T’was the week before Christmas, when all through the People’s House, not a creature was stirring, not even a mouse. We hope you enjoyed the Elected Prosecutor Conference. It was great to see all the newly elected prosecutors and of course the not so newly elected prosecutors. Thank you for your service! Texas is in good hands. 

89^th Legislative Session

The Speaker of the Texas House has the power to stop bills from becoming law and the power to assign members to their committees and appoint chairs and vice chairs. Speaker Phelan (R-Beaumont) won a historically expensive reelection to his House seat over his opponent who had endorsements from AG Paxton, Lt. Governor Patrick, and President Trump. However, to win the Speaker role in the Texas House, it requires 76 votes of its 150 members. Phelan proclaimed he had the votes to retain the Speaker role, but State Rep. David Cook (R-Mansfield) and conservative groups forced Phelan to drop out of the speaker’s race by arguing that he was too aligned with Democrats. This set the stage for the House GOP Caucus to decide between Representatives Cook and Dustin Burrows (R-Lubbock).

The GOP Caucus is made up of all 88 Republicans and its rules dictate that members must vote for the endorsed candidate. The Caucus meeting turned contentious with several members walking out and not returning for the final vote. Representative Cook eventually won the endorsement of the GOP caucus after several rounds of voting. However, Burrows made a statement to the media that the race for Speaker was over and that he had the necessary 76 votes which included Democrats and Republicans. Burrows then appeared to lose that majority when certain House members claimed they did not actually support Burrows.

Meanwhile, Governor Abbott proclaimed that the next Speaker should be chosen by a majority of Republicans and Caucus rules. (Cook fits that description.) The House Democratic Caucus stated that their members could vote for any candidate except Cook–perhaps in part because Cook’s central campaign theme is to ban Democrats from holding committee chairs.

At this point, no candidate has laid their cards on the table and shown they have the necessary 76 votes to become the next speaker. The House must elect a speaker as one of its first acts or risk slowing down the entire legislative session, so candidates will need to whip votes between now and January 14, 2025, when the 89^th legislative session begins, if they are to avoid a contentious public vote on the floor of the House.

Be sure to have your popcorn popped that morning so that you are ready for the drama if things go down to the wire!

OAG Landowner Compensation Program

The Texas Legislature passed Senate Bill 1133 last session which appropriated $18 million in state money to compensate landowners of agricultural property along the Texas-Mexico border facing land and property damage from border-related crimes. Affected landowners can be reimbursed for repair costs not covered by other sources for up to $75,000 after filing a claim within 90 days of the incident. The damage must be documented in a written law enforcement agency report and meet other requirements to be eligible for compensation.

As of this writing, the Attorney General’s office has only issued $100,000 in disbursements, which means there are still plenty of funds for landowners. Please click this link to learn more about the process. 

Reminder: TDCAA books are going fast!

TDCAA offers a wide range of code books, practice manuals and legislative updates that take you from investigation to appeal. We have new editions of some of our most popular books available for sale now. They make great stocking stuffers for everyone on the Nice List.

Family Violence: From investigation through trial, the second edition of Family Violence is intended to instruct prosecutors, officers, and others in the criminal justice system about investigating and prosecuting family violence cases. Written by Staley Heatly, the 46th Judicial District Attorney in Vernon, the book includes checklists, forms, and sample pleadings as well as a narrative that leads readers through every step of the process and offers common-sense tips. A CD that accompanies the book contains sample forms as well as other helpful resources. Click here to order. ($48)

Warrantless Search & Seizure: Searching people, places, and vehicles is the starting point for this comprehensive look at warrantless searches and seizures written for prosecutors and officers. Warrantless Search & Seizure sets out the basics of 4th Amendment law then moves to more specific situations, including searches in cars, homes, offices, and schools, and the exclusionary rule—complete with handy reference charts in each chapter. The 2025 edition includes the latest updates on searches of cell phones, curtilage, use of anonymous tips (especially in DWI stops), drones, hemp, and dog sniffs. Click here to order. ($45)

Child Sexual Abuse: In the high-stakes world of prosecuting child sexual abuse, a prosecutor typically must work with little or no medical evidence, medical experts with varying degrees of expertise, a jury panel in need of education about the crime, and victims who may (understandably) crumble on the stand. The 2025 edition of this helpful manual, updated by Anshu “Sunni” Mitchell (Fort Bend County Assistant DA) and Jamie Felicia (Williamson County Assistant DA), walks prosecutors of all experience levels through the case, from investigation to the punishment phase of trial. This book will ship in early 2025 and can be pre-ordered now. ($45)

Please see our website for other books that are essential to prosecutors! 

Imminent Code of Criminal Procedure changes

The Texas Legislative Council’s ongoing code revision project made significant changes to five chapters of the Code of Criminal Procedure that become effective January 1, 2025. Chapters 2 (General Duties of Officers), 13 (Venue), 31 (Change of Venue), 45 (Justice and Municipal Courts), and 55 (Expunction of Criminal Records) have been updated with the goal of making them more logical and coherent without intending any substantive changes. Please click here for the only book that summarizes all the changes.

The Round-Up rides on

We have been cranking out weekly “Round-Up” emails all summer with links to interesting news stories on topics that may impact your work. If you aren’t already one of the 700+ subscribers benefitting from those emails, sign up here to start receiving those weekly updates in your inbox every Thursday morning.

Quotes of the month

“No concessions have been made. That would be illegal, and it’d be unethical, and I would never vote for a speaker who made concessions.”
           —State Rep. Dustin Burrows (R-Lubbock), answering if he has offered Democrats anything specific regarding continuing to appoint them as committee chairs or on school choice in order to secure votes as the next House Speaker.

“A remarkable feature of Texas politics is that, as the state has gotten more conservative, the result has been for Republicans to really ramp up their efforts against each other in order to maintain control over the levers of power.”
            —Joshua Blank, research director at UT-Austin’s Texas Politics Project, commenting upon the current intraparty fighting over who should be the next House Speaker.

“For far too long, city leaders have thumbed their nose at the Capitol and turned their backs on their own citizens. A District of Austin will keep residents and visitors safe.”
            —State Rep. Briscoe Cain (R-Deer Park), tweeting about his bill to turn Austin into a Washington, D.C.-style form of government controlled by the state legislature.

“We don’t even know who the leadership is, so we can’t figure out what the leadership wants when we don’t know who the leader of the House will be.”
            —James Henson, director of UT-Austin’s Texas Politics Project, commenting upon the surprisingly high number of bills that have been filed before many of the important players in the lower chamber have been confirmed.

“We’re also concerned people will take matters into their own hands and fire a weapon at an aircraft, not only is this act against the law, but it poses an incredible danger to the pilots and passengers on those aircraft.”
            —FBI Newark (NJ) Acting Special Agent in Charge Nelson Delgado warning the public to not shoot guns or point lasers at the mysterious drones in the sky.

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It’s the calm before the legislative storm in Austin. With the approaching holiday break followed quickly by our Elected Prosecutor Conference, we thought we’d send you our November wrap-up now, including a brief update on two state agency rulemaking issues we have been following for you.

Reminder: TDCAA Annual Business Meeting

Our Annual Business Meeting will take place on Wednesday, December 4, 2024, at 5:00 p.m. at the Marriott Woodlands Waterway in conjunction with our Elected Prosecutor Conference. Click here for details.

SB 22 rural law enforcement grants

In our October interim update we promised to tell you when the Comptroller of Public Accounts (CPA) proposed new rules for administering SB 22 grants. Those proposals came out in last Friday’s Texas Register and can now be viewed in HTML format here. The only change that applies specifically to prosecutors’ offices is a newly proposed definition of “investigator,” so be sure to review that if you currently direct SB 22 grant funds to one or more of your investigators. Our members’ acceptance and use of SB 22 funds varies, so you must read the full text of these revisions for yourself to determine whether they will impact your specific grants—we cannot do that for you. But that being said, we are happy to discuss any questions or concerns you may have after reading them, so reach out to Shannon as needed. And for those wishing to provide feedback to the CPA on these proposed rules, comments can be submitted to Russell Gallahan, Manager, Local Government and Transparency, Comptroller of Public Accounts, P.O. Box 13186, Austin, Texas 78701-3186, or (preferably) by email to [email protected]. T0 ensure the comptroller receives any comments in time to act on them, be sure to submit them no later than Friday, December 13.

OAG reporting requirements for urban offices

As required by the Texas Administrative Procedures Act, the Office of Attorney General (OAG) held a public hearing on Monday of this week for its proposed reporting rules for prosecutor’s offices in certain larger jurisdictions. (Click here for a previous summary.) The hearing lasted about 30 minutes, during which the agency received oral comments from 10 or so witnesses who were opposed to the rules, all of whom appeared to be associated with one or more of the Austin-area progressive groups and organizations who requested the hearing. No witnesses appeared in person to provide comments in favor of the proposed rules.

Now that the agency has complied with the legal mandate to hold a public dog-and-pony show upon request, there are no further statutory hurdles for OAG to clear, and the final version of its reporting rules could drop at any time between now and mid-March 2025. If/when that happens, the effective date of the new reporting mandates will be delayed a few weeks, giving anyone who objects to the new mandates time to seek legal recourse. Meanwhile, if you have any questions about this process or these proposals, feel free to contact Shannon.

And they’re off!

Legislators began prefiling bills for the 89th regular session (89RS) on Tuesday, November 12. A record number of more than 1,500 bills and resolutions were filed in the House and Senate on the first day, which was 40 percent higher than the previous record (set on the first day of prefiling last session). We are tracking hundreds of 89RS bills for you already using dozens of different tracks. Three of those tracks that are accessible to you online, right now, are our Penal Code, Code of Criminal Procedure, and Bills to Watch tracks that you can find in the “Bill Tracks” blue box on our Legislative webpage. These tracking lists are only going to get longer as the session picks up speed, but we’ll do our best to keep up with the avalanche of impending legislation in a timely manner.

The Round-Up rides on

For the past six months, we have been sending weekly “Round-Up” emails with links to interesting news stories on topics that may impact your work. The list of Round-Up recipients now exceeds 720 subscribers. If you want to benefit from those emails, sign up here to start receiving those weekly updates in your inbox every Thursday morning. (But not next Thursday–gobble gobble!)

Quotes of the month

“There’s no question he’s the leader of our party. So now he’s got a mission statement, and his mission, goals and objectives, whatever that is, we need to embrace it—all of it. Every single word. … If Donald Trump says, ‘Jump three feet high and scratch your head,’ we all jump three feet high and scratch our heads. That’s it.”
           —Texas Congressman Troy Nehls (R-Richmond), expressing his opinion on how Congress should react to President-elect Donald Trump’s upcoming agenda.

“The day of the small town is probably gone.”
           —Sandy Fortenberry, chair of the Lubbock County Historical Commission, as quoted in a recent Texas Tribune article on the modern challenges facing many rural population centers.

“[Speaker Phelan] has the votes to be elected speaker, I’m not concerned about that. … I’m not sure I could pick Rep. [David] Cook out of a line-up. I’m sure he’s a fine young man and wish him well, but he’s not going to be speaker when the gavel comes down.”
           —Former Gov. Rick Perry, now a senior advisor to Speaker Dade Phelan (R-Beaumont), in a TV interview given earlier this month concerning the current competition for that role next session, which includes the candidacy of 53-year-old Cook (R-Mansfield).

“We have, in so many of our cities, DAs that don’t prosecute crime, and the people of those cities suffer. … America PAC is going to aim to weigh in heavily on the midterms and intermediate elections, as well as just doing common sense stuff like having DAs who prosecute repeat violent criminals.”
           —Elon Musk, on future plans for the PAC he funded for the recent presidential election (Houston Chronicle, November 6, 2024).

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Congratulations on surviving the hottest, driest October in Texas since the Dust Bowl era. We are going to attribute this unseasonable warmth to this election cycle’s heated rhetoric until someone can prove otherwise.

Notice: TDCAA Annual Business Meeting

The Annual Business Meeting of the Texas District and County Attorneys Association will take place on December 4, 2024, at 5:00 p.m. at the Marriott Woodlands Waterway, 1601 Lake Robbins Drive, The Woodlands, TX 77380. At this meeting, voting members of the association will select officeholders for TDCAA’s Board of Directors and regional caucuses will select directors for Regions 1, 2, 4, and 7. Additional details will be posted on TDCAA’s website when they become available. For more information, contact Rob Kepple.

SB 22 update on rural law enforcement grants

Here are some highlights from an SB 22 online briefing hosted by the comptroller’s (CPA) office yesterday.

• Compliance reports for October fiscal year (FY) offices are due *today* (October 31).
• The CPA won’t accept the return of unspent funds until an office’s compliance report has been received and reviewed.
• The next round of grant funds based on approved October FY applications should start arriving Monday or Tuesday.
• January FY office applications will be accepted starting Saturday (November 2); that application period closes on January 31, 2025.
• Additional administrative rules for SB 22 grants are being crafted by the CPA for posting and public comment in the near future.

We will notify all offices when those rules are available for viewing and commenting. Meanwhile, if you have any other SB 22-related questions, feel free to reach out to Shannon for assistance.

Is busting norms the new norm in Austin?

Unless you spent this past month vacationing in exotic places that have things like “rain” and “fall weather,” the Robert Roberson (non-)execution saga coming out of Austin has been inescapable. While many journalists and political pundits have focused on the strange fault lines that Roberson’s case has revealed among various factions of the Texas GOP, we wanted to take a step back and look at these events through a different lens.

This month’s proceedings mark the second time in two years that an interim House committee has summoned an elected prosecutor to appear in Austin to answer why he or she is defending a death sentence in the appellate courts. But unlike the Melissa Lucio case of 2022—in which the DA told the committee that further post-conviction litigation was in the offing, which proved to be true, leading to no further action by the committee—the Roberson execution went down to the wire. That exhaustion of court remedies led to an unprecedented legal intervention by certain House members who raised a separation-of-powers issue of first impression and were granted a review by the Texas Supreme Court. It was—to use this word as the good Lord intended—literally unprecedented.

Now, subpoenaing a death row inmate to prevent him from being taken to the execution chamber is certainly “up there” on the list of ways to shatter norms and commonly-accepted procedures, but then, “death is different,” right? That’s always been the m.o. of some death row inmates’ lawyers and advocates who feel justified in bending—or where necessary, breaking—rules of professional conduct in order to save their clients’ lives. So in that vein, perhaps the only thing novel about what happened in the Roberson case is that it was legislators, not his appointed counsel, who “got creative” in order to delay his execution (although both are clearly working hand-in-hand in this case).

But is this a one-off?

These two House committee re-investigations of individual cause célèbre death penalty cases may be outliers, or they may be early signs of things to come. For instance, an incoming GOP legislator tweeted a thread of X posts back in September explaining how he and his allies might use legislative committees’ latent investigative powers on various topics if given the opportunity. (And that thread pre-dated the unprecedented actions taken by the House committee in the Roberson situation, for what that’s worth.) And in a similar vein, many of you are aware of the wildly overbroad new reporting requirements being proposed for prosecutor offices in certain jurisdictions that are really just a thinly-veiled attempt to drum up grounds for removing certain prosecutors from office. (And by the way, those unprecedented reporting rules are being proposed by the same statewide official currently helping to defend the conviction and sentence in the Roberson case, and the tweeting legislator referred to above represented that statewide official in last year’s impeachment proceedings and has also been vocally opposed to what the House committee is doing in the Roberson case. Oh, and the House committee efforts to derail Roberson’s execution are being led by two former House impeachment managers, one a Republican and one a Democrat. Like we said, interesting fault lines, no?)

So, what are some takeaways from these observations?

First, if you aren’t aware of the seismic shift in politics currently going on, now is a good time to pay attention. The old liberal-conservative D-R political dichotomy is dead, long live the new political dichotomy—just don’t ask us to try to coherently define the beliefs of either side right now, because things are changing under our feet as we speak.

More specifically, though, we want you to ponder this potential change: As the state legislature in Austin continues to turn into more of a D.C.-style congressional swamp of centralized power and partisan politics, don’t be surprised when state officials of any and all political stripes make greater use of the powers they have given themselves to “investigate” local governmental offices or actions, including local court cases and outcomes. Things in state policymaking may become much more like “death is different” death penalty litigation in which accepted norms of conduct are pushed aside because the ends justify the means. As a result, local officials should now be on notice that quaint notions like limited government and the separation of powers doctrine are increasingly becoming passé in Austin due to the change in polarity occurring in our traditional politics.

Interim committee hearing recaps

The Senate Criminal Justice Committee took testimony on organized retail theft and financial crimes, and for a moment we thought we had stepped through a time portal back to the early 2000s. Gone were the smart-on-crime mantras about property crimes such as “we should only lock up the people we are afraid of, not the people we are mad at.” In their place was testimony from mad merchants and retailers complaining about shoplifting and related organized crimes, and the committee members sounded ready to enhance whatever needed to be enhanced to crack down on such property crimes. Of course, in reality, such enhancements are ineffective unless the offenders are first caught, thorough investigations are conducted, and those cases are then prosecuted. To help on that three-step front, look for proposals next session to streamline relevant statutes, improve data sharing between law enforcement and retailers, and perhaps even provide state-funded investigation and prosecution resources to local officials challenged by these often complex cases.

The Senate State Affairs Committee reviewed multiple topics this month, including a proposal to criminalize the wearing of a mask during certain criminal acts (read: protests that get out of hand) and an inquiry into the proliferation of THC-infused beverages now for sale in a state that allegedly makes such products a crime. Our takeaway on the latter is that several members of the Senate are ready to try to put the cannabis genie back in the prohibition bottle, but they may face an uphill battle (especially in the House) due to all the money the cannabis industry has raked in over the past several years by taking advantage of the loopholes and gray areas of a law that was based on 2018’s federal Farm Bill, the update and fixes for which members of Congress in D.C. cannot seem to pass either.

One other aside: In two different committees hearings this month, two different Republican state senators (from districts 500 miles apart) publicly expressed support for granting OAG more authority to unilaterally prosecute criminal offenses in different contexts. So, if you thought that debate was over after the Stephens opinions, we have some bad news for you.

Upcoming interim committee hearings

With the election and its resulting apple-cart-turnover effect nearing, none of the committees that we follow have posted notice for hearings next month. With pre-filing of bills for next session opening on Monday, November 11, most legislators will turn their focus in that direction until new committees start to meet in February 2025.

The Round-Up rides on

We have been cranking out weekly “Round-Up” emails all summer with links to interesting news stories on topics that may impact your work. If you aren’t already one of the 650+ 700+ (it’s getting higher every month!) subscribers benefitting from those emails, sign up here to start receiving those weekly updates in your inbox every Thursday morning.

Quotes of the month

“We had all these wonderful bills pass the Texas House pretty decisively. And then when we got to the Texas Senate, the door was just slammed on our faces.”
           —Elsa Alcala, former judge on the Court of Criminal Appeals who later lobbied on behalf of several controversial anti-death penalty bills proposed by the Texas Defender Service, as quoted in a recent Texas Tribune story detailing the House–Senate fault lines for criminal justice reform brought to light by the Robert Roberson case.

“Voters don’t know data. What they know are anecdotes. And over the last four years there have been a massive number of televised anecdotes with store break-ins or other violent acts that have created the perception of crime run amok.
           —Roy Behr, Democratic political consultant in California, as quoted in an LA Times article about incumbent Los Angeles DA George Gascon’s flagging re-election prospects.

“Politicians are not in the truth business, but in the power business, … [and] quite often the truth is collateral damage.”
           —Victor Menaldo, political science professor at the University of Washington, as quoted in an Axios article about falsehoods on the campaign trail.

“A lot of marijuana.”
“There are not enough gummies I can take to soothe the angst!”
“A lot of Scotch.”
           —Some of the “coping mechanisms” voters confessed to needing during the waning days of the presidential election, as told to the Wall Street Journal in an article titled “America Is Having a Panic Attack Over the Election.”

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Why does everything happen when we leave town?!? Not only were some state policymakers remarkably busy back in Austin while we were at last week’s 2024 Annual Conference in Galveston, but we also have lots of association-related news to pass along as well. Read on for details!

OAG rulemaking

Our March 2024 interim update included a notice that the Office of Attorney General (OAG) had proposed voluminous and wide-ranging reporting duties for prosecutors in certain counties. There wasn’t much news to share after that, however, because OAG never acted on that proposal and eventually ended up withdrawing it on August 30, two weeks before it would have died on the vine by operation of law. So, good news, right?

Well, yes, except that OAG proposed new, revised reporting rules in the September 13 issue of the Texas Register, which you can read for yourself in full here. While the gist of the new proposal is similar to the original version, there are differences between the two which include:

• The reporting rules now apply only to CAs and DAs in counties with a population of 400,000 or more people, as opposed to 250,000. (That excludes these counties formerly included in the scope of the original rules: Brazoria, Bell, Nueces, Galveston, Lubbock, Webb, McLennan, and Jefferson.)
• The new rules require the reporting of data back to January 1, 2021 (not 2023).
• Instead of authorizing the OAG to file a removal action (which it has no authority to do), the new proposal says OAG may “construe” noncompliance as “official misconduct” under the removal statute—which is completely without any legal authority or significance, but perhaps it is intended to be an incentive to a local citizen to file a removal action based on that specious “finding”?
• The new cost estimate for compliance by affected prosecutors is one scanner and one staffer working 1-10 hours per week. (Which is laughable considering the overbroad scope of the potential unfunded mandate, but if that is how that agency budgets its own resources, it could explain a lot.)

As with OAG’s first aborted attempt at rulemaking, the public has 30 days to comment on this proposal. That comment period closes on Monday, October 14, so anyone so inclined should submit written comments before then in the manner described by the posting on September 13 that is linked above. We will keep you posted as news on this front develops, but if you have further questions before then, please contact Shannon.

Charette and TEC

In the September 13 edition of our popular Case Summaries we provided an explanation of the controversial holding by the Court of Criminal Appeals (CCA) in Ex parte Charette. In a nutshell, the CCA held that trial courts—and thus, local prosecutors—lack jurisdiction over criminal violations of certain election and campaign laws unless the Texas Ethics Commission (TEC) has first exhausted all administrative remedies in that matter or officially referred to the case to the prosecutor for criminal enforcement. It’s too soon to know the full impact of this opinion, but the TEC held a meeting earlier this week and may end up proposing rules to expedite criminal referrals to local prosecutors. We will alert you if/when that happens. Meanwhile, some prosecutors may seek a rehearing from the CCA on this matter, while over in the capitol, some legislators are already researching a statutory fix to this unexpected ruling.

House of Cards, Austin-style

The biennial selection of the Speaker of the Texas House of Representatives is one of the few things in politics that still happens behind closed doors—or in this case, “behind closed doors at a BBQ joint in Austin,” to be specific. That’s where a group of Republican House members came together to select State Rep. David Cook (R-Mansfield) as their favored speaker candidate in the internecine battle to unseat current Speaker Dade Phelan (R-Beaumont). You probably already read about this in your local news source of choice so we will spare you a discussion of vote thresholds and caucus rules and other boring stuff and simply remind everyone that this kind of jockeying means little until November 6, the day after the general election results are final. Until then, anyone on the outside who claims to know with certainty who the next House speaker will be is fooling themselves.

Texas Judicial Council

The Texas Judicial Council (TJC) met this morning to, among other things, review and adopt certain legislative recommendations by its various committees. We don’t have written copies of those recommendations yet, but the discussion included initial approval of proposals to:

• Increase the judicial benchmark salary by 30 percent, create a third salary tier at 12 years of experience, and authorize automatic cost-of-living increases in future years
• Create a SB 22-type grant funding program for rural judicial personnel and court staff
• Create a loan repayment program for public defenders and private attorneys representing indigent people in criminal, juvenile, and child welfare cases
• Protect judicial personnel’s personal information to limit harassment
• Enhance penalties for crimes committed at courthouses or against court personnel
• Expand public safety report (PSR) access to other stakeholders (including prosecutors)
• Amend the timelines under CCP Art. 17.151 to take offense severity into consideration
• Allow judges to deny bail in more situations (i.e., preventive detention)
• Impose minimum experience requirements for the appointment of magistrates and associate judges
• And a slew of recommendations from the Judicial Commission on Mental Health that were not described in further detail

It remains to be seen whether any of these proposals make it into actual legislation, but if so, you now know where they came from.

Interim committee hearing recaps

Highlights of what legislators discussed in September in various interim committee hearings include:

• The House Criminal Jurisprudence Committee reviewed implementation of HB 6 by Goldman (fentanyl murder) and heard that at least 46 such charges have been filed statewide since the law took effect. Montgomery County ADA Shanna Redwine and Tarrant County ACDA Sarah Bruner both testified before the committee about their experiences with the new law.
• That committee also heard testimony in support of what failed to pass last session as HB 327 by Thompson, a bill to expand the defense of duress with the goal of short-circuiting the prosecutions of defendants who claim to have been victims of human trafficking (although the text of the bill is not limited to those situations).
• The House Judiciary & Civil Jurisprudence Committee heard testimony from Texas Supreme Court Chief Justice Nathan Hecht recommending a judicial pay raise and the adoption of a uniform (read: Tyler Technologies) case filing system throughout the state to facilitate data collection and other efficiencies.
• The Senate Transportation Committee’s review of autonomous vehicle (AV) laws revealed that Texas has become the epicenter for AV commercial trucking thanks to a combination of strict legal limits in California and lax limits here, so you can probably expect to see more traffic safety-related issues arise in your jurisdictions in the future involving those driverless vehicles.

Upcoming interim committee hearings

Relevant interim charges posted for consideration in October include the following—a list made longer by the Lite Guv’s announcement of 21 additional charges for Senate committees to delve into this autumn.

Monday, September 30

House State Affairs, 9:00 a.m., Room E2.016

• Border security

Wednesday, October 2

House Judiciary & Civil Jurisprudence, 9:00 a.m., E2.012

• Judicial compensation

Thursday, October 10

Senate Criminal Justice, 10:00 a.m., E1.028

• Retail theft
• Financial crimes
• Forensic evidence collection in sexual assaults

Wednesday, October 16

Senate State Affairs, 9:00 a.m., E1.028

• Unmasking protestors

Thursday, October 17

Senate State Affairs, 9:00 a.m., E1.028

• Social media and protecting children
• Beverages with THC
• Public trust in government (open records and open meetings)

Many of these postings include more topics than the ones we have listed above, so for complete information about a specific hearing, click on the link to the committee. For additional questions, contact Shannon.

Annual Conference recap

We had another successful Annual Conference last week! It was great to see so many friendly faces learning and networking together. Special congratulations go out to this year’s award winners who were recognized in Galveston, including Prosecutor of the Year Fredericka Sargent (Tarrant County ACDA), Lone Star Prosecutor Awardees Eric Erlandson (Cooke County ADA) and Chris Gatewood and Richard Vance (Smith County ACDAs), and C. Chris Marshall Awardees Allenna Bangs and Ronny Dale Smith (Tarrant County ACDAs).

Other newsworthy items coming out of the Annual Conference included the announcement that our Annual Conference will return to Round Rock’s Kalahari Resort in 2025 and change to a Tuesday-through-Thursday schedule (more details available here). In addition, TDCAA’s Board of Directors adopted an increase in conference fees starting in 2025. Going forward, most of our fee-based courses will be charged as follows:

• $250.00 for a Training-only registration
• $500.00 for a full Training and Association fee registration
• $750.00 for attendees outside of TDCAA’s service group

The Board did not make this decision lightly, but unfortunately, post-pandemic inflation has spared no one. For what it’s worth, our current fees were last raised in 2014, more than a decade ago—not many outfits can say that!—and our conference costs remain a bargain compared to most other CLE providers. But to ease the impact of that news, let us tell you about some free training we are currently offering.

Free regional trainings in October

We are traveling to four TDCAA regions next month to talk in person with elected prosecutors and their leadership teams about various issues in the offing for 2025. To learn more about these events in Waco (Oct. 18), Fredericksburg (Oct. 18), Mineral Wells (Oct. 25), and Conroe (Oct. 25), visit our training webpage. These free events are open only to TDCAA members, and our reserved hotel room blocks close soon, so sign up today!

Free online trainings

TDCAA is proud to invite you to remotely attend our first online juvenile law course! Click here to register for Introduction to Juvenile Law, which is worth 4 hours of MCLE to those who complete it.

Our Grievances & Prosecutorial Ethics online course is also available again. Dues-paying members of TDCAA can obtain 2.75 hours of free ethics MCLE by completing this course, which has been updated to include an additional 0.75 hours of credit covering recent changes to the state’s ethics rules that take effect October 1, 2024.

Key Personnel–Victim Services Board elections

Elections for the 2025 TDCAA Key Personnel–Victim Services Board (representatives for Regions 1, 2, 3, and 7) will be held on Thursday, November 14, at our Key Personnel & Victim Assistance Coordinator (KP–VAC) Conference in Sugar Land. If you know of people in your office who would be a good fit for this board, please consider sharing this information with them and encouraging them to attend. And if you have any questions, you may direct them to [email protected].

The Round-Up rides on

We have been cranking out weekly “Round-Up” emails all summer with links to interesting news stories on topics that may impact your work. If you aren’t already one of the 650+ subscribers benefitting from those emails, sign up here to start receiving those weekly updates in your inbox every Thursday morning.

Job posting

The application period for the position of TDCAA Staff Counsel & Director of Governmental Relations ends today, and interviews to fill that position will be held in October. For more information or last-minute applications, click here.

Quotes of the Month

“It is an honor to have earned the trust and support of over half of my Republican colleagues who will be serving in the 89th Legislative Session. This vote highlights the growing momentum for change within the Texas House, as members rally behind a shared vision of a decentralized leadership model that empowers all members.”
           —State Rep. David Cook (R-Mansfield), in a tweet after he emerged from a group of six House Republicans as the chosen candidate to try to unseat current speaker Dade Phelan.

“Today’s gathering is little more than an orchestrated scheme to generate headlines and fuel social media clicks, driving our caucus headlong into unnecessary chaos. … Not only are their actions disappointing and unacceptable, they are futile, as I proudly have the clear majority votes needed to be the Speaker today, and will have the clear majority support needed to become Speaker again come January.”
           —Current Speaker Dade Phelan (R-Beaumont), tweeting his response to news that a “reform caucus” of House Republicans selected a standard-bearer in their challenge to Phelan next session.

“This case is not over. I will continue to fight this on the merits to uphold Texans’ ability to defend themselves, which is protected by State law. While Texas clearly prohibits this type of gun ban, I will be working with the Legislature this session to protect law-abiding citizens’ Second Amendment rights on public property.”
           —Attorney General Ken Paxton, in a press release issued after the Texas Supreme Court unanimously rejected his attempt to overturn the decision by the State Fair of Texas to ban firearms on its grounds. (You can also read the short concurrence to the denial for some rather scathing criticisms of the AG’s legal arguments—or lack of arguments—in this lawsuit, which appears to have been little more than a publicity stunt in support of future legislation.)

“Yesterday was the autumnal equinox here in Texas, which makes today the first full day of fall. Or, as we here in Texas call it, fake news.”
           —Tweet earlier this week by @TracesofTexas, one of our favorite follows.

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Somebody warn the good people of Galveston County because “Tropical Storm TDCAA” is blowing into town soon!

Annual Conference bonus course

Are you one of the 1,000+ people descending upon lovely Galveston for our 2024 Annual Conference in three weeks? If so, don’t miss TDCAA’s pre-conference training on Understanding & Effectively Using DNA Evidence. This free training will be held the afternoon of Tuesday, September 17^th at the Moody Gardens Conference Center in Galveston, but it requires separate registration (available here) from the Annual. Check out that link and sign up today if you can make it!

“There’s a big difference between mostly dead and all dead.”

Channeling Billy Crystal’s “Miracle Max” in the Princess Bride is apparently the approach law enforcement advocates intend to take at the Legislature next session as they seek legislative permission to use all less-lethal devices and munitions, regardless of context or result.

As pitched to the House Committee on Homeland Security & Public Safety earlier this month, the as-yet-unwritten legislation would remove those devices from the statutory definition of what constitutes a firearm in an attempt to limit criminal liability for their (mis-)use on the job. (Perhaps related to the reference to firearms in the Deadly Conduct crime? That was not made entirely clear.) And like many ideas at the Lege, there may be a good reason for doing this—but it’s not necessarily the real reason for doing it.

The “good reason” for a legislative fix centers on Axon’s new TASER 10 (“T-10”), which apparently uses technology to increase its reach that may also bring it under the state definition of a firearm in PC §46.01(3). We are not aware of any prosecutors who have expressed an eagerness to treat them as such, but Axon must think a change is needed because that vendor had a representative at the hearing to say as much. And, to the extent a tweak to that definition would encourage the use of that less-lethal device in lieu of traditional firearms, that might be good public policy.

That said, a good deal of the testimony at the hearing was related to complaints about the Dallas and Travis County DAs charging officers during the George Floyd-related protests for using non-Taser less-lethal devices that resulted in serious injuries to some protestors. (Interestingly, one former Dallas PD officer pled guilty and was sentenced for that misconduct earlier this month and the City of Austin just settled a multi-million dollar lawsuit over similar conduct this week.) In that context, early indications are that the preferred law enforcement solution for fixing the “T-10 problem” is to re-define firearms to exclude all less-lethal devices used by peace officers, regardless of what type of projectile is sent downrange.

It seems to us that there could be a simple and easy way to address T-10 re-classification without giving officers carte blanche to (mis-)use all “mostly deadly weapons” (as Miracle Max might call them), but those finer aspects of the potential solution were not discussed because the hearing was limited to only a few invited witnesses. Legislation on this topic will be filed during the regular session starting in January, so if this topic interests or concerns you, start thinking now of what you can and cannot live with because you are likely to be asked come session time.

Interim committee hearings

Here are some relevant interim charges cued up for consideration in September:

Thursday, September 5

Senate Finance, 9:00 a.m., Room E1.036

• Mental health services and inpatient facilities

Tuesday, September 17

House Judiciary & Civil Jurisprudence, 9:00 a.m., E2.014

• HB 19 oversight (Texas Business Court)
• HB 841 oversight (judicial statistics and data collected by OCA)
• HB 2384 oversight (court administration and judicial qualifications)

Wednesday, September 18

Senate Transportation, 9:00 a.m., E1.016

• Autonomous vehicle safety

House Select Committee on Youth Health & Safety, 10:00 a.m., E2.014

• HB 3 oversight (public school safety and security)

Thursday, September 19

Senate Border Security, 10:00 a.m., E1.016

• Transnational criminal activity, including organized crime fuel theft

Monday, September 30

House State Affairs, 9:00 a.m., E2.016

• Border security

Many of these postings include more topics that we have listed above, so for more complete information about a specific hearing, click on the link to the committee. For additional questions, contact Shannon.

Now showing: Introduction to Juvenile Law

TDCAA is proud to invite you to our first online juvenile law course! This training covers the fundamentals of juvenile law ranging from terminology to juvenile trials and records confidentiality. Our team of juvenile law experts from across the state give insights for prosecutors practicing in both rural and urban jurisdictions. The course will help prosecutors new to juvenile law as well as veteran prosecutors who would like to learn more about this often overlooked but crucial area of our justice system. Viewers who complete the online course will receive 4 hours of CLE.

Click here to register for this free course.

Ethics rule changes

The Texas Supreme Court has officially adopted most of the changes to the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure, as previously approved during the State Bar’s Rule Vote in April. As part of TDCAA’s efforts to keep you up to date, we will be releasing an updated version of our Grievances & Prosecutorial Ethics online course that will include a presentation on these new rules and how they may affect prosecutors. That updated course will include 2.75 hours of MCLE Ethics as a paid-member benefit of TDCAA and will be available in early September, well before the new rules officially take effect on October 1, 2024.

If you would like to read the Supreme Court’s announcement on the new rules, please click here.

Key Personnel–Victim Services Board elections

Elections for the 2025 TDCAA Key Personnel–Victim Services Board (Regions 1, 2, 3, and 7) will be held on Thursday, November 14, at our Key Personnel & Victim Assistance Coordinator (KP–VAC) Conference in Sugar Land. This board is important because it helps prepare and develop operational procedures, standards, training, and educational programs for the people that make your office run like a well-oiled machine. To be eligible to serve on this board, each candidate must have the permission of his or her elected prosecutor, attend the election in person, and have paid membership dues prior to the meeting. If you know of people in your office who would be a good fit for this board, please consider sharing this information with them and encouraging them to attend. And if you have any questions, you may direct them to [email protected].

The Round-Up rides on

We have been cranking out weekly “Round-Up” emails all summer with links to interesting news stories on topics that may impact your work. If you aren’t already one of the 600+ subscribers benefitting from those emails, sign up here to start receiving those weekly updates in your inbox every Thursday morning.

Quotes of the Month

“It scares the public that a murder case got dismissed. [But this] was never a murder case. This was always a justified homicide. In fact, we have the investigating officer at the scene saying six or seven times, “Yeah guys, this is a justified homicide here.’”
           —Bryan Cantrell, defense attorney for a Houston man recently released from the McLennan County Jail after prosecutors there determined a fatal shooting was justified under state self-defense laws.

“The problem is not [a lack of TJJD staff]. The problem is the model. The problem is putting kids in prisons. It’s never going to work. It’s kind of a deep moral intuition, I think, that we all have—that children don’t belong in prisons.”
           —State Rep. James Talarico (D-Austin), during an interim committee hearing on oversight of the Texas Juvenile Justice Department.

“It won’t be long before we will yearn for the days of our homegrown West Texas lunatic billionaires around here.”
           —Anonymous Texas GOP operative, quoted by the Quorum Report in reference to Pennsylvania TikTok investor Jeff Yass donating roughly $18 million to pro-school voucher candidates and causes in Texas during the current election cycle.

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We are a day late* on this July update, but so much news happened the past two days that it seemed prudent to wait so we could include it here. Read on for details!

(* – and if when you read that your brain added “and a dollar short!” you are our kind of people.)

Changing of the guard

Last week, TDCAA’s Board of Directors formally named our own Shannon Edmonds to be the next executive director of the association. Shannon will take over for Rob Kepple, who announced earlier this year that he would be retiring at the end of 2024. For more details, see the association’s press release.

There will be more from us in the months to come on this transition (and celebrating Rob’s amazingly successful tenure!), including finding a new director of governmental relations to take over Shannon’s role. Look for that job posting on our website in the coming weeks.

SB 22: Round 2

The Comptroller’s Office hosted another SB 22 stakeholder workgroup meeting yesterday. Key takeaways include the following:

• The online application process for Year 2 of the SB 22 Rural Law Enforcement Grant Program should be very similar to that used for the inaugural grants, but the agency hopes to award funds more quickly (in days or weeks after application, rather than months).
• For jurisdictions with fiscal years starting October 1, 2024, the online application period will open on Friday, August 2 (yes, that’s tomorrow!) and close on Thursday, October 31.
• For jurisdictions with fiscal years starting January 1, 2025, the online application period for Year 2 will open on Saturday, November 2 and close on Friday, January 31.
• The format of the compliance reports for the agency’s review of its initial grants is still being finalized, but they will also be due by those same deadlines (Oct. 31 or Jan. 31).
• Compliance reports will include an employee certification for prosecutors to confirm that any funds used for VAC positions went to an employee who met the definition of that position as defined by statute and agency rule.

The grant administrators have continued to post helpful information on their SB 22 webpage, including FAQs and a step-by-step guide to completing applications. If your application period opens tomorrow, be aware that many people may be trying to access the application portal at the same time, so please be patient. And if you are unable to log in, email [email protected] so the good people at that agency can help iron out any problems.

Judicial compensation

The Judicial Compensation Commission (JCC) took public testimony yesterday in preparation for making recommendations to the legislature on whether—and how much—judicial compensation in Texas should be increased. (And with it, the state salaries of elected felony prosecutors and the state supplements for elected county attorneys.)

If you recall from the most recent legislative cycle, the JCC’s 2022 report (PDF available here) recommended a 22 percent increase to the judicial benchmark salary of $140,000 as well as the adoption of the cross-credit service concept for judges and prosecutors to protect their seniority. That second bit crossed the finish line and was signed into law (as was a separate measure to grant certain elected DAs longevity pay), but general pay raise legislation died a grisly inter-chamber death when the House and Senate could not agree on a solution. Now, the JCC is again tasked with crafting an updated judicial compensation report for legislators to consider in 2025.

At today’s hearing, the JCC members heard testimony from Chief Justice Hecht and a judicial representative for the intermediate appellate courts, district courts, and county courts, respectively, along with witnesses representing both sides of the civil justice system (plaintiff and defense bar). Prosecutors were also well-represented thanks to Comal CDA Jennifer Tharp and 8^th Judicial DA Will Ramsay. These witnesses covered all the usual bases while also noting new factors negatively impacting the recruitment and retention of judges and elected prosecutors, both economic and personal (such as the increase in threats made against the judiciary). The various presentations seemed to be well-received by the JCC members, who will take the comments into consideration when making their final recommendations to the legislature this fall. Keep an eye out for more details on that report in a future lege update.

House Bill 17

Hurricane Beryl led to the cancellation of several interim hearings in July, but the House Criminal Jurisprudence Committee was still able to meet in Austin to review the implementation of various bills from last session, including HB 17 by Cook (R-Mansfield), the so-called “rogue prosecutor” bill. Testimony on the implementation of HB 17 was relatively brief, with the bill’s author taking the opportunity to point out that the lack of prosecutors being removed for HB 17-related violations is proof that the deterrent intent of the bill is being fulfilled.

While that change in practice by some prosecutors may satisfy many legislators, this general topic is still of political interest at the national level during a presidential election year, so don’t assume that the successful implementation of HB 17 will be the last we hear of this subject.

For those interested in more details of the committee’s review of HB 17, you can fast-forward to the 02:21:30 mark of this archived video to watch that 35-minute discussion.

Artificial intelligence (AI)

The 88^th Legislature passed a bill in 2023 to create an Artificial Intelligence Advisory Council (AIAC) that will present recommendations to the 89^th Legislature for legislation to consider in 2025 related to that topic. The AIAC held a hearing this month at which it took testimony on the impact AI is having on local governments, including prosecutors’ offices. The latter topic was very ably addressed by prosecutors Mike Holley and Chris Seufert from the Montgomery County DA’s Office, who discussed how their office uses AI to help prosecute case more efficiently and, conversely, how the bad guys are also using AI to commit new crimes (especially crimes involving deep fakes and child pornography, two topics which the legislature is planning to address next session). Those interested in reviewing their testimony and the AIAC’s overall consideration of prosecution-related issues surrounding AI can watch that 40-minute excerpt via this archived video (start at the 02:39:50 mark).

Also, keep an eye out for an article from Mike Holley in our next issue of the Texas Prosecutor discussing how his office is exploring the promise and pitfalls associated with AI. Montgomery County DA Brett Ligon and his staff are operating at the forefront of this new technology and we are grateful they are sharing that experience with the rest of our membership.

Upcoming hearings

Here are some relevant interim charge topics cued up for consideration in August:

Thursday, August 15, 2024

House Homeland Security & Public Safety, 10:00 a.m., Room E2.012

• Implementation of SB 602 (authority of federal border patrol)
• Law enforcement use of less-lethal devices

Tuesday, August 27, 2024

Senate Business & Commerce, 9:00 a.m., E1.012

• Monitor the findings of the AIAC and make recommendations for future AI regulations

For more information about a specific hearing listed above, click on the link to the committee. For additional questions, contact Shannon.

Round-Up rides on

We have been cranking out weekly “Round-Up” emails all summer with links to interesting news stories on topics that may impact your work. If you aren’t already one of the hundreds of subscribers benefitting from those weekly emails, sign up here to start receiving them in your inbox every Thursday morning.

Election Law Seminar

The Secretary of State’s Office is hosting its 42nd Annual Election Law Seminar for County Election Officials in Austin on August 12–14, 2024. To learn more about this training, click here.

TAC Legislative Conference

The Texas Association of Counties’ 2024 Legislative Conference will also be held in Austin at the end of August. Early bird rates end August 6, so to learn more about this course or to register for it, click here.

Quotes of the Month

“Our bill is working as we intended & internal policies at the @DATravisCounty have been changed.”
           —State Rep. David Cook (R-Mansfield), author of HB 17 to “rein in rogue district attorneys,” in a tweet after the House Criminal Jurisprudence Committee reviewed implementation of that bill.

“What we intend to show is that negligence doesn’t explain this oversight. It is the role and function of prosecutors to be aware of the elements of the statutes that they are charging.”
           —David Donatti, ACLU of Texas lawyer representing Lizelle Gonzalez, who is suing her local sheriff and prosecutors after being mistakenly jailed for murder following a self-managed abortion in 2022.

“We agree with the ACLU in that ‘we expect and demand that our elected officials follow the rule of law.’ … This is why we are calling on all DA offices, including Starr County, to direct their resources and attention toward the pro-abortion cartels smuggling abortion pills across the border and advertising illegal abortions on billboards in South Texas. Every district attorney should follow Texas’ pro-life laws.”
           —Dr. John Seago, president of Texas Right to Life, commenting upon the lawsuit filed by Ms. Gonzalez (above).

“Like so much else these days, responses are likely to be a Rorschach test. People will pull out the points that best advance their political and policy agendas. You can slice and dice the numbers almost any way you want if you are so inclined.”
           —Adam Gelb, president and CEO of the Council on Criminal Justice, as quoted in a New York Times article about a recent report from that group showing homicides continuing to decline from recent peaks during the pandemic.

“Normally going into session is a fun exercise. We look forward to it. In this atmosphere, with so many combative camps, there’s a lot of uncertainty and consternation about how the session will unfold.”
           —State Rep. Carl Tepper (R-Lubbock), as quoted in a Dallas Morning News story about Texas House Republicans’ summer of discontent following their bruising primaries.

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Things have been relatively quiet in Austin so far this summer. Welcome to the summer doldrums. ’Tis the season for out-of-office vacation email replies from “texas.gov” addresses, so that has given us some free time to ponder big issues.

Polls don’t lie, do they?

If you have been feeling professionally unpopular of late and need some validation of those bad vibes … well, you’ve come to the right place. As it turns out, the public does hold a negative perception of our legal system, and to the extent prosecutors are lumped in as part of the “criminal justice system,” you may be suffering the effects of some of that unpopularity. Read on for details.

The numbers
According to a poll of 1,200 registered voters in Texas taken this month by the good people at the UT/Texas Politics Project (UT/TPP), only 6 percent of respondents held a “very favorable” view of the criminal justice (CJ) system while 24 percent had a “very unfavorable” opinion of it. Add responses from the “somewhats” to those “verys” and the total net favorability rating of the CJ system clocks in at -22 points (27 percent pro vs. 49 percent con). Compared to the 14 other institutions measured in this popularity poll, the CJ system tied for a lowly 11^th-place finish with “major foreign corporations” (hello, TikTok?) and only slightly ahead of the national news media (-23) and the federal government (-26).

Oof. Not great, Bob! (As the kids say.)

Analysis
We went down the polling rabbit hole to try to suss out the cause of these bad numbers (i.e., why are the ratings so low and when did things get this bad?). Unfortunately, we drilled mostly dry holes because UT/TPP has not asked this specific question about the CJ system consistently over time.

What we did glean from past UT/TPP polling is that the 2024 numbers are similar to 2022 returns for the combined favorability of the courts and CJ system (also -22 net favorability). That makes the fact that the latest poll was done on the heels of the recent verdict in former President Trump’s trial in New York less relevant as a driver of these numbers (for those who might have wanted to grasp at that excuse). The only similar TPP poll question we could find was from 2015, when the combined courts and CJ system clocked in with a favorability rating of -3, much higher than the current numbers. So, that helps narrow down the “when” question, with the likely culprit being the societal changes experienced circa 2020—of which there were too many to narrow down to a single culprit. But while we can’t authoritatively tell you why the criminal justice system’s favorability rating has tanked over the past nine years, we can tell you with whom it has tanked—namely, everyone (yikes!), but in different ways and to different degrees.

Comparing the 2015/2022/2024 poll results from above broken down by ideological self-identification, liberal voters’ net favorability ratings for the courts and CJ system for those three polls were -11/-39/-20, independents’ ratings were +1/-18/-16, and conservatives’ ratings were -5/-15/-26. So, all three cohorts saw a dramatic decline in favorability between 2015 and 2022 that persisted into 2024, but the trend lines differ for all three groups.

For liberal respondents, the favorability rating started badly (-11) in 2015, went down dramatically (-39) by 2022, but is trending more favorably (-20) in 2024 (although still strongly negative). For independents, the trend started neutrally (+1), dropped sharply (-18) by 2022, and has stabilized (-16) in 2024 in solidly negative ground. But for conservatives, the favorability rating for the courts and CJ system started mildly negative (-5) in 2015, got slightly worse (-15) by 2022, and has continued its downward slide (-26) in 2024. In other words, while the CJ system’s net favorability rating is strongly negative across all three ideological groups, it has rebounded among liberals and stabilized among independents but continues to drop precipitously among conservatives.

And in a state run by people who are largely elected by conservative voters, that matters.

Caveats
Yes, yes, you may be reading this and saying to yourself, “But wait! Surely there are some silver linings here! Throw me a bone!” And indeed, there are some limitations to this back-of-a-napkin analysis.

For starters, “courts and CJ system” is not synonymous with “prosecutors”—you are a part of that system but not the whole. For example, law enforcement officers are also a part of the CJ system but they remain very popular in separate polling (+36 net favorability rating). (We’ll let you decide if that helps our hurts your case for distinguishing prosecutors from the system as a whole.) That popularity has not insulated them from hiring difficulties, though. Ditto for public defenders, who are also struggling to fill their open positions. Unfortunately, there is no separate favorability polling in this data set on prosecutors alone that can help narrow down the scope or source of this situation.

In addition, local governments have consistently been rated higher than their state or federal counterparts; for 2024, the comparable net favorability ratings were +22 (local), +10 (state), and -26 (federal). Unfortunately (again), we don’t have a similar breakdown for local, state, and federal CJ systems, so while it’s likely the feds are a drag on everyone below them in the CJ system, the extent of that effect is impossible to determine. However, polling by Gallup shows a long-term trend of lower confidence in the criminal justice system across the nation, so this is not just a “Texas problem,” but rather, part of a long-term loss of popular confidence in many of our country’s institutions.

Yet another limitation to this analysis is the reality that what makes a liberal, independent, or conservative voter have a favorable opinion of a CJ system may be very different—if not directly opposite—for some groups. As a result, trying to draw specific policy directives from a general poll about feelings and opinions is next to impossible.

Conclusion
So, what to make of all this?

For those who thought prosecutors and/or the CJ system might receive less scrutiny or attention after the major legislation that passed in the last session, these trends lines are not good. Policymakers tend to file bills to address perceived problems, and if your favorability rating is significantly underwater (-22!), that may identify you as a problem that needs fixing based on “the feelz” alone. This conclusion is also consistent with some of the tea-leaf-reading we did in our April 2024 interim update based on federal and state policy trends. In 2023, we had to track more than 1,200 different bills that could impact prosecutors, the courts, or the criminal justice system, so we can probably expect a similarly high volume of legislation to follow in 2025.

But to circle back to how we began this discussion: If you are not feeling the love from the public about your chosen profession, we hope this trip down Polling Lane helps confirm the legitimacy of those feelings. (Or, as we are wont to say during legislative sessions: Just because you are paranoid doesn’t mean you are wrong!) Conversely, if everything is hunky-dory at home, congratulations! But being aware of the general vibe around criminal justice is still good to know when following events outside of your idyllic little bailiwick. Ultimately, while the current negative public impressions of the criminal justice system may not be due to anything you or your office have done, you still suffer the consequences. How the profession of prosecution (and the criminal justice system at large) digs itself out of this hole is a discussion for another day, but one that should probably start soon.

For more reading
For those interested in diving deeper into the numbers behind this segment, here are links for the source material:
Summary of latest overall polling results (June 2024 institutional ratings are near the end)
Criminal justice system favorability (June 2024)
Historically Low Faith in U.S. Institutions Continues (July 2023)
Courts/criminal justice system favorability (June 2022)
Courts/criminal justice system favorability (February 2015)

Upcoming hearings

Here are some relevant interim charge topics cued up for consideration in July:

Monday, July 8, 2024

House Homeland Security & Public Safety, 1:00 p.m., Room E2.030

• Implementation of SB 602 (authority of federal border patrol)
• Law enforcement use of less-lethal devices

Tuesday, July 9, 2024

House Youth Health & Safety, 10:00 a.m., E2.026

• Behavioral health services for at-risk youth

House Criminal Jurisprudence, 11:00 a.m., E2.030

• Implementation of HB 17 (removal of prosecutors) and other bills from last session

Wednesday, July 31, 2024

House Youth Health & Safety, 10:00 a.m., E2.026

• Behavioral health services for at-risk youth

For more information about a specific hearing listed above, click on the link to the committee. For additional questions, contact Shannon.

Quotes of the Month

“Some of these [bail] scenarios … you don’t think about legislating for them because common sense would tell you that if someone is on parole for an aggravated offense and they commit a new offense, that maybe a PR bond is not appropriate. But we have found that we are having to legislate for every fact scenario to make the system work, which is unfortunate.”
           —State Sen. Joan Huffman (R-Houston), during the Senate Criminal Justice Committee’s interim hearing this month on regulating charitable bail organizations. (Video available here; comment starts at the 1:08:29 mark.)

“Even the liberals in NY understand it’s time to unmask the protestors, Antifa, BLM, anti-Semites, and anti-America troublemakers in our streets and on our college campuses. Those bent on committing crimes won’t be so bold if their identities are known. I will push legislation to put a stop to the chaos and destruction by those who hide behind their hoods and masks. #txlege”
           —Tweet/X post this week from Lt. Gov. Dan Patrick, who may propose legislation next year to create a crime and/or penalty enhancement for offenders who obscure their faces to avoid being identified, as recently suggested by NY Gov. Kathy Hochul.

“If his name was not Donald Trump and if he wasn’t running for president … I’m telling you, that case would’ve never been brought …. You want to talk about a threat to democracy? When you have this country believing you’re playing politics with the justice system and you’re trying to put people in jail and convict them for political reasons, then you have a real problem.”
           —Former governor Andrew Cuomo (NY-D), criticizing Manhattan (NY) DA Alvin Bragg’s decision to prosecute former President Trump on a recent episode of Real Time with Bill Maher.

“We might as well be in Germany during the ’30s and ‘’40s. [The FBI] is corrupt. It is the Gestapo. They don’t follow any laws anymore. No one can stop them. […] They are organized crime. […] They’re a political organization designed to persecute people like you and me, and so, it would be better not to have anything than to have that.”
           —Texas AG Ken Paxton, sharing his views on the FBI in a two-minute rant on Steve Bannon’s War Room. (Twitter/X, May 31, 2024)

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Have you noticed how extreme our weather has gotten lately? Tornados, floods, hail, etc.? Well, consider that your free preview of next year’s legislative session if recent statewide election returns are any indication.

Prosecutor run-off results

Results from this week’s prosecutor run-offs:

27^th Judicial DA (Bell County) (R): Stephanie Newell defeated Jeff Parker (by 17 votes) and will face Kurt Glass (D) in November.
34^th Judicial DA (El Paso/Culberson/Hudspeth) (D): James Montoya defeated Alma Trejo and will face incumbent Bill Hicks (R) in November.
105^th Judicial DA (Nueces) (R): Incumbent Jimmy Granberry defeated James Sales and will face Terry Shamsie (D) in November.
Atascosa CA (R): Molly Groesbeck Solis defeated incumbent Lucinda Vickers (no general election opponent).
Coke CA (R): Cody McCabe beat Russell Ash (no general election opponent).

To view an updated list of the 11 contested prosecutor races still on the ballot in November, click HERE.

Statewide run-off results

At the state level, the most-watched primary run-off election was in Southeast Texas, where House Speaker Dade Phelan (R-Beaumont) fended off a local challenger in what ended up being the most expensive State House race in Texas history ($5.4 million and still counting). In doing so, Speaker Phelan was the first Lege incumbent since 1992 to win a run-off after finishing second in his initial primary election and he avoided being the first House speaker to lose a primary since the 1970s. Those feats of political daring were tempered, however, by the fact that the House he will return to in January 2025 could look significantly different than the current body, which puts his re-election as speaker in doubt. (In fact, two former allies of Speaker Phelan have declared their candidacy for his speaker seat despite his victory.)

Historically, an incumbent legislator pushed to a run-off has only a 25 percent chance of success, and while the speaker beat those odds, that rule of thumb held true for eight other Republican incumbents, only two of whom survived their run-off challenge. When added to March’s original primary results, the combination of Governor Abbott’s school choice campaign and Attorney General Paxton’s impeachment revenge tour resulted in a total of 15 House GOP incumbents being defeated, the most in modern history. This is on top of one House Democrat who lost her run-off this week and 19 other House members of both parties who retired, making for a minimum turnover of 35 House seats—or almost one-quarter of that lower chamber—heading into the next session. And while legislative races take place across districts purposely drawn by legislators to protect the candidate of one party or the other, there could be yet more surprises in November that could contribute to the general uncertainty regarding who will be leading the House heading into the 89th Regular Session in January 2025.

In sum, we are hard-pressed to remember a primary season that was as vitriolic (and expensive!) as the one we just lived through, and anyone telling you they know what will happen next is selling you something. However, it does seem like next year’s regular session is shaping up to be a rollercoaster of a legislative ride.

Interim hearings

Senate committees are already digging into the summer homework given to them by the lite guv. This week, the Senate State Affairs committee took testimony on topics that included election fraud and regulating intoxicating hemp products.

On the election fraud charge, committee discussions focused on prevention and technological issues more than enforcement, so there is not much new to report on that front.

Regarding intoxicating hemp products such as delta-8, delta-10, THCA, and related THC isomers that are being manipulated to create intoxicating effects similar to illegal delta-9 THC, several committee members showed their frustration with perceived abuses of the original hemp law. Their concerns were matched by a witness who runs one of Texas’s three compassionate use program (T-CUP) vendors who finds his legal “medical marijuana” business undercut by much cheaper, unregulated (or under-regulated) street-corner hemp/CBD/etc. outlets. However, no new ground was really plowed during the hours of testimony taken by the committee, nor was any consensus reached. There are now more than 7,000 retail locations in Texas registered with DSHS to legally sell consumable hemp products, and many more unregistered vendors also exist, so resolving concerns about intoxicating hemp products will not be an easy task. For those of you who are frustrated with the current state of things, though, it is a good sign that solutions are being considered. (Meanwhile, congratulations to whoever’s committee bingo card had “ban it outright,” “legalize and regulate it,” “let’s ban child-attractive packaging,” “legalize it for our veterans with PTSD,” and “people have been getting high in this state for a long time”—all were winning squares!)

To watch the fun for yourself, click HERE; the hemp charge starts around the 07:41:00 mark and the invited witnesses conclude around 09:29:00, followed by public testimony (and bless anyone who chooses to wade through that, you are on your own there).

In related news, Congress has taken up reauthorization of the federal Farm Bill this year and a move is afoot to address the delta-8/delta-10/etc. problem at the federal level too, but considering the current level of dysfunction in D.C., it may not be wise to count on help from the Feds anytime soon.

Upcoming hearings in June on other relevant interim charges include the following:

Wednesday, June 5, 2024

Senate Criminal Justice, 10:00 a.m., Room E1.028

• Bail reform: Charitable bail organizations
• Implementation of SB 1004 (tampering with EM devices)

Thursday, June 6, 2024

Senate Criminal Justice, 9:00 a.m., Room E1.028

• Stopping child predators’ use of deepfake technology and AI

Tuesday, June 11, 2024

Senate Border Security, 10:00 a.m., Room E1.028

• State and local agencies’ participation in border security

For more information about a specific hearing listed above, click on the link to the committee. For additional questions, contact Shannon.

SB 22 stakeholder meeting

The comptroller’s office held a meeting on Wednesday with representatives for sheriffs, constables, prosecutors, and other county officials to discuss the roll-out of the SB 22 funding program. We didn’t learn much new information, but the meeting gave stakeholders the opportunity to vent over some of the statutory interpretations adopted by the comptroller. That type of “airing of grievances” is sometimes necessary before productive conversations can move a project forward, so the comptroller’s people are to be commended for providing a venue so that could happen.

The prosecutor-related discussion centered on who is to be considered a VAC for purposes of SB 22 funding. The comptroller’s position is that they will allow salary increases with SB 22 money for any prosecutor’s employee whose “primary duty” is that of a VAC. The point was raised that the word “primary” appears nowhere in the statutory duties of VACs to which their own rules refer, but the comptroller’s office believes their interpretation is needed to comply with the spirit of SB 22. (Specifically, they don’t want non-VAC-related staff members being designated as VACs to get around the lack of SB 22 money for supplementing the salaries of general staff members). The good news is that this latest interpretation expands the possible pool of eligible VACs under SB 22 to more than one person per office, as was originally (and erroneously) proposed, but it may still not comport with the real-life jobs performed by employees in some prosecutors’ offices, especially those in the smallest jurisdictions.

Regarding compliance with SB 22 requirements, the comptroller’s office is currently working out those details. (For instance, we expect some sort of written or electronically signed certification will be required of an elected prosecutor regarding a VAC recipient’s “primary duty” qualifications, perhaps similar to what is annually required for assistant prosecutor longevity payments.) Those details will likely be rolled out along with the application for each office’s next cycle of funding, which will vary by a locality’s fiscal year, but comptroller officials indicated their intention to keep things simple this first year as everyone gets comfortable with the process.

TCOLE rules finalized

The proposed TCOLE rules we told you about in last month’s update have now been adopted (after some revisions) and will take effect on September 1, 2025. While that effective date is still 15 months away, don’t sleep on these changes because they will eventually require all prosecutor offices—regardless of size or number of investigators employed—to annually confirm to TCOLE their compliance with new statewide requirements for all entities that employ peace officers, including the adoption and implementation of more than a dozen different model policies and related practices. You can expect to hear more from TCOLE about this in the coming year, but if you have any questions about it at this time, feel free to reach out to them now.

TDCAA publication news

With changes to the numbering scheme of expunction laws on the horizon (rewriting Code of Criminal Procedure Chapter 55 into new Chapter 55A, effective Jan. 1, 2025), the 2024 edition of Expunction & Nondisclosure is essential. Appellate prosecutor Andrea Westerfeld (Ellis County and District Attorney’s Office) has made the rules and procedures for expunction and nondisclosure easy to understand, with checklists, sample petitions and orders (all included on a CD) to help simplify the process. The 2024 edition incorporates the newest statutory requirements for expunctions (including expunctions for weapons offenses) and covers all types of nondisclosures as well as caselaw updates for both. To order your copy, click here.

TDCAA award nominations

Is someone in your office going above and beyond the call of duty? Did one of your employees do something marvelous that has been completely forgotten in today’s all-politics-all-the-time news cycle? If so, we have some association awards for which you might consider nominating them.

Suzanne McDaniel Award
The person selected for this award should exemplify the qualities that were so evident in Suzanne (our first Victim Services Director): advocacy, empathy, and a constant recognition of the rights of crime victims. The criteria for nomination are:

• The person must be employed by a county attorney, district attorney, or criminal district attorney’s office;
• At least a portion of the person’s job duties must involve working directly with victims; and
• The person must have demonstrated impeccable service to TDCAA, victim services, and the profession of prosecution.

Oscar Sherrell Awards
The Oscar Sherrell Awards for service to the association is awarded by each section of TDCAA in  recognition of enthusiastic members who excel in TDCAA work, whether it be through a specific activity that has benefited or improved TDCAA or a body of work that has improved TDCAA’s service to the profession of prosecution. The Investigator and Key Personnel boards each select their annual Oscar Sherrell Award winners and present the awards at their individual section conferences.

To nominate someone for either of these awards, please email Jalayne Robinson with the nominee’s name, office of employment, phone number, and a description no longer than 100 words of why you believe the person deserves this award. The nomination must be received by Friday, June 28, 2024. Should you choose to nominate someone, please keep in mind that the person does not have to work in your office or even in your TDCAA region if they meet the criteria above. Anyone in a prosecutor’s office may make a nomination.

Quotes of the Month

“I will be your state rep for HD-21 and I will be your speaker for the Texas House in 2025. This was a true grassroots effort—not the fake grassroots.”
            —House Speaker Dade Phelan, after his narrow win this week.

“My message to Austin is clear: to those considering supporting Dade Phelan as Speaker in 2025, ask your 15 colleagues who lost re-election how they feel about their decision now. You will not return if you vote for Dade Phelan again.”
            —Attorney General Ken Paxton, referencing Phelan-friendly Republicans who were defeated in the March primary, in a political threat delivered via Twitter/X after Speaker Phelan won re-election to his House seat.

“It’s pretty hypocritical. Republicans have always opposed activist judges, and this seems to be obligating judges to observe and prioritize party over law—which is straight-up judicial activism.”
            —Summer Wise, former member of the state GOP’s executive committee, commenting upon a controversial new change to the party’s rules that would bar any public official censured by the party—including a judge or prosecutor—from appearing on a GOP primary ballot for two years.

“[Past party leadership] may have hinted, they may have whispered, they may have alluded to these groups, but they never would have been fully on board with anything that they were formally doing.”
            —Brandon Rottinghaus, U of H political science professor, as quoted in response to the news that the incoming chair and vice-chair of the Texas GOP have showed overt support for the secessionist Texas Nationalist Movement.

“The huge amount of money brother Phil and I spent was worth every penny!”
            —Excerpt from a congratulatory tweet to new State Rep.-elect Katrina Pierson (R-Rockwall) by millionaire ex-state senator Don Huffines (R-Dallas), who kindly (if unwittingly) encapsulated the truism behind this election cycle: Follow. The. Money. (But then, hasn’t that always been the case? The only thing that changes is whose money is being spent.)

“[The hemp bill] was meant to give agriculture a new product for the market, specifically in the fiber market, and as predicted, when I passed that, I said ‘If you guys screw this up by being cute and getting people high from it, there will be consequences.’ … I’m disappointed, but I’m not, I’m not surprised that we are here today because clearly, it was foretold this could happen, and now we’ve got people getting high off of something in Texas that we have said ‘we don’t do,’ and it is by virtue of a very cute industry making a lot of money at people’s expense. So, I hope we fix this. It’s time. It’s past time, actually.”
            —State Sen. Charles Perry (R-Lubbock), member of the Senate State Affairs Committee and author of the bill that legalized hemp, during that committee’s interim hearing on that topic this week.

“[It’s] kind of sexy, frankly.”
            —Former Governor Rick Perry, on being called a “RINO” (Republican in name only) due to his campaigning for Speaker Phelan.

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We are bringing a soapbox in each hand to our summary this month, so prepare yourselves for some deep thoughts after we get through some news first.

Interim charges

The lieutenant governor issued to Senate committees the interim charges he wants them to work on for the remainder of this year. Relevant topics on that list include:

• transnational criminal activity, including fuel theft by organized crime (Border Security Committee)
• use of deepfake technology and artificial intelligence to harm or exploit children (Criminal Justice)
• charitable bail organizations (Criminal Justice)
• implementation of SB 1004 (tampering with electronic monitoring device) (Criminal Justice)
• adverse possession of real property (aka squatters) (Local Government)
• illegal electioneering by political subdivisions and public school districts (State Affairs)
• restrictions on intoxicating hemp products (State Affairs)

For the full list of interim Senate charges, click HERE. Note that it is common for this lite guv to add new charges as events warrant, so be on the lookout for that too.

Across the rotunda, House interim charges are not likely to be issued until after the House Speaker’s primary run-off election is over, so look for those in June. (If at all—there’s nothing that requires a chamber to take up issues during an interim, and who could blame them if they punted on the whole thing at this late stage, eh?).

Bill filing

Pre-filing of bills for next year’s 89th Regular Session begins on Monday, November 11, a mere 200 days from today. (If that doesn’t momentarily create a sick feeling in the pit of your stomach then you haven’t spent much time in Austin during a session!)

While it is not necessary to pre-file a bill—in fact, statistical analysis shows that pre-filing a bill may make it harder, rather than easier, to get it across the finish line—now is a good time to start doing the spadework necessary to change any state laws you think need fixing. The state budget-writing process for FYs 2025–2026 will begin in earnest this summer, and we can assure you that advocacy groups and other lobbying entities are already working on their pet projects for next session, so if you have an idea that you’d like to see become law, now is the time to start putting those thoughts into action. For more information on that process or how to get started, contact Shannon.

SB 22 (rural law enforcement grants)

If you applied for state grant funds under Senate Bill 22, then we don’t have to tell you about the implementation challenges facing both local recipients and the state administrators at the Comptroller’s Office. We’ve received many more questions about SB 22 than we have answers, but fortunately, we are told that the comptroller will publish in the coming weeks another “comprehensive list of FAQs” on relevant SB 22 topics. Keep checking that agency’s dedicated SB 22 webpage for that helpful resource when it is finally published.

The culture war never sleeps

OK, now it’s soapbox time! Gather round and allow us to share some observations as we prepare for the 89^th Legislature to convene in January 2025.

Name any hot topic on social media or cable news these days and you’re likely to find prosecutors in the middle of it. And that’s true regardless of whether the prosecutors swept up in those issues want to be a party to those ongoing culture war battles between Red America and Blue America. Those who do can find themselves in the thick of the action, fighting in the trenches for policies or beliefs that are important to them. Those who don’t? Well … sorry, but the political scriptwriters don’t consult with the actors before they nationalize an issue and make it The Thing We Are All Going To Talk About This Week.™

We saw this phenomenon up close last session with the debate around House Bill 17 and the resulting creation of a state law exposing prosecutors to potential removal from office for categorically refusing to prosecute a certain type of crime. That law applies to any specific category of crime, or course, but the Lege didn’t pass it because it was concerned about the non-prosecution of Providing Chiropractic Treatment While Intoxicated (a state jail felony per Occupations Code §201.606, as we are sure everyone already knows). No, the Lege passed HB 17 because of the debates surrounding abortion, drug crimes, property crimes, and other hot-button political issues. (As proof, witness the latest cut-and-paste removal petition filed against the current Travis County DA which focuses on abortion and policing reform issues that predate the passage of HB 17.) As long as those issues remain front-and-center in the national political narrative, discussions like those on HB 17 will continue at the state capitol.

That said, it’s fascinating to step back from the local fray and see how these prosecution-related issues are developing outside of Texas. Take Arizona, for instance. That state finds itself in something of a reverse image of Texas politics, with “blue” state leadership (governor, AG) and “red” (or reddish) control of most local governments, including large ones like Maricopa County (Phoenix). In the wake of the Arizona Supreme Court restoring the viability of that state’s 19^th-Century abortion crimes, Arizona’s governor recently attempted to bar local prosecutors from enforcing those crimes by delegating prosecutorial authority over those crimes to the state’s attorney general, who has categorically refused to prosecute them. This is setting up a separation-of-powers fight in that state that may be familiar to us in Texas, albeit in a Bizarro World, up-is-down kind of way.

You can learn more about how these debates are playing out in the upcoming election of Arizona’s local prosecutors by reading this recent article. One lesson to take from it, though, is as a reminder that HB 17 was not the end of legislative interest in who prosecutes what and how they do it. Keep that in mind every time we discuss the upcoming 89th Regular Session because it may explain a lot of what will happen next year.

Texas, the Lone Star Deep State?

Need another example of the politicization of prosecution? Let’s talk about state administrative law. Yes, yes, we know—snoozer, right? But no! Administrative law is no longer a niche area of practice that only excites people on the extremes of each end of the political spectrum. We now live in the time of “lawfare,” when combatants in the Culture War see not just the courts but also administrative rulemaking and executive orders as tools they can employ to pre-empt or control local governmental actions as a part of their larger set-piece battles.

So, how does lawfare-by-administrative-rulemaking play out in practice? Allow us to connect some dots between three recent developments: State Bar regulations, proposed OAG rules requiring new reporting by certain prosecutors, and proposed TCOLE rules that may require action by all prosecutors.

State Bar rules

This month the State Bar is soliciting votes from its members on a variety of proposed changes to its ethical rules, including Rule 3.09 (Special Responsibilities of a Prosecutor). (Reminder: If you want to weigh in, you have only a few more days to vote; click here for more details.) Regulation of the practice of law in Texas is a core function of the State Bar, so the promulgation of ethical rules is nothing new. However, outside advocacy groups have increasingly tried to use the State Bar’s somewhat Byzantine procedures to impose new rules and guidelines on prosecutors—including many that were previously rejected by the legislature—often without meaningful input from prosecutors in that process. (For instance, the TDCAA Board recently had to express its concerns to the State Bar when we discovered a proposal to impose new guidelines on prosecutors interacting with pro se defendants which a State Bar committee had been working on for several years without meaningful input from prosecutors themselves.) When combined with anecdotal reports from many of you that some members of your local defense bars are increasingly weaponizing the State Bar’s existing rules and guidelines as a negotiating tactic in their cases, it all paints an increasingly concerning picture of a regulatory structure originally designed to protect the ethics and professionalism of the legal profession now being co-opted by outside advocates who see it as a way to enforce their own policy preferences.

Someone else feeling that heat is our state’s attorney general and his first assistant, who both had grievance actions brought against them in the wake of lawsuits they filed after the 2020 presidential election. Both have claimed immunity from State Bar regulation for actions taken in their official capacities, and those cases are still working their way through the court system. Interestingly, if the courts ultimately decide to immunize certain elected officials or their official acts from the application of State Bar ethical rules, that holding could apply to prosecutors as well. But the point of discussing this matter here is as one recent example of the increased use of administrative rules by a state agency (or quasi-agency like the State Bar) at the request of outside advocates to allegedly achieve a desired result in a particular skirmish of the culture wars.

Proposed OAG reporting rules

Despite our attorney general not wanting to be subject to certain State Bar regulations, and despite his agency’s frequent filing of lawsuits challenging allegedly overbroad federal agency rulemaking, he shows no reticence in attempting to regulate other public officials—or at least certain prosecutors of a certain political stripe in a certain population bracket.

We told you last month about OAG’s proposed new mandate for prosecutors in larger counties to turn over to that state agency all manner of information and documents from their criminal cases, including privileged and confidential information and communications otherwise protected by state law. The comment period for those proposed rules closed a few weeks ago, and many of the prosecutors and counties potentially adversely affected by the proposal rules submitted written comments raising various concerns and objections to those rules. There is no telling when the final proposed rules will be published and take effect, but the posted notice and proposed rules can be found here if you haven’t already reviewed them.

Several of the prosecutors and counties targeted by this latest example of administrative bloat have already indicated an intent to sue OAG if that agency tries to implement such an unprecedented administrative mandate. If so, pay special attention to how OAG defends its actions and what “pressing issues of overriding importance” it cites to justify its latest expansion of the Administrative State. Dollars to donuts, those justifications will be ripped from the latest campaign and social media headlines coming from the front lines of the culture wars. Welcome to politics in Texas, 2024 edition.

Proposed TCOLE reporting rules

Finally, let us alert you to some recently proposed rules that are not directed specifically at prosecutors, but which may number you among the collateral casualties anyway.

Last session, the Lege passed SB 1445, the TCOLE sunset reauthorization bill, which included a statutory mandate for that agency to develop “rules to establish minimum standards with respect to the creation or continued operation of a law enforcement agency based on the function, size, and jurisdiction of the agency” (emphasis added, for reasons discussed below). We can tell you that, behind closed doors, the legislative impetus for this change was to give that regulatory agency more oversight over certain small, “fly-by-night” municipal police departments that were consistently falling short of basic minimum standards of operation or seemingly operating mainly as revenue generators for the local authorities who created them.

The result was a proposal published a few weeks ago by TCOLE which purport to regulate all entities that employ peace officers—which of course includes county attorneys and district attorneys due to their authority to employ peace officers as investigators. However, the agency rule-writers largely ignored the statutory instruction to impose standards “based on the function, size, and jurisdiction of the agency” and instead proposed a largely one-size-fits-all mandate that applies equally to the Houston Police Department and a rural prosecutor’s office with one investigator covering four counties. The rules also authorize TCOLE to sanction non-compliance with any of the proposed standards or related (and voluminous) annual reporting. A PDF excerpt of the proposed rules can be found here; pay special attention to the proposed changes to existing Rule 211.16, which has never previously applied to prosecutors.

Some of these proposed rules—and the related threat of sanctions—have not been popular with our friends over at the Sheriff’s Association of Texas (SAT), one of the groups involved in the drafting and passage of SB 1445 last session. In response, SAT submitted written comments to TCOLE this week raising various objections to proposed Rule 211.16. (You can read that letter here.) After reading the proposed rules and the SAT objections, if you find that you share those concerns, feel free to weigh in with TCOLE with your own written comments; the initial public comment period has closed, but we have been assured that TCOLE will consider further input as they work their way through the many comments they have already received. Comments may be submitted electronically to [email protected] or in writing to Mr. John P. Beauchamp, General Counsel, Texas Commission on Law Enforcement, 6330 E. Highway 290, Suite 200, Austin, TX 78723-1035.

Conclusion

Tl;dr summary: For a state government that has long prided itself on *not* being like “The Swamp” in Washington, D.C., it sure seems like some people are trying to turn Texas government into a mirror image of that many-tentacled “deep state” federal bogeyman. We don’t know when bureaucratic growth, administrative mission creep, and the death of the time-honored concepts of subsidiarity and separation of powers in state government suddenly became popular ideas in this state, but the facts on the ground sure seem to prove their popularity. Why, it’s almost like our wise Founders knew that human nature will inevitably lead advocates to take actions outside the accepted norms—and constitutional limits—when their desired ends justify any means. As a result, we have gone from a time when the guiding light of an elected prosecutor was the verdict of a local jury and the vote of local citizens to a situation in which elected prosecutors must now navigate distantly generated narratives and the dictates of executive and legislative branch officials who both fan, and are blown by, those narratives.

To which we can only say: Remember, you chose to run for this gig, so … good luck with that!

Scattershot

Are you missing our monthly “Scattershooting” entry? If so, then consider signing up for TDCAA’s Round-Up, a weekly email of relevant news articles (like that one from Arizona) that arrives in your inbox every Thursday morning. To get on the Round-Up list, click here

TDCAA job postings

The Texas District and County Attorneys Association is accepting applications for the positions of Executive Director and Domestic Violence Resource Prosecutor. For more information or to apply for either position, click the link for each above. The application period for each position will close at the end of this month.

Quotes of the Month

“What [law enforcement is] going to be asking for is, ‘Hey, can we go to the bordering county, can we go to Montgomery County or Fort Bend County and file?’ You know, these are district attorneys and if you’re a district judge, you kind of can go anywhere in the state, [so] why can’t we do that with district attorneys? And I know that’s a slippery slope that we’ve got to be careful of, but I think that’s one of the things that I can see law enforcement asking for … or, empower the attorney general to file cases with them and they can prosecute without the DA’s interference.”
            —Tarrant County Sheriff Bill Waybourn (R), giving a preview of upcoming policy discussions about “rogue prosecutors” during a panel on “Conservative Criminal Justice Solutions” hosted last month by the Texas Public Policy Foundation. (The link goes directly to the relevant discussion of “rogue prosecutors” during that panel.)

“We’re seeing the [U.S. Supreme Court] be both a victim of polarization and a cause of polarization. People on either side of the street have lost the ability to see the court objectively or clearly.”
            —Linda Greenhouse, a Pulitzer-prize winning journalist, in a Christian Science Monitor article discussing poll numbers showing an erosion of public trust in the Supreme Court.

“[Dan Patrick] is, in my opinion, the most powerful guy in the state, and his power is growing.”
            —Bill Miller, Austin lobbyist, as quoted in a recent Dallas Morning News article discussing the impact of some of the lieutenant governor’s norm-busting political tactics.

“I signed up for the death threats and the late night swatting, but [my family] did not.”
            —U.S. Rep. Mike Gallagher (R-WI), who most recently authored the new federal law requiring TikTok’s Chinese ownership to divest and who was considered to be a rising star in national politics, explaining why he is resigning from office and leaving politics.

“We all know what to do, but we don’t know how to get re-elected once we have done it.”
            —A famous quote attributed to Jean-Claude Juncker, former Prime Minister of Luxembourg and a vocal advocate for a post-war European Union.

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We thought we’d send this temporal news out a day early so that those of you who are so inclined can spend the rest of your long holiday weekend focusing on the Good News.

AG proposes new reporting duties for some prosecutors

Earlier this month, the Office of the Attorney General posted in the Texas Register newly proposed rules that would create voluminous, wide-ranging quarterly and annual reporting duties for prosecutors in counties with a population of 250,000 or more people. The posted notice and proposed rules can be found here if you haven’t already reviewed them. (And if you haven’t, you can probably skip the introductory boilerplate analysis and go straight to the underlined rules being proposed, as the fluff at the front appears to have been written with an intent to obscure some of the most outrageous bits.)

A cursory review of these rules will immediately indicate to the discerning reader that this is yet another shot across the bow by those in state government who want to pre-empt, direct, or take over local prosecution of criminal cases. As we told you earlier this month in our primary election update, this nationalized campaign about allegedly “rogue prosecutors” will be a continuing theme of this interim and the next regular session in 2025. Prepare yourselves accordingly.

For now, though, if you have questions about these proposed rules, we encourage you to call Rob Kepple to get the latest information before taking any action.

A speaker race … in March?!?

To make an unusual primary season even crazier, State Rep. Tom Oliverson (R-Houston) announced his candidacy for House speaker after current Speaker Dade Phelan (R-Beaumont) was put to a run-off in his local GOP primary. The earlier-than-early announcement by Dr. Oliverson caught many House members and outside capitol observers by surprise, but as we get deeper into this campaign season, it is becoming clear that the old rules and norms of Texas politics are no longer applicable. Keep that in mind with considering your legislative priorities next session.

New illegal immigration crime still up in the air

Earlier this week, a panel of the U.S. Fifth Circuit Court of Appeals declined to allow Senate Bill 4’s new immigration-related crimes to take effect while that court takes up matters relating to the constitutionality of those laws. Interested readers can find the 121-page majority and dissenting opinions here. The matter will be reviewed by that court more thoroughly next month, but for now, know that those laws are still in limbo.

For a PDF copy of the relevant changes SB 4 will make to the Penal Code and CCP should it be upheld by the federal courts, click here.

Protective order forms

Those of who you completed our legislative update course or read the related book will recall that Senate Bill 48 required the Office of Court Administration (OCA) to standardize most forms related to protective orders no later than June 1, 2024, and further mandated the use of those forms by courts and practitioners after that date. If you would like to play a role in OCA’s creation and adoption of those standardized forms, you can submit your input or suggested language for consideration, including forms for the application, enforcement, denial, termination, or rescission of a protective order, to [email protected]. This process is already ongoing, so please submit your input as soon as possible.

TDCAA job postings

The Texas District and County Attorneys Association is now accepting applications for the positions of Executive Director and Domestic Violence Resource Prosecutor. For more information or to apply for either position, click the link for each above.

Prosecutor elections

If you are curious to see which remaining prosecutor races involve run-offs or contested November elections, you can find all that information online HERE.

Scattershooting (one final time!)

Some recent stories you might find interesting:

• “Texas Attorney General Ken Paxton cuts deal to have fraud charges dropped, trial canceled” (KUT News)
• “Before deal in Ken Paxton’s fraud case, prosecutor was scrambling to buy more time, find new partner” (Houston Chronicle)
• “Once the Texas GOP’s ‘weak link,’ Attorney General Ken Paxton is growing more popular and powerful” (Texas Tribune)
• “Appeals Court Keeps Texas Immigration Law on Pause” (Wall Street Journal)
• “U.S. Supreme Court hears Texas case on politically motivated arrests” (Texas Tribune)
• “Under new immigration law, DPS plans to arrest only migrants seen crossing Rio Grande” (Dallas Morning News)
• “Prosecute a cop? You’ll face removal from office” (The Intercept)

NOTE: This will be our final “Scattershooting” entry in our interim and legislative updates because we are migrating this popular news feature to its own newsletter, the TDCAA Round Up, which will operate in a manner similar to our popular case summaries. You can sign up to receive those relevant news articles in your inbox every Thursday morning by visiting our website here.

Quotes of the Month

“Really, there’s not much left to do, and what is left to do is probably unconstitutional in many cases.”
            —State Rep. Gary VanDeaver (R-New Boston), who finds himself in a primary run-off against a pro-school choice candidate endorsed by Gov. Abbott, when asked during an interview what incumbent House members can do to prove to GOP primary voters they are “conservative” enough to be returned to Austin next session.

“Infighting is common in a state like Texas with one-party domination, but in the past the divide among Texas Republicans was about policy. At present, it’s about personality, and that’s Trump-driven.”
            —Brandon Rottinghaus, political science profession at U of H.

“That’s the problem with [the position taken by Texas] because they can’t articulate what they want to do that’s different from enforcing immigration law, which they are not allowed to do.”
            —Raffi Melkonian, appellate law expert, summarizing his thoughts on the state solicitor general’s arguments to the Fifth Circuit last week in the SB 4 (state immigration crimes) litigation saga.

“I thought it was one of the best speeches he’s ever given. It was very vice-presidential.”
            —Lt. Gov. Dan Patrick (R-Houston), referring to a speech Governor Abbott gave (paywall $) at an event sponsored by a conservative think tank in Austin last week.

“I go to bed every night very proud of the courage of my convictions. I think Mr. Paxton, at the end of the day, is just going to have convictions.”
            —House Speaker Dade Phelan (R-Beaumont), when asked if he regretted overseeing the House impeachment of Attorney General Paxton.

“The takeaway is, the prosecutors finally started investigating the case and realized they were going to lose, so they made us an offer we couldn’t refuse.”
            —Dan Cogdell, criminal defense attorney for Attorney General Ken Paxton, explaining his theory behind the sudden resolution of his client’s criminal securities fraud case after nine long years.

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