TDCAA Legislative Update: 88th Regular Session, Week 7

February 24, 2023

Today marks the completion of the first third of the 140-day 88th Regular Session. We hope you enjoyed the languid pace of the session to date, because next week things get real.

Needs and wants

Some of the dust has settled from the governor’s State of the State Address that we reviewed last week so we can now divide the policy initiatives he mentioned into official emergency items (“needs”) and unofficial policy initiatives (“wants”). In the first “official” category are property tax relief, COVID-19 mandate prohibitions, school choice, school safety, bail reform, border security, and fentanyl. These are the policy areas in which the legislature can officially act now rather than having to delay voting until after March 10 (and as you will see later in this update, some committees are scheduled to take up bail- and fentanyl-related bills next week). Conversely, there are several other policy initiatives that were mentioned in the governor’s speech and/or press releases—including prosecutorial accountability—that are not in the official list of emergency items. These topics now go into the “priorities but not emergencies” pile. Similarly, we are still waiting to see language for SB 20, the lite guv’s priority legislation to “remove DAs who refuse to follow Texas law.” If you have thoughts or feedback on this topic that you haven’t yet shared, consider touching base with your regional director prior to our quarterly board meeting next Friday—this issue will surely be a topic of discussion there, and your feedback is important.

The “DeSantis Option”?

Yet another new iteration of “prosecutor accountability” legislation was filed this week. On Wednesday, State Sen. Brian Birdwell (R-Granbury) filed what we might call the “DeSantis Option” because it appears to follow the process used by Florida Governor Ron DeSantis to remove a Florida prosecutor from office (something he touted on the pre-presidential campaign trail earlier this week at an appearance in New York or Chicago or some other Yankee metropolis, we can’t keep up, sorry).

The “DeSantis Option” filed by Sen. Birdwell is a two-step legislative process: First, SJR 60 would amend the state constitution to authorize a governor, by executive order, to suspend any state or local official who is either convicted of a felony or who “willfully neglects the duties of office” or who “publicly declares that the officer will not enforce the laws of this state.” The suspended official would then go before the state senate, which could remove or reinstate the official by a simple majority vote (as opposed to the two-thirds majority required for all other removals or impeachments by the state senate). The second step to implementing this new removal option is SB 1105, the statutory enabling language to govern how that process would work. (Although as far as we can tell at this stage, it’s short and sweet: governor suspends, majority of senate removes [or not], and that’s that—no appeal, do not pass Go, do not collect $200.) Oh, and all of this would be in addition to existing removal laws; those are not repealed.

The key thing to know here is that the enabling bill can take effect only if SJR 60 passes both chambers of the legislature with two-thirds approval and then gets the support of a majority of voters as a statewide proposition in November 2023. This is necessary because the state constitution currently does not permit local officials to be removed from office absent a jury trial. If such a system were to become law, though, there would be little standing in the way of a governor and a partisan state senate from suspending or removing any local officials with whom they found fault.

Judiciary budget

The House Appropriations Subcommittee overseeing judicial branch funding took up that topic yesterday. On those items most relevant to your work, 46th Judicial DA Staley Heatly testified to the importance of continued funding for prosecutor salaries and related office funding items and thanked the subcommittee members for their continued support.

In other news from that hearing, some subcommittee members took a particular interest in the need for the State Commission on Judicial Conduct (SCJC) to request additional funding to defend itself against two lawsuits in which OAG has declined to represent them. Further questioning revealed that OAG has declined to represent SCJC—for perhaps the first time in that commission’s history—in litigation that would uphold its authority to sanction judges who violate judicial impartiality rules by publicly declaring that they will not conduct same-sex marriages. Coming on the heels of news last session that OAG declined to represent the Texas Ethics Commission (TEC) in certain lawsuits and had also declined to collect certain ethics fines assessed by that agency, this latest news may set the stage for some interesting questions during the debates over elected officials’ enforcement discretion later this session.

Committee news

Non-budget-related committees started to meet this week, the most notable for our purposes being the House Criminal Jurisprudence Committee, which held its organizational meeting on Tuesday. In addition to hearing testimony from invited witnesses about the criminal justice system in general, the committee chairman—State Rep. Joe Moody (D-El Paso)—made the following announcements:

  • A Subcommittee on Criminal Procedure will hear bills amending procedural laws in the CCP (duh). Members: Rep. Bhojani (D-Euless) (F), chair; Bowers (D-Rowlett), Cook (R-Mansfield).
  • A Subcommittee on Asset Forfeiture will … yeah, you get it. Members: Rep. Harrison (R-Midlothian) (F), chair; Christina Morales (D-Houston), Schatzline (R-Fort Worth) (F).

In other committee news, Speaker Dade Phelan announced the formation of the new House Select Committee on Community Safety that will have jurisdiction over bills related to firearms, ammunition, and related criminal offenses and penalties. Members of that new committee are: Rep. Guillen (R-Rio Grande City), chair; Jarvis Johnson (D-Houston), vice-chair; Bowers (D-Rowlett), Burrows (R-Lubbock), Canales (D-Edinburg), Dorazio (R-San Antonio) (F), Goodwin (D-Austin), Harless (R-Spring), Holland (R-Rockwall), Tracy King (D-Uvalde), Landgraf (R-Odessa), Moody (D-El Paso), and Troxclair (R-Lakeway).

Future committee hearings

Each week we will try to highlight for you certain bills scheduled to be heard in certain committees. The volume of bill hearings will be mind-boggling, so we have to pick and choose what we pass along (for both your sanity and ours). But remember, the committee process is where the public can be most directly involved in the legislative process and, not coincidentally, where most bills die—either due to the lack of a hearing or a failure to get the necessary approval after being heard. In other words, this is where the rubber meets the road for most legislation.

With that in mind, here are some of the bills posted for committee hearings next week (click on the committee name for the full agenda and additional details, including hyperlinks to the bills’ webpages):

Monday, February 27

Senate State Affairs Committee – 11:00 a.m., Senate Chamber

  • SB 2 by Hughes increasing the criminal penalty for illegal voting
  • SB 559 by Hughes limiting State Bar restrictions on lawyers’ constitutional rights
  • SB 599 by Birdwell relating to district clerks carrying handguns
  • SB 578 by Zaffirini expanding confidentiality for protective order applicants

Tuesday, February 28

House Criminal Jurisprudence – 10:30 a.m., E2.016

  • HB 178 by Murr relating to testing possible controlled substance evidence for fentanyl
  • HB 188 by Moody changing jury instructions and sentencing procedures in a capital cases
  • HB 218 by Moody lowering penalties for marihuana & THC and related changes
  • HB 247 by S. Thompson granting subsequent writs in certain felony cases
  • HB 270 by S. Thompson granting expanded postconviction forensic DNA testing
  • HB 286 by S. Thompson creating a new non-scientific evidence subsequent writ
  • HB 381 by S. Thompson barring the death penalty for a person with an intellectual disability
  • HB 393 by Goldman authorizing restitution for the support of a child whose parent or guardian is a victim of intoxication manslaughter
  • HB 469 by Smith changing procedures for jury sequestration in criminal cases
  • HB 513 by Metcalf increasing penalties for delivery of a controlled substance that causes death
  • HB 598 by Shaheen creating an offense for possession of an animal by a person who has been previously convicted of an offense involving animal cruelty
  • HB 611 by Capriglione creating a criminal offense for doxing

Wednesday, March 1

Senate Criminal Justice – 8:30 a.m., Room 2E.20 (Betty King Room)

  • SB 287 by Huffman expanding the scope of felony terroristic threat
  • SB 402 by Whitmire granting docket preferences to murder and capital murder proceedings
  • SB 645 by Huffman relating to criminal penalties for fentanyl
  • SB 1004 by Huffman creating a criminal offense for tampering with an electronic monitoring device
  • SJR 44 by Huffman proposing a constitutional amendment authorizing the denial of bail for certain persons accused of violent or sexual offenses


Over the past week we have reviewed more than 600 new bills so that you don’t have to. (You’re welcome!) That said, that are some bills that may deserve your attention at this early stage, so we’d encourage to take ~20 minutes to read and familiarize yourself with these bills in case they start to move this session (To read these or any other bills, visit 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)):

  • HB 2527 by Dutton codifying proposed changes to State Bar ethics Rule 3.09
  • HB 2543 by Raymond creating a conviction integrity unit within OAG
  • HB 2734 by Murr granting cross-credit service for judges and prosecutors for salary purposes
  • SB 1045 by Huffman creating a statewide intermediate appellate court for certain cases
  • SB 1092 by Parker granting SCOTX the authority to overrule a TXCCA ruling that a state statute is unconstitutional
  • SB 1105 and SJR 60 by Birdwell authorizing the governor to suspend and the state senate to remove elected officials who neglect to or publicly declare they will not enforce the law

Many other 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 above as well as other bills we have highlighted in these weekly updates.


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.


Here are some recent stories you might’ve missed:

  • “In the Hill Country, a new state psychiatric unit stays empty while waitlists swell” (Houston Chronicle)
  •  “Power struggles between state and local officials escalate in Texas—and across the nation” (KERA News)
  • “Republicans take aim at elections and how Texas conducts voting, prosecutes voter fraud” (Dallas Morning News)
  • “Tug-of-war between Denton voters and city officials continues over pot ordinance” (Dallas Morning News)

Quotes of the Week

“Anything that is considered gun control is dead on arrival. In terms of school safety, the focus is going to be almost exclusively on hardening the schools in terms of more money for installing modern security.”
            —Mark Jones, political science professor at Rice University, quoted in a Texas Tribune story about school safety in the wake of news that an elementary school student found in a school bathroom a handgun that had been left behind by the school district superintendent.

“Local cases deserve to be heard by local judges, but cases with statewide implications—like those involving the state or state agencies—deserve to be heard by judges who are accountable to voters statewide. The new 15th Court of Appeals will help equalize dockets on our existing appellate courts and allow judges to apply specialized precedent in complex subjects like administrative and constitutional law, while giving Texas voters oversight of a court that handles critical matters for the entire state.”
            —State Sen. Joan Huffman (R-Houston), in her press release announcing the filing of SB 1045 to create a new statewide intermediate court of appeals.

“The Supreme Court [sic] said the attorney general cannot prosecute voter fraud. It’s got to be the DA. So, if they want to turn a blind eye, or just not do it, whatever the reason may be, the attorney general can say, ‘Why aren’t you looking into it?’ It adds checks and balances to the process.”
            —State Rep. Bryan Slaton (R-Royce City), as quoted in the Dallas Morning News giving his reason for filing HB 125 authorizing the attorney general to sue and/or remove local prosecutors who decline to enforce election law crimes. (The case to which he referred is the Stephens opinion by the Court of Criminal Appeals.)

“We’re not going to delay bills there’s been a solid consensus on in the past. For new members: Trust me, it’s better to get to the House-versus-Senate fight as early as you can.”
            —State Rep. Joe Moody (D-El Paso), chairman of the House Criminal Jurisprudence Committee, announcing at the committee’s organizational hearing his plan to accelerate the passage of criminal justice reform legislation that has passed the House in past sessions but died in the Senate.