Special session schedule: Lather, rinse, repeat.

Review and preview

While House members are home enjoying their interim, the Senate continues to meet, hold committee hearings, and debate and vote on bills—which then get delivered to a vacated House. Barring the Senate adjourning sine die early, this kabuki theater may continue until the 30-day first called session ends on Wednesday, June 28.

Veto period

We are now in the “veto period” after the regular session. This is the 20-day span after a session during which the governor can veto a bill without the legislature being able to override that decision. This current veto period for the regular session ends on Sunday, June 18. After that date, all bills not already signed or vetoed by the governor will become law without his signature.

With that impending deadline in mind, we wanted to share with you some information regarding two privacy bills that may deserve your attention: HB 4 by Capriglione/Hughes “relating to the regulation of the collection, use, processing, and treatment of consumers’ personal data by certain business entities” and HB 2545 by Capriglione/N. Johnson “relating to an individual’s genetic data, including the use of that data by certain genetic testing companies for commercial purposes and the individual’s property right in DNA.” The information provided to us is as follows:

“Numerous state and federal law enforcement entities utilize in-state and out-of-state companies for genealogical testing and analysis. If signed into law, HB 4 and HB 2545 would adversely impact how law enforcement agencies conduct investigations in Texas. Specifically, HB 2545 would restrict direct-to-consumer companies like Ancestry and 23AndMe from releasing genetic data to law enforcement without “express written consent” or a warrant. In many cases, the identified genetic data is a relative of the suspect DNA sample and, therefore, would be impossible for law enforcement to request consent or obtain a warrant for an individual unknown to the investigators. 

In recent years, numerous serial murderers, serial sex offenders, and missing unidentified persons have been identified through genetic DNA data by investigators, cold-case investigators, and criminal profilers who work with direct-to-consumer companies. Removing this valuable tool from law enforcement’s arsenal to identify, apprehend, and remove major violent criminals from communities poses a significant risk to public safety.”

If after reading those bills for yourself you share some of these concerns, contact Shannon for more information on possible next steps.

Impeachment news

The Austin businessman at the center of several of the impeachment allegations was arrested yesterday by the FBI. How that will impact his availability as a witness in those Senate proceedings remains to be seen.

The impeachment defense team for Attorney General Ken Paxton will be led by Houston lawyers Tony Buzbee and Dan Cogdell (Paxton’s lead criminal defense lawyer in his other pending charges); more on that announcement HERE for those who missed it.

Interestingly, one of Buzbee’s first comments was that the current date for the Senate trial of “not later than August 28, 2023” would need to be pushed back because the defense team needed time to prepare for the trial by conducting depositions and the like. However, the procedural and evidentiary rules for the trial are still unknown, and they may not include traditional discovery practices (or any right to a continuance). Those rules will be hashed out among the senators themselves on Tuesday, June 20, and everyone will know more then.

Rural prosecutor grants

Governor Abbott signed SB 22 by Springer/Guillen earlier this week. This landmark program will benefit many of you (in jurisdictions of less than 300,000 population) who have struggled to recruit and retain high-quality employees in our post-pandemic world. However, this is not going to happen anytime soon—perhaps not even during your next fiscal year of operation—so patience will be a virtue in the short term.

We’ve received numerous questions about the new rural law enforcement grant funding program to be created by SB 22, but many of the most important details of that new funding program are yet to be finalized. The bill gives the comptroller’s office until January 1, 2024, to adopt and implement the rules and procedures necessary to make this program work; only after that date will applications start to be accepted. Furthermore, the rules for sheriffs and constables’ funds may differ from the rules for prosecutors, and the timing of the disbursement of funds may vary from jurisdiction to jurisdiction.

We are in close contact with the appropriate agency staffers and the Sheriffs Association of Texas, and we will share with you any what/when/how details as we learn them. We will also cover this topic in our Legislative Update book and CLE course, and this will almost certainly be a popular topic of conversation at our Rural Prosecutor Forum before our Annual Conference. But until then, please be patient and understand that we can’t give you answers we don’t have.

New laws

While the legislature (kind of) works on new bills in special session, the governor is still signing bills from the regular session, such as these eight “public safety” bills ceremonially signed at one public event. (Note that ceremonial bill signings are not necessarily the actual, official bill signing, so always check the state website for the official date a bill is signed into law if that is important to you.)

Bills officially signed this past week include:

HB 17 by Cook/Huffman relating to the removal from office of certain prosecutors
HB 28 by Slawson/Birdwell increasing the penalty for certain aggravated assaults
HB 1442 by A. Johnson/Bettencourt relating to penalties, seizures, and forfeitures for street takeovers
HB 2899 by Plesa/Hall relating to vehicle impoundment for street takeovers (eff. June 2)
SB 22 by Springer/Guillen creating a rural law enforcement funding program
SB 840 by West/Anchia increasing the punishment for assaulting hospital personnel
SB 1004 by Huffman/Herrero creating a criminal offense for tampering with an electronic monitor

Remember, the governor has until Sunday, June 18 (Father’s Day), to sign or veto a bill passed by the legislature; after that, all un-vetoed bills become law whether signed or not.

Legislative Update CLEs

Based on the success of our pandemic-induced change from in-person Legislative Update CLEs to online presentations in 2021, TDCAA will once again be offering this popular course online. Keep checking our Training webpage for details on when that online course will become available in August 2023.

For those of you who prefer in-person training, we will offer a live Legislative Update presentation on Tuesday, September 19, in Round Rock in conjunction with our Annual Criminal & Civil Law Conference being held that week at the Kalahari Resort and Convention Center. Again, check our Training webpage for the latest information.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas Legislature didn’t pass border bills during session. Will new session be different?” (Dallas Morning News)
• “Lina Hidalgo says her ‘F-word’ comment about DA Ogg wouldn’t have drawn attention if she were a man” (Houston Chronicle)
• “’Two steps forward, one step back’: McLennan County District Attorney works to resolve 10,000 backlogged cases” (KXXV News)
• “The Potentially Life-Saving Map That Most Can’t See” (Route Fifty)
• “From Paschal High to Texas interim attorney general: John Scott learned to ‘stick with it’” (Fort Worth Report)

Quotes of the Week

“We’re going to get [property tax reform] taken care of before we go into other issues to make sure we address everything. But we may be here a while …. We will have a special session [on school choice] coming up after—AFTER—we get property tax reform fixed.”
            —Governor Greg Abbott, pouring cold water on legislators’ summer vacation plans earlier this week.

“If a district attorney wants to be in law enforcement, they have to start by enforcing the laws. If they want to make state policy, they should run for the state legislature.”
            —Governor Greg Abbott, at this week’s public signing ceremony for HB 17 by Cook/Huffman relating to the removal of prosecutors from office.

“Number one, I was surprised it happened so quickly, and number two, I was surprised it took so long to happen quickly.”
            —Louie Gohmert, former Congressman and former GOP candidate for attorney general, in a TV interview about the impeachment charges lodged against the current holder of that office.

“Why does everything in Texas politics turn into a Houston mud wrestling show?”
            —Bud Kennedy, columnist at the Fort Worth Star-Telegram, in a quote tweet of a story about the Houston lawyers hired by both sides of the upcoming impeachment trial.

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In Tuesday’s update we told you that “those of us who have to follow this circus in person must prepare ourselves for this to become our summer of discontent.” And indeed, things are happening right on schedule in that regard.

Called Session No. 1

Remember that old Zen riddle, “What is the sound of one hand clapping?” This week, we can update it to, “What is the sound of one chamber legislating?”

A recap of this week in Austin:

On Monday, the legislature adjourned the regular session sine die around supper time without reaching an agreement on property tax reform. A few hours later, Governor Abbott called a special session to start that same evening with two agenda items: cutting property taxes and increasing penalties for human smuggling-related crimes.

On Tuesday, the Senate passed over to the House a property tax bill that was not the one the governor or House preferred and then it recessed until Friday. The House promptly killed that proposal, sent its own property tax and smuggling bills over to the Senate, and then adjourned sine die and went home. (However, the Senate has not concurred in the House resolution to finally adjourn, so that status of the lower chamber’s “mic drop” moment is in limbo.)

Nothing happened on Wednesday or Thursday other than some mean tweets. (Because that’s how we debate important policy decisions in the Year of our Lord Two Thousand and Twenty-Three.)

On Friday, the Senate reconvened for 15 minutes, referred bills to its Border Security Committee, and then adjourned until Tuesday evening. Those bills will be heard in that committee Tuesday morning at 8:30 a.m. For details, click HERE.

If we knew what the end game was on all this, we’d tell you. But we don’t. (Sigh.)

Impeachment news

Governor Abbott appointed Fort Worth attorney John Scott to serve as interim attorney general until Ken Paxton’s impeachment trial can be held later this summer. Scott is a former interim secretary of state who previously worked at the Office of the Attorney General (OAG) when Abbott ran that agency (among other public service jobs Scott has held).

Six OAG employees announced they were taking a leave of absence to help Paxton’s defense.

The House Board of Managers hired Rusty Hardin and Dick DeGuerin to prosecute the impeachment matter before the Senate.

It will be interesting to see how this property tax rebate impasse between the two chambers—and the resulting acrimony it has caused—plays into an impeachment trial in which one chamber is the prosecution and the other serves as judge, jury, and executioner.

New laws

While the legislature (kind of) works on new bills in this new called session, the governor is still signing bills from the regular session. Bills signed into law this past week include:

• SB 224 by Alvarado/Leach increasing penalties for catalytic converter theft (eff. May 29)
• SB 855 by Alvarado/Hull mandating new training for judges on family violence dynamics

Legislative Update CLEs

Based on the success of our pandemic-induced change from in-person Legislative Update CLEs to online presentations in 2021, TDCAA will once again be offering this popular course online. Keep checking our Training webpage for details on when that online course will become available in August 2023.

For those of you who prefer in-person training, we will offer a live Legislative Update presentation on Tuesday, September 19, in Round Rock in conjunction with our Annual Criminal & Civil Law Conference being held that week at the Kalahari Resort and Convention Center. Again, check our Training webpage for the latest information.

Scattershooting

Here are some recent stories you might’ve missed:

• “Paxton impeachment leads lawmakers into uncharted legal grounds” (Dallas Morning News)
• “Meet the Texas House impeachment managers who are taking aim at Ken Paxton” (Texas Tribune)
• “Cars registered in Texas after 2025 will no longer need to pass a safety inspection, but owners will still pay the fee” (Texas Tribune)
• “Roadway safety efforts gain traction as Texas legislators tweak laws on passing lanes, speed limits” (Houston Chronicle)
• “Facing youth prison crisis, Texas lawmakers opt to build new facilities and funnel more kids to adult system” (Texas Tribune)
• “Viewer’s Guide to Ken Paxton’s Impeachment” (Wall Street Journal commentary by Karl Rove)

Quotes of Sine Die

“Members, I hope you enjoyed your summer—I know I sure did!”
            —House Speaker Dade Phelan (R-Beaumont), gaveling the House into special session on Tuesday less than 24 hours after adjourning its regular session the previous day.

“I want to thank the good Lord for blessing me to be here, my constituents for being intelligent enough to send me, and my colleagues for being gracious enough to tolerate me.”
            —State Rep. Senfronia Thompson (D-Houston), aka “Ms. T” around the capitol, addressing her peers who honored her on the House floor for 50 years of service as a House member. (And she already announced she’s running for re-election next year.)

“If the House thinks after abandoning the Capitol, and walking out on the special session, the Senate is going to pass their ‘take it or leave it’ property tax bill without a homestead exemption, they are mistaken. The Senate is still working. The House can return.”
            —Lt. Gov. Dan Patrick (R-Houston), as tweeted earlier this week after the House abruptly adjourned after a one-day special session.

“If you go back to Lt. Gov. [William] Hobby, a moderate Democrat who served under a Republican governor, Bill Clements, there wasn’t anything near this type of public friction. Not even close. And they were polar opposites.”
            —Renée Cross, senior director of UH’s Hobby School of Public Affairs, on the tension between Abbott and Patrick right now.

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Where to begin? Since our last update on Thursday, the attorney general was impeached, House-Senate acrimony reached a fevered pitch over several high-profile issues, both chambers adjourned yesterday after failing to come to an agreement on several of the governor’s emergency issues for this session, and within three hours the governor had called them back for the first of what he promises will be several special sessions. It’s enough to make your head spin.

Impeachment trial

We’ll refrain from detailing the historic impeachment events of the past week; there are plenty of other media sources you can access to get up to speed on your own time. For the purposes of these updates, though, what is important is the interplay of the Senate impeachment trial with future lawmaking opportunities. There is little historical precedent for us to go by, but here are some things to keep in mind over the summer.

Before they adjourned sine die yesterday, it was announced that senators will convene on Tuesday, June 20 to establish the rules for the impeachment trial (which are entirely up to their own choosing), and the trial itself will start no later than August 28, 2023. The special committee of senators tasked with recommending those rules and procedures were announced yesterday and can be found HERE. We also know the composition of the House Board of Managers, a group of twelve House members (7 Rs, 5 Ds) who will conduct the prosecution of the impeachment trial in the Senate. That trial will feature witnesses testifying under oath who will be subject to questioning from the House managers and Paxton’s defense team, but beyond that, the rules and procedures will be entirely up to the Senate to determine at the end of June.

When the Senate convenes for an impeachment trial outside the timeframe of a regular session—either at the call of the governor or upon its own motion—the body sits as a quasi-judicial body and is generally not empowered to pass legislation. (And the House itself need not re-convene, so there wouldn’t be a second chamber to approve anything the Senate did pass.) However, if half the legislature is already going to be in Austin for a multi-week proceeding, it may make sense to the governor to also put them all to work on his pet issues.

Special session(s)?

And why would the governor reconvene the legislature for non-impeachment purposes? For starters, most of his emergency issues failed to pass during the regular session. Of the seven priorities he laid out in early February, only bills on school safety, fentanyl, and limiting pandemic restrictions crossed the finish line. The House and Senate could not find common ground on cutting property taxes, school choice/vouchers, border security, or bail reform—those last two being items that will directly impact your work if they pass during a special session. Furthermore, the fight over school choice/vouchers also resulted in the collateral death of bills to increase school funding and give raises to teachers, so those are additional topics ripe for revisiting in any special session. However, opposition to the school choice/voucher issue by many public education groups makes it politically unwise for the governor to ask the legislature to take up that issue during the summer, when teachers and administrators are free to come to Austin and vocalize their opposition in person. Therefore, many capitol observers expect the governor wait until August or September to ask the legislature to tackle school choice/vouchers again, after educators have returned to work and are no longer able to participate in legislative discussions in person.

Note also that the lieutenant governor had a robust list of 30 priority issues and almost half of them failed to pass, including bills disciplining “rogue judges” or imposing a 10-year minimum sentence for certain gun crimes. To what extent those will appear on any call of a special session is unknown.

88-1: First Called Session

Last night, the governor issued a proclamation immediately calling legislators into a First Called Session (“called session” being the official name for a special session, which is usually abbreviated as “88-1 CS” to distinguish bills filed during that session from regular session bills [“88RS”].) The clock on this overtime session started last night around 9:00 p.m. and runs for a maximum of 30 days—although legislators can adjourn themselves sine die at any time before then.

The governor’s proclamation calling legislators back to work mentions a laundry list of recently passed bills that the governor says he will soon sign into law—including one to “hold rogue district attorneys accountable” [HB 17]—but then says that “several special sessions” will be required to pass other “critical items.” For this first called session, the initial two agenda items are:

• cutting property taxes, and
• increasing/enhancing penalties for human smuggling-related crimes.

That last bit is probably a reference to HB 800 (88RS) by Guillen/Flores, which (among other things) would have imposed 10-year minimum sentences for various smuggling-related offenses—including smuggling of persons, which also has a 10-year maximum. This idea of mandatory minimum penalties for human smuggling became a priority of the governor after he tweeted about it in December (here), then again in April (here) and May (here). However, those tweets were not enough to pass the bill, which died at the end of the session due to the opposition of House Democrats. Now that process starts again, and we expect a new bill (with a new number) to be filed any day now.

Finally, keep in mind that a governor can add issues to a special session at any time. However, he cannot extend the 30-day maximum for a called session. Instead, he gets to call as many special sessions as he wishes. So, those of us who have to follow this circus in person must prepare ourselves for this to become our summer of discontent.

Other dead bills of interest to you

As we look back to this weekend, other bills that failed to cross the finish line before sine die included SB 21 by Huffman/Leach (“rogue judge” sanctions), HB 2779 by Leach/Huffman (judicial pay raises), and HB 3452 by Jetton/Huffman (judicial conduct commission sanctions)—the first two of which Rep. Leach (R-Plano) refused to bring to the House floor for final approval due to opposition from segments of the judiciary, and the latter of which the House voted down due to similar opposition. As a result, there will be no third tier pay raise for the judicial branch from this regular session.

We have been told that the judges—a vocal group of whom rejected a 10-percent third tier pay raise issue during the regular session by insisting upon an unprecedented 23-percent across-the-board pay raise—are going to ask the governor to add judicial compensation to a special session. However, that issue did not make the governor’s first cut, and adding it to a special session does nothing to change the nature of the impasse. If you recall, we went into the recent regular session telling you that such a raise was highly unlikely, and our prediction proved accurate. But for reasons still unknown to us, a sizeable segment of the judiciary was apparently operating under the assumption that large, across-the-board pay raises were a lead-pipe cinch this session, and as a result, they found a way to snatch defeat from the jaws of a partial victory at the end of the session by refusing to accept a compromise due to their own wishful thinking. Ultimately, those judges may have learned a lesson about wishful thinking at the legislature that was taught to us by a good friend: “Wish in one hand and spit in the other and see which one fills up first.” (OK, it wasn’t “spit,” but we are trying to keep this a family-friendly production.)

Funding updates

But enough with the sour grapes! Let’s focus on some positive news. For starters, all three priority issues identified before the session by TDCAA’s Compensation Committee are heading to the governor to become law. They include:

Pay parity: Making certain elected felony prosecutors eligible for a 5-percent salary increase after 12 years of service, in a manner identical to that currently enjoyed by the judges, passed twice: Via SB 2310 by Hinojosa/Smith, and as part of the larger judicial branch omnibus bill, HB 3474 by Leach/Hughes.

Cross-credit for elected prosecutors and judges: The language granting elected judges and prosecutors credit for their service in the other role is also part of HB 3474 by Leach/Hughes. (That’s a massive bill to read, so for a simpler version, check out the proposed changes to Government Code Chapter 46 in the text of HB 2734 by Murr, which was the stand-alone cross-credit language rolled into the omnibus bill before its final passage.)

Rural prosecutors grant funding: Annual six-figure personnel grants to prosecutors in jurisdictions with a population of less than 300,000 passed as SB 22 by Springer/Guillen. This bill will roughly double the amount of annual funds the State of Texas provides for local criminal prosecutions, and along with the funds provided for local sheriffs and constables, it can truly be called a “game changer” for local public safety going forward.

The success of these priority issues would not have been possible without the leadership, organizational efforts, and time commitments of TDCAA Legislative Committee co-chair Jennifer Tharp (Comal County CDA), TDCAA Compensation Committee chair Staley Heatly (46^th Judicial DA), and the members of those committees who got those bills filed and who sacrificed their time to testify for those bills and shepherd them through the legislative process. Well done!

One final word here: We are already receiving inquiries about the personal salary impacts of all this legislation. For starters—the bills have not been signed into law yet! So please, we are happy you are excited, but maybe tap the brakes on that for a minute. And even if signed, the bills don’t take effect until September. Now, that being said, we are happy to try to answer those questions for you, but please, PLEASE read the bills for yourself before calling us. If you don’t, we are going to ask you do that before we try to answer your question(s) because: 1) you may be able to answer your question for yourself, and 2) we can’t explain the impact of these different bills unless you have a basic understanding of what each of them does. Thanks in advance!

Prosecutor accountability

A compromise version of HB 17 by Cook/Huffman passed both chambers and now awaits the governor’s imminent signature. Most of the final enrolled bill mirrors the negotiated language initially passed by the House, with an additional prohibition against instructing assistant prosecutors or outside law enforcement agencies or officers to refuse to enforce or arrest for a class or type of criminal offense. Read the final enrolled version for all the details.

While none of you were probably eager to have a new ground of removal added to that current statute, we think it’s fair to say that this bill reflects a measured approach to the problem that avoids many of the potentially negative collateral consequences that other legislation posed, and once again, that successful outcome is entirely due to the hard work of those prosecutors who came to Austin to work tirelessly on this issue this session. Good job and good effort, everyone!

New laws

As the dust settles, the early quantitative results for the 88^th Regular Session look like this:

Bills filed:                                           8,576
Bills sent to governor:                     1,354 (15.8% passage rate)

Tracked bills filed:                              1,795 (21% of total)
Tracked bills sent to governor:        260 (14.5% passage rate)

One initial observation is that, while the 88th Legislature filed more bills than any other in history, the final output of passed bills was in line with most (non-pandemic) sessions. It will take us about a month to summarize all of the relevant new laws for our Legislative Update book and related publications—not counting anything added during a special session—so check our website in the coming weeks for more information about those updates.

As for tracked bills, most new laws don’t take effect until September 1, 2023, but a few take effect immediately upon being signed. Here are some of the “immediate effect” bills that have already been signed into law:

HB 1161 by Meyer/Parker (OAG address confidentiality program), eff. May 24, 2023
SB 423 by Paxton/Wilson (use of drones by Texas military forces), eff. May 19, 2023
SB 435 by Middleton/Bonnen (victims’ access to evidence in murder cases), eff. May 24, 2023
SB 1180 by Perry/K. King (lawsuits by civilly committed offenders), eff. May 24, 2023
SB 1325 by Alvarado/Goodwin (notice given to family violence victims), eff. May 13, 2023
SB 1413 by Johnson/Frazier (removal of personal property from right-of-way), eff. May 27, 2023

Sent to the governor

Other bills on the governor’s proverbial desk or headed that way include:

HB 3 by Burrows/Nichols on school safety
HB 30 by Moody/King closing the “dead suspect loophole” in the Open Records Act
HB 4635 by Guillen/Flores creating civil and criminal penalties for racketeering
SB 12 by Hughes/Shaheen criminalizing certain sexually suggestive gestures in the presence of anyone under 18 years of age
SB 991 by Hinojosa/Leach creating a DPS crime lab discovery portal
SB 1445 by Paxton/Goldman, the TCOLE sunset reauthorization bill
SB 1727 by Schwertner/Canales, the TJJD sunset reauthorization bill
SB 1893 by Birdwell/Anderson banning TikTok and related apps from state and local government devices

If you know of a bill sent to the governor that you want to support or oppose before it becomes law, contact Shannon for more details on how to do that effectively. The governor has 20 days after sine die to consider whether to sign or veto bills passed in the final 10 days of a session—which is the vast majority of them. This year, that veto deadline falls on Sunday, June 18 (Father’s Day). To date, Governor Abbott has already vetoed one tracked bill sent to him this session, but more are sure to follow.

Legislative Update CLEs

Based on the success of our pandemic-induced change from in-person Legislative Update CLEs to online presentations in 2021, TDCAA will once again be offering this popular course online. Although we will miss seeing many of you in person, we received overwhelmingly positive feedback in 2021 from remote attendees who appreciated the greater flexibility provided by offering this training online. Keep checking our Training webpage for details on when that online course will become available in August 2023.

For those of you who prefer in-person training, we will offer a live Legislative Update presentation on Tuesday, September 19, in Round Rock in conjunction with our Annual Criminal & Civil Law Conference being held that week at the Kalahari Resort and Convention Center. Again, check our Training webpage for the latest information.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas House appoints impeachment managers in case against Attorney General Ken Paxton” (KUT News)
• “The regular Texas legislative session started with a record budget surplus and ended with an impeached attorney general” (Texas Tribune)
• “Texas bill clamping down on ‘rogue’ district attorneys heads to Gov. Greg Abbott’s desk” (Houston Chronicle)

Quotes of Sine Die

“We expect, as this committee has thoughtfully engaged in the process with the highest level of integrity, that the individuals on the other side would realize dropping a binder [of defense evidence] on your potential jurors could be considered tampering or attempting to interfere with a lawful process. We are grateful that the lieutenant governor and the other senators so far have put out statements acknowledging that they individually will take this seriously and are going to behave in a manner that jurors will.”
            —State Rep. Ann Johnson (D-Houston), vice-chair of the House General Investigating Committee, in response to news that anonymous members of Ken Paxton’s defense team delivered a binder full of information to each state senator soon after the House impeached him.

“Also: Never believe it if anyone says ‘oh it’ll be a short special session with a narrowly focused agenda.’ The 30-day special session that led to @wendydavis’ filibuster started out as what was sold as a 3 day special session on redistricting. #txlege“
            —Tweet by Scott Braddock, editor of the Quorum Report.

BONUS: You may click HERE for a PDF version of the traditional end-of-session parody “Loco and Dissent” Calendar. (The legislative media outlet Quorum Report distributes this after every session with the caveat that “it is often racy and profane” and “the contents belong to anonymous writers, who session after session seem to capture what the entire community was mocking privately all along.” Much of the contents are inside jokes, but it may give you greater insight into what happened this session and why. Enjoy.)

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In anticipation of everyone (except us) preparing to enjoy a long holiday weekend, we are posting this update a day early.

It feels like a month’s worth of news has happened in the past four days. You’ve probably already seen most of that in your news source of choice, so we’ll ignore the more soap opera-ish storylines coming out of Austin and focus on the status of various bills, etc.

Preview

Four days remain before sine die on Memorial Day. Hundreds of bills have been sent to the governor. The only other measures still alive are those that have passed both chambers in different forms and must be reconciled before midnight on Sunday, May 28.

Dead bills

We always hesitate to tell people about bills that did not pass because some readers will inevitably misread them as having passed into law. So, to be clear: These bills are no longer moving. These bills failed to pass before this final week’s deadlines. These are dead bills. Dead.

OK, the list of now-dead bills includes:
HB 213 by Moody/Springer (“Second Looks” bill for youthful violent offenders)
HB 218 by Moody (cannabis penalty revisions)
HB 362 by Oliverson (legalization of fentanyl testing strips)
HB 381 by S. Thompson (procedure for barring intellectually disabled from death penalty)
HB 727 by Rose (procedure for barring the seriously mentally ill from death penalty)
HB 1667 by Jetton/Paxton (removing or reducing duties to report child abuse or neglect)
HB 1736 by Leach (limiting death penalty for those convicted under law of parties)
HB 2345 by Guillen (legalizing poker and poker rooms)
HB 2696 by Howard (expanding definition of lack of consent for sexual assaults)
HB 3183 by Schatzline (limiting the use of in-custody informants)
HB 3659 by Hefner (asset forfeiture reforms)
HB 3882 by Wilson (veterans court admission over prosecutor’s objection)
HB 4507 by Moody/Alvarado (county attorney DTPA actions for price gouging during disasters)
HB 4518 and HJR 172 by Cook (prosecutor-initiated resentencing)
HB 5159 by Bhojani (authorizing jury arguments after Allen charges)
SB 21 by Huffman/Leach (“rogue judge” sanctions)
SB 740 by Huffman/Oliverson (urban prosecutor protections against budget cuts)
SB 950 by Kolkhorst/Leach (OAG representation of local prosecutors sued in federal court)
SB 1318 and SJR 44 by Huffman/Smith (bail reform)
SB 2208 by Parker/DeAyala (expanded venue for Election Code crimes and related prosecutions)
SB 2424 by Birdwell/Hefner (criminal offense of illegal entry from a foreign nation) (*but this language is still alive after being amended onto HB 7)
SB 2593 by Springer/Moody (peace officer defense for using less-lethal devices)

As noted above re: SB 2424, we have to give you the general caveat with a list like this: The language from dead bills can re-appear as late amendments to other bills still moving through the process, so please remember what Yogi Berra never said until he said it: “It ain’t over ’til it’s over.”

Funding updates

Here’s the latest news we have.

Pay parity bill
Senate Bill 2310 by Hinojosa/Smith has passed both chambers and been sent to the governor for his consideration. This bill will grant certain elected felony prosecutors a 5-percent salary increase in a manner identical to that enjoyed by the judges (which may get even better depending on how HB 2779 gets resolved; more on that below). Congratulations to the members of TDCAA’s Compensation Committee who identified this as a priority issue for prosecutors and worked to fix it this session. Only one more (gubernatorial) hurdle to clear!

Cross-credit for elected prosecutors and judges
This was another priority issue for the Compensation Committee. The language granting elected judges and prosecutors credit for their service in the other role is part of HB 3474 by Leach/Hughes, this session’s omnibus court administration bill. That bill was approved by the Senate earlier this week after some changes, so now the House must either agree with those changes or go to a conference committee to change them.

Pay raise bill (HB 2779)
The Senate committee substitute version of HB 2779 by Leach/Huffman was approved by the full Senate yesterday after a few more floor amendments. This version of the bill creates a new third tier salary (10-percent pay raise after 12 years) and pushes back the current 5-percent longevity bump to apply after 14 years of service instead of 12. This will benefit some elected prosecutors, as we described in our previous update. It was also tweaked by the Senate to make sure judges benefit from their cross-credit time as prosecutors under this third tier (so if any of your judges have been blowing you up about that, you can put them at ease).

We keep hearing rumors that some judges are still not on board with taking a bird in the hand rather than the illusory two in the bush that they thought they were going to get this session. Only time will tell whether reality triumphs over wishful thinking among that group. Meanwhile HB 2779 will soon be returned to the House, where the bill author can concur with the Senate changes or go to conference over the differences.

Rural prosecutors grant funding
Senate Bill 22 by Springer/Guillen is now in conference to resolve differences between each chamber’s version regarding whether constables should be in the bill, how much money they should receive if so, and what that money can be spent on.

Urban prosecutor budget protections
Senate Bill 740 by Huffman (limiting urban counties’ ability to reduce prosecutor budgets) failed to pass the House before Tuesday’s midnight deadline and is now dead.

Prosecutor accountability bills

House Bill 17 by Cook/Huffman—which is identical to the Senate sponsor’s SB 20—is in a conference committee. Negotiations between the two chambers are on-going, but we are not in the room where that happens. (In truth, there isn’t even a room—most conference stuff gets resolved in one-on-one discussions—but who can resist a Hamilton reference?)

Elsewhere, all AG-prosecution-related bills are dead in the House. (Makes more sense in light of this week’s breaking news, eh?). Senate Bill 2208 by Parker/DeAyala, which would have moved the “neighboring county” venue provision of the Election Code into the Code of Criminal Procedure and applied it to non-Election Code crimes related to an election, is also dead.

Signed by the governor

Bills signed into law by Governor Abbott this past week include:

HB 467 by Craddick/Flores extending the statutes of limitation for certain assaultive crimes
HB 1207 by Guillen/Flores extending the statute of limitation for tampering with a dead body
SB 435 by Middleton/Bonnen authorizing disclosure of certain evidence to victims’ families (effective immediately)
SB 1319 by Huffman/Turner relating to overdose mapping in local communities
SB 1527 by Huffman/S. Thompson, this session’s omnibus human trafficking bill that (among many other things) creates a new Penal Code offense of “child grooming”
SB 2085 by Whitmire/Walle creating a grant program for local online victim notification systems
SB 2101 by Miles/Morales relating to manners of victim notification

The legislature has also finally passed HJR 107 by Price/Hinojosa to place on the ballot in November a proposition asking voters to amend the constitution by increasing the mandatory retirement age for judges from 75 to 79 years of age.

Sent to the governor

Bills on the governor’s proverbial desk or headed that way include:
HB 6 by Goldman/Huffman relating to criminal penalties for fentanyl
HB 1819 by Cook/Hughes repealing the authority of political subdivisions to impose juvenile curfews
HB 730 by Frank/Hughes relating to CPS abuse investigations
HB 1163 by Smith/King creating an offense of BWI with child passenger
HB 1712 by Canales/Alvarado requiring a magistrate’s name appear on certain signed orders
HB 1730 by Schaefer/Hughes increasing penalties for repeated indecent exposures
HB 4504 by Moody/Johnson making nonsubstantive revisions to multiple CCP chapters
SB 1045 by Huffman/Murr creating a 15th Court of Appeals for civil cases involving the state
SB 1361 by Huffman/Burrows creating a new crime for sexually explicit deep fake videos

Bills awaiting final action

Bills that are awaiting a resolution of differences between the versions passed by each chamber include:

HB 7 by Guillen/Birdwell creating a Texas Border Force and new crime of improper entry (awaiting House decision to concur in Senate amendments or go to conference)
HB 17 by Cook/Huffman relating to removing prosecutors for certain non-prosecution policies (in conference)
HB 30 by Moody/King relating to closing the “dead suspect loophole” in the PIA (in conference)
HB 55 by Ju. Johnson/Springer increasing penalties for certain indecent assault crimes (awaiting House decision to concur in Senate amendments or go to conference)
HB 422 by VanDeaver/Perry relating to certain remote proceedings in juvenile matters (awaiting House decision to concur in Senate amendments or go to conference)
HB 800 by Guillen/Flores enhancing punishments and imposing mandatory minimum sentences for various human smuggling-related conduct (awaiting House decision to concur in Senate amendments or go to conference)
HB 1227 by Metcalf/Bettencourt making child pornography a 3g crime (awaiting House decision to concur in Senate amendments or go to conference)
HB 2779 by Leach/Huffman relating to judicial branch pay raises (awaiting House decision to concur in Senate amendments or go to conference)
HB 3474 by Leach/Hughes, this session’s omnibus court administration bill which includes cross-credit salary language (awaiting House decision to concur in Senate amendments or go to conference)
HB 4635 by Guillen/Flores creating civil and criminal penalties for racketeering (awaiting House decision to concur in Senate amendments or go to conference)
HB 4843 by Holland/Huffman increasing penalties for certain felony offenses involving firearms (awaiting House decision to concur in Senate amendments or go to conference)
SB 22 by Springer/Guillen creating grant programs for rural law enforcement agencies and prosecutors (in conference)
SB 409 by Hinojosa/Leach relating to crime victims’ rights (awaiting adoption of conference committee report that removes mandamus/injunction language added by House)
SB 991 by Hinojosa/Leach creating a DPS crime lab discovery portal (awaiting Senate decision to concur in House amendments or go to conference)
SB 1445 by Paxton/Goldman, the TCOLE sunset reauthorization bill (in conference)
SB 1727 by Schwertner/Canales, the TJJD sunset reauthorization bill (awaiting Senate decision to concur in House amendments or go to conference)

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas Attorney General Ken Paxton likely broke laws, Republican investigation finds” (AP News)
• “As Texas Republican senators march in lockstep, Robert Nichols is willing to break away” (Texas Tribune)
• “Why ‘harm reduction’ is no match for fentanyl” (The Spectator)
• “How tranq has made the fentanyl crisis even worse” (The Spectator)
• “How dots on a map are helping combat the Texas fentanyl crisis” (WFAA News)
• “Author’s incorrect testimony appears to doom Texas bill giving young offenders a second chance” (Houston Chronicle)
• “Lawmakers try again to bar hypnosis-induced evidence from Texas criminal trials” (Texas Tribune)

Quotes of the Week

“What we cannot have—we absolutely cannot have—is a group of citizens who because they didn’t like the outcome [of the 2020 election] were then prepared to take up arms in order to foment a revolution. That’s what you did.”
            —U.S. District Court Judge Amit Mehta, during his sentencing of Oath Keepers’ leader Stewart Rhodes to 18 years in federal prison for seditious conspiracy due to his role in the January 6 attempt to prevent Congress from certifying the presidential election results.

“There seems to be an unfortunate, and I think unprecedented and unnecessary, attack on our judiciary on the other side of this building. We should not hold the entire judiciary hostage for what a couple judges, maybe a handful of judges, in one county in the state have done or failed to do.”
            —State Rep. Jeff Leach (R-Plano), announcing on the House floor earlier this week that he was delaying consideration of SB 21 by Huffman (R-Houston) in response to that senate author watering down his HB 2779 (23-percent pay raises for the judiciary). Senate Bill 21 was later killed by Rep. Leach, as reported in a story by the Houston Chronicle.

“It is alarming and very serious having this discussion when millions of taxpayer dollars have been asked to remedy what is alleged to be some wrongs. That’s something we have to grapple with. It’s challenging.”
            —State Rep. Andrew Murr (R-Junction), chairman of the House General Investigating Committee, as quoted in a Texas Tribune article about that committee’s recent hearing into allegations of malfeasance by Attorney General Ken Paxton.

“I ache for the families of the victims, the survivors, and my community. Although I am mindful of the criticism against me for declining public comment about the particulars of the ongoing investigation, I must remain steadfast in my responsibility to see that this investigation is conducted in such a manner as to withstand the inevitable scrutiny and critique which will be lodged upon its completion.”
            —Christina Mitchell, 38^th Judicial DA, in a statement issued on yesterday’s one-year anniversary of the Robb Elementary School shootings in Uvalde. Her office’s investigation is on-going.

BONUS: For your viewing pleasure, click the following link to view this session’s House blooper reel on YouTube (14 minutes long).

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Deadlines are nigh, and as time gets short, so do the fuses of some of the people working under the pink dome. If you reach out to a legislator or staffer and they seem more stressed than usual, please try to show them a little understanding and grace. There’s too little of that in the building right now.

Preview

Only 10 days remain before sine die on Memorial Day. Hundreds of bills are still moving through committees today in a last-ditch attempt to meet impending deadlines, and we’re doing our best to keep track of as much of it as we can. As a result, this update may be skimpier than usual because the fur is still flying. Legislators will also work on the floor tomorrow in an effort to beat some of these upcoming deadlines:

Saturday, May 20:  House committee reports on Senate bills must be filed
Sunday, May 21:  Final House calendar of Senate bills must be printed by 10 p.m.
Tuesday, May 23:  All Senate bills must be approved by House on 2nd reading before midnight
Wednesday, May 24:  All Senate bills must be approved by House on 3rd reading before midnight; all House bills must be approved by Senate on 2nd and 3rd reading before midnight.

When legislators return to work next Thursday morning, all that will remain to do is work on bills passed by both chambers in different forms that need to be reconciled and finally approved by both chambers by next Sunday. No substantive work can be done on Monday, May 29, the 140th and final day of the session.

Funding updates

Just the facts, ma’am. Here goes:

Pay raise in budget (HB 1)
The HB 1 Conference Committee disclosed some preliminary results of its negotiations over conflicts between the House and Senate versions of the next state budget. On the judicial pay raise front, the committee rejected the House’s proposed 10-percent raise in the judicial benchmark salary. (Not a surprise to us because the Senate was never on board with that idea.) As a result, any judicial branch pay raise now depends on the fate of HB 2779 (see next).

Pay raise bill (HB 2779)
Yesterday, the Senate Finance Committee laid out a new committee substitute for HB 2779 by Leach/Huffman. The version previously approved by the House would raise the judicial and prosecutor base pay of $140,000 by 22 percent over the next biennium but also freeze future retirement benefits for felony prosecutors absent an increase recommended by the Texas Ethics Commission (TEC)—that last bit being added by floor amendment before final passage in the House. However, the new version considered by the Senate Finance Committee is completely different.

Rather than an across-the-board raise, the Senate committee substitute to HB 2779 (PDF version viewable HERE) creates a new third tier of salary providing a 10-percent pay raise after 12 years of service ($182,000). The bill also pushes back the current judicial longevity bump of 5-percent of a judge’s current salary to apply it after 14 years of service instead of 12. (NOTE: SB 2310 by Hinojosa/Smith—which makes tenured elected felony prosecutors eligible for that same 5-percent judicial longevity increase—will fit seamlessly with this committee substitute language so that those prosecutors can also claim it. If our math is correct, that would result in a state salary of $191,100 after 14 years of service. More on that bill’s status below.) However, this new version of HB 2779 does freeze in place retired judges’ and prosecutors’ ERS benefits with no TEC option for an increase.

The substitute version of the bill was approved by the committee and will be eligible for consideration by the full Senate in a few days. You may hear some discontent from your judges about this change in HB 2779, but we are a little surprised by that reaction. Yes, this is a more targeted raise than the judges wanted, but it is no shock to us that the Senate would balk at increasing the salaries of local officials they have been criticizing for much of this session (see, e.g., SB 20 by Huffman [“rogue DAs”] and SB 21 by Huffman/Leach [“rogue judges”]). When viewed through that prism, this more limited Senate version makes sense. However, some of the judges who testified on the bill yesterday clearly did not get that memo and made clear their displeasure at the change—to the point where it would not have surprised us if the Senate committee just scrapped the whole thing. However, there were other, more astute witnesses who still testified in support of this slimmed-down raise, including Comal County CDA Jennifer Tharp. Despite getting a copy of the new proposal only minutes before testifying, she supported the proposal and thanked Chairwoman Huffman and her committee and staff for the many bills that are financially advantageous to prosecutors which are still moving toward final passage this session.

Should HB 2779 pass the Senate in this new form next week, it will then return to the House, which will either concur with the Senate’s changes or ask for a conference committee to hash out the details. How that will end up is anyone’s guess, but one thing we can tell you is that HB 2997 appears to be the only remaining vehicle for any kind of judicial pay raise now that the HB 1 Conference Committee has rejected a general across-the-board increase.

Pay parity longevity bump for elected felony prosecutors
As we mentioned above, SB 2310 by Hinojosa/Smith (pay parity with judges) passed the House on its Local and Consent Calendar this morning and will be on its way to the governor’s desk soon.

Cross-credit for elected prosecutors and judges
The language granting elected judges and prosecutors credit for their service in the other role is part of HB 3474 by Leach/Hughes, this session’s omnibus court administration bill, which is eligible for approval by the full Senate as soon as today.

Rural prosecutors grant funding
There are still two bills that could deliver substantial financial aid to local prosecutors seeking help to recruit and retain good employees. Unfortunately, HB 1487 by Gerdes (R-Smithville) has not received a hearing in the Senate Local Government Committee and is on life-support right now. However, SB 22 by Springer/Guillen passed the House this week (after the adoption of an amendment removing new language allowing funds to be used for elected prosecutor salaries) and now returns to the Senate. We have been told that the Senate is still not keen on some of the constable-related changes made in the House, so we expect the bill to go to a conference committee to iron out those differences. The last day for both chambers to adopt agreed versions of bills in conference is Sunday, May 28.

Urban prosecutor local budget protections
SB 740 by Huffman (limiting urban counties’ ability to reduce prosecutor budgets) passed the House State Affairs Committee this week and is now in the House Calendars Committee.

Prosecutor accountability bills

As of the time of this update being posted, there has been no House action on SB 1195 by Hughes (R-Mineola), the bill purporting to give the attorney general some (unconstitutional) prosecution powers over certain crimes. If that holds true for another 36 hours, that bill will be dead.

On the prosecutor removal front, the Senate version of HB 17 by Cook/Huffman—which is identical to the Senate sponsor’s SB 20—is awaiting approval by the full Senate as early as today. The bill will then likely go to a conference committee for the two chambers to hash out their differences.

There are two other bills that might fit under this (admittedly vague) category and are still moving. One is SB 2208 by Parker/DeAyala to move the “neighboring county” venue provision of the Election Code into the Code of Criminal Procedure, where it will also apply to non-Election Code crimes that are related to an election. That bill is in the House Calendars Committee.

The other is SB 409 by Hinojosa/Leach, an unobjectionable bill clarifying and expanding certain victims’ rights, which took on a surprise House floor amendment of language from HB 3786 by S. Thompson, a bill being pushed by the Texas Association Against Sexual Assault (TAASA) to allow victims to enforce various rights through mandamus or injunctive intervention in a criminal case. That stand-alone bill had been opposed by no fewer than nine prosecutors when heard in a House committee earlier this month and the bill has not been heard in the Senate, but the language from the bill suddenly reappeared as an amendment to SB 409 and was adopted without discussion on the House floor before the bill was passed in the lower chamber. Fortunately, the Senate author of SB 409 has refused to accept that amendment, so the bill will now go to a conference committee to strip out that late surprise addition before passing the underlying, agreed version of the bill on to the governor. There will certainly be further discussions about that proposal over the interim, though, so if this is an issue that interests you, contact Shannon to be included in those future debates.

Signed by the governor

Welcome to a new category!

For those who remember your Texas civics lessons, bills passed by the legislature automatically become law without the governor’s approval after a certain period of time because Texas law has no “pocket veto” provision, unlike the federal system. However, most governors like to sign bills into law for the PR value, so a host of bills were recently signed into law by Governor Abbott. Among those was SB 1325 by Alvarado/Goodwin “relating to the notice given to certain victims of family violence.” That’s a new notice requirement that will kick in on January 1, 2024, according to the terms of the bill. But remember, most bills will take effect on September 1, 2023, and some bills can take effect immediately upon being signed by the governor.

If you are wondering how you will keep up with all those different effective dates, never fear! Check this space in June for details about our upcoming Legislative Update CLEs where we will cover all the important changes coming your way, including effective dates!

Sent to the governor

Bills on their way to the governor’s desk include:

HB 28 by Slawson/Birdwell increasing punishments for certain aggravated assaults
HB 63 by Swanson/Sparks eliminating anonymous reporting of child abuse or neglect
HB 165 by A. Johnson/Whitmire increasing punishments for certain mass shootings
HB 598 by Shaheen/Whitmire creating a new criminal offense for the possession of an animal by someone previously convicted of animal cruelty
HB 1760 by Hefner/Hughes clarifying the scope of the Places Weapons Prohibited crime
HB 2015 by Leach/Zaffirini raising the age of jury service exemption to 75
HB 2306 by Hefner/Middleton expanding the offense of voyeurism
HB 2545 by Capriglione/Johnson restricting access to DNA from direct-to-consumer genetic testing companies
HB 3345 by Bonnen/Huffman doubling the sexually-oriented business “pole tax” to $10
SB 224 by Alvarado/Leach increasing punishments for the theft of a catalytic converter
SB 372 by Huffman/Leach criminalizing the leaking of draft judicial opinions
SB 728 by Huffman/Leach including juvenile mental health information in firearm background checks
SB 1124 by P. King/Neave Criado imposing qualifications to be a sheriff or candidate for sheriff
SB 1725 by Hughes/Leo-Wilson relating to expunctions for certain alcohol-related offenses
SB 2310 by Hinojosa/Smith regarding longevity pay parity for elected felony prosecutors

Future floor debates

Senate bills cued up for consideration by the full House today and in coming days include (in order of docketing):

SB 1045 by Huffman/Murr (creating 15^th Court of Appeals for civil cases involving the state)
SB 1445 by Paxton/Goldman (TCOLE sunset reauthorization bill)
SB 12 by Hughes/Shaheen (restricting certain sexually-oriented performances)
SB 129 by Springer/Meyer (child pornography punishment ranges based on number of images)
SB 1518 by King/Guillen (terrorist offender registry)
SB 402 by Whitmire/Harless (trial court priority for murder and capital murder cases)
SB 386 by Hall/Harless (presumption in capital murder cases involving peace officer victims)
SB 338 by Hinojosa/Leach (ban on State’s use of hypnotically-induced statements at trial)
SB 991 by Hinojosa/Leach (creating a DPS crime lab portal for discovery)

House bills eligible for consideration by the full Senate today and tomorrow include:

HB 17 by Cook/Huffman (removal from office of prosecutors)
HB 291 by Murr/Hughes (occupational driver’s licenses)
HB 420 by Slawson/Flores (increasing punishments for providing alcohol to a minor)
HB 422 by VanDeaver/Perry (remote proceedings for juvenile detention hearings)
HB 3474 by Leach/Hughes (omnibus court creation and administration bill)
HB 3956 by Smith/Creighton (DNA collection upon felony arrest)
HB 5010 by Schofield/Hall (limitation on filing of State Bar grievances)

Future committee hearings

None. Amen.

Scattershooting

Here are some recent stories you might’ve missed:

• “GOP-Backed Laws Could Oust Local Prosecutors” (Bloomberg News)
• “Texas budget writers move to block funding for AG Paxton’s $3.3M whistleblower settlement” (Dallas Morning News)
• “Drug Overdose Deaths Topped 100,000 Again in 2022” (Wall Street Journal)
• “GOP border bill expanded to stiffen penalty for human smuggling, create border-crossing crime” (Texas Tribune)
• “It Doesn’t Matter How Strong Texas’ Election Laws Are Until Someone Enforces Them” (TPPF)
• “The Dangers of Prosecutorial Nullification” (The Dispatch)

Quotes of the Week

“It’s the Stone Age again.”
            —Douglas Huff, president of the Dallas Criminal Defense Lawyers Association, as quoted in this Dallas Morning News article on the inability of the Dallas Police Department to access evidence in the wake of a hostile ransomware attack.

“Unfortunately, if this bill were to pass, those 1,000 children would be left to continue experiencing abuse and neglect or worse. Leaving children in danger can have disastrous consequences. Last year, 182 Texas kids died of abuse and neglect.”
            —Kate Murphy, director of child protection policy at Texans Care for Children, testifying in opposition to HB 63 by Swanson/Sparks, which proposes to eliminate anonymous reports of child abuse or neglect. Ms. Murphy noted that there were more than 12,000 anonymous reports in 2022, of which about 1,000 resulted in a substantiated finding of abuse or neglect. (The bill passed the legislature yesterday and is now headed to the governor’s desk.)

“We do think we need to consider increases in the base pay as we go forward, and I’ll tell for you a different reason that what you’ve heard: The voters of Texas need to fire some of their judges. They just do. We’ve got lots of good, hardworking judges in Texas who are following the rule of law, but we’ve got a few out there that just don’t care what it is that you all have done legislatively in the statutes of this state. They’re not paying attention to it. They’re deciding cases based on whatever they think is right [at] that given period of time. They need opponents. To get good opponents, those opponents need to know that the pay is going to be worthwhile, taking that risk in their job to go run for election. So, for reasons that I don’t think anybody else will tell you, we’ll tell you the voters need to fire some judges and the new judges need to think that it’s worthwhile to go run for office. So, thank you for what you’re doing.”
            —Lee Parsley, general counsel for Texans for Lawsuit Reform, testifying in favor of HB 2779 by Leach/Huffman (judicial pay raise bill). (To view the full 25-minute discussion of that bill in committee, fast forward to the 32:00 mark of this archived video.)

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(updated May 12, 2023 at 3:40pm)

Two(-ish) weeks remain in this crazy session. We are tempted to tell you that you have “two weeks to stop <insert bill you don’t like here>,” but that didn’t work with COVID, so we won’t jinx you.

Preview

As this update goes out, the House is working through the rubble of the hundreds of House bills that died at midnight last night, passing the “winners” on final (third) reading and sending them to the Senate. In that upper chamber, senators are working on the floor today for their first Friday of the session. Next week, both chambers will focus on bills from the other side, marking a reduction in the amount of legislation still in play for these final two weeks to “only” about 2,500 bills, 400+ of which we are still tracking (or trying to track).

Due to the sausage-making and deal-cutting that occurs before every impending deadline, we know that some bad stuff happened the past few days—we just don’t know what it is! We will try to review the hundreds of bills and amendments that were crammed through the meat-grinder this week with little or no discussion or debate, so don’t be surprised if we issue some mid-week updates in the coming days upon discovery of the inevitable legislative skullduggery that occurs at the end of every session.

Funding updates

We’ve got more news on this front that you can shake a stick at, but we’ll give it a shot:

Pay raise bill
Earlier this week, the House has passed HB 2779 by Leach (R-Plano) to raise the judicial and prosecutor base pay of $140,000 by 22 percent over the next biennium. We warned you in last week’s update that ERS has asked the legislature to freeze future retirement benefit increases at current levels for certain retired judges in JRS 1 and felony prosecutors in ERS, and HB 2779 passed with one twist—an amendment that froze elected prosecutor retirement benefits, but not those for JRS 1 judges. That will cost the state an extra $8 million over the biennium, but hey, they have fancy robes and must be more important than you, right? Consider this another reminder that elected felony prosecutors might want to explore a return to TCDRS for retirement benefits in the upcoming interim.

Pay raise in budget
Regardless of the fate of HB 2779 in the Senate (where such pay raise proposals have always had a cooler reception), the House version of HB 1 already includes funding for a 10-percent increase in the judicial benchmark salary. That does not require separate legislation to pass—nor does it freeze retired felony prosecutors’ benefits—but there was no similar language in the Senate version of the budget bill. Accordingly, the fate of both of these proposals is still up in the air.

Rural prosecutors grant funding
Good news on two fronts here. First, SB 22 by Springer/Guillen was reported from the House County Affairs Committee this week and is now scheduled for debate on the House floor on Monday. That is the original bill to send a total of about $50 million per year to certain local prosecutor offices (in counties of less than 275,000 population) throughout the state for personnel costs. However, the committee substitute version includes an unanticipated addition that needs to be removed to ensure its acceptance in the Senate. Specifically, Rep. Bryan Slaton (R-Royce City)—who was a member of the County Affairs Committee before his historic expulsion from the chamber earlier this week—added a provision that would allow an elected prosecutor to claim the entire grant award from the state for his or her personal salary. This was never discussed in the committee, nor was that idea ever mentioned to us as a possibility before it was added and passed out of the committee. We have also been told that such an addition is a deal-breaker in the Senate, so we anticipate that new wrinkle being ironed out of the bill on the House floor.
In related news, those of you who heeded our mid-week alert about HB 1487 by Gerdes (R-Smithville) to ask your House members to approve an amendment adding prosecutors into that sheriff/constable grant program were successful! The amendment was adopted and then passed as part of the bill on third reading, so that measure now heads to the Senate with prosecutors included in it. As a result, the two similar (but not identical) measures to provide significant funding to some of your offices are both progressing, which is always good news at this late stage.

Urban prosecutor budget protection
SB 740 by Huffman (limiting urban counties’ ability to reduce prosecutor budgets) is scheduled for a hearing before the House State Affairs Committee on Monday afternoon (see committee posting below for more information).

Cross-credit for elected prosecutors and judges
The language that grants elected judges and prosecutors credit for their service in the other role was originally filed as HB 2734 by Murr (R-Junction) and was also added to HB 3474 by Leach/Hughes, this session’s omnibus court administration bill. That latter bill passed the House and then passed the Senate Jurisprudence Committee this week. It now heads to the Senate Intent Calendar as soon as next week.

Pay parity longevity bump for elected felony prosecutors
SB 2310 by Hinojosa/Smith (pay parity with judges) was reported from the House Judiciary & Civil Jurisprudence Committee and recommended for that chamber’s Local and Consent Calendar. Furthermore, Senator Hughes (R-Mineola) accepted a request to include that same language into his Senate version of HB 3474, the omnibus court admin bill mentioned above. As a result, both of the priority bills recommended by TDCAA’s Compensation Committee (cross-credit and pay parity) are now part of HB 3474. If that bill passes the Senate in the next week or so and returns to the House, Rep. Leach (R-Plano) will then decide whether to accept the Senate changes or go to a conference committee to work out any differences.

Whew! OK, that was a lot to cover. But now, the inevitable caveat: ANY OR ALL OF THIS COULD GO SOUTH AT ANY TIME. Those of you who remember how the last regular session ended in 2021 don’t need us to tell you that. So please, don’t start counting any chickens before they’ve hatched. There is a lot of work (and maybe some praying!) yet to be done on these measures.

Prosecutor accountability bills

AG prosecutions
Last week, we told you about an AG-as-prosecutor measure—SB 1195 by Hughes (R-Mineola)—that was quickly rammed through committee. After several days of delay, the bill was called up today at 2:20 p.m. for consideration on the Senate floor when one of the bill’s opponents was absent. That allowed the author to suspend the 5/9ths Rule on a 17—13 vote (the bare minimum needed to bring it to the floor). Several Democratic senators raised questions about the bill’s constitutionality and how the bill would work in practice, but the result was pre-ordained. The bill now carries over to next week to await final approval on third readingpasses to the House for referral to a committee next week.

Interestingly, one of the bill author’s stated reasons for the bill is to not only provide a back-up prosecutor, but to mandate that the AG prosecute the case—which, if read literally, would also make the bill unconstitutional as a violation of prosecutorial discretion (regardless of who the prosecutor is). But as we’ve noted before, this is not about constitutional prosecutions.

Prosecutor removals
As with SB 1195 last week, this week we had another short-notice hearing in a Senate committee yesterday on a “prosecutor accountability” bill. Specifically, HB 17 by Cook/Huffman—the bill to define misconduct in removal proceedings to include the adoption or announcement of certain non-prosecution policies—was heard in the Senate State Affairs Committee after barely a day’s notice before it happened (and if you haven’t already figured it out, this will be par for the course on many bills going forward). The substitute version of HB 17 that was laid out in committee is essentially the language the Senate already passed as SB 20 by Huffman. At the hearing, Smith County CDA Jacob Putman testified “on” the bill and Williamson County DA Shawn Dick testified against the bill, and several election- and abortion-related witnesses also weighed in for or against it.

The bill was left pending, but we expect it to be voted from committee today or Monday. This old-is-new-again version of HB 17 will then be eligible for Senate floor debate next week, and we expect it to pass by a partisan margin similar to that of SB 20 a month ago. Our best guess at this point is that the House will then refuse to agree to the Senate language (because SB 20 has not moved in the House the past month), and then the two chambers will form a conference committee to work out their differences behind closed doors.

Bring out your dead

Last night marked the deadline by which all non-local and consent House bills had to receive approval on second reading. Assuming those bills are finally approved on third reading today, they survive and advance, but all other House bills not sent to the Senate by the end of business today will be dead. Or at least dead in bill form, that is; the language from a dead bill can always re-appear as a floor amendment to another bill, so nothing is truly over until sine die.

So, what House bills turned to pumpkins at the stroke of midnight last night? Some that we’ve been following for you this session that are now dead by procedural action include:

HB 200 by Leach (creating a prosecutor disciplinary council)
HB 799 by Cody Harris (anti-Brady list bill)
HB 1258 by S. Thompson (grand jury reforms)
HB 1627 by Hernandez (mandated implicit bias training for all judges and lawyers)
HB 1874 by Noble (recovery of defendant’s attorney’s fees in civil asset forfeiture proceedings)
HB 2843 by Kuempel (casino gambling)
HB 3247 by Cain (creating criminal offense of prosecutorial misconduct)
HB 3675 by Ortega (mandatory management training for certain elected prosecutors)
HB 4487 by Smith (student loan repayment for rural prosecutors and public defenders)

Sent to the governor

Bills on their way to the governor’s desk include:

HB 467 by Craddick/Flores extending the statutes of limitations for certain assault offenses
HB 914 by Hefner/Whitmire criminalizing certain temporary vehicle tag offenses
HB 1088 by A. Johnson/Whitmire allowing OAG to represent CSCD officers in certain lawsuits
HB 1207 by Guillen/Flores extending the statute of limitations for tampering with a dead body
HB 1910 by Anchia/N. Johnson creating a presumption in certain forgery cases
SB 435 by Middleton/Bonnen authorizing pre-trial disclosure of certain evidence to homicide victims’ families
SB 840 by West/Anchia increasing penalties for assaulting certain hospital personnel
SB 1319 by Huffman/Turner authorizing overdose mapping for public safety purposes
SB 1527 by Huffman/Thompson, this session’s omnibus human trafficking bill

One chamber down, one to go

The bills on this next list are halfway home. Speak now or forever hold your peace.

The following House bills passed the House this past week:
HB 7 by Guillen (border security and border grant programs)
HB 182 & HJR 11 by S. Thompson (court-initiated commutations of parole)
HB 327 by S. Thompson (making duress a subjective defense)
HB 361 by S. Thompson (limiting incarceration for defendants who are parents)
HB 381 by S. Thompson (pretrial procedures for excluding defendants with intellectual disabilities from the death penalty)
HB 800 by Guillen (mandatory minimum punishments for smuggling-related offenses)
HB 905 by Moody (time credits for confinement on other charges)
HB 1215 by Cook (barring public employers from considering criminal histories before hiring)
HB 1977 by Morales Shaw (pretrial intervention program for certified juveniles in adult court)
HB 2129 by Burns (merchant-run theft education programs as an alternative to arrest for theft)
HB 2646 by Jarvis Johnson (exempting TDCJ inmates from paying court fines/fees)
HB 2687 by Leach (excluding children under 13 from juvenile jurisdiction)
HB 2992 by Harrison (asset forfeiture reporting + a new ban on forfeiting vehicles of < $10k)
HB 3183 by Schatzline (limits on use of in-custody informants as witnesses)
HB 3782 by Guillen (creating a state border protection task force for enforcing immigration laws)
HB 3786 by S. Thompson (granting victims injunction/mandamus powers in criminal cases)
HB 3882 by Wilson (allowing participation in veterans courts over prosecutor objection)
HB 4382 by Guillen (mandated CJIS reporting and consequences for state grants)
HB 4507 by Moody (price gouging lawsuits filed by county attorneys)
HB 4518 & HJR 172 by Cook (prosecutor-initiated resentencing [commutation of old cases])
HB 4642 by Guillen (yet another criminal offense for causing death by fentanyl)
HB 5007 by Plesa (automatic expunction of acquittals)
HB 5159 by Bhojani (additional jury argument after Allen charge)

The following Senate bills passed the Senate this week:
SB 1579 by Bettencourt (expedited PIA reviews requiring new PIO training and fines of local entities for abuse)
SB 2208 by Parker (concurrent jurisdiction for election crimes in neighboring counties)

Future committee hearings

Some of the bills scheduled to be heard in committees next week are listed below. For the full agenda of each committee, click on the link to the committee itself.

Monday, May 15

House State Affairs – 1:30 p.m. or upon final adjournment, Room E2.012

• SB 740 by Huffman limiting budget reductions for prosecutors in certain urban counties
• SB 950 by Kolkhorst authorizing OAG to defend certain prosecutors sued in federal court

Tuesday, May 16

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

• SB 436 by Middleton increasing penalties for purchasing/selling human organs
• SB 726 by Kolkhorst increasing penalties for intoxication manslaughter of multiple victims
• SB 1011 by Parker increasing punishments for certain human trafficking offenses
• SB 1267 by Parker increasing punishments for operating a stash house
• SB 2593 by Springer creating a retroactive defense for law enforcement defendants who cause bodily injury or serious bodily injury by less-lethal projectile devices

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

• HB 420 by Slawson increasing penalties for providing alcohol to minors
• HB 422 by VanDeaver authorizing remote proceedings in juvenile detention hearings
• HB 844 by Patterson relating to crime victims’ compensation and human trafficking
• HB 1184 by Rose relating to criminal history record information used for research
• HB 1427 by Campos creating a new manner and means for harassment
• HB 1769 by Meyer extending certain statutes of limitations
• HB 2620 by Geren relating to state compensation for inmates in county jails
• HB 2670 by Howard relating to making permanent the Sexual Assault Survivors’ Task Force
• HB 2700 by Guillen relating to sexually explicit visual material involving children
• HB 2877 by T. King relating to crime victims’ compensation
• HB 2897 by Walle relating to theft of service cases
• HB 3025 by Vasut relating to interference with child custody offenses
• HB 3186 by Leach relating to youth diversion procedures in fine-only offenses
• HB 3553 by Thierry increasing penalties for certain human trafficking cases
• HB 3554 by Thierry increasing penalties for certain other human trafficking cases
• HB 3660 by Vasut creating a defense in the cruelty to non-livestock animal offense
• HB 4528 by Wilson relating to the driver’s license of a person who fails or refuses certain intoxication-related tests
• HB 4879 by Holland relating to incident-based reporting of crime statistics
• HB 4906 by Hefner authorizing tracking equipment use by certain peace officers

Wednesday, May 17

Senate Transportation – 8:00 a.m., E1.016

• HB 291 by Murr revising occupational driver’s license laws

<< Please visit our Legislative webpage for the latest committee postings.>>

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas bill creating new state border unit killed by Democrats but GOP keeps effort moving” (Dallas Morning News)
• “Could proposed Texas bills to ban drag shows also ‘criminalize’ Dallas Cowboys cheerleaders?” (Fort Worth Star-Telegram)
• “Daniel Perry is sentenced to 25 years for killing an Austin protester. Gov. Greg Abbott has pledged to pardon him.” (Texas Tribune)
• “She Wrote of Grief After Her Husband Died. Now She’s Charged in His Murder.” (New York Times) (not lege-related, we just found this case fascinating!)
• House Committee on General Investigating: Report in re Rep. Bryan Slaton recommending expulsion from the House (PDF version) (for those curious why a state representative was expelled from that chamber for the first time since 1927)

Quotes of the Week

“[T]his proposal comes amid broad support for targeted reconsideration of sentences that exceed 10 years. … [T]he vast majority of people who have served a decade or more in prison could have been released earlier without compromising public safety.”
            —Opinion piece in the San Antonio Express-News by Hillary Blount, a former California prosecutor, and Marc Levin, formerly of Right on Crime, advocating for the passage of HB 4518 & HJR 172 by Cook (R-Mansfield) to implement a California-style “prosecutor-initiated resentencing” in Texas. The bills have passed the House and are now in the Senate.

“[If prosecutors don’t like a law, then] they need to petition the Legislature to change the law. But at the end of the day, you need to enforce the law. And if that’s not going to happen, then we need a backup, and I think this is the proper backup here.”
            —State Sen. Mayes Middleton (R-Wallisville), explaining why he supports SB 1195 by Hughes to grant the attorney general prosecution authority over certain crimes du jour. That bill received approval from the Senate on a party-line vote.

“You will have a bigger chance of getting a [Republican] primary opponent if you actually support a gun control measure. Until someone loses an election based on the gun issue, there’s not going to be any change.”
            —Vinny Minchillo, GOP political consultant from Plano, as quoted in a Dallas Morning News article on whether the Allen outlet mall mass murder will result in any changes at the legislature.

“Predatory behavior merits such a consequence. I hope the action we’ve taken here today sends a message that sexual harassment and inappropriate activities in the workplace will not be condoned and they are unacceptable.”
            —House Speaker Dade Phelan (R-Beaumont), after the House expelled from office Rep. Bryan Slaton (R-Royce City) for having sex with a teenaged employee whom he first plied with alcohol.

###

Happy Cinco de Mayo. With only veinticuatro dias to go before the legislature adjourns sine die, things are about to get loco. Prepare yourselves.

Preview

As this update goes out, the House is doing its best not to melt down over a transgender-related bill (don’t ask us the details, we stay in our lane). Assuming the building is still standing after that debate, the House will also meet Saturday, and then both chambers crank up again on Monday. The public will get only 24–36 hours of notice of floor debates going forward, and perhaps even less notice of committee hearings, so forgive us in advance if we miss something that is important to you.

Deadlines

Next week is Deadline Week in the House. The final House floor calendar for House bills (other than local bills) must be printed by 10 p.m. on Tuesday, May 9, and House bills on that final calendar must be approved on second reading by midnight on Thursday, May 11. Any general House bill that doesn’t cross that bridge before then is cast into the pit of despair.

For those still hoping for their House bills to beat the clock … may the odds be ever in your favor.

AG bills on the move

Now is the point in a session when things can change quickly. Case in point: SB 1195 by Hughes (R-Mineola), which would mandate that the AG take over prosecution of election, abortion, human trafficking, and various public integrity-related crimes if a local prosecutor has not “initiated proceedings to prosecute” within six months of getting a probable cause report from a law enforcement agency. (No, we don’t know what a “PC report” is either, but the people drafting these AG-fan-fiction bills aren’t criminal practitioners, so just ignore that for now.) Senate Bill 1195 had been sitting the Senate State Affairs Committee for weeks without a hearing when it was suddenly re-referred from that committee to the Senate Jurisprudence Committee on Tuesday afternoon, and then a few hours later all applicable rules were suspended so that the bill could be heard on Wednesday morning without the usual required notice. So, why the rush?

For starters, the Fort Worth Star-Telegram just coincidentally ran an opinion piece by the attorney general on Wednesday encouraging the legislature to pass such laws. But also, the clock is ticking on the plan to wire around the Stephens opinion without amending the state constitution. (We laid this out for you more than two months ago HERE; see “Separations of powers under attack.”) This two-step approach needs both SB 1995 and SB 1092 by Parker (R-Flower Mound) to pass. The latter has been eligible for Senate floor consideration for some time without being called up for a vote, indicating that it may lack the necessary support on the Senate floor. (Perhaps that explains the AG’s exhortation in the FWST opinion piece for his supporters to call on their Republican state senators to move the bills?)

As for the short notice hearing on SB 1195, several prosecutors made it to the capitol in time to register opposition to the patently unconstitutional proposal, as did the criminal defense bar. An employee of the AG’s office testified to the alleged need for the legislation to combat election fraud, but he also had to address recent human trafficking prosecution failures by that office in Bexar County and Coryell County. But election and trafficking cases aside, the majority of the testimony in the committee was from witnesses concerned about the enforcement of abortion-related crimes, which was a good reminder of what else is providing the partisan winds under these sails. (Kudos to a witness on election fraud who steered the committee into a Tammany Hall discussion, though—that was fun for all us history majors in the audience.) For those interested in watching the discussion on SB 1195, you can access the archived video HERE (starting at the 05:20 mark and continuing for about 75 minutes).

The bill was eventually voted out of the committee on a 3R–2D partisan vote (to the surprise of no one). Senate Bill 1195 will be eligible for Senate floor debate early next week, so if that concerns you, consider following General Paxton’s suggestion and let your Senate delegation know your thoughts.

Funding update

Tomorrow the full House will consider HB 2779 by Leach, which in its current form would increase the judicial benchmark salary by 23 percent. However, if you recall the discussion of retirement benefits in our last update, you know that ERS believes DA retirement benefits must be locked in at current rates to maintain actuarial soundness. The language to do that was added to SB 1509 (as we told you last week), but this week it was removed from SB 1509 before that bill finally passed, and the language has now been substituted into HB 2779. It is also possible that more changes could be made to HB 2779 before it passes from the House over to the Senate. Stay tuned.

In other funding/salary news:

HB 2734 by Murr (cross-credit for prosecutors and judges) was never reported from its committee after being approved, but the same language is in HB 3474 by Leach/Hughes, the omnibus court administration bill that has passed the House and will soon be referred to the Senate Jurisprudence Committee.
HB 4487 by Smith (rural prosecutor and public defender student loan repayment) was never voted from the House Higher Education Committee and is likely dead.
A substitute version of SB 22 by Springer/Guillen (rural sheriff and prosecutor grant funding) was approved by its House committee more than a week ago but still has not been “reported” (which means the paperwork isn’t completed). That kind of delay is not unusual at this point in a session.
SB 740 by Huffman (limiting urban prosecutor budget cuts) passed the Senate and was referred to the House State Affairs Committee almost four weeks ago but hasn’t received a hearing.
SB 2310 by Hinojosa/Smith (pay parity with judges) was heard in the House Judiciary & Civil Jurisprudence Committee and left pending. (You can thank 21^st Judicial DA Julie Renken for coming to Austin to testify in support of the bill.)

TAC notes

Speaking of the state budget, our friends at the Texas Association of Counties (TAC) are following an issue that might interest some of you. Specifically, the Senate version of the budget (HB 1) reduces funding for the Texas Indigent Defense Commission (TIDC) to the tune of a $11.4 million budget shortfall. This gap could have a disproportionate effect on rural communities, where indigent defendants are four times more likely to go without an attorney than in urban areas. Restoring TIDC funding helps ensure counties can meet their constitutional obligation to provide counsel, so if this concerns you as well, consider letting your Senate delegation know your thoughts so they can help their colleagues on the HB 1 conference committee make well-informed decisions.

Bills still on the move

Several House bills we’ve been following for you this session just emerged from their committees in the last tidal wave of committee reports issued before next week’s House deadlines. Those bills, which are now in the Calendars Committee, include:

HB 200 by Leach (creating a prosecutor disciplinary council)
HB 1874 by Noble (recovery of defendant’s attorney’s fees in civil asset forfeiture proceedings)
HB 2992 by Harrison (data collection in civil asset forfeiture cases)
HB 3675 by Ortega (mandatory prosecutor management training)
HB 3786 by S. Thompson (victim mandamus/injunction to enforce rights)
HB 3882 by Wilson (veterans court admission over prosecutor’s objection)
HB 4518 & HJR 172 by Cook (prosecutor-initiated commutation of non-3g felons in prison)

If any of these bills concern you, contact members of that House committee, stat. Note also that this wave of controversial bills coming out of House committees will not crest until this weekend, so if there is a specific bill that you are following and want to be notified about ASAP, contact Shannon.

Elsewhere:

HB 17 by Cook (prosecutor removal) has been referred to the Senate State Affairs Committee.
HB 2127 by Burrows (preemption of local civil enforcement) was approved by a Senate committee and will soon be eligible for consideration on the Senate floor.
HB 2139 by Burrows (code construction and writ-of-error fallacy bill) was postponed indefinitely by its author, so those of you concerned about that bill can move on to other projects.
HB 3659 by Hefner (civil asset forfeiture reforms) passed the House 139–5 and is now in the Senate.

Sent to the governor

Bills on their way to the governor’s desk include:

HB 842 by Patterson/Whitmire relating to DL suspensions
SB 49 by Zaffirini/M. Gonzalez relating to crime victims’ compensation
SB 1004 by Huffman/Herrero criminalizing tampering with an electronic monitor device
SB 1325 by Alvarado/Goodwin expanding notice given to certain crime victims

One chamber down, one to go

The bills on this next list are halfway home. Speak soon or forever hold your peace.

The following House bills have passed the House:

HB 30 by Moody (closing “dead suspect” loophole in open records laws)
HB 247 by S. Thompson (prosecutor authorization of subsequent writ)
HB 270 by S. Thompson (expanded post-conviction DNA testing)
HB 410 by S. Thompson (no arrest for Class C or fine-only offenses)
HB 438 by Schofield (tying judicial branch salaries to consumer price index)
HB 469 by Smith (judicial discretion to grant jury sequestration)
HB 1163 by Smith (boating while intoxicated with child passenger)
HB 1927 by Hull (parental intervention and diversion of child in lieu of emergency detention)
HB 2345 by Guillen (legalizing poker rooms)
HB 3474 by Leach (128-page omnibus court creation and court administration bill)
HB 3659 by Hefner (civil asset forfeiture reforms)
HB 4622 by Leach (remote proceedings in criminal and juvenile cases)
HB 4635 by Guillen (creating a civil and criminal RICO law)
HB 4966 by King (peace officer separation from law enforcement agency)
HJR 11 by S. Thompson (authorizing courts to commute certain prison sentences)

The following Senate bills have passed the Senate:

SB 1166 by Birdwell increasing penalties for theft of firearm from a vehicle

Future committee hearings

Some of the bills scheduled to be heard in committees next week are listed below. For the full agenda of each committee, click on the link to the committee itself.

Monday, May 8

(None posted yet)

Tuesday, May 9

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

• SB 129 by Springer relating to how child pornography cases are punished
• SB 386 by Hall creating a presumption in certain capital murder prosecutions
• SB 467 by Bettencourt increasing penalties for tampering with motor fuel pumps
• SB 1346 by Miles relating to certain littering offenses
• SB 1361 by Huffman criminalizing certain sexually explicit deep fake videos

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

• SB 187 by Miles criminalizing the failure to report certain crimes in group homes
• SB 189 by Miles criminalizing the failure to report certain crimes in boarding homes
• SB 515 by Hall relating to the child abuse and neglect registry

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

• HB 28 by Slawson/Birdwell increasing punishments for certain aggravated assaults
• HB 165 by A. Johnson/Whitmire increasing punishments for other types of aggravated assaults
• HB 393 by Goldman/Paxton requiring child support restitution payments by certain intoxication manslaughter defendants
• HB 517 by Ju. Johnson/Parker relating to parole panel considerations
• HB 541 by Longoria/Hinojosa relating to charitable donations by probationers
• HB 568 by Bowers/Menendez relating to peace officer training regarding dementia
• HB 1221 by Metcalf/Zaffirini relating to unclaimed property and crime victims
• HB 1442 by A. Johnson/Bettencourt relating to street takeovers and forfeitures
• HB 1826 by Turner/Whitmire creating an organized retail theft task force
• HB 2251 by Raymond/Zaffirini relating to computerized criminal fee records
• HB 2306 by Hefner/Middleton relating to the offense of voyeurism
• HB 2454 by Guillen/Huffman criminalizing the unlawful acquisition of firearms
• HB 2708 by Swanson/Flores relating to TDCJ visitation policies
• HB 3075 by Kacal/Flores criminalizing drones flown over correctional facilities

<< Please visit our Legislative webpage for the latest committee postings.>>

Scattershooting

Here are some recent stories you might’ve missed:

• “How George Floyd-inspired activism backfired in Texas, fueling a crackdown on protesters” (Houston Chronicle)
• “Scooby doobie don’t: Discarded joints pose hazards for dogs” (AP News)
• “Heavy Marijuana Use Increases Schizophrenia in Men, Study Finds” (Bloomberg)
• “Most Texans look to Republican leaders to resolve differences, deliver on major priorities” (Texas Politics Project [poll results])
• “Texas AG Ken Paxton falsely blames Travis County DA for dropping charges against Capitol protesters” (Houston Chronicle)

Quotes of the Week

“We regret if the information was incorrect and detracted from the important goal of finding and arresting the criminal.”
            —Response from the office of Gov. Greg Abbott (R-Houston) after his controversial press release that highlighted the immigration status of the shooting victims (but not the suspect) in Cleveland, Texas, last week.

“A DA is an elected official, meaning political considerations could affect the decision to prosecute local election crime if doing so would damage his or her electoral ambitions or political allies.”
            —Texas AG Ken Paxton (R-McKinney), in an opinion piece in the Fort Worth Star-Telegram this week explaining why he thinks the legislature should give him—an elected official—prosecutorial powers over election-related crimes that he believes cannot be entrusted to other elected officials.

###

A mere 31 days remain in this regular session. Let the mensis terribilis commence!

Preview

Legislators are about to start their sprint to the finish line. That means more time spent on their respective floors and less in committees. Topics to be discussed today and next week include civil asset forfeiture reforms, policing reforms, CPS reforms, and various other we-don’t-trust-the-institutions-we-created reforms. Read on for details!

House Bill 17

Yesterday, the House debated and passed on second reading HB 17 by Cook (R-Mansfield), the prosecutor accountability bill that defines misconduct for purposes of removing a prosecutor from office to include implementing categorical non-prosecution policies. The debate was spirited, and the author accepted several floor amendments to address potential unintended consequences of his legislation before it eventually passed on second reading by a 92–55 margin. (Update: The bill was finally passed without further change on third reading today and will now be sent to the Senate for further consideration.)

Current indications are that the Senate is likely to act on HB 17 in lieu of pushing for the House to accept SB 20 by Huffman (R-Houston), which the Senate sent over to the House weeks ago. However, the Senate is unlikely to approve all of the amendments to HB 17 adopted by the House, so the bill will have to navigate the process in that upper chamber anew and possibly go to a conference committee before we have more clarity on what a final version might look like.

If you want to watch the second reading debate on HB 17, click HERE (starting at the 3:00:02 mark and lasting 48 minutes).

If you want to read the limited portion of the Q&A discussion that was transcribed and printed in the House journal, click HERE.

Grand jury reforms

Just as the famous swallows return to Mission San Juan Capistrano every spring, every session the legislature considers a bill on grand jury reforms. This session that bill is HB 1258 by S. Thompson (D-Houston), and it is a doozy in much the same way that many “prosecutor accountability” bills have been this session—sanctions, civil liability, onerous conditions, and more.

Bills like this always tend to get prosecutors off their seats in opposition, and this session was no exception. When the bill was heard Tuesday evening, respectful testimony against the bill was offered by 46^th Judicial DA Staley Heatly, Cherokee County DA Elmer Beckworth, 8^th Judicial DA Will Ramsay, San Jacinto County Criminal DA Todd Dillon, and Kaufman County CDA Erleigh Wiley, and there were numerous other prosecutors who registered opposition in person without testimony. The bill was left pending in committee.

Retirement benefits

Elected felony prosecutor retirement benefits—which are tied to those officials’ state-established salaries—have had a rough go of it the last several sessions. First, retired DAs missed out on an increase in benefits in 2019 when the new tiered judicial branch salary increases left the benchmark pay at $140,000 for already-retired former prosecutors. Then in 2021, the legislature abolished the defined benefits plan for future elected DAs in favor of a cash balance plan (think 401(k)). Now comes the latest blow—one that our friends at ERS couldn’t be bothered to tell anyone about until we dragged it out of them.

The latest House committee substitute version of SB 1509 by Huffman (R-Houston)/Bonnen (R-Friendswood) “relating to the service retirement eligibility and benefits of certain members of the Employees Retirement System of Texas” would repeal language that currently grants retired DAs automatic increases in retirement benefits when judicial and DA salaries increase. That was a nice feature of the DA retirement plan for four decades, but according to ERS, it is now too expensive to continue if the legislature gives sitting judges and prosecutors future pay raises. For instance, the pay raise being considered in the House version of HB 1 is estimated by ERS to cost the retirement system $30 million on top of the salary cost to the state budget. Instead, the retirement system people claim that future judicial/prosecutor pay raises will not be actuarially feasible for the state unless retirement benefits remain tied to the current benchmark salary figure.

Senate Bill 1509 has been recommended for the House Local and Consent Calendar and given that it is authored by the Senate Finance chair and sponsored by the House Appropriations chair, the repeal of this beneficial language is about as sure a thing as there can be. But … could there be a reason ERS all of a sudden decided they needed this change in the waning days of a session in which a judicial pay raise is being considered by the budget conference committee behind closed doors? Some of you have asked us about the prospects of that raise and we always advise you to expect little from the legislature if you want to avoid disappointment, but some of you may be tempted to read into this unexpected change what you will. And who are we to say otherwise? After all, everyone is entitled to their own dreams. Just remember that the legislature is an accomplished dream-buster.

Beyond speculation about a raise, this adverse change also makes us wonder whether elected felony prosecutors should explore pulling the plug on ERS membership and consider returning to the Texas County and District Retirement System (TCDRS) for your retirement benefits. That will be something to talk about after the dust of this session settles. Meanwhile, if you have thoughts or questions about any of this, please contact Rob.   

Funding updates

In other funding- and salary-related news:

The House County Affairs Committee approved SB 22 by Springer (R-Muenster)/Guillen (R-Rio Grande City) on Monday. This is the bill that would provide sheriffs and prosecutors in most counties with additional funding for hiring new staff and retaining existing employees. The committee report from that vote—which includes the official committee substitute version as voted out by the committee, the vote tally, and related paperwork—has still not been turned into the office that posts that information online and then refers it to the Calendars Committee for further consideration. There are a lot of rumors floating around about the latest language in the bill—including competing changes that conflict with each other and which no one will claim as their own—so rather than speculate, we’ll let the dust settle and then report on what we know to be true next week.

On Tuesday, the House granted preliminary approval on second reading to HB 438 by Schofield (R-Katy) to tie judicial branch salary increases to future changes in the consumer price index. However, rumor-fueled remorse quickly set in among some Republican members who were told the bill might feather their own retirement nest. (It does not, but their momentary panic shows how sensitive an issue that is for those worried about being primaried over it.) The confusion led to the bill being postponed until next week for final approval on third reading. If passed into law, any resulting inflationary raises for judges and elected prosecutors would not go into effect until September 1, 2025 (2+ years from now). However, the bill still has to be approved by the Senate, which has no companion version of this proposed raise and has historically been cool toward automatic raises in the past.

Finally, the House Higher Education Committee heard HB 4487 by Smith (R-Sherman) to expand rural prosecutor student loan repayment to include public defenders, but the bill was left pending and it will soon run out of time to beat various House deadlines unless it gets moving in a hurry.

Sent to the governor

It took 106 days for the first of our tracked bills to make it through the legislative gauntlet and onto the governor’s desk. That bill is … <drumroll> … SB 497 by Zaffirini/Lozano relating to “the processing and sale of kratom and kratom products; providing civil penalties; creating a criminal offense.” Exciting stuff, eh?

This list will start to grow in the coming weeks, but for now, most legislators’ focus will remain on getting their own bills out of their own chambers.

One chamber down, one to go

The bills on this next list are halfway home. Speak soon or forever hold your peace.

The following House bills have passed the House:

HB 6 by Goldman (fentanyl penalties)
HB 17 by Cook (removal of prosecutors)
HB 63 by Swanson (limiting preliminary investigations into child abuse allegations)
HB 213 by Moody (early parole consideration for youthful violent offenders)
HB 218 by Moody (reducing penalties for possession of marijuana and THC substances)
HB 467 by Craddick (extending statutes of limitations for certain assaultive offenses)
HB 1130 by Spiller (allowing certain prosecutors to accept ad litem appointments)
HB 1207 by Guillen (no statute of limitations for tampering with a body)
HB 1300 by Geren (changing penalties for tampering with evidence)
HB 1603 by Guillen (allowing JPs and muni judges to use private pro tem prosecutors in certain Class C cases)
HB 2696 by Howard (consent in sexual assault cases)
HB 3956 by Smith (expanded DNA collection upon arrest)
HJR 107 by Price (extending mandatory judicial retirement age by five years)

The following Senate bills have passed the Senate:

SB 1516 by P. King (revising procedures and venue for writs of habeas corpus)
SB 2208 by Parker (neighboring county venue for election-related crimes)
SB 2593 by Springer (defense to prosecution for cops using less-lethal devices; retroactively applies to pending prosecutions)

Other action

Confession: We’ve pretty much lost track of what random bill has emerged from which various committee in what kind of form. It happens every session around this time, and we’re not going to try to hide it. We’re just going to take our “L” and live with it. Sorry, but a man’s got to know his limitations. (Feel free to reach out if you have a question about the status of a particular bill, though.)

Future floor debates

Bills up for debate on the House floor today include (in order of their appearance on the calendar):

HB 3659 by Hefner (limitations on civil asset forfeitures) (*update: passed without debate this morning)
HB 412 by S. Thompson (requiring corroboration of undercover drug officers’ testimony) (*update: passed without debate this morning)
HB 730 by Frank (limiting child abuse investigations and parental termination lawsuits)
HB 1715 by Canales (retroactive expunction of misdemeanor deferred adjudications)
HB 469 by Smith (requiring good cause for sequestration of certain juries)
HB 476 by Jo. Jones (limiting pretrial detention)

Bills to be debated on the House floor next week include (in docketed order):

HB 3474 by Leach (omnibus judicial branch administration bill)
HB 247 by S. Thompson (subsequent writs upon permission of prosecutor)
HB 1163 by Smith (creating offense of boating while intoxicated with child passenger)

The Senate Intent Calendar for Monday is pretty light on your issues (yay!), but that can change on a daily basis so if you want to keep up at home, you can check daily Senate Intent Calendars HERE.

Future committee hearings

Committees are now concentrating on hearing bills from the other chamber. They are also often dispensing with many notice rules, suspending those rules at the drop of a hat to hear bills with little notice. We will share what we can, but if you have a particular interest in any bill, you might consider tracking it yourself through the free public TLO system to stay up-to-date.

Some of the bills scheduled to be heard in committees next week are listed below. For the full agenda of each committee, click on the link to the committee itself. Subsequent committee postings may be added later, so check our website for the latest information.

Monday, May 1

(None posted yet)

Tuesday, May 2

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

• HB 279 by Jetton relating to the trafficking of disabled individuals
• HB 467 by Craddick extending limitations periods for filing certain assaultive offenses
• HB 598 by Shaheen criminalizing possession of animals by certain offenders
• HB 767 by Harless relating to entering stalking bond conditions into TCIC
• HB 914 by Hefner relating to criminal offenses concerning temporary tags
• HB 1088 by A. Johnson allowing OAG to represent CSCD employees in civil suits
• HB 1161 by Meyer relating to OAG’s address confidentiality program
• HB 1207 by Guillen extending limitations periods for tampering with a dead body
• HB 1910 by Anchia creating a presumption in certain forgery cases
• HB 2183 by Stucky relating to the temporary appointment of county jailers
• HB 2899 by Plesa relating to the impoundment of vehicles used in racing crimes

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

• SB 23 by Huffman imposing a minimum sentence for certain offenses involving use of a firearm
• SB 338 by Hinojosa prohibiting the use of hypnotically induced statements at trial
• SB 402 by Whitmire granting trial preferences for murder & capital murder charges
• SB 947 by P. King increasing penalties for damages related to critical infrastructure facilities
• SB 1653 by Huffman relating to the offense of promotion of prostitution
• SB 1717 by Zaffirini relating to the offense of stalking

Wednesday, May 3

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

• SB 21 by Huffman relating to complaints against current and former judges
• SB 2310 by Hinojosa granting longevity pay to certain elected prosecutors

<< 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.

Scattershooting

Here are some recent stories you might’ve missed:

• “Tensions rise between Texas’ top leaders as legislative session rolls toward finish line” (Dallas Morning News)
• “‘A way to throw kids away’: Texas’ troubled juvenile justice department is sending more children to adult prisons” (Texas Tribune)
• “Texas House OKs marijuana decriminalization bill again as Senate hurdles remain” (Houston Chronicle)
• “Why Texas lawmakers are looking to end the ‘dead suspect loophole’” (Corpus Christi Caller-Times)
• “Fentanyl test strip bill stalled in Texas Senate as the drug crisis grows” (Dallas Morning News)
• “Sex, Threats, and Late-Night Phone Calls: The Allegations from Inside Jolanda Jones’s Legislative Office” (Texas Monthly)
• “How Rich Is the US Supreme Court?” (Bloomberg)

Quotes of the Week

“Rouge [sic] DAs in Texas – your time is up. #HB17 by @DavidCookTexas to ensures [sic] public attorneys are doing their job by enforcing the law as the state legislature intended, not pushing a political agenda.”
            —Tweet on “Reining in Rogue DA’s” by the Texas House Republican Caucus on the day of the House floor debate over HB 17. (“Rouge”? So now we can now add “prosecutors wearing make-up” to the list of those who must be punished by the Lege this session? Sure, why not.)

“[For] prosecutors … that want to legislate instead of prosecute, I would urge that they run for a seat in the house as opposed to running for DA.”
            —State Rep. David Cook (R-Mansfield), speaking on the House floor in favor of the passage of HB 17, his bill on removal of prosecutors.

“I have to go. I’m going to get in trouble.”
            —Christopher Stanford, to another driver whom he rear-ended before running away from the scene and hiding. Mr. Stanford was subsequently sentenced to life in prison in Parker County for felony DWI. Read why HERE.

“Stoked for some tasty waves on the Texas Coast this summer after #txlege hits its gnarly Sine Die!”
            —Tongue-in-cheek tweet by House Speaker Dade Phelan (R-Beaumont), in apparent response to Lt. Gov. Dan Patrick (R-Houston) calling him “California Dade” last week. (You’ll have to click this link to see the visuals that accompany his tweet)

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Happy San Jacinto Day! Thirty-eight days remain in this regular session. More than 1,000 bills will be sent to the governor during that time. This is where the rubber meets the road. This is also where the “ache” meets the “head,” so pace yourself as you read some of the lists below. We don’t do it because we want to, but because they are important to somebody (or somebodies) out there.

Preview

Next week will be a transition week in the House as its members start spending more time on the floor and less in committees while also trying to cram their final hearings with last-chance bills. That means there will be plenty of late-night work to be done!

Topics to be discussed next week include student loan repayment for prosecutors (and public defenders), grand jury reform (it’s back, and it’s the version all of you hate!), victims’ legal intervention into criminal cases, bail reform, accelerated parole eligibility for violent offenders, and more. Read on for details!

Help for rural(-ish) prosecutors

The House County Affairs Committee heard SB 22 by Springer/Guillen on Wednesday. This is the bill that would provide sheriffs and prosecutors in the 230 or so smallest counties with additional state grant funding to hire more personnel and/or supplement salaries for existing personnel. Testifying for the bill were Comal County CDA Jennifer Tharp, Hill County CA David Holmes, and Callahan County C&DA Shane Deel (and a host of other prosecutors who registered in support of the bill without testimony), as well as Chambers County Sheriff Brian Hawthorne. The committee also heard testimony from a representative of the constables’ association—whose members are not included in the bill but would like to be—and the policy director for the Conference of Urban Counties (CUC) who is seeking to amend the bill with language that would exempt future shortfalls from triggering last session’s law prohibiting the defunding of law enforcement. (That last bit was very odd, considering that the defunding ban applies only to counties with populations of 1 million or more people while SB 22 applies only to counties of less than 300,000 people. Go figure.)

Senate Bill 22 was left pending in the committee while the House sponsor—Rep. Ryan Guillen (R-Rio Grande City)—considered whether to make the changes suggested by other witnesses. Unlike with HB 1487 by Gerdes, there is no indication at this time that the House intends to swap out prosecutors for constables, but we are watching it closely to make sure no adverse changes are made to the bill. If you have further questions, contact Rob.

On a related front, the House Higher Ed Committee will also consider HB 4487 by Smith (R-Sherman) Monday morning. This bill—filed one day before the filing deadline last month—would amend the current student loan repayment law applicable to prosecutors in counties with a population of less than 50,000 by raising that threshold to 100,000 and making defense lawyers appointed or employed to represent indigent defendants eligible for it as well.

Now, if you read that sentence and said, “Wait … WHAT law?!?”—we understand your confusion. A prosecutor loan repayment law has been on the books for decades, but the legislature has never funded it. The TDCAA Compensation Committee explored efforts to activate and expand that law during the recent interim but were steered away from it by legislative insiders and told to focus on bills like SB 22 instead. (And to date, that advice appears to be paying off.) However, our friends in the rural indigent defense community have been working on HB 4487 behind the scenes, and if they have found the magic key to unlock new funding for such a loan repayment program, we’re certain that many of you would be happy to help push it across the finish line. Keep watching this space for more information as we get it.

Dueling budgets

The Senate passed its version of the state budget (HB 1), which differs from the version passed by the House, so the bill will now be referred to a conference committee. Differences between the two appropriations bills include (in amounts for the two-year biennium):

• The House budget includes a 5 percent-per-year increase in the general benchmark judicial (and elected felony prosecutor) salary, while the Senate does not include any raise
• The House has set aside $350 million for county law enforcement grants, while the Senate trimmed that by 5-ish percent (to $330,800,000)
• The House increases indigent defense funding by $40 million over the current budget, while the Senate cuts it by $11 million
• The House increases DPS crime lab funding by $33 million, while the Senate increases it by $37 million

Five representatives and five senators—led by the chairs of the House Appropriations and Senate Finance Committees—have been appointed to the budget conference committee and will soon disappear into undisclosed locations for the next month to hammer out the differences in the two versions for eventual approval by both chambers. This is one of the most opaque of all processes at the legislature, so don’t expect news from us on budget matters until the final full week of May.

Prosecutor accountability bills

There was no action on any of the 30+ bills we’ve been following under this category except for HB 3675 by Ortega (D-El Paso) mandating the removal of an elected prosecutor in a jurisdiction larger than 850,000 people who fails to complete mandated management training. That bill was voted from committee and now heads to the House Calendars Committee for further consideration.

To see where all those bills are in the legislative process, visit this updated page on our website.

One chamber down, one to go

The bills on this next list are halfway home. READ THIS LIST CAREFULLY. If you like one of these bills, congratulations! Statistically, it has about an 80-percent chance of reaching the governor’s desk this session. Conversely, if you object to any of these bills, your time is growing short to move them into that pile of “20-percenters” that pass one chamber but not the other.

The following House bills have passed the House:

HB 16 by Moody (juvenile justice reforms)
HB 420 by Slawson (SJF enhancements for providing alcohol to minors)
HB 422 by VanDeaver (remote proceedings in juvenile court)
HB 513 by Metcalf (causing death/SBI by manufacture or delivery of controlled substance)
HB 1736 by Leach (limiting death penalty for parties; retroactive review of death row cases)
HB 1737 by Leach (retroactive automatic nondisclosure for certain deferred adjudications back to 1993)
HB 2127 by Burrows (pre-emption of local regulations)

The following Senate bills have passed the Senate:

SB 129 by Springer (increased punishment ranges for child pornography)
SB 338 by Hinojosa (ban on using hypnotically induced statements at trial)
SB 435 by Middleton (disclosure of certain evidence to homicide victim’s next of kin)
SB 600 by Birdwell (10-year minimums for human smuggling-related crimes)
SB 1269 by Hughes (imposing discovery obligations on DFPS in child abuse cases)
SB 1653 by Huffman (promotion of prostitution enhancement)

Other action

Other bills of potential interest to you that were approved by a committee this week include:

HB 939 by Dutton (reducing penalties for drug possession)
HB 946 by Dutton (dismissal with prejudice for spoliation of evidence by the State)
HB 1163 by Smith (boating while intoxicated with child passenger)
HB 1383 by Rose (expediting procedures following a restoration of competency)
HB 3183 by Schatzline (limiting use of in-custody informant testimony)
HB 3659 by Hefner (civil asset forfeiture reforms, including a $2,500 minimum valuation)
HB 3729 by Bonnen (disclosure of certain evidence to homicide victim’s next of kin)
HB 4382 by Guillen (mandated CJIS reporting)
SB 224 by Alvarado (catalytic converter theft) (reported favorably from House committee)
SB 1004 by Huffman (tampering with electronic monitor) (reported favorably from House committee)
SB 1527 by Huffman (omnibus human trafficking bill) (reported favorably from House committee)

Future floor debates

Bills up for debate on the House floor next week include (in their order of appearance on the calendar):

HB 3504 by Leach (emergency detention and court-ordered MH services)
HB 576 by Raymond (sharing autopsy records with next of kin or their lawyers)
HB 115 by Ortega (public consumption of alcohol)
HB 1130 by Spiller (allowing certain prosecutors to accept ad litem appointments)
HB 1207 by Guillen (no statute of limitations for tampering with a body)
HB 1603 by Guillen (allowing JPs and muni judges to use private pro tem prosecutors in certain Class C cases)
HB 438 by Schofield (tying the benchmark judicial salary to the consumer price index)
HB 63 by Swanson (limiting preliminary investigations into child abuse allegations)
HB 218 by Moody reducing penalties for possession of marijuana and THC substances
HB 772 by Allen criminalizing corporal punishment in schools

In the Senate, bills eligible for debate include:

SB 1516 by King (revising writ of habeas corpus procedures)
SB 2589 by Schwertner (increasing penalties for certain crimes committed by TJJD confinees)
SB 2593 by Springer (defense to prosecution for cops using less-lethal devices)

Future committee hearings

The hour is getting late for House bills not heard in a House committee yet. If you are following a bill like that and it is not on the list below, then it might be time to throw some dirt over it until the next session. (Senate bills have more life in the Senate, though—that chamber’s deadlines are made to be broken.)

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 check our website for the latest information.

Monday, April 24

House Higher Education – 10:00 a.m., Room E2.010

• HB 4487 by Smith expanding the state’s (currently unfunded) prosecutor student loan repayment program to include more prosecutors and public defenders in rural areas

House Corrections – 11:00 a.m., E2.028

• HB 1064 by Sherman granting retroactive good conduct credits to 3g offenders
• HB 1618 by Moody granting retroactive good conduct credits to 3g offenders
• HB 2743 by Smith relating to court-ordered psychoactive medication for certain offenders
• HB 4362 by A. Johnson expanding nondisclosure eligibility for certain felons
• HB 5114 by Sherman granting time credits for probationers/parolees who are employed
• HB 5177 by Lopez granting veterans court graduates a set-aside of their probation

Tuesday, April 25

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

• SB 1318 by Huffman relating to bail reform
• SJR 44 by Huffman authorizing denial of bail in certain cases
• HB 261 by Cortez increasing penalties for certain burglary of vehicle cases
• HB 485 by Gervin-Hawkins increasing penalties for certain crimes on a public transportation system
• HB 1131 by Spiller authorizing non-lawyer JPs to issue DWI blood search warrants
• HB 1203 by Ordaz criminalizing negligent cruelty to non-livestock animals
• HB 1258 by S. Thompson reforming grand jury procedures; allowing prosecutors to be sued for actions in the grand jury; more
• HB 1311 by Dutton relating to locations at which knives are prohibited
• HB 1533 by Lozano adding possession w/ intent to deliver drugs to EOCA
• HB 1581 by Thimesch criminalizing delivery of drugs resulting in death/SBI
• HB 1653 by Campos relating to attacks by dangerous dogs
• HB 1713 by Canales mandating certain standardized forms in criminal actions
• HB 1906 by Stucky authorizing temporary detention without bail for certain crimes
• HB 2092 by Manuel relating to the duration of an emergency protective order
• HB 2187 by Y. Davis relating to abandoning/endangering elderly/disabled victims
• HB 2193 by Y. Davis relating to expunctions of certain misdemeanor records
• HB 3381 by Cook creating a crime for Munchausen by Proxy-related conduct
• HB 3384 by Cook relating to the punishment for promotion of prostitution
• HB 3786 by S. Thompson authorizing intervention in cases by victims’ lawyers
• HB 3816 by Herrero relating to the use of body armor during an offense
• HB 3817 by Herrero relating to videoconference appearances in court by inmates
• HB 4398 by Kitzman relating to personal bond/pretrial supervision offices
• HB 4596 by Hinojosa prohibiting use of a “gay panic” defense
• HB 5088 by Moody relating to adult and juvenile procedures involving persons with a mental illness or intellectual disability

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

• SB 1445 by Paxton revising and reauthorizing TCOLE (sunset bill)
• HB 258 by M. Gonzalez prohibiting motorcycle profiling by officers
• HB 769 by Allen reducing penalties for DWLI
• HB 1808 by Jo. Jones requiring all peace officers to carry liability insurance for misconduct
• HB 3480 by Turner relating to overdose mapping
• HB 3506 by C. Harris removing certain DNA samples from databases
• HB 3858 by Frazier mandating MH wellness units for entities that employs peace officers
• HB 3957 by Smith establishing a rapid DNA analysis pilot program
• HB 3958 by Smith establishing a grant program for agencies that collect DNA samples from felony arrestees
• HB 4628 by Goldman relating to procedures following DNA profile comparisons
• HB 4875 by Flores requiring drug/alcohol testing of officers after use-of-force incidents
• (and about 30 other bills—click the link above for all of them)

<<NOTE: Advanced notice of committee hearings is limited from now until sine die, so 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.

Scattershooting

Here are some recent stories you might’ve missed:

• “Venue is a platypus, a mixed-up animal” (SCOTUSblog)
• “Bills to create new Texas courts would likely reverse Democratic gains, restore GOP dominance” (Texas Tribune)
• “Tucker Carlson called for a Texas killer’s pardon. The next day, Gov. Greg Abbott stepped in.” (Houston Chronicle)
• “Anti-domestic violence and gun groups unite to urge Supreme Court to reverse domestic violence ruling” (CNN)
• “Three Shootings in a Week Over a Simple Mistake. Why Is This Happening?” (Wall Street Journal)

Quotes of the Week

“Texas is definitely a bit of a wild, wild west with respect to this industry. We don’t have a legal rec(reational) state for marijuana, and we’re barely a medical marijuana state. Right now, the name of the game is hemp.”
            —Ryan Soroka, president and co-founder of 8^th Wonder Brewery in Houston, which now offers consumers a variety of “herbal” alcoholic and non-alcoholic beverages infused with CBD and delta-8 THC.

“California Dade wants a California tax plan.”
            —Lt. Gov. Dan Patrick (R-Houston), in a recent interview, on the subject of the dueling property tax reform proposals between himself and House Speaker Dade Phelan (R-Beaumont). (Just in case you were wondering how the two chambers were getting along with five weeks remaining in the session.)

“Remember, I can’t call a special session, but I can create one by not passing a key bill that has to pass. … If we don’t get some major priorities that the people want us to pass because [the House] acted very slowly during the session, then I think we ought to finish the job. I’ll leave it at that.”
            —Lt. Gov. Patrick, criticizing the House during that same interview on the topic of private school vouchers.

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<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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