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.

###

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.

###

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.

###

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.

###

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.

###

Wake us when something happens.

Next week

Who knows? If the House Democrats come back during this first called session, their best bargaining position would be found in the waning days before it ends on Friday, August 6—any return before those final few days will likely result in them getting steamrolled. But that assumes either side has a plan, and as of right now, there is insufficient evidence to draw such a conclusion.

Legislative Update CLEs

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

• 218 registrations for the in-person course in Rockwall (August 12, room capacity of 250);
• 369 registrations for the in-person course in Galveston (September 21); and
• 1,024 registrations for the online course that will go live in the latter half of August.

Registration details are available by clicking 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 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:

• “In Texas, Top Two Republicans Steer Ship of State Hard to the Right” (New York Times)
• “Democrats who stayed behind as colleagues fled to D.C. quietly try to take care of business in Texas” (Dallas Morning News)
• “Converted Texas prison gets first immigrant detainees as Gov. Greg Abbott’s border security effort ramps up” (Texas Tribune)
• “Texas Supreme Court may decide next plot twist in the Democratic walkout, and the fate of 2,100 state employees” (Texas Tribune)

Quote (singular) of the Week

“If you’re a fully vaccinated individual and you’re meeting with somebody who has COVID, you really don’t have much to fear from the virus. The vaccines are very robust. … What we’re seeing now in the United States, as the CDC director said, is a pandemic of the unvaccinated. That’s where the risk is.”
            —Dr. Amesh Adalja, senior scholar at the Johns Hopkins Center for Health Security, in a national story about the latest COVID-19 surge.

###

They’re no longer back.

Breakin’ (Quorum) 2: Electric Boogaloo

Enough Democratic House members left the state to bust quorum in that chamber, meaning it cannot conduct business until at least 100 members are present and accounted for. This seems to happen every 20–30 years and the state has managed to survive each time, so we’re just going to kick back and enjoy the show while politicians do politician things.

Bail reform

Although the House is in limbo, the Senate still has enough warm bodies to act. That upper chamber passed SB 6 and SJR 3 by Huffman (R-Houston) on unanimous votes. The joint resolution is the same as the regular session version, but the bill was amended before passage in response to several technical issues raised during the committee hearings on Saturday. (Yes, we spent six hours in the capitol last Saturday working on bail stuff—aren’t you jealous?) As we predicted last week, these bills elicited nowhere near as much angst in the Senate as in the House, so now they head to that lower chamber, where their future remains uncertain.

Next week

Who the heck knows? We’re all at the mercy of the news cycle and the insatiable drive for follows, likes, clicks, and donations.

Legislative Update CLEs

We’ll continue to monitor the special session while finalizing our Legislative Update course for launching next month. So far, we’ve accepted 190 registrations for the in-person course in Rockwall (August 12), 320 registrations for the in-person course in Galveston (September 21), and more than 900 registrations for the online course that will go live in the latter half of August. Registration details are available by clicking 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 2021–23 Legislative Update book in time to follow along with our speakers as you take the course.

Prosecutors: Journeys to Justice

TDCAA’s Diversity, Recruitment, and Retention Committee used a grant from the Texas Bar Foundation to create another tool for you in the recruitment of new talent for your office. Prosecutors: Journeys to Justice highlights the opportunities that being a prosecutor can offer to new lawyers and the benefits that a diverse prosecutor’s office can provide to local communities. You can use this short video when speaking to local schools and community gatherings about the importance of diversity in our profession. Visit https://www.tdcaa.com/diversity to watch and share the video and other related resources generated by the committee.

Scattershooting

Some articles that you might find interesting:

• “The Prosecutor Exodus” (City Journal)
• “A lesson in understanding serial killers and child molesters” (book review from The Spectator)
• “US overdose deaths hit record 93,000 in pandemic last year” (AP News)

Quotes of the Week

“My Democratic colleagues have been quoted saying ‘all options are on the table.’ Respectfully, all options are on the table for myself as well.”
            —House Speaker Dade Phelan (R-Beaumont), in an interview the day before the first called session convened. There is currently a “call” on the House, which means House sergeants-at-arms and DPS officers have been instructed to find and return missing members to that chamber.

“As soon as they come back in the state of Texas, they will be arrested, [and] they will be cabined inside the Texas Capitol until they get their job done.”
            —Gov. Greg Abbott, who has promised to call as many special sessions as needed to get some of his preferred legislation passed.

“Our goal is not to release them. Our goal is to jail them.”
            —Abbott, talking about the migrants crossing the Texas-Mexico border. (But if you assumed he was talking about House Democrats, we will excuse that honest mistake. Who can keep track anymore?)

“It’s like being a truant at school. You’re supposed to be in the classroom, but you’re not. … That’s what you have—you have truancy here in the purest sense of the word. These officials don’t want to be back in the chamber, and if you’re going to bring them back, you’re probably going to have to resort to something that you’re not going to be happy about.”
            —Bill Miller, Austin lobbyist, finding an analogy for the recent quorum-busting.

###

They’re baaaaaaaaaaaaaaaaaaaaaaack!

Called Session No. 1

Legislators re-convened yesterday to start the 1st Called Session of the 87th Legislature. This special session has been called by the governor to tackle the following issues:

• Reforming the bail system “to protect the public from accused criminals who may be released on bail”
• “Strengthening the integrity of elections”
• Border security funding
• “Protecting social-media users from being censored by social-media companies”
• Restoring Article X funding in the state budget for the legislative branch (vetoed by Abbott)
• Dating violence programs for students, but with an opt-out for parents (vetoed by Abbott because of that omission)
• University Interscholastic League (UIL) competitions limited to the student’s sex at birth
• Further limits on abortion-inducing drugs
• An extra TRS payment for retired teachers
• A stronger ban against teaching critical race theory in schools
• Additional funding for property tax relief, foster care, and cybersecurity

Even though all of these topics were debated in bill form during the regular session, everything starts anew in a special session. New bills with new numbers have to run the entire gauntlet of the legislative process again, no matter how close they came to passing in May. However, the compressed schedule of a special session—which can last no more than 30 days—will lead to things being fast-tracked in comparison to the pace of a regular session.

Note that even though the legislature is supposed to focus on issues the governor has placed “on the call”—hence this being the first “called” session after a regular session—many bills are being filed on other matters. Legislation on non-called topics can technically pass if no legislators raise a point of order that the bill is “outside the call.” (Think of it like a pass interference in football—unless the referee calls the penalty, the result of the play stands.) Historically, bills outside the call of a special session almost never pass—especially when the level of partisan dislike is as high as it is right now—but never say never. Therefore, we will read and track bills just like in a regular session, and you can also follow along at https://capitol.texas.gov/ (just be sure to select “87(1) – 2021” as your session before searching for a called session bill).

Curious about any of the rules for a special session? Contact Shannon with a bill number or issue and he’ll let you know what the scoop is.

Bail reform

New Bills
One thing the Legislature can pass in this special session is bail reform, thanks to it being included in the governor’s call. In the House, those bills have been filed as HB 2 by Smith (R-Van Alstyne) and HJR 1 by Kacal (R-College Station). Identical versions of the House legislation have been filed in the Senate as SB 6 by Huffman (R-Houston) and SJR 3 by Huffman. The joint resolutions would amend the state constitution to allow denial of bail in a few additional circumstances, and they are identical to the final conference committee report version of HJR 4 from the regular session. The bills are the enabling legislation for HJR 1 and many other changes unrelated to preventive detention.

Roughly 90 percent of HB 2/SB 6 is identical to the final conference committee report version of HB 20 from the regular session. In a nutshell, the new language:

• sets a default for release on the lowest bail and least number of conditions needed to ensure reappearance in court and protect public safety;
• requires a “Public Safety Report” to be prepared and referenced by a magistrate prior to setting bail within 48 hours of arrest;
• prohibits the court from taking testimonial evidence at the initial bail setting;
• allows the use of default bail schedules—but only if they contemplate the individualized review required by the bill;
• allows indigent offenders who are denied bail or unable to make bail under a bail schedule to file an affidavit and seek a lower bail amount, which must also be decided within 48 hours of arrest, and any denial of that subsequent request must be explained by a magistrate in written findings;
• prohibits release on personal bond for a list of “violent offenses”;
• prohibits release on personal bond for certain offenses while already out on bond or on community supervision for one of those “violent offenses”;
• limits charitable bail organizations;
• requires a magistrate to consider the defendant’s criminal history and citizenship status and whether the instant offense involves violence (including against law enforcement) when setting bail; and
• requires a clerk to send details of a bond and its conditions to the local prosecutor and to the sheriff or chief of police, one of the latter two of whom must upload them into TCIC.

(Yes, we know that’s a big “nutshell,” but there’s a lot to unpack in this legislation.)

One improvement over the regular session bill language is that proposed Art. 17.027 (Release on Bail of Defendant Charged with Offense Committed While on Bail) no longer requires the bail in a subsequent out-of-county arrest to be set by the judge in the original case for which the defendant is on bond. Instead, it now includes a provision that merely requires information about the out-of-county arrest to be promptly sent to the original court in which the defendant is free on bail so that judge in the original case may reevaluate the bail set in that case. However, one provision that may need continued fine-tuning is an apparent overlap of two different 48-hour hearing requirements that are internally inconsistent. It remains to be seen how interested the special session committees will be in making changes, though.

Committees
For starters, the House bill has been filed by Rep. Reggie Smith (R-Van Alstyne), not Rep. Andrew Murr (R-Junction), who has carried that legislation the past several sessions. (Rep. Murr is now the author of HB 3, the new election integrity bill—talk about being thrown out of the frying pan and into the fire!) In addition, the House legislation has been referred to a new Select Committee on Constitutional Rights and Remedies that Speaker Phelan created specifically to handle several hot-button issues this special session. The committee line-up is:

Chair: Rep. Ashby (R-Lufkin); Vice-chair: S. Thompson (D-Houston)
Members: Bucy (D-Austin), Clardy (R-Nacogdoches), Geren (R-Fort Worth), Jetton (R-Sugar Land), A. Johnson (D-Houston), Klick (R-Fort Worth), Landgraf (R-Odessa), Longoria (D-Mission), Lozano (R-Kingsville), Moody (D-El Paso), Neave (D-Dallas), Shaheen (R-Plano), and White (R-Hillister).

That’s 9 Rs (including the chairman) and 6 Ds, for those of you counting at home, with only Rep. Ann Johnson having served on the Criminal Jurisprudence Committee that heard this bill in the regular session. How this new author and committee will impact the language of the bill that eventually gets referred to the full House is unclear, but if you have thoughts about this topic and you have a local legislator who is on this new committee, now is the time to pass that along because things are moving quickly.

Across the rotunda, the Senate bills have been referred to the Jurisprudence Committee, which has heard all these issues during the regular session and which is chaired by the author of this legislation, so we expect fewer fireworks or curveballs in the upper chamber.

Hearings
The Lege is now operating on expedited “special session time,” so hearings on the bills filed Thursday will be held tomorrow, Saturday, July 10:

• House Select Committee on Constitutional Rights & Remedies – 8:00 a.m., Room E1.030
  HB 2 by Smith relating to bail reform
  HJR 1 by Kacal authorizing the denial of bail in certain cases
  HB 3 by Murr relating to election integrity

• Senate Committee on Jurisprudence – 10:00 a.m., Room 2E.20 (Betty King Committee Room)
  SB 6 by Huffman relating to bail reform
  SB 9 by West requiring dating violence instruction in schools
  SJR 3 by Huffman authorizing denial of bail in certain cases

Outlook
Much of the language in the special session bills is the same as the most recent versions from the regular session. As a result, the legislation probably faces greater difficulty in the more criminal justice reform-minded House, but as noted above, the lay of the land in the lower chamber has changed in ways that make predictions more difficult.

As to the prospects for these bills … on the one hand, the new House committee could signal a greater likelihood that a Senate-flavored bill focused more on detaining violent or repeat offenders will pass the House, which previously leaned more toward limiting the use of pre-trial detention rather than expanding it (even for violent offenders). On the other hand, the political tension in the Big Pink Building has increased greatly in the wake of the House Democrats busting quorum at the end of the regular session, making it less likely that there will be any type of bipartisanship on most issues taken up in this special session. Republicans may still have the votes to push through whatever they want with regard to statutory bail changes, but any joint resolution to amend the state constitution and allow more preventive detention requires the approval of two-thirds of each chamber, and Republicans lack the numbers to cross that threshold on their own. As a result, HJR 1 and SJR 3 may be starting this special session on life support due to partisanship more than actual policy concerns. Welcome to the sausage-making process.

Next week

Both the House and Senate have adjourned until Tuesday. Committees started to meet today on some bills, and more are scheduled to meet tomorrow and into next week. For access to the upcoming hearings on bills other than bail reform, check this calendar of committee meetings by date. And remember, if you want to be heard on any issue taken up during the special session, don’t expect them to wait on you. Engage now or it may be too late.

CJIS reporting and grants

Applicants for FY 2022 grants from the governor’s Public Safety Office (PSO) will soon receive a letter confirming that all applicants are eligible for those grants despite the criminal history reporting challenges presented by the recent pandemic. We’ll leave the details to the letter and merely note here that 1) this is only for FY 2022 grants, so don’t let your guard down on future reporting, and 2) Amy Befeld and others at the Texas Association of Counties did a great job in obtaining this grant of temporary executive clemency for applicants this grant cycle, so be sure to thank them for all their hard work. (As well as Aimee Snoddy and the good people at PSO who granted the request!)

Senate Bill 111 (87RS)

Here’s a note unrelated to the special session.

Following the passage of SB 111 (effective September 1, 2021), which adds Article 2.1397 (Duties of Law Enforcement Agency Filing Case) to the Code of Criminal Procedure, the Bexar County Criminal District Attorney’s Office has created a working group to collaborate with other prosecutor offices on the creation of a uniform, required written statement for law enforcement to use when filing a case. If you are interested in participating, please reach out to the BCDA’s Office directly at [email protected] or 210/335-2736.

Legislative Update CLEs

Speaking of new laws like the one created by SB 111, we’ll be monitoring the special session fun at the capitol while also finalizing our Legislative Update book and online course for launching next month. Course registration has been open for only a week or two, but we’ve already accepted 175 registrations for the in-person course in Rockwall (August 12), more than 300 registrations for the in-person course in Galveston (September 21), and more than 700 registrations for the online course that will go live in the latter half of August. (Registration details are available by clicking any of those links.) All paid registrations include a copy of our 2021–2013 Legislative Update book, so sign up now to guarantee we can ship you a copy early enough to follow along with our speakers as you take the course online!

Scattershooting

Some articles that you might find interesting:

• “America’s Pot Labs Have A THC Problem” (FiveThirtyEight)
• “More People Are Buying Guns. Fewer People Are Getting Background Checks.” (FiveThirtyEight)
• “Can Criminal Justice Reform Survive a Wave of Violent Crime?” (The New Republic)
• “Texas House leader creates special panel to craft election, bail-bond overhauls in special session” (Dallas Morning News)
• “As killings tied to defendants out on bond rise in Houston, crime data reveals a crisis in courts” (Houston Chronicle)

Quotes of the Week

“We are seeing a troubling surge in violent crime, such as murder and armed robbery, committed by defendants who some courts have released on bond for new and repetitive offenses. It is preposterous to assert that continuing to release violent and repetitive offenders on bond is somehow not fueling the crime rate.”
            —David Mitcham, 1st Assistant D.A. in Harris County, in an article taking a look at the bail challenges in Harris County.

###

Week 21? Yes, Week 21 (and then some). We know the Legislature meets in regular session for only 20 weeks, but we had to tie this off and knot it somehow, and a 21st update on the 21st day of June 2021 just seemed to make sense.

Vetoes

Governor Abbott vetoed 20 bills on Friday, bringing his total to 21 for the 87th Regular Session. Those vetoes include:

• HB 686 by Moody granting early parole consideration to certain youthful offenders
• HB 787 by Allen relating to probationers’ contact with other offenders
• HB 1193 by Wu relating to the sealing of certain juvenile determinate sentencing records
• HB 2448 by Canales discharging a surety’s liability for offenders taken into federal custody for immigration purposes
• SB 1 by Nelson, the state’s General Appropriations Act (more on that below)
• SB 36 by Zaffirini relating to hazing
• SB 237 by Bettencourt authorizing cite and release for criminal trespass
• SB 281 by Hinojosa limiting forensic hypnosis in criminal investigations
• SB 474 by Lucio, III regulating the outdoor tethering of dogs
• SB 1458 by Zaffirini mandating the use of standardized protective order forms

For a full list of all the bills vetoed by the governor after this session, along with the veto statements explaining each action, click here.

One bill not vetoed was HB 558 by White/Hall relating to blood draws following certain motor vehicle collisions. Some prosecutors—along with the Texas Criminal Defense Lawyers Association—asked the governor to veto that bill because of its potential conflict with the constitutional requirements laid out in Missouri v. McNeely and State v. Villarreal, but the bill will now become law on September 1, 2021. That will be one of many new laws that have potential negative consequences for unwary peace officers or prosecutors, so we will cover it in detail in our upcoming Legislative Update CLEs.

New laws

Bills that took immediate effect this past week include:

• HB 1281 by Wilson/Schwertner legalizing the operation of certain low-powered vehicles (effective June 15)
• HB 2357 by Reynolds/Miles excepting certain autopsy reports and certain information related to crime victims from public disclosure (eff. June 14)
• SB 49 by Zaffirini/Murr facilitating the sharing of information regarding defendants suspected of having a mental illness or intellectual disability (eff. June 18)
• SB 1827 by Huffman/Holland creating an opioid abatement account (eff. June 16)

Curious about any other bills or issues? Contact Shannon with a bill number or issue and he’ll let you know what happened to it.

Special session

Rest while you can, because the conventional wisdom is that the governor will summon legislators back to Austin for a 30-day special session not long after the July 4th holiday weekend. The expectation is that this first called session will include bail reform and “election integrity” legislation, while redistricting is not expected to be taken up until October (after the official federal census data is available). Other topics for which Governor Abbott has recently expressed support for adding to the call of a summer special session include:

• refining the regular session’s ban on teaching critical race theory
• prohibiting social media platforms from censoring or banning (conservative) users
• restoring Article X funding in the state budget

The latter refers to the need to fund the legislative branch of state government in the upcoming biennium after the governor line-item-vetoed its funding from SB 1 (the state budget) to make sure Democrats don’t try to break quorum again during a special session to defeat another election-related bill. That line-item veto was an unprecedented move guaranteed to turn up the heat on an already volatile partisan issue (and perhaps even generate some litigation on our constitutional separation of powers), but how that all ends is anyone’s guess.

Musical chairs

With the close of the veto period comes the inevitable game of political dominoes as various legislators announce their intentions to move up, move out, or hold fast. We generally leave updates on political match-ups to your digital fish-wrap of choice, but sometimes they can change the situation at the legislature even before the election. For example, the recent news that State Sen. Dawn Buckingham (R-Lakeway) is running for Land Commissioner created a vacuum in that chamber because she chaired the Senate Nominations Committee. In response, the lieutenant governor assigned the following new duties:

• State Sen. Donna Campbell (R-New Braunfels): Chair of the Nominations Committee
• State Sen. Kelly Hancock (R-North Richland Hills): Chair of the Veterans & Border Security Committee (formerly chaired by Campbell)
• State Sen. Charles Schwertner (R-Georgetown): Chair of the Business & Commerce Committee (formerly chaired by Hancock)
• State Sen. Bob Hall (R-Edgewood): Chair of the Administration Committee (formerly chaired by Schwertner)

Legislative Update CLEs

If this final legislative update of the 87^th Regular Session whets your appetite for more, wait until you see our full Legislative Update CLE later this summer! We will primarily be offering that program online this year starting in mid- to late-August; more details are available here.

For those of you who still prefer the in-person approach, we have opened registration for a live update in Rockwall on Thursday, August 12, from 1:00–5:00 p.m. (offered in conjunction with—but separate from—our Investigator Conference, and attendance is limited by room capacity). We will also offer a live legislative update CLE on Tuesday, September 21, in Galveston in conjunction with our Annual Criminal & Civil Law Conference; click here for advanced details on that offering.

Scattershooting

Some articles that you might find interesting:

• “Gov. Greg Abbott has lifted almost all Texas pandemic restrictions. But not the one limiting jail releases.” (Texas Tribune)
• “Analysis: The 2021 Texas House, from left to right” (Texas Tribune)
• “Analysis: The 2021 Texas Senate, from left to right” (Texas Tribune)
• “2021: The Best and Worst Legislators (Texas Monthly)

Quotes of the Week

“I think I’m not going to engage. I’ll consider this halftime of this game, knowing that we’re going to be able to come back for at least two special sessions. … We just didn’t get it done in the first half, but we look forward to getting it done in the second half.”
            —Governor Greg Abbott (R), when asked who was to blame for the failure of SB 7, the “election integrity” bill.

“That’s up to the House. In fact, anything the Senate says—or I say—they’ll do just the opposite, so I’m staying out of that.”
            —Lt. Governor Dan Patrick (R), when asked if the House should choose a new speaker.

“There’s no reason to have a special session to talk about a hurricane. If you have a hurricane, you don’t need to be in Austin. I need to be boots on the ground.”
            —House Speaker Dade Phelan (R-Beaumont), who represents a district along the Gulf coast, explaining how House-Senate negotiations over HB 3 (to limit the governor’s power during disasters) broke down over the Senate’s insistence on language requiring a special session be called to continue any disaster declaration for more than 30 days, which the House wanted to limit to pandemics, not natural disasters.

“Trump never built a wall, Mexico didn’t pay for it, and Abbott’s not gonna build a wall. The only thing Texans are gonna pay for is a waste of taxpayer dollars on legal bills.”
            —Domingo Garcia, president of the League of United Latin American Citizens (LULAC), who disparaged the governor’s recent announcement that Texas would build a border wall as “political theater.”

[This will be our last update of the 87th Regular Session, but we’ll be back at it as soon as the governor calls the legislature back to Austin.]

###

Close your eyes and visualize how you would feel if you spent five months in trial on the most complicated case you can imagine, only to have the jury hang 11–1 and cause a mistrial.

Yeah, that’s pretty much how we feel right now. #airingofgrievances #serenitynow

Final adjournment

The 87^th Regular Session adjourned sine die yesterday without much fanfare because of the pall cast over the proceedings by the prospects of a special session being called—perhaps as quickly as later this month. That unpopular decision was brought about by the House Democrats’ quorum-busting defeat of SB 7 by Hughes/Cain (election reforms). The story made national news, so you don’t need us to tell you what happened, but let’s just say “it didn’t have to go down like that” and leave it at that. What’s done is done.

After sine die, all the cards remaining to be played are in the governor’s hand. Only a governor can call the legislature back into session, and then only to address specific issues selected by the governor. While we await word on the scheduling of any special session, let’s break down what did and didn’t pass before the final meltdown.

Collateral damage

Several bills we were tracking failed to receive final approval due to the fight over SB 7. Those included:

• HJR 4 (bail) – died in House
• HB 20 (bail) – died in House
• HB 492 (no-knock warrants) – died in House
• HB 2593 (THC edibles) – died in Senate

Of particular importance are the bail reform measures that were among Governor Abbott’s five “emergency issues” for this session, along with expanding broadband internet access, cracking down on “defunding police,” limiting civil liability for businesses open during the pandemic, and “election integrity” legislation. It’s that last one that got all the attention for failing on the final night of the session, but the governor also highlighted the defeat of HJR 4 by Kacal/Huffman and HB 20 by Murr/Huffman as reasons for calling an upcoming special session. The big questions now are, When will it be called? And what else will be on the call?

Everyone already expected a special session over redistricting to be called in October after the federal government’s release in late September of the required census data. Other issues are also likely to be added to that list, but if the legislature is to pass election reforms in time to be effective for the November 2 election—as well as a constitutional proposition on bail (such as HJR 4) to be placed on that ballot—those matters must be addressed sooner rather than later. As a result, we expect the governor to call the 87^th Legislature into a special session later this month.

And now you know why we NEVER make summer vacation plans in odd-numbered years.

New laws

As the dust settles, it appears that roughly 215 of the bills we tracked this session made it to the governor’s desk. That’s only 40 (15%) fewer than last session, despite all the additional headwinds faced by the Lege this year. We don’t know whether that’s impressive or depressing.

It will take us about a month to summarize all of the relevant new laws for our Legislative Update book and related publications (pre-orders can be placed here), but while most new laws don’t take effect until September 1, 2021, a few take effect immediately upon being signed. Here are some of the “immediate effect” bills that have already been signed into law:

• HB 54 by Talarico/Whitmire banning law enforcement participation in reality TV policing shows (effective May 26, 2021)
• HB 1024 by Geren/Hancock authorizing alcohol-to-go for off-premises consumption (eff. May 12)
• HB 2536 by Krause/Buckingham narrowing “neglect” circumstances in CPS cases (eff. May 15)
• SB 315 by Huffman/Hunter applying the Employment Harmful to Children offense to anyone under 21 years of age (eff. May 24)
• SB 1093 by Creighton/Metcalf relating to regional veterans treatment court programs (eff. May 28)

Curious about any other bills or issues? Contact Shannon with a bill number or issue and he’ll let you know what happened to it.

The final hurdle

Bills on their way to the governor’s desk after successfully running the legislative gauntlet before sine die include:

• HB 385 by Pacheco/Hughes (probation reforms)
• HB 686 by Moody/Lucio (early parole for violent youthful offenders)
• HB 1925 by Capriglione/Buckingham (public camping ban)
• HB 3774 by Leach/Huffman (omnibus court creation bill)
• SB 69 by Miles/White (choke holds and excessive force)
• SB 111 by West/Collier (law enforcement discovery duties)
• SB 112 by West/Harless (mobile tracking devices and location data)
• SB 281 by Hinojosa/Lucio III (forensic hypnosis)
• SB 321 by Huffman/Bonnen (ERS cash benefit plans)
• SB 1827 by Huffman/Holland (opioid abatement account and settlements)
• SB 2212 by West/Thompson (officer’s duty to render aid to injured person)

If you know of a bill sent to the governor that you still want to support or oppose before it becomes law, contact Shannon for more details on how to do that effectively. The governor has 20 days after sine die to consider whether to sign or veto bills passed in the final 10 days of a session—which is the vast majority of them. This session, that veto deadline falls on Sunday, June 20 (Father’s Day). To date, Governor Abbott has vetoed just one bill sent to him this session, but more are sure to follow. We’ll follow up later this week with more information about a couple of bills on the governor’s plate that may interest some of you in that regard—including one that both prosecutors and defense lawyers may have concerns about.

Legislative Update CLEs

A confluence of events put into motion by the COVID-19 pandemic has resulted in a change to our normal summer tour of Legislative Updates around the state. For the first time, TDCAA will be offering our popular Legislative Update course online this summer and fall. Although we will miss seeing many of you in person, moving the program online will allow greater flexibility for those of you whose courthouses are springing back to life. And for anyone who prefers in-person training, we intend to offer at least one live presentation on Tuesday, September 21, in Galveston in conjunction with our Annual Criminal & Civil Law Conference, and maybe others after that (depending upon the special session situation.) Stay tuned for more details on all these events in the future!

Scattershooting

Some articles that you might find interesting:

• “Democrats’ defeat of Texas voting bill adds an asterisk to Republicans’ ‘most conservative’ legislative session” (Texas Tribune)
• “Gun rights in Texas see major expansion as Legislature rejects bills to address gun violence” (Dallas Morning News)
• “GOP priority bail bill dies in Texas House after Democrats walk out on voting bill” (Texas Tribune)
• With feelings raw over voting bill’s demise, Texas Legislature wraps up—for now” (Texas Tribune)

Quotes of the Week

“Ensuring the integrity of our elections and reforming a broken bail system remain emergencies in Texas. Legislators will be expected to have worked out the details when they arrive at the Capitol for the special session.”
            —Governor Greg Abbott (R), after House Democrats broke quorum and defeated both measures before sine die.

“I’d normally say I’ll see you in 18 months, but I might see you in 18 days or so.”
            —Lt. Governor Dan Patrick (R), as he gaveled out the Senate to adjourn sine die.

###