TDCAA Legislative Update: Week 15, Part I

April 18, 2019

Looking ahead

Upon completion of today’s duties, the House and Senate are taking a much-needed break for the Easter holiday before returning on Tuesday for the final five-week push towards the sine die finish line. With no hearings on Monday, our usual schedule will be compacted; we will update you with a list of bills to be heard next week when we get them.

Budget conferees are set

The Lt. Governor named the Senate’s conferees on HB 1, the state budget bill: Nelson (R-Flower Mound), chair; Huffman (R-Houston), Kolkhorst (R-Brenham), Nichols (R-Jacksonville), and Taylor (R-Friendswood). Starting next week, they will work with the House conferees to craft a final version of HB 1 for both chambers to approve. Those House conferees are: Zerwas, (R-Richmond), chair; G. Bonnen (R-Galveston), S. Davis (R-West University Place), Longoria (D-Mission) and Walle (D-Houston).

Random observations: Six of the ten conferees are from the Greater Houston area. Only two conferees are from north of the I-10 corridor (but one of those two is the Senate chairwoman from the Metroplex). No conferees are from west of the I-35 corridor. (Sorry, West Texas!). Only two conferees are Democrats (both from the House). The Senate conferees are all Republicans, a partisan move not seen since at least 1987. And there are only two minority members despite Texas being a majority-minority state.

We don’t know what any of that means for the final product, but these are the ten legislators who will meet to determine issues like judicial branch pay raises, assistant prosecutor longevity pay, crime lab funding, and more. We’ll let you know if we see white smoke coming from the conference committee chimney on any of those issues.

Judicial branch pay raise

The updated fiscal note for HB 2384 by Leach (R-Plano), the tiered pay raise bill that now includes district and county attorneys, was recently posted online. There are four items in that fiscal note we wanted to mention to you. First, the total cost to the state weighs in at a whopping $59,515,828 for the 2020-2021 biennium. Second, the fiscal note forgot to include an additional $1 million or so needed for county attorney supplement increases. That omission makes the bill even more expensive, but it does not prevent it from passing or being funded. Third, in the opinion of the lawyers at the Employee Retirement System (ERS), this bill resets the multiplier for any DA retiring in the future from the current 2.3 percent to 2 percent. According to ERS, this means that any DA retiring with 8 years of service will actually retire at a lesser annuity than those who retired before the bill takes effect. We are talking with the author about fixing that through an amendment on the House floor to set the multiplier in statute at 2.3 percent. Fourth and finally, this may not be the last version of this bill that you see. House and Senate budget writers have only set aside $34–$42 million for a judicial and DA pay raise, so the benefits under the bill must shrink considerably if it has a chance of passing. To fit under the budgeted amounts, the legislature could choose one or more of the following options: reduce the various percentage of raises (say, from 10 percent down to 5); cut the $10 million bump in judicial retirement benefits; delay the effective date until September 1, 2020 (aka, kicking the can down the road to a future legislature); or cut out prosecutors—which, as you might recall, has always been a possibility in the Senate. Any of these options (and others) are now on the table in the HB 1 conference committee negotiations; we expect Rep. Oscar Longoria (D-Mission) and Sen. Joan Huffman (R-Houston) to take the lead on this issue.

We will continue to monitor this situation closely. If you have questions, contact Rob.

Help *not* wanted

This week the Senate passed SB 29 by Hall (R-Edgewood), the bill that purports to “ban taxpayer-funded lobbying” by barring the expenditure of public funds by local governments:

  • To influence legislation; or
  • For membership dues “or for any other purpose” related to an association that works on legislation or that doesn’t exist “for the betterment of … all local officials.”

According to proponents, the main goal of the bill is to prohibit local cities, counties, and school districts from hiring outside lobbyists to represent them at the capitol—both hired-gun lobbyists and association employees who interact with legislators. But the language of the bill goes much farther than that. If SB 29 passes in its current form, elected and assistant prosecutors must pay their own way if they want to come to Austin to work on legislation, and y’all will have to reach into your other pocket to pay for any TDCAA conferences, publications, or other services we provide to our members, whether it is related to legislation or not. Thus, while this bill is not primarily directed at you (as a prosecutor) or us (as your professional association), you and we *are* purposely included—make no mistake about that.

The next step for SB 29 is referral to the House State Affairs Committee, which has an 8R–5D partisan split but which is also more independent than its Senate counterpart. If you object to this bill and know a member of that committee, now is the time to make that connection.

Updates on priority issues

Here’s another run-down of where some issues that we’ve been following this session currently stand. Here’s the latest (listed alphabetically):

AG’s expanded authority: SB 1257 by Huffman (R-Houston) passed the Senate by a 28-3 vote yesterday. It will now head to the House, where a substitute version of HB 3989 by Leach (R-Plano) was voted from the House Criminal Jurisprudence Committee on Tuesday by a 6-3 vote (all Rs and Chairwoman Collier [D-Fort Worth] voting aye, remaining Ds voting no). Once the paperwork is completed, the bill will go to the House Calendars Committee, where we expect General Paxton and his staff to continue advocating for it.

Asset Forfeiture: Three civil asset forfeiture reform bills were heard in the House Criminal Jurisprudence Committee and left pending: HB 404 by S. Thompson (D-Houston), HB 472 by Dutton (D-Houston), and HB 1615 by Schaefer (R-Tyler). (Two other bills by Rep. Canales [D-Edinburg] were not heard.) Prosecutors and law enforcement officers opposed the bills as they have in the past, but in case you haven’t noticed, “past results are no guarantee of future success” this session. Those bills are eligible to be voted upon in a formal committee meeting to be held Tuesday morning, so if you are concerned about any of them, reach out to those members. We have reason to believe as of today that HB 1615 (requiring the State to disprove the innocent owner defense) has the greatest likelihood of being approved.

Bail bonds: The House Criminal Jurisprudence Committee did not vote on any of the bail bond reform bills pending before it but may consider one or more of them Tuesday morning.

Death penalty: HB 472 by Dutton (D-Houston) (law of parties) and HB 3938 by Moody (considering victims’ wishes) were heard in committee on Monday and left pending.

Grand jury: HB 2427 by Reynolds (D-Missouri City) and HB 2398 by S. Thompson (D-Houston) are still pending in the House Criminal Jurisprudence Committee; neither has the votes to get out as of today despite intense lobbying by a former governor, among others. It is up to Chairwoman Collier (D-Fort Worth) to decide whether to bring it up for a vote. If you are curious where things stand as of our last vote check, contact Shannon. Across the rotunda, we have been hearing for several weeks that the Senate version—SB 1492 by Whitmire (D-Houston)—may be set for a hearing in the author’s Criminal Justice Committee at any time. If you want to be notified when those details are confirmed, contact Rob.

Floor calendars and committee notices

Tuesday’s House calendar includes scheduled debate on HB 574 by Dutton (ban on using deferred adjudications to enhance non-sex crimes), HB 1325 by King (legalizing hemp products), HB 1399 by Smith (taking DNA from certain arrestees), HB 1711 by Paddie (digital license plates), HB 2502 by Moody (jail time during probation for hit-and-run fatalities), and HB 2758 by Hernandez (eliminating probation for various trafficking and prostitution crimes). Wednesday’s calendar includes HB 98 by Gonzalez (re-writing the revenge porn law even though the issue is still pending before the CCA) and HB 2789 by Meyer (criminalizing unsolicited “sexting” between adults).

In the Senate, bills on the Intent Calendar for Tuesday include SB 901 by Hughes (election integrity).

Few committees have posted notices for after the holiday break, so we will send a supplemental update when we have more information about those hearings (plus information about other bills moving through the system).


Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

Legislative rotation sign-up

Thanks to Callahan County CA Shane Deel, 106th DA Philip Mack Furlow, Smith County Asst. CDA Chris Gatewood, and Midland County ADA Suzy Prucka for coming to Austin this past week and helping to put out some fires. We still have several volunteer slots open for the next few weeks of the session, so if you want to come to Austin to interact with legislators while you still can, contact Shannon for details.

Quotes of the Week

“If it ain’t dead on arrival, it’s awful close.”

State Sen. Kirk Watson (D-Austin), when asked about the prospects for raising the state sales tax by 1 cent in order to buy down property taxes.

“I knew he had schizophrenia. I knew he would need to get in trouble to get help, but I never thought he would do something violent.”

Aleesha DeKnikker, sister of Heath Otto, a South Dakota man who killed his mother and nephew and now faces a possible death sentence.

“Reform is one thing. Actions that abandon the rule of law and that could promote lawlessness are altogether different. Texas law gives criminal district attorneys the duty to enforce the laws the Legislature writes. It grants no power to criminal district attorneys to categorically rewrite the law. Constitutionally, ‘reforming’ state law is the province of the Legislature.”

Text from a public letter released today by Gov. Greg Abbott (R) and AG Ken Paxton (R) and addressed to Dallas CDA John Creuzot (D) in response to recently announced policies adopted by Creuzot.