TDCAA Legislative Update: Week 18, Part II

May 8, 2019

The final House calendar for non-local House bills has been set for tomorrow; bills not on it are dead, and some bills that are on it are also dead—they just don’t know it yet—because they won’t be reached before Thursday’s midnight deadline. Pour one out for everyone whose bill will turn into a pumpkin then.

Judicial branch pay raises

House Bill 2384 by Leach (R-Plano), the tiered pay raise bill that currently includes district and county attorneys, is up for consideration in the Senate State Affairs Committee tomorrow at 9:00 a.m. in the Senate chamber. Earlier this evening, we were given a preview of the committee substitute version to be laid out in that hearing. The good news is that prosecutors are still in it, but it has been slimmed down to fit within the state budget writers’ original parameters. Here’s a quick thumbnail of the (somewhat complicated) provisions that affect prosecutors:

  • The original three 10-percent raise tiers are reduced to two for DAs and district judges:
    • $140k for 0-4 years (current baseline)
    • $154k for 4-8 years
    • $168k for 8+ years
  • District judges and DAs lose the third-tier raise (after 12 years) in the original version, but the most experienced judges will get some of it back through an acceleration and increase of their current longevity pay, which will kick in at 12 (instead of 16) years of service
  • Elected prosecutors have no similar longevity pay, but DAs’ county supplements will remain uncapped; however, highly-supplemented prosecutors may see no raise from this bill—it will depend on their years of service and supplement amount
  • DAs’ 2.3-percent retirement multiplier will be maintained
  • The fate of the retirement “make-up” pay that DAs currently get from the comptroller is uncertain and it may go away; its fate will be decided by the HB 1 conference committee
  • The House amendment to credit district judges for prior service as a DA is being dropped to help control the cost of the bill (That may create a financial disincentive for a DA to run for a district court bench, but we’re betting the current judges don’t mind that)
  • The county attorney supplement provisions are still in the bill and will be calculated under the new formula using the service credit of a similarly-tenured district judge
  • Retired DAs will receive no ERS increase
  • In some circumstances, the new formula could encourage a county to cut a DA supplement and allow the state to pick up the salary, which might negatively impact the DA’s TCDRS retirement benefits; that will vary by jurisdiction and will be up to each local community to work out.

So, in summary: Under this plan, most DAs will get a raise after four years and against at eight years; others will see no raise after four but will see a raise after eight; a few high-salaried DAs will not see a raise at all under this plan; and CA supplements will also increase, but in smaller percentages due to the existing formula already in place. In each case, the amounts in question will vary from person to person and county to county, so if you have questions about any of this, email Rob or call him at 512/971-8425. He stands ready to calculate your expected pay under this bill if you are curious!

Meanwhile, if you still support this proposal in its new format, now is the time to let your senator(s) know that.

Continuing attempts to limit your voice in Austin

House Bill 281 by Middleton (R-Wallisville) was not calendared for debate before the applicable deadline and is now dead. Congratulations to all of you who opposed that bill and worked to keep it from reaching the House floor. But unfortunately, the march to muzzle local officials at the legislature continues; here’s the latest information we have on that front.

While HB 281 is dead, its more robust cousin, SB 29 by Hall, is still alive and kicking. That bill is now in the Calendars Committee and has until Sunday, May 19 to be placed on the final House calendar for Senate bills later that week. The bill has been narrowed somewhat (latest version available here), but it would still:

  • prohibit local governments from spending funds to attempt to influence legislation pertaining to taxation, bond elections, tax-supported debt, or “ethics and transparency of public servants” (whatever that means);
  • prohibit local governments from paying dues or other monies to any association or organization unless it exists “for the betterment of all local officials” (not just a particular group like prosecutors or clerks, but all local officials); and
  • requires local governments to issue an annual report publicizing how much money they spend on lobbyists.

As we’ve repeatedly noted, this bill prohibits expenditures of county funds for membership in organizations like TDCAA, TCDLA (for public defenders), TAC, the Sheriffs’ Association of Texas, and numerous other similar groups. Even though SB 29’s anti-lobby provision has been limited to certain subjects, legislation on those subjects may be extremely detrimental to your ability to address the needs of your respective offices and communities—not to mention the fact that the list of prohibited policy topics could be expanded on the House floor by amendment. Therefore, if you are concerned about this legislation, you should consider contacting any members of the House Calendars Committee that you know and ask them to hold SB 29 in committee (just as they did with HB 281).

In addition, the House State Affairs Committee heard SB 702 by Bettencourt (R-Houston) earlier today which would require any lobby expenditure by a political subdivision to be specifically authorized by the governing body of the subdivision in an open meeting by a majority vote of the governing body as a stand-alone measure, as well as requiring various public disclosures of that funding to the public. How this bill would apply to expenditures by a prosecutor—who is an independent constitutional officer but who relies on local counties for his or her funding—is unclear. Should it be interpreted to give your local commissioners a “purse string veto” over your involvement in the legislative process, it may be very concerning to some of you. The bill was left pending in House State Affairs, so if you oppose this idea, consider contacting the members of that committee (and if it proceeds from there, then the House Calendars Committee members as well).

House floor fun

If you had any doubts about our frequent warnings that otherwise palatable bills can metastasize into something bad on the often-unruly House floor, last night was a good lesson of that maxim in action.

Yesterday’s House calendar included HB 2613 by Frullo (R-Lubbock), a non-controversial, uncontested bill creating a new trafficking-related crime and directing forfeiture proceeds from the prosecution of that crime to trafficking victim services. Upon being called up around 7:30 p.m., the bill immediately starting getting amended on the floor, first with increased forfeiture auditing and reporting requirements, then with language that applied the exclusionary rule to those civil cases. Despite vocal opposition from Reps. Frullo, Andy Murr (R-Junction), Phil King (R-Weatherford), and several other House members, both amendments were approved on division (non-record) votes, at which time Rep. Frullo postponed his bill to a date past sine die, killing it. Some saw that as a drastic measure, but we recognized it as him keeping his word to interested stakeholders earlier in the session that he would not let his bill be hijacked by unfriendly amendments. It is no small thing for a legislator to kill one of his own bills—especially one so close to possible passage—but it’s nice to know that some legislators are true to their word, and Rep. Frullo deserves credit for doing so. And it all worked out well for him in the end, because earlier today he was able to resurrect HB 2613, strip off the uninvited amendments, and pass a “clean” version of the original. So sometimes these legislative stories do have a happy ending.

That said, there is yet another vehicle for forfeiture-related amendments on the horizon: HB 2058 by Hernandez (D-Houston) is on the final House calendar for Thursday, and if it is reached, it will likely be subject to the same attacks. Her staff has given us assurances similar to those given by Rep. Frullo, but once again we will watch with interest and keep everyone updated as events warrant.

Updates on other major issues

House bills are dying by the hundreds (thousands?) this week (but see our caveat in the section following). With that in mind, here’s where things stand on some issues that we’ve been following this session (listed alphabetically):

AG’s expanded authority: HB 3979 by Leach (R-Plano) was not calendared and is dead. Its Senate companion, SB 1257 by Huffman/Leach, is pending in the House Calendars Committee.

Asset Forfeiture: HB 1615 by Schaefer (R-Tyler) to require the State to disprove the innocent owner defense was not calendared and is dead.

Bail bond reform: HB 2020 by Kacal (R-College Station) (limitations on bail) is on today’s House calendar for debate and took several amendments before being temporarily postponed due to some points of order. However, HB 1323 and HJR 62 by Murr (R-Junction) (preventative detention) and HB 3283 by White (R-Hillister) (bondsmen’s version) were not calendared and are dead.

Death penalty: HB 1139 by S. Thompson/Miles to require pre-trial determination of intellectual disability in death penalty cases was heard today in the Senate Criminal Justice Committee and left pending. HB 1936 by Rose (D-Dallas) to exempt seriously mentally ill offenders from the death penalty was heard today on second reading and passed without debate or objection, but we are told it may lack the votes to pass by record vote on third reading tomorrow, so that may or may not happen.

Deferred adjudication for certain DWIs: HB 3582 by Murr/Menendez was heard today in the Senate Criminal Justice Committee and voted out as substituted; it will be eligible for consideration by the full Senate next week.

Driver Responsibility Program: HB 2048 by Zerwas/Huffman, the repeal-and-replace bill that changes DWI surcharges into criminal fines, is awaiting debate on the Senate floor.

Grand juries: HB 2398 by Thompson (D-Houston) was never calendared and is dead. Its semi-companion, SB 1492 by Whitmire (D-Houston), is pending in the Senate Criminal Justice Committee, but a slimmed-down committee substitute version may emerge from that committee soon (contact Rob for the latest intel).

Limits on contingent fee legal contracts: HB 2826 by G. Bonnen (R-Friendswood) is now awaiting consideration in the Senate State Affairs Committee.

Marijuana: HB 63 by Moody (D-El Paso) (Class C POM) passed the House but has not been referred to a committee yet. HB 1365 by Lucio III (D-Brownsville)—a relatively expansive “medical cannabis” law—and HB 3703 by Klick (R-Fort Worth) (compassionate use program) passed the House this week and are also awaiting referral to a committee in the Senate. If not referred to committees by the Lite Guv, these bills will be dead.

It ain’t over ’til it’s over

Even though the clock has run out on most House bills, it’s too early to throw dirt on the ideas they contained. Some have Senate companions that are still alive, and any idea or language that has not been voted down can re-appear as a floor amendment at any time. Senate bills have 11 days (until Sunday, May 19, at 10:00 p.m.) to be placed on the final House calendar for consideration in that chamber, and both chambers have until Wednesday, May 22 at midnight to finally pass on third reading. In other words, … there’s no rest for the weary just yet!


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

“I’m dealing with my three kids, I’m dealing with my career, the fourth baby coming and the stress of law school. Just because you do an apprenticeship does not mean that it’s anything less—I mean, you have to put in 18 hours a week. It is a full commitment. I won’t have time for events, for favors, for friends, for literally anything, for four years.”

Kim Kardashian West, bemoaning the time and effort it takes to become a lawyer.

“Vote yes if you support open season on drones so you can protect your private property from gun-toting drones that could have lasers.”

State Rep. Briscoe Cain (R-Houston), arguing in support of his floor amendment to HB 4448 by Springer (R-Muenster) that would have allowed people to shoot down drones with a shotgun. Rep. Cain’s amendment failed on a vote of 81–56, and Springer’s bill was eventually voted down by a 95-50 vote.

“Members, I move to postpone further consideration of HB 2613 until 12:00 noon, January 12, 2021.”

State Rep. John Frullo (R-Lubbock), temporarily killing his own bill on the House floor after it took several unfriendly amendments that he could not defeat.

“TX House had a discussion abt civil asset forfeiture that was long overdue. Proud to lead us forward w/2 significant reforms that passed w/bipartisan support. Ultimately the bill was pulled down, but opponents to reform should note the votes and be very afraid. #txlege #CJReform

Tweet by State Rep. Joe Moody (D-El Paso) after Rep. Frullo initially pulled down his bill.