Legislative Update: Week 11

 

            Things are getting so awkward and tense between the House and Senate leadership that if you dropped some uncooked popcorn kernels in the rotunda under the dome, they might spontaneously pop. That’s not unusual for a legislative session in, say, May, but it is very unusual for things to be like this in March. 

Looking ahead

            We are 11/20ths of the way through the session, which does not reduce … Asset forfeiture, DWI deferred adjudication, constitutional carry, and the Senate’s budget bill will all be front and center next week, while bail bond reform is expected to get teed up for a committee hearing during the first week of April … read on for all the details!

First, they came to release the non-violent offenders …

            “Criminal justice reform” is almost too broad a topic to mean much nowadays. It can include procedural reform (like the eye-witness identification changes of 2011), pre-trial detention (personal vs. commercial bail bonds), specific subject matters (the death penalty, human trafficking, etc.), and more. But one of the biggest areas of “reform” being advocated for the past 10 years has been the move toward decarceration—moving convicted offenders out of jails and prisons and into community supervision or pre-trial diversion programs (or legalizing their conduct altogether). To date, the “decarceration movement” has focused almost entirely on low-level, non-violent property and drug offenders—but that is about to change.

            The problem with decarcerating only drug and property offenders is that, contrary to the conventional wisdom, those are by and large not the offenders we lock up! The majority of offenders in TDCJ are there for violent crimes, sex crimes, and/or are habitual offenders. Therefore, if the anti-incarceration crowd really wants to shrink prison capacity in Texas, they are going to have to go after the red meat: 3g offenders. [Note: Yes, we know the Legislature repealed CCP Art. 42.12 last session and re-organized it so that the old list of crimes in Section 3g is now found in Art. 42A.054, but you’ll have to pry the “3g” moniker from our cold, dead hands.] And we got a glimpse into that future yesterday, when the House Corrections Committee heard HB 2120 by S. Thompson (D-Houston).

            Although the language of HB 2120 was confusing to all, the intent was clear from the testimony supporting it: Inmate family members and criminal justice reform advocates on the political left and the right testified in favor of granting 3g offenders— past, current, and future—credits for certain good behavior behind bars that would accelerate their parole eligibility to a time earlier than the standard 3g term that today not does allow for consideration of good time. Testimony at the hearing from the chairman of the Board of Pardons and Paroles indicated that more than 19,000 3g offenders would be immediately eligible for earlier parole consideration if such a bill passed!

            More than 45 witnesses testified either for or against this bill in yesterday’s hearing. It was disappointing to see crime victims and survivors be re-victimized by this attempt to go back on the promises the State has made to them, but they and the prosecutors who showed up to testify may have helped stop it in its tracks—for now. Special recognition goes out to Bexar County CDA Nico LaHood, Llano County First Asst. DA Perry Thomas, Fort Bend County First Asst. DA Fred Felcman, Fort Bend County Asst. DA Jenna Rudoff, Travis County Asst. DA Justin Wood, and more than a dozen victims of violent crime who stood in the breach yesterday.

            Going forward, it may be time for prosecutors to ask themselves an important question: Where do we draw the line? As ministers of justice, many of you are doing great work in your communities to divert more low-level, non-violent offenders from incarceration—but like many things at the Capitol, it seems like advocates on the other side may take the inches you are giving and insist on the full mile, with no recognition of the difference in offenders’ conduct. After all, if the people who gave us the phrase “We should be locking up the people we are afraid of, not the people we are mad at” are now arguing for us to release the people we are most afraid of, there could be no end to this. Prepare yourselves accordingly.

Budget update

            The full Senate will take up SB 1 by Nelson (R-Flower Mound), this year’s budget bill, on Tuesday. You can follow your mainstream media source of choice for the general details. A good breakdown of how the Senate and House differ on what CPS improvements they want to fund can be read here. There’s also a big debate brewing between the two chambers over whether to tap the state’s Rainy Day Fund, and if so, for what that money should be used. The House leadership would like to draw down money for one-time expenses like repairs and improvements to state mental health hospitals, but the Senate budget-writers have so far resisted calls to touch that money. (For more on that side debate, read this.) The Senate does include more than $200 million in additional mental health services of various types, which never hurts, but most requests for additional funding have either been denied or tabled until later in the session when additional money may materialize. We’ll have a better idea of what’s in the Senate budget after they pass it (where have we heard that before?) and we’ll send along anything of note that does not get reported by the usual suspects.

Innocence legislation

            During the interim between sessions, the Timothy Cole Exoneration Review Commission came up with a set of policy recommendations to change various criminal laws in Texas. (The commission’s report can be viewed here.) Those recommendations have now appeared in bill form as HB 34 (and a second identical version, HB 3127) by Smithee (R-Amarillo) and their Senate companion, SB 1577 by Perry (R-Lubbock). These bills include the following major provisions (listed with additional, separate bills that make only those changes):

  • JAILHOUSE INFORMANTS (HB 3133): All prosecutors must adopt a written policy and a system for handling jailhouse informant testimony (deals, criminal history, past testimony, etc.); jailhouse informants’ complete criminal history and all prior bad acts are admissible at trial; current duties in regard to pre-trial disclosure are further codified.
  • CONFESSIONS (HB 3134): Requires electronic recording of custodial interrogations in felony investigations absent a good cause exception (five are listed).
  • LINE-UPS: All law enforcement agencies must adopt the LEMIT model policy on eyewitness identifications (including the current mandate to use sequential instead of simultaneous line-ups, despite recent research showing that may not be a best practice); requires a new predicate for the admissibility of an in-court identification.

There are also bills out there that came from the Commission’s interim work but did not make it into their official recommendations, such as HB 2873 by Smithee (and its companion, SB 1273 by Rodriguez) which create a new “11.075 writ” allowing a trial judge to grant a writ for relief when both parties agree and eliminating the need for the Court of Criminal Appeals to approve it.

            These bills will get hearings, so be sure to read them. The bill authors are open to suggestions on how to improve them, but you must weigh in now, not later, if you want to be effective. Contact Shannon for more information on where these bills will go from here and what you can do about them.

State Bar sunset review

            On Tuesday, the House Judiciary and Civil Jurisprudence Committee heard testimony on HB 2102 by S. Thompson (D-Houston), the Sunset Commission’s bill to continue the State Bar for another 12 years. The bill makes a few structural changes to the Bar’s operations, including in the area of attorney discipline. For instance, the bill would create a committee to annually review all Bar disciplinary rules and report to the Texas Supreme Court whether they are adequate. The bill also creates various ways in which Bar disciplinary rules can be changed, including a new process that would allow a proposed change to be put forth by legislative resolution, a request by 10 percent or more of the bar membership, or a petition process requiring the signatures of “at least 20,000 people.” That last provision includes no requirement that those “people” be eligible voters, or Texas residents—or even American citizens—but fortunately, we caught that ambiguity in time to get the Senate companion amended when it was heard in the Senate State Affairs Committee on Thursday. That bill—SB 302 by Watson (D-Austin)—was left pending in committee, as was the House bill.

            Interestingly, what got the most attention from House committee members is a proposed requirement that all Texas attorneys who haven’t already submitted fingerprints to the Board of Law Examiners submit fingerprints to the Bar for purposes of a criminal history background check. Sunset Commission staff defended the requirement as being consistent with all other licensed occupations in Texas, but several committee members chafed at the notion that, once this was done, a full 30 percent of the general public who are in licensed occupations would be under the watchful eye of Big Brother here in Austin. As of now, though, that requirement remains in both bills.

            We will continue to monitor these bills, but if you have an interest in how your profession is regulated by the State Bar, now is the time to read them and get involved. If you have questions about this, contact Rob.

Final bill tally

            Last weekend we finally caught up with all the bills filed before the March 10 deadline. Of the roughly 6,800 bills now in the system, we are following about 1,650 of them, which is (sadly) a new record for us. That means that almost one out of every four bills this session has the potential to impact your work. Is that scary, or what?

            We use 43 different tracks to follow bills during a session. Here’s a rundown of the number of bills we are tracking in some of those categories this session (keeping in mind that most bills are counted in multiple tracks and that bills with companions in the other chamber get counted twice):

 

CCP:                           417

Penal Code:                255

Transportation Code:  197

New Class A/B:          123

Sex crimes:                 110

CPS:                            100

Punishment increase: 94

Guns:                          90

Punishment decrease: 77

Drugs:                         77

New CA/DA duties:   76

Criminal records:        74

New Class C:              64

Juveniles:                    59

New felony:                53

Bail/pre-trial release: 40

Family violence:         37

Human trafficking:     36

DWI:                           33

Asset forfeiture:         27

Gambling:                   25

Death penalty:            24

Grand jury:                 11

Be afraid. Be very afraid.

Floor report

            The Senate passed SB 2 by Bettencourt (R-Houston) potentially limiting local property tax collections; other than that, not much happened in the House or Senate on bills that affect your business.

Scattershooting

            Bills that received approval from a committee include: HB 25 by Simmons (eliminating straight-ticket voting); HB 53 by Romero (limiting confidential settlements with counties); HB 104 by White (DAs notify TDCJ when indicting past 3g offenders so victims in old case can be notified); HB 122 by Dutton (raising the age of juvenile jurisdiction to include 17-year olds); HB 269 by S. Thompson (vacatur and expunction of past prostitution convictions); HB 322 by Canales (expunctions after veterans court completion); HB 362 by Moody (ban on re-arresting certain offenders on bond); HB 1087 by Alvarado (creating the offense of bestiality); HB 1676 by White (creating a statewide capital appellate defender, at a cost of $500k/year); HB 1218 by E. Johnson (reducing penalties for repeat prostitution convictions); HB 682 by Wu (extending statute of limitations for aggravated assault); and SB 91 by Hall (destruction of license plate reader data after one year).

Upcoming floor debates

            The word in the House is that they won’t be taking up any controversial legislation until after they have debated their version of the state budget—which will probably happen the week after next, so don’t expect any fireworks from them next week. The Senate has obviously walked a different path this session. They will hear their budget bill on Tuesday and then move on to more discretionary items, which could include SB 5 (voter ID), SB 30 (civilian-peace officer interaction training and education), SB 88 (banning certain red light cameras), SB 325 (expunctions upon acquittal), and SB 492 (authorizing county tax assessor-collector to take bad checks to private vendor for collection).

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 27 ***

 

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

SB 42 by Zaffirini relating to the security of courts and judges in the state

SB 1250 by West expanding the admissibility of evidence in certain injury to a child cases

SB 1329 by Huffman relating to the creation and operation of courts (omnibus court creation bill)

 

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

HB 72 by Keough creating victim-offender mediation programs

HB 152 by Dutton relating to the restoration of certain rights to a criminal defendant

HB 575 by S. Thompson decriminalizing trace amounts of PG 1 controlled substances

HB 731 by Bohac creating the offense of intimidation by a member of a criminal street gang

HB 1177 by Murr relating to personal bond for a person arrested for an out-of-county offense

HB 1264 by Burkett relating to the concurrent jurisdiction of certain municipal courts

HB 1266 by Geren requiring three business days’ notice for hearings and settings in criminal cases

HB 1285 by Rose delegating death certification to attending physicians in certain counties

HB 1314 by Israel requiring the release on personal bond of a person who is pregnant

HB 1431 by Moody relating to coercion as an element of certain sexual assaults

HB 1507 by Giddings relating to the rights of defendants upon successful completion of probation

HB 1551 by Krause creating a commission to review certain penal laws of this state

HB 1574 by Wilson requiring certain documentation regarding an arrest of a person without a warrant

HB 1575 by Wilson changing venue for the disposition of stolen property

HB 1848 by Coleman repealing the offense of homosexual conduct

HB 1967 by Moody creating an innocence project grant program

HB 2071 by Cook relating to payment of costs associated with a court-appointed counsel

HB 2089 by White authorizing deferred adjudication for certain DWI offenders

HB 2387 by Herrero relating to the disclosure and use of certain CVC information

 

House Public Education, Subcommittee on Educator Quality, 2:00 p.m. or upon adjournment, Room JHR 120

HB 1403 by Isaac expanding the scope of the offense of improper educator/student relationship

HB 1799 by Dale relating to misconduct by public school personnel

HB 3769 by K. King expanding the scope of the offense of improper educator/student relationship

SB 7 by Bettencourt expanding the scope of the offense of improper educator/student relationship

 

*** TUESDAY, MARCH 28 ***

 

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

HB 375 by Stickland authorizing the carrying of handguns without a license (“constitutional carry”)

HB 1911 by White granting authority to carry a firearm to an unlicensed person who otherwise meets certain requirements for a handgun license (“constitutional carry lite”)

 

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

SB 291 by Whitmire creating new procedures for the issuance of a writ of attachment

SB 1110 by Birdwell allowing a theft suspect to complete an education program offered by a merchant

SB 1163 by Garcia establishing and funding a grant program for testing rape kits evidence

SB 1575 by Perry relating to assaults and other forms of harassment by persons committed to certain facilities

SB 1576 by Perry relating to the civil commitment of sexually violent predators

 

*** WEDNESDAY, MARCH 29 ***

 

House Criminal Jurisprudence, Subcommittee on Asset Forfeiture, 10:30 a.m. or upon adjournment, Room E2.036

HB 155 by Schaefer placing the burden on the State to disprove the innocent owner defense

HB 323 by Canales awarding court costs, storage fees, and attorney’s fees to the defense in certain asset forfeiture proceedings

HB 344 by Canales raising the State’s burden of proof to “clear and convincing evidence” in asset forfeiture proceedings

HB 348 by Canales applying the exclusionary rule in civil forfeiture proceedings

HB 805 by Dale applying the exclusionary rule in civil forfeiture proceedings

HB 835 by Stephenson requiring more detailed auditing and reporting of forfeiture proceeds

HB 1301 by Dutton requiring a criminal conviction prior to forfeiture

HB 1364 by S. Thompson repealing civil forfeiture, requiring a criminal conviction absent exceptions

 

*** THURSDAY, MARCH 30 ***

[No hearings posted yet]

Roll call

            Thanks to everyone who came to Austin this week to participate in the sausage-making process! In addition to those we mentioned earlier who came to testify against HB 2120 ... Kenedy County CA Allison Strauss, Nacogdoches CA John Fleming, and Nacogdoches Asst. CA Stephanie Stephens represented you well at the Capitol this week on a variety of issues ... Comal County CDA Jennifer Tharp was at the Capitol working on the DWI-deferred bills (SB 761 by Menendez and HB 2089 by White, which will be heard in committee on Monday [details above]) … Bexar County Asst. CDA Jessica Frazier came to Austin to support the DWI-deferred bills at a press conference this week …  Chambers CA Scott Peal testified in support of HB 1727 by Faircloth to allow his local non-lawyer JPs to sign search warrants … Smith County Asst. Criminal DA Jacob Putman testified in support of HB 1268 by Schaefer (testing grand juror qualifications) … 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.

Quotes of the week


“Many people don’t consider, or don’t think of, law enforcement being ‘government.’ ... [We shouldn’t] allow law enforcement—which is an arm of government—to take private property without a criminal conviction.”
            —State Sen. Konni Burton (R-Colleyville), explaining in a Facebook interview why repealing civil asset forfeiture is her primary policy goal this session.

 

“Counting money twice in order to balance a budget is not a good idea. This is the Texas Legislature. We are not Enron. … I’m not interested in cooking the books just to avoid a vote on the Rainy Day Fund.”
            —Speaker of the House Joe Straus (R-San Antonio), when asked his opinion of an accounting maneuver being employed by the Senate to balance its proposed budget.

 

“As legislators, we have to remember that we live in the real world. We live in a world where children act like children, and we shouldn’t expect them to be adults when we treat them as children for everything else.”
            —State Rep. Gene Wu (D-Houston), speaking in favor of HB 122 by Dutton (D-Houston), this session’s “Raise the Age” bill (which was voted out of committee this week).

 

“He has a different audience. I mean, literally an audience. He was in [the talk radio] business. He’s an entertainer, a talk show guy. And a statewide elected official. I’m not. … My audience is the constituents back home and the House members. I think that my audience, my constituents, have been generally pleased with [my] job performance, and his audience has been generally pleased with his.”
            —Speaker of the House Joe Straus (R-San Antonio), in response to comments earlier in the week by Lt. Governor Dan Patrick (R-Houston) that the speaker owes his job to Democratic support and is therefore not responsive to the wishes of his own party’s base.

 

“It’s probably a whole new example of bullshit that legislators have to put up with. It gives you one more thing to worry about in the electronic age.”
            —Former State Rep. Rick Hardcastle, a voucher opponent whose name was attached to a pro-school-choice letter sent to the lawmaker who succeeded him in Austin as a part of a potentially sketchy grass roots campaign on that issue.

 

###