TDCAA Legislative Update: Week 13, Part I

They say every hurricane has a calm eye where you can find some brief rest, but there are only seven weeks left before the legislature adjourns sine die and we’re still looking for that bit of peace and quiet.

The gloves are coming off

On Tuesday, the “Kumbaya Session” officially ended (at least in the state Senate). On the heels of debates over, and the passage of, two red meat bills on abortion and religious liberty, the Senate Republicans sprang a surprise vote on the Senate Democrats over SR 535, a resolution filed that same day supporting President Trump’s declaration of an emergency along the Texas-Mexico border. This was not an item posted for consideration, and the opponents of the resolution did not take kindly to that unusual tactic. Things were then made worse by some unkind words used about a certain senator’s district (mental note: Don’t refer to someone’s home district as a “ghetto”), and all hell broke loose. The resolution eventually passed on a party line vote after several hours of debate, but the damage has been done. Expect more bare-knuckle politics from here on out.

The Attorney General, concurrent jurisdiction, and human trafficking

This morning, the Senate State Affairs Committee took testimony on SB 1257 by Huffman (R-Houston). The committee substitute that was laid out confers concurrent jurisdiction on the attorney general in all multijurisdictional human trafficking cases, gives the AG the right to take all crimes and offenses related to that human trafficking case, and gives the local prosecutor a right of first refusal for a local human trafficking case—meaning that if the local DA decides not to prosecute the case, the AG can step in and prosecute it.

For the first time in his tenure, Attorney General Ken Paxton (R-McKinney) personally testified for the bill. He talked about his passion for this issue and professed that this bill is only about assisting prosecutors, while entirely avoiding any discussion of the jurisdiction-grab issue. However, citing Office of Court Administration statistics for the proposition that only 16 counties have seen human trafficking prosecutions since 2016, he argued that his office needs the authority to step in to prosecute human trafficking cases where local prosecutors are not.

Speaking against the bill was a diverse group of prosecutors: El Paso County DA Jaime Esparza, Brazos County DA Jarvis Parsons, Bexar County CDA Joe Gonzales, Montgomery County DA Brett Ligon, Harris County DA Kim Ogg and her assistant DA, Johna Stallings, Rockwall County CDA Kenda Culpepper, Comal County CDA Jennifer Tharp, and Dallas County Asst. CDA Amy Derrick (plus several others who registered their opposition without testifying). They testified that: 1) prosecutors are trying human trafficking cases under different Penal Code provisions that are not captured in the statistics; 2) the OCA statistics undercount human trafficking cases because of that (something noted by OCA’s own report); 3) district and county attorneys have a good working relationship with the AG which will be unnecessarily jeopardized by this jurisdiction bill; 4) any grant of criminal jurisdiction to the AG without the local prosecutor’s consent is unconstitutional; and 5) district and county attorneys are prosecuting the human trafficking cases that they get and doing a darn good job of it, too. It was quite a strong showing, and the media even picked up on the debate and observed how opposition to this bill had apparently galvanized prosecutors from both parties. The bill was left pending but could soon be voted on in the Senate State Affairs Committee (membership here) at any time. If that occurs, the bill author needs 19 votes to bring the bill up for consideration on the Senate floor, and we will discuss that process in greater detail should the need arise.

Meanwhile, we just received notice that the House companion to this bill—HB 3979 by Leach (R-Plano)—will be heard in the House Criminal Jurisprudence Committee this upcoming Monday, April 8. If you need more information or want to get involved, please contact Rob ASAP.

Grand jury update

The House Criminal Jurisprudence Committee heard HB 2427 by Reynolds (D-Missouri City) on Monday. This bill would grant grand jury witnesses and targets the right to have a lawyer accompany them in the grand jury room during questioning. Several elected prosecutors—including Midland County DA Laura Nodolf, Washington County DA Julie Renken, Rockwall County CDA Kenda Culpepper, and Dawson County DA Philip Mack Furlow—testified against the bill, and various other offices registered opposition without testimony. The only testimony in favor of the bill came from representatives of the Texas Defender Service (which represents death row inmates in habeas litigation) and the Texas Public Policy Foundation, the Austin policy think tank that birthed the Right on Crime movement. The opposition was relatively uninspired apart from those two lobbyists, highlighting the lack of any grassroots demand for systemic change in this area. We’ll keep you posted if the bill receives a vote in the House Criminal Jurisprudence Committee, but feel free to reach out to the members of that committee if you were unable to register your position in person this week.

And if you were unable to make Monday’s hearing, fear not! You’ll have another chance this upcoming Monday, when HB 2398 by S. Thompson will be heard. This is the omnibus version from last session that not only puts defense counsel in the grand jury room with their clients but also:

  • Provides a right to full discovery for any target subpoenaed to appear before a grand jury;
  • Requires recording of the grand jury proceedings and production to the defense;
  • Requires prosecutors to present exculpatory evidence to the grand jury;
  • Provides notice to witnesses who are subpoenaed to testify to hire counsel or have counsel appointed for them;
  • Bars re-presentment for the same conduct unless there is new material evidence; and
  • Allows grand jury targets to sue prosecutors for vexatious litigation and recover fees and costs—even if indicted.

The hearing on HB 2398 (and more than 25 other bills, including the AG’s human trafficking legislation) starts at 2:00 p.m. or upon adjournment of the House and may run past most normal people’s bedtimes, but who ever said we were normal people? Come down and join in the fun if this bill concerns you.

DRP repeal and replace

The House Homeland Security & Public Safety Committee heard HB 2048 by Zerwas (R-Richmond) that would repeal the Driver Responsibility Program (DRP—aka the DPS surcharges) and replace it with a new $2 fee on auto insurance policies, an increase in the State Traffic Fine from $30 to $50, and—here’s the kicker—a conversion of the current DWI surcharges into mandatory State DWI Fines of $3,000 for a first offense, $4,500 for high BAC cases, and $6,000 for repeat offenders. All other surcharges are repealed, but the DWI “fines” are being kept because that is the biggest revenue generator under the current system.

Supporters of this plan include hospitals, Texas Association of Counties (TAC), and your local county commissioners, sheriffs, and JP and constables associations; opponents include the auto insurance industry, the Texas Association of Business (TAB), and various advocates for indigent offenders. Glaringly absent from the hearing—and from the many stakeholder meetings behind the scenes on this issue—were any of the courtroom lawyers and judges who will be tasked with actually raising these funds off DWI offenders, but our interpretation of this change is that these new fines can be bargained, reduced, or waived in the same manner as any other court cost, fee, or fine. We’ll let you decide for yourself what this switch from an administrative surcharge to a criminal court cost/fine will do to your misdemeanor DWI caseloads, but there is momentum to end the ill-conceived DRP program and this bill has bi-partisan support, so read the bill and let us know what you think.

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

Floor and committee actions, etc.

We’ll update you tomorrow or this weekend on the other bills that are moving—we’ve got some catching up to do with all the craziness going on!

Upcoming committee hearings

Here are summaries of the relevant committee notices posted so far:

Monday, April 8

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.026

  • HB 896 by Tinderholt criminalizing certain abortions
  • HB 1359 by Wu authorizing lawyers to bypass courthouse security upon presentation of a State Bar card
  • HB 1481 by Murr creating the office of Medina County Criminal DA
  • HB 2120 by Leach, the omnibus court creation bill
  • HB 3976 by Leach facilitating civil enforcement of a criminal restitution order
  • HB 4173 by Leach making non-substantive revisions to CCP provisions on grand juries and other statutes

House State Affairs – 10:30 a.m. or upon adjournment, JHR 140

  • HB 3457 relating to attorney fees and litigation cost assessments in PIA lawsuits
  • HB 3531 by Shine clarifying procedures for the recusal of judges and prosecutors in certain investigations

House Criminal Jurisprudence – 2:00 p.m. or upon adjournment, E2.012

  • HB 324 by Murr defining “sexual contact” for improper student-educator conduct
  • HB 464 by Moody expanding post-conviction scientific writs to apply to punishment evidence
  • HB 545 by Nevarez expanding the offense of unlawful transfer of a firearm
  • HB 1231 by Flynn lowering penalties for licensed carrying of a handgun in various locations
  • HB 1316 by Moody authorizing the disclosure of criminal history records in discovery
  • HB 1456 by Dominguez allowing counsel to be appointed for magistration or citation purposes
  • HB 1761 by Coleman granting certain credits for time served
  • HB 2342 by Dutton legalizing “location-restricted” long knives in bars, amusement parks, and churches
  • HB 2344 by Dutton limiting the use of electronic communications as evidence of stalking for purposes of protective order applications
  • HB 2369 by Miller increasing the punishment for theft of delivered packages
  • HB 2398 by Thompson changing grand jury procedures
  • HB 2421 by Smith changing which judges can issue search warrants for wireless communications devices and certain tracking equipment
  • HB 2874 by Y. Davis expanding abandoning/endangering to include the elderly and disabled
  • HB 2875 by Y. Davis expanding guilt/innocence evidence admissible in an exploitation trial
  • HB 3453 by Clardy relating to subpoenas, orders, and warrants for certain location and wireless communication data
  • HB 3500 by J. Gonzalez granting counsel for certain post-conviction writs of habeas corpus
  • HB 3554 by Farrar allowing defense forensic evidence from non-accredited or -licensed witnesses
  • HB 3587 by Hunter increasing the punishment for certain aggravated kidnappings
  • HB 3845 by Calanni authorizing video teleconferencing for forensic analysts’ testimony at trial
  • HB 3979 by Leach granting the AG prosecution authority in human trafficking cases
  • HB 4157 by Anchia expanding the type of law enforcement agencies that may seek tracking and surveillance orders
  • HB 4202 by Smithee authorizing the re-sentencing of any case by consent of the State and defense.
  • HB 4235 by Anderson increasing the punishment for burglary of a business

Senate Water and Rural Affairs – 2:00 p.m. or upon adjournment, E1.012

  • SB 970 by Creighton restricting contingent fee legal contracts by local governments

Tuesday, April 9

Wednesday, April 10

Thursday, April 11

[check our next update for bills set these dates]

If you want to learn more about a bill or find out how to get involved for or against it, contact Shannon for details.

Legislative rotation sign-up

Thanks to this week’s scheduled volunteers, Midland County DA Laura Nodolf and Smith County Asst. Criminal DA Thomas Wilson, for coming to Austin this past week to keep an eye on the legislature for everyone else. (Boy, did they get an eyeful!) We still have volunteer slots open for the rest of this session, so if you want to come to Austin to interact with legislators, contact Shannon for details.

Quotes of the Week

“I do not believe that it is a proper exercise of my judgment … to proceed with the further prosecution of what I believe to have been an ill-conceived path that this District Attorney’s Office was set upon almost four years ago, and I do not believe that path should continue to be pursued.”

Barry Johnson, McLennan County DA, announcing he is dismissing all remaining criminal charges resulting from the 2015 Twin Peaks biker shootout in Waco.

“These [prosecutors] did this on their own: They targeted her and took this on lock, stock, and barrel, and investigated their own case. That’s not what prosecutors do normally. It sends a message to prosecutors across the state and the land: Don’t engage in this type of behavior, because if you do and it blows up in your face, you are going to get sued.”

Scott Palmer, plaintiff’s lawyer for former state district judge Suzanne Wooten, who is suing the former Collin County CDA and former AG (among others) in federal court for maliciously prosecuting an election fraud case. A federal court recently denied the defendants’ motion to dismiss Wooten’s lawsuit on various immunity grounds, allowing the case to proceed.

“This bill has brought some strange bedfellows together, and I’m happy to be in bed with everybody.”

Steve Bresnen, an Austin-based attorney and lobbyist, testifying before a House committee on an anti-SLAPP bill. 

“It felt like the Republicans have been turned French and equipped with a white flag.”

A tweet by Michael Quinn Sullivan, CEO of Empower Texans, during the House debate on the next state debate, which various grassroots conservative advocates lamented for being too large.

“This [bill] has gotten [Harris County] DA Kim Ogg and me on the same page. This is a bipartisan opposition.”

Montgomery County DA Brett Ligon, noting the bipartisan nature of prosecutors’ opposition to SB 1257, the bill that would give independent prosecution authority to the attorney general.