<*The original post has been updated with additional hearing notices for Wednesday and Thursday*>
Happy Saint Patrick’s Day! May you find a pot of gold at the end of your March Madness rainbow. (Offer not valid for Arizona or Virginia or A&M fans.)
A look back, a look ahead
After the dust from Friday’s deadline settled, the 88th Texas Legislature had filed a record 7,857 bills and joint resolutions. (The House alone filed 5,292 bills, the first time it has ever exceeded 5,000.) We are now tracking 1,752 pieces of legislation—22 percent of all bills and joint resolutions—far more than we have ever had to track before. After spending all week getting caught up, we’re too tired to draw any pithy conclusions from that excessive volume, so insert your own joke here.
Looking ahead, topics on tap for discussion next week include new funding for “rural” sheriffs and prosecutors, asset forfeiture changes, employment law actions for and against prosecutors, early parole for violent offenders, juvenile justice reforms, about two dozen gun-related bills, and more. Read on if you dare!
Financial support for some sheriffs and prosecutors
At the filing deadline last week, State Sen. Drew Springer (R-Muenster) filed SB 22, the lieutenant governor’s rural law enforcement support initiative. This bill will benefit many (but not all) of you and it was just posted for a committee review this upcoming Wednesday, so please read the bill (at that link) and the following summary carefully.
As we previously reported, the Senate has set aside $350 million during the next biennium to support law enforcement in rural Texas, including prosecution. To do that, the introduced version of the bill establishes a grant program run by the comptroller that is based on three population tiers: less than 10,000, 10,000 to less than 50,000, and 50,000 to less than 300,000. (Sorry Lubbock, you missed the cut by a hair!). Law enforcement grants would be awarded to counties in the amounts of $250,000/year for the smallest tier, $350,000/year for the middle tier, and $500,000/year for the largest tier. Those funds would then be used to establish minimum annual salaries of $75,000 for a sheriff, $45,000 for deputies who make traffic stops, and $40,000 for jailers. The bill also establishes a Rural District and County Attorney’s Office Salary Assistance Grant Program using the same three tiers, awarding a county $100,000, $175,000 or $275,000 per year (per tier, respectively) for assistant prosecutor and CA/DA investigator salaries.
Of course, many of you may note that a county-based model that works for sheriff’s departments and one-prosecutor counties might not work as smoothly for multi-prosecutor counties. But not to worry—we are working with the powers that be to address that complication. The important thing to note at this stage is that this legislation represents significant support for rural prosecutors, and the early reaction from some of the prosecutors who could benefit from this program is that it will make a real and lasting improvement in their ability to protect and serve their local communities.
We are excited to be working on this new project for you, and we fully expect this priority of the lieutenant governor to have smooth sailing through the Senate. However, it doesn’t hurt if those of you who might benefit from it and who have senators on the Finance Committee drop them a line to let them know of your support. (Committee membership available HERE.) We still can’t guarantee what this will look like when all is said and done, but if you have general questions about this bill, please contact Rob (after reading the bill for yourself, of course).
House committee approves judicial pay raise
On Thursday, the House Appropriations Committee met to consider and approve the work of the various subcommittees that hammered out the initial details of HB 1 (the state budget for FY2024–2025). The committee substitute version of that budget bill should be printed next week and scheduled for floor debate in early April, which is when the rest of the House members will get their crack at spending the public’s money.
Of particular note, HB 1 now includes a 5 percent per year raise to the benchmark pay of a district judge—from $140,000 to $147,000 in FY 2024 and to $154,350 in FY 2025. That also means an increase in longevity tiers as well (up to as much as $185,220 in FY 2025 for those with more than eight years of service). But don’t go spending that money yet—as we have previously reported in this space, the Senate Finance Committee may be less enthused about giving district judges a raise. However, if the recent House bump is still in HB 1 when it leaves the House and heads to the Senate, hope remains until the joint House–Senate conference committee hammers out their differences during the final week of the session and everyone learns the answer. (For those of you who have seen this play out fruitlessly in the past, we have some inspiration for you.)
Welcome to the crowd
As we noted during last summer and fall’s political campaigns, prosecution has become part of the national culture war battle being fought between those with binary worldviews colored by their red or blue lenses of choice. That explains the 34 new bills filed in the areas of “prosecutorial accountability” or “prosecutorial discretion” this session (33 of them by members of the same political party). Almost every one of these bills is original legislation that has not been filed in past sessions (see our previous point again), so we have created a separate track to follow them. To review that list and see where those bills stand as of this morning, CLICK HERE.
(Seriously, click it. Scroll through it. If you plan to engage with legislators on any topic under the sun this session, you need to be aware of this pre-emption undercurrent because it explains much of what is going on in Austin right now.)
Obviously, there is no way all of these bills will be considered this session, but we expect some of them to start moving soon. Remember, committee hearings in the Senate can be posted with only 24 hours’ notice, and sometimes they waive even that minimal warning. As a result, anyone hoping to engage with legislators on these bills must be familiar with them ahead of time. So … happy scrolling through that list!
Local officials defend public nuisance authority
On Wednesday, the House Judiciary & Civil Jurisprudence Committee took testimony on HB 1372 by Cody Harris (R-Palestine). The pre-emption bill is designed to strip local governments of the ability to use public nuisance suits in situations in which the offender was authorized to act by an ordinance, permit, etc., of a political subdivision, the state, or the feds. (An example of a suit that would be barred under the bill would be one against a drilling company that destroys a county’s water supply; because the company operates under a TCEQ permit, only TCEQ could seek a remedy—in that case, an administrative penalty.)
Witnesses in favor of the measure included big money groups such as the Texas Association of Business (TAB), the U.S. Chamber of Commerce (USCC), and Texans for Lawsuit Reform (TLR). Opposition to the bill from local governments focused on highlighting successful efforts by counties to recover damages from pharmaceutical companies in response to the opioid crisis (something that an assistant AG testified was critical to the success of the state’s own opioid recovery efforts). Effective testimony against HB 1372 was offered by McMullen County Attorney Kimberly Kreider-Dusek, Coryell County Attorney Brandon Belt, and Assistant Harris County Attorney Tiffany Bingham, who deserve your appreciation for taking the time to come to Austin and be heard on this important local issue.
Meanwhile, across the rotunda this week, a Senate Committee heard testimony on SB 175 by Middleton (R-Wallisville), the so-called “taxpayer-funded lobbying ban” designed to hamstring local officials who want to organize and oppose bills such as HB 1372 through their affiliate groups like the Texas Association of Counties. That Senate bill was approved by the Senate State Affairs Committee (as it always is in the Senate) and now heads to the Senate floor, where it will pass (as it always does in the Senate).
Floor action
The House should start passing House bills over to the Senate late next week. Meanwhile, the Senate passed the following bills this past week: SB 2 by Hughes (increased punishment for illegal voting), SB 402 by Whitmire (docket preference for homicide cases), SB 497 by Zaffirini (regulating kratom), and SB 1319 by Huffman (overdose mapping).
The Senate also passed SB 645 by Huffman (fentanyl crimes), but with two twists you should know about that were apparently requested by Governor Abbott’s office. First, his staff wanted death certificates to include a “fentanyl poisoning” notation any time fentanyl turns up in a post-mortem toxicology report—regardless of whether it was actually related the person’s cause of death. Fortunately, that language was fixed on the Senate floor to make any such notation more factually accurate. And second, the bill now amends Penal Code §19.02 (Murder) to add a manner and means for manufacturing or delivering fentanyl that results in death. But this proposed form of murder only applies to fentanyl, not heroin or xylazine or the next new way people will find to kill themselves via drug use in a few years. Also, the new murder crime requires no intent to kill (or even knowledge of the presence of fentanyl), so unless that gets fixed in the House, good luck seating a jury for a crime that carries a potential life sentence for a high school kid who unknowingly passed an unmarked pill to her now-dead friend. On the other hand, we also know what the legislature is threatening prosecutors with if you don’t strictly enforce laws like this, so … yeah, good luck with that.
Committee news
The House Corrections Committee approved HJR 11 and HB 182 by S. Thompson (judicial clemency to release parolees from supervision) and HB 392 by S. Thompson (earlier eligibility for orders of nondisclosure).
The House Criminal Jurisprudence Committee approved HB 28 by Slawson (agg assault enhancement), HB 180 by Moody (withdrawal of execution warrant), HB 393 by Goldman (child support restitution for intox manslaughter), HB 727 by Rose (exemptions certain mentally ill offenders from the death penalty), HB 1207 by Guillen (no statute of limitations for tampering with a corpse), and HB 1736 by Leach (limiting party liability for capital cases).
These bills now head to the Calendars Committee for possible consideration by the full House.
Future floor debates
We are entering the stage of session in which upcoming floor calendars can give us an inkling of what the two chambers will be debating and voting upon as a whole in the near future. The House hasn’t posted its first calendar yet, but bills that could be debated by the full Senate in the near future include: SB 175 by Middleton (ban on taxpayer-funded lobbying), SB 740 by Huffman (local election required to reduce funding for urban prosecutor offices), SB 1004 by Huffman (crime of tampering with electronic monitor), and SJR 44 by Huffman (constitutional amendment authorizing denial of bail in some cases).
Future committee hearings
On next Tuesday alone, we are tracking 51 bills that will be heard in eight different committees. Here are just a few of those bills, along with others scheduled to be heard in committees this week that have been posted to date. (Click the committee’s name for the full agenda of bills and additional details, including hyperlinks to each bill. Subsequent committee postings may be added later on the web version of this update; visit our website for the latest information.)
Monday, March 20
House Select Committee on Youth Health and Safety – 2:30 p.m. or upon adjournment, E2.026
- HB 16 by Moody relating to community-based juvenile services and diversion from TJJD
- HB 18 by Slawson creating a DTPA action for improper material on kids’ social media
- HB 213 by Moody granting retroactive early parole eligibility to certain capital and first-degree felons
Tuesday, March 21
House Human Services – 8:00 a.m., E2.030
- HB 1900 by Wu requiring notice of changes to DFPS investigation reports
- HB 2229 by Goodwin relating to notice for certain victims of family violence
- HB 2243 by Campos providing assistance to elderly applicants for protective orders
House Criminal Jurisprudence, Subcommittee on Asset Forfeiture – 8:00 a.m., E2.016
- HB 69 by Schaefer reversing and increasing the innocent owner defense burden
- HB 928 by Dutton requiring a final conviction for civil asset forfeitures
- HB 1442 by A. Johnson relating to street takeovers and reckless driving consequences
Senate Criminal Justice – 8:30 a.m., E1.016
- SB 37 by Zaffirini relating to hazing
- SB 129 by Springer increasing punishments for child pornography
- SB 224 by Alvarado increasing punishments for catalytic converter theft
- SB 432 by Middleton increasing punishments for catalytic converter theft
- SB 465 by Bettencourt increasing punishments for catalytic converter theft
- SB 467 by Bettencourt increasing punishments for motor fuel pump mischief
- SB 509 by Perry restricting the publication of mug shots
- SB 947 by P. King criminalizing offenses relating to critical infrastructure facilities
- SB 1151 by Whitmire mandating certain minimum fees on surety bonds
- SB 1173 by Huffman relating to a special presiding judge in Harris County
House Criminal Jurisprudence, Subcommittee on Criminal Procedure – 10:30 a.m., E2.016
- HB 311 by S. Thompson expanding the Michael Morton Act and creating an employment law cause of action related to disclosures under that act
- HB 352 by J. González relating to indigent applicants for a writ
- HB 399 by Collier relating to automatic orders of nondisclosure
- HB 412 by S. Thompson requiring corroboration of undercover drug officers
- HB 467 by Craddick expanding statutes of limitation for certain assaults
- HB 504 by Wu limiting no-knock entry by officers
- HB 519 by Wu requiring expunctions after grand jury no-bills
- HB 908 by Moody granting defense copies of children’s forensic interviews
- HB 946 by Dutton relating to spoliation of evidence in criminal cases
- HB 964 by Jetton requiring sex offender registration for improper educator–student relations
- HB 1104 by Cunningham relating to the return of a seized weapon in a criminal case
House Corrections – 10:30 a.m. or upon adjournment, JHR 140
- HB 168 by Moody relating to the confidentiality of certain execution information
- HB 1577 by Hull changing the eligibility for mandatory supervision of certain inmates
- HB 1742 by Leach imposing a mandatory minimum sentence for intoxication manslaughter and probation and parole for that offense
- HB 1811 by Hefner criminalizing the act of tampering with an electronic monitor
- HB 2984 by Herrero criminalizing the act of tampering with an electronic monitor
- HB 3549 by Anchia criminalizing the act of tampering with an electronic monitor
House Select Committee on Community Safety – 2:00 p.m. or upon adjournment, E2.012
- HB 165 by A. Johnson increasing the penalty for certain mass shootings
- HB 175 by Schaefer authorizing expunctions for old UCW deferred adjudications
- HB 1760 by Hefner relating to carrying weapons in certain prohibited places
- HB 2076 by Goodwin prohibiting certain family violence offenders from possessing firearms
- HB 2454 by Guillen criminalizing certain “straw purchases” of firearms
Wednesday, March 22
House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016 <*added>
- HB 200 by Leach re-establishing the Prosecuting Attorneys Coordinating Council
- HB 1989 by Cook relating to clerk fees for copies of certain documents
- HB 2117 by Oliverson creating a financial cause of action against judges for certain bond decisions
- HB 2139 by Burrows revising the Code Construction Act to limit judicial interpretation
- HB 3166 by Murr creating a 15th Court of Appeals with statewide jurisdiction over certain civil cases involving the State
- HJR 39 by Vasut repealing the mandatory judicial retirement age
Senate Finance – 9:00 a.m., E1.036
- SB 22 by Springer establishing a rural sheriff and prosecutor grant program
House State Affairs – 10:30 a.m. or upon adj., JHR 140
- HB 613 by Vasut relating to charges imposed by a governmental body under the PIA
- HB 904 by Moody re-defining gambling for fantasy sports purposes
- HB 1942 and HJR 102 by Leach legalizing and regulating sports wagering
- HB 2142 by Guillen changing various gambling definitions
- HB 2309 by Hunter relating to the availability of certain DOBs under the PIA
- HB 2843 by Kuempel legalizing and regulating casino gaming and sports wagering
House Juvenile Justice & Family Issues – 10:30 a.m. or upon adj., E2.030 <*added*>
- HB 422 by VanDeaver authorizing remote proceedings in juvenile cases
- HB 1310 by Gamez requiring juvenile detention hearings every two days
- HB 1654 by Cook relating to a determinate sentence for organized criminal activity
- HB 2096 by Manuel relating to personal bonds in certain family violence cases
- HB 2272 by Swanson requiring a DA to represent DFPS if a CA opts out
Thursday, March 23
Senate State Affairs – 9:00 a.m., Senate Chamber <*added*>
- SB 12 by Hughes restricting certain sexually oriented performances on public property; creating a criminal offense
- SB 20 by Huffman relating to the removal of prosecutors for failing to enforce criminal laws
- SB 21 by Huffman relating to sanctions for judges who fail to follow certain laws
- SB 23 by Huffman imposing a minimum sentence for certain offenses involving firearms
New bills to watch
This will be our last entry under this heading (and not a moment too soon; reviewing 7,000+ bills is exhausting!). Here are some new bills filed before the deadline that might pique your interest:
- HJR 163 by Harrison authorizing recall elections of local officials
- SB 1906 by Sparks / HB 4487 by Smith relating to student loan repayment for prosecutors and public defenders
- SB 1908 by Bettencourt empowering prosecutors to pursue election crimes outside their home counties
- SB 1927 by Hughes empowering the State Prosecuting Attorney to prosecute certain crimes in trial courts throughout the state
- SB 1968 by Bettencourt requiring prosecutors to report discretionary decisions to OAG
Many bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks, as well as a “Bills to Watch” track that includes these new additions above and others we have highlighted in these weekly updates.
Austin-bound?
If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date this session, 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 scoop before you make plans.
Training scholarships
The Criminal Justice Section of the State Bar is offering a limited number of scholarships to our Annual Conference in September. The deadline for being considered is April 30. For more information or to apply, use this online form.
Scattershooting
Here are some recent stories you might’ve missed:
- “Texas House Prioritizes Removing Rogue Prosecutors” (Texas Scorecard)
- “Georgia Republicans push for prosecutorial oversight amid Trump election probe” (Washington Post)
- “Lawmakers want to change Texas constitution to tighten bail restrictions” (Houston Public Media)
- “As Texas pushes to ban delta-8, it’s squaring off with the drug’s biggest proponents: the VFW” (Houston Chronicle)
- “Red States Are Fighting Their Blue Cities” (FiveThirtyEight)
Quotes of the Week
“Whose job was it to do a simple Google search?”
—Shakee Merritt, Newark (NJ) resident, in a CBS News interview after the city admitted that it had been duped into entering a “sister cities” agreement with the non-existent Asian country of “Kailasa.”
“It’s a wildfire. It’s a huge boom and everybody in the industry that studies these things saw it coming.”
—Matthew McMurray, assistant professor at Miami (Ohio) University’s Institute for Responsible Gaming, Lotteries and Sport, referring to the documented rise of gambling addiction (especially among young men) in states that have legalized online sports betting.
“This is as close as Paxton will come to a political sanction from his party for his actions. … The party is not going to directly say that they think that he’s done wrong, but they certainly don’t want to be on the hook to foot the bill. … The ambiguity about whether there’s any kind of lawbreaking going on here is frustrating for a lot of members who then don’t want to pay for what Paxton is doing in office.”
—Brandon Rottinghaus, political science professor at the University of Houston, as quoted in a Houston Chronicle article on the Legislature’s hesitation to approve the settlement of the whistleblower lawsuit pending against the Attorney General’s Office.
“For progressive prosecutors this is a politically self-inflicted wound. When you … stand up on the tallest building in your jurisdiction and holler at the legislature that you are not going to follow their law, somebody is going to pay attention. When you do something like that you are basically waving a red cape in front of a bull. … [But advocates for pre-emption] would be better off letting voters and reality make a correction here in the long run.”
—Thomas Hogan, Chester County (PA) District Attorney, as quoted in a recent CNN story about crime becoming the latest front in the national culture wars.
“This is a straightforward attack on a system we’ve had in place for hundreds of years: local elections of local prosecutors. If you go back into the mid-2010s, a lot of the preemption was driven by business—it had to do with workplace equity, living wage, family leave, medical leave, and maybe some pollution-oriented regulations. This stuff is all ideological now: crime, elections, schools.”
—Richard Briffault, a Columbia Law School professor who studies state preemption of local policies, as quoted in that same CNN article.
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