Legislative Update: Week 18

            As acrimonious as this session has become, we’re pleased to report that only bills were killed this week, not any actual members of the Legislature—although it was touch-and-go there for a bit late last night.

Looking ahead

            On Monday, we will be 18/20ths of the way through the session, which reduces to 9/10ths. Next week will be the final week for committee work. Those groups will meet multiple times next week to hear bills that have already survived the other chamber’s gauntlet, making it probably the last chance for members of the public to slow down or kill any bad bills. And trust us, there are plenty of members of both chambers who are ready to kill each other’s bills if given an opportunity.

            You should also know that the Capitol rumor mill is fanning the flames of a potential special session over the budget—specifically, whether to close the $2.5 billion revenue hole with accounting tricks, money from the Rainy Day Fund, or both. Count us among the skeptics on these rumors. At this late stage of a session, House and Senate leadership always threaten that form of mutually assured destruction (“Give in to my demands or you’ll have to spend another 30 days with me!”), but we are betting that their mutual dislike of each other will lead them to cut a deal so that the governor can avoid making everyone spend any more “quality time” together in Austin.

Grand jury reform moving again

            The end of a session is never dull. For instance, last Saturday afternoon, HB 2640 by S. Thompson (D-Houston)—the grand jury reform bill that had been bottled up in committee for weeks—suddenly showed signs of life. A slimmed-down version was voted out of committee, and only the high volume of other bills ahead of it kept it from getting to the Calendars Committee. By Monday night, that bill was dead—but nothing is ever really dead at the Legislature until they leave town. How so? Well, the same night that bill was dying, we received word that the Senate companion, SB 1424 by Buckingham (R-Lakeway), was going to be heard the next day with little or no notice. We hit the Bat-Signal and prosecutors prepared to oppose it in committee, only to hear through the grapevine that the bill would actually be heard Wednesday morning. Then the bill notice was officially posted—but for 2:00 p.m. on Wednesday, not in the morning. Despite all the feints and false starts, prosecutors dutifully came to Austin to oppose it in person that afternoon, then waited five more hours before the bill came up. Such is life at the Legislature at this stage of a session.

            As for the bill itself, the language considered by the Senate Criminal Justice Committee is not available online, but a copy can be viewed here. In summary, the substitute:

  • Limits grand jury re-presentments;
  • Limits the use of grand juries for investigations;
  • Requires the presentment of exculpatory evidence before a grand jury; and
  • Authorizes the dismissal of a case or the exclusion of evidence as remedy for a prosecutor who violates those new mandates.

While this new version lacks the some of the most unpopular provisions of the filed version (lawyers in the grand jury, transcriptions provided to defense, etc.), it would still invite substantial post-indictment, pre-trial litigation that would strip away grand jury secrecy. And let us not forget that prosecutors have been down this road once before with the Legislature and got burned. When a similar bill was filed on the heels of an indictment of then-Speaker of the House Gib Lewis, a lawyer-in-the-grand-jury bill was fought by prosecutors until compromise language was reached—but when it was taken to the House floor, the deal brokered by prosecutors was busted, several provisions that prosecutors negotiated out of the bill put back in, and the bad bill passed the House. (Prosecutors eventually killed it in the Senate, but only by a whisker.) As a result, prosecutors have good reason to view any version of this type of legislation with skepticism.

            With that background in mind, the hearing before the Senate Criminal Justice Committee went as well as could be expected—the bill was left pending in committee rather than being voted out, and it was clear that several senators had taken to heart the concerns raised by prosecutors. However, there was something of an Alice in Wonderland vibe to the whole discussion, in that this was the second consecutive hearing on this bill at which no author, sponsor, or witness who supported the bill would utter the names that everyone knows are really at the heart of this bill. Oddly enough, the bill’s current form arguably does nothing to fix the alleged problems in those high-profile cases, yet we have it on good authority that both the current U.S. Secretary of Energy and someone whose family donated millions to his most recent failed presidential race have been working behind the scenes to convince members of the Criminal Justice Committee to vote out the bill. If the committee does approve the bill and send it to the Senate floor for full debate, it remains to be seen whether anyone is ever going to publicly point out the obvious and make legislators own whatever it is they do.

            Special thanks go out to the elected prosecutors who came to Austin to testify against this measure: Bell DA Henry Garza, Washington DA Julie Renken, Galveston CDA Jack Roady, Ellis C&DA Patrick Wilson, Burnet DA Sonny McAfee, Taylor CDA Jim Hicks, Colorado C&DA Jay Johannes, Midland DA Laura Nodolf, Yoakum CDA Bill Helwig, and representatives from the Travis, Montgomery, and Tarrant County DA offices. If you have questions or concerns about this legislation, contact Rob.

Surcharge changes?

            The official death of hundreds of bills this week allows other bills that are still moving to come into the spotlight. One of those bills that might interest you is HB 2068 by Phillips (R-Sherman), which would replace the state’s Driver Responsibility Program (DRP, also known as DPS surcharges) with a series of state traffic fines assessed by the court instead of DPS. The hit to drivers’ pocketbooks doesn’t necessarily change—for instance, the current $3,000 surcharge for a standard DWI conviction is simply replaced with a $3,000 state traffic fine due upon conviction, on top of any Penal Code fine assessed as a part of the criminal case. The major difference under this bill is that the courts (rather than DPS) would be the collection agents for this trauma care funding mechanism, so a failure to pay would not result in a license revocation, but in … well, to be honest that’s not clear. A capias pro fine? Laying it out in jail? Community service? Who knows.

            Although dang near everyone in the criminal justice system dislikes the DRP, we’re not sure all of you will agree that this is best solution. Although it had the support of many criminal justice reform groups, no prosecutors, defense lawyers, or judges testified for the bill in committee. It passed the full House last Saturday, so it might be time for everyone in the criminal justice system to take a closer look at this bill—and quickly—before the Senate decides to rearrange to deck chairs on this Titanic. Getting rid of the DRP has some merit, but that might be outweighed if it is done in a way that could be worse that what we have right now. Read the bill for yourself and share it with others in your courthouse to see what they think.           

Big ticket items

            Time for a status check on some of the other major issues that we have been following for you this session (listed here alphabetically). Remember, even though a bill may be dead, the language can live on through an amendment to another bill that is still kicking.

            Asset forfeiture: All “reform” bills are dead.

            Bail bond reform: SB 1338 by Whitmire (D-Houston) is still pending without a hearing in the House Criminal Jurisprudence Committee.

            Budget: Still in conference committee.

            Constitutional carry: Dead.

            CPS reform: The House passed HB 7 by Wu (D-Houston) (legal procedures in CPS cases) and HB 39 by Wu (CPS case management and foster care reform), both of which became “Christmas trees” on the House floor after the author accepted 39 combined amendments for the bills. They now head to the Senate, while the House turns to consider SB 11 by Schwertner (R-Georgetown) on Thursday of next week.

            Death penalty: All bills to limit the death penalty (law of parties, mental illness, abolition, etc.) are dead.

            Drugs: All bills to decriminalize or reduce penalties for marijuana or harder drugs are dead.

            DWI: The deferred adjudication options are dead, but two bills designed to permit non-lawyer JPs in certain counties to issue DWI blood search warrants are still alive in the Senate Criminal Justice Committee (those bills are HB 1727 by Faircloth (R-Dickinson) and HB 2458 by Price (R-Amarillo)).

            Innocence: HB 34 by Smithee (R-Amarillo) on recorded confessions, jailhouse informants, and eyewitness identifications is still pending in the Senate Criminal Justice Committee. SB 1253 by West (D-Dallas)—a stand-alone recorded confessions bill—is still pending in the House Criminal Jurisprudence Committee.

            Juveniles: HB 122 by Dutton (D-Houston), the Raise the Age bill, has not moved in the Senate, and the House author is threatening to kill every Senate bill in his reach if that chamber does not take action on it.

            Mental health: HB 12 by Price (R-Amarillo) passed the House and was referred to the Senate State Affairs Committee.

            The Sandra Bland Act: SB 1849 by Whitmire (D-Houston) passed the full Senate yesterday in a drastically-reduced form, but its fate in the House—where the original bill never made it out of committee—is uncertain.

Bring out your dead

            In the spirit of Monty Python, we bring you a sampling of House bills that died as of this week’s deadlines:

HB 81 by Moody decriminalizing possession of < 1oz. of marijuana (civil fines)

HB 142 by Moody creating an offense of indecent assault vs. an adult

HB 344 by Canales raising the burden of proof in asset forfeiture cases

HB 574 by S. Thompson limiting Class C arrests

HB 667 by Canales banning any waiver of a right to expunction or nondisclosure

HB 805 by Dale applying exclusionary rule to asset forfeiture proceedings

HB 1218 by E. Johnson reducing penalties for prostitution

HB 1268 by Schaefer allowing a prosecutor to challenge a grand juror at impaneling

HB 1274 by Moody lowering parole eligibility for certain youthful 3g offenders

HB 1327 by Metcalf enhancing intoxication assault/manslaughter

HB 1457 by Raymond legalizing certain fantasy sports wagering

HB 1551 by Krause revising/reducing punishments for certain offenses outside the Penal Code

HB 1676 by White creating a statewide capital appellate public defender office

HB 1820 by Springer allowing substitute proof of prior convictions

HB 1911 by White creating a permitless carry system for handguns

HB 2085 by Alvarado authorizing grand juror counseling

HB 2107 by Lucio III expanding low-THC cannabis use to include medical marijuana

HB 2655 by Nevarez prohibiting the unlawful transfer of certain firearms

HB 2680 by Canales standardizing forms for use in criminal courts

HB 3054 by Herrero revising jury instructions in death penalty cases

HB 3080 by Rose banning the death penalty for certain offenders with mental illness

HB 3301 by Gervin-Hawkins creating an offense of continuous injury to a child, et al.

HB 3513 by Faircloth authorizing DNA collection from felony arrestees

HB 3971 by Schofield changing the method for calculating the benchmark judicial salary

Bills on the move

            These bills are all still on the road the final passage:

Bills signed into law

SB 4 by Perry/Geren (sanctuary city ban)

 

Bills sent to the governor

SB 16 by Nichols/P. King (lowering LTC fees)

SB 256 by V. Taylor/Hunter (address confidentiality for certain crime victims)

SB 257 by V. Taylor/Dale (judicial review and duration of certain protective orders)

SB 712 by Hinojosa/Hunter (duration of family violence protective orders)

SB 1203 by Perry/Thompson (ISP subpoenas in certain investigations)

SB 1576 by Perry/King (civil commitment of sexually violent offenders)

SB 1584 by Garcia/Allen (risk assessments before assigning probation conditions)

SB 1871 by Zaffirini/Raymond (oil and gas equipment theft)

 

Bills passed by both chambers with differences

HB 2328 by Lucio III/Watson (omnibus open records reform bill)

SB 7 by Bettencourt/K. King (improper teacher-student relationships)

SB 21 by Birdwell/P. King (convention of the states)

SB 179 by Menendez/Minjarez (civil & criminal consequences for cyberbulling)

 

House bills headed to the Senate

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

HB 362 by Moody (limits on re-arrest and adjustment of bond in certain cases)

HB 731 by Bohac (intimidation by criminal street gangs)

HB 812 by Wu (obstructing a roadway)

HB 1258 by Clardy (electronic court record database)

HB 1935 by Frullo (legalizing the carrying of illegal knives)

HB 1999 by Israel (decriminalizing minor in possession/consumption of alcohol)

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

HB 2533 by Geren (limiting county ability to enforce certain environmental laws)

HB 2552 by S. Thompson (human trafficking and sexual coercion)

HB 2883 by Allen (limiting conditions of probation from a court)

HB 2908 by Hunter (adding peace officers to the hate crimes law)

HB 3150 by Burns (merchant diversion of shoplifters)

HB 3391 by Geren (creating specialty courts for public safety employees)

HB 3649 by Herrero (family violence advocate privilege)

HJR 10 by Smithee (extending terms of elected judicial offices)

 

Senate bills in (or on the way to) the House Calendars Committee

SJR 6 by Zaffirini (notice to AG of constitutional challenge to criminal statute)

SB 1232 by Huffman (bestiality)

SB 1329 by Huffman (omnibus court creation bill)

 

Senate bills headed to the House

SB 50 by Zaffirini (hazing)

SB 630 by Buckingham (submitting PC affidavits to magistrates)

SB 631 by Buckingham (changing venue for disposition of stolen property)

SB 635 by Huffines (plaintiffs’ costs in certain actions against local governments)

SB 1849 by Whitmire (Sandra Bland Act)

 

Bills eligible for debate on the Senate floor

HB 25 by Simmons (eliminating straight-ticket party voting)

Upcoming floor debates

            The House floor agenda for the upcoming week includes (in order of scheduled consideration): SB 302 by Watson (State Bar of Texas sunset bill), SB 12 by West (bulletproof vest grant program), SB 291 by Whitmire (writ of attachment procedures), SB 42 by Zaffirini (court security act), and SB 11 by Schwertner (omnibus CPS reform bill).

            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 “bills on the move” list above.

Committee hearings

            The final committee action for the session is summarized below, based on hearing notices received at press time (to see the full agenda and links to the individual bills, click on the committee name). Most committees will hold multiple hearings next week and add bills to those meetings with little or no notice, but this is what we know as of now:

 

*** MONDAY, MAY 15 ***

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

HB 53 by Romero banning confidential settlements in certain agreements with governmental units

HB 62 by Craddick banning the use of a wireless communication device while driving

HB 1410 by Ortega allowing foster parents to intervene in certain SAPCRs

 

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

SB 227 by Huffman closing the “Adderall loophole” in Penalty Group 2

SB 323 by Nelson criminalizing transport for the purpose of female genital mutilation

SB 524 by Birdwell increasing the penalty for abuse of a corpse

SB 773 by Uresti relating to forcibly medicating certain defendants

SB 900 by Huffman increasing penalties for certain assaultive conduct

SB 1250 by West expanding the admissibility of certain evidence in some family violence cases

SB 1575 by Perry relating to certain offenses committed in a civil commitment facility

 

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

SB 79 by Nelson relating to the production of public information online

SB 1299 by Zaffirini relating to Social Security numbers in criminal history records

SB 1655 by Watson limiting the confidentiality of public information when certain deadlines are missed

 

*** TUESDAY, MAY 16 ***

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

SB 316 by Hinojosa relating to the prescription monitoring program

SB 1183 by Perry revising procedures in competency cases

SB 1326 by Zaffirini revising procedures in competency cases

 

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

SB 1408 by Huffines authorizing certain first responders to carry handguns

SB 1807 by Huffman authorizing federal prosecutors with LTCs to carry in certain locations

 

*** WEDNESDAY, MAY 17 ***

*** THURSDAY, MAY 18 ***

[No relevant hearings posted yet]

Roll call

            In addition to the prosecutors who showed up to oppose the grand jury bill mentioned above, Yoakum CDA Bill Helwig, Midland DA Laura Nodolf, and Midland ADA Tim Flathers served a helpful shift in Austin this week … it was otherwise quiet, but next week will see some fast-and-furious action and we don’t have any volunteers on tap right now, so if you find yourself with an itch to help pass or kill some bills, contact Shannon about coming to Austin for a few days!

Quotes of the week


“If House Bill 122 dies, it’s going to be a big funeral, because a bunch of Senate bills are gonna die.”
            —State Rep. Harold Dutton (D-Houston), author of the “Raise the Age” bill, expressing his displeasure with that bill’s current status in the Senate.

 

“The concept has merit, but the votes are not there on the Senate floor to do it this year. With all due respect to the House, their proposal did not have any funding in the budget they passed, and there was no plan on how to change the juvenile system to successfully accommodate the additional population of 17-year-olds. … If you make this change, you have to do it carefully and correctly, come up with a tight and accurate plan. You can’t just change a system and work out the details later.”
            —State Sen. John Whitmire (D-Houston), explaining his chamber’s reservations about the House’s “Raise the Age” bill.

 

“We’re going to where most people are getting their news nowadays and talking directly to them instead of speaking through a filter.”
            —John Wittman, spokesman for Gov. Greg Abbott, explaining why Abbott signed SB 4, the sanctuary city bill, on Facebook Live on a Sunday evening rather than using a traditional bill-signing ceremony.

 

“We hope that both the governor and the attorney general will seek treatment for an apparent problem with premature litigation.”
            —Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, commenting on the attorney general’s recent declaratory action asking a federal court to find the sanctuary city bill constitutional.

 

“It’s been personal attacks, personal retributions, petty personal politics. And this caucus has had enough of it.”
            —State Rep. Jeff Leach (R-Plano), explaining why the House Freedom Caucus planned to use the House rules to kill more than 125 “local and consent” bills this morning in retaliation for perceived mistreatment by the House Republican leadership.

 

“It’s all Kabuki theater.”
            —State Rep. Rafael Anchia (D-Dallas), while watching a lengthy House floor debate over the wording of an amendment to an otherwise uncontentious bill, one of the many tools House members use to slow down the process in an effort to avoid votes on other bills.

 

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