TDCAA Legislative Update: Week 14

April 16, 2021

Six weeks to go. Six long, arduous, frustrating, sleep-depriving weeks. If you can’t send reinforcements, we’ll settle for some coffee! 😉

Hot topics

Here are some quick hits on several interesting legislative topics this week (in no particular order):

Grand juries: The House Criminal Jurisprudence Committee considered HB 179 by S. Thompson (D-Houston) on Monday. This bill, like last session’s HB 2398, represents grand jury “reform” on steroids, as we described in some detail last week. Only a single witness (from the Texas Public Policy Foundation) testified for the bill, arguing that it was needed to return the grand jury to its historical function of protecting citizens from an overzealous government. In response, multiple prosecutors offered principled opposition to the bill on the grounds that it would instead fundamentally change what the grand jury is: a confidential process to determine probable cause—not guilt beyond a reasonable doubt—in a manner that protects suspects and witnesses. They also educated the committee members about the practical impossibilities of complying with some of the bill’s provisions and noted how the new cause of action it creates would chill investigations and prosecutions of the wealthy or powerful.

The bill was left pending in committee until the author can find enough votes for approval.

Post-pandemic court proceedings: One silver lining from the pandemic was the experimental use of remote video technology. Now some people want to continue using that new toy in post-pandemic times, but as with most things at the state capitol, the devil is in the details.

This week the House Judiciary & Civil Jurisprudence Committee considered HB 3611 by Leach (R-Plano), the House companion to SB 690 by Zaffirini (D-Laredo) that we have mentioned before in this space. The committee first heard testimony from three judges, all of whom supported the idea of letting judges unilaterally decide when non-jury proceedings should be held remotely or in-person. The committee then heard from a variety of legal practitioners—civil and criminal, plaintiff, prosecutor, and defense—who pushed back on the idea of denying lawyers any say in how contested or evidentiary proceedings are conducted. It was a rare instance in which litigants who often oppose each other in court seemed to be aligned on this policy question. Interestingly, most of the committee members (membership here) are lawyers whose private practices could be adversely impacted by an over-delegation of authority to the bench in this policy area, and they seemed to appreciate the perspectives given by witnesses who pointed out the importance of using this new technological tool to reduce headaches rather than create new ones by forcing it upon litigants.

House Bill 3611 was left pending in the committee with a commitment from the chairman—who is also the author of the bill—to return next week with a committee substitute based on the feedback he has received. If that is something to which you would like to contribute, feel free to reach out to any committee members you know and share your input.

The next pandemic: Another new topic this session is what the legislature should do to prepare for the next mass disaster or pandemic. In that vein, SB 1025 and SJR 45 by Birdwell (R-Granbury) were debated and passed by the Senate earlier this week. That legislation would limit the governor’s powers during such events to a single 30-day emergency order and require him to call the legislature into special session to declare a state emergency for any period greater than 30 days. This would give lawmakers the chance to terminate, adjust, or continue the governor’s executive order and pass new laws related to that disaster or emergency. It would also specifically prohibit the governor from suspending any penal or election law for more than 30 days, including statutes like CCP Art. 15.171, which Governor Abbott has tolled under his existing COVID-19 executive orders. If approved by the House and by Texas voters in November, this kind of change could result in prosecutors having to lobby the legislature during future disasters to protect public safety in that same manner.

Prosecutor immunity: Earlier this morning the House Judiciary & Civil Jurisprudence Committee voted out a committee substitute for HB 2335 by Middleton (R-Wallisville), the bill we told you about in our Week 11 update that would punish prosecutors who don’t punish rioters. The substitute language (available here) drops the immunity issue in favor of making it a grounds for removal from office by the Texas Supreme Court. (Yeah, you read that correctly.) Now the bill heads to the Calendars Committee for further consideration.

Bail reform: The Senate passed its version of bail reform—SB 21 by Huffman (R-Houston)—by a vote of 21–8, with four Senate Democrats joining the Republican majority. That bill now heads to the Senate, where HB 20 by Murr (R-Junction) awaits consideration by the full House. The two versions differ, so it remains to be seen if one or other—or perhaps neither—makes it across the finish line.

Appellate re-organization: While the major appellate re-organization bill has been shelved for this regular session, SB 1529 by Huffman was passed by the full Senate on Tuesday on a party-line vote (18 R ­– 13 D). That bill would create a statewide intermediate appellate court for some types of civil appeals involving the State of Texas. The bill was amended by the author prior to passage to exempt civil appeals related to expunctions, non-disclosures, and bond forfeitures, which means those cases would still be handled by your local appellate courts. However, the bill still directs to this new super-court other appeals—including removals from office and perhaps even appeals of civil lawsuits against a district attorney. We will continue to monitor this as it moves through the House, but if this concerns you, now is a good time to get involved with it in the lower chamber.

Ban on local advocacy: A kinder, gentler version of SB 10 by Bettencourt (R-Houston) was voted from the author’s committee on Monday on a party-line 5–4 vote and then voted from the full Senate on Thursday on another party-line vote. (Further proof that the Senate moves much faster than the House when it suits the leadership). The engrossed version approved by the Senate waters downs some of the most restrictive aspects of its ban on so-called “taxpayer-funded lobbying” by including six different exceptions to that ban that should exempt prosecutors and TDCAA from any adverse consequences for current practices, but it still prohibits a county or municipality from hiring private lobbyists and subjects them to civil lawsuits for potential violations. The bill now heads to the House, where a different version of this type of ban remains stuck in the House State Affairs Committee.

Guns: The House passed HB 1927 by Schaefer (R-Tyler), aka permitless carry or “constitutional carry,” by a 84–56 margin after almost seven hours of floor debate yesterday. (A final vote on third reading today will send it to the Senate.) This marks the first time either chamber has passed such a measure. The bill now goes to the Senate, where the bill’s law enforcement opponents hope to make a more successful stand—not least of all because of a late amendment that could ban voluntary encounters with, or investigative detentions of, someone openly carrying a firearm in public.

Policing reforms: The Senate passed SB 23 by Huffman (R-Houston) to prevent local governments from “defunding” law enforcement agency budgets without prior approval from voters. Senators approved the legislation on a 28­­–2 vote indicating broad bipartisan opposition to the “defund the police” movement, although several Senate Democrats criticized the legislation as a political ploy. The bill now moves to the House, where multiple different versions of the same idea are pending.

Changing gears

Exhausted from reading all that? It’s a small sampling of the action of hundreds upon hundreds of bills this week, but that’s probably enough of that—now let’s turn to what’s coming up next week and beyond. And remember, to read any specific bill, simply visit the state legislature’s website and enter the HB or SB number in the appropriate search box.

Floor calendars

Bills calendared for debate on the House floor can be found here; check back for updates as needed. Among the tracked bills coming up the first half of this week are HB 1403 by Ann Johnson (stacking sentences for certain offenses), HB 1694 by Raney (Good Samaritan drug defense), and Senate Bill 1 by Nelson/Bonnen, aka the state budget, which is scheduled to be debated on the House floor next Thursday, April 22.

Bills eligible for possible debate on the Senate floor are available here; the list changes daily so check that as needed. Among the tracked bills that might be taken up are SB 111 by West (law enforcement discovery obligations), SB 281 by Hinojosa (ban on investigative hypnosis), and SB 1055 by Huffman (pedestrian fatalities).

Calendars Committee bills

House bills that were sent this week to the Calendars Committee for further consideration include HB 393 by Moody (legalized fantasy sports gambling), HB 487 by Wu (raising the age of juvenile jurisdiction), HB 744 by Collier (law enforcement discovery obligations), HB 770 by Wu (poker room regulations), HB 817 by Moody (legalized keno), HB 1002 by Lucio III (ban on investigative hypnosis), HB 1352 by Crockett (accelerating jail release under CCP Art. 17.151), HB 1374 by Minjarez (sexual assault counselor privilege), and HB 2448 by Canales (surety discharge after immigration detention), and HB 2335 by Middleton (prosecutor removals from office).

Remember, the Calendars Committee does not take additional testimony on bills sent to it from other committees, but its members do take input on bills individually. If you know any members of that committee, don’t be shy about reaching out to them on bills as you see fit.

Committee notices

It’s getting late in the session for any House bill that is being considered in committee next week, but at least they are better off than those not heard at all. Below are the postings for next Monday; we will issue a follow-up notice in a day or two with additional posting for later in the week.

For a full agenda of all the bills to be heard at each meeting listed below, 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 19

Senate State Affairs – 9:00 a.m., Senate Chamber
SB 912 by Buckingham increasing penalties for certain riot-related conduct
SB 1508 by Creighton creating an election integrity division at OAG with administrative subpoena power

House Defense and Veterans’ Affairs – 10:00 a.m. or upon adjournment, E2.028
SB 623 by Blanco relating to sexual assaults by or against Texas Military Forces members

House Criminal Jurisprudence – 1:00 p.m. or upon adj., Room E2.010
HB 77 by Toth barring the death penalty in a conviction based on one eyewitness
HB 140 by Rose barring the death penalty for persons with severe mental illness
HB 285 by Murr increasing the punishment for retaliation against a public servant
HB 670 by Martinez creating an offense for reckless discharge of a firearm
HB 708 by Shaheen creating an offense for possession of an animal by certain offenders
HB 799 by Rosenthal creating an offense for carrying a firearm while intoxicated
HB 869 by S. Thompson barring the death penalty for persons with an intellectual disability
HB 970 by Dutton creating extensive data reporting duties for prosecutors
HB 1126 by Anchia extending the State’s deadline for answering certain writs
HB 1127 by Anchia allowing service to the State by email of an Art. 11.072 writ
HB 1349 by Crockett imposing a mandatory minimum prison sentence for murder by a peace officer
HB 1636 by Sherman authorizing the use of therapy dogs in certain criminal cases
HB 1750 by Crockett relating to mistake of fact and self-defense
HB 2146 by Allen limiting the use of drug-free zone enhancements
HB 2198 by Schaefer relating to lewd visual material depicting a child
HB 2436 by Davis mandating pretrial diversion of certain cases by a community panel
HB 2498 by Campos criminalizing harassment using a burner phone
HB 3065 by Davis creating a commission to study politically incorrect penal language
HB 3087 by Smith increasing the penalty for urinating or defecating in certain public places
HB 3205 by Ellzey enhancing the penalty for riot conduct while wearing a mask or military gear
HB 3350 by Moody creating protective orders for most crime victims
HB 3521 by Hunter relating to the definition of coercion in human trafficking-labor/services cases
HB 3772 by White lowering penalties for marijuana and cannabis concentrate
HB 4282 by Morales Shaw barring possession of an animal by certain offenders
HB 4338 by A. Johnson authorizing OAG to represent CSCDs in Art. 11.072 writs
HB 4485 by Guillen relating to the arrest and magistration of certain Class C offenders
HB 4486 by Guillen relating to mental health screening for fine-only offenders


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

  • “‘How much fraud is OK?’: In voter fraud debate, Republicans have a trump card” (Dallas Morning News)
  • “Can the death penalty be fixed? These Republicans think so.” (The Marshall Project)
  • “Former Texas Lt. Gov. David Dewhurst arrested on domestic violence charge” (The Texas Tribune)
  • “Doctor accused of groping, harassing 22 women let off easy by Texas law, critics say” (Fort Worth Star-Telegram)

Prosecutor rotation

It was great to walk the halls of the state capitol building this week and see 46th Judicial DA Staley Heatly, 106th Judicial DA Philip Mack Furlow, Washington County DA Julie Renken, Cherokee County DA Elmer Beckworth, Midland County DA Laura Nodolf,  Fort Bend County DA Brian Middleton, Kleberg & Kenedy Counties DA John Hubert, 79th Judicial DA Carlos Garcia, 81st Judicial DA Audrey Louis, Galveston County CDA Jack Roady, Hemphill County CA Kyle Miller, and all the assistant prosecutors who came to Austin this week to support or oppose various pieces of legislation. When prosecutors show up at the capitol, good things happen!

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

“This sends a message to the citizens that we are going to ‘Back the Blue.’ That’s what this bill intends to do.”
            —State Sen. Joan Huffman (R-Houston), on the passage of her SB 23 to require local governments to hold an election before reducing law enforcement funding.

“The city of Austin is the reason this bill is passing. Not to send a message, not to be political, but to be sure there’s not another Austin.”
            —Lt. Gov. Dan Patrick (R-Houston), on the passage of Sen. Huffman’s SB 23.

“Well, if I did anything today, I got the prosecutors a day off.”
            —State Rep. Senfronia Thompson (D-Houston), wrapping up the committee debate on her HB 179 (grand jury “reform”), to which at least a dozen prosecutors from around the state registered opposition in person on Tuesday.