Well, it’s pretty much all over but the crying now. There will be thousands of dead bills to memorialize this weekend, but on a serious note, please remember to honor our friends and family members and all fellow Americans who gave the last full measure of devotion so that we can govern ourselves in this manner, no matter how sloppy it may be.
On Monday afternoon, the 85th Regular Session will be 20/20ths of the way through and the Legislature will adjourn sine die. Then all eyes will turn to the governor to see if he feels compelled to call the members back for a special session.
Grand jury bill
The last two weeks of this session have been one prolonged game of Whack-a-mole on the topic of grand jury “reform.” We’re not going to tell you how the cow ate the cabbage—naming names and calling people out serves little purpose at this stage—but the bottom line is that so-called grand jury “reform” is dead this session despite the efforts of some very powerful and influential figures in Texas politics. Prosecutors’ principled and thoughtful opposition made the difference.
It’s nice when the good guys win one every now and again, isn’t it?
Habemus legis! White smoke appeared from the chimney above the Capitol earlier this week, and a final version of the 2018–2019 state budget emerged this morning. Senate Bill 1 has been printed and is set for final approval in both chambers on Saturday. The next biennium’s budget weighs in at a hefty total of $216.8 billion and will be balanced thanks to the use of almost $1 billion of Rainy Day Fund money and $1.8 billion in “deferred expenditures” from the highway fund to make up the shortfall from declining revenue. (To flesh out that that last bit for you, this means they are going to take money earmarked for a highway construction fund and hold it in the general treasury until September 1, 2019—the next budget cycle—rather than transfer it to the highway fund during this budget cycle, as the law arguably requires. Road projects will continue apace, however, so if you ever floated a check back in college, it’s kind of like that—only it’s a check for $1.8 billion.)
All prosecutor-related items got funded at current levels, so you should not see any changes to your math at the home or office. In relation to the current budget cycle, the next budget will provide more funding for highway construction, CPS caseworkers, foster care, and mental health treatment, and the Rainy Day money will go to one-time expenses like state mental hospital repairs, juvenile and DPS facility upgrades, and body armor for peace officers. On the whole, though, state spending on its biggest items—education and health care—largely stayed flat or decreased on a per-capita basis. However, a deal is a deal, and assuming both chambers approve that deal this weekend, they will have completed the only item they absolutely, positively had to do to avoid a special session. After that, it’s up to the whims of the governor.
It’s the question on everyone’s mind, but no one has a definitive answer. There has been plenty of saber-rattling on all sides this week, but that’s more smoke than fire. The budget will soon be done and the Legislature has passed bills on all of his emergency items, but it remains to be seen whether the governor will be satisfied with that—or whether the lieutenant governor will be satisfied with that, since many pundits think he is driving this train right now. That perception might be eating at the chief executive right now, but it could be hard for him to rebut it if he continues to do exactly what the lite guv keeps asking/telling him to do. Rather than call a special session, it wouldn’t surprise us if the governor flexes his muscles by vetoing a larger-than-usual number of bills. (The record for a single session is 82 vetoes [Rick Perry, 2001], for those who are curious, but the average is probably closer to 30 or so.)
If the governor does call a special session on a specific policy issue, it could begin immediately or could be scheduled for some time after the veto period concludes next month (so that an ornery Legislature cannot override his veto decisions). We’ll have more about vetoes next week, but for now, all we can tell you is that if the governor calls everyone back for a special session, there are going to be some grumpy people here at TDCAA headquarters!
Here’s the skinny on some of the issues we’ve been following (listed alphabetically); these statements on passed bills are contingent upon the governor’s approval, of course:
Animal cruelty: Certain penalties will be enhanced, and a new crime of bestiality will be added to the books.
Appellate proceedings: The Legislature wants the CCA to broadcast and archive its oral arguments online, so you appellate attorneys should prepare accordingly.
Asset forfeiture changes: Dead.
Bail bond reform: Dead.
“Blue lives matter”: Passed. Certain crimes against law enforcement (and judges, who were added late in the process) will be enhanced as hate crimes, and punishments for other assaultive offenses were also increased.
Court security: Passed, including additional privacy protections for prosecutors’ personal information.
CPS reform: ~20 of the CPS-related bills we have been following this session are going to be sent to the governor, including bills to start privatizing “community-based” foster care in some areas, increase financial support for family foster care providers, carve DFPS out from the Health and Human Services Commission, and revise legal procedures in CPS cases.
Cyber bullying: Passed (as a Class B misdemeanor).
DPS surcharge changes: Dead.
Drug reform: Dead. (But the “Adderall fix” did pass, which was good to see.)
DWI: Deferred adjudication bill is dead (again).
Elections: Straight-ticket, one-punch voting has been repealed starting with the 2020 general election.
Family violence: Certain counselors get a new privilege against testifying about things told them in confidence by family violence victims, and (as usual) there will be several changes to protective orders.
Guns: Constitutional carry is dead, but as a consolation for some, most illegal knives will become legal and regulated more like licensed handguns—but without the license.
Indigency: Two competing bills (HB 351 and SB 1913) are still floating around on the topic of so-called “debtor’s prison,” and it’s unclear at this point which one (if not both) will finally pass.
Innocence: Certain felony custodial interrogations will have to be recorded. Testimony from identifying eyewitnesses and jailhouse informants will also be more closely regulated.
Juveniles: Raise the Age was lowered into its grave the day it arrived in the Senate, but the rules for access to juvenile records will change (again).
Sanctuary city ban: Passed and signed into law, effective September 1—and the lawsuits are already stacking up like cord wood.
Sandra Bland Act: Passed in slimmed-down form (30 pages instead of the original 55); most of the changes relate to jails, mental health, and law enforcement reporting.
Sex crimes: There will be new crimes and/or increased penalties for “sextortion,” revenge porn, obscene child images, sex trafficking, and all kinds of other good red meat material for legislators’ campaign flyers next year.
Texting while driving: The statewide ban passed. A similar law was vetoed once before by a previous governor, so we’ll see how things go this time around.
Writs of attachment: Passed, so there will be some additional steps in the process in the future.
By our count, this Legislature is going to pass about 300 bills impacting the jobs of county and district attorneys, so there will also be numerous new laws on access to criminal records (expunctions, non-disclosures, etc.), human trafficking, community supervision, pre-trial diversion, mental health, and much, much more. We’ll continue to review what passed so that next week we can identify anything that might deserve a second look from you before the veto period ends.
Summer regional updates coming soon!
All of your offices should have received flyers in the mail advertising our popular regional tour of Legislative Update seminars. Online registration for those courses is NOW OPEN. We are going to 21 different locations throughout the state this summer to help everyone get up to speed on all the relevant statutory changes made during the session, so be sure to click on that link to learn more about them and get signed up today!
Quotes of the week
“I think it is highly inappropriate for a football player playing in the fourth quarter to start talking to [sic] going into overtime. We have enough time to resolve these issues in a regular session.”
—Governor Greg Abbott, speaking this week on controversies surrounding the “bathroom bill” and local property tax caps, both of which he said he would like to see on his desk.
“This state is run by Gov. [Daniel] Hodge and his chief of staff, Greg Abbott.”
—Unnamed Republican lawmaker, noting the governor’s lack of leadership on legislative issues and how many legislative duties seem to get resolved by the governor’s chief of staff, Mr. Hodge, rather than the governor himself.
“What we let happen here on the floor today is you let someone who doesn’t understand criminal law change criminal law. You’re going to let someone change criminal law who has no clue how that works.”
—State Rep. Joe Moody (D-El Paso), after the House approved an amendment to SB 762 by Menendez (D-San Antonio) that lowered the penalty for animal cruelty (including repeat offenders) so that it was not higher than the punishment recently passed in SB 8 criminalizing partial-birth abortions (which are now a state jail felony). The animal cruelty bill returned to the Senate in that form, where its author is expected to let it die rather than become law.
“When the Senate won’t respect us, they need to expect us.”
—State Rep. Harold Dutton (D-Houston), joining a bipartisan group of House members who were expressing their anger with Senate leadership.
“This thing looks like an encyclopedia now.”
—State Sen. John Whitmire (D-Houston), referring to an omnibus House bill on county governance that was amended 48 times in the Senate with various dead or dying bills before being returned to the House, where it was going to be killed by the bill’s author rather than allowing it to become law.
“I’ve been to goat rodeos in South Texas that are more organized than this.”
—Unnamed Capitol “insider,” referring to the end-of-session melee between the House and Senate.