So much for enjoying the three-day weekend outside. (Be careful out there, y’all!)
Senate Finance
This week the Senate Finance Committee began its work on SB 1, the General Appropriations Act. The committee members were almost giddy when the comptroller reported that the looming fiscal crisis for the next biennium wasn’t looking as bad as he once feared; sales tax revenues from online purchases have been a welcome surprise, and federal COVID-19 relief money has been squirreled away to assist in budget planning. So, instead of being $4.5 billion short for the upcoming biennium, the state is still on target to end this current biennium with a small surplus while facing a shortfall of less than a billion dollars for FY 2022–2023. The sighs of relief were palpable.
Looking ahead, Chairwoman Jane Nelson (R-Flower Mound) repeatedly emphasized that the committee has four funding priorities: public education, the coronavirus, the economy, and public safety. The committee made good on the public safety part as far as prosecutors are concerned by fully funding (at 2020 levels) prosecutor salaries, county attorney supplements, felony prosecutor apportionment funding, and assistant prosecutor longevity pay at the outset.
One item we will continue to monitor is visiting judge appropriations. Texas Supreme Court Chief Justice Nathan Hecht requested additional funding for visiting judges to help reduce the pandemic backlog in local courthouses, and while the committee wasn’t necessarily against the idea, it asked the chief justice to come back with a more detailed plan for exactly what was needed and how that would work in action. This caught our attention because more visiting judges generally creates a need for more prosecutors and defense attorneys, at least in the short term. State Sen. Joan Huffman (R-Houston), a former prosecutor and district judge, raised the issue of using federal COVID-19 relief funding in that effort, and we will keep you informed if that idea gains traction.
ERS woes
In other Senate Finance Committee news, one of the first agencies it examined was the Employee Retirement System (ERS) that manages the retirement benefits for elected felony prosecutors (among many others). The news here isn’t good. Even after increasing participant contributions in 2017, the investment fund will still be depleted by 2061 if no additional increases are made. The committee members did not have a ready solution during the hearing, but it was clear that there is no room to increase participant contributions over the current 9.5 percent. If this issue impacts you, then keep an eye on SB 321 by Huffman (R-Houston); this is a shell bill* that will serve as the vehicle for any yet-to-be-determined additional state contributions to put ERS back on the path to stability. (*A “shell bill” is a bill filed with the understanding that the contents of the bill will change as it moves through the legislative process.) If you are an elected felony prosecutor who visits with your legislators about their work, you might want to put this on your list of things to talk about. To see the ERS PowerPoint presentation explaining things in more detail, click here for a PDF version.
Gubernatorial wish list
With the Lege still trying to shift into second gear during these early stages of the session, the spotlight remains on the governor, who released his recommended state budget last Friday. This document is significant not for what it is—governors have no real role in crafting state budgets until it comes to veto time—but it does highlight the gubernatorial priorities that could come into play at the end of a session. With that in mind, some of those priorities are:
- Improving TCOLE’s IT system for maintaining peace officer employment records
- Authorizing and funding online TCOLE training
- Increasing grant funding for body cameras
- Clearing the remaining backlog of untested sexual assault evidence kits
- Funding the development and implementation by the Office of Court Administration of a statewide pretrial risk assessment tool for use in bail determinations
Whether these ideas will find favor with legislative budget writers remains to be seen, but we will continue to follow these issues during the session to the extent they impact your business.
Scattershooting
We see a lot of good news coverage of legislative issues that we retweet on our social media account, but for those who don’t keep up with us there, we thought we’d re-post a few of them in this space. Some of those we came across this week included:
- “Winners and losers: Texas House Speaker shakes up chamber’s leadership with emphasis on new faces” (Dallas Morning News)
- “No ‘meaningful relief’: Harris County trials plunge from 1,600 a year to 52 since COVID” (Houston Chronicle link)
- “Texas Senators scold AG Ken Paxton for violating his budget authority with $40M in staff raises” (Houston Chronicle)
- “Gov. Greg Abbott prioritized changing how bail is set. He isn’t addressing people stuck behind bars because they can’t afford to pay.” (Texas Tribune)
Bill filings
Consider this your reminder that if you have a bill idea that has not been submitted to a legislator by now, you have one more week to get that done; after that, your idea’s chances of making it into law rapidly approach zero.
To view the 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 for more scoop. We are tracking more than 700 bills, so if you have an interest in a specific issue, there’s probably already a bill (or seven) filed on it.
Looking ahead
The House and Senate conducted minimal floor duties this week and will return on Tuesday, February 16, for … probably more of the same. (Although to be honest, this isn’t much different from the floor output of a non-pandemic session other than the absence of legislative recognitions and resolutions that normally fill the constitutionally-imposed inactivity of the first 60 days.) Meanwhile, the House Appropriations Committee will start its review of the initial House budget bill next week in an attempt to catch up with the Senate Finance Committee, which got the jump on them by starting last week. We also expect Lt. Gov. Patrick to roll out his list of legislative priorities next week. Unlike a governor—who can designate an issue as an emergency but can’t make the Lege act on it—a lieutenant governor has ways to make sure his chamber moves his preferred bills. (But of course, that’s only half the battle, isn’t it?) Look for more details on those bills next week.
Counties at the Capitol
TAC’s “Counties at the Capitol” WebEx meeting will be held remotely on the morning of February 16 and you can “attend” from the comfort of your home or office; for an agenda of speakers and related information, visit this page of their website.
PROTECT
PROTECT, the state’s online protective order registry operated by the Office of Court Administration (OCA), should now be available for access by prosecutors and peace officers and can be found at https://protect.txcourts.gov/. For security purposes, this PROTECT portal is separate from the portal utilized by courts and the public and is designated only for use by prosecutor and law enforcement personnel.
Pursuant to Government Code §72.155, PROTECT allows prosecutors and peace officers to view comprehensive protective order information from across the State. Texas courts have been entering applications, protective orders (POs), and magistrate’s orders of emergency protection (MOEPs) into the registry since October 15, 2020—including images of the actual signed orders—which may be a useful tool for enforcement, investigation, and safety planning for survivors of family violence and other related crimes.
Earlier this week you should have received an email from Kimberly Piechowiak, OCA’s Domestic Violence Training Attorney, with more information on getting access to the registry and adding your staff users. In the coming weeks, Kimberly will also be sending out invitations for a webinar about the registry and how it can enhance prosecution and investigation of the violent offenses endured by survivors and their families, so please be on the lookout for that information.
Quotes of the Week
“Three years.”
—Texas Supreme Court Chief Justice Nathan Hecht, when asked to guess how long it would take the Texas criminal courts to work through the backlog created by COVID-related shutdowns. (Our unofficial Twitter poll on that topic was not as confident, though.)
“Who will pass the last bill of the year in October? Or however long we’re going to be here?”
—Lt. Gov. Dan Patrick (R-Houston), rhetorically asked from the Senate dais with tongue firmly planted in cheek after that chamber passed its first resolution of the regular session, which will end in May.
“I’m very careful not to get emotionally invested [in my bills] because they might not see the light of day.”
—State Rep. Ina Minjarez (D-San Antonio), in a Texas Monthly article discussing the impact of pandemic-related slow-downs on the legislative process this session.
“There’s so much infighting and competition among all the people in that arena, that’s why it never goes anywhere, and so it’s not even an issue that’s going to see the light of day this session.”
—Lt. Gov. Patrick, when asked about the prospects for legalized sports betting in Texas.
“The problem is he is really fixed on just his language. I can’t get him to understand the legislative process: You don’t always get what you want.”
—State Sen. John Whitmire (D-Houston), chairman of the Senate Criminal Justice Committee, referring to his discussions with Gov. Abbott on various bail reform proposals.
“It’s kinda like when you get on the tiger—you can’t get off it ’cuz it will eat you. … My point, I guess, is that we need to figure out a way to fix what we’ve got.”
—State Sen. Charles Perry (R-Lubbock), during the Senate Finance Committee’s discussion of the state’s predicament in funding its Employee Retirement System obligations.
“We were social distancing when social distancing wasn’t cool.”
—Bonnie Sudderth, Chief Justice of the 2nd Court of Appeals, explaining to the Senate Finance Committee why COVID-related restrictions did not impair the appellate courts as badly as the trial courts.
“It’s a good thing she did it last session, because it would not have happened this session.”
—State Sen. Jane Nelson (R-Flower Mound), chairwoman of the Senate Finance Committee, in response to a judge who began his testimony in her committee by thanking State Sen. Joan Huffman (R-Houston) for passing judicial branch pay raises last session.
“I was [embarrassed] at first, but the more I think about it—well, shit happens. … If the country can have a chuckle at my expense today, I’ll accept it, because we’ve all been going through a stressful time. I just don’t want to repeat it on a frequent basis.”
—Rod Ponton, Presidio County Attorney, who gave everyone a good chuckle this week by going viral as the #CatLawyer on Zoom.
“If I stumble upon a legal issue that I want to get oriented to, I will look for Cathy’s opinions just as a starting place. Her scholarship was so wide and her curiosity so great that when she decided to take on a subject … she gave every issue the treatment of a scholar and the best lawyer you can imagine.”
—Andy Drumheller, speaking of one-time co-worker and former Court of Criminal Appeals Judge Cathy Cochran, who passed away this week after a long illness. Judge Cochran led a distinguished career as a prosecutor, defense lawyer, and jurist and actively supported our Foundation as a member of the Texas Prosecutors Society; all of us at TDCAA mourn her passing. #RIP
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