Interim Recap: January 2018

January 31, 2018

Thanks to the mapmakers, most of the political action in Texas happens during primary season. That means legislators are currently more focused on their political survival than on policymaking, so there are only a few interim committee hearings to tell you about below. But while we have your attention, we’ll use this election-induced lull in the action to dedicate this update to several non-legislative issues you might find interesting.

Longevity pay for assistant prosecutors

If you attended our Elected Prosecutor Conference last month, you know that the state’s current system for funding assistant prosecutor longevity pay is not sustainable. The revenue source dedicated to that purpose comes from fees on surety bonds that have been decreasing in usage over the past several years while the number of eligible recipients of longevity pay continues to increase (which arguably indicates the program is working as intended, because one of its original goals was to keep qualified, experienced prosecutors in the profession). As a result, this important benefit may be reduced or eventually eliminated altogether unless a new funding mechanism can be established. But before we can discuss fixing that problem, we need to make sure that everyone is aware of how the existing program is supposed to work in practice. To that end, we have posted on our website a short primer on the longevity pay program. Please click on that link to review it and then check with your local office manager, auditor, or treasurer (as appropriate) to make sure your eligible assistant prosecutors are receiving the correct amount owed to them under this program. And if you want to help ensure that program’s continued viability, contact Rob by email or at 512/474-2436.

Help for complying with new TDCJ notification mandate

In response to questions we’ve received about the Legislature’s mandate requiring you to notify TDCJ’s Victim Services Division about certain indictments, we have created a handy one-page list of offenses that may trigger that new duty. For more information, visit the victim services page of our website and download the “HB 104 Notification – list of offenses” PDF.

Proposed State Bar disciplinary rule changes

   In response to sunset review legislation passed last session, the Chief Disciplinary Counsel (CDC) and the Texas Supreme Court have put forth proposed revisions to the attorney disciplinary process and are seeking public comment on them. The proposed changes primarily relate to encouraging earlier resolution of complaints and increasing consistency in the sanctions handed down. Among the many new provisions, two in particular caught our eye. One would create a preliminary investigative hearing, complete with subpoena power for the CDC that can be challenged only by complaint to the grievance committee chairman. The other is the creation of new guidelines for grievance committees imposing sanctions after a finding of professional misconduct—guidelines that are particularly interesting to read with potential spurious allegations of prosecutorial misconduct in mind.

  If this topic interests you, review the full text of the proposed disciplinary procedure rules and submit public comments about them here. The deadline for those comments is Thursday, February 8, 2018, so don’t put it on your back burner and forget about it.

Forensic Science Commission looks at blood spatter science

As some of you may have heard, the Forensic Science Commission is investigating the possibility of formally accrediting the analysis of bloodstain patterns from a crime scene. (Some have argued that bloodstain pattern analysis is already subject to accreditation under prior DPS rules, but the courts have never ruled on it.) For those of you who have contacted us about this development at the behest of some of our friends in law enforcement, rest assured that the Commission is working collaboratively with all interested parties to ensure the continued validity and reliability of this useful forensic evidence. One of the members of subcommittee looking into this issue is Brazos County DA Jarvis Parsons, who is doing all of you a great service in representing our profession on this issue. If you have further questions about this topic, contact Jarvis or Shannon for more details.

Interim legislative committee hearings begin

The first relevant interim hearing of the new year was to be on the death penalty, but Austin’s 2018 Icepocalypse forced it to be re-scheduled for a later date. As a result, the only other relevant hearing occurred yesterday when the Senate Finance Committee reviewed the infamous Driver Responsibility Program (DRP, aka the DPS surcharges). The hearing included a presentation by the Legislative Budget Board (available here) and related discussions about how to pay for trauma care and road construction—the two dedicated purposes for the surcharge funds—by a means that won’t lead to millions of driver’s license suspensions. It was the same debate that’s been heard under the dome for 15 years, and at the end of the day, nothing new came up. There was some discussion of HB 2068, the bill from last session that would have replaced the DRP with criminal court fines assessed as part of the criminal case. That bill passed the House late in the session but received little attention in the Senate. However, the concept received a more thorough vetting from the state’s budget writers in this hearing, including a discussion of the problems inherent in relying on the courts—and their newly-granted discretion in collecting fines, fees, and costs—as a reliable source of guaranteed revenue. This uncertainty bothered some members of the committee when compared to the current DRP system, which consistently brings in about $150 million per year for the state despite collection rates of only around 40 percent. For now, the issue is likely to remain in limbo until the committee issues its recommendations at the end of the year, but barring divine inspiration, we don’t expect any easy solutions to this problem as we head into another tight budget session.

Future interim hearings

Hearings posted for February include:

House County Affairs

Tuesday, February 6, at 9:15 a.m., in Houston (UH-Downtown Campus)
CHARGES: Hurricane Harvey; flooding in unincorporated areas of counties; implementation of the Sandra Bland Act (SB 1849).

House Transportation

Thursday, February 8, at 9:00 a.m., Capitol Extension Room E2.012
CHARGES: Overweight permitting; technology advances in transportation (autonomous vehicles, drones, etc.).

Senate Transportation

Wednesday, February 21, at 9:00 a.m., Capitol Extension Room E1.028
CHARGES: Port investments; highway naming; best practices for combatting human smuggling.

Senate State Affairs

Wednesday, February 21 at 10:00 a.m., Senate Chamber
CHARGES: Religious freedom; “Examine the Attorney General’s jurisdiction on issues of alleged violations of state laws regarding abortion and multi-jurisdictional human trafficking cases. Make recommendations to ensure uniform enforcement across the state.”

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

New player in prosecutor elections?

We’ll finish with this little item of interest. As we mentioned a few months ago, the election of President Trump has been a financial windfall for various groups like the ACLU that generally reside on the opposite side of the political aisle. One way the ACLU has decided to spend the tens of millions of new dollars they now have in the bank is to get more involved in local prosecutor races under the guise of voter education. For an example of what that looks like in a current race, check out The link is certainly not what an unsuspecting person looking for the actual DA’s website might expect based on that URL, but perhaps most interesting is that it includes the results of a candidate survey containing 27 yes/no questions that highlight the ACLU’s wide-ranging policy goals in criminal justice (a completed sample of that questionnaire can be found here, as returned by one of the candidates in that race). Some of you may want to check that out to get a head start on studying up for your potential new pop quiz!

Quotes of the Month

“The fact is that crime dropped in America dramatically from the 1990s, and there aren’t really good, clean, nationwide explanations for it.”

Bernard Harcourt, Columbia University law professor, in an NPR story on the successes and failures of the “broken windows” theory of policing.

“We have gone from governing first and campaigning second to campaigning first and governing second. When you run the place based on campaigning, you do it for party, while governing is about the people.”

State Rep. Harold Dutton (D-Houston), when asked how Speaker elections in the Texas Legislature have changed over his three decades in that chamber.

“What I will miss least is the current polarization and common refusal to listen to or respect others’ ideas.”

Congressman Sam Johnson (R-Plano), commenting upon his impending retirement; read this Politico article for other responses from various Congress members who are leaving.

“I’ll miss least the people who have no discernible political principles. I’ll miss most the people who do.”

Retiring Congressman Jeb Hensarling (R-Dallas), from that same article.

“The whole video has a feeling of, ‘Let’s quick[ly] minimize liability on every front—watch this video.’”

Joanna Grossman, SMU law professor, after reviewing the new sexual harassment training video for Texas House members and staffers.

“That would break us. The impact would be enormous.”

Camille Cain, new TJJD Executive Director, when asked whether the juvenile system could handle an influx of 20,000 additional 17-year-olds per year if “Raise the Age” legislation passes.

“I want to kill them.”

Contents of the note Justice Sotomayor says she sometimes shares with her peers when a criminal defense lawyer performs poorly in oral argument.

“If you get into a biting competition with a police dog, you’re not going to win. They’re pretty good at that.”

Lt. Jason Killary, Boscawen (NH) Police Department, referring to a fleeing suspect who bit the police dog used to apprehend him. (Don’t worry, the K9 was uninjured and soon returned to duty.)

“Lots of times, external things beyond your control impact your race. The farther down the ballot you are, like I am, the stronger that is.”

State Rep. Tony Dale (R-Cedar Park), as quoted in a story looking at three legislative swing districts in the Dallas, Fort Worth, and Austin areas.

“I’ve never sought any other political office and, frankly, being the DA is a terrible way to do it. You piss off too many people either by prosecuting them or not prosecuting them.”

Josh Marquis, the Clatsop County (OR) prosecutor who recently announced his retirement, on why he never ran for higher office.