Legislative Update: Week 10


            We’ve spent the past week at the Capitol watching them debate restroom access, ride-hailing services, short-term rentals, plastic bag bans, texting while driving, sanctuary cities, and marijuana policies. As one pundit smartly pointed out, “When somebody doesn’t like a local idea, the state government is where they file their appeal. And this week, that appellate process [was] in full bloom.” Who would’ve thought back in the day that when “the party of local control” took over, local governments would have to spend so much time fighting to maintain local control?

Looking ahead

            As of Monday we will be 10/20ths of the way through the session, which reduces to ONE-HALF; that’s right, we are halfway done with the 85th Regular Session, which means the real bare-knuckled brawling is about to begin … read on for more details!

Marijuana Monday

            On Monday, the House Criminal Jurisprudence Committee heard several hours of testimony on HB 81 by Moody (D-El Paso), a bill to create a “civil fine” for possession of less than one ounce of marijuana. About thirty people testified in favor of the bill, with only one person voicing opposition: Ector County DA Bobby Bland, who discussed his concerns about the bill’s impact on search and seizure issues, the confusing mixture of civil and criminal principles, and the general inability to actually enforce this newfangled “civil” arrangement. Other witnesses registered support or opposition to the bill without speaking, but besides winning this week’s “one riot, one Ranger” award, Bobby’s testimony was singled out with appreciation by State Rep. Todd Hunter (R-Corpus Christi), who noted that if other local public officials object to this bill, they need to let their legislators know now, not in May. This is an important message coming from the chairman of the powerful Calendars Committee that gets to determine whether bills like this get debated on the House floor, so if you have a position for or against this bill, now is the time to contact your state reps, especially if they are members of the Calendars Committee.

Pretrial detention and bail reform

            Like many things at the Legislature, Harris County is often the tail that wags the dog in criminal justice issues. A perfect example of that is the growing criticism over commercial bail bonds and other pre-trial detention reforms that are picking up steam at a national level. Here in Texas, Harris County has become ground zero for that debate now that the county is being sued for its current pre-trial release policies (a story on the latest developments in that case can be read here.) It’s an issue that has caused disagreement among public officials in Harris County, and it’s one that will cause disagreement in Austin, too. Reform in this area has the potential to impact every single criminal case you handle, so it’s time to get up to speed on the various bills on this front. Here’s (some of) what you need to know.

            The major bills in this area are SB 1338 by Whitmire (D-Houston) and its companions, HB 3011 and HB 3738, both by Murr (R-Junction). These bills were brought forward by the Texas Judicial Council based on recommendations developed during the interim. We have told you about these on multiple occasions, but in short, the bills favor (or require) personal bonds over commercial bail bonds in many types of cases, require counties to create and use pre-trial supervision offices that implement risk assessment tools, and—if voters agree to amend the constitution in November per SJR 50/HJR98—create a complicated mechanism for denying pretrial release altogether to certain dangerous offenders, but only after a full-blown hearing within 10 days of arrest that requires the State to prove certain things by clear and convincing evidence. Look for the Senate version of this bill and the related constitutional resolution to be set for a committee hearing in the next week or two.

            For those who want to do more research on this idea, you can search online for stories on bail reform in Kentucky, Arizona, and New Jersey. Those states’ experiences are being held up by the bills’ proponents as success stories of this kind of reform, but some of the same states are also being cited as cautionary tales by those (like the bail bondsmen) who oppose this legislation. For instance, in New Jersey, the reforms appear to be lowering jail populations but increasing other county costs (including prosecutor workloads), and while some law enforcement officials are frustrated with their state’s new catch-and-release-and-reoffend cycle, other court officials say the reforms have improved public safety because now prosecutors can advocate against release. Y’all are going to get mixed up in this debate whether you want to or not, so you might want to take a good hard look at these bills and decide where you stand.

            Other bills on this subject that could see legislative action include: HB 362 by Moody (D-El Paso)(banning re-arrest for certain bond increases), HB 608 by Dutton (D-Houston)(mandatory personal bonds for misdemeanors absent good cause for not doing so), and HB 2702 by Coleman (D-Houston) and its companion, SB 1849 by Whitmire (D-Houston), known as the Sandra Bland Act (more on that below). And none of these include the normal bail bond battles that occur every session. Speaking of … if you’re asking yourself “Where are the bail bondsmen on all of this?”—don’t worry, we predict everyone will be hearing from them very soon, and very loudly.

The Sandra Bland Act

            There’s a good rule of thumb around the Capitol that if a bill is named after a person, you know something truly awful happened to that person. But another truism in policymaking is that just because a proposed law is named after someone doesn’t mean that the bill is limited to addressing that original situation. [See, e.g., “Jessica’s Law,” the Michael Morton Act, etc.] Both of these informal rules are likely to be tested this session during debates over HB 2702 by Coleman (D-Houston) and its companion, SB 1849 by Whitmire (D-Houston). Among the many, many provisions of these 55-page bills are the following:

  • Pre-arrest diversion of misdemeanants with an indication of mental health/substance abuse issues
  • Mandatory personal bond for all “non-violent” offenders
  • Release of felony arrestees if no PC finding is made by a magistrate within 24 hours
  • A ban on consent searches and “pretext stops” (which are not defined)
  • A ban on Class C arrests (other than PI and certain alcohol offenses)
  • Data on racial profiling would be admissible in individual court cases
  • All law enforcement agencies must adopt a written policy for traffic stops, including a “preponderance of the evidence” standard for warrantless searches and a ban on Class C arrests
  • A DPS-designated outside agency must investigate in-custody jail deaths
  • Mandatory bias & de-escalation training for many peace officers

We could go on, but you can read the bills yourselves for all the nitty-gritty details. As you might imagine, various groups representing law enforcement officers have already expressed strong opposition to several sections of this bill, although there are some provisions related to jail safety that have the support of the Sheriffs Association in principle.

            At a minimum, these bills are guaranteed to get a full committee hearing due to the person after whom they are named and the seniority of the legislators who have filed them. Be sure to read up on them so that you know your position (if any) when asked.

Asset forfeiture update

            This past Monday, House Criminal Jurisprudence chairman Joe Moody (D-El Paso) announced the creation of an asset forfeiture subcommittee consisting of Rep. Terry Canales (D-Edinburg) as chairman and Reps. Barbara Gervin-Hawkins (D-San Antonio) and Mike Lang (R-Granbury) as members. The chairman then referred all forfeiture-related House bills to that subcommittee, and a list of those bills is attached to this update.

            So, what does this mean? On the one hand, creating a specific subcommittee for this topic makes it likely that some or all of those bills will receive a hearing, and that will require input in person from those who support or oppose those changes. But on the other hand, most of the bills sent to a subcommittee historically don’t come out of that subcommittee, so there will definitely be some “culling of the herd.” Furthermore, approval by a subcommittee does not guarantee future approval by the full committee. So, the bottom line is that this may mean more work for those of you who are watching this issue, but a potential benefit from that work if you engage in it.

            We will let you know if/when these bills are set for hearings. If you have any questions, contact Shannon.

Floor report

            The Senate passed SB 6 by Kolkhorst (R-Brenham), aka “the bathroom bill,” in a form that includes civil penalties for certain local entities that disobey it, but no individual criminal sanctions. Senators also approved SB 8 by Schwertner (R-Georgetown) and SB 415 by Perry (R-Lubbock), which regulate certain types of abortions and fetal tissue dispositions, including criminal offenses in some circumstances.

            Across the rotunda, very few bills have made it through the House committee process yet, but the House did give preliminary approval to HB 62 by Craddick (R-Midland), which would impose a statewide version of a texting-while-driving ban. That bill still needs a third-reading vote before it can be sent to the Senate, where its prospects may be less rosy.

Scattershooting

            Bills that received approval from their initial committees include: HB 142 by Moody (D-El Paso) creating the offense of indecent assault; SB 227 by Huffman (R-Houston) to fix the Adderall loophole from last session; SB 325 by Burton (R-Colleyville) authorizing prosecutors to file expunction petitions and orders in certain cases; and SB 712 by Hinojosa (D-McAllen) extending the duration of certain family violence protective orders.

New bills to watch

            All told, the Legislature filed 6,654 bills and joint resolutions before last Friday’s 60-day deadline, which the experts tell us is the second-highest total in history (although it’s still more than 600 bills behind 2009’s orgy of bill filing). Even though certain local and uncontested bills can still be filed, this will be our final listing of new bills to put on your radar. From here on out, it’s not about bill filings, it’s about bills passing or dying.

            Among the more interesting bills filed at the deadline (which you can read at http://www.capitol.state.tx.us/) are:

HB 29 by Thompson expanding the human trafficking racketeering law (enforced exclusively by OAG) and making numerous other trafficking-related changes

HB 3133 by Smithee regulating the use of jailhouse informants

HB 3134 by Smithee requiring electronic recording of certain custodial interrogations

HB 3322 by Guillen relating to notario fraud

HB 3372 by Smithee, the omnibus court creation bill

HB 3515 by Gervin-Hawkins authorizing peace officers to dispose of Class B misdemeanors without referral to a prosecutor

HB 3539 by Landgraf increasing the penalty for assault of a pregnant woman (proposed by Ector County DA Bobby Bland’s office)

HB 3572 by Krause repealing or revising (down) the punishments for certain offenses outside the Penal Code

HB 3594 by Dutton, the omnibus juvenile justice act clean-up bill

HB 3649 by Herrero granting an evidentiary privilege to certain family violence victim advocates

HJR 10 by Smithee extending future terms of appellate and district judges by 2 years

SB 1448 by Estes restricting employers’ right to control employees’ licensed carrying of handguns

SB 1616 by Lucio changing jury instructions in death penalty cases

SB 1653 by Watson requiring dismissal of non-violent charges against incompetent offenders

SB 1655 by Watson removing open records protections for work product, attorney-client privilege, and more

SB 1714 by Hall restricting the expenditure of asset forfeiture funds

SB 1740 by Miles creating procedures to determine intellectual disability in a death penalty case

SB 1851 by Garcia granting an evidentiary privilege to certain sexual assault victim advocates

SB 2189 by Huffman requiring a judge to appoint another sitting prosecutor as an attorney pro tem

SB 2238 by Garcia creating the felony offense of “sexual coercion”

There are plenty more where these came from, but we’ll stop here. From here on out, check our live tracking updates on the Legislative page of our website to see what is cooking with certain bills. If you are curious to know exactly what bills we are tracking under a specific category, email Shannon and he can send you a list that will include hyperlinks to each bill’s text online. 

Upcoming floor debates

            Nothing very exciting is scheduled for the House floor as of now, and it’s too early to tell what the Senate may take up next week, so we’ll mosey along to where the real action is: committee hearings.

Committee hearings

            Here’s a partial list of what is coming up this week (based on hearing notices received at press time). To see the full agenda for each listed committee—including links to the individual bills—click on the committee name.

 

*** MONDAY, MARCH 20 ***

House Human Services, 8:30 a.m., Room E2.030

HB 7 by Wu relating to CPS placements, service plans, motions for new trial, appeals, and more

HB 39 by Wu relating to CPS case workers and their functions

HB 1549 by Burkett relating to CPS and prevention and early intervention services

 

House Criminal Jurisprudence, 2:00 p.m. or upon adjournment, Room E2.014

HB 281 by Howard establishing a statewide electronic tracking system for rape kits

HB 383 by Murphy enhancing the penalties for certain repeat and habitual misdemeanor offenders

HB 401 by Villalba criminalizing leaving certain animals unattended in a motor vehicle

HB 491 by Frullo requiring sex offender registration for continuous trafficking of persons

HB 667 by Canales prohibiting a person from waiving a right to an expunction or order of nondisclosure

HB 681 by Wu making confidential all records of certain Class C offenses after five years

HB 866 by Moody creating “lethal violence protective orders”

HB 1268 by Schaefer allowing the State to challenge a grand juror at impaneling.

HB 1274 by Moody accelerating parole eligibility for certain violent offenders who were younger than 18 at the time of the offense

HB 1404 by Allen making last session’s expanded nondisclosure eligibility retroactive to all past cases

HB 1424 by Murphy banning drone operation over certain sports venues

HB 1666 by Meyer increasing the punishment for aggravated promotion of prostitution

HB 1667 by Meyer increasing the punishment for promotion of prostitution

HB 1686 by Shaheen altering the punishment for fraudulent destruction, removal, or concealment of a writing that is attached to tangible property

HB 1727 by Faircloth revising who can sign evidentiary search warrants in certain counties

HB 1819 by Springer removing the penalty for firearm silencers

 

House Government Transparency & Operation, 2:00 p.m. or upon final adjournment, Room E2.028

HB 8 by Capriglione relating to cybersecurity for government information

HB 9 by Capriglione relating to cybercrime

 

House Public Education, Subcommittee on Educator Quality, 2:00 p.m. or upon adjournment, Room E1.014

HB 218 by Dale expanding the scope of the offense of improper educator/student relationships

HB 333 by Meyer expanding the scope of the offense of improper educator/student relationships

 

*** TUESDAY, MARCH 21 ***

House Homeland Security & Public Safety, 8:00 a.m., Room E2.014

HB 300 by P. King reducing or removing fees for LTCs

HB 567 by White barring arrest for misdemeanors punishable by a fine only

HB 574 by S. Thompson barring arrest for misdemeanors punishable by a fine only

HB 873 by Pickett prohibiting certain establishments from preventing a peace officer from carrying a weapon on the premises

HB 1503 by Frullo relating to the reporting of attempted child abductions

HB 2050 by G. Bonnen making confidential certain licensing and disciplinary records maintained by a law enforcement agency

 

Senate Criminal Justice, 1:30 p.m. or upon adjournment, Room E1.016

SB 30 by West relating to public school and drivers ed instruction regarding interaction with peace officers and related training for peace officers

SB 91 by Hall requiring the destruction of certain automatic license plate reader information within seven days

SB 256 by V. Taylor relating to the confidentiality of home address information of certain victims of family violence, sexual assault or abuse, stalking, or trafficking of persons

SB 327 by Burton authorizing a court to refund certain fees for an order of nondisclosure

SB 395 by Campbell criminalizing the unauthorized operation of a drone over a correctional facility

SB 582 by Whitmire relating to the discharge of a prisoner from a county jail

SB 613 by Whitmire relating to inpatient mental health services for incompetent sexually violent offenders

SB 773 by Uresti authorizing a judge to compel a defendant to take psychoactive medication

SB 843 by Perry limiting access to certain information regarding Crime Victims' Compensation

SB 998 by West extending the statute of limitations for the offense of exploitation

 

House Judiciary & Civil Jurisprudence, 2:00 p.m. or upon adjournment, Room E2.026

HB 2102 by S. Thompson relating to the continuation and functions of the State Bar (sunset bill)

HB 2103 by S. Thompson relating to the continuation and functions of the Board of Law Examiners (sunset bill)

 

*** WEDNESDAY, MARCH 22 ***

*** THURSDAY, MARCH 23 ***

[The juvenile justice and corrections committees in the House have not posted hearings by the time this update was published; check the online version for updates later this week.]

Roll call

            Thanks to Cherokee County DA Elmer Beckworth and Ector County DA Bobby Bland for spending their Spring Break in Austin talking to legislators and testifying for and against several bills this session … Comal County CDA Jennifer Tharp testified in Senate State Affairs in favor of SB 712 by Hinojosa (extended-term protective orders), which the committee approved shortly thereafter … Coryell County DA Dusty Boyd, Brown County DA Mike Murray, and Llano County DA Sonny McAfee chatted with their state senator about a certain grand jury bill that has the attention of many of you … and other than that, most of you probably had better things to do over Spring Break than come to Austin, but did we miss anyone else? If so, let us know. And remember, if you’re coming to Austin, TDCAA headquarters is your one-stop shop for free parking, free refreshments, free wi-fi, and free reconnaissance for that particular day at the Capitol. Don’t be shy, we’re here to help!

Victim services grants

            The Texas Attorney General’s online grant registration process for FY 2018-19 is now open. Online registration is required to apply for Victim Coordinator and Liaison Grants (VCLG) and Other Victim Assistant Grants (OVAG). Registration closes at 5:00 p.m. CDT on Wednesday, March 29, 2017. For more information, visit https://www.texasattorneygeneral.gov/cvs/grants-and-contracts.

Training reminder

            TDCAA is presenting a Prosecuting Violent Crimes seminar for prosecutors and investigators April 11-14 at the Omni Houston Hotel at Westside. The course will cover handling victims and witnesses, prosecuting multiple defendants, self-defense claims, eyewitness identification, DNA issues, weapons, and punishment. One day of the course will be dedicated to specialized tracks on sexual assault, child victims, and domestic violence, so attendees will have a variety of different tracks from which to select. In addition, TDCAA will offer an extra 1.75 hours of MCLE for a separate, free presentation on domestic violence. Those who attend this additional training will receive a complimentary copy of TDCAA’s Protective Orders manual and a two-sided laminated sheet on protective orders. For more information or to register, click here.

Quotes of the week


“This is a rough crowd.”
            —State Sen. Jane Nelson (R-Flower Mound), chairwoman of the Senate Finance Committee, commenting upon the heated nature of the hearing on SB 2 by Bettencourt (R-Houston), the bill to limit local property tax revenue growth.

 

“There’s all this talk about property taxes, and there’s no talk about the cost of government. Government costs money.”
            —Paul Sugg, legislative director for the Texas Association of Counties, referring to the debate over SB 2.

 

“We’ve got a real serious problem in this state that we’ve got people being held in county jails because they can’t come up with money for a bond. They either sit in an overcrowded jail or something happens to them or they get a payday lender loan or they plead guilty to something they might or might not have done. On the flip side, you’ve got human traffickers and violent drug dealers that get a high bond but have resources.”
            —State Sen. John Whitmire (D-Houston), on why he filed a bill to replace the current commercial bail bond system with one that relies largely on personal bonds and preventative detention hearings.

 

“These [grand jury] procedures were originally meant to provide checks and balances against oppressive prosecution or potential witch hunts. Today, however, those proceedings sometimes give state prosecutors an unfair advantage over the accused, even when the accused are innocent of any crime.”
            —State Rep. Senfronia Thompson (D-Houston), explaining why she filed HB 2640, her “grand jury reform” bill.

 

“Everyone in the courtroom is being paid to be there except us.”
            —The special prosecutors in the Ken Paxton case, in a statement explaining why they have asked that the trial be delayed until the conclusion of separate litigation from Collin County challenging their fees.

 

“Relating to the taking of certain feral hogs and coyotes using a hot air balloon.”
            —One of the winning nominees in former state representative Corbin Van Arsdale’s contest for the best bill caption of 2017; you can read all the entries here.

 

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