Interim Update: April 2022, Part I

April 8, 2022

The action is picking up in Austin, so we will supplement our normal monthly schedule accordingly.

State Bar disciplinary rule discussion

On April 6, the State Bar’s Committee on Disciplinary Rules and Referenda (CDRR) held an online hearing on the newly-proposed ethics rule that would expand current and former prosecutors’ duties under Rule 3.09 (Special Responsibilities of a Prosecutor) to investigate and remedy certain allegations of wrongful convictions. This was the first chance for prosecutors to publicly address the committee (not counting three previous letters submitted by Potter CA Scott Brumley, none of which were publicly acknowledged or discussed by CDRR members before now).

During the committee’s public hearing, nine different prosecutors (listed below*) testified concerning the proposal. While the prosecutor witnesses generally did not object to an additional disclosure requirement if they knew exactly to whom any post-conviction exculpatory or mitigating information must be disclosed, many believed the proposed rule’s new duty to investigate and remedy a potential wrongful conviction would be impractical for their offices and would create problems with conflicts of interest and prosecutorial immunity. In addition, the prosecutors opposed the “cradle-to-grave” proposal requiring former prosecutors to continue to abide by prosecutors’ ethical, constitutional, and statutory duties relating to exculpatory and mitigating evidence after they were no longer serving as prosecutors.

(*Mike Jimerson, Rusk C&DA; Jack Roady, Galveston CDA & TDCAA President; Scott Brumley, Potter CA; Brian Middleton, Fort Bend County DA; Kim Ogg, Harris DA; Lee Hon, Polk CDA; Philip Mack Furlow, Dawson, Gaines, Garza, & Lynn Counties DA; Doug Norman, Nueces ADA; Erik Kalenak, Midland ADA; and Tillman Roots, Comal ACDA. Thank you to those who provided live testimony and everyone else who participated by submitting written comments to help better educate the committee!)

In addition to these prosecutor witnesses, former Ector DA Bobby Bland added his voice in opposition, as did three additional live witnesses: Brit Featherston, United States Attorney for the Eastern District of Texas (on behalf of all four U.S. Attorneys in Texas); Judge Barbara Hervey of the Court of Criminal Appeals; and Stacey Soule, State Prosecuting Attorney. All four persuasively expressed their concerns about the proposed changes and why they did not believe those changes were needed. Other witnesses who provided live comments included Mike Ware, Executive Director of the Innocence Project of Texas, testifying in support of the measure, and two criminal defense lawyers—one who supported it (but still thought the rule needed refinement) and a second who opposed tasking prosecutors with the duty to remedy such matters under the theory that the defense bar is better equipped to do so. And based upon their questions and comments, several committee members seemed appreciative of the succinct and non-repetitive input provided by the witnesses—although we noted that the original proponent of the rule change left the online meeting before it was over and offered no closing comments.

So, what happens next? The committee will reconvene on May 4 and decide what path to take in the wake of this public input, including the many comments submitted online but not discussed at this week’s meeting. To review the agenda, proposed rule, written comments, and the archived video from the April 6 meeting, click here. And for any other information, visit the general CDRR webpage or contact Rob Kepple.

Senate Interim Charges

Texas Senate committees received their interim marching orders from the Lite Guv on April 4. As with the House committee interim charges we discussed in some detail in our previous update, these Senate charges will set the parameters for policy discussions in 2022 as state senators prepare for the next regular session.

Senate Criminal Justice Committee

Topics for study by the primary committee impacting criminal law are:

  1. Review offender re-entry programs in TDCJ and county jails, identify barriers to their success, and recommend improvements
  2. Recommend ways to reduce existing criminal case backlogs, including “an examination of methods developed by district attorneys, judges, and court administrators”
  3. Examine the relationship between illegal temporary paper license plates and crimes related to human trafficking, drug trafficking, theft, and homicide
  4. Determine what actions would help law enforcement stop catalytic converter theft and related crimes
  5. Examine recent IT malfunctions resulting in unreviewed jail releases in Harris County and recommend solutions for ensuring timely magistration and appropriate bonds

Other charges of interest to prosecutors—such as those directed specifically at prosecutors’ authority or role in the criminal justice system—include the following (listed alphabetically by committee):

  • Monitor the agencies receiving border security funding and report on their successes in curtailing transnational crime (Border Security Committee Charge #1)
  • Monitor the implementation of recent bail bond reforms and identify ways to further promote public safety and efficiency (Finance Committee Charge #8)
  • Review statewide forensic and civil mental health service waitlists and recommend ways to reduce waiting times and improve coordination (Finance Charge #12)
  • Study how governmental entities use public funds for political lobbying purposes and make recommendations to protect taxpayers from paying for lobbyists who may not represent taxpayers’ interests (Local Government Committee Charge #6)
  • Evaluate the impact of the CCA’s ruling in Stephens v. State on criminal prosecution in Texas and make recommendations for consistent enforcement of elections laws across the state (State Affairs Committee Charge #1)
  • Make recommendations for reducing the demand for human trafficking in Texas and increasing resources for victims and survivors; examine changes in arrest rates, dispositions, and sentencing resulting from the enactment of HB 1540 (last session’s omnibus human trafficking bill); and examine opportunities for using DTPA actions to combat human trafficking and generate revenue for local law enforcement agencies (State Affairs Charge #4)
  • Study the impact on public safety of some district attorney and county attorneys’ offices policies to not prosecute certain crimes; examine methods by which the legislature may prohibit prosecutors from not prosecuting duly-passed crimes; examine the Attorney General’s authority to act in place of a local prosecutor who fails to prosecute certain crimes (State Affairs Charge #5a)
  • Examine judicial caseloads in Texas’ three largest counties (Harris, Dallas, and Tarrant) with a focus on courts that rarely or never hear cases in order to ensure a fair and equitable division of workload; review pretrial services and bonding practices in Harris and Travis Counties; examine the pretrial release of violent or habitual offenders and the correlating negative impact on community safety (State Affairs Charge #5b)
  • Study the contributing factors leading to fatal crashes and make recommendations to reduce or prevent traffic fatalities and serious injuries (Transportation Committee Charge #1)
  • Study the impact of cattle theft and recommend cost-effective measures to mitigate loss and increase security (Water, Agriculture, and Rural Affairs Committee Charge #8)

The full list of interim charges can be viewed HERE. As you can see, there are some issues that directly impact your constitutional independence and authority, so as committee hearings are announced on interim charges that are relevant to your work, we will update you accordingly. However, if you have a specific interest in a committee’s charges, you might consider tracking that committee’s meeting notices separately on the state legislature’s website using their “My TLO” feature. If you have questions on how to do that, contact Shannon.

Upcoming hearings

Interim charges currently posted for hearings include (click on the link for the full notice):

Tuesday, April 12

House Interim Study Committee on Criminal Justice Reform
3:00 p.m., Capitol Extension Room E2.012
Charge 2(B)(ii): Criminal procedure and due process from initial detention through appeal, including prosecutorial discretion (especially in regard to the application of the death penalty)
(Invited witnesses only; all others must submit electronic comments)

Thursday, April 14

House Criminal Jurisprudence
10:00 a.m., Room E2.010
Charge 4: Improving the availability and performance of indigent counsel
(Invited witnesses only; all others must submit electronic comments)

Tuesday, April 26

House Transportation
12:30 p.m., Room E2.012
Charge 1: Oversee the implementation of legislation, including HB 3927 (87RS, eff. 9/1/21) relating to temporary motor vehicle tags (and other charges)

Tuesday, May 3

House Homeland Security & Public Safety
10:00 a.m., Room E2.028
Charges on law enforcement hiring and training, border security, officer safety, incident crime reporting, and severe weather response and recovery (see the linked notice for full details)

Post-COVID committee changes

One vestige of the limitations imposed by the COVID-19 pandemic that appears to be permanent is committees’ continued acceptance of electronic public comment. In fact, several committees will be limiting live testimony on their interim charges only to witnesses invited by the committee; other members of the public who want to participate in that discussion must submit their comments through the new online portal. You might recall last session (when it was first proposed) that we warned against relying on that new electronic comment option to get your views across, and our follow-up with legislators and their staff after last session has confirmed our belief that submitting online comments is not the most effective way to convey your support or opposition for a policy change. Proceed accordingly.

That’s all for now; look for future updates from Austin as events warrant.

In lieu of our usual article links and quotes to conclude our updates, we’ll leave you with a Master’s Invitational Tournament prediction:
On Sunday’s back nine, the green jacket will come down to … Scottie Scheffler (favorite) vs. Corey Conners (dark horse!).
(For entertainment purposes only; please, no wagering.  😉 )