We are a mere 11/140ths (8 percent) of the way through the 88th Regular Session.
Echoes of shots
On the heels of last week’s filing of SB 378 by Parker (R-Flower Mound) (fines and removal from office for non-prosecution) comes the filing of a House companion: HB 1350 by Cook (R-Mansfield). “Companion” means the language of each bill is identical, and the bills can move independently through the process on each side. Double the fun!
Regarding SB 404 by King (R-Weatherford), (prosecutor disciplinary council), we are continuing to research the history of its predecessor agency that was abolished in the 1980s as well as the background behind several failed legislative attempts to reconstitute such a council in the early 1990s in retaliation for then-Travis County DA Ronnie Earle indicting a sitting House speaker. While we work on that, you might gain greater context on this proposed change by asking your local judiciary how they like being under the purview of the State Commission on Judicial Conduct, an analogous disciplinary body that received more than 1,700 complaints against Texas judges in FY2022. We’ve never paid that much attention to it, but maybe that is about to change?
By the way, if these preceding paragraphs are Greek to you, then feel free to rewind back to last week’s Legislative Update. (That will also help you make more sense of some quotes of the week at the end of this update.) We recognize that all of you have busy day jobs and may not have a chance to read our updates, but if you haven’t read both of those bills yet, you might move that task to the top of your to-do list. Bills that could result in you being sued, publicly reprimanded, and/or removed from office deserve your full attention. Even if we all know these bills are directed at a select few prosecutors in certain jurisdictions, there is nothing limiting their scope to only those prosecutors. As we’ve said before, the legislature tends to solve problems not with a scalpel, but with a sledgehammer. So read the texts of those bills for yourself and let us—and even more importantly, your legislators—know what you think. Inquiring minds want to know.
The second week of session was dominated by the inauguration of the governor and lieutenant governor, the roll-out of each chamber’s baseline budget (more on that below), and a visit from the World Champion Houston Astros. (Sorry, Rangers fans.) Behind the scenes, legislators are jockeying for their preferred committee positions and/or chairmanships. Senate assignments will likely come out next week and House assignments the following week.
Committee assignments are key events in any legislative session because historically, at least three-quarters of all the bills filed in a session go into a committee but never come out (and are therefore dead). On a related note, the chair of each committee historically has the best bill passage rate out of that committee, so if you wait until those positions are named and then succeed in having the chair file a bill that is likely to be referred to that committee, that bill is in very good shape indeed.
Interim committee reports
House and Senate committees meet sporadically during the interims between legislative sessions, and their output varies. Most (but not all) committees produce interim reports recommending future action to the next incoming legislature; some of those recommendations become future legislation, while others serve more as a glimpse into some legislators’ priorities. Interim reports from 2022 are still trickling in, but recommendations you might find interesting include the following:
- Increase transparency and accountability for peace officer disciplinary actions
- Increase reporting and transparency requirements for civil asset forfeiture
- Require transcription of grand jury proceedings and prohibit re-presentations absent new evidence
- Raise the lower age of juvenile jurisdiction from 10 to 13 years of age
- Grant “second look” early parole eligibility to youthful violent offenders
- Automatic sealing of criminal records for certain adult offenders
- Increase the benchmark judicial salary and consider automatic cost-of-living increases
- Increase juror pay, enact wage protections for those who serve on juries, and narrow the current exemptions for jury service to provide a wider pool of jurors
- Further restrict personal bonds for certain offenses and allow judges to deny bail in more situations
- Reduce wait times for inpatient forensic mental health services while increasing the availability of mental health services in local communities
The state’s budgeting process for the FY 2024–25 biennium officially began this week with the filing of the two chambers’ dueling General Appropriations bills: HB 1 by Bonnen (R-Friendswood) and SB 1 by Huffman (R-Houston). As you know, the comptroller has projected a historic budget surplus of $32.7 billion at the end of the current biennium, and revenue estimates project that the state will have $188.2 billion available to spend in the 2024-2025 biennium. All of that translated into a lack of drama when the initial “baseline” budget bills were filed this week—no one’s ox appears to have been gored in these bills.
Some big-ticket promises were included in the bills, like $15 billion in property tax relief, $1.8 billion for state employee pay raises, and $4.6 billion to support Operation Lone Star. Without going into too much detail at this early point in the process, both bills also greatly increase spending for the Juvenile Justice Department, add resources to beef up the DPS crime lab, and promise (without a specific number) to air-condition TDCJ units. Funding for the judiciary and prosecutors begins at 2022–2023 levels, so at the very least no one sees a cut from the get-go (as has sometimes happened in past baseline budgets).
Now the fun begins. These appropriation bills are the starting point for discussion, and the final product may look much different after the pork barrel politicking is done. In down budget years, legislators have it a little easier in a way—they can say “no” to new funding requests because the money just isn’t there, and almost everyone with a new funding request leaves the table empty-handed. This year, however, there will be both winners and losers in the race to secure additional funding, and the difference may fall more squarely upon the personal whims of legislators.
Other bills to watch
We are already tracking more than 500 bills this session (with eight weeks of bill filing still to go!). Many of them you can access on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. (Look on the right-hand side of that webpage on your desktop or the bottom of the page on mobile devices.) We also have a curated list of “Bills to Watch” that you can access on that same webpage. Bills recently added to that list include:
HB 1258 by S. Thompson revising grand jury procedures
HB 1332 by Herrero exempting firefighters and peace officers from jury service
HB 1350 by Cook sanctioning prosecutors for failing to enforce laws
SB 372 by Huffman criminalizing the disclosure of certain judicial opinions and work product
You can click on the underlined hyperlinks to access the content of those bills and related details.
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 scoop 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—including an agenda and online registration—please visit the TAC website.
Here are some stories from this past week that you might’ve missed:
- “Texas Republicans want to rein in ‘rogue prosecutors’ like Dallas County DA John Creuzot” (Dallas Morning News)
- “Texas Republicans vow to crack down on ‘rogue’ prosecutors—here’s why” (Austin American-Statesman)
- “Ken Paxton wants more power to prosecute election crimes. These bills in the Texas Legislature would give it to him.” (Texas Tribune)
- “Can Texas Prosecute Providers of Medical Treatments Legal in Other States But Criminalized in Texas?” (Texas Civil Justice League)
- “Texas Legislature’s state budget proposals leave more than $50 billion in state funds up for grabs” (Texas Tribune)
Quotes of the Week
“We cannot attract new prosecutor talent at the wages that are being offered.”
—Kurt Klomberg, Dodge County (WI) DA, who announced his resignation from office last week due to an inability to fund the basic level of practice needed to assure safety in his community.
“You can’t just take a bill over there and expect it to pass the first time. You got to kind of build your case. And you can’t quit. It’s not a sprint. It’s a marathon.”
—Scott Stephens, a father who successfully pushed legislation requiring more student-athletes to be screened for heart issues after the death of this son, as quoted in a Texas Tribune article on civic engagement with the legislature.
“If you count up all of the ideas, all the money—the $32.7 [billion surplus]—is spent over like five times. There’s just a lot of requests. … Some ideas are better than others. So, they are going to have to prioritize.”
—Texas Comptroller Glenn Hegar (R-Katy), in an interview on the current budget surplus and how the legislature is being asked to spend it.
“Last session, we passed a law that defunds any city that defunds their police. This session, we must end the easy bail policies that let dangerous criminals back on our streets. We must impose mandatory sentences on criminals caught with guns and on anyone caught smuggling illegal immigrants.”
—Governor Greg Abbott (R-Houston), in his speech delivered at his inauguration this week.
“Carte blanche public pronouncements by district attorneys that laws we have on the books will be ignored renders the authority of the Legislature to determine what is and isn’t a crime, moot. … Rather than adopt politically-motivated virtue signaling and blanket immunity for criminals, district attorneys have a duty to evaluate the merits of each alleged crime on a case-by-case basis to ensure the public safety of Texans.”
—State Rep. David Cook (R-Mansfield), in a press release announcing his filing of HB 1350 “to rein in renegade district attorneys.” The bill is an identical companion to SB 378 by Parker (R-Flower Mound).
“Prosecutors have absolute discretion to determine who it is that they want to investigate and prosecute. And the Stephens decision makes that clear. There’s simply not some legislative run-around [of] the court ruling.”
—Chad Dunn, Austin lawyer who prevailed in the Stephens appeals, as quoted in a Texas Tribune article about legislation filed this session to roll back parts of that decision.
“Prosecutors swear a solemn oath to uphold and defend the laws of the state of Texas, as passed by the duly elected Texas Legislature. For prosecutors to knowingly and willingly refuse to enforce state laws—and even further, publicly announce their refusal to follow and enforce state laws—is a violation of their oath and greatly jeopardizes the entire justice system and weakens the rule of law. The foundational principle of prosecutorial discretion on a case-by-case basis must be protected. But state laws must be enforced. Any prosecutor who refuses to do so must be held to account.”
—Recommendation of the House Interim Study Committee on Criminal Justice Reform on the charge of “prosecutorial discretion.”
“In short, the controlling motivations for the suspension were the interest in bringing down a reform prosecutor—a prosecutor whose performance did not match the Governor’s law-and-order agenda—and the political benefit that would result. The actual facts—whether Mr. Warren actually had any blanket nonprosecution policies—did not matter. All that was needed was a pretext to justify the suspension under the Florida Constitution.”
—Conclusion of the U.S. District Court for the Northern District of Florida issued this morning in Warren v. DeSantis, finding that Gov. Ron DeSantis’ removal of a local Florida prosecutor was arguably illegal under Florida law, but in a way not cognizable under federal law and therefore denying relief. (Click on the link to the full opinion for a behind-the-scenes look at how that governor and his staff went about that removal decision—it’s a fascinating reminder of how and why these issues have become nationalized.)