Interim Recap: August 2018

August 31, 2018

Football is back, and all is right with the world.

Don’t get your hopes up yet

That’s our disclaimer before we share this bit of news with you: The Judicial Compensation Commission will soon recommend to the Legislature a 15-percent salary increase for all state district and appellate judges. Their official report won’t be issued until late next month at the earliest, but this raise will be included in the initial Legislative Appropriation Request (LAR) submitted by the Comptroller’s Office to the Legislative Budget Board (LBB) next month. The final price tag for such a raise will be somewhere north of $40 million after adding in everyone who benefits from increasing the annual district judge benchmark salary from $140,000 to $161,000. (You know who you are.) This may or not may not be good news for anyone who might benefit from such a raise—on the one hand, it brings attention to the recent salary stagnation in the judicial branch and shows it to be a priority, but on the other hand, it brings attention to an issue that benefits legislators’ retirement funds and puts them on the hot seat early and often. That latter fact has been one reason why past judicial raises have usually appeared in the state budget only toward the end of a session rather than at the beginning. Time will tell whether this new strategy will pay off, but if you’ve watched this movie before, you know that nothing is final until it is final—as in, May 27, 2019, when the next legislature adjourns sine die. Meanwhile, a joint legislative committee on this topic will meet at the end of September to review the issue further, and we will provide continuing updates as events warrant.

Now, before you move on to the other sections of this update, please go back and read the title of this section. … Got it? Good. You may now proceed accordingly. 😉

Senate report on school violence

The Senate Select Committee on Violence in Schools and School Safety issued its interim recommendations earlier this month. Those recommendations include:

  • “Harden targets” (metal detectors, alarms, cameras, architectural changes, etc.);
  • Consider a minimum training standard for anyone who carries a firearm at a school with permission of the school district (per Penal Code Sec. 46.03), a.k.a. a “Guardian program”;
  • Increase funding for school marshal programs;
  • Increase the availability of school counselors and school social workers; and
  • Clarify whether and when firearms can be returned to a person released from a mental health detention.

As we mentioned last month, the committee followed the lieutenant governor’s lead and declined to recommend the adoption of any kind of extreme risk protective order or “red flag” law. That doesn’t mean the topic won’t still be filed and debated in the House, but barring unforeseen changes in the Senate, don’t bank on that becoming law in 2019.

Other interim committee hearing recaps

The House Select Committee on Opioids and Substance Abuse discussed the impact drug abuse had on the adult, juvenile, and CPS systems, the recent increase in drug cases on misdemeanor court dockets, the current moratorium on new state funding for drug courts (due to a lack of those funds), and whether funding and oversight of specialty courts should be transferred from the governor’s office to OCA, among other subjects. The committee will issue its recommendations no later than November 1, 2018 … The House Human Services Committee also reviewed the impact of substance abuse on CPS-involved children and parents, including a wide-ranging discussion on the pros and cons of recreational and “medical” marijuana … The House Judiciary and Civil Jurisprudence Committee debated the merits of specialty courts and looked into increasing the civil jurisdictional limits of JP and county courts … The Senate Transportation Committee heard testimony about the problem of habitual toll road scofflaws in the wake of legislation passed last session to limit financial penalties for non-payment of tolls (who could have predicted that, right?) … the Senate Veterans Affairs and Border Security Committee heard testimony from the national border patrol officers’ union that they would like their members to be cross-certified as Texas peace officers, an idea that was strongly opposed by various pro-immigration advocacy groups … the House Criminal Jurisprudence and Corrections Committees met jointly to discuss the performance of the state jail system and how to incentivize offenders to enter treatment under pretrial diversion or probation instead of pleading to jail time (short answer: no one has discovered that silver bullet solution yet) … and the House Criminal Jurisprudence Committee also met separately to discuss the pros and cons of using risk assessments as a tool in making pre-trial release decisions, which then led to a re-hashing of the bail reform legislation from last session (guess what, the bail bondsmen still think it is a bad idea). And yes, Chief Justice Hecht and company still think full-blown preventative detention hearings are a swell idea, even though no one at the Capitol wants to put a price tag on it or pay for it. Fortunately, Harris County DA Kim Ogg was an invited witness and she correctly pointed out the false promise of any bail reform measure that doesn’t include adequate funding of detention decisions or pretrial supervision, something prosecutors had to testify to last session as well. (We will provide a more detailed update on this topic as we get closer to the session.)

Future interim hearings

Relevant hearings posted so far for September (with links to official notices) include:

Senate State Affairs Committee

Monday, September 10, at 1:00 p.m., State Senate Chamber
CHARGES: Court costs and fees (appropriateness, collections, etc.); price-gouging during disasters; adequacy of current penalties for looting during disasters.

Senate Criminal Justice Committee

Wednesday, September 12, at 10:00 a.m., State Capitol Extension Room E1.016
CHARGES: Re-entry programs; state jail reforms; human trafficking; offenders with mental illness or intellectual disability.

Joint Committee on State Judicial Salaries

Friday, September 28, at 10:00 a.m., State Capitol Extension Room E1.036
CHARGES: State judicial salary comparables from other jurisdictions and the private sector.

If you have questions about any of these hearings, please contact Shannon for more details.

Judicial Council ideas

The Texas Judicial Council (TJC) asked several of its committees to study various issues over the interim and those committees have now issued their reports (available in PDF format by clicking on these links below). They include some of the following recommendations:

Criminal Justice Committee (20 pages)

  • Create a statewide opioid task force (and collect data for its use);
  • Pass bail reform (SB 1338 was the judges’ bill killed by the bail bondsmen in 2017);
  • Transfer oversight of specialty courts from the Governor’s Criminal Justice Division to the Office of Court Administration (OCA);
  • Develop a statewide case management system to assist with firearm background checks; and several other ideas.

Juvenile Justice (17 pages)

  • Make non-traffic Class C/fine-only offenses by juveniles “civil matters” (like truancy cases) to be handled by JP and muni courts;
  • Administer risk and needs assessments before all non-judicial dispositions;
  • Increase diversion funding to local governments; and at least eight other ideas.

Civil Justice Committee (20 pages)

  • Eliminate partisan elections of judges;
  • Increase age/experience requirements to serve as a judge;
  • Require JPs in larger counties to be licensed attorneys;
  • Create a statewide case management system; and more than 20 other recommendations.

Guardianship, Mental Health, & Intellectual/Developmental Disability (11 pages)

  • Create a new civil commitment option for Class B misdemeanants;
  • Increase state funding for community mental health services; and 12 other recommendations.

Public Trust and Confidence Committee (15 pages)

  • Give courts more flexibility during natural disasters;
  • Mandate sexual harassment training for judges and court staff;
  • Make confidential yet more personal information about judges and their spouses; plus 11 more recommendations.

Data Committee (22 pages)

  • Create a statewide case management system (yes, that’s the third committee to recommend this particular idea, so it will be a priority for the judges next session);
  • Collect more data from local courts; and six other ideas.

There are too many recommendations in these reports to cover each one in detail, so please read the ones applicable to your interests if you want to know what our state’s judicial branch thinks most important this upcoming session. All of these recommendations now go to the full TJC for consideration and eventual adoption. That group has been very active at the capitol under the leadership of Chief Justice Hecht and his right-hand man, OCA Director David Slayton, so don’t be surprised when many of these ideas turn into bills in 2019.

OCA request for input

Speaking of our friends at OCA, they are in the process of revising various felony judgement forms for use around the state and they would like YOUR help with that project. If that interests you, please review the drafts by downloading them from this page of our website and then directing any comments, questions, or suggested edits to Margie Johnson, Asst. General Counsel at OCA, at (512) 936-1183 or [email protected]. If possible, she would like to receive all input before Friday, September 7, 2018.

Hemp oil/CBD

Earlier this month we received a bevy of calls and emails asking us whether we had any updates on the legal status of the over-the-counter CBD oil “health products” that seem to be proliferating around the state. Our short answer is: No. To our knowledge, there has been no change in the (il-)legal status of most CBD-related products since our last update on this topic back in February. If you’ve heard something definitive on this subject either way, please contact Shannon with the details.

Who wants to be on TV?

The producers of a new TV documentary called “Murder for Hire” are seeking cases to potentially be featured on the show. It’s being co-produced by Dick Wolf (creator of the Law and Order series) and Shed Media, who currently produce “Criminal Confessions.” For more details, visit this post on our website.

♫ Galveston, oh-OH Galveston … ♬

If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!

Looking ahead on the training calendar

After the Annual, we’ll only have two major training events remaining for 2018. Here are the details:

Key Personnel and Victim Assistance Coordinator (VAC) Training
November 7–9, 2018
Inn of the Hills Hotel, Kerrville 

Our Key Personnel–Victim Services Board has planned some outstanding workshops for Texas prosecutor staff and victim assistance personnel, so please consider sending your office staff to this excellent training opportunity! For more hotel and registration information, click here.

Elected Prosecutor Conference
November 28–30
Embassy Suites Hotel & Conference Center, San Marcos 

Help us close out another successful year of training by joining us at a new (for the Elected Conference) location in San Marcos. Hotel and registration information can be found here.

Mental health training opportunity

The Texas Tech Law Review and Texas Tech Administrative Law Journal are hosting mental health law symposium on November 16, 2018, in Lubbock, Texas, at the law school. The program will address practical legal and policy issues that can contribute to improvements in our public mental health system and help address the significant challenges faced by law enforcement and criminal justice practitioners with regard to alleged offenders with mental illness. If you think you, your employees, or your local law enforcement officers might benefit from this one-day course, visit this webpage for more details. Attendance is only $30 per person for prosecutors and law enforcement employees and CLE/TCOLE credit has been applied for.

Quotes of the Month

 “[U]nprofessional conduct or acerbic shrillness in the pleadings [may result in] … sitting in timeout in the rotunda of the courthouse and opposing counsel kissing each other on the lips in front of the Alamo with cameras present.”

Warning contained in an order by U.S. District Judge Fred Biery (Western District of Texas, San Antonio), as entered in a civil case alleging fraud and various trade secret violations involving approximately 25 lawyers, as reported by the San Antonio Express-News.

“I want to have the industry step up and be responsible. They have an adversarial relationship with law enforcement, so it’s not the easiest conversation to have, but people are getting hurt, so deal with it. … [T]his is part of being responsible. If you’re going to be in this business you have to deal with all the implications of the business, from cultivation on down to public safety issues.”

Betty Yee, California Controller, after being injured by stoned driver in the aftermath of marijuana legalization in that state.

“I hate the program. This is not me trying to be a social justice warrior … It’s just entrapped, ensnared, so many people that it shouldn’t.”

State Rep. James White (R-Hillister), expressing the frustrations of several legislators who would like to repeal the Driver Responsibility Program but haven’t been able to find another source of revenue to replace the funding it provides to hospitals around the state.

“That’s why we do this job. … I signed up to get justice for victims. It’s one of my proudest moments as a DA to do this.”

Paul Graves, Contra Costa (CA) Asst. DA, on what led him to research decades-old penal laws to find an eligible offense with which to charge Joseph DeAngelo, aka the Golden State Killer, long after the statute of limitations had passed for the sex crimes he allegedly committed.

“What was accomplished this week was accountability.”

Sgt. Michael Mata, president of the Dallas Police Association, describing the opinion of most of his union’s members in the wake of this week’s conviction and sentencing of Balch Springs officer Roy Oliver for the killing of Jordan Edwards, and unarmed teen.

“[I]t was the right thing to do.”

Dallas County CDA Faith Johnson, explaining to jurors why her office charged Roy Oliver with murder for killing Edwards.