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TDCAA Legislative Update: Week 10, Part II

March 15, 2019

Don’t look now, but this regular session is half-over as of Monday. That’s the good news; the bad news is that what follows next is the lawmaking equivalent of trying to shove three pounds of sausage into a two-pound bag. Viewer (and voter) discretion is advised.

Looking ahead

Your local students may be going on Spring Break, but legislators will not—as you will realize after reading this second of two updates’ worth of committee hearing notices. We already sent you information earlier this week on the judicial branch pay raise issue and other bills set for Monday; now we’ve got another 40 bills to tell you about that are set for hearings later in the week—and that’s just what we’ve cherry-picked from the various lists. All told, 105 of the bills we are tracking this session are set for a committee hearing during the first four days of next week! Get used to that, as the next seven weeks will be a sprint until they run up against the various deadlines imposed by House and Senate rules in early May. Hold on to your hats, people, it’s about to get stormy.

So much for “limited government”

Thanks to the good people at the Texas Legislative Library, we can tell you that the 86^th Legislature has filed 7,281 bills and joint resolutions as of this session’s filing deadline, which is the second-highest total in history. (To see that history in visual form, check out their handy graphics here.) We are current tracking more than 1,300 of those bills, but it will take us a few more days to review them all. We’ll share some subject-specific lists with you next week if, for instance, you want to check up on all the bills that would impact DWI cases, firearms prosecutions, create new crimes, etc.

Lite Guv’s Top 30

The main man in the Senate released a list of his 30 priority bills this session, which you can view at this link (with further links to the bills themselves in that document). Among those you might find interesting are:

SB 9 by Hughes relating to election integrity
SB 11 by Taylor improving school security (+ more than $500 million to fund it!)
SB 20 by Huffman, the omnibus human trafficking/sex trade bill this session
SB 28 by Huffman limiting local government contingent fee agreements for legal services
SB 29 by Hall prohibiting local governmental entities from spending public funds to interact with the Legislature with or through an association or similar entity.

Look for all of the bills on this Top 30 list to start flying through the Senate. In fact, some—like SB 20 on human trafficking—have already been heard and voted from committee within a week of being filed. The rest will soon follow suit, so if you have concerns about any of them, don’t lollygag.

Scattershots

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

Call to end cash bail in Bexar County intensifies (Texas Public Radio)
Texas Senator proposes moving all TJJD youth to former adult facility (Texas Tribune)
No one’s really sure how to regulate this [CBD-oil] hemp food craze (Pew Stateline)

Floor action

Now that the 60-day filing deadline has passed, both chambers can start debating and passing non-emergency bills from the floor. Check this space in future updates for more news.

Committee action

Bills approved last week by committees include: HB 892 by Kuempel (county regulation of eight-liner game rooms), SB 295 by Lucio (unlawful restraint of dogs), SB 363 (restricting certain law enforcement access to Prescription Monitoring Program information), SB 476 (municipal regulation of dogs), and SB 666 (reporting offenses that invalidate firearm possession).

Upcoming committee hearings

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

Monday, March 18

(see our previous update, plus these additions …)

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

SB 9 by Hughes on election integrity
SB 21 by Huffman increasing the smoking/vaping age from 18 to 21
SB 29 by Hall restricting local officials’ ability to lobby the legislature
SB 346 by Zaffirini revising court cost revenue allocations

Tuesday, March 19

House Human Services – 10:30 a.m. or upon adjournment, Room E2.030

HB 2134 by Klick prohibiting certain medical consultations in child abuse/neglect investigations

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

SB 194 by Perry creating the offense of indecent assault of an adult
SB 306 by Watson authorizing the release of intoxicated persons to a sobering center
SB 315 by Hughes adding credit card skimming to engaging in organized criminal activity
SB 2191 by Whitmire prohibiting pretrial detainees from being housed in out-of-state jails

Wednesday, March 20

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

HB 1168 by Anchia creating an exception for possessing a weapon in an airport
HB 282 by Neave requiring training on trauma-informed interviewing of sex crime victims
HB 2146 by Kacal authorizing municipal prosecutors to carry handguns
HB 1660 by Herrero requiring training on strangulation evidence in family violence cases
HB 265 by Blanco requiring data collection about immigration status in traffic stops

House Higher Education – 8:00 a.m., Room E1.014

HB 1482 by Lozano revising and expanding the criminal offense of hazing

House State Affairs – 10:30 a.m. or upon adjournment, Room E2.014

HB 1232 by Guillen creating the Human Trafficking Prevention Coordinating Council
HB 1655 by Hunter limiting the withholding of DOBs under the PIA
HB 1700 by Hunter making various information held by a current or former government officer or employee public information
HB 2191 by Capriglione, an omnibus PIA bill
HB 2192 by Capriglione on the assessment of litigation costs and attorney’s fees in PIA cases

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

HB 1189 by Ja. Johnson imposing community service in lieu of fines for certain young offenders
HB 1332 by Israel repealing local governments’ authority to issue juvenile curfews
HB 1760 by White relating to confidential, sealed, and destroyed juvenile records
HB 2027 by Bowers informing a juvenile and his family regarding the sealing of records
HB 2343 by Dutton expanding the “Romeo & Juliet” defense to five years for high schoolers
HB 3195 by Wu relating to certain juveniles committed to TJJD at sanction level six

Senate Veterans Affairs and Border Security – 1:30 p.m. or upon adjournment, Room 2E.20

SB 616 by Birdwell, the DPS sunset bill

Thursday, March 21

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

HB 1452 by S. Thompson reducing the wait before eligibility for an order of non-disclosure
HB 1753 by Allen accelerating eligibility for early release from parole supervision
HB 2158 by White creating a work-release program for prison inmates
HB 2502 by Moody imposing a jail term as a condition of probation for fatal hit-and-runs
HB 2559 by Bowers requiring a summons issue for most parole violators with new offenses
HB 2758 by Hernandez eliminating probation and deferred adjudication for certain human trafficking and prostitution-related crimes
HB 3120 by G. Bonnen related to the stacking of certain sex crime sentences
HB 3296 by Allen increasing diligent participation credits for certain state jail felony inmates

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

Legislative rotation sign-up

Thanks to Ector County DA Bobby Bland and Oldham County C&DA Kent Birdsong for coming to Austin last week and riding herd on several bills. We still have volunteer slots open for this session, so if you’ve found any new reasons to want to talk to your legislators, contact Shannon for details on how to get involved.

Quotes of the Week

“Our customers who come in say they don’t care what the district attorney says and they say they need the product.”

Trey Phillips, a CBD oil retailer (and former Fort Worth police officer), on whether a recent advisory about the illegality of unregulated CBD productswould impact his business in Tarrant County.

“Like it or not, you get one bite at this apple, and you do not want to do anything to cause harm to this case, that may cause a reversal or a mistrial. Your goal right now is to get justice. That’s primary.”
Andy Kahan, director of victims services for Crime Stoppers of Houston, on how he explains to murder victims’ family members why information about those cases are not public before trial.

“We have 11 doctor shifts a day and most of the doctors tell me it’s hard to go a whole shift without seeing at least one scooter injury.”
Dr. Christopher Ziebell, ER director for Dell Seton Medical Center at UT-Austin, when asked about the increase in injuries among urban electric scooter riders.

“Court is one of those places where facts still matter.”

Federal judge Amy Berman Jackson, during her recent sentencing of Paul Manafort.

TDCAA Legislative Update: Week 10, Part I

March 14, 2019

Due to a committee schedule that does not lend itself to Friday afternoon updates for those wishing to participate in committee hearings on Mondays (too late) and Thursdays (too soon), we will start sending these missives as events require in order to provide you with as much notice as possible of important events at the Capitol. (And there are some hot-button issues coming up next week!)

Judicial branch pay raise: Action item

The House version of the chief justice’s judicial pay raise bill, HB 2384 by Chairman Leach (R-Plano), will be heard in his Judiciary and Civil Jurisprudence Committee on Monday, March 18th. (See below for more details; click this link for a list of committee members.) This may be your only opportunity to testify in a public hearing on a potential pay raise for prosecutors, so read on if this is an issue you care about.

The situation on the ground that we have described in previous updates has changed in two ways:

The House General Appropriations Act, HB 1, is nearing completion in the House Appropriations Committee with an across-the-board pay raise intact. Specifically, it contains a judicial and prosecutor pay raise of 10 percent, with another five percent left pending for future discussion. No other bill is required to pass to put that change take effect (as long as it stays in HB 1), which is why it is the simplest, easiest, and fairest option in our opinion. House Bill 1 will be debated on the House floor in two weeks.
The other option is the chief’s two-step plan requiring a change to HB 1 and the passage of the judges’ separate bill. Chairman Leach has offered to include prosecutors in his version of the bill, but only if prosecutors want to be included. We presume those changes would look similar to the judges’ proposed longevity-style pattern: Newly-elected felony prosecutors would start at a base salary of $140,000 and increase by ten percent every four years for 12 years ($154,000, then $168,000, then $182,000) effective September 1, 2019 (and applied retroactively). There also might be some increase of the county attorney supplement as well, but we have not seen any language for any of that yet. And this plan also requires the House to de-fund the across-the-board raise and replace it with this targeted, tenure-based system, plus find an additional $8–10 million to include prosecutors. That may be more lucrative for some of you if all of that can be pulled off, but (in our opinion) it is also riskier.

All that being said, the situation remains unchanged in one very important way: Senator Huffman (R-Houston) has not changed her position on refusing to allow prosecutors into her Senate version of the chief justice’s bill. This is why TDCAA’s Legislative Committee originally recommended that prosecutors support the across-the-board raises contained in HB 1 as the most viable path to getting a raise this session. As long as the Senate author—and likely member of the state budget conference committee that ultimately decides whether or how to pay for such changes—continues to limit the bill to only long-tenured judges, all bets are off in the Senate and in any eventual conference committee (which meets behind closed doors and does not permit public input).

That is a short summary of the current situation. Rob or Shannon can provide more information as needed, but TDCAA is not in a position to speak for you on your pay—only you can do that. Monday may be your “speak now or forever hold your peace” moment, so Rob will be at the TDCAA offices at 6:00 p.m. Sunday to meet with anyone interested in coming to Austin to testify for or against HB 2384 (more committee details are below). If you have thoughts or questions before then, contact Rob.

Longevity pay status

On a much less dramatic note, the Senate followed Sen. Huffman’s lead and gave its blessing to using a one-time infusion of general revenue funds to cover the shortfall in assistant prosecutor longevity pay for this current fiscal year. That proposal—as part of SB 500 by Nelson (R-Flower Mound)—now goes to the House for final approval. That supplemental appropriation bill will be reviewed by the House Appropriations Committee on Monday, and all signs look good for this short-term fix for the longevity pay revenue gap to be approved. Once that is done, attention can shift to ensuring a similar patch for the upcoming biennium or—even better—a new, continuing revenue source that avoids the need for repeated fixes like this.

Upcoming committee hearings

Here are summaries of the relevant committee notices posted for next week (so far). There are plenty of interesting topics set for Monday, so feel free to weigh in on multiple topics if you come to Austin. Click on the committee name for a full agenda and more details on each bill; Shannon can give you the inside scoop on some of them as well.

Monday, March 18

House Judiciary & Civil Jurisprudence – 10:00 a.m., Room E2.026 (partial list)

HB 2384 by Leach, the chief justice’s judge-only (as of now) pay raise plan
HB 598 by Price funding the training of certain part-time magistrates and associate judges
HB 2955 by Price moving oversight of specialty courts to the Office of Court Administration
HB 881 by C. Bell authorizing the parents of a deceased adult to view the body before autopsy
HB 2737 by Wu providing judicial guidance regarding certain CPS and juvenile cases
HB 2068 by Nevarez exempting certain tribal government/council members from jury service
HB 900 by Israel creating a civil infraction for smoking tobacco in a vehicle with a child inside
HB 439 by Shaheen limiting civil lawsuits against persons reporting suspicious behavior
HB 883 by Thierry regulating internet use to obtain certain ID information of an elderly person

House Criminal Jurisprudence – 1:30 p.m., Room E2.012 (Link to committee membership list)

HB 85 by M. Gonzalez applying the “Romeo & Juliet” defense to alleged same-sex conduct
HB 352 by Blanco regulating law enforcement access to cell site information and the use of cell site simulators
HB 353 by Blanco regulating law enforcement access to cell site information
HB 442 by Morgan increasing the statute of limitations for abandoning/endangering a child
HB 549 by Canales granting criminal parties an objection to the appointment of a visiting judge
HB 601 by Price imposing reporting requirements related to defendants with intellectual disability
HB 940 by Davis regulating the unlawful restraint of a dog
HB 1030 by Moody changing the vote requirement for special issues in capital cases
HB 1139 by S. Thompson creating a pre-trial determination of intellectual disability in capital cases
HB 1936 by Rose creating a pre-trial determination of “serious mental illness” in capital cases
HB 1223 by VanDeaver encouraging prosecutions for interference with child custody
HB 1279 by Allen correcting statutory jury instructions regarding parole eligibility
HB 1357 by Wu creating an offense for failure to report sex crimes or impair their investigation
HB 1499 by Metcalf directing unclaimed property to certain crime victims
HB 1996 by Leman requiring documents of certain deportation admonishments

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

Future updates

We’ll send out a more standard recap of this week’s events tomorrow or Monday. Please bear with us as we work out a more useful schedule for these updates. All of this is part of our efforts to go the extra mile to get you the information you need to be effective advocates at the capitol for yourselves, your offices, and your communities.

TDCAA Legislative Update: Week 9

March 8, 2019

As you read this, hundreds of bill ideas are dying a quiet death by not being filed before today’s 6:00 p.m. deadline. We’ll have a more complete run-down of bill filings next week, but feel free to pour one out this weekend for all of the good ideas that won’t get any love from the legislature this session.

Quick update on some hot button issues

Here is a very brief update on some of the most high-profile issues we’ve been following for you this session.

Bail bond reform: The Lite Gov finally referred SB 628 by Whitmire (D-Houston) to the author’s own committee. (Such delays usually indicate a rough road ahead for such a bill, but who knows.) Elsewhere, Rep. Kacal (R-Bryan) filed HB 2020, which tracks Governor Abbott’s recommendations to limit bonds for more serious offenders, including requiring district court judges to personally review those cases. Both bills are named “The Damon Allen Act” after the same DPS trooper gunned down last year, so … yeah … that’s awkward.

Grand jury changes: Senator Whitmire (D-Houston) filed SB 1492, which is the same as Rep. Thompson’s HB 2398 (recapped last week) except the new Senate version does not (yet) include the House bill’s provisions on early discovery and lawsuits against prosecutors.

DWI deferred adjudication: SB 106 by Menendez (D-San Antonio) and its companion, HB 3582 by Murr (R-Junction), are similar to last session’s legislation. Comal County CDA Jennifer Tharp is once again spearheading efforts to get this across the finish line. If you would like to help her and want updates on the bill’s progress, email her at [email protected].

Intellectual disability and the death penalty: Expect HB 1139 by S. Thompson (D-Houston) to get a hearing as soon as the week of March 18th. Some prosecutors have suggested changes to provisions on the timing of the pre-trial hearing, a right to appeal, and the definition of ID, but it’s too soon to tell how that will all shake out.

DRP repeal: Multiple bills have been filed to repeal the Driver Responsibility Program, but the ones most likely to pass (if any) are HB 2048 by Zerwas (R-Richmond) or its identical companion, SB 918 by Huffman (R-Houston). The initial problem with the filed versions of those bills is that they merely replace the current massive DWI-related surcharges with similarly massive mandatory DWI state fines, making it even less likely anyone will ever plead to those offenses. However, this discussion is far from over, so keep watching them for changes as they move through the system.

State jail reform: We haven’t had time to process various reform proposals on this topic because they are all being filed at the deadline, which does not bode well for the fate of any of them. More on this in future weeks.

Judicial branch pay update

On Monday, the full House Appropriations Committee adopted its subcommittee’s recommendation to include in HB 1 a 10-percent across-the-board pay raise for various elected judges and prosecutors (plus another five-percent increase they could consider later, at an additional cost of ~$12 million). That continues to be the best chance for elected prosecutors to receive increased compensation this session. We are getting feedback from the Capitol that many of you are taking the initiative to make that happen, but if you have not already done so, please refer to our past recommendations on this topic and call or email Rob if you have any questions.

Elsewhere, the Senate approved SB 3 by Nelson (R-Flower Mound), an emergency item that gives classroom teachers and librarians a $5,000 annual pay raise. However, that proposal is expected to find less favor in the House, which prefers to push funds down to school districts without specific earmarks. In light of that disagreement, we’ll let you decide for yourselves whether you think both chambers will be amenable to granting as much as $42,000 in raises to certain long-tenured judges, as some of them have requested.

“Texas Prosecution 101”

Every few years we have to dust off and re-issue our little white paper on who prosecutes what under the Texas Constitution. We call it our “Prosecution 101” paper, the latest copy of which you can find on our website here. You might want to keep it handy for this next part.

If you recall, over the summer the Senate State Affairs Committee considered whether the Office of the Attorney General (OAG) should be tasked with prosecuting human trafficking (and abortion-related) crimes. The committee’s conclusion, as stated in its interim report, was to support concurrent jurisdiction for OAG and local prosecutors in trafficking cases—but without specifying if it meant original concurrent jurisdiction for OAG, or merely the existing arrangement we enjoy now. Then we told you earlier this session that OAG was asking for more than a dozen new employees to investigate and prosecute human trafficking (more on that below). And last week, yet another piece of the potential puzzle was filed: SB 1257 by Huffman (R-Houston) could allow OAG to independently investigate human trafficking cases in your communities and independently prosecute those cases in your courthouses.

As filed, SB 1257 gives OAG original criminal jurisdiction in human trafficking cases that: 1) occur in more than one county; 2) occur in Texas as well as another state or country; or 3) are facilitated by the use of the U.S. mail, email, telephone, fax, the internet, or a wireless communication between counties or a Texas county and another state or country. (In other words, the AG will have original criminal jurisdiction in pretty much every human trafficking case.) Furthermore, if a human trafficking case *is* limited to a single county, the bill requires the local prosecutor to notify OAG within 14 days of becoming aware of that conduct and, if the local prosecutor decides not to pursue charges, you get another 14 days to notify OAG of that fact—upon which news OAG can then step in and prosecute a case you declined.

How does that strike you?

Here are our initial thoughts. First, some prosecutors have already raised concerns about the constitutionality of that arrangement. (See the white paper for details.) Second, Texas prosecutors have always enjoyed a good working relationship with OAG prosecutors, so rather than focus on issues of jurisdiction, authority, or a race to the courthouse, we think you’d prefer to talk about how you can get the most out of the existing partnership with OAG to ensure effective investigations and prosecutions. And third, there is probably a good reason why the state doesn’t already have two independent prosecuting offices with the authority to represent the State in the same cases, in part because it can only lead to trouble down the road as soon as the defense bar realizes that the first witness they should call in any case declined at the local level is the local DA who had reservations about the case. (Won’t those be some fun Brady hearings?)

All that being said, the initial language in SB 1257 is just that—a starting point for various interested parties to begin talks over how best to improve the state’s response to this issue that has captured the attention of policymakers. (Ditto for its identical House companion, HB 3979 by Leach [R-Plano], filed yesterday). It will be up to you to educate them on what the most appropriate response should be.

Human trafficking funding

While we are on this topic, note that the Senate State Affairs Committee recently voted out SB 72 by Nelson (R-Flower Mound) to create a new Human Trafficking Prevention Coordinating Council consisting of various legislative and executive branch members and chaired by the attorney general. Among the purposes of this council will be to devise a statewide strategy for combatting human trafficking and to oversee state expenditures on that topic—up to $89 million spread among seven state agencies to hire personnel to investigate, prosecute, and prevent trafficking, if the Senate gets its way.

But across the rotunda, the House Appropriations Committee appears to be taking a wait-and-see approach to financing more human trafficking prevention efforts. On Monday, that committee moved all $75 million of its proposed human trafficking appropriations to Article XI, also known as the “wish list,” in their proposed budget (HB 1). That amount includes funding for 13 additional AG prosecutors and staff, 41 TABC agents, and 204 DPS officers who were to be assigned to new anti-human trafficking and gang task forces. These items aren’t dead, they are merely tabled, but this means they could become points of negotiation with the Senate budget writers when the final details are hammered out in late May.

Up(date) in smoke

The House Criminal Jurisprudence Committee took testimony earlier this week on HB 63 by Moody (D-El Paso) to change possession of less than one ounce of marijuana into a civil infraction. Several hours of testimony on the bill can be boiled down to this: Some law enforcement agency witnesses think marijuana should remain a crime, other public witnesses think marijuana should be something less than a crime, and no one—not one witness—talked about the actual mechanics of the bill or how it would work in real life. This is a good example of how a policy narrative can sometimes overwhelm the nuts-and-bolts details of an issue—but remember, should something like this pass, those details will be left up to y’all to sort out. And while its fate in the Senate is cloudy, it does have some bi-partisan support in the House, so now is a good time to read the bill and what it does or doesn’t do. Look for this committee to take up various other marijuana-related bills later in the session—including proposals to make possession of small amounts a Class C misdemeanor—but for now, this is the bill for marijuana reform in Texas this session.

Scattershots

Hemp farms in Texas? Ag Commissioner among backers (KUT News)
Immigration, border security top voters’ worries (Texas Tribune)
Guns are popular in Texas, but so are “red flag” laws (Texas Tribune)

Committee action

The bills we told you about last week are all now pending in their House committees, most of which seem to be in no hurry to spit them back out. Among the bills did receive approval in a committee are: HB 234 by Krause (limiting local regulation of kids’ lemonade stands), HB 448 by Turner (penalties for failing to use rear-facing child car seats), SB 40 by Zaffirini (court proceedings following disasters and evacuations), SB 71 by Nelson (telemedicine for sexual assault exams), SB 73 by Nelson (protecting personal information of judges), SB 201 by Huffman (penalty enhancements during natural disasters), SB 341 by Huffman (ban on appointing non-prosecutors as attorneys pro tem), and SB 415 by Huffman (no plea in absentia in Class C family violence cases).

Upcoming committee hearings

Here are summaries of the relevant committee notices posted for next week (so far).

Monday, March 11

House Criminal Jurisprudence – 2:00 p.m., Room E2.012

HB 64 by Canales authorizing expunction of most misdemeanor convictions after five years
HB 121 by Swanson creating “oral warning” defenses to 30.06 and 30.07 trespasses
HB 176 by Canales prohibiting waivers of nondisclosure and expunction rights
HB 465 by White relating to fee and cost waivers
HB 566 by White expanding eligibility for orders of nondisclosure
HB 691 by White expanding eligibility for orders of nondisclosure for repeat offenders
HB 756 by Wu restricting the State’s right to jury punishment
HB 869 by Hefner relating to organized criminal activity involving credit card skimmers
HB 902 by Landgraf increasing punishments for assaulting pregnant women
HB 929 by Anchia creating an admonishment for military service/discharge
HB 1202 by Collier excluding certain rent-to-own violations from theft of service
HB 1625 by K. Bell creating the offense of false report of misconduct against first responders
HB 1661 by Herrero clarifying the scope of and venue for continuous violence against the family

Tuesday, March 12

House Licensing & Administrative Procedures – 8:00 a.m., Room E2.028

HB 1544 by Raymond legalizing fantasy sports contests

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

Organizational meeting; invited testimony only.

Wednesday, March 13

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

HB 629 by Landgraf creating a protective order registry
HB 830 by Israel authorizing the release of intoxicated persons to sobering centers
HB 1145 by Krause repealing the Driver Responsibility Program
HB 1544 by Chen Button relating to the execution of a DWI blood search warrant

Thursday, March 14

House Corrections – 8:00 a.m., Room E2.030 (not posted yet)

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

New bills

To give you an idea of the volume of bills being filed before today’s deadline, the past four days have seen 264, 350, 532, and 911 bills filed, respectively. Thus, it should come as no surprise that we are still hundreds of bills behind in our reading. As of now we are tracking 1,172 (18% percent) of the 6,396 bills filed through yesterday. Please remember that if you call to ask about a bill by number and it doesn’t immediately register with us. (Heck, our own kids’ names no longer register with us after having to review all these bills!)

Next week

Now that the bill-filing deadline is over, legislators can focus on committee hearings and doing something on the floor other than recognizing visiting dignitaries and congratulating high school football teams for winning a state championship. (We have enough of those to last us at least half a session, but we’ll save our rant about the UIL’s everyone-gets-a-championship-trophy dilution of our state sport for another day.)

Legislative rotation sign-up

Thanks to Nacogdoches County Attorney John Fleming and Asst. CA Stephanie Stephens for coming to Austin this past week and riding herd on several bills. We still have a few slots open for later this session, so if you’ve found any new reasons to want to talk to your legislators, contact Shannon for details on how to get involved.

Quotes of the Week

“What is illegal in the real world must be illegal in the digital world, and this legislation is a first step in the right direction in adding that accountability.”
Whitney Wolfe Herd, CEO of Bumble (an online dating app catering to women), in support of HB 2789 by Meyer (R-Dallas), which would make it a Class C misdemeanor to send unsolicited lewd electronic images to another person.

“I just think in 2019, as a country, we don’t need to be ‘springing forward’ and ‘falling back’ just because we did it in World War I to save energy. We just need to pick a time and stick with it.”
State Sen. Jose Menendez (D-San Antonio), in an article discussing his SB 190, which would end Texas’ participation in daylight savings time. [Don’t forget to set your clocks forward on Sunday!]

TDCAA Legislative Update: Week 8

March 1, 2019

This week various legislative committees will discuss marijuana decriminalization, incest, the legalization of eight-liner game rooms, and more. Who says civics is boring? Read on for details.

Judicial branch pay update

We sent everyone an update on judicial pay issues yesterday. If you did not receive it, contact Shannon for a copy.

House Appropriations

The House Appropriations Subcommittee on Articles I, IV and V chaired by Rep. Oscar Longoria (D-Mission) held a series of working group meetings over the past two weeks to hammer out the final details on the budgets for various general government agencies, the judiciary, and the public safety agencies. We won’t know the outcome until Monday, when the subcommittee reports to the full Appropriations Committee and seeks a formal vote on the subcommittee’s proposals. We won’t have access to the subcommittees working documents until then, but some items that are still pending include: additional funding for visiting judges; additional staff positions for various courts; and $12 million to fund an additional five percent across-the-board judicial pay raise on top of the 10 percent raise already in the baseline budget. We’ll continue to share relevant budget news as the session progresses, including what happens in the Senate Finance subcommittees (which are moving a littler slower than their House counterparts).

Assistant prosecutor longevity pay

Not much new to report. We want to thank Senator Joan Huffman (R-Houston) and Finance Committee Chairwoman Jane Nelson (R-Flower Mound) for voicing their support for the program and seeking ways to get it on a solid footing going forward. We are monitoring a patch for the final quarter of FY 2019 and a fix for the FY 2020-21 biennium shortfalls. No word yet on a permanent solution, but we are hopeful legislators will identify a reliable funding stream in the near future.

Grand jury “reform” bill filed

Check out HB 2398 by Rep. Senfronia Thompson (D-Houston). It’s the sequel to last session’s HB 2640 by Thompson (and then-companion SB 1424, which got watered down before dying in the House). Ms. Thompson has been pushing for an attorney in the grand jury off and on since 1991, but this is perhaps the most far-reaching bill she has filed on this topic. Here are some details:

Every witness or target of an investigation is entitled to a lawyer in the grand jury
A target is entitled to full discovery before appearing before a grand jury
All witness questioning and testimony must be recorded
If a person is no-billed, a second grand jury may not investigate or return an indictment against that previously investigated person absent new, material evidence
The State must present all exculpatory evidence to the grand jury
Regardless of whether a grand jury returns a true bill or no bill, the target/defendant can sue the prosecutor for attorney’s fees and other related expenses which shall be awarded if the court finds that “the position of the prosecutor was vexatious, frivolous, or in bad faith.”

Prosecutors’ views on this proposal last session were consistent with prosecutors’ views over the past three decades: Granting a witness or target of an investigation the absolute right to have an attorney in the grand jury room is bad public policy, so there is really nothing prosecutors can agree to or negotiate. Only time will tell how interested this legislature is in considering that policy once again, but if this issue is important to you, be sure to read the text of the bill and dust off that well-worn copy of your talking points.

Tap the brakes

Some of you may have heard from your clerks that TDCAA is recommending they stop collecting the time payment fee authorized by Local Gov’t Code §133.103, which was partially struck down by the 14^th Court of Appeals in Johnson v. State (issued Feb. 4, 2019) (for details, see our case summaries entry for that week). We’ll spare you the Telephone Game explanation for how things got confused, but know that TDCAA has *not* made any such recommendation (nor has the Office of Court Administration). No mandate has issued from the courts in this matter. Furthermore, the State Prosecuting Attorney’s Office will likely seek a motion for rehearing and, failing that, petition the Court of Criminal Appeals for further review. This court cost and others like it are also at play in some bills before the Legislature, so our wisest counsel right now is to let things play out to the end before taking action. If you have further questions about this, please contact Shannon or Stephanie at TDCAA.

Scattershots

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

Where control of the next Texas Legislature will be decided (Texas Tribune)
Under the Dome (video): Where lawmakers go to wine, dine, and deal (Texas Tribune)
What do cops want from lawmakers? (KERA News)
Growing support for Texas to decriminalize marijuana (Texas Tribune)

Floor action

Bills on issues designated as an “emergency” are now reaching the Senate floor, as SB 3 by Nelson (R-Flower Mound) to give classroom teachers a pay raise and SB 10 by Nelson to create a Texas Mental Health Care Consortium are both on the Senate calendar for Monday. (Not on that calendar is SB 2, the property tax reform bill, which currently lacks the votes it needs to be considered under the Senate’s three-fifths rule.) It will be several weeks before any non-emergency items can be debated on the House or Senate floor, but take this as yet another sign that the legislature is finally getting to work in earnest.

Committee action

The bills we told you about last week are all now pending in their House committees, where the usual practice is to lay out a bill, debate it, and then let it simmer for a week before taking an up-or-down vote on it. Some bills heard yesterday on short notice in Senate State Affairs were also left pending; we’ll report anything that comes out of that committee when it happens.

Upcoming committee hearings

Here are summaries of the relevant committee notices posted for next week (so far). Click on the underlined hyperlink for a full listing of each notice, including bill information (such as the actual text of a proposal) that can be accessed by clicking on any bill number in the notice.

Monday, March 4

House Criminal Jurisprudence – 2:00 p.m., Room E2.012

HB 27 by Canales increasing penalties for assaulting a federal officer
HB 63 by Moody making possession of < 1 oz. of marijuana a civil infraction
HB 86 by Martinez creating the offense of reckless discharge of a firearm
HB 446 by Moody removing knuckles from the list of prohibited weapons
HB 521 by Dutton requiring additional information in the charging instrument for resisting arrest
HB 667 by K. King increasing the penalty for sexual assault involving incest
HB 760 by Wu increasing the penalty for theft of delivered packages (aka “porch piracy”)
HB 1028 by Guillen increasing the penalties for certain offenses during disasters

House Judiciary & Civil Jurisprudence – 2:00 p.m., Room E2.026

HB 354 by Herrero exempting fire fighters and police officers from jury duty

Tuesday, March 5

House Licensing and Administrative Procedures – 8:00 a.m., Room E2.028

HB 78 & HJR 18 by Raymond authorizing local option elections to legalize certain eight-liner operations
HB 892 by Kuempel authorizing a county to regulate and tax local game rooms

House Business & Industry – 10:30 a.m., Room E2.016

HB 427 by Shaheen basing the penalty for price tag tampering on the value of the tagged item

Wednesday, March 6

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

HB 8 by Neave expanding the collection and testing of rape kits; changing statutes of limitation
HB 616 by Neave relating to payment for rape kit collection and storage
HB 979 by Hernandez authorizing the collection of DNA from certain defendants
HB 1177 by Phelan authorizing the carrying of a handgun during a declared state of disaster

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

New bills to watch

We are now tracking 1011 (23% percent) of the 4,352 bills filed through yesterday. Here is another list highlighting some of the more interesting bills filed in the past few days:

HB 15 by S. Thompson, the omnibus human trafficking bill
HB 2158 by White authorizing work release for certain TDCJ inmates
HB 2200 by S. Thompson narrowing the scope of drug-free zone enhancements
HB 2260 by T. King authorizing some non-lawyer JPs to issue blood search warrants in DWIs
HB 2303 by Moody narrowing the definition of “bet” to exclude fantasy sports wagering
HB 2339 by Meza requiring bond conditions in violent offenses to be entered in TCIC
HB 2360 by Moody defining “execute” for the purposes of making arrest affidavits public
HB 2421 by R. Smith authorizing certain judges to issue search warrants for wireless devices
HB 2432 by Raney creating a “Good Samaritan” defense to possession of controlled substances
HB 2481 by Metcalf authorizing deferred adjudication for DWI offenders in veterans’ courts
HB 2491 by Wu prohibiting the transfer of juveniles to TJJD for state jail felony offenses
SB 989 by Watson imposing jail time as a condition of probation for hit-and-run deaths
SB 993 by Powell increasing penalties for family violence assault in the presence of a child
SB 1018 by Alvarado requiring family violence offenders to surrender firearms
SB 1125 by Hinojosa authorizing video teleconference testimony by a forensic analyst
SB 1257 by Huffman authorizing the AG to unilaterally prosecute human trafficking cases
SB 1305 by Huffman increasing penalties for assaulting a pregnant woman

To read any bill, go to https://capitol.texas.gov/, enter the bill number in the appropriate field, and click “go”—then on the subsequent webpage, select the tab at the top of the page for the information (history, bill text, actions, authors, etc.) you want. And as always, you can contact Shannon or Rob if you are having trouble finding the information you seek.

Next week

After lagging behind past sessions’ rate of bill filing, legislators made up for it with a vengeance this past week by filing more than 1,000 bills, and they will continue that torrid pace by filing 2,000–3,000 more bills before next Friday’s deadline. (As a result, we will waive the white flag and give up trying to highlight individual bill filings in the list above.) Meanwhile, committees will continue to increase their workload and start working into the evenings, so if you see any of our family members out and about, be sure to tell them we’re still alive and manning our posts at the capitol.

Legislative rotation sign-up

If you are interested in coming to Austin this session, please contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time to come to hang out with us.

Domestic Violence Seminar

Registration is now open for TDCAA’s 2019 Domestic Violence Seminar. Whether you are new to prosecution or a seasoned hand, this course will cover practical skills you need to do your job today. From intake to advocacy, this is domestic violence training developed for Texas prosecutors and presented by Texas prosecutors. Join us in Georgetown, Texas, from April 9th to the 12th for this exciting training opportunity. For more information, please click here.

Quotes of the Week

“The Court of Criminal Appeals has wrestled with this issue for the 30 years I’ve been a lawyer. It will be good to have some finality on the topic.”
Harris County DA Kim Ogg, in an article discussing whether the U.S. Supreme Court’s second ruling in the Bobby James Moore case will prod the state legislature into adopting a statutory scheme for determining intellectual disability in capital cases. [For legislation already filed on that topic, see HB 1139 or its companion, SB 418.]

“Yet another perfectly good statute falls today, adding fuel to the claims that this court is often too quick to reject the considered will of our state’s Legislative Department.”
Court of Criminal Appeals judge Kevin Yeary, in his dissent to the majority opinion in State v. Doyal that struck down part of the state’s Open Meetings Act for being unconstitutionally vague this week.

“I love it because it’s driving some people crazy and we’re having a blast working together.”
Speaker Dennis Bonnen (R-Angleton), describing his relationship with the governor and lieutenant governor in a radio interview

TDCAA Legislative Update: Week 7

February 22, 2019

The property tax revenue cap “emergency” bill lacks the votes to make it to the floor of the Senate, the new secretary of state’s appointment is about to be rejected by the Senate Nominations Committee, and there’s still no agreement on how to fix school finance. If this is supposed to be the “Kumbaya Session,” we’d hate to see what it looks like when they aren’t supposedly getting along so famously.

Judicial branch pay issues

Members of TDCAA’s Legislative Committee convened in Austin this week to discuss various funding and pay issues that you are going to have to deal with this session. As a result of their deliberations, a delegation of elected prosecutors intends to bring their concerns to State Sen. Joan Huffman (R-Houston), author of the bill that would give some (but not all) judges—and no elected prosecutors—a pay raise (SB 387, discussed in further detail here).

We will share with you the outcome of that meeting after it has taken place, along with any recommendations based on those developments. We recognize how important these matters are to you, so if events necessitate a mid-week update from us, we will do so. Until then, please continue to talk to your local judges and neighboring prosecutors about your concerns, and please share with us here in Austin any new information you learn.

SCOTUS issues opinion on asset forfeiture?

OK, that’s not really what Timbs v. Indiana was about, we just wanted to grab your attention. In truth, this was a rather esoteric constitutional law decision about the 8^th and 14^th Amendments that arose in the context of an asset forfeiture case. You can read today’s case summaries to learn the ins and outs of that ruling, but due to some erroneous reporting about the case in the media, we feel obligated to note in this space that the Timbs decision does not change the law in Texas. Unlike some other states (such as Indiana), our appellate courts have been willing to apply the Excessive Fines Clause of the 8^th Amendment to asset forfeiture cases for the past two decades (if not longer). While Timbs could lead to more of those types of challenges due to the attention the case has garnered in some quarters, it’s nothing new or dramatic for Texas jurisprudence, so feel free to share that background with anyone who asks you about this topic.

Scattershots

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

Death penalty reform bill lands Republican joint authors (Texas Tribune)
Gangs, lack of guards trigger riots at TJJD facility (Houston Chronicle)
Senator Paxton files bill to give General Paxton regulatory authority over securities regulations he is accused of violating (Texas Tribune)
Study: Vaping pot yields more powerful high than smoking it (NBC News)
Courts struggle to interpret emojis (The Verge)

Floor action

Bills on issues designated as an “emergency” are now reaching the Senate floor, as SB 10 by Nelson (R-Flower Mound) to create a Texas Mental Health Care Consortium is on the Senate calendar for Monday. (Not on that calendar is SB 2, the property tax reform bill, which currently lacks the votes it needs to be considered under the Senate’s three-fifths rule.) It will be several weeks before any non-emergency items can be debated on the House or Senate floor, but take this as yet another sign that the legislature is about to get to work in earnest.

Committee hearings

Each week we will try to provide you with notice of relevant bills being heard in various committees. Due to space limitations, we won’t always list all the bills posted for a hearing, but you can click on the underlined hyperlink in the committee name for a full listing of each notice, including bill information (such as the actual text of a proposal) that can be accessed by clicking on any bill number posted there.

Monday, February 25

House International Relations & Economic Development – 10:00 a.m. in Room E2.014

HB 48 by M. Gonzalez requiring prosecutors to report wage theft convictions to a state registry

House Criminal Jurisprudence – 2:00 p.m. in Room E2.012

HB 51 by Canales mandating certain standardized forms for criminal actions statewide
HB 93 by Canales requiring a magistrate’s name on certain signed orders
HB 98 by M. Gonzalez revising the revenge porn statute after Ex Parte Jones
HB 101 by Canales creating the criminal offense of false caller ID display
HB 226 by Krause creating a commission to review penal laws outside the Penal Code
HB 595 by Rosenthal increasing the penalty for false report hate crimes

Wednesday, February 27

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

HB 162 by White shortening or repealing the period of DL suspensions for various offenses
HB 238 by Krause prohibiting the enforcement of federal firearm regulations in Texas
HB 302 by Paul banning certain property owners from restricting the carrying of firearms
HB 364 by Tinderholt creating a statewide database of ignition interlock users

Remember, TDCAA is not going to testify for or against these bills. To steal someone else’s slogan: “We report, you decide.” And if no one shows up at the committee hearing but then complains about what the committee did, we will steal someone else’s slogan: “Where’s the beef??!” Remember, the legislative process is like some raffles: You must be present to win. If you want to learn more about a bill and find out how to get involved for or against it—or even just get us to stop recycling lame ad jingles from decades past—contact Shannon for details.

New bills to watch

We are now tracking 789 (25% percent) of the 3,191 bills filed through Wednesday of this week. Here is another list highlighting some of the more interesting bills filed in the past few days:

HB 1871 by Goldman, expanding public access to juvenile court proceedings
HB 1936 by Rose, excluding persons with “severe mental illness” from the death penalty
HB 1955 by Dutton, mandating release on personal bond for most misdemeanors
HB 1961 by Moody, making it a crime to make a false report to a jailer or correctional officer
HB 1992 by Leman, prohibiting telemarketers from using misleading caller ID information
HB 1996 by Leman, requiring immigration admonitions to be given orally and in writing
HB 2015 by Dutton, regulating searches, seizures, and raids by SWAT teams
HB 2026 by Collier, creating an optional “wobbler” penalty for certain state jail felonies
HB 2049 by Collier, expanding factors indicating a lack of consent to sexual assault
HB 2120 by Leach, the omnibus judicial branch and court creation bill
HB 2134 by Klick, restricting the use of certain physicians in certain child abuse investigations
SB 887 by Menendez, prohibiting a “gay panic” defense and authorizing anti-bigotry instructions
SB 891 by Huffman, the omnibus judicial branch and court creation bill

Next week

We’re still waiting for bills to drop (that’s Capitol lingo for “be filed”) on a variety of topics that may be of interest to you, including state jail felonies, civil asset forfeiture, the death penalty, and grand juries. Even though bill filings seem to be slower this session, there will still be two or three thousand more bills filed over the next two weeks ahead of the 60-day deadline (March 8), so we’ll review them all and be sure to find the needles in that haystack for you. Bill-filing will be the primary focus of legislators of legislators for two more weeks, but as that winds down, the focus will turn to committee hearings. Remember, these committee hearings are the single biggest “choke point” in the legislative process: Approval by a committee often translates into a bill ending up on the governor’s desk, while defeat in a committee leads to almost-certain death. (Good luck if you want to pass some new laws!)

Legislative rotation sign-up

Domestic Violence Seminar

Quotes of the Week

“The no-knock warrants are going to go away like leaded gasoline in this city.”
Houston Police Chief Art Acevedo, in response to a no-knock drug bust by HPD that went horribly awry, resulting in two civilian deaths and multiple injured officers—including some who may now face criminal charges themselves.

“In the House, we recognize that we’re going to be the adults in the room. We’re going to come up with pragmatic and thoughtful policy—and we won’t react to the artificial deadlines set by the Senate.”
State Rep. Trey Martinez-Fischer (D-San Antonio), member of the House Ways & Means Committee that will consider legislation to lower local revenue caps.

“Well, y’know, time is just time. I’m here to turn myself in.”
Former State Sen. Carlos Uresti (D-San Antonio), outside the federal courthouse where he turned himself in to start serving his 12-year federal prison sentence for various fraud and corruption-related charges.

“Really, when you’re looking at trying to keep a community safe, safety is not a Democrat or a Republican issue. It’s an issue of common sense. Democrats want to keep our streets safe just like Republicans do. So, everyone is doing their part in my administration to ensure the safety of this community.”
Bexar County Criminal DA Joe Gonzalez (D), who has hired several recently-defeated local Republican judges to serve in his new administration.

TDCAA Legislative Update: Week 6

February 15, 2019

Valentine’s Day is over, which means everyone around the capitol is about to “lose that lovin’ feelin’” as the real work will begin upon return from this upcoming three-day weekend.

House Appropriations takes on pay issues

The House Appropriations Subcommittee overseeing judicial branch funding met early this morning to discuss budget proposals in those areas. If you recall, the House’s initial version of the budget (HB 1) included both a temporary fix for assistant prosecutor longevity pay (to keep that program in the black for another two years) and a 10-percent increase in the state’s judicial benchmark salary that would apply across the board so that judicial (and elected prosecutor) salaries and supplements could be increased for only the third time in the past 20 years. These appropriations compare favorably to the initial Senate budget (SB 1), which included neither increase (although there are some encouraging signs on the longevity pay front going forward).

With that background, Chief Justice Nathan Hecht appeared before the subcommittee and testified on a variety of funding issues. Saving the salary issue for the end of his presentation, he thanked the House members for proposing a 10-percent across-the-board raise but then recommended they instead consider SB 387 by Huffman (R-Houston) as an alternative plan. If you recall, that is the bill we mentioned two weeks ago that would give certain long-tenured judges immediate salary increases—up to 30 percent for some—while leaving all prosecutors, regardless of tenure, stuck (perhaps for good) with the current benchmark salary. He also said that we can expect a House companion to SB 387 to be filed soon by Rep. Jeff Leach (R-Plano), the new chairman of the House Judiciary & Civil Jurisprudence Committee, and we expect both bills will be referred to the bill authors’ own committees for further consideration.

TDCAA’s Legislative Committee will meet next week to discuss these funding issues, so keep an eye out for an update on this topic next Friday, including potential recommendations for action from that group.

Property tax reform

Speaking of funding: Our friends at the Texas Association of Counties (TAC) are paying close attention to property tax reform bills that might constrain budgeting for local government services. The main measures to follow are SB 2by Bettencourt (R-Houston) and its companion, HB 2 by Burrows (R-Lubbock), which both seek to lower the current revenue cap on increased local government spending from eight percent to 2.5 percent (a local election is required for any tax increase beyond that). As proposed, SB 2 applies only to larger taxing units (e.g., counties, cities, school districts), but voters in smaller taxing units could opt-in to the lower limit via election. The topic has been named by the governor as an emergency item, so it is on the legislative fast-track right now, but opponents fear this cap reduction will negatively impact county budgets and the ability to properly fund core services, such as local criminal justice systems.

Numerous county and local officials testified against SB 2 when it was considered by the Senate Committee on Property Tax last week, noting that the bill does not provide any meaningful property tax relief and it does not reform school finance—the main driver behind tax increases—nor does it address unfunded mandates on counties, which are another significant cost driver for local budgets. Despite those objections, SB 2 was voted out of the Senate committee and may receive a floor vote soon. If you are concerned about the potential negative effects of this legislation on your office’s budget and want to get more involved, contact Laura Garcia with TAC’s Legislative Services Division. We lack the bandwidth to closely track this issue during the session, but TAC has a wealth of information about it on the TAC website, and you can work with them if you have concerns about it.

Death penalty legislation

Sometimes we (only half-)jokingly say that capital punishment is 1 percent of a prosecutor’s job but 99 percent of what the press wants to talk to prosecutors about. At some point this session that quip is bound to come true again, so here is what you can expect to see filed on this topic beyond the usual abolition and moratorium bills that rarely go anywhere:

Pretrial determination of intellectual disability (aka mental retardation) by a judge to exempt those offenders from the death penalty (already filed as HB 1139 and SB 418)
Pretrial determination of “severe mental illness” by a judge to exempt those offenders from the death penalty
Exempt from the death penalty anyone convicted as a party co-conspirator who did not specifically intend to commit capital murder (HB 472)
Inform capital juries of the effect of their deadlock if they cannot unanimously agree on any special issue
Create an out-of-time motion for new trial that allows the prosecution and defense to re-open old cases and re-sentence offenders serving “unjust” sentences
Create a State Defense Attorney counterpart to the State Prosecuting Attorney in Austin

In addition, bills have been filed to expand the death penalty so that it applies to murder victims under 15 years old (HB 261 and SB 719) and murder victims working as emergency services personnel (HB 1573 and SB 714).

Prosecutors wishing to have a say in what any of these filed bills look like as they move through the process should get involved sooner rather than later. If you have questions about them or how you can participate in their consideration at the legislature, contact Shannon.

Scattershooting

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

New bills to watch

Through yesterday, we are tracking 743 (26 percent) of the 2,819 bills filed to date. Here is another list highlighting a score of interesting bills filed in the past week or so:

HB 1528 by Rose, requiring the reporting of certain information on Class C family violence cases
HB 1539 by Geren, reducing penalty ranges for tampering with evidence in certain cases
HB 1580 by Phelan, expanding collection of DNA samples from certain accused felons
HB 1609 by Tinderholt, making grand jurors’ names confidential but granting access to the press
HB 1615 by Schaefer, requiring the state to disprove an “innocent owner” defense in forfeiture proceedings
HB 1625 by K. Bell, creating the offense of false report of misconduct by emergency responders
HB 1637 by Miller, requiring trauma-informed care training for lawyers who represent DFPS
HB 1686 by R. Smith, mandating protective orders upon conviction for certain sex crimes
HB 1713 by Ramos, requiring surrender of firearms upon conviction for certain offenses
HB 1719 by Thompson, reducing penalties for certain marijuana and PG1 drug possession offenses
HB 1721 by Israel, changing various alcohol-related offenses by minors into civil infractions
HB 1787 by Geren, reducing penalties for certain habitual theft offenders
HB 1791 by Krause, prohibiting local governments from restricting the licensed carry of a handgun on property owned or leased by that governmental entity
HB 1811 by Murr, increasing boating while intoxicated penalties when BAC > 0.15
HJR by Canales, exempting certain judges from the resign-to-run rule for other offices
SB 735 by Watson, revising the statute of limitations for certain sexual assaults involving DNA
SB 736 by Watson, allowing the admission of extraneous acts in certain sexual assault cases
SB 782 by West, restricting an officer’s access to certain body-cam footage after an officer-involved shooting
SB 821 by Nelson, relating to child advocacy centers and multidisciplinary child abuse teams
SB 831 by Huffman, creating an offense for tampering with an electronic monitor while on parole
SB 840 by Hinojosa, expanding the elements of continuous family violence

Next week

Legislative committees will hold more organizational meetings, and a few will start hearing the bills that have been referred to them for consideration (although none of general interest to us yet); 100–150 new bills per day will be filed; and the Senate may try to take up SB 2 on the floor if it has the three-fifths vote threshold necessary to be considered.

As we mentioned last week, if you are serious about proposing new legislation, you need to get your bill idea into a legislator’s hand ASAP. The official deadline for filing a bill is Friday, March 8, but bills filed that late already have one foot in the grave.

Legislative rotation sign-up

Domestic Violence Seminar

New DWI manual on the way

Thanks to funding from TxDOT, we are shipping copies of our new DWI manual to all prosecutor offices in Texas. The updated edition of the book has been reorganized to include more material on blood search warrants (and other ways to obtain blood evidence in an impaired driving case) as well as a new chapter on drugged driving. The manual includes up-to-date caselaw, and related documents and instructional videos are accessible on the TDCAA website. Books are shipped to each office based on the number of prosecutors indicated in TDCAA’s membership database. Additional copies may be purchased for $45 via the TDCAA website.

Quotes of the Week

“The Legislature is where ideas go to die. Or to be turned into something different.”
Ross Ramsey, Executive Editor of the Texas Tribune, in his column explaining why agreement among the leadership still does not guarantee a smooth ride for legislation like property tax reform.

“I don’t know if it’s 2.5 percent or not because I do know that puts a real stranglehold on our county officials, our city officials. But I do think they’re going to get comfortable with a number that’s less than 8.”
State Rep. John Zerwas (R-Richmond), chair of the House Appropriations Committee, on the prospect of lowering local government revenue caps this session.

“I cannot imagine the 2.5 percent [cap] will pass. The end game was to go with something so bad that those opposed will accept something lower than 8.”
State Rep. Donna Howard (D-Austin), describing how the debate over SB 2 is likely to play out in her chamber.

“His conviction is a victory for every American family who lost a loved one to the black hole of drug addiction.”
U.S. Attorney Richard Donoghue (ED-NY), on the recent conviction of former Sinaloa cartel leader Joaquín “El Chapo” Guzmán.

“[The FBI was better off when] y’all only hired Irishmen. They were drunks, but they could be trusted. Not like all those new people with nose rings and tattoos. Who knows what they’re doing?”
Comment attributed to former U.S. Attorney General Jeff Sessions, in a recent tell-all book by former deputy FBI director Andrew McCabe.

“More prosecutors does not simply mean more prosecution—rather, our charge is to seek justice. In fact, we believe a reasonable work-load will increase our diversion numbers, keeping individuals in the workforce and out of jail.”
Harris County DA Kim Ogg, in an op/ed explaining why she is requesting more prosecutors and support staff for her office. (The request was later denied after coming under fire from criminal justice reform advocates.)

TDCAA Legislative Update: Week 5

February 8, 2019

Weather in Texas is rarely boring, is it?

State of the State

The governor shifted the Legislature from first gear into second gear this week by giving a State of the State Address on Tuesday that included the following five issues as “emergency items” (listed in the order they were announced by the governor):

School finance reform and increasing teacher salaries;
School safety;
Property tax reform and direct election of county tax appraisers;
Creating a state mental health care consortium; and
Natural disaster preparations and recovery.

These emergency issues can now be heard in committees and debated on the floor of either chamber immediately. In fact, the Senate held a committee hearing on SB 2, the proposal to cap local property tax increases, the very next day after the governor’s address, so the major topic of this session is already off and running.

Besides these emergency items, the governor also expressed his support for several public safety-related initiatives, such as continued funding for border security, new anti-gang fusion centers in Waco and Tyler, new funding for tackling the rape kit backlog, and more funding for human trafficking investigations, along with new mandatory minimum prison sentences for human traffickers. However, one topic notably absent from his list of priorities was anything related to bail bond reform; more on that below.

State of the Judiciary

On Wednesday, Chief Justice Nathan Hecht gave the State of the Judiciary address to the combined houses of the legislature. After commending local courts for (literally) weathering the Hurricane Harvey storm, he urged lawmakers to:

Change the judicial selection process, or at least make elections non-partisan;
Pass SB 387, the “judicial retention” pay raise bill we summarized last week;
Pass SB 561 to increase minimum qualifications to serve on the bench;
Pass SB 628 to reform pretrial release on bond (more on that below);
Pass SB 346 to simplify court costs and ensure they go to court-related services; and
Treat juveniles’ Class C offenses as civil infractions (as done with truancy four years ago; bill has yet to be filed).

These were just a few of the suggestions he had for the legislature, but they are the ones we will probably spend the most time following this session.

Bail bond reform

Prior to both of the addresses mentioned above, State Sen. John Whitmire (D-Houston) and State Rep. Andy Murr (R-Junction) laid out the bail bond reform legislation championed by Chief Justice Hecht and certain reformers. For those of you who remember this topic from the debate over Sen. Whitmire’s Senate Bill 1338 last session, new SB 628 and its identical House companion, HB 1323, will look familiar (although not identical). Here’s a short summary of the procedures imposed by these latest bills:

Magistrates must use validated pretrial risk assessments;
All arrestees are entitled to a presumption of release on the least restrictive conditions and the minimum amount of bail, if any;
Magistrates can grant release on personal bond or money bond, both with or without conditions;
Magistrates can deny bail (if authorized by public approval of a constitutional amendment to be put on the ballot by SJR 37/HJR 62);
If denied bail, an arrestee has a right to a lawyer and a full evidentiary hearing within 10 days, at which hearing witnesses may be called and examined;
After a hearing, the magistrate must grant some form of release unless the State proves by clear and convincing evidence that the arrestee is a flight risk or will endanger the public/victim; and
Arrestees may appeal any denial of bail.

Some additional notes:

The effective date for these changes would be September 1, 2020, to allow the courts time to prepare for the impending changes after any vote on the constitutional amendment.
The constitutional amendment must be approved by voters to authorize outright denial of bail, but if it fails to be adopted, the rest of the bill—presumptive release on minimum terms, etc., for all cases—would still go into effect.
The bill is being called the “Damon Allen Act” after a DPS trooper who was murdered by an offender out on bond.

For those of you who read through new SB 628 and wonder why the provisions requiring pretrial detention hearings that were taken out last session are now back in this session’s version of the bill … well, we don’t have a verifiable answer for you, but we do have an informed guess. We know that there were lengthy negotiations between proponents of last session’s reforms and staff from the governor’s office during which the two sides tried to meld last session’s bill and Governor Abbott’s interim proposal for a Damon Allen Act, but it appears that they never found common ground (which might explain the omission of any mention of bail bond reform in the governor’s State of the State address.) Instead, the pretrial detention hearings were probably put back into the bill as a response to situations like those that led to the murder of Trooper Allen, and the bill was named after him even though his widow and surviving family did not participate in the press conference rolling out the bill (which we found unusual—although they were present for the chief justice’s state of the judiciary address the next day).

Also, unlike last session, we anticipate at least one, and maybe two, other “bail bond reform” bills to be filed in the next month. One will be from the bail bondsmen, who purport to have language that would codify the Fifth Circuit’s decision out of Harris County; the other may be a bill that more closely hews to Governor Abbott’s original idea for a Damon Allen Act. Either way, this issue is far from settled, so if you want to participate in that discussion in Austin—especially as it relates to prosecutors’ new duty to participate in (and ultimately be held responsible for the results of) these pretrial detention hearings—contact Shannon for the latest information.

Incarceration overview

The Legislative Budget Board (LBB) gave the House Appropriations Committee an overview of TDCJ and TJJD population projections and related information this week, and we thought you might find some of that information interesting. Here are some key items taken from the LBB’s report:

Prison, parole, and felony adult probation populations are expected to remain steady for the next five years, while misdemeanor probation caseloads are projected to continue their decline.
Prosecutors and probation departments continue to expand their pretrial diversion programs but need additional substance abuse and mental health rehabilitation resources for those programs to be successful (especially in rural areas).
The three-year re-arrest rates for offenders released from TDCJ in 2015 remain steady for state jail (63 percent) and prison (45 percent) offenders, but less than half of each of those cohorts who get re-arrested end up back in prison, which means graduated sanctions are being used.
The 2018 felony probation revocation rate was only 16 percent, while the parole revocation rate was even lower at 8 percent, so that seems competitive when compared to many other states.
Later testimony in another hearing revealed that half of those felony probation revocations are for new offenses and another quarter of all revocations are absconders, so the overall felony probation revocation rate for pure technical violations is probably somewhere in the range of about 4 percent.
TJJD’s juvenile correctional and probation populations are predicted to increase slightly due to recent upticks in referrals for violent crimes.
Average costs per day remained relatively steady for TDCJ ($62), parole ($4.40), and probation ($3.75), but increased for TJJD ($480) and juvenile parole ($41) and decreased for juvenile probation ($13.55). (Keep these adult-to-juvenile disparities in mind for the next time someone asks you why the Raise the Age bill is so expensive.)

Budget news

The following members of the House Appropriations Committee were assigned to the Subcommittee on Articles I, IV, and V (General Government, Judiciary, and Public Safety): Oscar Longoria (D-Mission), chair; Rick Miller (R-Sugar Land), vice-chair; Brad Buckley (R-Lampasas), Giovanni Capriglione (R-Southlake), Jarvis D. Johnson (D-Houston), and Gene Wu (D-Houston). That subcommittee is scheduled to consider judicial pay raise and prosecutor longevity pay on Friday, February 15.

New bills to watch

As of yesterday, we are tracking 636 (27 percent) of the 2,325 bills filed to date. (Both of those numbers roughly doubled in the past week, by the way.) Here is another entry highlighting 10 20* interesting bills filed in the past week or so [*Ed. note: The bill-filing pace is picking up so we are expanding this section to keep up]:

HB 1202 by Collier, limiting the prosecution of theft offenses related to rent-to-own agreements
HB 1223 by VanDeaver, increasing enforcement of child custody agreement violations
HB 1240 by Y. Davis, lowering the penalty ranges for habitual theft offenses
HB 1261 by K. Bell, expanding the presumption of child endangerment by drug exposure
HB 1271 by S. Thompson, granting retroactive early parole consideration to violent offenders
HB 1279 by Allen, revising the jury instructions on parole eligibility
HB 1316 by Moody, authorizing prosecutors to provide CCH information in lieu of certain notices
HB 1320 by Moody, requiring larger counties to implement mental health courts
HB 1343 by Leach, criminalizing inmate contact with their adult victims
HB 1381 by Wray, increasing penalties for certain aggravated assaults on school property
HB 1389 by S. Thompson, on sentencing offenders who are the primary caretaker of a child
HB 1399 by R. Smith, collecting DNA samples from certain arrested offenders
HB 1419 by S. Thompson, permitting felons on probation or parole to vote
HB 1452 by S. Thompson, accelerating eligibility times for nondisclosure applications
HB 1498 by Metcalf, expanding the scope of the offense of continuous sexual abuse of a child
SB 535 by Campbell, lowering penalties for licensed carrying of a handgun into certain prohibited places (including churches)
SB 549 by West, regulating the operation of motor-assisted scooters
SB 584 by Watson, expanding the factors establishing lack of consent in sexual assaults
SB 587 by Watson, collecting data on the investigation and prosecution of sexual assaults
SB 693 by West, requiring the reporting of certain information on Class C family violence cases

Next week

Legislative committees will hold their organizational meetings while they await bills to be referred to them for consideration (hearings on bills will likely start the week of February 18); the House Appropriations Committee will start digging into their budget items that impact your business; and bill filings will increase to roughly 100 new proposals per day (don’t worry, we went to our optometrist and ordered new eyeglasses before session for just such an occasion).

As we mentioned last week, if you are serious about proposing new legislation, you need to get your bill idea into a legislator’s hand by next week. The official deadlines don’t kick in for another month, but bills filed close to that deadline usually lack sufficient time to navigate all the hurdles before adjournment at the end of May.

Legislative rotation sign-up

Remember, if you aren’t at the table in Austin, then you are on the menu! In you are interested in participating in the legislative process, please contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time to come to hang out with us.

New DWI Manual on the way

Quotes of the Week

“Who else is going to divert offenders who should re-enter society, and prosecute the people who should be incarcerated to protect the public? This is a question of how fast do our funders really want to reform our justice system?”
Kim Ogg, Harris County DA, explaining her funding request to hire 140 new staff members, for which she is now facing criticism from certain advocacy groups who have supported many of her recent policies.

“The issue is that the salaries have remained stagnant, and the student loan debt has risen so much that it’s just not feasible to go into a job that pays $60,000 when they have over $200,000 in debt.”
Michaela Andruzzi, Carroll County (NH) County Attorney, explaining what’s behind the lack of applicants for her open prosecutor positions.

“The state needs a 12-step program, and the first step is to publicly admit, ‘I am the State of Texas, and I am addicted to local property taxes.’”
David Thompson, a lawyer who has represented both the state and school districts in lawsuits over school funding.

“Colombia is to cocaine as Colorado is to marijuana.”
Randy Ladd, spokesman for the DEA’s Denver field office, describing the impact of Colorado’s state law that allows people to grow large amounts of marijuana in their residences, which has led to the state becoming a prime location for grow houses operated by international drug syndicates.

“I don’t believe I’ve seen anything more broken in the criminal justice system than our current bail bond process. … The current bond system in the state of Texas does not serve public safety. It is actually endangering all of us.”
State Sen. John Whitmire (D-Houston), explaining why he filed SB 628 to reform pretrial release laws.

TDCAA Legislative Update: Week 4

February 1, 2019

Well, we thought this might be a Groundhog Day session—you know, same song, different verse, hit the snooze button and go back to sleep—but recent events indicate that will not be the case. We suggest you take a seat, move all sharp objects away from your easy reach, and read on for details.

Raises for me but not for thee

Apparently, this is the new position of the Texas judiciary this session when it comes to judicial pay raises.

If you recall, we previously told you that the initial House budget includes funding for a 10-percent raise of the judicial benchmark salary (from $140,000 to $154,000), including funding for other officials whose salaries are linked to that benchmark, like appellate judges and elected prosecutors. The estimated cost for that House measure was about $30 million for the biennium. In contrast, the Senate’s initial proposal included no salary increase. But this week in the Senate Finance Committee, Chief Justice Hecht and the Office of Court Administration (OCA) expressed support for an entirely new judicial salary structure that would maintain the current judicial benchmark salary ($140,000) to which many of you are tied while granting district and appellate judges three 10-percent longevity raises for every four years of service over their first 12 years in office.

Just coincidentally, these increases would also cost approximately $30 million for the biennium—the same as the proposed across-the-board increase in the House budget—but only members of the judiciary would benefit from this new plan. As described in the hearing, this proposal would go into effect on September 1, 2019, and grant longer-tenured district judges an immediate raise of up to $42,000 (from $140,000 to $182,000), while pulling up the ladder and leaving nothing for anyone else—including district attorneys (both salary or retirement), county attorneys (through their state supplement), and county court judges (as near as we can tell—we are not experts on their salaries, but ask your local ones to see if they agree). And if we are reading this proposal correctly, the plan tops out just north of $220,000 for a chief justice of the state supreme court with more than twelve years of experience, which comes out to be a $50,000/year bump.

Based on the brief explanation at the hearing, it is clear that one of the factors leading to the creation of this hybrid system is a desire to avoid the “bad optics” of legislators increasing their own retirements by increasing the judicial benchmark salary. As proposed, this new scheme cooked up by our friends at OCA would keep that benchmark figure the same for legislators (and elected district attorneys)—perhaps in perpetuity—while district and appellate court judges could get periodic, automatic raises.

This helps those judges, but it will make it even more difficult in the future for the legislature to raise the benchmark starting district judge salary to which everyone else is tied. OCA director David Slayton testified at this week’s hearing that he had recently shared the new proposal with the various “judiciary groups” and they had all provided positive feedback to him. (We bet they did!) Needless to say, neither you—nor we—were on that distribution list, but you can now consider yourself on notice. As for our initial “hot take” on the judges’ plan, well, let’s just say that it appears to throw 40 years of progress and parity under the Professional Prosecutors Act (PPA) out the window, but we’ll have more on that in the coming weeks as we gain more clarity on this issue.

Meanwhile … what’s next?

First, read the details of this new funding mechanism being proposed by the judiciary by checking out the filed version of SB 387 by Huffman (R-Houston)—however, we will warn you ahead of time that it is a very obtuse bill that may not make much sense unless you are already schooled in the finer points of judicial compensation and retirement. After that, you can watch the archived video of the relevant committee discussions held earlier this week by clicking on http://tlcsenate.granicus.com/MediaPlayer.php?clip_id=13754 and fast-forwarding to the 17:30 mark; the discussion lasts about five minutes. (And if you need further explanations of how we think this will work, call Rob Kepple after reading the bill and watching the video).

Your next step should be to take a deep breath and not do anything rash. Remember, this idea has only recently been made public, and most of your legislators probably don’t even know about it yet, so venting to them won’t do much good at this point. But if you do want to make them aware that this is what the Texas Judicial Council has apparently decided to push this session, as well as any initial concerns you might have about it, please be our guest.

Third, consider coming to Austin to get more involved in the legislature’s deliberations over this issue. For more details on how to do that, see the entry at the end of this update.

And last, note that we will soon be convening a meeting of TDCAA’s Legislative Committee, which now has something new on its plate besides working on a fix for assistant prosecutor longevity pay. Look for more information on that in weeks to come.

Other budget news

Speaking of longevity pay, it wasn’t all bad news in the Senate Finance Committee this week; in fact, there was positive movement on several other fronts:

Senators Joan Huffman (R-Houston), Chuy Hinojosa (D-McAllen), and Royce West (D-Dallas) all expressed support for finding a new, more sustainable source of revenue for assistant prosecutor longevity pay (although no further commitments or details were promised);
As previously reported, the Senate wants to increase DPS lab capacity by hiring 122 new full-time equivalent employees (FTEs) to process rape kits and general backlogs without charging “user fees” from local submitting agencies; and
Sen. Huffman (R-Houston) let on that she is working on a bill that would repeal and replace the Driver Responsibility Program (DRP), which has been a thorn in everyone’s side for more than 15 years now.

Meanwhile, the House Appropriations Committee has started its general review of its own initial budget proposals. The various subject matter of those hearings in the House will lag a week or two behind those of its Senate counterpart, so we should get a better grasp on the benchmark salary issue and other items when they come up in the House Appropriations Committee in the weeks to come.

New bills to watch

As of two days ago, we are tracking 330 (28%) of the 1,172 bills filed to date. Here is another entry highlighting 10 interesting bills (out of several hundred) filed in the past week or so:

HB 1076 by White, expanding non-disclosure rights to offenders convicted of state jail felonies
HB 1086 by Guillen, increasing the punishment range for intox assault and intox manslaughter
HB 1088 by Geren, enhancing certain habitual misdemeanor offenses into state jail felonies
HB 1127 by Stucky, authorizing judges to carry in 30.06 gun-free zones
HB 1139 by S. Thompson, creating a framework for determining intellectual disability in capital cases
SB 472 by Hughes, creating exceptions to criminal trespass for certain gun-holders
SB 485 by Hughes, limiting government access to and maintenance of biometric identifiers
SB 494 by Huffman, revising certain open meetings/records laws during natural disasters
SB 495 by Hughes, creating victim-offender mediation programs for certain criminal matters
SB 523 by Hinojosa, limiting the denial of occupational licenses to certain offenders

Links

So much news comes at us so fast during the session that it’s hard for us to summarize everything for you, but we’re going to try out a new section for these updates that will aggregate some news you might useful. Click on any stories below for more details, and let us know if you like this new feature! Here goes:

And to receive similar items in a more timely fashion, be sure to follow us on Twitter here and here.

Next week

Governor Abbott is scheduled to give his State of the State address on Tuesday morning, a newsworthy event that may get snowed under by the attention given to the President’s (delayed) State of the Union speech later that evening. However, the former address is likely to have a much more direct impact on your daily work than the latter because the State of the State is traditionally when the governor announces his “emergency items,” a designation that allows the legislature to dispense with constitutional limitations on debate and start moving bills on those chosen topics. The conventional wisdom in Austin is that school finance, property taxes, and election fraud will be among the topics placed in this legislative express lane, but anything could be in play.

The day after the governor’s address, Chief Justice Hecht will deliver his State of the Judiciary address to the combined chambers of the legislature. We’ll be sure to let you know what he suggests as his priority items at that time (besides pay raises, of course). Elsewhere, committees will start to post notice for their organizational meetings (which does not imply action, but merely some getting-to-know-each-other gatherings that accord with their own open meetings rules), and bill filings will continue to increase.

On that latter note, let us remind you: Even though the official bill-filing deadline for most bills in Friday, March 8 (the 60^th day of the session), bills filed that late rarely pass. If you really want to pass something, a more realistic deadline for getting your bill idea in a legislator’s hand in time to get an officially-drafted version back from the Legislative Council is somewhere around Valentine’s Day. In other words, get a legislator to agree to file your bill in the next two weeks or don’t bother.

Legislative rotation sign-up

To date, we’ve only had about a dozen elected prosecutors indicate an interest in coming to Austin this session, but we’re betting that might change in light of some of the information detailed above. If you find yourself suddenly more interested in the legislative process, please contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time to come to Austin.

Quotes of the Week

“I think we all agree that we don’t want these hard-working people to suffer a pay cut.”
State Sen. Joan Huffman (R-Houston), during the Senate Finance Committee’s discussion of where to find a new, permanent source of funding for assistant prosecutor longevity pay.

“I think it’s immoral to require a district attorney to be a fee collector to keep my doors open. The fact that I have to collect a fee from somebody I’m prosecuting and putting on probation, I shouldn’t have to be put in that spot. My job should be public safety and applying facts to law.”
Steve Kunzweiler, Tulsa County (OK) District Attorney, complaining about that state’s partial funding of local prosecutors’ offices through a direct fee-for-services collection system. [See, someone always has it worse than you!]

“I’m friends with both. … We all wish we weren’t having this discussion.”
State Sen. Larry Taylor (R-Friendswood), declining to comment on the recent kerfuffle involving Lt. Gov. Dan Patrick (R-Houston) and State Sen. Kel Seliger (R-Amarillo).

“The fact that some fringe groups can’t count to five for a nine-member committee is really not my problem.”
Speaker Dennis Bonnen (R-Angleton), in a barbed retort on his Facebook page responding to criticism from (unnamed) gun rights groups that have criticized his appointment of Democrats to chair the two House committees that oversee gun-related legislation; both committees have a one-vote majority of Republican members.

“Quite frankly, the lobbyists are damn lucky to have a chance to invest in a great business and they’re the ones gaining the advantage, not me.”
Speaker Bonnen, in response to questions about registered lobbyists who are investors in the Pearland bank he runs back home.

“The way that Texas statute is set up, the attorney general’s office does not have original jurisdiction on these criminal matters such as the issues facing the church. We have to rely on local district attorneys from the 254 counties in our state to either refer the case to us or ask for our assistance.”
Marc Rylander, spokesman for the Office of the Attorney General, explaining why that office is not following certain other states’ attorneys general in investigating past complaints of sexual abuse made against Catholic clergy.

“I’m a mad DA, which is what victims need. We don’t need a DA who’s looking for forgiveness.”
Montgomery County DA Brett Ligon, explaining his mindset in pursuing allegations of sexual abuse at a church at which he used to be a parishioner.

“[It’s] the crystal meth of newsrooms.”
David Von Drehle, Washington Post columnist, in an article about the negative impact that Twitter is having on the journalism profession.

“The number one reason kids die is neglect. It’s because the parents are impaired and not providing adequate supervision.”
Melinda Gushwa of the Simmons College (MA) School of Social Work, whose job involves analyzing reports of child fatalities, as quoted in an article about drug-addicted mothers.

“I realized that I was exhausted from knowing people only because of the terrible things that befall them. That is the nature of my job. … I am incredibly proud to have dedicated a career to seeking justice for others. But life is too short to spend it all in the darkness. I am excited about stepping into the light and enjoying the beauty of life with my family and friends.”
Patrick Wilson, Ellis County & District Attorney (and TDCAA board member), in his public statement announcing he will not run for re-election in 2020.

TDCAA Legislative Update: Week 3

January 25, 2019

Legislators are already calling each other out in public and retaliating against each other and it’s only their third week in Austin. So much for this being the “Kumbaya Session”!

Senate budget writers go “all in” on human trafficking

This week the Senate Finance Committee began hearing testimony on the Senate’s version of the General Appropriations Act. Once again, hundreds of millions of state dollars will be spent on border security, which should come as no surprise if you follow public polls that show that issue to be a high priority for many Texas voters. However, Chairwoman Jane Nelson (R-Flower Mound) also highlighted a significant new proposed state investment in one of the rare bi-partisan policy areas lauded by members of both parties: the fight against human trafficking.

The Senate’s proposed budget includes $89 million for human trafficking prevention and enforcement over the biennium, which is a $64 million dollar (256%) increase over the current budget. The money is spread among seven state agencies: The Office of the Governor, Department of Family and Protective Service, Department of State Health Services, Alcoholic Beverage Commission, Department of Public Safety, Department of Licensing and Regulation, and the Office of the Attorney General.

In fact, the committee chairwoman announced that they had granted every agency request for new funding for human trafficking-related initiatives, including funding for an additional 13 employees (five lawyers and eight support personnel) for the AG’s human trafficking section, as well as the creation of a new Human Trafficking Prevention Coordinating Council to be chaired by the AG and composed of representatives from the seven agencies getting these appropriations. The council’s job will be to develop strategic five-year plans for the prevention of human trafficking and to report back to the legislature with the results of these expenditures—because make no mistake, the legislature expects those various state agencies to show some good results when they appropriate this much money on a specific issue.

That can also result in state agencies feeling that they must take greater ownership and control over those issues in order to show those results. We’ll have more information for you in the coming weeks on what that might look like in the area of human trafficking investigations and prosecutions, but for now, just note that if you were wondering whether policymaker’s attention on this issue was wavering over the years, we think the senate’s proposed budget provides your answer; now go make good use of that information.

House committee assignments

The speaker has released his committee assignments, and—as to be expected in the wake of the first change in House leadership in a decade—there could be some shake-ups in how that chamber conducts its business this session.

We spend most of our time in the House working with the following committees, so read on to see who will be making the important decisions affecting your business this session:

Appropriations: John Zerwas (R-Fulshear), chair; Oscar Longoria (D-Mission), vice-chair; Cecil Bell (R-Magnolia), Greg Bonnen (R-Friendswood), Brad Buckley (R-Killeen), Giovanni Capriglione (R-Southlake), Philip Cortez (D-San Antonio), Sarah Davis (R-Houston), Mary Gonzalez (D-Clint), Cole Hefner (R-Mt. Pleasant), Donna Howard (D-Austin), Jarvis Johnson (D-Houston), Rick Miller (R-Sugar Land), Ina Minjarez (D-San Antonio), Sergio Munoz (D-Mission), Toni Rose (D-Dallas), Matt Schaefer (R-Tyler), J.D. Sheffield (R-Gatesville), Carl Sherman (D-DeSoto), Reggie Smith (R-Sherman), Lynn Stucky (R-Sanger), Steve Toth (R-Conroe), John Turner (D-Dallas), Gary VanDeaver (R-New Boston), Armando Walle (D-Houston), Terry Wilson (R- ), Gene Wu (D-Houston) (Note: the smaller subcommittee for our relevant budget articles will be announced soon).

Calendars (decides what bills get debated on the House floor):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), John Wray (R-Waxahachie).

Corrections: James White (R-Hillister), chair; Alma Allen (D-Houston), vice-chair; Ernest Bailes (R-Bailes), Rhetta Andrews Bowers (D-Rowlett), Jay Dean (R-Longview), Victoria Neave (D-Dallas), Carl Sherman (D-DeSoto), Phil Stephenson (R-Wharton).

Criminal Jurisprudence: Nicole Collier (D-Fort Worth), chair; Bill Zedler (R-Arlington), vice-chair; Keith Bell (R-Forney), Jessica Gonzalez (D-Dallas), Todd Hunter (R-Corpus Christi), Phil King (R-Weatherford), Joe Moody (D-El Paso), Andrew Murr (R-Junction), Leo Pacheco (D-San Antonio).

Homeland Security & Public Safety: Poncho Nevarez (D-Eagle Pass), chair; Dennis Paul (R-Webster), vice-chair; DeWayne Burns (R-Cleburne), Gina Calanni (D-Katy), Travis Clardy (R-Nacogdoches), Vikki Goodwin (D-Austin), Celia Israel (D-Austin), Mike Lang (R-Granbury), Tony Tinderholt (R-Arlington).

Judiciary & Civil Jurisprudence: Jeff Leach (R-Plano), chair; Jessica Farrar (D-Houston), vice-chair; Yvonne Davis (D-Dallas), Julie Johnson (D-Carrollton), Matt Krause (R-Fort Worth), Morgan Meyer (R-Dallas), Victoria Neave (D-Dallas), Reggie Smith (R-Sherman), James White (R-Hillister).

Juvenile Justice & Family Issues: Harold Dutton (D-Houston), chair; Andrew Murr (R-Junction), vice-chair; Rhetta Andrews Bowers (D-Rowlett), Gina Calanni (D-Katy), John Cyrier (R-Lockhart), Jay Dean (R-Longview), Hugh Shine (R-Temple), James Talarico (D-Round Rock), plus one vacancy TBD.

For a full PDF list of all assignments by committee, click here.
To see where your favorite rep landed, click here.

Committee assignment observations

These House committee assignments have come a full two weeks earlier in the session than last time, which most outside observers take to be an indication of the new speaker’s eagerness to get to work on his primary goals: fixing school finance and property taxes. Earlier assignments theoretically also allow for more bills to be heard and debated in those committees, which can start that work in a few weeks. That’s good news if you’re trying to pass something, but less-good news if you’re trying to stop something.

As for the actual assignments, those who recall the line-ups from last session will note that four of the seven House committees listed above have new chairpersons, so changes to the process are coming—but at this point there is no telling what those changes will look like. For instance, Joe Moody (D-El Paso), the former chairman of the Criminal Jurisprudence Committee, was promoted to Speaker Pro Tem, a minister-without-portfolio leadership position most recently held by current Speaker Bonnen. He remains on his old committee, but he will no longer serve as chairman, as that job was assigned to Rep. Nicole Collier (D-Fort Worth), who (for trivia buffs out there) will be the first woman and first African-American to ever hold that position. She is a lawyer—in fact, six of the nine members of that committee are now lawyers, by far the highest percentage in recent history—but only one of them (Moody) regularly practices criminal law.

We point this out only to serve as a good example of the primary effect of new committee assignments: namely, the need to educate members about your issues all over again. Even if you have been working on your pet issue at the Capitol for multiple sessions, new committee assignments mean starting over again at the beginning and building up from there, never assuming that the new committee members share your subject matter knowledge or your mastery of the legislative history on that issue. In other words, it means work. Prepare accordingly.

New bills to watch

Here is another entry highlighting some of the recent filings of interest:

HB 949 by Minjarez, increasing aggravated assault w/ a deadly weapon resulting in quadriplegia to a first-degree felony
HB 979 by A. Hernandez, authorizing the collection of DNA samples from certain defendants
HB 1020 by Moody, requiring law enforcement agencies to adopt model cite-and-release policies
HB 1029 by Moody, removing certain discovery exemptions for CAC forensic videos
HB 1030 by Moody, requiring unanimity in death penalty special issues
SB 387 by Huffman, revising various statutes relating to judicial compensation and retirement
SB 400 by West, expanding Texas’ Compassionate Use Act to more conditions and more substances
SB 405 by Birdwell, criminalizing a false report to a jailer or correctional officer
SB 418 by Miles, prohibiting the death penalty for persons with an intellectual disability
SB 433 by Hinojosa, recategorizing certain peace officer disciplinary records as public records

Next week

The Senate Finance Committee will review the budget provisions that include assistant prosecutor longevity pay; House committees will hire staff and (hopefully) release the weekly committee schedules so we know when we have to be where each week; and everyone will be speculating about what the governor will proclaim to be emergency issues so that the legislature can start tackling them ahead of the usual 60-day threshold for floor debates.

Legislative rotation sign-up

Contact Shannon for details on how to get involved in the legislative process—even if it is only to get an up-close-and-personal view of the sausage-making for the first time. We still have several slots available for prosecutors to come to Austin and help craft the laws that you must enforce, so check your calendar and find a good time to come to Austin.

Quotes of the Month

“I don’t care what the narrative is out in the blogosphere after these are announced.”
New House Speaker Dennis Bonnen (R-Angleton), prior to the new House committee assignments being read on the House floor earlier this week.

“There’s a stronger control element with him than there was with Straus, and that’s not a criticism. He wants a tight operation and a strong operation.”

Bill Miller, Austin lobbyist and political consultant, comparing the new speaker’s leadership style to that of his predecessor.

“This is a warning to other Republicans, that if you stray from the lieutenant governor’s agenda, there will be a price to pay. And I always knew that, but the other Republicans do now, too.”
State Sen. Kel Seliger (R-Amarillo), on why he thinks he was given less desirable committee assignments this session.

“I could count on one hand how many times people said they have firearms. They could say ‘no’ and feel secure in the fact no one is coming to their house to look.”
—
Jerry Varney, Dallas County Asst. Criminal DA, on why that county’s practice of asking offenders banned from possessing firearms whether they have any that should be relinquished has failed to yield many positive results.

TDCAA Legislative Update: Week 2

January 18, 2019

The governor and lieutenant governor were sworn in on Tuesday, and the related pre-parties and post-parties and inaugural balls (including a performance by George Strait) ensured that no one at the capitol was in much of a condition to do any real work this week. But that doesn’t mean we don’t have any news for you! Read on for the details.

Proposed budgets released

The House and Senate both released their initial proposed biennial budgets this week. These baseline budgets are a way for each chamber to signal its priorities heading into the session and they immediately become the starting point for all budget negotiations for the rest of the session.

For the general public, the big news is the various proposals for increased public education funding and property tax relief that you can read about in your local fish wrap. But there are also several items that may be of particular interest to you, which we will break down further as proposed changes shared by both bills, then those that are found only in one version:

Both House and Senate (but amounts may vary): Increased funding for the Border Prosecution Unit, judicial branch CLE education grants, Victim Assistance Grants (through OAG), CPS functions, local mental health outpatient treatment, and indigent defense; less operational funding for TDCJ and TJJD due to declining bed populations.

House only: Increased funding for a 10-percent bump in the judicial benchmark salary (from $140,000 to $154,000), construction projects at San Antonio, Kerrville, and Rusk State Hospitals, prison health care, and as-yet-unnamed school safety programs; still leaves about $3 billion unspent under constitutional spending limits.

Senate only: Increased funding for DPS and OAG to investigate and prosecute human trafficking and anti-gang activities, and for DPS to hire more crime lab analysts; still leaves roughly $7 billion unspent.

Again, these are just some examples of where the budget discussions will begin; nothing is guaranteed except (sometimes dramatic!) changes. The key thing to remember at this stage is that a spending item must be approved by at least one of the two chambers prior to the behind-closed-doors negotiations over the final budget compromise if it is to make it into that final version.

Longevity pay update

One of the major issues for prosecutors this session will be finding a healthier funding vehicle for the assistant prosecutor longevity pay program. For those following the issue, Sen. Juan “Chuy” Hinojosa (D-McAllen) has filed SB 353 as a placeholder or “shell” bill for any statutory changes that may need to be made once a solution is identified and agreed upon. (In other words, the language currently in the bill will be changed as it moves forward, so don’t worry about the details right now.) We will continue to provide you updates on this very important topic as they develop. Meanwhile, if you have questions about any of this, contact Rob.

Senate committee assignments

The lite guv released his committee assignments. To see where your favorite senator landed, click here.

We spend most of our time in the Senate dealing with bills in these committees, so read these lists to discover who your new best friends will be for the next five months:

Senate Finance: Jane Nelson (R-Flower Mound), chair; Chuy Hinojosa (D-McAllen), vice-chair; Paul Bettencourt (R-Houston), Brian Birdwell (R-Granbury), Donna Campbell (R-New Braunfels), Pete Flores (R-Pleasanton), Kelly Hancock (R-North Richland Hills), Joan Huffman (R-Houston), Lois Kolkhorst (R-Brenham), Robert Nichols (R-Jacksonville), Charles Perry (R-Lubbock), Larry Taylor (R-Friendswood), Kirk Watson (D-Austin), Royce West (D-Dallas), John Whitmire (D-Houston).

Senate Criminal Justice: John Whitmire (D-Houston), chair; Joan Huffman (R-Houston), vice-chair; Dawn Buckingham (R-Lakeway), Pete Flores (R-Pleasanton), Bryan Hughes (R-Mineola), Borris Miles (D-Houston), Charles Perry (R-Lubbock).

Senate State Affairs: Joan Huffman (R-Houston), chair; Bryan Hughes (R-Mineola), vice-chair; Brian Birdwell (R- Granbury), Brandon Creighton (R-Conroe), Pat Fallon (R-Prosper), Bob Hall (R-Canton), Eddie Lucio, Jr. (D-Brownsville), Jane Nelson (R-Flower Mound), Judith Zaffirini (D-Laredo).

New bills to watch

Here is another entry highlighting some of the recent filings of interest:

HB 745 by Rose, amending the duties and powers of peace officers
HB 746 by Rose, authorizing needle exchange programs in certain urban counties
HB 753 by Wu, reducing POM < 0.35 oz (aka 10g) to a Class C misdemeanor
HB 756 by Wu, allowing a defendant to waive jury punishment over the State’s objection
HB 758 by Wu, expanding public access to juvenile court proceedings
HB 887 by Thompson, limiting an officer’s right to self-defense in officer-involved shootings
HB 903 by Lozano, revising elements of the offense of smuggling of persons
SB 332 by West, relating to the public release of law enforcement video footage
SB 341 by Huffman, prohibiting the appointment of non-prosecutors as attorneys pro tem
SB 342 by Huffman, revising the elements of unlawful disclosure of intimate visual material

Roundtable discussion on marijuana

There are numerous proposals this session dealing with the legal status of marijuana. This is not just a state issue, but a national one as well—and that national debate seems to be getting more heated as it wades into discussions of prohibition, public health, racially-disparate impacts, taxation, and corporate greed, among other topics. If you want to read a good debate between experts on various sides of this issue—and yes, there are more than just two sides—check out this recent roundtable discussion hosted by the non-profit criminal justice news outlet the Marshall Project: https://www.themarshallproject.org/2019/01/14/how-dangerous-is-marijuana-really.

Next week

Senate committees are out, so now everyone is sitting around waiting for House committee assignments to be released. Until that happens, don’t look for much action on anything in the lower chamber. (But remember, that is a feature of the system at this stage of session, not a bug.) Meanwhile, the Senate Finance Committee will start holding hearings on their budget this Tuesday, and awaaaaaaaaaaaay they go!

Legislative rotation sign-up

Please contact Shannon for details on how to get involved in the legislative process—even if it is only to get an up-close-and-personal view of the sausage-making for the first time. We still have several slots available on a first-come, first-served basis, so check your calendar and find a good time to come to Austin. Remember, the squeaky wheel gets the grease at the Capitol, so don’t be shy!

New CCP Chapters 18A and 18B

As of January 1, 2019, former Code of Criminal Procedure articles 18.20 and 18.21 have been recodified as new CCP Chapters 18A (Detection, Interception, and Use of Wire, Oral, and Electronic Communications) and 18B (Installation and Use of Tracking Equipment; Access to Communications). These non-substantive reorganizations were passed via HB 2931 (2017) and are not intended to make any substantive changes, but it is still important to make sure all your paperwork and practices comply with these newly-organized laws. Visit this page of our website for a PDF version of the new CCP chapters, along with a source and disposition chart for each chapter (which is also included as Appendix A of the new 2018 version of our Warrants Manual).

Quotes of the Month

“With the teamwork we have between the Senate and the House, this is going to be the greatest session ever in the history of Texas.”

Lt. Governor Dan Patrick (R-Houston), during his inaugural address after being sworn in this week.

“The Austin lobby, by and large, gives for influence and access, it doesn’t give due to ideological affinities. When it was clear that Dennis Bonnen would become speaker, Dennis Bonnen became one of the three most powerful politicians in Texas and therefore someone that every lobbyist — from the left to the right, from clean energy to oil and coal, from beer distributors to craft breweries — everyone wants to be on his good side.”

Mark Jones, a Rice University political scientist, on the news that the new House speaker collected almost $4 million in campaign donations in the four-week period after he announced he had secured the votes necessary to win the speaker’s race.

“The new methods [of making methamphetamine] have really altered the potency, so the meth we’re looking at today is much more potent than it was 10 years ago.”

Jane Maxwell, research professor at the University of Texas at Austin’s social work school, in an article explaining why meth is making a comeback.

“The idea that it’s going to be in this balm or that balm, I don’t know what the scientific basis for that is. … The people who are talking the loudest about CBD don’t have a scientific background. They are marketers and advertisers, and they have done a hell of a job.”
Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), on the recent proliferation of unregulated low-dose CBD-based health products.

“It saves lives. It deters people at all BAC levels from drinking. And it separates drinking from driving.”

Bella Dinh-Zarr, a member of the National Traffic Safety Board, on the benefits of lowering per se blood alcohol content (BAC) standards from 0.08 to 0.05, as Utah recently did.

“Maybe I can have more success at the legislative level to get somebody to understand that there are some real true problems [with the death penalty].”
Former Court of Criminal Appeals Judge Elsa Alcala, who recently accepted a job as public policy director for the Texas Defender Service.