Interim Update: February 2020

February 28, 2020

Best of luck to everyone on the ballot for next week’s primary contests.

DPS crime lab announcement

By now most of you have seen the letter DPS issued last week announcing its plan for how to eat the elephant that is marijuana THC quantification. (Answer: One leafy felony bite at a time, but no misdemeanors and no edibles.) And even that promised testing for felony plant material appears to be slowed once again—first it was to be ready by January, then February, now more like June or July. But we guess that’s a start, at least when it comes to felony-level amounts. Ultimately this problem is one of simple math: Too many cases plus not enough money from the Lege equals no state testing and hard choices for local officials. It’s the definition of an unfunded mandate, but it’s not the first to roll downhill from Austin, nor will it be the last.

As for what to do with evidence in the approximately 80,000 misdemeanor marijuana arrests that occur in Texas every year, our advice might best be summed up as “¯\_(ツ)_/¯.” There may be some creative half-solutions and work-arounds available to you depending on your local resources, but our only rock-solid recommendation is to do the best you can with what you have and try not to get stuck taking the blame for a problem not of your making.

Sexual assault audit

The State Auditor’s Office (SAO) has gone live with its legislatively-mandated survey to collect information from district attorneys’ offices about their processes for screening and prosecuting sexual assault crimes. All felony prosecutors should have received a link by email to complete that survey, but for those of you who have not started the survey, another link reminder will be sent in the coming weeks. If you have not received that link but want to get started on it sooner, please contact [email protected] or call Thomas Mahoney at 512/936-9500. The online survey will be accessible through Friday, March 20, 2020.

Firearm admonition

The Texas Judicial Council met earlier this month and among the items on the agenda was the promulgation of a rule requiring a post-sentencing admonition (in appropriate cases) regarding a person’s ineligibility to possess a firearm or ammunition. The proposed rule can be read here, although it may be further tweaked before final publication and adoption. It remains to be seen how this new judicially-created admonition will work in practice once it is imposed statewide (at a yet-to-be-determined date), but be wary of its potential to create additional post-conviction litigation.

Free mental health books

The Judicial Commission on Mental Health (JCMH) has two FREE publications to share with you:

1) The Texas Mental Health and Intellectual and Developmental Disabilities Law: Selected Statutes and Rules combines relevant civil and criminal law into one code book and is available from the JCMH at [email protected]; and
2) The Second Edition of the JCMH Bench Book has been reprinted and can be requested via that same email address.

But that’s not all!

NAMI Texas also recently published the 6th edition of its Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide by Texas Tech School of Law professor Brian Shannon. As with previous editions of this book, NAMI Texas will use grant funds to distribute free copies to Texas judges, prosecutors, criminal defense attorneys, and others, and the publication is also available for downloading in PDF format at The book was made possible through a grant from the Texas Bar Foundation.

Interim committee hearing recaps

Some observations from interim committee hearings held this month … the Harris County Attorney’s Office appeared before the House Ways & Means Committee seeking the authority to recover tax delinquency collection costs via a proposed fee that would eliminate the need to file a lawsuit first. As you might imagine, that reasonable idea was not popular with several witnesses who have a dog in that hunt and claim that only a private, third-party tax collection firm (like one rhyming with “binelarger”) can do this work effectively, so how that idea fares at the Lege next session remains to be seen. … The House Higher Education Committee heard complaints about the lack of criminal prosecutions for college hazing incidents and hopes that new laws in that area might increase the profile of those cases. … The Senate State Affairs Committee got an update on human trafficking, including testimony from TDCAA President (and Rockwall County CDA) Kenda Culpepper and new staff at the Attorney General’s Office tasked with those duties, in what was a very cordial, collaborative presentation. That committee also took testimony on low-level theft enforcement and heard from Dallas County CDA John Creuzot about the challenges of implementing evidence-based anti-recidivism measures to address that issue and related problems. … And the Senate Transportation Committee considered suggestions to reduce traffic fatalities in Texas, including those caused by intoxication (the second-leading cause of motor vehicle fatalities in 2019) and distracted driving. Among the options presented from other states were mandatory motorcycle helmet laws, automated speed enforcement, and DWI sobriety checkpoints—all of which have been successful elsewhere but are politically unviable here.

Interim committee hearings

Legislative committees have posted notice for the following interim hearings in March:

House Committee on Pensions, Investments, & Financial Services
Monday, March 9, 2020, at 10:00 a.m.
Capitol Extension Room E2.026, Austin, TX
Relevant topics: Implementation of HB 2945 (combatting fuel pump credit card skimmers)

Senate Select Committee on Mass Violence Prevention & Community Safety
Tuesday, March 10, 2020, at 9:00 a.m.
Capitol Extension Room E1.036, Austin, TX
Relevant topics: Potential regulation of stranger-to-stranger gun sales

House Select Committee on Mass Violence Prevention & Community Safety
Wednesday, March 11, 2020 at 9:00 a.m.
Student Center Ballroom, University of Houston, Houston, TX
Relevant topics: Criminal history data and firearms; digital media threat detection; cybersecurity

Senate Committee on Health & Human Services
Monday, March 30, 2020, at 9:00 a.m.
Capitol Extension Room E1.012, Austin, TX
Relevant topics: DFPS placements and terminations; family preservation; community-based care

Use the hyperlinks above for more details about each hearing. If after reading a posted notice you still have questions, contact Shannon for more information.

Crimes Against Children Conference

Online registration for our Crimes Against Children Conference is now open. The course will be held in mid-April at the Omni Westside Hotel in Katy, just west of Houston. For more information or to sign up online, visit

National Computer Forensics Institute Course

Registration for various National Computer Forensics Institute (NCFI) Prosecutor Courses are now available online at These five-day courses focus on digital evidence, computer forensics, and social networks for state and local prosecutors. All costs associated with the course (including travel) are covered through the federal government. The dates for the courses are June 8–13, July 13–17, July 27–31, August 24–28, and September 14–18 for Digital Evidence for Prosecutors (DEP); and September 21–25 for Advanced Digital Evidence for Prosecutors (ADEP). The deadline to apply is March 13, 2020.

Quotes of the Month

“At a minimum, it will affect rural law enforcement—who don’t have the resources for this—and rural prosecutors.”
            —A.J. Louderback, Jackson County Sheriff, on the impact of DPS’s formal decision to not accept misdemeanor marijuana cases for THC testing.

“I’m happy to see higher parole approval rates, but it shows that parole approval is based on whether the state wants to save money—not whether people are good candidates for parole.”
            —Doug Smith, policy analyst with the Texas Criminal Justice Coalition, attributing the recent announcement that TDCJ will close two more prison units to an increase in parole approval rates, or what he terms a “parole kick-out.”

“It’s not a simple answer. That’s part of the problem with some of these questions. You’re forced into a purity test and it’s a yes or no answer.”
            —Glenn Rogers, Republican candidate for an open Texas House seat located between Fort Worth and Abilene, on why he retreated from opposing a ban on so-called “taxpayer funded lobbying” after receiving criticism from certain party activists.

“The sands continue to shift in the politics of the Democratic party. A platform that seemed progressive four years ago now seems outdated and not ambitious enough. … Prosecutors are supposed to be these hard-nosed, cigarette-stubbing, coffee-swilling attorneys who are putting criminals behind bars. A progressive prosecutor seems to be a bit of an oxymoron. But they’re becoming more common in these big urban areas.”
            —Brandon Rottinghaus, University of Houston political scientist, in a Texas Monthly article about the Democratic primary race for Harris County DA.

“Absolutely. I have less confidence in the criminal justice system. … If you can go into a grand jury and you don’t even have to record anything, and then if you happen to lie to the grand jury—if you’re the DA and you lie—there’s no consequence for that, and there’s no remedy for the defendant. … We have, I think, one of the worst grand jury systems in the country.”
            —Ken Paxton (R-McKinney), Texas Attorney General, on a recent episode of Y’all-itics, WFAA’s Texas politics podcast, when asked if his pending criminal case has changed his view of the criminal justice system. (For his full comments on proposed grand jury reforms, start at the 35:20 mark of this video.)

“… I think [being] a prosecutor is an honorable job. I am disheartened that the work is not being portrayed the way it should be.”
            —Jackie Lacey, Los Angeles (CA) DA running for re-election in that county’s upcoming Democratic primary, responding to attacks from certain criminal justice reform advocates in that state.