Interim Update: August 2016

Don’t talk to us about presidential politics, global unrest, or climate change—football is back, and all is right with the world again.

Pre-trial release and bail bond reform

            One of the hot topics for next session will be pre-trial release. To date, the issue has a received a lot of heat but not much light (at least when it comes to figuring out what the actual reform proposals will be). However, some of the fog over the issue lifted earlier this month when the Texas Judicial Council (TJC) adopted the general recommendations of its Criminal Justice Committee and tasked the staff at the Office of Court Administration with drafting proposed legislation to implement those recommendations. It is unclear at this time whether that draft will be the primary reform bill on this issue next session, but it’s a good starting point for conversation.

            In short, the TJC recommendations would drastically reduce (or end?) the use of surety and cash bonds and create a pre-trial risk assessment system for use throughout the state to be administered and supervised by local pre-trial services offices (but with exceptions to that general rule). Specifically, the 8-point plan recommends that:

1)     Defendants be administered risk assessments prior to magistration under CCP Art. 15.17

2)     The state constitution be amended to provide for a presumption of pretrial release

3)     The state constitution be amended to allow defendants with a high risk of flight/recidivism to be held without bail pending trial

4)     Funding for pre-trial assessment and supervision be provided by the Legislature

5)     Judges and magistrates be trained on pre-trial release decision-making

6)     Data on pre-trial release be collected and reviewed for future policymaking

7)     The CCA be given rulemaking authority to implement these provisions

8)     Any changes be phased in during a transition period

It is still way too early to tell what this will look like in bill form, or what its chances of passage will be. And remember, this is just one set of recommendations; other recommendations from advocates include providing a right to counsel at magistration hearings, eliminating bond schedules, instituting appeal procedures for continued detention, and prohibiting arrest and pre-trial detention for most Class C misdemeanors. In other words, there will be a lot of ground to cover on this topic next session, so we will bring you more information as it arises. Meanwhile, if you have specific questions about any of this, please contact Shannon.

Open carry letter

            We know that most of you received a letter earlier this month from the Senate Committee on State Affairs requesting information on the number of open carry incidents in your jurisdiction (if any). If you received one of these letters, you are not alone—it was sent to all entities in the state that employ a peace officer. The purpose of the letter is to help Chairwoman Joan Huffman (R-Houston) and her committee get a handle on the implementation of open carry and confirm their suspicions that things are going relatively smoothly. We encourage you to consider replying to the letter if you haven’t already done so, even (especially?) if you have not had any open carry problems in your jurisdiction. That information will be relevant to future debates about peace officers’ discretion to interview those openly carrying a handgun in public, something that is sure to create a ruckus again next session. If you have any further questions about this topic, contact Shannon.

Interim hearing recap

            Things were pretty slow at the Capitol this past month. The most relevant interim discussions were probably at the Senate Criminal Justice Committee’s hearing on asset forfeiture and cyber bullying. On the latter point, the committee heard very emotional testimony from the families of children who had been subjected to some terrible, horrible, no good, very bad social media harassment. However, the extent to which that will translate into a new law is still unclear.

            Meanwhile, the committee members had an open, free-flowing discussion of current asset forfeiture practices in the state. If you’ve been following our previous updates on this topic, then we can assure you that not much new ground was plowed. There was a lot of talk about protecting property rights, anonymous claims of mistreatment, and the like, but despite claims to the contrary, anti-forfeiture proponents failed to identify a single instance in the past several years in which Texas law enforcement officers or prosecutors improperly took and kept someone’s property. In fact, much of the advocates’ ire seems to be directed at federal practices. However, a lack of actual horror stories in Texas will not keep reform advocates from trying to dismantle CCP Chapter 59 again next session, so we will keep you informed of future developments on this front.

Upcoming hearings

            As of now, the relevant interim committee hearings posted for September are the following:


House Committee on Juvenile Justice & Family Issues

Wednesday, September 7, at 10:00 a.m., Dallas County Schools Technology & Training Center

Topic: Youth victims of human trafficking; data sharing on at-risk youth; TJJD regionalization plan; raising the age of juvenile jurisdiction; and more


Senate Committee on Health & Human Services

Tuesday, September 13, at 9:00 a.m., Senate Chamber

Topics: CPS reforms; Medicaid fraud; women’s health


House Committee on Investments & Financial Services

Wednesday, September 14, at 1:00 p.m., State Capitol Extension, Room E2.028

Topic: Short-term lending industry


House Committee on Judiciary & Civil Jurisprudence

Wednesday, September 14, at 1:00 p.m., State Capitol Extension, Room E2.010

Topics: Foreign law in family law cases; pro se litigants; judicial efficiency


Senate Committee on State Affairs

Wednesday, September 14, at 9:00 a.m., Senate Chamber

Topics: Guardianships; DPS public integrity unit; public unions


In addition, the Legislative Budget Board will be conducting hearings for the next two months to finalize the details of the initial state budget that will be unveiled in January. As we’ve reminded you before, the legislature is writing its budget NOW, and if you have an interest in a specific item of appropriation, you should be plugged into the process NOW rather than waiting until the session convenes to start your lobbying—by then, it may be too late.

            If you have questions about any of these interim hearings or budget hearings, call or email Shannon for more information.

Help with cell phone encryption

            Thanks to Manhattan (NY) DA Cyrus Vance, the Association of Prosecuting Attorneys (APA) now has a lawyer on staff to help prosecutors with cell phone encryption problems. She can be reached at [email protected] or 202/774-6181. Feel free to contact Alyssa directly or refer her contact information to any prosecutor that needs assistance in one of these cases.

Call for nominations

            TDCAA is still accepting nominations for the following awards:

- Oscar Sherrell Award for Investigators

- Oscar Sherrell Award for Key Personnel

- Suzanne McDaniel Award for Victim Services

            The Oscar Sherrell Award for service to the association, awarded each year by each section of TDCAA, recognizes those enthusiastic members who excel at helping TDCAA and its members. This award may recognize a specific activity that has benefited or improved TDCAA or may recognize a body of work that has improved the services that TDCAA provide to the profession. The Investigator and Key Personnel boards each select their own award winners and present the award at their annual section conferences.

            The Suzanne McDaniel Award for Victim Services is awarded annually in recognition of someone who exemplifies the qualities that were so evident in Suzanne herself:  advocacy, empathy, and the constant recognition of rights of victims. The criteria to be nominated is:

  • The person must be employed by a County Attorney, District Attorney, or Criminal District Attorney’s Office;
  • At least a portion of the individual’s job duties must involve working directly with victims; and
  • The person must have demonstrated impeccable service to TDCAA, victim services, and prosecution.

            If you know a deserving individual for any of these awards and wish to nominate that person, please keep in mind that the person does not have to work in your office or even in your TDCAA region as long as they meet the criteria stated above. Anyone in a prosecutor’s office may make a nomination by providing the nominee’s name, office of employment, phone number, and a description no longer than 100 words of why you believe the person deserves that particular award. This information should be e-mailed to Jalayne Robinson at TDCAA. All nominations must be received by 5:00 p.m. on Tuesday, September 6, 2016.

Quotes of the month

“This isn’t happening up in my area. … My DA don’t keep things that don’t belong to him, so to speak.”
            —State Sen. Charles Perry (R-Lubbock), explaining to his fellow Senate Criminal Justice Committee members why he is less concerned with reforming state asset forfeiture laws than with addressing more serious abuses at the federal level.


“Clearly she’s not playing to the crowd—because we’re in Texas and there is no crowd for this here.”
            —Austin defense lawyer Keith Hampton, commenting upon CCA Judge Elsa Alcala’s increasingly strident stance against the death penalty.


“Texans might have to wander for 40 years in the wilderness before we have substantive leadership in Washington again.”
            —Jenifer Sarver, former official in the George W. Bush administration, speaking about the state’s lack of political power in the nation’s capital today.


“The greatest threat to our reputation is us.”
            —Judge Roy Ferguson, 394th Judicial District Court, during an ethics presentation to lawyers at the State Bar’s 2016 Annual Meeting.