TDCAA Legislative Update: Week 5

February 8, 2019

Weather in Texas is rarely boring, is it?

State of the State

The governor shifted the Legislature from first gear into second gear this week by giving a State of the State Address on Tuesday that included the following five issues as “emergency items” (listed in the order they were announced by the governor):

  • School finance reform and increasing teacher salaries;
  • School safety;
  • Property tax reform and direct election of county tax appraisers;
  • Creating a state mental health care consortium; and
  • Natural disaster preparations and recovery.

These emergency issues can now be heard in committees and debated on the floor of either chamber immediately. In fact, the Senate held a committee hearing on SB 2, the proposal to cap local property tax increases, the very next day after the governor’s address, so the major topic of this session is already off and running.

Besides these emergency items, the governor also expressed his support for several public safety-related initiatives, such as continued funding for border security, new anti-gang fusion centers in Waco and Tyler, new funding for tackling the rape kit backlog, and more funding for human trafficking investigations, along with new mandatory minimum prison sentences for human traffickers. However, one topic notably absent from his list of priorities was anything related to bail bond reform; more on that below.

State of the Judiciary

On Wednesday, Chief Justice Nathan Hecht gave the State of the Judiciary address to the combined houses of the legislature. After commending local courts for (literally) weathering the Hurricane Harvey storm, he urged lawmakers to:

  • Change the judicial selection process, or at least make elections non-partisan;
  • Pass SB 387, the “judicial retention” pay raise bill we summarized last week;
  • Pass SB 561 to increase minimum qualifications to serve on the bench;
  • Pass SB 628 to reform pretrial release on bond (more on that below);
  • Pass SB 346 to simplify court costs and ensure they go to court-related services; and
  • Treat juveniles’ Class C offenses as civil infractions (as done with truancy four years ago; bill has yet to be filed).

These were just a few of the suggestions he had for the legislature, but they are the ones we will probably spend the most time following this session.

Bail bond reform

Prior to both of the addresses mentioned above, State Sen. John Whitmire (D-Houston) and State Rep. Andy Murr (R-Junction) laid out the bail bond reform legislation championed by Chief Justice Hecht and certain reformers. For those of you who remember this topic from the debate over Sen. Whitmire’s Senate Bill 1338 last session, new SB 628 and its identical House companion, HB 1323, will look familiar (although not identical). Here’s a short summary of the procedures imposed by these latest bills:

  • Magistrates must use validated pretrial risk assessments;
  • All arrestees are entitled to a presumption of release on the least restrictive conditions and the minimum amount of bail, if any;
  • Magistrates can grant release on personal bond or money bond, both with or without conditions;
  • Magistrates can deny bail (if authorized by public approval of a constitutional amendment to be put on the ballot by SJR 37/HJR 62);
  • If denied bail, an arrestee has a right to a lawyer and a full evidentiary hearing within 10 days, at which hearing witnesses may be called and examined;
  • After a hearing, the magistrate must grant some form of release unless the State proves by clear and convincing evidence that the arrestee is a flight risk or will endanger the public/victim; and
  • Arrestees may appeal any denial of bail.

Some additional notes:

  • The effective date for these changes would be September 1, 2020, to allow the courts time to prepare for the impending changes after any vote on the constitutional amendment.
  • The constitutional amendment must be approved by voters to authorize outright denial of bail, but if it fails to be adopted, the rest of the bill—presumptive release on minimum terms, etc., for all cases—would still go into effect.
  • The bill is being called the “Damon Allen Act” after a DPS trooper who was murdered by an offender out on bond.

For those of you who read through new SB 628 and wonder why the provisions requiring pretrial detention hearings that were taken out last session are now back in this session’s version of the bill … well, we don’t have a verifiable answer for you, but we do have an informed guess. We know that there were lengthy negotiations between proponents of last session’s reforms and staff from the governor’s office during which the two sides tried to meld last session’s bill and Governor Abbott’s interim proposal for a Damon Allen Act, but it appears that they never found common ground (which might explain the omission of any mention of bail bond reform in the governor’s State of the State address.) Instead, the pretrial detention hearings were probably put back into the bill as a response to situations like those that led to the murder of Trooper Allen, and the bill was named after him even though his widow and surviving family did not participate in the press conference rolling out the bill (which we found unusual—although they were present for the chief justice’s state of the judiciary address the next day).

Also, unlike last session, we anticipate at least one, and maybe two, other “bail bond reform” bills to be filed in the next month. One will be from the bail bondsmen, who purport to have language that would codify the Fifth Circuit’s decision out of Harris County; the other may be a bill that more closely hews to Governor Abbott’s original idea for a Damon Allen Act. Either way, this issue is far from settled, so if you want to participate in that discussion in Austin—especially as it relates to prosecutors’ new duty to participate in (and ultimately be held responsible for the results of) these pretrial detention hearings—contact Shannon for the latest information.

Incarceration overview

The Legislative Budget Board (LBB) gave the House Appropriations Committee an overview of TDCJ and TJJD population projections and related information this week, and we thought you might find some of that information interesting. Here are some key items taken from the LBB’s report:

  • Prison, parole, and felony adult probation populations are expected to remain steady for the next five years, while misdemeanor probation caseloads are projected to continue their decline.
  • Prosecutors and probation departments continue to expand their pretrial diversion programs but need additional substance abuse and mental health rehabilitation resources for those programs to be successful (especially in rural areas).
  • The three-year re-arrest rates for offenders released from TDCJ in 2015 remain steady for state jail (63 percent) and prison (45 percent) offenders, but less than half of each of those cohorts who get re-arrested end up back in prison, which means graduated sanctions are being used.
  • The 2018 felony probation revocation rate was only 16 percent, while the parole revocation rate was even lower at 8 percent, so that seems competitive when compared to many other states.
  • Later testimony in another hearing revealed that half of those felony probation revocations are for new offenses and another quarter of all revocations are absconders, so the overall felony probation revocation rate for pure technical violations is probably somewhere in the range of about 4 percent.
  • TJJD’s juvenile correctional and probation populations are predicted to increase slightly due to recent upticks in referrals for violent crimes.
  • Average costs per day remained relatively steady for TDCJ ($62), parole ($4.40), and probation ($3.75), but increased for TJJD ($480) and juvenile parole ($41) and decreased for juvenile probation ($13.55). (Keep these adult-to-juvenile disparities in mind for the next time someone asks you why the Raise the Age bill is so expensive.)

Budget news

The following members of the House Appropriations Committee were assigned to the Subcommittee on Articles I, IV, and V (General Government, Judiciary, and Public Safety): Oscar Longoria (D-Mission), chair; Rick Miller (R-Sugar Land), vice-chair; Brad Buckley (R-Lampasas), Giovanni Capriglione (R-Southlake), Jarvis D. Johnson (D-Houston), and Gene Wu (D-Houston). That subcommittee is scheduled to consider judicial pay raise and prosecutor longevity pay on Friday, February 15.

New bills to watch

As of yesterday, we are tracking 636 (27 percent) of the 2,325 bills filed to date. (Both of those numbers roughly doubled in the past week, by the way.) Here is another entry highlighting 10 20* interesting bills filed in the past week or so [*Ed. note: The bill-filing pace is picking up so we are expanding this section to keep up]:

  • HB 1202 by Collier, limiting the prosecution of theft offenses related to rent-to-own agreements
  • HB 1223 by VanDeaver, increasing enforcement of child custody agreement violations
  • HB 1240 by Y. Davis, lowering the penalty ranges for habitual theft offenses
  • HB 1261 by K. Bell, expanding the presumption of child endangerment by drug exposure
  • HB 1271 by S. Thompson, granting retroactive early parole consideration to violent offenders
  • HB 1279 by Allen, revising the jury instructions on parole eligibility
  • HB 1316 by Moody, authorizing prosecutors to provide CCH information in lieu of certain notices
  • HB 1320 by Moody, requiring larger counties to implement mental health courts
  • HB 1343 by Leach, criminalizing inmate contact with their adult victims
  • HB 1381 by Wray, increasing penalties for certain aggravated assaults on school property
  • HB 1389 by S. Thompson, on sentencing offenders who are the primary caretaker of a child
  • HB 1399 by R. Smith, collecting DNA samples from certain arrested offenders
  • HB 1419 by S. Thompson, permitting felons on probation or parole to vote
  • HB 1452 by S. Thompson, accelerating eligibility times for nondisclosure applications
  • HB 1498 by Metcalf, expanding the scope of the offense of continuous sexual abuse of a child
  • SB 535 by Campbell, lowering penalties for licensed carrying of a handgun into certain prohibited places (including churches)
  • SB 549 by West, regulating the operation of motor-assisted scooters
  • SB 584 by Watson, expanding the factors establishing lack of consent in sexual assaults
  • SB 587 by Watson, collecting data on the investigation and prosecution of sexual assaults
  • SB 693 by West, requiring the reporting of certain information on Class C family violence cases

To read any bill, go to, enter the bill number in the appropriate field, and click “go”—then on the subsequent webpage, select the tab at the top of the page for the information (history, bill text, actions, authors, etc.) you want. And as always, you can contact Shannon or Rob if you are having trouble finding the information you seek.

Next week

Legislative committees will hold their organizational meetings while they await bills to be referred to them for consideration (hearings on bills will likely start the week of February 18); the House Appropriations Committee will start digging into their budget items that impact your business; and bill filings will increase to roughly 100 new proposals per day (don’t worry, we went to our optometrist and ordered new eyeglasses before session for just such an occasion).

As we mentioned last week, if you are serious about proposing new legislation, you need to get your bill idea into a legislator’s hand by next week. The official deadlines don’t kick in for another month, but bills filed close to that deadline usually lack sufficient time to navigate all the hurdles before adjournment at the end of May.

Legislative rotation sign-up

Remember, if you aren’t at the table in Austin, then you are on the menu! In you are interested in participating in the legislative process, please contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time to come to hang out with us.

New DWI Manual on the way

Thanks to funding from TxDOT, we are shipping copies of our new DWI manual to all prosecutor offices in Texas. The updated edition of the book has been reorganized to include more material on blood search warrants (and other ways to obtain blood evidence in an impaired driving case) as well as a new chapter on drugged driving. The manual includes up-to-date caselaw, and related documents and instructional videos are accessible on the TDCAA website. Books are shipped to each office based on the number of prosecutors indicated in TDCAA’s membership database. Additional copies may be purchased for $45 via the TDCAA website.

Quotes of the Week

“Who else is going to divert offenders who should re-enter society, and prosecute the people who should be incarcerated to protect the public? This is a question of how fast do our funders really want to reform our justice system?”

Kim Ogg, Harris County DA, explaining her funding request to hire 140 new staff members, for which she is now facing criticism from certain advocacy groups who have supported many of her recent policies.

“The issue is that the salaries have remained stagnant, and the student loan debt has risen so much that it’s just not feasible to go into a job that pays $60,000 when they have over $200,000 in debt.”

Michaela Andruzzi, Carroll County (NH) County Attorney, explaining what’s behind the lack of applicants for her open prosecutor positions.

“The state needs a 12-step program, and the first step is to publicly admit, ‘I am the State of Texas, and I am addicted to local property taxes.’”

David Thompson, a lawyer who has represented both the state and school districts in lawsuits over school funding.

“Colombia is to cocaine as Colorado is to marijuana.”

Randy Ladd, spokesman for the DEA’s Denver field office, describing the impact of Colorado’s state law that allows people to grow large amounts of marijuana in their residences, which has led to the state becoming a prime location for grow houses operated by international drug syndicates.

“I don’t believe I’ve seen anything more broken in the criminal justice system than our current bail bond process. … The current bond system in the state of Texas does not serve public safety. It is actually endangering all of us.”

State Sen. John Whitmire (D-Houston), explaining why he filed SB 628 to reform pretrial release laws.