These are the times that try men’s souls, yada yada yada … read on for impending deadlines, a run-down of where various bills now stand, and a potential action item on grand jury reform, which is still alive thanks to the efforts of the rich and powerful.
On Monday, we will be 19/20ths of the way through the session, which does not reduce. Committee work is basically done as of today, so all that is left for them to do is to debate bills on the floor. The House has posted a calendar for Saturday and might meet Sunday as well, and the Senate is likely to meet on Saturday for the first time this session. We’re gettin’ down to the lick log, folks!
Bills still moving through the system have to run the following gauntlet of deadlines, with the big ones in bold:
Sat., May 20: Last day for House committees to report out Senate bills
Sun., May 21: Final general House calendar for Senate bills must be printed
Tues., May 23: Final day for House to approve Senate bills on 2nd reading
Wed., May 24: Final day for House to approve all Senate bills on 3rd reading
Wed., May 24: Final day for Senate to approve House bills on 3rd reading
Mon., May 29: Legislature adjourns sine die (“without day” [for returning])
So, by this time next week the only legislation still alive will be measures on their way to the governor’s desk or those that passed each chamber in different forms, with the latter group of bills having until Sunday, May 28 to reach a consensus. Everything else will be dead.
Tensions between the House and the Senate and the Governor’s Mansion have not eased over the past week—if anything, the special session brinkmanship has only increased. But that doesn’t necessarily mean the chances of a special session have increased. The key thing to remember through all of this special session talk is that only a governor can call one, so no matter how much letter-leaking and press-conferencing the leaders of the two chambers do, there’s only one vote that matters on that issue. Right now, that person is publicly backing the Lt. Governor on two hot-button issues at which the House is balking—the “bathroom bill” and local property tax caps—but talking a big game is easy; following through on that is not. That’s especially true during a session in which the governor can claim victory after the Legislature passed legislation on all four of his announced emergency items: sanctuary cities, ethics reform, CPS reform, and a constitutional convention of the states. As a result, we remain skeptical about the likelihood of things melting down to the point where a special session is needed—but we are open to the possibility, especially now that the parties involved are apparently only speaking to each other through the media (never a good sign, as any Hollywood divorce lawyer can tell you).
Grand jury “reform” update
The primary undecided criminal reform issue of the session for prosecutors is the grand jury “reform” bill being pushed by TPPF/Right on Crime activists and those still sore over the criminal indictment of some of the politicians they support. (Oh, you know who we are talking about.) With the House “reform” bill failing to clear the necessary hurdles, those special interests placed all their eggs in the basket of SB 1424 by Buckingham (R-Lakeway), which was voted out of the Senate Criminal Justice Committee on Tuesday afternoon in yet another new form (click here for the latest committee substitute). For more information on what is now in the bill and what is still left unanswered by the bill, see the attached memo we have prepared.
To get to the House in time to clear the deadlines in that chamber, SB 1424 must pass the full Senate on Friday. With that in mind, the bill has been set on both the Senate Intent Calendar and the Senate Local and Uncontested Calendar for Friday. While any single senator may raise a written objection to the consideration of a bill and “knock” that bill off the Local and Uncontested Calendar, the point is moot if the author gets recognized on the Senate floor to pass the bill off the Intent Calendar. So, considering the fact that this bill only caught fire at this late stage due to the wishes of the Senate’s presiding officer, it is likely this bill will end up being sent to the House sometime on Friday. Then things will get interesting, because without some intervention on the part of that chambers’ presiding officer, the bill is unlikely to get referred to a committee, voted out of that committee, reported from that committee, and placed on a calendar by Sunday at 10:00 p.m., the House deadline for such items. If there is any indication of that happening, we will try to alert you over the weekend.
If you have questions about this bill, contact Rob by email or at (cell) 512/971-8425.
What’s still in play?
Here are some relatively random updates on things we have been following when time permits. Think of it like an Alaskan stream full of salmon, and we are the grizzly bear on the riverbank grabbing what opportunity presents us while most of the other juicy morsels swim by to their final destination.
Asset forfeiture: Still dead.
Bail bond reform: Dead. The Senate bill lacked the votes to get out of the House Criminal Jurisprudence Committee because of the work of the bail bondsmen lobby.
Budget: Still in conference committee. Media leaks indicate that the Senate may consider dipping into the Rainy Day Fund for some revenue to close the current funding gap, which could be the final piece of the puzzle needed to put this thing to bed. And if the budget is agreed, then the chances of a special session drop dramatically.
CPS reform: HB 7 by Wu (D-Houston) (legal procedures in CPS cases) and HB 39 by Wu (CPS case management and foster care reform) were heard in the Senate Health and Human Services Committee yesterday and were left pending. Today, SB 11 by Schwertner (R-Georgetown)(major privatization/community-based foster care reform) and its 43 pre-filed floor amendments were debated on the House floor; that discussion in the House will be finalized on third reading tomorrow.
DPS surcharges: HB 2068 by Phillips (R-Sherman) was voted out of the Senate Transportation Committee on Wednesday. The JP Association thinks it’s the greatest thing since sliced bread, but that might be because they wouldn’t have to handle the DWI cases tagged with mandatory minimum fines of $3,000–$6,000, so take their opinion with a grain of salt. Other advocates are opposed to it for various reasons, but the most interesting point might have been the testimony against the bill from the Harris County Public Defender’s Office, whose representative pointed out that imposing on criminal defendants new state fees that are directed (in part) to the state’s general revenue fund seems like a pretty blatant violation of the CCA’s recent opinion in Salinas v. State (March 2017). Perhaps that will be a topic of discussion on the Senate floor—or not. At this late stage of session, there isn’t always a lot of deliberative debate.
Drugs: All bills to decriminalize or reduce penalties for marijuana or harder drugs are dead. SB 227 by Huffman (R-Houston) to fix the “Adderall loophole” has been referred to the House Local and Consent Calendar Committee.
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)).
Elections: It’s been awhile since we’ve mentioned this, but HB 25 by Simmons (R-Carrollton) to eliminate single-party general election voting passed the House on a mostly party-line vote two weeks ago, and on Wednesday, it passed the Senate on a similar vote after the sponsor amended it to delay implementation until the 2020 general election. That may be prudent, seeing as how opponents have laid the groundwork for a challenge to the constitutionality of eliminating straight-ticket voting in Texas.
Family violence: HB 3649 by Herrero (D-Robstown) creating a confidentiality privilege for certain family violence counselors is stuck in the Senate State Affairs Committee. SB 900 by Huffman (R-Houston) to increase certain family violence penalties, create a continuous injury to a child offense, and make other changes is similarly stuck in the House Criminal Jurisprudence Committee.
Guns: Constitutional carry (in all variations) is dead. Two bills to allow certain first responders with LTCs to carry while on duty are still moving (HB 435 by K. King (R-Canadian) and SB 1408 by Huffines (D-Dallas)). No courthouse-related gun legislation was ever filed, but we have heard of some possible floor amendments waiting in the wings, so we will keep an eye on that and let you know if anything sticks.
Indigency: SB 1913 by Zaffirini is another bill from the Texas Judicial Council that has had a bumpy ride this session, but it is still moving forward. The bill would allow (require?) judges to waive fines, fees, and/or costs for indigent defendants or others unable to pay, resulting in a negative (but undetermined) fiscal impact to the state (and perhaps your local cities and counties). The municipal court judges have been fighting this bill but look to have thrown in the towel this week after it was voted out of the House Criminal Jurisprudence Committee. It now awaits consideration by the House Calendars Committee.
Innocence: HB 34 by Smithee (R-Amarillo) on recorded confessions, jailhouse informants, and eyewitness identifications has still not been referred to a committee, so consider it dead. However, SB 1253 by West (D-Dallas) requiring certain felony custodial interrogations to be recorded—was approved by the House Criminal Jurisprudence Committee and now heads to the Calendars 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) is still pending without a hearing in the Senate State Affairs Committee, where it might be a hostage (because it was a priority issue for the speaker); meanwhile, a similar bill—SB 1326 by Zaffirini (D-Laredo)—is in the House Calendars Committee.
Nondisclosures: HB 3016 by S. Thompson (D-Houston) was voted out of the Senate Criminal Justice Committee last week after MADD agreed to support the sealing of certain DWI convictions if the bill included an interlock requirement for some of them. (As if we needed further proof that MADD is now a wholly-owned subsidiary of the ignition interlock industry.)
The Sandra Bland Act: SB 1849 by Whitmire (D-Houston) has found late life this session. After the House companion (HB 2702 by Coleman (D-Houston)) died in the House Homeland Security & Public Safety Committee, the Senate bill was pared down, passed through the Senate, passed through the House Criminal Jurisprudence Committee with little notice and no hearing, and placed on the House calendar for Friday. The only way that happens so quickly is if the House and Senate leadership want it to happen, so chalk up this late movement to recent tragic events in Balch Springs.
Texting while driving: HB 62 by Craddick (R-Midland) cleared the Senate State Affairs Committee and now heads to the Senate floor, where it faces another tough road before final passage.
These bills will become law or are still on the road to becoming law:
Bills signed into law
SB 843 by Perry/Herrero (confidentiality of Crime Victims Compensation information)
SB 1576 by Perry/K. King (civil commitment facility operation for sexually violent offenders)
Bills sent to the governor
HB 100 by Paddie/Schwertner (pre-emptive statewide regulation of rideshare companies)
HB 873 by Pickett/Hughes (limiting private business’s ability to prohibit peace officers from carrying firearms)
SB 7 by Bettencourt/K/King (educator/student relationships and “pass the trash” restrictions)
SB 1584 by Garcia/Allen (limits on imposing conditions of probation)
Bills passed by both chambers with differences
HB 25 by Simmons/Hancock (eliminating straight-ticket voting in general elections)
HB 29 by S. Thompson/Huffman (omnibus human trafficking bill)
HB 834 by Parker/Birdwell (ban on “re-homing” an adopted child)
HB 1819 by Springer/Perry (firearm silencers)
SB 21 by Birdwell/P. King (constitutional convention of states)
SB 42 by Zaffirini/Smithee (court security)
SB 179 by Menendez/Minjarez (criminal cyber bullying)
SB 291 by Whitmire/Alvarado (writ of attachment procedures)
SB 302 by Watson/S. Thompson (State Bar of Texas sunset bill)
SB 312 by Nichols/Gonzales (TxDOT sunset bill)
House Calendars Committee
The final general House calendar with Senate bills must be posted by 10:00 p.m. on Sunday evening. Among the Senate bills in that committee that still have not been placed on a calendar are:
SB 327 by Burton/S. Thompson (nondisclosure fee waivers)
SB 524 by Birdwell/Geren (abuse of a corpse enhancement)
SB 762 by Menendez/Moody (animal cruelty enhancement)
SB 1090 by Lucio III/Davis (tethering a dog)
SB 1253 by West/Smithee (recording certain custodial interrogations)
SB 1322 by Kolkhorst/? (child pornography enhancements)
SB 1823 by Burton/Koop (warrants for cell phones)
SB 1913 by Zaffirini/S. Thompson (waiving fees, fines, and costs for offenders)
If you know a member of the Calendars Committee, your input can help get these bills set on the final House calendars (or not). Proceed accordingly.
Upcoming floor debates
The House floor agenda for Friday and the upcoming weekend includes (in order of scheduled consideration): SB 2 by Bettencourt/Bonnen (local property tax limits), SB 8 by Schwertner (partial birth abortions and related criminal offenses), SB 30 by West (school instruction on interactions with peace officers), SB 1849 by Whitmire (Sandra Bland Act), SB 1264 by Huffman (counseling for grand jurors), and SB 1232 by Huffman (bestiality)—but more will be added as they go.
In the Senate, all bills reported from committee are eligible for debate; click that link for the list of what may be considered from day to day.
Quotes of the week
“Texas is also looking at right-sizing the initial line of defense to the criminal justice system: the grand jury. The grand jury has turned from a protection from the state for the accused into a system entirely run by the government. A bipartisan bill that was heard recently in a Senate committee would address some of the biggest problems facing the system today, such as a requirement for the government to introduce exculpatory evidence, providing the defendant a transcript of the proceeding, and allowing counsel in the room while their client is testifying.”
—U.S. Secretary of Energy Rick Perry, in an op-ed appearing *today* in the Houston Chronicle. [Either no one told our ex-governor what is currently in SB 1424, or he is counting his floor amendment-chickens before they hatch.]
“It was a straight-out attack on all law enforcement over a tragic suicide in a county jail. Appropriately, now we’re talking about mental health diversion.”
—Charley Wilkison, executive director of CLEAT, explaining why law enforcement groups opposed the original version of the Sandra Bland Act.
“I think there are a bunch of people who are obtaining marijuana cards, not for a true medical reason, but for justification for them to smoke marijuana legally.”
—New Mexico State Rep. Bill Rehm (R-Albequerque), commenting on the 84-percent increase in the number of medical marijuana card holders in that state over the past year.
“Sometimes it comes down to, ‘Am I more afraid of the lobby or am I more afraid of the grassroots?’ At any given moment [lawmakers] are making that kind of calculation—and we won this one.”
—JoAnn Fleming, Tea Party activist from Tyler, explaining why the “Buffett bill” (to create a special carve-out for some companies owned by billionaire Warrant Buffett) failed to pass this session.
“What is our leverage now on that guy?”
—State Rep. Larry Gonzales (R-Round Rock), in (unsuccessful) opposition to an amendment to his SB 312, the TxDOT sunset bill, that changes criminal enforcement of toll non-payment into civil actions that must be filed by prosecutors to recover $25 (!) fines.
“My experience in the House is that the House doesn’t take threats terribly well.”
—Speaker of the House Joe Straus (R-San Antonio), earlier this week.
“The cities and counties refuse to accept any version of Senate Bill 2, so I look forward to working with the governor and the lieutenant governor to shove it down their throat in a special session.”
—State Rep. Dennis Bonnen (R-Angleton), colorfully expressing his frustration with the local government groups who fear that a watered-down version of a local property tax caps bill could metastasize by amendment on the House floor.