TDCAA Legislative Update: Week 11, Part II

March 22, 2019

The cool kids went on Spring Break but all you got was this lousy email update.

Looking ahead

Committees are hitting their stride and the volume of bills being considered in public hearings will continue to increase, but the big news next week will be about the budget. On Wednesday (March 27), the House will take up both SB 500 by Nelson (R-Flower Mound), the supplemental appropriation bill for the remainder of this fiscal year, and HB 1 by Zerwas (R-Richmond), the House’s proposed state budget for FY 2020-21. That will consume most of the latter part of the week in the House, and then the Senate Finance Committee will debate and vote out its competing version of the budget (SB 1), so next week will be all about the Benjamins. 

Hemp and CBD products

We receive legal calls about this subject on a weekly basis, so let us provide a few updates on recent events. (Not answers, necessarily, but we hope it’s useful information.)

First, the Texas Department of State Health Services has posted an amendment to the state’s schedule of controlled substances that will remove “hemp” from Schedule I, bringing Texas’ schedules into compliance with the 2018 Federal Farm Bill. That de-scheduling excludes from the schedules’ current definitions of marijuana what the feds now define as “hemp”: namely, “the plant Cannabis sativa L. and any part of that plant, including the seeds there-of and all derivatives, extracts, cannabinoids, isomers, acids,  salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” (For those wondering, yes—hemp and marijuana are the same plant, hemp just has little-to-none of the stuff that gets you high.)

However, this re-definition in the schedules is not the end of the story in Texas because unlike the feds, we have both regulatory schedules made by agency rule and criminal penalty groups and related definitions codified in our Controlled Substances Act (CSA) which govern the prosecution of those laws (per Health & Safety Code §481.101). Thus, while this de-scheduling of hemp makes the definition of marijuana in DSHS’s regulatory schedules even more different than it previously was from the statutory definition of “marihuana” in the CSA, the latter still has not been changed—and that’s the law that actually makes possession or delivery of that substance a crime either as “marihuana” or as a Penalty Group 2 tetrahydrocannabinol. Only the legislature can adjust those criminal definitions, and several bills have been filed to do so—but you’ll have to check back again after the session to see what, if anything, passes. Meanwhile, this de-scheduling was published on March 15th and becomes effective 21 days later, which means that on Friday, April 5, 2019, you are going to have a lot of people claiming hemp is completely legal in Texas when in fact, it may become legal for some (scheduled) purposes but not for other (criminal) purposes.

Elsewhere, the McAllen Monitor newspaper reported last week that the Edinburg City Attorney had submitted an AG opinion request on the legality of CBD products, but no such request has been received by OAG to date. Even if submitted, the AG does not have to provide an answer until long after the legislature has adjourned, so who knows what’s up with that. We are tracking more than 100 bills impacting various criminal drug laws in Texas, so what eventually will become law is anyone’s guess.

Now you know everything we know about this topic. Good luck making sense of it!

Bill tracks

All told, we are tracking 1,617 (21 percent) of the 7,524 bills and resolutions filed to date. In other words, more than one of every five pieces of legislation filed this session has the potential to impact your work or your local courthouses. To process that vast amount of information we use 42(!)different bill tracks. Three of those tracks—Penal Code (284 bills), Code of Criminal Procedure (387 bills), and miscellaneous “Bills to Watch” (95 bills)—are available near the top of our Legislative webpage and are updated daily. To give you some flavor of what the legislature is filing, here are a dozen other tracks (listed alphabetically):

  • Bail and pre-trial release (44 bills filed)
  • Death penalty (23)
  • Drugs and controlled substances (104)
  • DWI offenses (25)
  • Family violence (64)
  • Human trafficking (53)
  • Juveniles (53)
  • New crimes (189)
  • New prosecutor duties/powers/obligations (61)
  • Prosecutor-proposed bills (62)
  • Punishment enhancements (103)
  • Sex crimes (115)

If there is a subject or category of bills for which you would like to see the full list, please contact Shannon for more information. We cannot predict which of these bills will or won’t pass, but one thing we can safely say is that there will be plenty of new laws for us to talk about during our summer Legislative Update tour! 

Help wanted

In regard to bills suggested by prosecutors, two offices are seeking your support for bills filed this session:

  • House Bill 3566 by Farrar (D-Houston) would improve the investigation and prosecution of domestic violence cases by facilitating the reimbursement of medical forensic exam costs performed on strangulation victims. To receive more information or help with that bill, please contact Carvana Cloud, Asst. Harris County DA, by email or at (713) 274-0214.
  • House Bill 3561 by Farrar (D-Houston) creates a new offense of Continuous Sexual Assault to provide an enhanced punishment range for serial sexual assault offenders; it would apply to victims of all ages. To receive more information or help with that bill, contact Traci Bennett, Asst. Fort Bend County DA, by email or at (281) 341-4460. 

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

The following bills have been calendared for consideration on the House floor next week before they take up the budget on Wednesday: HB 364 by Tinderholt (ignition interlock database and criminal offense), HB 1389 by S. Thompson (preferential treatment of defendants who are primary caregivers), and HB 428 by Shaheen (ban on solicitation of prison pen pals).

The following bills are eligible to be considered on the Senate floor at any point: SB 194 by Perry (creating offense of indecent assault) and SB 923 by Huffman (age restrictions on employees at sexually-oriented businesses).

These lists change daily, so click on this link to access the latest House Calendar or Senate Intent Calendar. 

Committee action

House bills approved by committees last week include: HB 51 by Canales (standardized forms created by OCA), HB 93 by Canales (magistrate’s name printed on signed orders), HB 98 (revenge porn fix), HB 101 by Canales (creating offense of false caller ID), HB 226 by Krause (revisions to crimes outside the Penal Code), HB 446 by Moody (legalizing knuckles weapons), and HB 667 by King (enhancing sexual assaults involving incest). These bills now go to the Calendars Committee, which decides which of them will be heard by the full House.

In the Senate, committees approved the following bills: SB 20 by Huffman (human trafficking omnibus bill), SB 306 by Watson (sobering centers), and SB 315 by Hughes (gas pump credit card skimmers). These bills are now eligible to be placed on the Senate Intent Calendar at the discretion of their authors.

Upcoming committee hearings

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

Monday, March 25

House Elections – 8:00 a.m., Room E2.016

  • HB 1419 by S. Thompson allowing felony probationers and parolees to vote

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

  • HB 2826 by G. Bonnen limiting contingent fee contracts by local governments
  • HB 2251 by Capriglione to enjoin certain deceptive legal services advertising
  • HB 2259 by R. Smith relating to uncollectible criminal fees and costs
  • HB 2435 by R. Smith making confidential certain personal information of judges

Senate State Affairs – 9:00 a.m., Senate Chamber

  • SB 19 by Hughes permitting firearms on certain multi-family residential or commercial property
  • SB 324 by Huffman relating to the disposition of certain seized firearms under CCP Art. 18.191
  • SB 1640 by Watson fixing the open meetings laws struck down in State v. Doyal (2/27/19)

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

  • HB 24 by Romero making FV assault in a child’s presence a state jail felony
  • HB 37 by Minjarez increasing penalties for mail theft
  • HB 156 by Moody relating to supervision of certain occupational license holders
  • HB 480 by Schaefer authorizing prosecutors to voir dire potential grand jurors
  • HB 534 by Geren expanding the scope of public safety employee treatment programs
  • HB 934 by Shaheen increasing the penalty for prostitution with a trafficked person
  • HB 1216 by S. Thompson facilitating orders of non-disclosure for certain sex trade victims
  • HB 1240 by Y. Davis reducing penalties for certain habitual thefts
  • HB 1319 by Moody relating to Class C judgments and appeals
  • HB 1381 by Wray increasing penalties for aggravated assault on school property
  • HB 1539 by Geren reducing penalties for tampering with evidence in a misdemeanor case
  • HB 1609 by Tinderholt making grand jurors’ names confidential
  • HB 1686 by R. Smith mandating the filing of certain protective orders by prosecutors
  • HB 2058 by Hernandez authorizing forfeiture funds to be used for funding services for human trafficking victims
  • HB 2260 by T. King authorizing some non-lawyer JPs to issue DWI blood search warrants
  • HB 2360 by Moody clarifying when arrest affidavits and warrants become public
  • HB 2613 by Frullo requiring certain asset forfeiture proceeds to be used for human trafficking victim services
  • HB 2731 by Miller limiting probation for certain prostitution and trafficking offenses and expanding the definition of coercion for those crimes
  • HB 2768 by Martinez-Fischer on occupational licenses for DPS surcharge suspensions
  • HB 2789 by Morgan creating an offense of indecency by electronic image
  • HB 2823 by VanDeaver increasing penalties for assault by threat vs. certain sports participants
  • HB 2951 by Guillen adding disabled adults to the outcry hearsay exception statute
  • HB 3109 by Murphy expanding access to criminal justice information databases
  • HB 3206 by J. Gonzalez lowering prostitution penalties and barring prosecution of persons under 18

Tuesday, March 26

Wednesday, March 27

Thursday, March 28

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

We still have volunteer slots open for this session, so if you’ve thought of any new reasons to want to come to Austin to talk to your legislators, contact Shannon for details.

Award nominations due!

Now that the Grammys and Oscars are over, it’s time for the really BIG awards to be handed out! If you would like to nominate a TDCAA member for an Oscar Sherrell Award or the Suzanne McDaniel Award, check out this webpageand follow the instructions found there. Nominations are due April 12, 2019. 

Quotes of the Week

“[The lieutenant governor is] strongly opposed to weakening any laws against marijuana [and] remains wary of the various medicinal use proposals that could become a vehicle for expanding access to this drug.”

Alejandro Garcia, spokesman for Lt. Gov. Dan Patrick (R-Houston), when asked for a position on various medical marijuana proposals filed this session.

“Even though it sounds like we’re halfway through, it just kind of shifts into a second gear. The halfway point really isn’t the halfway point. It’s really when things start picking up.”

State Sen. Paul Bettencourt (R-Houston), on the perceived slow pace of the legislature this session.

“[School finance and property tax reform] have to be passed. If they have to be passed in a special [session], they have to be passed in a special. I’m optimistic that we won’t have to do that. But I also told my landlord I need the place.”

Bettencourt, in the same article.