Congratulations, you survived 2018! Unfortunately, your reward is another legislative session. Prepare yourselves accordingly.

Bills and bills and bills and bills

Legislators started filing bills on the Monday after the general election, and as of earlier this week they had pre-filed 833 bills, of which we are already tracking 245 (29%). To view the most interesting of those proposals, visit the Legislative page of our website and select one of the three bill tracks on that page for the Penal Code, the Code of Criminal Procedure, and other “Bills to Watch.” We have dozens of other bill tracks—criminal records, DWI, drugs, family violence, sex crimes, and many, many more—so if you want information about a more specific subject, contact Shannon for those details.

Interim committee reports

Legislative committee staffers have been racing to finish their interim reports before the holidays, and of the dozens of reports released over the past six weeks, several contain recommendations that may interest you. Those reports (accessible through the links below) include the following highlights:

Joint Interim Committee to Study State Judicial Salaries

• This committee did not make any recommendation to increase the judicial benchmark salary, but its report (see link above) lays out the history of this issue and describes the fiscal impact of increasing that salary by 5, 10, and 15 percent.
• One member of the committee wrote separately to notify that committee that he would be filing a bill to de-link legislative retirement from the benchmark judicial salary. Should that happen, we will try to make sure that does not include district attorney retirement.
  

Senate Finance Committee Recommendations

• Hurricane Harvey cost Texas ~$2.7 billion in FY 2018, and continuing costs in FY 2019 and beyond are expected to add as much as $1.9 billion to that total. Federal and local governments will cover much of those damages, but expect the legislature to appropriate $1–2 billion next session to address Harvey-related expenses.

Senate Health & Human Services Committee Recommendations

• Expand access to medication-assisted treatment (i.e., methadone, buprenorphine, and naltrexone) for opioid use disorder.
• Refer patients flagged by the state’s Prescription Monitoring Program to treatment services.

Senate State Affairs Committee Recommendations

• Add flexibility to certain open meetings and open records laws during natural disasters.
• Clean up the “looting” enhancement in Penal Code §12.50 and expand it to certain other property crimes.
• Consider providing OAG with concurrent jurisdiction to criminally prosecute certain human trafficking and abortion-related offenses to ensure uniform enforcement across the state and eliminate “safe havens” for those offenders.
• Consolidate and simplify court cost and fee structures and make sure all court-related collections are used for a legitimate civil or criminal justice purpose.

House Corrections Committee Recommendations

• Modify probation funding formulas to increase resources for high-risk cases and move successful lower-risk cases off probation sooner.
• Increase funding to provide for more individualized, community-based rehabilitation for young adults (17–25) and mothers/primary caregivers on felony supervision.
• Increase the use of clemency by the executive branch.
• Repeal Penal Code §12.44(a) authorizing county jail sentences for state jail felonies.*
• Seal adult arrest records and allow expunction of convictions after five years.*
• Require courts and prosecutors to submit to data evaluation and other “metrics” for their decision-making*
  [* – recommended but never discussed or described in the body of the report, which means it was cut-and-pasted from materials submitted by various advocacy groups.]

House Government Transparency & Operation Committee Recommendations

• Relax certain open meetings requirements during natural disasters.
• Reduce unnecessary submissions to OAG’s Open Records Division.

House Opioids and Substance Abuse Select Committee Recommendations

• Include meth use/abuse in any targeted solutions because it is more prevalent than opioid use/abuse in some parts of the state.
• Increase access to opioid antagonists and medication-assisted treatment (i.e., methadone, buprenorphine, and naltrexone) for opioid use disorder.
• Replace paper scripts with e-prescriptions and impose legal penalties for misuse of information in the state’s Prescription Monitoring Program.
• Increase state funding for substance abuse treatment through pre-trial diversion.
• Enhance criminal penalties for fentanyl-related offenses.
• Enact “Good Samaritan” legislation providing a legal defense to prosecution for a person who helps obtain medical assistance for someone overdosing.
• Expand drug courts, create a statewide data system to track participants, and move oversight of drug courts from the Governor’s Office to the Office of Court Administration.

Legislative rotation sign-up now open

As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice they hear needs to be yours. Our job is to facilitate that communication, and one of the programs through which that happens is our legislative rotation schedule. To learn more about how you can get involved in the legislative process—even if it is only to get an up-close-and-personal view of the sausage-making for your first time—contact Shannon for the details. And if you already know when you’d like to come to Austin, give those dates to Shannon as well so he can get you on the calendar. Remember, the squeaky wheel gets the grease at the Capitol, so don’t be shy!

Prosecutor Trial Skills Course registration is open

Registration is open for our January 2019 Prosecutor Trial Skills Course in Austin. From plea-bargaining to closing argument, this training will cover the tips and tools necessary to see that justice is done, both for new prosecutors and those just looking for a refresher. For more information or to register, please click here.

New felony judgment forms

From our friends at OCA:

“Article 42.01, Sec. 4, of the Texas Code of Criminal Procedure requires the Office of Court Administration to promulgate a standardized felony judgment form that conforms to the requirements of criminal judgments that must be used by courts entering felony judgments. OCA has worked with stakeholders to update the felony judgment forms to comply with changes in the law since the last promulgation of the forms. The updated felony judgment forms (along with a few new forms), instructions, and affirmative orders and special findings have been posted at http://www.txcourts.gov/rules-forms/forms/. The revised forms become effective on January 1, 2019. If you have any questions or concerns, please call Margie Johnson, OCA Assistant General Counsel, at (512) 936-1183 or send an email to her at [email protected].”

Schedule for future legislative updates

When you return in the new year, these updates will be issued every Friday from January through May. (At which time referrals for carpal-tunnel syndrome treatment will probably be welcomed.)

Quotes of the Month

“Let me just say, as a pro-life conservative, I believe that criminal justice reform is, and should be, a pro-life issue because right now, the State of Texas is robbing life from Texans by keeping them behind bars because we’re mad at them, when they could be restored and reformed and rejuvenated and could be productive, tax-paying citizens of this state.”

State Rep. Jeff Leach (R-Plano), on a Texas Tribune panel previewing the upcoming session, when asked what other issues might be addressed by the Legislature in 2019.

“Every non-violent offender could be released today, and we would still have mass incarceration. … [T]hose who are guilty of the crimes for which they are serving long sentences must be included in reform efforts.”

Jane C. Murphy, director of the Juvenile Justice Project at the University of Baltimore School of Law, in an op/ed she wrote for the Baltimore Sun about the next frontier in criminal justice reform: early release for violent offenders.

“This is not the backdoor to legalizing marijuana. … [I] hate to break it to the potheads, but marijuana is still illegal in Texas and under federal law. Ending the ban on hemp won’t change that. This is about giving farmers another opportunity to thrive.”

State Agriculture Commissioner Sid Miller (R-Stephenville), on why he wants Congress to remove hemp from the federal list of controlled substances(which they may be starting to do under the most recently-passed Farm Bill).

“The thing that nobody predicted (was that) normalization, commercialization, would be a magnet for international black-market activity.”

Bob Troyer, former U.S. Attorney in Colorado, commenting upon the drastic increase in black-market marijuana production in that state since recreational use of the drug was legalized.

“We’re not living in ‘West Side Story.’”

State Rep. Joe Moody (D-El Paso), on why he has filed a bill to legalize brass knuckles and related weapons.

“Whenever someone uses a survey to claim what Americans want when it comes to a complex policy position, remember that only 26 percent of Americans can name all three branches of government.”

Scott Greenfield, New York criminal defense attorney and prolific tweeter/blogger.

[NOTE: TDCAA’s office will be closed for the holidays from Monday, December 24, 2018, through Tuesday, January 1, 2019. We hope everyone has a wonderful holiday break and we look forward to working with you in 2019.
May all y’all enjoy peace and prosperity in the new year!]

We’ve just wrapped up another successful Elected Prosecutor Conference in San Marcos—hope everyone enjoyed it as much as we did! If you joined us, please don’t forget to complete your online evaluations so we can make next year’s conference even better.

New officers

Several positions were filled at our annual business meeting this week. Here are the new TDCAA officers for 2019:

Please congratulate these new members of our board of directors!

Welcome your new peers

Earlier this month we sent you a list of candidates who won contested races, but there are plenty of other new prosecutors taking office on January 1, 2019. Here’s the full list (by county), for those of you who asked:

If you see an old friend or new neighbor on this list, don’t be shy about sharing your wisdom and other hard-learned lessons with this newest batch of elected prosecutors.

Habemus Speaker?

Nothing is ever official until the votes are actually counted, but it appears that current Speaker Pro Tem of the House, State Rep. Dennis Bonnen (R-Angleton), will be the next occupant of the Big Cushy Chair in the House. The presumptive speaker is assembling a staff and outlining an agenda for this session focused on fixing the state’s school finance system. We doubt this shift in House leadership will result in any significant change in Texas criminal justice policy, but only time will tell whether that guess is accurate. (That’s what makes political change exciting, right?)

Bills and bills and bills and bills

Legislators started filing bills on the Monday after the general election, and as of the Thanksgiving break, 600 bills had been pre-filed for the 2019 session, of which we are tracking 175 (29%). If historical trends hold, then the final number of pre-filed bills will exceed 1,000 separate pieces of legislation, or about 15 percent of the expected total of ~7,000 bills filed this session.

To follow along with what is being filed, be sure to use our three bill tracking buttons (Penal Code, CCP, and Bills to Watch) on the Legislative page of our website. Note also that those are just three of the more than 30 separate categories we use to keep track of legislation during a session, so if you are interested in something that does not show up on those three tracks, contact Shannon for more information. But just remember—no matter how good or bad a pre-filed bill looks, nothing can happen to it for another 10 weeks or so, so keep your powder dry!

Legislative rotation sign-up now open

As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice legislators need to hear is yours. To help you do that, we organize a rotating schedule of volunteer slots for prosecutors who wish to come to Austin to be a part of the legislative process. If you would like to plan ahead and schedule a time to spend a few days watching (or helping) the sausage being made, contact Shannon for more details—he can tell you when to come, what to bring, and what to expect. Dates are already filling up, so start thinking about it now!

Schedule for future legislative updates

Our final interim legislative update will go out before the Christmas break. When you return in the new year, these updates will be issued every Friday from January through May.

New mandatory Brady training available online

As announced last month, TDCAA’s new state-mandated Brady training video is now available online through our website. This *FREE* one-hour course can be accessed and completed by going to http://tdcaa.litmos.com/online-courses (or visit our home page) and following the prompts. The TDCAA training crew has been working all year to bring you this new, cutting-edge online training, and we hope you find it to be as informative and engaging as the early evaluations have been.

Quotes of the Month

“The Speaker’s race is over, and the House is ready to work.”

State Rep. Dennis Bonnen (R-Angleton), who announced two weeks ago that he has the pledged votes needed to become the next Speaker of the Texas House.

“Those who aspire to be the presiding officer need to remember that this isn’t about their aspirations and ambitions—it’s about the aspirations and ambitions of the people that are voting for them.”

Retiring Texas House Speaker Joe Straus (R-San Antonio), dispensing advice for those seeking to replace him.

“Some people play golf. I’m in the Legislature.”

Former House Speaker Tom Craddick (R-Midland), the longest-serving member in the history of the Texas Legislature, who is returning to Austin in January for his 25^th term.

“The body has been driven the last two cycles by the most conservative members of the Senate. Now [two of the most conservative members] are gone. And guess what? There’s going to be a different driving force.”

Austin lobbyist Bill Miller, on the changing dynamics in the state senate after the defeat of State Sens. Don Huffines (R-Dallas) and Konni Burton (R-Colleyville), two of that chamber’s most conservative members.

“Local control really matters. Those two elections were about that. … We get elected to represent our district, not necessarily the leadership in Austin and certainly not some big dark money group on Congress Avenue. They want all the power that’s vested in local control to sit at Ninth and Congress. I reject that. That’s big government.”

State Sen. Kel Seliger (R-Amarillo), attributing the defeat of State Sens. Don Huffines (R-Dallas) and Konni Burton (R-Colleyville), two of that chamber’s most conservative members, to their allegiance to groups like Empower Texans and the Texas Public Policy Foundation (home of the Right on Crime movement), who oh-by-the-way unsuccessfully tried to oust Seliger in his primary.

“I was shocked. There were a number of very conservative candidates who really narrowly won; I mean razor-thin margins. … I think the trend line to be more conservative next year than you were this year, that’s going to be discontinued. The electorate spoke last night and said, ‘We’ve gone far enough and we want something a little more centrist.’”

Bill Miller, longtime Austin lobbyist, on the election results for the legislature.

“When the state Senate decided to keep straight-ticket voting for one more year, a lot of us thought that was a really dumb decision. It turned out to be even dumber than any of us could’ve predicted.”

Ed Emmett, outgoing County Judge for Harris County, on the legislative decision in 2017 to postpone the end of straight-ticket voting until the 2020 elections, to which many down-ballot Republicans attribute their narrow losses.

“He used a fog machine at his concession speech. He ain’t done.”

Jeff Roe, chief campaign strategist for U.S. Sen. Ted Cruz, on whether defeated opponent Rep. Beto O’Rourke was done with politics.

Happy Halloween! No “trick” tomorrow tonight should scare you half as much as this sentence: “Legislators can start pre-filing bills in 12 days.” <screech!> <faint>

TDCAA annual business meeting

TDCAA will convene its annual business meeting for the election of officers and other business on Wednesday, November 28th, at 5:15 p.m. at the Embassy Suites in San Marcos, Texas. All elected prosecutors are eligible to vote. The membership will consider nominations for President-Elect, Secretary/Treasurer, Criminal District Attorney-at-Large, and County Attorney-at-Large. In addition, there will be regional caucuses to consider the nomination and election of regional directors for Regions 1, 2, 4, and 7. If you would like more information, call Rob Kepple at 512-474-2436.

Pen packet print pickle

(Say that five times fast!)

Effective October 1 of this year, TDCJ penitentiary packets (pen packs) no longer come with a set of fingerprints for matching the prison paperwork to your defendant in court. Instead, the prison system suggests you obtain prints from DPS and then match them to the paperwork and the person using each inmate’s unique SID (state identification) number, meaning you will now have to jump through even more hoops—and potentially have to call even more authenticating witnesses—to prove up a defendant’s prior prison stay that everyone knows he is good for. (More details are included in this online Q&A TDCJ provided to us earlier this month.)

We think we may have gotten to the bottom of why this happened, but it’s both too complicated and too mundane to recount here. Suffice it to say that we think the agencies will be able to iron out their differences and return things to a semblence of normalcy in the near future. Meanwhile, this might be a good time to read the article published in last month’s issue of The Texas Prosecutor entitled “Proving Up Judgments.” While the article went to press before TDCJ’s recent announcement, its suggestion of a variety of ways to prove up prior convictions may be particularly useful for the near future.

Note also that this may be yet another reason for the Legislature to re-consider HB 1820 by Rep. Drew Springer (R-Muenster) from last session. That bill would create a legal mechanism for admitting prior convictions akin to a certificate of admissibility for crime lab reports. That House bill made it out of its initial committee last session too late to be passed over to the Senate, but perhaps this inter-agency kerfuffle will provide added urgency to the need to pass such common-sense legislation.

State jail study and recommendations

In its on-going focus on issues relating to state jails, the reform-minded Texas Criminal Justice Coalition (TCJC) issued a study entitled “A Failure in the Fourth Degree” this month which documents some of the challenges facing the State in rehabilitating the people sent to those facilities. To make a long story short, the report recommends that the state legislature provide greater funding for:

1. Community collaborative mental health grants, so local communities can address offenders with co-occurring mental health and substance abuse issues before they enter the criminal justice system;
2. Pretrial intervention programs like Harris County’s multimillion-dollar Responsive Interventions for Change (RIC);
3. Equalizing the formula that sends state money to probation departments, which currently receive less per-capita funding for offenders in pretrial diversion programs than for post-conviction supervision caseloads; and
4. More vocational and substance abuse treatment within state jails, as well as funding for re-entry support before and after release from those facilities.

All of that probably sounds pretty good to prosecutors, especially those of you in areas starved for local rehabilitation programming. The only question is, what’s the catch? Is this a straight-up request for additional funding, as with the legislature’s successful justice reinvestment initiative back in 2007? Or will it be tied to substantive changes in the penalties for drug and property crimes (read: reducing felonies to misdemeanors), as many criminal justice reform advocates hope to see for collateral reasons unrelated to funding? We don’t have that answer for you right now, but we’ll let you know when we find out. Meanwhile, if you want to read the full report, email Shannon for a PDF copy.

Input needed on field testing and drug backlogs

The Texas Forensic Science Commission is using a very brief survey to collect information regarding the prevalence of field drug testing and the impact of laboratory drug testing backlogs on seized drug cases in Texas. This information is being collected to comply with HB 34, which requires the Commission to make legislative recommendations regarding the use of field drug testing and related issues. Only one response is needed per office. Please complete the survey by this Friday, November 2, 2018. The survey can be found at https://www.surveymonkey.com/r/BZ9VM8S. 

Interim committee hearings

Most interim committees have wrapped up their hearing schedules and are now working on their written recommendations. Look for those to start rolling out in December.

Looking ahead on the training calendar

We have only two training events remaining for 2018. Here are the details:

Key Personnel and Victim Assistance Coordinator (VAC) Training
November 7–9, 2018
Inn of the Hills, Kerrville

Our Key Personnel–Victim Services Board has planned some outstanding workshops for Texas prosecutor staff and victim assistance personnel, so please consider sending your office staff to this excellent training opportunity! For more hotel and registration information, click here.

Elected Prosecutor Conference
November 28–30, 2018
Embassy Suites Hotel & Conference Center, San Marcos

Help us close out another successful year of training by joining us at a new location in San Marcos. Hotel and registration information can be found here.

New mandatory Brady training available online

As announced last month, TDCAA’s new state-mandated Brady training video is now available online through our website. This *FREE* one-hour course can be accessed and completed by going to http://tdcaa.litmos.com/online-courses (or visit our home page) and following the prompts. The TDCAA training crew has been working all year to bring you this new, cutting-edge online training, and we hope you find it to be as informative and engaging as the early evaluations have been.

Quotes of the Month

“It’s unfathomable that he is no longer with us. It leaves a large hole in the soul of this community.”

Raymond Linex II, former editor/publisher for the Corsicana Daily Sun, on the untimely death of Navarro County Criminal DA Lowell Thompson, who passed away last week after a brief illness.

“I know two things for sure about the speaker’s race: There will be a new speaker, and it will not be Poncho.”

State Rep. Poncho Nevarez (D-Eagle Pass), during a discussion of the race for the next Speaker of the House.

“At the end of the day, you can release everybody in the world, [but] are they getting to court?”

Dallas County Commissioner John Wiley Price, during the meeting at which the commissioners approved spending $3 million to hire dozens of additional employees to comply with a recent federal court order changing county bail practices.

“I would be open to talking to the legislature about reducing the penalty for possession of 2 ounces or less [of marijuana] from a Class B misdemeanor to a Class C misdemeanor.”

Gov. Greg Abbott, during the lone gubernatorial debate last month.

“People are buying just basic, generic olive oil (in some cases) and thinking they’re getting all these benefits. … [The CBD market] has run amok, and it is going to take a whole lot of effort to clean it up.”

Morris Denton, chief executive of Compassionate Cultivation in Manchaca—one of three licensed medical cannabis dispensaries under state law—complaining about the unregulated retail sale of CBD-related health products throughout Texas.

“We think setting criminal-justice policy by constitutional amendment is a terrible idea, and I think what makes it even worse is that it’s not being proposed by Ohioans. It’s being driven by money from out of state. We’re going to have to live with the unintended consequences of this.”

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, expressing concern about the tens of millions of dollars being spent by out-of-state billionaire advocates who support a ballot proposition in that state to reduce penalties for drug crimes.

“This really isn’t about social justice, it’s about a few rich white guys getting rich[er].”

Kevin Sabet, director of the anti-marijuana legalization group Smart Approaches to Marijuana (SAM), explaining why legalization efforts in some states are meeting opposition from the NAACP and other African-American organizations.

“Prosecutors often abuse the grand jury process in Texas. It is time to put an end to this abuse. We will introduce a reform bill again this year to end the process of grand jury shopping and get it passed into law. @RightOnCrime #txledge [sic] #cjreform”

Doug Deason, Republican Party mega-donor from Dallas, tweeting his support for grand jury reform next session.

“9. Stand up for reform within the Texas District and County Attorney Association. The TDCLA [sic] is currently run by largely rural DAs and does not reflect the needs of Texas’ major urban areas. Urban DAs who are committed to reform for the safety of all parts of their communities must lead the DA Association in a new direction, or leave its confines.”

From the wish list of “Just Liberty,” a criminal justice reform group, as laid out in their manifesto on “Electing Reform Prosecutors.”

Annual recap

What a fantastic Annual Update in Galveston last week! It received high marks in your evaluations, so whether it was the timely and relevant training topics, the great speakers, the many networking and team-building opportunities, or the periodic power outages (OK, maybe not that one), we’re glad y’all had such a positive experience.

To all of you who were there, thanks for making it one of our most successful conferences ever. And for those of you who could not make it last week, be sure to mark the 2019 Annual at the American Bank Center in Corpus Christi on your calendars now—it’s never too early to make hotel reservations!

New mandatory Brady training available online

As announced at last week’s Annual Update, TDCAA’s new state-mandated Brady training video is now available online through our website. This *FREE* one-hour course on a prosecutor’s duty to disclose exculpatory and mitigating evidence and information meets the requirements of Government Code §41.111 and has been approved by the Court of Criminal Appeals for that purpose. As required by that statute (which went into effect on January 1, 2014), every attorney prosecuting a jailable criminal offense must complete one hour of instruction on a prosecutor’s duty to disclose such evidence and information within 180 days of assuming those duties, and Court rules require prosecutors to take a refresher course in the fourth year after completing that initial course. Our new 2018 course satisfies either requirement, and successful completion of the course will be recorded by TDCAA and shared with the Court as proof of satisfying this state mandate. Those who complete the course will also receive one hour of MCLE ethics credit from the State Bar of Texas.
To access and complete the new Brady course, go to http://tdcaa.litmos.com/online-courses (or visit our home page), “order” the course (which is free), log in or complete a new registration, and then you will receive an email granting you access to the course portal. (We know this may sound a little cumbersome, but it ensures that you receive the proper credits mentioned above.) The TDCAA training crew has been working all year to bring you this new, cutting-edge online training, and we hope you find it to be both informative and engaging.

Budget wheels begin to turn

Legislators won’t reconvene in Austin until January, but their staffers and various state agencies are already working on budget requests for the 2019 session. As of today, all relevant state agencies have had their initial Legislative Appropriation Request (LAR) reviewed by the Legislative Budget Board (LBB) and various staffers from the House, Senate, and governor’s office. Heading into the next session, most agencies have maintained their FY 2018-2019 funding levels as their initial baseline budget for FY 2020-21 and then tacked on various “exceptional items” seeking additional funding for certain items favored by the agency’s leadership. Those exceptional items often reflect broader legislative priorities heading into a session, so let’s review a few relevant agency’s LARs to see what the tea leaves might tell us. (Note: All figures are totals for the next two-year biennium.)

DPS:

• Exceptional item #3: ~$49 million to increase crime lab performance/reduce backlogs

OAG:

• Exceptional item #1: ~$3 million for 13 additional human trafficking employees
• Exceptional item #2: ~$2 million for 10 additional election fraud employees

TDCJ:

• Exceptional item #3: ~$33 million for special needs housing (mental health care, etc.)
• Exceptional item #4: ~$32 million for specialized probation caseloads (mental health, substance abuse, domestic violence, etc.)
• Exceptional item #5: $8 million for pretrial diversion programming supervised through local probation departments
• Exceptional item #8: $13 million to expand jail diversion services for offenders with mental health problems in rural counties

TJJD:

• Exceptional item #1: ~$37 million to continue various reforms (regionalization, greater probation resources, more placement options, etc.)

The next “Big Event” in the budget process will be the LBB’s announcement of a spending cap after the fall elections, followed by the comptroller’s official revenue projection for the upcoming biennium. Those are the two numbers against which all appropriation requests will be measured, and budget planning will start in earnest in early January. If you have questions about getting involved in that process, feel free to contact Shannon for more details.

ACLU proposals to empty the prisons

For those of you interested in seeing how the ACLU has been spending some of its Trump era-fundraising bounty, check out the Texas page of this criminal justice reform website it is calling “The 50 State Blueprint.” We reviewed it and found many of the state-by-state analytics to include the same boilerplate proposals for each state. Regardless of the occasional poor fit, however, the website does give relatively specific proposals for “ending mass incarceration in Texas” by cutting the TDCJ population almost in half. To do so, the ACLU suggests the Legislature:

• Require probation or pre-trial diversion for all felony drug possession cases and half of all felony drug delivery cases;
• Require probation or pre-trial diversion for 30 percent more felony assaults, robberies, and burglaries, and 40 percent more felony DWI, theft, and fraud cases;
• Cut in half the average sentence lengths for felony drug deliveries, assaults, sex offender registration violations, weapons crimes, and theft and fraud offenses; and
• Cut by 40 percent the average sentence lengths for robbery, burglary, and felony DWI cases.

The full PDF “report” can be downloaded here for anyone who is interested in the nitty-gritty details.

In an entirely unrelated, completely coincidental development (ahem), representatives of the ACLU-supported “Smart on Crime Coalition” recently testified before a House panel on state jails to announce some of their proposals for “fixing” the state jail system. It probably surprises none of you to learn that they also favor mandatory pre-trial diversion or probation for almost all drug offenders and various property crime offenders (see, e.g., the first bullet point above). Now, such outcomes might make sense if you’ve reviewed a case, think it is an appropriate option, and have the resources to make it work for that offender, but these proposals are *categorical* mandates—one-size-fits-all solutions purposely designed to remove discretion from the mix. Back in the 2007–2011 sessions, similar mandatory diversion/probation proposals failed to clear the Legislature, but it sounds like you will see them again in 2019, so be prepared to tell your legislators what you think about that idea if you get asked. (And don’t be afraid to tell those legislators what good you could do under existing law if you simply had more treatment options and resources—solving that unaddressed need is something that everyone can probably agree on, if only we could convince the state budget writers to do it!)

Interim committee hearing recaps

The Senate Criminal Justice Committee took testimony on all their interim charges in one hearing, where perhaps the most interesting idea to be discussed (in the area of “fixing” state jails) was the repeal of Penal Code §12.44(a) in an attempt to prevent plea bargains that result in final convictions rather than treatment on probation (we will leave it to your informed judgment to decide whether such a change would have that desired effect) … the Senate Health & Human Services Committee got an update on the state hospital system, including news that 338 additional forensic beds are under construction/being purchased using funds appropriated last session … the Senate State Affairs Committee took testimony on looting and price-gouging during natural disasters … and the House County Affairs Committee held a two-day hearing on a variety of topics, including the problems that counties are experiencing in trying to adequately fund indigent defense and mental health treatment.

Future interim hearings

Interim hearings will slow as we approach the fall elections. Relevant hearings posted so far for later this week and in October (with links to official notices) include:

Joint Interim Committee on State Judicial Salaries

Friday, September 28, at 10:00 a.m., State Capitol Extension Room E1.036
CHARGES: State judicial salary comparables from other jurisdictions and the private sector. 

Joint Interim Committee on Prescribing and Dispensing Controlled Substances

Wednesday, October 3, at 8:00 a.m., State Capitol Senate Chamber
CHARGE: Study the monitoring and prescribing of controlled substances.

House Appropriations Committee

Tuesday, October 9, at 9:00 a.m., State Capitol Extension Room E1.030
CHARGE: Review federal and state grants available to improve school safety, firearm safety, and students’ access to mental health services.

If you have questions about any of these hearings, please contact Shannon for more details.

TAC Leadership 254 Program

Applications for the Leadership 254 program offered by the Texas Association of Counties (TAC) are due by Friday, September 28, 2018. (Yes, that is the day after tomorrow!) This program is designed to improve local county officials’ executive leadership skills and better equip them to overcome the unique challenges of their jobs. If you are interested in making an investment in your personal and professional growth, visit the Leadership 254 webpage to learn more about the program and how to apply. There is a cost for the course, but scholarships are available through TAC to help offset some of those costs.

Who wants to be on TV?

The producers of a new TV documentary called “Murder for Hire” are seeking cases to potentially be featured on the show. It’s being co-produced by Dick Wolf (creator of the Law and Order series) and Shed Media, who currently produce “Criminal Confessions.” For more details, visit this post on our website.

Looking ahead on the training calendar

After the Annual, we’ll have only two major training events remaining for 2018. Here are the details:

Key Personnel and Victim Assistance Coordinator (VAC) Training
November 7–9, 2018
Inn of the Hills, Kerrville 

Our Key Personnel–Victim Services Board has planned some outstanding workshops for Texas prosecutor staff and victim assistance personnel, so please consider sending your office staff to this excellent training opportunity! For more hotel and registration information, click here.

Elected Prosecutor Conference
November 28–30, 2018
Embassy Suites Hotel & Conference Center, San Marcos 

Help us close out another successful year of training by joining us at a new (for the Elected Conference) location in San Marcos. Hotel and registration information can be found here.

Mental health training opportunity

The Texas Tech Law Review and Texas Tech Administrative Law Journal are hosting mental health law symposium on November 16, 2018, in Lubbock at the law school. Attendance is only $30 per person for prosecutors and law enforcement employees and CLE/TCOLE credit has been applied for. To register, visit this webpage.

Quotes of the Month

“The striking thing is how fast people drive. I thought I had a good barometer of violence and trauma until I came here.”

Dr. Chip Routt, an orthopedic trauma surgeon who moved from Seattle to Memorial Hermann Hospital in Houston, as quoted in the first article of an occasional series by the Houston Chronicle on what makes that city the most dangerous big city in the nation in which to drive.

“California has made great strides in reform for nonviolent, nonserious offenders, and the goal for this Project is to push that narrative to include redemption and second chances even for people who have committed serious or violent offenses.”

Hilary Blout, director of California’s new Sentence Review Project, which intends to identify and advocate for inmates seeking relief under a new law in that state authorizing prosecutors to re-open old convictions and re-sentence offenders, including those convicted of violent crimes.

“At the end of the day, it’s all about funding.”

Amanda Dalton, Oregon District Attorneys Association, explaining why Oregon’s state crime labs are drowning in untested urine samples (their headline, not ours!) after the legalization of marijuana in that state. 

Football is back, and all is right with the world.

Don’t get your hopes up yet

That’s our disclaimer before we share this bit of news with you: The Judicial Compensation Commission will soon recommend to the Legislature a 15-percent salary increase for all state district and appellate judges. Their official report won’t be issued until late next month at the earliest, but this raise will be included in the initial Legislative Appropriation Request (LAR) submitted by the Comptroller’s Office to the Legislative Budget Board (LBB) next month. The final price tag for such a raise will be somewhere north of $40 million after adding in everyone who benefits from increasing the annual district judge benchmark salary from $140,000 to $161,000. (You know who you are.) This may or not may not be good news for anyone who might benefit from such a raise—on the one hand, it brings attention to the recent salary stagnation in the judicial branch and shows it to be a priority, but on the other hand, it brings attention to an issue that benefits legislators’ retirement funds and puts them on the hot seat early and often. That latter fact has been one reason why past judicial raises have usually appeared in the state budget only toward the end of a session rather than at the beginning. Time will tell whether this new strategy will pay off, but if you’ve watched this movie before, you know that nothing is final until it is final—as in, May 27, 2019, when the next legislature adjourns sine die. Meanwhile, a joint legislative committee on this topic will meet at the end of September to review the issue further, and we will provide continuing updates as events warrant.

Now, before you move on to the other sections of this update, please go back and read the title of this section. … Got it? Good. You may now proceed accordingly. 😉

Senate report on school violence

The Senate Select Committee on Violence in Schools and School Safety issued its interim recommendations earlier this month. Those recommendations include:

• “Harden targets” (metal detectors, alarms, cameras, architectural changes, etc.);
• Consider a minimum training standard for anyone who carries a firearm at a school with permission of the school district (per Penal Code Sec. 46.03), a.k.a. a “Guardian program”;
• Increase funding for school marshal programs;
• Increase the availability of school counselors and school social workers; and
• Clarify whether and when firearms can be returned to a person released from a mental health detention.

As we mentioned last month, the committee followed the lieutenant governor’s lead and declined to recommend the adoption of any kind of extreme risk protective order or “red flag” law. That doesn’t mean the topic won’t still be filed and debated in the House, but barring unforeseen changes in the Senate, don’t bank on that becoming law in 2019.

Other interim committee hearing recaps

The House Select Committee on Opioids and Substance Abuse discussed the impact drug abuse had on the adult, juvenile, and CPS systems, the recent increase in drug cases on misdemeanor court dockets, the current moratorium on new state funding for drug courts (due to a lack of those funds), and whether funding and oversight of specialty courts should be transferred from the governor’s office to OCA, among other subjects. The committee will issue its recommendations no later than November 1, 2018 … The House Human Services Committee also reviewed the impact of substance abuse on CPS-involved children and parents, including a wide-ranging discussion on the pros and cons of recreational and “medical” marijuana … The House Judiciary and Civil Jurisprudence Committee debated the merits of specialty courts and looked into increasing the civil jurisdictional limits of JP and county courts … The Senate Transportation Committee heard testimony about the problem of habitual toll road scofflaws in the wake of legislation passed last session to limit financial penalties for non-payment of tolls (who could have predicted that, right?) … the Senate Veterans Affairs and Border Security Committee heard testimony from the national border patrol officers’ union that they would like their members to be cross-certified as Texas peace officers, an idea that was strongly opposed by various pro-immigration advocacy groups … the House Criminal Jurisprudence and Corrections Committees met jointly to discuss the performance of the state jail system and how to incentivize offenders to enter treatment under pretrial diversion or probation instead of pleading to jail time (short answer: no one has discovered that silver bullet solution yet) … and the House Criminal Jurisprudence Committee also met separately to discuss the pros and cons of using risk assessments as a tool in making pre-trial release decisions, which then led to a re-hashing of the bail reform legislation from last session (guess what, the bail bondsmen still think it is a bad idea). And yes, Chief Justice Hecht and company still think full-blown preventative detention hearings are a swell idea, even though no one at the Capitol wants to put a price tag on it or pay for it. Fortunately, Harris County DA Kim Ogg was an invited witness and she correctly pointed out the false promise of any bail reform measure that doesn’t include adequate funding of detention decisions or pretrial supervision, something prosecutors had to testify to last session as well. (We will provide a more detailed update on this topic as we get closer to the session.)

Future interim hearings

Relevant hearings posted so far for September (with links to official notices) include:

Senate State Affairs Committee

Monday, September 10, at 1:00 p.m., State Senate Chamber
CHARGES: Court costs and fees (appropriateness, collections, etc.); price-gouging during disasters; adequacy of current penalties for looting during disasters.

Senate Criminal Justice Committee

Wednesday, September 12, at 10:00 a.m., State Capitol Extension Room E1.016
CHARGES: Re-entry programs; state jail reforms; human trafficking; offenders with mental illness or intellectual disability.

Joint Committee on State Judicial Salaries

Friday, September 28, at 10:00 a.m., State Capitol Extension Room E1.036
CHARGES: State judicial salary comparables from other jurisdictions and the private sector.

If you have questions about any of these hearings, please contact Shannon for more details.

Judicial Council ideas

The Texas Judicial Council (TJC) asked several of its committees to study various issues over the interim and those committees have now issued their reports (available in PDF format by clicking on these links below). They include some of the following recommendations:

Criminal Justice Committee (20 pages)

• Create a statewide opioid task force (and collect data for its use);
• Pass bail reform (SB 1338 was the judges’ bill killed by the bail bondsmen in 2017);
• Transfer oversight of specialty courts from the Governor’s Criminal Justice Division to the Office of Court Administration (OCA);
• Develop a statewide case management system to assist with firearm background checks; and several other ideas.

Juvenile Justice (17 pages)

• Make non-traffic Class C/fine-only offenses by juveniles “civil matters” (like truancy cases) to be handled by JP and muni courts;
• Administer risk and needs assessments before all non-judicial dispositions;
• Increase diversion funding to local governments; and at least eight other ideas.

Civil Justice Committee (20 pages)

• Eliminate partisan elections of judges;
• Increase age/experience requirements to serve as a judge;
• Require JPs in larger counties to be licensed attorneys;
• Create a statewide case management system; and more than 20 other recommendations.

Guardianship, Mental Health, & Intellectual/Developmental Disability (11 pages)

• Create a new civil commitment option for Class B misdemeanants;
• Increase state funding for community mental health services; and 12 other recommendations.

Public Trust and Confidence Committee (15 pages)

• Give courts more flexibility during natural disasters;
• Mandate sexual harassment training for judges and court staff;
• Make confidential yet more personal information about judges and their spouses; plus 11 more recommendations.

Data Committee (22 pages)

• Create a statewide case management system (yes, that’s the third committee to recommend this particular idea, so it will be a priority for the judges next session);
• Collect more data from local courts; and six other ideas.

There are too many recommendations in these reports to cover each one in detail, so please read the ones applicable to your interests if you want to know what our state’s judicial branch thinks most important this upcoming session. All of these recommendations now go to the full TJC for consideration and eventual adoption. That group has been very active at the capitol under the leadership of Chief Justice Hecht and his right-hand man, OCA Director David Slayton, so don’t be surprised when many of these ideas turn into bills in 2019.
 

OCA request for input

Speaking of our friends at OCA, they are in the process of revising various felony judgement forms for use around the state and they would like YOUR help with that project. If that interests you, please review the drafts by downloading them from this page of our website and then directing any comments, questions, or suggested edits to Margie Johnson, Asst. General Counsel at OCA, at (512) 936-1183 or [email protected]. If possible, she would like to receive all input before Friday, September 7, 2018.

Hemp oil/CBD

Earlier this month we received a bevy of calls and emails asking us whether we had any updates on the legal status of the over-the-counter CBD oil “health products” that seem to be proliferating around the state. Our short answer is: No. To our knowledge, there has been no change in the (il-)legal status of most CBD-related products since our last update on this topic back in February. If you’ve heard something definitive on this subject either way, please contact Shannon with the details.

Who wants to be on TV?

The producers of a new TV documentary called “Murder for Hire” are seeking cases to potentially be featured on the show. It’s being co-produced by Dick Wolf (creator of the Law and Order series) and Shed Media, who currently produce “Criminal Confessions.” For more details, visit this post on our website.

♫ Galveston, oh-OH Galveston … ♬

If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!

Looking ahead on the training calendar

After the Annual, we’ll only have two major training events remaining for 2018. Here are the details:

Key Personnel and Victim Assistance Coordinator (VAC) Training
November 7–9, 2018
Inn of the Hills Hotel, Kerrville 

Our Key Personnel–Victim Services Board has planned some outstanding workshops for Texas prosecutor staff and victim assistance personnel, so please consider sending your office staff to this excellent training opportunity! For more hotel and registration information, click here.

Elected Prosecutor Conference
November 28–30
Embassy Suites Hotel & Conference Center, San Marcos 

Help us close out another successful year of training by joining us at a new (for the Elected Conference) location in San Marcos. Hotel and registration information can be found here.

Mental health training opportunity

The Texas Tech Law Review and Texas Tech Administrative Law Journal are hosting mental health law symposium on November 16, 2018, in Lubbock, Texas, at the law school. The program will address practical legal and policy issues that can contribute to improvements in our public mental health system and help address the significant challenges faced by law enforcement and criminal justice practitioners with regard to alleged offenders with mental illness. If you think you, your employees, or your local law enforcement officers might benefit from this one-day course, visit this webpage for more details. Attendance is only $30 per person for prosecutors and law enforcement employees and CLE/TCOLE credit has been applied for.

Quotes of the Month

 “[U]nprofessional conduct or acerbic shrillness in the pleadings [may result in] … sitting in timeout in the rotunda of the courthouse and opposing counsel kissing each other on the lips in front of the Alamo with cameras present.”

Warning contained in an order by U.S. District Judge Fred Biery (Western District of Texas, San Antonio), as entered in a civil case alleging fraud and various trade secret violations involving approximately 25 lawyers, as reported by the San Antonio Express-News.

“I want to have the industry step up and be responsible. They have an adversarial relationship with law enforcement, so it’s not the easiest conversation to have, but people are getting hurt, so deal with it. … [T]his is part of being responsible. If you’re going to be in this business you have to deal with all the implications of the business, from cultivation on down to public safety issues.”

Betty Yee, California Controller, after being injured by stoned driver in the aftermath of marijuana legalization in that state.

“I hate the program. This is not me trying to be a social justice warrior … It’s just entrapped, ensnared, so many people that it shouldn’t.”

State Rep. James White (R-Hillister), expressing the frustrations of several legislators who would like to repeal the Driver Responsibility Program but haven’t been able to find another source of revenue to replace the funding it provides to hospitals around the state.

“That’s why we do this job. … I signed up to get justice for victims. It’s one of my proudest moments as a DA to do this.”

Paul Graves, Contra Costa (CA) Asst. DA, on what led him to research decades-old penal laws to find an eligible offense with which to charge Joseph DeAngelo, aka the Golden State Killer, long after the statute of limitations had passed for the sex crimes he allegedly committed.

“What was accomplished this week was accountability.”

Sgt. Michael Mata, president of the Dallas Police Association, describing the opinion of most of his union’s members in the wake of this week’s conviction and sentencing of Balch Springs officer Roy Oliver for the killing of Jordan Edwards, and unarmed teen.

“[I]t was the right thing to do.”

Dallas County CDA Faith Johnson, explaining to jurors why her office charged Roy Oliver with murder for killing Edwards.

Hot enough for ya?

Reading the state budget tea leaves

Earlier this month the comptroller gave a presentation to the Legislative Budget Board (LBB) that may have been misinterpreted by some who read about it in the local fish wraps, so let us clear up some potential misconceptions.

It is true that recent tax collections have exceeded the (appropriately conservative) estimates made by Comptroller Hegar’s office last year, thanks mostly to growth in the oil and gas industry. However, the majority of these gains are not available for general revenue spending; instead, state law requires that they be diverted to the state’s highway fund or its rainy day fund—the latter of which could top $13 billion by the time the next legislature convenes in six months. And when they do convene, one of the first things the budget-writers will have to do is direct much of the remaining new tax revenue to pay off the Medicaid bills from FY 2018-19 that they “floated” last session to balance that budget. And on top of that, there will be other, smaller catch-up items from FY 2018-19 that must be covered, not to mention the Hurricane Harvey bills that will come due. So, in short, the lesson to take away from the comptroller’s recent testimony to the LBB is that things are not great, but they could be worse, and now it’s time to pray that Texas isn’t hit by another hurricane or a trade war that turns off the tax tap currently filling our coffers. Barring tragedies like that, the remaining budget hole may be small enough for them to use more “smoke and mirrors” to balance the FY 2020-21 budget without many additional cuts—but anyone looking for new funding for their pet project will be facing long, long odds.

Interim committee hearing recaps

The Senate Select Committee on Violence in Schools and School Security held its final hearing earlier this week and took testimony on the controversial topic of extreme risk protective orders, also known as “red flag” laws. An increasing number of states have enacted such laws (including Florida, in the wake of the high school mass shooting in Parkland), often with the tacit or overt support of pro-gun groups like the NRA, but not so here in Texas, where gun rights groups have come out strongly against creating any new legal mechanisms for temporarily suspending someone’s firearm rights because of their threatening behavior. It took few capitol observers by surprise when, only a few hours after the final committee hearing, Lt. Gov. Patrick made official what many had already suspected: Any extreme risk protective order bill is a dead letter in 2019. Less clear, however, is the potential fate of legislation to increase penalties for making firearms available to children. That is an idea that several prosecutors would like to see addressed this session, and we will learn more about the prospects of such legislation later this year when various committees’ interim reports are issued.

Elsewhere … the House Agriculture and Livestock Committee heard testimony from the industrial hemp industry encouraging the legalization of their wonder plant (“it slices, it dices, it makes Julienne fries—but please don’t call it dope”) … and, well, that’s about it, thankfully—it’s too hot in Austin to be holding many hearings right now!

Future interim hearings

Relevant hearings posted so far for August and September (with links to official notices) include:

House Select Committee on Opioids & Substance Abuse (Part I)

Tuesday, August 7, at 10:00 a.m., State Capitol Extension Room E2.012
CHARGES: Impact of substance abuse on those in the criminal and juvenile justice systems and the CPS system; treatment availability; alternatives to incarceration; specialty courts. (Invited testimony only.)

House Select Committee on Opioids & Substance Abuse (Part II)

Wednesday, August 8, at 9:00 a.m., State Capitol Extension Room E2.012
The committee will take public testimony on previously-considered charges (list available here).

House Human Services Committee

Thursday, August 9, at 9:00 a.m., State Capital Extension Room E1.030
CHARGE: CPS-involved children/guardians with mental illness or substance use disorders.

House Judiciary & Civil Jurisprudence Committee

Tuesday, August 14, at 1:00 p.m., State Capitol Extension Room E2.026
CHARGES: Specialty courts; jurisdictional thresholds of district/county/justice courts; guardianships.

Senate Transportation Committee

Monday, August 27, at 10:00 a.m., State Capitol Extension Room E1.016
CHARGE: Toll road penalties.

Senate State Affairs Committee

Monday, September 10, at 1:00 p.m., State Senate Chamber
CHARGES: Court costs and fees (appropriateness, collections, etc.); price-gouging during disasters; adequacy of current penalties for looting during disasters.

If you have questions about any of these hearings, please contact Shannon for more details.

Personnel changes under the Pink Dome

For those of you with legislative business in Austin, we have some important staff changes to report. Several prosecutors have recently turned in their badges and taken jobs at the capitol, including:

• Former Travis County and Harris County Asst. DA Justin Wood, who is now the policy director for Senate Criminal Justice Committee Chairman John Whitmire;
• Former McLennan County and Limestone County Asst. DA Brody Burks, who is now a criminal justice policy advisor to Governor Greg Abbott; and
• Former Lubbock County Asst. CDA Aaron Moncibaiz, who will serve as a criminal justice policy advisor to Lt. Governor Dan Patrick starting in August.

In addition, Aaron will be working under former Tarrant County Asst. CDA Darrell Davila, who was recently promoted by Lt. Governor Patrick to be his chief of staff. We congratulate all of these former TDCAA members on their new positions, and we encourage any of you who know them to do the same. It’s always nice to see friendly faces at the capitol!

Surveys here, surveys there, surveys everywhere

Is anyone getting inundated with survey requests lately? It seems like everyone wants to question prosecutors about their own pet issues, from diversion programs to court collections to human trafficking initiatives to child advocacy centers and more. And this trend is likely to increase come election time now that outfits like the ACLU are conducting state-by-state surveys seeking pledges from local prosecutor candidates to work on their preferred policy reforms. (For a recent example of one sent to Minnesota’s county attorneys, click here.)

We want to make sure you know that we at TDCAA jealously guard your inboxes because we respect your time and understand how busy you are. However, your office addresses and emails are in the public domain, so if you receive a survey request and want to learn what we do (or don’t) know about it, feel free call or email Rob for more information.

New Warrants Manual on the way!

Thanks to funding from our TxDOT grant, TDCAA will start shipping copies of its new Warrants Manual to all prosecutor offices in Texas next week. The updated edition of the book includes new charts, up-to-date caselaw from the U.S. Supreme Court (including its latest case on cell-site data, Carpenter v. United States), and sample documents included on a USB drive. Books will be shipped to each office based on the number of prosecutors indicated in TDCAA’s membership database, and additional copies may be purchased for $45 via the TDCAA website.

Who’s coming to Galveston?

If you haven’t already registered for our Annual Criminal and Civil Law Update in Galveston, now is the time! This year’s conference will be held September 19–21 at the Moody Gardens Convention Center. Further details—including hotel information—and instructions for registering online are available here, so don’t delay: Reserve your spot today!

Looking ahead on the training calendar

After the Annual, we’ll only have two major training events remaining for 2018, registration for which will open in mid-August. Here are the details:

Key Personnel and Victim Assistance Coordinator (VAC) Training
November 7–9, 2018
Inn of the Hills Hotel, Kerrville

Our Key Personnel–Victim Services Board has planned some outstanding workshops for Texas prosecutor staff and victim assistance personnel, so please consider sending your office staff to this excellent training opportunity! For more hotel and registration information, click here.

Elected Prosecutor Conference
November 28–30
Embassy Suites Hotel & Conference Center, San Marcos

Help us close out another successful year of training by joining us at a new (for the Elected Conference) location in San Marcos. Hotel and registration information can be found here.

Quotes of the Month

“One of the things the Legislature never does is rush through anything. There will be bills filed, there will be hearings held, and there will be a whole lot of pontificating, but in the end, nothing is going to happen. It’ll get attention, but it won’t get action.”

Bill Miller, longtime Capitol lobbyist, on the likely outcome next session for gun-control measures in the wake of this year’s mass shooting events.

“When there’s that much money to be made, funny things happen. We’ve learned that lesson from Big Pharma.”

Dr. Jeff Blackmer, a vice president of the Canadian Medical Association, on the misinformation already being spread by the budding marijuana industry in Canada, where recreational marijuana use will become legal this autumn.

“I never thought in a million years that metal detectors would be more controversial than arming teachers.”

Jessica Hagewood, Santa Fe ISD parent, on the contentious debate in that community over whether to install metal detectors at various schools after the recent mass shooting at the local high school.

“He had help all around him. There’s no excuse for what he did.”

—Trina Spencer, an assistant at the transitional living complex where suspected serial killer Jose Gilberto Rodriguez resided at the time of his alleged crime spree.

“It was lot simpler when you guys wore dark suits, white shirts, and navy ties. … We didn’t let girls do it in the old days.”

U.S. District Judge Lynn Hughes’ comments directed to a female Assistant U.S. Attorney in U.S. v. Swenson, in which a Fifth Circuit Court of Appeals panel rejected Hughes’ dismissal with prejudice of a federal prosecution and remanded the case to a different court due to the Hughes’ comments in the matter.

Our prediction for next month’s World Cup champion is Belgium, but the field is still wide open. However, we’re much more confident that the runner-up to the eventual winner will be … Apathy. Such is the price of our men’s national team laying an egg in qualifying. It’s hard to claim to be “the sport of the future” in the States if you aren’t even on the pitch!

Post-Santa Fe proposals

In response to Governor Abbott’s “School and Firearm Safety Action Plan” (full PDF version available here), the Speaker and Lt. Governor asked their respective committees to hold interim hearings on issues related to the recent mass shootings in Texas. As is their wont, both chambers are studying the same issues in different settings and at different times. This creates a “silo effect” in which neither chamber cooperates or shares information with the other, making the process inefficient and repetitive for those on the outside trying to keep track of where the legislature might be headed. (Thank you, bicameral legislative system.)

As for specifics, the new Senate Select Committee on Violence in Schools and School Security held two hearings on various aspects of preventing mass shootings at schools, including security-based architecture, the use of metal detectors and clear backpacks, increased law enforcement presence on campuses, school marshal and guardian programs, and more. Among the most interesting facts to come out of those hearings was the revelation that state appropriators had cut the budget of the Texas School Safety Center by almost half back in 2017, something that the committee members did not seem very eager to discuss in detail. (Hmph.) The House Homeland Security & Public Safety Committee is scheduled to take up the same issues this Thursday, but we don’t expect the discussion to be much different.

Outside of the school context, the most controversial policy topics to arise from the recent mass shootings in Texas involve our child access prevention (CAP) law (codified in Penal Code §46.13) and the possible creation of an extreme risk protective order, also known as a “red flag” law. The House Criminal Jurisprudence Committee took almost 10 hours of testimony on those two subjects earlier this week at a hearing that was made much more interesting by the news that the state GOP had just adopted positions opposing both ideas (see Planks #73 and #74) and the governor’s resulting “clarification” of his position on those topics. No clear resolution on either issue came from the committee hearing, but it appears that grassroots Republican opposition to passing any gun control-related measures may be increasing proportionately with the amount of time that has passed since the last mass shooting incident. We’ll get a chance to test that hypothesis when the Senate Select Committee takes up the same issues next month.

Priorities

The semi-annual “Texas politics” poll by the University of Texas and the Texas Tribune came out this week. It includes the usual results on various political horse races, job performances, and issues of the day (gun control, immigration, etc.), but we enjoy drilling down to find where “we” (read: crime and public safety) fall on their traditional question asking respondents what they consider to be “the most important problem facing the State of Texas today.” Here is the Top Ten:

(For the full list, see page 3 of the poll results.)

What we find most interesting about these results is that the “crime and drugs” answer has polled around 2–3 percent in importance for several years until about two years ago, when that category briefly doubled in popularity, only to fall back to its historical average now. There are any number of theories as to why that might be, but we can’t prove anything with certainty. Another interesting question raised by these results is whether current events like Hurricane Harvey recovery or mass shootings will still be high on this list when the legislature convenes in Austin six months from now. If so, both issues are likely to draw policymakers’ attention away from more traditional crime and public safety issues, as will the impending budget shortfall.

TJJD: New vision, same as the old vision?

Earlier this month, the new administration at TJJD issued a report identifying plans for fixing the often-troubled agency. While touting a reduction of its secured juvenile population to an all-time low of 870 youths (one-third the size of the TJJD secure population 10 years ago) along with increased juvenile correctional officer safety and training, the report also lays out a set of guiding principles for future reform that includes:

• using a graduated set of options to address youths’ needs in their communities;
• for youths in secure TJJD facilities, a commitment to the shortest appropriate length of stay;
• keeping youths closer to their home communities; and
• increased use of evidence-based, trauma-informed care within secure facilities.

For those of you following the TJJD drama over the years, this plan is really not new; it’s what we’ve been hearing for several years now. As we’ve been telling you, the legislature’s grand vision for TJJD seems to be one that turns it into a funding pass-through for local juvenile probation departments while reducing the agency’s facility footprint down to a couple of secure units that can house 300–400 “worst of the worst” offenders. Viewed in that light, nothing in this new report is all that surprising, but if this topic interests you, please read the full report at the link above.

Interim hearings recap

As for May’s other interim hearings: The House Select Committee on Opioids & Substance Abuse heard testimony supporting the adoption of a “Good Samaritan” defense for drug users who call 911 to report another’s overdose, along with law enforcement testimony about the dangers presented by fentanyl … and that’s about it. That’s what happens when gun control and immigration issues suck all the oxygen out of the building.

Future interim hearings

For that same reason, there isn’t much on tap for July (yet). As of now, the only interim committee hearings posted for July (with links to official notices) are:

Senate Select Committee on Violence in Schools & School Safety

Wednesday, July 18, 2018, at 9:00 a.m., in Room E1.036, State Capitol Extension

CHARGE: Examine the root cause of mass murder in schools; recommend strategies to identify and deal with high-risk students.

Senate Select Committee on Violence in Schools & School Safety

Tuesday, July 24, 2018, at 9:00 a.m., in Room E1.036, State Capitol Extension

CHARGE: Examine the need for extreme risk protective orders, aka “red flag” laws.

If you have questions about either of these hearings, please contact Shannon for more details.

Sunbelt Minority Job Fair

The TDCAA Diversity, Recruitment, and Retention Committee has reserved a table at the 2018 Sunbelt Minority Job Fair taking place in Dallas on Friday, July 27, 2018. The purpose is to talk to minority lawyers-to-be about the profession of prosecution in Texas and to solicit interest for *your* office if you are hiring. Tarrant County CDA Sharen Wilson, Chairwoman of the committee, has designed an interest card that you can customize and have handed out to prospective employees if you’d like to receive resumes. To participate in that manner or to attend the job fair in person, contact Rob for more details.

Scam warning

Please be advised that several local governmental entities—including counties, cities, and school districts—are being targeted by scammers. The fraud involves the scammers redirecting to themselves electronic payments from those entities that were originally intended for vendors, as recently occurred in Galveston County (to the tune of half a million dollars). Consider this your reminder to please use caution when handling electronic communications and payments to your county vendors.

Survey for prosecutors

The Office of Court Administration (OCA) has been contacted by researchers at the Brennan Center for Justice, who are partnering with the Texas Public Policy Foundation (midwife of the “Right on Crime” agenda) on a project assessing local criminal justice debt practices. The researchers are surveying judges, clerks, collections staff, public defenders, and prosecutors about their offices’ assessment and collections practices and the costs associated with them. OCA has asked us to share a link to the prosecutor-and-defender version of the survey with you, which can be found at https://www.surveymonkey.com/r/2WK53WK. (Note that participants must indicate the county in which they serve, so your answers will not be anonymous.) As always, it is entirely up to you whether to participate. We are providing the information as a courtesy to our friends at OCA, but we had no input into the content of the survey. If you have questions about the survey, you can direct them to Noah Atchison ([email protected]) at the Brennan Center for Justice.

New Warrants Manual on the way!

Thanks to funding from our TxDOT grant, TDCAA will soon be shipping copies of its new Warrants Manual to all prosecutor offices in Texas. The updated edition of the book includes new charts, up-to-date caselaw from the U.S. Supreme Court (including its latest case on cell-site data, Carpenter v. United States), and sample documents included on a USB drive. Books will be shipped to each office based on the number of prosecutors indicated in TDCAA’s membership database. Additional copies may be purchased for $45 via the TDCAA website.

Upcoming TDCAA training opportunities

Online registration closes this Friday for our second Prosecutor Trial Skills Course of 2018. This will be our final “baby prosecutor course” in San Antonio before returning to Austin for 2019, so check out the details for this conference and consider sending your new prosecutors to ol’ San Antone for some CLE while you still can!

Quotes of the Month

“I agree with you 110%. I wish you’d read the plan before commenting. It specifically requires full due process before anyone’s right can be compromised. Moreover I don’t advocate red flag laws. Only that it is something the legislature can consider.”

Tweet from Gov. Greg Abbott’s personal twitter account, in response to criticism of his request that the legislature study whether Texas needs a “red flag law” to prevent more mass shootings.

“[A] special session will almost certainly amount to nothing more than a $1 million taxpayer-funded political commercial for lawmakers on both sides of the aisle. …”

State Rep. Eric Johnson (D-Dallas), announced candidate for House Speaker in 2019, in an op/ed on the prospects of a special session to address recent mass shooting incidents in Texas.

“Our real goal is to change the face of cannabis.”

Jax Finkel, executive director of Texas NORML, on that pro-pot advocacy group’s latest public relations campaign to sell the idea of medical marijuana to skeptical rural politicians (and their constituents) in West Texas.

“Residency is the squishiest concept in Texas jurisprudence. It’s completely subjective.”

Ross Fischer, former Texas Ethics Commissioner (and former Kendall County Attorney), on the intentionally vague definition of residency used in the state’s Elections Code.

“Mexican cartels have industrialized the production process. It’s very lucrative for them. They can produce it very cheaply. And therefore, you’ve got this mass influx of it, and the prices are at an all-time low.”

DEA Special Agent Timothy Massino of the Los Angeles (CA) Field Division, quoted in an article about the national increase in meth overdose deaths that is being overshadowed by opioid deaths.

“They have found that it’s easier to grow and process marijuana in Colorado, [and] ship it throughout the United States, than it is to bring it from Mexico or Cuba.”

El Paso County (CO) Sheriff Bill Elder, explaining how marijuana legalization in his state has changed the strategy of the foreign drug cartels supplying the black market.

“We’re just trying to make it and it ain’t easy. We’ve never filed for bankruptcy and everyone’s been paid. Sometimes the tax man is the last one to get paid.”

State Rep. Roland Gutierrez (D-San Antonio), candidate for the state senate seat recently vacated by State Sen. Carlos Uresti after his federal fraud conviction, in response to a story reporting Gutierrez’s multiple past and present tax delinquencies.

Quit your complaining, it’s only going to get hotter. Heck, it’s not even “summer” yet!

Post-Santa Fe proposals

In the wake of the awful shootings earlier this month at Santa Fe High School in Galveston County, Governor Greg Abbott convened a series of meetings in Austin with stakeholders interested in relevant topics (gun control, school security, mental health, etc.) to solicit potential solutions that might prevent another such incident from happening. The result was released yesterday: a 44-page “School and Firearm Safety Action Plan” (full PDF version available here). From a prosecution perspective, some highlights of the plan include:

• increasing mental health resources for evaluating and treating at-risk students;
• expanding Crime Stoppers-type programs at schools;
• quicker reporting by clerks of adjudications that disqualify someone from gun purchases;
• changing certain elements and punishments under PC §46.13 (Making a Firearm Accessible to a Child);
• creating a new Class C misdemeanor for failure to report a lost or stolen firearm;
• asking the legislature to study the potential creation of a “red flag law” authorizing the temporary confiscation of firearms from someone who is a danger to himself or others in a process akin to a protective order or involuntary commitment hearing; and
• creating a statewide case management system (CMS) under the Office of Court Administration (OCA) to provide magistrates with more information when setting bonds.

Those last two items may be of particular interest to county and district attorneys, so be sure to read the full report for additional information while keeping in mind that much of the details still need to be hashed out by agencies or the legislature.

Special session?

Immediately after the most recent mass shooting in Texas, several public figures on both sides of the political aisle asked Governor Abbott to call a special session of the legislature to address those incidents and the varied topics they have raised. The governor’s issuance of the action plan mentioned above was his initial response, but he has not foreclosed the option of a special session altogether. So, what is the likelihood of a special session on this topic this summer? It may be wishful thinking on our part (we just made vacation plans, dang it!), but color us skeptical for two reasons.

First, special sessions are usually called only when a governor has clearly identified a problem *and* has a preferred legislative solution in mind. For example, the governor’s call for last summer’s special session included 20 specific issues, almost all of which already had proposed solutions drafted and ready to go with the governor’s public support—and yet even that wasn’t enough to get some of them over the finish line. But then, that’s the rub about special sessions. They’re like what former Longhorn Head Coach Darrell Royal (RIP) used to say about passing the football: “Three things can happen, and two of them are bad.” Due to this reality, it is unlikely Gov. Abbott will call a special session to address school shooting-related issues unless he is confident the legislature will send him something he already approves. Viewed in that light, it is likely that the meetings held earlier this month were intended to highlight mostly non-legislative solutions that could be implemented without the need for a special session.

The other fact weighing against a special session is time. The legislature does nothing quickly, nor can legislative changes be implemented immediately absent approval by a super-majority of its members. That makes the special session route an unattractive one for state officials hoping to implement changes before the school year cranks up again in mid- to late-August. The caveat to that reservation is that some of the governor’s recommendations—such as a “red flag law”—can be enacted only by the legislature. To that end, House Speaker Joe Straus quickly asked the House Criminal Jurisprudence Committee to examine that topic during the interim, and earlier today, Lt. Gov. Patrick announced the creation of a select committee to study some of the governor’s proposals between now and early August.

In other words, we’re not saying the idea of a special session is dead, only that it’s mostly dead. And as we all know, mostly dead is still slightly alive.

CAC video discovery

Speaking of the legislature: Each of the past two interim hearings held by the House Criminal Jurisprudence Committee have included testimony from members of the Texas Criminal Defense Lawyers Association (TCDLA) complaining about the inconvenience and unfairness of the law prohibiting them from receiving copies of child advocacy center (CAC) forensic videos. Now, we might be a little slow sometimes, but we’re not stupid—this is clearly going to be something that the defense bar intends to pursue next session. With that in mind, we thought we’d ask for your two cents about that law, which was codified back in 2011 as Family Code §264.408(d-1). We know what the defense bar thinks of it, but what do you think? Is it working well or not? Have you had to create work-arounds to make it work better? Is it more trouble than it’s worth? Etc. etc. If you have thoughts on this topic, please direct them to Shannon by phone or email.

Interim committee hearings

Here are some other highlights of May’s interim hearings:

The House Criminal Jurisprudence Committee took testimony on the prevalence of prosecutorial misconduct and ineffective assistance of counsel (IAC). The former included TDCAA’s 2012 report on that topic (plus an update provided by Shannon); information from the State Bar’s chief disciplinary counsel on how they handle grievances related to both topics; and a rundown from State Prosecuting Attorney Stacey Soule of appellate actions relating to both types of claims. Two take-aways from the hearing were that IAC findings vastly outnumber confirmed cases of prosecutorial misconduct, and that the latter still consist mostly of Brady-type discovery violations (a conclusion shared by our original 2012 report). No word yet on what direction the committee might go on this interim charge, but it seems clear that the state has done much more about allegations of prosecutorial misconduct than it has about IAC, so the latter problem might be ripe for more attention from the next legislature—although pleas at the hearing from Geoffrey Burkhart, the new director of the Texas Indigent Defense Commission, to dramatically increase funding for indigent defense will likely fall on deaf ears again in light of the state’s current budget situation.

Killing two birds with one stone hearing, the committee also studied the investigation and prosecution of sexual assaults. That portion of the hearing included testimony about the current rape kit backlog; a plea from the Texas Association Against Sexual Assault (TAASA) to pass a more robust indecent contact (aka “groping”) law for adult victims; a proposal from Amy Derrick of the Dallas County Criminal DA’s Office to expand CCP Art. 38.37 to apply to adult sex crimes; opposition from TCDLA’s representative to that idea and to any revision of current definitions of “consent”; and concerns from advocates for developmentally disabled victims that various players in the criminal justice system lack the expertise required to deal with them appropriately. Again, we don’t have any good information on what the committee will do with all this information, but this is certainly a policy area that is likely to see more legislation filed next session.

Elsewhere … The Sunset Commission continued its reviews of DPS and DMV … the House Public Health Committee considered ways to improve ways to identify and treat children with mental illness … the House Select Committee on Opioids & Substance Abuse reviewed problems related to the overutilization and diversion of addictive prescriptions … and the House Corrections Committee discussed rehabilitation programming—or the lack thereof—for female offenders in the criminal justice system. If you have questions about any of these hearings, please contact Shannon for more details.

Future interim hearings

As of today, there are no relevant interim hearings scheduled for June, but don’t be surprised if some committees post notice of hearings related to the governor’s action plan (above) in the next several weeks. Follow us on Twitter for additional news on that front as it happens.

Request for legislative help

In advance of the 2019 session, Chambers County DA Cheryl Lieck is working with several other prosecutors on legislation that would expand DNA collection after felony arrests. (For a similar attempt from last session, see HB 3513). If you are interested in working on this legislation, please email Chambers County Assistant DA Eric Carcerano for more details.

Upcoming TDCAA training opportunities

Registration is still open for TDCAA’s Forensic Evidence Seminar. From DNA to firearms, this course will provide prosecutors and their investigators with the knowledge and skills necessary to see justice done. The course will be held June 13­–15 in Dallas. For more information, click here!

And don’t forget that we have our second Prosecutor Trial Skills Course of 2018 coming up in July at the Holiday Inn Riverwalk in San Antonio. This will be our final “baby prosecutor course” in San Antonio before returning to Austin for 2019, so check out the details for this conference and consider sending your new prosecutors to ol’ San Antone for some CLE while you still can!

Quotes of the Month

“That’s a process question. Right now, we’re focused on substance issues. We need solutions first.”

Gov. Greg Abbott, when asked last week whether he would call a special session to address the recent school shooting in Santa Fe, Texas.

“If there is consensus on some laws that could be passed, I am open to calling [a special session].”

Gov. Abbott, after revealing his post-Santa Fe action plan yesterday.

“I wish I were sorry, but I am not.”

Mark Conditt, the Austin bomber, in a recorded statement found after his death. For a post-mortem search for answers to why he did what he did, read this story.

“This is not the last mistake, and there’s probably plenty to come, unfortunately.”

Devin Patrick Kelley, the Sutherland Springs shooter, in a videotaped statement made in 2012 in which he discussed his penchant for violence and problems with anger control.

“I’m sure every woman in the Senate has been sexually harassed at one point or another in her life.”

State Sen. Judith Zaffirini (D-Laredo), in an article noting that the state senate has still not officially adopted a new policy on sexual harassment in light of multiple allegations of improprieties by certain members of that chamber.

“I feel like I am Alice going down the rabbit hole.”

Federal district judge Lee H. Rosenthal, before she stayed former death row inmate Alfred DeWayne Brown’s civil suit against various Harris County authorities for his alleged wrongful conviction, after new information has come to light that might explain why local authorities have refused to agree that he is factually innocent.

“We’ve opened up a real circus here. You’re going to have so many people addicted to gambling in the next couple of years, it’s going to be crazy. We’re going to have a volcano of gambling addiction in America.”

Arnie Wexler, anti-gambling advocate, predicting a sharp rise in gambling addiction after the Supreme Court struck down the federal ban on sports betting earlier this month. (Don’t expect any change here, however—legalized sports betting in Texas requires a super-majority of legislators to approve a constitutional amendment, which is highly unlikely.)

“It’s remarkable for me to see what she’s become knowing what these kids go through, knowing in particular what her situation was. It’s just uplifting. We just deal with so much ugly in my business, to see something like that, it’s just remarkable.”

Ellis County & District Attorney Patrick Wilson, in a touching story of a child sexual assault survivor who reached out to thank him after her college graduation (link includes video).

Can you believe there is still snow on the ground in some places? Brrrr.

“Re-imagining” state jails (again)

During this interim, the “Smart on Crime” confederation of criminal justice reform advocates have been hosting a series of information-gathering sessions around the state to come up with a consensus solution to the high recidivism rates among state jail offenders (which is somewhere north of 60 percent). Last week, they hosted a webinar to summarize some of the feedback they have received, and none of it will shock you. In a nutshell: SJF offenders increasingly prefer to take straight time in jail or SJF facilities instead of probation because probation is “too hard”; this is exacerbated when offenders who can’t make bond rack up jail credits that make final convictions easier to stomach due to a quicker release after sentencing; and once they begin down that path, these offenders are increasingly unlikely to escape the incarceration cycle.

While there is a fair amount of agreement on the existence of this cycle, there doesn’t seem to be any new idea on how to end it. Of course, that doesn’t mean that there aren’t any proposed solutions—several failed ideas from past legislative sessions have been put forth again, including:

• reducing drug penalties from felonies to misdemeanors;
• creating a “wobbler” sentence that re-categorizes a felony conviction as a misdemeanor upon successful completion of supervision (vetoed as HB 1790 back in 2013); and
• imposing “presumptive” or mandatory pre-trial diversion by the court (which no one will define for us, but which has always sounded unconstitutional to us without more details).

One potential change that might meet with approval from various stakeholders involves the increased use of the split sentences authorized back in 2013 via SB 1173. However, to make that kind of post-confinement supervision effective, the current 2-year maximum sentence would probably have to be increased to three or four years, which could be hard for some reformers to stomach.

As of now this is all still up in the air, but if you would like to get involved in this process, contact Shannon and he will get you on the invitation list for future meetings and discussions.

Annual report on the judiciary

The Office of Court Administration (OCA) has released its 2017 Annual Report. Some of the highlights include:

• A slowing of case dispositions in district courts (indicating increased docket backlogs) but an increase in dispositions in county courts;
• Year-over-year increases in drug possession, domestic violence, robbery, and capital murder case filings, but decreases in fine-only (Class C) misdemeanor, DWI, murder, and theft (especially theft-by-check) case filings;
• A five-percent overall increase in juvenile case filings driven by a rise in violent and sex crimes;
• An all-time high in the number of applications for involuntary mental health commitments; and
• At the appellate level, the Court of Criminal Appeals reversed 49 percent of the cases they accepted on PDR.

There are plenty of more details in the full report, so check it out at the link above for more information.

DPS Sunset review

On the heels of our March update, in which we told you that DPS was one of several agencies facing the sunset review process next session, the Sunset Advisory Commission has released its initial report on that agency. Among the key recommendations from the Commission are:

• Consider transferring the state’s driver’s license program from DPS to DMV;
• Require the agency to collect, maintain, and publicize more crime statistics related to border security operations; and
• Discontinue superfluous DPS regulation of ignition interlock vendors, peyote distributors, and precursor chemical and lab apparatus sales.

Note that the Commission does not recommend any significant changes to DPS’s law enforcement or traffic enforcement duties; however, a DPS sunset bill could always be amended with little notice during the legislative process to make significant changes in those areas. Therefore, we will continue to watch this issue closely for you during the next session. Meanwhile, if you’re interested in reading more details about these sunset recommendations, visit this webpage.

One repercussion from the Sutherland Springs shooting

One of the consequences of the church shooting in Sutherland Springs—was that really almost six months ago?!?—is a renewed focus on accurate reporting of information that might disqualify someone from legally purchasing a firearm. To that end, the U.S. Attorney General recently issued a letter to the states encouraging them to improve their criminal history data reporting, which our governor and attorney general kindly sent to us here at TDCAA. Rather than share that 136(!)-page document with you, we’ll just point out that while Texas already fares much better at reporting dispositions than the national average, not everyone is up to snuff. To that end, if you or your local partners need help improving your reporting of criminal justice data, federal funding may be available for that purpose; visit https://www.bjs.gov/index.cfm?ty=fun for more details about two acronym-heavy programs—is there any other type with the Feds?—that have application deadlines in mid-May of this year.

Interim committee hearings

Here are some highlights of April’s interim hearings:

The House Appropriations Subcommittee for criminal justice, the judiciary, and public safety met to discuss DPS crime lab funding (including fees for services); adult and juvenile probation funding; and the status of rape kit backlogs. (Click here for the committee handouts on those topics.) Here’s a brief run-down on each topic:

Regarding DPS lab fee-for-services, none of the five subcommittee members voiced support for the idea, nor did any DPS employees. (All of which makes one wonder how it ended up in last session’s budget, but we’ll take our good news where we find it!) However, DPS faces various challenges in managing its workload—including employee turnover, training and accreditation requirements, voluminous requests, and more—leading to the backlogs that many of you know so well. (For what it’s worth, the entities that submit the most forensic requests to DPS are: Corpus Christi PD, Lubbock PD, Montgomery Co. SO, Plano PD, and Midland PD.) Among the ideas raised at the hearing for helping DPS successfully manage its workload include:

• Expanding the lab reimbursements condition of probation (CCP Art. 42A.301(b)(18)) to include more than just testing for drugs and contraband, and improve the collection of the existing drug analysis reimbursement beyond the current 20-percent rate;
• Revisiting the wisdom of SB 1292 (83^rd R.S., 2013), which requires all biological evidence in a capital murder case to be DNA tested (effectively monopolizing the time of certain labs for one case); and
• Improving communication with prosecutors so that the labs don’t waste time conducting tests that may no longer be needed due to changes in case status.

The concerns of prosecutors were ably represented by Washington & Burleson County DA Julie Renken, who reminded the committee members about the “ripple effect” that slow lab work has on the rest of the criminal justice system, so be sure to thank her for spending a day in Austin to remind them that they get what they pay for!

On the topic of probation funding, TDCJ is continuing to propose a change in the state’s funding mechanism that would replace simple per-day funding for a system that frontloads more funding for the first three years of supervision in exchange for reductions in funding for later years. (You will have to judge for yourself whether that creates any incentive for your probation departments to early-terminate cases once the funding starts to decline.) The agency is also requesting more funding for treatment and rehabilitation—especially for specialized populations, post-residential after-care, and pre-trial diversion programs supervised by local CSCDs—and an increase in misdemeanor supervision funding.

Regarding the juvenile system, TJJD announced that is has reduced its population to 890 juveniles (an historic low for the agency) but the seriousness of the crimes committed by those juveniles—and their levels of need—are much higher. As a result, the agency testified that funding needs would likely increase in the short-term even though they are managing fewer juveniles.

Finally, on the topic of sexual assault kit backlogs, DPS witnesses testified that it currently has 4,800 kits waiting to be tested (3,600 of which are less than 90 days old), but DPS also receives ~18,000 kits per year to test and is struggling to keep up with that workload. In addition, vendor and outsourcing problems continue to slow testing in places like Dallas and other areas.

The House Appropriations Committee reviewed the status of the $800 million it appropriated for border security over the biennium, including $12 million in border prosecution grants (distributed through the governor’s office) and $2.6 million to the attorney general’s office for border prosecution assistance. Click here for committee handouts on that topic (starting at p. 173).

The House Select Committee on Opioids & Substance Abuse held its second hearing and gathered information from a variety of invited witnesses; handouts and materials are available here if you want to delve deeper into this topic.

The House Criminal JurisprudenceCommittee met earlier this week in El Paso to take up issues relating to marijuana possession and other topics of interest to that community. Not much new arose regarding marijuana, but on a completely unrelated issue, several members of the local defense bar suggested the Legislature should repeal Family Code §264.408(d-1), which currently prevents copies of CAC video interviews from being given to the defense (so be on the lookout for that next session). In addition, a TCDLA representative suggested amending Gov’t Code §74.053 to allow either party in a criminal case to object to the appointment of a visiting judge, just as civil litigants can do (once per case). That is an idea that hasn’t been floated for several sessions, so if you like the idea of being able to veto the appointment of a specific visiting judge—or dislike the idea of the defense bar being able to veto said appointment—contact Shannon and let him know so he can pass that along to interested parties.

The House Judiciary & Civil Jurisprudence Committee met this morning to discuss several issues. Regarding the impact of Hurricane Harvey on the state’s court system, the panel took testimony from Chief Justice Hecht and other judges impacted by the storm about the need to provide the judiciary and local officials with greater flexibility in when and where courts can meet, which is something we discussed in our journal soon afterwards. It’s a pretty good bet that some legislation on this front will be filed next session but too soon to say what it will look like. The committee also heard from the Office of Court Administration (OCA) about problems with the current court costs and fees system, including some costs being struck down by the courts (as in last year’s Salinas opinion from the CCA). The OCA noted that there are 143 different criminal courts costs and more than 200 civil filing fees currently on the books, and that the courts annually collect more than $1b of these costs and fees, but only $400m comes back to the judicial system. The rest goes to the state for other purposes or to various county coffers. The single biggest non-judicial beneficiary of court costs and fees is the State Highway Fund; if that cost collection and transfer is found to be unconstitutional, it could blow a significant hole in state transportation funding (which might finally force the legislature to act). Like the disaster contingency issue, this topic is also ripe for change next session, and we will keep a close eye on it going forward.

Future interim hearings

The only relevant hearings posted for May (with links to official notices) so far are:

House Corrections Committee

Tuesday, May 1, 10:00 a.m., State Capitol Room E2.010

CHARGES: TDCJ’s response to natural disasters; best practices for using social workers for offender re-entry; assessing services and programs available for female offenders.

House Pensions Committee

Thursday, May 10, 10:00 a.m., Dallas City Hall Council Chambers

CHARGE: Evaluate ways to strengthen and improve public pension systems.

If you have questions about any of these hearings, please contact Shannon for more details.

Upcoming TDCAA training opportunities

Registration is open for TDCAA’s Forensic Evidence Seminar. From DNA to firearms, this course will provide prosecutors and their investigators with the knowledge and skills necessary to see justice done. The course will be held June 13­–15 in Dallas. For more information, click here!

Quotes of the Month

“We’re just recognizing how powerful district attorneys are in shaping criminal justice policies, both at the local level, but also at the statehouse. The lobbying power of prosecutors is really a substantial force almost everywhere we want to see change made in the criminal justice system.”

Taylor Pendergrass, with the ACLU’s “Campaign for Smart Justice,” quoted in a national op/ed entitled “The Next Frontier in Criminal Justice Reform” in which the author argues that current prosecutors must be defeated at the ballot box (and the legislature) and replaced with candidates like new Philadelphia DA Larry Krasner to enact true criminal justice reform.

“You’ve got to go to Austin. You’ve got to go to our state capitol, because, number one, someone has to have checks and balances. I just told you why wrongful convictions happen: biased judges and prosecutors and jury panels in our courtrooms are why people get convicted of crimes. Laziness by the police department. If you can get things put in place that hold these people accountable for wrongful convictions, giving them prison time, then they’ll see how it feels.”

Texas exoneree Christopher Scott, in response to a question asking “What improvements can be made to reduce the number of false convictions?”

“When the resources of the Attorney General are needed, local prosecutors can receive and have received A.G. assistance. It is up to the local prosecutor to work with the A.G. on a specific case. For instance, Assistant A.G.s are currently sworn in as Special Assistant D.A.s in my office to join in prosecuting a human trafficking case. I don’t see anything wrong with that model.”

Travis County DA Margaret Moore, in an article discussing potential legislative attempts to give the attorney general greater prosecutorial authority over human trafficking and abortion-related crimes.

“I don’t understand why you have this preferred status under the law.”

State Rep. Rene Oliveira, Chairman of the House Business & Industry Committee, questioning representatives of the rent-to-own industry during a hearing earlier this month regarding special Penal Code presumptions that favor those companies in certain theft of service cases.

“We talk about due process of law—I call this overdue process of law.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, explaining why some crime victims’ advocates support Texas’ application to “opt in” to shorter death penalty filing deadlines under the Antiterrorism and Effective Death Penalty Act (AEDPA).

“We’ve always gone after the driver, but we think communities want more.”

Harris County DA Kim Ogg, on why her office charged three people for providing an underaged driver with alcohol before the driver caused a fatal crash killing a mother and her infant son. (The driver is charged with intox manslaughter.)

“In December of 2016, Sacramento Superior Court Judge Michael Bowman dismissed charges against the owners of Backpage.com, saying that ‘Congress has spoken on this matter, and it is for Congress, not this court, to revisit.’ … Consider it revisited.”

U.S. Sen. Ted Cruz (R-TX), explaining why Congress passed the Stop Enabling Sex Traffickers Act/Fight Online Sex Trafficking Act (SESTA/FOSTA) and why the Department of Justice has taken action against Backpage.com and other similar websites that profit from human trafficking.

“Texas had the guts to do what other states did not.”

Rebecca Musser, former member of the FLDS sect run by polygamist child abuser Warren Jeffs, commenting on this month’s 10^th anniversary of the successful raid of the Yearning for Zion (YFZ) Ranch in Eldorado, Texas.

“At the end of your life you will never regret not having passed one more test, not winning one more verdict, or not closing one more deal. You will regret time not spent with a husband, a friend, a child or a parent.”

Former First Lady Barbara Bush, in a commencement address at Wellesley College in 1990. Mrs. Bush passed away last week at the age of 92 as only the second woman in history to be both a wife and a mother of presidents.