TDCAA Legislative Update: 88th Regular Session, Week 19

May 19, 2023

Deadlines are nigh, and as time gets short, so do the fuses of some of the people working under the pink dome. If you reach out to a legislator or staffer and they seem more stressed than usual, please try to show them a little understanding and grace. There’s too little of that in the building right now.


Only 10 days remain before sine die on Memorial Day. Hundreds of bills are still moving through committees today in a last-ditch attempt to meet impending deadlines, and we’re doing our best to keep track of as much of it as we can. As a result, this update may be skimpier than usual because the fur is still flying. Legislators will also work on the floor tomorrow in an effort to beat some of these upcoming deadlines:

Saturday, May 20:  House committee reports on Senate bills must be filed
Sunday, May 21:  Final House calendar of Senate bills must be printed by 10 p.m.
Tuesday, May 23:  All Senate bills must be approved by House on 2nd reading before midnight
Wednesday, May 24:  All Senate bills must be approved by House on 3rd reading before midnight; all House bills must be approved by Senate on 2nd and 3rd reading before midnight.

When legislators return to work next Thursday morning, all that will remain to do is work on bills passed by both chambers in different forms that need to be reconciled and finally approved by both chambers by next Sunday. No substantive work can be done on Monday, May 29, the 140th and final day of the session.

Funding updates

Just the facts, ma’am. Here goes:

Pay raise in budget (HB 1)
The HB 1 Conference Committee disclosed some preliminary results of its negotiations over conflicts between the House and Senate versions of the next state budget. On the judicial pay raise front, the committee rejected the House’s proposed 10-percent raise in the judicial benchmark salary. (Not a surprise to us because the Senate was never on board with that idea.) As a result, any judicial branch pay raise now depends on the fate of HB 2779 (see next).

Pay raise bill (HB 2779)
Yesterday, the Senate Finance Committee laid out a new committee substitute for HB 2779 by Leach/Huffman. The version previously approved by the House would raise the judicial and prosecutor base pay of $140,000 by 22 percent over the next biennium but also freeze future retirement benefits for felony prosecutors absent an increase recommended by the Texas Ethics Commission (TEC)—that last bit being added by floor amendment before final passage in the House. However, the new version considered by the Senate Finance Committee is completely different.

Rather than an across-the-board raise, the Senate committee substitute to HB 2779 (PDF version viewable HERE) creates a new third tier of salary providing a 10-percent pay raise after 12 years of service ($182,000). The bill also pushes back the current judicial longevity bump of 5-percent of a judge’s current salary to apply it after 14 years of service instead of 12. (NOTE: SB 2310 by Hinojosa/Smith—which makes tenured elected felony prosecutors eligible for that same 5-percent judicial longevity increase—will fit seamlessly with this committee substitute language so that those prosecutors can also claim it. If our math is correct, that would result in a state salary of $191,100 after 14 years of service. More on that bill’s status below.) However, this new version of HB 2779 does freeze in place retired judges’ and prosecutors’ ERS benefits with no TEC option for an increase.

The substitute version of the bill was approved by the committee and will be eligible for consideration by the full Senate in a few days. You may hear some discontent from your judges about this change in HB 2779, but we are a little surprised by that reaction. Yes, this is a more targeted raise than the judges wanted, but it is no shock to us that the Senate would balk at increasing the salaries of local officials they have been criticizing for much of this session (see, e.g., SB 20 by Huffman [“rogue DAs”] and SB 21 by Huffman/Leach [“rogue judges”]). When viewed through that prism, this more limited Senate version makes sense. However, some of the judges who testified on the bill yesterday clearly did not get that memo and made clear their displeasure at the change—to the point where it would not have surprised us if the Senate committee just scrapped the whole thing. However, there were other, more astute witnesses who still testified in support of this slimmed-down raise, including Comal County CDA Jennifer Tharp. Despite getting a copy of the new proposal only minutes before testifying, she supported the proposal and thanked Chairwoman Huffman and her committee and staff for the many bills that are financially advantageous to prosecutors which are still moving toward final passage this session.

Should HB 2779 pass the Senate in this new form next week, it will then return to the House, which will either concur with the Senate’s changes or ask for a conference committee to hash out the details. How that will end up is anyone’s guess, but one thing we can tell you is that HB 2997 appears to be the only remaining vehicle for any kind of judicial pay raise now that the HB 1 Conference Committee has rejected a general across-the-board increase.

Pay parity longevity bump for elected felony prosecutors
As we mentioned above, SB 2310 by Hinojosa/Smith (pay parity with judges) passed the House on its Local and Consent Calendar this morning and will be on its way to the governor’s desk soon.

Cross-credit for elected prosecutors and judges
The language granting elected judges and prosecutors credit for their service in the other role is part of HB 3474 by Leach/Hughes, this session’s omnibus court administration bill, which is eligible for approval by the full Senate as soon as today.

Rural prosecutors grant funding
There are still two bills that could deliver substantial financial aid to local prosecutors seeking help to recruit and retain good employees. Unfortunately, HB 1487 by Gerdes (R-Smithville) has not received a hearing in the Senate Local Government Committee and is on life-support right now. However, SB 22 by Springer/Guillen passed the House this week (after the adoption of an amendment removing new language allowing funds to be used for elected prosecutor salaries) and now returns to the Senate. We have been told that the Senate is still not keen on some of the constable-related changes made in the House, so we expect the bill to go to a conference committee to iron out those differences. The last day for both chambers to adopt agreed versions of bills in conference is Sunday, May 28.

Urban prosecutor local budget protections
SB 740 by Huffman (limiting urban counties’ ability to reduce prosecutor budgets) passed the House State Affairs Committee this week and is now in the House Calendars Committee.

Prosecutor accountability bills

As of the time of this update being posted, there has been no House action on SB 1195 by Hughes (R-Mineola), the bill purporting to give the attorney general some (unconstitutional) prosecution powers over certain crimes. If that holds true for another 36 hours, that bill will be dead.

On the prosecutor removal front, the Senate version of HB 17 by Cook/Huffman—which is identical to the Senate sponsor’s SB 20—is awaiting approval by the full Senate as early as today. The bill will then likely go to a conference committee for the two chambers to hash out their differences.

There are two other bills that might fit under this (admittedly vague) category and are still moving. One is SB 2208 by Parker/DeAyala to move the “neighboring county” venue provision of the Election Code into the Code of Criminal Procedure, where it will also apply to non-Election Code crimes that are related to an election. That bill is in the House Calendars Committee.

The other is SB 409 by Hinojosa/Leach, an unobjectionable bill clarifying and expanding certain victims’ rights, which took on a surprise House floor amendment of language from HB 3786 by S. Thompson, a bill being pushed by the Texas Association Against Sexual Assault (TAASA) to allow victims to enforce various rights through mandamus or injunctive intervention in a criminal case. That stand-alone bill had been opposed by no fewer than nine prosecutors when heard in a House committee earlier this month and the bill has not been heard in the Senate, but the language from the bill suddenly reappeared as an amendment to SB 409 and was adopted without discussion on the House floor before the bill was passed in the lower chamber. Fortunately, the Senate author of SB 409 has refused to accept that amendment, so the bill will now go to a conference committee to strip out that late surprise addition before passing the underlying, agreed version of the bill on to the governor. There will certainly be further discussions about that proposal over the interim, though, so if this is an issue that interests you, contact Shannon to be included in those future debates.

Signed by the governor

Welcome to a new category!

For those who remember your Texas civics lessons, bills passed by the legislature automatically become law without the governor’s approval after a certain period of time because Texas law has no “pocket veto” provision, unlike the federal system. However, most governors like to sign bills into law for the PR value, so a host of bills were recently signed into law by Governor Abbott. Among those was SB 1325 by Alvarado/Goodwin “relating to the notice given to certain victims of family violence.” That’s a new notice requirement that will kick in on January 1, 2024, according to the terms of the bill. But remember, most bills will take effect on September 1, 2023, and some bills can take effect immediately upon being signed by the governor.

If you are wondering how you will keep up with all those different effective dates, never fear! Check this space in June for details about our upcoming Legislative Update CLEs where we will cover all the important changes coming your way, including effective dates!

Sent to the governor

Bills on their way to the governor’s desk include:

HB 28 by Slawson/Birdwell increasing punishments for certain aggravated assaults
HB 63 by Swanson/Sparks eliminating anonymous reporting of child abuse or neglect
HB 165 by A. Johnson/Whitmire increasing punishments for certain mass shootings
HB 598 by Shaheen/Whitmire creating a new criminal offense for the possession of an animal by someone previously convicted of animal cruelty
HB 1760 by Hefner/Hughes clarifying the scope of the Places Weapons Prohibited crime
HB 2015 by Leach/Zaffirini raising the age of jury service exemption to 75
HB 2306 by Hefner/Middleton expanding the offense of voyeurism
HB 2545 by Capriglione/Johnson restricting access to DNA from direct-to-consumer genetic testing companies
HB 3345 by Bonnen/Huffman doubling the sexually-oriented business “pole tax” to $10
SB 224 by Alvarado/Leach increasing punishments for the theft of a catalytic converter
SB 372 by Huffman/Leach criminalizing the leaking of draft judicial opinions
SB 728 by Huffman/Leach including juvenile mental health information in firearm background checks
SB 1124 by P. King/Neave Criado imposing qualifications to be a sheriff or candidate for sheriff
SB 1725 by Hughes/Leo-Wilson relating to expunctions for certain alcohol-related offenses
SB 2310 by Hinojosa/Smith regarding longevity pay parity for elected felony prosecutors

Future floor debates

Senate bills cued up for consideration by the full House today and in coming days include (in order of docketing):

SB 1045 by Huffman/Murr (creating 15th Court of Appeals for civil cases involving the state)
SB 1445 by Paxton/Goldman (TCOLE sunset reauthorization bill)
SB 12 by Hughes/Shaheen (restricting certain sexually-oriented performances)
SB 129 by Springer/Meyer (child pornography punishment ranges based on number of images)
SB 1518 by King/Guillen (terrorist offender registry)
SB 402 by Whitmire/Harless (trial court priority for murder and capital murder cases)
SB 386 by Hall/Harless (presumption in capital murder cases involving peace officer victims)
SB 338 by Hinojosa/Leach (ban on State’s use of hypnotically-induced statements at trial)
SB 991 by Hinojosa/Leach (creating a DPS crime lab portal for discovery)

House bills eligible for consideration by the full Senate today and tomorrow include:

HB 17 by Cook/Huffman (removal from office of prosecutors)
HB 291 by Murr/Hughes (occupational driver’s licenses)
HB 420 by Slawson/Flores (increasing punishments for providing alcohol to a minor)
HB 422 by VanDeaver/Perry (remote proceedings for juvenile detention hearings)
HB 3474 by Leach/Hughes (omnibus court creation and administration bill)
HB 3956 by Smith/Creighton (DNA collection upon felony arrest)
HB 5010 by Schofield/Hall (limitation on filing of State Bar grievances)

Future committee hearings

None. Amen.


Here are some recent stories you might’ve missed:

  • “GOP-Backed Laws Could Oust Local Prosecutors” (Bloomberg News)
  • “Texas budget writers move to block funding for AG Paxton’s $3.3M whistleblower settlement” (Dallas Morning News)
  • “Drug Overdose Deaths Topped 100,000 Again in 2022” (Wall Street Journal)
  • “GOP border bill expanded to stiffen penalty for human smuggling, create border-crossing crime” (Texas Tribune)
  • “It Doesn’t Matter How Strong Texas’ Election Laws Are Until Someone Enforces Them” (TPPF)
  • “The Dangers of Prosecutorial Nullification” (The Dispatch)

Quotes of the Week

“It’s the Stone Age again.”
            —Douglas Huff, president of the Dallas Criminal Defense Lawyers Association, as quoted in this Dallas Morning News article on the inability of the Dallas Police Department to access evidence in the wake of a hostile ransomware attack.

“Unfortunately, if this bill were to pass, those 1,000 children would be left to continue experiencing abuse and neglect or worse. Leaving children in danger can have disastrous consequences. Last year, 182 Texas kids died of abuse and neglect.”
            —Kate Murphy, director of child protection policy at Texans Care for Children, testifying in opposition to HB 63 by Swanson/Sparks, which proposes to eliminate anonymous reports of child abuse or neglect. Ms. Murphy noted that there were more than 12,000 anonymous reports in 2022, of which about 1,000 resulted in a substantiated finding of abuse or neglect. (The bill passed the legislature yesterday and is now headed to the governor’s desk.)

“We do think we need to consider increases in the base pay as we go forward, and I’ll tell for you a different reason that what you’ve heard: The voters of Texas need to fire some of their judges. They just do. We’ve got lots of good, hardworking judges in Texas who are following the rule of law, but we’ve got a few out there that just don’t care what it is that you all have done legislatively in the statutes of this state. They’re not paying attention to it. They’re deciding cases based on whatever they think is right [at] that given period of time. They need opponents. To get good opponents, those opponents need to know that the pay is going to be worthwhile, taking that risk in their job to go run for election. So, for reasons that I don’t think anybody else will tell you, we’ll tell you the voters need to fire some judges and the new judges need to think that it’s worthwhile to go run for office. So, thank you for what you’re doing.”
            —Lee Parsley, general counsel for Texans for Lawsuit Reform, testifying in favor of HB 2779 by Leach/Huffman (judicial pay raise bill). (To view the full 25-minute discussion of that bill in committee, fast forward to the 32:00 mark of this archived video.)