A belated Happy Father’s Day to anyone who didn’t get their favorite bill vetoed by the governor over the weekend.
Bring out your dead
The veto period ended this weekend, and the final body count consisted of 56 bills and two concurrent resolutions. The full list—with links to each bill’s home page, including the applicable veto proclamation—is available here, and includes:
- HB 51 by Canales (D-Edinburg) creating statewide forms for use in criminal cases
- HB 1771 by Thierry (D-Houston) decriminalizing prostitution for some juveniles
- HB 3078 by S. Thompson (D-Houston) creating a clemency review panel for defendants claiming to be victims of human trafficking or family violence
- HB 3490 by Cole (D-Austin) criminalizing abusive or harassing social media posts
- HCR 86 by Springer (R-Muenster) designating the Bowie knife as the official state knife of Texas (read that veto proclamation and get a geography lesson thrown in for free!)
- SB 1804 by Kolkhorst (R-Brenham) authorizing family violence bond conditions to be entered into TCIC
With the ink now dry on all bills and resolutions, we can officially close the books on the 86th Regular Session. If you are curious about the final fate of any specific bills or issues, contact Shannon and he’ll give you the scoop.
The Lege giveth, the Lege taketh away
The Governor signed HB 2384 by Representative Leach (R-Plano) and Senator Huffman (R-Houston) late Friday afternoon. The bill discards the traditional across-the-board pay raise for judges and prosecutors and replaces it with a pay scheme based on tenure. The bill amends a number of Government Code provisions that you are probably not familiar with, so at the end of this update there is a summary of how the bill will work for prosecutors, including some examples to help you calculate what your own raise—or your own decrease in take-home pay, thanks to a repealed budget rider—may be come September 1, 2019. Be sure to read that “HB 2384 Explainer” for all the details.
Legislative Update tour
Our Legislative Update tour is coming soon to a location near you! All the dates and locations are listed in this brochure, and online registration by location is available here. More than 1,200 prosecutors, defense lawyers, peace officers, judges, and others have registered to attend so far, but we expect to double that number before we are done, so don’t get left behind—register your office today!
Baby Prosecutor School
Anyone who is new to a prosecutor’s office (less than six months on the job) should consider attending our Prosecutor Trial Skills Course this July in Austin. It’s a full week of intensive training that prepares newly hired prosecutors for their work both in the courtroom and out. New prosecutors won’t want to miss this intensive, high-quality training customized especially for them, so visit this webpage for more details and to register online.
Quotes of the Week
“It’s called the incumbent protection plan. At the end of the day, tax cuts, more money for schools—nothing big blew up.”
State Rep. Giovanni Capriglione (R-Southlake), explaining the GOP leadership’s reasons for focusing on school finance and property tax reform to the exclusion of other, more controversial social issues this past session.
“Until the state of Texas gets its testing policies and procedures in place, there will still be a very high likelihood of significant amounts of snake oil, just basically placebo-type stuff, that could contain contaminants, it could contain toxins, and what it’s most likely to be is really expensive, crappy olive oil.”
Morris Denton, CEO of Compassionate Cultivation, one of the companies licensed under Texas’ Compassionate Use Program (T-CUP), on the impact upon his business of CBD products derived from soon-to-be-legal hemp.
“Since pot’s been legalized in California, there’s no money to be made because everyone got involved in it. They’ve got these big 50,000-square-foot [grow] houses, and they’re flooding the market. The money is outside of California.”
Bill Kroger, Jr., a Los Angeles-based criminal defense lawyer, explaining why marijuana trafficking arrests at LAX airport have increased 166% since legalization in that state.
“It is ironic that in a session in which they make progress on open government, they exempt themselves. … They probably should have captioned this bill … ‘Do as I say, not as I do.’”
Bill Aleshire, an Austin-based attorney and former Travis County judge, on HB 4181 by Geren (R-Fort Worth), which expands the scope of legislative privilege against disclosure under the Open Records Act.
“The fireworks this session were few and far between.”
State Rep. Jessica Gonzalez (D-Dallas), when asked to recap the recent session.
House Bill 2384 Explainer
For Elected Felony Prosecutors (Das, Cdas, And C&Das):
Benchmark: The benchmark salary for felony prosecutors in the Professional Prosecutors Act (PPA) is now $140,000; for those outside the Professional Prosecutors Act, it is $112,000. (Those amounts have not changed, but older, lower statutory minimums in the Government Code have been raised to match recent appropriations.) Because almost all of you are in the PPA, we will use those figures throughout the rest of this memo.
Raises: After four years of service, a felony prosecutor is entitled to receive from the state 110 percent of the benchmark salary ($154,000). After eight years of service, a felony prosecutor is entitled to receive from the state 120 percent of the benchmark salary ($168,000). However, HB 2384 phases out these state salary increases for elected felony prosecutors whose county supplements exceed the applicable benchmark of $18,000, which is the maximum local supplement a district judge may receive. Unlike those judges, DAs have no maximum salary, but there is still a maximum amount that the state will contribute to that overall salary. As a result, some DAs with a lot of tenure, a large county supplement, or both will not receive a raise from the state under HB 2384.
Factoring in a local supplement: If your local supplement exceeds $18,000, the excess amount will be subtracted from the state raise you would otherwise receive under HB 2384’s tenure scheme. Stated another way: If after four years of service, the benchmark salary plus your local supplement plus the 10-percent raise would equal more than $172,000, or if after eight years the benchmark salary plus your local supplement plus the 20-percent raise would equal more than $186,000, then the amount of the state raise over the benchmark of $140,000 will be reduced from $18,000 to zero or somewhere in-between, depending upon the amount of your supplement.
Again, this does not mean a DA’s total salary cannot exceed those amounts if a county wants to provide a supplement that exceeds them; it means only that the state won’t contribute to a DA’s salary at or beyond those maximums.
Still confused? Here are some examples so you can calculate the impact of a local supplement on your raise:
Zero to four years of service (no raise from HB 2384):
Felony prosecutor A: DA with two years of service and no local supplement = $140,000.
Math: Benchmark $140,000 + $0 state raise + $0 local supplement = $140,000.
Felony prosecutor B: CDA with two years of service and $35,000 local supplement = $175,000.
Math: Benchmark $140,000 + $0 state raise + $35,000 local supplement = $175,000.
Five to eight years of service (10% raise from HB 2384):
Felony prosecutor C: C&DA with five years of service and a local supplement of $8,000 = $162,000 (a raise of $14,000).
Math: Benchmark $140,000 + $8,000 local supplement = $148,000, which is $24,000 below the maximum combined salary of $172,000, so the full 10% state raise of $14,000 applies.
Felony prosecutor D: DA with five years of service and a local supplement of $25,000 = $172,000 (a raise of $6,000).
Math: Benchmark $140,000 + $26,000 local supplement = $166,000, which is only $6,000 less than $172,000 maximum, so the 10% state raise of $14,000 is reduced to $6,000 to avoid exceeding a combined maximum of $172,000.
Felony prosecutor E: CDA with six years of service and a local supplement of $36,000 = $176,000 (no raise).
Math: Benchmark $140,000 + $36,000 local supplement = $176,000 total salary, which exceeds the $172,000 combined maximum, so the 10% raise is zeroed out.)
Nine or more years of service (20% raise from HB 2384):
Felony prosecutor F: C&DA with 10 years of service and a local supplement of $10,000 = $178,000 (a raise of $28,000).
Math: Benchmark $140,000 + $10,000 local supplement = $150,000 salary, which is $36,000 below the maximum combined salary of $186,000, so the full 20% state raise of $28,000 applies.
Felony prosecutor G: DA with 12 years of service and a local supplement of $30,000 = $186,000 (a raise of $16,000).
Math: Benchmark $140,000 + $30,000 local supplement = $170,000, which is $16,000 below the $186,000 combined maximum, so the 20% raise is reduced to $16,000 to avoid exceeding that combined maximum.
Felony prosecutor H: CDA with 18 years of service and a local supplement of $45,000 = $186,000 (a raise of $1,000).
Math: $140,000 + $45,000 local supplement = $185,000 total salary, which is only $1,000 less than $186,000 maximum, so the 20% state raise of $28,000 is reduced to $1,000 to avoid exceeding a combined maximum of $186,000.
Felony prosecutor I: DA with 27 years of service and a local supplement of $65,000 = $205,000 (no raise).
Math: $140,000 + $65,000 local supplement = $205,000 total salary, which exceeds the $186,000 combined maximum, so the 20% state raise is zeroed out.
Reporting local supplements: The Judiciary Section of the Comptroller’s Department is tasked with collecting affidavits from elected felony prosecutors annually attesting to the amount of each prosecutor’s county supplement. We are currently working with the comptroller’s staff on that and will report back with more details when they are available.
Impact of the deletion of the retirement “make-up” pay in HB 1: In 2015, the legislature increased elected felony prosecutors’ retirement withholding from 6.9% to 9.5% with no corresponding increase in salary, so to make sure those prosecutors did not see a reduction in take-home pay, the legislature also appropriated a $1.3 million rider for each biennia to be used for a county retirement “patch” of about $1,300 per prosecutor per year. However, the 2019 General Appropriations Act does not contain that patch. Therefore, elected felony prosecutors will see a reduction in their state take-home pay of about $1,300 a year. Some of you may not feel that because you are getting a raise, but those of you with four or fewer years of service or with a county supplement large enough to disqualify you from any state raise will see an actual reduction in your paycheck come September 1, 2019. (Although if it’s any consolation, that money in the state budget essentially went toward shoring up the assistant prosecutor longevity pay for the next two years.)
Impact of HB 2384 on retirement: If you are an elected felony prosecutor who retired or will retire before September 1, 2019, your retirement will be calculated based on the current salary of a district judge ($140,000). There will be no COLA until that base pay is increased at some point in the future (if ever). If you are an elected felony prosecutor who retires on or after September 1, 2019, your retirement will be calculated using the state salary of a district judge with comparable years of service. However, note that your county supplement is not a factor for elected felony prosecutors. Thus, with five to eight years of service, your retirement will be based on 110% of the base pay ($154,000), and with nine or more years of service your retirement will be based on 120% of the base pay ($168,000).
For Elected County Attorneys (no felony jurisdiction):
County attorney supplement: Your county attorney supplement will be based on the traditional formula that uses a combination of the number of counties served by your felony prosecutor and the salary of a district judge as the benchmark salary. However, beginning September 1, 2019, each county attorney’s benchmark salary will be that of a district judge with comparable years of service. Here are some examples so you can calculate your own supplement beginning September 1, 2019:
County attorney A: In a one-county DA
district with 5 years of service: Half of $154,000 = $77,000, not further
divided (a $7,000 raise).
County attorney B: In a one-county DA district with 10 years of service:
Half of $168,000 = $84,000, not further divided (a $14,000 raise).
County attorney C: In a two-county DA district with two years of service: Half of $140,000 = $70,000, divided again by 2 counties = $35,000 (no raise).
County attorney B: In a two-county DA district with six years of service: Half of $154,000 = $77,000, divided again by 2 counties = $38,500 (a $3,500 raise).
County attorney C: In a two-county DA district with 14 years of service: Half of $168,000 = $84,000 divided again by 2 counties = $42,000 (a $7,000 raise).
County attorney D: In a three-county DA district with five years of service: Half of $154,000 = $77,000, divided again by 3 = $25,666 (a $2,333 raise).
County attorney E: In a five-county DA district with nine years of service: Half of $168,000 = $84,000, divided again by 3 (the maximum divisor under the statute) = $28,000 (a $4,666 raise).
Reporting your longevity: As with felony prosecutors’ local supplements, the comptroller will be gathering accurate start dates for every county attorney before September 1, 2019, and your longevity as of that date will control for the following year. We are working with the comptroller on that and will report back when more details are available.
If after reading through all of this you are still having trouble calculating your potential raise, please email Rob with your tenure in office and either your current state supplement (if you are an elected felony prosecutor) or the number of counties served by your felony prosecutor (if you are a county attorney), and he will walk you through it.