Let’s create a Post Object block below this Paragraph block.

TDCAA Legislative Update: Week 20, Part I

May 23, 2019

Four days are left in this session. Major doomsday deadlines kicked in the last two nights, officially putting thousands of bills out of their misery. Both chambers killed the other’s bills due to a toxic mixture of official deadlines, unofficial retaliations, and general petulance. And things could get weirder from here!

What happens next

Due to House and Senate rules, the only legislation still alive as of 12:00 a.m. this morning are bills that have been approved by both chambers. However, many of those bills will have been substituted or amended in the second chamber, resulting in a different version being approved by each chamber. Those differences must now be reconciled in one of two ways.

First, the originating chamber that receives back one of its bills in a form that differs from what it approved may simply concur with those changes, take one final vote, and send the bill to the governor’s desk. However, if the originating chamber doesn’t like what the other chamber did, a second procedure applies—the originating chamber can refuse to concur with those changes, request the appointment of a conference committee, and appoint five members (the bill’s author plus four others named by the presiding officer) to negotiate a compromise version. The second chamber then does the same, and the eventual compromise is usually hashed out by the author of the bill in the originating chamber and the sponsor of the bill in the second chamber, who must then obtain the approval of at least two of their own conferees (for a majority of three of five conferees per chambers). If successful, then a conference committee report of that compromise goes before each full chamber for a final, up-or-down vote; no changes, no amendments, just “aye” or “nay.” Furthermore, a conference committee generally cannot go “outside the bounds” of the versions of the bill approved by each chamber, greatly limiting the opportunities for mischief—such as dead language re-appearing without notice at the last minute on a different bill. As a result, most of the remaining drama of the session depends on whether the less-predictable House can vote down a bill on which the Senate would not compromise or kill a bill due to a point of order.

Status of various issues

Here is the latest information on a variety of issues that we have been following this session (listed alphabetically):

AG prosecution authority: The Senate refused to concur with the Moody amendment to SB 1257 by Huffman/Leach. A conference committee has been requested by the Senate, whose conferees are Huffman, chair; Nelson, Creighton, Alvarado, and Flores. The House appointed Leach, chair; G. Bonnen, Collier, P. King, and Moody. We will alert you when the final version is official, at which point you will want to alert your House member(s) of your position on the bill depending on what is in it.

The language of SB 1257 was also grafted onto HB 3800 by S. Thompson/Huffman in a  Senate committee and passed. The House author must now concur or go to conference to strip out that added language. Again, you should alert your House member(s) if you want to weigh in on that issue.

Assistant prosecutor longevity pay: Preserved with a supplemental appropriation for this fiscal year and an infusion of general revenue for fiscal years 2020 and 2021. 

Bail bond reform: Dead.

Budget: The conference committee report for the State Appropriations Act, a.k.a. HB 1, should be out soon so that it can be debated this weekend.

Civil asset forfeiture: Everything is dead but for HB 2613 by Frullo/Huffman, which expands (rather than limits) civil asset forfeiture; it passed the Senate yesterday and is on its way to the governor’s desk.

Contingent fee contract limitations: HB 2826 by G. Bonnen/Huffman is on its way to the governor’s desk.

Death penalty. Bills limiting the death penalty or creating new procedures for defendants with serious mental illness are dead, but a dramatically stripped-down version of HB 1139 by S. Thompson/Miles to prohibit the execution of a person with intellectual disability was approved by the Senate yesterday and now returns to the House for it to concur.

Deferred adjudication for certain DWIs: HB 3582 by Murr/Menendez is awaiting House approval of the Senate’s changes.

Driver Responsibility Program repeal: HB 2048 by Zerwas/Huffman is awaiting House approval of the Senate’s changes.

Grand jury reform: Dead. (SB 1492 by Whitmire/Collier failed to make it through the House process quickly enough to make the final House calendar.)

Hemp/CBD legalization/regulation: The House concurred in Senate changes to HB 1325 by T. King/Perry, and the bill is off to the governor.

Judicial branch pay raise: House Bill 2384 by Leach/Huffman passed the Senate at 12:15 a.m. this morning—don’t worry, the Senate is not as persnickety about its midnight deadlines as the House—and now returns to the House for that chamber to agree with the Senate’s changes or go to conference.

Limits on local government lobbying: After numerous floor amendments that limited its scope, SB 29 by Hall/Middleton was defeated by a vote of 85–58. (To see how your representative(s) voted, click here.)

Marijuana: Everything else cannabis-related is dead except for HB 3703 by Klick/Campbell, which incrementally expands the state’s compassionate use program; that bill passed the Senate and now returns to the House for concurrence or conference.

State jail felony reforms: Dead.

Curious about any other bills or issues? Contact Shannon with a bill number or issue and he’ll let you know.

What’s passed so far?

Believe it or not, the Legislature has already passed more than 125 of the bills we are tracking this session. We’ll have more details in future session wrap-ups, but here’s a short list of bills destined to become law if they can avoid the governor’s veto stamp.

House: HB 51 by Canales/Zaffirini creating standard forms for statewide use in criminal matters; HB 98 by Gonzalez/Huffman revising the state’s revenge porn offense; HB 302 by Paul/Hughes providing defenses to carrying firearms on certain residential or commercial property; HB 446 by Moody/Perry legalizing clubs and brass knuckles; HB 667 increasing the penalty range for certain sexual assaults involving incest; HB 892 by Kuempel/Hughes authorizing county regulation of game rooms; HB 902 by Landgraf/Huffman increasing penalties for assaulting a pregnant woman; HB 2730 by Leach/Hughes narrowing the scope of the anti-SLAPP TCPA; HB 2789 by Meyer/Huffman criminalizing unsolicited adult sexting; and HB 3490 by Cole/Huffman criminalizing online harassment.

Senate: SB 201 by Huffman/Oliverson enhancing punishments for certain looting-related crimes; SB 325 by Huffman/Landgraf creating a state protective order registry; SB 1259 by Huffman/Klick criminalizing fertility fraud; SB 1268 by Watson/Moody authorizing multiple victim allocutions; and SB 1802 by Huffman/Hunter increasing penalties for various prostitution and sex trafficking-related crimes.

If historical trends hold, another 150–200 of our tracked bills will also be sent to the governor’s desk over the next five days. That’s a lot of new laws! Gee, if only there was someone out there who summarized all those impending changes for you. …

Legislative Update seminars

This seems like a good time to tell you that we have opened online registrations for our Legislative Update tour this summer! We’ll visit more than 20 locations throughout Texas in July and August to teach you, your staff, and your local court and law enforcement communities about all the new laws that will impact your work. If you haven’t already received your brochure listing all the locations and details, a PDF version is available online here. Find a date and location convenient for you and your staff and join us for the big show!

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

Quotes of the Week

“It’s still such a new area of reform that we’re not sure exactly how it’s going to end up. But it’s encouraging that the reform movement has expanded beyond just police accountability and beyond judicial accountability.”

Jay Jenkins, attorney with the Texas Criminal Justice Coalition, on new policies being adopted by some metro-area prosecutors in Texas.

“I’m sick of this sh!t.”

State Rep. Jonathan Stickland (R-Bedford), overheard at the dais during a heated argument over whether the House rules allowed that chamber to resurrect SB 10, one of the governor’s emergency items on mental health funding that Stickland had killed earlier on a point of order. The bill’s language was successfully amended onto SB 11 (school security) and returned to the Senate in an effort to avoid triggering a special session.

“No one has talked more and done less.”

State Rep. Travis Clardy (R-Nacogdoches), when asked to describe Rep. Stickland in a recent profile of the controversial legislator.

TDCAA Legislative Update: Week 19, Part II

May 17, 2019

Only 10 days left, and the end can’t come soon enough—especially since the House and Senate are both still working as we send this out, and the House will work Saturday while the Senate will work Sunday, leaving us with about 18 hours of “weekend” to enjoy, most of which we hope to spend sleeping.

Expanding AG authority

After being amended on second reading with language that conditions the AG’s prosecution of human trafficking cases on the consent of the local prosecutors, SB 1257 by Huffman/Leach was passed on third reading today by a vote of 120-14 (vote tally available here). The bill was originally scheduled for a vote yesterday but was postponed to give the bill’s proponents more time to whip support for the amended bill on the floor; that work, combined with the floor amendment’s consent language, resulted in the vote margin on the amended version of the bill.

The bill now heads back across the rotunda where the bill’s Senate author must decide whether to concur with the House’s change or not. If the latter, then the Senate and House will appoint a conference committee and agree on a version which is likely to be the original language (without the House floor amendment’s consent requirement). We will let you know if that happens and what comes next.

Meanwhile, in the furious final Senate committee hearings that occurred today, HB 3800 by S. Thompson—which requires some jurisdictions to report certain human trafficking data to the AG—was changed by Senator Huffman in the Senate Criminal Justice Committee to include SB 1257’s original language granting the AG original criminal jurisdiction in trafficking cases. That bill now heads to the Senate floor, and if it passes with that new language on it, then it returns to the House to decide whether to keep the amendment or not.

We know more about these events than we can share here, so if you have further questions, contact Rob or Shannon.

Grand jury reform

As it did in 2017, a slimmed-down version of grand jury revisions made it out of the Senate late in the session and—as of 5:00 p.m. today—has just been approved by the House Criminal Jurisprudence Committee. That’s where the bill in 2017 died, but this session’s version—in the form of SB 1492 by Whitmire/Collier, which is very different from last session’s language—is unlikely to meet that same fate this session, so look for it on the floor next week. The danger is that it gets loaded up with amendments on the House floor, but we will watch it for you and let you know if so.

Judicial branch pay raise

House Bill 2384 by Leach/Huffman, the tiered pay raise bill that includes district and county attorneys, was voted from the Senate State Affairs Committee yesterday but the new text is not yet available online. The original layout in that committee still included prosecutors so we assume all is well until we hear differently; when we know more, you will know more.

Limits on local government input

SB 29 by Hall/Middleton, which would limit local government input in the legislative process on certain issues and potentially bar them from paying association dues for their employees, was on today’s calendar but had to be returned to committee to fix a paperwork problem. It now returns to the Calendars Committee for likely consideration next week. That committee also has before it SB 702 by Bettencourt/Harless, which requires county commissioners to publicly vote on legislative expenditures and annually report those expenditures.

Other major issues

Here’s a rundown of where some other issues that we’ve been following this session currently stand (listed alphabetically):

Bail bond reform: HB 2020 by Kacal (R-College Station) was never referred to a committee in the Senate, so it appears there will be no significant statutory changes to pretrial release this session.

Deferred adjudication for certain DWIs: HB 3582 by Murr/Menendez passed the Senate and now returns to the House for that body to concur with the changes made in the Senate.

Driver Responsibility Program repeal: HB 2048 by Zerwas/Huffman passed the Senate today and how returns to the House for it to concur with the Senate’s changes.

Marijuana/hemp/CBD/kitchen sink: HB 1325 by T. King/Perry, which would legalize and regulate hemp—including consumable hemp products like CBD oils and such—was approved by the Senate; it now returns to the House for its consideration of the Senate’s changes. A Senate committee also revised and passed HB 3703 by Klick/Campbell, which will incrementally expand the state’s compassionate use program, and that bill will now head to the Senate floor.

Deadlines

Here are the looming deadlines for bills that have not already passed both chambers:

Sunday, May 19, 10 p.m.: Last House calendar for SBs must be printed

Tuesday, May 21, midnight: Last day for House to pass SBs on 2nd reading

Wednesday, May 22, midnight: Last day for Senate to pass HBs on 2nd & 3rd reading

In other words: The threshing floor will be littered with dead bills by this time next week.

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

More Quotes of the Week

“The fight against human trafficking requires more investigating and less grandstanding, and local Texas prosecutors stand ready to carry out that mission.”

Closing line of an op/ed by Travis County DA Margaret Moore, El Paso County DA Jaime Esparza, and Harris County DA Kim Ogg, written in opposition to SB 1257.

“Have enough bills passed yet transferring more power to the Office of the Attorney General? There are only 12 days left, y’all.”

Tongue-in-cheek tweet by Scott Braddock, editor of the Quorum Report.

“We’re officially changing ‘hump day’ to ‘hemp day.’”

State Sen. Charles Perry (R-Lubbock), laying out his bill to legalize hemp earlier today.

“House Bill 2754 died due to a toxic mixture of incompetence and bad faith in a lawmaking environment that speeds to a blur in the weeks at the end of the session, when it can be difficult for even veteran lawmakers to keep track of what’s going on on the floor. That creates fertile ground for mistakes, and for interest groups to take advantage of those mistakes.”

Christopher Hooks, Texas Monthly reporter, on the demise of a bill to limit peace officers’ ability to make arrests for fine-only offenses.

“I think it’s a meaningless, ineffectual way to proceed, and I’m opposed to it, and I’m opposed to how this committee has worked with us, … and to find out as I’m sitting out in the audience that you gutted the entire bill I think is inexcusable, and I’m upset about it. … I may just join you on the bench [sic] next time to make sure that I prevail. In other words, maybe I’ll just run [for state senate] and make sure I can have my voice heard more clearly. This will be the encouragement I need.”

Elsa Alcala, policy director for the Texas Defender Service (and former Court of Criminal Appeals judge), arguing with senators on the Senate State Affairs Committee after they narrowed the scope of HB 1139 by S. Thompson/Miles, the bill on intellectual disability and the death penalty. (To watch the entire uncomfortable exchange, click here for the video feed and fast-forward to the 43:35 mark.)

TDCAA Legislative Update: Week 19, Part I

May 14, 2019

Aaaaand down the stretch they come! A mere 13 days remain in this regular session, which means we’ll be on the clock around the clock from now through Memorial Day, when the 86th Legislature will adjourn sine die (“without day,” meaning a final adjournment). And unlike this year’s Kentucky Derby, legislators will be obstructing the heck out of each other with impunity as they approach the finish line. With that in mind, some bills we have been watching all session are making their final push for passage—read on for details.

AG authority

After being held in the Calendars Committee for almost two weeks, SB 1257 by Huffman/Leach will come before the full House tomorrow (Wednesday). The bill itself—which has faced opposition from a bipartisan group of elected prosecutors—has been placed on the calendar for a floor vote. In addition, the language of the bill may be offered as an amendment to SB 20 by Huffman/S. Thompson, this session’s omnibus human trafficking bill. (We told you in our most recent update that the sponsor of SB 1257 might add that language to SB 20 by amendment, and that prediction turned out to be correct, but debate on SB 20 was postponed to Wednesday.) If you object to SB 1257’s language and want to rally your state reps to your side, you’ll have to call them ASAP—and remember to note both ways in which the topic may come before them tomorrow.

Grand jury reform

Those of you who recall last session’s battle of “grand jury reform” might be feeling a bit of déjà vu right now. In 2017, a slimmed-down version of grand jury revisions made it out of the Senate during the penultimate week of that session and went to the House, where that bill made it out of committee but died before it could be calendared.

Well, guess what? As we enter the penultimate week of this session, a committee substitute version of this session’s “grand jury reform”— SB 1492 by Whitmire (D-Houston)—could be debated on the Senate floor as soon as tomorrow (Wednesday), and if it passes it will be sent to the House for quick consideration. For details of this session’s bill—which would require the recording of certain witnesses, bar certain re-presentments, and create a new commission to recommend future changes—please re-read the description in our more recent update and let us know what you think. Keep in mind as well that the make-up in the House is different from last session, so as they say on Wall Street, “past performance is no guarantee of future results.” For more information on this topic, contact Rob or Shannon.

Assistant prosecutor longevity supplements

On Monday, the HB 1 (state budget) conference committee announced decisions on several pending budget items for the upcoming 2020–21 biennium, including assistant prosecutor longevity pay. The good news is that the conference committee accepted the House’s recommendation to fully fund the supplement with additional general revenue through the next biennium. That still leaves work to do over the interim to identify a more stable stream of future funding for the supplement, but it is gratifying to know that legislators didn’t leave assistant prosecutors in the lurch. Particular thanks go to Senator Joan Huffman (R-Houston) and Representative Oscar Longoria (D-Mission), the conference committee members who made sure this got done.

Updates on other major issues

Here’s a rundown of where some other issues that we’ve been following this session currently stand (listed alphabetically):

Bail bond reform: HB 2020 by Kacal (R-College Station) will be heard in the Senate Criminal Justice Committee tomorrow (Wednesday).

Death penalty: HB 1139 by S. Thompson (D-Houston) to require pre-trial determination of intellectual disability in death penalty cases is pending in the Senate Criminal Justice Committee. HB 1936 by Rose (D-Dallas) to exclude the serious mentally ill from the death penalty was received in the Senate but has not yet been referred to the Criminal Justice Committee.

Deferred adjudication for certain DWIs: HB 3582 by Murr (R-Junction) is on the Senate Local and Uncontested Calendar tomorrow. Should it pass, it must return to the House for that body to concur with the changes made in the Senate.

Driver Responsibility Program: HB 2048 by Zerwas (R-Richmond), the repeal-and-replace bill that changes DWI surcharges into state fines, is eligible for Senate floor debate today. If it passes without further changes, it will be sent to the governor for his approval.

Judicial branch pay raises: House Bill 2384 by Leach/Huffman, the tiered pay raise bill that includes district and county attorneys, is still pending in the Senate State Affairs Committee. We are still tracking down the official details, but we believe the HB 1 conference committee has set aside money for a raise if HB 2384 passes; if not, then there will be no raise. We will pass along confirmation of that when we see it on paper.

Limits on contingent fee legal contracts: HB 2826 by G. Bonnen (R-Friendswood) was voted from the Senate State Affairs Committee on Monday and will be eligible for consideration by the full Senate later this week. A similar Senate bill, SB 970 by Creighton (R-Conroe), passed the Senate last week and has been referred to the House Judiciary & Civil Jurisprudence Committee.

Limits on legislative input: SB 29 by Hall (R-Edgewood) remains stuck in the House Calendars Committee.

Marijuana/hemp/CBD/kitchen sink: HB 63 by Moody (D-El Paso), the bill to change low-level marijuana possession to a civil infraction, and HB 1365 by Lucio III (D-Brownsville), a broad medical marijuana bill, have been received but not referred to committees in the Senate, which is the Lite Guv’s way of saying “thanks but no thanks.” However, HB 3703 by Klick (R-Fort Worth), which is a less dramatic expansion of Texas’ compassionate use program (“T-CUP”), has been referred to a Senate committee, so look for that bill to move (although its scope might be further narrowed in the upper chamber). Also, a substitute version of HB 1325 by T. King/Perry, which would legalize and regulate hemp—including consumable hemp products like CBD oils and such—is eligible for approval by the full Senate as soon as tomorrow.

Committee hearings

This will be the final week for committee hearings. Notices are being posted and revised with little or no warning as we near the end of session. Here’s what has been posted so far, keeping in mind that these postings are almost guaranteed to change on a moment’s notice:

Wednesday, May 15

Senate Criminal Justice – 8:30 a.m., Room 2E.20

  • HB 51 by Canales/Zaffirini creating standardized criminal court forms for statewide use
  • HB 616 by Neave/Nelson regarding rape kit reimbursements
  • HB 667 by K. King/Perry increasing penalties for sexual assaults that involve incest
  • HB 902 by Landgraf/Huffman increasing penalties for assault of a pregnant woman
  • HB 1343 by Leach/Paxton expanding the offense of improper inmate/victim contact
  • HB 1355 by Button/Johnson expanding the jurisdictions in which certain DWI blood warrants may be executed
  • HB 1590 by Howard/Watson creating a statewide Office for Sexual Assault Survivor Assistance
  • HB 1661 by Herrero/Hinojosa clarifying the scope of and venue for continuous family violence prosecutions

Thursday, May 16

House Corrections Committee – 8:00 a.m., E2.030

  • SB 550 by West authorizing non-disclosures for set-aside probations
  • SB 1147 by Buckingham authorizing medication-assisted treatment for DWI probationers
  • SB 1217 by Alvarado barring the consideration of dismissed charges in occupational licensing

Floor calendars

Bills set for floor debate this week in the House include (in order of appearance): SB 21 by Huffman/Zerwas (raising smoking age to 21), SB 362 by Huffman/Price (mental health/competency diversions), SB 20 by Huffman/S. Thompson (omnibus human trafficking), and SB 1257 by Huffman/Leach (AG prosecutions of human trafficking).

Across the rotunda, the Senate Intent calendar this week includes (in numerical order): SB 1492 by Whitmire (grand jury reforms), HB 504 by Dutton/Miles (employment protections for grand jury service), HB 869 by Cole/Hughes (credit card skimmers at gas pumps), HB 892 by Kuempel/Hughes (county regulation of game rooms), HB 1325 by T. King/Perry (legalizing hemp), and HB 2048 by Zerwas/Huffman (DRP repeal-and-replace).

Deadlines

The second wave of legislative deadlines are nearing, as follows:

Sunday, May 19, 10 p.m.: Last House calendar for SBs must be printed

Tuesday, May 21, midnight: Last day for House to pass SBs on 2nd reading

Wednesday, May 22, midnight: Last day for Senate to pass HBs on 2nd & 3rd reading

Sunday, May 26, midnight: Last day for House & Senate to concur/adopt reports

This means that a Senate bill must make it onto a House calendar and be voted upon no later than next Tuesday at midnight, while a House bill must be voted upon by the Senate on second and third reading by Wednesday at midnight. Those deadlines will kill several hundred more bills.

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

Quotes of the Week

“Legislators don’t want to give themselves a raise.”

State Sen. Joan Huffman (R-Houston), explaining the origin of the tiered structure of the judicial branch pay raise in HB 2384 by Leach/Huffman.

“I had never been more discouraged in our leadership. How did settling personal scores become more important than policy?”

George Fuller, mayor of McKinney, giving his explanation for why local government groups like the Texas Municipal League are struggling to be heard this session.

“No. Funny to Jonathan Stickland, not funny to me.”

State Rep. Mary Gonzalez (D-Clint), when asked if she thought it was funny how State Rep. Jonathan Stickland (R-Bedford) over-dramatically killed her bill on the House’s Local and Consent Calendar that would have regulated certain pecan buyers.

TDCAA Legislative Update: Week 18, Part III

May 10, 2019

Madame Guillotine dropped with a fury last night as the primary House bill deadline of the session killed several thousand bills. Of the 7,000-plus bills and resolutions filed this session, about 2,000 are still “alive” with 17 days remaining in the regular session. And of the 1,600-or-so bills we have been tracking this session, about 400 are still alive in bill form (not counting dead bill language that may be resurrected as an amendment to a live bill).

Judicial branch pays raises

House Bill 2384 by Leach/Huffman, the tiered pay raise bill that currently includes district and county attorneys, was heard in the Senate State Affairs Committee this week and left pending. We told you earlier in the week what the new committee substitute includes and what it does not include. Overall, it will result in a raise for most elected felony prosecutors and county attorneys, but your mileage may vary. Now the bill awaits a vote in Senate State Affairs and potential consideration by the full Senate. One further caveat, though: Even if this bill passes and is signed by the governor, any raises are still contingent on state budget writers funding it, which is never guaranteed until the HB 1 conference committee report comes out (and that might not be for another two weeks).

We will keep you posted on this topic as events warrant. If you have questions about any of this, contact Rob.

Grand jury bill voted from committee

Earlier today, the Senate Criminal Justice Committee voted out a committee substitute of SB 1492 by Whitmire (D-Houston), this session’s only remaining grand jury reform bill. (House Bill 2398 by S. Thompson never emerged from the House Criminal Jurisprudence Committee.) The Senate’s new version (PDF text available on our website here) does three things:

  • Grand jury testimony of any fact witness must be recorded, with a “fact witness” defined as someone with personal knowledge of events relevant to an investigation (such as an eyewitness or victim or arresting officer);
  • Bars re-presentment of no-billed cases absent material evidence unknown to the prosecutor at the previous presentment; and
  • Creates a temporary Texas Commission on Grand Juries to meet during the coming interim and explore improvements and alternatives to the current system for formally charging felony cases, such as a direct-file-plus-examining-trial option in lieu of a grand jury.

The bill now heads to the Senate floor for consideration. It has 12 days to be approved by both chambers, but that is enough time for a bill like this being privately pushed by certain public figures. Therefore, each of you who opposed the original version needs to read the new one and let us know your thoughts—many inquiring minds at the capitol want to know! We have more relevant information and details about this topic for those interested, so consider contacting Rob or Shannon before acting on any of the details described above.

Committee hearings

Hearing notices are being posted and revised with little notice as we near the end of session. Here’s what has been posted so far:

Monday, May 13

Senate State Affairs – 9:00 a.m., Senate Chamber

  • SB 93 by Canales/Hinojosa requiring a magistrate’s name on certain signed orders
  • HB 888 by Landgraf/Perry criminalizing the misrepresentation of a child’s family status at a port of entry
  • HB 1177 by Phelan/Creighton legalizing the unlicensed carrying of a handgun during a disaster
  • HB 2730 by Leach/Hughes limiting the scope of the ant-SLAPP Texas Citizens Participation Act
  • HB 2826 by G. Bonnen/Huffman limiting local gov’t contingent fee legal contracts
  • HB 2955 by Price/Zaffirini shifting oversight of specialty courts to the Office of Court Administration (OCA)

FYI, no elected prosecutors have volunteered for legislative duties next week, so if you have an interest in any “live” bills, you will have to take matters into your own hands. This may be your last chance to push a bill you like or stop a bill you dislike. All the other committees we usually follow will post notice for their hearings later today or early next week, so if you are following a bill that is alive and still needs to be considered in a committee in the other chamber, check with Shannon for posting details.

Floor calendars

Monday’s House floor calendar includes SB 20 by Huffman/S. Thompson, the omnibus human trafficking bill. That bill has been well-vetted, but it’s possible someone could try to amend it with language from SB 1257 (AG prosecution authority), so if you opposed that bill (which is stuck in the Calendars Committee), now might be a good time to alert your House member(s) to watch out for that proposal. Such an amendment would violate House Rule 11, Section 2, for not being germane to the language of SB 20, but germaneness is like traveling in basketball—if no referee (read: House member) calls the foul (read: point of order) as it happens, then the basket still counts.

Across the rotunda, the Senate Intent calendar for Monday includes: HB 892 by Kuempel/Hughes authorizing county regulation of game rooms; HB 2048 by Zerwas/Huffman repealing and replacing the DRP with new fines, etc.; HB 2502 by Moody/Watson imposing jail time as a condition of probation in certain hit-and-run fatalities; HB 2624 by Perez/Zaffirini facilitating certain fraud prosecutions; HB 3106 by Goldman/Huffman requiring certain sex crime investigation information to be entered into a federal database; and HB 3582 by Murr/Menendez authorizing deferred adjudication for certain DWI-1st offenders.

Bills in House Calendars

For those of you working with members of the Calendars Committee, some of the Senate bills pending before it include: SB 29 by Hall/Middleton limiting local government dues to statewide associations and local officials’ activity at the capitol; SB 194 by Perry/Moody creating the offense of indecent assault; SB 891 by Huffman/Leach, the omnibus court/prosecutor office creation bill; SB 1257 by Huffman/Leach granting new prosecution authority to OAG; and SB 1640 by Watson/Phelan to fix the “walking quorum” offense. If you support or oppose any of these bills and have not already weighed in with the Calendars Committee, now is the time to do that; bills not out of the Calendars Committee by Sunday, May 19, are dead.

Looking ahead

Legislators will get this weekend off (Happy Mother’s Day!) before the final dash to the sine die finish line. Next week will see the last round of committee hearings in which hundreds of House bills will be considered by Senate committees and hundreds of Senate bills will be considered by House committees. (More specifics on that below). Both chambers will also hold daily floor calendars and will likely schedule floor debates on Saturday, May 18, in their rush to complete work on various bills before the deadlines that kick in on Tuesday, May 21 (for SBs in the House) and Wednesday, May 22 (for HBs in the Senate). After that, it’s pretty much all over but the crying.

More Quotes of the Week

“Be pro-life from the womb to the tomb.”

State Rep. Toni Rose (D-Dallas), arguing for passage of her HB 1936 which exempts people with serious mental illness from the death penalty. After minimal debate, the bill passed the House on third reading Thursday by a vote of 77-66 and now heads to the Senate.

“I don’t miss 39 little league baseball games [during session] just to pass a study.”

State Rep. Dade Phelan (R-Beaumont), rejecting a suggestion during debate on his SB 1152 (limiting municipal cable/telecommunications fees) that the Legislature should study the issue during the next interim rather than pass a law now.

TDCAA Legislative Update: Week 18, Part II

May 8, 2019

The final House calendar for non-local House bills has been set for tomorrow; bills not on it are dead, and some bills that are on it are also dead—they just don’t know it yet—because they won’t be reached before Thursday’s midnight deadline. Pour one out for everyone whose bill will turn into a pumpkin then.

Judicial branch pay raises

House Bill 2384 by Leach (R-Plano), the tiered pay raise bill that currently includes district and county attorneys, is up for consideration in the Senate State Affairs Committee tomorrow at 9:00 a.m. in the Senate chamber. Earlier this evening, we were given a preview of the committee substitute version to be laid out in that hearing. The good news is that prosecutors are still in it, but it has been slimmed down to fit within the state budget writers’ original parameters. Here’s a quick thumbnail of the (somewhat complicated) provisions that affect prosecutors:

  • The original three 10-percent raise tiers are reduced to two for DAs and district judges:
    • $140k for 0-4 years (current baseline)
    • $154k for 4-8 years
    • $168k for 8+ years
  • District judges and DAs lose the third-tier raise (after 12 years) in the original version, but the most experienced judges will get some of it back through an acceleration and increase of their current longevity pay, which will kick in at 12 (instead of 16) years of service
  • Elected prosecutors have no similar longevity pay, but DAs’ county supplements will remain uncapped; however, highly-supplemented prosecutors may see no raise from this bill—it will depend on their years of service and supplement amount
  • DAs’ 2.3-percent retirement multiplier will be maintained
  • The fate of the retirement “make-up” pay that DAs currently get from the comptroller is uncertain and it may go away; its fate will be decided by the HB 1 conference committee
  • The House amendment to credit district judges for prior service as a DA is being dropped to help control the cost of the bill (That may create a financial disincentive for a DA to run for a district court bench, but we’re betting the current judges don’t mind that)
  • The county attorney supplement provisions are still in the bill and will be calculated under the new formula using the service credit of a similarly-tenured district judge
  • Retired DAs will receive no ERS increase
  • In some circumstances, the new formula could encourage a county to cut a DA supplement and allow the state to pick up the salary, which might negatively impact the DA’s TCDRS retirement benefits; that will vary by jurisdiction and will be up to each local community to work out.

So, in summary: Under this plan, most DAs will get a raise after four years and against at eight years; others will see no raise after four but will see a raise after eight; a few high-salaried DAs will not see a raise at all under this plan; and CA supplements will also increase, but in smaller percentages due to the existing formula already in place. In each case, the amounts in question will vary from person to person and county to county, so if you have questions about any of this, email Rob or call him at 512/971-8425. He stands ready to calculate your expected pay under this bill if you are curious!

Meanwhile, if you still support this proposal in its new format, now is the time to let your senator(s) know that.

Continuing attempts to limit your voice in Austin

House Bill 281 by Middleton (R-Wallisville) was not calendared for debate before the applicable deadline and is now dead. Congratulations to all of you who opposed that bill and worked to keep it from reaching the House floor. But unfortunately, the march to muzzle local officials at the legislature continues; here’s the latest information we have on that front.

While HB 281 is dead, its more robust cousin, SB 29 by Hall, is still alive and kicking. That bill is now in the Calendars Committee and has until Sunday, May 19 to be placed on the final House calendar for Senate bills later that week. The bill has been narrowed somewhat (latest version available here), but it would still:

  • prohibit local governments from spending funds to attempt to influence legislation pertaining to taxation, bond elections, tax-supported debt, or “ethics and transparency of public servants” (whatever that means);
  • prohibit local governments from paying dues or other monies to any association or organization unless it exists “for the betterment of all local officials” (not just a particular group like prosecutors or clerks, but all local officials); and
  • requires local governments to issue an annual report publicizing how much money they spend on lobbyists.

As we’ve repeatedly noted, this bill prohibits expenditures of county funds for membership in organizations like TDCAA, TCDLA (for public defenders), TAC, the Sheriffs’ Association of Texas, and numerous other similar groups. Even though SB 29’s anti-lobby provision has been limited to certain subjects, legislation on those subjects may be extremely detrimental to your ability to address the needs of your respective offices and communities—not to mention the fact that the list of prohibited policy topics could be expanded on the House floor by amendment. Therefore, if you are concerned about this legislation, you should consider contacting any members of the House Calendars Committee that you know and ask them to hold SB 29 in committee (just as they did with HB 281).

In addition, the House State Affairs Committee heard SB 702 by Bettencourt (R-Houston) earlier today which would require any lobby expenditure by a political subdivision to be specifically authorized by the governing body of the subdivision in an open meeting by a majority vote of the governing body as a stand-alone measure, as well as requiring various public disclosures of that funding to the public. How this bill would apply to expenditures by a prosecutor—who is an independent constitutional officer but who relies on local counties for his or her funding—is unclear. Should it be interpreted to give your local commissioners a “purse string veto” over your involvement in the legislative process, it may be very concerning to some of you. The bill was left pending in House State Affairs, so if you oppose this idea, consider contacting the members of that committee (and if it proceeds from there, then the House Calendars Committee members as well).

House floor fun

If you had any doubts about our frequent warnings that otherwise palatable bills can metastasize into something bad on the often-unruly House floor, last night was a good lesson of that maxim in action.

Yesterday’s House calendar included HB 2613 by Frullo (R-Lubbock), a non-controversial, uncontested bill creating a new trafficking-related crime and directing forfeiture proceeds from the prosecution of that crime to trafficking victim services. Upon being called up around 7:30 p.m., the bill immediately starting getting amended on the floor, first with increased forfeiture auditing and reporting requirements, then with language that applied the exclusionary rule to those civil cases. Despite vocal opposition from Reps. Frullo, Andy Murr (R-Junction), Phil King (R-Weatherford), and several other House members, both amendments were approved on division (non-record) votes, at which time Rep. Frullo postponed his bill to a date past sine die, killing it. Some saw that as a drastic measure, but we recognized it as him keeping his word to interested stakeholders earlier in the session that he would not let his bill be hijacked by unfriendly amendments. It is no small thing for a legislator to kill one of his own bills—especially one so close to possible passage—but it’s nice to know that some legislators are true to their word, and Rep. Frullo deserves credit for doing so. And it all worked out well for him in the end, because earlier today he was able to resurrect HB 2613, strip off the uninvited amendments, and pass a “clean” version of the original. So sometimes these legislative stories do have a happy ending.

That said, there is yet another vehicle for forfeiture-related amendments on the horizon: HB 2058 by Hernandez (D-Houston) is on the final House calendar for Thursday, and if it is reached, it will likely be subject to the same attacks. Her staff has given us assurances similar to those given by Rep. Frullo, but once again we will watch with interest and keep everyone updated as events warrant.

Updates on other major issues

House bills are dying by the hundreds (thousands?) this week (but see our caveat in the section following). With that in mind, here’s where things stand on some issues that we’ve been following this session (listed alphabetically):

AG’s expanded authority: HB 3979 by Leach (R-Plano) was not calendared and is dead. Its Senate companion, SB 1257 by Huffman/Leach, is pending in the House Calendars Committee.

Asset Forfeiture: HB 1615 by Schaefer (R-Tyler) to require the State to disprove the innocent owner defense was not calendared and is dead.

Bail bond reform: HB 2020 by Kacal (R-College Station) (limitations on bail) is on today’s House calendar for debate and took several amendments before being temporarily postponed due to some points of order. However, HB 1323 and HJR 62 by Murr (R-Junction) (preventative detention) and HB 3283 by White (R-Hillister) (bondsmen’s version) were not calendared and are dead.

Death penalty: HB 1139 by S. Thompson/Miles to require pre-trial determination of intellectual disability in death penalty cases was heard today in the Senate Criminal Justice Committee and left pending. HB 1936 by Rose (D-Dallas) to exempt seriously mentally ill offenders from the death penalty was heard today on second reading and passed without debate or objection, but we are told it may lack the votes to pass by record vote on third reading tomorrow, so that may or may not happen.

Deferred adjudication for certain DWIs: HB 3582 by Murr/Menendez was heard today in the Senate Criminal Justice Committee and voted out as substituted; it will be eligible for consideration by the full Senate next week.

Driver Responsibility Program: HB 2048 by Zerwas/Huffman, the repeal-and-replace bill that changes DWI surcharges into criminal fines, is awaiting debate on the Senate floor.

Grand juries: HB 2398 by Thompson (D-Houston) was never calendared and is dead. Its semi-companion, SB 1492 by Whitmire (D-Houston), is pending in the Senate Criminal Justice Committee, but a slimmed-down committee substitute version may emerge from that committee soon (contact Rob for the latest intel).

Limits on contingent fee legal contracts: HB 2826 by G. Bonnen (R-Friendswood) is now awaiting consideration in the Senate State Affairs Committee.

Marijuana: HB 63 by Moody (D-El Paso) (Class C POM) passed the House but has not been referred to a committee yet. HB 1365 by Lucio III (D-Brownsville)—a relatively expansive “medical cannabis” law—and HB 3703 by Klick (R-Fort Worth) (compassionate use program) passed the House this week and are also awaiting referral to a committee in the Senate. If not referred to committees by the Lite Guv, these bills will be dead.

It ain’t over ’til it’s over

Even though the clock has run out on most House bills, it’s too early to throw dirt on the ideas they contained. Some have Senate companions that are still alive, and any idea or language that has not been voted down can re-appear as a floor amendment at any time. Senate bills have 11 days (until Sunday, May 19, at 10:00 p.m.) to be placed on the final House calendar for consideration in that chamber, and both chambers have until Wednesday, May 22 at midnight to finally pass on third reading. In other words, … there’s no rest for the weary just yet!

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

Quotes of the Week

“I’m dealing with my three kids, I’m dealing with my career, the fourth baby coming and the stress of law school. Just because you do an apprenticeship does not mean that it’s anything less—I mean, you have to put in 18 hours a week. It is a full commitment. I won’t have time for events, for favors, for friends, for literally anything, for four years.”

Kim Kardashian West, bemoaning the time and effort it takes to become a lawyer.

“Vote yes if you support open season on drones so you can protect your private property from gun-toting drones that could have lasers.”

State Rep. Briscoe Cain (R-Houston), arguing in support of his floor amendment to HB 4448 by Springer (R-Muenster) that would have allowed people to shoot down drones with a shotgun. Rep. Cain’s amendment failed on a vote of 81–56, and Springer’s bill was eventually voted down by a 95-50 vote.

“Members, I move to postpone further consideration of HB 2613 until 12:00 noon, January 12, 2021.”

State Rep. John Frullo (R-Lubbock), temporarily killing his own bill on the House floor after it took several unfriendly amendments that he could not defeat.

“TX House had a discussion abt civil asset forfeiture that was long overdue. Proud to lead us forward w/2 significant reforms that passed w/bipartisan support. Ultimately the bill was pulled down, but opponents to reform should note the votes and be very afraid. #txlege #CJReform”

Tweet by State Rep. Joe Moody (D-El Paso) after Rep. Frullo initially pulled down his bill.

TDCAA Legislative Update: Week 18, Part I

May 6, 2019

Sorry for spamming you one day after sending you a weekend update, but we are reacting to news as it happens and have information to pass along that may interest you.

Judicial branch pay raises

House Bill 2384 by Leach/Huffman, the tiered pay raise bill that currently includes district and county attorneys, has been set for a hearing in the Senate State Affairs Committee at 9:00 a.m. on Thursday. We do not yet know what version will be rolled out at that hearing, but we do know that the sponsor of the bill—who is also the chairwoman of the committee—intends to change the House’s language to bring the fiscal cost of the bill under the (as-yet-unpublicized) threshold set by the budget conference committee (on which she also sits). She has also instructed her committee staff to share with us the new language when it is returned by the drafters on Wednesday afternoon. Our plan is to review that language and let you know on Wednesday evening where everyone stands—and then you can take it from there.

If you have questions about any of this, contact Rob.

Committee hearings

As we mentioned yesterday, hearing notices are being posted and re-posted with little notice as we near the end of session. Here’s what has been added or changed since our previous update:

Tuesday, May 8

Senate Agriculture – 9:00 a.m., Room 2E.20

  • HB 1325 by T. King/Perry to legalize hemp and hemp products

Wednesday, May 8

House State Affairs – 8:00 a.m., Room E2.014

  • SB 702 by Bettencourt requiring the reporting of expenditures for local gov’t lobbying activities
  • SB 1577 by Alvarado prohibiting the settlement of certain sexual harassment claims with public funds

Senate Criminal Justice – 8:30 a.m., 2E.20 (Betty King Committee Room)

  • HB 8 by Neave/Nelson expanding the required testing of evidence in sex crimes
  • HB 226 by Krause/Hughes revising/repealing various criminal laws outside the Penal Code
  • HB 427 by Shaheen/Hughes reducing the punishment for tampering with a price tag
  • HB 446 by Moody/Perry legalizing clubs and knuckles
  • HB 869 by Hefner/Hughes relating to gas pump card skimmers and organized criminal activity
  • HB 979 by Hernandez/Perry allowing DNA to be taken upon arrest for assault and unlawful restraint
  • HB 1139 by S. Thompson/Miles requiring a pre-trial hearing to determine intellectual disability in a death penalty case
  • HB 1279 by Allen/Menendez correcting certain jury instructions regarding parole and good time
  • HB 2502 by Moody/Watson imposing minimum jail time as a condition of probation for certain hit-and-run cases resulting in death
  • HB 2624 by Perez/Zaffirini to facilitate the prosecution of certain fraud crimes
  • HB 2758 by Hernandez/Huffman limiting community supervision for certain human trafficking- and prostitution-related crimes
  • HB 3106 by Goldman/Huffman requiring sex crime investigation information to be entered into certain databases

Thursday, May 9

Senate State Affairs – 9:00 a.m., Senate Chamber

  • HB 98 by M. Gonzalez/Huffman to narrow the revenge porn offense
  • HB 504 by Dutton granting certain employment protections for jury service
  • HB 1028 by Guillen increasing certain punishments during disaster declarations
  • HB 1168 by Anchia revising the offense of possessing a weapon in an airport
  • HB 2164 by Burns imposing civil and criminal penalties for establishments that bar officers from carrying firearms
  • HB 2384 by Leach/Huffman increasing salaries for certain judicial branch officers
  • HB 2789 by Meyer/Huffman create an adult “sexting” crime for explicit images
  • SB 2365 by Hughes protecting parental rights in CPS cases

In case you were curious, there are no other elected prosecutors signed up to volunteer for legislative duties the rest of this session, so if you have an interest in any of these bills listed above you should consider taking matters into your own hands.

Quotes of the Week Quote of the Day

“If you can’t beat them, silence them.”

Bennet Sandlin, executive director of the Texas Municipal League, expressing his opinion on the motivation behind bills this session that would limit the involvement of locally-elected officials in the legislative process.

TDCAA Legislative Update: Week 17, Part II

May 5, 2019

Happy Cinco de Mayo! With three weeks and a day left to this session, our updates will become even shorter and more irregular due to the lack of notice from the legislature on what it is going to do and when it is going to do it.

Floor calendars

The House is entering the final week in which it can pass its own bills (other than local bills, which have an additional week of life.) When the House convenes Monday, it will take up a few dozen bills originally calendared for last Wednesday, then several score of bills originally set Thursday, and then the members can start on new bills set for the first time on Monday. This backlog means that any House bill that does not appear on a House daily calendar for Tuesday is in serious, serious trouble, even though the official deadline is not until midnight Thursday.

With that in mind, House bills scheduled to be debated Monday or Tuesday include (in order of appearance on the calendar): HB 1936 by Rose (no death penalty if “serious mental illness”), HB 1590 by Howard (creating statewide Office for Sexual Assault Survivor Assistance), HB 24 by Romero (FV enhancement if child present), HB 1365 by Lucio III (legalizing medical cannabis), HB 3703 by Klick (expansion of low-THC “compassionate use program” [“TCUP”]), HB 37 by Minjarez (mail theft), HB 4448 by Springer (drones), HB 2613 by Frullo (spending certain civil asset forfeiture proceeds on human trafficking victim services), HB 1631 by Stickland (ban on red light cameras), HB 2754 by White (no arrest for fine-only offenses absent danger), HB 3824 by Sherman (FV findings), HB 760 by Wu (porch piracy theft), HB 1686 by Smith (automatic sexual assault protective orders), HB 2020 by Kacal (the Damon Allen Act limiting bail), HB 4163 by S. Thompson (judicial commutation of parole sentence), and HB 4202 by Smithee (out-of-time agreed motion for new trial).

Across the rotunda, the Senate plans to take up HB 3 by Huberty/Taylor, the school finance reform bill, on Monday (resulting in all Senate hearings being cancelled on Monday). Other bills eligible to be considered as of Monday include: SB 653 by Hall (ban on red light cameras), SB 970 by Creighton (contingent fee agreements), SB 1543 by Menendez (notice of right to record CPS interviews), and SB 2136 by Powell (extraneous evidence in FV trials).

House Calendars Committee update

Among the bills that have recently been sent to the House Calendars Committee and are hoping to win the golden ticket to floor debate are: HB 3303 by Bowers (limiting probation revocations of sole caretakers of children), HJR 71 by Canales (exempting county court-at-law judges from the resign-to-run rule), and SB 1257 by Huffman/Leach (attorney general prosecution of trafficking-related crimes). If you support or oppose these bills, or any of the other bills we told you about late last week, then contact the members of that committee to have your say.

Committee hearings

These are summaries of relevant committee notices posted for the upcoming week. The lists are pretty scanty right now, but bills may be added to these lists with little or no notice:

Monday, May 6

House Elections – 8:00 a.m., Room E2.016

  • SB 751 by Hughes criminalizing a deceptive video intended to influence an election

House Criminal Jurisprudence – 2:00 p.m. or upon adjournment, E2.012

  • HB 95 by Hinojosa creating offense for strawman purchases/transfers of firearms
  • SB 1820 by Huffman relating to impersonating a public servant

Tuesday, May 7

House Public Education – 8:00 a.m., E2.036

  • SB 11 by Taylor, this session’s omnibus school safety bill

Senate Health and Human Services – 8:00 a.m., Senate Chamber

  • HB 16 by Leach/Kolkhorst creating a civil action and new felony for failing to provide medical treatment to a child born alive after an abortion
  • SB 2091 by Hughes limiting the State’s ability to take possession of a child or terminate the parent-child relationship

Wednesday, May 8

House State Affairs – 8:00 a.m., E2.014

  • SB 702 by Bettencourt requiring the reporting of expenditures for local gov’t lobbying activities

Thursday, May 9

Senate State Affairs (tentative; cancellation from Monday)

  • HB 93 by Canales/Hughes requiring a magistrate’s name to appear on certain orders/warrants
  • HB 98 by M. Gonzalez/Huffman to narrow the revenge porn offense
  • HB 2789 by Meyer/Huffman create an adult “sexting” crime for explicit images
  • SB 2365 by Hughes protecting parental rights in CPS cases

Remember, if you see anything on this list that you like or don’t like, don’t count on anyone else carrying your water for you. Instead, contact Shannon and find out how to get personally involved.

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

More Quotes of the Week

“What about my personal liberty, my personal safety, when I’m walking on a sidewalk? Not a ‘side scooter-way,’ a ‘side runway,’ or a ‘side speedway,’ but a sidewalk?” 

State Sen. Joan Huffman (R-Houston), speaking in support of a Senate measure that would impose a statewide ban on electric scooters from sidewalks.

“Look, I’m not going to lie to you. This stinks!”

Bay Scoggin, state director for the Texas Public Interest Research Group, when asked about questionable campaign fund expenditures made by Harris County Commissioner Rodney Ellis, a former state senator.

“It’s been tough. I never envisioned the level of insane, continuous, vicious attacks from these people that live out in the woods in a cave somewhere on an issue that simply is about letting a felon carry a gun.”

House Speaker Dennis Bonnen (R-Angleton), commenting upon threats he has received over the failure of a bill to legalize the permitless carrying of handguns.

TDCAA Legislative Update: Week 17, Part I

May 2, 2019

Only 25 days left in the regular session. Time and pressure may turn coal into a diamond, but at the state capitol, time and pressure turn diamonds into coal and then drop them in everyone’s sine die stockings.

Deadlines

Some important deadlines are coming up in the House for non-local bills:

Tuesday, May 7, 10 pm: Last House calendar for HBs must be printed

Thursday, May 9, midnight: Last day for House to pass HBs on 2nd reading

Friday, May 10, midnight: Last day for House to pass HBs on 3rd reading

What this means in English: If a House bill (other than a local bill) is not placed on a House floor calendar by Tuesday night, it is dead by rule. And in reality, if a House bill is not placed on a calendar by Tuesday, it may be dead for practical purposes because for the last two sessions, bills calendared for the first time on or after that day have not been reached before Thursday’s midnight deadline. That means several thousand bills will be getting fitted for a toe tag by this time next week, especially after Speaker Bonnen announced this morning that the House would not be working on Saturday after all.

Across the rotunda, Senate deadlines don’t kick in until the final week of the session; more on that when the time comes.

Judicial branch pay raises

House Bill 2384 by Leach (R-Plano), the tiered pay raise bill that currently includes district and county attorneys, was passed by the full House on Wednesday. The final vote was nearly unanimous, but there was plenty of discussion on 2nd and 3rd reading on the House floor before that happened.

To view the full floor debate of HB 2384 on Tuesday’s 2nd reading, including the adoption of various amendments that were acceptable to the author, click on this link and fast-forward to the period from 3:00:35–3:18:25. If you don’t want to watch the entire 18-minute discussion, we’ll direct you to the discussion between Rep. Joe Moody (D-El Paso) and Chairman Leach about the addition of elected prosecutors to the House language and what the prospects for your continued inclusion may be in the Senate; that footage can be found at the 3:11:21–3:12:40 mark. It’s too long for us to transcribe for you, but you should definitely watch it.

On 3rd and final reading, House members had a 30-minute discussion of another potential amendment by Rep. Yvonne Davis (D-Dallas) that would have given a 10-percent bump to judges and elected prosecutors with less than four years of experience. That sometimes-heated debate about the potentially disparate impact of the tiered pay raise plan can be viewed at this link from the 1:40:00–2:46:25 section of the video, although the debate abruptly ended around the 2:11:10 mark, followed by a 35-minute down period where members tried to get guidance offline from the parliamentarians about the potential impact of the amendment on their own retirement funds (which was zero, for the record, but it took them awhile to figure it out). The debate eventually ended with Rep. Davis withdrawing her amendment and the bill being voted out with 143 members in support.

The bill will now be engrossed and sent to the Senate, where it will be referred to the Senate State Affairs Committee chaired by Sen. Joan Huffman (R-Houston), the author of the Senate companion bill that does not include several beneficiaries of the raise who were added by the House, including prosecutors. The fate of the House language in the Senate is unknown, so if you want the bill to pass the Senate with you in it, you better go find your senator(s) over the weekend and let them know how you feel about it because the bill could be heard in committee as soon as Monday if Chairwoman Huffman wants to move it.

If you have questions about any of this, contact Rob.

Updates on other major issues

Here’s a rundown of where some other issues that we’ve been following this session currently stand (listed alphabetically):

AG’s expanded authority: HB 3979 by Leach (R-Plano) is still in the House Calendars Committee, where it has been joined by its Senate companion, SB 1257 by Huffman (R-Houston).

Asset Forfeiture: HB 1615 by Schaefer (R-Tyler) to require the State to disprove the innocent owner defense is in the House Calendars Committee.

Bail bond reform: HB 1323 and HJR 62 by Murr (R-Junction) (preventative detention), HB 2020 by Kacal (R-College Station) (limitations on bail), and HB 3283 by White (R-Hillister) (bondsmen’s version) are all in the House Calendars Committee.

Death penalty: HB 1139 by S. Thompson (D-Houston) to require pre-trial determination of intellectual disability in death penalty cases was passed by a 102-37 vote in the House on Tuesday and will now go to the Senate. HB 1936 by Rose (D-Dallas) was placed on the House calendar for debate yesterday but was not reached; it should be debated later today.

Deferred adjudication for certain DWIs: HB 3582 by Murr (R-Junction) should pass the House today with an amendment adding language from HB 2258 by Smith (R-Van Alstyne) that requires an ignition interlock as a condition of bond following a DWI with child arrest. After approval on 3rd reading today, it will head to the Senate.

Driver Responsibility Program: HB 2048 by Zerwas (R-Richmond), the repeal-and-replace bill that changes DWI surcharges into state fines, was approved by the House on 2nd reading with several clarifying amendments and will head to the Senate after final House approval on 3rd reading later today.

Grand juries: SB 1492 by Whitmire (D-Houston), the Senate version of grand jury reform, is pending in the Senate Criminal Justice Committee. Its semi-companion, HB 2398 by Thompson (D-Houston), remains pending in the House Criminal Jurisprudence Committee.

Limits on contingent fee legal contracts: The House tentatively approved HB 2826 by G. Bonnen (R-Friendswood) on 2nd reading after adding several amendments that limited the new authority given to the attorney general. It should pass on 3rd reading today and be sent to the Senate. A similar—perhaps narrower—version of the same idea, in the form of HB 2003 by Leach (R-Plano), is also scheduled for debate on today’s House calendar, and that bill has a Senate companion, SB 970 by Creighton (R-Conroe), which is set on the Senate Intent calendar this week.

Limits on legislative input: HB 281 by Middleton (R-Wallisville) remains stuck in the House Calendars Committee but its proponents are trying hard to get it set for a floor debate. SB 29 by Hall (R-Edgewood) has been referred to the House State Affairs Committee.

Marijuana: HB 63 by Moody (D-El Paso), the bill to change low-level marijuana possession to a civil infraction, passed by a 103-42 margin after being watered down (at the governor’s direction) into a Class C offense for POM < 1 oz. (although it would not be an arrestable crime by itself). The bill now heads to the Senate, where that chamber’s presiding officer has pronounced the bill dead on arrival due to his general opposition to lessening any drug penalties.

Bills in House Calendars Committee

We are currently tracking 250 House and Senate bills in the House Calendars Committee. In addition to the bills we told you about last week here and here, other bills of interest include: HB 324 by Murr (educator/student clean-up language), HB 480 by Schaefer (grand jury voir dire), HB 1359 by Wu (attorney bypass of courthouse security), HB 1381 by Wray (agg. assault at a school), HB 2120 by Leach (omnibus court/prosecutor office bill), HB 2874 by Y. Davis (abandoning/endangering elderly), HB 2875 by Y. Davis (evidence in injury to child/elderly/disabled trial), HB 3424 by S. Thompson (expanded post-conviction DNA testing), HB 3500 by J. Gonzalez (appointment of counsel for writs), HB 3824 by Sherman (FV findings), HB 3831 by Sherman (no revocations for technical violations), and HB 4202 by Smithee (out-of-time new trial). If you support or oppose any of them and know members of that committee, speak now or forever hold your peace (in the House).

Looking ahead

Both chambers have full calendars today and local and consent/uncontested calendars tomorrow, then they will take the weekend off (for perhaps the last time). Neither chamber’s floor calendar has been printed for next week, and committees will give little if any notice of their hearings in these waning weeks of the session, so check our next update for what (little) we will know heading into next week.

Scattershots

Here are some stories and articles we don’t have time to summarize, but they might be of interest to some of you:

Quotes of the Week (John Whitmire edition)

“The damage is done.”

State Sen. John Whitmire (D-Houston), on why he is still opposed to the confirmation of Secretary of State David Whitley, whose appointment will expire if not confirmed by the Senate before the end of the session.

“It’s not about whether marijuana is good or bad; it’s about whether what we’re doing on enforcement right now is good policy, and we all know it’s not.”

State Rep. Joe Moody (D-El Paso), rebutting an argument on the House floor that his HB 63 would lead to the legalization of recreational marijuana.

“I try not to bring issues that are going to be time-consuming if they’re not going to get support. At this stage, time is value. I still don’t want to do a show-and-tell. I’d like to have a hearing on something that’s got some traction.”

Sen. Whitmire, chairman of the Senate Criminal Jurisprudence Committee, when asked earlier in the week about the prospects in the Senate of HB 63, which would lower POM < 1 oz. to a Class C misdemeanor.

“The reality is we don’t have the votes in the Senate as we talk. … I don’t believe it’s dead and I’m going to do the best I can (to round up support). I’m trying to see if we have the votes in the Criminal Justice Committee to get it to the (Senate) floor.”

Sen. Whitmire, later in the week after HB 63 passed the House.

“Once they’re executed that should be the end. If they want to write something, I would suggest that TDCJ throw it in the trash with all his other belongings.”

Sen. Whitmire (again), criticizing TDCJ for publishing the written statement of John King, who was executed earlier this week for his role in the notorious hate crime slaying of James Byrd, Jr., in 1998. The prison system announced an end to that practice the next day.

“Also, I intend to ask Lt. Governor Patrick to authorize an interim study of the Senate Criminal Justice Committee to review how someone like Mr. King could be on death row for 20 years. It is entirely too long and not fair to the Byrd family and to the State of Texas.”

Sen. Whitmire (yet again), in his official letter to TDCJ after the King execution.

“Were we surprised by that? Absolutely. The Texas Constitution charges the attorney general, the state of Texas’ top lawyer, with defending our state laws and our state constitution. He’s charged with representing the state in litigation that challenges state laws or in lawsuits against state agencies or state employees. In our view, the state constitution doesn’t allow the attorney general to pick and choose which laws he is willing to defend.”

Laura Gibson, chairwoman of the State Bar’s board of directors, in response to news that Texas Attorney General has filed an amicus brief in support of three lawyers suing the Bar over its use of mandatory dues for certain activities.
  • BPU Annual Training 2019

    • TDCAA Legislative Update: Week 16, Part II

    April 28, 2019

    House leadership told its members to not make any plans for Saturday as they intend to set a calendar for floor business that day. Guess we’ll be watching the Kentucky Derby on our office TV this year; please send us your best mint julep recipes so we can be in the proper mind-set for both events.

    Bail bond reform bills moving again

    Earlier this week, the House Criminal Jurisprudence Committee voted out all three of the “bail bond reform” bills they heard two weeks ago, but substantial changes have been made to two of them, and we could be in store for quite a mess if all three of them are finally passed and become law. Here’s why.

    The reform advocates’ preferred changes were originally contained in HB 1323 by Murr (R-Junction); that’s the bill the Chief Justice touted earlier in the session. However, the committee substitute version of that bill has been slimmed down to two main provisions: (a) judges may not adopt a bail schedule “inconsistent with the laws of this state,” and (b) judges may order preventative detention for offenders accused of 3g offenses. For those of you concerned about that latter concept—which still includes an evidentiary hearing within 10 days of arrest with live witnesses, cross-examination, and a new State’s burden of clear and convincing evidence, as in the filed bill—this may not be great news. But it also requires a constitutional amendment, which was voted out later in the week as a substitute version of HJR 62 by Murr and will require approval of two-thirds of each chamber in order to make it on November’s ballot. The new language of the bill and resolution are not yet available on the legislature’s public website, but a PDF copy of CSHB 1323 can be accessed at this link. (We don’t have the CSHJR yet but are told it is changed to conform to the bill’s new language.)

    The other major bail reform bill is HB 2020 by Kacal (R-College Station). The substitute version of this bill maintains the “Damon Allen Act” moniker identifying it as the governor’s preferred bill. (Interestingly, that name has been stripped from HB 1323.) The main thrust of HB 2020 is two-fold. First, it creates a Bail Advisory Commission under the direction of the governor’s office that is tasked with working with the Texas Judicial Council to create and approve a new validated risk assessment to be used as a part of bail determinations made on or after September 1, 2020. Second, it limits the types of judges who can issue bail for all felonies and for jailable misdemeanors under Penal Code Chapters 21 (Sexual Offenses) and 22 (Assaultive Offenses). For those cases, only judges licensed to practice law for four or more years who live in the counties/districts they serve and who have not been removed or retired in lieu of removal can set bail—something that may create heartburn for rural Texas where lawyer-judges are sparse, but that will vary by jurisdiction. Like HB 1323, the substitute version of HB 2020 is not yet available on the legislature’s public website, but we have a PDF version available here if you want to read it for yourself.

    The third bail bill passed by the committee is HB 3283 by White (R-Hillister), which contains the bail bondsmen’s preferred “reforms.” It permits standing bail schedules (possibly contradicting HB 1323) and allows a type of “bail bargaining” in which a defendant who cannot make his initial assigned bail amount may counter-offer an amount he can make and request a hearing on that counter-offer within 48 hours, and if that is denied, he gets a second hearing for reconsideration within another four days. Unlike HB 1323, there are no details on how these hearings would be conducted, which judges would conduct them (unlike HB 2020), or who needs to be at them, but the assumption is that it would work within the context of current procedures. This purports to create the kind of individualized assessment required by recent federal court rulings out of Harris County while changing as little as possible elsewhere, but we’ll leave it to others to decide if it really does so.

    So, that’s our quick take on these bills. All of them now head to the House Calendars Committee for further consideration, so if you have an interest in one or more of them, now is the time to reach out to the members of that committee (more on that below) and let them know your thoughts. If you have questions about any of this, contact Shannon.

    Bills in House Calendars Committee

    Bills sent to the House Calendars Committee over the past three days include: HB 464 by Moody (expands scientific writs to punishment errors), HB 1223 by VanDeaver (custody interference), HB 1323 and HJR 62 by Murr (preventative detention), HB 1365 by Lucio (medical marijuana), HB 1615 by Schaefer (imposing innocent owner burden on State in forfeiture cases), HB 2020 by Kacal (limitations on bail), HB 2754 by White (limits on arrests in certain Class C proceedings), HB 3554 by Farrar (out-of-state forensic testimony), HB 3979 by Leach (AG original criminal jurisdiction), and SB 1640 by Watson/Phelan (walking quorum fix). These bills now sit in purgatory awaiting a golden ticket to floor debate; to help make that happen—or not happen—on any specific bill, contact the members of the Calendars Committee.

    Committee hearings

    Here are summaries of relevant committee notices posted for the upcoming week. See our previous update for Monday’s listings.

    Tuesday, April 30

    Senate Intergovernmental Relations – 8:30 a.m., Room E1.016

    • HB 892 by Kuempel authorizing all counties to regulate game rooms
    • HB 1476 by Anderson authorizing McLennan County to regulate game rooms
    • SB 1469 by Powell authorizing municipal regulation of game rooms and related machines
    • SB 1470 by Power relating to zoning regulations for certain coin-operated machines

    Wednesday, May 1

    House Homeland Security & Public Safety – 8:00 a.m., E2.016

    • HB 4017 by Calanni limiting LTCs for identified members of criminal street gangs
    • SB 71 by Nelson creating a statewide telehealth system for SANE exams
    • SB 284 by Hinojosa relating to disciplinary proceedings for licensed forensic analysts
    • SB 324 by Huffman relating to the disposition of firearms seized from mentally ill persons
    • SB 363 by Watson requiring a warrant/subpoena/court order for PMP prescription information
    • SB 1804 by Kolkhorst requiring certain bond conditions in FV cases be entered into TCIC

    Senate Criminal Justice – 8:30 a.m., 2E.20 (Betty King Committee Room)

    • SB 336 by West granting jail credits to certain offenders
    • SB 550 by West authorizing orders of non-disclosure following set-asides
    • SB 815 by Rodriguez relating to the preservation of certain criminal records
    • SB 1269 by Watson extending the time for sealing a search warrant affidavit
    • SB 1637 by Zaffirini waiving or excusing various fines, fees, and costs
    • SB 2045 by Fallon relating to mutual aid law enforcement task forces
    • SB 2093 by Hughes regulating access to location information and other electronic customer data
    • SB 2136 by Powell expanding the scope of evidence admissible in a family violence prosecution

    House Juvenile Justice & Family Issues – 10:30 a.m. or upon adjournment, E2.012

    • HB 758 by Wu relating to public access to juvenile court proceedings
    • HB 1871 by Goldman also relating to public access to juvenile court proceedings
    • HB 4038 by Dominguez expanding the Romeo & Juliet affirmative defense

    Thursday, May 2

    House Corrections – 8:00 a.m., E2.030

    • SB 1154 by Perry relating to the powers and duties of the Texas Civil Commitment Office

    Interested in something else?

    Try as we might, we cannot both keep up with the thousands of bills that are still moving through the legislature in a panicked rush to beat various deadlines and provide detailed updates on all of them to you. Therefore, if you want information on a specific issue or bill, please call or email Shannon for the details.

    More Quotes of the Week

    “Well, I know, Stickland, you’re not going to vote for it anyway, so if you could just, uh, be quiet ….”

    State Rep. Sarah Davis (R-West University Place), shutting down State Rep. Jonathan Stickland (R-Bedford) as he tried to ask questions on the House’s back mic about a joint resolution she was proposing (video via Twitter).

    “I think this is a terrible Big Brother, big government bill, and if you think that Big Brother, big government is what you want, vote for this. It’s crap.”

    State Rep. Terry Canales (D-Edinburg), arguing against passage of HB 1399 by Smith (R-Sherman) to expand DNA collection upon arrest. The bill eventually passed the House by a 77-68 vote and has been referred to the Senate for its consideration.