Only 38 days remain in this regular session. Sleep is over-rated, right? Ain’t nobody got time for that. Onward through the (brain) fog.
“Smarter Justice, Safer Texas”
The House passed several criminal justice reform measures on Wednesday which are now part of the House leadership’s newly-announced “Smarter Justice, Safer Texas” platform. House Speaker Dade Phelan (R-Beaumont) revealed that platform on Wednesday morning in conjunction with Speaker Pro Tem Joe Moody (D-El Paso). Among the bills included in the Speaker’s new criminal justice reform package are the following (* = passed the House yesterday):
- HB 20 by Murr (bail bond reform)
- HJR 4 by Kacal (bail bond reform – constitutional amendment)
- *HB 252 by Moody (changing death penalty jury instructions)
- HB 385 by Pacheco (early termination from probation)
- HB 686 by Moody (retroactive early parole review for youthful violent offenders)
- HB 830 by S. Thompson (ban on Class C arrests)
- HB 859 by Collier (expunction of statutorily-repealed offenses)
- HB 1002 by Lucio III (ban on investigative hypnosis)
- *HB 1293 by Smithee (allowing out-of-time new trials)
- HB 1340 by Leach (limiting death penalty in law of parties cases)
- *HB 1441 by Schaefer (innocent owner defense to asset forfeiture)
- HB 1717 by S. Thompson (applying Michael Morton Act retroactively)
While it’s odd for something like this to be announced mid-session, it makes more sense when you realize it came the day after the conviction of former Minneapolis police officer Derek Chauvin for the murder of George Floyd last year.
The bills included in this list are in various stages of the legislative process right now, and the speaker said other House bills will be added to this new platform as the session continues, so expect the House to have at least one or two more “criminal justice reform” days on the floor before this session is over.
ERS changes coming?
As we reported back in Week 5 (“ERS Woes”), the Employee Retirement System is woefully underfunded and in need of a huge influx of cash to restore its stability. We told you then to watch SB 321 by Huffman (R-Houston), a shell bill that would morph into a solution—and metamorphose it did this week in the Senate Finance Committee, when a committee substitute was laid out to end new enrollments in the current defined-benefits plan as of August 31, 2021, and launch a “cash balance” plan in its place for all future ERS participants. Here are the main features of this proposed state retirement plan:
- All ERS members—employee and elected classes—will be enrolled in the new “cash balance plan” going forward (but the current system remains for those already enrolled)
- Upon retirement, an employees’ vested plan savings will be matched by the state at 150%
- Employees’ retirement contribution share will be reduced from 9.5% to 6% (resulting in slightly more take-home pay)
- State contributions will be increased from 7.4% to 9.5%
- The State will guarantee a 4% annual return and will split 50/50 any gains over 4% (up to a maximum employee return of 7%)
- Elected felony prosecutor vesting requirements remain the same
- Annuities will be amortized based on actuarial calculations of life expectancy
- The State will appropriate $510 million per year in additional funds to retire ERS’s unfunded debt by 2053 (and save $35 billion in interest by doing so)
We can already hear your sighs of relief upon learning that this change is prospective. As someone once said, “If you like your current plan, you can keep your plan.” And that’s good, because this new plan will almost certainly not be as valuable a benefit to future elected felony prosecutors as the existing plan you currently enjoy. That said, we are seeking more information from ERS on how this might play out for our future members, and Senator Huffman has expressed a willingness to make sure the new retirement plan addresses prosecutors’ unique needs. And before you say, “Let’s just jump over into the judicial retirement in JRS 2,” know that Senator Huffman intends to fold JRS Plan 2 into SB 321 as well, so there will be a lot of options in play these last few weeks of session as the judges get pulled into these negotiations as well.
What we could use here at TDCAA World Headquarters right now is input from members well-schooled in retirement plans, so if you know that person or you are that person, give Rob a call!
State budget
The House debated SB 1 by Nelson/Bonnen, the state budget, for more than 12 hours yesterday before finally approving it by a unanimous vote. Along the way, the lower chamber considered more than 175 amendments, but there were far fewer flash points and heated arguments than in past sessions, due in part to the prospect of more than $30 billion in federal pandemic-related aid headed their way later this year and next.
Now that SB 1 has been approved by both chambers in different forms, the bill will go to a conference committee where five senators and five representatives will hash out the differences behind closed doors. The secretive nature of those deliberations can lead to some nasty surprises at the end of a session when the agreed version is finally revealed, but as of now, all looks well in regard to prosecutor-related budget items.
Hot topics
Here are some quick updates on random legislative topics we have been following this session (in no particular order).
Post-pandemic court proceedings: While the House Judiciary & Civil Jurisprudence Committee waits on a new version of HB 3611 by Leach (R-Plano) to consider, the Senate State Affairs Committee took testimony yesterday on its companion, SB 690 by Zaffirini (D-Laredo), which we have mentioned before. A committee substitute version of that Senate bill was discussed, including changes to the original bill that would maintain judges’ authority to force remote proceedings on certain parties in certain cases, but exempt contested or evidentiary proceedings in jailable criminal offenses from that authority. (A copy of the proposed new language is available here.) As with the House hearing last week, judges appeared in support of the bill and lawyers were all over the map, but the Senate’s change to give the parties more say in criminal proceedings was encouraging. However, the chairman of the committee is a plaintiff’s lawyer, and the new version of the bill does not give the parties in civil cases the same opt-in ability that it gives to criminal practitioners, so the bill’s fate in his committee remains uncertain.
Guns: House Bill 1927 by Schaefer (R-Tyler), aka permitless carry or “constitutional carry,” is in the Senate but has not been heard in committee yet, and earlier in the week the lite guv announced that the bill lacked the votes to be heard on the Senate floor. That turned the pro-2A lobby’s sights onto him and various Republican senators, resulting in a kinder, gentler Senate version of the bill being filed by special permission as SB 2224 by Schwertner (R-Georgetown). That bill was then referred to one committee to circumvent some internal opponents of constitutional carry, but when it became clear the new Senate bill might also be dead in that committee, the Senate created an entirely new “Special Committee on Constitutional Issues” to which HB 1927 could be referred. To date, it is the only bill in that committee, whose members are: Schwertner (R-Georgetown), chair; Birdwell (R-Granbury), vice-chair; Buckingham (R-Lakeway), Creighton (R-Conroe), Hall (R-Edgewood), Hinojosa (D-McAllen), and Lucio, Jr. (D-Brownsville). The bill can get through that committee, so perhaps the contents of SB 2224 will be substituted into HB 1927 in an attempt to get some version of permitless carry to a conference committee.
Civil asset forfeiture: House Bill 1441 by Schaefer (R-Tyler)—which switches the burden to disprove the innocent owner defense to the State and increases that burden to clear and convincing evidence—passed the House with no real discussion or debate once it appeared on the Speaker’s list of preferred criminal justice reform bills earlier in the week. The bill now heads to the Senate for further consideration.
Policing reforms: The Senate passed SB 68 by Miles (R-Houston) creating a statutory duty for peace officers to intervene if they see other officers using excessive force. It also passed SB 2212 by West (D-Dallas) creating a duty for peace officers to render aid to injured suspects. Those are two stand-alone components of the George Floyd Act (HB 88/SB 161), which has yet to be approved by committees in either chamber due to law enforcement opposition to other aspects of those bills.
Prosecutorial discretion: House Bill 1925 by Capriglione (R-Southlake) is likely to be heard on the House floor early next week. In a thinly-veiled swipe at Austin, the bill creates a criminal offense for camping in certain public places. However, it also authorizes the attorney general to sue any local government, law enforcement agency, or elected prosecutor who “adopts or enforces a policy” that prohibits or discourages an employee from enforcing the new camping crime. In addition, the state may withhold grant funds from any local entity found by a court to have engaged in such conduct. If that is something that concerns you, contact Shannon for more information.
Floor calendars
The Senate has not released its Monday calendar as of the time this update was published, so we will issue a supplement this weekend with more details when that becomes public.
In the lower chamber, the House will consider numerous criminal justice issues on the floor this week, including these bills calendared for debate on Monday and Tuesday in this rough order (among other bills):
Monday, April 26
HB 1925 by Capriglione imposing a camping ban and mandating enforcement
HB 217 by S. Thompson expanding post-conviction DNA testing
HB 1783 by White raising the floor of juvenile jurisdiction to 13 years of age
HB 956 by Dutton allowing long knives in bars, churches, and amusement parks
HB 193 by Rose destroying juvenile court records of victims of sex trafficking
HB 3022 by Herrero allowing county courts at law to order expunctions
HB 2448 by Canales allowing sureties to discharge liability after immigration detentions
HB 2631 by Krause limiting use of in-custody and jailhouse informant testimony
HB 1005 by Leman increasing bond information and conditions in adult trafficking cases
HB 148 by Toth increasing limitations periods in certain assault cases
Tuesday, April 27
HB 9 by Klick increasing penalties for obstructing some highways
HB 20 by Murr, the bail bond reform proposal from the governor and chief justice
HB 2593 by Moody reducing penalties for marijuana edibles and other THC products
HB 2106 by Perez relating to payment card fraud
HB 2144 by Harris limiting public nuisance actions by local governments
HB 2315 by Turner relating to the forfeiture of vehicles used to illegally race
To read the text or status of these or any other bill, visit the state legislature’s website and enter that HB or SB number in the appropriate search box.
Calendars Committee bills
House bills sent to the Calendars Committee this week for further consideration include:
- HB 441 by Zweiner (reducing marijuana penalties)
- HB 834 by S. Thompson (corroboration of undercover drug officers)
- HB 967 by Dutton (raising the age of juvenile jurisdiction)
- HB 1272 by Crockett (no-knock warrant limitations)
- HB 1717 by S. Thompson (civil cause of action for prosecutors fired over Brady disputes)
- HB 2485 by Herrero (exempting firefighters and peace officers from jury service)
- HB 3315 by Crockett (mandatory diversion of certain crimes by 17yo offenders)
- HB 4554 by Cain (designating Dr Pepper as the official state soft drink)
Remember, the Calendars Committee does not take additional testimony on bills sent to it from other committees; instead, its members 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
Next week is the last call for House bills to be considered in committee and voted out before they fall victim to various end-of-session deadlines. Below are Monday’s relevant postings; we will issue a follow-up notice in a day or two with additional postings 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 26
House Criminal Jurisprudence – 1:00 p.m. or upon adj., Room E2.010
HB 356 by Sherman relating to affidavits for mobile tracking devices
HB 446 by Allison increasing penalties for damaging public monuments
HB 497 by Wu refunding certain fees deducted from cash bonds
HB 838 by Jarvis Johnson relating to the law of parties in death penalty cases
HB 1156 by Thierry creating an offense of financial abuse of an elderly individual
HB 1306 by Swanson increasing penalties for assaulting a process server
HB 3323 by Murr increasing penalties for certain crimes against automated teller machines
HB 3926 by Hefner including temporary vehicle tags within the definition of a governmental record
HB 3934 by Slawson increasing penalties for certain aggravated assault cases
Scattershooting
Here are some articles we read this week that you might find interesting:
- “Overhaul to Texas state employee pension plan unveiled and quickly advanced by state Senate committee” (The Texas Tribune)
- “El Paso lawmakers say promises to families of shooting victims have gone unfulfilled” (Dallas Morning News)
- “Bill that would crack down on using hypnosis in criminal investigations sails through Texas Senate” (Dallas Morning News)
- “If approved, this Texas bill would make it easier for county judges to qualify for a $25,000 salary boost” (Austin American-Statesman)
- “Police ask Tesla to drive in straight line, recite alphabet backwards after vehicle crashes into tree” (The Onion)
Prosecutor rotation
Thanks to Rockwall County CDA Kenda Culpepper and the assistant prosecutors who came to Austin this week to support or oppose various pieces of legislation. If you want to see how the sausage is made, contact Shannon for details on how to get involved in Austin. There are a few more weeks of committee hearings, and then after that, it’s all over but the crying.
Quotes of the Week
“If we have the votes to pass a permitless carry bill off the Senate floor, I will move it. At this point we don’t have the votes on the floor to pass it.”
—Lt. Gov. Dan Patrick (R-Houston), in a statement Monday about the fate of HB 1927 by Schaefer (R-Tyler), the permitless carry bill that passed the House last week.
“Meaningful criminal justice reform demands bold and innovative ideas, and the time for action is now. After years of over-incarceration, we now realize that a compassionate, common sense approach to criminal justice can keep Texans safe, save lives, and save money.”
—House Speaker Dade Phelan (R-Beaumont), in a press release announcing his “Smarter Justice, Safer Texas” initiative this session.
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