TDCAA Legislative Update: Week 12, Part I

Things have cranked up in Austin and the volume of news is starting to come faster than ever. We apologize in advance for this long update, but there’s probably something in it to please and displease everyone, so you’ll want to read it all!

Looking ahead

Monday’s House committee schedule includes a defense-lawyer-in-the-grand-jury bill (more on that below), seven marijuana bills, four hemp bills, two death penalty bills, and a partridge in a pear tree. (OK, maybe it just feels like that to us, but you get the drift.) The House will also take up HB 3, its version of school finance reform, on Wednesday, which will consume that chamber for an entire day.

Defense lawyers in the grand jury?

The House Criminal Jurisprudence Committee will hear 25 bills on Monday afternoon, including HB 2427 by Reynolds (D-Missouri City), which would grant grand jury witnesses and targets the right to have a lawyer accompany them in the grand jury room during questioning. Specifically, the filed version of the bill:

  • Entitles all witnesses/targets to have a lawyer present with them in the grand jury while being questioned or offering testimony;
  • Authorizes the lawyer to interrupt questioning to consult with the witness outside;
  • Grants any subpoenaed witness or target a “reasonable opportunity” to lawyer up beforehand; and
  • Amends the Michael Morton Act to add information obtained via grand jury proceeding to what must be disclosed under CCP Art. 39.14(h).

This concept is one that Texas prosecutors have been opposing for more than 25 years. If you find yourself in that camp, now is the time to be heard. The bill will be heard at a hearing of the Criminal Jurisprudence Committee (membership here) that starts Monday at 2:00 p.m. or upon adjournment of the House. For information on how to get involved, contact Rob ASAP; it’s likely some prosecutors will meet Monday morning at the TDCAA offices to prepare for the hearing.

House budget debate

On Wednesday, the House debated and passed 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 $251 billion state budget for FY 2020–’21. The budget debate involved the consideration of more than 300 pre-filed amendments and lasted for more than 12 hours and ended after midnight, but everyone behaved themselves and there were surprisingly few fireworks.

Most of the budget drama centered on issues that don’t impact your offices. Among the issues that do impact you, we note that the House’s $9 billion supplemental appropriation bill for FY 2019 passed with a “patch” of almost $550,000 in general revenue to shore up the flagging surety bond fund. That bill now returns to the Senate with changes in other areas that will require the Senate to concur or ask for a conference committee to work out the differences before sending it to the governor. Either way, the longevity pay fix for FY 2019 looks good.

As for HB 1, the House’s version of the General Appropriations Act passed with another $1.3 million in general revenue added to the longevity pay program to prop it up for the next two years—not a long-term fix, but enough to keep things afloat while budget writers consider a new funding mechanism. Meanwhile, over in the Senate, the Finance Committee will consider its version of the General Appropriations Act today or tomorrow, and we are hopeful the $1.3 million is in the Senate bill pattern as well; we will know for sure when the committee’s final bill is unveiled by the end of the week.

Judicial branch raises

Last week the House Judiciary and Civil Jurisprudence Committee heard testimony on a committee substitute to HB 2384 by Chairman Leach (R-Plano) which included district and county attorneys. As we told you, the filed bill (without prosecutors) was weighed down by a $47 million fiscal note, and the Office of Court Administration (OCA) is working to fund that and the new additions in the committee substitute version. Meanwhile, we have learned of an additional fiscal snag that impacts retired district attorneys.

Normally, across-the-board judicial and DA pay raises always result in retirement increases for retired prosecutors, but last week, analysts at the state’s Employee Retirement System (ERS) advised us that the amended plan in HB 2384 would increase retirement benefits for current retirees beyond what is actuarially sound for the system as a whole, an outcome that is prohibited by state laws designed to ensure the health of that retirement system. Therefore, we expect the Judiciary Committee to consider yet another committee substitute version (as yet unseen) that includes raises for district attorneys but leaves retired district attorneys pegged to the current $140,000 base salary. (Whether retired judges will similarly be frozen at existing benchmarks remains to be seen.) That committee could vote on the bill at any time, and we will keep you updated as events warrant.

Contingency fee contracts

On Monday of this week, the House Judiciary and Civil Jurisprudence Committee heard testimony on HB 2826 by Greg Bonnen (R-Friendswood). This bill would crack down on contingency fee contracts for legal services by political subdivisions (read: cities and counties) by requiring the attorney general to approve such arrangements. The hearing quickly turned into a tort reform-type battle between Texans for Lawsuit Reform (TLR), which is for the bill, and the Texas Trial Lawyers Association (TTLA) and some county attorneys, who were against the bill. Team TLR claimed the bill is needed because: 1) there is no public input on these contingency contracts; 2) they aren’t bid competitively; 3) local governments ignore the current approval process so the AG needs authority to step in; 4) counties are spending too much on legal services; and 5) the process is driven by lawyers who convince counties to sue people just to make a contingency fee.  John Odom, an Assistant Harris County Attorney, and the TTLA lawyers responded that: 1) elected officials, including the county judges and commissioners, are already accountable to voters; 2) the opioid crisis and similar problems require skilled and well-funded attorneys to represent the injured parties; 3) the bill gives the AG a veto over lawsuits that may require outside counsel; 4) ironically, the AG can enter into this kind of contract with no similar oversight or accountability; and 5) the bill’s procedures give potential defendants an unfair advantage by forewarning them of a lawsuit. After all that debate, the bill was left pending but is eligible for a vote as early as this upcoming Monday, when the committee will also hear HB 2003 by Leach (R-Plano), a similar (but narrower) bill filed by the chairman.

Changes coming to capital cases?

Three death penalty-related bills were voted from the House Criminal Jurisprudence Committee earlier this week: HB 1030 by Moody (changing jury instructions in capital cases), a revised version of HB 1139 by Thompson (pre-trial determination of intellectual disability), and a revised version of HB 1936 by Rose (exempting offenders with “serious mental illness” from the death penalty). (To read the new versions of the latter two bills, select the “House committee report” version available under the “text” tab, which were still not available as this update went to press but should be uploaded soon.)

At the committee level, only HB 1936 (serious mental illness) had any significant amount of opposition registered against it (and that was from law enforcement representatives who did not provide oral testimony). HB 1139 (intellectual disability) has been tweaked to accommodate the concerns of some prosecutors, and the bill author has agreed to make at least one additional change on the House floor to address a remaining concern about the trigger for the pre-trial determination of that issue. All three of these bills now go to the Calendars Committee, which decides whether or when they will be heard by the full House.

Bail bond litigation

While interested parties watch and wait to see what the legislature does in response to various federal court orders on pre-trial release practices, the lawyers in those bail cases are still lawyering away in places like Galveston, where the ACLU has sued that county, its district court judges, and its Criminal DA, Jack Roady. The plaintiffs in that case have raised a claim that the setting of bail is a “critical stage” that triggers a defendant’s 6th Amendment right to counsel, and the federal district judge hearing the case may support the position that the initial bail determination—even at an Article 15.17 magistration hearing—is a “critical stage” during which the defendant is entitled to counsel. The Galveston CDA is preparing a brief responding to this claim and wants to be sure other prosecutors are aware of the issue in case anyone would like to submit an amicus brief. An adverse ruling on this issue could create tremendous pressure on your (and your county’s) limited resources if bail-setting events become adversarial proceedings requiring participation by defense counsel and prosecutors.

Briefs are due in the federal litigation by Wednesday, April 3, 2019. If you are interested in preparing—or participating in the preparation of—a quick amicus brief on this issue, email Jack Roady or call him at 409/766-2354, and he will attempt to coordinate those efforts among the interested parties.

Floor action

Besides the budget bills, the House also passed the following bills over to the Senate: HB 364 by Tinderholt (ignition interlock database and criminal offense), and HB 1389 by S. Thompson (preferential treatment of defendants who are primary caregivers).

The Senate passed the following bills over to the House: SB 194 by Perry (creating offense of indecent assault) and SB 923 by Huffman (age restrictions on employees at sexually-oriented businesses).

Upcoming calendars

The following bills have been calendared for consideration on the House floor next week: HB 27 by Canales (enhancing assault of a federal law enforcement officer), HB 101 by Canales (creating a criminal offense for spoofing caller ID information), and HB 374 by Allen (probation meetings).

The following bills are eligible to be considered on the Senate floor at any point: SB 201 by Huffman (penalty enhancements during disasters) and SB 586 by Watson (officer training on trauma-informed investigations).

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 8 by Neave (rape kit testing and storage), HB 63 by Moody (civil infraction for POM < 1 oz.), HB 64 by Canales (expunction of certain deferred adjudication records), HB 85 by M. Gonzalez (applying Romeo & Juliet defense in same-sex relationships), HB 121 by Swanson (defense to trespass with a handgun), HB 176 by Canales (prohibiting waivers of expunction/nondisclosure rights), HB 281 by Mayes (limiting lobbying activities by local political subdivisions), HB 869 by Hefner (organized criminal activity relating to credit card skimmers), HB 902 by Landgraf (enhancing assault against a pregnant woman), HB 940 by S. Davis (dog tethering), HB 979 by Hernandez (DNA collection after assault, other convictions), HB 1279 by Allen (corrections to parole instructions), HB 1355 by Button (out-of-county execution of DWI blood search warrant), HB 1625 by K. Bell (false report of misconduct by peace officer), HB 1653 by White (pre-trial diversion funding of CSCDs), and HB 1661 by Herrero (continuous family violence venue). 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 38 (hazing), SB 961 by Bettencourt (cite and release for criminal trespass), SB 971 by Huffman (officer training on strangulation in FV cases), and SB 1804 by Kolkhorst (entry of certain bond conditions into TCIC). 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, April 1

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

  • HB 504 by Dutton providing employment protection for persons serving on grand juries
  • HB 2003 by Leach requiring OAG approval of local governments’ contingency fee agreements
  • HB 2730 by Leach narrowing the scope of the Texas Citizens Participation Act (TCPA)
  • HB 3336 by Leach relating to practices and procedures in civil cases
  • HB 2350 by Capriglione relating to the prohibition of abortion
  • HB 1531 by Neave creating a specialty court for sexual assault victim services
  • HB 1196 by Meza changing statutory references from “marihuana” to “cannabis”
  • HB 978 by Beckley repealing the criminal offense of homosexual conduct

House Agriculture & Livestock – 8:00 a.m., Room E2.036

  • HB 989 by Guillen legalizing and regulating industrial hemp
  • HB 1230 by Dominguez legalizing and regulating hemp and hemp products
  • HB 1325 by T. King legalizing and regulating hemp and hemp products

House State Affairs – 10:30 a.m. or upon adjournment, E2.028

  • HB 1784 by Capriglione requiring employee training on records storage and management
  • HB 2401 by Deshotel mandating employee training on cybersecurity
  • HB 2965 by Toth addressing State v. Doyal on walking quorums
  • HB 3402 by Phelan addressing State v. Doyal on walking quorums
  • HB 3752 by Walle relating to public information laws during catastrophic events
  • HB 3834 by Capriglione requiring cybersecurity training for state and local gov’t employees

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

  • HB 15 by S. Thompson, omnibus human trafficking bill
  • HB 221 by Gervin-Hawkins expanding pool of lawyers qualified for death penalty cases
  • HB 261 by Frank expanding capital murder to include the murder of children under 15
  • HB 300 by Murr relating to JPs’ inquest summary reports
  • HB 309 by Moody creating the offense of indecent assault
  • HB 335 by Dutton reducing the penalty for POM < 1 oz. to a Class C misdemeanor
  • HB 371 by Allen reducing the penalty for POM < 1 oz. to a Class C misdemeanor
  • HB 753 by Wu reducing the penalty for POM < 0.35 oz. (10g) to a Class C misdemeanor
  • HB 981 by Parker relating to money laundering of digital currency
  • HB 1088 by Geren increasing certain habitual misdemeanor offenses
  • HB 1206 by Cole reducing all marijuana possession penalties by one degree
  • HB 1320 by Moody requiring mental health diversion courts in larger counties
  • HB 1573 by Raney expanding capital murder to include the murder of EMS personnel
  • HB 1812 by Murr revising indigent funding to counties
  • HB 2130 by Walle requiring findings before ordering reimbursement for appointed counsel
  • HB 2131 by Walle removing public defender’s duty to share clients’ financial condition with the court
  • HB 2164 by Burns creating penalties for business owners who ban peace officers from carrying firearms
  • HB 2427 by Reynolds creating a right for defense lawyers to be in the grand jury
  • HB 2518 by Toth reducing the penalty for POM < 2 oz. to a Class C misdemeanor
  • HB 2894 by Collier relating to the prosecution of health care fraud
  • HB 2937 by Sheffield enhancing aggravated assault with DW and SBI to a 1st-degree felony
  • HB 3590 by Hunter increasing punishments for various prostitution and trafficking offenses
  • HB 3637 by Guillen protecting the mailing address of an applicant for an order of emergency protection
  • HB 3827 by Sherman clarifying when the Office of Capital and Forensic Writs can be appointed
  • HJR 108 by Canales proposing a constitutional amendment to legalize cannabis

Tuesday, April 2

Wednesday, April 3

Thursday, April 4

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

Thanks to this week’s volunteers, Yoakum County Criminal DA Bill Helwig and Kaufman County Criminal DA Erleigh Wiley, for coming to Austin this past week to keep an eye on the legislature for everyone else! We still have volunteer slots open for this session—including next week!—so if you want to come to Austin to interact with 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 webpage and follow the instructions there. Nominations are due April 12, 2019.

New website … almost …

For the first time in over a decade, we have a new, state-of-the-art TDCAA website! This is Version 3.0 of TDCAA’s internet presence, optimized for portable use on the go from your smartphone or tablet. We are still working out the kinks during the change-over and are not yet at 100-percent functionality, but check it out at the usual address (https://www.tdcaa.com/) and let us know what you think.

Quotes of the Week

“I am very optimistic about the conversations that are going on now among lawmakers in Austin. There is no question that the majority understand that we must make substantial property tax reforms before we go back home—whether that is at the end of May, or as many special sessions as it takes.”

Lt. Gov. Dan Patrick (R-Houston), in an email to supporters, as reported in an article on the current status of property tax relief legislation.

“[Texas should] resist the billion-dollar pro-marijuana industry’s agenda to progressively desensitize the public to this very addictive and dangerous drug.”

Steve Dye, Grand Prairie police chief, at a Capitol press conference in which several rural and suburban police chiefs and sheriffs expressed opposition to any change in marijuana penalties.

“You can actually change the budget if you get enough support. For the most part, though, it’s a lot of theater, and it’s a lot of people trying to understand what’s happening, including the members themselves.”

Eva DeLuna Castro, budget expert with the Center for Public Policy Priorities, describing the House’s floor amendment process that leads to final passage of the state budget.

“We’ve been saying to anyone who will listen, this is homicide prevention.”

Mike Tobin, spokesman for the U.S. Attorney in the Northern District of Ohio, on the national trend of federal prosecutors enforcing firearms prohibitions against domestic violence abusers.

“Adios, Matt Rinaldi! Now he really knows what it’s like to be an immigrant—broke and without a job.”

State Rep. Ramon Romero (D-Fort Worth), speaking a party fundraiser about a former Republican state representative who, before he was defeated last November, was perhaps best known for threatening to report House gallery protestors to immigration officials. Romero later tweeted a clarification that he was only joking.