Just like Hogwarts, the Sorting Ceremony happened in the Texas House this week with the Sorting Hat coming out in the form of committee assignments. The Speaker determined which committee was the best fit for each member. Instead of being sorted into the four houses—Gryffindor, Ravenclaw, Slytherin and Hufflepuff—members were sorted into committees that range from administration to international affairs. Let the Quidditch Games begin!

House Committee Assignments

These are the committees we will watch closely this session as their work most affects prosecutors. The chairs are Republicans, and the vice-chairs are Democrats in accordance with the new House Rules.

Appropriations (14 Republicans / 13 Democrats)
Bonnen, chair; M. González, vice-chair; Collier, Gervin-Hawkins, Goodwin, Harrison, Howard, Lozano, A. Martinez, Oliverson, Rose, Slawson, Wu, Barry, DeAyala, Fairly, Garcia Hernandez, V. Jones, Kitzman, J. Lopez, Lujan, Manuel, Orr, Simmons, Tepper, Villalobos, Walle.

Calendars (6 Republicans / 5 Democrats)
Hunter, chair; Rose, vice-chair; Canales, Gerdes, Harris, Hernandez, A. Johnson, Leach, J. Lopez, Romero, Tepper.

Corrections (6 Republicans / 3 Democrats)
Harless, chair; V. Jones, vice-chair; Lowe, Wharton, Allen, Harrison, Lozano, Meza, Schatzline.

Criminal Jurisprudence (6 Republicans / 5 Democrats)
Smithee, chair; Wu, vice-chair; Little, Louderback, Money, Bowers, Cook, J. Jones, Moody, Rodríguez Ramos, Virdell.

Subcommittee on Juvenile Justice (3 Republicans / 2 Democrats)
Cook, chair; J. Jones, vice-chair; Louderback, Virdell, Wu.

Homeland Security, Public Safety & Veterans’ Affairs (8 Republicans / 3 Democrats)
Hefner, chair; R. Lopez, vice-chair; Dorazio, Hickland, Pierson, Canales, Cortez, Holt, Isaac, Louderback, McLaughlin.

Intergovernmental Affairs Subcommittee on County and Regional Government (3 Republicans / 2 Democrats)
Spiller, chair; Cole, vice-chair;Lowe, Tepper, Zwiener.

Judiciary & Civil Jurisprudence (6 Republicans / 5 Democrats)
Leach, chair; A. Johnson, vice-chair;Dutton, J. González, Moody, Schofield, Dyson, Flores, Hayes, LaHood, Landgraf.

State Affairs (9 Republicans / 6 Democrats)
K. King, chair; Hernandez, vice-chair; Darby, Y. Davis, Geren, Guillen, Raymond, Smithee, Anchía, Hull, McQueeney, Metcalf, Phelan, S. Thompson, Turner.

For all the committee assignments, visit the front page of the House website, which has PDF files listing assignments by committee and by member.

Bail reform

Thanks to Governor Greg Abbott making bail reform an emergency item, Senator Joan Huffman (R-Houston) laid out her package of bail reform bills in the Senate Criminal Justice Committee this week. Huffman has championed bail reform in the last three sessions and continues her mission to keep violent offenders in jail without bond, even though her bills suffer their demise in the House every session. The Governor and Lt. Governor continue to support her efforts, with Lt. Governor Dan Patrick attending the committee hearing in person this time around, which is out of the ordinary. Several crime victims’ family members testified in favor of the bills and gave their horror stories with the current bail system. Harris County was labeled as “the worst offender” when it came to giving violent offenders bail. Also appearing in person to testify in support of some or all of the bills were Montgomery County DA Brett Ligon, Comal County CDA Jennifer Tharpe, and representatives from the Dallas County CDA and Tarrant County CDA Offices.

Four of the five bills (SB 9, SB 40, SJR 1, and SJR 5) passed out of Committee with a 6–0 vote. SB 9 is the clean-up bill for the original bail reform legislation passed by Sen. Huffman in 2021; among other things, it mandates written findings for “no probable cause” determinations by magistrates and shifts bond-setting authority from appointed magistrates to elected judges for certain types of charges. SB 40 prohibits political subdivisions from using public funds to pay nonprofits that help defendants pay bail costs. SJR 1—now known as “Jocelyn’s Law” in memory of Jocelyn Nungaray, whose mother testified at the hearing—denies bail for illegal aliens accused of felony offenses. Lastly SJR 5 gives judges the discretion to deny bail to certain violent or sex crimes offenders. Both of the JRs would amend the constitution, so they require approval of two-thirds of each chamber, which has been the sticking point in the House for previous versions of SJR 5. (The fifth bill, SB 1047, was left pending in committee because most of its technical changes were included in a new version of SB 9 as approved by the committee.)

The Lt. Governor and Senator Huffman also joined the victims’ family members who testified in favor of the bills at a press conference. Lt. Governor Patrick told the media that he had taken the victims’ family members to meet with Speaker Burrows and he believed the Speaker would be able to convince 12 House Democrats to vote in favor of the bills (which would be the minimum needed to pass the JRs if all 88 Republicans voted for those measures). Senator Huffman and Lt. Governor Patrick also promised to play hardball this year to get the bail reform bills to the governor’s desk. The bills now go to the Senate floor next week (likely Wednesday), and if the Senate approves them all (as is expected), then it will be “batter up” time for the House.

Bill filing deadline

In addition to making the legislature wait 60 days before voting on any non-emergency legislation (such as bail reform this session), the state constitution also establishes the 60th day of a session as the deadline for filing general legislation. That puts this session’s Deadline Day on Friday, March 14, four weeks from today. But in reality, the effective deadline is even earlier than that because the Texas Legislative Council (which drafts bills for legislators) already has a huge backlog of work to complete before then. So, if you’ve been toying with a bill idea but haven’t pulled the trigger yet, you are now on notice—get it into a legislator’s hands next week or it may be too late. Fortunately, the naming of House committee members now gives you the final piece of information necessary to identify good (or not-so-good) potential authors for those ideas in the lower chamber. If you need help with any of that, feel free to contact Hector.

Bill filings to date

Currently, we are tracking more than 900 bills and resolutions that could impact your work out of the 4,100+ bills to have been filed so far. We regret to inform you that both of those numbers may double before the bill filing deadline closes this session. #shudder

Frankly, the idea that we might have to track almost 2,000 bills and resolutions for you this session is mind-boggling. We’ve never had to manage anything close to that volume of legislation in past sessions, but anything is possible with the right amount of coffee! The good news is that, historically speaking, half of all filed bills never get a committee hearing and are dead upon arrival. The bad news is that no one knows which ones those are just yet. Committee hearings will start in earnest in a few weeks and then the wheat will start to be separated from the chaff, but until then, everything is in play. (And if that scares you, that just proves that you have been reading some of our bill tracks online, so good for you.)

Next week

Monday is a holiday and TDCAA’s office will be closed. (Happy Presidents’ Day to all who celebrate). The House and Senate committee schedules will (let’s hope) come out, giving us some insight into where we will spend the next 12 or so weeks. It will be the last calm week before session work starts in earnest.

Quotes of the week

“You’re going to have some members of the Texas House [and] the Texas Senate who have no intention of being in that chamber in 2027. Do they care about policy? Do they really care about passing bills and making sure their 20,000 constituents are being served? They already have their nameplate on a different office, right? They’re just waiting for the primary.”

           —Former House Speaker Dade Phelan (R-Beaumont), predicting an increase in performative displays at the state capitol as members of both parties position themselves for runs for higher office in 2026, when one U.S. Senate seat and all statewide offices are on the ballot.

“Today’s committee assignments by Speaker Burrows demonstrate a commitment to bipartisanship and upholding the institutional norms of the Texas House of Representatives…These appointments position Democrats to effectively advocate for communities across our state”

—Representative Gene Wu (D-Houston), Texas House Democratic Leader, discussing the committee assignments          

“As far as I’m concerned, if these bills do not pass the House, I see no reason for us not to go to a special session…and another special session, and another special session.”

—Lt. Governor Patrick responding to questions about playing hard ball with the bail reform bills.

“You think that members of the Texas Legislature are afraid they’ll be indicted if they push back against the DAs?”
“I think there is a fear, and there is a lobby effort. … These DAs have so much power.”

           —Exchange between Tucker Carlson and Attorney General Ken Paxton in a recent YouTube interview. We don’t have the space to do justice to the entirety of General Paxton’s views on local Texas prosecutors as expressed in his interview, but you can click that link, rewind to the beginning, and watch the first 12 minutes to get the gist of it.

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Setting the tone for the legislative session, Governor Greg Abbott declared his emergency items. It is the Governor’s show for the first 60 days, as lawmakers can pass only bills pertaining to his emergency items. It is up to the legislature to produce results that will accomplish his goals. (Or else … what? Well, that used to be an open-ended question, but last year’s GOP primary elections finally put some meat on that bone, didn’t it? Republican legislators are now on notice.)

Governor’s Emergency Items

In his “State of the State” speech this past Sunday, Governor Abbott designated seven topics as legislative emergencies. They are school vouchers, property tax relief, water infrastructure, teacher pay raises, workforce training, creation of a state cyber command center, and bail reform. For specific details about each, you can read his prepared remarks here; the text of his remarks includes hyperlinks to more details about each of those topics. We will do a deeper dive into bail reform below, but first we will address other goals Governor Abbott announced that could impact prosecutors despite not being “emergency items”—his wish list, if you will.

The governor called on the legislature to protect private property rights and pass tougher laws to immediately remove and prosecute squatters. (What that looks like in bill form is not clear just yet.) In regard to human trafficking—always a popular topic inside the capitol dome—Abbott advocated for eliminating parole for child traffickers (without further detail). The governor also reiterated his directive to Texas state agencies to assist the Trump Administration with arresting, jailing, and deporting illegal immigrants, and he called on cities and counties across the state to fully cooperate with these efforts. Abbott declared the Venezuelan gang known as Tren de Aragua as a foreign terrorist organization and directed the Department of Public Safety to dispatch strike teams to round up the gang members. (It is unclear if those cases will be handled in state  or federal courts due to this designation, but don’t be surprised if you see those cases hit your desk.) Abbott also invoked the name of 12-year-old Jocelyn Nungaray from Houston, who was (allegedly) raped and murdered by two Tren de Aragua gang members, and he called for “legislation imposing the death penalty on anyone convicted of murdering a child like Jocelyn.” (It is unclear what exactly he meant by that phrase, but we’ll all find out soon enough.)

Finally, the Governor announced his support for “Senator Hughes’s election integrity bill to restore power to the Attorney General to prosecute election violations.” This was likely a reference to Senate Bill 846 by Hughes (R-Mineola), which gives the AG jurisdiction to prosecute election crimes if local prosecutors do not act on a law enforcement referral within six months. That same idea was filed last time around as SB 1195, which passed the Senate on a party-line vote too late in the session to get through the House. (To see who showed up in Austin to support or oppose that legislation in 2023, read this committee witness list.) Of course, we all know such a bill violates our state’s separation of powers doctrine, as ably explained in the Court of Criminal Appeals’ various Stephens opinions, but … well, who’s to say how that might go next time the Court gets such a case? (Actually, we all know how some people think that will go—read to the end of this email for that quote.)

The wish list of subjects that did not make the governor’s emergency item declaration are similar to an AG opinion: persuasive, yes, but not binding on the legislature. How that co-equal branch of government will process them remains to be seen, but the key thing to note is that these wish list topics are not entitled to the same head start given to the governor’s emergency items.

Bail Reform

Governor Abbott did give that head start to bail reform. As you know, the Texas Constitution currently states that “all prisoners shall be bailable, unless for capital offenses when the proof is evident.” There are limited exceptions to that rule, but the narrative in many circles is that those exceptions are woefully inadequate to stop the hundreds of murders by such offenders that have occurred statewide. As a result, the governor’s emergency proclamation (which can be found in PDF form here) permits the legislature to immediately consider and vote upon “legislation reforming the bail system in Texas to end revolving door bail practices that put dangerous criminals back on the streets.”

So, what does that mean for this session? Well, we got a potential glimpse of the answer the day after the governor’s speech when Senator Joan Huffman (R-Houston) filed four different bills to help accomplish the governor’s bail reform goals. Her press release announcing their filing can be viewed on X/Twitter, but we can give you a brief summary here <but note some numbering changes added at the end of this segment>:

• Senate Bill 9 will likely be this session’s omnibus bail reform legislation (as indicated by the lieutenant governor assigning it one of his prestigious single digit bill numbers). It requires elected judges (as opposed to their appointed magistrate helpers) to set bail on certain high-risk offenders, expands the list of crimes for which release on personal bond is unavailable, provides a mechanism for prosecutors to challenge insufficient bail, and more.
• Senate Bill 1047 enhances the Public Safety Report System created by prior bail reform legislation by providing new procedures for defendants with family violence or protective order issues and making other improvements.
• Senate Bill 1048 bans the use of taxpayer money by a political subdivision to fund charitable bail organizations.
• Senate Joint Resolution 17 proposes an amendment to the Texas Constitution to allow judges to deny bail to the most violent offenders who pose a threat to public safety, regardless of the defendant’s financial resources. This constitutional change allows judges to make decisions based on risk, not resources. Senator Huffman passed similar measures through the Senate in previous sessions, but they have never passed the House due to the requirement that joint resolutions receive approval from two-thirds of each chamber, giving House Democrats a veto over the legislation when they remain unified. This could be *the* bail reform battleground this session.
• Senate Joint Resolution 49 would mandate the denial of bail for an illegal immigrant accused of a felony. Intended to assist the Feds in implementing the recently enacted Laken Riley Act, which President Donald Trump signed into law last week, this is likely to be the most controversial of all the bail legislation.

Soon after being filed, the Senate Criminal Justice Committee posted notice for its first hearing of the session to consider these bills. The hearing will be held on Wednesday, February 12, at 8:00 a.m. in Capitol Extension Room E1.016.

<UPDATE: Right before this went to press, Sen. Huffman refiled several of these measures with new numbering: SJR 49 will now be new SJR 1 and be called the “Laken Riley Act,” SJR 17 will go forward as SJR 5, and SB 1048 will be SB 40. Those refiled bills have now replaced the original bills posted for Wednesday’s hearing; see that link above for more details.>

We have more background information about these bills and this hearing than we can share here, so if you want to get publicly involved at the committee hearing in a constructive way, you might want to reach out to us first. However, one thing you can do from the comfort of your office is provide us with examples of past cases that would have been positively or negatively impacted by these proposed bills. You can send those “horror stories” to Hector or Shannon and we will get them to the people who requested them before Wednesday’s hearing.

Discovery legislation

As if this weekly update wasn’t already chock full of hot potato issues, we have yet another one to toss your way!

Yesterday, Sen. Huffman filed Senate Bill 1124, a proposal to address the fallout from the Court of Criminal Appeals’s opinion in State v. Heath (from June 2024). If you aren’t familiar with Heath, here are some resources off our website for you:

• Original Heath opinion: TDCAA case summary
• July-August 2024 Texas Prosecutor: Diligently prepare and be vigilantly aware to avoid exclusion under Heath
• September-October 2024 Texas Prosecutor: Will the real State please stand up?
• Denial of Heath rehearing: TDCAA case summary

In a nutshell, the bill attempts to end the unfair gamesmanship occurring in the wake of the Heath opinion by clearing up some ambiguities in CCP Art. 39.14 identified by the CCA. The bill also creates procedures and safeguards to encourage resolution of discovery disputes before trial, and it specifically limits a court’s ability to suppress “Heath evidence” absent bad faith by the disclosing party or incurable prejudice to the receiving party. Importantly, the bill does not impact prosecutors’ duties in regard to exculpatory, impeaching, or mitigating evidence benefitting a defendant (the heart of the Michael Morton Act revisions in 2013). Read the text of the bill for yourself and see what you think.

If you are interested in learning more about this bill, the collaborative process within our service group that led to it, or how you can be constructively involved with the bill going forward, please email Dallas County Asst. CDA Paige Williams.

Next week

Looking ahead, we anticipate Speaker Dustin Burrow (R-Lubbock) will announce his House committee assignments, while in the Senate, those committees with jurisdiction over the governor’s emergency items will take up and consider bills on those topics. The Texas Constitution prohibits legislative committees from hearing non-emergency bills until the 30th day of a session (which is February 13 this year), so while many advocates have accused the House of dragging its heels to date, there hasn’t actually been much for committees to do until next week. That is a feature of our legislative system, not a bug, and there are good reasons for it.

Quotes of the week

“I, along with millions of Texans, am fed up with violent, repeat offenders being released into our communities by judges that are more concerned about their own political agenda than the safety and security of law-abiding Texans.”
           —State Sen. Joan Huffman (R-Houston), author of SJR 17 (now refiled as SJR 5), in a press release announcing the filing of her measure to amend the state constitution to allow judges to deny bail in more circumstances. The legislation has been deemed an emergency item by the governor.

“People need to know who their neighbors are. It’s just a matter of putting it out there, making sure the messaging is appropriate, and letting people know that these registries do exist.”
            —Rep. Liz Campos (D-San Antonio) explaining the reasoning for filing House Bill 2325 that would establish a dangerous dog registry in Texas.

“There was a news report that we are going to target school buses and children. It is absurd. If you want to talk about abuelas, my abuela is a naturalized citizen from Mexico. We surely aren’t targeting abuelas. We are not targeting U.S. citizens.”
            —U.S. Border Patrol Chief Mike Banks responding to Alice ISD’s letter on its website warning that U.S. Border Patrol agents could board school buses carrying students to extracurricular activities near the Rio Grande Valley.

“The Legislature needs to immediately fix the voter fraud issue, reauthorize me to do it, and make the Court of Criminal Appeals strike it down again. Because right now … we’re not a majority, but the message has been sent.”
           —Texas Attorney General Ken Paxton, expressing support for a bill that would authorize him to unilaterally prosecute certain types of crimes despite the Court of Criminal Appeals’s original 8–1 ruling in Stephens that such a law would violate the state’s constitution.

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The Lt. Governor renews breakfast meetings with the Speaker and wishes him well. Is it a turning of the page on the relationship between the Lt. Governor and Speaker? Will it be a more congenial legislative session than anyone predicted? Only one way to know—keep watching!

Senate hits the ground running

Lt. Governor Dan Patrick, who sets the tone for the Senate and the pace of the legislation passing in the upper chamber, released 25 of his priorities for the legislative session and appointed Senators to their committees. The Finance Committee has already begun its hearings this week. The following priority bills (which have not yet been filed) are the ones that may affect prosecutors, so we will be monitoring them closely for you.

Senate Bill 3 – Banning THC in Texas
The Legislature will address the numerous cannabis dispensaries that popped up around Texas since the legalization of the sale of consumable hemp in 2019. The law was intended to help Texas farmers, but Lt. Governor Patrick feels the law has a loophole allowing retailers to sell products with unsafe levels of THC, especially to minors.

Senate Bill 8 – Requiring Local Law Enforcement to Assist the Federal Government’s Deportation Efforts
The Senate signals its commitment to securing the border and assisting President Donald Trump’s mass deportation mission. Also, Governor Abbott issued five executive orders directing state agencies to partner with the Trump Administration to assist in its border and homeland security operations.

Senate Bill 9 – Reforming Bail – Keeping Violent Criminals Off Our Streets
The Senate will assist the Governor with his priority of bail reform to increase or eliminate bail for certain offenders accused of violent crimes. Senator Bettencourt hopes to change the Texas Constitution to allow judges to look at the full picture when determining bail. The Senate passed a constitutional amendment on bail reform last session (and the session before that, and the session before that), but it never made it out of the House due to lack of support from the minority party. At least some Democratic support is needed to overcome the two-thirds majority required to put an amendment on the ballot in November. The Governor may have more influence with his priorities in the House this session. In the interim, Governor Abbott largely fulfilled his promise to successfully primary House members who did not pass his school choice bill. 

Senate Bill 19 – Stopping Taxpayer Dollars for Lobbyists
Senator Mayes Middleton (R-Galveston) filed Senate Bill 239 along with five Republican House members who filed similar bills. Middleton believes that local governments use public funds to lobby against their citizens’ own interests. The Legislature and local government have had a contentious relationship the last few sessions with the Legislature passing laws to limit local government’s powers. For instance, last session’s House Bill 2127, known as the “Death Star” bill, created a cause of action for private entities to sue cities and counties over local regulations that have not been approved by the Legislature. A lobbying ban bill passed the Senate in 2019, 2021, and 2023 but never made it out of the House. Whether the Lite Guv’s SB 19 priority bill will be identical to Sen. Middleton’s SB 239 or approach the issue from another angle remains to be seen.

Senate Bill 20 – Stopping AI Child Pornography
Last session, the Legislature passed House Bill 2700, which expanded the definition of child pornography to include visual material that uses an actual child’s image to create pornography, including content created with artificial intelligence. However, the ever-changing landscape of AI and its capabilities requires updated laws. The Legislature will need to construct such a law without violating the First Amendment. 

Senate Finance Committee recap

The Senate Finance Committee held the Legislature’s first substantive hearing of the session on Monday by taking up Senate Bill 1, the state budget, and luckily enough it was focused on funding the judicial branch. That could have been because the committee chair, Sen. Joan Huffman (R-Houston), is a former district court judge, but it’s more likely that the judicial branch accounts for only a minuscule 0.4 percent of state spending, making it a good way to ease into such a complex, multifaceted issue.

First up was the Texas Supreme Court’s new Chief Justice, Jimmy Blacklock, who advocated strongly for an increase in the current judicial benchmark salary of $140,000. Despite the offer of a 15-percent increase in Sen. Huffman’s SB 293, it appears that the judiciary would like to make that number the start of discussions, not necessarily the end. However, we’re not sure they got the positive feedback they were seeking. In fact, when committee member Sen. Royce West (D-Dallas) remarked that he’d like to see the judges get an even larger raise, Senator Huffman told him point blank to go ahead and file that bill himself—but then also said she would not co-author it with Senator West when he asked her directly. This led to much laughter from the committee members and staffers on the dais because they all know such a bill is dead on arrival if the committee chairwoman doesn’t support it. What remains to be seen is whether the judges know that.

As we mentioned last week, SB 293 is not just a pay raise bill but also one addressing judicial accountability, transparency, and discipline, and the committee members peppered the chief justice with questions about those topics, which he answered more deftly than some of the compensation questions. Ditto for Presiding Judge David Schenck of the Court of Criminal Appeals, who got to follow Chief Justice Blacklock and add his own two cents on those topics (along with stressing his focus on shortening the CCA’s disposition times, something he campaigned on last year).

We left the hearing feeling like there isn’t much wiggle room in SB 293 for further negotiation on the size of the increase in the benchmark salary. Whether the Senate (or House) might be amenable to other ways to increase judicial compensation—such as another tier of service, an automatic cost-of-living adjustment (COLA), or an increase in visiting judge payment rates—remains to be seen.

Interestingly, the House Judiciary and Civil Jurisprudence Committee released its interim report this week in which it also addressed the topic of judicial compensation, but in much vaguer fashion. Namely, the report expressed support for an increase in the judicial benchmark salary (without putting a number on it) and for exploring the possibility of passing an automatic COLA for the benchmark, but it also raised a topic unmentioned in the Senate: de-linking legislators’ pension payments from that same benchmark salary. (For those who don’t know, legislators get paid only $7,200 per year, but their ERS Elected Class retirement payouts are determined as if they were paid the judicial benchmark salary of $140,000 per year, just like a district judge or district attorney.) That “linkage” has always been a bigger political issue in the House than the Senate, and it’s one that will bear watching when the lower chamber takes up this issue.

Other happenings at the Capitol

• House members were asked to rank the committees they would like to join and submit them via House committee cards. Those requests were due yesterday, which means that committee membership will likely be named next week. 
• The Governor will give his State of the State on Sunday, Feb. 2 at 5pm. The State of the State allows the Governor to outline his legislative priorities. It will be a made-for-TV event this year instead of a live appearance before the Senate and House. This is not the normal operating procedure for the State of the State, but what can we say, we live in interesting times.
• Continuing to race out of the gates, the Senate will re-convene Monday morning and begin its initial “first reading and referral of bills.” That is the formal process by which a filed bill is accepted by the upper chamber and referred to a committee for further consideration. Look for more details about Senate committee schedules in next week’s update.
  

Training for newly elected prosecutors

Attention all new elected prosecutors! Registration is now open for TDCAA’s Sequel to our Newly Elected Prosecutor Boot Camp. Set in Austin for the afternoon of February 27, the event features experienced faculty who will be on hand to discuss your most pressing concerns. This course is available by invitation only. If you have not yet received an agenda and link to register, please reach out to our registrar, Dayatra Rogers.

Quotes of the week

“Texas politics is now national politics. It’s really hard to divorce what’s going on at the federal level from what now happens at the state level. … [I]t’s becoming harder and harder for members to really kind of see across the aisle.”
           —Brandon Rottinghaus, political scientist at U of H, explaining to the Dallas Morning News some of the dynamics behind last week’s contentious rules debate in the Texas House.

“I want to thank Senator Huffman in particular for the bill that she filed and for her willingness to propose a 15-percent raise to the base salary for judges. … I’d like to start a conversation with you about whether we can do even more to make judicial salaries more competitive.”
           —New Texas Supreme Court Chief Justice Jimmy Blacklock, in his first appearance before the Senate Finance Committee this week.

“I’m saying it now and I’ll say it again: The pay raise comes with the approval of the transparency and the accountability [in SB 293]. It’s a package. So, I look forward to working with y’all, but … y’all figure it out because it’s got to go together, OK? … We want to give you a raise, but we also want certain things from the judiciary.”
           —Senator Huffman (R-Houston), chair of the Senate Finance Committee, closing the testimony of Chief Justice Blacklock on judicial branch pay raises.

“Depending on your algorithm #txlege Democratic Reps either just became the supreme rulers of the House or were totally screwed over”
           —Tweet on X by Cara Santucci, chief of staff for State Rep. Armando Walle (D-Houston), after the House adopted rules banning Democratic committee chairs but making other concessions to the minority party.

“I’m going to do everything I can to help him succeed. So we’ll see what happens.”
           —Lt. Governor Patrick talking about his relationship with Speaker Burrows.

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Budgets are out! After a combative primary and election cycle, Speaker Burrows (R-Lubbock) says the Senate and House budgets are “substantially identical.” Could this mean that the legislative session will be more of a group project than a group fight? We shall see!

House Rules pass

The Texas House passed its rules on how it will operate this legislative session in a 116–23 vote. The House did not allow debate on the rules or take up any amendments, which did not sit well with some of the most conservative members of the House. The new rules state that House committees will be led by majority party members (Republicans) and vice chairs will be from the minority party (Democrats), similar to the operating procedure in Washington D.C. In practical terms, that means six Democratic chairs from last session will not get that job this session.

In addition to the new rule about chairs and vice-chairs, six committees were eliminated (Business and Industry, County Affairs, Defense and Veterans Affairs, Juvenile Justice and Family Issues, Resolutions Calendars, and Urban Affairs) and their jurisdiction transferred to other committees, and two new ones were created. Texas now has its own Delivery of Government Efficiency (DOGE) Committee with general jurisdiction over government efficiency and waste. The Intergovernmental Affairs Committee is also new; it combines the jurisdictions of the former County Affairs and Urban Affairs Committees along with the former International Relations and Economic Development Committee over state-federal relations. Notably, a new permanent standing sub-committee for Juvenile Justice will report to the Criminal Jurisprudence Committee rather than be its own independent group. (Yes, yes, we all know juvenile law is civil, not criminal, but such niceties sometimes have to be overlooked in these political patronage game of musical (committee) chairs.)

Proposed Budget for Texas

Allow us to discuss some big-ticket items found in the two chambers’ budget bills (HB 1 and SB 1), then we will drill down into funding issues specific to your business and/or pocketbook.

Both chambers set aside $1 billion for education savings accounts that allows state funds to cover the cost of private school tuition and other education-related expenses. This was the most contentious issue last session—it prompted special sessions and primary opponents backed by Governor Abbott. Two years ago, Governor Abbott promised to make vouchers a priority and warned lawmakers to pass a bill last session or there would be election consequences in House races. It seems that with all the members who lost their primary elections, the rest of the House got the message. Both chambers also propose to increase public school funding by $5 billion, which includes teacher pay raises. Teacher salaries would increase $4,000 for all teachers, plus an additional $6,000 for rural teachers. Both chambers further allocate $400 million to fund the mandate of having an armed security guard at every school and providing mental health training to certain school employees.

Aside from these school funding issues that contributed to four special sessions last time around, the two chambers’ competing budgets also promise yet more property tax relief and make improvements to water and energy and broadband infrastructure. Lastly, healthcare spending continues to represent nearly half of the state budget—namely, Texas Medicaid takes up the largest portion of the state’s healthcare investment with an annual budget exceeding $40 billion.

Last on this overview list, the Legislature continues its commitment to border security with a proposed allocation of $6.5 billion. Of that, $1.2 billion would go to the Texas Department of Public Safety, with an additional $402 million dedicated to hiring more troopers, and over $46 million is being proposed to fund border prosecution.

Pay raises

For those of you who have been asking about an increase in the judicial benchmark salary, the amount in statute to which elected felony prosecutors’ state salaries are directly tied, as well as county attorney’s state supplements—we have some news for you, both in the proposed Senate budget and a stand-alone bill proposing a 15-percent raise for judicial branch officers.

Mark down Senate Bill 293 by Huffman (R-Houston) as a “bill to watch.” (It can also be found on the bill track of that exact same name on our website. But before you start to read it, a warning: The caption of the bill is “relating to the discipline of judges by the State Commission on Judicial Conduct, notice of certain reprimands, judicial compensation and related retirement benefits, and the reporting of certain judicial transparency information; authorizing an administrative penalty” (emphasis added). So, as you might guess, there’s a lot in the bill not directly applicable to you. That’s because much of this bill is a sequel to one filed last session to crack down on “rogue judges” and change their disciplinary procedures, much like a judicial version of last session’s “rogue prosecutor” bill (HB 17). However, the judge version did not pass last session, so it is back in the form of SB 293.

For our purposes focusing on compensation, you can skip ahead to pp. 13–17 of the bill and see that it includes a 15-percent increase in the judiciary’s baseline pay (from $140,000 to $161,000). One could surmise that the raise is there to help the other “medicine” in the bill go down easier, but whatever the reason, the truth is that for the pay raise to pass, the judiciary will almost certainly have to accept some or all of the other disciplinary provisions in the bill.

The Senate’s budget bill, SB 1, also includes appropriations contingent on the passage of SB 293 (or a similar bill) that adds up to more than $130 million over the next biennium in additional judge and prosecutor salaries and retirement obligations incurred by the state if it adopts such a raise. That is not chump change, so any judges or prosecutors seeking more than this initial offer of a 15-percent raise starting in Fiscal Year 2026 should recognize the financial costs to the state of going beyond what is currently on the table.

This quick summary just scratches the surface of the many issues related to judicial branch pay increases, so feel free to call or email Shannon if you have questions about SB 293 or related issues.

Senate Bill 22 grants

Those of you who receive rural law enforcement grants pursuant to last session’s SB 22 should be pleased to learn that both the House and Senate budgets include continued full funding of those programs, to the tune of another $330,800,000 for the next two-year budget cycle. We know there was some angst two years ago about the continuing viability of this new grant program, but it appears that the budget-writing committees of both chambers intend to honor the commitment initially proposed by Lt. Gov. Dan Patrick and passed into law by the full legislature. Appropriations can always change during a session, of course, so we will continue to watch that line-item like a hawk for you, but for now we’d just like to note: Isn’t it nice when promises made are promises kept?

New Senate Bill 22 rules

And while we’re on the topic of SB 22, let us deviate from our budget talk to notify everyone that this morning’s Texas Register includes official notice that the Comptroller has adopted new rules governing those grants. We first told you about the proposed changes in our November 2024 interim update, but in the absence of any public comment on their proposals, the Comptroller has adopted them effective January 30, 2025. The agency’s summary of the changes can be accessed online here. Most of the changes relate to law enforcement, but for your office’s purposes, the highlights include clarifications that:

• “investigator” is now defined to only include a person licensed under Occupations Code §1701.301 (License Required);
• a county with multiple prosecutors can receive multiple grants for those offices;
• there is now a list of unallowable indirect costs for which the grant cannot be used; and
• grants funds may be used for temporary employees but not contract labor.

The rules as amended can be viewed online here for those who did not read them previously.

VAC grants

While SB 22 grants can be used for certain victim assistance coordinator (VAC) positions, there are other (limited) state funding opportunities for those positions as well. One source is the Victim Assistance Coordinators and Victim Liaisons Grant (VCLG) administered by the Office of the Attorney General (OAG). Unfortunately, that grant is woefully underfunded by the state—in fact, we have been told that only 21 grantees currently receive those funds, even though there are more than 1,300 prosecutor and law enforcement entities potentially eligible for them.

This session, some crime victims advocates are seeking an $8 million increase in the VCLG appropriation, and they need your help—as soon as TUESDAY, no less! The Senate Finance Committee begins its review of SB 1 next week and OAG programs like this are up for review Tuesday in a hearing that begins in the Capitol extension at 9:00 a.m. If that is something you would like to get involved in, reach out to Hector or Shannon ASAP for more details. And if you are not available next week but still want to help, contact us for more information in that regard.

Legislative rotation

As you can see, committee hearings on the budget are already beginning in the Senate, and slots in our legislative rotation are filling up to represent your concerns at the Texas Capitol! As you know, TDCAA can serve as your eyes and ears at the Big Pink Dome, but the voice legislators need to hear is yours. To help you do that, we organize a rotating schedule of volunteer slots for elected prosecutors or their designees who wish to come to Austin to be a part of the legislative process. If you would like to plan ahead and schedule a time to watch (or help) the sausage being made in Austin, contact Hector for more details. The squeaky wheel gets the grease! 

Quotes of the week

“… We make this commitment to Robert Roberson and his dauntless attorney, Gretchen Sween: We won’t quit until the legal roadblocks and blind spots you’ve experienced no longer stand in the way of justice for future Texans.”

—Foreword of the Interim Report of the House Committee on Criminal Jurisprudence.

“It’s saying we are going to deny all members of this House the right to have any say other than a monkey pushing a button.”

—Representative Schofield posting on X on the House floor after the vote to shut down debate on the House Rules.

“WAR! #txlege”

—Representative Nate Schatzline posting on X after the House Rules vote.

New federal definitions:
Crime = when your enemy breaks the law.
Weaponization = when your friend gets prosecuted for breaking the law.

—Recent tweet on X by Sarah Isgur (@whignewtons), a national political commentator.

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Happy New Year! The 89^th Legislative Session kicked off this week in Austin. It is a time for hope and big dreams of a bill just sitting on Capitol Hill becoming an actual law in a short five months. The hero bill must surmount a process created solely to terminate that bill. It is also a time of friendship and camaraderie between the lawmakers. That period of harmony lasted for a few hours up until the outcome of the speaker’s race. Harmony will have to wait until the next session!

New House Speaker

The No. 1 question around the Texas capitol was answered this week with the election of Representative Dustin Burrows (R-Lubbock) as the new Speaker of the House and its 150 members. The winner needed 76 votes, and Burrows beat Representative David Cook (R-Mansfield) with a final vote of 85–55. It took only two rounds to decide who would control the gavel and the Texas House. The first round included Representative Ana-María Rodríguez-Ramos (D-Richardson) earning 23 votes from her Democratic colleagues, which kept the two Republicans from crossing the threshold of 76 votes. Cook and Burrows moved on to the runoff.

Burrows gained 12 Democrats who initially voted for Rodríguez-Ramos and two more Republican members who left Cook’s coalition. Ten Democrats did not vote in the runoff.  Ultimately, Burrows won his new position with the support of 36 Republicans and 49 Democrats, something that is already causing a lot of grief in some GOP circles.

Secretary of State Jane Nelson oversaw the election and swore Burrows into office. Burrows highlighted his priorities including property taxes, education, water infrastructure, and public safety. Representatives Greg Bonnen (R-Friendswood), Todd Hunter (R-Corpus Christi), Jeff Leach (R-Plano), Morgan Meyer (R-University Park), Will Metcalf (R-Conroe), and former speaker Dade Phelan (R-Beaumont) made up the inner circle of Burrow supporters throughout the contentious campaign and will likely be rewarded with important committee assignments.  Representatives Terry Canales (D-Edinburg), Harold Dutton (D-Houston), Bobby Guerra (D-Mission), Oscar Longoria (D-Mission) and Joe Moody (D-El Paso) all chaired committees last session and supported Burrows from the beginning. Cook’s main campaign promise was to eliminate Democrats chairing any committees. 

The Lt. Governor and Attorney General Ken Paxton expressed their disappointment that Cook did not win the Speaker’s race even though Cook was the House Republican Caucus nominee.  The House Speaker joins the Governor and Lt. Governor in helping shape the legislative process. Last session, those relationships were strained and the session extended into four special sessions. The relationship and ability to work together for the “Big Three” sets the tone for the legislative session. The relationship between the Lt. Governor and Speaker Burrows starts from a difficult place as Lt. Governor Patrick declared before the race that “any Republican who wins with a majority of Democrats will be a counterfeit Speaker who will be beholden to the Democrats.”

The first test for Speaker Burrows will happen next week when the House votes on its rules to operate during the legislative session. That vote will dictate whether Democrats can chair committees. Equally important, it is happening a week later than usual thanks to a combination of the Speaker election drama, the presidential inauguration in Washington, D.C. on Monday (where much of the Republican legislative delegation will be), and some impending bad weather predicted to hit Austin early next week. The upshot is that the House will be behind schedule (based on past performance), giving the Lt. Governor the opportunity to take advantage of that gap to announce his Senate committee assignments (see below, hot off the presses!) and release a list of priority legislation soon, getting the jump on the House in the process.

Senate Committees Released

Lt. Governor released his committee assignments this morning demonstrating the Senate’s desire to move fast this session. The following five committees are the most relevant to prosecutor offices.

Senate Committee on Border Security: Brian Birdwell (Chair), Peter Flores (Vice Chair), Sarah Eckhardt, Adam Hinojosa, Juan “Chuy” Hinojosa

Senate Committee on Criminal Justice: Peter Flores (Chair), Tan Parker (Vice Chair), Brent Hagenbuch, Juan “Chuy” Hinojosa, Joan Huffman, Phil King, Borris Miles

Senate Committee on Finance: Joan Huffman (Chair), Juan “Chuy” Hinojosa (Vice Chair), Carol Alvarado, Paul Bettencourt, Donna Campbell, Brandon Creighton, Peter Flores, Bob Hall Lois Kolkhorst, Robert Nichols, Angela Paxton, Charles Perry, Charles Schwertner, Royce West, Judith Zaffirini

Senate Committee on Jurisprudence: Bryan Hughes (Chair), Nathan Johnson (Vice Chair), Brandon Creighton, Juan “Chuy” Hinojosa, Mayes Middleton

Senate Committee on State Affairs: Bryan Hughes (Chair), Angela Paxton (Vice Chair), Paul Bettencourt, Brian Birdwell, Bob Hall, Adam Hinojosa, Mayes Middleton, Tan Parker, Charles Perry, Charles Schwertner, Judith Zaffirini

Here is the complete list of committee assignments.

Yet another nuisance (bill)

Last week, the Texas Civil Justice League issued its list of nine legislative priorities, one of which was to limit local governments’ ability to sue businesses under certain public nuisance theories. Not a week later, such a bill was filed: SB 779 by Sen. Middleton (R-Wallisville). The filing of this bill fulfilled a promise Sen. Middleton made over the summer in the virtual pages of the TLR Advocate, an online blog of Texans for Lawsuit Reform, so feel free to read that for an explanation of the bill’s goals. The bill is similar to last session’s HB 1372 by Vasut, which several local entities opposed (and which was itself a refile of another such effort back in 2021). If you had this issue on your radar last session, you’ll want to read this session’s SB 779 to see what you think.

Charette redux

In our interim update from September 2024 we alerted you to the Ex Parte Charette opinion in which the former Court of Criminal Appeals (CCA) narrowly decided that trial courts—and thus, local prosecutors—lack jurisdiction over criminal violations of certain election and campaign laws unless the Texas Ethics Commission (TEC) first exhausts all administrative remedies or officially refers the case to a prosecutor for criminal enforcement. A group of more than 30 prosecutors supported a subsequent motion from the State Prosecuting Attorney (SPA) for a rehearing, which was denied by the CCA. However, this week a newly reconstituted CCA (which includes three new judges who have not previously heard the Charette case) granted the SPA’s motion for rehearing. (For more on that, see today’s TDCAA Case Summaries.) Now the issue can be briefed and argued anew. Meanwhile, the Texas Ethics Commission posted notice in today’s Texas Register that the emergency rule on prosecutor referrals it temporarily adopted back in October is to be continued for another 60-day period. Whether that administrative process is still relevant in light of this rehearing is something that appellate people much smarter than us will have to hash out.

Legislative rotation

As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice legislators need to hear is yours. To help you do that, we organize a rotating schedule of volunteer slots for elected prosecutors or their designees who wish to come to Austin to be a part of the legislative process. If you would like to plan ahead and schedule a time to watch (or help) the sausage being made in Austin, contact Hector for more details.

Remember: If you’re not at the table, you may end up on the menu!

Quotes of the week

“If they don’t listen, we are going to come back and primary them next time and beat them.”

           —Attorney General Ken Paxton, to a roomful of supporters in Fort Worth, where he was whipping up Republican grassroots opposition to a potential Dustin Burrows speakership.

“Today, the RINO (anti-MAGA) Establishment laughed in the faces of our Republican grassroots. They chose Democrat chairs and lobbyist buddies over their voters. I look forward to seeing if they’re still laughing after the next round of primaries. The fight starts today.”

            —Shelley Luther (R-Tom Bean) posted on her X account .

“As far as those who support Burrows, I’m glad they weren’t with Travis at the Alamo when he drew the line in the sand. They would have crossed the line and walked out of the gate, leaving their fellow fighters behind.”

                       —Lt. Governor Dan Patrick discussing the Republican House members who support Representative Burrows for Speaker.

“It’s going to be borderline chaotic. You’ll see a lot of conflict rubbing back and forth between the Senate and the House. I think you’ll see the conservative Republicans fighting tooth and nail to advance their priorities.”

            —Mitch Little (R-Lewisville) speaking to the Texas Tribune about the outcome of the Speaker’s election

“As they say in sports, ‘Let’s get ready to rumble!’ Many Republican members just partnered with Democrats to steal the speakership from Texas Republican voters! More to follow.”

            —Tony Tinderholt (R–Arlington) posted on his X account.

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89^th Legislative Session

Comptroller Glenn Hegar estimates that Texas will have a $21 billion budget surplus headed into the legislative session, which is $10 billion less than last session. Texas would be the eighth largest economy in the world if it were its own nation. The legislature is constitutionally required to pass a budget, which funds most of the state’s functions including state agencies, courts, and public and higher education. It is the legislature’s only must-pass item of the entire legislative session. Roads, water infrastructure, electric grid infrastructure, border security, and public education are competing interests that the legislature must address. Assuming school vouchers are enacted, they will likely reduce the surplus by $4 billion. The public-school funding proposal not enacted in 2023 will cost around $6 billion. Two infrastructure priorities for energy and water could cost between $6 and $8 billion, leaving only around $3–5 billion for another round of property tax cuts, probably narrowing the scope to business property taxes. President-Elect Donald Trump promised to make border security a priority, which could alleviate some of Governor Greg Abbott’s suggested nearly $3 billion in state border security spending. If the federal government increases its policing of the border, then that might free up more of the state budget for other priority items.

Representative Martinez-Fischer (D-San Antonio), a veteran member in the House, sent a letter to his fellow Democrats asking for unity in their decision on whom to support for Speaker to preserve their power. Representative David Cook (R-Mansfield), one of the two declared Republican candidates for House Speaker, responded with a letter to Martinez-Fischer in an attempt to win Democrat support for his campaign. Cook offered to re-evaluate how public schools are funded by changing to enrollment-based funding versus attendance-based funding. Cook also discussed pay raises for teachers and eliminating the STAAR test. Cook has the GOP caucus endorsement but is shy of the 76 votes needed to win the Speaker’s race, as is the other announced candidate, Rep. Dustin Burrows (R-Lubbock). Currently, no Democrats have publicly supported Cook.

In 2020, the Texas AG’s Office filed a lawsuit challenging the 2020 Electoral College results in four states, including Pennsylvania. The U.S. Supreme Court declined to hear the case. However, the Texas State Bar attempted to sanction First Assistant Attorney General Brent Webster for his role in the lawsuit. The Texas Supreme Court issued a 7-to-2 opinion finding no evidence that Webster engaged in unethical conduct during the Texas v. Pennsylvania case.  SCOTX Opinion The Court ruled that the State Bar’s actions violated the constitutional authority of the OAG and the separation of powers doctrine. The Court ruled that a court can sanction an executive-branch lawyer for conduct that occurs before the court and violates the disciplinary rules, but a collateral review of a public lawyer’s statements by the commission at the start of litigation is prohibited. Attorney General Ken Paxton declared victory and called the actions of the State Bar a politically motivated witch hunt.

Governor Abbott appointed Justice Jimmy Blacklock as the new chief justice of the Supreme Court of Texas. Former Chief Justice Nathan Hecht departs after reaching the mandatory retirement age and serving 36 years, which made him the longest serving justice on the Court. Governor Abbott appointed his general counsel, James Sullivan, to fill Blacklock’s seat. Sullivan recently filed an amicus brief to SCOTX rebuking the Texas House Criminal Jurisprudence Committee’s efforts to stop the execution of Robert Roberson via a legislative hearing subpoena. Sullivan argued that only the governor has the constitutional power to grant clemency. Both Justices will have to run for reelection in 2026. 

Mandatory Brady training

It is important to keep up with the legislature each session because it sometimes imposes new duties on prosecutors. One example of that is Government Code §41.111 (“Training Related to Prosecuting Attorney’s Duty to Disclose Exculpatory and Mitigating Evidence”), which requires that every attorney prosecuting a jailable criminal offense in this state must complete one hour of instruction on the duty to disclose such evidence and information. This training must be completed by all elected, appointed, or hired prosecutors within 180 days of taking office or assuming those prosecutorial duties. Rules adopted by the Court of Criminal Appeals also require prosecutors to take a refresher course every fourth year after completing their initial course.

As the legislature returns to Austin for another round of policymaking, we thought now was a good time to remind everyone that TDCAA’s Brady training is available online through our website to satisfy this requirement. Our *FREE* one-hour course on a prosecutor’s duty to disclose exculpatory and mitigating evidence and information has been approved by the Court of Criminal Appeals for the purpose of complying with this statutory mandate. Successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas.

To access and complete this mandatory course, visit our Brady Resources webpage and click on the link for the 2022 online course. If you have questions about this course, please contact Shannon.

New HIPAA rules

On its way out the door, the Biden Administration directed the federal Health & Human Services Department (HHS) to adopt an administrative rule strengthening “reproductive health care privacy” in the wake of the U.S. Supreme Court’s Dobbs decision overturning Roe v. Wade. As a result, law enforcement and prosecutors across the nation must now jump through a new federally mandated hoop before obtaining HIPAA information from health care providers. In a nutshell, hospitals and related providers are required to obtain a signed attestation from the requestor that the protected health information is not being sought to investigate, prosecute, or sue someone for acts relating to various types of legal reproductive health care services.

Like all federal policy changes, these new rules are longer than your arm when printed. Our one-sentence summary of this new mandate cannot begin to describe all the relevant details but is merely provided for informational purposes. If this change is news to you or your local law enforcement agencies and you want more details, you can start digging into the issue by reading this HHS Fact Sheet.

Forensic testing grants

The legislature dedicates state funds every session to a grant program for local prosecutors who need help covering the costs associated with the forensic analysis of physical evidence. For the next state fiscal year (which starts in September 2025), the Governor’s Public Safety Office (PSO) expects to make $2 million available for that purpose. However, certified applications for those funds are due Thursday, February 13, 2025. For more information about this PSO grant program and how to apply, see this eGrants link.

Quotes of the week

“I can tell you personally, since November 5^th, I have been praying and thanking God for the changes He’s made, and I pray He brings the wisdom, the courage, and the strength to this court to make right the wrongs of the past and clearly interpret the law as it was intended.”

           —State Sen. Bob Hall (R-Edgewood), prior to leading the assembled crowd in the Pledge of Allegiance at the investiture of the three newest members of the Court of Criminal Appeals. (Video of the full investiture is available here.)

“The tradeoff presented to lawmakers is apparent: At what financial threshold does the risk posed by expanding casino gambling become acceptable? Using the numbers above, the result would be political subdivisions bringing in less than $184 per year for each Texas adult who develops some degree of gambling addiction. It is up to lawmakers to decide if this is a golden windfall or a mess of pottage …. What is the tolerable amount of human suffering to top off public coffers?”

          —Derek M. Cohen, Ph.D., writing  for the TEXAS PUBLIC POLICY FOUNDATION’s The Costs of Chance: Evaluating the Economic and Social Implications of Casino Gambling Expansion in Texas.

“He said, … ‘The rules don’t apply to me.’ The arrogance of that and the hypocrisy of that are overwhelming to me.”

          —Attorney General Ken Paxton, at a recent speaker’s race event in Leander, referring to Representative Burrows helping to draft caucus rules that he is now ignoring.

“We are going to be changing the name of the Gulf of Mexico to the Gulf of America …. [It has a] beautiful ring to it.”

          —President-elect Donald Trump during a press conference discussing the Gulf of Mexico.

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We have one additional survey question for those of you who attended our Elected Prosecutor Conference in Frisco last week: Was the Wednesday night reception our best conference reception of this century, or our best conference reception of all time?  😉

El Fin

The House and Senate adjourned the 4th Called Session sine die on Tuesday, one day before its official deadline. According to local meteorologists, Austin’s ambient air temperature unexpectedly rose five degrees Tuesday afternoon, a phenomenon later attributed to the post-adjournment hot air being vented from both chambers.

The final product from this latest special session consisted of two bills: Senate Bill 3 by Huffman/Jetton (border security funding) and Senate Bill 4 by Perry/Spiller (illegal entry crime). Both now await the governor’s signature. The former includes the House amendment we told you about a few weeks ago that allows some of its $1.5+ billion in border security operations funding to be spent on grants for “local prosecutorial, judicial, and correctional resources.” How such grants will work in practice remains to be seen, though.

As for the new illegal entry crime created by SB 4, that will not take effect until the 91st day after the governor signs the bill. However, we predict the federal government, advocacy groups, or both will seek a federal court injunction against the enforcement of that law before it ever gets that far. We’ll do our best to keep you informed if or when that happens.

Programming note

Now that the Lege has left town and is not expected back in these parts anytime soon (amen!), these weekly updates will shift to monthly missives in January. However, we foresee issuing at least two additional updates before year’s end. One will be a recap after next week’s campaign filing deadline passes—so if you know of local prosecutor races in or around your jurisdiction in 2024, please share them with us—and a second will alert you when the Comptroller’s Office releases its final rules for administering SB 22 rural law enforcement grants. Please keep an eye out for those.

Training notice

Of the 1,650 people who have registered to take our 2023 Legislative Update online, almost half (!) have not yet completed the course. Access to that online course closes on December 31, 2023, so if you or someone in your office registered for that course but did not complete it, you must do so before the end of the year. And for those of you who haven’t taken the course yet, there is still plenty of time to register and complete it! Attendees receive a Legislative Update book by mail and 3.75 hours of CLE upon completion. Please click HERE for more details.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas is on the verge of making illegal border crossings a state crime. Here’s what you need to know.” (Texas Tribune)
• “Former AG official: skewed math obscures Texas victim compensation delays” (KXAN News)
• “How one man’s open records obsession sparked a fight over transparency and power in East Texas” (Texas Tribune)
• “State Rep. Frederick Frazier pleads no contest to impersonating a public servant charges” (Dallas Morning News)
• “DA drops most charges against Austin police officers accused of excessive force in 2020 protests” (Texas Tribune)

Quotes of the Week

“The evidence is clear: Police departments across the country are solving far fewer crimes than they did before 2020.”
            —Jeff Asher, crime data analytics expert, in a recent guest essay in TheNew York Times that noted national police clearance rates for violent and property crimes have fallen to their lowest levels since the 1960s.

“This is our community, and we will elect a representative. The governor will not elect the representative of this district.”
            —State Rep. Hugh Shine (R-Temple), addressing Governor Abbott’s endorsement of his Republican primary opponent due to Shine’s opposition to the governor’s school voucher proposal.

“I don’t think it would be productive to come back now, three weeks before Christmas. I think the best day to come back would be February 5th, 30 days before the election.”
            —Lt. Gov. Dan Patrick (R-Houston), on the possibility of a fifth called session to take up school vouchers (again).

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We thought we’d squeeze an update between the holiday break and this week’s Elected Prosecutor Conference in Frisco (walk-in registrations will be accepted if you aren’t already signed up, so come and join us!).

News from Austin

The current Fourth Called Session is scheduled to end on Wednesday, December 6, but now that the governor’s plan for school choice legislation has been dealt a fatal blow in the House, the two chambers could adjourn sine die before then. The only legislation still in play is SB 3 by Huffman/Jetton (border wall/border security funding), which the House returned to the Senate with an amendment to allow its newly-appropriated grant funds to be used for local border law enforcement and prosecution expenses. However, both the House and Senate met briefly today only to recess until Thursday, so no action has been taken on that proposed change.

Pending the outcome of that border security bill, the conventional wisdom is that the two chambers will adjourn for good without passing school choice legislation and there will be no further special sessions now that advocates for education savings accounts have the vote record needed to make it a campaign issue in the upcoming Republican primary races. That could just be wishful thinking from those in Austin wanting a break from perpetual legislative sessions, but we tend to agree with their thinking. (Or maybe we also need a holiday reprieve so badly that we are trying to wish certain things into being. But hey, “It’s Christmas, Theo. It’s the time of miracles!”)

Senate Bill 4 vs. Senate Bill 4

For those about to be confused, we salute you.

Last week, Governor Abbott signed into law Senate Bill 4, which increases penalty ranges for certain human smuggling activities. However, the governor is also expected to sign into law another Senate Bill 4 that will create a new crime of illegal entry.

So, what up with that?!?

In general, every regular and called session is treated as a unique event, each with its own rules, notations, and legislation. If one piece of legislation fails to pass during a session and gets refiled in a subsequent session, it begins life anew with a new bill number, even if the language is identical to something previously filed. Similarly, if a particular bill passes during a session, that bill number is not retired or set aside but is instead reset for use in future sessions. One result of this practice is that the contents of “House Bill X” or “Senate Joint Resolution Y” will vary from session to session even when the same legislators are involved. For this reason, it is important to note the session number of new laws to distinguish between what may be very different changes made by bills with identical numbering.

Keep this in mind when we talk about future court challenges to the constitutionality of the illegal entry crime created by SB 4 from the 4th Called Session (which will often be indicated as

“Acts 2023, 88th Leg., 4th C.S.” or  “88-4” or something similar). The impending changes made by that SB 4 are different from the changes made by SB 4 from the 3rd Called Session, even though both of them share a bill number and relate to border security and immigration. While the new punishment scheme in SB 4 (88-3) was controversial in a political sense, it was a pretty straightforward enhancement bill that lacked the constitutional baggage of the new illegal entry crime created by SB 4 (88-4). Note also that both bills’ changes will take effect at different times. Specifically, the new punishments under SB 4 (88-3) for human smuggling, operating a stash house, and related conduct take effect on February 6, 2024, while the effective date for the illegal entry legislation is yet to be determined.

Finally, remember to check our publications webpage in 2024 for free PDF versions of these impending changes for our code books, which will not be separately updated or re-published.

Post-Dobbs litigation

Speaking of getting sued over new state laws, the Texas Supreme Court (SCOTX) will hear arguments tomorrow in State v. Zurawski, a direct appeal of a temporary injunction issued against the enforcement of certain state laws banning certain abortions. A decision in Zurawski could provide clarity to local prosecutors asked to enforce those laws—or not, depending upon the scope of the Court’s eventual ruling. To learn more, a SCOTX-authored summary of the case set for argument is available HERE and the SCOTX case detail page (including relevant briefs) is available HERE.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas Gov. Greg Abbott’s vice-presidential chances” (Axios Austin)
• “Republican Rep. Andrew Murr, who led impeachment of Ken Paxton, won’t seek reelection” (Texas Tribune)
• “More than two-thirds of Texas’ 30.3 million residents live in four largest metro areas” (Texas Tribune)
• “She got a ticket for beeping her car horn. Now she’s asking the Supreme Court to sound off” (USA Today)

Quotes of the Week

“Many of us are so resolute on this that we’re going to break caucus rules and we’re going to support primary challengers.”
            —State Rep. Steve Toth (R-The Woodlands), quoted in a recent Texas Tribune article saying that some legislators who support education savings accounts will ignore House Republican Caucus rules protecting incumbent members in an effort to elect more pro-(school)-choice legislators.

“This is the season of giving, not taking. This is not Los Angeles, New York, or Chicago. We will prosecute all theft cases, no matter the amount. We will do everything we can to keep our community safe. Stop stealing other people’s stuff.”
            —Tarrant County CDA Phil Sorrells, in an excerpt from “A Warning to Holiday Thieves” posted on his office’s YouTube page.

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Forget minor diversions like public policy, let’s focus on what’s really important to Texans in the fall, courtesy of the good people at SEC Shorts.

Border wars, cont’d

As this weekly update goes out into the ether, House members are on the floor debating (and likely rejecting) the governor’s pet issue of school choice. However, earlier this week that lower chamber did tackle two of the immigration-related items the governor put on their To-Do List: Senate Bill 3 by Huffman/Jetton (border security funding) and Senate Bill 4 by Perry/Spiller (illegal entry crime).

Of note in regard to SB 3 is a House floor amendment added to the bill that would allow some of the $1.54 billion appropriated by that legislation for border security operations to be spent on grants to local governments and agencies “to alleviate costs associated with an increased demand on local prosecutorial, judicial, and correctional resources.” How such grants would work in practice remains to be seen, but first, that amended bill will return to the Senate next week to see whether that change is acceptable to the original author.

The real kerfuffle in the House was over SB 4, which would create a new misdemeanor offense of illegal entry (with several felony enhancements, of course). The lower chamber approved that bill on a straight party-line vote after rejecting two dozen floor amendments offered by House Democrats. The lack of House substitutes or amendments to SB 4 means the bill now heads to the governor’s desk for his signature—and then shortly thereafter, the federal courts. (Or at least that is our assumption based on the line of questioning on the House floor from opponents who were clearly laying a foundation for several different constitutional challenges to the bill.)

We’ll break down that impending new law after it is signed; for now, we’ll merely wish good luck in advance to whomever among you draws the short straw and gets sued to enjoin enforcement of this new crime. And speaking of which, our keynote talk at the Elected Prosecutor Conference the week after the Thanksgiving holiday will be on “Defending Yourself & Your Office” (timely, no?). If you haven’t already registered for that training, online registration is closed but you can still register at the event as a walk-in attendee (more details HERE).

Legislative musical chairs

We thought this category was a useful addition when we added it to our updates a few weeks ago, but then the filing period opened in earnest and the news started coming too fast for us to keep up with it! Accordingly, we are shelving this entry until the filing period closes on Monday, December 11, after which we will see where everyone stands and report any interesting news.

We also try to keep track of all the local prosecutor races up for grabs, so if you know of a county attorney or district attorney race in which the incumbent is stepping down or faces a primary or general elected opponent, please email Rob with that information.

Training notice

More than 1,650 people have registered to take our 2023 Legislative Update online, but not everyone who registered has completed the course. For those of you in that boat, consider this your reminder that the online Legislative Update closes on December 31, 2023, and will not be accessible after that date. If you have registered for that course but have not completed it, you must do so before the end of the year. And for those of you who haven’t taken the course yet, there is still plenty of time to register and complete it! Click HERE for details.

We have also opened registration for another live version of the Legislative Update to be held immediately following our February 2024 Investigator Conference at the Embassy Suites Hotel & Conference Center in San Marcos. This version of the Legislative Update will grant both CLE and TCOLE credit (No. 3188) but will be slightly more peace-officer-focused than our standard CLE course. For more details on how to register for this in-person offering, click HERE.

Scattershooting

Here are some recent stories you might’ve missed:

• “Lawmakers Vote to Give Texas Power to Arrest, Deport Migrants” (Wall Street Journal [free link])
• “Texas chief justice among those set to step down early after Prop 13’s rejection” (KUT News [free])
• “Texas appeals court weighing whether state bar can discipline Ken Paxton for challenging 2020 presidential election” (Texas Tribune [free])
• “Oregon Decriminalized Hard Drugs. It Isn’t Working.” (Wall Street Journal [free])
• “Texas secessionists feel more emboldened than ever” (Texas Tribune [free])
• “What It Means to Be a Texan Is Changing in Surprising Ways” (New York Times [free])

Quotes of the Week

“It just keeps getting worse. I feel like these people on the streets have more rights than I do.”
            —Matt Siegmund, owner of a family-run store in downtown Eugene, OR—which has essentially legalized hard drugs—in a complaint to the Wall Street Journal about debris left outside his store on a daily basis that often includes feces, needles, and other drug paraphernalia.

“I want to like these people, mostly. Sure, a few of them are grifters and con artists. … It is striking, though, what a parallel reality they live in. … These guys are like the right-wing populists who call themselves ‘patriots’ but hate everything about their country and hate most of the people who live there. They want to live in a Texas that exists only in their minds—one that is nothing like what the actual Republic of Texas was like for all nine years of its brief existence and nothing like the Texas that actually exists here in the real world today.”
            —Kevin D. Williamson, native Texan and conservative political commentator for The Dispatch, in an entertaining column about the secessionists he met at the Texas Nationalist Movement conference in Waco earlier this month.

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Fourth verse … same as the first?

The Cuatro

Mere hours after both chambers adjourned sine die for the third special session on Tuesday, Governor Abbott issued a proclamation calling them back for a 4th Called Session. Topics for this fourth bite at the apple are:

• education savings accounts
• school funding
• school safety
• an increased law enforcement presence for Colony Ridge (in Liberty County)
• border security, including funding for a wall and creation of a new second-degree felony for illegal entry into the state from a foreign nation

After a two-day pause to get organized, the House and Senate got to work on several of those tasks this week—the latter despite the initial absence of its presiding officer, who was recovering from a bout of viral pneumonia.

Border wars

That last special session topic mentioned above (“border security”) is the one most applicable to your jobs. On that front, the latest attempt at creating an “illegal entry” offense is House Bill 4 by Rep. Spiller (R-Jacksboro) (and an identical Senate companion, SB 4 by Sen. Perry (R-Lubbock)). Drafted to apply to offenders entering Texas at a point other than a lawful port of entry, this latest version includes a new provision that would allow a magistrate or judge to dismiss an illegal entry charge at any point in the criminal justice process and order an arrestee to be returned across the border (with that arrested person’s consent). Not only does this proposal likely violate a prosecutor’s constitutional discretion to prosecute such a criminal case, but it also appears to flatly violate Article 1, Section 20 of the Texas Constitution (“no person shall be transported out of the State for any offense committed within the same”). That and other provisions of the bill almost certainly violate well-established federal pre-emption boundaries under the federal constitution as well. But hey, what’s a little constitutional violation between friends, amirite?

As for the process during this fourth special session, the express lane is fully operational—but that means different things in different chambers. The House referred HB 4 to the House State Affairs Committee on Tuesday, heard the bill Thursday at 10:00 a.m., took five hours of testimony, and then approved it along a partly-line 8–4 vote. That bill now goes to the Calendars Committee, which can schedule the bill for a floor debate in a few days. That is fast action for the lower chamber, but then the Senate said, “Hold my beer, watch this!”

The Senate posted notice of a committee hearing on its illegal entry legislation (SB 4) on Thursday at 3:11 p.m., laid the bill out in committee at 3:15 p.m., voted it out of committee at 3:40 p.m. on an almost party-line vote (more on that below), placed it on the Intent Calendar at 4:10 p.m., considered it on the Senate floor at 7:00 p.m., approved it on second reading by an almost party-line vote at 9:30 p.m., adjourned, started a new legislative day (still on Thursday), and finally approved SB 4 on third reading by another almost party-line vote at 10:15 p.m. Senate Bill 4 will now go to the House to try to “catch up” to its House companion before it hits the floor in the lower chamber.

That, in a nutshell, is the difference between the House and Senate, for those of you not familiar with how this works. And the best part is, you’ll never guess which one considers itself the more “deliberative body”! But in fairness, there was at least one person upholding that reputation on the Senate floor. State Sen. Brian Birdwell (R-Granbury), who was the previous Senate author of multiple illegal entry bills, voted against the latest draft on the basis of its unconstitutionality, a stance that resulted in the bill being taken from him and given to State Sen. Charles Perry (R-Lubbock), who—along with the rest of his caucus—did not share those reservations. As we have increasingly noted, legal niceties like that will be left to the lawyers to hash out. (Good luck with that.)

Election results

Of the 14 constitutional amendments put to voters this week, all but one passed. The lone measure to fail was Proposition 13 to extend the mandatory judicial retirement age from 75 to 79 years of age.

SCOTX Chief Justice Nathan Hecht, who turns 75 next year, could not be reached for comment in any of the news coverage we saw.

More legislative retirements

In addition to the list of retiring House members we shared with you in our last update, State Sen. Drew Springer (R-Muenster) and State Rep. Geanie Morrison (R-Victoria) both announced their intention to not seek re-election this week.

Scattershooting

Here are some recent stories you might’ve missed:

• “DA Joe Gonzales creates team to review cases involving violent offenders” (San Antonio Express-News [free link])
• “Texas voters reject proposal to increase judges’ retirement ages” (Texas Tribune [free])
• “Supreme Court wary of striking down 1994 law protecting domestic violence victims in high-stakes gun case” (CBS News [free])

Quotes of the Week

“[Lt. Gov. Patrick reassigned the illegal entry bill from me] out of respect for the majority view within the Senate Republican Caucus that wanted to pass a bill and recognizing that my view of my oath and constitutional construct of the relationship between the federal government’s specified duties and the state’s authority was in the minority view. … Members, let us consider carefully our actions. … We are setting a terrible precedent for the future by invalidating our obedience and faithfulness to our Constitution. President Biden’s failure to obey his oath does not compel us to violate ours.”
            —State Sen. Brian Birdwell (R-Granbury), a retired U.S. Army officer, in a speech from the Senate floor explaining his vote against SB 4 (creating a state crime of illegal entry). [The link is the actual floor video of the relevant portion of his remarks.]

“Someone who’s, you know, shooting at people. That’s a good start.”
            —SCOTX Chief Justice John Roberts, after the defense attorney in U.S. v. Rahimi replied during oral arguments that the answer to the Chief’s question about whether his client was a dangerous person would depend on the definition of dangerous conduct.

“This is really a war within the Republican Party. And that makes it very hard to get anything done.”
            —Sherri Greenberg, assistant dean at UT’s LBJ School of Public Affairs (and former Democratic state legislator), describing the “toxic” relationship that currently exists between Lt. Gov. Dan Patrick and House Speaker Dade Phelan, as quoted in a Dallas Morning News ($) article on the lean results from the third special session.

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