Leave it to The Onion to come up with the best punchline to the recent news story about meth being smuggled across the Texas-Mexico border in pumpkins … click here for your seasonal giggle (and yes, it is safe for work).
Elections and their consequences
The general election is in 11 days. We will send out a special post-election update on prosecutor election results and a broader analysis of the new make-up of the Lege after the election dust settles. Oh, and bill pre-filing begins the week after that. No, seriously—legislators can start filing bills for the 2023 regular session in three weeks! We will read the bills and summarize the important ones for you as long as you promise not to blame us for ruining your pre-holiday cheer.
Mandatory Brady training
The 2022 version of TDCAA’s free Mandatory Brady Training is now available online. (Did we say “mandatory”? Sorry, we meant to say “MANDATORY.” But also, “FREE.” So, it’s a push, eh?) Click the link above for more details and be sure all the other prosecutors in your office are clicking it too.
Prosecutorial discretion
Over a two-day period earlier this month, the House Select Interim Committee on Criminal Justice Reform reviewed charges on bail reform, drug crime punishments, civil asset forfeiture, death penalty jury instructions, policing reform, uses of detention and incarceration, transparency in the grand jury process, and prosecutorial discretion. (Whew!) The last two subjects were the only ones on which the committee saw fit to invite elected prosecutors to weigh in, so we will confine this section to summarizing those two topics.
The legislature’s interest in grand jury reform is an old one, and not much new ground was plowed on it at this hearing. Coryell County DA Dusty Boyd supplied invited testimony on the grand jury process and ably answered questions about how it works in practice. The discussion was not very thorough, but we assume bills will be filed again next session under the banner of “injecting more due process” into the criminal justice system’s current method for making charging decisions. Of course, this also makes the charging process more laborious, expensive, and adversarial, qualities which benefit wealthy or powerful targets with the resources to exercise new avenues of collateral attack. (Run-of-the-mill indigent defendants? Not so much, as noted by a witness before the committee.)
The topic of making criminal charging decisions received greater attention during the committee’s discussion of prosecutorial discretion, and specifically, whether or how prosecutors should publicly announce their policies for exercising that constitutional power. This is a new debate for the Lege, but while the most recent complaints about potential non-prosecutions were triggered by a change in abortion jurisprudence, several police chiefs, sheriffs, and peace officer unions have also been complaining to their legislators about certain jurisdiction’s non-prosecution policies regarding specific types of drug and property crimes that predate this summer’s Supreme Court commotion. Those two converging veins of political strife have made this a hot issue not just in Texas, but nationwide.
Into that maelstrom walked Fort Bend County DA Brian Middleton and Kaufman County CDA Erleigh Wiley, who adeptly answered the committee members’ questions and defended prosecutors’ role as the elected officials tasked by the state constitution with making those important decisions. Ultimately, much of the concern expressed by legislators related to the recent trend of categorical non-prosecution policies being made publicly—and in a manner that many of them considered to be an affront to lawmakers—whereas in the past such decisions were made unofficially or internally by prosecutors. No clear cause for that recent trend was named by the committee, but upon conclusion of the testimony, the committee chairman indicated his desire to take a “very targeted, scalpel-like approach” to stopping such effrontery while still preserving prosecutorial discretion. Such a nuanced approach might be welcomed by prosecutors, but keep in mind that our legislature’s default tool is the lawmaking equivalent of a sledgehammer, not a scalpel, so what its response might look like in reality is anyone’s guess at this point.
The wide-ranging committee discussion on these two topics lasted almost three hours, including a lengthy stint with SMU law professor Pamela Metzger, who heads the Deason Center for Criminal Justice Reform at that school. (It was her bad luck to be called up first, but she did an admirable job educating the committee members about the current law and practice while also plugging her pet issues related to indigent defense.) The full committee hearing is available for viewing HERE, with the prosecutorial discretion issue being taken up first, followed by the grand jury issue starting around the 02:48 mark of the archived video.
The governor and legislative leadership have promised to address the discretion issue by hook or by crook this upcoming session, so if you want to prepare for those debates ahead of time, consider watching this hearing in preparation for those discussions next session.
Texas Prosecution 101
Be sure to review our latest PDF version of Texas Prosecution 101 (and share as needed). You might be surprised at how many people aren’t aware of who prosecutes what in Texas and why it is that way—even in the halls of the state capitol. Start educating your constituents now.
Other interim committee news
As we mentioned above, the House CJ Reform committee accepted invited testimony on six other topics besides prosecutorial discretion and grand jury reform. Here’s a one-sentence summary of the tenor of the debate on each of those topics:
- Bail reform: Judges should detain bad/violent people and release good/non-threatening people—why is that so hard?
- Drug crime punishments: Think of all the money the state could save if we lowered or ended criminal penalties for drug possession!
- Civil asset forfeiture: It’s an affront to libertarians everywhere and should be ended.
- Death penalty jury instructions: The Senate should pass last session’s House Bill 1340 that would limit application of the death penalty for those convicted under the law of parties.
- Policing: If policing abuses could be ended through mandatory training, it would’ve been solved already.
- Prison/jail conditions: As if bad food, bad health care, and no A/C in TDCJ were not bad enough, staffing shortages are making those and other shortcomings even worse.
Other legislative hearings held this month that might be of interest to some of you are the following:
The House Judiciary & Civil Jurisprudence Committee held a joint hearing with the House Juvenile Justice & Family Issues Committee on court caseloads and backlogs along the Texas-Mexico border stemming from Operation Lone Star (OLS). Representing the Border Prosecutor Unit (BPU) were 452nd DA Tonya Ahlschwede and BPU Project Director Nelson Barnes, who both answered numerous questions about the challenges of prosecuting criminal cases arising out of OLS and related border operations.
The House Judiciary & Civil Jurisprudence Committee also held a separate hearing to review the current rules and exclusions for jury service eligibility. Statewide, recent data showed that almost half of jury summons receive no response, and the consensus among the committee members favored taking steps to improve turnout for jury service cattle calls, whether that be higher juror pay, increased use of electronic communications, or scaling back the jury service exemptions currently on the books.
The House Criminal Jurisprudence Committee held a hearing on the topics of offender re-entry/re-integration programs and victim services. On the former, Dallas County CDA John Creuzot appeared as an invited witness to discuss the Expunction Expos his office has run and to answer questions about the differences between expunctions and non-disclosures, among other topics. On the latter, Tarrant County CDA VAC Elizabeth Garcia testified about the limited “soft money” options available for funding local VAC services and answered questions about CVC applications and processing.
The House Appropriations Committee received a 30,000-foot overview of the various Legislative Budget Board (LBB) hearings on agency budget requests and learned that state agencies are requesting more than $15 billion in exceptional items (read: new money for new stuff), including roughly $2 billion for salary increases. The last general state employee salary increase was passed in 2015.
Looking ahead, no further interim committee hearings are scheduled. With elections coming up and bill filings about to begin, ain’t nobody got time for more interim hearings right now—it’s almost game time! There may yet be a few hearings after the election, but most committee staff are now concentrating on summarizing their past work into reports for the next legislature.
CDRR SBOT update
The State Bar’s Committee on Disciplinary Rules and Referenda held a regularly scheduled meeting earlier this month at which it once again considered expanding TRPC 3.09 (duties of prosecutors). The result was a postponement of the issue to allow the subcommittee on this matter to hear from prosecutors in response to new language proposed by the Innocence Project of Texas (which had only been received by the committee a day or two before this month’s meeting). That subcommittee meeting has also been held, and while a few minor points got hammered out, it appears that the prosecutors involved in that process still have serious concerns about the latest proposal. The full committee will next meet on November 3, 2022, when it may (or may not) vote to publish new language (on both the rule and its comments) in the January 2023 issue of the Texas Bar Journal. Publication of that proposal will trigger more proceedings, including another meeting at which public comment will be taken (as done earlier this year). If you have any questions or concerns about this process, please contact Potter County CA Scott Brumley, the chairman of TDCAA’s Rule 3.09 Committee.
Key Personnel–Victim Services Board elections
Elections for the 2023 TDCAA Key Personnel–Victim Services Board will be held on Thursday, November 3, 2022, at 1:15 p.m. during our Key Personnel & Victim Assistance Coordinator (KP&VAC) Conference in San Antonio. For more details on these elections, email [email protected].
2022 Elected Prosecutor Conference
Elected prosecutors and first assistants won’t want to miss our Elected Prosecutor Conference at the Horseshoe Bay Resort. To make reservations at the $139 group rate, call 877/611-0112. You must mention TDCAA to get the discounted rate or click here to book online using TDCAA’s private reservation page. Rates are available until November 8 or until the block is sold out, whichever comes first.
2023 Annual Conference
We will be revealing the host hotel for our 2023 Annual Conference on November 1, so be sure to have your office staff watching our website for the big reveal! A limited number of rooms will open for reservation at that mystery location on November 1, but if the first block of rooms fills up before your office makes its reservations, don’t panic—a second block of rooms will open at that hotel after our official brochure is mailed out in mid-2023. More details are available here.
Scattershooting
Here are some stories of late that you might’ve missed:
- “Lawmakers looking at ways to make district attorneys enforce laws” (News4SA)
- “Philadelphia elected a progressive prosecutor twice. The state government wants to fire him anyway.” (Vox)
- “Column: Miyares power grab? Virginia AG joins effort to attack local prosecutors.” (Richmond Times-Dispatch) (Ed. note: If you thought the prosecutorial discretion debate is Texas-specific, it isn’t. It’s a national, organized, partisan campaign, as these two previous stories prove.)
- “Texas struggles to get guns away from domestic violence suspects, leaving victims in danger” (Texas Tribune)
Quotes of the Month
“We’ve seen more carrying [of] weapons, which by itself would be legal. But people are carrying the weapons while committing other crimes, and I’m not talking just about violent crimes. I’m talking about intoxication crimes or driving crimes or property crimes, carrying weapons on school property or in another prohibited place.”
—Harris County DA Kim Ogg, as quoted in a recent New York Times article on the impact of Texas’ recently-passed “constitutional carry” law.
“He governs like a judge, and that’s where the autocratic side comes out.”
—Retiring State Rep. Lyle Larson (R-San Antonio), as quoted in a Texas Tribune article about Governor Greg Abbott’s use of executive orders and related powers.
“Tracking Congress began to feel like keeping up with the latest from the mean girls in my sixth grade cafeteria. That first day back, I saw members wandering around the Rotunda, livestreaming themselves in the middle of the workday, rather than attending committee hearings or meeting with constituents or, hell, even lobbyists. It finally dawned on me that what had once been an unhealthy trend had now hit critical mass: Becoming internet famous was now the entire point of serving in Congress.”
—Excerpt from “The Education and Disillusionment of a Young Texas Reporter in D.C.,” an essay by Abby Livingston, former Capitol Hill beat reporter for the Texas Tribune.
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