Recent rains may have provided a good “be careful what you ask for” lesson for some, but we’ll still take what we can get after 51 days without measurable rain in Austin. Meanwhile, our “How hot is it?” challenge from last month’s update brought in some good ‘uns. A sampling:
“It’s hotter than a fresh-run rabbit in a forest fire.”
“It’s so hot, the prisoners refuse bail. They need the a/c.”
“It’s so hot, when I tell people to go to hell, they think it’s a vacation offer.”
That said, we’d be just fine with not having to start a “How wet is it?” contest for next month’s update.
Are you getting the right salary or supplement?
In 2019, the legislature adopted a longevity-based tier system to pay judges and elected felony prosecutors. The county attorney supplement is also now based on that tiered system. This system greatly complicates the work of our friends at the Judiciary Section of the Comptroller’s Office because they now have to keep track of the longevity of hundreds of elected officials. Despite their great work, mistakes can happen, so you may be getting too little in your pay or supplement or too much. For example, we have learned of at least one county attorney who has been getting too much state supplement and now is faced with paying it back. Ouch!
As many of you are in budget season, we suggest that NOW is the time for you to double-check your salary and supplement to be sure it has been calculated correctly. If you have any doubts and want to talk it through, contact [email protected].
Dobbs and prosecutorial discretion
It’s a safe bet that every future legislative update for the next year (or more) is going to include references to policy changes being discussed in the wake of the Dobbs opinion overruling Roe v. Wade. The abortion issue—unlike any other policy issue we’ve seen in our association’s institutional memory—is creating unprecedented discussions about the nature, scope, and locus of criminal prosecution. It is also an issue that, for many policymakers, leads them to ignore (if not downright contradict) their previously-held views on the proper role and reach of criminal prosecution. Accordingly, we will do our best to keep you updated on the very serious conversations that are taking place at the state capitol which may directly affect your jurisdiction and authority as locally-elected county attorneys and district attorneys. (And it is not only Austin where these conversations will take place. This is a national issue, as demonstrated by the recent suspension from office of a Florida prosecutor by that state’s governor.)
For one example of what is coming down the pike, we will refer you to a blog post from earlier this month by the Texas Civil Justice League (TCJL), a well-respected player at the capitol when it comes to civil legal issues. In a blog entry entitled “Proposed ‘Model’ Law Incorporates and Expands SB 8 Cause of Action,” the author discusses some “model laws” being proposed around the nation to expand the scope of civil liability for anyone connected with an elective abortion, in part to wire around local prosecutors who decline to pursue criminal prosecutions for those acts in states that have banned that procedure. These model laws advocate creating another layer of prosecutorial authority—whether it be a state attorney general, newly created multi-county “super DAs,” or new extra-territorial jurisdiction of existing prosecutors—that have previously been considered in the policy areas of election fraud and (to a lesser extent) human trafficking prosecutions. As the post’s author correctly notes, “None of this is the way the criminal justice system is supposed to work”—but that doesn’t mean our legislature isn’t seriously considering it when it comes to issues like abortion and election fraud that, for some policymakers, trump all other substantive and procedural considerations about criminal prosecutions.
So, if you want a glimpse of what your legislators will be asking you about this fall, read that blog post and then peruse the model law that it references, because those proposals (or something similar) are what some of your local state senators and representatives will be debating as soon as next month during interim hearings. (We also have more on this topic in “Quotes of the Month,” below.)
Following up on last month’s excerpts from the Texas GOP platform, the state Democratic party’s platform was approved earlier this month and can be viewed HERE. The policy planks are not numbered, but items of note under the following subject matter areas include:
- Democracy / Voting Rights and Fair Elections: “Clarify legal standards around voter protection and voter assistance to reduce fears of prosecution among county election officials and voter protection volunteers and advocates”
- Democracy / Campaign Finance Reform: “Require candidates and elected officials throughout the state, including local or county officials, to file an annual Personal Financial Statement and disclose their donors’ employment”
- Democracy / Ethics and Transparency in Government: “Establish an office of an independent prosecutor to investigate and prosecute any state-wide elected or appointed official who is accused of unlawful conduct”
- Reducing Gun Violence (lists 11 specific gun-control proposals, such as “extreme risk protective orders,” a repeal of open carry and campus carry laws, and more)
- Criminal Justice Reform / Transforming Policing: “Strengthen independent oversight of all investigations into police conduct by requiring independent prosecutors to investigate questionable officer-involved actions”
- Criminal Justice Reform / Transforming Policing: “Ensure civil asset forfeiture only upon a criminal conviction”
- Criminal Justice Reform / Reforming Court Procedures: “Improve both the quality and integrity of the Texas criminal justice systems by criminalizing intentional prosecutorial misconduct”
- Criminal Justice Reform / Reforming Juvenile Justice: “Raise the age of criminal responsibility from 17 to 18 years of age and end the prosecution of juveniles in adult courts”
- Criminal Justice Reform / Ending “Tough on Crime” Sentencing: “Reduce the number of people entering jails and prisons by eliminating incarceration as a penalty for low-level, non-violent offenses”
- Criminal Justice Reform / Legalizing Cannabis: (Self-explanatory, with this addition …) “Until legalization, eliminate arrest, promote pretrial diversion, and transition to civil fines for cannabis possession offenses in Texas”
- Ending Sexual & Family Violence / Services and Funding: “Expand provider training for all law enforcement, justice system, healthcare, mental health, education, disability services, and social services personnel, including training on treating marginalized populations, using trauma informed treatments, and practicing evidence-based therapies, and mandate periodic completion of updated trainings to meet continuing education licensure requirements”
- Ending Sexual & Family Violence / Accountability: “Require that every county and district attorney’s office in Texas, upon the victim’s qualification and request, file a protective order on behalf of victims and represent the victims before the court”
- Ending Sexual & Family Violence / Accountability: “Place every defendant charged with a family violence crime on either a probation-deferred adjudication or deferred prosecution program and order them to complete a targeted intervention program for perpetrators”
Again, for the full list, access the document at the link above.
Interim committee news
There were more than 20 interim committee hearings this past month. Among those that might be of interest to some of you are the following:
The House Judiciary & Civil Jurisprudence Committee heard invited testimony on appellate court caseloads and discussed potential solutions, including two controversial ideas from 2021: SB 11 (to re-organize the entire appellate system), which failed to advance very far, and SB 1529 (to create a new statewide intermediate appellate court for certain civil cases), which passed the Senate on a party-line vote but ran out of time in the House. The latter idea may get more attention next session, both because of the progress it made in 2021 and because of a new focus in the post-Roe era on civil and administrative enforcements of abortion-related laws, which many legislators do not want to go through Travis County or the 3rd Court of Appeals. For a refresher on these ideas, see our legislative updates from March 30 and April 16, 2021.
The House Juvenile Justice & Family Issues Committee reviewed the current mess that is the Texas Juvenile Justice Department and—shockingly!—no one had any easy solutions to the agency’s woes that didn’t involve massive infusions of state funding.
The Senate Border Security Committee went to the border to hear about the community impact of Operation Lone Star and heard testimony from several local officials, including county attorneys.
The House Corrections Committee heard testimony from the Special Prosecution Unit regarding civil commitments and crimes in TDCJ.
The House Committee on Pensions, Investments, and Financial Services reviewed the actuarial soundness of ERS (state officials and employees) and JRS2 (judges), the latter of which has unfunded liabilities due to the meager pay-in from its beneficiaries and the legislature’s failure to bump contributions when it raised judicial salaries in 2019.
The House Select Interim Committee on Criminal Justice Reform met to discuss juvenile justice issues and recidivism problems, but not much new came of that review.
Interim charges currently posted for hearings in September include (click hyperlink for complete notice):
Thursday, September 8
1:00 p.m., UTGRV Brownsville Campus (see link for further details)
Charges: Reducing Texas road fatalities; truck transportation/supply chain problems; and seaport issues (invited testimony only)
Tuesday, September 13
House Public Health
11:00 a.m., Capitol Extension Room E2.010
Charges: fentanyl-related overdoses and deaths; telemedicine issues; more.
(invited and public testimony)
TDCAA Annual Conference
Registration for our 2022 Annual Criminal & Civil Law Conference in Corpus Christi is still open. If you are looking for a deeper dive into today’s pressing advocacy issues, help with managing your courtroom, or just a chance to catch your breath and broaden your knowledge, this program is for you. We’ve already registered more than 925 people for this huge September conference, but if you and your staff aren’t on that list, click here to see additional details and/or register.
Here are some stories of late that you might’ve missed:
- “Ken Paxton’s legal guidance on public access to ballots contradicts advice his office gave out just five days earlier” (Texas Tribune)
- “Texas can’t ban 18- to 20-year-olds from carrying handguns, US judge says” (Austin American-Statesman)
- “Gov. Greg Abbott appoints officer indicted for misconduct during George Floyd protests to police regulatory agency” (Texas Tribune)
- “Lawmakers decry collapsing Texas juvenile prison system, ask Abbott to call special session” (Texas Tribune)
- “Most Texans support legalizing pot for recreational or medical use, new poll finds” (Dallas Morning News)
- “How Two Mexican Drug Cartels Came to Dominate America’s Fentanyl Supply” (Wall Street Journal)
- “Why are border smugglers trafficking bologna?” (Texas Monthly)
- “Don’t Abort Local Prosecutors’ Discretion” (Washington Monthly) (worth reading despite the cringe-worthy headline)
Quotes of the Month
“If it wasn’t clear already, it’s absolutely clear now that there is no going back to ‘normal.’ There’s no going back to five days a week in the office. You have a real risk if you’re demanding that people come back, you’re going to lose valuable people.”
—Joanne Lipman, author and college lecturer, discussing the nature of the post-COVID workplace on CNBC’s Squawk Box show. (The short video interview at this Twitter link might resonate with some of you having problems hiring and retaining staff!)
“It is unbelievable that the attorney general appears to be giving conflicting advice to election officials regarding something as serious as the security of ballots that have been cast in the election. Nothing relevant has changed in the 30 years the office’s opinion has been in effect—except that the current incumbent is now a leader of the ‘Stop the Steal’ movement.”
—James Slattery, senior staff attorney at the Texas Civil Rights Project, commenting upon conflicting statements from OAG on the public availability of ballots.
“In some areas we were literally competing with Buc-ee’s, and if [an applicant has] a choice to work at Buc-ee’s or work for TJJD with high-risk mandatory overtime ….”
—Shandra Carter, Interim Executive Director of the Texas Juvenile Justice Department (TJJD), testifying before an interim house committee earlier this month about the agency’s severe staffing shortage and the problems that causes.
“I need the Texas Legislature, and I’ll need the governor’s help to come back and pass legislation to address this to continue that fight.”
—Texas Attorney General Ken Paxton (R-McKinney), announcing to the crowd at the national Conservative Political Action Conference (CPAC) in Dallas the first week of this month that he intends to seek a legislative remedy this session to the CCA’s opinion in Stephens v. State that struck down as unconstitutional his authority to independently prosecute election fraud crimes.
“One thing that we’ve unfortunately seen is, there are some district attorneys in some parts of the State of Texas who do not want to enforce the [election] laws. One thing that we can easily do by statute this next session is, we can create a special prosecutor that falls under the component of the constitution that would allow that prosecutor to constitutionally go out and prosecute those cases.”
—Governor Greg Abbott (R-Houston), in response to a podcast host discussing the Stephens opinion and asking,“How would you plan on nullifying this absurd ruling from the Criminal Court of Appeals [sic]?” (The full five-minute discussion from August 11, 2022, begins at the 24:45 mark of this podcast; you can listen to it yourself to hear what other ideas policymakers are discussing behind closed doors right now to circumvent local prosecutors.)