[*updated: Friday, March 26 5:15pm*]
The Lege has crested the halfway point of its regular session and is now heading downhill to sine die. This will be a high-speed ride that includes climbing, dropping, tilting, sudden and dramatic changes in speed, and occasional backwards motion. Please remain seated, hold onto your lap bar, and keep your hands inside the car for the duration of your ride.
Thursday. Wow.
The roller-coaster nature of the Lege was evident yesterday. House committees went deep into the night and early morning taking testimony on multiple high-profile issues: the George Floyd Act, constitutional carry, election law reforms, taxpayer-funded lobbying, public camping bans, defund the police bans, and more. And little of it went smoothly. One committee abruptly ended with 180 registered witnesses yet to testify; in another hearing, a witness and her supporters had to be escorted out by DPS troopers after some obscenity-filled tirades (which she and others filmed on their cellphones while it happened—welcome to 2021). Two other committees did not adjourn until around 5:00 a.m. today. Heck, even a bill to legalize fantasy sports wagering led to a shouting match between House members. (And no, they weren’t arguing over who to bet on in March Madness.) It was as if all the normal stress of a session that had been pent up by social distancing and masking and limited attendance finally broke loose and flooded the Capitol Extension. It wasn’t pretty, and it was also too much, too fast, and too late into the evening (and morning) for us to recap here. On the other hand, in some ways it was more “normal” (for our legislature) than the way in which this pandemic-tinged session had proceeded so far. All we know for sure is that this session is bound to get weirder before it ends, so stay tuned!
House vs. Senate?
Capitol observers have long known that the differences between legislative chambers can be just as contentious as those between the donkeys and elephants. As this session progresses, the importance placed on criminal justice “reform” may turn into one of the many distinctions between chambers. While Senate committees have mostly focused on non-criminal justice issues, House committees have taken up bills that would limit civil asset forfeitures, raise the age of juvenile jurisdiction, grant early parole consideration for prisoners sentenced for violent offenses, reclassify certain felony drug offenses as misdemeanors, expand the use of subsequent writs, and make substantial policing reforms in the context of the George Floyd Act. (And more House bills in that vein are set next week—see below for details.) This may not be a surprise in the wake of the turnover in the lower chamber—including the selection of a new speaker who was a founding member of the House Criminal Justice Reform Caucus—but it may be useful for you to keep this new dynamic in mind when processing news from Austin this session.
Prosecutorial immunity
On Wednesday, the House Judiciary and Civil Jurisprudence Committee heard HB 2335 by Middleton (R-Wallisville). This bill would make a prosecutor personally liable for significant physical injury, death, or property damage that was a foreseeable outcome of a riot if the prosecutor had established, prior to the riot, a “formal or informal policy” not to prosecute rioters. The hearing started with testimony about the disposition of cases arising out of protests at the state capitol last summer, but it soon morphed into a larger discussion about the proper role of lawmakers and prosecutors in deciding what gets prosecuted and how. Judging from similar discussions elsewhere in the nation, this is not the last time this will be discussed, so let’s take a deeper dive into that debate.
The hearing began with a resource witness from DPS testifying that all of the 22 criminal charges that his agency had filed after summer protests at the state capitol had been dismissed by the local county attorney and district attorney. Now, law enforcement complaints that prosecutors don’t prosecute enough of their cases are not new—and you probably won’t be surprised to learn that the Travis County CA and DA are prosecuting some cases arising out of this past summer’s unrest—but the solution to this problem as proposed by this bill should alarm Texas prosecutors because it would strip you of your immunity from civil lawsuits. That’s very dangerous ground, because part of your job is to make decisions that will disappoint or anger someone no matter what you do. As was pointed out during the hearing, prosecutors need the discretion and ability to be innovative in their approaches to seeking “justice”—a term that was often discussed in the hearing, but never defined.
Another key term in this debate that was not clearly defined is “formal or informal policy.” Many elected prosecutors have established priorities that meet the expectations of their communities, and some advocacy groups encourage prosecutors to adopt this or that “best practice” when handling certain types of cases. However, any prosecutor’s announcement of an official policy—e.g., “My office will no longer enforce ‘x’ law”—is bound to get the attention of the people who wrote “x” law. For instance, at one point in the hearing a committee member opined that prosecutors should not be free to “tear out sections of the Penal Code,” while another pointed out that there are things lawmakers put in statute—such as the now-unconstitutional crime of homosexual conduct still on the books—which prosecutors cannot legally or ethically pursue. And that debate went back and forth.
The legislature usually tries to address local prosecutors who don’t do what they want them to do in one of two ways. The first is to threaten to cut off state grant funding for not enforcing a law. See, e.g., HB 1925 by Capriglione (R-Southlake), which would prohibit local officials (including prosecutors) from establishing a policy not to enforce the public camping ban created by that bill. (That bill was heard in a different committee yesterday and left pending). The second “stick” used by the Lege is to try to give the prosecution job to the attorney general, the state’s chief civil lawyer. See, e.g., SB 252 by Bettencourt (R-Houston), which purports to give public corruption prosecution authority to the AG due to the perceived failure of a local prosecutor to prosecute a specific instance of that conduct. (That bill was heard in committee the previous week and is still pending in that committee.) Now add to that one-two punch this new attack on your prosecutorial immunity in the form of HB 2335, which had support from a local Austin police officer who testified that he supported stripping prosecutors of their immunity even though he opposed efforts in other bills being heard this week to strip peace officers of their qualified immunity. (What can we say, except to note that stress-free cognitive dissonance at the state capitol is a real thing.)
So, how should all this be resolved by policymakers? In our experience, even when a prosecutor’s office tends to handle certain cases a certain way, there are very few absolutes in prosecution. Time and time again we have seen prosecutors use statutes they aren’t necessarily in love with when the case demands it or make exceptions from their usual practice when justice demands it in an individual case. But we are also living in a political culture that seems to be increasingly less tolerant of nuance or compromise or settlement, replacing those qualities with a preference for simplified absolutes: black or white, no gray. The challenge for you is to decide whether or how you want to protect your discretion and authority in such a dichotomous world, because a bill to remove your immunity—even if only initially targeted at a type of case that may have never crossed your desk—directly threatens both of them.
House Bill 2335 was left pending in the House Judiciary & Civil Jurisprudence Committee (membership available here), but this is not the last time this topic will be discussed. If you haven’t already done so, now might be a good time to sit down with your local legislators and educate them about what you do and how you do it.
State of the Judiciary Address
On Tuesday, Texas Supreme Court Chief Justice Nathan Hecht gave his State of the Judiciary Address online. He bragged on how well the court system handled the pandemic compared to some of our sister states, but he also noted that the number of jury trials in Texas dropped from ~9,000 in 2019 to fewer than 250 in 2020. As a result, he predicts we have a three-year backlog on our criminal and civil dockets right now, and he’s seeking more money for visiting judges to help work through that.
The chief also mentioned several policy priorities for the judiciary, including:
- allowing greater use of remote technology in post-pandemic courtrooms (SB 690 by Zaffirini and HB 3611 by Leach);
- bail reform like that proposed by HB 20 by Murr and HJR 4 by Kacal (but not SB 21 by Huffman); and
- gathering data on racial disparities in the court system and improving judicial training.
To watch the full 25-minute address for yourself, click here.
What Schoolhouse Rock left out
That old “How a bill becomes a law” episode was entertaining, but it neglected to mention that the entire legislative system is set up to kill bills, not to pass them. That’s why only 20 percent or so of filed bills ever become law. The primary hurdle is at the committee level—which is why we spend so much time updating you on what is being heard there—but only slightly less important is what happens to bills that emerge from committee. However, that process varies depending on which chamber you are in. Now that bills are being approved by committees, allow us to remind you how things work from there.
In the upper chamber, bills that have a committee’s stamp of approval may be placed on the Intent Calendar to indicate the author’s intent (duh) to bring the bill up for a vote on the floor. That floor consideration requires the approval of five-eighths of the senators present (or 18 of the 31 senators if all of them are on the floor). But even if a senator can clear that hurdle, there is another, larger one: The lieutenant governor, as presiding officer, has the sole authority to recognize a senator to bring up a bill. If the Lite Guv doesn’t like a bill, he can ignore the author’s request to bring up that bill and kill it—even if it has unanimous support otherwise. It’s like a veto that cannot be overridden. (And now you know one of the reasons our state’s lieutenant governor is so powerful.) This system is also why there is no way to know what bills on each day’s Intent Calendar will be heard when—it entirely up to the Lite Guv to call on senators for bills to debate on the floor.
Across the rotunda, House rules are both more (little-D) democratic and more orderly—which is one of the few times that can be said about what is usually the more boisterous lower chamber. Rather than give the speaker powers similar to those of the Lite Guv, the House uses a Calendars Committee to decide (without any public testimony) which bills already approved by a committee get debated on the House floor and in what order the lucky winners get heard. This makes the Calendars Committee members increasingly powerful as the session goes on and bills start dying on the vine due to various deadlines that kick in about six weeks from now. Therefore, if you are interested in a House bill that has received committee approval and you know any members of the Calendars Committee, now is the time to give them a ring and let them know your thoughts. Some bills will fly through House Calendars like a missile, while others will die a mysterious death with nary a fingerprint left behind to determine what happened to it—and that is a feature of this system, not a bug.
For the curious, the members of the House Calendars Committee are: Dustin Burrow (R-Lubbock), chair; Joe Moody (D-El Paso), vice-chair; Tom Craddick (R-Midland), Cody Harris (R-Palestine), Cole Hefner (R-Mount Pleasant), Ana Hernandez (D-Houston), Ben Leman (R-Iola), Jared Patterson (R-Frisco), Toni Rose (D-Dallas), Shelby Slawson (R-Stephenville), and James Talarico (R-Round Rock). Bills currently in (or headed to) that Calendars Committee include:
- HB 39 by Neave (protective orders)
- HB 187 by S. Thompson (subsequent writs w/ prosecutor’s consent)
- HB 225 by S. Thompson (subsequent writs for non-scientific evidence)
- HB 375 by Smith (continuous sexual abuse of disabled individuals)
- HB 488 by Wu (street clothes and no restraints for juveniles in court)
- HB 567 by Frank (limiting termination of parental rights)
- HB 686 by Moody (“second look” early parole consideration for certain offenders)
- HB 744 by Collier (law enforcement agency duty to provide information to prosecutor)
- HB 789 by Geren (evidence tampering punishment in misdemeanor cases)
- HB 873 by Collier (limits on dog tethering)
- HB 1071 by Harris (regulating therapy dogs in court)
- HB 1193 by Wu (sealing of certain juvenile determinate sentence records)
- HB 1403 by Ann Johnson (stacking of sentences)
- HB 1441 by Schaefer (State’s burden to disprove innocent owner in asset forfeitures)
- HB 1540 by S. Thompson (omnibus human trafficking bill)
As the session goes on, we’ll continue to let you know when some tracked bills get to the Calendars Committee; after that, it’s up to you to act on that information. If you have any questions on how to do that, contact Shannon or Rob.
Bill filings
To view the status of bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon.
Floor action
The House passed HB 1024 by Geren (legalizing alcohol-to-go) over to the Senate, while the Senate sent to the House some random bills we aren’t tracking closely.
Upcoming floor calendars
The House and Senate will reconvene on Monday. The House has posted a calendar for Tuesday’s floor debates, but no bills of interest are on it. The Senate Intent Calendar includes SB 12 by Hughes (internet censorship), SB 155 by Perry (purging voter lists), SB 516 by Huffman (ATM damage = 3rd-degree felony), SB 768 by Huffman (fentanyl delivery enhancements), and a half-dozen anti-abortion bills, some of which include new civil and/or criminal sanctions.
Committee news
The House Criminal Jurisprudence Committee approved several bills on Monday, including HB 1441 by Schaefer (State’s burden to disprove innocent ownership in asset forfeitures). For more approved bills, see the list of those now in the Calendars Committee (above). A House committee also approved HB 976 by Price (regional specialty courts), while HB 2190 by White (diversion/deferral of some SJF drug cases) was withdrawn for further revision.
The Senate Jurisprudence Committee voted out SB 343 by Kolkhorst (FV bond conditions in TCIC), SB 516 by Huffman (ATM damage = 3rd-degree felony), and SB 768 by Huffman (fentanyl delivery enhancements). The Senate Criminal Justice Committee will hold its first meeting on Tuesday morning.
Committee notices
The following bills have been posted for hearing in committee this week. For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name below; the text of each individual bill will be accessible on that notice by clicking the bill number.
Monday, March 29
House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 890 by VanDeaver authorizing remote juvenile proceedings over a party’s objection
HB 2669 by Guillen relating to the confidentiality of a child’s misdemeanor records
HB 2772 by Campos relating to the scope of crime victims’ compensation
HB 2924 by Dutton limiting involuntary terminations in CPS cases
HB 2926 by Parker relating to reinstatement of parental rights
HB 3165 by Meyer relating to an affirmative defense to truancy
HB 3315 by Crockett mandating counties create diversion programs for 17-year-old offenders
House Criminal Jurisprudence – 1:00 p.m. or upon final adjournment, Room E2.010 [*note earlier time*]
HB 9 by Klick increasing punishments for obstructing highways during a protest
HB 217 by S. Thompson expanding post-conviction DNA testing
HB 462 by Shaheen increasing penalties for prostitution involving trafficking victims
HB 492 by Wu prohibiting certain no-knock warrants
HB 1002 by Lucio III barring the use of hypnotically-induced testimony
HB 1038 by Beckley repealing the criminal offense of homosexual conduct
HB 1156 by Thierry creating the offense of financial abuse of an elderly individual
HB 1272 by Crockett prohibiting certain no-knock warrants
HB 1599 by Jarvis Johnson barring the use of hypnotically-induced testimony
HB 1717 by S. Thompson prohibiting retaliation against prosecutors for Brady obligations
HB 2315 by Turner relating to street racing
HB 2446 by Canales relating to reimbursement of certain appointed counsel expenses
HB 2448 by Canales relating to discharging a surety’s liability on a bail bond
HB 2631 by Krause limiting the use of in-custody informant testimony
HB 2725 by Martinez Fischer criminalizing vaccine scams
HB 2864 by Collier relating to the Texas Indigent Defense Commission
HB 3022 by Herrero authorizing statutory county courts to process expunctions
HB 3224 by Leach exempting certain peace officers from exclusion under The RuleHB 3478 by Rose relating to street racing (pulled from consideration)
HB 3830 by Collier relating to a prosecutor’s continuing Brady duties
HB 3875 by Crockett narrowing the definition of compelling prostitution
Tuesday, March 30
House Human Services – 8:00 a.m., E2.030 [*updated*]
HB 3041 by Frank authorizing a pilot program alternative to child removal in CPS cases
HB 3379 by Leman revising the duty to report child abuse and neglect
HB 3820 by Klick limiting medical consulations in child abuse investigations
Senate Criminal Justice – 8:30 a.m., E1.016
SB 36 by Zaffirini relating to hazing
SB 48 by Zaffirini mandating supervision conditions in certain animal cruelty cases
SB 111 by West clarifying law enforcement duties to provide information to prosecutors
SB 112 by West relating to applications for and orders installing mobile tracking devices
SB 237 by Bettencourt adding certain criminal trespasses to the cite-and-release statute
SB 281 by Hinojosa barring hypnotically-induced testimony at trial
SB 476 by Nelson mandating sexual assault review teams in all counties
Senate Veterans Affairs and Border Security – 8:30 a.m., 2E.20
SB 623 by Blanco relating to sexual assaults by or against Texas Military Forces members
SB 1093 by Creighton relating to veterans treatment court programs
SB 1179 by Birdwell relating to juror pay donations
Wednesday, March 31
House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.014
HB 1177 by Crockett prohibiting the imposition of court costs/fees on indigent defendants
HB 1837 by Gonzalez banning profiling of motorcyclists by peace officers
HB 2441 by White cleaning up various fine, fee, and court cost changes from last session
HB 2485 by Herrero exempting cops and firefighters from jury service
HB 2702 by Landgraf revising information in OCA’s protective order registry
HB 2703 by Landgraf removing certain information from OCA’s protective order registry
HB 3295 by S. Thompson authorizing local prosecutors’ DTPA actions vs massage parlor
HB 3377 by Krause allowing the recovery of attorney’s fees in certain civil cases
House Corrections – 8:00 a.m., E2.026
HB 1640 by Sherman relating to medication-assisted opioid treatment at TDCJ
HB 3002 by Burns authorizing pre-arrest theft diversion programs by merchants
HB 3432 by Murr relating to the civil commitment of sexually violent predators
Senate State Affairs – 9:00 a.m., E1.028
SB 56 by Zaffirini making confidential federal prosecutors and public defenders’ personal information
SB 1025 by Birdwell revising disaster declaration powers and authority
SB 1134 by Hughes relating to address confidentiality of certain federal officials
SJF 45 by Birdwell proposing a constitutional amendment on disaster powers
Thursday, April 1
House Elections – 8:00 a.m., E2.028 [*new*]
HB 6 by Cain relating to election fraud
Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
(not posted yet; check here for future postings)
House Homeland Security & Public Safety – 10:30 a.m. or upon adj., E2.030 [*new*]
HB 929 by Sherman, aka the “Botham Jean Act”, aka “Bo’s Law”
HB 1550 by Cyrier, the TCOLE Sunset re-authorization bill
HB 1920 by Capriglione relating to firearms in a secured area of an airport
HB 2650 by Jarvis Johnson regarding placement of children after an arrest
Prosecutor rotation
Thanks to Cherokee DA Elmer Beckworth and Midland DA Laura Nodolf and the assistant prosecutors who came to Austin this week to work on legislation.
If you want to see how the sausage is made, contact Shannon for details on how to get involved in Austin. 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 between now and mid-May to participate in the three-ring circus that is the Texas Legislature.
COVID and the capitol
For those coming to the legislature in the remaining weeks of the session, remember that Senate committee rooms require proof you are negative for COVID-19 for entry or to provide testimony. You can obtain that proof in the M*A*S*H tents outside the north doors of the capitol either by submitting to a free rapid test or by presenting a COVID-19 vaccine card and matching ID. Don’t forget to factor that additional time into your visits.
Scattershooting
Here are some articles we read this week that you might find interesting:
- “Texas’ George Floyd Act seeks to reform violent police behavior. But a sticking point centers on protecting officers from lawsuits.” (The Texas Tribune)
- “Child Protective Services draws scrutiny from Texas lawmakers eager to trim its duties, powers” (Dallas Morning News)
- “The rioter next door: How the Dallas suburbs spawned domestic terrorists” (The Washington Post [reprinted for free courtesy of The Texas Tribune])
- “Mass shootings are soaring, with Black neighborhoods hit hardest” (The Trace)
- “Lawmakers, mermaids, pie, elephants, pen pals and Dr Pepper” (Austin American-Statesman)
- “‘Back the Blue Act’ passes Texas Senate committee as GOP seeks to rein in defunding efforts” (Dallas Morning News)
- “Virginia, with 2nd-most executions, outlaws death penalty” (AP)
Rural prosecutor internships
The Deason Criminal Justice Reform Center at SMU Law School is launching a program to place law school interns with rural prosecutors and public defenders this summer. For more details, see this posting on our website.
Welcome, Stephanie!
TDCAA has a new research attorney! Stephanie Huser started this week after taking the bar exam last week. (Can you imagine having to take that test mid-pandemic and post-winter freeze?!?) We are thrilled to have her on board, and she is ready to take your legal questions. You can reach her at our office number (512/474-2436) or [email protected].
Quotes of the Week
“In Texas, we have to stand for public safety. … Law enforcement, innocent individuals, and small businesses have suffered from criminal conduct over the past year, and frankly, prosecutors should be liable for those damages when justice is willfully not served by design.”
—State Rep. Mayes Middleton (R-Wallisville), laying out HB 2335 in committee, his bill to impose personal liability upon prosecutors who fail to prosecute certain riot cases. (Committee footage available here; the 75-minute-long discussion of the bill starts around the 0:38:30 mark.)
“I am concerned about the number of alcohol-related accidents and deaths in the state of Texas.”
—State Rep. Matt Shaheen (R-Plano), explaining his lone “nay” vote against HB 1024 by Geren (R-Fort Worth), the alcohol-to-go bill arising out of pandemic practices.
“It may be back to the same situation you had over the interim, where the Legislature [adjourns] sine die, and it’s again back in the hands of the governor, without the Legislature having anything to say about it.”
—State Rep. Donna Howard (D-Austin), raising concerns that recently-approved federal recovery funds may not arrive from Washington, D.C., quickly enough for the Legislature to appropriate it before the end of the session.
“All we do is go on Twitter and TV and call the other side douchebags.”
—Congressman Adam Kinzinger (R-IL), bemoaning the sorry state of political interaction in the country right now.
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