Interim Update: July 2022

July 28, 2022

“It’s so hot, the cows are giving evaporated milk.”
“It’s so hot, I saw a dog chasing a cat and they were both walking.”
“It’s so hot, the birds are using oven mitts to pull worms out of the ground.”
“It’s so hot, the trees are whistling for the dogs.”

What’s your favorite “Texas heat” expression? Send it our way and maybe we’ll run it next month if we still haven’t had any relief from this accursed weather.

Dobbs update

The U.S. Supreme Court mandate in Dobbs was issued on Tuesday, July 26. The state attorney general’s office has updated its suggested guidance following the mandate’s issuance, noting that the new criminal, civil, and administrative sanctions applicable to certain elective abortions under HB 1280, aka Texas’s “trigger law,” will take effect on August 25, 2022. For those interested, that full advisory is available HERE.

We have also amended our previous update on Dobbs and related issues to reflect this new effective date. To read that updated version of “Abortion-related crimes after Dobbs,” click the link.

99 problems but the budget ain’t one

Your pocketbook might be hurting right now, but the State of Texas is flush. A combination of record high sales tax receipts (some of which can be attributed to inflated consumer prices), massive increases in oil and gas tax revenues, continued infusions of federal pandemic-related dollars, and other increased revenue sources is expected to result in a surplus of nearly $40 billion for the next legislative session. Even after the Comptroller skims off a third of that bounty for the state’s Rainy Day Fund (as mandated by state law), budget writers should have $25–$30 billion (with a “b”) more to appropriate for various purposes than they had last session.

That’s all fine and dandy for state agencies, of course, but those of you with an eye toward convincing the Lege to divert some of that abundance to local prosecution must remember that your business is largely a local concern, even if most of your cases proceed “in the name and by the authority of the State of Texas.” However, there are some aspects of your job that the State has traditionally helped with, and the current prosecutor recruitment and retention crisis could certainly be eased with more of that kind of state help. To that end, TDCAA President Jack Roady (Galveston County CDA) appointed a committee chaired by 46th Judicial DA Staley Heatly to research and recommend ways in which the Lege might help shore up the compensation issues that adversely impact both elected and assistant prosecutors and other staff. Look for more updates in the coming months discussing the fruits of that committee’s work, along with details on how the general TDCAA membership can be most effective in strengthening prosecution in our great state.

LBB projections

As part of their duties, the good people at the Legislative Budget Board (LBB) try to divine the state’s future incarceration needs to help budget writers plan accordingly. That process involves both quantitative (objective number-crunching) and qualitative (subjective context) research, the latter of which some members of our Legislative Committee recently helped with. The results can be found in their latest report, Adult and Juvenile Correctional Population Projections (FY 2022–27). Interesting facts from that report include the following:

  • Adult arrests in Texas decreased 33 percent from 2017 to 2021
  • TDCJ admissions declined 35 percent from 2017 to 2021 (despite an increase in 2021)
  • Juvenile arrests decreased 54 percent from 2017 to 2021
  • TJJD admissions declined 33 percent from 2017 to 2021 (despite an increase in 2021)
  • The average length of stay for someone released from TDCJ in 2021 was 986 days (2.7 years)
  • The average length of supervision for someone released from parole supervision in 2021 was 1,081 days (2.9 years)
  • The average length of supervision for someone released from community supervision in 2021 was 1,462 days (4 years)

Peering into their crystal ball, the LBB prognosticators think TDCJ prison and parole and probation numbers will all increase over the next five years as courts work through their COVID-induced backlogs, but they predict misdemeanor probation caseloads will continue to decrease. However, as with the Comptroller’s revenue projections discussed above, the LBB will update these incarceration projections in January 2023, and it will once again be seeking input from judges, defense lawyers, and prosecutors for the qualitative context needed to make accurate projections. If offered an opportunity to participate in that process, please consider doing so.

Party platforms

We’re old enough to remember when no one at the capitol knew or cared what was in either political party’s platform because their planks rarely turned into actual policy. But that has changed over the past decade or so, and it now behooves everyone to follow such developments.

The state Republican party’s platform was approved earlier this month and can be viewed HERE. Items of note include:

  • Plank 22: “Dereliction of Duty: The failure by a public official to discharge any duty shall be a violation of the terms of his or her oath of office, which shall constitute a crime, and upon conviction, this crime shall be punishable by a fine or imprisonment, depending on the nature of the offense. …”
  • Plank 35: “Unfunded and Under-Funded Mandates” (supporting full state funding of indigent criminal defense, jail inmate healthcare, indigent burials and autopsies, and more)
  • Plank 40: “Practice of Law” (opposing mandatory State Bar membership, limiting standing for the filing of grievances, and supporting sanctions for those who misuse the Bar’s legal disciplinary process)
  • Plank 79: “Gambling” (they agin’ it)
  • Plank 159: “Addiction” (opposing legalization or decriminalization of drugs, including marijuana per Plank 227)
  • Plank 173: “Civil Asset Forfeiture” (supporting its abolishment and requiring a criminal conviction before forfeiture)
  • Plank 178: “Raise the Age” (supporting an increase in the age of criminal responsibility from 17 to 18 years of age)
  • Plank 183: “Court Accountability” (supporting jury nullification instructions; opposing policies by district attorneys “that systematically decline to prosecute crimes”)
  • Plank 187: “Human Trafficking Jurisdiction” (in favor of granting OAG “full concurrent jurisdiction over multi-jurisdictional [human trafficking] cases”)
  • Plank 188: “Rule of Law Enforcement: We support rule of law and enforcement of laws, which maintain an ordered republic. We call for independent prosecutorial authority to prosecute crimes that maintain order (such as sedition, riot, official oppression, election integrity, etc.) to be delegated to a statewide officer such as the Attorney General. We oppose the December 2021 opinion of the Court of Criminal Appeals in State v. Stephens, which was judicial activism, and encourage the Court to reconsider this ill-advised opinion. We call on the Legislature to ensure that election crimes will be promptly prosecuted, even in counties with progressive district attorneys.”
  • Plank 196: “Political Policing: We believe that laws should be enforced uniformly, that punishment should meet the crime, and that law enforcement should never be used to target individuals for political purposes. We oppose the targeting of police officers by progressive district attorneys. We support automatic and prompt expunction of law enforcement officials’ records who are found not guilty in a court of law regarding job-related actions.”
  • Plank 226: “Prosecution of Election Fraud: We urge the passage of a constitutional amendment that gives the Texas Attorney General concurrent jurisdiction to prosecute election fraud along with the county District Attorneys.”
  • Plank 232: “Tax-Funded Lobbying: We oppose using tax dollars to hire lobbyists or paying tax dollars to associations that lobby the Legislature.”

For the full list, you can access the document at the link above.

As for the state Democratic party, its convention ended a few weeks ago without any platform being issued, but one is supposed to be in the works, so we will share anything interesting or relevant from it (if it is ever completed).

Interim committee news

The House Human Services Committee reviewed the current status of the state hospital system and … lather, rinse, repeat. (For a more urgent verdict on the current state of that system, read the Dallas Morning News story under “Scattershooting.”)

The Senate Finance Committee examined the effectiveness of Operation Lone Star—including the role the Border Prosecution Unit has played to date—and then reviewed the effectiveness of the bail bond reform legislation (SB 6) passed during last year’s second special session. There was bipartisan support for strengthening the public safety aspects of the new law. Thanks to Tonya Ahlschwede (452nd Judicial DA), Kim Ogg (Harris County DA), David Mitcham (Harris County First Asst. DA), and Jennifer Tharp (Comal County CDA) for providing helpful testimony to the committee on those issues.

The House Appropriations Committee reviewed the health of Crime Victims Compensation funding and related funds to support sexual assault survivors, with pledges from some on the committee to continue to supplement revenue gaps with general revenue funding where possible.

The House Public Education Committee met to discuss various issues that included truancy and attendance accountability in the wake of the Uvalde school massacre. Among the proposals put forth by witnesses was one from the JP and Constables Association to remove the requirement that only prosecutors can initiate civil truancy actions.

Upcoming hearings

Interim charges currently posted for hearings in August include (click link for complete notice):

Monday, August 8
House Homeland Security & Public Safety and House Youth Health & Safety (Select Committee) (joint hearing)
9:00 a.m., Room E1.030
Charges #4 (role of online communications in mass violence scenarios) and #5 (youth mental health services)
(invited testimony only)

Tuesday, August 9
House Juvenile Justice & Family Issues
10:00 a.m., E2.014
Charges #1 (TJJD oversight), #4 (juvenile probation and incarceration resource allocation), and #5 (juvenile facility workforce issues at the state and local level)
(invited and public testimony)

Wednesday, August 10
Senate Border Security
8:30 a.m., Eagle Pass, Texas (click link for more details)
Charge #2: Study the community impact of Operation Lone Star
(invited and public testimony)

Tuesday, August 16
House Pensions, Investments & Financial Services
11:00 a.m., E2.030
Charges #2 (actuarial soundness of ERS), #4 (actuarial soundness of LECOS and JRS Plan 2), others
(invited and public testimony)

TDCAA Annual Conference

Registration for September’s Annual Criminal & Civil Law Conference in Corpus Christi is now open. From jail standards to the ethics of plea-bargaining, this year’s event has something for everyone. 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, this event is for you. We’ve already registered more than 600 people, so if you aren’t one of them, don’t get left behind! Click here to register and see additional details.


Here are some interesting stories that you might’ve missed:

  • “Love Field shooter ‘perfect example’ of mental health treatment crisis” (Dallas Morning News)
  • “How San Francisco became a failed city (and how it could recover)” (The Atlantic)
  • “The Waco Biker Shootout Left Nine Dead. Why Was No One Convicted? (New York Times Magazine)

Quotes of the Month

“I round it down to $40 billion.”
            —Texas Comptroller Glenn Hegar (R-Katy), announcing his agency’s updated revenue estimate for next session’s budget writers.

“We have very few rules when it comes to campaign finance in Texas, and the few that we do have are not enforced, clearly. What’s the point of even having the rules?”
            —Anthony Gutierrez, executive director of Common Cause Texas, as quoted in a Houston Chronicle story about the attorney general’s refusal to enforce more than $700,000 in fines assessed against political candidates by the Texas Ethics Commission.