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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The official expiration date for the third called session is tomorrow, but the contents of this particular milk jug went sour long ago. Now we wait and see if the governor calls the Lege back to a fourth special session this week.

Senate Bill 22 rules

Consider this your final warning: The public comment period for the Comptroller’s proposed rules for administering SB 22 grants ends this week, so suggest changes now or forever hold your peace. For more details, see the dedicated webpage for all things SB 22-related (available HERE). And to help us keep track of who is concerned about what, please consider cc’ing Shannon on any comments you submit to the agency. Thanks!

Special session (in)action

With the political in-fighting reaching a fever pitch on the GOP sidelines, the two “head coaches” at the Lege effectively refused to bring their teams out of the locker room and onto the field for the final quarter of the third special session, which will now end tomorrow with a whimper rather than a bang. (All the banging is occurring on Twitter/X, which is how everyone learned state government works from our high school civics classes, right?)

We will spare you the political blow-by-blow and summarize the current state of things thusly: There are two “parties” within our one-party state government who are engaged in a political cage match and nothing much is going to get done until one of them wins by knockout, which may not happen until the March 2024 primaries. And if that is an accurate take on things, then no number of subsequent special sessions is going to change things. But that doesn’t mean the special sessions will stop because a governor can call as many as he wishes from now until kingdom come, and the current holder of that office has showed he is more than happy to do that.

Special session output

Two bills did emerge from the Lege before it melted down last week.

Senate Bill 4 by Flores/Guillen will increase the penalty ranges for multiple crimes involving conduct related to human smuggling activity, even imposing 10-year mandatory minimum sentences for some. That bill should be signed by the governor—after all, he asked for it—and take effect sometime around February 6, 2024, if our math is correct. In keeping with our past practice, TDCAA will not re-print our Penal Code publications to include these changes but will instead offer a PDF version of the corrected statutes on our website.

The only other bill heading to the governor’s desk is Senate Bill 7 by Middleton/Leach, which will generally prohibit non-governmental employers from requiring a COVID-19 vaccine as a condition of employment.

Other than these two measures, no other legislation passed both chambers of the legislature during this special session. That list of failed bills includes the dueling versions of HB 4/SB 4 to criminalize illegal aliens’ entry into the state, each of which was killed by the opposing chamber in a very public fight over who had the bigger … border security credentials.

Election Day

If you need help navigating tomorrow’s slate of proposed constitutional amendments, our friends at TAC have compiled some background information for you HERE.

Retirements

Turnover is a fact of life at the capitol, and a number of legislators have already announced their transition to greener pastures, whether that be a move up (to D.C.) or a move out (back home). Here is the list of public resignations to date:

• Rep. Doc Anderson (R-Waco)
• Rep. Abel Herrero (D-Robstown)
• Rep. Julie Johnson (D-Farmers Branch) (running for Congress)
• Rep. Tracy King (D-Uvalde)
• Rep. Lina Ortega (D-El Paso)
• Rep. Four Price (R-Amarillo)
• Rep. John Raney (R-College Station)
• Rep. Matt Schaefer (R-Tyler)
• Rep. Carl Sherman (D-DeSoto) (running for U.S. Senate)
• Rep. Ed Thompson (R-Pearland)

There are also two state senators running for other offices right now: Sen. John Whitmire (D-Houston) is on tomorrow’s ballot for Houston Mayor, while Sen. Roland Gutierrez (D-San Antonio) is running for U.S. Senate.

SART report reminder

As we mentioned in our previous update, Local Government Code §351.257 (“Report”) requires all county sexual assault response teams (SARTs) to submit a biennial report to their commissioners courts no later than December 1, 2023. To access a PDF copy of a proposed “Framework for Writing the SART Biennial Report,” click HERE.

Elected Prosecutor Conference reminder

This year’s Elected Prosecutor Conference will be held at the Embassy Suites in Frisco and will include a Wednesday night reception on the field of the Dallas Cowboys’ indoor practice facility at The Star. The conference will be held November 29–December 1, 2023 (the week after Thanksgiving) and details about it are available HERE.

We will also hold TDCAA’s Annual Business Meeting on Wednesday, November 29, 2023, at 5:00 p.m., at the Frisco Embassy Suites immediately upon adjournment of that day’s training session.

Scattershooting

Here are some recent stories you might’ve missed:

• “Fighting between legislative leaders imperils Texas border security bills” (Texas Tribune [free link])
• “Dan Patrick diagnosed with viral pneumonia as lawmakers ready for another possible session“ (Austin American-Statesman [free])
• “Supreme Court grapples with fights over public officials blocking constituents on social media” (CBS News [free])
• “Austin Law Department Argues City Council Can’t Stop Austin Police from Keeping Secret Files” (Austin Chronicle [free])
• “A public health response helped reduce fatal car wrecks in Texas. Can it do the same for gun deaths?” (Texas Tribune [free])
• “One City’s Surprising Tactic to Reduce Gun Violence: Solving More Nonfatal Shootings” (The Marshall Project [free])

Quotes of the Week

“I suggested to @GregAbbott_TX that if the Texas House fails to pass acceptable school choice legislation this fall, I would support him calling us back on February 5th, 2024.”
            —Tweet by Lt. Gov. Dan Patrick (R-Houston) last week. With many House members (but almost no Senate members) facing primary opponents next March, a February special session would cripple the campaigning and fundraising ability of many state representatives heading into the home stretch of their races.

“How do we write a narrow opinion that does no harm here?”
            —U.S. Supreme Court Associate Justice Neil Gorsuch, pondering out loud the challenge faced by that court in Culley v. Marshall, a civil asset forfeiture due process case argued before it last week.

“[H]earing that a Harris County judge has ordered Collin County to pay the Paxton prosecutors $300/hour for past and future invoices. Never mind that both the 5th COA and the Texas CCA ruled in our favor against these fees. Good luck with that.”
            —Tweet by Chris Hill, County Judge for Collin County, after the Harris County judge before whom the Paxton securities fraud prosecution is pending issued an order in favor of the special prosecutors, who have not been paid for any work on the case since 2016.

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Here’s a recap of the third week of the current special session (which must end no later than Tuesday, November 7) as well as some other useful information for you.

Senate Bill 22 rules

The Comptroller has a webpage dedicated to SB 22 (available HERE) that includes basic information about these grants, the text of the proposed rules and applicable statutes, and an FAQ section. The public comment period for the Comptroller’s proposed rules for administering those grants ends on November 12, 2023. Comments about potential changes to those rules can be submitted to Russell Gallahan, Manager, Local Government & Transparency, at [email protected]. And to help us keep track of who is concerned about what, please consider cc’ing Shannon on any emailed SB 22 comments.

Special session action

The House finally set off its collection of special session fireworks last week in the course of tackling the governor’s priority legislation on COVID-19 vaccines and border security issues. Neither of those topics are the primary reason for legislators’ presence in Austin right now, but with it looking increasingly unlikely that the House will deliver the votes needed to pass the governor’s preferred school choice vehicle, he may have to console himself with new laws on these other topics for now.

Of particular note, the House passed legislation last week to:

• increase penalties for human smuggling or operation of a stash house (SB 4 by Flores); and
• create a Penal Code crime for illegal entry from a foreign nation (HB 4 by Spiller).

The illegal entry crime bill that was debated and passed by the House (HB 4) is narrower in scope than the version sent to them by the Senate (SB 11 by Birdwell). That didn’t stop the fireworks, though, as tempers flared, racism accusations flew, and House Democrats dragged out debate until around 4:00 a.m. one night (or rather, morning). The numbers are the numbers, though, and both bills eventually passed along party lines. Senate Bill 4 (smuggling) now heads to the governor for his signature, while HB 4 (illegal entry) must go to the Senate for further consideration.

On a related note, this week the Senate will also take up SB 6 by Huffman, a $1.5 billion supplemental border security funding bill. As filed, that bill currently includes an additional $17 million for the Border Prosecution Unit (BPU) to help handle the new illegal entry charges that will result from the enactment of that new crime; however, that language is likely to be stripped out in committee to avoid a potential challenge that such an appropriation is “outside the call” of the special session because it isn’t something specifically pre-approved by the governor. Other special session bills on border wall funding, COVID-19 vaccines, and school choice are also making their way through the system, but we’ll leave coverage of those bills to your local fish wraps.

SART reports

Consider this your reminder that Local Government Code §351.257 (“Report”) requires all county sexual assault response teams (SARTs) to submit a biennial report to their commissioners court no later than December 1 of this odd-numbered year. If you are involved in your local SART and need help with that project, the Texas Association Against Sexual Assault (TAASA) has created a resource for guiding local official in that task. To access a PDF copy of TAASA’s “Framework for Writing the SART Biennial Report,” click HERE.

Elected Prosecutor Conference reminder

This year’s Elected Prosecutor Conference will be held at the Embassy Suites in Frisco and will include a Wednesday night reception on the field of the Dallas Cowboys’ indoor practice facility at The Star. The conference will be held November 29–December 1, 2023 (the week after Thanksgiving) and details about it are available HERE.

Note also that we will hold TDCAA’s Annual Business Meeting on Wednesday, November 29, 2023, at 5:00 p.m., at the Frisco Embassy Suites immediately upon adjournment of that day’s training session.

Scattershooting

Here are some recent stories you might’ve missed:

• “Profanities, Priorities, and Paxton: A Chaotic Day and Night in the Texas House” (The Texan [free link])
• “U.S. Supreme Court to consider Texas case that could allow abusers to have guns (Houston Chronicle [free])
• “Paxton’s Criminal Complaints on Impeachment Foes Face Long Odds” (Bloomberg Law [free])
• “Attorney General Ken Paxton’s securities fraud trial set for April 15” (Texas Tribune [free])

Quotes of the Week

“In a role where everyone must be treated equally under the law in every circumstance, political attacks on elected prosecutors are to be expected and are the new norm nationwide.”
            —Michael Kolenc, campaign spokesman for Harris County DA Kim Ogg, in response to news that some local Democratic precinct chairs are seeking to formally condemn her for investigating and/or prosecuting other local Democratic officials.

“We acknowledge that the Court of Criminal Appeals has concluded that ‘[t]he offices of county and district attorney … are in the judicial branch of government.’ State v. Stephens, 663 S.W.3d 45, 50 (Tex. Crim. App. 2022). This decision was and remains egregiously incorrect.”
            —Excerpt from footnote 2, AG Op. No. KP-0448 (October 23, 2023). The resolution of the question presented in that opinion has nothing to do with the Court of Criminal Appeals’s multiple Stephens opinions (which correctly struck down the Legislature’s unconstitutional attempts to grant OAG the statutory authority to independently prosecute certain crimes), but the current holder of that office is still clearly worked up about it. If this footnoted dicta/tantrum is any indication, you should expect to hear much more about it during the upcoming 2024 GOP primary campaign season.

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Happy Monday! Here’s a (late) recap of the second week of the current special session, plus important information on some upcoming events.

Senate Bill 22 rules

The Comptroller has a new webpage dedicated to SB 22 that you can access HERE. That page includes basic information about these grants, the text of the proposed rules and applicable statutes, and an FAQ section. The public comment period for the Comptroller’s proposed rules for administering those grants is now in effect and ends on November 12, 2023. Comments about potential changes to those rules can be submitted to Russell Gallahan, Manager, Local Government & Transparency, at [email protected].

Our friends at the Texas Association of Counties (TAC) have also posted a podcast on this topic in which TAC’s Skylor Hearn interviews Mr. Gallahan of the Comptroller’s Office. Interested listeners can stream that podcast online HERE or on your podcast app of choice (search for “Texas County Voice” Episode 43).

This new rural law enforcement grant program was a topic of much discussion at last week’s Fall Regional courses in Amarillo and Midland, so if you want to discuss this topic with your peers, consider attending one of our two remaining regional courses this Friday in Laredo or Tyler. (Online registration for these free CLE courses is closed but walk-ins will be accepted.)

Special session action

This week it is the House’s turn to tackle the governor’s priority legislation for the special session, including:

• Increasing penalties for human smuggling or operation of a stash house (SB 4 by Flores); and
• Creating a state crime for illegal entry from a foreign nation (SB 11 by Birdwell).

Senate Bill 4 (smuggling) was passed out of a House committee late last week and will be eligible for consideration by the full House later this week. Senate Bill 11 (illegal entry) was left pending in committee so that language more clearly limiting its application to actors actually seen coming across the southern border can be refined and adopted before the bill is sent to the full House for further consideration.

Other special session bills on border wall funding, COVID-19 vaccines, and school choice are also making their way through the system, but we’ll leave coverage of those bills to your local fish wraps.

Elected Prosecutor Conference

The holiday season will be upon us before you know it, and that means it is also almost time to gather for our annual Elected Prosecutor Conference! This year’s event will be held at the Embassy Suites in Frisco and will include a Wednesday night reception honoring the Texas Prosecutor Society’s Class of 2023 that will be held on the field of the Cowboy’s indoor practice facility field at The Star. The dates for this conference are November 29–December 1, 2023 (the week after Thanksgiving). For more details about the course or to register for it, click HERE.

Note also that we will hold TDCAA’s Annual Business Meeting on Wednesday, November 29, 2023, at 5:00 p.m., at the Frisco Embassy Suites immediately upon adjournment of that day’s training session.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas judges must retire at age 75. Voters could give them four more years on the bench.” (Houston Chronicle [free link])
• “Mexican Sinaloa Cartel’s Message to Members: Stop Making Fentanyl Or Die” (Wall Street Journal [free])
• “Nearly half of Houston likely voters identify crime as top issue in mayoral race, survey finds” (Houston Chronicle [free])
• “No longer above the fray, state supreme courts pulled into overtly political conflicts” (Route Fifty [free])
• “New Orleans District Attorney and mother forced out of SUV by thieves in Lower Garden District” (NOLA.com [free])

Quotes of the Week

“We have a lot of divisive issues we deal with on the House floor. Many of them are political; some of them are geographical. I just ask that you show respect to your colleagues over the Astros-Rangers games.”
            —Texas House Speaker Dade Phelan (R-Beaumont), before adjourning the House for the day (with tongue firmly planted in cheek) this past Monday.

“Let me be clear, while other members of @KenPaxtonTX trial team run for office—notably @TonyBuzbee2 running for Houston City Council and my friend @realmitchlittle who is running for the Texas House—the only thing I intend to run for is my toilet at 3 a.m. You’re welcome.”
            —Tweet by Dan Cogdell, defense counsel for AG Ken Paxton, posted after his co-counsel Mitch Little initiated a run for a Texas House seat currently held by a Republican member who voted to impeach their client.

[NOTE: Future Friday updates may be thrown off schedule due to the regional courses we are hosting this month; we apologize in advance for any delivery irregularities.]

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We are aware of the current state of everyone’s news feeds, but please resist the urge to stare directly into tomorrow’s eclipsed sun just so you can’t read anything else that will further lower your already low opinion of human nature right now. (This public service announcement is brought to you by The Human Fund.)

CPA proposes rules for Senate Bill 22 grants

The Comptroller of Public Accounts (CPA) has officially issued its proposed rules for administering SB 22 grants in 2024. The link to that section of the Texas Register can be found HERE (html version) or HERE (PDF version, starting on p. 84). They are identical to the version we shared in our special session preview.

For those wishing to submit comments about the proposed rules, please note that the comment period we were told of earlier was incorrect. The period to register comments is 30 days, not 60, which means these rules can be permanently adopted as soon as November 12, 2023. With that in mind, submitting any input sooner rather than later may be a wise course of action. Those comments can be submitted to Russell Gallahan, Manager, Local Government & Transparency, at [email protected]. (And if you do submit suggested changes, please consider cc’ing Shannon so we can keep track of everyone’s input at TDCAA World Headquarters.)

Fall Regionals

If you want to chat with your fellow elected prosecutors about the ins and outs of SB 22 (or other local issues), consider registering for one of our four Fall Regional Courses in Amarillo, Midland, Laredo, and Tyler that start next week. Registration is FREE for elected prosecutors and their first assistants who are TDCAA members, and attendees will receive 3.0 hours of CLE, including 1.0 hour of ethics credit.

More information about these regionals and how to register for them is available on our Training webpage. We hope to see many of you there!

Special session action

The State Senate made progress this week on the governor’s priority legislation for this month’s special session, including:

• Increasing penalties and imposing mandatory minimum sentences for human smuggling and operation of a stash house (SB 4 by Flores); and
• Creating a state crime for illegal entry from a foreign nation (SB 11 by Birdwell).

These bills largely track measures that advanced through the Senate during the regular session but failed to cross the finish line in the House. Now all eyes shift to that chamber next week to see whether these bills have better luck in this special session.

Note also that Governor Abbott announced yesterday that once his preferred school choice bill (SB 1 by Creighton) is passed and sent to him for his approval, he will add teacher pay raises to the call of this special session.

JCMH Summit

The 6th Annual Judicial Summit on Mental Health will be held October 18–20, 2023, at the Moody Gardens in Galveston, Texas. This is a hybrid event with the option to attend in-person or virtually. Registration is free, but in-person attendees are responsible for their own travel expenses. Those who cannot attend in person can register for the livestream option to view the Summit online. For more information, click HERE.

Memorial for Judge Womack

The Court of Criminal Appeals will host a memorial service honoring former CCA Judge Paul Womack, who passed away in 2022. Judge Womack was elected to the Court in 1997 and served until 2014. The service will be held on Monday, October 16, 2023, at 10:00 a.m. in the Court of Criminal Appeals Courtroom.

Scattershooting

Here are some recent stories you might’ve missed:

• “She’s a dedicated Harris County prosecutor. An ‘unsustainable’ caseload tests her limits.” (Houston Landing [free link])
• “Special session agenda inflames intraparty GOP voucher conflict while tapping into broad Republican consensus on border, immigration, COVID, and vaccines” (Texas Politics Project [free])
• “SCOTUS Is Deciding Whether to Hear a Challenge to Dallas County’s Bail System” (D Magazine [free])
• “Rep. Andrew Murr took on Ken Paxton and lost. He has no regrets.” (Texas Tribune [free])

Quotes of the Week

“What really pissed me off was that they stole my sushi. It looked like great sushi.”
            —U.S. Rep. Henry Cuellar (D-Laredo), after being carjacked outside his D.C. residence last week.

“Growing up on a ranch, I was taught to keep the manure on the outside of my boots. Mr. Paxton’s baseless threats about filing criminal complaints are horse manure, and they are filling his boots full.”
            —State Rep. Andrew Murr (R-Junction), in a written response to news that Attorney General Ken Paxton intends to file criminal doxing complaints against Murr and other House Impeachment Managers after a post-verdict release of evidence by the House included documents containing the (already public) address of Paxton’s Austin residence.

[NOTE: Future Friday updates may be thrown off schedule due to the regional courses we are hosting over the next two weeks;
we apologize in advance for any delivery irregularities.]

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This weekend confirmed that the Texas Longhorns may not be back, but the Texas Legislature is coming back. Welcome to a preview of the latter, along with some information on SB 22 grants.

Don’t call it a comeback

It seems like they been here for years, doesn’t it?

Last Thursday, Governor Abbott notified legislators that he would summon them back to Austin at 1:00 p.m. this afternoon (Monday, October 9, 2023) to convene a third called session to address the following topics:

• Creating education savings accounts
• Creating a criminal offense for illegal entry into the state from a foreign nation and authorizing peace officers to remove illegal immigrants from Texas
• Increasing penalties for human smuggling and operation of a stash house
• Providing more funding for construction of border barriers
• Addressing the Colony Ridge development in Liberty County (more on that at this free link if you are unfamiliar with that kerfuffle)
• Prohibiting COVID-19 vaccine mandates by private employers

From our seat on the outside looking in, the presence of other issues on the call of a special session that was supposed to be dedicated to school choice may not be a good sign for the fate of that specific policy change. Should it fail to pass, though, the addition of other topics gives GOP legislators a way to salvage something from this month’s work even if the main purpose of this special session stalls out (again).

Some of these non-education items on the governor’s to-do list might surprise those of you who do not closely follow politics in Austin, but the inclusion of immigration and border security topics will come as no surprise to those of you who have completed our Legislative Update course (IYKYK). And as we also noted in that course, the effects of criminal law changes arising from immigration- and border security-related events are not limited to border communities, so prepare yourselves accordingly.

As of this morning, more than 130 bills and joint resolutions have already been pre-filed for this special session. We will read and track those changes that might impact your work and try to keep you in the know as best we can as things transpire, with the caveat that stuff can happen at lightning speed during a special session.

Senate Bill 22 grants

For those of you in jurisdictions with a population of less than 300,000 people, we have received word that the proposed rules governing SB 22 grants to prosecutors, sheriffs, and constables will go “live” on Friday, October 13, 2023, and the 60-day public comment period will begin at that time. Links to those proposed rules are now available online and included in this chart:

Offices eligible for these grants may want to get a head start on reviewing them to decide whether you want to request any changes. We have already noted a potential problem with proposed §16.306 (Provisions Applicable to Fiscal Year 2024) because the initial language may (unintentionally?) exclude prosecutors from that back-fill provision, but if you notice other potential problems, please email Shannon with that information (Rob is unavailable this week).

Again: No public comments can be submitted until these rules are officially posted in the Texas Register this Friday, and the comment period remains open for 60 days after that date, so there is nothing urgent that must be done at this time.

Fall Regionals

If you want to network with your peers about any of the matters included in this update, we will be conducting four Fall Regional Courses later this month in Amarillo, Midland, Laredo, and Tyler. Topics for that training will include office finances (including SB 22 grants), professional responsibility, and other hot-button issues in your communities.

Registration for this training is FREE for elected prosecutors and their first assistants who are TDCAA members, and attendees will receive 3.0 hours of CLE, including 1.0 hour of ethics credit. More information about these regionals and how to register for them is available on our Training webpage. We hope to see many of you there!

Legislative Update CLEs and books

More than 2,650 people have registered for or completed our Legislative Update course! That’s a near-record turnout, but if you or your employees are not included in that number, don’t get left behind. We have completed our in-person trainings for the year, but you can still sign up for our online Legislative Update CLE by clicking THIS LINK. That course will remain available until the end of 2023, but we all know how the latest emergency can interrupt our best-laid plans, so sign up now and complete that self-paced course at your own speed—the end of the year will be here before you know it!

Scattershooting

Here are some recent stories you might’ve missed:

• “Ken Paxton to file criminal [doxing] complaints against Texas House impeachment managers” (Texas Tribune)
• “A House Divided: Paxton Impeachment Trial Widens Fissures in Texas GOP” (The Texan)
• “How Ken Paxton impeachment verdict impacts Greg Abbott’s push for school voucher-like plan” (Dallas Morning News)

Quotes Tweets of the Week

“The Speaker is calling on the Lt. Gov. to give up $3 million because of a group’s ties to white supremacy
The GOP Chairman is calling the Speaker a ‘drunk’
The AG is filing criminal complaints against House members
The governor seems MIA
Great day for a special session.”
            —Scott Braddock, editor of the Quorum Report, posted earlier today—and that was BEFORE Lieutenant Governor Patrick called on Speaker Phelan to resign. (Whew! We can barely keep up.)

“The Texas Court of Appeals [sic], consisting of an anonymous group of ‘Republicans,’ has just made it IMPOSSIBLE for @KenPaxtonTX to prosecute voter fraud. And he tells me that (of course) it’s all tied to George Soros.”
            —Glenn Beck, conservative news personality, posted a few weeks ago during the AG’s post-impeachment trial victory tour in which he called for the House Speaker and three CCA judges—whose names he could not initially remember—to be defeated in the 2024 GOP primaries in retaliation for their votes in the Stephens case (link includes video excerpt).

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Habemus res tax pactum!

Week in Review

If you thought you heard the low roll of thunder in the distance last night only to be disappointed by the lack of rain, blame the Legislature—that sound was probably emanating from Austin as the echoes of their chest-thumping and back-patting for finally agreeing to a property tax deal that could have been wrapped up six weeks ago. But hey, better late than never, right? And best of all, they did no harm to anything else.

After the long-awaited legislative compromise was sent to the governor yesterday afternoon (who publicly confirmed that he would sign it into law), both chambers adjourned sine die. What comes next is unclear. Many in Austin expect a special session on the governor’s pet issue of school choice to be called after school begins again in the fall, but whether that is held during or after the Attorney General’s September impeachment trial is unclear. There were also quite a few regular session bills the governor vetoed in a manner that some believe indicated his willingness to add those random issues to the call of a future special session after the legislature delivered a deal on property tax reform. But again, whether the resurrection of those bills would be in conjunction with a school choice special session or afterwards (if at all) is unknown.

For now, all we can say with certainty is that the legislature is no longer in session. Accordingly, these weekly legislative updates will shift gears to the monthly schedule we follow during normal interim periods. Look for our next email update at the end of July.

Impeachment news

Former Texas Supreme Court Justice Harriet O’Neill is joining the prosecution impeachment team.

Legislative Update CLEs and books

To pre-order your updated TDCAA code books (which will be shipped out starting in August), visit our Books webpage.

Our Legislative Update CLE course will be offered online in August 2023. While we work on that, those of you who prefer in-person training can register for a live Legislative Update presentation to be held on Tuesday, September 19, in Round Rock immediately prior to the start of our Annual Criminal & Civil Law Conference at the Kalahari Resort and Convention Center. To register online for the Legislative Update course—which requires a separate registration from the Annual Conference—click HERE.

TCFV training (free!)

Our friends at the Texas Council on Family Violence are offering a free online CLE (via Zoom) that will focus on legislation from the 88th Regular Session affecting prosecutors who handle family violence cases. The class will air on Friday, July 28, from 10:00 to 11:30 a.m., and viewers will qualify for 1.5 hours of CLE (including 0.5 hour of ethics). To tune in and watch this course by TCFV Legislative Director Krista Del Gallo, TCFV Public Policy Director Molly Voyles, and 46th Judicial DA Staley Heatly, register HERE.

Scattershooting

Here are some recent stories you might’ve missed:

• “Gov. Greg Abbott taps longtime aide Angela Colmenero as interim attorney general” (Texas Tribune)
• “Exclusive: Ken Paxton met with GOP activist his office was prosecuting, jeopardizing child abuse case” (Houston Chronicle)
• “New school safety laws seek to add armed guards, chaplains and mental health training. Here’s what you need to know.” (Texas Tribune)
• “Rockwall District Attorney Elected as VP of National Prosecutors’ Association (Blue Ribbon News)

Quotes of the Week

“The idea that just by virtue of living in [Texas], since they’re technically government employees, that research will be expressly forbidden—that’s a precedent we need to confront now, because it’s a catastrophically bad idea. … I just don’t even understand what threat they’re trying to solve.”
            —David Karpf, associate professor of media and public affairs at George Washington University, explaining why a coalition of university professors has sued to stop the implementation of SB 1893, which will ban TikTok from all state and local government devices (including public universities).

“It’s so hot two Hobbits just walked by and threw a ring into my yard.”
            —As seen today on Twitter and it made us laugh. Hope it makes you laugh too!

(Watch your inbox for our next interim update at the end of July.)

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Happy (belated) Independence Day! For those pessimists questioning the fate of this grand endeavor due to recent events, here’s a little reminder that it’s been questioned since the get-go.

Review, preview

No actual work has been done, but at least the two chambers appear to be talking to each other. Both are returning to work on Tuesday of next week. Let’s see how long this keeps up.

Impeachment news

Houston-based Republican activist Steve Hotze announced the formation of a new PAC that is seeking donations to lobby senators to acquit Paxton at his impeachment trial. A lawyer for the group also said the PAC would seek primary challengers for the House Republicans who voted to impeach the attorney general. (FYI, this same outfit has also stated they would seek and financially support primary challengers to the Republican Court of Criminal Appeals judges who ruled against the AG in the Stephens opinions.)

Also, the defense announced this week that their client would not testify at his impeachment trial.

Legislative Update CLEs and books

To pre-order your updated TDCAA code books (which will be shipped out starting in August), visit our Books webpage.

Our Legislative Update CLE course will be offered online in August 2023. While we work on that, those of you who prefer in-person training can register for a live Legislative Update presentation to be held on Tuesday, September 19, in Round Rock immediately prior to the start of our Annual Criminal & Civil Law Conference at the Kalahari Resort and Convention Center. To register online for the Legislative Update course—which requires a separate registration from the Annual Conference—click HERE.

We are also working on a date for an additional live course in San Antonio; stay tuned for more information once that is confirmed.

Civil Practitioner Boot Camp

TDCAA’s inaugural Civil Practitioner Boot Camp will be held July 24–26 in Waco. This course will apply our tried-and-true Prosecutor Trial Skills Course model to the everyday problems encountered by prosecutors who work in government representation. Click HERE for more information or to register someone for the course.

Scattershooting

Here are some recent stories you might’ve missed:

• “‘Outside’ report? Law firm that wrote it to defend Ken Paxton was paid $500K by Texas AG” (Austin American-Statesman)
• “The FBI has formed a national database to track and prevent ‘swatting’” (NBC News)
• “Texas courts struggle to resolve criminal appeals that got lost in Harris County for decades” (Texas Tribune)
• “‘I want them to haunt you’: Man who killed 23 at El Paso Walmart hears from victims’ families” (Texas Tribune)

Quotes of the Week

“What I see on this video is the execution by police of a 17-year-old kid, in France, in 2023, in broad daylight. … You get the feeling that our police are becoming like America’s.”
            —Marine Tondelier, leader of France’s Green Party, commenting upon the officer-involved shooting last week that triggered widespread rioting and disorder in that country.

“There’s part of me that wanted to make [the defendant] sit through the horror he carried out on people; selfishly, that’s the downside to the plea … but this is by far and away the best result for the victims.”
            —Michael Allen, 4^th Judicial DA (Colorado Springs, CO), in an interview conducted after the neo-Nazi defendant in the Club Q massacre—who falsely claimed to be non-binary to avoid additional hate crimes charges subjecting him to the federal death penalty—pled guilty to killing five people and injuring 17 others and was sentenced to five life sentences plus more than 2,000 years in prison.

“Megabillionaires …. We always had wealthy people, but nothing like these guys, all of whom have think tanks and foundations and lobbyists, and they’re all over the place and they’re keeping scorecards on the Republicans, which really—what’s the right word?—intimidates the Republicans from voting freely in the interests of their districts—and they will admit that off the record—because they don’t want to be targeted by these guys.”
            —State Rep. John Bryant (D-Dallas), in an interview with Texas Monthly in which he was asked to identify differences between today’s legislature and his first time in the House (1974–1982).

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