Monday, March 30, 2020
We’re combining our usual end-of-month update with our latest coronavirus information; sorry if this is a little longer than usual for one of these updates, but there is very little that is “business as usual” right now!
A message from TDCAA’s President
There are a couple of things I have realized during these unprecedented times. First, communication is key. And second, all of us are dealing with similar novel issues.
TDCAA has been hard at work to push out information to prosecutors across the state. Many thanks to Shannon Edmonds for sending out these valuable COVID-19 Updates. If you have missed any of the preceding ones, you can get those on the TDCAA website. Please share the updates with your staff and others who need the information, and encourage people to keep an eye on the TDCAA website for additional information and resources.
The TDCAA Board of Directors met by video conference last Friday, and most of the meeting was spent discussing the COVID-19 virus crisis and how to continue communicating with Texas prosecutors. All TDCAA Regional Directors have been asked to schedule video conferences with the elected prosecutors in their region to provide a forum for prosecutors to dialogue together about common issues, questions, and solutions. I hope you will participate—there is no reason to start from scratch on an issue if someone has already found an answer or can impart some insight.
This is a time for prosecutors to collaborate and communicate more than ever. If you have any questions or concerns, please don’t hesitate to contact TDCAA at (512) 474-2436 or your regional director. Feel free to also contact me at [email protected].
Stay safe and healthy!
—Kenda Culpepper, Rockwall County CDA
TDCAA coronavirus resources
We are posting all our COVID-19 information—including periodic updates like this one, sample motions and orders, etc.—on one page of our website. Visit https://www.tdcaa.com/covid-19-information/ for all COVID-19 questions and check it often, as we will update it more frequently than we can tell you about it. New additions include:
- Various video conference hearing resources, including video conference hearing instructions recommended by Bosque County CA Natalie Koehler, a link to a basic tutorial on hosting Zoom meetings recommended by Rockwall CDA Kenda Culpepper, OCA video conference instructions for Zoom, and a sample motion requesting a plea by video conferencing from Hays County CDA Wes Mau.
- A sample blanket order extending the Art. 17.151 deadlines in all cases in a county, rather than on a case-by-case basis, from Hays County CDA Wes Mau.
- A sample agreed motion for temporary pre-trial release on a personal bond, shared by Galveston CDA Jack Roady.
To show you how fast things are changing, though, the latter two sample documents referenced above may now be of more limited use because of our next topic.
Governor issues executive order limiting personal bonds
Yesterday, Gov. Abbott issued Executive Order No. GA-13 (aka EO-13), “relating to detention in county and municipal jails during the COVID-19 disaster.” The EO has been out less than 24 hours and we have already received multiple inquiries about it. Many of your questions don’t have quick, easy answers, so allow us to briefly summarize the EO here and then follow up with a few observations.
Executive Order No. 13 suspends (for the period of the disaster declaration) the following statutes:
- CCP Art. 17.03 (Personal Bond) and related personal bond statutes to the extent they would allow the pre-trial release of (a) someone accused of “a crime that involves physical violence or the threat of physical violence” or (b) someone with a prior conviction for that type of offense, regardless of the current charge.
- CCP Art. 17.151 (Release Because of Delay), which should be a relief to those of you trying to figure out how to comply with those timelines without a willing grand jury in felony cases.
- CCP Art. 15.21 (Release on Personal Bond if Not Timely Demanded) for detainees from other counties who are in your jail.
- CCP Art. 42.032 (Good Conduct) and related good conduct credits for anyone serving a sentence in a county jail for a crime involving physical violence or the threat of physical violence. Such offenders may accrue that time but are not to be released on that basis during the pending disaster declaration.
- CCP Art. 42.035 (Electronic Monitoring; House Arrest) for anyone previously convicted of or currently serving a sentence for a crime involving physical violence or the threat of physical violence.
- Gov’t Code §§418.1015(b) and 418.108 to the extent necessary to preclude a local emergency management director, county judge, or mayor from releasing persons in a manner inconsistent with this order.
OK, now some observations:
- When combined with comments the governor made when rolling out EO-13 over the weekend, the final bullet point confirms that this order is most likely directed at preventing blanket jail releases, as was being requested by means of a federal court order in Harris County as soon as tomorrow.
- The limit on good conduct release for certain offenders is most likely a response to suggestions that sheriffs increase those credits to accelerate the release of convicted misdemeanor offenders.
- Get used to housing your neighbors’ problem children now that they don’t have to pick them up within 10 days.
- The category of offenses that involve physical violence is going to be subjective and vary from court to court, but that’s the kind of things that trial judges get paid to rule on, right?
- The personal bonds limited by this EO are just one type of bond; nothing in EO-13 impacts the use of cash or surety bonds, nor does it establish a minimum bond amount for those forms of release for those offenders.
- The order ends with an exception authorizing a county, district, or appellate court judge to consider personal bond release on an individualized basis for health or medical reasons after providing the State notice and an opportunity for a hearing.
These first and last observations lead us to draw this ultimate conclusion: Individualized pretrial release decisions by county and district court judges (as opposed to JPs or appointed jail magistrates) remain the way to go when considering the release of offenders with a current or past crime of violence on their record.
We know this doesn’t answer all the questions you may have about this unprecedented order, but we appreciate the calls and emails with questions about this and other disaster declarations and orders because we take it as a demonstration of your confidence in our ability to explain the novel and answer the sometimes unknowable. However, almost everything about this pandemic qualifies as a venture into uncharted waters (“Here be dragons!”), so please excuse us if we sometimes can’t provide answers that don’t yet exist. As Kenda points out above, now is a great time to crowdsource solutions with your neighbors and share the best ones.
Be careful out there, y’all.
Two other executive orders you might need to know about are Executive Order No. GA-11 (relating to airport screening and self-quarantine) and Executive Order No. GA-12 (relating to roadway screening and self-quarantine). These orders require a 14-day “self-quarantine” of certain air travelers from New York, New Jersey, Connecticut, and New Orleans, and of certain road travelers from Louisiana in general, respectively. The orders are to be enforced by DPS, and violators are to be punished as a misdemeanor under Gov’t Code §418.173 (Penalty for Violation of Emergency Management Plan). No other categorical in-state travel restrictions have been ordered, so there is no requirement that any person carry a letter or other authorization indicating their “essential” work status when traveling.
This might also be a good place to note that the term “quarantine” is increasing being used in a general, non-legal manner that can sometimes be confusing. Legally, a quarantine order involves a judicial determination and its enforcement is governed by Health & Safety Code Ch. 81, as we described in our COVID-19 Update No. 2. This type of quarantine is not the same thing as a “shelter in place” order or a “self-quarantine” order issued pursuant to a state or local disaster declaration, nor are violations of the latter punishable as felonies, unlike a violation of a quarantine order. Nevertheless, many people have been using the term “quarantine” in a catch-all sense that can lead to confusion, so before you act or give advice on something related to COVID-19, make sure you avoid mistakes caused by failures to communicate.
TDCAA seminar cancellations
All TDCAA in-person training events scheduled between now and the end of April have been cancelled or postponed. In addition, the latest training event to fall victim to the pandemic is our Civil Law Conference, which was scheduled for May 13–15 in San Antonio. Refunds will be processed automatically.
If you have a question about a specific training event, contact our Training Director, Brian Klas.
Human trafficking survey
Many of you may have received a survey from the Texas Human Trafficking Prevention Coordinating Council, which is housed in the Attorney General’s Office, along with a request to complete that survey by April 8, 2020. This survey is itself is not mandated by the legislature (unlike the State Auditor’s sexual assault survey from earlier this year), but it is a tool that council has developed to help it comply with its own legislatively-mandated deadline for delivering a report to the legislature by May 1, 2020. We know many of you face office and staffing limitations that may prevent you from complying with this survey request at this time, but the information being sought could help you or your peers down the road, so if you have the ability to complete it, please consider doing so.
Interim committee hearings
Other than the House Pensions, Investments, and Financial Services (PIFS) Committee meeting in early March to review the impact of legislation passed last session to crack down on credit card skimming at gas pumps, interim legislative hearings have generally gone on hiatus. (That PIFS meeting was only three weeks ago, but it feels like it happened ages ago!)
Looking ahead, the Senate Health and Human Services Committee is scheduled to meet on April 23rd in Austin to discuss as-yet-unannounced topics, but everything at this stage is day-to-day, as you might imagine.
[sarcasm]More good news![/sarcasm]
It can be difficult to focus on long-term issues when you are literally in the middle of a deadly global pandemic, but humor us for a moment by allowing us to take your mind off your immediate problems and point out the looming budgetary disasters that the coronavirus pandemic will leave in its wake. Remember, it’s never too early to start planning for the next disaster.
At the state level, the ~$225 billion biennial budget passed in Austin last summer was to have ended in August 2021 with a projected positive balance of almost $3 billion, plus another projected $9 billion in the Economic Stabilization Fund (ESF), aka the Rainy Day fund. Of course, that assumed (a) continued economic growth, (b) no declared disasters, and (c) oil trading at $50-$53/barrel. Instead, we’re heading into a national economic recession of indeterminate length with record-high unemployment filings due to a global pandemic, and those troubles are compounded by the Saudis and Rooskies deciding this was a good time to flood the oil markets. The combination of an increase of supply and a decrease in demand has tanked the price of oil to less than half of what the state budget writers thought it would be when legislators left Austin about ten months ago. As a result, when legislators return to Austin about ten months from now, they will likely face a budget deficit (not surplus) with less (not more) money in the ESF with which to bridge the resulting gaps. The next official state revenue estimates will not be released by the comptroller until July, but barring some dramatic changes for the good, the 87th Regular Session is likely to be a terrible, horrible, no good, very bad budget session. (And don’t even get us started on redistricting, which they will also have to agree on.)
Meanwhile, your future local county budgets are also likely to be strained to the breaking point, starting with the budget cycles that crank up this fall before the legislature convenes. Money for training, travel, and other professional development expenses will be tight, and prosecutors’ discretionary funds may be ripe for back-door raiding by desperate commissioners, so don’t be caught by surprise. Oh, and did we mention that one of the Lege’s signature pieces of legislation last session (revenue caps) potentially makes it more difficult for counties to fund unexpected pandemic costs and replace the lost revenue that results from a pandemic disaster like this? Yeah, good times.
Quotes of the Month
“After long consideration and consulting many expert sources, I have once again concluded that the solution to our current crisis is identical to my political agenda.”
—Satirical tweet by CJ Ciaramella, criminal justice reporter at Reason magazine, describing the tenor of much of the posts on social media this past month.
“Your car is going to snitch on you.”
—Andrew Guthrie Ferguson, visiting law professor and author of a book on “big data policing,” explaining how automakers’ increasing use of advanced security cameras in new vehicles will be a boon to future criminal investigations.
“It was kind of surreal because we thought that we were going to have to beg for what we asked for, and instead they’re like, ‘What else do you need?’ [That] never happens.”
—Tela Mange, spokesperson for the Texas Department of Licensing and Regulation, which last session received from the Legislature three times more funding than it requested to combat human trafficking in massage parlors. (Don’t count on that happening next budget cycle!)
“This is not to say the women are not capable lawyers or won’t make good judges, [but] except for the top of the ticket, Democratic primary voters rejected men without regard to any other factor. It’s hard to see anything else. … In a large urban area with long ballots, it is unrealistic to expect voters to get to know all the judge candidates or for candidates to get to meet all the voters. Until we bridge that, we’re trapped in superficial factors deciding these elections. While gender was the factor this month, party will likely be the factor in November.”
—Recently defeated Harris County district court Judge Steven Kirkland, on the local and statewide sweep by women judicial candidates in this month’s Democratic primaries. (Can you believe that only happened earlier this month?!?)
“Now that we found out it is too good to be true, it honestly doesn’t surprise us. The whole time, it felt like we were chasing unicorns.”
—Kyle Bingham, vice-president of the Texas Hemp Growers Association, in response to the news last month that national hemp prices have dropped more than 80 percent over the past year due to over-supply.
“As I contemplate my departure from the Capitol next January, I’m reminded of some famous words of Davy Crockett when he left Tennessee. To paraphrase him, I have a message for all the folks in Austin who want to trade in rumors and lies: You may all go to hell and I will go to Brazoria County.”
—Texas House Speaker Dennis Bonnen (R-Angleton), concluding an op-ed in his local newspaper earlier this month explaining the circumstances that led to his retirement.
“Releasing dangerous criminals makes the state even less safe … and slows our ability to respond to the disaster caused by COVID-19. … I’ve heard from law enforcement officials as well as citizens alike who’ve raised concerns about releases that have already taken place or anticipated releases that could take place.”
—Governor Greg Abbott (R-Houston), in announcing his executive order suspending certain bail-related procedures.
“I’ve not heard anyone give us a reason of something we could do to make Texans’ lives better today if we had a special session. The truth of it is we are able to do what needs to be done through the process as it is, and if at some point we look up and we need a special session, we’ll be there, we’ll lead it and we’ll do a good job.”
—Speaker Bonnen, when asked in a recent radio interview about the current likelihood of a special session.