Let’s hope the first week of the new legislature ending on Friday the 13th is not an omen for the rest of the session.

Shots across the bow

Well, that didn’t take long.

Mere hours after newly re-elected Speaker Phelan mentioned during his acceptance speech a need to “rein in rogue prosecutors” (see “Quotes of the Week” below), State Sen. Tan Parker (R-Flower Mound) filed SB 378 relating to “the enforcement of criminal offenses by district attorneys, criminal district attorneys, and county attorneys.” The bill is essentially a slimmed-down version of the anti-sanctuary cities bill passed in 2017 (Senate Bill 4 by Perry (85RS)) which could expose elected prosecutors to civil fines and a potential quo warranto removal action for … well … it’s not quite clear what, exactly. But that doesn’t sound like fun, does it?

Those of you who attended our legislative preview at last month’s Elected Prosecutor Conference may remember our discussion of HB 125 by Slaton (R-Royse City), which would apply civil fines and a potential quo warranto removal from office to any prosecutor who “prohibits or materially limits the enforcement of any criminal offense prescribed by the election laws of this state.” In the same vein, SB 378 applies those sanctions to (the alleged mishandling of) any criminal offense. And before you ask: No, we don’t know what “prohibits or materially limits enforcement” means, and neither do the courts. While SB 4 has been on the books since 2017, there are no court opinions shedding light on what that phrase does or does not include; see City of El Cenizo v. Texas, 890 F.3d 164, 190–191 (5th Cir. 2018) (declining to grant a pre-enforcement challenge that SB 4’s ban on a “policy” or “practice” that “prohibits or materially limits” the enforcement of immigration laws is unconstitutionally vague on its face). Perhaps you can read the text of the bill for yourself here and let us know what you think it means.

Once you are done with that, you can move on to reading SB 404 by King (R-Weatherford) relating to “the reestablishment of the Prosecuting Attorneys Coordinating Council.” Some of you old-timers might remember the Texas Prosecutor Council, which was in existence from 1977–1985 before being abolished. It functioned as an oversight body for elected prosecutors, not unlike a much smaller version of the Judicial Conduct Commission, with the authority to accept and investigate complaints against elected prosecutors and issue reprimands or refer claims on to a separate judicial proceeding that could result in the removal from office of an elected prosecutor. The text of SB 404 was only made available late yesterday and we are still processing it, but tune in next week for more history and background on that topic. Meanwhile, read the bill for yourself and let us know what you think.

Going forward, we will track bills of this ilk under the “Bills to Watch” track you can access on our Legislative webpage (right-hand side for desktop access, bottom of the page on mobile devices), along with tracks for all bills amending the Penal Code and Code of Criminal Procedure.

One final note before moving on: In light of the apparent alignment among the Big Three (governor, lt. governor, and speaker) on the need to crack down on “rogue prosecutors”—a narrative that has apparently become part of the partisan culture war at the national level—it is possible that one or more bills like these could be tabbed by the governor as “emergency items” in the coming weeks. Such a designation frees the legislature to vote on those bills ASAP (rather than the usual 60-day delay imposed by the state constitution), so if you are interested in this topic and intend to participate in those legislative discussions, your preparations should begin now.

Sidebar: Format of these updates

We purposely started this update with some news we thought would grab your attention, but please don’t assume everything of importance will be on the first page of every update. Instead, they will usually follow a similar format:

• an overview of what happened last week;
• some deeper dives on specific issues of note;
• a preview of what (we think) might happen next week;
• some news clips of interest; and
• quotes of the week (some will make you laugh, others … not so much).

The length of these weekly updates will grow with the length of our workdays at the capitol. We know it can be hard to get through all of this information when you have a busy day job to manage, but we encourage you to try. At the capitol, information is power. If you don’t have the latest information, you’re going to be firing blanks when you try to advocate for or against something at the legislature. Please consider actively reading these missives with that in mind.

OK, now back to our regularly-scheduled programming …

Formalities

The first week of the new session was spent dealing with formalities like moving in, hiring staff, getting sworn in, adopting rules, and selecting a speaker for the house.

No Washington, D.C.-type drama was exhibited on that last account (thankfully); as expected, State Rep. Dade Phelan (R-Beaumont) was comfortably re-elected to that leadership role on Tuesday by a vote of 145-3. The next day was spent adopting rules governing the legislative process this session. Other than a new rule designed to deter future quorum-busters by imposing fines and other potential sanctions on those members, not much of significance changed.

Across the rotunda in the upper chamber, things were even more sedate (as usual). State Sen. Kelly Hancock (R-North Richland Hills) was chosen to serve as president pro tem of the Senate, a largely ceremonial position awarded by length of tenure in that chamber. On the following day, the senators engaged in the “staggered term lottery” that follows every redistricting election, drawing lots to determine which of them get four-year terms now and which have to run again in two years to start their next four-year term. (For the curious, those senators who must run again in 2024 are Senators Alvarado, Bettencourt, Blanco, Campbell, Eckhardt, Hinojosa, Huffman, Johnson, King, LaMantia, Parker, Paxton, Springer, West, and Whitmire). The bad news for those who drew two-year terms is they have to run again next year; the good news is that any of them who get re-elected yet have higher aspirations can take a free run at a statewide office in 2026 because the legislature somehow forgot to apply the resign-to-run rules to themselves. And finally, the Senate adopted its rules with minimal discussion or change from last session, the most interesting difference being the splitting of the former Committee on Veterans Affairs & Border Security into two separate committees.

On tap next week: A holiday on Monday, followed on Tuesday by the inauguration of the governor and lt. governor, speeches by the governor and lt. governor, parties to celebrate the governor and lt. governor, and then not a few hangovers. These festivities will limit the amount of work done in the open, but behind the scenes, legislators and their staff will kick their bill filings into higher gear and start internally lobbying for their preferred committee assignments and/or chairmanships, which could be announced before the end of the month. Then the real work begins.

All you need to know about the state budget

The Texas Legislature is going to have more money to play with than it has ever had in the history of this great state. The projected FY 2024–2025 revenue and savings surplus alone is larger than the annual budgets of most other, lesser states. Don’t bother worrying about the specific numbers—those are important to people inside the capitol who have to make everything balance, but to the rest of the world, the figures all end in “billions” (with a “B”) so we can’t comprehend them anyway. Just know that even with all that money to work with, demand will still outstrip supply, so anyone advocating for, oh, for instance, additional funding to help recruit and retain prosecutors in local offices, will need to come to Austin prepared to answer tough questions and justify that need. Stated another way: There are still no free lunches at the capitol.

When in Rome Babylon Austin

If you have never found a reason to be interested in the legislative process until recently—even if that was only a few minutes ago when you started reading this update—it can be a daunting process to understand. You might find this recent primer from the Texas Tribune to be a good place to start: Texas Legislature 101: Understanding the state government and how it passes laws. (Yes, we could quibble with its accuracy on some points or what it includes or fails to include, but like we said, it’s a good introduction.)

One challenge in engaging with the legislature on a specific issue is that the legislature provides limited notice of upcoming events, even going as far as to suspend its own notice rules when it sees fit. As a result, we may not be able to give you much notice of when particular bills may be considered. Instead, we recommend to anyone interested in seeing the process first-hand—either to learn or to engage—that you clear some room on your schedule so you can come to Austin for a few days during the session and see what is what. Preference will be given to elected prosecutors, but assistants are also welcome to volunteer (with their boss’s permission, of course). But remember, you are coming here to work on your issues; TDCAA will generally not take positions on bills at the legislature. We are here to be your eyes and ears at the capitol and help point you in the right direction when needed, but what you do with that help is up to you.

If you are ready to clear your calendar and come to Austin for a specific week in February, March, or April, 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 skinny before you make plans. We are here to help you work smarter, not harder.

Capitol “Days”

Another way to get involved in Austin is to participate in one of the many “Day at the Capitol” events that local cities and counties hold during every session. In addition, our friends at TAC are hosting a “Counties at the Capitol” Day on Tuesday, February 7. For more details about that—including an agenda and online registration—please visit the TAC website.

Scattershooting

Here are some stories from the holiday break and this past week that you might’ve missed:

• “Tarrant County’s new DA stands before a mountain of work. How is he scaling the slope?” (Fort Worth Star-Telegram)
• “Wade Jackson to step down as District Attorney of 110th District Court” (Lubbock Avalanche-Journal)
• “Ample Jan. 6 Evidence Helps Secure High Conviction Rate in Capitol Riot” (Wall Street Journal)
• “Six Reasons the Murder Clearance Rate Is at an All-Time Low” (The Atlantic)
• “Legislature could eliminate police dishonorable discharges, create officer database” (KXAN)
• “The fringe ideology of ‘constitutional sheriffs’ is attracting believers within Texas law enforcement” (Texas Tribune)

Quotes of the Week

“Well, I have happy political consultants.”
            —State Sen. Paul Bettencourt (R-Houston), finding a silver lining upon learning that he drew a two-year senate term this week and has to run for re-election again in 2024.

“It’s always easiest to spend other people’s money, so everyone is going to try to get their pet projects done.”
            — Brian Smith, political scientist at St. Edward’s University, quoted in a Texas Tribune article in reference to the state’s record $32.7 billion revenue surplus this session.

“We have proven you can be tough on violent criminals while also making the criminal justice system work better for nonviolent offenders. And that is what we will continue to do. We can work all day on these issues, but if rogue district attorneys will not uphold the law, what progress are we really making? It is time to rein them in.”
            — House Speaker Dade Phelan (R-Beaumont), listing off his priorities for this session during his acceptance speech.

“Thankful that Speaker @DadePhelan mentioned a priority for this session is addressing rogue District Attorneys who are publicly picking & choosing which laws they will enforce. We’ve seen this with #prolife laws in the last year & the #txlege must address this threat to Life.”
            — Tweet by Dr. John Seago, president of Texas Right to Life.

“REINING IN ROGUE PROSECUTORS: Prosecutors are elected to enforce Texas law and to pursue and hold accountable Texas lawbreakers. The practice of District Attorneys publicly and proudly thumbing their nose at the legislature and refusing to enforce entire classes of Texas crimes is an affront to the rule of law itself. This must end—and Prosecutors who continue to do so must be held to account.”
            — State Rep. Jeff Leach (R-Plano), current chairman of the House Judiciary & Civil Jurisprudence Committee, in a press release announcing his upcoming legislative priorities.

“We know that certain policies adopted by some district attorneys in our state have hindered the enforcement of criminal offenses, thereby placing the public at risk. This is unacceptable, and action must be taken to ensure that district attorneys are held accountable for their actions and carry out their duties by enforcing the laws we have on our books.”
            — State Sen. Tan Parker (R-Flower Mound), in a press release announcing the filing of SB 378.

<OK, we’ll stop there, you get the drift. Look for another update in this same space next Friday!>

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*This being Texas, we know we can’t go wrong if we include a nod to football in our reading material. Special h/t to the NCAA and the UIL for the “Week Zero” concept. Also … #GoFrogs on Monday night!

When in Austin

The Texas Legislature’s 88^th Regular Session convenes on Tuesday, January 10, which means more of you than normal might be visiting our capital city between now and Memorial Day. One of the many benefits TDCAA provides for its members during a legislative session is an office that serves as a home away from home for you when you are in town. We have free parking, free Wi-Fi, open workspaces, and a stocked kitchen waiting for anyone who comes by, and we are located a short 10-minute walk from door to door for those doing business in the Big Pink Building. So please, come by and take advantage of our prime location and open door when you come to town!

As for the upcoming schedule this month … not much else of note will happen for several weeks after Tuesday’s Opening Day ceremonies. Legislators and their staff will spend most of this month attending swearing-in ceremonies (and parties), inauguration ceremonies (and parties), and other getting-to-know-each-other functions (and parties) while filing lots of bills. (Lots and lots and lots of bills, to be honest.) This traditionally slow start gives those of you who want to come to Austin to work on legislation plenty of time to get your ducks in a row at home and work before heading this way. If you have questions, or if you are ready to clear the decks and come to Austin for a specific week in February, March, or April, please call or email Shannon. Preference will be given to elected prosecutors, but assistants are also welcome to volunteer (with their boss’s permission, of course).

Prosecutor recruitment and retention

The Deason Criminal Justice Reform Center at SMU’s Dedman School of Law just released a policy brief entitled “Greening Criminal Legal Deserts in Rural Texas” that some of you might find interesting. (Translation for those who don’t speak academician: Pony Law put out suggestions on how to entice more lawyers to do criminal work in rural Texas.) Most of the paper focuses on problems with criminal defense and a need for rural public defenders, but there is a good plug on pp.10–13 for funding the rural prosecutor loan repayment assistance program that has been on the books in Texas for two decades but has never been funded. That’s not something the Lege has on its To Do list for this session either, but the loan repayment concept is related to some ideas they are considering this session, so consider this yet another argument for improving prosecutor recruitment and retention. And on that front, the more, the merrier! But give the report a look-see if you are so inclined, and share it as needed with your legislators and local policymakers if you think it will be helpful.

Remote proceedings

The Texas Supreme Court’s 59th (!) Emergency Order Regarding the COVID-19 State of Disaster took effect with the new year and continues to include provisions authorizing a court to allow or require anyone—lawyer, party/defendant, juror, or witness—to appear for a non-jury proceeding remotely, regardless of consent or objection. That’s been the state of things for about a year as we continue to live and work in a society in which almost everyone seems to have moved on from COVID—everyone, that is, but the governor and Texas Supreme Court, which both continue to issue edicts granting themselves various supernumerary powers due to the emergency they have self-declared. However, at some point this must surely end—and indeed, this latest emergency order extends only until the end of this month, which is much shorter than previous emergency orders from the court. So, what gives?

One of the unresolved issues from the recent pandemic is to what extent the courts should be able to perform their duties using remote technology without certain lawyers, parties, or witnesses physically appearing in court. The Lege took a crack at codifying new laws on that topic in 2021, but that legislation—which was proposed by the judiciary and largely granted judges the unilateral authority to make most remote-versus-in-person decisions—failed to pass over the various objections of lawyers on all sides of the bar (civil, criminal, plaintiff, defendant, and prosecutor). Over the interim, however, the judiciary has resorted to its rulemaking authority to draft new rules of civil procedure for remote proceedings in the impending post-emergency-order world. They include the new Texas Rules of Civil Procedure 21d and 500.10 (plus related conforming changes to other rules) which would grant the courts some of the same powers they could not obtain from the legislature last session. Specifically, the two rules would give trial and appellate judges the general authority to allow or require remote participation in civil proceedings, while also:

• requiring good cause or agreement of the parties before a court can allow or require remote participation by a party or lawyer at a proceeding in which oral testimony is heard;
• requiring agreement of the parties before a court can allow or order a lawyer, party, or juror appear remotely for a jury trial; and
• laying out notice and recording provisions and a range of factors for determining “good cause” in such cases.

Those new and amended rules, which can be read in their proposed form as Misc. Docket No. 22-9091 (posted on October 14, 2022), will soon be published in final form and take effect on February 1, 2023. Anyone who practices in civil courts should familiarize yourselves with whatever changes are set to take effect on that date, keeping in mind that the legislature can always override the judiciary’s procedural rules by legislation. Note also that Chief Justice Hecht has publicly stated that after the new civil rules become effective, the judiciary may turn to rulemaking related to criminal procedure next.

Bill tracking

Of the 1,605 bills filed through yesterday, we are tracking 405 (~25 percent). To see bills that would amend the Penal Code, the Code of Criminal Procedure, or other “Bills to Watch” (a curated list of 18 other bills that you might care about), use the links on our Legislative webpage (right-hand side for desktop access, bottom of the page on mobile devices). We maintain more than 40 different bill tracks for various policy subjects, but those three tracks available for viewing on our website will give you a good idea of what has been filed so far.

Also, if you or someone in your office has proposed a bill that gets filed by a legislator, please drop Shannon a note so he can track it as such. Legislative offices often seek information from us about bills, but we can only forward them to you to pitch your bill if you let us know which bill is yours!

Free CLE: Mandatory Brady training

The 2022 version of TDCAA’s free Mandatory Brady Training is now available online. Click the link above for more details and be sure the other prosecutors in your office are clicking it too!

PVAC recognition

TDCAA’s Professional Victim Assistance Coordinator (PVAC) recognizes professionalism in prosecutor-based victim assistance. If you know of a VAC who might merit such recognition, a list of the requirements and an application can be found here. The deadline for this year’s applications is January 31, 2023. For questions, contact [email protected].

Scattershooting

Here are some stories from the holiday break and this past week that you might’ve missed:

• “‘It destroyed our family’: Why Dallas DA is trying a new strategy in deadly driving crimes” (Dallas Morning News)
• “Josh Tetens inheriting district attorney’s office plagued with vacancies, staggering backlog of felony cases” (KWTX News (Waco))
• “Rodriguez steps in as DA” (Port Lavaca Wave)
• “Texas AG must determine whether a popular form of animal control constitutes cruelty” (Dallas Morning News)
• “How the marijuana ‘green rush’ fell apart” (Washington Post)
• “Property tax revision, judicial branch expansion among new Texas laws that took effect Jan. 1” (Texas Tribune)
• “Texas criminal justice employees disciplined after Dallas parolees jailed in murder cases” (Dallas Morning News)
• “Abbott says legislative action needed for ankle monitor violations” (Tyler Morning-Telegraph)

Quotes of the Week

“[T]he upcoming revenue estimate is my most challenging yet. On one hand, our growth in the coming years will be hampered by a slowing economy, so caution is needed. On the other hand, people will be shocked when I announce that the cash carry-over balance in the treasury is greater than the $27 billion originally forecasted. We will never have a surplus of discretionary funds like this again.”
            —Glenn Hegar (R-Katy), Texas Comptroller, in a recent Austin American-Statesman column prefacing his impending official revenue estimate announcement later this month.

“He is at the apex of his power since he’s been lieutenant governor, with a 19-seat majority of which all 19 of those Republicans are on the Patrick team.”
            —Mark. Jones, political scientist at Rice University, describing in a recent Dallas Morning News article the political dynamics in the state senate under Lt. Gov. Dan Patrick heading into the 88^th Regular Session.

“Some of us at the Capitol have joked that we need to have Miami Herald subscriptions so that we can read today what Greg Abbott is going to do three days from now.”
            —Scott Braddock, editor of the Quorum Report, cracking wise about how a potential presidential primary contest pitting Texas governor Greg Abbott against Florida governor Ron DeSantis may impact the policy debates at the Texas legislature in 2023.

“This bill is designed to stop these radical DAs and reinstate the constitutionally guaranteed rights of law enforcement officers. I’m proud to work with my local law enforcement officials as well as pro-law enforcement organizations across the state to put an end to this abusive practice.”
            —State Rep. Cody Harris (R-Palestine), as quoted in a Palestine Herald-Press story about HB 799, his CLEAT-proposed bill “relating to a limitation on the use of certain unsubstantiated information relating to peace officer misconduct” that would restrict prosecutors’ ability to disclose certain impeachment evidence to the defense (and thereby likely jeopardize the finality of any cases they’ve worked).

TDCAA will deliver these legislative updates by email every Friday afternoon during the regular legislative session. If you would prefer these updates be delivered to a different email address, please reply to this email with that new contact information.

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Hello, autumn. Hello, interim. We’ve missed you both.

El fin?

Your Texas Legislature adjourned its third called session sine die in the wee hours of this morning after passing around a dozen bills all told, several of which will be the subject of litigation for years to come. However, most of those bills don’t directly impact your day job, so we’ll leave the summarizing of those new laws to your news source of choice.

There were really only three pieces of legislation in play related to your bailiwick this third special session. The first was SJR 1 by Huffman/Kacal, which would have placed a constitutional proposition to allow judges to deny bail in certain cases on a future ballot. As in past sessions, a party-line vote resulted in that measure falling two dozen votes shy of the two-thirds approval required to send it to the voters. Chalk that up to further proof that Texas Rs and Texas Ds are still not playing each other’s reindeer games during this year of Washington, D.C.-style partisan politics.

The second measure was SB 5 by Lucio/Patterson, the anti-tethering dog bill, a previous version of which was vetoed by the governor during the regular session. After some minor face-saving tweaks, the governor appears ready to sign this version and put an end the #AbbottHatesDogs hashtag that went viral on social media after the earlier veto.

The final piece of this puzzle was SB 8 by Nelson/Bonnen, the bill to spend the billions of federal dollars coming to the state as part of the American Rescue Plan Act (ARPA). These one-time expenditures ended up being spread among a variety of different articles in the state budget. Of relevance to your office are the funds dedicated to crime victims compensation, services, and related grants; increased mental health treatment options; and visiting judges and indigent costs related to working on local docket backlogs. What that will look like in action remains to be seen, but most of the state agencies you deal with got at least a little sumpin’-sumpin’ to help them address pandemic-related issues.

Now we wait to see whether the governor will call a fourth special session. Rumors abound about another special session in January to take up as-yet-unnamed issues, but frankly, we don’t care enough to try to run those to ground right now. The 87th Legislature is leaving town, and we are going to take our wins where we can find them. Full stop.

November conference

Registration is open for TDCAA’s Key Personnel & Victim Assistance Coordinator Seminar to be held in Kerrville on November 10–12, 2021, at the Inn of the Hills Hotel. The TDCAA Key Personnel-Victim Services Board has planned outstanding workshops for Texas prosecutor staff and victim assistance personnel, so if you wish to send any of your office staff to this excellent training, CLICK HERE for hotel and registration information. 

Scattershooting

Some articles that you might find interesting:

• “Texas law says jury panels must be chosen randomly. A Brazoria County official had a different idea.” (Texas Monthly)
• “Texans will decide eight proposed amendments to the state Constitution on Nov. 2. Here’s what you need to know.” (Texas Tribune)
• “Analysis: An election slogan you won’t hear in Texas in 2022” (Texas Tribune)

Quote of the Week

“I think my campaign has had a dramatic impact on his policies.”
            —Don Huffines, Republican candidate for governor, when asked about various recent actions taken by the current governor.

“Have a nice day.”
            —Gov. Greg Abbott, when asked by a reporter about the prospects for a fourth called session in the near future.

[This will (hopefully) be the last legislative update from Austin for a while.
These messages will continue only as needed depending upon whether there is another special session or other interim business.]

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It was great to see so many of you in Galveston for our 2021 Annual Conference last month! We hosted almost 900 attendees and speakers, and to date, we haven’t heard of a single COVID-19 case arising from that gathering. (Knock on wood!) #GoodJobGoodEffortPeople

Drawing lines

We are past the halfway point of this third called session and there is still precious little to report in the way of changes that would directly affect your business. But that doesn’t mean legislators aren’t working hard. They are. Picking your voters can be very hard work. And it may take more than one special session—especially regarding congressional maps, which are important, but not as important to legislators as their own districts. Legislators will take care of themselves first, then move on to the partisan battle over who goes to Washington, D.C. Whether that can be completed before the clock runs out on this third special session is anyone’s guess, but the main fireworks are set to go off next Tuesday when the new Texas House map gets debated on the floor of that chamber. Prepare your popcorn flavor of choice.

We aren’t going to get into the nitty-gritty of the redistricting process or outcomes here, but some of you may find yourselves with unfamiliar legislators after the new maps are adopted, so if you have questions about where things stand, feel free to contact Shannon with those inquiries.

Writing checks

The other big lift of this third special session is deciding how to spend $16 billion of federal pandemic largesse. Those funds are separate from the money sent to local cities and counties and will be appropriated to state agencies for various purposes—some associated with the pandemic, others not so much. Initial drafts of those expenditures include money for crime victims’ compensation, crime victim-related grants, visiting judges, and indigent defense, but the final versions are yet to be hashed out.

SCOTUS and COVID

While we were in Galveston for our Annual Conference, the Texas Supreme Court issued yet another pandemic edict. The court’s Emergency Order No. 43 took effect on October 1, 2021, and will expire on December 1 (unless extended yet again). The order is mostly more of the same ol’ same ol’, but a new wrinkle exists in regard to the extension of deadlines; read this blog post from the Texas Municipal Courts Education Center (TMCEC) for more on that.

November conference

Registration is open for TDCAA’s Key Personnel & Victim Assistance Coordinator Seminar to be held in Kerrville on November 10–12, 2021, at the Inn of the Hills Hotel. The TDCAA Key Personnel-Victim Services Board has planned outstanding workshops for Texas prosecutor staff and victim assistance personnel, so if you wish to send any of your office staff to this excellent training, CLICK HERE for hotel and registration information. 

Scattershooting

Some articles that you might find interesting:

• “Student-loan forgiveness to include more public-sector workers” (Wall Street Journal)
• “Houston is ‘ground zero’ for fake temporary license tags, and a loophole in Texas law is to blame” (Houston Chronicle)
• “Analysis: When Texas legislators admit they don’t know what they’re doing” (Texas Tribune)
• “Police Officers Resist Getting Vaccinated for COVID-19, Now Their No. 1 Killer” (Wall Street Journal)

Quote of the Week

“Cutting off of hands is very necessary for security.”
            —Mullah Nooruddin Turabi, former justice minister during the Taliban’s previous rule over Afghanistan, on what punishments might be returning following the Taliban’s re-establishment of sharia law in that country.

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The Lege is coming back for a third 30-day special session on Monday, September 20, 2021. We will be in Galveston all of next week for our 2021 Annual Conference, so there won’t be any legislative updates from us next Friday. Consider this your primer until we can get caught up in two weeks.

Why?

After a two week break to allow the participants to retreat to their respective sides and get fixed up by their corner teams, legislators will answer the bell and return to Austin to take up a new slate of issues put on their plates by the governor. Those are:

• state and federal redistricting;
• how to spend ~$16 billion in one-time federal pandemic relief funds;
• weighing in on whether state or local governments can impose COVID-19 vaccine mandates; and
• re-considering past bills on dog tethering and transgender school athletes.

While several of these issues are controversial, none of the heat they bring is likely to match that of redistricting, that decennial exercise of political muscle in which legislators get to pick their voters. Redistricting happens at both a micro (by district) and macro (state and federal delegation) level. While the latter gets much of the ink, that big picture battle is decided by a relatively small group of chamber, committee, and caucus leaders. It’s at the micro level where the real hand-to-hand nastiness occurs among individual members who are fighting for their political lives. Bring your popcorn.

New House committee

The Speaker has created a new House Select Committee on Youth Health & Safety to address issues like coordination between the state’s child protective services, youth mental health services, and juvenile justice system. The committee will be chaired by State Rep. J.M. Lozano (R-Kingsville), vice-chaired by Rep. Ann Johnson (D-Houston), and will include as members Reps. Steve Allison (R-San Antonio), David Cook (R-Mansfield), Harold Dutton (D-Houston), James Frank (R-Wichita Falls), Stephanie Klick (R-Fort Worth), Jeff Leach (R-Plano), Eddie Morales (D-Eagle Pass), Victoria Neave (D-Dallas), and Toni Rose (D-Dallas). No word yet on how this committee work will mesh with that of other committees that traditionally address those issues.

Hurricane Ida relief effort

In the wake of Hurricane Ida, Louisiana has once again been dealt a hard hand. To help support Louisiana prosecutors and their families who have been adversely affected, our good neighbors at the Louisiana District Attorneys Association are partnering with their training foundation (LDATF) to raise funds for their benefit. Anyone interested in helping can CLICK HERE to donate. Any contribution—no matter the amount—will make a difference and is greatly appreciated. All donations are TAX DEDUCTIBLE under existing IRS rules.

Scattershooting

Some articles that you might find interesting (including a few from earlier this year that we are only just getting to read now that the legislature has left town):

• “Who killed criminal justice reform in Texas?” (Texas Monthly)
• “Life without parole is replacing the death penalty—but the legal defense system hasn’t kept up” (The Marshall Project)
• “CSI Houston: How a Texas lab has remade the science of forensics” (Christian Science Monitor)
• “How Elizabeth Loftus Changed the Meaning of Memory” (The New Yorker)

Quotes of the Week

“It’s the most personal thing that a legislator will do. … There will be some votes that probably look partisan and probably are partisan, but there’s going to be a lot of votes that are really personal.” 
           —Former State Rep. Burt Solomons (R-Carrollton), who chaired the House Redistricting Committee in 2011, as quoted in an article on the impending drama facing legislators next week.

“Merrick Garland has an interesting job. He gets up, goes to the office, sues the state of Texas and then goes home.”
            —Ross Ramsey, executive editor of the Texas Tribune, in a column on the new nature of national litigation on several hot-button political issues.

“In any other location with permitless carry, we have no idea whether people have had a background check and if they are legally carrying. There are legitimate questions why you and I on the street, out in public, don’t have that same protection, and we would support having the same protection because permitless carry is dangerous.”
            —Gyl Switzer, executive director of Texas Gun Sense, questioning why non-LTC visitors who enter the state capitol with a handgun are being detained for the purposes of running a criminal history check to determine their eligibility to carry without a license in the wake of the new constitutional carry law.

“It felt like a scene out of ‘Scooby-Doo’ after they handcuffed me and pulled the mask off, like, ‘I would have gotten away with it if wasn’t for those meddling Karens,’ you know?”
            —Mark Metzger, criminal defense attorney in Galveston, as quoted in a story about his recent arrest for disorderly conduct after he was filmed walking the beaches during Tropical Storm Nicholas in a Michael Myers costume and (fake) bloody knife.

[Our next special session update will be in two weeks.
We’re looking forward to seeing many of you in Galveston!]

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It’s over! But consider this not so much a “good-bye” as a “see you later.”

Adios (for now)

This second called session was to conclude on Sunday, September 5, but the legislature has adjourned sine die before then. Having passed what red meat it can push through the sausage grinder this session, both chambers adjourned last night, giving the governor bills on most (but not all) of the subjects he requested while also giving themselves a true Labor Day holiday weekend.

Next up? Well, there is still redistricting to tackle. The conventional wisdom in Austin is that the governor will let legislators go home for a week or two to let tempers cool a bit, then call them back in late September or early October to start drawing lines on maps. The governor might also add to the call of that third special session some of the items that still have not passed this year, but that is speculation at this point.

Bail bond reform crosses the finish line

Fifth try is the charm, eh? The Lege finally delivered Governor Abbott the “bail bond reform” bill that he asked for. Senate Bill 6 by Huffman/Smith has been delivered for his final approval after some last-minute tweaks in the House. Among its many provisions, the bill:

• prohibits certain violent offenders being released on personal bond;
• requires magistrates to review a Public Safety Report (PSR) and criminal history on each arrestee prior to setting a bail amount;
• adds new factors—such as citizenship status and past court involvement—to the list of things to be considered before setting bail;
• imposes new requirements on judges setting bail for arrestees with pending cases;
• requires bond conditions to be entered into TLETS; and
• increases the bail-related training requirements for magistrates.

Different parts of the bill will be phased into effect from December 2021 through April 2022. Look for a complete PDF text and review of the new law to be offered for free on TDCAA’s Publications web page before those new changes take effect.

Meanwhile, the other prong of bail bond “reform”—SJR 3, the constitutional proposal to allow outright denial of bail for certain violent or sexual offenses—fell a dozen votes short of the two-thirds approval needed for it to appear on the ballot next spring, so that idea is dead (again).

Dolla dolla billz, y’all

The Lege also passed two supplemental appropriations bills related to border security. House Bill 5 by Bonnen/Nelson included a late House floor amendment that will direct $180 million to Texas Anti-Gang Center programs in the state’s largest cities, while HB 9 by Bonnen/Nelson appropriates almost $2 billion to border-related purposes, including:

• almost $3.8 million to the Border Prosecutor Unit (for hiring and training more prosecutors);
• $14 million to border counties for law enforcement expenses; and
• more than $32 million to the Office of Court Administration (to provide indigent defense funds, visiting judges, and related assistance to counties along the border).

These bills take effect immediately.

TDCAA training update

We’re up to 962 registered attendees for the 2021 Annual Conference in Galveston later this month; check out the details and register HERE if you’d like to join us. We will also be offering an in-person Legislative Update the day before the Annual at that same location. We’ve received 510 registrations for that course, but it will be held in the same cavernous convention space as the main course, so you can sign up HERE if you’d prefer that socially-distanced in-person experience to our online version, which appears to be a huge hit based on the positive evaluations rolling in. The online course will be open for several more months and can be accessed HERE.

Free training

The National Computer Forensics Institute (NCFI) will start offering its five-day prosecutor courses on digital evidence, computer forensics, and social networks in 2022. All costs associated with the course (including travel) are covered by the United States Secret Service. Eligible dates and application instructions for their Digital Evidence for Prosecutors (DEP) and Advanced Digital Evidence for Prosecutors (ADEP) courses can be accessed at HERE. The deadline to apply for these free courses is September 28, 2021. Additional information on the NCFI can be found at www.ncfi.usss.gov. 

Scattershooting

Some articles that you might find interesting:

• “What Philadelphia Reveals About America’s Homicide Surge” (ProPublica)
• “2022 election dates hinge on how fast Texas lawmakers get redistricting bill to Gov. Greg Abbott” (Dallas Morning News)
• “Thanks to local politics and a railroad, rural Kinney County accounts for most of Texas’ migrant arrests” (Texas Tribune)

Quotes of the Week

“I want to see if [the lieutenant governor] has his big boy pants on. This meeting is adjourned.”
            —House Rep. Harold Dutton (D-Houston), chairman of the House Public Education Committee, explaining why he adjourned that committee on Monday without a vote on two hot button education issues—critical race theory and transgender athletes. (Ultimately, the former passed but the latter did not.)

“Health care workers have been dealing with this for years, and it’s become more pronounced with the COVID pandemic.”
            —Karen Garvey, vice president of patient safety at Parkland Hospital in Dallas, as quoted in an article about verbal abuse and physical assaults against health care workers by hospital patients and visitors.

[With the conclusion of this second called session, these weekly updates will become monthly updates—at least until the next called session.
Happy Labor Day Weekend!]

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Our noisy neighbors are back and making a ruckus again.

Annual Conference

TDCAA’s board of directors met by Zoom earlier this week and gave our 2021 Annual Conference the green light next month. Repeat, we are a “go” for launch! We have accepted 949 registrations as of yesterday, so we know many of you are excited for the opportunity to come together in lovely Galveston for some great CLE opportunities, and we are still taking registrations HERE if you’d like to join us. We will also honor any cancellation requests for those not able to join us due to their changing circumstances. Those of you who are registered for the conference will receive more information by email regarding our health and safety protocols as we near that time, so be on the lookout for that in a few weeks.

Sputtering back to life

The Texas House has maintained a quorum for the past week and its members have been debating and passing bills. Yesterday’s initial approval of SB 1 by Hughes/Murr—the “election integrity” bill—drew the most attention from the general public, and the House will consider it on third reading for final passage later today. Afterwards, the lower chamber is scheduled to take up SJR 3 by Huffman/Kacal (denial of bail) and SB 6 by Huffman/Smith (bail bond reform), which are the bills we have been following more closely. The House tweaked SB 6 in the committee process, and more amendments are likely to be offered on the House floor today, but it may be Monday before we have access to all of the changes made to the version that will be sent back to the Senate.

The House is also expected to give final approval on third reading today to SB 13 by Huffman/Hunter, which will implement a sliding calendar of filing and election dates for the 2022 elections that will depend on the outcome of the redistricting situation later this year. Be sure to familiarize yourself with those details if you are on the ballot in 2022.

Note that all of these Senate bills are being passed by the House in a form different than the versions passed by the Senate, so all of them will be returned to that upper chamber for it to either concur with the changes or request a conference committee to work out the differences.

Legislative Update CLEs

Thank you to everyone who was patient with us this week while we worked through a short delay in launching our first-ever online version of the 2021 Legislative Update. We appreciate your patience and hope it was worth the wait!

To date, 181 people attended our in-person 2021 Legislative Update in Rockwall and 1,603 registrants are in the process of completing, or have completed, our online update. To register for the online course, CLICK HERE; the program will be available throughout the fall, but most of the changes take effect September 1, 2021, so don’t wait too long or you’ll be left behind!

Those of you going to Galveston for the Annual Conference next month (or who are otherwise up for a quick road trip) can also attend our only other scheduled in-person version of the Legislative Update on Tuesday, September 21; it’s at the Galveston Island Convention Center, same as our Annual—registration information is available HERE. To date, 505 people have registered for that course, which will be held in the convention center’s cavernous main ballroom, so the more, the merrier!

Scattershooting

Some articles that you might find interesting:

• “DA: ‘I don’t have 100 percent confidence that I have every document’ impacted by evidence loss” (Dallas Morning News)
• “After quorum break’s dramatic end, fractured Texas Democrats look for best path forward” (Dallas Morning News)
• “Speeding in Texas? New analysis reveals where police pulled over the most people” (Houston Chronicle)

Quotes of the Week

“You can try to push too hard on 149 Type-A members of the House and get an outcome that’s decidedly worse. … Sometimes it just takes time.”
            —House Speaker Dade Phelan (R-Beaumont), when asked about his approach to dealing with the quorum-busting House Democrats.

“You know, for a divided legislative session, a great thing happened. Sen. Miles carried a bill that serves our Harris County residents, especially our most vulnerable elderly and disabled individuals living at a lower socioeconomic level.”
            —Harris County DA Kim Ogg, at a press conference in Houston on SB 500 by Miles (D-Houston)/Rose (D-Dallas), which creates criminal penalties for the operation of certain unlicensed boarding homes.

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Habemus quorum!

Wait, what?

That’s right. For the first time in almost six weeks, the Texas House had a quorum thanks to a few newly-returned Democrats and two seats vacated through unrelated resignations that lowered the two-thirds requirement for a quorum to 99 members. That number was reached around 6:00 p.m. yesterday through a combination of 82 Republicans and 17 Democrats, which enabled the speaker to gavel them in and refer bills to committees before adjourning until Monday at 4:00 p.m.

Now, we know what you’re probably thinking: “Wait, they finally got a quorum and then they adjourned?!?” Well, yes. And for two good reasons. First, the House can’t do anything on the floor until bills have been considered and approved by House committees, which can be done while they are adjourned from floor duties. (More on that below.) And second, many House members have been kept on a short leash in Austin, day after day for weeks, awaiting a possible quorum. This adjournment lets some of them go home and rest up for the coming mad dash to the finish line, which is Sunday, September 5, 2021—a mere 17 days away.

All that being said, where things go from here is anyone’s guess. There isn’t even any guarantee that the House will have a quorum again on Monday. But if there is, we will be here to report to you if they do anything that could impact your offices.

Hearings

Wasting no time, the House has scheduled committee hearings with the knowledge that it would only take a few untimely (or intended) absences to fall short of a quorum next week and grind everything to a halt again. Those hearings include:

House Select Committee on Constitutional Rights & Remedies
Saturday, August 21, at 8:00 a.m., Capitol Extension Auditorium (E1.004)
SB 6 by Huffman relating to bail reform
(Note that this posting may still include SB 1 by Hughes relating to election integrity, but the hearing on that controversial bill is going to be postponed to Monday, August 23.)

That same select committee—which was created by the Speaker during the first called session for the specific purpose of facilitating the passage of some hot-button issues—also met earlier today (Friday) to approve SJR 3 by Huffman/Kacal, the proposed constitutional amendment permitting the denial of bail for certain violent or sexual offenses. That measure could reach the House floor by next week, where it will require approval by two-thirds of the House before it can be placed on a ballot in May 2022. The committee also approved SB 13 by Huffman/Hunter to implement a sliding calendar of filing and election dates for the 2022 elections that will depend on the outcome of the redistricting situation later this year (if at all). Those of you up for re-election in 2022 may want to familiarize yourselves with those options by reading that bill.

Legislative Update CLEs

As of this morning, we have accepted:

• 494 registrations for the in-person course in Galveston (September 21); and
• 1,455 registrations for the online course that will go live later this month.

Registration details are available at either of those links, so click on the one that interests you and sign up now. Those of you who registered for the online course before last week should have already received your book, so feel free to read through it ahead of time if you want to get the full benefit of our commentary when it goes online sometime NEXT WEEK*!

(*Assuming no Acts of God or the Legislature intervene, which at the rate 2021 is going, we can’t promise.)

Scattershooting

Some articles that you might find interesting:

• “Bexar County judge invalidates Gov. Abbott’s executive order limiting jail releases during pandemic” (KSAT.com)
• “Advocates say courts are failing domestic violence victims after 24-year-old mother’s death” (Houston Chronicle)
• “Troubleshooters CASE CLOSED: DA cuts grass on El Paso Street” (KZTV Action 10 News)

Tribute to Judge Cathy Cochran

A Celebration of Life for former Court of Criminal Appeals Judge Cathy Cochran (who passed away on February 7, 2021) will be held on September 18, 2021, from 1:00­­-4:00 p.m. at the Lady Bird Johnson Wildflower Center Auditorium, 4801 La Crosse Avenue, in Austin. Following Judge Cochran’s instructions, she wants a happy gathering with family, friends, and colleagues that includes cookies, coffee, and good conversations. The family is requesting that all attendees wear a mask while indoors.

Dr. Tony Fabelo is working with Rusty Hardin and family to organize the event. To RSVP, contact Dr. Fabelo’s wife, Dr. Dora Fabelo, at [email protected].

Quotes of the Week

“I don’t know what it’s a solution to. I don’t know what the problem was to start with.”
            —James McLaughlin, executive director of the Texas Police Chiefs Association, as quoted in an article about law enforcement concerns on the eve of the implementation of “constitutional carry.”

“I feel like it’s the right thing to do. I think sometimes we don’t look at what something does to an institution. If we don’t start working to make the world work again, it will never happen.”
            —State Rep. Garnet Coleman (D-Houston), announcing earlier this week that he will return to the House floor after a long medical absence. Coleman had earlier expressed support for his fellow Democrats’ quorum bust but never actually participated in the walk-out.

“All the parliamentarian wants for her birthday is a quorum.”
            —House Speaker Dade Phelan (R-Beaumont), after the House members present on the floor Tuesday sang “Happy Birthday” to parliamentarian Sharon Carter.

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Scene 1, take 2. And … rolling!

The NeverEnding Story

For a state that prides itself on a legislature meeting for only 140 days every two years, we sure can’t seem to quit them. Or get rid of them. (Take your pick.)

While the House continues to have trouble scraping together the necessary quorum of warm bodies to conduct business, the Senate has been churning through its agenda at warp speed—performative filibusters notwithstanding. Their work product includes the latest versions of bail reform, which passed the Senate earlier this week in the form of SB 6 and SJR 3 by Huffman (R-Houston), both of which were approved by 27-2 margins (with two senators absent due to medical situations).

The latest version of SB 6 is only slightly different from the version that almost passed in the regular session, and what corrections have been made since then are probably for the better. As for SJR 3, it is identical in substance to the version that died on the last night of the regular session, but due to the ongoing quorum bust, that proposed constitutional amendment can no longer be passed in time to make the November 2021 general election ballot, so now it will appear on the ballot in May 2022 if it passes. However, both bills’ fortunes are still questionable without a functioning lower chamber to also approve them.

Lions and tigers and bears, oh my!

If you like to geek out on obscure legal questions relating to the use of or limits upon federal, state, and local governmental power, then you are in high cotton right now. Whether it’s interdiction of border “trespassers,” pandemic anti-mask mandates, “vaccine passports,” or legislative warrants for quorum-busters, there is going to be some new law made by the judiciary over the next few weeks and months. Good luck to any of you who get caught up in those legal and political whirlwinds.

Legislative Update CLEs

As of this morning, we have accepted:

• 462 registrations for the in-person course in Galveston (September 21); and
• 1,305 registrations for the online course that will go live later this month.

Registration details are available at either of those links, so click on the one that interests you and sign up now—especially because early registration guarantees that you will receive your complimentary 2021–23 Legislative Update book. Those of you who registered for the online course before last week should have already received your book, so feel free to read through it ahead of time if you want to get the full benefit of our commentary when it goes online.

TAC Legislative Conference

The Texas Association of Counties (TAC) Legislative Conference will be held September 1–3 at the Fairmont Hotel in Austin. The conference will include sessions on topics such as criminal justice initiatives proposed during the 87^th Session (featuring special guest star Staley Heatly, 46^th Judicial DA), the American Rescue Plan, emergency management, and redistricting. Other conference sessions will give an overview of funding for counties in the state budget, resources available through the National Association of Counties, and a discussion on how courts across the state have adapted to the effects of COVID-19. There will also be a breakout meeting for each of TAC’s affiliate associations, with Rockwall County CDA Kenda Culpepper helping to moderate the discussion for county and district attorneys. This will be a hybrid event, meaning you can register for virtual or in-person participation. If you’d like more details, the full agenda is available here and registration here.

Scattershooting

Some articles that you might find interesting:

• “Texas is first state to make buying sex a felony” (Houston Chronicle)
• “In Atlanta, a glimpse of why ‘defund the police’ has faltered” (Christian Science Monitor)
• “‘He’s Not Charismatic. … I Think That Has Been Part of His Success’” (POLITICO) (yes, we are going to make you click on that link to find out to whom it refers)

Quotes of the Week

“This bill isn’t going to prevent all crime. It’s not going to prevent individuals from committing crimes if they do make a bond. But it will give trained magistrates and judges all the information that they need to use their judicial discretion to make what we hope will be appropriate bond decisions.”
            —State Sen. Joan Huffman (R-Houston), during floor debate on her Senate Bill 6, the bail reform bill which is on its third go-round before this legislature.

“I can definitely tell you it’s not gonna be like nothing happened. You’re not gonna see the normal handshakes, fist bumps, and smiles that you would on [the first day of a session]. … There’s been some significant—if not irreparable—damage to the relationships within the body.”
            —State Rep. Justin Holland (R-Rockwall), in an article discussing the potential fallout from the two recent quorum breaks by House Democrats.

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That was a waste of everyone’s time, wasn’t it?

Second verse, same as the first?

The first called special session ended today with nothing to show for its 30 days of existence, and the next special session begins tomorrow. Governor Abbott is calling the 87th Legislature back to Austin at noon on Saturday, August 7—but it’s anyone’s guess as to who will or will not show up.

Topics

The official proclamation for the second called session—aka “87(2)”—consists of some things old and some things new, including:

• bail reform
• election integrity
• criminal laws and funding related to border security
• cybersecurity
• modification of 2022 election dates and filing periods

All told, there are 17 separate issues on the call of this special session. You can read the full proclamation for yourself if you want to know what other red meat it contains.

Legislative Update CLEs

As of this morning, we have accepted:

• 230 registrations for the in-person course in Rockwall (August 12, room capacity of 250—walk-ins cannot be guaranteed admission);
• 437 registrations for the in-person course in Galveston (September 21); and
• 1,244 registrations for the online course that will go live in the latter half of August.

Registration details are available at any of those links, so click on the one that interests you and sign up now—especially if you are taking the course live in Galveston or online, as early registration guarantees that you will receive your complimentary 2021–23 Legislative Update book. We will start shipping the first of those books to our online registrants next week, while in-person attendees will receive theirs at the door.

Scattershooting

Some articles that you might find interesting:

• “Federal judge temporarily blocks Gov. Greg Abbott’s order to pull over vehicles with migrants, which drew racial profiling concerns” (Texas Tribune)
• “Local mask mandates pop up in defiance of Gov. Greg Abbott’s executive order banning COVID-19 restrictions” (Texas Tribune)

Quotes of the Week

“The courts are unique in that the judicial system is a separate branch of government.”
            —Ronald Morgan, Jr., director of district court administration in Williamson County, in a written statement announcing those courts’ adoption of a mask mandate despite Gov. Abbott’s recent executive order prohibiting local governments from imposing such mandates.

“If you are not vaccinated … your chances of getting through this without having to become either vaccinated or infected is essentially zero.”
            —Dr. David Persse, the health authority for the City of Houston, in response to recent news that there is now more COVID-19 in the city’s wastewater system (where it ends up through human waste) than at any time in the pandemic, marking the latest warning that the virus may be spreading at an unprecedented rate.

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