The party finally ended at the Texas Capitol, and it signaled the opening of spooky season (also known as election season). It is time to vote on 17 potential constitutional amendments, including bail reform. The amendments will get treats instead of tricks, as most will become law. The Texas Constitution will get its normal costume change as it has been amended more than 500 times since it was ratified. Let’s discuss the treats that the second special session gave out to prosecutors.
The Omnibus rolls along
HB 16 is this year’s omnibus bill that creates new courts, changes judicial administration and jurisdiction, and attempts to address courts’ workloads. The bill creates new reporting requirements for prosecutors. Specifically, it mandates that prosecutors collect information on
- The categories of criminal offenses prosecuted and the number of criminal cases in each category.
- The number of employees and whether that number is sufficient to support the prosecutor’s caseload.
- The number of times a defendant was released as provided by Article 17.151 in the Code of Criminal Procedure.
- The number of electronic notices submitted by prosecutors to a court as required by Article 17.027(a)(2), Code of Criminal Procedure.
The Texas Judicial Council must consult with TDCAA on how prosecutors should submit this information, and the final procedures will be communicated to prosecutors by September 1, 2026. To start that conversation, representatives from the Office of Court Administration (OCA) will make a presentation on these new reporting duties at our Elected Prosecutor Conference in December; be sure to attend if you want more details about the implementation of this new duty.
Two new prosecutor offices are being created within the bill as well. The 273rd Judicial District is created, and the voters of Sabine County will elect their new District Attorney who will start work on September 1, 2028. The 365th Judicial District is also created, and the voters of Dimmit and Zavala counties will elect their district attorney who will start work on January 1, 2029.
The bill also builds on changes made by SB 1610 in the regular session to provide immunity to any employee within the Special Prosecution Unit who attempts to criminally prosecute a civilly committed sexually violent predator without the permission or authority of the local prosecutor and requires a court to immediately dismiss any claim that arose from an employee’s good faith conduct.
HB 16 attempts to address workload by analyzing data collected by OCA, which uses factors such as caseloads, case backlogs, population growth, and county support. The bill also addresses court security, court documents, arrest warrants, document delivery, juvenile boards, constitutional amendment election challenges, record retention, youth diversion, court-ordered mental health services, jurors, the Special Prosecution Unit (SPU), and the Texas Supreme Court.
For civil practitioners, HB 16 adjusts the statutory court jurisdiction, specifically the amount in controversy, allowing certain county courts to handle a greater number of significant civil cases to ease the burden on district courts and create a more efficient process.
Other measures in the bill include:
- New judicial districts in Rockwall, Fort Bend, Ellis, Harris, Williamson, and other counties.
- Two more seats for the statewide Fifteenth Court of Appeals over the course of four years.
- Raising the criminal penalty for harassing court employees or judges.
- Expanding and clarifying requirements for judicial training on issues including family violence and sexual assault.
- Requiring juvenile boards to prioritize diversion and make detention a last resort for children younger than 12 or who live in a general residential operation.
As you can see it is a monster of a bill, and you will have to read the bill to get all the details. Please do not hesitate to reach out if you have any questions once you dive into the weeds. We are happy to help.
New Powers for the Attorney General
SB 12 by Hughes (R-Mineola) gives the Office of the Attorney General (OAG) the authority to unilaterally prosecute Election Code crimes. The bill does not solve the constitutional issue highlighted by the Court of Criminal Appeals’ Stephens opinions. However, the official bill analysis uses the following reasoning to proclaim that it does overcome the Stephens opinion: “The Supreme Court of Texas [sic] found in the Stephens case that the ‘attorney general is not required by law to prosecute election law violations’ and held that Article IV, Section 22 of the Texas Constitution states that the attorney general shall perform other duties ‘as may be required by law.’ But the Election Code does not require the attorney general to initiate prosecution for an Election Code violation. Therefore, the Stephens case held that while the attorney general can prosecute with the permission of the local prosecutor, he cannot initiate prosecution unilaterally. SB 12 would change this ‘may’ to a ‘shall’ and would give the attorney general the power to prosecute election crimes.”
Does changing one word get over the separation of powers finding by the Texas Court of Criminal Appeals (not the Supreme Court)? It will take litigation to find out. Under SB 12, local law enforcement must submit reports of probable cause of Election Code crimes to the local prosecutor and Attorney General. Upon the OAG’s request, the local prosecutor or law enforcement must also turn over all information regarding their criminal investigations. Does the Attorney General in the executive branch have that authority over local prosecutors, who are in the judicial branch? Again, only litigation will let us know the answer. It is a good example of the legislative branch making a law that will need to be sorted out by the judicial branch.
Interim Hearings
Interim hearings are meetings held by legislative committees between regular sessions to study specific topics called “interim charges” that were assigned by the Lieutenant Governor (for Senate committees) or the Speaker of the House (for House committees). Committees hold hearings, take testimony from experts, and collect public comments to inform their policy recommendations before the next legislative session. It is now time to start talking with your local lawmakers about any topics or bill ideas that you might have for the next legislative session. If you have questions about that process and want to learn more, email Hector.
Office of Court Administration (OCA)
OCA is currently reaching out to all elected prosecutors who handle felony cases to compile their contact information or that of their designated representative to comply with Senate Bill 9 before its effective date of January 1, 2026. SB 9 requires the OCA to provide the elected district attorney with an electronic copy of the form submitted to the office for each defendant whose bail is set in the county for an offense involving violence, as defined by Article 17.03 of the Code of Criminal Procedure. To receive a form an elected district attorney must provide OCA with an e-mail address.
Along those same lines, the new Article 16.24 in the Code of Criminal Procedure creates a duty to report pretrial intervention program conditions to the Department of Public Safety (DPS) for use in the Public Safety Report system. Reporting by the prosecutor “or the attorney’s designee who is responsible for monitoring the defendant’s compliance with the conditions of the program” is mandatory. We covered these topics in our Legislative Update course; see those materials for more details. Speaking of …
Tour of Texas
Our Legislative Update tour came to an end in early October in the Valley in Edinburg. Almost 2,700 people have watched our class online or in person. The class, which outlines all the changes from the past legislative session, is available online for a limited time. It will be your last chance to get all caught up on the new laws and punishments. You can find the class on our website.
Elected Prosecutor Conference 2025
If you are an elected county or district attorney or a first assistant, you’ll want to attend our Elected Prosecutor Conference December 3rd–5th in San Antonio. Specifically geared toward the leadership of prosecutor offices, this course will cover topics essential for day-to-day operations with an eye to the future. You won’t want to miss it!
Artificial Intelligence Survey
We zealously guard access to your inboxes when it comes to outside entities seeking to send you surveys, but a Texas-based law school professor has sought our help in gathering anonymous data about prosecutors’ use of AI, and that is a topic that we are also curious about. Therefore, we have partnered with that professor to send you a request to complete a survey, the hyperlink to which was sent to you by email. Please consider completing that short survey or assigning that task to someone else in your office. The results will help us to better understand how prosecutors are using this new technology and inform our future training on that topic.
Quotes
“These funds could be used to hire additional officers without impacting the city’s budget. Declining ICE’s offer may mean forfeiting significant financial resources.”
–Dallas Mayor Eric Johnson writing to members of city committees to join a federal immigration agreement after Police Chief Daniel Comeaux declined a $25 million offer. SB 8 (passed in the 89th Regular Session) enables cooperation between state and federal law enforcement to “perform specified immigration officer functions under ICE’s direction and oversight.”
“Texans should not endure public safety risks from homeless encampments and individuals. Weapons, needles, and other debris should not litter the streets of our community, and the State of Texas is taking action.”
–Governor Greg Abbott announcing his operation to remove homeless people and dismantle homeless encampments in Austin. Governor Abbott has asked DPS to work with the Texas Department of Transportation, Texas State Guard, and Texas Department of Criminal Justice to clear homeless camps.
“I don’t think we’re necessarily going to ask for a declaration of war. I think we’re just gonna kill people that are bringing drugs into our country. We’re going to kill them. They’re going to be, like, dead.”
–President Donald Trump talking to reporters at the White House regarding the recent military strikes on alleged drug trafficking boats in the Caribbean Sea.