TDCAA Legislative Update: Week 8

This week various legislative committees will discuss marijuana decriminalization, incest, the legalization of eight-liner game rooms, and more. Who says civics is boring? Read on for details.

Judicial branch pay update

We sent everyone an update on judicial pay issues yesterday. If you did not receive it, contact Shannon for a copy.

House Appropriations

The House Appropriations Subcommittee on Articles I, IV and V chaired by Rep. Oscar Longoria (D-Mission) held a series of working group meetings over the past two weeks to hammer out the final details on the budgets for various general government agencies, the judiciary, and the public safety agencies. We won’t know the outcome until Monday, when the subcommittee reports to the full Appropriations Committee and seeks a formal vote on the subcommittee’s proposals. We won’t have access to the subcommittees working documents until then, but some items that are still pending include: additional funding for visiting judges; additional staff positions for various courts; and $12 million to fund an additional five percent across-the-board judicial pay raise on top of the 10 percent raise already in the baseline budget. We’ll continue to share relevant budget news as the session progresses, including what happens in the Senate Finance subcommittees (which are moving a littler slower than their House counterparts).

Assistant prosecutor longevity pay

Not much new to report. We want to thank Senator Joan Huffman (R-Houston) and Finance Committee Chairwoman Jane Nelson (R-Flower Mound) for voicing their support for the program and seeking ways to get it on a solid footing going forward. We are monitoring a patch for the final quarter of FY 2019 and a fix for the FY 2020-21 biennium shortfalls. No word yet on a permanent solution, but we are hopeful legislators will identify a reliable funding stream in the near future.

Grand jury “reform” bill filed

Check out HB 2398 by Rep. Senfronia Thompson (D-Houston). It’s the sequel to last session’s HB 2640 by Thompson (and then-companion SB 1424, which got watered down before dying in the House). Ms. Thompson has been pushing for an attorney in the grand jury off and on since 1991, but this is perhaps the most far-reaching bill she has filed on this topic. Here are some details:

  • Every witness or target of an investigation is entitled to a lawyer in the grand jury
  • A target is entitled to full discovery before appearing before a grand jury
  • All witness questioning and testimony must be recorded
  • If a person is no-billed, a second grand jury may not investigate or return an indictment against that previously investigated person absent new, material evidence
  • The State must present all exculpatory evidence to the grand jury
  • Regardless of whether a grand jury returns a true bill or no bill, the target/defendant can sue the prosecutor for attorney’s fees and other related expenses which shall be awarded if the court finds that “the position of the prosecutor was vexatious, frivolous, or in bad faith.”

Prosecutors’ views on this proposal last session were consistent with prosecutors’ views over the past three decades: Granting a witness or target of an investigation the absolute right to have an attorney in the grand jury room is bad public policy, so there is really nothing prosecutors can agree to or negotiate. Only time will tell how interested this legislature is in considering that policy once again, but if this issue is important to you, be sure to read the text of the bill and dust off that well-worn copy of your talking points.

Tap the brakes

Some of you may have heard from your clerks that TDCAA is recommending they stop collecting the time payment fee authorized by Local Gov’t Code §133.103, which was partially struck down by the 14th Court of Appeals in Johnson v. State (issued Feb. 4, 2019) (for details, see our case summaries entry for that week). We’ll spare you the Telephone Game explanation for how things got confused, but know that TDCAA has *not* made any such recommendation (nor has the Office of Court Administration). No mandate has issued from the courts in this matter. Furthermore, the State Prosecuting Attorney’s Office will likely seek a motion for rehearing and, failing that, petition the Court of Criminal Appeals for further review. This court cost and others like it are also at play in some bills before the Legislature, so our wisest counsel right now is to let things play out to the end before taking action. If you have further questions about this, please contact Shannon or Stephanie at TDCAA. 

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 action

Bills on issues designated as an “emergency” are now reaching the Senate floor, as SB 3 by Nelson (R-Flower Mound) to give classroom teachers a pay raise and SB 10 by Nelson to create a Texas Mental Health Care Consortium are both on the Senate calendar for Monday. (Not on that calendar is SB 2, the property tax reform bill, which currently lacks the votes it needs to be considered under the Senate’s three-fifths rule.) It will be several weeks before any non-emergency items can be debated on the House or Senate floor, but take this as yet another sign that the legislature is finally getting to work in earnest.

Committee action

The bills we told you about last week are all now pending in their House committees, where the usual practice is to lay out a bill, debate it, and then let it simmer for a week before taking an up-or-down vote on it. Some bills heard yesterday on short notice in Senate State Affairs were also left pending; we’ll report anything that comes out of that committee when it happens.

Upcoming committee hearings

Here are summaries of the relevant committee notices posted for next week (so far). Click on the underlined hyperlink for a full listing of each notice, including bill information (such as the actual text of a proposal) that can be accessed by clicking on any bill number in the notice.

Monday, March 4

House Criminal Jurisprudence – 2:00 p.m., Room E2.012

  • HB 27 by Canales increasing penalties for assaulting a federal officer
  • HB 63 by Moody making possession of < 1 oz. of marijuana a civil infraction
  • HB 86 by Martinez creating the offense of reckless discharge of a firearm
  • HB 446 by Moody removing knuckles from the list of prohibited weapons
  • HB 521 by Dutton requiring additional information in the charging instrument for resisting arrest
  • HB 667 by K. King increasing the penalty for sexual assault involving incest
  • HB 760 by Wu increasing the penalty for theft of delivered packages (aka “porch piracy”)
  • HB 1028 by Guillen increasing the penalties for certain offenses during disasters

House Judiciary & Civil Jurisprudence – 2:00 p.m., Room E2.026

  • HB 354 by Herrero exempting fire fighters and police officers from jury duty

Tuesday, March 5

House Licensing and Administrative Procedures – 8:00 a.m., Room E2.028

  • HB 78 & HJR 18 by Raymond authorizing local option elections to legalize certain eight-liner operations
  • HB 892 by Kuempel authorizing a county to regulate and tax local game rooms

House Business & Industry – 10:30 a.m., Room E2.016

  • HB 427 by Shaheen basing the penalty for price tag tampering on the value of the tagged item

Wednesday, March 6

House Homeland Security & Public Safety – 8:00 a.m., Room E2.016

  • HB 8 by Neave expanding the collection and testing of rape kits; changing statutes of limitation
  • HB 616 by Neave relating to payment for rape kit collection and storage
  • HB 979 by Hernandez authorizing the collection of DNA from certain defendants
  • HB 1177 by Phelan authorizing the carrying of a handgun during a declared state of disaster

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

New bills to watch

We are now tracking 1011 (23% percent) of the 4,352 bills filed through yesterday. Here is another list highlighting some of the more interesting bills filed in the past few days:

  • HB 15 by S. Thompson, the omnibus human trafficking bill
  • HB 2158 by White authorizing work release for certain TDCJ inmates
  • HB 2200 by S. Thompson narrowing the scope of drug-free zone enhancements
  • HB 2260 by T. King authorizing some non-lawyer JPs to issue blood search warrants in DWIs
  • HB 2303 by Moody narrowing the definition of “bet” to exclude fantasy sports wagering
  • HB 2339 by Meza requiring bond conditions in violent offenses to be entered in TCIC
  • HB 2360 by Moody defining “execute” for the purposes of making arrest affidavits public
  • HB 2421 by R. Smith authorizing certain judges to issue search warrants for wireless devices
  • HB 2432 by Raney creating a “Good Samaritan” defense to possession of controlled substances
  • HB 2481 by Metcalf authorizing deferred adjudication for DWI offenders in veterans’ courts
  • HB 2491 by Wu prohibiting the transfer of juveniles to TJJD for state jail felony offenses
  • SB 989 by Watson imposing jail time as a condition of probation for hit-and-run deaths
  • SB 993 by Powell increasing penalties for family violence assault in the presence of a child
  • SB 1018 by Alvarado requiring family violence offenders to surrender firearms
  • SB 1125 by Hinojosa authorizing video teleconference testimony by a forensic analyst
  • SB 1257 by Huffman authorizing the AG to unilaterally prosecute human trafficking cases
  • SB 1305 by Huffman increasing penalties for assaulting a pregnant woman

To read any bill, go to https://capitol.texas.gov/, enter the bill number in the appropriate field, and click “go”—then on the subsequent webpage, select the tab at the top of the page for the information (history, bill text, actions, authors, etc.) you want. And as always, you can contact Shannon or Rob if you are having trouble finding the information you seek.

Next week

After lagging behind past sessions’ rate of bill filing, legislators made up for it with a vengeance this past week by filing more than 1,000 bills, and they will continue that torrid pace by filing 2,000–3,000 more bills before next Friday’s deadline. (As a result, we will waive the white flag and give up trying to highlight individual bill filings in the list above.) Meanwhile, committees will continue to increase their workload and start working into the evenings, so if you see any of our family members out and about, be sure to tell them we’re still alive and manning our posts at the capitol.

Legislative rotation sign-up

If you are interested in coming to Austin this session, please contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time to come to hang out with us.

Domestic Violence Seminar

Registration is now open for TDCAA’s 2019 Domestic Violence Seminar. Whether you are new to prosecution or a seasoned hand, this course will cover practical skills you need to do your job today. From intake to advocacy, this is domestic violence training developed for Texas prosecutors and presented by Texas prosecutors. Join us in Georgetown, Texas, from April 9th to the 12th for this exciting training opportunity. For more information, please click here.

Quotes of the Week

“The Court of Criminal Appeals has wrestled with this issue for the 30 years I’ve been a lawyer. It will be good to have some finality on the topic.”

Harris County DA Kim Ogg, in an article discussing whether the U.S. Supreme Court’s second ruling in the Bobby James Moore case will prod the state legislature into adopting a statutory scheme for determining intellectual disability in capital cases. [For legislation already filed on that topic, see HB 1139 or its companion, SB 418.]

“Yet another perfectly good statute falls today, adding fuel to the claims that this court is often too quick to reject the considered will of our state’s Legislative Department.”

Court of Criminal Appeals judge Kevin Yeary, in his dissent to the majority opinion in State v. Doyal that struck down part of the state’s Open Meetings Act for being unconstitutionally vague this week.

“I love it because it’s driving some people crazy and we’re having a blast working together.”

Speaker Dennis Bonnen (R-Angleton), describing his relationship with the governor and lieutenant governor in a radio interview