Annual Conference recap

What a great turnout for this year’s Annual Conference in Corpus Christi! After all the dust settled, we counted 1,039 speakers, attendees, exhibitors, and others who moved the turnstiles at our largest conference of the year. We also recognized several members of our association for their public service, including Fort Bend County DA Brian Middleton (2022 Prosecutor of the Year), Potter County CA Scott Brumley (2022 Prosecutor of the Year), Tarrant County CDA Sharen Wilson (Lone Star Prosecutor), Hill County DA Mark Pratt (Lone Star Prosecutor), Rusk County ADA Zack Wavrusa (Oscar Sherrell Award for service to TDCAA), and Dallas County ACDA Jen Falk (C. Chris Marshall Award for training excellence).

Many thanks to all who joined us in Corpus. And for those of you already turning your attention to the 2023 Annual Conference … stay tuned! We will have more information on the location and timing of that event in the coming weeks. (How’s that for a teaser?)

Mandatory Brady training now available

The new 2022 version of TDCAA’s Mandatory Brady Training is now available online. All of you should’ve received an emailed flyer about the course, but here are more details:

• Tex. Gov’t Code §41.111 (Training Related to Prosecuting Attorney’s Duty to Disclose Exculpatory and Mitigating Evidence) and related rules adopted by the Court of Criminal Appeals require prosecutors to complete specific training every four years on a prosecutor’s duty to disclose exculpatory and mitigating evidence. (This includes any special prosecutor or prosecutor pro tem who handles even a single criminal case, so be sure those lawyers know about this training obligation!)
• This mandatory training requirement does not apply to lawyers in a prosecutor’s office who exclusively handle Class C misdemeanors or civil matters.
• The most recent version of this course was offered online starting in 2018, so many prosecutors will need to take the 2022 course by the end of this calendar year to remain in compliance.
• New prosecutors have 180 days after they begin employment to complete the training.
• The course is free and open to anyone, including those not statutorily required to take it.
• TDCAA will report 1.25 hours of MCLE (including 1.25 hours of ethics) to the State Bar for anyone who completes the course and will annually report to the Court of Criminal Appeals a list of those attorneys in compliance.

You can access the course at https://www.tdcaa.com/training/mandatory-brady-training-2022/. For questions, call us at 512/474-2436.

Stephens v. State redux and “Texas Prosecution 101”

On Wednesday, the Court of Criminal Appeals declined to reconsider its original opinion in State v. Stephens, the election fraud case from last December that confirmed the constitutional ban on the state attorney general’s unilateral authority to prosecute crimes in Texas. For details about the very interesting concurrence and two dissents to that denial of rehearing, check out today’s TDCAA Case Summaries (and some curated quotes included below).

On the heels of this denial of rehearing—which should shock no one, as the original decision was consistent with almost 150 years of Texas jurisprudence (as thoroughly researched and reported in one of the dissents)—yet more complaints about non-prosecution have already been raised. Perhaps the most overwrought was this recent press release from the Texas Public Policy Foundation (TPPF). While its non-prosecution narrative is unsupported by fact—perhaps because actual facts would disprove the desired political narrative during peak campaign season—we all know how little facts can matter in some public policy debates. More instructive for you may be the author’s proposed solutions: creating a statewide Office of Election Integrity for investigating those cases and new regional judicial districts with new judges and district attorneys authorized to prosecute civil and criminal violations of the election laws. It is unclear how any of that would actually work in practice (other than being extremely expensive to the state), but you can be certain that such legislation will be filed next session along with measures to authorize recall elections for local prosecutors (which is of dubious constitutionality and may therefore require a constitutional amendment—but we can discuss that in more detail when the time comes).

All of this chatter about prosecution is why we updated and reissued our FAQ-style memo on who prosecutes what in Texas earlier this month. Visit Texas Prosecution 101 and share as needed to help ensure public policy decisions are not made in a vacuum of misinformation next session.

Post-Dobbs abortion-related litigation

In the wake of the U.S. Supreme Court’s decision in Dobbs to return the legality of elective abortion to the states, several local prosecutors and the attorney general have been sued in a federal lawsuit seeking to enjoin them from enforcing any of Texas’ criminal laws against nonprofits and others that want to help pay for Texans’ abortions out of state. For a background summary of that litigation, see this helpful blog post from TCJL from earlier this month.

As of now, no class action has been certified that would apply this litigation to all county and district attorneys in the state. However, the individual prosecutors named in the suit have agreed not to enforce the laws at issue until the federal litigation is concluded. An initial ruling from the trial court is expected in the coming weeks, and we will provide updates as warranted.

Legislative appropriation requests

Staff from the Legislative Budget Board (LBB) and the governor’s office began hearing the initial legislative appropriations requests (LARs) from various state agencies this month, including those within the judicial branch. The LAR hearing process allows every agency receiving state money to make a formal request for funding for the next biennium. Those agencies usually begin by formally asking that current funding levels be maintained and then put forth requests for additional funding, known as “exceptional items.” As the budgeting process moves forward into the regular session, those exceptional items will be considered first by LBB and then by the appropriate budget committees of each chamber, and some lucky exceptional items will make it into the final budget adopted by the full legislature in May of next year.

The (limited) funds that prosecutors receive from the state run through the Judiciary Section of the Comptroller’s Office. That agency traditionally does not request exceptional items on behalf of its beneficiaries, so Comal County CDA Jennifer Tharp  and 46^th Judicial DA Staley Heatly, your Legislative Committee Co-chairs, made in-person requests this week for three exceptional items: increased assistant prosecutor longevity pay, parity with the salary increases that judges may receive based on years of service, and credit towards that service for time spent in other positions. Here are more details on each of those proposals.

Assistant prosecutor longevity pay

Under this current program (as enacted in 2001), assistant prosecutors receive $20 a month per year of service starting in their fifth year as a prosecutor (for an initial annual supplement of $960 in that fifth year) but are capped at a maximum of $5,000 (not reached until after their 20^th year of service). Under the proposal developed by TDCAA’s Compensation Committee and presented to the LBB by Jennifer Tharp, assistants would receive $100 a month per year of service starting in their third year of service ($2,400 in year three), with a cap of $10,000 reached after nine years of service. These increases are estimated to cost the state an additional $29+ million for the FY 2024–2025 biennium (in addition to the projected $9.45 million cost of the current program).

Salary parity and cross credit

The second and third proposals from TDCAA’s Compensation Committee are related to courthouse pay parity between judges and prosecutors and were presented to the LBB by Staley Heatly.

Elected felony prosecutors are seeking a third increase in compensation after 12 years of service that is comparable to the $8,500 in annual longevity pay a district judge receives at that stage. The biennial cost to the state of this additional salary tier for prosecutors would be roughly $824,500.

And finally, the Compensation Committee recommended that “cross-credit” be granted for prosecutors and judges when calculating years of service for salary purposes. Currently, judges receive credit for time served in various judicial roles when calculating their salary level, but time served as a district or county attorney does not count. Similarly, district attorneys and county attorneys do not receive credit for time served as an elected prosecutor in any office other than the one currently held, nor do they receive credit for time served as a judge. Under this third proposal, eligible judges and county and district attorneys would receive credit for time served in any of those various elected offices for the purpose of calculating their current salary. This would enable prosecutors and judges to switch roles without a financial penalty—something that is vital to ensuring good candidates and officeholders in areas of the state where lawyers are scarce. Such a change would cost the state roughly $707,000 for the FY 2024–2025 biennium.

Thanks to Jennifer and Staley for getting the ball rolling!

Other related funding requests

There were also exceptional item requests for pay raises from Jack Choate, executive director of the Special Prosecution Unit, and by the chairman of the state’s Judicial Compensation Commission—and the latter request was a big ’un. That commission is recommending that the current $140,000 benchmark salary for district court judges be increased by 22 percent over the next biennium. Of course, this impacts the pay and supplements of not just judges, but also any prosecutors who are tied to that benchmark salary. The resulting cost of this exceptional item is estimated to be $49+ million over the next biennium. Raising that base pay figure has always been a thorny issue at the capitol because legislators’ retirement benefits are tied to it, so we shall have to wait and see how that proposal fares again this session.

At other budget hearings, the Office of Court Administration (OCA) and various other courts and judicial branch entities are requesting 10 percent salary raises for court and agency staff (other than elected judges). That amount seems to be a pretty standard agency request heading into the next session, regardless of agency or branch of government. (Another example is the Office of Attorney General, which has requested an exceptional item of roughly $75 million for both general and targeted salary increases for its lawyers and other staff, plus an addition $15 or so million for its criminal investigation division employees.) The OCA also requested additional funds to upgrade various data and appellate case management systems, and the Texas Indigent Defense Commission (TIDC) requested an exceptional item of approximately $50 million to fund new regional public defender offices in rural regions of the state.

Going forward, LBB-sponsored hearings will continue into October, so check back next month for more updates on requests from agencies like DPS, TDCJ, and others.

Interim committee news

Among the legislative hearings from September that might be of interest to some of you are the following:

The House Committee on Public Health heard testimony on opioid abuse and the dangers of fentanyl.

The Senate Committee on Local Government reviewed issues surrounding so-called “taxpayer-funded lobbying,” but no new ground was plowed on this issue (which is sure to come up again next session).

The House Juvenile Justice & Family Issues Committee reviewed barriers to reporting domestic violence and obtaining protective orders, including expert testimony from Tarrant County ACDA Marvina Robinson, Dallas County ACDA Sharron Archie, and El Paso County ACA Aaron Setliff.

Upcoming hearings

Among those relevant interim charges officially posted for hearings in October so far are:

Monday, October 3
House Judiciary & Civil Jurisprudence + House Juvenile Justice & Family Issues (joint hearing)
10:00 a.m., Capitol Extension Room E1.030
Charge: Judicial caseloads along the Texas-Mexico border (invited testimony only)

Wednesday, October 12
House Judiciary & Civil Jurisprudence
9:00 a.m., Room E2.016
Charges: Guardianships, jury service eligibility (invited testimony only)

House Select Interim Committee on Criminal Justice Reform
1:00 p.m., Room E2.016
Charges: bail reform, drug crimes, civil asset forfeiture, jury instructions, sentencing guidelines (invited testimony only)

Thursday, October 13
House Select Interim Committee on Criminal Justice Reform
9:00 a.m., Room E2.016
Charges: policing reform, prosecutorial discretion, uses of detention and incarceration, transparency in policing/prosecution (including the grand jury process) (invited testimony only)

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. Seats up for selection this cycle are the West (Regions 1 & 2) and North Central (Regions 3 & 7) representatives. (The TDCAA regional map is available HERE.) To be eligible, each candidate must have the permission of his or her elected prosecutor, attend the elections in-person at the conference, and have paid membership dues prior to the meeting. For more details on these elections, email [email protected].

Mock trial judges needed

South Texas College of Law’s Trial Advocacy Center is hosting a preliminary round of the national All-Star Bracket Challenge mock trial competition on the weekend of October 8–9, 2022, but judges are needed to preside over the criminal case that competitors will be handling. This regional round is being conducted remotely over Zoom and volunteer judges can claim three hours of CLE for their time. If interested, contact Director Brandon Draper at [email protected] for more details.

Scattershooting

Here are some stories of late that you might’ve missed:

• “Court rejects AG Ken Paxton’s bid to continue prosecuting election crimes” (Austin American-Statesman)
• “Texas AG’s office sends mixed signals about whether it can fine nonprofits that pay for out-of-state abortions” (Texas Tribune)
• “State agencies push for better worker pay as critical staffing crunch hits Texas government” (Texas Tribune)
• “Hemp was supposed to save Texas farmers during a drought. It hasn’t yet.” (Texas Tribune)
• “Satanic panic is making a comeback, fueled by QAnon believers and GOP influencers” (NBC News)
• “How vigilante ‘predator catchers’ are infiltrating the criminal justice system” (Washington Post)
• “Dysfunction in Texas AG’s office as Paxton seeks third term” (AP News)

Quotes of the Month

“Our Stephens opinion should not have surprised anyone. Since 1836, the district and county attorneys have represented the State in all criminal prosecutions in the trial courts; the Texas Attorney General (hereinafter sometimes “AG”) has never undertaken that duty. From the birth of Texas until the present day, the AG’s constitutional role in criminal prosecutions has always been limited to an advisory role or to giving assistance to the county or district attorney, and even then, only when requested.”

            —Court of Criminal Appeals Judge Michelle Slaughter, in her dissent (on other grounds) to that court’s refusal earlier this week to reconsider its original opinion in State v. Stephens confirming this long-standing interpretation of the state constitution.

“The power given to district and county attorneys includes the power not only to prosecute cases but also to decide which cases should not be prosecuted. When the district or county attorney chooses not to prosecute a case, they are permissibly exercising their prosecutorial discretion; it is their prerogative to file or not file charges. If the Attorney General files criminal charges when the prosecutor has specifically chosen not to, the Attorney General unduly interferes with—he usurps—the district or county attorneys’ exercise of their prosecutorial power.”

            —Court of Criminal Appeals Judge Scott Walker, in his concurrence to that court’s refusal to reconsider its prior opinion in State v. Stephens, rebutting claims in Judge Slaughter’s dissent that the state constitution might allow the attorney general to prosecute a case that a local prosecutor has declined to prosecute.

“It’s absolutely broken. It’s just broken. You don’t do it this way. I made the mistake of trusting them that they would come in and do a good job.”

            —Coryell County DA Dusty Boyd (R), after the attorney general’s office dismissed cases against multiple defendants in a high-profile human trafficking investigation in his jurisdiction.

“As for judges and DA’s [sic] who release violent criminals, and choose not to enforce Texas laws, we need to remove them from office. We cannot let Democrats turn Texas into California.”

            —Campaign tweet from Lt. Gov. Dan Patrick (R-Houston) posted earlier this week—and no, he’s probably not just referring to the upcoming November elections (but we’ll see!).

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Recent rains may have provided a good “be careful what you ask for” lesson for some, but we’ll still take what we can get after 51 days without measurable rain in Austin. Meanwhile, our “How hot is it?” challenge from last month’s update brought in some good ‘uns. A sampling:

“It’s hotter than a fresh-run rabbit in a forest fire.”
“It’s so hot, the prisoners refuse bail. They need the a/c.”
“It’s so hot, when I tell people to go to hell, they think it’s a vacation offer.”

That said, we’d be just fine with not having to start a “How wet is it?” contest for next month’s update.

Are you getting the right salary or supplement?

In 2019, the legislature adopted a longevity-based tier system to pay judges and elected felony prosecutors. The county attorney supplement is also now based on that tiered system. This system greatly complicates the work of our friends at the Judiciary Section of the Comptroller’s Office because they now have to keep track of the longevity of hundreds of elected officials. Despite their great work, mistakes can happen, so you may be getting too little in your pay or supplement or too much. For example, we have learned of at least one county attorney who has been getting too much state supplement and now is faced with paying it back. Ouch!

As many of you are in budget season, we suggest that NOW is the time for you to double-check your salary and supplement to be sure it has been calculated correctly. If you have any doubts and want to talk it through, contact [email protected].   

Dobbs and prosecutorial discretion

It’s a safe bet that every future legislative update for the next year (or more) is going to include references to policy changes being discussed in the wake of the Dobbs opinion overruling Roe v. Wade. The abortion issue—unlike any other policy issue we’ve seen in our association’s institutional memory—is creating unprecedented discussions about the nature, scope, and locus of criminal prosecution. It is also an issue that, for many policymakers, leads them to ignore (if not downright contradict) their previously-held views on the proper role and reach of criminal prosecution. Accordingly, we will do our best to keep you updated on the very serious conversations that are taking place at the state capitol which may directly affect your jurisdiction and authority as locally-elected county attorneys and district attorneys. (And it is not only Austin where these conversations will take place. This is a national issue, as demonstrated by the recent suspension from office of a Florida prosecutor by that state’s governor.)

For one example of what is coming down the pike, we will refer you to a blog post from earlier this month by the Texas Civil Justice League (TCJL), a well-respected player at the capitol when it comes to civil legal issues. In a blog entry entitled “Proposed ‘Model’ Law Incorporates and Expands SB 8 Cause of Action,” the author discusses some “model laws” being proposed around the nation to expand the scope of civil liability for anyone connected with an elective abortion, in part to wire around local prosecutors who decline to pursue criminal prosecutions for those acts in states that have banned that procedure. These model laws advocate creating another layer of prosecutorial authority—whether it be a state attorney general, newly created multi-county “super DAs,” or new extra-territorial jurisdiction of existing prosecutors—that have previously been considered in the policy areas of election fraud and (to a lesser extent) human trafficking prosecutions. As the post’s author correctly notes, “None of this is the way the criminal justice system is supposed to work”—but that doesn’t mean our legislature isn’t seriously considering it when it comes to issues like abortion and election fraud that, for some policymakers, trump all other substantive and procedural considerations about criminal prosecutions.

So, if you want a glimpse of what your legislators will be asking you about this fall, read that blog post and then peruse the model law that it references, because those proposals (or something similar) are what some of your local state senators and representatives will be debating as soon as next month during interim hearings. (We also have more on this topic in “Quotes of the Month,” below.)

Party platforms

Following up on last month’s excerpts from the Texas GOP platform, the state Democratic party’s platform was approved earlier this month and can be viewed HERE. The policy planks are not numbered, but items of note under the following subject matter areas include:

• Democracy / Voting Rights and Fair Elections: “Clarify legal standards around voter protection and voter assistance to reduce fears of prosecution among county election officials and voter protection volunteers and advocates”
• Democracy / Campaign Finance Reform: “Require candidates and elected officials throughout the state, including local or county officials, to file an annual Personal Financial Statement and disclose their donors’ employment”
• Democracy / Ethics and Transparency in Government: “Establish an office of an independent prosecutor to investigate and prosecute any state-wide elected or appointed official who is accused of unlawful conduct”
• Reducing Gun Violence (lists 11 specific gun-control proposals, such as “extreme risk protective orders,” a repeal of open carry and campus carry laws, and more)
• Criminal Justice Reform / Transforming Policing: “Strengthen independent oversight of all investigations into police conduct by requiring independent prosecutors to investigate questionable officer-involved actions”
• Criminal Justice Reform / Transforming Policing: “Ensure civil asset forfeiture only upon a criminal conviction”
• Criminal Justice Reform / Reforming Court Procedures: “Improve both the quality and integrity of the Texas criminal justice systems by criminalizing intentional prosecutorial misconduct”
• Criminal Justice Reform / Reforming Juvenile Justice: “Raise the age of criminal responsibility from 17 to 18 years of age and end the prosecution of juveniles in adult courts”
• Criminal Justice Reform / Ending “Tough on Crime” Sentencing: “Reduce the number of people entering jails and prisons by eliminating incarceration as a penalty for low-level, non-violent offenses”
• Criminal Justice Reform / Legalizing Cannabis: (Self-explanatory, with this addition …) “Until legalization, eliminate arrest, promote pretrial diversion, and transition to civil fines for cannabis possession offenses in Texas”
• Ending Sexual & Family Violence / Services and Funding: “Expand provider training for all law enforcement, justice system, healthcare, mental health, education, disability services, and social services personnel, including training on treating marginalized populations, using trauma informed treatments, and practicing evidence-based therapies, and mandate periodic completion of updated trainings to meet continuing education licensure requirements”
• Ending Sexual & Family Violence / Accountability: “Require that every county and district attorney’s office in Texas, upon the victim’s qualification and request, file a protective order on behalf of victims and represent the victims before the court”
• Ending Sexual & Family Violence / Accountability: “Place every defendant charged with a family violence crime on either a probation-deferred adjudication or deferred prosecution program and order them to complete a targeted intervention program for perpetrators”

Again, for the full list, access the document at the link above.

Interim committee news

There were more than 20 interim committee hearings this past month. Among those that might be of interest to some of you are the following:

The House Judiciary & Civil Jurisprudence Committee heard invited testimony on appellate court caseloads and discussed potential solutions, including two controversial ideas from 2021: SB 11 (to re-organize the entire appellate system), which failed to advance very far, and SB 1529 (to create a new statewide intermediate appellate court for certain civil cases), which passed the Senate on a party-line vote but ran out of time in the House. The latter idea may get more attention next session, both because of the progress it made in 2021 and because of a new focus in the post-Roe era on civil and administrative enforcements of abortion-related laws, which many legislators do not want to go through Travis County or the 3^rd Court of Appeals. For a refresher on these ideas, see our legislative updates from March 30 and April 16, 2021.

The House Juvenile Justice & Family Issues Committee reviewed the current mess that is the Texas Juvenile Justice Department and—shockingly!—no one had any easy solutions to the agency’s woes that didn’t involve massive infusions of state funding.

The Senate Border Security Committee went to the border to hear about the community impact of Operation Lone Star and heard testimony from several local officials, including county attorneys.

The House Corrections Committee heard testimony from the Special Prosecution Unit regarding civil commitments and crimes in TDCJ.

The House Committee on Pensions, Investments, and Financial Services reviewed the actuarial soundness of ERS (state officials and employees) and JRS2 (judges), the latter of which has unfunded liabilities due to the meager pay-in from its beneficiaries and the legislature’s failure to bump contributions when it raised judicial salaries in 2019.

The House Select Interim Committee on Criminal Justice Reform met to discuss juvenile justice issues and recidivism problems, but not much new came of that review.

Upcoming hearings

Interim charges currently posted for hearings in September include (click hyperlink for complete notice):

Thursday, September 8

House Transportation
1:00 p.m., UTGRV Brownsville Campus (see link for further details)
Charges: Reducing Texas road fatalities; truck transportation/supply chain problems; and seaport issues (invited testimony only)

Tuesday, September 13

House Public Health
11:00 a.m., Capitol Extension Room E2.010
Charges: fentanyl-related overdoses and deaths; telemedicine issues; more.
(invited and public testimony)

TDCAA Annual Conference

Registration for our 2022 Annual Criminal & Civil Law Conference in Corpus Christi is still open. If you are looking for a deeper dive into today’s pressing advocacy issues, help with managing your courtroom, or just a chance to catch your breath and broaden your knowledge, this program is for you. We’ve already registered more than 925 people for this huge September conference, but if you and your staff aren’t on that list, click here to see additional details and/or register.

Scattershooting

Here are some stories of late that you might’ve missed:

• “Ken Paxton’s legal guidance on public access to ballots contradicts advice his office gave out just five days earlier” (Texas Tribune)
• “Texas can’t ban 18- to 20-year-olds from carrying handguns, US judge says” (Austin American-Statesman)
• “Gov. Greg Abbott appoints officer indicted for misconduct during George Floyd protests to police regulatory agency” (Texas Tribune)
• “Lawmakers decry collapsing Texas juvenile prison system, ask Abbott to call special session” (Texas Tribune)
• “Most Texans support legalizing pot for recreational or medical use, new poll finds” (Dallas Morning News)
• “How Two Mexican Drug Cartels Came to Dominate America’s Fentanyl Supply” (Wall Street Journal)
• “Why are border smugglers trafficking bologna?” (Texas Monthly)
• “Don’t Abort Local Prosecutors’ Discretion” (Washington Monthly) (worth reading despite the cringe-worthy headline)

Quotes of the Month

“If it wasn’t clear already, it’s absolutely clear now that there is no going back to ‘normal.’ There’s no going back to five days a week in the office. You have a real risk if you’re demanding that people come back, you’re going to lose valuable people.”
            —Joanne Lipman, author and college lecturer, discussing the nature of the post-COVID workplace on CNBC’s Squawk Box show. (The short video interview at this Twitter link might resonate with some of you having problems hiring and retaining staff!)

“It is unbelievable that the attorney general appears to be giving conflicting advice to election officials regarding something as serious as the security of ballots that have been cast in the election. Nothing relevant has changed in the 30 years the office’s opinion has been in effect—except that the current incumbent is now a leader of the ‘Stop the Steal’ movement.”
            —James Slattery, senior staff attorney at the Texas Civil Rights Project, commenting upon conflicting statements from OAG on the public availability of ballots.

“In some areas we were literally competing with Buc-ee’s, and if [an applicant has] a choice to work at Buc-ee’s or work for TJJD with high-risk mandatory overtime ….”
            —Shandra Carter, Interim Executive Director of the Texas Juvenile Justice Department (TJJD), testifying before an interim house committee earlier this month about the agency’s severe staffing shortage and the problems that causes.

“I need the Texas Legislature, and I’ll need the governor’s help to come back and pass legislation to address this to continue that fight.”
            —Texas Attorney General Ken Paxton (R-McKinney), announcing to the crowd at the national Conservative Political Action Conference (CPAC) in Dallas the first week of this month that he intends to seek a legislative remedy this session to the CCA’s opinion in Stephens v. State that struck down as unconstitutional his authority to independently prosecute election fraud crimes.

“One thing that we’ve unfortunately seen is, there are some district attorneys in some parts of the State of Texas who do not want to enforce the [election] laws. One thing that we can easily do by statute this next session is, we can create a special prosecutor that falls under the component of the constitution that would allow that prosecutor to constitutionally go out and prosecute those cases.”
            —Governor Greg Abbott (R-Houston), in response to a podcast host discussing the Stephens opinion and asking,“How would you plan on nullifying this absurd ruling from the Criminal Court of Appeals [sic]?” (The full five-minute discussion from August 11, 2022, begins at the 24:45 mark of this podcast; you can listen to it yourself to hear what other ideas policymakers are discussing behind closed doors right now to circumvent local prosecutors.)

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“It’s so hot, the cows are giving evaporated milk.”
“It’s so hot, I saw a dog chasing a cat and they were both walking.”
“It’s so hot, the birds are using oven mitts to pull worms out of the ground.”
“It’s so hot, the trees are whistling for the dogs.”

What’s your favorite “Texas heat” expression? Send it our way and maybe we’ll run it next month if we still haven’t had any relief from this accursed weather.

Dobbs update

The U.S. Supreme Court mandate in Dobbs was issued on Tuesday, July 26. The state attorney general’s office has updated its suggested guidance following the mandate’s issuance, noting that the new criminal, civil, and administrative sanctions applicable to certain elective abortions under HB 1280, aka Texas’s “trigger law,” will take effect on August 25, 2022. For those interested, that full advisory is available HERE.

We have also amended our previous update on Dobbs and related issues to reflect this new effective date. To read that updated version of “Abortion-related crimes after Dobbs,” click the link.

99 problems but the budget ain’t one

Your pocketbook might be hurting right now, but the State of Texas is flush. A combination of record high sales tax receipts (some of which can be attributed to inflated consumer prices), massive increases in oil and gas tax revenues, continued infusions of federal pandemic-related dollars, and other increased revenue sources is expected to result in a surplus of nearly $40 billion for the next legislative session. Even after the Comptroller skims off a third of that bounty for the state’s Rainy Day Fund (as mandated by state law), budget writers should have $25–$30 billion (with a “b”) more to appropriate for various purposes than they had last session.

That’s all fine and dandy for state agencies, of course, but those of you with an eye toward convincing the Lege to divert some of that abundance to local prosecution must remember that your business is largely a local concern, even if most of your cases proceed “in the name and by the authority of the State of Texas.” However, there are some aspects of your job that the State has traditionally helped with, and the current prosecutor recruitment and retention crisis could certainly be eased with more of that kind of state help. To that end, TDCAA President Jack Roady (Galveston County CDA) appointed a committee chaired by 46^th Judicial DA Staley Heatly to research and recommend ways in which the Lege might help shore up the compensation issues that adversely impact both elected and assistant prosecutors and other staff. Look for more updates in the coming months discussing the fruits of that committee’s work, along with details on how the general TDCAA membership can be most effective in strengthening prosecution in our great state.

LBB projections

As part of their duties, the good people at the Legislative Budget Board (LBB) try to divine the state’s future incarceration needs to help budget writers plan accordingly. That process involves both quantitative (objective number-crunching) and qualitative (subjective context) research, the latter of which some members of our Legislative Committee recently helped with. The results can be found in their latest report, Adult and Juvenile Correctional Population Projections (FY 2022–27). Interesting facts from that report include the following:

• Adult arrests in Texas decreased 33 percent from 2017 to 2021
• TDCJ admissions declined 35 percent from 2017 to 2021 (despite an increase in 2021)
• Juvenile arrests decreased 54 percent from 2017 to 2021
• TJJD admissions declined 33 percent from 2017 to 2021 (despite an increase in 2021)
• The average length of stay for someone released from TDCJ in 2021 was 986 days (2.7 years)
• The average length of supervision for someone released from parole supervision in 2021 was 1,081 days (2.9 years)
• The average length of supervision for someone released from community supervision in 2021 was 1,462 days (4 years)

Peering into their crystal ball, the LBB prognosticators think TDCJ prison and parole and probation numbers will all increase over the next five years as courts work through their COVID-induced backlogs, but they predict misdemeanor probation caseloads will continue to decrease. However, as with the Comptroller’s revenue projections discussed above, the LBB will update these incarceration projections in January 2023, and it will once again be seeking input from judges, defense lawyers, and prosecutors for the qualitative context needed to make accurate projections. If offered an opportunity to participate in that process, please consider doing so.

Party platforms

We’re old enough to remember when no one at the capitol knew or cared what was in either political party’s platform because their planks rarely turned into actual policy. But that has changed over the past decade or so, and it now behooves everyone to follow such developments.

The state Republican party’s platform was approved earlier this month and can be viewed HERE. Items of note include:

• Plank 22: “Dereliction of Duty: The failure by a public official to discharge any duty shall be a violation of the terms of his or her oath of office, which shall constitute a crime, and upon conviction, this crime shall be punishable by a fine or imprisonment, depending on the nature of the offense. …”
• Plank 35: “Unfunded and Under-Funded Mandates” (supporting full state funding of indigent criminal defense, jail inmate healthcare, indigent burials and autopsies, and more)
• Plank 40: “Practice of Law” (opposing mandatory State Bar membership, limiting standing for the filing of grievances, and supporting sanctions for those who misuse the Bar’s legal disciplinary process)
• Plank 79: “Gambling” (they agin’ it)
• Plank 159: “Addiction” (opposing legalization or decriminalization of drugs, including marijuana per Plank 227)
• Plank 173: “Civil Asset Forfeiture” (supporting its abolishment and requiring a criminal conviction before forfeiture)
• Plank 178: “Raise the Age” (supporting an increase in the age of criminal responsibility from 17 to 18 years of age)
• Plank 183: “Court Accountability” (supporting jury nullification instructions; opposing policies by district attorneys “that systematically decline to prosecute crimes”)
• Plank 187: “Human Trafficking Jurisdiction” (in favor of granting OAG “full concurrent jurisdiction over multi-jurisdictional [human trafficking] cases”)
• Plank 188: “Rule of Law Enforcement: We support rule of law and enforcement of laws, which maintain an ordered republic. We call for independent prosecutorial authority to prosecute crimes that maintain order (such as sedition, riot, official oppression, election integrity, etc.) to be delegated to a statewide officer such as the Attorney General. We oppose the December 2021 opinion of the Court of Criminal Appeals in State v. Stephens, which was judicial activism, and encourage the Court to reconsider this ill-advised opinion. We call on the Legislature to ensure that election crimes will be promptly prosecuted, even in counties with progressive district attorneys.”
• Plank 196: “Political Policing: We believe that laws should be enforced uniformly, that punishment should meet the crime, and that law enforcement should never be used to target individuals for political purposes. We oppose the targeting of police officers by progressive district attorneys. We support automatic and prompt expunction of law enforcement officials’ records who are found not guilty in a court of law regarding job-related actions.”
• Plank 226: “Prosecution of Election Fraud: We urge the passage of a constitutional amendment that gives the Texas Attorney General concurrent jurisdiction to prosecute election fraud along with the county District Attorneys.”
• Plank 232: “Tax-Funded Lobbying: We oppose using tax dollars to hire lobbyists or paying tax dollars to associations that lobby the Legislature.”

For the full list, you can access the document at the link above.

As for the state Democratic party, its convention ended a few weeks ago without any platform being issued, but one is supposed to be in the works, so we will share anything interesting or relevant from it (if it is ever completed).

Interim committee news

The House Human Services Committee reviewed the current status of the state hospital system and … lather, rinse, repeat. (For a more urgent verdict on the current state of that system, read the Dallas Morning News story under “Scattershooting.”)

The Senate Finance Committee examined the effectiveness of Operation Lone Star—including the role the Border Prosecution Unit has played to date—and then reviewed the effectiveness of the bail bond reform legislation (SB 6) passed during last year’s second special session. There was bipartisan support for strengthening the public safety aspects of the new law. Thanks to Tonya Ahlschwede (452nd Judicial DA), Kim Ogg (Harris County DA), David Mitcham (Harris County First Asst. DA), and Jennifer Tharp (Comal County CDA) for providing helpful testimony to the committee on those issues.

The House Appropriations Committee reviewed the health of Crime Victims Compensation funding and related funds to support sexual assault survivors, with pledges from some on the committee to continue to supplement revenue gaps with general revenue funding where possible.

The House Public Education Committee met to discuss various issues that included truancy and attendance accountability in the wake of the Uvalde school massacre. Among the proposals put forth by witnesses was one from the JP and Constables Association to remove the requirement that only prosecutors can initiate civil truancy actions.

Upcoming hearings

Interim charges currently posted for hearings in August include (click link for complete notice):

Monday, August 8
House Homeland Security & Public Safety and House Youth Health & Safety (Select Committee) (joint hearing)
9:00 a.m., Room E1.030
Charges #4 (role of online communications in mass violence scenarios) and #5 (youth mental health services)
(invited testimony only)

Tuesday, August 9
House Juvenile Justice & Family Issues
10:00 a.m., E2.014
Charges #1 (TJJD oversight), #4 (juvenile probation and incarceration resource allocation), and #5 (juvenile facility workforce issues at the state and local level)
(invited and public testimony)

Wednesday, August 10
Senate Border Security
8:30 a.m., Eagle Pass, Texas (click link for more details)
Charge #2: Study the community impact of Operation Lone Star
(invited and public testimony)

Tuesday, August 16
House Pensions, Investments & Financial Services
11:00 a.m., E2.030
Charges #2 (actuarial soundness of ERS), #4 (actuarial soundness of LECOS and JRS Plan 2), others
(invited and public testimony)

TDCAA Annual Conference

Registration for September’s Annual Criminal & Civil Law Conference in Corpus Christi is now open. From jail standards to the ethics of plea-bargaining, this year’s event has something for everyone. If you are looking for a deeper dive into today’s pressing advocacy issues, help with managing your courtroom, or just a chance to catch your breath, this event is for you. We’ve already registered more than 600 people, so if you aren’t one of them, don’t get left behind! Click here to register and see additional details.

Scattershooting

Here are some interesting stories that you might’ve missed:

• “Love Field shooter ‘perfect example’ of mental health treatment crisis” (Dallas Morning News)
• “How San Francisco became a failed city (and how it could recover)” (The Atlantic)
• “The Waco Biker Shootout Left Nine Dead. Why Was No One Convicted? (New York Times Magazine)

Quotes of the Month

“I round it down to $40 billion.”
            —Texas Comptroller Glenn Hegar (R-Katy), announcing his agency’s updated revenue estimate for next session’s budget writers.

“We have very few rules when it comes to campaign finance in Texas, and the few that we do have are not enforced, clearly. What’s the point of even having the rules?”
            —Anthony Gutierrez, executive director of Common Cause Texas, as quoted in a Houston Chronicle story about the attorney general’s refusal to enforce more than $700,000 in fines assessed against political candidates by the Texas Ethics Commission.

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It’s been a whopper of a news month, hasn’t it? We hardly know where to begin.

Dobbs opinion

Last Friday, we sent all of you an analysis of the potential impact of the Dobbs opinion on Texas law; if you missed that email, you can find it on our website here. Our analysis focused on last session’s “trigger law” legislation that we had not previously summarized due to that law’s contingent effective date (which is still up in the air as this update goes to press), as well as some observations about other new and old (and VERY old) laws that may now come into play when discussing the legality of elective abortions.

As we predicted on Friday, the legal battles have already begun over what is or is not prosecutable after Dobbs. The status of various lawsuits and injunctions and appeals will change faster than we can provide everyone with updates, so please keep yourself up to date on those developments if this is an issue that impacts your office.

Uvalde

The summer of even-numbered years is usually a slow time for the Texas Legislature, but the events in Uvalde kicked interim legislative committees into overdrive this past month. House and Senate leadership created special committees to review the horrific events at Robb Elementary School in Uvalde, and multiple other committees held hearings on topics within their subject matter jurisdiction that might be relevant to what happened. There were too many committee hearings for us to summarize in this space, but here are some quick take-aways:

• Fuggetaboutit #1: The governor is not calling a special session to respond to the Uvalde massacre (or any other news event between now and the November elections).
• Fuggetaboutit #2: There will be no new laws to limit gun access or possession next session (barring a dramatic change in the partisan make-up of the Lege).
• There have been encouraging signals from the Lege about increasing forensic mental health funding and resources; everything is still on the table, so now is the time to engage with your local reps and senators to make your needs known.
• In that vein, kudos to Burnet CA Eddie Arredondo and First Asst CA Colleen Davis, who testified before a joint hearing of the House Corrections and County Affairs Committees on rural mental health needs (including authorizing and funding regional mental health centers and diversion courts along with more resources for mental illness identification and diversion, especially for juveniles and low-level offenders).

Other (non-Uvalde massacre) committee news

The House Licensing & Administrative Procedures Committee examined the proliferation of illegal gambling in Texas in all its many forms—daily fantasy sports, 8-liners, poker rooms, brush track races, etc.—including testimony from Potter CA Scott Brumley on the legal and practical challenges faced by prosecutors who wish to enforce the (inadequate) anti-gambling laws currently on the books.

The House Corrections and House County Affairs Committees met jointly to review the availability of behavioral health services for offenders in the criminal justice system. TDCJ reported that it has currently filled only 57 percent of its staffing needs, while its inmate population is at ~118,000, a 15 percent decrease from pre-COVID levels. The agency also reported that more than half of the ~42,000 new inmates it processes every year have chemical dependency issues and more than one-quarter have mental health issues. The Texas Commission on Jail Standards (TCJS) also reported that approximately one-half of all jail inmates have mental health concerns at intake.

The Sunset Advisory Commission reviewed agency reports on TCEQ and TJJD. In regard to the latter agency, the commission heard that TJJD is in crisis mode (again), with only 60 percent of its staffing needs fulfilled and up to 30 percent of new hires quitting in the first few months of their jobs after they complete their training. The agency cannot staff the beds it has, leading the Sunset staff to consider recommending that most juveniles may be better managed at the county level due to the state agency’s inadequacies and limitations. Final recommendations will be made in October; for more on the TJJD review process, click here.

The Senate Finance Committee examined the ~$8.5 billion the state appropriates for mental and behavioral health care each biennium. The average wait for a maximum-security unit (MSU) bed is now 500 days, while the wait for a non-MSU bed is ~230 days; as a result, the number of people on the waiting list has increased more than 50 percent from pre-COVID days. Those increases were attributed to post-pandemic staffing shortages. Witnesses before the committee also discussed finding new ways to restore competency without resorting to the time and expense associated with state hospital commitments, especially for low-level misdemeanor offenders.

Upcoming hearings

Interim charges currently posted for hearings in July include (click on the link for the full notice):

Monday, July 11
Senate Finance
10:00 a.m., Room E1.036
Charge #1: State use of federal COVID-19 relief funds (invited and public testimony)

Tuesday, July 12
Senate Finance
10:00 a.m., Room E1.036
Charges #8 (bail bond reform) and #9 (Operation Lone Star appropriations) (invited and public testimony)

TDCAA Annual Conference

Registration for TDCAA’s Annual Criminal & Civil Law Conference is now open. From jail standards to the ethics of plea-bargaining, this year’s event has something for everyone. If you are looking for a deeper dive into today’s pressing advocacy issues, help with managing the courtroom, or just a chance to catch your breath—this event is for you. Click here to register and see additional details.

Scattershooting

Here are a few interesting stories from this past month that you might’ve missed:

• “Facing exodus of prosecutors, Bexar DA seeking salary boost for his attorneys” (San Antonio Express-News)
• “Nueces County District Attorney’s Office facing shortage of more than a dozen prosecutors” (Corpus Christi Caller-Times)
• “Justice’s price: Comal County DA pushing for competitive pay to keep talent” (New Braunfels Herald-Zeitung)
• “Texas’ Juvenile Justice Department could be on the chopping block” (Texas Public Radio)
• “Opinion: The courts still haven’t figured out how to reconcile science with law” (Washington Post)
• “The Broken Windows Election: What the recall of Chesa Boudin means for the public safety debate” (Washington Free Beacon)
• “How a Harris County ‘jury appreciation week’ event led to a murder mistrial” (Houston Public Media)

Quotes of the Month

“[Uvalde ISD Police Chief Pete Arredondo] decided to place the lives of officers before the lives of children. … I don’t mean to be hypercritical of the on-scene commander, but … this set our profession back a decade.”
            —Steve McCraw, DPS Director, during his testimony to a State Senate committee convened to review events surrounding the Robb Elementary massacre in Uvalde, at which McCraw laid blame for the hour-long stand-off on Arredondo.

“McCraw has continued to, whether you want to call it, lie, leak … mislead or misstate information in order to distance his own troopers and rangers from the response.”
            —Uvalde Mayor Don McLaughlin, who has accused state officials of selectively releasing information about the school shooting in an attempt to scapegoat local law enforcement.

“Texas as well. #txlege #CJReform”
            —House Speaker Dade Phelan (R-Beaumont), quote-tweeting someone saying that “civil asset forfeiture imperils peoples’ rights to property and due process in Kansas.”

“Remember, guys, we’re trying to build out a nationwide district attorney network. Your local district attorney, as we always say, is more powerful than your congressman. They’re the ones that can seat a grand jury. They’re the ones that can start an investigation, issue subpoenas, make sure that records are retained, etc.”
            —Tim Griffin, legal counsel with the Amistad Project—a GOP-affiliated election-integrity group—discussing its efforts to make inroads with local prosecutors who will be amenable to pursuing claims of election fraud in future elections.

“Carol was a great influence on everybody that joined the office. He gave us great discretion to handle cases in the way we saw fit, but his overriding mission was ‘Do the right thing for the right reason, in the right way,’ and everybody followed that.”
            —Ron Woods, former Harris County prosecutor, commenting upon the passing earlier this week of Carol Vance, whose illustrious career of public service included serving as Harris County DA from 1966 to 1979. [TDCAA will offer further reflections on Mr. Vance’s life of service in a future publication.]

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Elective abortions and criminal prosecution

The U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (June 24, 2022) has implications for Texas jurisprudence, including the triggering of a new felony offense relating to elective abortions that will take effect at a yet-to-be-determined date. This new crime was not summarized or discussed in our 2021 Legislative Update publications due to its contingent effective date, so we will discuss here:

• how we got to this point;
• the new trigger law;
• other abortion-related crimes on the books;
• abortion-related crimes you can’t find in your books; and
• party liability issues.

As always, our legislative update information is not intended to instruct prosecutors on what they should or should not do, but merely provide legal research and information needed by our members to make informed decisions on how best to see that justice is done in their communities.

How we got here

For more than 100 years, Texas criminalized various acts relating to the performance of an elective abortion until the U.S. Supreme Court (SCOTUS) handed down its opinion in Roe v. Wade, 410 U.S. 113 (1973), which held five Texas crimes related to abortion facially unconstitutional under the 14th Amendment’s Due Process Clause. After Roe, those crimes could not be enforced in Texas even though they were never legislatively repealed. See, Tex. Op. Atty Gen. No. JH-369 (1974) (noting that only Penal Code Art. 1195 [criminalizing abortion during natural birth] was still enforceable after Roe). In the ensuing decades after Roe, the legislature enacted new laws restricting or regulating abortion in ways that comported with Roe and its progeny, and that practice continued to the present day—but often in ways that did not rely on criminal prosecution for enforcement.

Today, SCOTUS handed down its opinion in Dobbs v. Jackson Women’s Health Organization (June 24, 2022) explicitly overruling Roe and clearing the way for states to once again regulate abortion without constitutional limits. In anticipation of just such a change, the Texas Legislature passed a “trigger law” in 2021 to prohibit elective abortions after fertilization once Roe was struck down, and this new law includes felony punishments. But as with many things that come out of the legislature, the application and enforcement of that prohibition and related laws may be more complicated in practice than they have been portrayed in media or politics.

The “Texas Trigger Law”

In 2021, the 87th Legislature passed House Bill 1280 to create Health & Safety Code Chapter 170A (Performance of Abortion), a new regulation of abortion that takes effect 30 days after Roe is overturned by SCOTUS. The chapter includes criminal, civil, and regulatory enforcement mechanisms for the same prohibited conduct; we will discuss the first two of those sanctions in greater detail because they may conflict in practice.

New criminal offense under HB 1280

The gist of new Chapter 170A is §170A.002 (Prohibited Abortion; Exceptions), which prohibits knowingly performing, inducing, or attempting an abortion at any time after fertilization. A violation of that section is a second-degree felony under §170A.004 (Criminal Offense) unless the unborn child dies, in which case it is a first-degree felony.

Other things to know about this new crime:

• “Abortion” includes surgical and non-surgical means, such as drugs/medicine (which now account for more than half of all elective abortions). The term would appear to include “selective reductions” performed as a part of some IVF treatments, but it does not include contraception, ectopic pregnancy removals, and other surgical acts listed in the definition of that term (§170A.001(1)).
• Nothing in Chapter 170A can be used to impose criminal, civil, or administrative liability upon a pregnant woman upon whom an abortion is performed (§170A.003).
• Doctors have defenses for performing an abortion to save the expectant mother from death or severe injury and for any medical treatment that results in an accidental fetal death (§170A.002).

This new criminal offense will apply to conduct occurring on or after the 30th day after Dobbs finally overrules Roe. Note that this is *not* 30 days from today; the Court’s opinion was released today, but not it’s final judgment or mandate. The Attorney General’s Office issued a legal advisory today noting this remaining contingency, along with a (speculative) comment that some abortion-related crimes may be prosecutable immediately. (More on that below.) Regardless of an such opinion, though, any criminal, civil, or administrative action brought under the new law is likely to involve litigation over the effective date of §170A.002 due to its unusual (unprecedented?) trigger mechanism.

[Update: The U.S. Supreme Court mandate in Dobbs issued on Tuesday, July 26, so the new felony offense in §170A.002 should apply on or after Thursday, August 25, 2022.]

New civil fines (and complications)

Chapter 170A also includes new §170A.005 (Civil Penalty) creating a civil penalty of not less than $100,000 for each violation of §170A.002. If this sends up a double jeopardy red flag for you, congratulations—you are probably recalling the admonition from Dep’t of Revenue of Montana v. Ranch, 511 U.S. 767 (1994), in which SCOTUS held that a defendant already convicted and punished for a criminal offense cannot have a non-remedial civil penalty imposed against him for the same offense in a separate proceeding due to the Fifth Amendment’s Double Jeopardy Clause. And the reverse is also true: If a defendant fully pays a civil fine, then any subsequent criminal prosecution is barred by double jeopardy. See, Ex parte Ward, 964 S.W.2d 617, 627 (Tex. Crim. App. 1998).

While the Double Jeopardy Clause does not prohibit the initial filing of concurrent criminal and civil actions, a conviction in the former or a full payment in the latter will foreclose the other option. Interestingly, the civil enforcement provision of §170A.005 requires the attorney general (OAG) to file a civil action to recover this civil fine. By requiring OAG to pursue a minimum six-figure civil penalty for the same conduct that potentially incurs a felony sentence of imprisonment and a criminal fine, the legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion “trigger law” crime if any of those civil fines are collected by OAG.

Other abortion-related crimes

Despite Roe striking down Texas’s abortion laws in the 1970s, the legislature has enacted numerous restrictions on the practice since then. Those laws include administrative regulations of facilities and physicians, civil sanctions, and criminal offenses (outside the Penal Code) that target those who perform or facilitate an elective abortion. Here is a summary of some of those crimes, keeping in mind that this list is not exhaustive and that many of these crimes have exceptions, defenses, exclusions, or other elements not mentioned here.

Family Code Section:

33.002             Performing abortion on minor w/o parental notification ($2,500-10,000 civil fine)
151.002           Failing to provide treatment to a child born alive after an abortion (3F + civil fine)

Health & Safety Code Section:

171.018           Performing abortion w/o voluntary & informed consent ($0-10,000 criminal fine)
171.065           Provision of abortion-inducing drugs by non-physician (SJF)
171.103           Performing partial-birth abortion (SJF)
171.153           Performing dismemberment abortion without cause (SJF)
245.011           Paperwork violations by abortion facilities or physicians (Class A)
245.014           Operating abortion facility without a license (Class A)

How these existing laws interact with new Chapter 170A is anyone’s guess because the new “trigger law” did not amend or repeal these existing crimes. As a result, any irreconcilable conflicts will have to be decided through an in pari materia analysis in the courts, which could conclude that some of these pre-existing but more specific laws apply in certain circumstances even though they carry much lower penalty ranges. (For example, a two-year maximum state jail sentence for partial-birth abortion under §171.103 rather than a potential sentence of life in prison for general abortion under new §170A.002).

Penal Code implications

As everyone was reminded last month, there are no Penal Code charges that can be brought against a woman whose conduct results in the death of her unborn child, including by submitting to or performing her own abortion. See, Penal Code §19.06 (homicides), §22.12 (assaults), and §49.12 (intoxication manslaughter/assault). This is consistent with the non-Penal Code crimes mentioned in the previous section, all of which criminalize the conduct only of those other than the woman on whom the elective abortion is performed. It is also consistent with pre-Roe abortion crimes; our research yielded no reported cases of a woman being prosecuted in Texas for abortion under pre-Roe criminal statutes.

Note, however, that in addition to exempting conduct committed by the mother of the unborn child, PC §§19.06 and 22.12 exempt from homicide and assault prosecutions any conduct by a physician that constitutes a “lawful medical procedure” intended to result in abortion, and they also exempt the dispensation or administration of any drug “in accordance with law.” It is unclear at this time how those defenses will be narrowed in regard to conduct that was previously included within those terms but may no longer qualify after Dobbs. For example, H&SC §170A.002 will soon prohibit elective abortions upon fertilization, and H&SC §171.063 (Provision of Abortion-Inducing Drug, eff. Dec. 2, 2021) already limits the circumstances under which abortifacient drugs can be delivered or administered. The question of whether criminal conduct under those new statutes can also be prosecuted under PC Chapters 19 (Criminal Homicide) or 22 (Assaultive Offenses) may have been re-opened by this latest legislation, but it will be up to the courts to decide that after an in pari materia analysis.

What’s old is new again?

Another area of confusion involves Texas’s prior abortion-related crimes struck down by Roe. As mentioned above, those statutes were never repealed by the legislature, and they had different elements, different defenses, and different (and lower) punishments from the new offense under §170A.002. So, what happens to them now?

1925 Penal Code

The original pleadings in Roe targeted former Articles 1191–1196 of the 1925 Texas Penal Code. The Court eventually found all of them to be unconstitutional except for Art. 1195 (causing a child’s death during “parturition,” or natural childbirth). But while the Roe litigation was making its way through the courts, those same statutes were moved as part of the legislature’s first Model Penal Code project, which began in the 1960s before Roe was initiated and concluded after Roe was decided. The result of that project was the codification of a new 1973 Penal Code (effective January 1, 1974) which moved various “leftover” crimes that did not fit neatly into that model code over to the state’s Civil Statutes. Consequently, the former crimes in Arts. 1191–1196 were moved to Tex. Rev. Civ. Stat. Arts. 4512.1–6. However, a search for those statutes on the state’s own website or in your dusty old volumes of Vernon’s may only yield Art. 4512.5 (Destroying Unborn Child), the former Art. 1195 that was left standing after the Roe opinion. The other offenses struck down by Roe no longer appear in most legal resources*—but they were never explicitly repealed by the legislature. So, what happens to them now that the court decision that led publishers to remove them is no longer valid?

[* – After this update was published, the statutes previously repealed by Roe were restored to the state’s website; for the full text of those criminal statutes, click here. (added 06/24/22 at 1:40pm)]

Restoring unconstitutional laws

The legislature recognized this unanswered question in its deliberations over HB 1280, the trigger law that created Chapter 170A. To quote from the House Research Organization’s bill analysis of HB 1280, supporters of the bill stated:

“The bill would clear up confusion about whether the state’s pre-Roe statutes are still valid. Although the Legislature never explicitly repealed those laws, a non-binding 5th Circuit Court of Appeals opinion suggests that the Legislature’s enactment of laws such as those governing abortion on minors and regulating abortion facilities effectively repealed the pre-Roe laws.”

Apparently, that Fifth Circuit case is McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004, cert. denied)—a suit brought by the original plaintiff in Roe to have the opinion withdrawn after her change of heart on the abortion issue. In its opinion, the court held that McCorvey’s lawsuit was moot because Texas had impliedly repealed those old statutes criminalizing abortion by its enactment of various regulations governing the availability of abortions and the practices and procedures of abortion clinics that irreconcilably conflict with the old provisions criminalizing abortions. The resulting conflict, the court held, could be resolved only by holding that the prior crimes were implicitly repealed by the post-Roe legislation. However, this legal concept of “implied repeal” is a controversial one that is rarely favored by the courts, and it is a topic on which the Texas Court of Criminal Appeals and the Texas Supreme Court have sometimes taken different approaches, so it is impossible to predict how the matter would be resolved by the courts in this new criminal context.

Note, however, that this unresolved issue comes to a head immediately upon Roe being overturned by Dobbs. Unlike the new felony crime in §170A.002, there is no grace period before the potential restoration of the 1925-era crimes (the text of which you can read in Tex. Op. Atty Gen. No. JH-369 [1974]).

HB 1280 and SB 8 further muddy the waters

Despite the optimism of HB 1280 supporters noted above that “[t]he bill would clear up confusion about whether the state’s pre-Roe statutes are still valid,” it arguably makes the confusion worse, not better.

The simplest way to facilitate criminal prosecutions for elective abortions would have been to explicitly repeal the old laws and pass new laws in their place. For example, an earlier “trigger law” filed back in 2007 as SB 186 (80RS) by then-State Sen. (now Lt. Gov.) Dan Patrick purported to move the old Art. 4512 crimes into the Penal Code, repeal the various “competing” regulations mentioned in McCorvey, and then repeal or revise the old crimes’ 1925-era language to create new—and more readily enforceable—crimes. But rather than follow that example, the 87th Legislature did the opposite in 2021. Instead of an explicit repeal-and-replace, both HB 1280 (trigger law) and SB 8 (the fetal heartbeat bill) included legislative “findings”—a type of legislative dicta—that the former abortion crimes were never repealed. And SB 8 took things a step farther, adding this new provision to the state’s Code Construction Act:

Government Code §311.036. CONSTRUCTION OF ABORTION STATUTES. (a) A statute that regulates or prohibits abortion may not be construed to repeal any other statute that regulates or prohibits abortion, either wholly or partly, unless the repealing statute explicitly states that it is repealing the other statute.

Because HB 1280 did not explicitly repeal the old statutes struck down by Roe, it appears to have created a situation in which those old crimes will co-exist with the bill’s new felony abortion crime under §170A.002, even though that new crime irreconcilably conflicts with those old crimes in many situations. As a result, some defendants in those cases may be able to successfully challenge a prosecution under §170A.002 on the basis that its new provisions cannot be reconciled with those older—but more specifically-tailored—pre-Roe crimes which also carry much lower punishments (for example, a maximum of five years’ imprisonment for abortion under former Art. 1191 [or 4512.1], versus a potential life sentence under §170A.002). Therefore, if the former pre-Roe crimes are determined to still be valid, the courts will again be required to conduct an in pari materia analysis to determine whether the overlapping old and new crimes can be harmonized, and if not, then which more specific charge(s) the State is limited to pursuing.

The law of parties

The final post-Dobbs issue we will address here is party liability.

Currently, Penal Code §7.02(a)(2) makes a person criminally responsible for an offense committed by another if, with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. The scope of this law can be broad; however, this party liability applies only to “an offense committed by the conduct of another.” Stated another way: “If no principal liability, then no party liability.” That limitation may be relevant any time the law of parties is considered an option for abortion-related offenses that, by their explicit terms, do not criminalize the conduct of a pregnant woman seeking or receiving an abortion—even one she conducts herself through medication or other means.

This limitation may be one reason some HB 1280 proponents sought to maintain the efficacy of the pre-Roe crimes (as discussed above), one of which provided that “whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice” (See Art. 1192 [or 4512.2]). That crime appears to have been specifically intended to address the problem with the standard rule for applying the law of parties; namely, that pre-Roe laws did not allow prosecution of the pregnant woman for the crime of abortion and thus, without her as a principal, there could be no accomplice liability for anyone who prescribed or furnished her with medication or other means for aborting her child. See, Moore v. State, 40 S.W. 287 (1897) (interpreting Art. 642 of the 1895 Penal Code, a precursor to Arts. 1192 and 4512.2). However, Texas already has other criminal laws that apply to third parties—for example, a ban on the provision of abortifacients to a pregnant woman by anyone other than a doctor (see H&SC §171.065, et al.)—so a restoration of any pre-Roe “accomplice” liability law may conflict with post-Roe, pre-Dobbs statutes already criminalizing such acts and therefore have to be hashed out through yet more in pari materia analysis by the courts.

Such an analysis may be yet further complicated by the legislature’s passage in 2021 of SB 8 (fetal heartbeat bill), which created a new form of civil liability in H&SC §171.208 (Civil Liability for Violation or Aiding or Abetting Violation) that applies to the performance of an elective abortion or the aiding or abetting of such an abortion in violation of the provision of that bill, but which expressly prohibits the criminal prosecution of those acts under that new law or Penal Code Chapters 19 and 22; see §171.207 (Limitations on Public Enforcement). While the constitutionality of SB 8 is still being litigated in the federal courts, its enactment may be relevant to any state courts seeking to determine what criminal offenses may or may not be prosecuted under a party liability theory.

Consequently—as with many of the other issues we’ve spotted in this memo—prosecutors should thoroughly research these issues before casting the net of party liability in a manner that exceeds its permissible scope in the criminal context.

Conclusion

As if often the case at the Legislature when criminal laws are drafted by authors without expertise in criminal law and then vetted by committees without expertise in criminal law, there remain many unanswered questions about the enforcement of HB 1280 and other laws that will have to be hashed out by the courts. We hope our initial research provides TDCAA members with the information needed to make informed decisions in any cases brought to them for enforcement. If you have further questions, please don’t hesitate to contact us.

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God bless the good people of Uvalde.

Primary run-off results

There were only two November ballot spots up for grabs in this week’s run-offs. In Panola County, incumbent CDA Danny Buck Davidson (R) fended off a challenge from local criminal defense lawyer Tim Cariker; there is no general election opponent, so Davidson will retain his office for another four years. And in Tarrant County, the general election race to succeed retiring incumbent CDA Sharen Wilson will be between former assistant Tiffany Burks (D) and county court judge Phil Sorrells (R), who defeated State Rep. Matt Krause (R) in a run-off.

In November, there will be seven criminal district attorney races on the general election ballot (Bexar, Dallas, Galveston, Hays, Hidalgo, McLennan, and Tarrant). For a full list of the candidates in those races, as well as the other uncontested prosecutor seats on the ballot this fall, please click HERE.

Bar ethics rules

The State Bar’s Committee on Disciplinary Rules & Referenda meets again on Wednesday, June 1, at 10:00 a.m. The committee’s sole action item is discussion and possible action on proposed Rule 3.09 (special responsibilities of a prosecutor), which we have been following for you these past few months. The meeting will be held by Zoom—a link for which is available in the agenda now available HERE—so if you’re interested, feel free to tune in and watch. You may also still be able to submit input ahead of that meeting through the committee’s participation webpage.

Judicial compensation

The Judicial Compensation Commission (JCC: https://www.txcourts.gov/jcc/) met by Zoom on May 12 to start its biennial process of suggesting raises for the judiciary. On the heels of the commission’s success two sessions ago in convincing the legislature to adopt a graduated salary structure for the judges, its strategy this session is a simple across-the-board raise of 10–20 percent. While it is true that the benchmark salary ($140,000) hasn’t been increased since 2013 and that inflation is now rampant, color us skeptical that the next legislature will be eager to double-down on its predecessor’s generous—if unequal—raises given back in 2019.

That said, the JCC members did hear about the “parity gap” that may deter an experienced DA or judge from running for the opposite position. Furthermore, a new commission member noted that one of the first calls he received upon being appointed to the JCC was from a nearby prosecutor who congratulated him on the new gig and then immediately asked what he was going to do to remedy the potential salary disparity between a DA and a statutory county court judge who run for the same district court bench. (To whomever that was: Good job! LOL) It’s too early to say at this point what (if anything) the JCC will recommend on that front, but fixing that issue certainly seems to us like an easier lift than a massive across-the-board raise. Things are still early, though.

For those interested in more information on this front, you can access the following resources online:

• Archived video of the JCC meeting (90 minutes long)
• PowerPoint on the history of judicial compensation presented at that meeting
• PDF report on judicial salaries, demographics, and turnover

The JCC intends to hold a public hearing later this summer at a yet-to-be-determined date. TDCAA’s current president, Galveston CDA Jack Roady, has already appointed a 12-member Compensation Committee to work on these issues during this interim and the following legislative session, so they will be ready to present testimony at that hearing when it happens.

Judicial branch recap for 2021

The Office of Court Administration (OCA) released its 2021 Annual Statistical Report a few weeks ago. We tweeted a popular thread of charts and graphs from the report earlier this month (start HERE if you are curious), but for those who prefer prose to pictures, here are some highlights:

• Misdemeanor criminal filings continue to decrease, to the point that misdemeanor filings in 2021 were the lowest since 1985.
• The only misdemeanor categories to increase in filings over the past five years were assault and DWI-1st offenses.
• The only felony categories to increase in filings during the pandemic years of 2022–21 were capital murder, aggravated assault/attempted murder, family violence felonies, and auto theft felonies.
• Drug- and alcohol-related offenses constitute one-third of both misdemeanor and felony filings.
• Traffic and parking cases were filed at the lowest numbers since 1980.
• After peaking in 2007, the number of juvenile cases has fallen to the lowest level since 1993.
• CPS cases fell for the third year in a row to the lowest level since 2014.
• District courts’ pending caseload increased by five percent in 2021, while county courts’ pending caseloads held steady.
• State spending on the judicial branch accounts for less than 0.5 percent of the annual state budget.

For a deeper dive—including specific court-level data—read the full report at the link above. And kudos to OCA’s new administrative director, Megan LaVoie, and her entire staff for putting together such an informative report!

Committee news

Now that the primaries are over, interim committee work is picking up speed. Here are some highlights from the past month.

The House Licensing & Administrative Procedures Committee considered the problems that illicit massage businesses present for the reduction of human trafficking (but anyone who read our cover story from the March–April 2022 issue of The Texas Prosecutor would already be in the know about that topic) … the Senate State Affairs Committee also took testimony on human trafficking from a panel of state agency witnesses, one of whom noted that statewide, more than 1,200 arrests were made for the new state jail felony offense of solicitation of prostitution in the first seven months of its existence (eff. 9/1/21) … and the House Judiciary & Civil Jurisprudence Committee heard from Texas Supreme Court Chief Justice Nathan Hecht, whose wide-ranging testimony included a discussion of the security of the court’s draft opinions in the wake of the leak of a certain SCOTUS draft opinion. The gist of his testimony was that the justices have been telling their law clerks that any similar leak in Texas would violate PC §39.06 (Misuse of Official Information), but we are not so sure—that crime applies only if there is an economic benefit or harm involved, and to our knowledge, none has been established in the SCOTUS case. Don’t be surprised if that “loophole” generates legislation next session, although legislators may discover that there are good reasons why the current law is so limited.

We have one other note to pass along, and it comes from an unlikely source: the Senate Water, Agriculture, & Rural Affairs Committee. That committee heard testimony on the challenges of cattle theft, but a portion of that discussion including talk of “liberal DAs who don’t want to enforce any laws” (our paraphrase) and what is to be done about it. (This did not seem to be in relation to any specific cattle-related crimes, but it’s the interim, so they can wander where they please at this stage.) Specifically, the committee discussed a fix to the habeas law that gives defendants the ability to file writs in other counties—something currently being litigated before the CCA in In re State ex rel. Brent Smith (WR-93,354-02), in which the Kinney County Attorney is challenging the authority of a Travis County district court to hear writs arising from Operation Lone Star’s criminal trespass cases pending in Kinney County. You can expect to see legislation on that next session. Note also that a Texas & Southwestern Cattle Raisers Association special ranger later testified that the Lege should increase penalties for theft of agricultural pharmaceuticals (because, why not?), and he further suggested a law to mandate training for all cops, prosecutors, and judges on the impact of cattle-related crimes on producers and dealers. So, it looks like some of you might be spending time in the Senate Ag committee next session if you support or oppose any of those ideas!

Upcoming hearings

Interim charges currently posted for hearings in June include (click on the link for the full notice):

Tuesday, June 7

House Licensing & Administrative Procedures
10:00 a.m., Room E2.012
Charge #2: Strengthen and enforce laws to reduce illegal gaming and game rooms, including 8-liners; explore how the comptroller or other state agencies can assist local law enforcement agencies with those investigations. (Invited testimony only, to include Potter County CA Scott Brumley.)

Tuesday, June 28

Senate Finance
10:00 a.m., Room E1.036
Charge #1  (use of federal COVID-19 relief funds) and Charge #12 (state forensic and civil mental health services) (Invited and public testimony.)

There are bound to be more hearings to review issues surrounding the recent school massacre in Uvalde, but none of those have been posted yet.

TDCAA training update

Registration is open for our July Prosecutor Trial Skills Course. If you are early in your prosecution career—or simply looking for a post-pandemic refresher—this course is for you, but attendance is limited to the first 170 who register. We are already two-thirds of the way to that maximum, so don’t delay! To register or access more information, click HERE.

Scattershooting

Here are a few interesting stories from this past month that you might’ve missed:

• “Most Texans support legalizing pot, but Texas Gov. Greg Abbott says no” (Dallas Morning News)
• “Long-planned changes to Texas foster care system have ‘sputtered,’ senators say” (Dallas Morning News)
• “The FBI’s Next Set of Crime Data Is Going to Be a Big Mess” (The Atlantic)
• “Trump’s criminal justice reform bill becomes persona non grata among GOPers” (Politico)

Quotes of the Month

“What’s now clear, two years after George Floyd’s murder, is that the support for criminal-justice reform was a mile wide and an inch deep.”
            —David A. Graham, reporter for The Atlantic, in a tweet sharing his recent article, “How Criminal-Justice Reform Fell Apart.”

“[It’s] the digital equivalent of going down the street to a strip club filled with 15-year-olds.”
          —Leah Plunkett, an assistant dean at Harvard Law School and faculty associate at Harvard’s Berkman Klein Center for Internet & Society, quoted in a Forbes article about children who are offered money by adults for sexualized behavior during TikTok livestreams.

“It’s got to be very discouraging to people who are not immersed in politics, who are just looking for someone who’s making sense and talking about key issues in their lives … and they find candidates swinging from the chandeliers on either fringe of the party spectrum.”
            —Cal Jillson, political scientist at SMU, in an article about the impact of redistricting on the latest legislative and congressional elections.

“I really don’t care as long as he’s fighting the fight.”
            —Chris Byrd, member of the State Republican Executive Committee, when asked at a campaign event about the various allegations of personal, legal, and ethical malfeasance that have plagued incumbent AG Ken Paxton’s time in office. [Paxton won his primary run-off handily this week.]

“I’m just really sad. I don’t understand why people think this can’t happen to them.”
            —John Barnes, a former Santa Fe ISD school resource officer who was wounded in that 2018 school shooting, when asked what went through his mind when he heard about this week’s Uvalde school massacre.

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If “April showers bring May flowers,” what do April droughts bring?!?

Committee news

Now that the primaries are over* (*offer not valid for those in run-off elections), interim legislative committee hearings have started to study the issues assigned by their leadership. Perhaps the most noteworthy hearing this past month was a meeting of the House Interim Study Committee on Criminal Justice Reform, which summoned Cameron County DA Luis Saenz to appear before them (remotely) and answer questions relating to the committee’s charge to examine “criminal procedure and due process from initial detention through appeal, including … use of prosecutorial discretion.” In reality, though, that was just the excuse to bring Mr. Saenz before the committee to answer questions about the then-pending execution of Melissa Lucio, who had been convicted and sentenced to death in Cameron County (by a prior district attorney) for the 2007 killing of her 2-year-old daughter, Mariah Alvarez. Such an event—an interim hearing called for the purpose of allowing committee members to grill a prosecutor over a pending case—is unprecedented as far as we know (and we’ve been around here a long time). Most of the media coverage of that hearing (and the case in general) has been disappointingly superficial, but for a good summary of what actually happened, we’d refer you to this article by a local news service if you want a fuller picture of what occurred at the hearing.

The execution date for Ms. Lucio was eventually stayed earlier this week by the Court of Criminal Appeals—as DA Saenz told the committee would likely happen—to allow the trial court to take up several last-minute filings by the defense. As a result, it will be many months (or years?) before Ms. Lucio faces another execution date. For our purposes, though, it will be interesting to see whether such unprecedented legislative scrutiny of a prosecutor’s handling of a pending court case becomes more common as political and social media advocacy increasingly leads to a blurring of lines between advocates’ desired ends and the means considered appropriate to achieve them.

In other committee news … the House Criminal Jurisprudence Committee reviewed appointment of counsel issues relating to Operation Lone Star along the border … and the House Transportation Committee raked TxDMV officials over the proverbial coals once again for various law enforcement problems resulting from the agency’s perceived lax enforcement of laws and rules governing temporary paper tags.

Upcoming hearings

Interim charges currently posted for hearings in May include (click on the link for the full notice):

Tuesday, May 3

Senate Transportation
9:00 a.m., Room E1.016
Charges on reducing and preventing automobile crashes, driver’s license services, and alternatively-fueled vehicles (invited testimony only)

House Homeland Security & Public Safety
10:00 a.m., Room E2.028
Charges on law enforcement hiring and training, border security, officer safety, incident crime reporting, and severe weather response and recovery (invited testimony only)

Senate Special Committee on Child Protective Services
10:00 a.m., Senate Chamber
(Invited testimony only)

Wednesday, May 4

House Judiciary & Civil Jurisprudence
9:00 a.m., Room E2.010
Charge #1: Monitor agencies and programs under the committee’s jurisdiction and oversee the implementation of relevant legislation passed last session (invited witnesses only)

Monday, May 16

Senate Special Committee on Child Protective Services
10:00 a.m., Senate Chamber
(Invited testimony only)

As we mentioned last month, an emerging trend among both House and Senate committees is to limit their interim hearings only to invited witnesses and demote public comment to the electronic portal brought online during the COVID-19 pandemic (if any is allowed at all). Interim committee charges have long been considered by some capitol observers as more of a launch pad for pre-determined legislation than any true “study” of an issue; limiting public input will only contribute to that perception. However, for those of you invited to participate in an interim hearing (and those of you who follow along online), this new trend will at least make them shorter now, so count your blessings!

TDCAA training update

Registration is open for the July version of our Prosecutor Trial Skills Course. If you are early in your prosecution career—or simply looking for a post-pandemic refresher—this course is for you. To manage demand and accommodate room size, attendance is limited to the first 170 who register. We are already two-thirds of the way to that maximum, so don’t delay! To register or access more information, click HERE.

If you are a more seasoned prosecutor looking to hone your skills, TDCAA is also now accepting applications for both our Advanced Appellate Advocacy and Advanced Trial Advocacy Courses. Attendance is limited and applications must be received by the posted deadline for each course. For all the details, click on those seminar links above or visit our general training webpage HERE.

TDCAA award nominations

In these times when employee retention can be a challenge, recognizing the good work being done in prosecutors’ offices is an inexpensive yet effective way to show that we value the people who work in and around our communities. To that end, TDCAA is accepting nominations over the next three weeks for potential recipients of our association’s Oscar Sherell Awards and the Suzanne McDaniel Award. For more details about how to nominate a worthy person for these awards that recognize outstanding service to the profession of prosecution, click on the link for each award. Nominations are due Friday, May 20, 2022, so don’t delay!

Scattershooting

There were several really interesting stories related to prosecution or prosecutors this past month. Here are a few that you might’ve missed:

• “Prosecutors wanted: District attorneys struggle to recruit and retain lawyers” (Reuters)
• “If Roe v. Wade is overturned, Texas district attorney offices would become a new battleground” (Texas Tribune)
• “How a white cop murdering a 15-year-old black boy changed a Dallas County town” (Dallas Morning News)
• “Crime Stoppers is using cash once spent on anonymous tip rewards for lavish salaries, travel costs” (Houston Chronicle)
• “A rural prosecutor pledged reform. Critics say he delivered disaster.” (Washington Post)
• “Days from Melissa Lucio execution, prosecutors chart two different paths regarding death penalty” (Brownsville Herald)

Quotes of the Month

“We’re seeing a prosecutor shortage throughout the country; it’s not limited to large jurisdictions versus small jurisdictions.”
            —Nelson Bunn, executive director of the National District Attorneys Association, as quoted in a story about prosecutors’ struggle to hire and retain staff in today’ post-pandemic economy.

“In the past, people [would] curse one another, throw up the finger, and keep moving. Now, instead of throwing up the finger, they’re pulling out the gun and shooting.”
            —Houston Mayor Sylvester Turner, on the post-pandemic increase in road-rage shootings in that town. At least 33 people were killed in traffic-related shootings in Texas last year, almost twice as many as in 2019.

“It’ll pass because everyone wants their marijuana.”
            —Ken Casady, with Austin Police Association labor union, giving his opinion on why there has been no organized opposition to a local ballot proposition that would prohibit Austin police officers from arresting or issuing citations for misdemeanor marijuana possession.

“The score ended up being State of Texas six, Republic of Texas one. We won that ballgame.”
            —Joe Rowe, who was shot and briefly taken hostage by Republic of Texas separatists 25 years ago before the Texas Rangers ended the West Texas stand-off. For more salty quotes like that, read the entire article in The New Yorker: “Surviving the Standoff with the Republic of Texas.”

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The action is picking up in Austin, so we will supplement our normal monthly schedule accordingly.

State Bar disciplinary rule discussion

On April 6, the State Bar’s Committee on Disciplinary Rules and Referenda (CDRR) held an online hearing on the newly-proposed ethics rule that would expand current and former prosecutors’ duties under Rule 3.09 (Special Responsibilities of a Prosecutor) to investigate and remedy certain allegations of wrongful convictions. This was the first chance for prosecutors to publicly address the committee (not counting three previous letters submitted by Potter CA Scott Brumley, none of which were publicly acknowledged or discussed by CDRR members before now).

During the committee’s public hearing, nine different prosecutors (listed below*) testified concerning the proposal. While the prosecutor witnesses generally did not object to an additional disclosure requirement if they knew exactly to whom any post-conviction exculpatory or mitigating information must be disclosed, many believed the proposed rule’s new duty to investigate and remedy a potential wrongful conviction would be impractical for their offices and would create problems with conflicts of interest and prosecutorial immunity. In addition, the prosecutors opposed the “cradle-to-grave” proposal requiring former prosecutors to continue to abide by prosecutors’ ethical, constitutional, and statutory duties relating to exculpatory and mitigating evidence after they were no longer serving as prosecutors.

(*Mike Jimerson, Rusk C&DA; Jack Roady, Galveston CDA & TDCAA President; Scott Brumley, Potter CA; Brian Middleton, Fort Bend County DA; Kim Ogg, Harris DA; Lee Hon, Polk CDA; Philip Mack Furlow, Dawson, Gaines, Garza, & Lynn Counties DA; Doug Norman, Nueces ADA; Erik Kalenak, Midland ADA; and Tillman Roots, Comal ACDA. Thank you to those who provided live testimony and everyone else who participated by submitting written comments to help better educate the committee!)

In addition to these prosecutor witnesses, former Ector DA Bobby Bland added his voice in opposition, as did three additional live witnesses: Brit Featherston, United States Attorney for the Eastern District of Texas (on behalf of all four U.S. Attorneys in Texas); Judge Barbara Hervey of the Court of Criminal Appeals; and Stacey Soule, State Prosecuting Attorney. All four persuasively expressed their concerns about the proposed changes and why they did not believe those changes were needed. Other witnesses who provided live comments included Mike Ware, Executive Director of the Innocence Project of Texas, testifying in support of the measure, and two criminal defense lawyers—one who supported it (but still thought the rule needed refinement) and a second who opposed tasking prosecutors with the duty to remedy such matters under the theory that the defense bar is better equipped to do so. And based upon their questions and comments, several committee members seemed appreciative of the succinct and non-repetitive input provided by the witnesses—although we noted that the original proponent of the rule change left the online meeting before it was over and offered no closing comments.

So, what happens next? The committee will reconvene on May 4 and decide what path to take in the wake of this public input, including the many comments submitted online but not discussed at this week’s meeting. To review the agenda, proposed rule, written comments, and the archived video from the April 6 meeting, click here. And for any other information, visit the general CDRR webpage or contact Rob Kepple.

Senate Interim Charges

Texas Senate committees received their interim marching orders from the Lite Guv on April 4. As with the House committee interim charges we discussed in some detail in our previous update, these Senate charges will set the parameters for policy discussions in 2022 as state senators prepare for the next regular session.

Senate Criminal Justice Committee

Topics for study by the primary committee impacting criminal law are:

1. Review offender re-entry programs in TDCJ and county jails, identify barriers to their success, and recommend improvements
2. Recommend ways to reduce existing criminal case backlogs, including “an examination of methods developed by district attorneys, judges, and court administrators”
3. Examine the relationship between illegal temporary paper license plates and crimes related to human trafficking, drug trafficking, theft, and homicide
4. Determine what actions would help law enforcement stop catalytic converter theft and related crimes
5. Examine recent IT malfunctions resulting in unreviewed jail releases in Harris County and recommend solutions for ensuring timely magistration and appropriate bonds

Other charges of interest to prosecutors—such as those directed specifically at prosecutors’ authority or role in the criminal justice system—include the following (listed alphabetically by committee):

• Monitor the agencies receiving border security funding and report on their successes in curtailing transnational crime (Border Security Committee Charge #1)
• Monitor the implementation of recent bail bond reforms and identify ways to further promote public safety and efficiency (Finance Committee Charge #8)
• Review statewide forensic and civil mental health service waitlists and recommend ways to reduce waiting times and improve coordination (Finance Charge #12)
• Study how governmental entities use public funds for political lobbying purposes and make recommendations to protect taxpayers from paying for lobbyists who may not represent taxpayers’ interests (Local Government Committee Charge #6)
• Evaluate the impact of the CCA’s ruling in Stephens v. State on criminal prosecution in Texas and make recommendations for consistent enforcement of elections laws across the state (State Affairs Committee Charge #1)
• Make recommendations for reducing the demand for human trafficking in Texas and increasing resources for victims and survivors; examine changes in arrest rates, dispositions, and sentencing resulting from the enactment of HB 1540 (last session’s omnibus human trafficking bill); and examine opportunities for using DTPA actions to combat human trafficking and generate revenue for local law enforcement agencies (State Affairs Charge #4)
• Study the impact on public safety of some district attorney and county attorneys’ offices policies to not prosecute certain crimes; examine methods by which the legislature may prohibit prosecutors from not prosecuting duly-passed crimes; examine the Attorney General’s authority to act in place of a local prosecutor who fails to prosecute certain crimes (State Affairs Charge #5a)
• Examine judicial caseloads in Texas’ three largest counties (Harris, Dallas, and Tarrant) with a focus on courts that rarely or never hear cases in order to ensure a fair and equitable division of workload; review pretrial services and bonding practices in Harris and Travis Counties; examine the pretrial release of violent or habitual offenders and the correlating negative impact on community safety (State Affairs Charge #5b)
• Study the contributing factors leading to fatal crashes and make recommendations to reduce or prevent traffic fatalities and serious injuries (Transportation Committee Charge #1)
• Study the impact of cattle theft and recommend cost-effective measures to mitigate loss and increase security (Water, Agriculture, and Rural Affairs Committee Charge #8)

The full list of interim charges can be viewed HERE. As you can see, there are some issues that directly impact your constitutional independence and authority, so as committee hearings are announced on interim charges that are relevant to your work, we will update you accordingly. However, if you have a specific interest in a committee’s charges, you might consider tracking that committee’s meeting notices separately on the state legislature’s website using their “My TLO” feature. If you have questions on how to do that, contact Shannon.

Upcoming hearings

Interim charges currently posted for hearings include (click on the link for the full notice):

Tuesday, April 12

House Interim Study Committee on Criminal Justice Reform
3:00 p.m., Capitol Extension Room E2.012
Charge 2(B)(ii): Criminal procedure and due process from initial detention through appeal, including prosecutorial discretion (especially in regard to the application of the death penalty)
(Invited witnesses only; all others must submit electronic comments)

Thursday, April 14

House Criminal Jurisprudence
10:00 a.m., Room E2.010
Charge 4: Improving the availability and performance of indigent counsel
(Invited witnesses only; all others must submit electronic comments)

Tuesday, April 26

House Transportation
12:30 p.m., Room E2.012
Charge 1: Oversee the implementation of legislation, including HB 3927 (87RS, eff. 9/1/21) relating to temporary motor vehicle tags (and other charges)

Tuesday, May 3

House Homeland Security & Public Safety
10:00 a.m., Room E2.028
Charges on law enforcement hiring and training, border security, officer safety, incident crime reporting, and severe weather response and recovery (see the linked notice for full details)

Post-COVID committee changes

One vestige of the limitations imposed by the COVID-19 pandemic that appears to be permanent is committees’ continued acceptance of electronic public comment. In fact, several committees will be limiting live testimony on their interim charges only to witnesses invited by the committee; other members of the public who want to participate in that discussion must submit their comments through the new online portal. You might recall last session (when it was first proposed) that we warned against relying on that new electronic comment option to get your views across, and our follow-up with legislators and their staff after last session has confirmed our belief that submitting online comments is not the most effective way to convey your support or opposition for a policy change. Proceed accordingly.

That’s all for now; look for future updates from Austin as events warrant.

In lieu of our usual article links and quotes to conclude our updates, we’ll leave you with a Master’s Invitational Tournament prediction:
On Sunday’s back nine, the green jacket will come down to … Scottie Scheffler (favorite) vs. Corey Conners (dark horse!).
(For entertainment purposes only; please, no wagering.  😉 )

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Misery loves company, so here’s a bracket-busting joke for you:

Q: Why does the Gonzaga basketball team’s website go down every spring?
A: Because they can never string together three W’s in March.

Change to State Bar disciplinary rules?

The State Bar’s Committee on Disciplinary Rules and Referenda (CDRR) has posted notice for an online hearing regarding proposed ethics changes, including one that would expand prosecutors’ ethical duties under Rule 3.09 (Special Responsibilities of a Prosecutor). That hearing will be held on Wednesday, April 6, 2022, starting at 10:00 a.m. If you haven’t read the proposal printed in the March 2022 edition of the Texas Bar Journal, you should—pay particular attention to the “cradle-to-grave” ethical duties regarding exculpatory evidence for anyone who was ever a prosecutor. If you have concerns, now is the time to raise them by testifying at the Zoom meeting or submitting comments. For more information, visit the CDRR webpage or contact Rob Kepple.

Disaster here, disaster there, disaster everywhere

Your local officials may be ratcheting down their pandemic threat levels or letting their emergency orders lapse, but not the state. Last week, Governor Abbott renewed his two-year-old COVID-19 disaster declaration for another 30 days (order available HERE). Ditto for the state’s 10-month-old border security disaster declaration, which was also renewed for another 30 days for the counties listed therein (order available HERE).

The Texas Supreme Court has also issued its 49th Executive Order (eff. 4/1/22) to continue various pandemic-related procedures that were recently been laid out in the court’s 47th Executive Order. (The only difference is the deletion of two prior provisions related to justice and municipal court proceedings; for details, see paragraphs 4–5 of Order 47, which are no longer included in Order 49).

Proceed accordingly.

House Interim Charges

Texas House Speaker Dade Phelan (R-Beaumont) has issued interim committee charges that will serve as the basis for House committees to take up matters during the interim in preparation for the next regular session. There’s a lot to unpack here, so we’ll break it down into smaller bites.

House Criminal Jurisprudence Committee

Topics for study by the primary committee impacting criminal law are:

1. Monitor the implementation of laws enacted last session, including HB 1540 (human trafficking)
2. Make recommendations for reducing employment barriers for people with criminal records, including considering expanding the types of records eligible for non-disclosure
3. Examine ways to increase compliance with court-ordered appearances, including virtual appearances and other new technology
4. Make recommendations to improve the availability and effectiveness of court-appointed counsel
5. Make recommendations for improving access to community-based services for crime victims

If you read that list and wonder where the usual “red meat” is—you know, death penalty, drugs, forfeiture, grand jury, etc.—those issues have been reserved for special treatment this interim.

Interim Study Committee on Criminal Justice Reform

In an effort to highlight his support for criminal justice reform, the speaker created a special “interim study committee” for that topic. Members of this special committee are:

• Rep. Jeff Leach (R-Plano), chair;
• Rep. Joe Moody (D-El Paso), vice-chair;
• Reps. Rhetta Andrews Bowers (D-Rowlett), Brad Buckley (R-Salado), Angie Chen Button (R-Garland), David Cook (R-Mansfield), Cole Hefner (R-Mt. Pleasant), Eddie Morales (D-Eagle Pass), Reggie Smith (R-Van Alstyne), and Senfronia Thompson (D-Houston), legislative members; and
• Public member Brett Tolman, a former U.S. Attorney in Utah who is now Executive Director for Right on Crime.

If you are surprised by that last entry, don’t be. This is a “special interim study committee” that doesn’t vote on actual bills, so the speaker can put anyone he wishes on it, including representatives of groups that lobby the legislature. (And remember when we shared with you in last month’s update Right on Crimes’s policy reform agenda? Well, now you know why.) Note also that only one member of this interim study committee (Rep. Cook) is currently on the House Criminal Jurisprudence Committee, making this unusual committee appear to be an “end run” attempt to shake things up in the lower chamber when it comes to criminal justice reform.

To that end, this new interim study committee has been created to “examine all elements of state policy that influence intake and outcomes in the state’s criminal justice system and make recommendations to protect the safety of all Texans and preserve Texans’ constitutional rights to due process of law.” To that (extremely broad) end, the committee is specifically charged to do the following (with some helpful interpretations added by us):

1. Monitor the implementation of SB 6 (bail reform)
2. Examine the following areas of criminal justice policy:
3. Policing, including training, use of force, arrests, and alternative responses (read: “back the blue”)
4. Criminal procedure from detention through appeal, including:
   a. drug offense penalties (read: lowering marijuana-related penalty ranges)
   b. use of prosecutorial discretion (read: hamstringing or eliminating it)
   c. use and conditions of detention and incarceration (read: limiting them)
   d. civil asset forfeiture (read: ending it)
   e. jury instructions and sentencing guidelines in felony cases (read: changing the law of parties, jury instructions in death penalty cases, and more)
5. Transparency in policing and prosecution, including the grand jury process (read: new interim, same old ideas)
6. Age of juvenile jurisdiction (read: raising it) and parole eligibility (read: “second look” retroactive early parole eligibility for certain violent offenders)
7. Opportunities to reduce recidivism and remove barriers to re-entry after justice involvement

Now, if you read all that and think “Good golly, they’ll never get through all that in the few months available to them during the interim,” let us assure you that they will have no trouble doing so. In fact, the recommendations that will come from the committee have probably already been written (as you can see from some of the links provided). So, sit back and enjoy the show.

More charges of interest

Other interim House charges of general interest include:

• Study appropriations from the state Sexual Assault Fund and Crime Victims Compensation Fund; consider whether current revenue sources are sufficient to maintain victims’ services grants (Appropriations Committee Charge #3)
• Study the impact or organized retail theft on Texas businesses and make recommendations for addressing it (Business & Industry Charge #4)
• Examine the availability of behavioral health services and drug/alcohol treatment and recovery options for individuals in county jails, in TDCJ facilities, and on community supervision and parole (Corrections Charge #6 / County Affairs Charge #4)
• Study the operations of specialty courts and determine whether additional specialty courts are needed to address specific populations (Judiciary & Civil Jurisprudence Charge #5)
• Examine new technologies to facilitate domestic violence reporting in the context of obtaining and enforcing protective orders (Juvenile Justice & Family Issues Charge #3)
• Examine ways to strengthen and enforce laws to reduce illegal gaming and game rooms, including those utilizing 8-liners (Licensing & Administrative Procedures Charge #2)
• Make recommendations to reduce illicit massage establishments and related activity connected to human trafficking (Licensing & Administrative Procedures Charge #3)
• Make recommendations to improve prevention, education, treatment, and data-sharing in regard to opioid abuse in Texas, with a focus on the impact of fentanyl-related overdoses and deaths (Public Health Charge #3)
• Monitor the implementation of HB 3927 relating to temporary vehicle tags (Transportation Charge #1)

The full list of House interim charges can be read HERE, for those so inclined. As committee hearings are announced on interim charges that are relevant to your work, we will try to post them in this monthly update. However, if you have a specific interest in a topic, you might consider tracking that committee separately on the state legislature’s website using their “My TLO” feature. If you have questions on how to do that, contact Shannon.

Senate update

Senate interim charges have not been assigned yet, but the Lite Guv did re-shuffle the deck chairs in the upper chamber in response to impending retirements. Perhaps the most interesting of those was the appointment of Sen. Chuy Hinojosa (D-McAllen) as Vice-Chair of the Senate Finance Committee, a position he held until replaced by Sen. Eddie Lucio, Jr. (D-Brownsville), who is not seeking re-election. In other words, Hinojosa is now replacing the person who replaced him. And so the world turns under the Big Pink Dome.

New SASTF-sponsored report

Researchers at UT-Austin’s Institute on Domestic Violence and Sexual Assault (IDVSA) have released the second of two reports sponsored by the Sexual Assault Survivors’ Task Force (SASTF) that was created by the state legislature in 2019. This latest study focuses on the services needed by adult and child survivors of sexual violence in Texas. Entitled “Voices of Texas Sexual Assault Survivors: Services, Gaps, and Recovery Journeys (2022),” this report presents findings from interviews with sexual assault survivors and parents/guardians of child sexual abuse survivors about services they received and/or services needed but not received. It also highlights the gaps and barriers they experienced in the Texas service system and makes recommendations to improve service delivery based on the needs, experiences, and barriers expressed by survivors themselves. For more details, read the report at the link above.

Prosecuting Violent Crimes Conference

Online registration for our Prosecuting Violent Crimes Conference (April 11–14, 2022, at the Hyatt Regency Houston West) is still open. There will also be a FREE domestic violence training on protective orders provided separately on Monday, April 11, in conjunction with the conference. For more details or to register online, click HERE.

Annual Conference scholarships

We want to alert everyone to two potential funding sources to help you or your employees attend our 2022 Annual Criminal and Civil Law Conference in Corpus Christi this fall.

First, the Texas District and County Attorneys Foundation (TDCAF) is providing a limited number of scholarships through generous gifts made in memory of Mike Hinton. To apply, complete this online application and send it in by Saturday, April 30, 2022.

Second, the State Bar Criminal Justice Section’s scholarship process is also open for applications. To learn more about that option, click HERE. Those applications and related documents are due by Friday, April 1, 2022.

Scattershooting

Some articles and other online postings that you might find interesting:

• “Amid Austin police indictments, the issue of whether officers testify before grand juries isn’t as simple as a talking point.” (KVUE)
• “State officials are pushing back against local DAs who win elections on reform messages” (GRID)
• “Harris County to spend $50 million to fight crime by planting trees, adding lights, fixing sidewalks” (Houston Chronicle)
• “More than half of the Texas House wants to stop the execution of Melissa Lucio, convicted of killing her toddler” (Texas Tribune)
• “Demand for Safe Rooms Skyrockets in Los Angeles” (The Hollywood Reporter)

Quotes of the Month

“I’ll let you in on a secret: Republicans like to get high just as much as Democrats.”
            —Beto O’Rourke, Democratic nominee for governor, on why he thinks he can convince the legislature to legalize marijuana if he is elected governor.

“Nobody knows who we are—it’s impossible for the electorate to be informed.”
            —Judge David Singer, Harris County Criminal Court-at-Law No. 14, who was defeated in the Democratic primary by Harris Co. Asst. DA Je’Rell Rogers during an election cycle in which bail reform was a major issue.

“We’re spending millions and billions of dollars in trying to manage something, but instead of getting me the plumber to stop the leak, they’re sending me people to mop up the floor.”
            —Hidalgo County Judge Richard Cortez, referring to Operation Lone Star’s effectiveness—or lack thereof.

“The district attorney’s office was phenomenal. They had a victim’s advocate there as well, and she was wonderful. … I felt prepared, I felt supported, I felt believed, I felt empowered. … The whole process was as good as I can imagine it could ever be.”
            —Anonymous adult survivor of sexual assault, as recounted in the recent SASTF report referenced above. For related feedback—including negative experiences caused by inadequate communication, high staff turnover, and lack of trauma-informed practices—read the full report.

“Life is as it is. My life today is wonderful. I believe that I am needed. I think that’s the most important sense of life, that you are needed, that you are not just an emptiness that breathes and walks and eats something.”
            —Ukrainian president Volodymyr Zelensky, giving a #deepthoughts answer earlier this month to a question from the press about life after the Russian invasion.

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Only four more days until the 2022 primary elections! You can read an overview of some of the prosecutor races that have caught the attention of at least one criminal justice reform-oriented news outlet HERE, and we’ll send out a separate post-primary update next week with relevant results from around the state. Meanwhile, it’s been pretty quiet on the policy front, what with all the policymaking-types campaigning to keep that job, but here’s some news you can use—especially if you need CLE help due to pandemic-shrunk training budgets!

Right on Crime agenda

We are still more than 10 months from the start of the regular session of the 88th Legislature, but some advocacy groups are already starting to roll out their wish lists for 2023. Among those groups are Right on Crime, the criminal justice reform arm of the Texas Public Policy Foundation (TPPF), which released its Policy Priorities for the 88th Lege a few weeks ago. The list of nine items includes seven retreads (grand jury, civil asset forfeiture, “second look” parole, etc.), plus two new items relating to limiting the use of no-knock warrants and allowing judges to deny bail in more cases (which would require a constitutional amendment). Click on the link above for all the details.

In related news, TPPF also announced earlier this month the launch of its “Right for Families” campaign. Their list of agenda items under that campaign can be found HERE and should interest any of you involved in DFPS representation—especially those of you who disagreed with some of the changes enacted by the legislature last session. (Nutshell summary: More of the same coming your way!)

New TDCAA online CLE

Speaking of DFPS work, we are proud to announce the launch of our latest online CLE course, “Fundamentals of Child Welfare Law.” In this six-part video course, you will learn the fundamental skills of child welfare law in a format specifically designed for prosecutors who represent DFPS. This online-only course costs $175 and provides 5.25 hours of MCLE. The course was created with assistance from the Texas Children’s Commission, which is offering a limited number of need-based scholarships for attorneys representing DFPS (in the form of reimbursement of registration fees after this course has been completed.) Interested applicants must apply for the reimbursement scholarship and can receive notice of their selection prior to registering for this course. For more details, click HERE.

Prosecuting Violent Crimes Conference

Registration is now open for TDCAA’s Prosecuting Violent Crimes Conference, which will take place April 11–14, 2022, at the Hyatt Regency Houston West. There will also be a FREE domestic violence training on protective orders provided separately on Monday, April 11, in conjunction with the conference for those interested. For all the details, or to register online, click HERE.

Annual Conference scholarships

We want to alert everyone to two potential funding sources to help you or your employees attend our 2022 Annual Criminal and Civil Law Conference in Corpus Christi this fall.

First, the Texas District and County Attorneys Foundation (TDCAF) is providing a limited number of scholarships through generous gifts made in memory of Mike Hinton. To apply, complete this online application and send it in by Saturday, April 30, 2022.

Second, the State Bar Criminal Justice Section’s scholarship process is also open for applications. To learn more about that option, click HERE. Those applications and related documents are due by Friday, April 1, 2022.

Mental health law symposium

The Texas Tech Law Review and the Texas Tech University School of Law are offering their biennial Texas Tech Mental Health Law Symposium as an online seminar on April 8, 2022. Like their prior programs on mental health law, this year’s symposium will address practical legal and policy issues that can contribute to improvements in the public mental health system and help address the significant challenges faced by the criminal justice system and law enforcement with regard to alleged offenders with mental illness. The program is designed for practicing lawyers and judges and is FREE OF CHARGE. They anticipate approval for 6.5 hours of MCLE credit, including 0.5 hour of ethics. Although there is no fee associated with the conference, you must register in advance. To do so, or to learn more about the webinar, click HERE.

Scattershooting

Some articles and other online postings that you might find interesting:

• “Supreme Court Advisory Committee considers remote jury trials and other proceedings” (Texas Civil Justice League)
• “Attacks fly in final days of Attorney General Ken Paxton’s primary fight” (Texas Tribune)
• “Civil rights attorney Lee Merritt takes heat for lack of Texas law license in his bid for attorney general” (Texas Tribune)
• “As human trafficking surged during COVID, Texas AG Ken Paxton closed 4 cases in 2 years” (Houston Chronicle)
• “Kim Ogg blames rising crime on Houston judges. Fourteen of her prosecutors are vying to unseat them.” (Texas Monthly)
• “Texas Gov. Abbott: Agencies must investigate gender-affirming care for trans kids as ‘child abuse’” (Dallas Morning News)
• “Gov. Greg Abbott floats pardons for Austin police officers charged with excessive force in 2020 protests” (Texas Tribune)
• “‘I hate it here’: National Guard members sound off on Texas border mission in leaked morale survey” (Texas Tribune)
• “The science of addiction: Do you always like the things you want?” (BBC World Service)

Quotes of the Month

“I’m told there’s a term around the Senate called ‘being Seligered.’ And that is, if you don’t do what the lieutenant governor wants you to do, you will be severely punished. … And that’s the rule. And all those folks who are chairmen know it.”
            —State Sen. Kel Seliger (R-Amarillo), in a recent Texas Monthly interview. Sen. Seliger is retiring at the end of this year.

“[M]apmakers are on pace to draw fewer than 40 seats—out of 435—that are considered competitive based on the 2020 presidential election results.”
            —Reid Epstein and Nick Corasaniti of the New York Times, in a recent story about Congressional redistricting in today’s hyper-partisan atmosphere.

“I’ve been screaming and jumping up and down about very important things that are technically complicated and kind of scary. But now that I’ve got your attention, you know, let’s talk about them.”
            —Sarah Stogner, Republican candidate for the Railroad Commission, when asked by the Dallas Morning News about her TikTok campaign ad featuring her riding a pump jack while wearing a cowboy hat, boots, and not much else.

“In a different universe, or maybe just a different state, Sid Miller might be in more trouble than he is. It is by no means disqualifying to have run afoul of ethical or legal issues in the Republican primary.”
            —Cal Jillson, political scientist at SMU, referring to current Agriculture Commissioner Sid Miller’s defense of one of his former aides who has been criminally charged with extorting illegal fees from hemp license applicants. [Although truth be told, these types of legal problems are not disqualifying in EITHER political party in this state. God bless Texas!!]

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