*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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One more week left in the special session … before we get to do it all over again, most likely.

The final week

The current special session must adjourn sine die on Friday, August 6. If anything is going to happen, it has to occur before that deadline. If not, the governor will have to start things all over again with a second called session.

Meanwhile, the Senate’s new Select Committee on the Future of College Sports in Texas is going to meet on Monday so members can share their favorite internet memes about UT and OU’s attempt to jump ship from the Big XII to the SEC. Otherwise, the capitol will remain quiet until the House Democrats return from their exodus.

More executive orders

Governor Abbott issued two executive orders yesterday related to the on-going pandemic.

Executive Order GA-37 relates to “the transportation of migrants during the COVID-19 disaster.” This order authorizes DPS troopers to stop any civilians providing ground transportation to migrants who have illegally crossed the border and then been released by the Feds. DPS is further ordered to re-route those vehicles to a port of entry or impound the vehicles of those drivers who refuse to return.

Executive Order GA-38 relates to “the continued response to the COVID-19 disaster” and is a laundry of preventative steps that state and local governmental entities and officials are not permitted to take in response to the recent increases in COVID-19 transmission caused by the delta variant. You’ll have to read the details for yourself to see how it applies to your local jurisdictions, but we note that at least two provisions—paragraphs 3(g) and 4(a)—may directly conflict with the Texas Supreme Court’s Emergency Order No. 40, issued July 19, 2021, which instructs courts to take all reasonable actions deemed necessary to avoid exposing court participants to the virus, including various best practices recommended by OCA.

Good luck figuring out how any of this works in practice. These are uncharted waters.

Legislative Update CLEs

We’ll continue to monitor the special session while finalizing our Legislative Update course for launching next month. As of this morning, we have accepted:

• 235 registrations for the in-person course in Rockwall (August 12, room capacity of 250);
• 413 registrations for the in-person course in Galveston (September 21); and
• 1,148 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 online, as early registration guarantees that you will receive your complimentary 2021–23 Legislative Update book in time to follow along with our speakers as you take the course.

Scattershooting

Some articles that you might find interesting:

• “‘Holy moly!’: Inside Texas’ fight against a ransomware hack” (AP News)
• “Gov. Greg Abbott orders Texas National Guard to help with migrant arrests at the border” (Texas Tribune)
• “Gov. Greg Abbott’s border security initiative rolls out with confusion, missteps and a whole lot of state troopers in Val Verde County” (Texas Tribune)
• “Fentanyl deaths are soaring in Texas, and officials aren’t taking key steps to stop them” (Houston Chronicle)

Quotes of the Week

“We’re not sitting around Ranch 616, sucking down Ranch Waters. There’s always real business to do.”
            —State Rep. James White (R-Hillister), referencing a local Austin watering hole that is popular with the capitol crowd when explaining how the House members left behind are biding their time in Austin.

“We have (to) meet people where they’re at sometimes … #HOLLA.”
            —Michigan State Rep. Jewell Jones (D-Inkster), in a text reply to a reporter asking why he spent campaign money at a local strip club for a “constituent meeting.” For the rest of the story—including details of Rep. Jones’ other legal problems—see this article in The Detroit News.

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