Legislative Update: Week 9

            With Spring Break approaching for most of the state, we thought we’d try to get this on your radar one day evening earlier. The Legislature won’t be going on Spring Break, but who needs to go to South Padre when there’s plenty of bills on excessive drinking, bad behavior, and indecent groping to discuss right here in Austin?

Looking ahead

            We are 9/20ths of the way through the session, which does not reduce … we’ll try to dig out from under the 2,000 or so bills that will be filed this week in an attempt to beat the Friday evening deadline, but it may take us another week or two to get caught up … and we’re going to try to avoid the SXSW Festival tourists who will flock to the Capitol for post-hangover tours while wearing longshoremen caps (in 80*F weather), sunglasses (indoors), ironic t-shirts, and skinny black jeans … read on for more!

Grand jury secrecy (and prosecutors) in the crosshairs—again

            In response to complaints about the composition of grand juries (at least in one case out of Houston that got a lot of publicity), we saw some major changes to how judges may select grand jurors last session. Grand jury commissioners went the way of the dodo bird, but with some jurisdictions struggling to get enough qualified grand jurors, we now have several bills that would at least increase the number of prospective grand jurors that can be summoned, including HB 991 by Thompson (R-Pearland) and HB 2286 by Landgraf (R-Odessa), the latter of which was suggested by the court clerks association. There’s also SB 1264 by Huffman (R-Houston) and its companion, HB 2085 by Alvarado (D-Houston), which would allow your offices to provide counseling services to grand jurors after their term has expired, just as you can currently do with petit jurors.

            Despite these new proposals, most bills that would amend current grand jury procedures are likely to cause you some heartburn. For instance, there are bills to record and release grand jury testimony relating to police officer misconduct (HB 158 by Dutton (D-Houston)), to record all testimony relating to misconduct by any government employee (HB 324 by Canales (D-Edinberg)), and to allow defense lawyers in the grand jury room to consult with their clients who are targets of a grand jury investigation (HB 1714 by Reynolds (D-Missouri City) and SB 1058 by West (D-Dallas)).

            And then there is HB 2640 by Thompson (D-Houston) and its Senate companion, SB 1424 by Buckingham (R-Lakeway). These are the comprehensive grand jury reform bills proposed by the Right on Crime outfit, who apparently cribbed several of their ideas from a wish list put out by the National Criminal Defense Lawyers Association (NACDL). These identical bills include the following provisions:

  • All witnesses—both targets and fact witnesses—have a right to be accompanied and advised by a defense lawyer while in the grand jury
  • Indigent persons are entitled to appointment of counsel for that purpose
  • Witnesses are entitled to “reasonable” notice of their appearance so they can consult with their lawyer
  • Lawyers for those witnesses are entitled to full discovery before those witnesses appear in the grand jury
  • All testimony and proceedings (other than deliberations) before a grand jury must be recorded
  • After a no-bill, no future grand jury may re-investigate the case absent new, “material” evidence
  • The prosecutor is under a statutory duty to offer exculpatory evidence to the grand jury
  • After the grand jury process concludes, the target can sue the prosecutor to recover litigation costs, attorney’s fees, etc., if the court finds that the grand jury investigation was “not substantially justified” and was vexatious, frivolous, or in bad faith
  • Prosecutors’ immunity is abolished for purposes of this lawsuit, and if the judge rules against the State, either you individually or your office must pay up (the bill is unclear on that)
  • No word yet what happened to the proverbial kitchen sink, but it’s probably buried in there somewhere as well

            Prosecutors have historically resisted efforts to mandate allowing a defense attorney in the grand jury because it would change the very nature and purpose of these investigative/probable cause proceedings into adversarial proceeding—without a judge to referee, either. And because every Texas felony case must have an indictment, this could get very messy very quickly, for all the reasons you can imagine: Rambo-lawyer deposition-style behavior, leaks of secret investigation information to other potential targets, purposeful delays designed to blow various deadlines, uncooperative witnesses skipping town or being coached by their lawyers, a veritable assembly line of false grievances and specious lawsuits against prosecutors who dare to investigate the rich and powerful, increased local costs across the board in all felony investigations, and more.

            If all of this is new to you, then it may be time to start thinking about it. We have previewed this issue before (see updates from October 2016 and Session Week 2) and also sent out links from the group pushing this measure that provide some insight into their game plan (see this ROC white paper and this TPPF policy primer [starting on page 92] for more information). And those of you who have been around for a really long time might even remember past versions of this bill way back in 1991 and 1993 (filed by the same House sponsor), when prosecutors went to the mattresses to protect the integrity of the grand jury system in the wake of indictments against a sitting Attorney General and two Speakers of the House. Those grand jury bills failed to pass then—and with good reason—but there’s no guarantee history will repeat itself now.

            As with several other criminal justice issues, we find that some legislators who don’t know much about grand juries are learning about them from sources with little or no practical experience of their own, which leads to serious misunderstandings—but also presents opportunities for experts like you to educate and assist your legislators. If you haven’t already done so, now would be a good time to broach this subject with your legislators and make sure they have a solid understanding of what your local grand juries do and how they do it. For more information on this topic, contact Rob.

Mental health on the radar

            The leadership of both chambers has gone on record to say that fixing the forensic mental health system is a priority this session, but that issue has not received much attention so far. Some of that repair work will (hopefully) be fiscal in nature, but there will also be legislation, and the major bill on the topic is likely to be SB 1326 by Zaffirini (D-Laredo), which was filed Monday, or SB 1183 by Perry (R-Lubbock), which was filed the previous week.

            These bills are a product of the Texas Judicial Council, in collaboration with the Department of State Health Services (DSHS), which currently oversees mental health issues. One major aspect of the bills is to reduce the state hospitals’ work load: First, by limiting the number of incompetent offenders for whom the state is responsible by requiring out-patient or county jail-based competency restoration; and second, by requiring the dismissal of charges against any misdemeanor offenders who are not quickly restored to competency in their local community.

            Now, if your first response upon reading (and re-reading) that explanation is to say, “Wait a minute—the State is going to require us to locally restore defendants to competency, and if we fail in a misdemeanor case, then we must dismiss the charge rather than send them to a state hospital to be restored to competency?!?”—well, yes. And yes, such a short-sighted policy at the state level is likely to result in inappropriate releases and increased recidivism, but from a state budget perspective, it makes perfect sense to balance the funding scales by reducing demand for an expensive product that they cannot (or choose not to) provide. You could coin this policy as the “If you can’t treat ‘em, enjoin ‘em” plan.

            That said, our initial inquiries with the bill authors’ offices asking whether they would be open to possible changes in the bill were welcomed, and we have reason to believe that a more nuanced approach may be adopted at the committee stage—but that doesn’t happen unless you get involved. If you have an interest in mental health cases, you should read both bills in their entirety (there is some overlap between the two, but they are not identical) and then contact Shannon for more information on where these bills will go from here and what you can do about them.

Property taxes

            As predicted last week, on Tuesday, the Senate Finance Committee will take testimony on SB 2 by Bettencourt (R-Houston), the “Texas Property Tax Reform and Relief Act of 2017.” As described by the author’s bill analysis, SB 2 lowers the property tax rollback rate from 8% to 4%, triggers an automatic rollback election if the cap is exceeded, and enhances accountability by creating a Property Tax Administration Advisory Board in the comptroller's office to oversee the appraisal process. We mention this bill because the defeat of this measure is a top priority of the Texas Association of Counties, which argues that a property tax cap would severely hamstring local government funding. You can find more information about TAC’s take on this bill here. You can tell from the low bill number that this is a priority issue for the Senate leadership, and we have heard that both sides of this issue are interested in getting prosecutors to support their conflicting positions, so be sure to educate yourself before jumping into anything on this front.

Prison closings

            One budget issue flying somewhat under the radar is the behind-closed-doors negotiations going on right now regarding TDCJ’s excess prison capacity and how to address it. Right now, TDCJ’s average daily capacity is roughly 4,500 beds below its maximum capacity—although that is a little misleading, because the agency could not safely house the maximum due to staff shortages and other resource limitations. In addition, the bean counters’ projections are that the adult prison population should not dramatically increase anytime soon. Therefore, after closing four TDCJ units over the past five years, state budget writers see this latest trend as another opportunity to shutter or sell off some units and re-purpose others to help balance the next budget. Units currently on the chopping block include the Ware Unit (Mitchell County), the Bartlett State jail (Williamson County), the West Texas ISF (Terry County), and the Bridgeport Pre-Parole Facility (Tarrant County), while the Rudd Unit (Terry County) would be retrofitted to replace the West Texas ISF. In all, more than 2,700 prison beds could be taken off line, reducing the size of Texas' prison system to about 145,000 (10,000 less than its capacity just three years ago).

            And before you ask—no, we know of no plans to re-invest any of the projected savings from these closings back into treatment, rehabilitation, or other sentencing alternatives. This appears to be a pure cost-avoidance maneuver to help balance the state budget. As is often the case, the criminal justice system is seen more as a source of funding rather than something to be funded.

Scattershooting

            The full Senate approved SB 7 by Bettencourt (R-Houston), which expands the scope of the offense of Improper Educator/Student Relationship and makes other changes intended to prevent schools from “passing the trash” (read: allow naughty teachers to transfer elsewhere and be naughty all over again) … and the Senate Criminal Justice Committee approved SB 12 by West (D-Dallas) creating a bulletproof vest grant program; SB 1138 by Whitmire (D-Houston) creating a “Blue Alert” notification system to help apprehend suspects who have injured officers; and SB 798 by Huffines (R-Dallas) designating every July 7—the day of the 2016 ambush that left five Dallas officers dead—as Fallen Law Enforcement Officer Day.

            Over in the House, the Criminal Jurisprudence Committee approved HB 268 by Lozano (R-Kingsville) to expand venue in retaliation cases … the Juvenile Justice Committee took two hours of testimony on HB 122 by Dutton (D-Houston), the “Raise the Age” bill, where a juvenile probation chief brought up the as-yet-unfunded $35 million/year fiscal cost to the state should the bill pass … and the House Judiciary Committee heard heated debate over HB 1258 by Clardy (R-Nacogdoches), the court clerks’ bill to throw a monkey wrench in the Office of Court Administration’s plan to digitize and make available online all court documents throughout the state.

New bills to watch

            We are drowning under the deluge of bills being filed before tomorrow’s deadline, which increases our anxiety level knowing that we don’t know what’s out there. The good news is that none of the bills filed this week will be referred to a committee for at least a week, giving us time to catch up. With that in mind, here’s a very, very skinny sampling of what has been filed this week (there are too many to link individually, so plug the bill number into http://www.capitol.state.tx.us/ to read it):

HB 2702 by Coleman relating to law enforcement actions, aka “the Sandra Bland Act” (more on this next week)

HB 2707 by White creating a 72-hour grace period prior to forfeiture of bail bonds

HB 2770 by Smithee creating a common nuisance action for the misuse of certain computer networks connected to the sex trade

HB 2841 by Munoz authorizing county auditors to investigate other officials’ alleged misuse of county funds or property

HB 2863 by White revising the confidentiality, sharing, sealing, and destruction of juvenile records

HB 2873 by Smithee creating a writ for innocence initiated by the State

HB 2879 by Dutton revising and limiting sex offender registration for juveniles

HB 2883 by Allen limiting judges’ ability to set conditions of community supervision

HB 3080 by Rose excluding persons with severe mental illness from the death penalty

HB 3107 by Ashby authorizing OAG to pursue certain PIA actions upon prosecutor inaction

HB 3127 by Smithee implementing the recommendations of the Timothy Cole Exoneration Review Commission (informants, recorded confessions, eyewitness ID, etc.)

HB 3289 by White restricting judges’ ability to revoke probationers for technical violations

HB 3301 by Gervin-Hawkins increasing penalties for continuous injury to a child/elderly/disabled individual (proposed by Bexar County CDA Nico LaHood)

HB 3513 by Faircloth expanding the collection of DNA samples from felony offenders (proposed by Chamber County DA Cheryl Lieck)

SB 1201 by West governing the release of bodycam footage to the subject of that recording

SB 1203 by Perry relating to certain subpoenas for online service providers

SB 1226 by Huffman, this session’s omnibus human trafficking bill

SB 1253 by West requiring the electronic recording of custodial interrogations

SB 1293 by Buckingham making it a criminal offense for a prosecutor to solicit a gift/grant as part of a pretrial diversion program

SB 1461 by Hinojosa reducing penalties for SJF-level POCS offenses

SB 1728 by Birdwell limiting a court’s authority to close certain juvenile proceedings to the public (proposed by Tarrant County CDA Sharen Wilson)

We’ll hopefully get caught up with the last of the “late train” bills next week. Meanwhile, check our live tracking updates on the Legislative page of our website. If you are curious to know exactly what bills we are tracking under any other category, email Shannon and he can send you a list that will include hyperlinks to each bill’s text online. 

Floor debate

            Tomorrow marks the 60th day of the session, meaning that both chambers can start debating and passing non-emergency legislation for the final 80 days of the session. Those floor calendars change daily, but we’ll try to let you know what may be coming up for floor debates when possible.

            The Senate will dedicate its first day of general floor debate on Monday to the consideration and passage of three pro-law enforcement bills approved by the Criminal Justice Committee this week. Like most things in the Senate these days, there will be little drama associated with the outcome of these bills. Later in the week, though, the Senate may take up SB 6 by Kolkhorst (R-Brenham), aka the bathroom bill; SB 8 by Schwertner (R-Georgetown) regarding abortions and fetal tissue; and other priority items from the Senate leadership’s wish list, some of which will more than make up for the lack of drama on Monday.

            Across the rotunda, very few bills have made it through the House committee process yet, so it will be another week or two before things heat up on the House floor.

Committee hearings

            As far as we know, not a single prosecutor came to town to testify in committee on, for, or against a bill last week. We know that’s not going to happen this upcoming week, but still, it’s a good reminder that you cannot rely on your fellow prosecutors (or TDCAA) to speak for you on issues that concern you. If you see something you do or don’t like, the most critical time to get involved is at the committee stage, because a bill that is approved by a committee has a slightly better-than-even chance of reaching the governor’s desk.

            With that in mind, 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 13 *** 

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

SB 5 by Huffman requiring a voter to present proof of identification; providing a criminal penalty

SB 31 by Zaffirini banning the use of a wireless communication device while driving

SB 712 by Hinojosa extending the duration of certain family violence protective orders

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

HB 81 by Moody decriminalizing possession of <1 oz. of marihuana and replacing it with a civil fine

HB 130 by Dutton reducing state jail felony punishments for POCS/POM to Class A misdemeanors

HB 269 by S. Thompson allowing prostitution convictions to be re-opened, overturned, and expunged upon proof of human trafficking victimization

HB 281 by Howard creating a statewide tracking system for rape kits

HB 362 by Moody revising the procedure for re-arrest and adjustment of a bond amount upon formal charging

HB 669 by Canales relating to the printing of a magistrate's name on certain signed orders

HB 682 by Wu extending the statute of limitations for aggravated assault to three years

HB 833 by P. King authorizing online educational programs for certain intoxication offenders on probation

HB 1088 by Muñoz creating the offense of prohibited conduct by a bail bond surety

HB 1218 by E. Johnson reducing penalties for the offense of prostitution

HB 1676 by White creating the statewide office of capital appellate defender

HB 1729 by Neave establishing and funding a grant program for rape kit exams
 

House Elections, 2:00 p.m. or upon adjournment, Capitol Extension Room E1.026

HB 25 by Simmons eliminating straight-ticket voting based on political party

 

*** TUESDAY, MARCH 14 ***

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

HB 56 by Flynn authorizing the carrying of a handgun by a first responder

HB 435 by K. King relating to weapons laws and liability for certain actions of volunteer emergency services personnel licensed to carry a handgun

HB 893 by Raymond creating a public database of certain intoxication offenders.

HB 1383 by Alvarado establishing a statewide electronic tracking system for evidence of a sex offense.

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

SB 227 by Huffman returning certain substances to Penalty Group 2

SB 325 by Burton relating to prosecutors filing for expunctions after acquittals

SB 326 by Burton relating to the authority of a court to return certain fees upon expunction

SB 343 by Perry relating to improper sexual activity with a probationer

SB 1124 by Hinojosa relating to the Texas Forensic Science Commission
 

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

HB 53 by Romero prohibiting confidential settlement of claims and actions against a governmental unit

HB 240 by Hernandez relating to evidence in a suit to abate common nuisances related to massage parlors

HB 715 by Wu relating to evidence in a suit to abate common nuisances related to massage parlors

HB 1487 by Smithee, the Judicial Council’s omnibus court security act

 

*** WEDNESDAY, MARCH 15 *** 

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

HB 461 by Dale relating to service of a temporary ex parte protective order

HB 677 by Wu authorizing the sealing of determinate sentence probation records

HB 678 by Wu authorizing a plea or stipulation of evidence in a determinate sentencing procedure

HB 679 by Wu prohibiting mechanical/physical restraints on a child in juvenile court

HB 834 by Parker prohibiting certain actions regarding the rehoming of an adopted child

Defense and Veterans Affairs, 10:30 a.m. or upon adjournment, Capitol Extension Room E1.026

HB 322 by Canales creating a free right to expunction upon completion of veterans court

Roll call

            Thanks to Val Verde County Attorney Ana Markowski Smith for driving all the way to Austin to get a first-hand glimpse at the sausage-making process … Bexar County Criminal DA Nico LaHood appeared at a Capitol press conference for SB 1436 by Uresti (D-San Antonio) and its companion, HB 3301 by Gervin-Hawkins (D-San Antonio), to increase child abuse penalties … 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! 

Training reminder

            Our Prosecuting Violent Crimes Course in April is now open for registration! The seminar will be held April 11-14 in Houston. For more information or to register online, visit our training webpage.

Quotes of the week


“Part of the ‘Sandra Bland Act’ will be to remove from the law the ability to arrest someone for a minor traffic violation or to use what we would call an investigative stop—pulling someone over for that minor traffic violation—to investigate a different crime than the traffic violation.”
            —State Rep. Garnet Coleman (D-Houston), referring to HB 2702, aka the “Sandra Bland Act.”

 

“We have a very conservative governor, lieutenant governor, Senate, and House. To get all that through, there’s going to be a real battle, and our lobbyists are talking to them. They’re not going to want to let crime run rampant and give everybody free bonds.”
            —Michael Kubosh, a Houston City Council member and long-time commercial bail bondsman, on the budding battle over the state judicial council’s bill to dramatically increase the use of personal bond throughout the state.

 

“The bottom line is that we have to tighten up operations, and this is a result of that. We have no choice.”
            —State Rep. James White (R-Hillister), chairman of the House Corrections Committee, on state budget writers’ emerging plan to close or re-purpose four TDCJ units.

 

“It really comes down to cost.”
            —State Rep. Kyle Biedermann (R-Fredericksburg), pointing out the $35 million-per-year fly in the ointment during this week’s House committee debate on raising the age of juvenile jurisdiction to include 17-year-olds.

 

“The brow-beating—I think the volume’s up a lot higher than we’ve seen in the past. Using a brow-beating approach in governing never bodes well for anybody.”
            —State Rep. Lyle Larson (R-San Antonio), explaining how certain members of the House Republican leadership view the comments coming from Lt. Gov. Dan Patrick (R-Houston) about the pace of their work this session.

 

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