There are only nine days left in the 89th Legislative Session. All the big, beautiful bills know that final call is about to be announced. They want to go to a place where everyone knows their name and are always glad they came (also known as the Governor’s Desk). Cheers to everyone fighting for their bills and priorities all the way to closing time.
End of session calendar
After midnight on Wednesday, May 28, any bill not passed by both chambers in some form is dead. After that, it’s just conference committees and clean-up for the final five days. Both chambers will work sporadically through the holiday weekend and then late into the night Tuesday and Wednesday. And now you know why everyone you talk to in Austin is so grumpy and tired!
Judicial branch pay update
The good news is that SB 293 by Huffman/Leach (judicial pay and accountability) was voted from the House Judiciary Committee as substituted and is now on the House calendar for Saturday. The bad news is that the tl;dr summary of the new version is “higher salary, less accountability,” and that is a non-starter in the Senate.
At this late stage, here are possible outcomes:
- SB 293 passes the House in that current form, the Senate agrees, done deal, huge raise, little judicial accountability. (LOL just kidding—this is not happening.)
- SB 293 passes the House, the Senate disagrees with the changes, and the bill dies without a conference to work out the differences (see., e.g., 2023 session). RESULT: NO RAISE.
- SB 293 passes the House, the Senate disagrees with the changes, the two chambers go to conference to work out their differences, but they can’t come to an agreement and it all dies. RESULT: NO RAISE.
- SB 293 fails to pass the House (point of order, runs out of time, lacks votes, quorum break, act of God, etc.). RESULT: NO RAISE.
- SB 293 passes the House, Senate disagrees with the changes, the two chambers go to conference to hash out their differences on pay and accountability, some horse-trading occurs, and they come to an agreement that passes into law. RESULT: A RAISE?
Keep an eye on SJR 27 (judicial conduct and sanctions) as well. That proposed constitutional amendment is also on the House calendar for Saturday and could be a piece of the puzzle to any final solution—a failure to clear the 100-vote threshold would be problematic. So, that’s where things are with SB 293. Barring a dramatic change to the bill on the House floor this weekend, we won’t know which of these options is most likely to happen until at least Wednesday or Thursday of next week. Isn’t this a fun game to play?
Grand jury update
The Senate Criminal Justice Committee took up HB 3664 by Smithee/Flores late last night, where it metastasized into a brand new bill that included the following provisions:
- mandatory transcription of all witness testimony before a grand jury;
- a ban on re-presenting a case to a grand jury without new evidence; and
- requiring prosecutors to swear in writing that they have presented all known exculpatory evidence to the grand jury before deliberations.
So, not only were old provisions rejected by the House resurrected at this hearing, but a new provision on exculpatory evidence was added, something that no other mandatory grand jury state requires (to our knowledge). Prosecutors who came to Austin on short notice and testified against this new zombie bill included Smith County Criminal DA Jacob Putman, Brazos County DA Jarvis Parsons, Coryell County DA Dusty Boyd, 106th Judicial DA Philip Mack Furlow, 33rd Judicial DA Perry Thomas, 81st Judicial DA Audrey Louis, and Williamson County DA Shawn Dick, not to mention other offices registering in opposition.
The bill was left pending in committee and not voted out, so if you haven’t reached out to senators on that committee who you know, you still have time. Should the bill be voted out in this new form, we will let you know.
Banning THC in Texas
The Lt. Governor’s priority bill, Senate Bill 3 authored by Senator Charles Perry (R-Lubbock), prohibits the manufacture, sale, and possession of consumable hemp products containing any cannabinoid other than cannabidiol (CBD) or cannabigerol (CBG). It also bans products containing any other cannabinoid, such as delta-8 and delta-9 THC. SB 3 was amended extensively by the House State Affairs Committee to make it a bill regulating consumable hemp instead of an all-out ban. SB 3 was heard on the House floor Wednesday, but Representative Tom Oliverson (R-Cypress) proposed a floor amendment to restore the all-out ban on THC. Oliverson argued “As a physician, I cannot in good conscience support a system where Texans self-medicate with unregulated, inconsistent, and highly potent intoxicants. These substances are not medicine.” Oliverson explained that retailers cannot ensure their THC products contain consistent amounts of THC, echoing criticism from law enforcement. Law enforcement had also complained about the high cost of testing products to ensure that the THC levels were within the legal limit. Oliverson’s floor substitute allows the non-intoxicating, non-psychoactive cannabinoids known as CBD and CBG to stay legal but with more restrictions in their packaging to be child resistant. The bill also establishes new criminal offenses:
1. New offenses added for the manufacture, delivery, or possession with intent to deliver consumable hemp products containing cannabinoids other than cannabidiol or cannabigerol, classified as a third-degree felony.
2. A new offense for possession of certain consumable hemp products, classified as a Class A misdemeanor.
3. An offense for selling consumable hemp products to individuals under 21, which is a Class B misdemeanor, with provisions requiring proof of age.
4. A new offense established for the manufacture, distribution, or sale of consumable hemp products for smoking, classified as a Class B misdemeanor.
5. New provisions for selling consumable hemp products near schools, resulting in a Class B misdemeanor.
6. An offense for providing consumable hemp products via courier, delivery, or mail, classified as a Class A misdemeanor.
Lt. Governor Patrick took to social media during the House proceedings to explain that the Texas Compassionate Use Program (TCUP) that gives veterans access to low-dose THC products would be increased to win over support for Oliverson’s amendment. Oliverson’s amendment was approved by a vote of 86 to 53 and the bill as amended passed 95 to 44 on second reading. Representative Joe Moody (D-El Paso) also added amendments on second and third reading to reduce punishments for minors in possession, and the final version was approved on third reading by a vote of 87 to 54. Now the bill returns to the Senate for that chamber to concur with the House revisions or go to a conference committee. Meanwhile, hemp industry leaders have promised a lawsuit against the new law and are already pleading for a veto from the Governor.
ABCD bills
The latest status of bills to make Anyone But Current DAs a front-line prosecutor in your jurisdictions:
HB 45 by Hull (OAG prosecution of human trafficking) passed the Senate after being amended to provide more guidance on the process for the AG substituting in as prosecutor after 180 days of inaction by the local prosecutor. It now heads back to the House for that chamber to concur with those changes or seek a conference committee.
HB 5138 by Shaheen (OAG prosecution of election crimes) is still pending in the Senate State Affairs Committee. Its Senate companion is SB 1026 by Hughes, which is now in the House Calendars Committee.
SB 16 by Hughes (OAG prosecution of illegal voter registration) is also pending in the House Calendars Committee.
SB 1210 by Hughes (SCOTX > CCA) was referred to the House Judiciary Committee but has not been voted upon.
SB 1367 by Hughes (SPA as statewide trial prosecutor) is still awaiting consideration by the full Senate.
SB 1861 by Hughes (CCA appointment of special prosecutor) was passed by the Senate this week and has been referred to the House Criminal Jurisprudence Committee.
SB 2743 by Hagenbuch (OAG prosecution of election crimes upon removal of local prosecutor) has been referred to the House State Affairs Committee.
Status of other bills to watch
What’s up with that? Here are those answers for bills not already mentioned above.
HB 184 by Guillen (loan repayment for border prosecutors) was referred to the Senate Finance Committee but has not been heard.
HB 204 by Tepper (“doughnut hole” fix for certain DA county supplements) was referred to the Senate Finance Committee but has not been heard.
HB 503 by Tepper (SB 22 for larger counties) was referred to the Senate Finance Committee but has not been heard.
HB 917 by Spiller (prosecutors appointed as ad litems) was referred to the Senate Jurisprudence Committee but has not been heard.
HB 1845 by Orr (SB 22 funds for paralegals) was referred to the Senate Finance Committee but has not been heard.
HB 2215 by LaHood (retired prosecutor LTC defense) was referred to the Senate State Affairs Committee but has not been heard.
HB 2216 by Hull/Sparks (limits on CPS removals/terminations) is still pending in the Senate Health and Human Services Committee.
HB 2715 by Curry/Middleton (change to removal procedures) was voted from the Senate Local Government Committee on Tuesday and is eligible for debate on the Senate floor.
SB 19 by Middleton (ban on taxpayer funded lobbying) was referred to the House State Affairs Committee two months ago but never moved.
SB 330 by Huffman/Oliverson (ban on defunding urban DA offices) is now in the House Calendars Committee.
SB 779 by Middleton (limit on common law nuisance claims) died in the House Judiciary Committee.
SB 781 by King (confidentiality of peace officer personnel files) was passed by the Senate this week after being amended to ensure it complies with discovery laws and has now been referred to the House Public Safety Committee.
SB 1124 by Huffman/Cook (Heath fix to discovery laws) died in the House Criminal Jurisprudence Committee.
SB 2878 by Hughes/Leach (omnibus courts bill) is now in the House Calendars Committee.
To read any bill, visit https://www.capitol.state.tx.us/.
Prosecutors at the Capitol
These prosecutors are in it to the bitter end as they fight for good laws! Montgomery County DA Brett Ligon and Fort Bend County DA Brian Middleton testified in favor of HB 2001, which increases the penalty for insider trading in Texas. Cass County Criminal DA Courtney Shelton, Gregg County Criminal DA John Moore, McLennan County DA Josh Tetens and McLennan County Asst. DA Maddie Beach testified in favor of SB 2785, which would require CPS to turn over records to prosecutors. Tarrant County Asst. Criminal DA Lauren Lawrence testified in favor of SB 957, which creates the offense of continuous aggravated promotion of prostitution. Dallas County Asst. Criminal DA Jason Hermus testified in favor of HB 2697, which would require that prosecutors be notified about a bond forfeiture by a defendant charged with a felony. Dallas County Asst. Criminal DA Phillip Clark testified in favor of SB 2611, which creates the offenses of real property theft and real property fraud. Dallas County Assistant District Attorney Alicia Patterson testified in favor of HB 2348, which allows a deposition of certain elderly or disabled persons in a criminal case. Montgomery County Assistant District Attorney Nancy Hebert testified in favor of HB 3185, which will allow prosecutors to issue administrative subpoenas during cybercrime investigations.
Senate Calendars
Friday
SB 2797 Creighton: Relating to discovery requirements in a criminal case.
SB 1505 Perry: Relating to the medical use of low-THC cannabis under and the administration of the Texas Compassionate-Use Program.
House Calendars
Saturday
SJR 87 Huffman/ Little:Proposing a constitutional amendment requiring the denial of bail to persons accused of certain offenses punishable as a felony who have previously been convicted of certain offenses punishable as a felony.
SB 1719 Hughes/Smithee: Relating to the rulemaking power of the Texas Supreme Court.
SB 1610 Perry/Cook: Relating to sexually violent predators, to the Texas Civil Commitment Office, and to the prosecution of the offense of harassment by sexually violent predators and other persons confined in certain facilities.
Another AG opinion request for your attention
A state representative from Fort Bend County has requested an AG opinion regarding who gets to select outside legal counsel to assist with redistricting county election precincts: the commissioners court, or the county attorney? That legal answer may impact your jurisdiction, and it was also a topic discussed at our Civil Law Conference two weeks ago. For details on the request, click here for a PDF copy of RQ-0597-KP. If you want more information about the background of the request or how you might get involved, you can email Kevin Hedges, Chief of Litigation at the Fort Bend County Attorney’s Office, at [email protected].
Quotes of the week
“I’m voting no because the hypocrisy of it doesn’t withstand the smell test. If you’ve been found to have probable cause of continuous sexual assault of a child, you’re just as dangerous as the guy who is here illegally who did it. You want to get tough on crime— let’s deny all of them bail. Vote no on this piece of crap!”
—Representative Terry Canales (D-Edinburg), when speaking against Senate Joint Resolution 1, which would deny bail for undocumented people who are charged with certain violent offenses including murder, trafficking, and burglary.
“I can speak as a law enforcement officer about the frustration we feel when the hard work of our detective investigators to protect the public is diminished or outright jeopardized by our partners in the criminal court system, some of whom have inexplicably released violent criminals back into our streets.”
—Representative AJ Louderback (R-Victoria) during the SB 9 bill layout, the enabling legislation for bills to regulate or restrict bail release for some offenses.
“It is no surprise that rogue DAs who would rather turn violent criminals loose on the streets than do their jobs are afraid of transparency and accountability. My DA reporting rule is a simple, straightforward, common-sense measure that will shed light on local officials who are abdicating their responsibility to public safety. This lawsuit is meritless and merely a sad, desperate attempt to conceal information from the public they were sworn to protect.”
—Attorney General Ken Paxton responding to the lawsuit from Texas prosecutors in major urban counties over new rules requiring them to submit extensive “performance reports” and case files.
“I voted for rope, not dope,”
—Representative Tom Oliverson, as he circulated an amendment on the House floor that would revert the House’s bill back to a virtual ban of all THC. Oliverson was referring to the 2019 legislative session that passed the hemp law that was aimed at helping farmers to produce hemp products.
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