Called Session No. 1
Legislators re-convened yesterday to start the 1st Called Session of the 87th Legislature. This special session has been called by the governor to tackle the following issues:
- Reforming the bail system “to protect the public from accused criminals who may be released on bail”
- “Strengthening the integrity of elections”
- Border security funding
- “Protecting social-media users from being censored by social-media companies”
- Restoring Article X funding in the state budget for the legislative branch (vetoed by Abbott)
- Dating violence programs for students, but with an opt-out for parents (vetoed by Abbott because of that omission)
- University Interscholastic League (UIL) competitions limited to the student’s sex at birth
- Further limits on abortion-inducing drugs
- An extra TRS payment for retired teachers
- A stronger ban against teaching critical race theory in schools
- Additional funding for property tax relief, foster care, and cybersecurity
Even though all of these topics were debated in bill form during the regular session, everything starts anew in a special session. New bills with new numbers have to run the entire gauntlet of the legislative process again, no matter how close they came to passing in May. However, the compressed schedule of a special session—which can last no more than 30 days—will lead to things being fast-tracked in comparison to the pace of a regular session.
Note that even though the legislature is supposed to focus on issues the governor has placed “on the call”—hence this being the first “called” session after a regular session—many bills are being filed on other matters. Legislation on non-called topics can technically pass if no legislators raise a point of order that the bill is “outside the call.” (Think of it like a pass interference in football—unless the referee calls the penalty, the result of the play stands.) Historically, bills outside the call of a special session almost never pass—especially when the level of partisan dislike is as high as it is right now—but never say never. Therefore, we will read and track bills just like in a regular session, and you can also follow along at https://capitol.texas.gov/ (just be sure to select “87(1) – 2021” as your session before searching for a called session bill).
Curious about any of the rules for a special session? Contact Shannon with a bill number or issue and he’ll let you know what the scoop is.
One thing the Legislature can pass in this special session is bail reform, thanks to it being included in the governor’s call. In the House, those bills have been filed as HB 2 by Smith (R-Van Alstyne) and HJR 1 by Kacal (R-College Station). Identical versions of the House legislation have been filed in the Senate as SB 6 by Huffman (R-Houston) and SJR 3 by Huffman. The joint resolutions would amend the state constitution to allow denial of bail in a few additional circumstances, and they are identical to the final conference committee report version of HJR 4 from the regular session. The bills are the enabling legislation for HJR 1 and many other changes unrelated to preventive detention.
Roughly 90 percent of HB 2/SB 6 is identical to the final conference committee report version of HB 20 from the regular session. In a nutshell, the new language:
- sets a default for release on the lowest bail and least number of conditions needed to ensure reappearance in court and protect public safety;
- requires a “Public Safety Report” to be prepared and referenced by a magistrate prior to setting bail within 48 hours of arrest;
- prohibits the court from taking testimonial evidence at the initial bail setting;
- allows the use of default bail schedules—but only if they contemplate the individualized review required by the bill;
- allows indigent offenders who are denied bail or unable to make bail under a bail schedule to file an affidavit and seek a lower bail amount, which must also be decided within 48 hours of arrest, and any denial of that subsequent request must be explained by a magistrate in written findings;
- prohibits release on personal bond for a list of “violent offenses”;
- prohibits release on personal bond for certain offenses while already out on bond or on community supervision for one of those “violent offenses”;
- limits charitable bail organizations;
- requires a magistrate to consider the defendant’s criminal history and citizenship status and whether the instant offense involves violence (including against law enforcement) when setting bail; and
- requires a clerk to send details of a bond and its conditions to the local prosecutor and to the sheriff or chief of police, one of the latter two of whom must upload them into TCIC.
(Yes, we know that’s a big “nutshell,” but there’s a lot to unpack in this legislation.)
One improvement over the regular session bill language is that proposed Art. 17.027 (Release on Bail of Defendant Charged with Offense Committed While on Bail) no longer requires the bail in a subsequent out-of-county arrest to be set by the judge in the original case for which the defendant is on bond. Instead, it now includes a provision that merely requires information about the out-of-county arrest to be promptly sent to the original court in which the defendant is free on bail so that judge in the original case may reevaluate the bail set in that case. However, one provision that may need continued fine-tuning is an apparent overlap of two different 48-hour hearing requirements that are internally inconsistent. It remains to be seen how interested the special session committees will be in making changes, though.
For starters, the House bill has been filed by Rep. Reggie Smith (R-Van Alstyne), not Rep. Andrew Murr (R-Junction), who has carried that legislation the past several sessions. (Rep. Murr is now the author of HB 3, the new election integrity bill—talk about being thrown out of the frying pan and into the fire!) In addition, the House legislation has been referred to a new Select Committee on Constitutional Rights and Remedies that Speaker Phelan created specifically to handle several hot-button issues this special session. The committee line-up is:
Chair: Rep. Ashby (R-Lufkin); Vice-chair: S. Thompson (D-Houston)
Members: Bucy (D-Austin), Clardy (R-Nacogdoches), Geren (R-Fort Worth), Jetton (R-Sugar Land), A. Johnson (D-Houston), Klick (R-Fort Worth), Landgraf (R-Odessa), Longoria (D-Mission), Lozano (R-Kingsville), Moody (D-El Paso), Neave (D-Dallas), Shaheen (R-Plano), and White (R-Hillister).
That’s 9 Rs (including the chairman) and 6 Ds, for those of you counting at home, with only Rep. Ann Johnson having served on the Criminal Jurisprudence Committee that heard this bill in the regular session. How this new author and committee will impact the language of the bill that eventually gets referred to the full House is unclear, but if you have thoughts about this topic and you have a local legislator who is on this new committee, now is the time to pass that along because things are moving quickly.
Across the rotunda, the Senate bills have been referred to the Jurisprudence Committee, which has heard all these issues during the regular session and which is chaired by the author of this legislation, so we expect fewer fireworks or curveballs in the upper chamber.
The Lege is now operating on expedited “special session time,” so hearings on the bills filed Thursday will be held tomorrow, Saturday, July 10:
- House Select Committee on Constitutional Rights & Remedies – 8:00 a.m., Room E1.030
HB 2 by Smith relating to bail reform
HJR 1 by Kacal authorizing the denial of bail in certain cases
HB 3 by Murr relating to election integrity
- Senate Committee on Jurisprudence – 10:00 a.m., Room 2E.20 (Betty King Committee Room)
SB 6 by Huffman relating to bail reform
SB 9 by West requiring dating violence instruction in schools
SJR 3 by Huffman authorizing denial of bail in certain cases
Much of the language in the special session bills is the same as the most recent versions from the regular session. As a result, the legislation probably faces greater difficulty in the more criminal justice reform-minded House, but as noted above, the lay of the land in the lower chamber has changed in ways that make predictions more difficult.
As to the prospects for these bills … on the one hand, the new House committee could signal a greater likelihood that a Senate-flavored bill focused more on detaining violent or repeat offenders will pass the House, which previously leaned more toward limiting the use of pre-trial detention rather than expanding it (even for violent offenders). On the other hand, the political tension in the Big Pink Building has increased greatly in the wake of the House Democrats busting quorum at the end of the regular session, making it less likely that there will be any type of bipartisanship on most issues taken up in this special session. Republicans may still have the votes to push through whatever they want with regard to statutory bail changes, but any joint resolution to amend the state constitution and allow more preventive detention requires the approval of two-thirds of each chamber, and Republicans lack the numbers to cross that threshold on their own. As a result, HJR 1 and SJR 3 may be starting this special session on life support due to partisanship more than actual policy concerns. Welcome to the sausage-making process.
Both the House and Senate have adjourned until Tuesday. Committees started to meet today on some bills, and more are scheduled to meet tomorrow and into next week. For access to the upcoming hearings on bills other than bail reform, check this calendar of committee meetings by date. And remember, if you want to be heard on any issue taken up during the special session, don’t expect them to wait on you. Engage now or it may be too late.
CJIS reporting and grants
Applicants for FY 2022 grants from the governor’s Public Safety Office (PSO) will soon receive a letter confirming that all applicants are eligible for those grants despite the criminal history reporting challenges presented by the recent pandemic. We’ll leave the details to the letter and merely note here that 1) this is only for FY 2022 grants, so don’t let your guard down on future reporting, and 2) Amy Befeld and others at the Texas Association of Counties did a great job in obtaining this grant of temporary executive clemency for applicants this grant cycle, so be sure to thank them for all their hard work. (As well as Aimee Snoddy and the good people at PSO who granted the request!)
Senate Bill 111 (87RS)
Here’s a note unrelated to the special session.
Following the passage of SB 111 (effective September 1, 2021), which adds Article 2.1397 (Duties of Law Enforcement Agency Filing Case) to the Code of Criminal Procedure, the Bexar County Criminal District Attorney’s Office has created a working group to collaborate with other prosecutor offices on the creation of a uniform, required written statement for law enforcement to use when filing a case. If you are interested in participating, please reach out to the BCDA’s Office directly at [email protected] or 210/335-2736.
Legislative Update CLEs
Speaking of new laws like the one created by SB 111, we’ll be monitoring the special session fun at the capitol while also finalizing our Legislative Update book and online course for launching next month. Course registration has been open for only a week or two, but we’ve already accepted 175 registrations for the in-person course in Rockwall (August 12), more than 300 registrations for the in-person course in Galveston (September 21), and more than 700 registrations for the online course that will go live in the latter half of August. (Registration details are available by clicking any of those links.) All paid registrations include a copy of our 2021–2013 Legislative Update book, so sign up now to guarantee we can ship you a copy early enough to follow along with our speakers as you take the course online!
Some articles that you might find interesting:
- “America’s Pot Labs Have A THC Problem” (FiveThirtyEight)
- “More People Are Buying Guns. Fewer People Are Getting Background Checks.” (FiveThirtyEight)
- “Can Criminal Justice Reform Survive a Wave of Violent Crime?” (The New Republic)
- “Texas House leader creates special panel to craft election, bail-bond overhauls in special session” (Dallas Morning News)
- “As killings tied to defendants out on bond rise in Houston, crime data reveals a crisis in courts” (Houston Chronicle)
Quotes of the Week
“We are seeing a troubling surge in violent crime, such as murder and armed robbery, committed by defendants who some courts have released on bond for new and repetitive offenses. It is preposterous to assert that continuing to release violent and repetitive offenders on bond is somehow not fueling the crime rate.”
—David Mitcham, 1st Assistant D.A. in Harris County, in an article taking a look at the bail challenges in Harris County.