TDCAA Legislative Update: Week 13

April 9, 2021


We are in the middle of the “confetti bomb” stage of the session: The bomb has gone off and everything is still flying around in mid-air, making it hard for us to know what is happening until everything hits the ground and stops moving. Unfortunately, by that time—aka sine die—it will be too late to do much about it. We’ll do the best we can until then, which also includes sending part of this week’s update now and the rest in a supplement TBD.

Grand jury “reform” next week

Many felony prosecutors have been struggling to keep their local grand juries up and running during the pandemic, so what better time for the Texas Legislature to consider making that difficult job even more time-consuming and expensive, right?

On Monday, the House Criminal Jurisprudence committee will hear HB 179 by S. Thompson (D-Houston), the omnibus grand jury reform bill proposed by the Texas Public Policy Foundation and Right on Crime people and supported by some current and former statewide elected officials. Chairwoman Thompson has been pushing to allow defense attorneys in the grand jury off and on since 1991, but her bill for the past few sessions has been that idea on steroids. Here is what the bill would do:

  • Every witness to or target of an investigation is entitled to a lawyer in the grand jury
  • A target is entitled to full discovery before appearing before a grand jury
  • All questions, statements, and comments made by prosecutors, grand jurors, and witnesses must be recorded (other than the jurors’ deliberations)
  • The State must present all exculpatory evidence in the State’s possession to the grand jury
  • If a person is no-billed, a second grand jury may not investigate or return an indictment against that previously investigated person absent new, material evidence
  • Regardless of whether a grand jury returns a true bill or no bill, the target/defendant can sue the prosecutor for attorneys’ fees and other related expenses which shall be awarded if the court finds that “the position of the prosecutor was vexatious, frivolous, or in bad faith.”

Prosecutors’ views on these ideas have been consistent for the past three decades: This is bad public policy that will endanger crime victims, impair important investigations, and chill prosecutions of the rich and powerful. The good news is that those arguments have been accepted and followed by past legislatures. But don’t be lulled into thinking that past results guarantee future outcomes, especially during this session of “criminal justice reform” in the Texas House. If this issue is important to you, read the text of the bill and start talking to members of the Criminal Jurisprudence Committee now if you have a relationship with any of them.

Those interested in testifying on the bill Monday should contact Rob Kepple for more information.

Other hot button issues

Here is a brief update on some of the other high-profile issues we’ve been following for you this session.

Appellate re-organization: SB 11 by Huffman (R-Houston) is being shelved by its author due to a lack of time left in the session; SB 1529 by Huffman is scheduled for consideration on the Senate floor any day now.

Bail reform: A substitute version of HB 20 by Murr (R-Junction) was voted out of committee earlier today; we talked about the filed version of that bill last week, but the new text should be available online in a few days. HJR 4 by Kacal (R-College Station) was not voted out, and none of the provisions of HB 20 that allow denial of bail for certain violent or sex crimes can take effect without the passage of HJR 4, so keep an eye on that one. The Senate has a different version of bail reform—SB 21 by Huffman (R-Houston)—which was voted from committee this week and could reach the Senate floor next week.

Ban on local advocacy: SB 10 by Bettencourt (R-Houston) was considered in the author’s committee on Tuesday and left pending. A proposed substitute version waters downs the negative impact of its ban on so-called “taxpayer-funded lobbying” but still subjects local officials to civil lawsuits for potential violations. A different House version—HB 749 by Middleton (R-Wallisville)—has been pending in committee since it was heard on March 25th.

CPS reform: The House overwhelmingly passed HB 567 by Frank (R-Wichita Falls), a bi-partisan smack-down of that agency which shortens time limits and makes it more difficult to remove children in cases of alleged neglect (among many other changes). The bill’s Senate companion—SB 190 by Hughes (R-Mineola)—was heard earlier this week and is still pending before the author’s committee.

Committee notices

If you are interested in the fate of a House bill, the clock will likely run out on it unless it is heard by a committee no later than Friday, April 23. (Senate bills have another week or two of life beyond that.) As a result of that impending unofficial deadline, the list of bills being heard in committee is getting mind-numbingly long, so we’re going to list only the more interesting or controversial bills. (Yes, this is just a *partial* list—be glad we don’t give you the full one!) For a full agenda of all the 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, April 12

Senate State Affairs – 9:00 a.m., Senate Chamber
SB 1646 by Perry relating to child abuse and child endangerment in gender transition/re-assignment

House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 2108 by Wu revising procedures and notices for juvenile transfers to adult courts
HB 2308 by Gates limiting CPS intervention in certain cases of alleged child abuse
HB 3660 by White mandating youth diversion programs for fine-only offenses
HB 3994 by Neave barring certain modifications of juvenile probation for technical violations
HB 4055 by Meza barring CPS intervention in certain cases involving drug use during pregnancy
HB 4240 by Raymond authorizing local ordinances to criminalize interference with child custody

Senate Local Government – 12:30 p.m., Capitol Extension Auditorium
SB 987 by Buckingham banning camping in a public place and requiring enforcement

House Criminal Jurisprudence – 1:00 p.m. or upon final adjournment, Room E2.010
HB 138 by Landgraf increasing the punishment for DOC-Peeping Tom
HB 179 by S. Thompson relating to grand jury proceedings
HB 302 by Collier clarifying consent for the purposes of the offense of sexual assault
HB 347 by Geren criminalizing false or misleading statements used to acquire a firearm
HB 369 by Craddick extending the statute of limitations for aggravated assaults involving communicable diseases
HB 624 by Shine increasing the criminal penalty for certain retaliation offenses
HB 687 by Lozano relating to the offense of smuggling of persons
HB 859 by Collier authorizing the quasi-expunction of records of certain offenses
HB 1814 by J. González authorizing a witness confidentiality and protection program
HB 2290 by S. Thompson expanding the affirmative defense of duress
HB 2357 by Reynolds exempting certain information about crime victims from open records disclosure
HB 2794 by S. Thompson relating to extraneous evidence in trafficking/sexual crimes trials
HB 2795 by S. Thompson creating the offense of solicitation of prostitution and making conforming changes
HB 2987 by Julie Johnson enhancing the punishment for indecent assault
HB 3110 by Meyer changing the term “child pornography” to “child sexual abuse material”
HB 3111 by Meyer expanding the offense of online solicitation of a minor to third parties
HB 3157 by Reynolds relating to the elements of and punishment for improper sexual activity with persons in custody
HB 3363 by Harless relating to search warrants for electronic location information
HB 3505 by White authorizing a court to require confined defendants to plead by remote technology
HB 3601 by Leach relating to automatic orders of nondisclosure in certain deferred adjudications
HB 3789 by Guillen extending the statute of limitations for tampering with corpses
HB 3988 by Guillen authorizing private attorneys to serve as prosecutors pro tem in justice and municipal courts
HB 4175 by Landgraf mandating certain law enforcement actions in strangulation cases
HB 4528 by Guillen enhancing the punishment for human trafficking
HB 4565 by Ramos expanding sexual assault to include any sexual conduct between an officer and a person being detained, arrested, or confined.

Tuesday, April 13

House Business & Industry – 8:00 a.m., E2.028
HB 2942 by Bernal authorizing local DAs and CAs to pursue DTPA actions involving price-gouging during disasters

Senate Criminal Justice – 8:30 a.m., E1.016
SB 109 by West expanding the criminal offense of securing execution of a document by deception
SB 223 by Whitmire prohibiting law enforcement from participating in reality TV shows
SB 474 by Lucio relating to the unlawful restraint of a dog
SB 503 by Miles creating the criminal offense of failing to report abuse, neglect, or exploitation in certain boarding home facilities
SB 576 by Hinojosa relating to the offense of smuggling of persons
SB 1544 by West limiting the issuance of no-knock warrants
SB 1550 by Nelson relating to airport police forces

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 bring that proof if you have it, and please factor that additional time into your visits.

Scattershooting

Here are some articles we read this week that you might find interesting:

  • “Texas Gov. Greg Abbott braces for primary challenge, but remains in dominant position” (Dallas Morning News)
  • “House advances bill making it harder for CPS to remove Texas youth from their families” (Dallas Morning News)
  • “Texas lawmakers advancing bail bills that opponents say do little for people stuck in jail because they’re poor” (The Texas Tribune)
  • “Texas Republicans have long pushed to allow ‘constitutional carry’ of guns. Proponents say this year is their best chance.” (The Texas Tribune)
  • “Lawsuit accuses Texas AG Ken Paxton of improperly blocking critics on Twitter” (Austin American-Statesman)
  • “Texas House committee passes bill to expand medical marijuana program” (Dallas Morning News)

Prosecutor rotation

Thanks to Washington County DA Julie Renken, Comal County CDA Jennifer Tharp, Fort Bend County DA Brian Middleton, Smith County CDA Jacob Putman, and all the assistant prosecutors who came to Austin this week to support or oppose 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.

Quotes of the Week

“Their focus on this indigency part makes them kick this idea of a dangerousness issue into the future or not consider it at all.”
            —Derek Cohen, director of the Texas Public Policy Foundation’s “Right on Crime” initiative, as quoted in an article about the competing positions of various criminal justice reform groups on bail bond bills currently before the Lege.

“There have been some serious allegations levied against the current attorney general. Personally, I think that the top law enforcement official in Texas needs to be above reproach. … I’ve visited with many conservative attorneys general throughout the country. They’re embarrassed by [Paxton’s] conduct, and I think Texans deserve better.”
            —Texas Land Commissioner George P. Bush, in an interview in which he said he is “seriously considering” running for attorney general in 2022.

“They definitely don’t want to anger the base in a moment when there are rumors about primary challengers for Republicans who aren’t right-leaning enough.”
            —Brandon Rottinghaus, political scientist at the University of Houston, providing an explanation for why the Republican-led legislature has not taken more action in response to the 2019 mass shootings in El Paso and Midland-Odessa.

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