimony from some supporters of the bill also implied that the bill’s changes are needed because prosecutors cannot be trusted in these proceedings. The prosecutors opposing the bill testified to the various reasons why those fears are misplaced and why this proposed cure would be much worse than the supposed ill it seeks to cure, especially in serious and complex criminal cases such as officer-involved shootings, organized criminal activity, and human trafficking cases. It was also pointed out how no state in the Union both requires grand jury indictments and also imposes such extensive—and expensive—requirements on their grand juries. Finally, we note that there was much about this bill and its genesis in certain real-world cases that was not brought up before the committee—and indeed, never gets discussed in public—but you can be sure that those cases come up behind closed doors.

We’ll keep you posted if the bill receives a vote in the House Criminal Jurisprudence Committee, but feel free to reach out to the members of that committee if you were unable to register your position in person this week.

Attorney General concurrent jurisdiction, Round 2

In between the grand debate and the discussion on bail reform, HB 3979 by Leach (R-Plano) was heard by the committee. That bill gives the attorney general the independent authority to prosecute “multijurisdictional” human trafficking cases—meaning any case occurring in more than one county, even if wholly within a multi-county district attorney’s judicial district—and imposes on local prosecutors a duty to report to the AG on all trafficking cases in their jurisdictions so that the AG can prosecute those cases if the local DAs don’t. This new authority also empowers the AG to prosecute all other crimes arising from the same trafficking criminal episode.

At the hearing, the bill’s author laid out the narrative supporting the alleged need for this bill: A UT School of Social Work study from 2016 estimated that there are 313,000 trafficking victims in Texas, but in 2017, prosecutors charged only 61 trafficking cases and 81 compelling prosecution cases, and in 2018, only 121 human trafficking and 106 compelling prostitution cases were charged. The message? Local prosecutors aren’t doing a good enough job with sex trafficking cases, so the legislature must empower the AG to step in and do more of it. Never mind that the cited study said that 234,000 of those victims are adult labor trafficking victims, or that both that study and the OCA report cited for the prosecution numbers come with significant caveats from their authors about the limitation of their data—the narrative is the narrative, and that is the field on which the debate is being held.

Several prosecutors testified against the bill, including Travis County DA Margaret Moore, Montgomery County DA Brett Ligon, Comal County CDA Jennifer Tharp, El Paso County DA Jaime Esparza, Tarrant County Asst. CDA Vincent Giardino, and Dallas County Asst. CDA Amy Derrick. Each attempted to educate the panel that the problem isn’t a lack of prosecution by district attorneys but a lack of arrests by law enforcement. Recently-obtained DPS CCH data for human trafficking and continuous human trafficking crimes revealed only 143 statewide arrests in 2017 and 172 statewide arrests in 2018. Those arrests took place in only 26 counties, so most district attorneys have never had a trafficking case brought to them by their law enforcement agencies. Prosecutors stressed that they enjoy a good working relationship with the attorney general, and that the award of original criminal jurisdiction to the AG is unnecessary and ultimately harmful to a unified effort to combat human trafficking.

Unfortunately, proponents of giving the attorney general this new power continue to sidestep the jurisdiction conflicts by arguing that this is merely another tool in the fight against this horrible crime—and who can be against another tool, right? And to legislators who are talking about spending tens of millions of additional dollars on combatting human trafficking, it may be preferable to give additional money and power to someone who is across the street in Austin rather than a group of local, independent officials scattered across the state. This is especially true now that the AG has become a one-stop shop, with investigation and prosecution under one roof (like the Feds), despite the fact that this proposed AG authority almost certainly crosses the line into a separation of powers violation under the Texas constitution.

Ultimately, if the estimates of the prevalence of trafficking in this state are accurate, it is unrealistic to think that any attorney general can make a serious dent in the numbers of these crimes. The problem is too large and pervasive to be handled from an office in Austin. Only local district attorneys—who already represent the State of Texas in every corner of this state—can provide a comprehensive prosecutorial solution to this problem, and only then if they are brought those cases by law enforcement agencies who have the funding and training necessary to carry out that mission. The problem is that no one can convey that message to legislators except you—and if you don’t start conveying it, the issue may soon be moot. (To get a better idea of the tenor of the discussion, you can watch the debate for yourself at this link beginning at the 04:39:35 mark.)

House Bill 3979 was left pending in the Criminal Jurisprudence Committee but could be voted upon as soon as Monday. In the Senate, its companion, SB 1257 by Huffman (R-Houston), was voted out of committee last week and could be heard on the Senate floor soon. The bill author needs 19 (of 31) votes to bring the bill up for consideration on the Senate floor, meaning that any combination of 13 senators who oppose it can keep it from passing.

What Schoolhouse Rock did not teach you

That old “How a bill becomes a law” episode may have covered the basics, but it neglected to mention that the entire legislative system is set up to kill bills, not to pass them. That’s why only roughly 20 percent 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 in those hearings). But only slightly less well-known is what happens to bills that emerge from committee, which varies depending on which chamber you are discussing.

In our state Senate, senators may set their bills that have a committee’s stamp of approval on the Intent Calendar to indicate their … well, intent (duh) to bring the bill up for a vote on the floor. That requires a three-fifths (60 percent) vote, or 19 of the 31 senators (assuming everyone is in attendance at that time). That hurdle rarely comes into play, but it does happen—just ask the author of SB 2, the Senate’s property tax cap bill that has been stuck in limbo for almost two months. But even if a Senate bill can clear that hurdle, there is another one looming even larger. Senate rules give the Lieutenant Governor, as presiding officer, 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. It’s like a governor’s veto, only this one 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 is entirely up to the whim of the Lite Guv.

Across the rotunda, House rules are both more (little-D) democratic and more orderly (which is something of a paradox). Rather than give the Speaker powers similar to those of the Lite Guv, the House uses a Calendars Committee of 11 representatives who decide (without any public testimony) not only which bills get debated on the House floor and which don’t, but also 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 a few weeks from now. Therefore, if you are interested in a House bill that has received initial committee approval, and if you know any members of the Calendars Committee, now is the time to give them a ring and let them know your thoughts on that bill. Many a House bill will die a mysterious death in the Calendars Committee with nary a fingerprint left behind to prove what happened to it—and that is a feature of this system, not a bug. [Note: Both chambers also have “uncontested” calendars, but we’ll save that lesson for later.]

For the curious, the members of the House Calendars Committee are: Four Price (R-Amarillo), chair; Joe Moody (D-El Paso), vice-chair; Joe Deshotel (D-Beaumont), John Frullo (R-Lubbock), Craig Goldman (R-Fort Worth), Oscar Longoria (D-Mission), Will Metcalf (R-Conroe), Tom Oliverson (R-Houston), Eddie Rodriguez (D-Austin), Toni Rose (D-Dallas), and John Wray (R-Waxahachie).

Bills currently in (or headed to) that committee include:

• HB 8 by Neave (omnibus sexual assault exams bill)
• HB 63 by Moody (civil fine for marijuana)
• HB 64 by Canales (expunctions of deferred adjudications)
• HB 176 by Canales (no waiver of rights to expunction/OND)
• HB 281 by Middleton (no lobbying by local officials)
• HB 344 by Dutton (juvenile “raise the age” bill)
• HB 433 by Shaheen (disclosure of public money spent to influence legislation)
• HB 667 by K. King (sexual assault enhancement for incest)
• HB 902 by Landgraf (increasing punishments for assaulting pregnant women)
• HB 1139 by S. Thompson (pre-trial death penalty determination of ID)
• HB 1661 by Herrero (changes to continuous FV offense)
• HB 1936 by Rose (death penalty exemption for serious mental illness)

As the session goes on, we’ll continue to let you know when certain bills get to the Calendars Committee; after that, it’s up to you to act on that information.

House calendar

The House will take up HB 2 by Burrows (R-Lubbock) today; if the building is still left standing upon completion of that debate, we’ll let you know in our next update what is on tap for next week.

Senate Intent calendar

This list changes daily, but as of now, eligible bills on Senate Intent include: SB 2 by Bettencourt (property tax caps), SB 29 by Hall (ban on local gov’t and association lobbying), and SB 1259 by Huffman (fertility fraud).

Upcoming committee hearings

Here are summaries of the relevant committee notices posted so far:

Monday, April 15

House Judiciary & Civil Jurisprudence – 8:00 a.m., Room E2.026

• HB 4504 by Landgraf creating a system for the non-partisan election and retention of judges
• HB 3061 by Allison authorizing a study on the selection of certain trial and appellate judges
• HB 3449 by Smithee providing employment protections for jury service
• HB 1222 by Wray increasing the salaries of Texas’ Chief Justice and Presiding Judge
• HB 4441 by Neave requiring the reporting to OCA of various data on state jail felony diversions
• HJR 63 by Pacheco increasing the experience required to serve as a judge

House Criminal Jurisprudence – 2:00 p.m. or upon adjournment, E2.012

Asset forfeiture bills:

• HB 171 by Canales applying the exclusionary rule to civil asset forfeiture proceedings
• HB 182 by Canales requiring clear and convincing evidence for forfeitures and establishing a minimum threshold for federal equitable sharing
• HB 404 by S. Thompson repealing civil asset forfeiture
• HB 479 by Dutton requiring a conviction for asset forfeiture
• HB 1615 by Schaefer requiring State to disprove innocent owner defense in forfeitures
• HB 386 by Burns authorizing non-lawyer JPs to issue DWI blood search warrants
• HB 472 by Dutton eliminating the death penalty for convictions under PC §7.02(b) (law of parties – conspiracy)
• HB 828 by Rose providing jail credits toward discharge of fines and costs
• HB 980 by Beckley repealing the criminal offense of homosexual conduct
• HB 1029 by Moody making CAC videos subject to regular discovery procedures
• HB 1445 by Rosenthal creating an offense for carrying a firearm while intoxicated
• HB 1498 by Metcalf expanding and clarifying the scope of continuous sexual abuse of a child
• HB 1811 by Murr applying high-BAC enhancement to boating while intoxicated cases
• HB 2034 by VanDeaver increasing the penalty for invasive visual recording of a victim under 18
• HB 2361 by Moody clarifying jurisdiction to prosecute certain business entities
• HB 2381 by Dutton requiring parole for certain re-arrested parolees
• HB 2754 by White barring arrests for certain Class C offenses and FTAs and limiting capiases
• HB 2896 by Collier prohibiting a plea by citation or lawyer in Class C family violence cases
• HB 3281 by Hinojosa barring the use of a “gay panic” defense
• HB 3490 by Cole criminalizing abusive communications on the Internet
• HB 3539 by Rose requiring preferential appointment of public defenders in capital cases
• HB 3589 by Sanford granting various jail credits toward laying out fines in Class C cases
• HB 3729 by Shaheen making it a crime for an animal abuser to subsequently possess an animal
• HB 3824 by Sherman authorizing family violence findings for stalking and certain PC Chapter 25 offenses
• HB 3938 by Moody mandating the consideration of victims’ views in death penalty cases
• HB 4237 by Turner relating to stalking
• HB 4287 by Zedler barring community supervision for various sex trafficking and prostitution crimes
• HB 4323 by Reynolds making confidential certain information about child victims

Tuesday, April 16

Wednesday, April 17

Thursday, April 18

[check our next update for bills set on these dates]

If you want to learn more about a bill or find out how to get involved for or against it, contact Shannon for details.

Other bills on the move

As the volume of bills moving through the system increases, our ability to report on them decreases. Going forward, we must necessarily give you a “skinnier” summary of what is happening in this new section. With that in mind, here are just a fraction of the bills that are making progress right now.

Passed the House, headed to the Senate: HB 226 by Krause (repealing various non-Penal Code crimes), HB 446 by Moody (legalizing knuckles and clubs [amended]), HB 869 by Hefner (gas pump card skimmers), HB 1030 by Moody (changing jury instructions for death penalty special issues [amended]).

Approved by a House committee: HB 309 by Moody (indecent assault), HB 335 by Dutton (Class C punishment for POM < 1 oz.), HB 353 by Blanco (accessing cell site information), HB 1539 by Geren (evidence tampering in misdemeanor cases), HB 1609 by Tinderholt (confidentiality of grand jurors’ names).

Passed the Senate, headed to the House: SB 21 by Huffman (increasing smoking age to 21), SB 325 by Huffman (statewide protective order registry), SB 1640 by Watson (PIA walking quorum fix).

Approved by a Senate committee: SB 719 by Fallon (death penalty for murder of child under 15), SB 891 by Huffman (omnibus new courts bill), SB 1259 by Huffman (fertility fraud).

Scattershots

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

• Representative’s wife seeks more time for sexual abuse victims to sue (Texas Tribune)
• Hemp, CBD legalization bill passes first hurdle (Dallas Morning News)
• House Speaker, gun rights activist come face-to-face at GOP fundraiser (Texas Tribune)
• Brazos County DA opposes bill giving AG jurisdiction over human trafficking cases (KBTX News)

Quotes of the Week

“We’re already behind 42 other states. … It’s the proper time and this bill is a great start.”

Rick Hardcastle, former state representative, testifying before the House Agriculture and Livestock Committee in favor of HB 1325 by T. King (D-Batesville), which would legalize industrial hemp and certain hemp-derived products such as CBD oil that contain less than 0.3 percent of THC. The bill was approved by that committee and is now pending in the House Calendars Committee.

“I’m the Speaker of the House. I don’t need to be in that type of confrontation. So I left.”

House Speaker Dennis Bonnen (R-Angleton), after leaving an event at which he was seated next to a gun rights activist who controversially visited Bonnen’s home last week.

“If a member is a catalyst of putting another member in danger, that behavior is not going to be rewarded.”

State Rep. Terry Canales (D-Edinburg), providing one of several explanations for why Rep. Jonathan Stickland’s (R-Bedford) bill to ban red light cameras has not been called up for a vote after the recent dust-up over his constitutional carry bill.