Interim Update: May 2026 Breaking News

There is no offseason in the game of lawmaking.  We have a few updates for you as schools start to close and pools start to open. 

New State Prosecutor?

Yesterday, Governor Greg Abbott held a press conference in Austin flanked by Michael Bullock, President of the Austin Police Association, and newly elected State Senator (and former Montgomery County DA) Brett Ligon, along with several House members standing behind them. Governor Abbott laid out his plans for his new campaign, “Protect Communities, Not Criminals.” The plan has four parts:

• Deny Bail for Illegal Immigrants (see SJR 1, which failed to pass last session)
• Establish a “Texas Statewide Prosecutor”
• Impeach Rogue District Attorneys
• Expand the Texas Repeat Offender Taskforce

We will focus on the statewide prosecutor and the new impeachment proposal. First, Governor Abbott discussed the proposed structure of the as-yet-unnamed statewide prosecutor as he envisions it:

• The statewide prosecutor will be appointed by the Governor and confirmed by the Senate for two-year terms.
• The statewide prosecutor will be independent of the Governor.

The statewide prosecutor will serve as a backstop for local law enforcement and the judicial system.

• The 90-Day Trigger: If a local DA fails to secure an indictment within 90 days of an arrest, the statewide prosecutor will have the authority to step in and handle the case to prevent the automatic release of the defendant.
• Backstop: The statewide prosecutor ensures that police arrests result in prosecution even if the local prosecutorial process stalls.

The statewide prosecutor would serve as a mechanism to counter the practice of local DAs declaring they will not prosecute certain classes of crime. (Something already addressed by the HB 17 “rogue prosecutor” law from 2023, but we digress.) The goals would include:

• Overriding political agendas: In jurisdictions where a DA ignores state laws, the statewide prosecutor would be authorized to bring those charges forward.
• Uniform Application: The intent is to ensure that the Penal Code is applied consistently across all counties, regardless of the political leanings of a local DA.

Left unsaid in all of this is how the new office will be structured in a way that is constitutional. The creation of this office will also likely carry a fiscal note, which complicates a bill’s journey through the legislative process. These are all details that will be revealed in the future.

Impeachment Proposal

Governor Abbott also stated that current methods for removing prosecutors from office are ineffective, including HB 17, the rogue prosecutor bill that was passed in 2023.  Abbott stated that prosecutors are the only elected official not subject to impeachment. However, there are several ways to remove an elected prosecutor. During the discussion of HB 17, we put them in a user friendly memo which you may use to educate those who are unfamiliar with the law in this area. 

Governor Abbott’s proposal would allow the Texas House to bring articles of impeachment against an elected prosecutor, which would trigger the suspension of that prosecutor until the end of the impeachment trial.  Abbott stated that local prosecutors are circumventing the intent of HB 17 through tactical delays and official misconduct that stops just short of the current legal threshold for removal. By moving to an impeachment model, the Legislature gains a more direct and potent tool to remove prosecutors who they believe are nullifying state law through their administrative policies. And if you haven’t already figured out those targets, the DAs that were specifically mentioned included those from Travis, Harris, Bexar, and Dallas Counties (although Travis County seemed to be the main impetus for the proposed changes, which explains the location of this first press conference). 

Interestingly, recent impeachment proceedings against the attorney general highlighted a lot of dissatisfaction with the impeachment process among legislators, so this idea could experience some twists and turns during the legislative process. But perhaps most importantly, everyone agrees that this change requires a constitutional amendment, and that dims its prospects if there is opposition from the minority party in either chamber.

Illegal Entry (SB 4)

Senate Bill 4 from 2023 was scheduled to go into effect today, May 15, 2026, but it has been partially stayed (again). How did we get here and what happens next?

1. The Fifth Circuit Ruling (April 24, 2026)
The law’s path to implementation was cleared late last month when the en banc Fifth Circuit Court of Appeals vacated a long-standing injunction. Crucially, the court did not rule on whether SB 4 is constitutional; instead, it dismissed the primary challenge on procedural grounds, stating that the plaintiffs (which included El Paso County and several advocacy groups) lacked standing to bring the suit. The court’s formal mandate to lift the injunction was set to issue today, May 15, 2026.

2. Today’s breaking news (May 15, 2026)
U.S. District Judge David Ezra held a hearing this week in Austin regarding a new class-action lawsuit filed by the ACLU and the Texas Civil Rights Project. This new suit features different plaintiffs to specifically address the standing issues raised by the Fifth Circuit. Late last night, Judge Ezra issued a preliminary injunction preventing enforcement of most of SB 4. The injunction prevents the enforcement of the following:

• §51.03 Illegal Reentry from a Foreign Nation  
• §51.04 Refusal to Comply with order to Return to Foreign Nation
• Art. 5B.002 Order to Return to Foreign Nation
• Art. 5B.003 Abatement of Prosecution on Basis of Immigration Status Determination Prohibited

3. What part of SB 4 does move forward today?

• §51.02 Illegal Entry from Foreign Nation: Illegal entry other than at a port of entry is now a Class B misdemeanor.
• Art.42A.059 Placement on Community Supervision Prohibited for Certain Offenses Involving Illegal Entry into this State: Probation or deferred adjudication is prohibited for a Chapter 51 offense.

4. No need for a TRO?
In the hearing earlier this week, the AG’s office stated that DPS had not finalized the operational manuals for how troopers will enforce the law so there was no need for a TRO. DPS has not made any statements as of this writing announcing that they are prepared to enforce SB 4. Nevertheless, the judge granted the injunction while the case winds its way through the federal court system again. Note also that this injunction only applies to DPS—however, the issues will be the same in any other attempted prosecution.

We will continue to monitor this situation, but on the off chance that you are presented with an illegal entry case by one of your law enforcement agencies, you should be aware of this litigation to make an informed decision on how to handle it.

Committee Hearing

The House Committee on Criminal Jurisprudence will hold an interim hearing on Tuesday, May 19, 2026, at the Texas Capitol at 10am (official notice available here). The committee will hear invited and public testimony regarding two interim charges focused on rural legal workforce issues and elder fraud. Prosecutors Mike Holley, Montgomery County DA, Philip Mack Furlow, 106th Judicial District Attorney, and Trey Brown, Somervell County Attorney, have volunteered to make the trip to Austin and provide testimony on the need for help from our state law schools in producing the future rural prosecutors of tomorrow, and Amber Moore, an Asst. Criminal DA from Dallas who specializes in elder fraud cases, will provide testimony on that topic. Please let us know if you wish to be heard on these charges and would like to testify in person on Tuesday; if so, we can help you do that.

Quotes

“A person arrested for murder was allowed to get out of jail for a $1 bond. That’s outrageous. And we have to have a state prosecutor who will back stop that type of failure, that type of neglect by a district attorney. And that’s exactly what this state prosecutor would do.”

–Governor -Greg Abbottciting a Travis County case in which the defendant was not indicted within 90 days as one of his justifications for creating a new statewide prosecutor. 

“The statewide prosecutor position that we talked about with the governor is specifically to address the lack of district attorneys appropriately filing charges within 90 days. And this is the part that keeps me up at night and this is the part I can’t understand. And this is why I volunteered to run for this position, to say, ‘I will get under the hood of these DA’s offices and I will tell you how this machinery work.’”

-New State Senator Brett Ligon explaining why he wanted to help the Governor craft the bill to create the state prosecutor. 

“This is a backroom process designed to give prosecutors more control, less accountability, and more opportunities to quietly decide which criminals are held accountable and face consequences and which ones get a free pass. So, they want discretion without accountability. They want control without transparency. And they want the ability to blame everyone else when their policies fail and crime continues to hurt our communities. Time and time again, [the] Travis County District Attorney and County Attorney have chosen the wrong side.”

–Michael Bullock talking about concerns the Austin Police Association has with certain prosecutors’ diversion programs.