TDCAA Legislative Update: Week 17, Part I

May 2, 2019

Only 25 days left in the regular session. Time and pressure may turn coal into a diamond, but at the state capitol, time and pressure turn diamonds into coal and then drop them in everyone’s sine die stockings.


Some important deadlines are coming up in the House for non-local bills:

Tuesday, May 7, 10 pm: Last House calendar for HBs must be printed

Thursday, May 9, midnight: Last day for House to pass HBs on 2nd reading

Friday, May 10, midnight: Last day for House to pass HBs on 3rd reading

What this means in English: If a House bill (other than a local bill) is not placed on a House floor calendar by Tuesday night, it is dead by rule. And in reality, if a House bill is not placed on a calendar by Tuesday, it may be dead for practical purposes because for the last two sessions, bills calendared for the first time on or after that day have not been reached before Thursday’s midnight deadline. That means several thousand bills will be getting fitted for a toe tag by this time next week, especially after Speaker Bonnen announced this morning that the House would not be working on Saturday after all.

Across the rotunda, Senate deadlines don’t kick in until the final week of the session; more on that when the time comes.

Judicial branch pay raises

House Bill 2384 by Leach (R-Plano), the tiered pay raise bill that currently includes district and county attorneys, was passed by the full House on Wednesday. The final vote was nearly unanimous, but there was plenty of discussion on 2nd and 3rd reading on the House floor before that happened.

To view the full floor debate of HB 2384 on Tuesday’s 2nd reading, including the adoption of various amendments that were acceptable to the author, click on this link and fast-forward to the period from 3:00:35–3:18:25. If you don’t want to watch the entire 18-minute discussion, we’ll direct you to the discussion between Rep. Joe Moody (D-El Paso) and Chairman Leach about the addition of elected prosecutors to the House language and what the prospects for your continued inclusion may be in the Senate; that footage can be found at the 3:11:21–3:12:40 mark. It’s too long for us to transcribe for you, but you should definitely watch it.

On 3rd and final reading, House members had a 30-minute discussion of another potential amendment by Rep. Yvonne Davis (D-Dallas) that would have given a 10-percent bump to judges and elected prosecutors with less than four years of experience. That sometimes-heated debate about the potentially disparate impact of the tiered pay raise plan can be viewed at this link from the 1:40:00–2:46:25 section of the video, although the debate abruptly ended around the 2:11:10 mark, followed by a 35-minute down period where members tried to get guidance offline from the parliamentarians about the potential impact of the amendment on their own retirement funds (which was zero, for the record, but it took them awhile to figure it out). The debate eventually ended with Rep. Davis withdrawing her amendment and the bill being voted out with 143 members in support.

The bill will now be engrossed and sent to the Senate, where it will be referred to the Senate State Affairs Committee chaired by Sen. Joan Huffman (R-Houston), the author of the Senate companion bill that does not include several beneficiaries of the raise who were added by the House, including prosecutors. The fate of the House language in the Senate is unknown, so if you want the bill to pass the Senate with you in it, you better go find your senator(s) over the weekend and let them know how you feel about it because the bill could be heard in committee as soon as Monday if Chairwoman Huffman wants to move it.

If you have questions about any of this, contact Rob.

Updates on other major issues

Here’s a rundown of where some other issues that we’ve been following this session currently stand (listed alphabetically):

AG’s expanded authority: HB 3979 by Leach (R-Plano) is still in the House Calendars Committee, where it has been joined by its Senate companion, SB 1257 by Huffman (R-Houston).

Asset Forfeiture: HB 1615 by Schaefer (R-Tyler) to require the State to disprove the innocent owner defense is in the House Calendars Committee.

Bail bond reform: HB 1323 and HJR 62 by Murr (R-Junction) (preventative detention), HB 2020 by Kacal (R-College Station) (limitations on bail), and HB 3283 by White (R-Hillister) (bondsmen’s version) are all in the House Calendars Committee.

Death penalty: HB 1139 by S. Thompson (D-Houston) to require pre-trial determination of intellectual disability in death penalty cases was passed by a 102-37 vote in the House on Tuesday and will now go to the Senate. HB 1936 by Rose (D-Dallas) was placed on the House calendar for debate yesterday but was not reached; it should be debated later today.

Deferred adjudication for certain DWIs: HB 3582 by Murr (R-Junction) should pass the House today with an amendment adding language from HB 2258 by Smith (R-Van Alstyne) that requires an ignition interlock as a condition of bond following a DWI with child arrest. After approval on 3rd reading today, it will head to the Senate.

Driver Responsibility Program: HB 2048 by Zerwas (R-Richmond), the repeal-and-replace bill that changes DWI surcharges into state fines, was approved by the House on 2nd reading with several clarifying amendments and will head to the Senate after final House approval on 3rd reading later today.

Grand juries: SB 1492 by Whitmire (D-Houston), the Senate version of grand jury reform, is pending in the Senate Criminal Justice Committee. Its semi-companion, HB 2398 by Thompson (D-Houston), remains pending in the House Criminal Jurisprudence Committee.

Limits on contingent fee legal contracts: The House tentatively approved HB 2826 by G. Bonnen (R-Friendswood) on 2nd reading after adding several amendments that limited the new authority given to the attorney general. It should pass on 3rd reading today and be sent to the Senate. A similar—perhaps narrower—version of the same idea, in the form of HB 2003 by Leach (R-Plano), is also scheduled for debate on today’s House calendar, and that bill has a Senate companion, SB 970 by Creighton (R-Conroe), which is set on the Senate Intent calendar this week.

Limits on legislative input: HB 281 by Middleton (R-Wallisville) remains stuck in the House Calendars Committee but its proponents are trying hard to get it set for a floor debate. SB 29 by Hall (R-Edgewood) has been referred to the House State Affairs Committee.

Marijuana: HB 63 by Moody (D-El Paso), the bill to change low-level marijuana possession to a civil infraction, passed by a 103-42 margin after being watered down (at the governor’s direction) into a Class C offense for POM < 1 oz. (although it would not be an arrestable crime by itself). The bill now heads to the Senate, where that chamber’s presiding officer has pronounced the bill dead on arrival due to his general opposition to lessening any drug penalties.

Bills in House Calendars Committee

We are currently tracking 250 House and Senate bills in the House Calendars Committee. In addition to the bills we told you about last week here and here, other bills of interest include: HB 324 by Murr (educator/student clean-up language), HB 480 by Schaefer (grand jury voir dire), HB 1359 by Wu (attorney bypass of courthouse security), HB 1381 by Wray (agg. assault at a school), HB 2120 by Leach (omnibus court/prosecutor office bill), HB 2874 by Y. Davis (abandoning/endangering elderly), HB 2875 by Y. Davis (evidence in injury to child/elderly/disabled trial), HB 3424 by S. Thompson (expanded post-conviction DNA testing), HB 3500 by J. Gonzalez (appointment of counsel for writs), HB 3824 by Sherman (FV findings), HB 3831 by Sherman (no revocations for technical violations), and HB 4202 by Smithee (out-of-time new trial). If you support or oppose any of them and know members of that committee, speak now or forever hold your peace (in the House).

Looking ahead

Both chambers have full calendars today and local and consent/uncontested calendars tomorrow, then they will take the weekend off (for perhaps the last time). Neither chamber’s floor calendar has been printed for next week, and committees will give little if any notice of their hearings in these waning weeks of the session, so check our next update for what (little) we will know heading into next week.


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

Quotes of the Week (John Whitmire edition)

“The damage is done.”

State Sen. John Whitmire (D-Houston), on why he is still opposed to the confirmation of Secretary of State David Whitley, whose appointment will expire if not confirmed by the Senate before the end of the session.

“It’s not about whether marijuana is good or bad; it’s about whether what we’re doing on enforcement right now is good policy, and we all know it’s not.”

State Rep. Joe Moody (D-El Paso), rebutting an argument on the House floor that his HB 63 would lead to the legalization of recreational marijuana.

“I try not to bring issues that are going to be time-consuming if they’re not going to get support. At this stage, time is value. I still don’t want to do a show-and-tell. I’d like to have a hearing on something that’s got some traction.”

Sen. Whitmire, chairman of the Senate Criminal Jurisprudence Committee, when asked earlier in the week about the prospects in the Senate of HB 63, which would lower POM < 1 oz. to a Class C misdemeanor.

“The reality is we don’t have the votes in the Senate as we talk. … I don’t believe it’s dead and I’m going to do the best I can (to round up support). I’m trying to see if we have the votes in the Criminal Justice Committee to get it to the (Senate) floor.”

Sen. Whitmire, later in the week after HB 63 passed the House.

“Once they’re executed that should be the end. If they want to write something, I would suggest that TDCJ throw it in the trash with all his other belongings.”

Sen. Whitmire (again), criticizing TDCJ for publishing the written statement of John King, who was executed earlier this week for his role in the notorious hate crime slaying of James Byrd, Jr., in 1998. The prison system announced an end to that practice the next day.

“Also, I intend to ask Lt. Governor Patrick to authorize an interim study of the Senate Criminal Justice Committee to review how someone like Mr. King could be on death row for 20 years. It is entirely too long and not fair to the Byrd family and to the State of Texas.”

Sen. Whitmire (yet again), in his official letter to TDCJ after the King execution.

“Were we surprised by that? Absolutely. The Texas Constitution charges the attorney general, the state of Texas’ top lawyer, with defending our state laws and our state constitution. He’s charged with representing the state in litigation that challenges state laws or in lawsuits against state agencies or state employees. In our view, the state constitution doesn’t allow the attorney general to pick and choose which laws he is willing to defend.”

Laura Gibson, chairwoman of the State Bar’s board of directors, in response to news that Texas Attorney General has filed an amicus brief in support of three lawyers suing the Bar over its use of mandatory dues for certain activities.