<updated at 4:30pm>

Six weeks remain. This is usually the point of a session when it feels there is too much time for all of the bills you don’t want to pass and not enough time for all the bills you do want to pass. The reality lies somewhere in between those two extremes, but as sine die approaches, reality often has little to do with events in Austin.

Preview

If you are wondering what legislators will be up to next week … join the crowd! We have hit the stage of a session at which notice is scant and getting worse. Everything beyond Tuesday’s schedule is hidden by the fog of legislative opacity, but we will do the best we can to keep you updated on the things that we think are important to you. Read on for details about those bills and for news of an amicus brief that might interest you.

Prosecutor accountability bills

Bills in this category that saw action this week include:

HB 799 by Cody Harris (denying prosecutors access to Brady information) was heard in the House Criminal Jurisprudence Committee and left pending. No prosecutors testified for or against the bill.

HB 3247 by Cain (felony offense of prosecutorial misconduct) was heard in the House Criminal Jurisprudence Committee; Chambers County DA Cheryl Henry and Dallas County Asst. CDA Ellyce Lindberg testified against the bill, which was also left pending in committee.

HB 3675 by Ortega (mandatory management training for certain prosecutors) was heard in House Judiciary & Civil Jurisprudence and left pending. No prosecutors testified for or against the bill.

Remember, there are no prohibitions on ex parte communications when it comes to legislating. (In fact, that’s the basis of this crazy process!) Therefore, when a bill is left pending in a committee, members of that committee are still taking input and deciding whether to support or oppose it and you are welcome to contact any of them.

Finances

SB 22 by Springer (rural sheriff and prosecutor funding) has been referred to the House County Affairs Committee. That committee already approved a different version that excludes prosecutors in favor of constables, and that bill—HB 1487 by Gerdes—is in the House Calendars Committee now.

SB 740 by Huffman (limiting urban prosecutors’ budget reductions) was referred to the House Committee on State Affairs.

SB 2310 by Hinojosa (pay parity bill) has been referred to the House Judiciary & Civil Jurisprudence Committee.

Remote proceedings

The legislature is once again considering giving the judiciary the post-pandemic authority to conduct remote proceedings in certain criminal matters. This was a big issue for some of you last session in the midst of the pandemic, and bills to empower judges to hold proceedings in person or remotely, as they saw fit, ultimately failed to pass due to opposition in the state senate. During the interim, the Texas Supreme Court adopted rules to grant them some of those powers in civil cases (see our Week 0 Update/Preview for more details about that), but they do not (yet) apply in criminal matters.

Enter HB 4622 by Leach (R-Plano), a substitute version of which was passed out of the House Criminal Jurisprudence Committee this week. That latest version—which can only be read HERE because it is not yet online—differs in several ways from the rules now applicable to civil proceedings. The substitute version also lays out new procedures for remote proceedings in juvenile matters (similar to HB 422 by VanDeaver) that grant lawyers/parties less say in having remote proceedings than would apply in criminal cases under the bill.

We heard many concerns about these ideas in 2021 but have heard nary a peep from any of you about this topic this session, so please read this new language that we linked above and let us (and your legislators) know if you have concerns about a judge forcing you into remote proceedings in the situations described by the latest version of that bill. The bill heads to the House Calendars Committee next.

Other action

Other bills that saw movement this week include:

HB 20 by Schaefer (Border Protection Unit) was heard in the House State Affairs Committee and left pending.

HB 180 by Moody (withdrawal of execution warrant by prosecutor) passed the House.

HB 213 by Moody (early parole for youthful felons) was approved by a committee and now heads to the Calendars Committee.

HB 513 by Metcalf (controlled substance causing death) passed the House.

HB 1730 by Schaefer (enhancements for repeated indecent exposures) passed the House.

HB 1910 by Anchia (forgery punishment presumption) passed the House.

HB 2864 by Raymond (vet court admission over prosecutor’s objection) was heard in the House Corrections Committee and left pending.

SB 950 by Kolkhorst (AG representation of counties sued in federal court) passed the Senate.

SB 2424 by Birdwell (offense of improper entry from a foreign nation) passed the Senate.

House Calendars Committee

Guess what? Even if you can’t make it to Austin to engage with legislators on bills that are important to you, you can still have a role in the process that determines which bills get considered on the House floor if you have a relationship with anyone on that committee. (Membership available HERE.) As you read about bills—good or bad—that get referred to that committee, let those committee members know your thoughts, even if it is from the comfort of your office or home.

Future floor debates

Other than HB 1760 by Hefner (carrying guns on college campuses) and HB 1589 by Cook (family violence enhancements), there aren’t many bills in our world scheduled for debate on the House floor on Monday or Tuesday, which are the only days posted as of now. However, that is sure the change as the week progresses, so keep an eye on your inbox if events merit.

Across the rotunda, bills eligible for debate on the Senate floor early next week include

SB 1269 by Hughes (expanded discovery from DFPS but limited use of evidence by DFPS), SB 1445 by Paxton (TCOLE sunset reauthorization), SB 1518 by King (terrorist offender registry), SB 1709 (sedition and EOCA), and SB 2275 by Hughes (limits SCOTX rulemaking authority in civil actions).

Future committee hearings

Here are just a few of the bills scheduled to be heard in committees next week. For the full agenda of each committee, click on the link to the committee itself.

Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, April 17

House Business & Industry – 8:30 a.m., Room E2.012

• HB 4507 by Moody authorizing price gouging actions by local prosecutors during emergencies

House Corrections – 11:30 a.m. or upon adjournment, E2.028

• HB 2129 by Burns authorizing theft diversion programs by merchants in lieu of arrest
• HB 3363 by Frank compensating counties for certain costs of confinement
• HB 3547 by Anchia limiting parolees’ access to hospitals as visitors
• HB 3603 by Anderson relating to restitution by parolees
• HB 3882 by Wilson authorizing veterans court participation over a prosecutor’s objection

Tuesday, April 18

House Criminal Jurisprudence (asset forfeiture subcommittee) – 8:00 a.m., E2.016

• HB 1874 by Noble awarding attorneys’ fees to defendants in unsuccessful forfeitures
• HB 2992 by Harrison creating an online searchable database for forfeiture proceedings
• HB 3758 by S. Thompson replacing civil asset forfeiture with criminal forfeiture

Senate Criminal Justice – 8:30 a.m. or upon adj., E2.012

• SB 435 by Middleton authorizing disclosure of crime scene evidence to victims’ families
• SB 726 by Kolkhorst increasing punishment for certain intoxication manslaughters
• SB 760 by Lamantia relating to blood drawn from a body during an inquest
• SB 840 by West increasing penalties for assaulting certain hospital personnel
• SB 1248 by Flores relating to smuggling of persons in parklands
• SB 1433 by Hinojosa relating to the emergency detention of persons with mental illness
• SB 1516 by King revising procedures governing writs of habeas corpus
• SB 1969 by Bettencourt increasing penalties for certain crimes near schools and daycares
• SB 2134 by Miles relating to telemedicine in the juvenile system
• SB 2479 by Zaffirini changing procedures relating to persons with mental illness or intellectual disability
• SB 2589 by Schwertner revising punishments for juvenile crimes committed at TJJD facilities
• SB 2593 by Springer creating a defense to prosecution for peace officers using less-lethal projectiles

House Select Committee on Community Safety – 9:00 a.m. or upon adj., E2.012

• (Click the link above for the 18 gun-related bills set for discussion in this committee)

House Criminal Jurisprudence (procedure subcommittee) – 10:30 a.m. or upon adj., E2.016

• HB 303 by Bernal relating to fines and jail confinement for Class Cs
• HB 322 by Cortez removing the presumption of incompetency following a prior finding
• HB 1017 by Sherman relating to family violence findings
• HB 1136 by Jetton relating to the period of sex offender registration for compelling prostitution
• HB 1178 by Rogers authorizing non-lawyer JPs to issue DWI blood search warrants
• HB 1230 by J. Gonzalez relating to the confidentiality of certain witness information
• HB 1232 by J. Gonzalez relating to authorizations for the use of tracking equipment
• HB 1921 by Dutton adjusting the fine amount discharged by jail layouts
• HB 1940 by Cook authorizing extraneous offense evidence in adult sex crime trials
• HB 2380 by Vasut adjusting the fine amount discharged by jail layouts
• HB 2961 by Cook relating to jury instructions on conspiracy
• HB 3005 by Flores expanding pseudonym protections to victims of certain offenses
• HB 3686 by J. Jones relating to expunctions after certain drug crime dismissals
• HB 3688 by J. Jones requiring written explanations by the prosecution for dismissals
• HB 3871 by Cook revising procedures governing writs of habeas corpus
• HB 4037 by Hayes requiring pretrial hearings to be held w/in 30 days of competency restoration
• HB 4671 by Hayes relating to the qualifications and summoning of grand jurors
• HB 5007 by Plesa mandating automatic expunction upon certain acquittals
• HB 5041 by Garcia authorizing non-prosecutors to be appointed as attorneys pro tem
• HB 5159 by Bhojani authorizing additional closing arguments following an Allen charge

Wednesday, April 19

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016 <NEW>

• HB 4504 by Moody relating to nonsubstantive revisions of the CCP
• HB 4657 by Oliverson authorizing the AG to represent certain county officials
• HB 4674 by Hayes relating to the qualifications, summoning, and pay of jurors
• HB 4946 by Flores prohibiting challenges to certain prospective jurors

House County Affairs – 10:30 a.m., E2.012 <NEW>

• SB 22 by Springer creating a grant program for rural sheriffs and prosecutors
• HB 1409 by Orr authorizing sex offender child safety zones in unincorporated areas
• HB 2186 by Y. Davis relating to photo ID for filing real property records
• HB 2560 by Metcalf authorizing sex offender child safety zones in unincorporated areas
• HB 3264 by Meza defining intoxication for the purposes of removal from office

Thursday, April 20

House Environmental Regulation – 10:30 a.m., E2.030 <NEW>

• HB 3913 by Morales Shaw relating to civil penalties recovered by local governments

<<NOTE: For the rest of the session, our advanced notice of committee hearings will be limited. Please visit our Legislative webpage for the latest committee postings.>>

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days to weigh in on the bills we’ve discussed this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Amicus brief opportunity

The Tarrant County Criminal DA’s Office intends to submit an amicus brief to the U.S. Supreme Court in support of an appeal of the Fifth Circuit’s decision in United States v. Rahimi, (— F.4th —, 2023 WL 23117796 (5th Cir. March 2, 2023)), overturning the federal statute prohibiting the possession of firearms by someone subject to a protective order. That office is supporting the appeal because the Rahimi opinion calls into question the validity of Texas laws prohibiting the possession of firearms by someone subject to a protective order. (Click HERE for a recent Texas Prosecutor journal article about that potential impact.)

If you would like to join their amicus brief or have questions about it, please email Asst. CDA Fredericka Sargent at [email protected] no later than Tuesday, April 18.

Scattershooting

Here are some recent stories you might’ve missed:

• “Lawmakers’ attempts to tighten drug laws could saddle crime labs with an unsustainable workload” (Texas Tribune)
• “Texas Senate approves ban on local governments using public funds on lobbyists” (Austin American-Statesman)
• “Expanded access to medical marijuana gains traction as Texas House advances bill” (Texas Tribune)
• “Don’t Be Fooled by the Legislature’s Tough Talk About Ken Paxton” (Texas Monthly)
• “With tweet about a pardon, Gov. Greg Abbott injects politics into Texas’ criminal justice system” (Texas Tribune)

Quotes of the Week

“[Abbott is] essentially treating them like his minions, like puppets. In my 35-plus years of doing parole work, I have never seen a governor make a request of a parole board like this. … He didn’t allege any kind of specific misconduct, he just engages in this puerile dog whistle. He is a former attorney general. He was a justice for the [Texas] Supreme Court. He should know better.”
            —Gary Cohen, an attorney who specializes in pardon applications, referring to the governor’s social media comments about the recent murder conviction of Daniel Perry in Austin.

“It’s shocking. It’s a little girl’s goat, not Pablo Escobar.”
            —Ryan Gordon, an animal welfare attorney in California, as quoted in an LA Times story about local fair officials who obtained a search warrant for the recovery of a 4-H goat kept by the little girl who raised it and then had the goat slaughtered to “teach [our] youth that they … have to abide by the rules.”

“[The] first third of #txlege is pomp and circumstance, second third of #txlege is working, and final third of #txlege is fighting. [In] other words, we are right on schedule.”
            —Tweet by Jason Sabo, Austin lobbyist and political strategist.

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We know today is a holiday for many offices, but the House worked on its historic $300 billion biennial state budget for almost 11 hours yesterday and didn’t finish until late, so we couldn’t get this out until now.

Preview

The legislature will take a three-day break this holiday weekend before hitting the ground running on Monday. Starting next week, it will be pedal-to-the-metal lawmaking until the clock runs out on Memorial Day.

And get a load of what they will discuss next week: a ban on prosecutors’ use of Brady lists, creating a felony offense of prosecutorial misconduct for not complying with Brady obligations, conducting criminal proceedings by videoconference, publicly telecasting all court proceedings, requiring management training for elected prosecutors in certain urban counties (upon pain of removal from office for non-compliance), a host of border-related bills designed to criminalize illegal entries, and more.

Prosecutor discipline bills on the march

On Tuesday, a revised version of HB 17 by Cook was voted out of the House Criminal Jurisprudence Committee by a 6–3 vote. This committee substitute of the bill makes certain non-prosecution policies a form of “official misconduct” for purposes of the removal statute, with exceptions for various legal or evidentiary reasons why a prosecution may not be possible or prudent. The bill also requires a regional presiding judge to appoint a visiting judge and visiting prosecutor for a removal action filed against a prosecutor. The text of the substitute version passed by the committee is available HERE to read for yourself. That bill now heads to the House Calendars Committee for possible scheduling for floor debate.

On Wednesday, the Senate passed SB 20 by Huffman (R-Houston) to similarly create a new definition of “official misconduct” for removal purposes, but it varies from HB 17 in both definition and scope. The engrossed version of the bill passed by the Senate is available HERE if you’d like to compare it to HB 17’s language. The Senate bill has not been referred to a House committee yet.

Later on that same Wednesday, HB 200 by Leach (creating a Prosecuting Attorneys Coordinating Council) was voted out of his own House Judiciary & Civil Jurisprudence Committee by a 5–3 party-line vote. The author promised a “substantial floor amendment” to come, but as the issue now stands, the language of HB 200 is incompatible with both HB 17 and SB 20. Chairman Leach publicly promised an open door and open mind for anyone who brings him suggestions, but he is obviously not open to the idea of there not being a state agency of some type to discipline prosecutors in some as-yet-unclear manner. This bill will also head to the House Calendars Committee (like HB 17), but there is no telling what HB 200 could turn into should it make it to the House floor.

If you have questions about any of these bills, please contact Rob.

State of the Judiciary Address

Texas Supreme Court Chief Justice Nathan Hecht delivered his State of the Judiciary Address on Wednesday, but in an unusual way. Rather than a live address before assembled legislators and state leaders, the address was given via online transmission while senators were passing bills on the Senate floor, representatives were adjourning from the floor and heading back to committee hearings, and the kids and grandkids of both were enjoying an Easter egg hunt at the Governor’s Mansion. Which is a shame, because the Chief had some important things they probably need to hear.

As we predicted in last week’s update, this online address was clearly an effort to drive home the need to give the courts more leeway to conduct remote proceedings. Other highlights of the Chief’s speech were calls for increased salaries for judges and their employees, increased collection of data from and about the judicial system, support for more bail reform, and a mention of various other bills. It was pretty standard fare until the finale, when the Chief voiced his concerns about political attacks directed at the judicial branch. It was really a quite stirring defense of the third branch of government, and a timely one considering not just current events at the national level, but also the overt politicization of issues in Texas like those surrounding the Stephens opinions. Sadly, though, we got the feeling we were one of the few watching his speech. It makes one wonder: If a tree falls in a legislative forest and there is no one there to hear it, does it make a difference?

If you are a law nerd like us and would like to watch or read a transcript of the Chief’s prepared remarks, you can find that information HERE.

Finances

Good news/bad news time.

Regarding elected prosecutor salaries, two bills are moving forward to enhance compensation. First, SB 2310 by Hinojosa (D-McAllen) to create a third longevity tier for elected prosecutor salaries was approved by its committee and voted out of the full Senate by a 31–0 vote this week. It now heads to the House, where Rep. Reggie Smith (R-Sherman) has the companion bill.

Second, HB 2734 by Murr (R-Junction) granting cross-credit for service time as an elected prosecutor or judge was approved unanimously by its committee and now heads to the House Calendars Committee for consideration for full floor debate in that chamber. And in tangentially-related news, HB 438 by Schofield (R-Katy) tying future judicial salary increases to the consumer price index was also approved by that same committee and now heads to Calendars as well.

On the flip side, a substitute version of HB 1487 by Gerdes (R-Smithville) was approved by the House County Affairs Committee to create a rural law enforcement grant program for sheriffs and constables in counties with a population below 275,000. Now, if you are thinking this sounds like SB 22 by Springer (R-Muenster), you’d be right, with one very important exception: The Senate bill includes sheriffs and prosecutors, while the House bill applies to sheriffs and constables. And the pot of money available to pay for the salary supplements provided by these bills is not big enough for all three groups to be included in the same bill. So, if you want your offices to benefit from this concept carried by Senator Springer at the behest of Lt. Gov. Patrick, now is the time to act in what could become a zero-sum game. Senate Bill 22 has passed the Senate and is awaiting referral to a House committee, while HB 1487 is on its way to the House Calendars Committee.

Contact Rob or Shannon with questions if you are at a loss for where to start.

House Calendars Committee

Speaking of the House Calendars Committee, we briefed you two weeks ago on how bills get from a substantive committee to the House floor through the House Calendars Committee (see “Floor fun” HERE). Now that the House has kicked HB 1 over to the Senate, this committee will assume outsized importance in determining what bills the full House will get to debate. You can have a role in that process from the comfort of your office or home if you have a good relationship with anyone on that committee. (Membership available HERE.)

As you read about bills—good or bad—that get referred to that committee, let those committee members know your thoughts, even if it is from the comfort of your office or home.

Other action

Things were too hectic this week to give you a breakdown of events by floor and committee, so we’ll just share here some random information about bills on our “Bills to Watch” tracking list (available HERE) or others of interest to you that saw movement this week:

HB 69 by Schaefer (innocent owner defense) and HB 3659 by Hefner (civil asset forfeiture reforms) passed out of committee and are headed to the House Calendars Committee.

HB 1130 by Spiller (prosecutor serving as attorney ad-litem for child) passed from committee and moves on to the House Calendars Committee.

SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm) passed the Senate.

SB 175 by Middleton (ban on taxpayer-funded lobbying) passed the Senate after the adoption of floor amendments that softened its prohibitions; that bill now moves to the House, where it has faced greater opposition in past sessions.

Future floor debates

Bills to be debated on the House floor next week include (in their docket order) HB 393 by Goldman (child support restitution to children of intox manslaughter victims), HB 362 by Oliverson (legalizing fentanyl testing strips), HB 914 by Hefner (tampering with temporary vehicle tags), HB 1088 by Ann Johnson (CA/DA representation of CSCDs in certain lawsuits), HB 178 by Murr (lab testing of fentanyl), HB 205 by Moody (scientific writs for punishment cases), and HB 1805 by Klick (increasing the potency and uses of low-THC cannabis).

Bills eligible for debate on the Senate floor next week include SB 947 by King (damaging critical infrastructure facilities), SB 950 by Kolkhorst (AG representation of counties in federal court), SB 1133 by Blanco (reimbursements for ag property damaged by border trespassers), SB 1427 by Flores (border crime enhancements), SB 1562 by Hancock (creating the offense of child grooming), SB 1709 by King (sedition), SB 1900 by Birdwell (relating to foreign terrorist organizations), SB 1927 by Hughes (turning the State Prosecuting Attorney into a trial prosecutor), and SB 2424 by Birdwell (offense of improper entry from a foreign nation).

Future committee hearings

Here are just a few of the bills scheduled to be heard in committees next week (so far). For the full agenda of each committee, click on the link to the committee itself. Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, April 10

House Corrections – 3:00 p.m. or upon adj., E2.036

• HB 1629 by Wu granting early parole eligibility for certain burglary offenders
• HB 2030 by Dutton restoring certain rights to convicted defendants
• HB 2300 by Allen expanding eligibility for orders of non-disclosure
• HB 2864 by Raymond mandating veterans court diversion absent “good cause”

Tuesday, April 11

Senate Criminal Justice – 1:30 p.m. or upon adj., E1.016

• SB 338 by Hinojosa barring the use hypnotically induced statements against a defendant
• SB 374 by Huffman granting TDCJ more time to dispose of parole violations
• SB 1401 by Zaffirini relating to certain rights of sexual assault victims
• SB 1551 by West relating to drivers who fail to provide identifying information to officers
• SB 1585 by Sparks relating to juvenile proceedings involving mental illness/disability
• SB 1653 by Huffman relating to promotion of prostitution involving a person under 18
• SB 1960 by Perry relating to the carrying of weapons by certain officials
• SB 1970 by Bettencourt authorizing seizure of vehicles used in racing and street takeovers
• SB 2101 by Miles specifying the means for providing notice to crime victims

House Criminal Jurisprudence – 10:30 a.m. or upon adj., E2.016

• HB 327 by S. Thompson expanding the defense of duress
• HB 799 by C. Harris prohibiting prosecutors from accessing or using certain personnel records for Brady purposes
• HB 1163 by Smith creating the offense of boating while intoxicated
• HB 1170 by Gervin-Hawkins imposing standards for indigent capital defense
• HB 1427 by Campos relating to the offense of harassment
• HB 2897 by Walle relating to theft of service
• HB 3025 by Vasut relating to interference with child custody
• HB 3247 by Cain creating a new felony offense for prosecutorial misconduct
• HB 4216 by C. Morales specifying the means for providing notice to crime victims
• HB 4518 by Cook authorizing a court to re-sentence a defendant to reduce a sentence
• HB 4622 by Leach authorizing certain criminal proceedings by videoconference
• HB 5277 by Bucy mandating internet notice and video telecasts of court proceedings

House Homeland Security & Public Safety – 2:00 p.m. or upon adjournment, E2.012

• HB 410 by S. Thompson requiring cite-and-release policies and barring certain arrests
• HB 2668 by A. Johnson relating to sexual assault victims’ rights
• HB 3451 by S. Thompson relating to human trafficking (omnibus bill)
• HB 3729 by Bonnen allowing disclosure of certain evidence to crime victims’ families
• HB 4382 by Guillen requiring CJIS reporting within five days (or loss of funds)
• HB 4966 by K. King relating to law enforcement agency personnel records

Wednesday, April 12

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016

• HB 3675 by Ortega mandating management training for certain urban elected prosecutors
• HB 2043 by Bowers creating an OCA sentencing and diversion database

House Juvenile Justice & Family Issues – 10:30 a.m. or upon adj., E2.030

• CPS investigation of self-reports of drug use by pregnant women
• HB 1086 by Hull requiring probable cause for certain CPS investigations
• HB 2715 by Hull criminalizing the tracking of a person’s property or motor vehicle
• HB 4062 by C. Harris relating to recordings of children during certain custody evaluations

House State Affairs – 10:30 a.m. or upon adj., JHR 140

• HB 20 by Schaefer creating a Border Protection Unit, an alien trespass crime, and more
• HB 30 by Moody revising the “dead suspect” limitation for open records access
• HB 65 by Spiller creating a criminal offense for illegal entry from another nation
• HB 800 by Guillen enhancing penalties for various border crimes
• HB 1600 by Hefner creating a criminal offense for illegal entry into Texas from Mexico
• HB 1610 by Leach requiring OAG to defend the constitutionality of certain state statutes
• HB 3012 by Lozano expanding the offense of smuggling of persons
• HB 3782 by Guillen establishing a Border Security Advisory Council

<<NOTE: For the rest of the session, our advanced notice of committee hearings will be limited. Please visit our Legislative webpage for the latest committee postings!>>

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days to weigh in on the bills we’ve discussed this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Survey request

You should have received an email from our friends at the Texas Association of Counties (TAC) with a link to their County Pulse survey seeking candid feedback to help TAC better serve Texas counties. The survey deadline is April 12, so look for the survey link in your email inbox and consider completing it before then.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas Senate OKs bill to rein in progressive prosecutors. Here’s what the bill could do.” (Austin American-Statesman)
• “Should West Texas change time zones? One researcher says it could make roads safer” (Texas Public Radio)
• “‘Mug Shot’: Donald Trump Didn’t Get One, but Where Does the Name Come From?” (Wall Street Journal)
• “TAC on the Lege—Week in Review for April 6, 2023” (Texas Association of Counties video)

Quotes of the Week

“I grow concerned that political divisions among us threaten the judicial independence essential to the rule of law. The left and right, and leaders in both the executive and legislative branches, are in agreement: Judges are not independent, and shouldn’t be. They should take sides—my side. … [This partisan pressure] destroys the rule of law essential to justice for all.”
            —Chief Justice Nathan Hecht, in his State of the Judiciary Address this week.

“It is unacceptable that rogue district attorneys and judges, primarily in big cities, are not following our laws. These bills send a clear message that their delinquent behavior will not be tolerated.”
            —Lt. Governor Dan Patrick (R-Houston), upon passage of SB 20 (prosecutor removal) by the Senate.

“We had a child molester on the floor for years, they helped him get reelected and did nothing to expel him. We’ve had members pee in each other’s chairs. We’ve had members illegally prescribe drugs to their cousin-mistress, and nothing happened. But talk on the floor without permission, and you’ll get expelled.”
            —State Rep. Gloria Johnson (D-Knoxville), one of three Tennessee House Democrats members threatened with expulsion from that chamber for taking over the chamber podium microphone and using a bullhorn to lead a protest of people in the House gallery chanting for gun reform in the wake of the recent Covenant School shooting in that state. (Maybe the Texas legislature isn’t so crazy after all?)

“It’s like cutting cows out of a herd. [The Legislature] will cut large cities out of the herd and make it to where it doesn’t affect the smaller cities. The next thing you know, they’re imposing that same type of legislation on small cities, and it’s too late—they’ve got the whole herd.”
            —David Rutledge, mayor of Bridge City in Orange County, on the pre-emption phenomenon being pushed by state leaders.

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<<last updated March 31, 2023 at 4:55pm>>

Yesterday was not only Opening Day of the Major League Baseball season, but it also marked the 80th day of this 140-day session. Which is more likely: The Rangers win more than 80 games this season, or the Astros lose more than 60 games?

Preview

Looking ahead, the full House will debate HB 1 by Bonnen (state budget) on Thursday, which will demand the attention of most House members in preparation for that marathon session of debates, amendments, points of order, and late night fun. Other topics on tap for discussion next week include a potential salary increase for certain long-serving elected prosecutors, prosecutor-initiated resentencing (“PIR”), DNA collection, dozens of gun bills, and more. Read on for details!

Prosecutor accountability update

Although there are many options to choose from, the legislature appears to be leaning toward making SB 20 or HB 17 its preferred solution to the alleged problem of “rogue DAs.” The language of the two bills differs in important ways, but the gist of both is to tweak the existing removal statutes by adding a definition of official misconduct that includes categorical non-enforcement of certain types of crimes.

The Senate State Affairs Committee heard SB 20 by Huffman (R-Houston) last week but left it pending. On Monday of this week, the committee approved a committee substitute version on an 8–2 party-line vote. The bill will be eligible for consideration by the full Senate anytime next week, where it is expected to pass. The latest text of that bill can be read HERE.

Across the rotunda, the House Criminal Jurisprudence Committee considered HB 17 by Cook (R-Mansfield) and then left it pending. The discussion among committee members was more detailed than in the Senate, which was not surprising considering that the bill author is vice-chair of the committee and both the committee chairman—Joe Moody (D-El Paso)—and committee member Jeff Leach (R-Plano) are joint authors of the bill. (In fact, there are now 52 joint or co-authors for HB 17, an indication of strong support if or when it comes to the House floor). It was encouraging to hear the serious discussions among the committee members, including thoughtful questions from Rep. Leach about not improperly regulating speech and musings from committee member Drew Darby (R-San Angelo) about the importance of honoring voters’ choices. The committee also received input from Galveston County CDA Jack Roady and Smith County 1^st Assistant CDA Chris Gatewood, both of whom thanked the members for their measured approach to the issue and testified “on” the bill (which means neither supporting or opposing it) to point out some remaining ambiguities or concerns that the committee might want to address.

As we go forward, it is likely that a new version of HB 17 will be hammered out by the committee members and then voted upon next week. Look for further HB 17 updates in this space then.

Separation of powers: How does it work?

In a special addendum sent out almost exactly one month ago (Update 7.1, available HERE), we reported on bills designed to wire around the decision by the Court of Criminal Appeals (CCA) in Stephens that found the AG’s unilateral prosecution of a criminal case to violate the state constitution’s separation of powers clause. The simple solution would be to amend the state constitution, but that requires 21 votes in the Senate and 100 votes in the House, and those votes are almost certainly unattainable for such fringe issues. Hence, some “creative” bill drafting has been proposed. Here is a status report for some of those bills.

The Senate State Affairs Committee approved a new version of SB 1927 by Hughes (R-Mineola) this week to move the authority of the CCA to appoint the State Prosecuting Attorney (SPA) from that court to the Texas Supreme Court (SCOTX). The committee substitute version of the bill also expands the authority of the SPA to prosecute certain crimes du jour (election, abortion, human trafficking) in the trial courts. As we discussed last week, that last bit is a constitutional dead-end; no one but locally-elected prosecutors have the constitutional authority to prosecute those cases. Period, full stop. But the committee voted the bill out 8–2 anyway. C’est la vie.

That committee also approved SB 1092 by Parker (R-Flower Mound) purporting to give SCOTX the ability to review and reverse any decision by the CCA involving constitutional law (such as in a future Stephens-type situation). That bill was heard last week—which we summarized for you in more detail in last week’s update—and was voted out 7–2 along party lines this week.

Another bill almost identical to SB 1092 is HB 2930 by Spiller (R-Jacksboro), which was heard in the House Judiciary and Civil Jurisprudence Committee on Wednesday. As with SB 1092, a representative of the AG’s Office testified “neutrally” on the bill but essentially stated that the change was needed because, well, it is all just too confusing having two courts, and he further assured the committee that the legislature has the power to take criminal authority away from the CCA (based on what we will charitably call a “convoluted reading” of the constitutional provisions at issue).

However, in a rare event at the capitol, representatives from both the prosecution and criminal defense bars testified in opposition to the bill. Galveston County CDA Jack Roady and Allen Place—a former state rep who now lobbies for the Texas Criminal Defense Lawyers Association (TCDLA)—pointed out that Article 5, Section 3 of the state constitution is crystal clear in excluding all criminal law matters from SCOTX’s jurisdiction. This framework has been in place since 1876 and there is an abundance of caselaw affirming this constitutional division of responsibilities. But, knowing legislators prefer to hear solutions rather than problems, Jack Roady offered the committee a simple one: If you disagree with the current system, then amend those provisions. The people of Texas enshrined that division of judicial labor in the state constitution, and the people of Texas can change it. But the legislature, alone, cannot. (The bill was left pending, by the way.)

Financial support for prosecutors

The Senate unanimously approved SB 22 by Springer (R-Muenster), the lieutenant governor’s rural law enforcement support initiative that will benefit those of you with criminal prosecution duties in counties/jurisdictions with populations below 300,000. It now moves on to the House for further consideration.

Interestingly, there is a similar bill in that chamber that was heard in the House County Affairs Committee this week, but with one important difference. House Bill 1487 by Gerdes (R-Smithville) proposes creating a rural law enforcement grant program, but instead of benefiting sheriffs and prosecutors, it benefits sheriffs and constables. And to do that, it would draw from the same pot of money in the proposed state budget bills. To date, the author of that bill has declined to add prosecutors to his bill, but we will keep you posted as that develops.

In other compensation-related news, the House Judiciary & Civil Jurisprudence Committee heard HB 2734 by Murr (salary cross-credits for judges and prosecutors) and left it pending. Thanks go out to 46^th Judicial DA Staley Heatly for coming to town and testifying on that important bill. And on Monday morning, the Senate Finance Committee will hear SB 2310 by Hinojosa (D-McAllen), the bill to restore pay parity with the judges. (Email Staley HERE if you want to support that bill in person—he could probably use some help!)

State of the Judiciary Address

Chief Justice Nathan Hecht will deliver his constitutionally-required State of the Judiciary Address at noon on April 5 via a live-stream telecast from the courtroom of the Texas Supreme Court. This curve ball of an announcement represents a change from the traditional pre-pandemic practice of personally giving the address before assembled legislators, but it is consistent with the governor’s recent practice of finding creative new ways to pitch his State of the State Addresses. We assume the Chief will also use this opportunity to tout the benefits of video testimony, something the Texas Judicial Council hopes the legislature will broaden this session.

To view the event live, tune in to the Texas Judicial Branch website next Wednesday at noon.

Floor action

The House started passing House bills this week, including HB 28 by Slawson (agg assault enhancement). The House also gave preliminary approval to HB 727 by Rose (no death penalty for severe mental illness), but the vote on second reading was close, so final consideration of that bill on third reading was postponed until Wednesday, April 5.

The Senate passed the following Senate measures this week: SB 1151 by Whitmire (10-percent surety bond fee) and SB 1318 by Huffman (bail reform clean-up). Those bills now head to the House.

Committee news

Not many House bill committee reports were finalized this week, but in the Senate, committees approved SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm), SB 129 by Springer (punishment ranges in child pornography cases), SB 386 by Hall (presumption in capital cases), SB 602 by Birdwell (felony arrest authority for U.S. border patrol agents), SB 950 by Kolkhorst (AG may represent counties in federal civil suits upon request), SB 1045 by Huffman (creation of a 15th court of appeals for civil appeals by or against the state), SB 1527 by Huffman (omnibus human trafficking and child grooming bill), and SB 1717 by Zaffirini (stalking).

Future floor debates

There isn’t much of note scheduled for the House floor next week other than the state budget and HB 727 (set for Wednesday, as mentioned above), but in the Senate, bills eligible for floor consideration next week include SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm), SB 48 by Zaffirini (standardized protective order forms), SB 175 by Middleton (ban on taxpayer-funded lobbying), SB 224 by Alvarado (catalytic converter theft), SB 950 by Kolkhorst (AG may representation of counties in federal court upon request), and SB 1133 by Blanco (reimbursements for ag property damaged by border trespassers).

Future committee hearings

Here are some bills scheduled to be heard in committees next week (so far). Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, April 3

Senate Finance – 10:00 a.m., Room E1.036

• SB 2310 by Hinojosa restoring pay parity between elected prosecutors and judges

Tuesday, April 4

Senate Criminal Justice – 8:30 a.m., E1.016 <<added>>

• SB 409 by Hinojosa clarifying certain victims’ rights to confer with prosecutors
• SB 435 by Middleton permitting disclosure of certain evidence to victims’ families
• SB 533 by Paxton relating to peace officer training on child fatalities
• SB 839 by West creating a witness protection unit of the Texas Rangers
• SB 1010 / SJR 51 by Parker relating to the denial of bail for certain crimes involving child victims
• SB 1179 by Perry relating to crimes at civil commitment facilities
• SB 1180 by Perry limiting civil actions by civilly committed offenders
• SB 1325 by Alvarado relating to notice provided to victims of family violence
• SB 1361 by Huffman criminalizing sexually explicit deep fake videos
• SB 1445 by Paxton, the TCOLE sunset reauthorization bill
• SB 1562 by Hancock creating a criminal offense of child grooming
• SB 1852 by Flores relating to active shooter training for peace officers
• SB 2085 by Whitmire creating a grant program for crime victim notification systems
• SB 2101 by Miles changing the manner of crime victim notification
• SB 2429 by Hancock relating to law enforcement training for missing children/persons

House Criminal Jurisprudence – 10:30 a.m. or upon adj., E2.016

• HB 909 by Moody authorizing prosecutor-initiated resentencing and commutation
• HB 948 by Dutton relating to bail for parole violations
• HB 1506 by Meyer extending the statute of limitations for abandoning/endangering a child
• HB 1731 by Jolanda Jones requiring personal bonds for certain misdemeanor offenders
• HB 1739 by Leach clarifying certain victims’ rights to confer with prosecutors
• HB 2019 by Neave Criado extending the statute of limitations for certain burglary offenses
• HB 2326 by Moody relating to blood specimens taken during an inquest
• HB 2700 by Guillen criminalizing AI-generated explicit visual imagery of children
• HB 2696 by Howard redefining consent for purposes of certain sexual assaults
• HB 3660 by Vasut creating a defense for certain trap-neuter-release programs
• HB 3956 by Smith relating to DNA sample collection after arrest

House Select Committee on Community Safety – 2:00 p.m. or upon adjournment, E2.012
(there are a dozen firearm-related bills posted for this hearing; click on the link above for details)

Wednesday, April 5

House Judiciary & Civil Jurisprudence – 8:00 a.m., Room E2.016 <<added>>

• HB 103 by Murr relating to a retired judge’s appointment as a visiting county court judge
• HB 1627 by Hernandez requiring implicit bias training for judges and lawyers
• HB 3249 by A. Johnson relating to the reporting of district court workloads
• HB 3474 by Leach, the omnibus court creation and court administration bill
• HB 4635 by Guillen creating a civil cause of action for racketeering and organized criminal activities
• HB 5010 by Schofield relating to the classification of a state bar grievance

House Licensing & Administrative Procedures – 8:00 a.m., Room E2.010 <<added>>

• HB 1601 by Wu authorizing and regulating poker clubs
• HB 2345 by Guillen changing gambling statutes to authorize poker rooms

House Juvenile Justice & Family Issues – 10:30 a.m., or upon adj., E2.030 <<added>>

• HB 491 by Wu changing the age of juvenile jurisdiction to 12-17 years of age
• HB 506 by Wu imposing certain limitations on restraint and clothing of juveniles in court
• HB 507 by Wu limiting the discretionary transfer of a juvenile to adult court
• HB 804 by Talarico relating to the confidentiality of juvenile records
• HB 1059 by Thierry prohibiting juvenile referrals or prosecutions for prostitution
• HB 4356 by Talarico replacing TJJD with the Office of Youth Safety and Rehabilitation

Bills to watch

Bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks, as well as a “Bills to Watch” track that includes these new additions above and others we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in April or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas Republicans, once allied with prosecutors, seek to rein them in” (Texas Tribune)
• “The Horrifying Epidemic of Teen-Age Fentanyl Deaths in a Texas County” (The New Yorker)
• “Texas House delays final vote on barring the death penalty for mentally ill defendants” (Texas Tribune)
• “As book bans ebb, the battle to criminally charge Texas librarians has started” (Houston Chronicle)
• “Texas legislators debate bill to remove gay sex ban from state law” (Dallas Morning News)

Quotes of the Week

“It’s scary to think about prosecuting librarians for providing books. That doesn’t sound like America.”
            — Bill Mendy Autry, president-elect of the Texas Association of School Library Administrators, as quoted in a Houston Chronicle story about attempts to criminally enforce laws against making books with sexual content available to children or teens.

“We had a couple times where people have overdosed in bathrooms. You never used to see people wheeled out on stretchers, and that’s happened three or four times this school year. The nurses have Narcan hanging right by the door in case somebody needs to come in and grab it real quick.”
            — An anonymous student at Lehman High School in Hays County, where nearly 40 percent of the fentanyl overdoses recorded by the sheriff’s office last year involved people younger than 18.

“Alright … you got your moment. I hope you enjoy it.”
            — State Rep. Jeff Leach (R-Plano), after having to read several prank names of fake witnesses registered to testify on a bill this week. (You can view the South Park-worthy video HERE, with the NSFW audio portion from 7:01:15 to 7:02:05. Kudos to Chairman Leach and his staff for managing it as well as possible.)

###

<*supplemented with new committee notices after original posting*>

Last Monday was the 70^th day of this 140-day legislative session, meaning we are now on our downhill slide to sine die when this session ends, for better or worse, on Memorial Day. As with most amusement park thrill rides, these final two months will be filled with twists and turns, thrills and chills, and occasional projectile vomiting. Please remain seated and keep your hands inside the ride at all times.

Looking ahead, topics on tap for discussion next week include (more) prosecutor removal bills, (more) asset forfeiture limitations, (more) fentanyl changes, human trafficking, stalking, and family violence changes. Read on if you dare!

The “lazy, overzealous prosecutor”

We have long joked that many bills that get filed at the legislature are a response to feelings that prosecutors either aren’t doing their jobs (lazy) or are overdoing their jobs (overzealous), and if only we could meld the two stereotypes together, we’d have a perfect “lazy, overzealous prosecutor” strawman for all occasions. Here is how that is bearing out this session.

In our previous update, we pointed out the many policy fronts on which legislators are seeking to stop overzealous local officials—including county attorneys and district attorneys—from over-regulating or overusing their regulatory authority in ways contrary to the wishes of the current ruling party. But another powerful impetus behind attacks on local prosecution this session stems from general feelings of impotence in the face of officials allegedly “not doing their jobs”—at least not in the manner desired by the complainants. This reaction has been most visible in the area of border security. Legislators have filed dozens of bills to creatively enforce immigration laws that the U.S. Supreme Court has said lie solely within the power of the federal government to administer. Justifications for pushing the constitutional envelope on this front usually come down to claims that the Feds have abdicated their duty to defend the border and that the State of Texas has a “responsibility” to fill that gap. However, from a federalism point of view, states have no such responsibility; instead, what they have is a desire to take up that job. As a result, you end up with two contrary policy positions that are causing a lot of friction this session: On one hand (and to paraphrase a meme), “the Constitution doesn’t care about your feelings.” On the other hand, feelings are very powerful drivers of politics and public policy.

With this border security dynamic in mind, turn now to the many bills filed this session to empower the AG (or anyone and everyone else) to prosecute crimes that local prosecutors allegedly won’t prosecute. Proponents of this position make arguments very similar to the border debate: The legislature has a “responsibility” to step in, the legislature has to “save” citizens from crime, the legislature has to “take matters into its own hands,” etc. But as with the immigration issue, the state constitution purposely limits the legislature’s authority to “color outside the lines” in order to achieve its desired results in this policy area. The question is: Does the legislature care?

We may have gotten a glimpse this week into the process that will yield that answer thanks to four bills heard in committee this week (all of which were left pending in committee).

Disciplining prosecutors: Round 1
On Wednesday, the House Judiciary and Civil Jurisprudence Committee heard HB 200 by Chairman Jeff Leach (R-Plano), one of the many bills filed to “do something” about prosecutors who “won’t do their job.” To do that, the bill re-creates the defunct Prosecuting Attorneys Coordinating Council that was abolished in 1985. Only two advocacy groups testified in favor of it. One was from Texas Right to Life, which supports the bill because it would allow for the punishment of prosecutors who speak out against prosecuting abortion-related offenses. (“Lazy” prosecutor? Check.) The other group testifying for the bill was the Combined Law Enforcement Associations of Texas (CLEAT, a cop union). It and other law enforcement unions who did not testify are in favor of the bill because a re-created council would give them a home for their complaints about prosecutors who prosecute too many police officers but not enough other people, especially drug and property crime offenders. (“Overzealous” and “lazy” prosecutor? Check, check.)

In opposition, Galveston County CDA Jack Roady and Smith County CDA Jacob Putman testified that any solution should be narrowly focused on public pronouncements by prosecutors that they will not enforce an otherwise valid criminal statute, and the state doesn’t need to recreate a failed state agency to do that. And in the category of strange bedfellows, the ACLU also testified against the bill and in support of prosecutorial discretion. The committee also heard in great detail all the ways that prosecutors are already held accountable (more on that HERE).

Disciplining prosecutors: Round 2
On Thursday, the Senate State Affairs Committee took testimony on SB 20 by Joan Huffman (R-Houston). Senator Huffman’s bill amends Local Gov’t Code Ch. 87 (removal of local officials) by adding a provision that an elected prosecutor “may not adopt or enforce a policy under which the prosecuting attorney refuses to prosecute a class or type of criminal offense for any reason other than to comply with an injunction, judgment, or order issued by a court,” nor may that elected prosecutor allow an assistant to do likewise. This language is from a new committee substitute version of the bill (“CSSB 20”) drafted with input from some prosecutors who have been in Austin working on this issue. (You can view that language HERE.) Testimony in support of the bill was similar to HB 200: CLEAT and Texas Right to Life (plus the Texas Alliance for Life, which prefers this version to HB 200) in favor, with the ACLU opposed. No prosecutors testified for or against CSSB 20.

SCOTX > CCA
Two other bills heard in Senate State Affairs yesterday could also impact prosecution in Texas. First up was SB 1092 by Parker (R-Flower Mound), which would grant the Texas Supreme Court (SCOTX) a veto over certain rulings made by the Court of Criminal Appeals (CCA) on the constitutionality of state statutes. Bills like this are a direct reaction to the Stephens opinion and an attempt to reverse it without amending the state constitution. That was made crystal clear in the layout of the bill and a question-and-answer colloquy between the author and Grant Dorfman, the Deputy First Assistant Attorney General called as a resource witness for “on” the bill. If you enjoy listening to an OAG lawyer (and former civil district court judge) testify that the criminal courts aren’t equipped or experienced enough to handle grand matters of constitutional interpretation that might impact more than one defendant, you can watch that 10-minute discussion HERE (17:47–27:00 mark). However, we did enjoy his confirmation that—as we predicted last month—the basis behind the supposed constitutionality of these anti-CCA bills is a patently misleading reading of the plain language of Article 5 of the state constitution. But hey, we’re just dumb ol’ criminal attorneys, what do we know about the constitution?!?

Another bill heard yesterday that relieves the CCA (and you) of some duties was SB 1927 by Hughes (R-Mineola) which would move the State Prosecuting Attorney (SPA) under the authority of SCOTX instead of the CCA and then grant that SPA (whom SCOTX would appoint) new powers to prosecute certain crimes in the trial courts. This idea is also a constitutional dead-end because Article 5, Section 21 reserves that criminal trial authority to locally elected county attorneys and district attorneys alone. But as was made clear by the abortion- and election-focused witnesses who testified for this bill, “something has to be done” about prosecutors who allegedly won’t prosecute those cases—and that end may justify whatever means are required to do it. (By the way: no judge or justice of either court appeared to testify on either of these bills, nor was the current SPA available to testify.)

Takeaways
So, what did we learn from these first two rounds of prosecutor accountability hearings?

First, although the “rogue DA” story line may be a hot topic in certain political circles, it appears to have garnered little interest from the public at large outside of some very issue-specific advocacy groups. Stated another way, it is more of a “primary election” issue than a “general election” issue. (But guess which issues often get the most attention in a state in which our leadership is determined by the primary results of one party?) We also saw some of our friends in law enforcement desperately trying to make what is generally a “lazy prosecutor” problem for the single-issue abortion and election primary voters into an “overzealous prosecutor” fix for their union members. So maybe they will succeed in finally creating that Frankenstein’s monster of a strawman we always mused about in sessions past.

That said, we also learned that many of you may be amenable to a targeted approach by the legislature that addresses public pronouncements and hard-and-fast policies in a manner that doesn’t create collateral damage in unrelated areas (as a new disciplinary council could do). We know legislators (especially in the House) are telling us that they are hearing from their local prosecutors, so keep them updated on your views as new language on these bills comes out (and don’t forget to clue us in on where you stand as well!) If you need more information about any of this, please contact Rob.

Financial support for rural sheriffs and prosecutors

OK, who’s ready for some good news?!? (This is what the kids call “a timeline cleanser.”)

The Senate Finance Committee considered and approved a committee substitute version of SB 22 by Springer (R-Muenster), the lieutenant governor’s rural law enforcement support initiative. The primary thrust of this bill is to help rural sheriffs, but this latest version will also benefit those of you with criminal prosecution duties in counties with populations below 300,000 by providing $100,000 to $275,000 per year in new grant funding for your personnel costs. (For details, read the bill linked above.)

This measure now heads to the Senate floor (perhaps as soon as next week) for approval by that chamber, after which it will be sent to the House for further action. Both chambers’ baseline budget bills include funding for these programs, but the Senate bill has no House sponsor yet, so its fate in that chamber is murky at this time.

Thanks go out to Galveston County CDA Jack Roady (TDCAA’s board chairman) and Smith County CDA Jacob Putman for testifying on this issue before the committee.

Floor action

The House won’t start passing House bills until next week, but the Senate passed the following Senate measures this past week: SB 740 by Huffman (limitation on reduction of certain urban prosecutors’ budgets), SB 1004 by Huffman (tampering with electronic monitors), and SJR 44 by Huffman (constitutional amendment on bail denial).

Committee news

In the House, committees gave preliminary approval to the following bills: HB 1737 by Leach (mandating orders of nondisclosure) and HB 1805 by Klick (expanding compassionate use of cannabis). These bills now head to the Calendars Committee for possible consideration by the full House.

Floor fun

“Calendars Committee”? What’s that, you ask? Now that bills are passing House and Senate committees, it’s important you know how this works if you want to continue to engage with the legislature about them. Allow us to provide as short a summary as possible so that you can act when needed.

In the upper chamber, bills that have a committee’s stamp of approval may be placed on the Senate Intent Calendar to indicate the author’s intent (duh) to bring the bill up for a vote on the floor. That floor consideration requires the approval of five-ninths of the senators present (or 18 of the 31 senators if all of them are on the floor—which just coincidentally is one fewer than the number of Republican senators). But even if a senator can clear that hurdle, there is another, larger one: The lieutenant governor, as presiding officer, has the sole authority to recognize a senator to bring up a bill. If the Lite Guv doesn’t like a bill, he can ignore the author’s request to bring up that bill and kill it—even if it has unanimous support. It’s like a veto that cannot be overridden. (And now you know one reason why our state’s lieutenant governor is so powerful.) This system is also why there is no way to know what bills will be heard when—it entirely up to the Lite Guv to call on senators for bills to debate on the floor.

Across the rotunda, the House rules for getting bills to the floor are less centralized in power but more orderly—perhaps the only time that last bit can be said about the more boisterous lower chamber. Rather than give the Speaker powers similar to those of the Lite Guv, the House uses a Calendars Committee to decide (without public testimony) which bills already approved by a committee get debated on the House floor and in what order the lucky winners get heard. This makes the Calendars Committee members increasingly powerful as the session goes on due to various deadlines that kick in about six weeks from now. Therefore, if you are interested in a House bill that has received committee approval and you know any members of the Calendars Committee, you can give them a ring and let them know your thoughts. Some bills will fly through House Calendars, while others will die a mysterious death with no fingerprints left behind.

For the curious, the members of the House Calendars Committee are: Burrows (R-Lubbock), chair; Rose (D-Dallas), vice-chair; Cook (R-Mansfield), Geren (R-Fort Worth), Hefner (R-Mt. Pleasant), Hernandez (D-Houston), A. Johnson (D-Houston), Patterson (R-Frisco), Slawson (R-Stephenville), Talarico (D-Round Rock, and E. Thompson (R-Pearland).

Future floor debates

With that background in mind, we can tell you that the first House bill calendar of the session has been set for next week and includes the following bills set for Wednesday, March 29: HB 727 by Rose (barring application of the death penalty to certain offenders with mental illness), and HB 28 by Slawson (aggravated assault enhancement). (Those are listed in their appearance on the calendar and the House will take them up in that order—along with a bunch of other measures you probably don’t care about.)

Meanwhile, bills that could be debated by the full Senate next week include: SB 22 by Springer (rural law enforcement grants), SB 175 by Middleton (ban on taxpayer-funded lobbying), and SB 1151 by Whitmire (10-percent surety bond fee).

Future committee hearings

Here are some bills scheduled to be heard in committees next week (so far). Click the committee’s name for the full agenda of bills and additional details, including hyperlinks to each bill. Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, March 27

House Select Committee on Youth Health and Safety – 2:30 p.m. or upon adjournment, E2.026

• HB 1977 by Morales Shaw creating a youth offender pretrial intervention program
• HB 2066 by Cook diverting foster youth from juvenile court
• HB 2687 by Leach limiting juvenile court jurisdiction over children aged 10-12

Tuesday, March 28

House Human Services – 8:00 a.m., E2.030

• HB 635 by Frank providing notice to alleged child abuse perpetrators

Senate Criminal Justice – 8:30 a.m., E1.016

• SB 49 by Zaffirini relating to crime victims compensation
• SB 385 by Hall relating to impoundment of vehicles used in street racing
• SB 386 by Hall creating a presumption for capital murder cases involving peace officer victims
• SB 806 by Paxton imposing duties for officers interacting with victims of sexual assault
• SB 991 by Hinojosa establishing a DPS crime lab online portal
• SB 1527 by Huffman relating to human trafficking; creating an offense of Child Grooming
• SB 1717 by Zaffirini relating to the offense of stalking and evidence admissible at trial
• SB 1727 by Schwertner, the TJJD sunset reauthorization bill
• SB 2000 by Whitmire allowing parochial schools to commission peace officers

House Corrections – 10:30 a.m. or upon adjournment, JHR 140

• HB 1449 by Collier restricting probation revocations for certain felony offenders
• HB 1705 by Allen granting early release credits to certain state jail felony offenders
• HB 2141 by J. Gonzalez authorizing notice of a probation violation by summons
• HB 3341 by A. Johnson authorizing orders of nondisclosure for young offenders

House Criminal Jurisprudence – 10:30 a.m., E2.016

• HB 6 by Goldman relating to fentanyl and other drug prosecutions and punishments
• HB 17 by Cook relating to the removal of prosecutors for official misconduct
• HB 227 by A. Johnson imposing a 10 percent fee requirement on surety bonds
• HB 382 by Collier legalizing consumable hemp containing marijuana or other drugs
• HB 1362 by Wu barring application of the death penalty to offenders younger than 21
• HB 1603 by Guillen authorizing pro tem appointments of non-prosecutors in Class Cs
• HB 1709 by Canales authorizing a reform of a final bail bond forfeiture judgment
• HB 1712 by Canales relating to including a magistrate’s name on signed orders
• HB 1769 by Meyer extending statutes of limitation for certain crimes against kids
• HB 1784 by Landgraf relating to protective order and bond condition violations
• HB 1896 by Guillen relating to intimate visual material
• HB 2055 by V. Jones repealing the criminal offense of homosexual conduct
• HB 2084 by Landgraf increasing the punishment for street racing
• HB 2189 by Julie Johnson increasing the punishment for assaulting hospital personnel
• HB 2306 by Hefner relating to voyeurism
• HB 3183 by Schatzline limiting the use of testimony from in-custody informants
• HB 3260 by Herrero authorizing statutory county courts to expunge records
• HB 3659 by Hefner increasing the state’s burden for (and reporting of) civil asset forfeitures and barring forfeiture of contraband in amounts less than $5,000
• HB 4061 by Schatzline barring sex offenders from victims’ residences
• HB 4517 by Moody limiting the use of some personal bonds

House Homeland Security & Public Safety – 2:00 p.m. or upon adjournment, E2.012

• HB 2883 by K. King authorizing DPS highway checkpoints along the New Mexico border
• HB 2899 by Plesa relating to impounding vehicles involved in street racing
• HB 4528 by Wilson letting DWI suspects keep their DLs after test refusals/failures
• HB 4598 by Leach relating to catalytic converter theft and resale
• HB 4642 by Guillen making “fentanyl poisoning” a manslaughter offense

Wednesday, March 29

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016 <*added*>

• HB 1130 by Spiller allowing CAs or DAs to appear as counsel adversely to the State in civil cases
• HB 2734 by Murr granting service credits to certain elected prosecutors and judges for salary purposes
• HB 2779 by Leach increasing the judicial benchmark salary
• HB 2930 by Spiller granting SCOTX a veto over certain constitutional rulings by the CCA
• HB 3504 by Leach relating to emergency mental health detentions
• HJR 107 by Price raising the mandatory retirement age for state judges

Bills to watch

Many bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks, as well as a “Bills to Watch” track that includes these new additions above and others we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Training scholarships

The Criminal Justice Section of the State Bar is offering a limited number of scholarships to our Annual Conference in September. The deadline for being considered is April 30. For more information or to apply, use this online form.

Scattershooting

Here are some recent stories you might’ve missed:

• “Republicans Try to Rein in ‘Rogue’ Progressive Prosecutors” (Pew Stateline)
• “Must-pass bills of Dan Patrick, Dade Phelan show Texas GOP has warring factions” (Dallas Morning News)
• “Opinion: The Legislature’s shameless and unconstitutional court-packing plan” (Austin American-Statesman)
• “Cornyn chides House GOP for targeting Manhattan DA over Trump’s porn star hush money case” (Dallas Morning News)
• “A sex trafficking case, a plea deal and a mother’s pain” (AP News)

Quotes of the Week

“You can only spread really good jelly on bread so thin.”
            — Bill Helwig, Yoakum County CDA (and current TDCAA president), as quoted in a Texas Tribune article describing the challenges of providing criminal defense services in rural Texas.

“The old joke was that the first thing the Legislature did when they met was to increase the penalties for everything. This session it’s a reality. Crime is a potent political issue, and both chambers want to look responsive.”
            — Brandon Rottinghaus, University of Houston political science professor, as quoted in the Dallas Morning News. (For what it’s worth, we count at least 120 enhancement bills filed this session, including several that impose mandatory minimum sentences for crimes, something that the Texas Legislature has rarely favored in the past.)

“I’m a firm believer, as a former criminal defense lawyer and judge, that we should not be messing with the discretion we grant prosecutors because they, for the most part, exercise that discretion through their deputies every single day on every single case. [But when] they just declare—through, in my opinion, a usurpation of the legislative power—the ability to ignore entire categories of crime, that’s not prosecutorial discretion. That’s just prosecutorial blanket nullification.”
            —Charles Stimson, senior legal fellow at the Heritage Foundation, as quoted in a Pew Stateline story covering responses by Republican legislatures around the country to progressive prosecutors’ policies or actions.

“It doesn’t make sense to me that the federal government can pass a law, then not enforce it, and then say, ‘Sorry, you can’t enforce a similar law.’ … We’ve got a different [U.S. Supreme] Court, we’ve got the best chance we’ve ever had to overturn that and give the states the ability to protect our citizens. Because if we can’t do it, then we leave our citizens unprotected in various ways.”
            —Texas Attorney General Ken Paxton (R-McKinney), testifying on border security-related bills before the Senate Border Security Committee and publicly laying out the theory justifying the enactment of new laws whose enforcement would violate current Supreme Court caselaw but create new legal vehicles to challenge that caselaw.

###

<*The original post has been updated with additional hearing notices for Wednesday and Thursday*>

Happy Saint Patrick’s Day! May you find a pot of gold at the end of your March Madness rainbow. (Offer not valid for Arizona or Virginia or A&M fans.)

A look back, a look ahead

After the dust from Friday’s deadline settled, the 88th Texas Legislature had filed a record 7,857 bills and joint resolutions. (The House alone filed 5,292 bills, the first time it has ever exceeded 5,000.) We are now tracking 1,752 pieces of legislation—22 percent of all bills and joint resolutions—far more than we have ever had to track before. After spending all week getting caught up, we’re too tired to draw any pithy conclusions from that excessive volume, so insert your own joke here.

Looking ahead, topics on tap for discussion next week include new funding for “rural” sheriffs and prosecutors, asset forfeiture changes, employment law actions for and against prosecutors, early parole for violent offenders, juvenile justice reforms, about two dozen gun-related bills, and more. Read on if you dare!

Financial support for some sheriffs and prosecutors

At the filing deadline last week, State Sen. Drew Springer (R-Muenster) filed SB 22, the lieutenant governor’s rural law enforcement support initiative. This bill will benefit many (but not all) of you and it was just posted for a committee review this upcoming Wednesday, so please read the bill (at that link) and the following summary carefully.

As we previously reported, the Senate has set aside $350 million during the next biennium to support law enforcement in rural Texas, including prosecution. To do that, the introduced version of the bill establishes a grant program run by the comptroller that is based on three population tiers: less than 10,000, 10,000 to less than 50,000, and 50,000 to less than 300,000. (Sorry Lubbock, you missed the cut by a hair!). Law enforcement grants would be awarded to counties in the amounts of $250,000/year for the smallest tier, $350,000/year for the middle tier, and $500,000/year for the largest tier. Those funds would then be used to establish minimum annual salaries of $75,000 for a sheriff, $45,000 for deputies who make traffic stops, and $40,000 for jailers. The bill also establishes a Rural District and County Attorney’s Office Salary Assistance Grant Program using the same three tiers, awarding a county $100,000, $175,000 or $275,000 per year (per tier, respectively) for assistant prosecutor and CA/DA investigator salaries.

Of course, many of you may note that a county-based model that works for sheriff’s departments and one-prosecutor counties might not work as smoothly for multi-prosecutor counties. But not to worry—we are working with the powers that be to address that complication. The important thing to note at this stage is that this legislation represents significant support for rural prosecutors, and the early reaction from some of the prosecutors who could benefit from this program is that it will make a real and lasting improvement in their ability to protect and serve their local communities.

We are excited to be working on this new project for you, and we fully expect this priority of the lieutenant governor to have smooth sailing through the Senate. However, it doesn’t hurt if those of you who might benefit from it and who have senators on the Finance Committee drop them a line to let them know of your support. (Committee membership available HERE.) We still can’t guarantee what this will look like when all is said and done, but if you have general questions about this bill, please contact Rob (after reading the bill for yourself, of course).

House committee approves judicial pay raise

On Thursday, the House Appropriations Committee met to consider and approve the work of the various subcommittees that hammered out the initial details of HB 1 (the state budget for FY2024–2025). The committee substitute version of that budget bill should be printed next week and scheduled for floor debate in early April, which is when the rest of the House members will get their crack at spending the public’s money.

Of particular note, HB 1 now includes a 5 percent per year raise to the benchmark pay of a district judge—from $140,000 to $147,000 in FY 2024 and to $154,350 in FY 2025. That also means an increase in longevity tiers as well (up to as much as $185,220 in FY 2025 for those with more than eight years of service). But don’t go spending that money yet—as we have previously reported in this space, the Senate Finance Committee may be less enthused about giving district judges a raise. However, if the recent House bump is still in HB 1 when it leaves the House and heads to the Senate, hope remains until the joint House–Senate conference committee hammers out their differences during the final week of the session and everyone learns the answer. (For those of you who have seen this play out fruitlessly in the past, we have some inspiration for you.)

Welcome to the crowd

As we noted during last summer and fall’s political campaigns, prosecution has become part of the national culture war battle being fought between those with binary worldviews colored by their red or blue lenses of choice. That explains the 34 new bills filed in the areas of “prosecutorial accountability” or “prosecutorial discretion” this session (33 of them by members of the same political party). Almost every one of these bills is original legislation that has not been filed in past sessions (see our previous point again), so we have created a separate track to follow them. To review that list and see where those bills stand as of this morning, CLICK HERE.

(Seriously, click it. Scroll through it. If you plan to engage with legislators on any topic under the sun this session, you need to be aware of this pre-emption undercurrent because it explains much of what is going on in Austin right now.)

Obviously, there is no way all of these bills will be considered this session, but we expect some of them to start moving soon. Remember, committee hearings in the Senate can be posted with only 24 hours’ notice, and sometimes they waive even that minimal warning. As a result, anyone hoping to engage with legislators on these bills must be familiar with them ahead of time. So … happy scrolling through that list!

Local officials defend public nuisance authority

On Wednesday, the House Judiciary & Civil Jurisprudence Committee took testimony on HB 1372 by Cody Harris (R-Palestine). The pre-emption bill is designed to strip local governments of the ability to use public nuisance suits in situations in which the offender was authorized to act by an ordinance, permit, etc., of a political subdivision, the state, or the feds. (An example of a suit that would be barred under the bill would be one against a drilling company that destroys a county’s water supply; because the company operates under a TCEQ permit, only TCEQ could seek a remedy—in that case, an administrative penalty.)

Witnesses in favor of the measure included big money groups such as the Texas Association of Business (TAB), the U.S. Chamber of Commerce (USCC), and Texans for Lawsuit Reform (TLR). Opposition to the bill from local governments focused on highlighting successful efforts by counties to recover damages from pharmaceutical companies in response to the opioid crisis (something that an assistant AG testified was critical to the success of the state’s own opioid recovery efforts). Effective testimony against HB 1372 was offered by McMullen County Attorney Kimberly Kreider-Dusek, Coryell County Attorney Brandon Belt, and Assistant Harris County Attorney Tiffany Bingham, who deserve your appreciation for taking the time to come to Austin and be heard on this important local issue.

Meanwhile, across the rotunda this week, a Senate Committee heard testimony on SB 175 by Middleton (R-Wallisville), the so-called “taxpayer-funded lobbying ban” designed to hamstring local officials who want to organize and oppose bills such as HB 1372 through their affiliate groups like the Texas Association of Counties. That Senate bill was approved by the Senate State Affairs Committee (as it always is in the Senate) and now heads to the Senate floor, where it will pass (as it always does in the Senate).

Floor action

The House should start passing House bills over to the Senate late next week. Meanwhile, the Senate passed the following bills this past week: SB 2 by Hughes (increased punishment for illegal voting), SB 402 by Whitmire (docket preference for homicide cases), SB 497 by Zaffirini (regulating kratom), and SB 1319 by Huffman (overdose mapping).

The Senate also passed SB 645 by Huffman (fentanyl crimes), but with two twists you should know about that were apparently requested by Governor Abbott’s office. First, his staff wanted death certificates to include a “fentanyl poisoning” notation any time fentanyl turns up in a post-mortem toxicology report—regardless of whether it was actually related the person’s cause of death. Fortunately, that language was fixed on the Senate floor to make any such notation more factually accurate. And second, the bill now amends Penal Code §19.02 (Murder) to add a manner and means for manufacturing or delivering fentanyl that results in death. But this proposed form of murder only applies to fentanyl, not heroin or xylazine or the next new way people will find to kill themselves via drug use in a few years. Also, the new murder crime requires no intent to kill (or even knowledge of the presence of fentanyl), so unless that gets fixed in the House, good luck seating a jury for a crime that carries a potential life sentence for a high school kid who unknowingly passed an unmarked pill to her now-dead friend. On the other hand, we also know what the legislature is threatening prosecutors with if you don’t strictly enforce laws like this, so … yeah, good luck with that.

Committee news

The House Corrections Committee approved HJR 11 and HB 182 by S. Thompson (judicial clemency to release parolees from supervision) and HB 392 by S. Thompson (earlier eligibility for orders of nondisclosure).

The House Criminal Jurisprudence Committee approved HB 28 by Slawson (agg assault enhancement), HB 180 by Moody (withdrawal of execution warrant), HB 393 by Goldman (child support restitution for intox manslaughter), HB 727 by Rose (exemptions certain mentally ill offenders from the death penalty), HB 1207 by Guillen (no statute of limitations for tampering with a corpse), and HB 1736 by Leach (limiting party liability for capital cases).

These bills now head to the Calendars Committee for possible consideration by the full House.

Future floor debates

We are entering the stage of session in which upcoming floor calendars can give us an inkling of what the two chambers will be debating and voting upon as a whole in the near future. The House hasn’t posted its first calendar yet, but bills that could be debated by the full Senate in the near future include: SB 175 by Middleton (ban on taxpayer-funded lobbying), SB 740 by Huffman (local election required to reduce funding for urban prosecutor offices), SB 1004 by Huffman (crime of tampering with electronic monitor), and SJR 44 by Huffman (constitutional amendment authorizing denial of bail in some cases).

Future committee hearings

On next Tuesday alone, we are tracking 51 bills that will be heard in eight different committees. Here are just a few of those bills, along with others scheduled to be heard in committees this week that have been posted to date. (Click the committee’s name for the full agenda of bills and additional details, including hyperlinks to each bill. Subsequent committee postings may be added later on the web version of this update; visit our website for the latest information.)

Monday, March 20

House Select Committee on Youth Health and Safety – 2:30 p.m. or upon adjournment, E2.026

• HB 16 by Moody relating to community-based juvenile services and diversion from TJJD
• HB 18 by Slawson creating a DTPA action for improper material on kids’ social media
• HB 213 by Moody granting retroactive early parole eligibility to certain capital and first-degree felons

Tuesday, March 21

House Human Services – 8:00 a.m., E2.030

• HB 1900 by Wu requiring notice of changes to DFPS investigation reports
• HB 2229 by Goodwin relating to notice for certain victims of family violence
• HB 2243 by Campos providing assistance to elderly applicants for protective orders

House Criminal Jurisprudence, Subcommittee on Asset Forfeiture – 8:00 a.m., E2.016

• HB 69 by Schaefer reversing and increasing the innocent owner defense burden
• HB 928 by Dutton requiring a final conviction for civil asset forfeitures
• HB 1442 by A. Johnson relating to street takeovers and reckless driving consequences

Senate Criminal Justice – 8:30 a.m., E1.016

• SB 37 by Zaffirini relating to hazing
• SB 129 by Springer increasing punishments for child pornography
• SB 224 by Alvarado increasing punishments for catalytic converter theft
• SB 432 by Middleton increasing punishments for catalytic converter theft
• SB 465 by Bettencourt increasing punishments for catalytic converter theft
• SB 467 by Bettencourt increasing punishments for motor fuel pump mischief
• SB 509 by Perry restricting the publication of mug shots
• SB 947 by P. King criminalizing offenses relating to critical infrastructure facilities
• SB 1151 by Whitmire mandating certain minimum fees on surety bonds
• SB 1173 by Huffman relating to a special presiding judge in Harris County

House Criminal Jurisprudence, Subcommittee on Criminal Procedure – 10:30 a.m., E2.016

• HB 311 by S. Thompson expanding the Michael Morton Act and creating an employment law cause of action related to disclosures under that act
• HB 352 by J. González relating to indigent applicants for a writ
• HB 399 by Collier relating to automatic orders of nondisclosure
• HB 412 by S. Thompson requiring corroboration of undercover drug officers
• HB 467 by Craddick expanding statutes of limitation for certain assaults
• HB 504 by Wu limiting no-knock entry by officers
• HB 519 by Wu requiring expunctions after grand jury no-bills
• HB 908 by Moody granting defense copies of children’s forensic interviews
• HB 946 by Dutton relating to spoliation of evidence in criminal cases
• HB 964 by Jetton requiring sex offender registration for improper educator–student relations
• HB 1104 by Cunningham relating to the return of a seized weapon in a criminal case

House Corrections – 10:30 a.m. or upon adjournment, JHR 140

• HB 168 by Moody relating to the confidentiality of certain execution information
• HB 1577 by Hull changing the eligibility for mandatory supervision of certain inmates
• HB 1742 by Leach imposing a mandatory minimum sentence for intoxication manslaughter and probation and parole for that offense
• HB 1811 by Hefner criminalizing the act of tampering with an electronic monitor
• HB 2984 by Herrero criminalizing the act of tampering with an electronic monitor
• HB 3549 by Anchia criminalizing the act of tampering with an electronic monitor

House Select Committee on Community Safety – 2:00 p.m. or upon adjournment, E2.012

• HB 165 by A. Johnson increasing the penalty for certain mass shootings
• HB 175 by Schaefer authorizing expunctions for old UCW deferred adjudications
• HB 1760 by Hefner relating to carrying weapons in certain prohibited places
• HB 2076 by Goodwin prohibiting certain family violence offenders from possessing firearms
• HB 2454 by Guillen criminalizing certain “straw purchases” of firearms

Wednesday, March 22

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016 <*added>

• HB 200 by Leach re-establishing the Prosecuting Attorneys Coordinating Council
• HB 1989 by Cook relating to clerk fees for copies of certain documents
• HB 2117 by Oliverson creating a financial cause of action against judges for certain bond decisions
• HB 2139 by Burrows revising the Code Construction Act to limit judicial interpretation
• HB 3166 by Murr creating a 15th Court of Appeals with statewide jurisdiction over certain civil cases involving the State
• HJR 39 by Vasut repealing the mandatory judicial retirement age

Senate Finance – 9:00 a.m., E1.036

• SB 22 by Springer establishing a rural sheriff and prosecutor grant program

House State Affairs – 10:30 a.m. or upon adj., JHR 140

• HB 613 by Vasut relating to charges imposed by a governmental body under the PIA
• HB 904 by Moody re-defining gambling for fantasy sports purposes
• HB 1942 and HJR 102 by Leach legalizing and regulating sports wagering
• HB 2142 by Guillen changing various gambling definitions
• HB 2309 by Hunter relating to the availability of certain DOBs under the PIA
• HB 2843 by Kuempel legalizing and regulating casino gaming and sports wagering

House Juvenile Justice & Family Issues – 10:30 a.m. or upon adj., E2.030 <*added*>

• HB 422 by VanDeaver authorizing remote proceedings in juvenile cases
• HB 1310 by Gamez requiring juvenile detention hearings every two days
• HB 1654 by Cook relating to a determinate sentence for organized criminal activity
• HB 2096 by Manuel relating to personal bonds in certain family violence cases
• HB 2272 by Swanson requiring a DA to represent DFPS if a CA opts out

Thursday, March 23

Senate State Affairs – 9:00 a.m., Senate Chamber <*added*>

• SB 12 by Hughes restricting certain sexually oriented performances on public property; creating a criminal offense
• SB 20 by Huffman relating to the removal of prosecutors for failing to enforce criminal laws
• SB 21 by Huffman relating to sanctions for judges who fail to follow certain laws
• SB 23 by Huffman imposing a minimum sentence for certain offenses involving firearms

New bills to watch

This will be our last entry under this heading (and not a moment too soon; reviewing 7,000+ bills is exhausting!). Here are some new bills filed before the deadline that might pique your interest:

• HJR 163 by Harrison authorizing recall elections of local officials
• SB 1906 by Sparks / HB 4487 by Smith relating to student loan repayment for prosecutors and public defenders
• SB 1908 by Bettencourt empowering prosecutors to pursue election crimes outside their home counties
• SB 1927 by Hughes empowering the State Prosecuting Attorney to prosecute certain crimes in trial courts throughout the state
• SB 1968 by Bettencourt requiring prosecutors to report discretionary decisions to OAG

Many bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks, as well as a “Bills to Watch” track that includes these new additions above and others we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Training scholarships

The Criminal Justice Section of the State Bar is offering a limited number of scholarships to our Annual Conference in September. The deadline for being considered is April 30. For more information or to apply, use this online form.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas House Prioritizes Removing Rogue Prosecutors” (Texas Scorecard)
• “Georgia Republicans push for prosecutorial oversight amid Trump election probe” (Washington Post)
• “Lawmakers want to change Texas constitution to tighten bail restrictions” (Houston Public Media)
• “As Texas pushes to ban delta-8, it’s squaring off with the drug’s biggest proponents: the VFW” (Houston Chronicle)
• “Red States Are Fighting Their Blue Cities” (FiveThirtyEight)

Quotes of the Week

“Whose job was it to do a simple Google search?”
            —Shakee Merritt, Newark (NJ) resident, in a CBS News interview after the city admitted that it had been duped into entering a “sister cities” agreement with the non-existent Asian country of “Kailasa.”

“It’s a wildfire. It’s a huge boom and everybody in the industry that studies these things saw it coming.”
            —Matthew McMurray, assistant professor at Miami (Ohio) University’s Institute for Responsible Gaming, Lotteries and Sport, referring to the documented rise of gambling addiction (especially among young men) in states that have legalized online sports betting.

“This is as close as Paxton will come to a political sanction from his party for his actions. … The party is not going to directly say that they think that he’s done wrong, but they certainly don’t want to be on the hook to foot the bill. … The ambiguity about whether there’s any kind of lawbreaking going on here is frustrating for a lot of members who then don’t want to pay for what Paxton is doing in office.”
            —Brandon Rottinghaus, political science professor at the University of Houston, as quoted in a Houston Chronicle article on the Legislature’s hesitation to approve the settlement of the whistleblower lawsuit pending against the Attorney General’s Office.

“For progressive prosecutors this is a politically self-inflicted wound. When you … stand up on the tallest building in your jurisdiction and holler at the legislature that you are not going to follow their law, somebody is going to pay attention. When you do something like that you are basically waving a red cape in front of a bull. … [But advocates for pre-emption] would be better off letting voters and reality make a correction here in the long run.”
            —Thomas Hogan, Chester County (PA) District Attorney, as quoted in a recent CNN story about crime becoming the latest front in the national culture wars.

“This is a straightforward attack on a system we’ve had in place for hundreds of years: local elections of local prosecutors. If you go back into the mid-2010s, a lot of the preemption was driven by business—it had to do with workplace equity, living wage, family leave, medical leave, and maybe some pollution-oriented regulations. This stuff is all ideological now: crime, elections, schools.”
            —Richard Briffault, a Columbia Law School professor who studies state preemption of local policies, as quoted in that same CNN article.

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(Note: This has been updated after its original posting with additional committee notices)

The bill filing deadline portcullis slams down at 6:00 p.m. tonight, leaving many unfiled bill ideas on the outside looking in. Better luck next time for those who couldn’t find a bill sponsor.

A look ahead

This week was mostly about bill filing. The 88^th Legislature filed 1,883 bills the first four days of this week, and it is on pace to set the record for the most bills ever filed during a session. That means next week will be all about bill reading—not just because of the sheer volume of bills filed the past few days, but also because that volume has apparently crippled our bill tracking system, which keeps crashing. Good times.

Anyhow … having passed the 60-day mark of the regular session today, legislators are free to start voting non-emergency matters off their respective floors. So, while many of you are enjoying yourselves on a well-deserved spring break next week, things at the capitol will kick into a higher gear as legislative committees meet to discuss and debate fentanyl test strips, medical marijuana, prosecutor funding, taxpayer-funded lobbying, capital punishment, raising the age of juvenile jurisdiction, human trafficking, expunctions, and more! Read along for more details.

Doing things for you

At some point today, SB 22 by Springer (R-Muenster) should be filed to create a funding mechanism for financial assistance to sheriffs and prosecutors in rural counties. The low bill number identifies this as a priority for Lt. Governor Patrick that could substantially ease the post-COVID personnel challenges many prosecutor offices are experiencing. It also has a bi-partisan list of 16 other senators already signed on as co-authors, so it’s close to a lead pipe cinch to pass the Senate. (But remember, it takes two [chambers] to tango!) We will have more to say about this bill next week, but if you need some good* news heading into the weekend, SB 22 may be your ticket. (*Offer not valid for readers in the state’s 20 or so largest counties.)

For those in urban counties of more than a million people, SB 740 by Huffman (to include prosecutors in the law that restricts urban counties’ ability to reduce law enforcement funding) will be heard in the Senate Finance Committee on Monday.

And for those of you in counties between “rural” and “urban” … <crickets chirping> (LOL) Sorry! But all is not lost. Bills to restore pay parity between elected felony prosecutors and judges have been filed today in both chambers that could help elected felony prosecutors regardless of location. House Bill 5002 by Smith (R-Sherman) and its identical companion, SB 2310 by Hinojosa (D-McAllen), would provide a new third salary tier for elected prosecutors with more than 12 years in office, similar to the arrangement judges received when the current salary structure was enacted in 2019.

We’ll have a lot more to say about these funding measures next week and later in the session, but for now, be sure to bookmark them and follow their process from home.

Doing things to you

OK, enough “good” news. We now return to our regularly scheduled programming. <Insert sad trombone sound here.>

Guess what? That’s right—more “prosecutor accountability”-type bills have been filed over the past week. (Shocker!) By our rough count, 32 (!) bills have now been filed on this topic through yesterday, and more are probably being filed today. It will take us time to sift through the newest ones, so look for a more thorough review of them from us next week.

That said, we can leave you with this teaser: Judging from the low bill numbers, the Speaker’s priority bill on this topic will probably be either HB 17 by Cook (R-Mansfield) or HB 200 by Leach (R-Plano)—the latter being a duplicate refile (albeit with a snazzier bill number) of the prosecutor disciplinary council language we’ve discussed before—and the Lite Guv’s priority bill on this topic will be SB 20 by Huffman (R-Houston). Therefore, if you only have time during your impending spring break vacation to read three bills from this category over the weekend, make it those. The rest of the chaff can wait. (And trust us, there is a LOT more chaff than wheat on this topic this session.)

Floor action

Most people in the capitol were focusing on the impending bill filing deadline this week, but we did see the first bills voted off the floor of a chamber. Specifically, the Senate passed SB 372 by Huffman (criminalizing the unauthorized disclosure of draft judicial opinions) and SB 728 by Huffman (including juvenile information in federal firearm background checks). Those bills will now be delivered to the House, where they will sit on some clerk’s desk for the next six weeks while the House focuses on House bills.

Committee news

The following House bills were reported favorably by committees and now head to the House Calendars Committee for possible consideration by the full House: HB 270 by S. Thompson (expanding postconviction DNA testing), HB 286 by S. Thompson (expanding subsequent writs), HB 381 by S. Thompson (pretrial jury determination of intellectual disability in capital cases), and HB 611 by Capriglione (new doxing crime).

The House Criminal Jurisprudence Committee gave preliminary approval to: HB 178 by Murr (fentanyl testing by crime labs), HB 188 by Moody (jury instructions in capital cases), HB 218 by Moody (reducing marijuana penalties), HB 469 by Smith (jury sequestration), and HB 513 by Metcalf (manufacture or delivery of drugs that cause death).

The Senate Criminal Justice Committee gave preliminary approval to: SB 402 by Whitmire (docket preference for murder cases), SB 645 by Huffman (fentanyl punishments), SB 1004 by Huffman (tampering with electronic monitor), SB 1319 (overdose mapping), and SJR 44 (denial of bail).

To read any bill, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format in which you wish to read it (PDF, html, or Word).

Future committee hearings

Committees start hitting on all cylinders this week by hearing hundreds of bills. Here are just a few of them (click the committee’s name for the full agenda and additional details, including hyperlinks to the bills’ webpages):

Monday, March 13

House Public Health – 9:00 a.m., Room JHR 120

• HB 362 by Oliverson legalizing fentanyl testing strips
• HB 861 by Lozano legalizing the sale of kratom to those 18 or older
• HB 1805 by Klick increasing the potency of “low-THC” cannabis and expanding its uses

Senate Finance – 10:00 a.m., E1.036

• SB 740 by Huffman limiting urban counties’ ability to reduce prosecutor office funding

Senate State Affairs – 10:30 a.m., Senate Chamber

• SB 175 by Middleton barring the use of public funds for lobbying activities

House Select Committee on Youth Health and Safety – 2:30 p.m. or upon adjournment, E2.026

• HB 828 by Dutton raising the age of criminal responsibility to 18 years old

Tuesday, March 14

House Criminal Jurisprudence – 10:30 a.m., E2.016

• HB 28 by Slawson increasing the punishment range for certain aggravated assaults
• HB 914 by Hefner relating to tampering with temporary vehicle tags
• HB 937 by Dutton relating to inmate legal services
• HB 1004 by Shaheen relating to human trafficking and compelling prostitution
• HB 1088 by A. Johnson relating to the legal representation of CSCDs by OAG
• HB 1203 by Ordaz criminalizing the criminally negligent abuse of non-livestock animals
• HB 1207 by Guillen eliminating the statute of limitations for tampering with a body
• HB 1300 by Geren reducing penalties for tampering with certain evidence
• HB 1347 by Dutton requiring new allegations in a resisting arrest charging instrument
• HB 1385 by Moody relating to criminal history record access by pretrial services
• HB 1394 by Moody expanding eligibility for drug court participation in gun cases
• HB 1528 by Smith relating to magistration, appointment of counsel, etc.
• HB 1589 by Cook expanding the scope of FV findings for enhancement purposes
• HB 1715 by Canales authorizing expunctions of certain deferred adjudications
• HB 1730 by Schaefer increasing punishments for repeat indecent exposure convictions
• HB 1736 by Leach limiting death penalty exposure for party actors and retroactively reviewing death row cases for possible clemency
• HB 1737 by Leach granting automatic orders of non-disclosure for certain deferred adjudications
• HB 1762 by M. Gonzalez expanding the “Romeo and Juliet” defense to same-sex cases
• HB 1907 by Anchia requiring prosecutors to expunge records upon successful completion of certain specialty court or pretrial diversion programs
• HB 1910 by Anchia creating a presumption in forgery cases

House Homeland Security & Public Safety – 2:00 p.m. or upon adjournment, E2.012

• HB 347 by Jarvis Johnson requiring post-arrest child placement policies for all agencies that employ peace officers
• HB 767 by Harless relating to entering stalking bond conditions into TCIC

Wednesday, March 15

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016

• HB 1741 by Leach criminalizing the unauthorized disclosure of draft judicial opinions
• HB 2014 by Leach increasing jury service pay
• HB 2015 by Leach limiting certain exemptions from jury service
• HB 1372 by C. Harris relating to the tort of public nuisance

Thursday, March 16

House Corrections – 8:00 a.m., E2.014 (*added after original posting)

• HB 93 by Swanson limiting probation for repeat DWI felony offenses
• HB 252 by A. Johnson expanding nondisclosure eligibility to certain specialty courts
• HB 361 by S. Thompson mandating probation for certain defendants with children
• HB 1227 by Metcalf limiting probation for child pornography offenses

New bills to watch

We can’t even begin to tell you about all the … “interesting” … bills filed over the past week as the filing deadline hits, but here are a few we haven’t already mentioned above that might deserve your attention:

• HB 3474 by Leach, this session’s omnibus judicial branch legislation
• HB 3659 by Hefner limiting the use of civil asset forfeiture
• HB 3675 by Ortega requiring management training for certain elected prosecutors
• HB 3677 by Jolanda Jones creating the offense of prosecutorial misconduct
• HB 3786 by S. Thompson authorizing victims’ enforcement of crime victims’ rights
• HB 4635 by Guillen / SB 1788 by Flores relating to organized crime and racketeering

Many other bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions above as well as other bills we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Scattershooting

Here are some recent stories you might’ve missed:

• “As Texas pushes to ban delta-8, it’s squaring off with the drug’s biggest proponents: the VFW” (Houston Chronicle)
• “Texas law enforcement agencies hope lawmakers will solve state worker shortages” (Austin American-Statesman)
• “Local agency preventing credit card skimming across Texas” (CBS 19 News – Tyler)
• “Federal judge says controversial Missouri gun law violates US Constitution” (CNN) (Note: Texas passed a similar law in 2021, now found in Penal Code §1.10)
• “Bill would allow district clerks to carry handguns to work” (Spectrum News)
• “Murder cases could be in jeopardy as Dallas police review 450 cases for missing evidence” (Dallas Morning News)

Quotes of the Week

“I think what we’re seeing is a backlash to industry overreach, a backlash to an industry that is targeting kids with child-friendly products, an industry that is advertising everywhere, just like Big Tobacco did. I think people in Oklahoma were really sick of that.”
            —Luke Niforatos, executive vice president at Smart Approaches to Marijuana (SAM), which successfully opposed a recent marijuana legalization proposition in Oklahoma.

“With a mandatory minimum, you’re essentially turning the prosecutor into the judge, jury, and executioner.”
            —Molly Gill, vice president of policy at Families Against Mandatory Minimums, as quoted in a Texas Tribune article on new proposals this session from the governor and lt. governor to impose 10-year mandatory minimum sentences for various offenses.

“Some of these bills should just be tweets.”
            —Amy Bresnen, Austin lobbyist, commenting upon the record number of bills filed by the 88^th Texas Legislature.

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Legislative sessions are like school semesters: When they reconvene after a long break, everyone gets reacquainted and shares what they’ve been up to—and what they’ve been exposed to. As a result, the only things people are passing at the capitol right now are COVID and the stomach flu. But in two weeks, they will start passing things that are really dangerous.

Bonus coverage

We sent a bonus update on Monday regarding abortion-related litigation that could impact prosecutors and new legislation attempting to skirt the Stephens opinion on separations of power; if you missed it, you can find it online HERE.

“Prosecutor accountability” bills

Every time we tell you about a new bill to fine, fire, remove, or stretch prosecutors on the rack, we always end with a caveat that “more bills are coming.” And the legislature has not made liars of us yet. Here’s what dropped this week.

House Bill 3307 by Cook (R-Mansfield) is a narrower offering than most filed to date. It would amend the removal provision in Local Gov’t Code Chapter 87 to specify that “official misconduct” includes announcing, adopting, or implementing a formal or stated policy under

which the prosecutor prohibits or materially limits the enforcement of any criminal offense except to comply with an injunction, judgment, or court order. We have our doubts over whether the legislative branch can censor what elected officials say—that will be a First Amendment issue for another day—but the fact that this bill amends current “prosecutor accountability” laws already in existence at least recognizes that there are removal provisions that work and that perhaps it is best to work off those than invent something out of whole cloth that could have unintended consequences.

That said, the second part of HB 3307 goes where no bill has gone before to allow any DA or CA to petition for the removal of one of his or her neighboring prosecutors, and venue for those proceedings can be in the petitioning prosecutor’s county (as opposed to the county where the alleged policy is in effect). So, again, the question of whether an elected prosecutor can be removed by people with no residency, franchise, or other connection to that prosecutor’s jurisdiction will have to wait for another day. Note, however, that this bill was filed “as received,” meaning the drafting experts at the Legislative Council were not involved in its writing. Bills filed in this manner must usually be revised or cleaned up in the committee process before moving forward. Therefore, consider this a “conversation starter,” but a serious and perhaps more realistic start (sans the neighbor-on-neighbor violence) than some the other offerings filed to date.

Another “conversation starter” is SB 1422 by P. King (R-Weatherford) authorizing the AG to sue any state agency, law enforcement agency, political subdivision, or local entity that adopts, enforces, or endorses a policy, etc., categorically prohibiting or discouraging the enforcement or prosecution of a criminal offense. Although this would certainly include prosecutors, its breadth strikes us as something more likely directed at the ballot propositions adopted in various “blue” cities around the state that purport to ban or de-emphasize enforcement of state laws against abortion, marijuana, or whatever the flavor of the month was in that municipality at that time. The new chapter is structured in a way that reminds us of Gov’t Code §411.209 (Wrongful Exclusion of Handgun License Holder), which some of you may have dealt with if your county (lawfully) excludes LTC holders from carrying handguns in certain parts of your multi-use courthouses. However, as with HB 3307, this bill was not written by the Legislative Council, which may explain the inclusion of a prohibition (can’t “endorse”) that has already been struck down by the U.S. Fifth Circuit when challenged as part of the state’s anti-sanctuary cities bill a few years ago. This means the bill is likely to be re-written as a committee substitute if it starts to move through the process, so some or all of this could change. So, as we said earlier: A conversation starter.

And of course, we must finish this week’s discussion of this topic as we always do: More bills are coming! That means your smartest move at this point may be to keep your powder dry until everyone’s cards have been laid on the table by the end of next week. Then the real conversations can begin.

Judicial salaries

Two bills have been filed to increase by 23 percent the current base pay of district judges (which also raises the salaries of elected felony prosecutors and the state supplement for county attorneys): SB 802 by Hughes (R-Mineola) and HB 2779 by Leach (R-Plano). The additional expenditure for such a raise got a chilly reception in the Senate Finance Committee two weeks ago, and this week the House Appropriations Subcommittee on Article IV left pending the proposed appropriation to support the raise. That doesn’t mean the idea is dead—many requests for additional funding are “pended” for future consideration at this early stage of the session—but it does mean we must wait for those two bills (as opposed to the funding request for them) to be heard in committee later this session to get a better feel for their prospects.

Judicial retirement

It’s no secret that public retirement systems have struggled to remain actuarially sound in the last decade. Faced with over $11 billion in unfunded benefits and a depletion date of 2075, the previous legislature drastically changed retirement for state employees and officers—including felony prosecutors—by creating something called a “cash balance” plan. A variation on the 401(k) theme, this plan applies to all elected felony prosecutors who took or take office on or after September 1, 2022. But the last legislature did not touch the judges’ retirement plan, known as JRS 2, which has a depletion date of 2076. That defined benefit plan is preferable to a cash balance plan for its recipients, so it raised a question during the interim after last session: In the interest of courthouse parity, should elected felony prosecutors explore the option of joining JRS 2 this session?

We got an answer this week in the form of SB 1245 by Huffman (R-Houston) and its companion, HB 3367 by Bonnen (R-Friendswood), and that answer is “no.” These bills would establish a cash balance plan for judges taking office on or after September 1, 2024, that matches the prosecutors’ new plan. This is not exactly unexpected—costly defined-benefit retirement plans have become too expensive for many states to maintain—but they are likely to pass, so if you want more details about how these cash benefit plans work, contact Rob.

Committee news

The Senate State Affairs Committee approved SB 2 by Hughes to increase the penalty for illegal voting back to a felony. It also approved SB 372 by Huffman (Class A misdemeanor to leak draft judicial opinions), SB 578 by Zaffirini (confidentiality protections for protective order applicants), and SB 728 by Huffman (DPS access to juvenile mental health records for firearm background checks). Other bills heard in that committee were left pending.

The House Criminal Jurisprudence Committee approved the following bills this week: HB 247 by S. Thompson granting subsequent writs in certain cases; HB 270 by S. Thompson expanding post-conviction DNA testing; HB 286 by S. Thompson creating new subsequent writs based on non-scientific evidence; HB 381 by S. Thompson requiring a pre-trial jury determination of intellectual disability in death penalty cases; and HB 611 by Capriglione creating a new crime for doxing. Other bills heard in that committee were left pending.

Remember, to read these listed bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format in which you wish to read it (PDF, html, or Word).

Future committee hearings

Here are some of the bills posted for committee hearings next week (click the committee’s name for the full agenda and additional details, including hyperlinks to the bills’ webpages):

Monday, March 6

House Public Health – 10:00 a.m., JHR 120

• HB 576 by Raymond allowing disclosure of autopsy photos to family and their lawyers

Tuesday, March 7

House Human Services – 8:00 a.m., E2.030

• HB 63 by Swanson relating to preliminary investigations of child abuse/neglect reports

Senate Criminal Justice – 8:30 a.m., Room E1.016

• SB 287 by Huffman expanding the scope of felony terroristic threat
• SB 402 by Whitmire granting docket preferences to murder and capital murder proceedings
• SB 645 by Huffman relating to criminal penalties for fentanyl
• SB 1004 by Huffman creating a criminal offense for tampering with an electronic monitoring device
• SB 1318 by Huffman relating to bail reform
• SB 1319 by Huffman relating to overdose mapping
• SJR 44 by Huffman proposing a constitutional amendment authorizing the denial of bail for certain persons accused of violent or sexual offenses

House Criminal Jurisprudence – 10:30 a.m., E2.016

• HB 55 by Julie Johnson increasing the punishment for certain indecent assaults
• HB 180 by Moody requiring a court to withdraw an execution date upon a prosecutor’s motion
• HB 205 by Moody expanding scientific subsequent writs to punishment issues
• HB 279 by Jetton increasing the punishment for trafficking disabled individuals
• HB 291 by Murr relating to occupational driver’s licenses
• HB 314 by Toth prohibiting the death penalty in a single eyewitness cases
• HB 369 by S. Thompson imposing a usable quantity for certain controlled substance crimes
• HB 409 by Collier relating to indigent defense
• HB 476 by Jolanda Jones capping pretrial detention at the maximum sentence for a charged offense
• HB 727 by Rose excluding persons with “severe mental illness” from the death penalty
• HB 798 by Collier allowing CVC funds’ use for relocation and housing rental expenses
• HB 842 by Patterson relating to DL suspensions for DWLI convictions
• HB 905 by Moody granting additional credits for certain time served before sentencing
• HB 939 by Dutton reducing penalties for certain first-time POCS crimes
• HB 1161 by Meyer relating to address confidentiality for certain trafficking victims

Wednesday, March 8 (no postings at time of publication)

Thursday, March 9

House Corrections – 9:00 a.m., Room E2.014

• HB 182 & HJR 11 by S. Thompson authorizing a court to commute a prison sentence
• HB 392 by S. Thompson shortening wait times to apply for certain orders of nondisclosure

New bills to watch

The bill filing deadline is one week from today. Over the next five business days, as many as 2,000 more bills may be filed before the window closes next Friday. Your prayers for our mental and emotional fortitude are welcomed during this difficult time.

Some bills filed this week that deserve your attention include:

• HB 2864 by Raymond mandating veteran court participation absent good cause
• HB 2992 by Harrison increasing reporting requirements for asset forfeitures
• HB 3166 by Murr creating a statewide 15th COA for certain civil appeals
• HB 3307 by Cook allowing removal of prosecutors due to non-prosecution policies
• HB 3247 by Cain creating the offense of prosecutorial misconduct
• SB 1195 by Hughes granting prosecution authority to OAG for abortion, election, human trafficking, and official misconduct crimes
• SB 1196 by Hughes / HB 2930 by Spiller granting SCOTX veto power over certain CCA rulings
• SB 1273 by Hughes / HB 2963 by Smithee granting new trials by prosecutorial fiat
• SB 1422 by P. King prohibiting non-enforcement of state criminal laws
• SB 1462 by Hughes, this session’s omnibus judicial branch bill

Many other bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions above as well as other bills we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Scattershooting

Here are some recent stories you might’ve missed:

• “Democrats and Republicans in Texas Might Not Agree on Much. But They’ll Sing Karaoke Together.” (Texas Monthly)
• “Texan young adults can now get licensed to carry handguns at college campuses, businesses” (Dallas Morning News)
• “Texas abortion funds likely safe from prosecution, federal judge rules” (Texas Tribune)
• “17 States Have Now Tried to Pass Bills that Strip Powers from Reform-Minded Prosecutors” (The Intercept)

Quotes of the Week

“This is not Harris County. We take things seriously.”
            —Galveston County District Court Judge Kerry Neves, revoking the bond of an intoxication manslaughter defendant who was caught driving without a license or an ignition interlock device in violation of the terms of his release.

“We want to empower criminal district attorneys to enforce the law, and if they want to change the law, they need to come up here and run against Jeff or myself and become a legislator, not a criminal district attorney.”
            —State Rep. David Cook (R-Mansfield), explaining why he filed legislation about prosecutors who don’t enforce laws, as quoted during a panel discussion with State Rep. Jeff Leach (R-Plano) on criminal justice reform at a recent Texas Public Policy Foundation (TPPF) policy summit.

“There’s never [been] an area of the government that has escaped more accountability than the criminal justice system, and nothing more in that system than prosecutors’ power. There’s very little transparency and there’s very little way to hold them accountable. … You also have prosecutors that will cheat and steal to try to win a case when they know they don’t have the facts to support it, or the law isn’t there to support it.”
            —Brett Tolman, Executive Director of Right on Crime, at the same TPPF policy summit panel, explaining why he and his organization are actively supporting efforts to impose new accountability laws on prosecutors. (Video available on YouTube HERE.)

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Some interesting stuff happened on Friday that we were not able to include in our previous weekly update, so allow us address that now rather than wait until next Friday. If you dig constitutional law, this is going to be the update for you!

Post-Dobbs opinions start to roll in

First, we want to make sure you know about some cases coming out of Austin related to the Dobbs opinion by SCOTUS that overturned Roe v. Wade and returned the abortion issue to the states last year.

As you may recall, the impact of that decision on the criminal offenses surrounding abortion left more questions than answers in Texas. Specifically, there is uncertainty about whether pre-Roe crimes are now in effect, and if so, how to resolve the irreconcilable conflicts that may exist between those laws drafted a century ago and the more recent criminal and civil sanctions passed last session before the Dobbs opinion came down. (For a refresher, see this June 2022 update.) But last Friday, two different court opinions were issued in this area that you should be aware of.

First, in Fund Texas Choice v. Paxton, 1:22-CV-859-RP (Feb. 24, 2023), a federal district judge in the Western District of Texas partially granted the plaintiffs’ motion for a preliminary injunction against the enforcement of pre-Roe abortion crimes against those who might speak about, fund, or otherwise facilitate out-of-state abortions. Without getting too deep into the weeds on this case at this time, the trial court made the following findings:

• The crimes and sanctions enacted by Texas’s “trigger law” (HB 1280, 87RS) do not regulate or apply to abortions performed outside of Texas; and
• Texas’s pre-Roe laws might have applied to abortions performed outside of Texas, but they have been repealed by implication and are unenforceable (citing McCorvey v. Hill, 385 F.3d 846 (5^th Cir. 2004), the case we mentioned in our June 2022 update).

The upshot of all this is that the Attorney General—who declined to represent the local county and district attorneys sued in this case—has been dismissed from this litigation and now the court will move on to the question of whether this ruling should be expanded from the five local prosecutors who were initially sued to include all county and district attorneys in Texas. We will keep you posted as that litigations evolves.

On the same day that the Fund Texas Choice opinion was issued, the Texas Supreme Court (SCOTX) also issued an opinion in two related lawsuits and held that it was not defamatory for a pro-life advocate to call abortion providers “murderers” or “criminal enterprises.” This unanimous opinion rested on basic First Amendment analysis, but a related issue raised by the parties was whether Texas’s 1925-era pre-Roe abortion crimes were restored by the Dobbs opinion. The Court did not need to decide that issue to resolve the case, but in a concurring opinion, Justice Devine urged the Court to rule that the pre-Roe crimes are still good law. However, his concurrence garnered the support of only one other justice; the other seven declined to sign on. As a result, while you may see this concurrence touted as evidence that SCOTX believes the pre-Roe laws are now in effect, that question has not been conclusively answered by SCOTX. (For a summary of these Dickson cases, see HERE; you can also read the Court’s opinion by Justice Bland HERE and the concurrence HERE.)

So, where does that leave us? One federal district court ruling that pre-Roe laws are void, and one Texas Supreme Court opinion that declined to decide the issue (despite two justices urging them to do so.) To date, we are unaware of any legislation filed this session to cure potential conflicts between the old and new abortion enforcement laws. The 88^th Legislature could resolve these ambiguities once and for all, but unless a bill is filed and passed in the next three months, it appears the legislature will punt that issue to the state and federal courts to fix it instead. As we said back in June of 2022, “There remain many unanswered questions about the enforcement of HB 1280 and other laws that will have to be hashed out by the courts.” It looks like that process has now begun, but it could take several more years of litigation to get definitive answers. So … good luck with that!

Separation of Powers under attack

Not only did both of those court opinions drop on Friday of last week, but two new bills were filed to address prosecutor accountability in the context of election law enforcement.

On Friday, we told you about a legislative two-step to allow the governor and state senate to remove troublesome prosecutors, with one of those steps being a constitutional amendment (aka “the DeSantis Option”). But now we have a new legislative two-step to tell you about that is almost certainly an attempt to get around last year’s Stephens opinion in a way that its proponents think would not require amending the state constitution. Here’s the skinny.

For starters, recall what the Stephens opinion from the Court of Criminal Appeals (CCA) said: While the attorney general can investigate election-related crimes (just like any other crime), the legislature cannot grant the AG original prosecution jurisdiction because that violates the Texas Constitution’s Separation of Powers Clause. (Summaries of the original opinion can be found HERE, and our summary of the denial of rehearing is available HERE.) This limitation on the AG makes some folks scratch their heads in wonder because they don’t realize that the Texas constitution puts local prosecutors in the judicial department of state government rather than the executive department. (This difference is why we first wrote Texas Prosecution 101 almost 20 years ago and have been sharing it with all who ask ever since.) This placement of prosecutors in the judicial branch was done by the constitution’s drafters—and adopted by Texas voters—for the specific purpose of insulating local prosecutors from control of the executive branch in Austin and limiting the power that certain statewide officials could wield. If you know anything about our state constitution, you know that this was just a variation on the entire theme of that document—and if you read Judge Slaughter’s painstakingly thorough historical research in her concurring and dissenting opinion on rehearing in the Stephens case, you can be left with little doubt that the AG’s claims to the contrary are a misreading of both state history and state law.

But who cares about facts, eh? Fast-forward to the current state of election fraud politics in which complaints from a certain segment of the body politic that local prosecutors are refusing to prosecute legitimate cases of voter fraud mean that someone else must be a “backstop” for that (unsubstantiated) refusal. The result of that narrative has been numerous bills being filed to task the AG with that election fraud prosecution job again or otherwise involve that office in the prosecution process, including:

• HB 125 by Slaton (R-Royce City)
• HB 678 by K. Bell (R-Forney)
• HJR 98 by Tinderholt (R-Arlington)
• HJR 110 by Isaac (R-Dripping Springs)
• SB 1195 by Hughes (R-Mineola)

That last bill is the one we want to draw your attention to. Senate Bill 1195 was filed Friday to grant the AG original prosecution authority not just in election fraud cases, but also abortion crimes, human trafficking crimes, and miscellaneous official misconduct-type crimes. (There are some other surprises in there as well; read the bill for yourself.) What did not accompany the bill was an SJR (senate joint resolution) to amend the constitution in a manner permitting such prosecutions by the AG. And in truth, most observers doubt any such measure could get to the voters for approval because it would require 100 votes in the House, and there aren’t 100 votes in the House for such a power grab. But the AG and/or his advocates apparently think they have hit on another way around the traditional constitutional understanding of prosecution in Texas that was confirmed by the Stephens opinion.

Concurrent with SB 1195 was the filing of SB 1196 by Hughes, which purports to grant to SCOTX the power to overrule the CCA regarding the constitutionality of state statutes. (Another similar bill was also filed this week as SB 1092 by Parker (R-Flower Mound)). It appears that the working theory behind these bills is that granting SCOTX a veto over CCA rulings doesn’t require a constitutional amendment because Article 5 of the state constitution generally makes the powers of each court subject to other constitutional provisions or laws passed by the legislature. Once these changes by SB 1195 and SB 1196 are enacted, the AG can run another election fraud (or abortion or human trafficking) prosecution appeal up the flagpole and when the CCA doesn’t salute, the AG can ask SCOTX to overrule its sister court. Of course, no one knows how the state’s top civil court would rule on criminal constitutional issues, but trust us, that won’t prevent this type of forum-shopping from being attempted.

Fortunately for those who like the rule of law, this scheme is likely based on a (mis-) reading of the constitution very similar to the one that got the AG in hot constitutional water in Stephens to begin with. It is true that Article 5, Sec. 3(a) of the state constitution says that the state supreme court’s “appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law.” We assume proponents of this forum-shopping theory will try to argue that the exception in 3(a) (“and as otherwise provided in this Constitution or by law”) swallows the preceding rule (“except in criminal law matters”) that currently limits SCOTX’s authority, even though that exception is a further limitation on that court’s authority, not an expansion of it. But then, this is similar to the failed argument the AG made in Stephens—namely, that Article 4, Section 22’s grant of authority to the AG to “perform such other duties as may be required by law” meant that the legislature could trump other constitutional provisions merely by passing statutes that gave the AG additional duties, even if they were already assigned to other officers under the constitution. That didn’t pass the plain reading test, the grammar test, or the historical analysis test in the Stephens opinion(s), and it almost certain won’t pass muster this time around either—after all, “all cases except in criminal law matters” seems pretty simple and to the point when it comes to what SCOTX can address. But don’t be surprised if advocates of expansive centralized prosecutorial authority go to that well once again.

All we know for certain is that the Separation of Powers concept is rarely popular with the people whose powers are being separated. Therefore, prepare yourselves to answer questions about these and related bills this session, and educate your legislators about this issue as needed.

Quotes of the Addendum

“Forum shopping has long been a problem in civil litigation. Clever lawyers use procedural rules to file in courts deemed most likely to be sympathetic to their claims. But what Mr. Paxton and other plaintiffs are doing is something far more nefarious—they’re engaging in a novel and specific form of judge shopping, seeking out the specific judge whom they wish to hear their case, presumably because of how they expect that judge to rule. … Litigants of all political and substantive stripes have taken advantage of this loophole [in federal procedure] …. But Mr. Paxton has made the loophole into an art form.”
            —Steve Vladeck, a UT School of Law professor specializing in federal court procedures, in a guest essay in the New York Times published February 5, 2023, entitled “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters.”

“I’m not the criminal law expert in the room. My colleague, Presiding Judge Keller, is here, but the understanding I have of the criminal law is that the Texas constitution does not allow you to do [pre-trial preventive detention] and so we would need an amendment to be able to do that.”
            —Nathan Hecht, Chief Justice of the Texas Supreme Court, appropriately deferring to the Presiding Judge of the CCA when being asked about criminal law matters during a recent Senate Finance Committee hearing.

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Today marks the completion of the first third of the 140-day 88^th Regular Session. We hope you enjoyed the languid pace of the session to date, because next week things get real.

Needs and wants

Some of the dust has settled from the governor’s State of the State Address that we reviewed last week so we can now divide the policy initiatives he mentioned into official emergency items (“needs”) and unofficial policy initiatives (“wants”). In the first “official” category are property tax relief, COVID-19 mandate prohibitions, school choice, school safety, bail reform, border security, and fentanyl. These are the policy areas in which the legislature can officially act now rather than having to delay voting until after March 10 (and as you will see later in this update, some committees are scheduled to take up bail- and fentanyl-related bills next week). Conversely, there are several other policy initiatives that were mentioned in the governor’s speech and/or press releases—including prosecutorial accountability—that are not in the official list of emergency items. These topics now go into the “priorities but not emergencies” pile. Similarly, we are still waiting to see language for SB 20, the lite guv’s priority legislation to “remove DAs who refuse to follow Texas law.” If you have thoughts or feedback on this topic that you haven’t yet shared, consider touching base with your regional director prior to our quarterly board meeting next Friday—this issue will surely be a topic of discussion there, and your feedback is important.

The “DeSantis Option”?

Yet another new iteration of “prosecutor accountability” legislation was filed this week. On Wednesday, State Sen. Brian Birdwell (R-Granbury) filed what we might call the “DeSantis Option” because it appears to follow the process used by Florida Governor Ron DeSantis to remove a Florida prosecutor from office (something he touted on the pre-presidential campaign trail earlier this week at an appearance in New York or Chicago or some other Yankee metropolis, we can’t keep up, sorry).

The “DeSantis Option” filed by Sen. Birdwell is a two-step legislative process: First, SJR 60 would amend the state constitution to authorize a governor, by executive order, to suspend any state or local official who is either convicted of a felony or who “willfully neglects the duties of office” or who “publicly declares that the officer will not enforce the laws of this state.” The suspended official would then go before the state senate, which could remove or reinstate the official by a simple majority vote (as opposed to the two-thirds majority required for all other removals or impeachments by the state senate). The second step to implementing this new removal option is SB 1105, the statutory enabling language to govern how that process would work. (Although as far as we can tell at this stage, it’s short and sweet: governor suspends, majority of senate removes [or not], and that’s that—no appeal, do not pass Go, do not collect $200.) Oh, and all of this would be in addition to existing removal laws; those are not repealed.

The key thing to know here is that the enabling bill can take effect only if SJR 60 passes both chambers of the legislature with two-thirds approval and then gets the support of a majority of voters as a statewide proposition in November 2023. This is necessary because the state constitution currently does not permit local officials to be removed from office absent a jury trial. If such a system were to become law, though, there would be little standing in the way of a governor and a partisan state senate from suspending or removing any local officials with whom they found fault.

Judiciary budget

The House Appropriations Subcommittee overseeing judicial branch funding took up that topic yesterday. On those items most relevant to your work, 46^th Judicial DA Staley Heatly testified to the importance of continued funding for prosecutor salaries and related office funding items and thanked the subcommittee members for their continued support.

In other news from that hearing, some subcommittee members took a particular interest in the need for the State Commission on Judicial Conduct (SCJC) to request additional funding to defend itself against two lawsuits in which OAG has declined to represent them. Further questioning revealed that OAG has declined to represent SCJC—for perhaps the first time in that commission’s history—in litigation that would uphold its authority to sanction judges who violate judicial impartiality rules by publicly declaring that they will not conduct same-sex marriages. Coming on the heels of news last session that OAG declined to represent the Texas Ethics Commission (TEC) in certain lawsuits and had also declined to collect certain ethics fines assessed by that agency, this latest news may set the stage for some interesting questions during the debates over elected officials’ enforcement discretion later this session.

Committee news

Non-budget-related committees started to meet this week, the most notable for our purposes being the House Criminal Jurisprudence Committee, which held its organizational meeting on Tuesday. In addition to hearing testimony from invited witnesses about the criminal justice system in general, the committee chairman—State Rep. Joe Moody (D-El Paso)—made the following announcements:

• A Subcommittee on Criminal Procedure will hear bills amending procedural laws in the CCP (duh). Members: Rep. Bhojani (D-Euless) (F), chair; Bowers (D-Rowlett), Cook (R-Mansfield).
• A Subcommittee on Asset Forfeiture will … yeah, you get it. Members: Rep. Harrison (R-Midlothian) (F), chair; Christina Morales (D-Houston), Schatzline (R-Fort Worth) (F).

In other committee news, Speaker Dade Phelan announced the formation of the new House Select Committee on Community Safety that will have jurisdiction over bills related to firearms, ammunition, and related criminal offenses and penalties. Members of that new committee are: Rep. Guillen (R-Rio Grande City), chair; Jarvis Johnson (D-Houston), vice-chair; Bowers (D-Rowlett), Burrows (R-Lubbock), Canales (D-Edinburg), Dorazio (R-San Antonio) (F), Goodwin (D-Austin), Harless (R-Spring), Holland (R-Rockwall), Tracy King (D-Uvalde), Landgraf (R-Odessa), Moody (D-El Paso), and Troxclair (R-Lakeway).

Future committee hearings

Each week we will try to highlight for you certain bills scheduled to be heard in certain committees. The volume of bill hearings will be mind-boggling, so we have to pick and choose what we pass along (for both your sanity and ours). But remember, the committee process is where the public can be most directly involved in the legislative process and, not coincidentally, where most bills die—either due to the lack of a hearing or a failure to get the necessary approval after being heard. In other words, this is where the rubber meets the road for most legislation.

With that in mind, here are some of the bills posted for committee hearings next week (click on the committee name for the full agenda and additional details, including hyperlinks to the bills’ webpages):

Monday, February 27

Senate State Affairs Committee – 11:00 a.m., Senate Chamber

• SB 2 by Hughes increasing the criminal penalty for illegal voting
• SB 559 by Hughes limiting State Bar restrictions on lawyers’ constitutional rights
• SB 599 by Birdwell relating to district clerks carrying handguns
• SB 578 by Zaffirini expanding confidentiality for protective order applicants

Tuesday, February 28

House Criminal Jurisprudence – 10:30 a.m., E2.016

• HB 178 by Murr relating to testing possible controlled substance evidence for fentanyl
• HB 188 by Moody changing jury instructions and sentencing procedures in a capital cases
• HB 218 by Moody lowering penalties for marihuana & THC and related changes
• HB 247 by S. Thompson granting subsequent writs in certain felony cases
• HB 270 by S. Thompson granting expanded postconviction forensic DNA testing
• HB 286 by S. Thompson creating a new non-scientific evidence subsequent writ
• HB 381 by S. Thompson barring the death penalty for a person with an intellectual disability
• HB 393 by Goldman authorizing restitution for the support of a child whose parent or guardian is a victim of intoxication manslaughter
• HB 469 by Smith changing procedures for jury sequestration in criminal cases
• HB 513 by Metcalf increasing penalties for delivery of a controlled substance that causes death
• HB 598 by Shaheen creating an offense for possession of an animal by a person who has been previously convicted of an offense involving animal cruelty
• HB 611 by Capriglione creating a criminal offense for doxing

Wednesday, March 1

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

• SB 287 by Huffman expanding the scope of felony terroristic threat
• SB 402 by Whitmire granting docket preferences to murder and capital murder proceedings
• SB 645 by Huffman relating to criminal penalties for fentanyl
• SB 1004 by Huffman creating a criminal offense for tampering with an electronic monitoring device
• SJR 44 by Huffman proposing a constitutional amendment authorizing the denial of bail for certain persons accused of violent or sexual offenses

Homework

Over the past week we have reviewed more than 600 new bills so that you don’t have to. (You’re welcome!) That said, that are some bills that may deserve your attention at this early stage, so we’d encourage to take ~20 minutes to read and familiarize yourself with these bills in case they start to move this session (To read these or any other bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format you wish to read it in (PDF, html, or Word)):

• HB 2527 by Dutton codifying proposed changes to State Bar ethics Rule 3.09
• HB 2543 by Raymond creating a conviction integrity unit within OAG
• HB 2734 by Murr granting cross-credit service for judges and prosecutors for salary purposes
• SB 1045 by Huffman creating a statewide intermediate appellate court for certain cases
• SB 1092 by Parker granting SCOTX the authority to overrule a TXCCA ruling that a state statute is unconstitutional
• SB 1105 and SJR 60 by Birdwell authorizing the governor to suspend and the state senate to remove elected officials who neglect to or publicly declare they will not enforce the law

Many other bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions above as well as other bills we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Scattershooting

Here are some recent stories you might’ve missed:

• “In the Hill Country, a new state psychiatric unit stays empty while waitlists swell” (Houston Chronicle)
•  “Power struggles between state and local officials escalate in Texas—and across the nation” (KERA News)
• “Republicans take aim at elections and how Texas conducts voting, prosecutes voter fraud” (Dallas Morning News)
• “Tug-of-war between Denton voters and city officials continues over pot ordinance” (Dallas Morning News)

Quotes of the Week

“Anything that is considered gun control is dead on arrival. In terms of school safety, the focus is going to be almost exclusively on hardening the schools in terms of more money for installing modern security.”
            —Mark Jones, political science professor at Rice University, quoted in a Texas Tribune story about school safety in the wake of news that an elementary school student found in a school bathroom a handgun that had been left behind by the school district superintendent.

“Local cases deserve to be heard by local judges, but cases with statewide implications—like those involving the state or state agencies—deserve to be heard by judges who are accountable to voters statewide. The new 15th Court of Appeals will help equalize dockets on our existing appellate courts and allow judges to apply specialized precedent in complex subjects like administrative and constitutional law, while giving Texas voters oversight of a court that handles critical matters for the entire state.”
            —State Sen. Joan Huffman (R-Houston), in her press release announcing the filing of SB 1045 to create a new statewide intermediate court of appeals.

“The Supreme Court [sic] said the attorney general cannot prosecute voter fraud. It’s got to be the DA. So, if they want to turn a blind eye, or just not do it, whatever the reason may be, the attorney general can say, ‘Why aren’t you looking into it?’ It adds checks and balances to the process.”
            —State Rep. Bryan Slaton (R-Royce City), as quoted in the Dallas Morning News giving his reason for filing HB 125 authorizing the attorney general to sue and/or remove local prosecutors who decline to enforce election law crimes. (The case to which he referred is the Stephens opinion by the Court of Criminal Appeals.)

“We’re not going to delay bills there’s been a solid consensus on in the past. For new members: Trust me, it’s better to get to the House-versus-Senate fight as early as you can.”
            —State Rep. Joe Moody (D-El Paso), chairman of the House Criminal Jurisprudence Committee, announcing at the committee’s organizational hearing his plan to accelerate the passage of criminal justice reform legislation that has passed the House in past sessions but died in the Senate.

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If you wanted some clarity about what the legislature may do for you or to you this session, we’re afraid you’re going to be disappointed. This week in Austin was more about heat (politics) than light (policy). But politics often trumps policy in the capitol sausage-making factory, so read along with that in mind.

The State of the State …

“… has never been more exceptional.” At least according to Governor Abbott, who gave his State of the State Address last night in a made-for-TV event live from San Marcos. But despite that exceptionality, the governor identified dozens of additional new laws he wants this legislature to pass, focusing mostly on seven priority areas (in no particular order): cutting property taxes, limiting pandemic restrictions, school choice, school safety, fentanyl, border security, and ending revolving-door bail. Those latter three deserve more attention, so here is what was actually proposed (with links to his office’s helpful press releases):

• Fentanyl: Classify fentanyl “overdoses” as poisonings; prosecute dealers for murder; make opioid antagonists like Narcan more readily available.
• Border security: Impose 10-year mandatory minimum sentences for human smuggling and for “criminals who illegally possess guns” (that second bit about guns is not in the press release but was mentioned in the speech); enhance stash house crimes to a third-degree felony; increase penalties for human smuggling and stash house operations when committed in a disaster area; enhance criminal penalties for foreign terrorist organizations.
• Revolving door bail: Propose a constitutional amendment allowing judges to deny bail for the most violent offenders; hold judges and district attorneys accountable for “reckless decisions compromising the safety and security of Texans.”

Interestingly, if you watched the address live you never heard any mention of that final blurb regarding DA accountability, nor was it in his prepared remarks—only judges were singled out in the context of bail decisions. (The full text of his prepared speech can be read HERE for those who are interested.) However, prosecutors are mentioned in the press release. So, what does all this mean?

From a political perspective, this is a handy list of gubernatorial priorities to keep in mind during the session. But from a legislative timing perspective, no speech or press release can grant an issue the “emergency” status necessary to allow the Lege to take up the issue and vote on it immediately. As a result, we must wait until official proclamations are issued by the governor’s office before we can tell you what merits emergency designation. (Those have not been made public as of the release of this update.) And if you find it odd that speeches were made and press releases were issued but no actual proclamations were issued as required under the state constitution … well, see our earlier comment about “heat” and “light.”

Lt. Gov’s priorities

It has long been the practice in the House and Senate for those chambers’ presiding officers to reserve low bill numbers for priority legislation. These designations do not carry a constitutional advantage like an emergency proclamation issued by the governor, but they do signal what is important to the people who matter. And Lt. Gov. Dan Patrick (R-Houston) has taken that practice to another level during his time in office, rolling out as many as 30 “priority bills” identifying his focus. This session’s list of reserved Senate bill numbers came out Monday—before the governor’s State of the State Address, but we’re sure that was just a coincidence—and includes:

• Senate Bill 2: Restoring voter fraud to a felony
• SB 20: Removing DAs who refuse to follow Texas law
• SB 21: Removing judges who refuse to follow Texas law
• SB 22: Rural law enforcement funding increases
• SB 23: Mandatory 10-year prison sentence for certain crimes involving a firearm
• SB 26: Expanding mental health care beds (esp. in rural counties)
• SB 27: Creating a statewide business appellate court

For the full list, click HERE.

You may notice some overlap—but not complete agreement—between the lieutenant governor’s priorities and the governor’s priorities. Note also that no language has been filed under these priority Senate bill numbers as of the time this update is being issued, but some—such as SB 23 (10-year minimum for certain crimes committed with a gun)—will likely be a refiled version of what was already filed as SB 787 by Huffman. Whether SB 20 (DA removal) ends up being a refiled version of a bill already filed on that topic or is something entirely new remains to be seen.

Judiciary budget

The Senate Finance Committee took up judicial branch funding yesterday and heard from a string of judicial officials highlighting their inability to hire and retain quality attorneys and staff due to inadequate pay. As we reported last week in our discussion of the OAG budget, this session’s baseline already includes raises for many state agencies—including the appellate courts—but their primary ask is for yet more funding to keep pace with inflation and the private sector.

The main non-funding item of discussion for the committee was whether judges are making good use of their discretion (especially in Harris County) and what the legislature needs to do to prevent offenders out on bail from re-offending. There were also several mentions of the State Commission on Judicial Conduct (SCJC) and whether it is an adequate check on the judiciary—which is interesting, considering that a similar agency is being pitched this session for governing prosecutors. Also of interest was a mention later in the hearing of two pending court challenges to the authority of that commission to discipline judges for certain actions—as well as the fact that OAG declined to represent SCJC in those actions—forcing it to hire outside counsel.

On the prosecution front, Comal County CDA Jennifer Tharp briefly testified to thank the committee for fully funding DA apportionment funding, CA supplements, assistant prosecutor longevity pay, and related items. She also received from Chairwoman Huffman a public commitment to continue working on how to help local prosecutors hire and retain adequate staffing. As of now, that help might most likely come through SB 22, the lieutenant governor’s yet-to-be-filed priority issue to increase rural law enforcement funding, perhaps through an increase in DA apportionment funding for personnel costs—but again, none of those priority bills have been filed yet, so the details (such as how much and to whom) remain to be seen. And finally, SB 277 by Huffman (to grant cross-credit service time for elected prosecutors and judges who switch between those roles) has been referred to her own Senate Finance Committee, which is always a good omen.

Across the rotunda, House Appropriations subcommittees were named this week and will get to work next week digging into the details of HB 1, the massive state budget. The subcommittee that will tackle issues important to your work is the Subcommittee on Articles I (executive branch), IV (judiciary), and V (public safety): Mary Gonzalez (D-Clint), chair; David Spiller (R-Jacksboro), vice-chair; Steve Allison (R-San Antonio), Mano DeAyala (R-Houston), and Jarvis Johnson (D-Houston). We’ll report back on their initial work in our next update.

Looking ahead

The Senate started referring bills to committees this week, including several of the bills on “prosecutorial accountability” that we have identified for you in the past, which were all sent to the Senate State Affairs Committee chaired by Sen. Bryan Hughes (R-Mineola). These referrals mean that those Senate committees can hear and vote on bills as soon as next week. However, no notices have been posted by the time this update was distributed, so bill hearings are more likely to begin the week after next. House committees may also start to hold their initial organizational meetings to prepare them for eventual bill hearings, but as of now, no bills have been referred for that purpose; look for that to start happening next week as well.

More bills to watch

Many bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions this week:

• HB 2272 by Swanson requiring a DA to represent CPS if a CA opts out of that representation
• SB 950 by Kolkhorst authorizing OAG to defend a CA or DA against certain federal lawsuits
• SJR 44 by Huffman authorizing the denial of bail for certain violent or sex crimes.

To read these or any other bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format you wish to read it in (PDF, html, or Word).

Austin-bound?

Committee hearings are almost here, so if you are ready to clear your calendar and come to Austin for a few days in March, April, or early May, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Scattershooting

Here are some recent stories you might’ve missed:

• “District attorney Tetens having trouble finding prosecutors willing to accept capital murder cases in the wake of recusals” (KWTX–Waco)
• “As Texas booms, local governments—especially in small towns—struggle to find workers” (Texas Tribune)
• “Who will pay for Texas AG Ken Paxton’s office $3.3M settlement with whistleblowers?” (Dallas Morning News)
• “Proposed amendment to Texas constitution would give judges more discretion to deny bail” (KHOU-Houston)
• “Republicans clash with prosecutors over enforcement of abortion bans” (Politico)

Quotes of the Week

“While Texas made great strides to protect our cities, we must shut and lock the revolving door by passing laws to keep dangerous criminals behind bars. This session, Governor Abbott will work with the legislature to:

• Propose a constitutional amendment allowing judges to deny bail for the most violent offenders
• Pass legislation to hold judges and district attorneys accountable or [sic] reckless decisions compromising the safety and security of Texans”
  —Excerpt from the press release issued by the governor’s office after Gov. Abbott’s State of the State Address last night.

“Having a child removed is one of the strongest police actions that we can take. … We have all kinds of checks and balances for getting [put] in jail for any amount of time. Rightfully so. We have checks and balances and we have due process. But child removal? It has due process, but not nearly as consistent.”
            —State Rep. James Frank (R-Wichita Falls), as quoted in a Texas Tribune article explaining the basis behind his filing of HB 730 to amend procedures and standards for CPS investigations and lawsuits.

“Mr. Paxton is going to have to come to the Texas House, he’s going to have to appear before the appropriations committee and make a case to that committee as to why that is a proper use of taxpayer dollars. And then he’s going to have to sell it to 76 members of the Texas House. That is his job, not mine.”
            —House Speaker Dade Phelan (R-Beaumont), when asked by a reporter if he supported the use of taxpayer dollars to fund Attorney General Ken Paxton’s $3.3 million settlement with four former aides who accused him of misconduct.

“Put yourself in my position: How would I go back to my constituents—some of whose children have been murdered by decisions of judges—and tell them that I’ve put in a budget, and I’ve voted for a bill, giving that person a 20-percent pay raise?
            —State Sen. Joan Huffman (R-Houston), chairwoman of the Senate Finance Committee, posing a question to the chairman of Judicial Compensation Committee after he pitched their recommended 23-percent increase in the judicial benchmark salary this session.

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