If you wanted some clarity about what the legislature may do for you or to you this session, we’re afraid you’re going to be disappointed. This week in Austin was more about heat (politics) than light (policy). But politics often trumps policy in the capitol sausage-making factory, so read along with that in mind.
The State of the State …
“… has never been more exceptional.” At least according to Governor Abbott, who gave his State of the State Address last night in a made-for-TV event live from San Marcos. But despite that exceptionality, the governor identified dozens of additional new laws he wants this legislature to pass, focusing mostly on seven priority areas (in no particular order): cutting property taxes, limiting pandemic restrictions, school choice, school safety, fentanyl, border security, and ending revolving-door bail. Those latter three deserve more attention, so here is what was actually proposed (with links to his office’s helpful press releases):
- Fentanyl: Classify fentanyl “overdoses” as poisonings; prosecute dealers for murder; make opioid antagonists like Narcan more readily available.
- Border security: Impose 10-year mandatory minimum sentences for human smuggling and for “criminals who illegally possess guns” (that second bit about guns is not in the press release but was mentioned in the speech); enhance stash house crimes to a third-degree felony; increase penalties for human smuggling and stash house operations when committed in a disaster area; enhance criminal penalties for foreign terrorist organizations.
- Revolving door bail: Propose a constitutional amendment allowing judges to deny bail for the most violent offenders; hold judges and district attorneys accountable for “reckless decisions compromising the safety and security of Texans.”
Interestingly, if you watched the address live you never heard any mention of that final blurb regarding DA accountability, nor was it in his prepared remarks—only judges were singled out in the context of bail decisions. (The full text of his prepared speech can be read HERE for those who are interested.) However, prosecutors are mentioned in the press release. So, what does all this mean?
From a political perspective, this is a handy list of gubernatorial priorities to keep in mind during the session. But from a legislative timing perspective, no speech or press release can grant an issue the “emergency” status necessary to allow the Lege to take up the issue and vote on it immediately. As a result, we must wait until official proclamations are issued by the governor’s office before we can tell you what merits emergency designation. (Those have not been made public as of the release of this update.) And if you find it odd that speeches were made and press releases were issued but no actual proclamations were issued as required under the state constitution … well, see our earlier comment about “heat” and “light.”
Lt. Gov’s priorities
It has long been the practice in the House and Senate for those chambers’ presiding officers to reserve low bill numbers for priority legislation. These designations do not carry a constitutional advantage like an emergency proclamation issued by the governor, but they do signal what is important to the people who matter. And Lt. Gov. Dan Patrick (R-Houston) has taken that practice to another level during his time in office, rolling out as many as 30 “priority bills” identifying his focus. This session’s list of reserved Senate bill numbers came out Monday—before the governor’s State of the State Address, but we’re sure that was just a coincidence—and includes:
- Senate Bill 2: Restoring voter fraud to a felony
- SB 20: Removing DAs who refuse to follow Texas law
- SB 21: Removing judges who refuse to follow Texas law
- SB 22: Rural law enforcement funding increases
- SB 23: Mandatory 10-year prison sentence for certain crimes involving a firearm
- SB 26: Expanding mental health care beds (esp. in rural counties)
- SB 27: Creating a statewide business appellate court
For the full list, click HERE.
You may notice some overlap—but not complete agreement—between the lieutenant governor’s priorities and the governor’s priorities. Note also that no language has been filed under these priority Senate bill numbers as of the time this update is being issued, but some—such as SB 23 (10-year minimum for certain crimes committed with a gun)—will likely be a refiled version of what was already filed as SB 787 by Huffman. Whether SB 20 (DA removal) ends up being a refiled version of a bill already filed on that topic or is something entirely new remains to be seen.
Judiciary budget
The Senate Finance Committee took up judicial branch funding yesterday and heard from a string of judicial officials highlighting their inability to hire and retain quality attorneys and staff due to inadequate pay. As we reported last week in our discussion of the OAG budget, this session’s baseline already includes raises for many state agencies—including the appellate courts—but their primary ask is for yet more funding to keep pace with inflation and the private sector.
The main non-funding item of discussion for the committee was whether judges are making good use of their discretion (especially in Harris County) and what the legislature needs to do to prevent offenders out on bail from re-offending. There were also several mentions of the State Commission on Judicial Conduct (SCJC) and whether it is an adequate check on the judiciary—which is interesting, considering that a similar agency is being pitched this session for governing prosecutors. Also of interest was a mention later in the hearing of two pending court challenges to the authority of that commission to discipline judges for certain actions—as well as the fact that OAG declined to represent SCJC in those actions—forcing it to hire outside counsel.
On the prosecution front, Comal County CDA Jennifer Tharp briefly testified to thank the committee for fully funding DA apportionment funding, CA supplements, assistant prosecutor longevity pay, and related items. She also received from Chairwoman Huffman a public commitment to continue working on how to help local prosecutors hire and retain adequate staffing. As of now, that help might most likely come through SB 22, the lieutenant governor’s yet-to-be-filed priority issue to increase rural law enforcement funding, perhaps through an increase in DA apportionment funding for personnel costs—but again, none of those priority bills have been filed yet, so the details (such as how much and to whom) remain to be seen. And finally, SB 277 by Huffman (to grant cross-credit service time for elected prosecutors and judges who switch between those roles) has been referred to her own Senate Finance Committee, which is always a good omen.
Across the rotunda, House Appropriations subcommittees were named this week and will get to work next week digging into the details of HB 1, the massive state budget. The subcommittee that will tackle issues important to your work is the Subcommittee on Articles I (executive branch), IV (judiciary), and V (public safety): Mary Gonzalez (D-Clint), chair; David Spiller (R-Jacksboro), vice-chair; Steve Allison (R-San Antonio), Mano DeAyala (R-Houston), and Jarvis Johnson (D-Houston). We’ll report back on their initial work in our next update.
Looking ahead
The Senate started referring bills to committees this week, including several of the bills on “prosecutorial accountability” that we have identified for you in the past, which were all sent to the Senate State Affairs Committee chaired by Sen. Bryan Hughes (R-Mineola). These referrals mean that those Senate committees can hear and vote on bills as soon as next week. However, no notices have been posted by the time this update was distributed, so bill hearings are more likely to begin the week after next. House committees may also start to hold their initial organizational meetings to prepare them for eventual bill hearings, but as of now, no bills have been referred for that purpose; look for that to start happening next week as well.
More bills to watch
Many bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions this week:
- HB 2272 by Swanson requiring a DA to represent CPS if a CA opts out of that representation
- SB 950 by Kolkhorst authorizing OAG to defend a CA or DA against certain federal lawsuits
- SJR 44 by Huffman authorizing the denial of bail for certain violent or sex crimes.
To read these or any other bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format you wish to read it in (PDF, html, or Word).
Austin-bound?
Committee hearings are almost here, so if you are ready to clear your calendar and come to Austin for a few days in March, April, or early May, 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.
Scattershooting
Here are some recent stories you might’ve missed:
- “District attorney Tetens having trouble finding prosecutors willing to accept capital murder cases in the wake of recusals” (KWTX–Waco)
- “As Texas booms, local governments—especially in small towns—struggle to find workers” (Texas Tribune)
- “Who will pay for Texas AG Ken Paxton’s office $3.3M settlement with whistleblowers?” (Dallas Morning News)
- “Proposed amendment to Texas constitution would give judges more discretion to deny bail” (KHOU-Houston)
- “Republicans clash with prosecutors over enforcement of abortion bans” (Politico)
Quotes of the Week
“While Texas made great strides to protect our cities, we must shut and lock the revolving door by passing laws to keep dangerous criminals behind bars. This session, Governor Abbott will work with the legislature to:
- Propose a constitutional amendment allowing judges to deny bail for the most violent offenders
- Pass legislation to hold judges and district attorneys accountable or [sic] reckless decisions compromising the safety and security of Texans”
—Excerpt from the press release issued by the governor’s office after Gov. Abbott’s State of the State Address last night.
“Having a child removed is one of the strongest police actions that we can take. … We have all kinds of checks and balances for getting [put] in jail for any amount of time. Rightfully so. We have checks and balances and we have due process. But child removal? It has due process, but not nearly as consistent.”
—State Rep. James Frank (R-Wichita Falls), as quoted in a Texas Tribune article explaining the basis behind his filing of HB 730 to amend procedures and standards for CPS investigations and lawsuits.
“Mr. Paxton is going to have to come to the Texas House, he’s going to have to appear before the appropriations committee and make a case to that committee as to why that is a proper use of taxpayer dollars. And then he’s going to have to sell it to 76 members of the Texas House. That is his job, not mine.”
—House Speaker Dade Phelan (R-Beaumont), when asked by a reporter if he supported the use of taxpayer dollars to fund Attorney General Ken Paxton’s $3.3 million settlement with four former aides who accused him of misconduct.
“Put yourself in my position: How would I go back to my constituents—some of whose children have been murdered by decisions of judges—and tell them that I’ve put in a budget, and I’ve voted for a bill, giving that person a 20-percent pay raise?
—State Sen. Joan Huffman (R-Houston), chairwoman of the Senate Finance Committee, posing a question to the chairman of Judicial Compensation Committee after he pitched their recommended 23-percent increase in the judicial benchmark salary this session.
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