Six weeks to go. Six long, arduous, frustrating, sleep-depriving weeks. If you can’t send reinforcements, we’ll settle for some coffee! 😉

Hot topics

Here are some quick hits on several interesting legislative topics this week (in no particular order):

Grand juries: The House Criminal Jurisprudence Committee considered HB 179 by S. Thompson (D-Houston) on Monday. This bill, like last session’s HB 2398, represents grand jury “reform” on steroids, as we described in some detail last week. Only a single witness (from the Texas Public Policy Foundation) testified for the bill, arguing that it was needed to return the grand jury to its historical function of protecting citizens from an overzealous government. In response, multiple prosecutors offered principled opposition to the bill on the grounds that it would instead fundamentally change what the grand jury is: a confidential process to determine probable cause—not guilt beyond a reasonable doubt—in a manner that protects suspects and witnesses. They also educated the committee members about the practical impossibilities of complying with some of the bill’s provisions and noted how the new cause of action it creates would chill investigations and prosecutions of the wealthy or powerful.

The bill was left pending in committee until the author can find enough votes for approval.

Post-pandemic court proceedings: One silver lining from the pandemic was the experimental use of remote video technology. Now some people want to continue using that new toy in post-pandemic times, but as with most things at the state capitol, the devil is in the details.

This week the House Judiciary & Civil Jurisprudence Committee considered HB 3611 by Leach (R-Plano), the House companion to SB 690 by Zaffirini (D-Laredo) that we have mentioned before in this space. The committee first heard testimony from three judges, all of whom supported the idea of letting judges unilaterally decide when non-jury proceedings should be held remotely or in-person. The committee then heard from a variety of legal practitioners—civil and criminal, plaintiff, prosecutor, and defense—who pushed back on the idea of denying lawyers any say in how contested or evidentiary proceedings are conducted. It was a rare instance in which litigants who often oppose each other in court seemed to be aligned on this policy question. Interestingly, most of the committee members (membership here) are lawyers whose private practices could be adversely impacted by an over-delegation of authority to the bench in this policy area, and they seemed to appreciate the perspectives given by witnesses who pointed out the importance of using this new technological tool to reduce headaches rather than create new ones by forcing it upon litigants.

House Bill 3611 was left pending in the committee with a commitment from the chairman—who is also the author of the bill—to return next week with a committee substitute based on the feedback he has received. If that is something to which you would like to contribute, feel free to reach out to any committee members you know and share your input.

The next pandemic: Another new topic this session is what the legislature should do to prepare for the next mass disaster or pandemic. In that vein, SB 1025 and SJR 45 by Birdwell (R-Granbury) were debated and passed by the Senate earlier this week. That legislation would limit the governor’s powers during such events to a single 30-day emergency order and require him to call the legislature into special session to declare a state emergency for any period greater than 30 days. This would give lawmakers the chance to terminate, adjust, or continue the governor’s executive order and pass new laws related to that disaster or emergency. It would also specifically prohibit the governor from suspending any penal or election law for more than 30 days, including statutes like CCP Art. 15.171, which Governor Abbott has tolled under his existing COVID-19 executive orders. If approved by the House and by Texas voters in November, this kind of change could result in prosecutors having to lobby the legislature during future disasters to protect public safety in that same manner.

Prosecutor immunity: Earlier this morning the House Judiciary & Civil Jurisprudence Committee voted out a committee substitute for HB 2335 by Middleton (R-Wallisville), the bill we told you about in our Week 11 update that would punish prosecutors who don’t punish rioters. The substitute language (available here) drops the immunity issue in favor of making it a grounds for removal from office by the Texas Supreme Court. (Yeah, you read that correctly.) Now the bill heads to the Calendars Committee for further consideration.

Bail reform: The Senate passed its version of bail reform—SB 21 by Huffman (R-Houston)—by a vote of 21–8, with four Senate Democrats joining the Republican majority. That bill now heads to the Senate, where HB 20 by Murr (R-Junction) awaits consideration by the full House. The two versions differ, so it remains to be seen if one or other—or perhaps neither—makes it across the finish line.

Appellate re-organization: While the major appellate re-organization bill has been shelved for this regular session, SB 1529 by Huffman was passed by the full Senate on Tuesday on a party-line vote (18 R ­– 13 D). That bill would create a statewide intermediate appellate court for some types of civil appeals involving the State of Texas. The bill was amended by the author prior to passage to exempt civil appeals related to expunctions, non-disclosures, and bond forfeitures, which means those cases would still be handled by your local appellate courts. However, the bill still directs to this new super-court other appeals—including removals from office and perhaps even appeals of civil lawsuits against a district attorney. We will continue to monitor this as it moves through the House, but if this concerns you, now is a good time to get involved with it in the lower chamber.

Ban on local advocacy: A kinder, gentler version of SB 10 by Bettencourt (R-Houston) was voted from the author’s committee on Monday on a party-line 5–4 vote and then voted from the full Senate on Thursday on another party-line vote. (Further proof that the Senate moves much faster than the House when it suits the leadership). The engrossed version approved by the Senate waters downs some of the most restrictive aspects of its ban on so-called “taxpayer-funded lobbying” by including six different exceptions to that ban that should exempt prosecutors and TDCAA from any adverse consequences for current practices, but it still prohibits a county or municipality from hiring private lobbyists and subjects them to civil lawsuits for potential violations. The bill now heads to the House, where a different version of this type of ban remains stuck in the House State Affairs Committee.

Guns: The House passed HB 1927 by Schaefer (R-Tyler), aka permitless carry or “constitutional carry,” by a 84–56 margin after almost seven hours of floor debate yesterday. (A final vote on third reading today will send it to the Senate.) This marks the first time either chamber has passed such a measure. The bill now goes to the Senate, where the bill’s law enforcement opponents hope to make a more successful stand—not least of all because of a late amendment that could ban voluntary encounters with, or investigative detentions of, someone openly carrying a firearm in public.

Policing reforms: The Senate passed SB 23 by Huffman (R-Houston) to prevent local governments from “defunding” law enforcement agency budgets without prior approval from voters. Senators approved the legislation on a 28­­–2 vote indicating broad bipartisan opposition to the “defund the police” movement, although several Senate Democrats criticized the legislation as a political ploy. The bill now moves to the House, where multiple different versions of the same idea are pending.

Changing gears

Exhausted from reading all that? It’s a small sampling of the action of hundreds upon hundreds of bills this week, but that’s probably enough of that—now let’s turn to what’s coming up next week and beyond. And remember, to read any specific bill, simply visit the state legislature’s website and enter the HB or SB number in the appropriate search box.

Floor calendars

Bills calendared for debate on the House floor can be found here; check back for updates as needed. Among the tracked bills coming up the first half of this week are HB 1403 by Ann Johnson (stacking sentences for certain offenses), HB 1694 by Raney (Good Samaritan drug defense), and Senate Bill 1 by Nelson/Bonnen, aka the state budget, which is scheduled to be debated on the House floor next Thursday, April 22.

Bills eligible for possible debate on the Senate floor are available here; the list changes daily so check that as needed. Among the tracked bills that might be taken up are SB 111 by West (law enforcement discovery obligations), SB 281 by Hinojosa (ban on investigative hypnosis), and SB 1055 by Huffman (pedestrian fatalities).

Calendars Committee bills

House bills that were sent this week to the Calendars Committee for further consideration include HB 393 by Moody (legalized fantasy sports gambling), HB 487 by Wu (raising the age of juvenile jurisdiction), HB 744 by Collier (law enforcement discovery obligations), HB 770 by Wu (poker room regulations), HB 817 by Moody (legalized keno), HB 1002 by Lucio III (ban on investigative hypnosis), HB 1352 by Crockett (accelerating jail release under CCP Art. 17.151), HB 1374 by Minjarez (sexual assault counselor privilege), and HB 2448 by Canales (surety discharge after immigration detention), and HB 2335 by Middleton (prosecutor removals from office).

Remember, the Calendars Committee does not take additional testimony on bills sent to it from other committees, but its members do take input on bills individually. If you know any members of that committee, don’t be shy about reaching out to them on bills as you see fit.

Committee notices

It’s getting late in the session for any House bill that is being considered in committee next week, but at least they are better off than those not heard at all. Below are the postings for next Monday; we will issue a follow-up notice in a day or two with additional posting for later in the week.

For a full agenda of all the bills to be heard at each meeting listed below, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.

Monday, April 19

Senate State Affairs – 9:00 a.m., Senate Chamber
SB 912 by Buckingham increasing penalties for certain riot-related conduct
SB 1508 by Creighton creating an election integrity division at OAG with administrative subpoena power

House Defense and Veterans’ Affairs – 10:00 a.m. or upon adjournment, E2.028
SB 623 by Blanco relating to sexual assaults by or against Texas Military Forces members

House Criminal Jurisprudence – 1:00 p.m. or upon adj., Room E2.010
HB 77 by Toth barring the death penalty in a conviction based on one eyewitness
HB 140 by Rose barring the death penalty for persons with severe mental illness
HB 285 by Murr increasing the punishment for retaliation against a public servant
HB 670 by Martinez creating an offense for reckless discharge of a firearm
HB 708 by Shaheen creating an offense for possession of an animal by certain offenders
HB 799 by Rosenthal creating an offense for carrying a firearm while intoxicated
HB 869 by S. Thompson barring the death penalty for persons with an intellectual disability
HB 970 by Dutton creating extensive data reporting duties for prosecutors
HB 1126 by Anchia extending the State’s deadline for answering certain writs
HB 1127 by Anchia allowing service to the State by email of an Art. 11.072 writ
HB 1349 by Crockett imposing a mandatory minimum prison sentence for murder by a peace officer
HB 1636 by Sherman authorizing the use of therapy dogs in certain criminal cases
HB 1750 by Crockett relating to mistake of fact and self-defense
HB 2146 by Allen limiting the use of drug-free zone enhancements
HB 2198 by Schaefer relating to lewd visual material depicting a child
HB 2436 by Davis mandating pretrial diversion of certain cases by a community panel
HB 2498 by Campos criminalizing harassment using a burner phone
HB 3065 by Davis creating a commission to study politically incorrect penal language
HB 3087 by Smith increasing the penalty for urinating or defecating in certain public places
HB 3205 by Ellzey enhancing the penalty for riot conduct while wearing a mask or military gear
HB 3350 by Moody creating protective orders for most crime victims
HB 3521 by Hunter relating to the definition of coercion in human trafficking-labor/services cases
HB 3772 by White lowering penalties for marijuana and cannabis concentrate
HB 4282 by Morales Shaw barring possession of an animal by certain offenders
HB 4338 by A. Johnson authorizing OAG to represent CSCDs in Art. 11.072 writs
HB 4485 by Guillen relating to the arrest and magistration of certain Class C offenders
HB 4486 by Guillen relating to mental health screening for fine-only offenders

Scattershooting

Here are some articles we read this week that you might find interesting:

• “‘How much fraud is OK?’: In voter fraud debate, Republicans have a trump card” (Dallas Morning News)
• “Can the death penalty be fixed? These Republicans think so.” (The Marshall Project)
• “Former Texas Lt. Gov. David Dewhurst arrested on domestic violence charge” (The Texas Tribune)
• “Doctor accused of groping, harassing 22 women let off easy by Texas law, critics say” (Fort Worth Star-Telegram)

Prosecutor rotation

It was great to walk the halls of the state capitol building this week and see 46^th Judicial DA Staley Heatly, 106^th Judicial DA Philip Mack Furlow, Washington County DA Julie Renken, Cherokee County DA Elmer Beckworth, Midland County DA Laura Nodolf,  Fort Bend County DA Brian Middleton, Kleberg & Kenedy Counties DA John Hubert, 79^th Judicial DA Carlos Garcia, 81^st Judicial DA Audrey Louis, Galveston County CDA Jack Roady, Hemphill County CA Kyle Miller, and all the assistant prosecutors who came to Austin this week to support or oppose various pieces of legislation. When prosecutors show up at the capitol, good things happen!

If you want to see how the sausage is made, contact Shannon for details on how to get involved in Austin. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.

Quotes of the Week

“This sends a message to the citizens that we are going to ‘Back the Blue.’ That’s what this bill intends to do.”
            —State Sen. Joan Huffman (R-Houston), on the passage of her SB 23 to require local governments to hold an election before reducing law enforcement funding.

“The city of Austin is the reason this bill is passing. Not to send a message, not to be political, but to be sure there’s not another Austin.”
            —Lt. Gov. Dan Patrick (R-Houston), on the passage of Sen. Huffman’s SB 23.

“Well, if I did anything today, I got the prosecutors a day off.”
            —State Rep. Senfronia Thompson (D-Houston), wrapping up the committee debate on her HB 179 (grand jury “reform”), to which at least a dozen prosecutors from around the state registered opposition in person on Tuesday.

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Consider this the sequel to Friday’s weekly update. Like most sequels, it may not make most fans of the original very happy considering it includes updates on bills relating to remote court proceedings, mandatory prosecutor training, mandatory pretrial diversions, prosecutorial immunity, and more. (Please don’t shoot the messenger!)

More hot button issues

Finishing what we started Friday, here are updates on yet more issues (listed alphabetically) we’ve been following for you this session.

Civil asset forfeiture: HB 402 by Hernandez (using funds to provide services to trafficking victims) is on Monday’s House floor calendar. HB 1441 by Schaefer (State must disprove innocent owner defense by clear and convincing evidence) is headed to the Calendars Committee for further consideration. (More information about that committee can be found in another entry below.) HB 2315 by Turner (forfeitures for street racing) is also headed to the Calendars Committee.

Death penalty: HB 252 by Moody (unanimous defense verdicts) is heading to the Calendars Committee. HB 679 by Gervin-Hawkins (expanding qualifications for defense appointments) was voted from committee Friday. HB 688 by Dutton and HB 1340 by Leach (excluding certain party defendants from the death penalty) are pending in the House Criminal Jurisprudence Committee.

Drugs: House committees have approved HB 441 by Zwiener (Class C POM < 1 oz.), HB 1086 by Moody (reducing felony drug penalties to misdemeanors), HB 1535 by Klick (expansion of low-THC medical marijuana), HB 1694 by Raney (“Good Samaritan” defense for overdosages), and HB 2593 by Moody (reducing penalties for THC edibles, gummies, vapes, etc.)—all of which are now, or soon will be, in the hands of the Calendars Committee. The Senate has passed SB 768 by Huffman (fentanyl enhancement), which now moves to the House for further consideration.

Guns: HB 1911 by White (permitless carry, aka “constitutional carry”) and HB 1927 by Schaefer (a different permitless carry bill) were both approved by the House Homeland Security & Public Safety Committee and are now on their way to the Calendars Committee. Look for one of them to be placed on a House floor calendar in the upcoming week or two. (And for those interested, various law enforcement representatives and public safety advocates will be holding a press conference on the south steps of the capitol this Tuesday at 10:00 a.m. in opposition to whichever “constitutional carry” bill first gets calendared for House floor debate.)

Juveniles/young offenders: The House Juvenile Justice & Family Issues Committee has approved HB 487 by Wu (changing juvenile jurisdiction from 10 to 16 years of age to 12 to 17 years of age), HB 488 by Wu (juvenile attire in court), HB 890 by VanDeaver (juvenile remote proceedings), and HB 967 by Dutton (“Raise the Age” to include 17-year-olds), which all now head to the Calendars Committee, along with HB 3315 by Crockett (diversion of non-3g offenses committed by 17-year-olds), which was changed from being optional to mandatory before being sent to the Calendars Committee. In addition, HB 686 by Moody (“Second Look” early parole review) was passed by the House this week and is now in the Senate.

Policing reform: HB 54 by Talarico (no reality TV cop shows) is heading to the Calendars Committee. HB 88 by S. Thompson (the George Floyd Act) was heard and left pending in committee. HB 492 by Wu (limits on no-knock warrants) was approved by the House Criminal Jurisprudence Committee on Friday. HB 744 by Collier and SB 111 by West (law enforcement discovery compliance) have both been approved by their initial committees, along with HB 834 by S. Thompson (corroboration of undercover drug testimony), HB 1550 by Cyrier (TCOLE sunset review), and HB 2631 (notice, hearing, jury instruction for jailhouse informants), which are all heading to the Calendars Committee. Across the rotunda, SB 24 by Huffman (transparency in peace officer hiring) has been passed by the Senate and sent to the House for more action.

Other bills to watch: HB 1374 by Minjarez (privilege for sexual assault victim counselors), and HB 1717 by S. Thompson (employment lawsuit over Brady compliance) are all in, or on the way, to the Calendars Committee, while HB 2335 by Middleton (suing prosecutors over riot cases) and SB 252 by Bettencourt (AG prosecution of public corruption crimes) are both still pending in their respective committees.

Calendars Committee bills

We are currently tracking 53 of the 180 bills now before the House Calendars Committee. In addition to other bills mentioned in this week’s two updates that are—or soon will be—before that committee for possible floor consideration are the following bills: HB 225 by S. Thompson (subsequent writs based on non-scientific evidence), SB 275 by Moody (expanding scientific writs to punishment evidence), HB 379 by Smith (parole limitations for online solicitation of a minor), HB 1293 by Smithee (out-of-time new trial with consent of prosecutor), HB 1352 by Crockett (shortening time for state to be ready under CCP Art. 17.151), HB 1403 by Ann Johnson (stacking of certain sentences), and HB 2733 by Tinderholt (DWI database).

Remember, the eleven-member Calendars Committee does not take additional testimony on bills sent to it from other committees, but its members do take input on bills individually. If you know any members of that committee, don’t be shy about reaching out to them on bills as you see fit.

Upcoming floor calendars

Bills calendared for debate on the House floor can be found here; check back for updates as needed. Among the tracked bills coming up the first half of this week are HB 187 by S. Thompson (subsequent writs), HB 375 by Smith (continuous sexual abuse of a disabled individual), HB 376 by Smith (increasing penalty for improper sexual activity with a person in custody), HB 766 by Harless (certain bond conditions entered into TCIC), HB 789 by Geren (punishment for tampering with evidence), and HB 1540 by S. Thompson (human trafficking).

Bills eligible for possible debate on the Senate floor are available here; the list changes daily so check as needed. Among the tracked bills that might be taken up on Monday are SJR 45 and SB 1025 by Birdwell (limiting gubernatorial power during a disaster), SB 21 by Huffman (bail bond reform), SB 23 by Huffman (local election required before defunding law enforcement), SB 623 by Blanco (sexual assault by or against Texas Military Forces member), and SB 1529 by Huffman (statewide appellate court for certain civil cases).

Committee notices

Our initial list of bills for Monday and Tuesday can be found here. Below are more abridged committee notices for later in the week. For a full agenda of all the bills to be heard at each meeting, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.

Wednesday, April 14
House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.026
HB 1089 by Reynolds increasing the cap for damages under the Tort Claims Act
HB 2020 by Gonzalez allowing recovery of attorneys fees from the state or an agency or institution of the state
HB 2714 by Hernandez mandating implicit bias training for judges and lawyers (including prosecutors)
HB 2950 by Smith relating to multidistrict litigation in consumer protection actions
HB 3611 by Leach authorizing remotely-conducted court proceeding
HB 3913 by Ramos mandating judicial training regarding family violence victims
HB 3966 by Morales authorizing certain ex-district judges with past disciplinary issues to serve as visiting judges
HB 3986 by Guillen relating to uncollectible fines, fees, and court costs
HB 4293 by Hinojosa mandating a “court reminder program” for all counties

House Corrections – 8:00 a.m., E2.026
HB 358 by Sherman limiting the consequences for technical violations of certain probations
HB 385 by Pacheco accelerating the conditions for early termination from probation
HB 757 by Dutton relating to the consequences of completing deferred adjudication
HB 870 by S. Thompson accelerating eligibility for some orders of non-disclosure
HB 1894 by White mandating review of felony inmates for clemency suitability
HB 2442 by White creating a Justice Reinvestment Incentive Progra
HB 3547 by Allen mandating automatic non-disclosure for most misdemeanors and expanding non-disclosure of certain felony offenses
HB 3598 by Leach imposing a mandatory minimum sentence for intoxication manslaughter

House Public Health – 8:00 a.m., JHR 140
HB 4295 by K. Bell relating to the release and confidentiality of autopsy reports

Thursday, April 15
House Homeland Security & Public Safety – 10:30 a.m. or upon adj., E2.030
HB 368 by Sherman authorizing driver’s license address confidentiality to legislators and prosecutors
HB 882 by Hinojosa relating to the unlawful transfer of a firearm
HB 1513 by Zwiener relating to the use of non-lethal projectiles for crowd control
HB 2302 by White criminalizing an officer’s false statement in an incident report
HB 2618 by Hernandez relating to disclosure of information in a traffic citation
HB 3017 by Wu creating an offense for “swatting” by false statement
HB 4145 by Coleman “relating to criminal justice” (a grab-bag of random provisions)
HB 4286 by K. King relating to the dishonorable discharge of peace officers and related consequences

House County Affairs – 10:30 a.m. or upon adj., E2.014
HB 2244 by Wilson relating to the state salary supplement for a county judge
HB 2272 by Ordaz Perez relating to the delegation of a county’s disaster powers
HB 4354 by Coleman relating to the administration of medication to certain jail inmates

Scattershooting

We’ll wrap up this addendum with a fun column by Ken Herman of the Austin American-Stateman: “Knives. Guns. Mermaids. State militia. A day at the Texas Capitol.”

As always, if you need anything further, please reach out to Rob or Shannon.

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We are in the middle of the “confetti bomb” stage of the session: The bomb has gone off and everything is still flying around in mid-air, making it hard for us to know what is happening until everything hits the ground and stops moving. Unfortunately, by that time—aka sine die—it will be too late to do much about it. We’ll do the best we can until then, which also includes sending part of this week’s update now and the rest in a supplement TBD.

Grand jury “reform” next week

Many felony prosecutors have been struggling to keep their local grand juries up and running during the pandemic, so what better time for the Texas Legislature to consider making that difficult job even more time-consuming and expensive, right?

On Monday, the House Criminal Jurisprudence committee will hear HB 179 by S. Thompson (D-Houston), the omnibus grand jury reform bill proposed by the Texas Public Policy Foundation and Right on Crime people and supported by some current and former statewide elected officials. Chairwoman Thompson has been pushing to allow defense attorneys in the grand jury off and on since 1991, but her bill for the past few sessions has been that idea on steroids. Here is what the bill would do:

• Every witness to or target of an investigation is entitled to a lawyer in the grand jury
• A target is entitled to full discovery before appearing before a grand jury
• All questions, statements, and comments made by prosecutors, grand jurors, and witnesses must be recorded (other than the jurors’ deliberations)
• The State must present all exculpatory evidence in the State’s possession to the grand jury
• If a person is no-billed, a second grand jury may not investigate or return an indictment against that previously investigated person absent new, material evidence
• Regardless of whether a grand jury returns a true bill or no bill, the target/defendant can sue the prosecutor for attorneys’ fees and other related expenses which shall be awarded if the court finds that “the position of the prosecutor was vexatious, frivolous, or in bad faith.”

Prosecutors’ views on these ideas have been consistent for the past three decades: This is bad public policy that will endanger crime victims, impair important investigations, and chill prosecutions of the rich and powerful. The good news is that those arguments have been accepted and followed by past legislatures. But don’t be lulled into thinking that past results guarantee future outcomes, especially during this session of “criminal justice reform” in the Texas House. If this issue is important to you, read the text of the bill and start talking to members of the Criminal Jurisprudence Committee now if you have a relationship with any of them.

Those interested in testifying on the bill Monday should contact Rob Kepple for more information.

Other hot button issues

Here is a brief update on some of the other high-profile issues we’ve been following for you this session.

Appellate re-organization: SB 11 by Huffman (R-Houston) is being shelved by its author due to a lack of time left in the session; SB 1529 by Huffman is scheduled for consideration on the Senate floor any day now.

Bail reform: A substitute version of HB 20 by Murr (R-Junction) was voted out of committee earlier today; we talked about the filed version of that bill last week, but the new text should be available online in a few days. HJR 4 by Kacal (R-College Station) was not voted out, and none of the provisions of HB 20 that allow denial of bail for certain violent or sex crimes can take effect without the passage of HJR 4, so keep an eye on that one. The Senate has a different version of bail reform—SB 21 by Huffman (R-Houston)—which was voted from committee this week and could reach the Senate floor next week.

Ban on local advocacy: SB 10 by Bettencourt (R-Houston) was considered in the author’s committee on Tuesday and left pending. A proposed substitute version waters downs the negative impact of its ban on so-called “taxpayer-funded lobbying” but still subjects local officials to civil lawsuits for potential violations. A different House version—HB 749 by Middleton (R-Wallisville)—has been pending in committee since it was heard on March 25th.

CPS reform: The House overwhelmingly passed HB 567 by Frank (R-Wichita Falls), a bi-partisan smack-down of that agency which shortens time limits and makes it more difficult to remove children in cases of alleged neglect (among many other changes). The bill’s Senate companion—SB 190 by Hughes (R-Mineola)—was heard earlier this week and is still pending before the author’s committee.

Committee notices

If you are interested in the fate of a House bill, the clock will likely run out on it unless it is heard by a committee no later than Friday, April 23. (Senate bills have another week or two of life beyond that.) As a result of that impending unofficial deadline, the list of bills being heard in committee is getting mind-numbingly long, so we’re going to list only the more interesting or controversial bills. (Yes, this is just a *partial* list—be glad we don’t give you the full one!) For a full agenda of all the bills to be heard at each meeting, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.

Monday, April 12

Senate State Affairs – 9:00 a.m., Senate Chamber
SB 1646 by Perry relating to child abuse and child endangerment in gender transition/re-assignment

House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 2108 by Wu revising procedures and notices for juvenile transfers to adult courts
HB 2308 by Gates limiting CPS intervention in certain cases of alleged child abuse
HB 3660 by White mandating youth diversion programs for fine-only offenses
HB 3994 by Neave barring certain modifications of juvenile probation for technical violations
HB 4055 by Meza barring CPS intervention in certain cases involving drug use during pregnancy
HB 4240 by Raymond authorizing local ordinances to criminalize interference with child custody

Senate Local Government – 12:30 p.m., Capitol Extension Auditorium
SB 987 by Buckingham banning camping in a public place and requiring enforcement

House Criminal Jurisprudence – 1:00 p.m. or upon final adjournment, Room E2.010
HB 138 by Landgraf increasing the punishment for DOC-Peeping Tom
HB 179 by S. Thompson relating to grand jury proceedings
HB 302 by Collier clarifying consent for the purposes of the offense of sexual assault
HB 347 by Geren criminalizing false or misleading statements used to acquire a firearm
HB 369 by Craddick extending the statute of limitations for aggravated assaults involving communicable diseases
HB 624 by Shine increasing the criminal penalty for certain retaliation offenses
HB 687 by Lozano relating to the offense of smuggling of persons
HB 859 by Collier authorizing the quasi-expunction of records of certain offenses
HB 1814 by J. González authorizing a witness confidentiality and protection program
HB 2290 by S. Thompson expanding the affirmative defense of duress
HB 2357 by Reynolds exempting certain information about crime victims from open records disclosure
HB 2794 by S. Thompson relating to extraneous evidence in trafficking/sexual crimes trials
HB 2795 by S. Thompson creating the offense of solicitation of prostitution and making conforming changes
HB 2987 by Julie Johnson enhancing the punishment for indecent assault
HB 3110 by Meyer changing the term “child pornography” to “child sexual abuse material”
HB 3111 by Meyer expanding the offense of online solicitation of a minor to third parties
HB 3157 by Reynolds relating to the elements of and punishment for improper sexual activity with persons in custody
HB 3363 by Harless relating to search warrants for electronic location information
HB 3505 by White authorizing a court to require confined defendants to plead by remote technology
HB 3601 by Leach relating to automatic orders of nondisclosure in certain deferred adjudications
HB 3789 by Guillen extending the statute of limitations for tampering with corpses
HB 3988 by Guillen authorizing private attorneys to serve as prosecutors pro tem in justice and municipal courts
HB 4175 by Landgraf mandating certain law enforcement actions in strangulation cases
HB 4528 by Guillen enhancing the punishment for human trafficking
HB 4565 by Ramos expanding sexual assault to include any sexual conduct between an officer and a person being detained, arrested, or confined.

Tuesday, April 13

House Business & Industry – 8:00 a.m., E2.028
HB 2942 by Bernal authorizing local DAs and CAs to pursue DTPA actions involving price-gouging during disasters

Senate Criminal Justice – 8:30 a.m., E1.016
SB 109 by West expanding the criminal offense of securing execution of a document by deception
SB 223 by Whitmire prohibiting law enforcement from participating in reality TV shows
SB 474 by Lucio relating to the unlawful restraint of a dog
SB 503 by Miles creating the criminal offense of failing to report abuse, neglect, or exploitation in certain boarding home facilities
SB 576 by Hinojosa relating to the offense of smuggling of persons
SB 1544 by West limiting the issuance of no-knock warrants
SB 1550 by Nelson relating to airport police forces

COVID and the capitol

For those coming to the legislature in the remaining weeks of the session, remember that Senate committee rooms require proof you are negative for COVID-19 for entry or to provide testimony. You can obtain that proof in the M*A*S*H tents outside the north doors of the capitol either by submitting to a free rapid test or by presenting a COVID-19 vaccine card and matching ID. Don’t forget to bring that proof if you have it, and please factor that additional time into your visits.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Texas Gov. Greg Abbott braces for primary challenge, but remains in dominant position” (Dallas Morning News)
• “House advances bill making it harder for CPS to remove Texas youth from their families” (Dallas Morning News)
• “Texas lawmakers advancing bail bills that opponents say do little for people stuck in jail because they’re poor” (The Texas Tribune)
• “Texas Republicans have long pushed to allow ‘constitutional carry’ of guns. Proponents say this year is their best chance.” (The Texas Tribune)
• “Lawsuit accuses Texas AG Ken Paxton of improperly blocking critics on Twitter” (Austin American-Statesman)
• “Texas House committee passes bill to expand medical marijuana program” (Dallas Morning News)

Prosecutor rotation

Thanks to Washington County DA Julie Renken, Comal County CDA Jennifer Tharp, Fort Bend County DA Brian Middleton, Smith County CDA Jacob Putman, and all the assistant prosecutors who came to Austin this week to support or oppose legislation.

If you want to see how the sausage is made, contact Shannon for details on how to get involved in Austin. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.

Quotes of the Week

“Their focus on this indigency part makes them kick this idea of a dangerousness issue into the future or not consider it at all.”
            —Derek Cohen, director of the Texas Public Policy Foundation’s “Right on Crime” initiative, as quoted in an article about the competing positions of various criminal justice reform groups on bail bond bills currently before the Lege.

“There have been some serious allegations levied against the current attorney general. Personally, I think that the top law enforcement official in Texas needs to be above reproach. … I’ve visited with many conservative attorneys general throughout the country. They’re embarrassed by [Paxton’s] conduct, and I think Texans deserve better.”
            —Texas Land Commissioner George P. Bush, in an interview in which he said he is “seriously considering” running for attorney general in 2022.

“They definitely don’t want to anger the base in a moment when there are rumors about primary challengers for Republicans who aren’t right-leaning enough.”
            —Brandon Rottinghaus, political scientist at the University of Houston, providing an explanation for why the Republican-led legislature has not taken more action in response to the 2019 mass shootings in El Paso and Midland-Odessa.

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We are sending this week’s update a day early for those offices observing Good Friday tomorrow. Legislators are taking a four-day break and will return to business in earnest on Tuesday. Then the real work begins, as you will see from the long list of committee postings (below) addressing bail reform, drug penalties, the death penalty, DWI offenses, accelerated prison releases, and just for good measure, another bill banning so-called “taxpayer-funded lobbying.”

Drivers, start your engines!

Killing the messenger?

The Senate Local Government Committee will hear SB 10 by Bettencourt (R-Houston), a bill that would bar city and county officials’ use of local funds to “directly or indirectly influence or attempt to influence” legislation in Austin. Like HB 749 by Middleton (R-Wallisville), which was mostly focused on advocacy by lobbyists and associations, SB 10 could be read to bar county payments to associations like TDCAA because we follow and report to you on what the legislature is doing, which in other contexts has been held to be a form of “indirectly” attempting to influence legislation. But SB 10 also takes direct aim at local governmental officials and their employees by making it more difficult for them come to Austin to advocate for or against policies that impact their jobs. Your jobs. It will be up to you to convince them that your input is worth it.

Riding the news cycle

Policing reform’s high profile this session won’t be ending anytime soon. Not only have several Texas peace officers been shot since the session began—including one fatally—but former Minneapolis PD officer Derek Chauvin is currently on trial for the death of George Floyd, whose namesake bill has already been heard in a House committee this session. Regardless of the outcome of that trial, the jury verdict is likely to add fuel to that particular policy fire and become a lens through which many bills are viewed for the rest of the session.

Bail reform

Earlier this morning the Senate Jurisprudence Committee passed a committee substitute version of SB 21 by Huffman (R-Houston), which will be the Senate’s “bail bond reform” bill this session. An advanced copy of the new version can be read here. In summary, it:

• Limits the availability of personal bonds for certain repeat offenders
• Requires bail in a new case to be set by a court before in which a defendant is already out on bail
• Requires a magistrate setting bail to take additional factors—including criminal history, violent behavior, and citizenship status—into consideration
• Requires more judicial training related to setting bail
• Limits the activities of “charitable bail organizations”
• Collects data on bail bonds issued, including failures to appear and new offenses committed while released on bail

The bill will now head to the full Senate for consideration.

Meanwhile, on Tuesday the House Criminal Jurisprudence Committee will take up its version of bail bond reform in HB 20 by Murr (R-Junction). The bulk of HB 20 tracks past House attempts at bail reform by creating a statutory default for release on “the least restrictive conditions and minimum amount of bail” necessary to encourage the offender’s appearance and protect public safety. The bill would try to accomplish this through the use of a statewide pretrial risk assessment tool and a preference for release on personal bonds in non-violent cases. However, one important difference from previous versions of this bill is the removal of language allowing a judge to deny bail and then requiring evidentiary hearings at which the State would have to prove certain things by clear and convincing evidence to confirm that denial. Instead, Section 2 of HB 20 reverses that process and allows a judge to deny bail in certain violent or sex crimes unless the court determines by clear and convincing evidence that it would be safe to release that offender, and there is no requirement of a live evidentiary hearing to do that. Note, however, that this new approach is contingent upon the passage of HJR 4 by Kacal (R-College Station), which would amend the state constitution to allow—or in some cases, require—judges to deny bail in those cases. The passage of such a resolution is never a sure thing, but this may be a welcome change for those of you who objected to the creation of additional bail hearings in past sessions due to a lack of resources or ability to see them through. Again, these measures will be considered in committee on Tuesday, so if you have thoughts about them, that is your opportunity to be heard.

Bills and bills and yet more bills

We thought we’d use this temporary holiday pause in the session to examine where things stand on the overall bill front.

We are currently tracking 1,623 (23%) of 7,120 filed bills and resolutions. That is the most bills we’ve ever tracked in a single session, something at least partly attributable to the high profile of policing reform and pandemic-related issues this time around. Below are additional details about some of the 40+ bill tracking categories we maintain, as well as notes on some bills in those categories that are on the move. (To learn more about any of these bills, go to https://capitol.texas.gov and enter the bill number in the appropriate search box.)

Bail/pre-trial release: 45 bills, including HB 1352 by Crockett (accelerating jail release under Art. 17.151) and the bills mentioned in the prior section.
Capital punishment: 36 bills, including HB 252 by Moody (jury instruction on unanimous votes).
Civil asset forfeiture: 17 bills, including HB 1441 by Schaefer (flip and increase the burden on the innocent owner defense).
Drugs: 85 bills, including HB 1086 by Moody (reducing some felony drug crimes to misdemeanors) and SB 768 by Huffman (fentanyl enhancements).
DWI: 30 bills, including HB 2733 by Tinderholt (DPS database of DWI bond/probation conditions and DL suspensions).
Family violence: 50 bills, including SB 343 by Kolkhorst (FV bond conditions in TCIC).
Grand jury: Nine bills.
Guns: 147 bills.
Human trafficking: 45 bills, including HB 402 by Hernandez (forfeiture proceeds to help trafficking victims) and HB 1540 by S. Thompson (omnibus trafficking bill).
Juveniles: 56 bills, including HB 488 by Wu (juvenile clothing and restraints) and HB 1193 by Wu (sealing of certain determinate sentence records).
Policing and officer duties: 222 bills, including HB 8 by Pacheco (hiring practices by law enforcement agencies), HB 88 by S. Thompson (George Floyd Act), HB 766 by Harless (TCIC entry of bond conditions), SB 23 by Huffman (voter approval before defunding law enforcement), and SB 24 by Huffman (hiring practices by law enforcement agencies).
Punishment enhancement: 116 bills, including HB 376 by Smith (improper sexual activity with person in custody), SB 516 by Huffman (ATM criminal mischief), and SB 768 by Huffman (fentanyl—and yes, some bills are in multiple tracks).
Punishment reduction/decriminalization: 152 bills, including HB 686 by Moody (retroactive accelerated parole consideration for youthful violent offenders).
New crimes: 264 bills, including several election fraud and abortion-related bills.
Sex crimes: 88 bills, including HB 1172 by Howard (rights of sexual assault survivors).

Our three key tracks are:
Code of Criminal Procedure: 457 bills, which includes several bills already mentioned above plus bills such as HB 39 (protective orders) and HB 2631 (limitations on jailhouse informants).
Penal Code: 334 bills, including several bills mentioned above.
Bills to watch: 130 bills, including HB 6 (election fraud), HB 749 by Middleton (ban on local government advocacy), HB 1717 by S. Thompson (Hillman v. Nueces Co. proposal), HB 2335 by Middleton (waiving prosecutorial immunity), SB 7 (election fraud), SB 23 by Huffman (limitation on defunding policing agencies), and SB 252 by Bettencourt (independent OAG prosecution of public corruption crimes).

To view all the tracked bills that would amend the Code of Criminal Procedure, the Penal Code, or fall into our general “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon.

Floor action

The Senate passed SB 343 by Kolkhorst (FV bond conditions in TCIC), SB 768 by Huffman (fentanyl punishments), and a half-dozen abortion-related bills—SBs 8, 9, 394, 1173, and 1647—some of which carry potential criminal sanctions. The House passed HB 567 by Frank (restrictions on terminating parental rights). Now those bills move on to the other chamber.

Upcoming floor calendars

Bills calendared for debate on the House floor can be found here; check back for updates as needed. Among the tracked bills coming up on Wednesday are HB 686 by Moody (“Second Look” early parole for violent youthful offenders) and HB 167 by Ortega (TROs for nuisance abatement).

Bills eligible for possible debate on the Senate floor are available here; the list changes daily so check as needed. Among the tracked bills that might be taken up on Tuesday are SB 7 by Hughes (election fraud) and SB 24 by Huffman (hiring of peace officers).

Committee news

House committees approved HB 530 by Patterson (election judges carrying handguns at polling places), HB 873 by Collier (dog tethering), HB 1071 by Harris (therapy dogs in court), HB 1172 by Howard (rights of sexual assault survivors), HB 1374 by Minjarez (sexual assault counselor privilege), HB 2733 by Tinderholt (DWI database), and HB 3295 by S. Thompson (DTPA actions against massage parlors by local prosecutors).

Senate Committees voted out SB 21 by Huffman (bail bond reform), SB 24 by Huffman (hiring peace officers), SB 111 by West (law enforcement discovery compliance), and SB 476 by Nelson (mandatory sexual assault review teams).

Intermission

Hey, that’s a lot of information to absorb, isn’t it? We get it. Why not take a break and clear your head? There’s a lot more to pass along, so this is a good mid-way point to pause before diving in again. (And just remember—if you think this is tough to read, imagine what it must be like trying to distill, summarize, and share all this crap! The struggle is real.)

Committee notices

The long Easter break will totally change next week’s usual committee hearing schedule. Below are the relevant postings so far, but we’ll probably have to update this again with information on hearings later in the week. We apologize in advance for stuffing your inbox.

For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.

Monday, April 5 (no business)

Tuesday, April 6

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.026
HB 2144 by Harris creating a new tort of public nuisance
HB 3334 by Turner creating a statewide criminal justice sentencing database
HB 3774 by Leach, the omnibus court creation and judicial administration bill
HB 4422 by T. King authorizing county legal counsel to request AG opinions

Senate Jurisprudence – 9:00 a.m., Room E1.016
SB 295 by Perry creating a testimonial privilege for certain sexual assault counselors
SB 312 by Huffman increasing the punishment for improper sexual activity with a person in custody
SB 335 by Johnson relating to toxicological evidence in intoxication cases
SB 495 by Kolkhorst granting crime victims a right to request bond increases
SB 1054 by Huffman creating a condition of supervision relating to searches
SB 1055 by Huffman creating an offense for injuring pedestrians in a crosswalk
SB 1056 by Huffman creating a “SWATting” offense

Senate Local Government – 11:00 a.m. or upon adj., 2E.20 (Betty King Committee Room)
SB 10 by Bettencourt barring the use of local funds for legislative work
SB 1879 by Bettencourt relating to the reporting of lobbying activities by certain political subdivisions

House Criminal Jurisprudence – 1:00 p.m. or upon final adjournment, Room E2.012
HJR 4 by Kacal proposing a constitutional amendment to deny bail in certain cases
HB 20 by Murr, the Texas Judicial Council version of bail bond reform
HB 99 by Toth reducing the penalty for possession of marijuana
HB 169 by S. Thompson reducing the penalties for possessing certain controlled substances
HB 198 by M. Gonzalez extending the scope of the “Romeo and Juliet” defense
HB 439 by Canales reducing the penalty for possession of marijuana concentrate
HB 441 by Zweiner reducing the penalty for possession of marijuana
HB 498 by Wu reducing the penalty for the possession of marijuana
HB 688 by Dutton exempting certain co-conspirators from the death penalty
HB 818 by Cole reducing the penalty for the possession of marijuana
HB 834 by S. Thompson requiring corroboration of undercover peace officers
HB 854 by Burns exemption LTC holders from certain weapons laws
HB 921 by White relating to release on bail
HB 955 by Dutton requiring bond for parolees who bond out on new offenses
HB 956 by Dutton allowing long knives in bars, churches, and amusement parks
HB 1005 by Leman imposing conditions of release on certain bail bonds
HB 1178 by Crockett removing the penalty for possession of drug paraphernalia
HB 1340 by Leach exempting certain co-conspirators from the death penalty
HB 1609 by Crockett reducing the penalty for possession of marijuana
HB 2077 by Reynolds relating to bail and other pretrial proceedings
HB 2327 by Frullo increasing penalties for boating while intoxicated with child passenger
HB 2505 by Smith creating an offense of boating while intoxicated with child passenger
HB 2593 by Moody reducing penalties for certain consumable marijuana products
HB 2684 by Canales expanding expunctions and non-disclosures
HB 2781 by A. Johnson relating to the punishment for mass shootings
HB 4136 by Collier expanding non-disclosures

Wednesday, April 7

House Corrections – 8:00 a.m., E2.026
HJR 10 by S. Thompson and HB 137 by S. Thompson authorizing courts to commute sentences after parole
HB 721 by Wilson limiting mandatory supervision release of someone in a county jail
HB 841 by Moody requiring parole board members to meet in person on capital cases
HB 953 by Allen mandating the award of time credits for state jail felony offenders
HB 1805 by Moody retroactively awarding good conduct time to certain violent offenders
HB 1894 by White recommending inmates for clemency
HB 2177 by Moody retroactively accelerating parole eligibility for certain violent offenders
HB 2341 by Crockett retroactively accelerating parole eligibility for certain violent offenders
HB 3598 by Leach mandating a minimum confinement for intoxication manslaughter
HB 4212 by Moody relating to defendants with mental illness or intellectual disability

Thursday, April 8

House Homeland Security & Public Safety – 10:30 a.m. or upon adj., E2.030
HB 558 by White relating to blood draws for certain intoxication offenses
HB 832 by S. Thompson changing peace officer’s duties
HB 833 by S. Thompson changing defenses for officers’ use of force and mandating policies
HB 1757 by Krause relating to recordings by and of peace officers while on duty
HB 1838 by M. Gonzalez to limit information in street gang databases
HB 2147 by Allen reducing the punishment for repeated DWLI offenses
HB 2366 by Buckley increasing penalties for protest-related conduct that injures officers
HB 2706 by Howard relating to sexual assault examinations
HB 2746 by Ellzey increasing the punishment for improper use of laser pointers
HB 3413 by Murr relating to occupational driver’s licenses
HB 3712 by E. Thompson relating to the training and hiring of peace officers
( … plus eight different gun-related bills; click on the link above for more details)

COVID and the capitol

For those coming to the legislature in the remaining weeks of the session, remember that Senate committee rooms require proof you are negative for COVID-19 for entry or to provide testimony. You can obtain that proof in the M*A*S*H tents outside the north doors of the capitol either by submitting to a free rapid test or by presenting a COVID-19 vaccine card and matching ID. Don’t forget to bring that proof if you have it, and please factor that additional time into your visits.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Analysis: The fight over local control turns to representation—and lobbyists” (The Texas Tribune)
• “After crime plummeted in 2020, Baltimore will stop drug, sex prosecutions” (The Washington Post)
• “High anxiety over federal weed loophole” (Politico)
• “Texas prisons stopped in-person visits and limited mail. Drugs got in anyway.” (The Texas Tribune)
• “Many Capitol rioters unlikely to serve jail time” (Politico)

Quotes of the Week

“This is when things get really fun at the Capitol. This is when the rubber meets the road, right?”
            —House Speaker Dade Phelan (R-Beaumont), quoted in an article about the current phase of the session.

“I do not know yet what to make of the allegations against Deshaun Watson. I do know this: the legal matchup between attorneys Rusty Hardin and Tony Buzbee will be far more interesting than any game the Texans play next fall.”
            —Tweet by Ryan Autullo, Austin American-Statesman reporter, in reference to the score and more of massage therapists who are suing the Houston Texans quarterback for alleged untoward behavior.

“Well I got to testify and then there was a guy who snorted a truckful of coke, ranted for several minutes, and closed with ‘I don’t know what’s in the text of the bill!!! but from what I’ve heard, I like it!!!!!!’.”
            —Tweet by Emily Eby, a voting rights lawyer who live-tweeted a Senate State Affairs hearing on election fraud last week, providing what may be one of the best descriptions of public testimony at the Texas legislature that we’ve ever read.

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This is a supplement to our Week 11 summary to alert you that the following bills have been posted for consideration in committee on Thursday, April 1, 2021 (and no, this is not an April Fools’ joke). For a full agenda of all bills to be heard at the meetings listed below, please click the link in the committee name; from that notice page, you can click on any listed bill number to find the text of the filed bill.

Thursday, April 1

House Elections – 8:00 a.m., E2.028
HB 6 by Cain relating to election fraud

Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
SB 11 by Huffman re-organizing courts of appeals districts
SB 1529 by Huffman creating the Texas Court of Appeals
SB 1822 by Huffman postponing certain 2020 election dates

House Homeland Security & Public Safety – 10:30 a.m. or upon adj., E2.030 [*new*]
HB 929 by Sherman, aka the “Botham Jean Act”, aka “Bo’s Law”
HB 1550 by Cyrier, the TCOLE Sunset re-authorization bill
HB 1920 by Capriglione relating to firearms in a secured area of an airport
HB 2650 by Jarvis Johnson regarding placement of children after an arrest

Senate Bill 11 – Appellate re-organization

We discussed SB 11 by Huffman (R-Houston) last month (see this update for details), and we told you then that we would let you know when more details were released. Now is that time.

The bill is set for a hearing before the bill author’s committee on Thursday morning. Details of the new bill–which will maintain the location of the current appellate courts but reduce the number of state appellate court districts from 14 to 7 and create two additional appellate court sites–can be found in these documents:

• CSSB 11_Background and Bill Summary 03.29.21.pdf
• CSSB 11_Map 03.29.21.pdf
• CSSB 11 Justice Places 03.29.21.pdf
• CSSB 11 Letter from Chair 03.29.21.pdf

If you want to know which court will hear your appellate cases under this plan–and which counties will be electing the judges sitting on that court–then read these attachments. The committee will hear the bill Thursday morning, and the committee membership can be accessed here.

Senate Bill 1529 – Appellate super-court

While you’re at it, check out SB 1529 by Huffman (R-Houston), which is also teed up for Thursday. This bill would create a single intermediate appellate court based in Austin with exclusive statewide jurisdiction over civil cases brought by or against the State of Texas, a state agency (like OAG), or a state official. The court’s mandate would not include criminal cases, but it could include many civil actions–such as juvenile cases, civil asset forfeitures, CPS cases, mental health commitments, and more–which y’all currently handle on behalf of the State.

We expect there to be further revisions to this proposal as it moves through the process, but if this interests or concerns you, now is the time to engage.

Next week

Due to the upcoming holiday, the Lege will be closed for Good Friday and Easter Monday, resulting in committees that normally meet on Mondays and Tuesdays sliding to later in the week. We’ll provide you with those notices as we are able.

Further updates for these and other committees will appear on our Legislative web page. If you have questions before then, contact Shannon.

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[*updated: Friday, March 26 5:15pm*]

The Lege has crested the halfway point of its regular session and is now heading downhill to sine die. This will be a high-speed ride that includes climbing, dropping, tilting, sudden and dramatic changes in speed, and occasional backwards motion. Please remain seated, hold onto your lap bar, and keep your hands inside the car for the duration of your ride.

Thursday. Wow.

The roller-coaster nature of the Lege was evident yesterday. House committees went deep into the night and early morning taking testimony on multiple high-profile issues: the George Floyd Act, constitutional carry, election law reforms, taxpayer-funded lobbying, public camping bans, defund the police bans, and more. And little of it went smoothly. One committee abruptly ended with 180 registered witnesses yet to testify; in another hearing, a witness and her supporters had to be escorted out by DPS troopers after some obscenity-filled tirades (which she and others filmed on their cellphones while it happened—welcome to 2021). Two other committees did not adjourn until around 5:00 a.m. today. Heck, even a bill to legalize fantasy sports wagering led to a shouting match between House members. (And no, they weren’t arguing over who to bet on in March Madness.) It was as if all the normal stress of a session that had been pent up by social distancing and masking and limited attendance finally broke loose and flooded the Capitol Extension. It wasn’t pretty, and it was also too much, too fast, and too late into the evening (and morning) for us to recap here. On the other hand, in some ways it was more “normal” (for our legislature) than the way in which this pandemic-tinged session had proceeded so far. All we know for sure is that this session is bound to get weirder before it ends, so stay tuned!

House vs. Senate?

Capitol observers have long known that the differences between legislative chambers can be just as contentious as those between the donkeys and elephants. As this session progresses, the importance placed on criminal justice “reform” may turn into one of the many distinctions between chambers. While Senate committees have mostly focused on non-criminal justice issues, House committees have taken up bills that would limit civil asset forfeitures, raise the age of juvenile jurisdiction, grant early parole consideration for prisoners sentenced for violent offenses, reclassify certain felony drug offenses as misdemeanors, expand the use of subsequent writs, and make substantial policing reforms in the context of the George Floyd Act. (And more House bills in that vein are set next week—see below for details.) This may not be a surprise in the wake of the turnover in the lower chamber—including the selection of a new speaker who was a founding member of the House Criminal Justice Reform Caucus—but it may be useful for you to keep this new dynamic in mind when processing news from Austin this session.

Prosecutorial immunity

On Wednesday, the House Judiciary and Civil Jurisprudence Committee heard HB 2335 by Middleton (R-Wallisville). This bill would make a prosecutor personally liable for significant physical injury, death, or property damage that was a foreseeable outcome of a riot if the prosecutor had established, prior to the riot, a “formal or informal policy” not to prosecute rioters. The hearing started with testimony about the disposition of cases arising out of protests at the state capitol last summer, but it soon morphed into a larger discussion about the proper role of lawmakers and prosecutors in deciding what gets prosecuted and how. Judging from similar discussions elsewhere in the nation, this is not the last time this will be discussed, so let’s take a deeper dive into that debate.

The hearing began with a resource witness from DPS testifying that all of the 22 criminal charges that his agency had filed after summer protests at the state capitol had been dismissed by the local county attorney and district attorney. Now, law enforcement complaints that prosecutors don’t prosecute enough of their cases are not new—and you probably won’t be surprised to learn that the Travis County CA and DA are prosecuting some cases arising out of this past summer’s unrest—but the solution to this problem as proposed by this bill should alarm Texas prosecutors because it would strip you of your immunity from civil lawsuits. That’s very dangerous ground, because part of your job is to make decisions that will disappoint or anger someone no matter what you do. As was pointed out during the hearing, prosecutors need the discretion and ability to be innovative in their approaches to seeking “justice”—a term that was often discussed in the hearing, but never defined.

Another key term in this debate that was not clearly defined is “formal or informal policy.” Many elected prosecutors have established priorities that meet the expectations of their communities, and some advocacy groups encourage prosecutors to adopt this or that “best practice” when handling certain types of cases. However, any prosecutor’s announcement of an official policy—e.g., “My office will no longer enforce ‘x’ law”—is bound to get the attention of the people who wrote “x” law. For instance, at one point in the hearing a committee member opined that prosecutors should not be free to “tear out sections of the Penal Code,” while another pointed out that there are things lawmakers put in statute—such as the now-unconstitutional crime of homosexual conduct still on the books—which prosecutors cannot legally or ethically pursue. And that debate went back and forth.

The legislature usually tries to address local prosecutors who don’t do what they want them to do in one of two ways. The first is to threaten to cut off state grant funding for not enforcing a law. See, e.g., HB 1925 by Capriglione (R-Southlake), which would prohibit local officials (including prosecutors) from establishing a policy not to enforce the public camping ban created by that bill. (That bill was heard in a different committee yesterday and left pending). The second “stick” used by the Lege is to try to give the prosecution job to the attorney general, the state’s chief civil lawyer. See, e.g., SB 252 by Bettencourt (R-Houston), which purports to give public corruption prosecution authority to the AG due to the perceived failure of a local prosecutor to prosecute a specific instance of that conduct. (That bill was heard in committee the previous week and is still pending in that committee.) Now add to that one-two punch this new attack on your prosecutorial immunity in the form of HB 2335, which had support from a local Austin police officer who testified that he supported stripping prosecutors of their immunity even though he opposed efforts in other bills being heard this week to strip peace officers of their qualified immunity. (What can we say, except to note that stress-free cognitive dissonance at the state capitol is a real thing.)

So, how should all this be resolved by policymakers? In our experience, even when a prosecutor’s office tends to handle certain cases a certain way, there are very few absolutes in prosecution. Time and time again we have seen prosecutors use statutes they aren’t necessarily in love with when the case demands it or make exceptions from their usual practice when justice demands it in an individual case. But we are also living in a political culture that seems to be increasingly less tolerant of nuance or compromise or settlement, replacing those qualities with a preference for simplified absolutes: black or white, no gray. The challenge for you is to decide whether or how you want to protect your discretion and authority in such a dichotomous world, because a bill to remove your immunity—even if only initially targeted at a type of case that may have never crossed your desk—directly threatens both of them.

House Bill 2335 was left pending in the House Judiciary & Civil Jurisprudence Committee (membership available here), but this is not the last time this topic will be discussed. If you haven’t already done so, now might be a good time to sit down with your local legislators and educate them about what you do and how you do it.

State of the Judiciary Address

On Tuesday, Texas Supreme Court Chief Justice Nathan Hecht gave his State of the Judiciary Address online. He bragged on how well the court system handled the pandemic compared to some of our sister states, but he also noted that the number of jury trials in Texas dropped from ~9,000 in 2019 to fewer than 250 in 2020. As a result, he predicts we have a three-year backlog on our criminal and civil dockets right now, and he’s seeking more money for visiting judges to help work through that.

The chief also mentioned several policy priorities for the judiciary, including:

• allowing greater use of remote technology in post-pandemic courtrooms (SB 690 by Zaffirini and HB 3611 by Leach);
• bail reform like that proposed by HB 20 by Murr and HJR 4 by Kacal (but not SB 21 by Huffman); and
• gathering data on racial disparities in the court system and improving judicial training.

To watch the full 25-minute address for yourself, click here.

What Schoolhouse Rock left out

That old “How a bill becomes a law” episode was entertaining, but it neglected to mention that the entire legislative system is set up to kill bills, not to pass them. That’s why only 20 percent or so of filed bills ever become law. The primary hurdle is at the committee level—which is why we spend so much time updating you on what is being heard there—but only slightly less important is what happens to bills that emerge from committee. However, that process varies depending on which chamber you are in. Now that bills are being approved by committees, allow us to remind you how things work from there.

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

Across the rotunda, House rules are both more (little-D) democratic and more orderly—which is one of the few times that can be said about what is usually the more boisterous lower chamber. Rather than give the speaker powers similar to those of the Lite Guv, the House uses a Calendars Committee to decide (without any public testimony) which bills already approved by a committee get debated on the House floor and in what order the lucky winners get heard. This makes the Calendars Committee members increasingly powerful as the session goes on and bills start dying on the vine due to various deadlines that kick in about six weeks from now. Therefore, if you are interested in a House bill that has received committee approval and you know any members of the Calendars Committee, now is the time to give them a ring and let them know your thoughts. Some bills will fly through House Calendars like a missile, while others will die a mysterious death with nary a fingerprint left behind to determine what happened to it—and that is a feature of this system, not a bug.

For the curious, the members of the House Calendars Committee are: Dustin Burrow (R-Lubbock), chair; Joe Moody (D-El Paso), vice-chair; Tom Craddick (R-Midland), Cody Harris (R-Palestine), Cole Hefner (R-Mount Pleasant), Ana Hernandez (D-Houston), Ben Leman (R-Iola), Jared Patterson (R-Frisco), Toni Rose (D-Dallas), Shelby Slawson (R-Stephenville), and James Talarico (R-Round Rock). Bills currently in (or headed to) that Calendars Committee include:

• HB 39 by Neave (protective orders)
• HB 187 by S. Thompson (subsequent writs w/ prosecutor’s consent)
• HB 225 by S. Thompson (subsequent writs for non-scientific evidence)
• HB 375 by Smith (continuous sexual abuse of disabled individuals)
• HB 488 by Wu (street clothes and no restraints for juveniles in court)
• HB 567 by Frank (limiting termination of parental rights)
• HB 686 by Moody (“second look” early parole consideration for certain offenders)
• HB 744 by Collier (law enforcement agency duty to provide information to prosecutor)
• HB 789 by Geren (evidence tampering punishment in misdemeanor cases)
• HB 873 by Collier (limits on dog tethering)
• HB 1071 by Harris (regulating therapy dogs in court)
• HB 1193 by Wu (sealing of certain juvenile determinate sentence records)
• HB 1403 by Ann Johnson (stacking of sentences)
• HB 1441 by Schaefer (State’s burden to disprove innocent owner in asset forfeitures)
• HB 1540 by S. Thompson (omnibus human trafficking bill)

As the session goes on, we’ll continue to let you know when some tracked bills get to the Calendars Committee; after that, it’s up to you to act on that information. If you have any questions on how to do that, contact Shannon or Rob.

Bill filings

To view the status of bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon.

Floor action

The House passed HB 1024 by Geren (legalizing alcohol-to-go) over to the Senate, while the Senate sent to the House some random bills we aren’t tracking closely.

Upcoming floor calendars

The House and Senate will reconvene on Monday. The House has posted a calendar for Tuesday’s floor debates, but no bills of interest are on it. The Senate Intent Calendar includes SB 12 by Hughes (internet censorship), SB 155 by Perry (purging voter lists), SB 516 by Huffman (ATM damage = 3^rd-degree felony), SB 768 by Huffman (fentanyl delivery enhancements), and a half-dozen anti-abortion bills, some of which include new civil and/or criminal sanctions.

Committee news

The House Criminal Jurisprudence Committee approved several bills on Monday, including HB 1441 by Schaefer (State’s burden to disprove innocent ownership in asset forfeitures). For more approved bills, see the list of those now in the Calendars Committee (above). A House committee also approved HB 976 by Price (regional specialty courts), while HB 2190 by White (diversion/deferral of some SJF drug cases) was withdrawn for further revision.

The Senate Jurisprudence Committee voted out SB 343 by Kolkhorst (FV bond conditions in TCIC), SB 516 by Huffman (ATM damage = 3^rd-degree felony), and SB 768 by Huffman (fentanyl delivery enhancements). The Senate Criminal Justice Committee will hold its first meeting on Tuesday morning.

Committee notices

The following bills have been posted for hearing in committee this week. For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.

Monday, March 29

House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 890 by VanDeaver authorizing remote juvenile proceedings over a party’s objection
HB 2669 by Guillen relating to the confidentiality of a child’s misdemeanor records
HB 2772 by Campos relating to the scope of crime victims’ compensation
HB 2924 by Dutton limiting involuntary terminations in CPS cases
HB 2926 by Parker relating to reinstatement of parental rights
HB 3165 by Meyer relating to an affirmative defense to truancy
HB 3315 by Crockett mandating counties create diversion programs for 17-year-old offenders

House Criminal Jurisprudence – 1:00 p.m. or upon final adjournment, Room E2.010 [*note earlier time*]
HB 9 by Klick increasing punishments for obstructing highways during a protest
HB 217 by S. Thompson expanding post-conviction DNA testing
HB 462 by Shaheen increasing penalties for prostitution involving trafficking victims
HB 492 by Wu prohibiting certain no-knock warrants
HB 1002 by Lucio III barring the use of hypnotically-induced testimony
HB 1038 by Beckley repealing the criminal offense of homosexual conduct
HB 1156 by Thierry creating the offense of financial abuse of an elderly individual
HB 1272 by Crockett prohibiting certain no-knock warrants
HB 1599 by Jarvis Johnson barring the use of hypnotically-induced testimony
HB 1717 by S. Thompson prohibiting retaliation against prosecutors for Brady obligations
HB 2315 by Turner relating to street racing
HB 2446 by Canales relating to reimbursement of certain appointed counsel expenses
HB 2448 by Canales relating to discharging a surety’s liability on a bail bond
HB 2631 by Krause limiting the use of in-custody informant testimony
HB 2725 by Martinez Fischer criminalizing vaccine scams
HB 2864 by Collier relating to the Texas Indigent Defense Commission
HB 3022 by Herrero authorizing statutory county courts to process expunctions
HB 3224 by Leach exempting certain peace officers from exclusion under The Rule
HB 3478 by Rose relating to street racing (pulled from consideration)
HB 3830 by Collier relating to a prosecutor’s continuing Brady duties
HB 3875 by Crockett narrowing the definition of compelling prostitution

Tuesday, March 30

House Human Services – 8:00 a.m., E2.030 [*updated*]
HB 3041 by Frank authorizing a pilot program alternative to child removal in CPS cases
HB 3379 by Leman revising the duty to report child abuse and neglect
HB 3820 by Klick limiting medical consulations in child abuse investigations

Senate Criminal Justice – 8:30 a.m., E1.016
SB 36 by Zaffirini relating to hazing
SB 48 by Zaffirini mandating supervision conditions in certain animal cruelty cases
SB 111 by West clarifying law enforcement duties to provide information to prosecutors
SB 112 by West relating to applications for and orders installing mobile tracking devices
SB 237 by Bettencourt adding certain criminal trespasses to the cite-and-release statute
SB 281 by Hinojosa barring hypnotically-induced testimony at trial
SB 476 by Nelson mandating sexual assault review teams in all counties

Senate Veterans Affairs and Border Security – 8:30 a.m., 2E.20
SB 623 by Blanco relating to sexual assaults by or against Texas Military Forces members
SB 1093 by Creighton relating to veterans treatment court programs
SB 1179 by Birdwell relating to juror pay donations

Wednesday, March 31

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.014
HB 1177 by Crockett prohibiting the imposition of court costs/fees on indigent defendants
HB 1837 by Gonzalez banning profiling of motorcyclists by peace officers
HB 2441 by White cleaning up various fine, fee, and court cost changes from last session
HB 2485 by Herrero exempting cops and firefighters from jury service
HB 2702 by Landgraf revising information in OCA’s protective order registry
HB 2703 by Landgraf removing certain information from OCA’s protective order registry
HB 3295 by S. Thompson authorizing local prosecutors’ DTPA actions vs massage parlor
HB 3377 by Krause allowing the recovery of attorney’s fees in certain civil cases

House Corrections – 8:00 a.m., E2.026
HB 1640 by Sherman relating to medication-assisted opioid treatment at TDCJ
HB 3002 by Burns authorizing pre-arrest theft diversion programs by merchants
HB 3432 by Murr relating to the civil commitment of sexually violent predators

Senate State Affairs – 9:00 a.m., E1.028
SB 56 by Zaffirini making confidential federal prosecutors and public defenders’ personal information
SB 1025 by Birdwell revising disaster declaration powers and authority
SB 1134 by Hughes relating to address confidentiality of certain federal officials
SJF 45 by Birdwell proposing a constitutional amendment on disaster powers

Thursday, April 1

House Elections – 8:00 a.m., E2.028 [*new*]
HB 6 by Cain relating to election fraud

Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
(not posted yet; check here for future postings)

House Homeland Security & Public Safety – 10:30 a.m. or upon adj., E2.030 [*new*]
HB 929 by Sherman, aka the “Botham Jean Act”, aka “Bo’s Law”
HB 1550 by Cyrier, the TCOLE Sunset re-authorization bill
HB 1920 by Capriglione relating to firearms in a secured area of an airport
HB 2650 by Jarvis Johnson regarding placement of children after an arrest

Prosecutor rotation

Thanks to Cherokee DA Elmer Beckworth and Midland DA Laura Nodolf and the assistant prosecutors who came to Austin this week to work on legislation.

If you want to see how the sausage is made, contact Shannon for details on how to get involved in Austin. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.

COVID and the capitol

For those coming to the legislature in the remaining weeks of the session, remember that Senate committee rooms require proof you are negative for COVID-19 for entry or to provide testimony. You can obtain that proof in the M*A*S*H tents outside the north doors of the capitol either by submitting to a free rapid test or by presenting a COVID-19 vaccine card and matching ID. Don’t forget to factor that additional time into your visits.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Texas’ George Floyd Act seeks to reform violent police behavior. But a sticking point centers on protecting officers from lawsuits.” (The Texas Tribune)
• “Child Protective Services draws scrutiny from Texas lawmakers eager to trim its duties, powers” (Dallas Morning News)
• “The rioter next door: How the Dallas suburbs spawned domestic terrorists” (The Washington Post [reprinted for free courtesy of The Texas Tribune])
• “Mass shootings are soaring, with Black neighborhoods hit hardest” (The Trace)
• “Lawmakers, mermaids, pie, elephants, pen pals and Dr Pepper” (Austin American-Statesman)
• “‘Back the Blue Act’ passes Texas Senate committee as GOP seeks to rein in defunding efforts” (Dallas Morning News)
• “Virginia, with 2^nd-most executions, outlaws death penalty” (AP)

Rural prosecutor internships

The Deason Criminal Justice Reform Center at SMU Law School is launching a program to place law school interns with rural prosecutors and public defenders this summer. For more details, see this posting on our website.

Welcome, Stephanie!

TDCAA has a new research attorney! Stephanie Huser started this week after taking the bar exam last week. (Can you imagine having to take that test mid-pandemic and post-winter freeze?!?) We are thrilled to have her on board, and she is ready to take your legal questions. You can reach her at our office number (512/474-2436) or [email protected].

Quotes of the Week

“In Texas, we have to stand for public safety. … Law enforcement, innocent individuals, and small businesses have suffered from criminal conduct over the past year, and frankly, prosecutors should be liable for those damages when justice is willfully not served by design.”
            —State Rep. Mayes Middleton (R-Wallisville), laying out HB 2335 in committee, his bill to impose personal liability upon prosecutors who fail to prosecute certain riot cases. (Committee footage available here; the 75-minute-long discussion of the bill starts around the 0:38:30 mark.)

“I am concerned about the number of alcohol-related accidents and deaths in the state of Texas.”
            —State Rep. Matt Shaheen (R-Plano), explaining his lone “nay” vote against HB 1024 by Geren (R-Fort Worth), the alcohol-to-go bill arising out of pandemic practices.

“It may be back to the same situation you had over the interim, where the Legislature [adjourns] sine die, and it’s again back in the hands of the governor, without the Legislature having anything to say about it.”
            —State Rep. Donna Howard (D-Austin), raising concerns that recently-approved federal recovery funds may not arrive from Washington, D.C., quickly enough for the Legislature to appropriate it before the end of the session.

“All we do is go on Twitter and TV and call the other side douchebags.”
            —Congressman Adam Kinzinger (R-IL), bemoaning the sorry state of political interaction in the country right now.

###

[* = Updated Friday, March 19 at 4:50pm; again at 6:30pm]

This Monday will mark the halfway point of the 87^th Regular Session. And like a lot of things in life right now, it’s going to get worse before it gets better. Read on for details.

Bail reform

The Senate Jurisprudence Committee took testimony on SB 21 by Huffman (R-Houston) yesterday after posting notice for it earlier in the week. The hearing included dramatic testimony from Harris County citizens victimized by offenders who were free on bond for other cases—sometimes on quite serious charges. Harris County DA Kim Ogg was also invited to testify before the committee about the situation in her county. For a run-down of that hearing courtesy of our friends at TAC, see this article. (We’d never heard of someone out on bonds for 18 different cases, but apparently that is “a thing” in Harris County now!)

The importance of understanding the Harris County situation is that, as the largest jurisdiction in the state, Harris County’s criminal justice problems are often the tail that wags the dog for the rest of Texas. With a governor, lieutenant governor, and several powerful legislators also being from Harris County, it’s a certainty that any “bail bond reform” passed by this legislature will address this situation of Harris County judges granting violent and/or sex offenders personal bonds or low cash/surety bonds for offense after offense after offense.

As for the hearing itself, the bill was laid out by its author (from Harris County, natch) with the caveat that it is a work in progress, and prosecutors from other jurisdictions who testified either for (Comal and Fort Bend Counties) or against (Bexar County) the filed bill did so based on the impact the proposed changes might have on their specific counties. That is a great example of how prosecutors engage at the Lege—we can tell you (as best we can) what is going on, but you have to pay attention to these measures as they move through the process, decide how they impact your jurisdiction, and let your local legislators know that.

With that in mind, now might be a good time for some of you to watch how things went yesterday. The testimony on SB 21—which was the first bill taken up by the committee—lasted a little more than three hours. You can watch the entire hearing, or you can focus on the testimony from prosecutors from Harris County (0:23:30 to 1:02:20), Comal and Fort Bend Counties (1:23:40-1:34:05), and Bexar County (1:43:45–1:49:00). You might also want to familiarize yourself with the filed version of SB 21 and competing House proposals in the form of HB 20 by Murr and HJR 4 by Kacal, the latter of which would amend the state constitution to authorize—or in some cases, require—the denial of bail in more types of cases than currently permitted. Those House proposals have not been set for a hearing yet, but they might soon be.

And as always, you can follow up with Shannon for more information as needed.

Prosecution powers

As if you needed more proof that Harris County events often drive discussions at the Lege, the Senate Local Government Committee took testimony Monday on SB 252 by Bettencourt (R-Houston), a bill to grant the state attorney general novel (read: unconstitutional) original concurrent jurisdiction over abuse of office crimes. A summary of that bill’s discussion and the unique situation it is trying to address can be found in this Houston Chronicle article, and video of the hearing can be viewed at this archived link (discussion on SB 252 begins at the 0:44:45 mark). There was a quite interesting discussion about who can—or should—prosecute public officials, but we found it interesting that not once during the discussion was there any mention of the AG’s office offering assistance to the Harris County DA in that specific case discussed in the Chronicle article, as is already authorized under the law the bill would amend.

If you want a peek into how these issues are being considered in the Texas Senate, watch that video (linked above) for yourself. And if you were unable to attend the hearing but would like to weigh in on SB 252, the committee membership is listed here; it next meets on Monday at 1:00 p.m. to vote on this and other bills.

Bill filings

The deadline to file general bills ended last week and the final tally was impressive: More than 2,600 bills were filed the week before the deadline, and more than 7,000 bills and resolutions were filed in all. That makes this 87^th Regular Session the third most voluminous session for bill filing in Texas history. (It also shows how much legislative work can be done from home via electronic bill filing. Isn’t technology great?) Furthermore, we are tracking a record-high 1,590 bills right now, which constitutes more than one out of every five bills filed this session. (It’s hell being popular, ain’t it?) That high bill load—combined with pandemic limitations, a new committee schedule, and the resumption of trial work in your local courthouses—will make it more difficult for both us and you to stay on top of happenings at the capitol, but we’ll do our best to get you the information you need to act on the issues that are important to you.

Meanwhile, to view the bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon.

Floor action

The Senate started sending bills to the House this week, including SB 25 by Kolkhorst guaranteeing a right to in-person visitation for certain facility residents, and SB 2142 by Hughes, a bill on energy re-pricing that was filed, referred to committee, voted from committee, and voted out of the full Senate in a single day. The House will start passing its bills to the Senate next week, and then the real fun will start.

Committee news

Bills to emerge from committees this week included: HB 39 by Neave (protective orders), HB 817 by Moody (authorizing Keno in Texas restaurants and bars), and HB 1024 by Geren (booze to go). So far, none of the bills heard in the House Criminal Jurisprudence Committee have been called up for a vote, but that is likely to change by Monday, so if you have opinions about bills already placed before the committee on topics like civil asset forfeiture, hate crimes, subsequent writs, and more, check our past updates (archived here) and weigh in with the committee members directly as you see fit. (Note that bills originally posted for hearing to require the recording of grand jury testimony (HB 1313 by Deshotel) and the appointment of counsel before magistration (HB 277 by Collier) were withdrawn and have not been heard by the committee.)

For those interested, a review of this week’s hearing on asset forfeiture bills by our friends at TAC can read here.

Committee notices

The following bills have been posted for hearing in committee this week. For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.

Monday, March 22
House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 162 by Thierry prohibiting prosecution of prostitution/sellers under 18 years old
HB 967 by Dutton raising the age of juvenile jurisdiction to include 17-year-olds
HB 1430 by Dutton changing juvenile jurisdiction to only 12- to 17-year-olds
HB 1783 by White exempting children under 12 from juvenile jurisdiction
HB 486 by Wu raising the age of juvenile jurisdiction to include 17-year-olds
HB 487 by Wu exempting children under 12 from juvenile jurisdiction
HB 1709 by Neave removing runaways from consideration as status or CINS offenders

House Criminal Jurisprudence – 2:00 p.m. or upon final adjournment, Room E2.010
HB 239 by Murr relating to drug-free zones
HB 246 by Murr clarifying the definition of “sexual contact” in educator/student cases
HB 376 by Smith increasing the punishment for improper sexual activity with a person in custody
HB 402 by Hernandez directing certain forfeiture funds to trafficking victim services
HB 489 by Wu creating a new admonition regarding jury punishment elections
HB 703 by Gervin-Hawkins allowing stacking of all injury to a child cases
HB 816 by Krause reducing various non-Penal Code punishments and creating a commission to study other penal laws for further revision
HB 836 by Dutton imposing a new requirement for resisting arrest charging instruments
HB 842 by Moody allowing criminal history disclosures to be made to the defense
HB 1086 by Moody creating 4^th-degree felonies and reducing various drug felonies to misdemeanors
HB 1293 by Smithee authorizing new trials at any time with a prosecutor’s consent
HB 1352 by Crockett accelerating release times under CCP Art. 17.151
HB 1394 by White expanding eligibility and granting of orders of non-disclosure
HB 1509 by Murphy enhancing certain repeat misdemeanors to felonies
HB 1605 by Dutton creating an inmate legal services office at TDCJ
HB 1773 by Cook creating an offense for obtaining unneeded medical treatment by deception

Tuesday, March 23 (No relevant postings)

Wednesday, March 24
House Public Health – 8:00 a.m., JHR 140
HB 1694 by Raney creating a “good Samaritan” defense for drug possession charges
HB 2051 by Klick relating to public access to hospital investigation materials

House Corrections – 8:00 a.m., E2.026
HB 379 by Smith delaying parole eligibility for certain inmates convicted of online solicitation
HB 465 by Shaheen delaying parole eligibility for certain inmates convicted of human trafficking
HB 2190 by White mandating pretrial diversion or deferred adjudication for certain state jail felony offenders
HB 2386 by Moody making public certain information about execution drugs

*House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.014* [updated]
HB 2549 by Dutton relating to suits against certain governmental employees
HB 1493 by Herrero relating to an entity name that falsely implies gov’t affiliation
HB 2709 by Julie Johnson regarind applications for court-ordered MH services
HB 2335 by Middleton creating civil liability for prosecutors who fail to prosecute rioters

Thursday, March 25
*House State Affairs – 8:00 a.m., E1.004 (Capitol Extension Auditorium)* [updated]
HB 393 by Moody redefining Penal Code definition of “bet” to exclude fantasy sports
HB 749 by Middleton barring certain legislative activities w/ local gov’t funds
HB 1804 by Meyer barring settlements of certain harassment claims w/ public funds
HB 1925 by Capriglione prohibiting camping in certain public places
HB 1960 by Slawson relating to local gov’ts that “defund the police”
HB 2362 by Harris relating to local gov’ts that “defund the police”
HB 3151 by Leman relating to local gov’ts that “defund the police”

*House Elections – 8:00 a.m., E2.028* [updated]
HB 6 by Cain relating to election integrity; creating new election crimes, enhancing existing crimes, and creating a new method for appointing pro tem prosecutors

Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
(not posted yet; check here for future postings)

*House Homeland Security & Public Safety – 10:30 a.m. or upon adj., E2.030* [updated]
HB 54 by Talarico barring law enforcement agency contracts with TV shows
HB 88 by S. Thompson, the George Floyd Act
HB 127 by Ortega relating to the unlawful carrying of certain firearms
HB 788 by Geren making 9-1-1 operators eligible for certain treatment court programs
HB 830 by S. Thompson limiting officers’ authority to arrest for certain offenses
HB 1069 by Harris authorizing certain first responders to carry firearms on duty
HB 1094 by Oliverson relating to carrying a handgun without a license
HB 1238 by Biedermann authorizing unlicensed carrying of a handgun
HB 1396 by White regarding the report of misconduct to TCOLE
HB 1911 by White authorizing unlicensed carrying of a handgun
HB 1927 by Schaefer authorizing unlicensed carrying of a handgun
HB 2462 by Neave relating to forensic sexual assault exams
HB 2555 by Neave relating to the statewide tracking system for sexual assault exams
HB 2675 by Guillen relating to a license to carry a handgun for certain victims
HB 2733 by Tinderholt creating a database for reporting and tracking DWI interlock conditions and violations
HB 2900 by Hefner authorizing unlicensed carrying of a handgun

Prosecutor rotation

Thanks to Comal CDA Jennifer Tharp, Harris DA Kim Ogg, Bexar CDA Joe Gonzales, Kleberg/Kenedy DA John Hubert, 47^th DA Randall Sims, 106^th DA Philip Mack Furlow, and numerous other assistant prosecutors from those and other offices for coming to Austin to weigh in important issues this week.

If you want to come to Austin to see how the sausage is made, contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.

COVID and the capitol

For those coming to the legislature in the remaining weeks of the session, remember that Senate committee rooms require proof you are negative for COVID-19 for entry or to provide testimony. You can obtain that proof in the M*A*S*H tents outside the north doors of the capitol either by submitting to a free rapid test or by presenting a COVID-19 vaccine card and matching ID. Don’t forget to factor that additional time into your visits.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “In Texas’ top 10 scandals of the past century, how does the 2021 electricity crisis rank?” (Dallas Morning News)
• “Why Is Art Acevedo Leaving Houston?” (Texas Monthly)
• “New bill would give AG Ken Paxton, accused of abuse of office, new power to prosecute same crime” (Dallas Morning News)

Quotes of the Week

“I definitely think it is really more a ploy in the court of public opinion than a sound legal strategy.”
            —Amy Kristin Sander, media law expert at UT’s School of Journalism and Media, on the claims by two North Texas men arrested for entering the Capitol during January’s riot that they were only there as “alternative news journalists” to document events.

“I went from being on a very hot seat to having one of the safest jobs in Texas. I think it’s just going to be me for a while.”
            —Arthur D’Andrea, the (formerly) lone remaining member of the Public Utility Commission, who later tendered his resignation after Texas Monthly obtained comments from him in which he said the PUC would resist state senate efforts to “re-price” consumer energy bills incurred during the recent winter storm.

“Unfortunately, I noticed that my deed had such language in my neighborhood. I didn’t know whether to burn the house down or to come pass the legislation, and we chose this positive path.”
            —State Sen. John Whitmire (D-Houston), co-author of SB 30 by West (D-Dallas), which would make it easier for property owners to remove racially discriminatory language from old deed records purporting to bar ownership by non-whites. The bill is one of Lt. Gov. Patrick’s 31 priority issues this session and it has already been voted favorably from committee.

“Yeah, it is a weird town when mommy and daddy are fighting.”
            —Unidentified Republican, commenting upon the on-going Abbott-Patrick rift this session (as reported by Dallas Morning News Austin bureau chief Bob Garrett).

“I am not running against Greg Abbott, OK? He and I work very well together, we’ve had a very successful run together, and I don’t think there’s much daylight on this.”
            —Lt. Gov. Dan Patrick (R-Houston), responding to rumors that his recent policy fights with Governor Abbott may be a preview of a primary battle in 2020.

“Am I considering that? Sure. What I’ve got to choose for myself is, [do] I want to get into a leadership role in the next chapter of my life?”
            —Matthew McConaughey, Oscar-winning actor and famous Austin resident, when asked by Today Show co-host Al Roker whether he was considering a run for governor of Texas.

“My concern is—it’s obvious in this case, probably somebody should do something—but in our history, in our state’s history, occasionally we get some renegade attorney generals who, if they really didn’t like you, could harass the individual official.”
            —State Sen. Robert Nichols (R-Jacksonville), expressing doubts about the provision of SB 252 by Bettencourt (R-Houston) that would give the attorney general original criminal jurisdiction over abuse of office prosecutions.

###

[Updated and corrected March 13, 2021]

The 87^th Regular Session is 40 percent done on the calendar but only 20 percent done based on its output, so while many of you enjoy Spring Break next week, the Lege will be making up for lost time. That means committee hearings on bills about grand juries, civil asset forfeiture, hate crimes, discovery, and human trafficking on Monday, and an expansion of AG prosecution authority on Tuesday. Read on for details!

COVID and the courts

Last Friday, we sent out our Week 8 update with the wry observation that “[k]nowing our luck, new guidance from that court will probably be issued 30 minutes after we hit ‘send’ on this update.” In fact, it only took 13 minutes. Are we good, or what?

Now that the governor’s Executive Order GA-34 has taken effect to “re-open Texas 100 percent” and “eliminate statewide mask mandates,” some are realizing that it doesn’t necessarily do that in practice. Not only are private businesses free to adopt policies for their property, but those who run your local courthouses and courtrooms can still decide whether or when to require masks, distancing, temperature checks, and whatnot.

In that vein, the Texas Supreme Court issued its 36th Emergency Order of the COVID-19 pandemic last Friday afternoon. In a nutshell, the order:

• rescinds prior edicts that court proceedings must be conducted remotely (while still encouraging it);
• requires a court to permit remote participation of some parties or witnesses upon request and a showing of good cause; and
• defers to local presiding judges on what health and safety precautions should be imposed in local courtrooms and courthouses.

As with past orders from that court, the Office of Court Administration has issued court operation guidance for implementing this new emergency order. In addition to imposing several specific requirements for in-person jury proceedings, those guidelines also prohibit judges in jailable criminal cases from conducting any remote jury proceedings without the consent of the prosecution and defense. For more details, please refer to OCA’s Court Operations Guidelines webpage.

Of course, all this talk about in-person proceedings is fine in theory; how you convince your local constituents to come serve on in-person grand juries and petit juries is another matter altogether. We have no easy solutions for that problem, so … good luck with that!

COVID and the capitol

For those coming to the legislature this spring, things remain the same (for now). Rapid COVID-19 testing is available for visitors and masks are “encouraged” while doing business in the building, according to the latest information from the State Preservation Board (which operates the state capitol). However, each chamber governs the rules and conduct of its own members, and neither has announced a change in those rules yet, so we will proceed accordingly until told differently.

Money for nothing and your hot checks for free

The “American Rescue Plan Act of 2021” finally passed Congress this week. The $1.9 trillion aid package includes almost $17 billion in pandemic aid for our state government and another $10+ billion for city and county governments in Texas. This one-time windfall has the potential to totally change the tenor of the state and local budget discussions. As one pundit put it, after all the money is handed out, it will be as if the pandemic recession never happened (at least from the perspective of government budgets).

What that means for your office remains to be seen. Can counties use some of that funding to help you add staff to address your docket backlogs caused by the pandemic? Perhaps. (That was a question that Congressman Pete Sessions (TX-17) asked the Treasury Department this week, but without a clear answer.) This latest round of federal government largesse does appear to come with fewer spending restrictions than past aid packages, but there are still plenty of details to work out. More information will follow once the final version of the package is reviewed. In the meantime, you can check out TAC’s analysis of the new law that was posted last week and includes a list of what each Texas county might receive.

Senate Finance subcommittees

The Senate Finance Committee announced its subcommittee work groups, so we now know that the senators tasked with going over the budget for the judicial branch (plus other public safety agencies) will be Sens. Joan Huffman (R-Houston), chair; Donna Campbell (R-New Braunfels), Charles Schwertner (R-Georgetown), and John Whitmire (D-Houston). As previously reported, all funding items relating to prosecution are currently fully funded in the Senate version of the next budget, but if one of your senators is on this subcommittee, consider touching base with Rob so he can keep you posted if anything goes south during the session.

Committee news

Committees started taking testimony on bills this past week, but most were left pending. If you were unable to come to Austin to testify for or against a bill we notified you about last week but you still want to weigh in, better start making those phone calls to committee members ASAP because last week’s bills might be voted upon as soon as Monday.

Committee notices

The following bills have been posted for hearing in committee this week. For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name.

Monday, March 15
Senate State Affairs – 9:00 a.m., Senate Chamber
SB 9 by Paxton creating new civil and criminal penalties relating to abortion
SB 798 by Nelson relating to birth records and DLs for victims of family violence
SB 808 by Hughes relating to the recovery of attorney’s fees in civil cases
SB 1173 by Hancock creating new criminal penalties relating to abortion
SB 1647 by Perry criminalizing conduct related to certain types of abortions

House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 193 by Rose destroying juvenile records relating sex trafficking referrals
HB 488 by Wu relating to a juvenile’s physical appearance in court
HB 576 by White / HB 1319 by Noble establishing a deadline for rendering a final order in certain CPS cases
HB 1193 by Wu authorizing the sealing of certain juvenile determinate sentence records
HB 1372 by Guerra relating to a protective order applicant’s cell phone service
HB 1401 by A. Johnson authorizing juvenile sealing applications/orders to be sent electronically

House Criminal Jurisprudence – 2:00 p.m., Room E2.010
HB 73 by G. Hinojosa banning use of a “gay panic defense”
HB 132 by Canales requiring clear and convincing evidence in asset forfeiture cases
HB 148 by Toth extending the statute of limitations for certain family violence crimes
HB 251 by S. Thompson requiring a criminal conviction for asset forfeiture
HB 366 by Sherman extending the duration of hate crimes protective orders
HB 367 by Sherman relating to the reporting of and punishment for certain hate crimes
HB 375 by Smith including disabled victims w/in continuous sexual abuse offense
HB 667 by Dutton requiring a criminal conviction for asset forfeiture
HB 744 by Collier requiring law enforcement agencies to provide info to prosecutors
HB 789 by Geren changing the punishment range for tampering with evidence
HB 978 by Metcalf relating to releasing unclaimed property to an owner’s victim|
HB 1313 by Deshotel requiring the recording of all grand jury testimony
HB 1402 by A. Johnson revising hate crimes based on orientation or gender identity
HB 1441 by Schaefer shifting burden for innocent owner defense to state
HB 1540 by S. Thompson relating to human trafficking (omnibus bill)

Senate Local Government – 2:00 p.m., Extension Auditorium [*corrected]
SB 252 by Bettencourt granting the AG original concurrent prosecution jurisdiction over abuse of office crimes

Tuesday, March 16
(no relevant hearings)

Wednesday, March 17
House Corrections – 8:00 a.m., E2.026
HB 408 by Metcalf relating to veterans treatment court programs
HB 460 by Shaheen barring the solicitation of pen pals by certain TDCJ inmates
HB 787 by Allen allowing probationers to have contact with certain prohibited persons

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.014 [*updated]
HB 167 by Ortega authorizing temporary restraining orders in certain nuisance actions
HB 228 by Murr allowing electronic recording devices in lieu of court reporters
HB 1071 by Harris regulating the use of therapy dogs in civil & criminal cases
HB 1374 by Minjarez creating privileged communications in sexual assault cases
HB 1495 by Dutton regarding attorney’s fees in certain governmental lawsuits
HB 1706 by Neave creating specialty courts for sexual assault victims? (unclear)
HB 1880 by Schofield linking judicial salaries to the consumer price index

House Licensing & Administrative Procedures ­– 10:30 a.m. or upon adj., JHR 120
HB 770 by Wu regulating poker clubs in certain counties

Thursday, March 18
Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
(not posted yet; check here for future postings)

House Homeland Security & Public Safety – 10:30 a.m. or upon adj. [*updated]
HB 8 by Pacheco relating to the hiring of peace officers
HB 496 by Wu requiring peace officers to display name and identification
HB 766 by Harless requiring certain bond information entered into TCIC
HB 1035 by Dutton limiting the use of force by peace officers
HB 1172 by Howard authorizing counseling advocates at sexual assault interviews
HB 1674 by Holland mandating blood draws after certain DWI arrests

Prosecutor rotation

Special thanks to Laurie English, 112^th Judicial DA (Ozona), for helping to man the ramparts this week!

If you want to come to Austin to see how the sausage is made, contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.

Bill filing deadline

The deadline to file general bills this session is 6:00 p.m. today. There will be upwards of 2,000 bills filed this week alone, so please be patient with us as we slog through them all.

We are caught up with most bills filed through the early part of this week and—as is common every session—some very interesting bills are being filed right at the deadline. Among those we noted from this past week are the following new bills or new twists on old ideas:

HJR 4 by Kacal (constitutional amendment to allow denial of bail in some cases)
HB 20 by Murr (governor’s revised bail bond reform proposal; enabling law for HJR 4)
HB 2916 by Schofield (OAG prosecution of public order and public corruption crimes—as we predicted)
HB 3392 by Moody (judicial commutation on motion of a prosecutor)
HB 3508 by Ellzey (OAG prosecution of certain riot-related crimes)
SB 10 by Bettencourt (ban on local government funds being used to impact legislation)
SB 23 by Huffman (ban on defunding the police)
SB 24 by Huffman (transparency in peace officer background and hiring)
SB 990 by Gutierrez (notice and hearing before court can increase bail)
SB 1119 by N. Johnson/HB 3421 by G. Hinojosa (defense lawyer invited into grand jury)

We hope to have a more thorough review of bill filings next week (assuming we can still see straight after reviewing all of them). Meanwhile, to view the bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Analysis: How Gov. Greg Abbott’s attack on ‘defunding the police’ has divided Texas Democrats” (The Texas Tribune)
• “Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic” (The Texas Tribune)
• “As Federal Courts Strike Down Bail Practices, Texas Chief Justice Proposes Reforms” (Arnold Ventures)
• “12 jurors must set aside what they saw in the George Floyd video. How will lawyers find an impartial jury?” (USA Today)
• “Michigan Zoom hearing adjourned when attorney spots alleged assaulter, victim in same home” (USA Today)

Looking ahead

The House will re-convene on the floor Monday afternoon (and may even vote on bills later in the week), while the Senate re-convenes on the floor on Tuesday. Now that bill filing is done, all eyes turn to committee hearings. This is the time of the session when the public—and you—can have the greatest impact on legislation. (Game on!)

Free CLE opportunity

The Texas Tech Law Review is hosting its Annual Criminal Law Symposium on April 8–9, 2021. The two-day symposium will cover double jeopardy, the Fourth Amendment, confessions, and substantive criminal law. For more information about this free live-streamed CLE event, please go to the Symposium registration page. If you have any questions, please contact Neely Brown at [email protected].

Quotes of the Week

“I’m a libertarian and believe there are very few things government should do, [but] power and water and sewage are things that government should be doing.”
            —Bryan Frasier, a computer engineer from Tarrant County, as quoted in a story on the results of a new Dallas Morning News/UT-Tyler poll released in the wake of the recent storms and resulting power and water outages.

“It looks almost like the district had a hernia across [I-]35 to encompass my house.”
            —Overheard at a meeting of the Senate Redistricting Committee this week.

“There isn’t any specific provision in the law that places that responsibility on a certain agency or party. It’s not clear if it’s the role of the judge, the sheriff, the police, or a prosecutor. Because of that, nothing happens. That is why we need legislation to address this issue.”
            —Staley Heatly, 46^th Judicial DA (Vernon), expressing support for legislation on gun surrender protocols for family violence offenders.

“We hope this isn’t a case of moving too fast, too soon.”
            —Grant Scheiner, president of the Texas Criminal Defense Lawyers Association, urging judges to remain vigilant against the coronavirus in the wake of the state supreme court’s latest emergency order lifting many of its previous restrictions on court proceedings.

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No power, no water, no masks, no problem! God bless the good people working in the Texas tourism industry right about now.

COVID and the courts

To the surprise of no one who has been closely following Texas GOP intraparty politics, the governor announced this week that, effective Wednesday, March 10, 2021, he is rescinding past Executive Orders GA-17 (“Strike Force to Open Texas”), GA-25 (limits on in-person jail visitation), GA-29 (statewide face mask mandate), GA-31 (hospital capacity), and GA-32 (partial re-opening) and allowing private businesses to fully reopen without restriction. And in addition to rescinding the statewide face mask mandate, the governor is also prohibiting local governments from enforcing any general mask mandates on their citizenry. Note, however, that the new emergency order does not revoke Executive Order GA-13 (suspension of some jail releases per CCP Arts. 15.21, 17.03, 17.151, 42.032, or 42.035). For all the details of the new order, read the text of Executive Order GA-34 itself (it’s not very long).

That said, one place that is still not “open for maskless business” is your local courtrooms. Current Texas Supreme Court Emergency Order No. 33 (Jan. 14, 2021) still requires Texas courts to abide by the Office of Court Administration’s Guidance for All Court Proceedings During COVID-19 Pandemic (last updated Dec. 31, 2020), and that guidance includes mandated face coverings for in-person court business. (Whether that is enforceable in real life has never been very clear, but as we all know, just a because a judge can’t make you do something doesn’t mean she can’t make you wish you had done something.) We know the Texas Supreme Court met this week to discuss potential changes to its emergency orders in light of the governor’s change of course, but as of when this update went to press, there were no changes to report. (Knowing our luck, new guidance from that court will probably be issued 30 minutes after we hit “send” on this update, so check this website for the latest from that court.)

Committee news

Most House committees held their organizational meetings this week in preparation for taking up bills next week—a key step in the legislative process that would normally start in late February. But this is not a normal session, and the capitol’s pandemic precautions will be put to the test when more members of the public come to the building to testify. Let’s check in again at the end of the month to see how things go. (More on testifying below, for those interested.)

One item of note from yesterday’s House Elections Committee meeting involved witnesses from the Office of the Attorney General testifying that they would be amenable to being granted the authority to request that a district court convene a special OAG grand jury for election fraud purposes. That will probably show up soon in bill format, so now is a good time to start deciding how you feel about that.

Committee notices

Now that committees are getting down to business, we will try to provide you with weekly notice of relevant bills being heard in the upcoming week. Due to space limitations, we won’t list all the bills posted for a hearing, but you can click on the underlined hyperlink in the committee’s name for a full listing of each notice, including more bill information (such as the text of a proposal) that can be accessed by clicking on any bill number in that online notice.

NEW THIS SESSION: Some important committees will meet on Mondays, which makes Friday afternoon notice not very helpful to those of you who might want to get involved on a bill. Therefore, we will try to send you short emails on Thursdays with information about the upcoming Monday’s hearings (as well as re-printing those Monday bills in our usual Friday update). You should have received your first such bonus notices yesterday.

Monday, March 8
House Juvenile Justice & Family Issues
10:00 a.m., Room E2.014, Capitol Extension
HB 39 by Neave, an omnibus protective order bill
HB 454 by Metcalf creating juvenile family drug court programs
HB 567 by Frank limiting parental right terminations
HB 686 by Moody authorizing early parole for certain youthful violent offenders now in prison

House Criminal Jurisprudence
2:00 p.m., Room E2.010
HB 187 by S. Thompson authorizing subsequent writs w/ a prosecutor’s consent
HB 225 by S. Thompson allowing a subsequent writ for non-scientific evidence
HB 252 by Moody requiring unanimity for capital special issue verdicts for the defense
HB 275 by Moody authorizing subsequent scientific writs for punishment issues
HB 277 by Collier requiring appointment of counsel before magistration (withdrawn)
HB 372 by Gonzalez on appointment of habeas counsel w/ a prosecutor’s consent
HB 569 by Sanford expanding jail credits for certain Class C offenders
HB 679 by Gervin-Hawkins relating to standards for appointed counsel in capital cases
HB 689 by Collier relating to magistration using remote video technology
HB 743 by Collier establishing a maximum assigned caseload for defense attorneys
HB 873 by Collier relating to unlawful restraint of a dog

Tuesday, March 9
House Business & Industry
8:00 a.m., E2.028
HB 390 by S. Thompson relating to human trafficking in commercial lodgings
HB 455 by Deshotel barring criminal history inquiries of job applicants by employers

House Judiciary & Civil Jurisprudence
10:00 a.m., E2.026
HB 976 by Price authorizing the appointment of regional specialty court judges

Wednesday, March 10
House Corrections
8:00 a.m., E2.026
Invited testimony from TDCJ, Texas Probation Association, et al.

Thursday, March 11
House Homeland Security & Public Safety
10:30 a.m. or upon adj.
(not posted, but check here for future postings)

New committee procedures

Are you wondering how COVID precautions will impact the committee hearings process and how you might best advocate for yourself on issues that are important to you despite the changes? If so, you are not alone. Let us lay out here what we know so far based on early House committee notices.

For starters, some committees have allowed invited witnesses to testify remotely, but House rules limit that option to invited witnesses. For everyone else, normal in-person testimony is available for all House committees, and in our opinion, in-person testimony is still the best way to convey your thoughts and opinions to committee members. (As we like to say, the Lege is like most raffles—you must be present to win!) Personal appearances may be complicated by new health protocols for working in the Capitol, but as of right now, if you bring a face mask and factor into your schedule an extra 20–30 minutes of time to self-administer a rapid COVID test and await the results before entering the Capitol, everything else will resemble a more distanced version of past sessions.

One new twist is this option now included in each House committee notice: “Texas residents who wish to electronically submit comments related to agenda items on this notice without testifying in person can do so until the hearing is adjourned by visiting <url>.” (For an example of what one of those electronic comment pages looks like, see this example, which will remain open until the committee hearing is adjourned Monday afternoon.) Committee members will supposedly have access to the online comments during the hearing, and the online comments will also be posted under “handouts” several days after each committee meeting, as you can see for the March 1 hearing of the House Juvenile Justice & Family Issues Committee. (Go ahead and click the “handouts” link on that webpage for that date to see what the Lege is going to be receiving online this session, then decide if that’s how you want to interact with them this session.)

Among the many shortcomings of this new communication tool is that commenters’ opinions and positions for/against bills will not appear in the summary or the official committee witness lists or floor reports for a bill, and there is no way to guarantee committee members access or see the submitted comments (especially if hundreds or thousands of comments are submitted on a particular bill by advocacy groups). As a result, we cannot recommend using this new online comment portal except as a last-ditch, better-than-nothing option, and one that pales in effectiveness compared to coming to the capitol or calling the committee members or their offices to register your opinion. That’s how you move the needle on issues that are important to you.

Two final thoughts about the new online comment options. First, if you do use this new option, be sure to complete it using your work contact info and entering your office title for “organization/representing.” Do not say “self”, despite that being offered as an option. (That’s for private citizens.) And second, elected prosecutors might consider adopting a policy for their employees’ use of this comment option, lest some employees submit comments on behalf of their office that are not authorized by or aligned with the elected prosecutor’s position on a particular bill.

Fun stuff, eh? If you have questions about any of it, please contact Shannon.

Prosecutor rotation

Now that we have a better idea of when the Lege will really get down to business (answer: next week!), we can open up the process for elected prosecutors to come to Austin and have a say in that business. We get little notice of what bill or issue will crop up when, but if you want to come to Austin to see how the sausage is made, contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to come participate in the three-ring circus that is the Texas Legislature.

Also, some of you might be interested in watching a webinar put together by the State Bar’s Legislative and Campaign Law Section called “Introduction to the Texas Legislative Process 2021,” for which you can receive 1 hour of MCLE credit (including 0.25 hours of ethics). The webinar is being offered Friday, March 12, starting at 12:30 p.m. for a fee of $65, and registrants have roughly one month to watch the program. For more information or to register, click here.

New stuff

While it sometimes feels like most of a session is spent rehashing old, failed bill ideas, each session also sees new ideas, concepts, and policies proposed. Among some of the more interesting or noteworthy “new” bill ideas this session are these 15 proposals:

HB 3 by Burrows (pandemic disaster powers)
HB 368 by Sherman (alternative address option for prosecutor’s driver’s license)
HB 614 by S. Thompson (eliminating civil immunity for certain public servants)
HB 658 by Gonzalez (prosecutor request for tracking device installation)
HB 1313 by Deshotel (recording of all witness testimony before grand jury)
HB 1374 by Minjarez/SB 295 by Perry (privileged communications in sexual assaults)
HB 1717 by S. Thompson (ban on retaliation for prosecutors’ discharge of Brady duties)
HB 2162 by Raymond (creation of OAG conviction integrity unit)
HB 2190 by White (mandatory pretrial diversion or deferred adjudication for SJFs)
HB 2233 by Ramos (mandatory cite and release policies)
HB 2282 by Toth (bar on cross-designated prosecutors handling federal gun cases)
HB 2335 by Middleton (civil liability for prosecutors who do not enforce riot laws)
HB 2346 by Y. Davis (pretrial review/diversion of criminal cases by community panels)
HB 2655 by Crockett (peace officer misconduct database)
SB 553 by Blanco (five-day mandatory CJIS reporting of criminal case dispositions)
SB 690 by Zaffirini (remote court proceedings)

Bill filings

Through Tuesday of this week—yes, when they file 200 bills a day we start to get behind!—we are tracking 975 (24%) of 4,130 filed bills. To view the current bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Pandemic response tops Texas voters’ legislative priorities, poll finds” (The Texas Tribune)
• “TCOLE launches disciplinary action against Texas police agencies over missed racial profiling deadline” (KXAN News)
• “Texas GOP lawmakers want to bar cities from hiring lobbyists, but delay review of state’s DC office” (Houston Chronicle)
• “Harris County got rid of cash bail for many people accused of minor crimes. GOP lawmakers want to walk that back” (The Texas Tribune)
• “Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic” (The Texas Tribune)

Forensic grant correction

We mentioned last month that the governor’s Criminal Justice Division still has grant funds available for the forensic testing of physical evidence in criminal cases, and the deadline for applying for those funds is March 14, 2021. Please note that our previous notices erroneously titled this topic as “DNA” testing rather than “DA” testing. These funds are *not* limited to DNA testing. Therefore, if you have a good idea for making this grant work for you and your community, now is the time to put that plan to paper ASAP and send it in. For more details, see the “District Attorney Testing of Forensic Evidence” announcement listed on this webpage and download the details as a PDF.

Looking ahead

The Senate finally started referring bills to its committees, which are likely to begin the process of organizing in preparation for considering some of those bills in the upcoming weeks. House committees are a few weeks ahead of their upper chamber counterparts in that regard, but both sides of the rotunda will be focused on beating next Friday’s bill filing deadline.

Quotes of the Week

“There has been a stunning drop in the financial value of bonds set by the courts since the implementation of Rule 9[,] from $135 million in 2015 to $13 million in 2020—one-tenth of the previous amount. Defendants paid bond companies over $4.4 million in 2016. However, since 2018, bail-bond companies have earned less than $1 million annually on low-level misdemeanor cases.”
            —Excerpt from the executive summary of the second report by federal court-appointed monitor of the Harris County bail bond litigation, issued earlier this week. (Just in case you were wondering why the bail bondsmen and their underwriters are so interested in the topic.)

“The governor is saying Texas will be 100% open and no masks. Texans were like, ‘Fix our electrical grid!’ and the governor was like, ‘OK, no masks it is!’”
            —Jimmy Fallon, host of NBC’s The Tonight Show, joking earlier this week about Governor Abbott’s latest executive order on COVID-19.

“I do feel that we’ll probably lose guests based on whatever decision we do make, but I guess that’s just part of the environment that we are in now. It’s either you wear masks and piss a couple people off, or you don’t wear masks and you piss a couple people off.”
            —Jessica Johnson, general manager of Sichuan House in San Antonio, on the impact of the governor’s latest edict on her business.

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Legislators spent a good part of yesterday being mad at people, so maybe things really are starting to return to normal.

Thawing out

Now that the state is on the road to recovery from #Snowpocalypse2021 / #SNOVID-21 / “The Big Chill” / #TexasFreeze (take your pick), it’s become even more obvious that this will be a session unlike any other. The lost week put the 87^th Legislature yet further behind schedule when compared to the pace of a “normal” session, with more delays to come due to the coronavirus pandemic (remember that?). However, there were some new signs of life, such as the House finally starting to refer filed bills to committees. That is generally considered only the second of roughly 15 steps a bill must take on its way to the governor’s desk, but for those hoping to pass bills this session, it’s welcome news. The unanswered question is how the Lege will prioritize its 94 remaining days this spring when things are moving so slowly.

Lite Guv’s chart toppers

For a glimpse into how the Senate may answer that question, look no further than the lieutenant governor’s list of 31 priority bills that he released earlier this week, all of which will be given highly-coveted bills numbers (SB 1­–SB 31) once they are filed by their Senate authors. Among those that may impact your business are:

• Senate Bill 1 by Nelson (R-Flower Mound) (state budget)
• SB 7 (election and ballot security)
• SB 10 (taxpayer funded lobbying)
• SB 11 by Huffman (R-Houston) (appellate court reorganization)
• SB 20 (gun possession defenses)
• SB 21 (bail reform)
• SB 23 (don’t defund the police)
• SB 24 (law enforcement transparency)

All we have for most of these high priority bills right now are labels, not actual words on paper in bill format. As a result, we can’t get into a detailed analysis of any of them now (with one exception we’ll discuss below). What we can say is that these are 31 bill topics that will get to cut to the front of the line when it comes to committee hearings and floor debates in the upper chamber; how they will fare across the rotunda remains to be seen.

Appellate re-org?

One bill in the above list that might jump out to you as an odd topic to prioritize is SB 11 by Huffman (R-Houston), a bill to re-organize our state’s appellate court system. This is something we noted in passing a few weeks ago through one of our “quotes of the week” taken from a news story out of El Paso in which local officials expressed concerns about what the bill might morph into. Here’s more on that story.

While the Lege is constitutionally required to redistrict itself, Congressional seats, State Board of Education seats, and the state’s judicial districts every decade (the latter of which they routinely ignore), the boundaries of the state’s courts of appeals are determined solely by the Lege and are not required to be redrawn. However, that doesn’t mean there aren’t good policy reasons to reconsider the wisdom (such as it is) behind our state’s large, decentralized appellate court system. That’s where the tort-reforming folks at Texans for Lawsuit Reform come in. They released a study last year titled “A System Needing Structural Repair” which describes the somewhat haphazard historical development of our appellate court system, then compares it to other states’ (usually smaller and more centralized) appellate court systems and advocates for a replacing our current 14-court system with a more centralized five- to seven-court system. You can read the report for all the details; it’s linked above, and we found it interesting from both an historical perspective and a nerdy appellate public policy perspective.

So, that report contains the policy pitch for re-organizing the appellate courts by merging them into a more efficient and centralized system. But what other consequences might it have? As pointed out in the El Paso story mentioned above, some observers have wondered what impact the proposed changes might have on recent gains Democrats have made on the appellate courts in the larger metropolitan areas of the state, gains which might be rolled back or diluted if those urban courts’ districts included more outlying counties that traditionally vote Republican. And during a session in which partisan distrust may be at its peak due to the redistricting duties already on its agenda, this could end up being a stealthily controversial topic for the Lege this year, especially if certain Republican legislators from smaller communities decide that voting their district—especially those that might lose their local appellate courts in a re-organization—is a higher priority than voting their party.

That said, what does this mean for prosecutors who could be directly affected by any wholesale re-organization of the appellate court system? For starters, the conventional wisdom is that the current version of SB 11 is a “shell bill”—a placeholder for more detailed language to come when the bill is heard in committee—so don’t get wound up about anything currently in it. However, you should start weighing the pros and cons of potential changes to your current appellate district, including how far away your “local” district might move, how that might impact your office’s budget and operations, and who might ultimately serve on those courts, among other concerns. Meanwhile, we will continue monitoring the issue and let you know when more actionable information comes to light.

Remote court proceedings

The long-awaited bill to allow the greater use of technology for remote proceedings during non-pandemic times has been filed. Senate Bill 690 by Zaffirini (D-Laredo) was filed this week and it should spur an important discussion of these issues.

Unfortunately, the initial filed version of the bill is not very illuminating. In a nutshell, it would allow any judge to remotely conduct a court proceeding or a portion of a court proceeding—such as jury selection or a witness’s testimony—without the consent of the parties, unless the state or federal constitutions require that consent, in which case either party may object. And when, you might be wondering, is a party’s consent constitutionally required? Good question, and it’s one not answered by the bill. Which means the current language provides no real guidance on resolving the issue of when remote technology can or can’t be done, which is the only answer many of you care about. But the good news is that the author’s office is open to constructive feedback from practitioners with the intent to improve the bill as it moves through the process, so if you have thoughts on this topic that you want to share, reach out to Shannon for more information on how to most effectively do that.

Bill filings

Bill filings continued at a steady pace this week and are only a few hundred bills behind historical norms despite the challenges posed by the pandemic and the recent storm outages. Through yesterday, we are tracking 870 (26%) of the 3,315 bills filed to date. Time permitting, next week we will try to highlight some of this session’s most interesting “new” bills (as opposed to the many, many, many bills that are re-filed versions of old bills which failed to pass in prior session.)

To view the current bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

House committee schedule

In addition to the referral of House bills to committees, the committee schedule was also released. Among those committees that prosecutors may most often find themselves in front of will be:

Juvenile Justice & Family Issues        Mondays, 10:00am, E2.014
Criminal Jurisprudence                       Mondays, 2:00pm or upon adjournment, E2.010
Corrections                                          Wednesdays, 8:00am, E2.026
Judiciary & Civil Jurisprudence         Wednesdays, 8:00am, E2.014
Homeland Security & Public Safety  Thursdays, 10:30am or upon adj., E2.030

Many of these committees will hold their organizational meetings in the next week or two, at which time they will adopt their rules and prepare for hearings on actual bills later in March.

Scattershooting

Here’s a few stories we read this week that you might find interesting:

• “What drove the historically large murder spike in 2020?” (The Intercept)
• “Why cities have more people but less clout” (Governing)

Looking ahead

Next week’s menu will still feature budget hearings as the main course, with House committee organizational meetings serving as appetizers and desserts. No word on when Senate committee might organize for action, but don’t be surprised if they wait until after the bill filing deadline (March 12). In preparation for those eventual bill hearings, next week’s update will include a look at how the committee hearings process will differ from past sessions and how you might best advocate for yourself on issues that are important to you.

Quotes of the Week

“Unfortunately, the last few days have been a black eye on the reputation of Texas.”
            —Texas comptroller Glenn Hegar (R-Katy), during testimony before the Senate Finance Committee on the fiscal impact of the recent winter storms.

“Some of the blame belongs right here in this building. There’s blame out there for everybody.”
            —State Rep. Charlie Geren (R-Fort Worth), during this week’s House hearings on the causes of, and potential cures for, the state’s recent power outages.

“There’s a powerful commitment to that base ideology of small government, low taxes, and deregulation … [that will] limit the amount of reform that is mandated. … Once we’re in the spring, we’ve got pleasant weather, the sun is out, we have a cooling breeze, a lot of the ardor for this series of reforms is going to evaporate.”
            —Cal Jillson, author and political scientist at SMU, when asked how he thinks state leadership will respond to last week’s energy debacle.

“It’s like H-E-B is the moral center of Texas. There seems to be in our state a lack of real leadership, a lack of real efficiency, on the political level. But on the business level, when it comes to a grocery store, all of those things are in place.”
            —Stephen Harrigan, Austin-based novelist, quoted in a NY Times article about the role the iconic Texas grocery store chain plays during natural disasters in Texas.

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