Legislative Update: Week 16

            With only two weeks remaining to pass their own bills, things are about to get crazy on the House floor. The calendar is starting to get too long for them to finish each day’s scheduled business on that appointed day, resulting in bills being pushed back to the next day and causing a domino effect for all subsequently calendared bills. This is known as “rolling the calendar,” and in layman’s terms, it means that that any House bill not calendared by Saturday, May 6, is unlikely to be reached before the final deadline at midnight on Thursday. Buckle up, things are about to get crazy!

 

Looking ahead

            The session ends four weeks from Monday, meaning we are 16/20ths of the way through the session, which reduces to 4/5ths.

            We had something of a lull in the action this week because the sanctuary city debate sucked all the oxygen from the Capitol, but look for things to return to more of a fever pitch again next week. Read on for all the details.

 

Asset forfeiture update

            Monday evening, two forfeiture reform bills were approved by the House Criminal Jurisprudence Committee. The bills are:

  • HB 344 by Canales (clear and convincing evidence; substituted to match SB 165, so read that bill’s filed version for the new language); and
  • HB 805 by Dale (exclusionary rule; substituted language attached).

The good news is that, based on the testimony before the House Subcommittee on Asset Forfeiture on March 29, these were perhaps the two least offensive bills heard that day. The other good news is that all of the other forfeiture reform bills that were heard in the subcommittee that day are almost certainly dead now.

            The bad news is that if either of these two approved bills makes it onto the House floor, the language from some of those dead bills could be resurrected and amended onto these bills on the House floor, even over the objections of the bills’ authors. There is also no telling what would happen to the bills in the Senate if they passed the House, nor what the governor would think of them if they landed on his desk. Therefore, the only sure way to stop these bills (if you oppose them) or prevent bad language from re-appearing as a floor amendment to these bills (if you don’t oppose these bills but oppose the others left in the committee) is to keep the bills bottled up in the Calendars Committee.

            If you believe that is the best course of action and you have a relationship with any members of the House Calendars Committee (or know people who do), now would be a good time to make use of that connection and request that either or both of the bills not be scheduled for floor debate. Neither bill is technically “in” the Calendars Committee yet (the paperwork is not complete), but it never hurts to get ahead of the ball on stuff like this.

            Meanwhile, there has been no movement on any forfeiture bills in the Senate. Don’t be surprised if SB 380 by Burton (criminal conviction) gets a committee hearing sometime in the next two weeks, so another good showing from prosecutors and law enforcement opponents, as happened with its House companion, HB 1364 by Thompson, will be important.

            If you have any questions about this fluid situation, please contact Shannon.

 

Constitutional carry, the sequel

            After yet another session in which constitutional carry supporters’ hard-nosed lobby tactics won them few friends, a variation on that theme is now on the move.

            A substitute version of HB 1911 by White (R-Hillister) (gotta love that bill number for a gun bill, no?) was recently approved by the House Homeland Security & Public Safety Committee and is now in the Calendars Committee. The bill has been dubbed “permitless carry” or “unlicensed carry” because it merely requires someone to be qualified to get a license to carry (LTC) rather than actually applying for and receiving an LTC. In other words, if you are 21 or older and have no disqualifying criminal or mental health history, you would be able to carry openly or concealed. As for how an officer on the street is supposed to be able to determine if someone carrying is qualified or not … well, that’s one of those pesky little details that the Legislature likes to leave to others to figure out, right? But regardless of the changes, supporters of truly unregulated carry (in the form on HB 375 by Stickland (R-Bedford), which was not voted from committee) still oppose this “permitless” version, so if HB 1911 does make it to the House floor, you can bet every last dollar that those folks will pull out all the stops to try to amend their no-holds-barred language onto HB 1911. So again, if any of this concerns you, your best bet right now is to weigh in with members of the Calendars Committee.

            To learn more about this and other gun-related bills moving this session, read this recent article from the Fort Worth Star-Telegram.

 

Sanctuary cities

            After more than 16 hours of sometimes emotional debate on Wednesday, the House passed SB 4 by Perry/Geren, also known as the sanctuary cities bill. The original Senate language had been somewhat watered down by the House State Affairs Committee, but once on the floor, repeated amendments were added or defeated on party-line votes, and the finished product that emerged from the House floor ended up being much more robust than originally proposed.

            Despite the controversial nature of this topic, House floor debate began with members for both sides generally agreeing that there are no actual “sanctuary cities” in Texas as of today because all local law enforcement agencies and universities (yes, even in Travis County) are currently cooperating with ICE, as would be required by the bill. However, that agreement quickly ended as amendments started being called up, especially one to allow/encourage local peace officers to question the immigration status of people they detain (rather than upon arrest, as in the original House substitute). That change was adopted on a party-line vote, as was the bill itself about 10 hours later. The final product also includes a Class A misdemeanor for local officials who fail to honor detainers, removal and quo warranto provisions to kick those officials out of office, and civil penalties against those local government officials too.

            The bill now heads back to the Senate for them to accept the House changes or go to a conference committee to work out the differences, after which it will be sent to Governor Abbott for a signing ceremony and passage into law. (We have more thoughts about how and why this bill was passed and the final form it is likely to take, but we’ll save those for our regional legislative updates this summer!)

 

Innocence bills

            Several criminal justice reform bills have been flying under the public’s radar more so this session than in past years so we thought we’d make sure you knew about them before it became too late to have a say in their outcome. With that in mind, here’s a short summary of some of those bills (in order of predicted likelihood of passage this session, which is really just a guess on our part at this time):

            Subsequent post-conviction DNA testing: HB 3872 by Lucio III (D-Brownsville) would grant certain defendants another bite at the post-conviction DNA apple. It is on the House calendar for floor debate next week.

            Recorded interrogations: SB 1253 by West (D-Dallas) has already passed the Senate and is awaiting referral to the House Criminal Jurisprudence Committee. The bill would require the audio/visual recording of any custodial interrogation occurring in a police station or similar facility if it involves the suspected commission of certain serious felony offenses (as listed in the bill). The bill also lists several good-cause exceptions to this recording requirement.

            Exoneration recommendations: HB 34 by Smithee (R-Amarillo) is on the House Calendar for floor debate next week. The bill seeks to codify some of the recommendations of the Tim Cole Exoneration Review Commission by requiring certain custodial interrogations to be recorded (like SB 1253, above), tweaking the state’s model eyewitness identification procedures, and creating new tracking and admissibility rules for jailhouse informants’ testimony. Should HB 34 be approved by the full House, it will be sent to the Senate Criminal Justice Committee, where its companion, SB 1577 by Perry (R-Lubbock) has yet to be approved.

            Agreed writs: SB 1273 by Rodriguez (D-El Paso), which would create another writ mechanism for fast-tracking agreed writs granting new trials, was heard in the Senate Criminal Justice Committee on April 11 and is still pending in that committee while the author and interested parties try to resolve concerns raised by the Court of Criminal Appeals.      

 

Bills on the move

            These bills exhibited signs of life this past week:

 

House bills headed to the Senate

HB 53 by Romero (limits on confidential county settlements)

HB 104 by White (DA notice of indictment to TDCJ Victim Services)

HB 670 by Canales (expunction of certain deferred adjudications)

HB 682 by Wu (extending aggravated assault statute of limitations)

HB 1266 by Geren (notice for hearings in criminal cases)

HB 2328 by Lucio III (expedited PIA response).

 

Bills sent to the House Calendars Committee

HB 72 by Keough (victim-offender mediation in certain criminal cases)

HB 73 by Guillen (Good Samaritan defense for POCS)

HB 344 by Canales (clear and convincing evidence for asset forfeiture)

HB 805 by Dale (exclusionary rule for asset forfeiture)

HB 1404 by Allen (retroactive nondisclosure of certain convictions)

HB 1747 by Minjarez (mail theft)

HB 1820 by Springer (pen packet substitute proof)

HB 1848 by Coleman (repealing offense of homosexual conduct)

HB 2068 by Phillips (repeal and replace DPS driver responsibility program)

HB 2085 by Alvarado (grand juror counseling)

HB 3649 by Herrero (family violence advocate privilege)

HB 3729 by White (Class C alternative consequences)

HB 3978 by Moody (redefining consent/coercion for sexual assault purposes)

SB 7 by Bettencourt (improper teacher-student relationships)

SB 12 by West (funding bulletproof vests for law enforcement)

 

Senate bills headed to the House

SB 239 by Campbell (parental viewing of deceased child before autopsy)

SB 524 by Birdwell (abuse of corpse enhancement)

SB 1253 by West (recording custodial interrogations)

SB 1326 by Zaffirini (competency revisions)

SB 1560 by L. Taylor (no front license plate required for certain cars)

SB 2189 by Huffman (limiting pro tem prosecutor appointments to only government lawyers)

 

Bills eligible for debate on the Senate floor

SB 179 by Menendez (cyber bullying)

SB 323 by Nelson (female genital mutilation)

SB 762 by Menendez (cruelty to animals enhancement)

SB 900 by Huffman (family violence enhancements)

SB 1338 by Whitmire (pretrial release reform)

SB 1477 by West (ransomware)

SB 1588 by Huffines (eliminating annual vehicle safety inspections)

SB 1824 by Burton (punishment revisions for forgery)

SB 1913 by Zaffirini (limiting the consequences for non-payment of court fines/fees/costs)

SB 2238 by Garcia (“sextortion” and revenge porn)

SJR 6 by Zaffirini (notice to OAG by court considering constitutionality of criminal statute)

 

Upcoming floor debates

            The House floor agenda for the upcoming week includes (in order of scheduled consideration):

 

HB 12 by Price (mentally ill defendants)

HB 1504 by Allen (probation condition limitations)

HB 34 by Smithee (preventing wrongful convictions)

HB 2671 by Dean (placing various controlled substances in penalty groups)

HB 3016 by S. Thompson (retroactive nondisclosure of certain convictions, expanded to include DWI and SJF drug offenses)

HB 664 by Canales (probation violation bonds)

HB 1426 by Allen (licensing consequences following deferred adjudication)

HB 3165 by Moody (pretrial release office duties)

HB 435 by K. King (first responders carrying handguns)

HB 681 by Wu (nondisclosure of Class C offenses)

HB 834 by Parker (prohibition on re-homing an adopted child)

HB 2286 by Landgraf (grand juror selection and qualifications)

HB 3872 by Lucio III (subsequent post-conviction DNA testing)

HB 2529 by Meyer (trafficking coercion)

HB 1808 by Meyer (enhancement of trafficking offenses)

HB 2804 by Price (emergency scheduling of controlled substances)

HB 2575 by Meyer (sex offenders at school)

HB 3237 by Moody (confidentiality of search warrant affidavits)

 

            In the Senate, all bills reported from committee are eligible for debate; click for the list of what may be considered from day to day. Otherwise, see the list above under “bills on the move.”

 

Committee hearings

            In the House, this upcoming week’s hearings will be the last trains out of Dodge. House bills not heard by and voted from House committees next week will be unable to get on the final House calendar in two weeks. (The Senate views such deadlines as beneath them, so don’t close the books on unheard Senate bills just yet.) With that in mind, here’s a partial list of what is coming up this week (based on hearing notices received at press time). These lists look a little light on bills right now, but that’s because they will add bills to these lists with little or notice as the week goes on. To see the full agenda and links to the individual bills, click on the committee name.

 

*** MONDAY, MAY 1 ***

 

Senate Finance, 10:00 a.m., Room E1.036

SB 1321 by Hughes relating to Automobile Burglary and Theft Prevention Authority grants

 

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

HB 2049 by Dutton mandating automatic expunctions upon acquittal

HB 2724 by Rose relating to probation fees, etc.

HB 2911 by Lucio III relating to reemployment programs and orders of nondisclosure for veterans

HB 3147 by White expanding expunction eligibility to arrests based on faulty identifications

HB 3773 by Allen relating to persons arrested on out-of-county warrants

 

*** TUESDAY, MAY 2 ***

 

House Public Health, 8:00 a.m., Room E2.012

HB 1939 by Coleman creating civil infractions for the sale of dextromethorphan to minors

HB 2107 by Lucio III replacing existing low-THC cannabis treatments with marijuana

 

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

HB 3824 by Rose altering the mandatory and discretionary duties of peace officers

 

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

[not posted yet; click here for the latest updates]

 

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

HB 1765 by Capriglione removing the cap of county supplements for certain district judges

HB 2892 by Smithee on guardianships

HB 3199 by Smithee revising the composition of the State Bar’s board of directors

HB 3372 by Smithee, the omnibus court creation bill

 

*** WEDNESDAY, MAY 3 ***

 

House Juvenile Justice & Family Issues, 10:30 a.m. or upon adjournment, Room E2.016

HB 596 by J. Jarvis revising the duration of CPS ad litem appointments

HB 3297 by Burrows codifying various parental rights for certain CPS purposes

HB 3316 by Frank changing the venue for certain CPS cases

 

*** THURSDAY, MAY 4 ***

[No hearings posted yet]

 

Roll call

            Bosque DA Adam Sibley manned the store on your behalf this week … Smith ACDA Phillip Smith rode herd on open records bills late into the evening on Monday … Montgomery ADA Lisa Stewart testified in favor of HB 1327 by Metcalf (intoxication crime enhancements) … Bexar ACDA Jim Wheat testified for HB 1997 by Minjarez (pretrial intervention services fee) … Bexar ACDA Jessica Frazier testified for HB 3301 (continuous child abuse) … Ector ADA Kortney Williams testified for HB 3539 by Landgraf (assaulting pregnant woman) … Coryell ADA Jana Kaspar testified for HB 3819 by Howard (improper communication with adult victim) … 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 day at the Capitol!

 

Criminal e-filing

            The Texas Supreme Court and Court of Criminal Appeals recently published amendments to the rules governing statewide electronic filing in criminal cases, effective Monday, May 1, 2017. To view the latest changes, go to http://www.txcourts.gov/media/1438015/179039.pdf.

 

Cybercrimes seminar

            Registration is now open for TDCAA’s Cybercrime Seminar. The course will run from June 7–9 in lovely San Antonio. Topics will cover the collection and use of electronically stored evidence as well as those offenses commonly committed with the assistance of computers. Don’t forget to book your hotel room now—the discounted TDCAA rate expires May 16, 2017!

 

Quotes of the week


“The House wants to take 2.5 billion [dollars] out of the Rainy Day Fund for ongoing expenses, programs, and people. That’s not what that fund is for. We will not spend Rainy Day funds in the Senate, so I’m hopeful we can agree to a budget, on how we fund it, by the end of May. Otherwise we’ll be in a special session.”
            —Lt. Governor Dan Patrick (R-Houston), explaining his view of  budget negotiations between the House and Senate.

 

“I’m not doing that. I didn’t get to be a fat white boy by not eating. … What I need to do is postpone it a couple days and see how hungry she gets.”
            —State Rep. Charlie Geren (R-Fort Worth), House sponsor of the sanctuary cities bill (SB 4), referring in jest to State Rep. Victoria Neave’s four-day fast in opposition to the bill.

 

“We did some checking and we found one letter that was submitted to us by someone who died last June, and people in my district are very hearty and things like that, but that’s pretty much impossible.”
            —State Sen. Kel Seliger (R-Amarillo), referring to the recent “voucher letter” scandal in which a pro-school choice group sent letters of support to legislators purporting to be from Texans who actually do not support that concept or are, in fact, deceased; the letters are now under criminal investigation.

 

“What can you do? My head exploded.”
            —Matt Minor, chief of staff for State Rep. Phil Stephenson (R-Wharton), after discovering that the bill his office filed to name a stretch of highway after a fallen DPS trooper would actually name the road after the trooper’s killer, who was executed in 2005.

 

“I do have a problem with a gazillionaire blowing into Texas and meeting with our officials and suddenly a bill gets fast-tracked. Republicans all run on being free market people except where there’s an asterisk, and then there’s a bunch of exceptions.”
            —JoAnn Fleming, a Tea Party activist, complaining about the special treatment that billionaire Warren Buffett and his company recently received at the state capitol. Read the full story for a good lesson in lawmaking for the rich and famous.

 

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