God bless the good people of Uvalde.

Primary run-off results

There were only two November ballot spots up for grabs in this week’s run-offs. In Panola County, incumbent CDA Danny Buck Davidson (R) fended off a challenge from local criminal defense lawyer Tim Cariker; there is no general election opponent, so Davidson will retain his office for another four years. And in Tarrant County, the general election race to succeed retiring incumbent CDA Sharen Wilson will be between former assistant Tiffany Burks (D) and county court judge Phil Sorrells (R), who defeated State Rep. Matt Krause (R) in a run-off.

In November, there will be seven criminal district attorney races on the general election ballot (Bexar, Dallas, Galveston, Hays, Hidalgo, McLennan, and Tarrant). For a full list of the candidates in those races, as well as the other uncontested prosecutor seats on the ballot this fall, please click HERE.

Bar ethics rules

The State Bar’s Committee on Disciplinary Rules & Referenda meets again on Wednesday, June 1, at 10:00 a.m. The committee’s sole action item is discussion and possible action on proposed Rule 3.09 (special responsibilities of a prosecutor), which we have been following for you these past few months. The meeting will be held by Zoom—a link for which is available in the agenda now available HERE—so if you’re interested, feel free to tune in and watch. You may also still be able to submit input ahead of that meeting through the committee’s participation webpage.

Judicial compensation

The Judicial Compensation Commission (JCC: https://www.txcourts.gov/jcc/) met by Zoom on May 12 to start its biennial process of suggesting raises for the judiciary. On the heels of the commission’s success two sessions ago in convincing the legislature to adopt a graduated salary structure for the judges, its strategy this session is a simple across-the-board raise of 10–20 percent. While it is true that the benchmark salary ($140,000) hasn’t been increased since 2013 and that inflation is now rampant, color us skeptical that the next legislature will be eager to double-down on its predecessor’s generous—if unequal—raises given back in 2019.

That said, the JCC members did hear about the “parity gap” that may deter an experienced DA or judge from running for the opposite position. Furthermore, a new commission member noted that one of the first calls he received upon being appointed to the JCC was from a nearby prosecutor who congratulated him on the new gig and then immediately asked what he was going to do to remedy the potential salary disparity between a DA and a statutory county court judge who run for the same district court bench. (To whomever that was: Good job! LOL) It’s too early to say at this point what (if anything) the JCC will recommend on that front, but fixing that issue certainly seems to us like an easier lift than a massive across-the-board raise. Things are still early, though.

For those interested in more information on this front, you can access the following resources online:

• Archived video of the JCC meeting (90 minutes long)
• PowerPoint on the history of judicial compensation presented at that meeting
• PDF report on judicial salaries, demographics, and turnover

The JCC intends to hold a public hearing later this summer at a yet-to-be-determined date. TDCAA’s current president, Galveston CDA Jack Roady, has already appointed a 12-member Compensation Committee to work on these issues during this interim and the following legislative session, so they will be ready to present testimony at that hearing when it happens.

Judicial branch recap for 2021

The Office of Court Administration (OCA) released its 2021 Annual Statistical Report a few weeks ago. We tweeted a popular thread of charts and graphs from the report earlier this month (start HERE if you are curious), but for those who prefer prose to pictures, here are some highlights:

• Misdemeanor criminal filings continue to decrease, to the point that misdemeanor filings in 2021 were the lowest since 1985.
• The only misdemeanor categories to increase in filings over the past five years were assault and DWI-1st offenses.
• The only felony categories to increase in filings during the pandemic years of 2022–21 were capital murder, aggravated assault/attempted murder, family violence felonies, and auto theft felonies.
• Drug- and alcohol-related offenses constitute one-third of both misdemeanor and felony filings.
• Traffic and parking cases were filed at the lowest numbers since 1980.
• After peaking in 2007, the number of juvenile cases has fallen to the lowest level since 1993.
• CPS cases fell for the third year in a row to the lowest level since 2014.
• District courts’ pending caseload increased by five percent in 2021, while county courts’ pending caseloads held steady.
• State spending on the judicial branch accounts for less than 0.5 percent of the annual state budget.

For a deeper dive—including specific court-level data—read the full report at the link above. And kudos to OCA’s new administrative director, Megan LaVoie, and her entire staff for putting together such an informative report!

Committee news

Now that the primaries are over, interim committee work is picking up speed. Here are some highlights from the past month.

The House Licensing & Administrative Procedures Committee considered the problems that illicit massage businesses present for the reduction of human trafficking (but anyone who read our cover story from the March–April 2022 issue of The Texas Prosecutor would already be in the know about that topic) … the Senate State Affairs Committee also took testimony on human trafficking from a panel of state agency witnesses, one of whom noted that statewide, more than 1,200 arrests were made for the new state jail felony offense of solicitation of prostitution in the first seven months of its existence (eff. 9/1/21) … and the House Judiciary & Civil Jurisprudence Committee heard from Texas Supreme Court Chief Justice Nathan Hecht, whose wide-ranging testimony included a discussion of the security of the court’s draft opinions in the wake of the leak of a certain SCOTUS draft opinion. The gist of his testimony was that the justices have been telling their law clerks that any similar leak in Texas would violate PC §39.06 (Misuse of Official Information), but we are not so sure—that crime applies only if there is an economic benefit or harm involved, and to our knowledge, none has been established in the SCOTUS case. Don’t be surprised if that “loophole” generates legislation next session, although legislators may discover that there are good reasons why the current law is so limited.

We have one other note to pass along, and it comes from an unlikely source: the Senate Water, Agriculture, & Rural Affairs Committee. That committee heard testimony on the challenges of cattle theft, but a portion of that discussion including talk of “liberal DAs who don’t want to enforce any laws” (our paraphrase) and what is to be done about it. (This did not seem to be in relation to any specific cattle-related crimes, but it’s the interim, so they can wander where they please at this stage.) Specifically, the committee discussed a fix to the habeas law that gives defendants the ability to file writs in other counties—something currently being litigated before the CCA in In re State ex rel. Brent Smith (WR-93,354-02), in which the Kinney County Attorney is challenging the authority of a Travis County district court to hear writs arising from Operation Lone Star’s criminal trespass cases pending in Kinney County. You can expect to see legislation on that next session. Note also that a Texas & Southwestern Cattle Raisers Association special ranger later testified that the Lege should increase penalties for theft of agricultural pharmaceuticals (because, why not?), and he further suggested a law to mandate training for all cops, prosecutors, and judges on the impact of cattle-related crimes on producers and dealers. So, it looks like some of you might be spending time in the Senate Ag committee next session if you support or oppose any of those ideas!

Upcoming hearings

Interim charges currently posted for hearings in June include (click on the link for the full notice):

Tuesday, June 7

House Licensing & Administrative Procedures
10:00 a.m., Room E2.012
Charge #2: Strengthen and enforce laws to reduce illegal gaming and game rooms, including 8-liners; explore how the comptroller or other state agencies can assist local law enforcement agencies with those investigations. (Invited testimony only, to include Potter County CA Scott Brumley.)

Tuesday, June 28

Senate Finance
10:00 a.m., Room E1.036
Charge #1  (use of federal COVID-19 relief funds) and Charge #12 (state forensic and civil mental health services) (Invited and public testimony.)

There are bound to be more hearings to review issues surrounding the recent school massacre in Uvalde, but none of those have been posted yet.

TDCAA training update

Registration is open for our July Prosecutor Trial Skills Course. If you are early in your prosecution career—or simply looking for a post-pandemic refresher—this course is for you, but attendance is limited to the first 170 who register. We are already two-thirds of the way to that maximum, so don’t delay! To register or access more information, click HERE.

Scattershooting

Here are a few interesting stories from this past month that you might’ve missed:

• “Most Texans support legalizing pot, but Texas Gov. Greg Abbott says no” (Dallas Morning News)
• “Long-planned changes to Texas foster care system have ‘sputtered,’ senators say” (Dallas Morning News)
• “The FBI’s Next Set of Crime Data Is Going to Be a Big Mess” (The Atlantic)
• “Trump’s criminal justice reform bill becomes persona non grata among GOPers” (Politico)

Quotes of the Month

“What’s now clear, two years after George Floyd’s murder, is that the support for criminal-justice reform was a mile wide and an inch deep.”
            —David A. Graham, reporter for The Atlantic, in a tweet sharing his recent article, “How Criminal-Justice Reform Fell Apart.”

“[It’s] the digital equivalent of going down the street to a strip club filled with 15-year-olds.”
          —Leah Plunkett, an assistant dean at Harvard Law School and faculty associate at Harvard’s Berkman Klein Center for Internet & Society, quoted in a Forbes article about children who are offered money by adults for sexualized behavior during TikTok livestreams.

“It’s got to be very discouraging to people who are not immersed in politics, who are just looking for someone who’s making sense and talking about key issues in their lives … and they find candidates swinging from the chandeliers on either fringe of the party spectrum.”
            —Cal Jillson, political scientist at SMU, in an article about the impact of redistricting on the latest legislative and congressional elections.

“I really don’t care as long as he’s fighting the fight.”
            —Chris Byrd, member of the State Republican Executive Committee, when asked at a campaign event about the various allegations of personal, legal, and ethical malfeasance that have plagued incumbent AG Ken Paxton’s time in office. [Paxton won his primary run-off handily this week.]

“I’m just really sad. I don’t understand why people think this can’t happen to them.”
            —John Barnes, a former Santa Fe ISD school resource officer who was wounded in that 2018 school shooting, when asked what went through his mind when he heard about this week’s Uvalde school massacre.

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If “April showers bring May flowers,” what do April droughts bring?!?

Committee news

Now that the primaries are over* (*offer not valid for those in run-off elections), interim legislative committee hearings have started to study the issues assigned by their leadership. Perhaps the most noteworthy hearing this past month was a meeting of the House Interim Study Committee on Criminal Justice Reform, which summoned Cameron County DA Luis Saenz to appear before them (remotely) and answer questions relating to the committee’s charge to examine “criminal procedure and due process from initial detention through appeal, including … use of prosecutorial discretion.” In reality, though, that was just the excuse to bring Mr. Saenz before the committee to answer questions about the then-pending execution of Melissa Lucio, who had been convicted and sentenced to death in Cameron County (by a prior district attorney) for the 2007 killing of her 2-year-old daughter, Mariah Alvarez. Such an event—an interim hearing called for the purpose of allowing committee members to grill a prosecutor over a pending case—is unprecedented as far as we know (and we’ve been around here a long time). Most of the media coverage of that hearing (and the case in general) has been disappointingly superficial, but for a good summary of what actually happened, we’d refer you to this article by a local news service if you want a fuller picture of what occurred at the hearing.

The execution date for Ms. Lucio was eventually stayed earlier this week by the Court of Criminal Appeals—as DA Saenz told the committee would likely happen—to allow the trial court to take up several last-minute filings by the defense. As a result, it will be many months (or years?) before Ms. Lucio faces another execution date. For our purposes, though, it will be interesting to see whether such unprecedented legislative scrutiny of a prosecutor’s handling of a pending court case becomes more common as political and social media advocacy increasingly leads to a blurring of lines between advocates’ desired ends and the means considered appropriate to achieve them.

In other committee news … the House Criminal Jurisprudence Committee reviewed appointment of counsel issues relating to Operation Lone Star along the border … and the House Transportation Committee raked TxDMV officials over the proverbial coals once again for various law enforcement problems resulting from the agency’s perceived lax enforcement of laws and rules governing temporary paper tags.

Upcoming hearings

Interim charges currently posted for hearings in May include (click on the link for the full notice):

Tuesday, May 3

Senate Transportation
9:00 a.m., Room E1.016
Charges on reducing and preventing automobile crashes, driver’s license services, and alternatively-fueled vehicles (invited testimony only)

House Homeland Security & Public Safety
10:00 a.m., Room E2.028
Charges on law enforcement hiring and training, border security, officer safety, incident crime reporting, and severe weather response and recovery (invited testimony only)

Senate Special Committee on Child Protective Services
10:00 a.m., Senate Chamber
(Invited testimony only)

Wednesday, May 4

House Judiciary & Civil Jurisprudence
9:00 a.m., Room E2.010
Charge #1: Monitor agencies and programs under the committee’s jurisdiction and oversee the implementation of relevant legislation passed last session (invited witnesses only)

Monday, May 16

Senate Special Committee on Child Protective Services
10:00 a.m., Senate Chamber
(Invited testimony only)

As we mentioned last month, an emerging trend among both House and Senate committees is to limit their interim hearings only to invited witnesses and demote public comment to the electronic portal brought online during the COVID-19 pandemic (if any is allowed at all). Interim committee charges have long been considered by some capitol observers as more of a launch pad for pre-determined legislation than any true “study” of an issue; limiting public input will only contribute to that perception. However, for those of you invited to participate in an interim hearing (and those of you who follow along online), this new trend will at least make them shorter now, so count your blessings!

TDCAA training update

Registration is open for the July version of our Prosecutor Trial Skills Course. If you are early in your prosecution career—or simply looking for a post-pandemic refresher—this course is for you. To manage demand and accommodate room size, attendance is limited to the first 170 who register. We are already two-thirds of the way to that maximum, so don’t delay! To register or access more information, click HERE.

If you are a more seasoned prosecutor looking to hone your skills, TDCAA is also now accepting applications for both our Advanced Appellate Advocacy and Advanced Trial Advocacy Courses. Attendance is limited and applications must be received by the posted deadline for each course. For all the details, click on those seminar links above or visit our general training webpage HERE.

TDCAA award nominations

In these times when employee retention can be a challenge, recognizing the good work being done in prosecutors’ offices is an inexpensive yet effective way to show that we value the people who work in and around our communities. To that end, TDCAA is accepting nominations over the next three weeks for potential recipients of our association’s Oscar Sherell Awards and the Suzanne McDaniel Award. For more details about how to nominate a worthy person for these awards that recognize outstanding service to the profession of prosecution, click on the link for each award. Nominations are due Friday, May 20, 2022, so don’t delay!

Scattershooting

There were several really interesting stories related to prosecution or prosecutors this past month. Here are a few that you might’ve missed:

• “Prosecutors wanted: District attorneys struggle to recruit and retain lawyers” (Reuters)
• “If Roe v. Wade is overturned, Texas district attorney offices would become a new battleground” (Texas Tribune)
• “How a white cop murdering a 15-year-old black boy changed a Dallas County town” (Dallas Morning News)
• “Crime Stoppers is using cash once spent on anonymous tip rewards for lavish salaries, travel costs” (Houston Chronicle)
• “A rural prosecutor pledged reform. Critics say he delivered disaster.” (Washington Post)
• “Days from Melissa Lucio execution, prosecutors chart two different paths regarding death penalty” (Brownsville Herald)

Quotes of the Month

“We’re seeing a prosecutor shortage throughout the country; it’s not limited to large jurisdictions versus small jurisdictions.”
            —Nelson Bunn, executive director of the National District Attorneys Association, as quoted in a story about prosecutors’ struggle to hire and retain staff in today’ post-pandemic economy.

“In the past, people [would] curse one another, throw up the finger, and keep moving. Now, instead of throwing up the finger, they’re pulling out the gun and shooting.”
            —Houston Mayor Sylvester Turner, on the post-pandemic increase in road-rage shootings in that town. At least 33 people were killed in traffic-related shootings in Texas last year, almost twice as many as in 2019.

“It’ll pass because everyone wants their marijuana.”
            —Ken Casady, with Austin Police Association labor union, giving his opinion on why there has been no organized opposition to a local ballot proposition that would prohibit Austin police officers from arresting or issuing citations for misdemeanor marijuana possession.

“The score ended up being State of Texas six, Republic of Texas one. We won that ballgame.”
            —Joe Rowe, who was shot and briefly taken hostage by Republic of Texas separatists 25 years ago before the Texas Rangers ended the West Texas stand-off. For more salty quotes like that, read the entire article in The New Yorker: “Surviving the Standoff with the Republic of Texas.”

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The action is picking up in Austin, so we will supplement our normal monthly schedule accordingly.

State Bar disciplinary rule discussion

On April 6, the State Bar’s Committee on Disciplinary Rules and Referenda (CDRR) held an online hearing on the newly-proposed ethics rule that would expand current and former prosecutors’ duties under Rule 3.09 (Special Responsibilities of a Prosecutor) to investigate and remedy certain allegations of wrongful convictions. This was the first chance for prosecutors to publicly address the committee (not counting three previous letters submitted by Potter CA Scott Brumley, none of which were publicly acknowledged or discussed by CDRR members before now).

During the committee’s public hearing, nine different prosecutors (listed below*) testified concerning the proposal. While the prosecutor witnesses generally did not object to an additional disclosure requirement if they knew exactly to whom any post-conviction exculpatory or mitigating information must be disclosed, many believed the proposed rule’s new duty to investigate and remedy a potential wrongful conviction would be impractical for their offices and would create problems with conflicts of interest and prosecutorial immunity. In addition, the prosecutors opposed the “cradle-to-grave” proposal requiring former prosecutors to continue to abide by prosecutors’ ethical, constitutional, and statutory duties relating to exculpatory and mitigating evidence after they were no longer serving as prosecutors.

(*Mike Jimerson, Rusk C&DA; Jack Roady, Galveston CDA & TDCAA President; Scott Brumley, Potter CA; Brian Middleton, Fort Bend County DA; Kim Ogg, Harris DA; Lee Hon, Polk CDA; Philip Mack Furlow, Dawson, Gaines, Garza, & Lynn Counties DA; Doug Norman, Nueces ADA; Erik Kalenak, Midland ADA; and Tillman Roots, Comal ACDA. Thank you to those who provided live testimony and everyone else who participated by submitting written comments to help better educate the committee!)

In addition to these prosecutor witnesses, former Ector DA Bobby Bland added his voice in opposition, as did three additional live witnesses: Brit Featherston, United States Attorney for the Eastern District of Texas (on behalf of all four U.S. Attorneys in Texas); Judge Barbara Hervey of the Court of Criminal Appeals; and Stacey Soule, State Prosecuting Attorney. All four persuasively expressed their concerns about the proposed changes and why they did not believe those changes were needed. Other witnesses who provided live comments included Mike Ware, Executive Director of the Innocence Project of Texas, testifying in support of the measure, and two criminal defense lawyers—one who supported it (but still thought the rule needed refinement) and a second who opposed tasking prosecutors with the duty to remedy such matters under the theory that the defense bar is better equipped to do so. And based upon their questions and comments, several committee members seemed appreciative of the succinct and non-repetitive input provided by the witnesses—although we noted that the original proponent of the rule change left the online meeting before it was over and offered no closing comments.

So, what happens next? The committee will reconvene on May 4 and decide what path to take in the wake of this public input, including the many comments submitted online but not discussed at this week’s meeting. To review the agenda, proposed rule, written comments, and the archived video from the April 6 meeting, click here. And for any other information, visit the general CDRR webpage or contact Rob Kepple.

Senate Interim Charges

Texas Senate committees received their interim marching orders from the Lite Guv on April 4. As with the House committee interim charges we discussed in some detail in our previous update, these Senate charges will set the parameters for policy discussions in 2022 as state senators prepare for the next regular session.

Senate Criminal Justice Committee

Topics for study by the primary committee impacting criminal law are:

1. Review offender re-entry programs in TDCJ and county jails, identify barriers to their success, and recommend improvements
2. Recommend ways to reduce existing criminal case backlogs, including “an examination of methods developed by district attorneys, judges, and court administrators”
3. Examine the relationship between illegal temporary paper license plates and crimes related to human trafficking, drug trafficking, theft, and homicide
4. Determine what actions would help law enforcement stop catalytic converter theft and related crimes
5. Examine recent IT malfunctions resulting in unreviewed jail releases in Harris County and recommend solutions for ensuring timely magistration and appropriate bonds

Other charges of interest to prosecutors—such as those directed specifically at prosecutors’ authority or role in the criminal justice system—include the following (listed alphabetically by committee):

• Monitor the agencies receiving border security funding and report on their successes in curtailing transnational crime (Border Security Committee Charge #1)
• Monitor the implementation of recent bail bond reforms and identify ways to further promote public safety and efficiency (Finance Committee Charge #8)
• Review statewide forensic and civil mental health service waitlists and recommend ways to reduce waiting times and improve coordination (Finance Charge #12)
• Study how governmental entities use public funds for political lobbying purposes and make recommendations to protect taxpayers from paying for lobbyists who may not represent taxpayers’ interests (Local Government Committee Charge #6)
• Evaluate the impact of the CCA’s ruling in Stephens v. State on criminal prosecution in Texas and make recommendations for consistent enforcement of elections laws across the state (State Affairs Committee Charge #1)
• Make recommendations for reducing the demand for human trafficking in Texas and increasing resources for victims and survivors; examine changes in arrest rates, dispositions, and sentencing resulting from the enactment of HB 1540 (last session’s omnibus human trafficking bill); and examine opportunities for using DTPA actions to combat human trafficking and generate revenue for local law enforcement agencies (State Affairs Charge #4)
• Study the impact on public safety of some district attorney and county attorneys’ offices policies to not prosecute certain crimes; examine methods by which the legislature may prohibit prosecutors from not prosecuting duly-passed crimes; examine the Attorney General’s authority to act in place of a local prosecutor who fails to prosecute certain crimes (State Affairs Charge #5a)
• Examine judicial caseloads in Texas’ three largest counties (Harris, Dallas, and Tarrant) with a focus on courts that rarely or never hear cases in order to ensure a fair and equitable division of workload; review pretrial services and bonding practices in Harris and Travis Counties; examine the pretrial release of violent or habitual offenders and the correlating negative impact on community safety (State Affairs Charge #5b)
• Study the contributing factors leading to fatal crashes and make recommendations to reduce or prevent traffic fatalities and serious injuries (Transportation Committee Charge #1)
• Study the impact of cattle theft and recommend cost-effective measures to mitigate loss and increase security (Water, Agriculture, and Rural Affairs Committee Charge #8)

The full list of interim charges can be viewed HERE. As you can see, there are some issues that directly impact your constitutional independence and authority, so as committee hearings are announced on interim charges that are relevant to your work, we will update you accordingly. However, if you have a specific interest in a committee’s charges, you might consider tracking that committee’s meeting notices separately on the state legislature’s website using their “My TLO” feature. If you have questions on how to do that, contact Shannon.

Upcoming hearings

Interim charges currently posted for hearings include (click on the link for the full notice):

Tuesday, April 12

House Interim Study Committee on Criminal Justice Reform
3:00 p.m., Capitol Extension Room E2.012
Charge 2(B)(ii): Criminal procedure and due process from initial detention through appeal, including prosecutorial discretion (especially in regard to the application of the death penalty)
(Invited witnesses only; all others must submit electronic comments)

Thursday, April 14

House Criminal Jurisprudence
10:00 a.m., Room E2.010
Charge 4: Improving the availability and performance of indigent counsel
(Invited witnesses only; all others must submit electronic comments)

Tuesday, April 26

House Transportation
12:30 p.m., Room E2.012
Charge 1: Oversee the implementation of legislation, including HB 3927 (87RS, eff. 9/1/21) relating to temporary motor vehicle tags (and other charges)

Tuesday, May 3

House Homeland Security & Public Safety
10:00 a.m., Room E2.028
Charges on law enforcement hiring and training, border security, officer safety, incident crime reporting, and severe weather response and recovery (see the linked notice for full details)

Post-COVID committee changes

One vestige of the limitations imposed by the COVID-19 pandemic that appears to be permanent is committees’ continued acceptance of electronic public comment. In fact, several committees will be limiting live testimony on their interim charges only to witnesses invited by the committee; other members of the public who want to participate in that discussion must submit their comments through the new online portal. You might recall last session (when it was first proposed) that we warned against relying on that new electronic comment option to get your views across, and our follow-up with legislators and their staff after last session has confirmed our belief that submitting online comments is not the most effective way to convey your support or opposition for a policy change. Proceed accordingly.

That’s all for now; look for future updates from Austin as events warrant.

In lieu of our usual article links and quotes to conclude our updates, we’ll leave you with a Master’s Invitational Tournament prediction:
On Sunday’s back nine, the green jacket will come down to … Scottie Scheffler (favorite) vs. Corey Conners (dark horse!).
(For entertainment purposes only; please, no wagering.  😉 )

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