Let’s hope the first week of the new legislature ending on Friday the 13th is not an omen for the rest of the session.
Shots across the bow
Well, that didn’t take long.
Mere hours after newly re-elected Speaker Phelan mentioned during his acceptance speech a need to “rein in rogue prosecutors” (see “Quotes of the Week” below), State Sen. Tan Parker (R-Flower Mound) filed SB 378 relating to “the enforcement of criminal offenses by district attorneys, criminal district attorneys, and county attorneys.” The bill is essentially a slimmed-down version of the anti-sanctuary cities bill passed in 2017 (Senate Bill 4 by Perry (85RS)) which could expose elected prosecutors to civil fines and a potential quo warranto removal action for … well … it’s not quite clear what, exactly. But that doesn’t sound like fun, does it?
Those of you who attended our legislative preview at last month’s Elected Prosecutor Conference may remember our discussion of HB 125 by Slaton (R-Royse City), which would apply civil fines and a potential quo warranto removal from office to any prosecutor who “prohibits or materially limits the enforcement of any criminal offense prescribed by the election laws of this state.” In the same vein, SB 378 applies those sanctions to (the alleged mishandling of) any criminal offense. And before you ask: No, we don’t know what “prohibits or materially limits enforcement” means, and neither do the courts. While SB 4 has been on the books since 2017, there are no court opinions shedding light on what that phrase does or does not include; see City of El Cenizo v. Texas, 890 F.3d 164, 190–191 (5th Cir. 2018) (declining to grant a pre-enforcement challenge that SB 4’s ban on a “policy” or “practice” that “prohibits or materially limits” the enforcement of immigration laws is unconstitutionally vague on its face). Perhaps you can read the text of the bill for yourself here and let us know what you think it means.
Once you are done with that, you can move on to reading SB 404 by King (R-Weatherford) relating to “the reestablishment of the Prosecuting Attorneys Coordinating Council.” Some of you old-timers might remember the Texas Prosecutor Council, which was in existence from 1977–1985 before being abolished. It functioned as an oversight body for elected prosecutors, not unlike a much smaller version of the Judicial Conduct Commission, with the authority to accept and investigate complaints against elected prosecutors and issue reprimands or refer claims on to a separate judicial proceeding that could result in the removal from office of an elected prosecutor. The text of SB 404 was only made available late yesterday and we are still processing it, but tune in next week for more history and background on that topic. Meanwhile, read the bill for yourself and let us know what you think.
Going forward, we will track bills of this ilk under the “Bills to Watch” track you can access on our Legislative webpage (right-hand side for desktop access, bottom of the page on mobile devices), along with tracks for all bills amending the Penal Code and Code of Criminal Procedure.
One final note before moving on: In light of the apparent alignment among the Big Three (governor, lt. governor, and speaker) on the need to crack down on “rogue prosecutors”—a narrative that has apparently become part of the partisan culture war at the national level—it is possible that one or more bills like these could be tabbed by the governor as “emergency items” in the coming weeks. Such a designation frees the legislature to vote on those bills ASAP (rather than the usual 60-day delay imposed by the state constitution), so if you are interested in this topic and intend to participate in those legislative discussions, your preparations should begin now.
Sidebar: Format of these updates
We purposely started this update with some news we thought would grab your attention, but please don’t assume everything of importance will be on the first page of every update. Instead, they will usually follow a similar format:
- an overview of what happened last week;
- some deeper dives on specific issues of note;
- a preview of what (we think) might happen next week;
- some news clips of interest; and
- quotes of the week (some will make you laugh, others … not so much).
The length of these weekly updates will grow with the length of our workdays at the capitol. We know it can be hard to get through all of this information when you have a busy day job to manage, but we encourage you to try. At the capitol, information is power. If you don’t have the latest information, you’re going to be firing blanks when you try to advocate for or against something at the legislature. Please consider actively reading these missives with that in mind.
OK, now back to our regularly-scheduled programming …
The first week of the new session was spent dealing with formalities like moving in, hiring staff, getting sworn in, adopting rules, and selecting a speaker for the house.
No Washington, D.C.-type drama was exhibited on that last account (thankfully); as expected, State Rep. Dade Phelan (R-Beaumont) was comfortably re-elected to that leadership role on Tuesday by a vote of 145-3. The next day was spent adopting rules governing the legislative process this session. Other than a new rule designed to deter future quorum-busters by imposing fines and other potential sanctions on those members, not much of significance changed.
Across the rotunda in the upper chamber, things were even more sedate (as usual). State Sen. Kelly Hancock (R-North Richland Hills) was chosen to serve as president pro tem of the Senate, a largely ceremonial position awarded by length of tenure in that chamber. On the following day, the senators engaged in the “staggered term lottery” that follows every redistricting election, drawing lots to determine which of them get four-year terms now and which have to run again in two years to start their next four-year term. (For the curious, those senators who must run again in 2024 are Senators Alvarado, Bettencourt, Blanco, Campbell, Eckhardt, Hinojosa, Huffman, Johnson, King, LaMantia, Parker, Paxton, Springer, West, and Whitmire). The bad news for those who drew two-year terms is they have to run again next year; the good news is that any of them who get re-elected yet have higher aspirations can take a free run at a statewide office in 2026 because the legislature somehow forgot to apply the resign-to-run rules to themselves. And finally, the Senate adopted its rules with minimal discussion or change from last session, the most interesting difference being the splitting of the former Committee on Veterans Affairs & Border Security into two separate committees.
On tap next week: A holiday on Monday, followed on Tuesday by the inauguration of the governor and lt. governor, speeches by the governor and lt. governor, parties to celebrate the governor and lt. governor, and then not a few hangovers. These festivities will limit the amount of work done in the open, but behind the scenes, legislators and their staff will kick their bill filings into higher gear and start internally lobbying for their preferred committee assignments and/or chairmanships, which could be announced before the end of the month. Then the real work begins.
All you need to know about the state budget
The Texas Legislature is going to have more money to play with than it has ever had in the history of this great state. The projected FY 2024–2025 revenue and savings surplus alone is larger than the annual budgets of most other, lesser states. Don’t bother worrying about the specific numbers—those are important to people inside the capitol who have to make everything balance, but to the rest of the world, the figures all end in “billions” (with a “B”) so we can’t comprehend them anyway. Just know that even with all that money to work with, demand will still outstrip supply, so anyone advocating for, oh, for instance, additional funding to help recruit and retain prosecutors in local offices, will need to come to Austin prepared to answer tough questions and justify that need. Stated another way: There are still no free lunches at the capitol.
Rome Babylon Austin
If you have never found a reason to be interested in the legislative process until recently—even if that was only a few minutes ago when you started reading this update—it can be a daunting process to understand. You might find this recent primer from the Texas Tribune to be a good place to start: Texas Legislature 101: Understanding the state government and how it passes laws. (Yes, we could quibble with its accuracy on some points or what it includes or fails to include, but like we said, it’s a good introduction.)
One challenge in engaging with the legislature on a specific issue is that the legislature provides limited notice of upcoming events, even going as far as to suspend its own notice rules when it sees fit. As a result, we may not be able to give you much notice of when particular bills may be considered. Instead, we recommend to anyone interested in seeing the process first-hand—either to learn or to engage—that you clear some room on your schedule so you can come to Austin for a few days during the session and see what is what. Preference will be given to elected prosecutors, but assistants are also welcome to volunteer (with their boss’s permission, of course). But remember, you are coming here to work on your issues; TDCAA will generally not take positions on bills at the legislature. We are here to be your eyes and ears at the capitol and help point you in the right direction when needed, but what you do with that help is up to you.
If you are ready to clear your calendar and come to Austin for a specific week in February, March, or April, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the skinny before you make plans. We are here to help you work smarter, not harder.
Another way to get involved in Austin is to participate in one of the many “Day at the Capitol” events that local cities and counties hold during every session. In addition, our friends at TAC are hosting a “Counties at the Capitol” Day on Tuesday, February 7. For more details about that—including an agenda and online registration—please visit the TAC website.
Here are some stories from the holiday break and this past week that you might’ve missed:
- “Tarrant County’s new DA stands before a mountain of work. How is he scaling the slope?” (Fort Worth Star-Telegram)
- “Wade Jackson to step down as District Attorney of 110th District Court” (Lubbock Avalanche-Journal)
- “Ample Jan. 6 Evidence Helps Secure High Conviction Rate in Capitol Riot” (Wall Street Journal)
- “Six Reasons the Murder Clearance Rate Is at an All-Time Low” (The Atlantic)
- “Legislature could eliminate police dishonorable discharges, create officer database” (KXAN)
- “The fringe ideology of ‘constitutional sheriffs’ is attracting believers within Texas law enforcement” (Texas Tribune)
Quotes of the Week
“Well, I have happy political consultants.”
—State Sen. Paul Bettencourt (R-Houston), finding a silver lining upon learning that he drew a two-year senate term this week and has to run for re-election again in 2024.
“It’s always easiest to spend other people’s money, so everyone is going to try to get their pet projects done.”
— Brian Smith, political scientist at St. Edward’s University, quoted in a Texas Tribune article in reference to the state’s record $32.7 billion revenue surplus this session.
“We have proven you can be tough on violent criminals while also making the criminal justice system work better for nonviolent offenders. And that is what we will continue to do. We can work all day on these issues, but if rogue district attorneys will not uphold the law, what progress are we really making? It is time to rein them in.”
— House Speaker Dade Phelan (R-Beaumont), listing off his priorities for this session during his acceptance speech.
“Thankful that Speaker @DadePhelan mentioned a priority for this session is addressing rogue District Attorneys who are publicly picking & choosing which laws they will enforce. We’ve seen this with #prolife laws in the last year & the #txlege must address this threat to Life.”
— Tweet by Dr. John Seago, president of Texas Right to Life.
“REINING IN ROGUE PROSECUTORS: Prosecutors are elected to enforce Texas law and to pursue and hold accountable Texas lawbreakers. The practice of District Attorneys publicly and proudly thumbing their nose at the legislature and refusing to enforce entire classes of Texas crimes is an affront to the rule of law itself. This must end—and Prosecutors who continue to do so must be held to account.”
— State Rep. Jeff Leach (R-Plano), current chairman of the House Judiciary & Civil Jurisprudence Committee, in a press release announcing his upcoming legislative priorities.
“We know that certain policies adopted by some district attorneys in our state have hindered the enforcement of criminal offenses, thereby placing the public at risk. This is unacceptable, and action must be taken to ensure that district attorneys are held accountable for their actions and carry out their duties by enforcing the laws we have on our books.”
— State Sen. Tan Parker (R-Flower Mound), in a press release announcing the filing of SB 378.
<OK, we’ll stop there, you get the drift. Look for another update in this same space next Friday!>