Bundle up, buttercups, it’s gonna get cold this week! During the impending arctic blast, please be sure to protect your “4 Ps”—pets, plants, pipes, and prosecutors.

Business Meeting

TDCAA’s annual board director elections were held in conjunction with our Elected Prosecutor Conference earlier this month. Here are the results for open seats:

President-Elect:                                             Erleigh Wiley, Kaufman County CDA
Secretary-Treasurer:                                    Kriste Burnett, Palo Pinto County DA
Criminal District Attorney-At-Large:        Joe Gonzales, Bexar County CDA
County Attorney-At-Large:                         Natalie Cobb Koehler, Bosque County CA
Director, Region 1:                                       Landon Lambert, Donley County CA
Director, Region 2:                                       Laura Nodolf, Midland County CDA
Director, Region 4:                                       Carlos Omar Garcia, 79^th Jud. DA
Director, Region 7:                                       Jeff Swain, Parker County DA

For all board positions for 2023 (complete with pictures!), see our website.

Session volunteers

The 88^th Regular Session convenes on Tuesday, January 10, 2023, and committee hearings should start up a month after that. If you would like to see how the sausage is made (or make some yourself!), please contact Shannon to reserve a week to come to Austin in February, March, or April of 2023. Preference will be given to elected prosecutors, but assistants are also welcome to volunteer (with their boss’s permission, of course).

DPS budget items

For those of you wanting to impress upon your legislators the importance of getting timely and effective help from DPS crime labs, you can now direct your policymakers to specific budget proposals they can support. In particular, that state agency has listed as its fourth priority exceptional item request—that’s lege speak for “Item #4 on our Christmas wish list”—almost $29 million of additional crime lab funding for the next biennium. If approved, those funds would be used for three initiatives:

• faster forensic blood toxicology testing;
• support for critical lab activities, such as developing new testing for hemp-related cases; and
• creation of a forensic lab records discovery portal for criminal discovery.

If you think one or more of these items is important, then let your legislators know they should fund DPS Exceptional Item Request #4 this upcoming session.

Bill tracking

Are you curious to know what is being filed for the upcoming session? Of the 1,350 bills filed through last week, we are tracking 360 (27 percent) of them. To see bills that would amend the Penal Code (94 bills), the Code of Criminal Procedure (108 bills), and other “Bills to Watch” (a curated list of 14 other bills that you might care about), use the links on our Legislative webpage (right-hand side for desktop access, bottom of the page on mobile devices).

We maintain more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been filed so far. And if you or someone in your office has proposed a bill that gets filed, please drop Shannon a note so he can track it as such.

Prosecutor compensation update

Speaking of “bills to watch,” some of you will want to bookmark Senate Bill 277 by Huffman (R-Houston) because it would grant “cross-credit” service to prosecutors and judges who get elected to another such position. Currently, these elected officials lose their seniority service credit and have to start over in their new position, which can be a deterrent to finding good candidates for those offices. We will continue to closely follow this bill during the session.

And for those needing some reading material over the holiday break, check out the Judicial Compensation Commission’s 2022 Report (PDF) in which the group recommends the Lege increase judicial benchmark salaries by 22 percent. That could be a tall order in this next session, but the commission is also supporting the concept behind SB 277 on page 7 of the report. Read the entire document for more details.

Brenham query

Washington County DA Julie Renken is working on a bill to make Intoxication Manslaughter a first-degree felony when there is more than one person killed (as opposed to potentially stacking sentences). To that end, she is trying to identify cases from other jurisdictions that such a change might have impacted. If you’d like to help her with that project, please call Julie at (w) 979/277-6247.

Denton query

In its 2021 Ortiz decision (summarized here), the Court of Criminal Appeals found that bodily injury Assault Family Violence (Class A) is not a lesser included offense of occlusion/strangulation Assault Family Violence (3^rd Degree). This has presented prosecutors with new hurdles in trying and plea bargaining these already challenging cases. The Denton County Criminal District Attorney’s Office is exploring the legislative fix Justice Baker called for in his subsequent McCall concurrence (summarized here). If your office is working on this issue or interested in participating, please contact Denton ACDA Jesse Davis at [email protected].

Free CLE: Mandatory Brady training

The 2022 version of TDCAA’s free Mandatory Brady Training is now available online. Click the link above for more details and be sure the other prosecutors in your office are clicking it too!

Free CLE: “Alternatives to Traditional Prosecution of Mental Health Cases”

Part Three of our online Mental Health Video Series is now available online free of charge. This 3-hour course focuses on the creation and operation of mental health specialty dockets and courts and related diversion options. To register for this course or either of the two prior free online offerings in the series, visit our online training webpage. Special thanks to the Court of Criminal Appeals for funding these mental health training courses!

PVAC recognition

TDCAA’s Professional Victim Assistance Coordinator (PVAC) recognition is a voluntary program designed to recognize professionalism in prosecutor-based victim assistance and acknowledge a minimum standard of training in the field. If you know of a VAC in your office who might merit such recognition, a list of the requirements and an application can be found here. The deadline for 2023 applications is January 31, 2023. For questions, contact TDCAA’s Victim Services Director at [email protected].

Scattershooting

Here are some December stories that you might’ve missed:

• “Five down in Apt. 307: Mass fentanyl deaths test a Colorado prosecutor” (Washington Post)
• “Voters in five Texas cities approved decriminalizing marijuana. Now city officials are standing in the way.” (Texas Tribune)
• “One of deadliest prison escapes in US history was preceded by multiple security failures” (Houston Chronicle)
• “US study: Over half of car crash victims had drugs in system” (AP News)
• “A lobbyist’s perspective on why legislators file unpassable bills” (Texas Standard)

Quotes of the Month

“I used to have a lot of faith in our law enforcement and our government. I have to say I’ve really begun to question our judicial system and the way things are done.”
            —Melanie Tieperman, a Leon County resident who witnessed the escape of a TDCJ inmate from a transport bus in May 2022 and then watched as a local police officer on the scene failed to pursue the inmate, who would later murder a grandfather and four of his grandsons before being killed himself in a stand-off with authorities.

“I think that DA offices should be like law enforcement and should not be able to be defunded by local [commissioners courts].”
            —State Sen. Joan Huffman (R-Houston), announcing during a recent Senate Criminal Justice Committee interim hearing that she intends to try to expand the law passed last session limiting the defunding of urban police and sheriff department to include district attorney offices in those counties.

TDCAA offices will be closed next week and re-open for business on Monday, January 2, 2023.
Look for these legislative update emails in your inbox every Friday afternoon during the upcoming session.
Until then … Merry Christmas and Happy New Year to all!

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I don’t know about you, but turkey and fixins could be scheduled as a controlled substance based on the somnambulant effect it had on my family last Thursday.

Elected Prosecutor Conference this week

We are expecting more than 200 people at this week’s Elected Prosecutor Conference at the Horseshoe Bay Resort. In addition to our posted agenda, we will honor a current legislator for his public safety work and make time to discuss the upcoming legislative session. If you haven’t yet signed up, don’t worry! Online registration is closed, but we will accept walk-in registrations from elected prosecutors and first assistants who can make it out to this fabulous location.

TDCAA’s 2022 Business Meeting

TDCAA’s annual business meeting and board director elections will take place on Wednesday, November 30, 2022, at 5:00 p.m. at the Horseshoe Bay Resort immediately following the opening session of our Elected Prosecutor Conference. TDCAA’s Nominations Committee has put forth the following candidates for open positions on the TDCAA Board of Directors for terms of office beginning January 1, 2023:

President-Elect:                                             Erleigh Wiley, Kaufman County CDA
Secretary-Treasurer:                                     Kriste Burnett, Palo Pinto County DA
Criminal District Attorney-At-Large:        Joe Gonzales, Bexar County CDA
County Attorney-At-Large:                         Natalie Cobb Koehler, Bosque CA

Director positions for TDCAA Regions 1, 2, 4, and 7 (map here) will also be decided at this business meeting. All elected prosecutors present at the business meeting who are TDCAA members in good standing are eligible to vote. If you have any questions about the election or your membership status, please contact Rob before heading out to the resort.

Seeking salary stats, stat!

To help some friendly legislators who are interested in incentivizing new lawyers to enter our profession, we have been asked to gather the latest information on starting salaries for new prosecutors throughout Texas. If you’d welcome state assistance in recruiting and retaining high-quality lawyers for your offices, please consider sending us your latest starting prosecutor salary figures by email to Rob.

Bill tracking

Curious about what is being filed for the upcoming session? Of the 1,060 bills filed before last week’s holiday break, we are already tracking 283 (26.6 percent) of them. To see bills that would amend the Penal Code (70 bills), the Code of Criminal Procedure (90 bills*), and other “Bills to Watch” (a curated list of other bills that you might care about), use the links on our Legislative webpage (right-hand side for desktop access, bottom of the page on mobile devices). [*Ed. note – our CCP track report is glitching as this update goes to press, but it should be fixed soon. Sorry for the inconvenience.] We maintain more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been filed so far. (And if you or someone in your office has proposed a bill that gets filed, please drop Shannon a note so he can track it as such.)

Free Brady training

The 2022 version of TDCAA’s free Mandatory Brady Training is now available online. (Did we say “mandatory”? Sorry, we meant to say “MANDATORY.” But also, “FREE.” So, it’s a push, eh?) Click the link above for more details and be sure all the other prosecutors in your office are clicking it too.

Free CLE: “Litigation in Mental Health Cases”

Part Two of our Mental Health Video Series, “Litigation in Mental Health Cases,” is now available online and free of charge. This 4.25-hour MCLE course includes discussions of competency and restoration, sanity, other mental health defenses, along with detailed information about the Texas state hospital system and the continuum of care. (And if you missed the first part of this series, which is also free, you can click here for details and access.) Special thanks to the Court of Criminal Appeals for funding these special training courses!

Scattershooting

Here are some stories that dropped in November that you might’ve missed:

• “Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do.” (The Marshall Project)
• “Texas’ temporary license tags will be redesigned to prevent counterfeits, DMV says” (Dallas Morning News)
• “AG Paxton touted ‘unprecedented’ election fraud in Texas. Here’s how 4 major cases fizzled.” (Houston Chronicle)
• “The Exceptionally American Problem of Rising Roadway Deaths” (New York Times)
• “Fight over Legal Poker in Texas Goes to the Legislature” (Texas Observer)
• “Army of gambling lobbyists descends on Austin as casinos seek to crack Texas market” (Houston Chronicle)

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Leave it to The Onion to come up with the best punchline to the recent news story about meth being smuggled across the Texas-Mexico border in pumpkins … click here for your seasonal giggle (and yes, it is safe for work).

Elections and their consequences

The general election is in 11 days. We will send out a special post-election update on prosecutor election results and a broader analysis of the new make-up of the Lege after the election dust settles. Oh, and bill pre-filing begins the week after that. No, seriously—legislators can start filing bills for the 2023 regular session in three weeks! We will read the bills and summarize the important ones for you as long as you promise not to blame us for ruining your pre-holiday cheer.

Mandatory Brady training

The 2022 version of TDCAA’s free Mandatory Brady Training is now available online. (Did we say “mandatory”? Sorry, we meant to say “MANDATORY.” But also, “FREE.” So, it’s a push, eh?) Click the link above for more details and be sure all the other prosecutors in your office are clicking it too.

Prosecutorial discretion

Over a two-day period earlier this month, the House Select Interim Committee on Criminal Justice Reform reviewed charges on bail reform, drug crime punishments, civil asset forfeiture, death penalty jury instructions, policing reform, uses of detention and incarceration, transparency in the grand jury process, and prosecutorial discretion. (Whew!) The last two subjects were the only ones on which the committee saw fit to invite elected prosecutors to weigh in, so we will confine this section to summarizing those two topics.

The legislature’s interest in grand jury reform is an old one, and not much new ground was plowed on it at this hearing. Coryell County DA Dusty Boyd supplied invited testimony on the grand jury process and ably answered questions about how it works in practice. The discussion was not very thorough, but we assume bills will be filed again next session under the banner of “injecting more due process” into the criminal justice system’s current method for making charging decisions. Of course, this also makes the charging process more laborious, expensive, and adversarial, qualities which benefit wealthy or powerful targets with the resources to exercise new avenues of collateral attack. (Run-of-the-mill indigent defendants? Not so much, as noted by a witness before the committee.)

The topic of making criminal charging decisions received greater attention during the committee’s discussion of prosecutorial discretion, and specifically, whether or how prosecutors should publicly announce their policies for exercising that constitutional power. This is a new debate for the Lege, but while the most recent complaints about potential non-prosecutions were triggered by a change in abortion jurisprudence, several police chiefs, sheriffs, and peace officer unions have also been complaining to their legislators about certain jurisdiction’s non-prosecution policies regarding specific types of drug and property crimes that predate this summer’s Supreme Court commotion. Those two converging veins of political strife have made this a hot issue not just in Texas, but nationwide.

Into that maelstrom walked Fort Bend County DA Brian Middleton and Kaufman County CDA Erleigh Wiley, who adeptly answered the committee members’ questions and defended prosecutors’ role as the elected officials tasked by the state constitution with making those important decisions. Ultimately, much of the concern expressed by legislators related to the recent trend of categorical non-prosecution policies being made publicly—and in a manner that many of them considered to be an affront to lawmakers—whereas in the past such decisions were made unofficially or internally by prosecutors. No clear cause for that recent trend was named by the committee, but upon conclusion of the testimony, the committee chairman indicated his desire to take a “very targeted, scalpel-like approach” to stopping such effrontery while still preserving prosecutorial discretion. Such a nuanced approach might be welcomed by prosecutors, but keep in mind that our legislature’s default tool is the lawmaking equivalent of a sledgehammer, not a scalpel, so what its response might look like in reality is anyone’s guess at this point.

The wide-ranging committee discussion on these two topics lasted almost three hours, including a lengthy stint with SMU law professor Pamela Metzger, who heads the Deason Center for Criminal Justice Reform at that school. (It was her bad luck to be called up first, but she did an admirable job educating the committee members about the current law and practice while also plugging her pet issues related to indigent defense.) The full committee hearing is available for viewing HERE, with the prosecutorial discretion issue being taken up first, followed by the grand jury issue starting around the 02:48 mark of the archived video.

The governor and legislative leadership have promised to address the discretion issue by hook or by crook this upcoming session, so if you want to prepare for those debates ahead of time, consider watching this hearing in preparation for those discussions next session.

Texas Prosecution 101

Be sure to review our latest PDF version of Texas Prosecution 101 (and share as needed). You might be surprised at how many people aren’t aware of who prosecutes what in Texas and why it is that way—even in the halls of the state capitol. Start educating your constituents now.

Other interim committee news

As we mentioned above, the House CJ Reform committee accepted invited testimony on six other topics besides prosecutorial discretion and grand jury reform. Here’s a one-sentence summary of the tenor of the debate on each of those topics:

• Bail reform: Judges should detain bad/violent people and release good/non-threatening people—why is that so hard?
• Drug crime punishments: Think of all the money the state could save if we lowered or ended criminal penalties for drug possession!
• Civil asset forfeiture: It’s an affront to libertarians everywhere and should be ended.
• Death penalty jury instructions: The Senate should pass last session’s House Bill 1340 that would limit application of the death penalty for those convicted under the law of parties.
• Policing: If policing abuses could be ended through mandatory training, it would’ve been solved already.
• Prison/jail conditions: As if bad food, bad health care, and no A/C in TDCJ were not bad enough, staffing shortages are making those and other shortcomings even worse.

Other legislative hearings held this month that might be of interest to some of you are the following:

The House Judiciary & Civil Jurisprudence Committee held a joint hearing with the House Juvenile Justice & Family Issues Committee on court caseloads and backlogs along the Texas-Mexico border stemming from Operation Lone Star (OLS). Representing the Border Prosecutor Unit (BPU) were 452^nd DA Tonya Ahlschwede and BPU Project Director Nelson Barnes, who both answered numerous questions about the challenges of prosecuting criminal cases arising out of OLS and related border operations.

The House Judiciary & Civil Jurisprudence Committee also held a separate hearing to review the current rules and exclusions for jury service eligibility. Statewide, recent data showed that almost half of jury summons receive no response, and the consensus among the committee members favored taking steps to improve turnout for jury service cattle calls, whether that be higher juror pay, increased use of electronic communications, or scaling back the jury service exemptions currently on the books.

The House Criminal Jurisprudence Committee held a hearing on the topics of offender re-entry/re-integration programs and victim services. On the former, Dallas County CDA John Creuzot appeared as an invited witness to discuss the Expunction Expos his office has run and to answer questions about the differences between expunctions and non-disclosures, among other topics. On the latter, Tarrant County CDA VAC Elizabeth Garcia testified about the limited “soft money” options available for funding local VAC services and answered questions about CVC applications and processing.

The House Appropriations Committee received a 30,000-foot overview of the various Legislative Budget Board (LBB) hearings on agency budget requests and learned that state agencies are requesting more than $15 billion in exceptional items (read: new money for new stuff), including roughly $2 billion for salary increases. The last general state employee salary increase was passed in 2015.

Looking ahead, no further interim committee hearings are scheduled. With elections coming up and bill filings about to begin, ain’t nobody got time for more interim hearings right now—it’s almost game time! There may yet be a few hearings after the election, but most committee staff are now concentrating on summarizing their past work into reports for the next legislature.

CDRR SBOT update

The State Bar’s Committee on Disciplinary Rules and Referenda held a regularly scheduled meeting earlier this month at which it once again considered expanding TRPC 3.09 (duties of prosecutors). The result was a postponement of the issue to allow the subcommittee on this matter to hear from prosecutors in response to new language proposed by the Innocence Project of Texas (which had only been received by the committee a day or two before this month’s meeting). That subcommittee meeting has also been held, and while a few minor points got hammered out, it appears that the prosecutors involved in that process still have serious concerns about the latest proposal. The full committee will next meet on November 3, 2022, when it may (or may not) vote to publish new language (on both the rule and its comments) in the January 2023 issue of the Texas Bar Journal. Publication of that proposal will trigger more proceedings, including another meeting at which public comment will be taken (as done earlier this year). If you have any questions or concerns about this process, please contact Potter County CA Scott Brumley, the chairman of TDCAA’s Rule 3.09 Committee.

Key Personnel–Victim Services Board elections

Elections for the 2023 TDCAA Key Personnel–Victim Services Board will be held on Thursday, November 3, 2022, at 1:15 p.m. during our Key Personnel & Victim Assistance Coordinator (KP&VAC) Conference in San Antonio. For more details on these elections, email [email protected].

2022 Elected Prosecutor Conference

Elected prosecutors and first assistants won’t want to miss our Elected Prosecutor Conference at the Horseshoe Bay Resort. To make reservations at the $139 group rate, call 877/611-0112. You must mention TDCAA to get the discounted rate or click here to book online using TDCAA’s private reservation page. Rates are available until November 8 or until the block is sold out, whichever comes first.

2023 Annual Conference

We will be revealing the host hotel for our 2023 Annual Conference on November 1, so be sure to have your office staff watching our website for the big reveal! A limited number of rooms will open for reservation at that mystery location on November 1, but if the first block of rooms fills up before your office makes its reservations, don’t panic—a second block of rooms will open at that hotel after our official brochure is mailed out in mid-2023. More details are available here.

Scattershooting

Here are some stories of late that you might’ve missed:

• “Lawmakers looking at ways to make district attorneys enforce laws” (News4SA)
• “Philadelphia elected a progressive prosecutor twice. The state government wants to fire him anyway.” (Vox)
• “Column: Miyares power grab? Virginia AG joins effort to attack local prosecutors.” (Richmond Times-Dispatch) (Ed. note: If you thought the prosecutorial discretion debate is Texas-specific, it isn’t. It’s a national, organized, partisan campaign, as these two previous stories prove.)
• “Texas struggles to get guns away from domestic violence suspects, leaving victims in danger” (Texas Tribune)

Quotes of the Month

“We’ve seen more carrying [of] weapons, which by itself would be legal. But people are carrying the weapons while committing other crimes, and I’m not talking just about violent crimes. I’m talking about intoxication crimes or driving crimes or property crimes, carrying weapons on school property or in another prohibited place.”
            —Harris County DA Kim Ogg, as quoted in a recent New York Times article on the impact of Texas’ recently-passed “constitutional carry” law.

“He governs like a judge, and that’s where the autocratic side comes out.”
            —Retiring State Rep. Lyle Larson (R-San Antonio), as quoted in a Texas Tribune article about Governor Greg Abbott’s use of executive orders and related powers.

“Tracking Congress began to feel like keeping up with the latest from the mean girls in my sixth grade cafeteria. That first day back, I saw members wandering around the Rotunda, livestreaming themselves in the middle of the workday, rather than attending committee hearings or meeting with constituents or, hell, even lobbyists. It finally dawned on me that what had once been an unhealthy trend had now hit critical mass: Becoming internet famous was now the entire point of serving in Congress.”
            —Excerpt from “The Education and Disillusionment of a Young Texas Reporter in D.C.,” an essay by Abby Livingston, former Capitol Hill beat reporter for the Texas Tribune.

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Annual Conference recap

What a great turnout for this year’s Annual Conference in Corpus Christi! After all the dust settled, we counted 1,039 speakers, attendees, exhibitors, and others who moved the turnstiles at our largest conference of the year. We also recognized several members of our association for their public service, including Fort Bend County DA Brian Middleton (2022 Prosecutor of the Year), Potter County CA Scott Brumley (2022 Prosecutor of the Year), Tarrant County CDA Sharen Wilson (Lone Star Prosecutor), Hill County DA Mark Pratt (Lone Star Prosecutor), Rusk County ADA Zack Wavrusa (Oscar Sherrell Award for service to TDCAA), and Dallas County ACDA Jen Falk (C. Chris Marshall Award for training excellence).

Many thanks to all who joined us in Corpus. And for those of you already turning your attention to the 2023 Annual Conference … stay tuned! We will have more information on the location and timing of that event in the coming weeks. (How’s that for a teaser?)

Mandatory Brady training now available

The new 2022 version of TDCAA’s Mandatory Brady Training is now available online. All of you should’ve received an emailed flyer about the course, but here are more details:

• Tex. Gov’t Code §41.111 (Training Related to Prosecuting Attorney’s Duty to Disclose Exculpatory and Mitigating Evidence) and related rules adopted by the Court of Criminal Appeals require prosecutors to complete specific training every four years on a prosecutor’s duty to disclose exculpatory and mitigating evidence. (This includes any special prosecutor or prosecutor pro tem who handles even a single criminal case, so be sure those lawyers know about this training obligation!)
• This mandatory training requirement does not apply to lawyers in a prosecutor’s office who exclusively handle Class C misdemeanors or civil matters.
• The most recent version of this course was offered online starting in 2018, so many prosecutors will need to take the 2022 course by the end of this calendar year to remain in compliance.
• New prosecutors have 180 days after they begin employment to complete the training.
• The course is free and open to anyone, including those not statutorily required to take it.
• TDCAA will report 1.25 hours of MCLE (including 1.25 hours of ethics) to the State Bar for anyone who completes the course and will annually report to the Court of Criminal Appeals a list of those attorneys in compliance.

You can access the course at https://www.tdcaa.com/training/mandatory-brady-training-2022/. For questions, call us at 512/474-2436.

Stephens v. State redux and “Texas Prosecution 101”

On Wednesday, the Court of Criminal Appeals declined to reconsider its original opinion in State v. Stephens, the election fraud case from last December that confirmed the constitutional ban on the state attorney general’s unilateral authority to prosecute crimes in Texas. For details about the very interesting concurrence and two dissents to that denial of rehearing, check out today’s TDCAA Case Summaries (and some curated quotes included below).

On the heels of this denial of rehearing—which should shock no one, as the original decision was consistent with almost 150 years of Texas jurisprudence (as thoroughly researched and reported in one of the dissents)—yet more complaints about non-prosecution have already been raised. Perhaps the most overwrought was this recent press release from the Texas Public Policy Foundation (TPPF). While its non-prosecution narrative is unsupported by fact—perhaps because actual facts would disprove the desired political narrative during peak campaign season—we all know how little facts can matter in some public policy debates. More instructive for you may be the author’s proposed solutions: creating a statewide Office of Election Integrity for investigating those cases and new regional judicial districts with new judges and district attorneys authorized to prosecute civil and criminal violations of the election laws. It is unclear how any of that would actually work in practice (other than being extremely expensive to the state), but you can be certain that such legislation will be filed next session along with measures to authorize recall elections for local prosecutors (which is of dubious constitutionality and may therefore require a constitutional amendment—but we can discuss that in more detail when the time comes).

All of this chatter about prosecution is why we updated and reissued our FAQ-style memo on who prosecutes what in Texas earlier this month. Visit Texas Prosecution 101 and share as needed to help ensure public policy decisions are not made in a vacuum of misinformation next session.

Post-Dobbs abortion-related litigation

In the wake of the U.S. Supreme Court’s decision in Dobbs to return the legality of elective abortion to the states, several local prosecutors and the attorney general have been sued in a federal lawsuit seeking to enjoin them from enforcing any of Texas’ criminal laws against nonprofits and others that want to help pay for Texans’ abortions out of state. For a background summary of that litigation, see this helpful blog post from TCJL from earlier this month.

As of now, no class action has been certified that would apply this litigation to all county and district attorneys in the state. However, the individual prosecutors named in the suit have agreed not to enforce the laws at issue until the federal litigation is concluded. An initial ruling from the trial court is expected in the coming weeks, and we will provide updates as warranted.

Legislative appropriation requests

Staff from the Legislative Budget Board (LBB) and the governor’s office began hearing the initial legislative appropriations requests (LARs) from various state agencies this month, including those within the judicial branch. The LAR hearing process allows every agency receiving state money to make a formal request for funding for the next biennium. Those agencies usually begin by formally asking that current funding levels be maintained and then put forth requests for additional funding, known as “exceptional items.” As the budgeting process moves forward into the regular session, those exceptional items will be considered first by LBB and then by the appropriate budget committees of each chamber, and some lucky exceptional items will make it into the final budget adopted by the full legislature in May of next year.

The (limited) funds that prosecutors receive from the state run through the Judiciary Section of the Comptroller’s Office. That agency traditionally does not request exceptional items on behalf of its beneficiaries, so Comal County CDA Jennifer Tharp  and 46^th Judicial DA Staley Heatly, your Legislative Committee Co-chairs, made in-person requests this week for three exceptional items: increased assistant prosecutor longevity pay, parity with the salary increases that judges may receive based on years of service, and credit towards that service for time spent in other positions. Here are more details on each of those proposals.

Assistant prosecutor longevity pay

Under this current program (as enacted in 2001), assistant prosecutors receive $20 a month per year of service starting in their fifth year as a prosecutor (for an initial annual supplement of $960 in that fifth year) but are capped at a maximum of $5,000 (not reached until after their 20^th year of service). Under the proposal developed by TDCAA’s Compensation Committee and presented to the LBB by Jennifer Tharp, assistants would receive $100 a month per year of service starting in their third year of service ($2,400 in year three), with a cap of $10,000 reached after nine years of service. These increases are estimated to cost the state an additional $29+ million for the FY 2024–2025 biennium (in addition to the projected $9.45 million cost of the current program).

Salary parity and cross credit

The second and third proposals from TDCAA’s Compensation Committee are related to courthouse pay parity between judges and prosecutors and were presented to the LBB by Staley Heatly.

Elected felony prosecutors are seeking a third increase in compensation after 12 years of service that is comparable to the $8,500 in annual longevity pay a district judge receives at that stage. The biennial cost to the state of this additional salary tier for prosecutors would be roughly $824,500.

And finally, the Compensation Committee recommended that “cross-credit” be granted for prosecutors and judges when calculating years of service for salary purposes. Currently, judges receive credit for time served in various judicial roles when calculating their salary level, but time served as a district or county attorney does not count. Similarly, district attorneys and county attorneys do not receive credit for time served as an elected prosecutor in any office other than the one currently held, nor do they receive credit for time served as a judge. Under this third proposal, eligible judges and county and district attorneys would receive credit for time served in any of those various elected offices for the purpose of calculating their current salary. This would enable prosecutors and judges to switch roles without a financial penalty—something that is vital to ensuring good candidates and officeholders in areas of the state where lawyers are scarce. Such a change would cost the state roughly $707,000 for the FY 2024–2025 biennium.

Thanks to Jennifer and Staley for getting the ball rolling!

Other related funding requests

There were also exceptional item requests for pay raises from Jack Choate, executive director of the Special Prosecution Unit, and by the chairman of the state’s Judicial Compensation Commission—and the latter request was a big ’un. That commission is recommending that the current $140,000 benchmark salary for district court judges be increased by 22 percent over the next biennium. Of course, this impacts the pay and supplements of not just judges, but also any prosecutors who are tied to that benchmark salary. The resulting cost of this exceptional item is estimated to be $49+ million over the next biennium. Raising that base pay figure has always been a thorny issue at the capitol because legislators’ retirement benefits are tied to it, so we shall have to wait and see how that proposal fares again this session.

At other budget hearings, the Office of Court Administration (OCA) and various other courts and judicial branch entities are requesting 10 percent salary raises for court and agency staff (other than elected judges). That amount seems to be a pretty standard agency request heading into the next session, regardless of agency or branch of government. (Another example is the Office of Attorney General, which has requested an exceptional item of roughly $75 million for both general and targeted salary increases for its lawyers and other staff, plus an addition $15 or so million for its criminal investigation division employees.) The OCA also requested additional funds to upgrade various data and appellate case management systems, and the Texas Indigent Defense Commission (TIDC) requested an exceptional item of approximately $50 million to fund new regional public defender offices in rural regions of the state.

Going forward, LBB-sponsored hearings will continue into October, so check back next month for more updates on requests from agencies like DPS, TDCJ, and others.

Interim committee news

Among the legislative hearings from September that might be of interest to some of you are the following:

The House Committee on Public Health heard testimony on opioid abuse and the dangers of fentanyl.

The Senate Committee on Local Government reviewed issues surrounding so-called “taxpayer-funded lobbying,” but no new ground was plowed on this issue (which is sure to come up again next session).

The House Juvenile Justice & Family Issues Committee reviewed barriers to reporting domestic violence and obtaining protective orders, including expert testimony from Tarrant County ACDA Marvina Robinson, Dallas County ACDA Sharron Archie, and El Paso County ACA Aaron Setliff.

Upcoming hearings

Among those relevant interim charges officially posted for hearings in October so far are:

Monday, October 3
House Judiciary & Civil Jurisprudence + House Juvenile Justice & Family Issues (joint hearing)
10:00 a.m., Capitol Extension Room E1.030
Charge: Judicial caseloads along the Texas-Mexico border (invited testimony only)

Wednesday, October 12
House Judiciary & Civil Jurisprudence
9:00 a.m., Room E2.016
Charges: Guardianships, jury service eligibility (invited testimony only)

House Select Interim Committee on Criminal Justice Reform
1:00 p.m., Room E2.016
Charges: bail reform, drug crimes, civil asset forfeiture, jury instructions, sentencing guidelines (invited testimony only)

Thursday, October 13
House Select Interim Committee on Criminal Justice Reform
9:00 a.m., Room E2.016
Charges: policing reform, prosecutorial discretion, uses of detention and incarceration, transparency in policing/prosecution (including the grand jury process) (invited testimony only)

Key Personnel–Victim Services Board elections

Elections for the 2023 TDCAA Key Personnel–Victim Services Board will be held on Thursday, November 3, 2022, at 1:15 p.m. during our Key Personnel & Victim Assistance Coordinator (KP & VAC) Conference in San Antonio. Seats up for selection this cycle are the West (Regions 1 & 2) and North Central (Regions 3 & 7) representatives. (The TDCAA regional map is available HERE.) To be eligible, each candidate must have the permission of his or her elected prosecutor, attend the elections in-person at the conference, and have paid membership dues prior to the meeting. For more details on these elections, email [email protected].

Mock trial judges needed

South Texas College of Law’s Trial Advocacy Center is hosting a preliminary round of the national All-Star Bracket Challenge mock trial competition on the weekend of October 8–9, 2022, but judges are needed to preside over the criminal case that competitors will be handling. This regional round is being conducted remotely over Zoom and volunteer judges can claim three hours of CLE for their time. If interested, contact Director Brandon Draper at [email protected] for more details.

Scattershooting

Here are some stories of late that you might’ve missed:

• “Court rejects AG Ken Paxton’s bid to continue prosecuting election crimes” (Austin American-Statesman)
• “Texas AG’s office sends mixed signals about whether it can fine nonprofits that pay for out-of-state abortions” (Texas Tribune)
• “State agencies push for better worker pay as critical staffing crunch hits Texas government” (Texas Tribune)
• “Hemp was supposed to save Texas farmers during a drought. It hasn’t yet.” (Texas Tribune)
• “Satanic panic is making a comeback, fueled by QAnon believers and GOP influencers” (NBC News)
• “How vigilante ‘predator catchers’ are infiltrating the criminal justice system” (Washington Post)
• “Dysfunction in Texas AG’s office as Paxton seeks third term” (AP News)

Quotes of the Month

“Our Stephens opinion should not have surprised anyone. Since 1836, the district and county attorneys have represented the State in all criminal prosecutions in the trial courts; the Texas Attorney General (hereinafter sometimes “AG”) has never undertaken that duty. From the birth of Texas until the present day, the AG’s constitutional role in criminal prosecutions has always been limited to an advisory role or to giving assistance to the county or district attorney, and even then, only when requested.”

            —Court of Criminal Appeals Judge Michelle Slaughter, in her dissent (on other grounds) to that court’s refusal earlier this week to reconsider its original opinion in State v. Stephens confirming this long-standing interpretation of the state constitution.

“The power given to district and county attorneys includes the power not only to prosecute cases but also to decide which cases should not be prosecuted. When the district or county attorney chooses not to prosecute a case, they are permissibly exercising their prosecutorial discretion; it is their prerogative to file or not file charges. If the Attorney General files criminal charges when the prosecutor has specifically chosen not to, the Attorney General unduly interferes with—he usurps—the district or county attorneys’ exercise of their prosecutorial power.”

            —Court of Criminal Appeals Judge Scott Walker, in his concurrence to that court’s refusal to reconsider its prior opinion in State v. Stephens, rebutting claims in Judge Slaughter’s dissent that the state constitution might allow the attorney general to prosecute a case that a local prosecutor has declined to prosecute.

“It’s absolutely broken. It’s just broken. You don’t do it this way. I made the mistake of trusting them that they would come in and do a good job.”

            —Coryell County DA Dusty Boyd (R), after the attorney general’s office dismissed cases against multiple defendants in a high-profile human trafficking investigation in his jurisdiction.

“As for judges and DA’s [sic] who release violent criminals, and choose not to enforce Texas laws, we need to remove them from office. We cannot let Democrats turn Texas into California.”

            —Campaign tweet from Lt. Gov. Dan Patrick (R-Houston) posted earlier this week—and no, he’s probably not just referring to the upcoming November elections (but we’ll see!).

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Recent rains may have provided a good “be careful what you ask for” lesson for some, but we’ll still take what we can get after 51 days without measurable rain in Austin. Meanwhile, our “How hot is it?” challenge from last month’s update brought in some good ‘uns. A sampling:

“It’s hotter than a fresh-run rabbit in a forest fire.”
“It’s so hot, the prisoners refuse bail. They need the a/c.”
“It’s so hot, when I tell people to go to hell, they think it’s a vacation offer.”

That said, we’d be just fine with not having to start a “How wet is it?” contest for next month’s update.

Are you getting the right salary or supplement?

In 2019, the legislature adopted a longevity-based tier system to pay judges and elected felony prosecutors. The county attorney supplement is also now based on that tiered system. This system greatly complicates the work of our friends at the Judiciary Section of the Comptroller’s Office because they now have to keep track of the longevity of hundreds of elected officials. Despite their great work, mistakes can happen, so you may be getting too little in your pay or supplement or too much. For example, we have learned of at least one county attorney who has been getting too much state supplement and now is faced with paying it back. Ouch!

As many of you are in budget season, we suggest that NOW is the time for you to double-check your salary and supplement to be sure it has been calculated correctly. If you have any doubts and want to talk it through, contact [email protected].   

Dobbs and prosecutorial discretion

It’s a safe bet that every future legislative update for the next year (or more) is going to include references to policy changes being discussed in the wake of the Dobbs opinion overruling Roe v. Wade. The abortion issue—unlike any other policy issue we’ve seen in our association’s institutional memory—is creating unprecedented discussions about the nature, scope, and locus of criminal prosecution. It is also an issue that, for many policymakers, leads them to ignore (if not downright contradict) their previously-held views on the proper role and reach of criminal prosecution. Accordingly, we will do our best to keep you updated on the very serious conversations that are taking place at the state capitol which may directly affect your jurisdiction and authority as locally-elected county attorneys and district attorneys. (And it is not only Austin where these conversations will take place. This is a national issue, as demonstrated by the recent suspension from office of a Florida prosecutor by that state’s governor.)

For one example of what is coming down the pike, we will refer you to a blog post from earlier this month by the Texas Civil Justice League (TCJL), a well-respected player at the capitol when it comes to civil legal issues. In a blog entry entitled “Proposed ‘Model’ Law Incorporates and Expands SB 8 Cause of Action,” the author discusses some “model laws” being proposed around the nation to expand the scope of civil liability for anyone connected with an elective abortion, in part to wire around local prosecutors who decline to pursue criminal prosecutions for those acts in states that have banned that procedure. These model laws advocate creating another layer of prosecutorial authority—whether it be a state attorney general, newly created multi-county “super DAs,” or new extra-territorial jurisdiction of existing prosecutors—that have previously been considered in the policy areas of election fraud and (to a lesser extent) human trafficking prosecutions. As the post’s author correctly notes, “None of this is the way the criminal justice system is supposed to work”—but that doesn’t mean our legislature isn’t seriously considering it when it comes to issues like abortion and election fraud that, for some policymakers, trump all other substantive and procedural considerations about criminal prosecutions.

So, if you want a glimpse of what your legislators will be asking you about this fall, read that blog post and then peruse the model law that it references, because those proposals (or something similar) are what some of your local state senators and representatives will be debating as soon as next month during interim hearings. (We also have more on this topic in “Quotes of the Month,” below.)

Party platforms

Following up on last month’s excerpts from the Texas GOP platform, the state Democratic party’s platform was approved earlier this month and can be viewed HERE. The policy planks are not numbered, but items of note under the following subject matter areas include:

• Democracy / Voting Rights and Fair Elections: “Clarify legal standards around voter protection and voter assistance to reduce fears of prosecution among county election officials and voter protection volunteers and advocates”
• Democracy / Campaign Finance Reform: “Require candidates and elected officials throughout the state, including local or county officials, to file an annual Personal Financial Statement and disclose their donors’ employment”
• Democracy / Ethics and Transparency in Government: “Establish an office of an independent prosecutor to investigate and prosecute any state-wide elected or appointed official who is accused of unlawful conduct”
• Reducing Gun Violence (lists 11 specific gun-control proposals, such as “extreme risk protective orders,” a repeal of open carry and campus carry laws, and more)
• Criminal Justice Reform / Transforming Policing: “Strengthen independent oversight of all investigations into police conduct by requiring independent prosecutors to investigate questionable officer-involved actions”
• Criminal Justice Reform / Transforming Policing: “Ensure civil asset forfeiture only upon a criminal conviction”
• Criminal Justice Reform / Reforming Court Procedures: “Improve both the quality and integrity of the Texas criminal justice systems by criminalizing intentional prosecutorial misconduct”
• Criminal Justice Reform / Reforming Juvenile Justice: “Raise the age of criminal responsibility from 17 to 18 years of age and end the prosecution of juveniles in adult courts”
• Criminal Justice Reform / Ending “Tough on Crime” Sentencing: “Reduce the number of people entering jails and prisons by eliminating incarceration as a penalty for low-level, non-violent offenses”
• Criminal Justice Reform / Legalizing Cannabis: (Self-explanatory, with this addition …) “Until legalization, eliminate arrest, promote pretrial diversion, and transition to civil fines for cannabis possession offenses in Texas”
• Ending Sexual & Family Violence / Services and Funding: “Expand provider training for all law enforcement, justice system, healthcare, mental health, education, disability services, and social services personnel, including training on treating marginalized populations, using trauma informed treatments, and practicing evidence-based therapies, and mandate periodic completion of updated trainings to meet continuing education licensure requirements”
• Ending Sexual & Family Violence / Accountability: “Require that every county and district attorney’s office in Texas, upon the victim’s qualification and request, file a protective order on behalf of victims and represent the victims before the court”
• Ending Sexual & Family Violence / Accountability: “Place every defendant charged with a family violence crime on either a probation-deferred adjudication or deferred prosecution program and order them to complete a targeted intervention program for perpetrators”

Again, for the full list, access the document at the link above.

Interim committee news

There were more than 20 interim committee hearings this past month. Among those that might be of interest to some of you are the following:

The House Judiciary & Civil Jurisprudence Committee heard invited testimony on appellate court caseloads and discussed potential solutions, including two controversial ideas from 2021: SB 11 (to re-organize the entire appellate system), which failed to advance very far, and SB 1529 (to create a new statewide intermediate appellate court for certain civil cases), which passed the Senate on a party-line vote but ran out of time in the House. The latter idea may get more attention next session, both because of the progress it made in 2021 and because of a new focus in the post-Roe era on civil and administrative enforcements of abortion-related laws, which many legislators do not want to go through Travis County or the 3^rd Court of Appeals. For a refresher on these ideas, see our legislative updates from March 30 and April 16, 2021.

The House Juvenile Justice & Family Issues Committee reviewed the current mess that is the Texas Juvenile Justice Department and—shockingly!—no one had any easy solutions to the agency’s woes that didn’t involve massive infusions of state funding.

The Senate Border Security Committee went to the border to hear about the community impact of Operation Lone Star and heard testimony from several local officials, including county attorneys.

The House Corrections Committee heard testimony from the Special Prosecution Unit regarding civil commitments and crimes in TDCJ.

The House Committee on Pensions, Investments, and Financial Services reviewed the actuarial soundness of ERS (state officials and employees) and JRS2 (judges), the latter of which has unfunded liabilities due to the meager pay-in from its beneficiaries and the legislature’s failure to bump contributions when it raised judicial salaries in 2019.

The House Select Interim Committee on Criminal Justice Reform met to discuss juvenile justice issues and recidivism problems, but not much new came of that review.

Upcoming hearings

Interim charges currently posted for hearings in September include (click hyperlink for complete notice):

Thursday, September 8

House Transportation
1:00 p.m., UTGRV Brownsville Campus (see link for further details)
Charges: Reducing Texas road fatalities; truck transportation/supply chain problems; and seaport issues (invited testimony only)

Tuesday, September 13

House Public Health
11:00 a.m., Capitol Extension Room E2.010
Charges: fentanyl-related overdoses and deaths; telemedicine issues; more.
(invited and public testimony)

TDCAA Annual Conference

Registration for our 2022 Annual Criminal & Civil Law Conference in Corpus Christi is still open. If you are looking for a deeper dive into today’s pressing advocacy issues, help with managing your courtroom, or just a chance to catch your breath and broaden your knowledge, this program is for you. We’ve already registered more than 925 people for this huge September conference, but if you and your staff aren’t on that list, click here to see additional details and/or register.

Scattershooting

Here are some stories of late that you might’ve missed:

• “Ken Paxton’s legal guidance on public access to ballots contradicts advice his office gave out just five days earlier” (Texas Tribune)
• “Texas can’t ban 18- to 20-year-olds from carrying handguns, US judge says” (Austin American-Statesman)
• “Gov. Greg Abbott appoints officer indicted for misconduct during George Floyd protests to police regulatory agency” (Texas Tribune)
• “Lawmakers decry collapsing Texas juvenile prison system, ask Abbott to call special session” (Texas Tribune)
• “Most Texans support legalizing pot for recreational or medical use, new poll finds” (Dallas Morning News)
• “How Two Mexican Drug Cartels Came to Dominate America’s Fentanyl Supply” (Wall Street Journal)
• “Why are border smugglers trafficking bologna?” (Texas Monthly)
• “Don’t Abort Local Prosecutors’ Discretion” (Washington Monthly) (worth reading despite the cringe-worthy headline)

Quotes of the Month

“If it wasn’t clear already, it’s absolutely clear now that there is no going back to ‘normal.’ There’s no going back to five days a week in the office. You have a real risk if you’re demanding that people come back, you’re going to lose valuable people.”
            —Joanne Lipman, author and college lecturer, discussing the nature of the post-COVID workplace on CNBC’s Squawk Box show. (The short video interview at this Twitter link might resonate with some of you having problems hiring and retaining staff!)

“It is unbelievable that the attorney general appears to be giving conflicting advice to election officials regarding something as serious as the security of ballots that have been cast in the election. Nothing relevant has changed in the 30 years the office’s opinion has been in effect—except that the current incumbent is now a leader of the ‘Stop the Steal’ movement.”
            —James Slattery, senior staff attorney at the Texas Civil Rights Project, commenting upon conflicting statements from OAG on the public availability of ballots.

“In some areas we were literally competing with Buc-ee’s, and if [an applicant has] a choice to work at Buc-ee’s or work for TJJD with high-risk mandatory overtime ….”
            —Shandra Carter, Interim Executive Director of the Texas Juvenile Justice Department (TJJD), testifying before an interim house committee earlier this month about the agency’s severe staffing shortage and the problems that causes.

“I need the Texas Legislature, and I’ll need the governor’s help to come back and pass legislation to address this to continue that fight.”
            —Texas Attorney General Ken Paxton (R-McKinney), announcing to the crowd at the national Conservative Political Action Conference (CPAC) in Dallas the first week of this month that he intends to seek a legislative remedy this session to the CCA’s opinion in Stephens v. State that struck down as unconstitutional his authority to independently prosecute election fraud crimes.

“One thing that we’ve unfortunately seen is, there are some district attorneys in some parts of the State of Texas who do not want to enforce the [election] laws. One thing that we can easily do by statute this next session is, we can create a special prosecutor that falls under the component of the constitution that would allow that prosecutor to constitutionally go out and prosecute those cases.”
            —Governor Greg Abbott (R-Houston), in response to a podcast host discussing the Stephens opinion and asking,“How would you plan on nullifying this absurd ruling from the Criminal Court of Appeals [sic]?” (The full five-minute discussion from August 11, 2022, begins at the 24:45 mark of this podcast; you can listen to it yourself to hear what other ideas policymakers are discussing behind closed doors right now to circumvent local prosecutors.)

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“It’s so hot, the cows are giving evaporated milk.”
“It’s so hot, I saw a dog chasing a cat and they were both walking.”
“It’s so hot, the birds are using oven mitts to pull worms out of the ground.”
“It’s so hot, the trees are whistling for the dogs.”

What’s your favorite “Texas heat” expression? Send it our way and maybe we’ll run it next month if we still haven’t had any relief from this accursed weather.

Dobbs update

The U.S. Supreme Court mandate in Dobbs was issued on Tuesday, July 26. The state attorney general’s office has updated its suggested guidance following the mandate’s issuance, noting that the new criminal, civil, and administrative sanctions applicable to certain elective abortions under HB 1280, aka Texas’s “trigger law,” will take effect on August 25, 2022. For those interested, that full advisory is available HERE.

We have also amended our previous update on Dobbs and related issues to reflect this new effective date. To read that updated version of “Abortion-related crimes after Dobbs,” click the link.

99 problems but the budget ain’t one

Your pocketbook might be hurting right now, but the State of Texas is flush. A combination of record high sales tax receipts (some of which can be attributed to inflated consumer prices), massive increases in oil and gas tax revenues, continued infusions of federal pandemic-related dollars, and other increased revenue sources is expected to result in a surplus of nearly $40 billion for the next legislative session. Even after the Comptroller skims off a third of that bounty for the state’s Rainy Day Fund (as mandated by state law), budget writers should have $25–$30 billion (with a “b”) more to appropriate for various purposes than they had last session.

That’s all fine and dandy for state agencies, of course, but those of you with an eye toward convincing the Lege to divert some of that abundance to local prosecution must remember that your business is largely a local concern, even if most of your cases proceed “in the name and by the authority of the State of Texas.” However, there are some aspects of your job that the State has traditionally helped with, and the current prosecutor recruitment and retention crisis could certainly be eased with more of that kind of state help. To that end, TDCAA President Jack Roady (Galveston County CDA) appointed a committee chaired by 46^th Judicial DA Staley Heatly to research and recommend ways in which the Lege might help shore up the compensation issues that adversely impact both elected and assistant prosecutors and other staff. Look for more updates in the coming months discussing the fruits of that committee’s work, along with details on how the general TDCAA membership can be most effective in strengthening prosecution in our great state.

LBB projections

As part of their duties, the good people at the Legislative Budget Board (LBB) try to divine the state’s future incarceration needs to help budget writers plan accordingly. That process involves both quantitative (objective number-crunching) and qualitative (subjective context) research, the latter of which some members of our Legislative Committee recently helped with. The results can be found in their latest report, Adult and Juvenile Correctional Population Projections (FY 2022–27). Interesting facts from that report include the following:

• Adult arrests in Texas decreased 33 percent from 2017 to 2021
• TDCJ admissions declined 35 percent from 2017 to 2021 (despite an increase in 2021)
• Juvenile arrests decreased 54 percent from 2017 to 2021
• TJJD admissions declined 33 percent from 2017 to 2021 (despite an increase in 2021)
• The average length of stay for someone released from TDCJ in 2021 was 986 days (2.7 years)
• The average length of supervision for someone released from parole supervision in 2021 was 1,081 days (2.9 years)
• The average length of supervision for someone released from community supervision in 2021 was 1,462 days (4 years)

Peering into their crystal ball, the LBB prognosticators think TDCJ prison and parole and probation numbers will all increase over the next five years as courts work through their COVID-induced backlogs, but they predict misdemeanor probation caseloads will continue to decrease. However, as with the Comptroller’s revenue projections discussed above, the LBB will update these incarceration projections in January 2023, and it will once again be seeking input from judges, defense lawyers, and prosecutors for the qualitative context needed to make accurate projections. If offered an opportunity to participate in that process, please consider doing so.

Party platforms

We’re old enough to remember when no one at the capitol knew or cared what was in either political party’s platform because their planks rarely turned into actual policy. But that has changed over the past decade or so, and it now behooves everyone to follow such developments.

The state Republican party’s platform was approved earlier this month and can be viewed HERE. Items of note include:

• Plank 22: “Dereliction of Duty: The failure by a public official to discharge any duty shall be a violation of the terms of his or her oath of office, which shall constitute a crime, and upon conviction, this crime shall be punishable by a fine or imprisonment, depending on the nature of the offense. …”
• Plank 35: “Unfunded and Under-Funded Mandates” (supporting full state funding of indigent criminal defense, jail inmate healthcare, indigent burials and autopsies, and more)
• Plank 40: “Practice of Law” (opposing mandatory State Bar membership, limiting standing for the filing of grievances, and supporting sanctions for those who misuse the Bar’s legal disciplinary process)
• Plank 79: “Gambling” (they agin’ it)
• Plank 159: “Addiction” (opposing legalization or decriminalization of drugs, including marijuana per Plank 227)
• Plank 173: “Civil Asset Forfeiture” (supporting its abolishment and requiring a criminal conviction before forfeiture)
• Plank 178: “Raise the Age” (supporting an increase in the age of criminal responsibility from 17 to 18 years of age)
• Plank 183: “Court Accountability” (supporting jury nullification instructions; opposing policies by district attorneys “that systematically decline to prosecute crimes”)
• Plank 187: “Human Trafficking Jurisdiction” (in favor of granting OAG “full concurrent jurisdiction over multi-jurisdictional [human trafficking] cases”)
• Plank 188: “Rule of Law Enforcement: We support rule of law and enforcement of laws, which maintain an ordered republic. We call for independent prosecutorial authority to prosecute crimes that maintain order (such as sedition, riot, official oppression, election integrity, etc.) to be delegated to a statewide officer such as the Attorney General. We oppose the December 2021 opinion of the Court of Criminal Appeals in State v. Stephens, which was judicial activism, and encourage the Court to reconsider this ill-advised opinion. We call on the Legislature to ensure that election crimes will be promptly prosecuted, even in counties with progressive district attorneys.”
• Plank 196: “Political Policing: We believe that laws should be enforced uniformly, that punishment should meet the crime, and that law enforcement should never be used to target individuals for political purposes. We oppose the targeting of police officers by progressive district attorneys. We support automatic and prompt expunction of law enforcement officials’ records who are found not guilty in a court of law regarding job-related actions.”
• Plank 226: “Prosecution of Election Fraud: We urge the passage of a constitutional amendment that gives the Texas Attorney General concurrent jurisdiction to prosecute election fraud along with the county District Attorneys.”
• Plank 232: “Tax-Funded Lobbying: We oppose using tax dollars to hire lobbyists or paying tax dollars to associations that lobby the Legislature.”

For the full list, you can access the document at the link above.

As for the state Democratic party, its convention ended a few weeks ago without any platform being issued, but one is supposed to be in the works, so we will share anything interesting or relevant from it (if it is ever completed).

Interim committee news

The House Human Services Committee reviewed the current status of the state hospital system and … lather, rinse, repeat. (For a more urgent verdict on the current state of that system, read the Dallas Morning News story under “Scattershooting.”)

The Senate Finance Committee examined the effectiveness of Operation Lone Star—including the role the Border Prosecution Unit has played to date—and then reviewed the effectiveness of the bail bond reform legislation (SB 6) passed during last year’s second special session. There was bipartisan support for strengthening the public safety aspects of the new law. Thanks to Tonya Ahlschwede (452nd Judicial DA), Kim Ogg (Harris County DA), David Mitcham (Harris County First Asst. DA), and Jennifer Tharp (Comal County CDA) for providing helpful testimony to the committee on those issues.

The House Appropriations Committee reviewed the health of Crime Victims Compensation funding and related funds to support sexual assault survivors, with pledges from some on the committee to continue to supplement revenue gaps with general revenue funding where possible.

The House Public Education Committee met to discuss various issues that included truancy and attendance accountability in the wake of the Uvalde school massacre. Among the proposals put forth by witnesses was one from the JP and Constables Association to remove the requirement that only prosecutors can initiate civil truancy actions.

Upcoming hearings

Interim charges currently posted for hearings in August include (click link for complete notice):

Monday, August 8
House Homeland Security & Public Safety and House Youth Health & Safety (Select Committee) (joint hearing)
9:00 a.m., Room E1.030
Charges #4 (role of online communications in mass violence scenarios) and #5 (youth mental health services)
(invited testimony only)

Tuesday, August 9
House Juvenile Justice & Family Issues
10:00 a.m., E2.014
Charges #1 (TJJD oversight), #4 (juvenile probation and incarceration resource allocation), and #5 (juvenile facility workforce issues at the state and local level)
(invited and public testimony)

Wednesday, August 10
Senate Border Security
8:30 a.m., Eagle Pass, Texas (click link for more details)
Charge #2: Study the community impact of Operation Lone Star
(invited and public testimony)

Tuesday, August 16
House Pensions, Investments & Financial Services
11:00 a.m., E2.030
Charges #2 (actuarial soundness of ERS), #4 (actuarial soundness of LECOS and JRS Plan 2), others
(invited and public testimony)

TDCAA Annual Conference

Registration for September’s Annual Criminal & Civil Law Conference in Corpus Christi is now open. From jail standards to the ethics of plea-bargaining, this year’s event has something for everyone. If you are looking for a deeper dive into today’s pressing advocacy issues, help with managing your courtroom, or just a chance to catch your breath, this event is for you. We’ve already registered more than 600 people, so if you aren’t one of them, don’t get left behind! Click here to register and see additional details.

Scattershooting

Here are some interesting stories that you might’ve missed:

• “Love Field shooter ‘perfect example’ of mental health treatment crisis” (Dallas Morning News)
• “How San Francisco became a failed city (and how it could recover)” (The Atlantic)
• “The Waco Biker Shootout Left Nine Dead. Why Was No One Convicted? (New York Times Magazine)

Quotes of the Month

“I round it down to $40 billion.”
            —Texas Comptroller Glenn Hegar (R-Katy), announcing his agency’s updated revenue estimate for next session’s budget writers.

“We have very few rules when it comes to campaign finance in Texas, and the few that we do have are not enforced, clearly. What’s the point of even having the rules?”
            —Anthony Gutierrez, executive director of Common Cause Texas, as quoted in a Houston Chronicle story about the attorney general’s refusal to enforce more than $700,000 in fines assessed against political candidates by the Texas Ethics Commission.

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