New year, same as the old year. When does this ride end? We’re ready to get off. #sigh

SCOTX COVID-19 extension

While many local courthouses scale back or cancel in-person proceedings due to the latest Omicron wave, the Texas Supreme Court issued Emergency Order No. 47 last week to continue and extend prior guidance for local courts regarding pandemic protocols, etc. The only difference from the most recent order we could find was in paragraph 6 (amended) and paragraph 7 (newly added) governing the extension of dismissal dates for certain CPS-related cases. To see if or how that affects any of your cases, please click the link above and read those paragraphs closely.

BPU volunteers

If you attended TDCAA’s Elected Prosecutor Conference in Rockwall back in December, you’ll recall a presentation from border prosecutors detailing the overwhelming number of “Operation Lone Star” (OLS) cases hitting court dockets in Kinney and Val Verde Counties. While some of the new filings are felony cases, the majority are misdemeanor criminal trespass and similar charges. As Kinney County Attorney Brent Smith and Val Verde County Attorney David Martinez noted in December, this not just a border issue, as many individuals entering illegally are either undetected or released and travel to other parts of the state.

Members of the Border Prosecution Unit (BPU) have been assisting those county attorneys by providing attorneys to appear on virtual Zoom dockets in Kinney County (which experienced the number of cases going from 2 or 3 a month to more than 30 a day!), but the need is great and the number of cases will only increase as DPS expands its OLS surge activities to other counties. BPU is recruiting volunteer prosecutors from throughout the state to assist by handling daily virtual Zoom dockets. The BPU, working with elected prosecutors in the border counties, will train volunteers and provide back-up legal research and other support. Whether you can handle one docket a month or one a week, this is a tremendous opportunity to work together in meeting these challenges head-on—not just in the borderland, but throughout the entire state. (We also note that similar recruitment is occurring on the defense side, where the Texas Supreme Court has issued emergency orders to allow out-of-state defense lawyers to represent OLS defendants.)

To sign up and/or get more information about being a BPU OLS volunteer, please email [email protected].

Prosecution 101

On the heels of the Court of Criminal Appeals’ decision in Stephens v. State confirming that the attorney general cannot unilaterally prosecute election law violations, that state officer—and an interesting cross-section of state GOP officials and activists—have put the full-court press on that court to ask for a rehearing. (Click HERE to read the motions and multiple amicus briefs filed to date.) The current holder of that office has even publicly claimed that a nationwide George Soros-backed prosecutorial conspiracy behind this opinion from the all-Republican “Texas Criminal Court of Appeals” (as he has repeatedly mis-named it in the wake of the Stephens decision). We can’t really do this argument justice—and even his interviewer seems to have trouble following the “logic” behind it—but you can watch one such interview HERE if you want to know what kind of mud is being slung during the current primary campaign season.

Regardless of the outcome of the motion for reconsideration before the Court of Criminal Appeals, this debate is likely to continue at the Legislature when it takes up various yet-to-be-assigned interim charges after the March primaries. In fact, the current AG is on record saying that if the Stephens decision stands, he will ask Gov. Abbott to call a special session to overturn the ruling. We’ve been following this topic for at least the past 20 years—as evidenced by the repeated revisions to our “Texas Prosecution 101” memo—but in light of the newly-polarized political debates over elections, it looks like we’ll have to update it once again in preparation for further discussions. You should also prepare accordingly.

Election law confusion

As you know, after robust challenges that included a rare quorum break by opponents, the GOP-controlled Legislature eventually passed its “election integrity” bill during the second special session of last year. With the exception of the bill’s addition of new CCP Art. 42.0194 (Finding Regarding Felony Conviction), which we included in our free downloadable PDF of CCP revisions from the special sessions, we have not yet put out any information on Senate Bill 1 (87th Leg., 2nd Called Session) because of the bill’s unusual timing and its contents being outside the scope of our standard publications. As you also know, there is some confusion over various parts of the bill relating to election procedures. We are not in a place to resolve those questions, but SB 1 also enacted new crimes and changed the elements of other existing crimes, as well as raising or lowering the punishment ranges for some of those offenses, which are things you may be called upon to review or enforce. Therefore, we wanted to share with you two external documents that summarize the criminal law changes made by that 75-page bill:

• SB 1 – New offenses
• SB 1 – Changed offenses

Note that these memos were not prepared by TDCAA, and while we have found them to be generally accurate in what they describe, we encourage readers to consult the new law in its entirety for full details, including the bill’s various transition provisions and effective dates.

Musical chairs

Regardless of elections, the recent rash of legislative retirements and resignations requires the House and Senate leadership to reshuffle their deck chairs before returning next session. That process in the Senate started earlier this month when Lt. Gov. Dan Patrick (R-Houston) promoted State Sen. Joan Huffman (R-Houston) to the middle seat on the Senate Finance Committee, where she will replace the retiring chairwoman, State Sen. Jane Nelson (R-Flower Mound). This move likely means the Lite Guv will moth-ball the Senate Jurisprudence Committee—which was created last session with Sen. Huffman at the helm—because that committee passed much of the legislation it was created to handle in 2021, and because serving as the chair of Senate Finance leaves no time for chairing other committees. That said, we expect Sen. Huffman—a legislative recipient of TDCAA’s Lone Star Award last session—to remain involved in the public safety issues that are near and dear to her heart as a member of the Senate Criminal Justice Committee.

In other State Senate news, yesterday the lieutenant governor announced that border security issues in that chamber would be spun off from the Senate Committee on Veterans Affairs and Border Security (chaired by Sen. Kelly Hancock (R-North Richland Hills)) and given to a new Senate Committee on Border Security. The new standing committee will be chaired by Sen. Brian Birdwell (R-Granbury) and include Sens. Bob Hall (R-Edgewood) and Juan “Chuy” Hinojosa (D-McAllen) as members.

Candidate filings

With four weeks and change to go until the March 1 primaries, we’ve put together a list of 2022 prosecutor races that you can view HERE. If you have information correcting or supplementing what we’ve cobbled together so far, please email that to Shannon HERE and he will update our running list. (And congratulations to the 75 percent of y’all up for election this cycle who have no primary or general election opponent!)

Diversion map

The National DAs Association (NDAA) has launched a crowd-sourcing project to map prosecutor-led diversion programs around the country as part of an effort to show “the proactive and innovative work being accomplished by local prosecutors.” To date, their list only includes programs in Collin, Harris, and Jim Wells Counties. To view the map and add your local diversion and intervention programs to their list, visit https://diversion.ndaa.org/.

Scattershooting

Some articles that you might find interesting:

• “Car crash deaths have surged during COVID-19 pandemic. Here’s why.” (Los Angeles Times)
• “How Australian police will use DNA sequencing to predict what suspects look like” (The Guardian)
• “How Oregon became America’s illegal weed capital” (Politico Magazine)
• “Why More Inexperienced Candidates Are Running—And Winning” (FiveThirtyEight)
• “Gov. Greg Abbott urges court to allow unilateral pursuit of vote fraud by Texas AG Ken Paxton” (Dallas Morning News)
• “Analysis: Crime pays, politically speaking, for Texas AGs” (Texas Tribune)

Quotes of the Month

We have a bumper crop this month. Must be an election year!

“In politics, the old adage is that the only abuse of power is to have it and not use it.”
            —Bill Miller, Austin lobbyist, as quoted in a Texas Observer article about claims of gubernatorial abuses of power during the current COVID-19 pandemic.

“When you look at the Republicans becoming more conservative and the Democrats losing some of their moderates, it just increases the polarization in Austin.”
            —Mark Jones, political scientist at Rice University, quoted in a Dallas Morning News article about the impending legislative turnover in the North Texas delegation.

“The result [of the Stephens decision) is, by this November, if we don’t get this changed, I think it’s very likely we’re going to lose five [Republican] members of the Texas Supreme Court who are up, we could lose my position, we could lose the governor, it’s just a matter of—whether it’s this time [or] the next time [or] the next time, we’re done in Texas if anybody can vote.”
            —Ken Paxton (R-McKinney), Texas Attorney General, as quoted during an appearance on the podcast Bannons [sic] War Room (starting at the 5:00 mark).

“Leave a message that you want the court to restore Paxton’s right to prosecute voter fraud in Texas. If this decision isn’t reversed, then the Democrats will steal the elections in November and turn Texas blue.”
            —Robocall message sent to tens of thousands of Texans statewide by Dr. Steven Hotze, the Houston-area conservative activist seeking a rehearing and reversal of the CCA’s decision in State v. Stephens.

“From the perspective of legal ethics, it’s a lamentable act but probably not a forbidden one. From a more general perspective, it is another sign of the breakdown of norms that support the rule of law. Lawyers know better than to contribute to this erosion, but Paxton does not care.”
            —Prof. Charles Silver, co-director of UT School of Law’s Center on Lawyers, Civil Justice and the Media, on the attorney general’s efforts to convince his supporters to help him overturn the CCA’s Stephens opinion.

“[Texas needs an attorney general who will] confront county DAs that aren’t doing their jobs.”
            —George P. Bush, Republican candidate for attorney general, testing out a new angle of attack at a campaign event earlier this month based on the Stephens decision.

“It’s such a sleepy race that hasn’t seemed to get going. … The race is so flat. There’s a chance—and I wouldn’t have said this months ago—that Paxton could win without a runoff.”
            —Matthew Langston, Republican political consultant, quoted in a Dallas Morning News story on the GOP primary for attorney general.

“You are being ‘rage farmed.’ Your angry quote tweet = the goal.”
            —Excerpt from a tweet by John Scott-Railton, senior researcher at the University of Toronto, as quoted in a Texas Tribune article discussing the dynamics of social media and how divisive memes are amplified on those platforms to drive engagement and further divide partisan audiences.

“You can be critical and you can have your opinion as to the decisions that I make, but you should fear a prosecutor who is basing their decisions not on the rule of law but on satisfying those passions.”
            —David Soares, Albany County (NY) DA, in response to claims that his dismissal of a misdemeanor sex-crime charge against former Gov. Andrew Cuomo was motivated by political affiliation.

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TDCAA’s World Headquarters will close this Thursday afternoon and remain closed until January 3, 2022, so that we can recover from this God-forsaken mess of a year. Let’s all start 2022 with a fresh outlook, shall we?

Candidate filings

Now that the deadline for 2022 candidate filings has passed, we thought we’d share with you this Google doc spreadsheet we found online that lists 2022 candidates for major federal and state offices in Texas, including congressional and legislative races. The first post-redistricting election of every decade is often a free-for-all, and with retirements and resignations factored in, it’s likely that 30­­–40 percent of members of the upcoming 88th Legislature will be new to their jobs in 2023. On the other hand, almost one-third of current state legislators drew no opponent in a primary or general election and will coast back to Austin unscathed by campaign wounds. (That’s considered good map-drawin’ if you work under the big pink dome!)

As for local prosecutors, the 2022 election cycle impacts only the state’s 50 criminal district attorney offices (except for three judicial district attorney offices that have swapped with three criminal DAs to run in this cycle—nothing can ever be simple when it comes to election laws, can it?). We’ve done our best to put together a list of 2022 prosecutor elections that you can view HERE. It’s hard to get good information on some prosecutor races outside of the big metro jurisdictions, so if you have information correcting or supplementing what we’ve cobbled together so far, please email that to Shannon HERE and he will update our running list.

PS–Congratulations to the 75 percent of y’all up for election next year who have no primary or general election opponent!

AG authority

For constitutional law nerds (like us), Christmas came early last week courtesy of the Court of Criminal Appeals, which held in Stephens v. State that the state statute granting the Attorney General unilateral power to prosecute certain election law violations was unconstitutional because it violated the state constitution’s Separation of Powers Clause. Of course, this wasn’t anything prosecutors hadn’t been telling the Lege for years—and on your behalf, we’ve been publicly asserting that opinion in every legislative session in which it came up—but it is nice to have the Court back that reading of the state constitution on a topic that is so important to our members. Of course, the ruling didn’t make everyone happy, but perhaps that’s to be expected when the high court boxes your ears on something that you have made the center point of your re-election campaign.

So, what does this mean going forward? For starters, it probably won’t have much impact on the majority of election law cases because OAG’s Election Fraud Unit has historically worked cooperatively with local prosecutors in most cases. Nothing in the Stephens ruling limits the ability of OAG to prosecute crimes—election-related or otherwise—as long as the local prosecutor requests that type of prosecution assistance. So, in theory, things should run post-Stephens according to the standard model for other crimes. That said, the partisan nature of the “election integrity vs. voter suppression” fight in today’s politics will mean some legislators may decide that this ruling should be overridden. We will be keeping an eye out for proposed legislation on this topic—some of which is already being floated on social media—but barring this topic being added to the call of a special session, it will be 2023 before the state legislature can address this topic (if at all).

Scattershooting

Some articles that you might find interesting:

• “Texas attorney general cannot unilaterally prosecute election cases, state’s highest criminal court rules” (Texas Tribune)
• “Starting assistant DA salaries seem criminally low” (The National Jurist)
• “What new data on gun recoveries can tell us about increased violence in 2020” (FiveThirtyEight.com)
• “You can stand your ground in Texas. Even when you kill a cop.” (Texas Monthly)

Quote of the Week

“I don’t always storm the Capitol of the United States of America, but when I do, I prefer Coors Light.”
            —Paul Conover, of Keller, Texas, in a social media video of himself holding a “silver bullet” in Washington, D.C., on January 6, 2021. Conover is currently charged with several federal crimes relating to the breach of the capitol building on that date.

“If I can lose 30 pounds, it’ll be so worth it.”
            —Jenna Ryan, of Frisco, Texas, remarking on her 60-day federal sentence for breaching the U.S. Capitol last January.

“I was kind of in shock. I was surprised someone would be that stupid.”
            —April Hatch, a defendant in the 182nd District Court (Harris County), commenting upon the melee that broke out earlier this month when another defendant attacked a female bailiff and fought with a prosecutor and the judge who came to defend her.

“Saddle up, @RepMattSchaefer. The House is going to pass civil asset forfeiture reform again. #CJreform #txlege”
            —House Speaker Dade Phelan (R-Beaumont), in a quote tweet of an article highlighting a K-9 unit at Love Field in Dallas that helped interdict $100,000 in cash, which the story said would be subjected to forfeiture. (Subsequent inquiry showed this to be a federal forfeiture, not a state matter, but key details like that sometimes escape the notice of policymakers.)

[Merry Christmas and Happy New Year from all of us at TDCAA!]
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“Omicron,” eh? Well, at least we finally found a real-world benefit to being forced to memorize the Greek alphabet before a lit match reached our fingers. #hazing

Latest SCOTX emergency order

We’re still in the midst of a statewide disaster declaration due to COVID-19, so the Texas Supreme Court issued Executive Order No. 45 on the Wednesday before Thanksgiving to renew its previous edict on various pandemic proceedings (which would have expired on December 1, 2021). This latest order appears to be the same as past orders in regard to the major pandemic issues—e.g., still no remote jury trials over a party’s objection in a jailable criminal case—and it will last until February 1, 2022, unless amended or extended before that date.

Fourth time’s the charm?

The conventional wisdom in Austin is that our governor will call a fourth special session to begin sometime in January to address federal vaccine mandates (and whatever else it is that a governor who is running for re-election wants to address). Most of the offerings on recent special session menus haven’t directly involved prosecutors, but the current border situation could raise prosecution-related issues during a called session, so we’ll keep you posted if we hear anything actionable.

Funny money

Speaking of the border, if you are wondering where the state got $3+ billion to throw at that issue during the most recent special session, look no further than the comptroller’s latest budget projections. Based on current trends—including a see-saw price of oil that is still higher than past years—the comptroller’s office predicts the state could have as much as $23 billion on hand by the end of this budget cycle (August 2023). Half of that will be Rainy Day Fund money and the other half will result from increased sales tax revenues. And those figures do not include federal pandemic relief still headed from Washington, D.C., to Texas. What this will mean for the 2023 legislative session remains to be seen, but we will keep an eye on this issue over the next year for the interest of those of you with innovative ideas for how the state could use its growing nest egg.

Elected Prosecutor Conference this week

Speaking (again) of the border, we will kick off our 2021 Elected Prosecutor Conference on Wednesday with a panel of local prosecutors who will provide their opinions of the situation from their front-row seats. Online registration for the program has closed, but walk-in registration will be open on location at the Rockwall Hilton Hotel, so come join us if your schedule allows! Details on dates, classes, and location are available HERE.

Scattershooting

Some articles that you might find interesting:

• “Oregon’s pioneering drug law raises more questions than answers in early months” (Oregon Public Broadcasting)
• “Dangling air fresheners and ‘faulty’ plates: These Texas police make the most minor traffic stops” (Houston Chronicle)
• “New Study Finds Staffing Shortages, High Workloads and Low Compensation Among the Nation’s Largest Prosecutors’ Offices” (press release and report from the Association of Prosecuting Attorneys)

Quote of the Week

“Still in Texas. Worst drivers so far.”
            —Kent Wosepka, a cyclist from Massachusetts, posted online during on a cross-country ride from California to Florida the day before he was struck and killed by a motorist in Liberty County.

“On both sides, this is gonna be an angry and existential election.”
            —Zack Malitz, field director for Beto O’Rourke’s 2018 Senate campaign, making a prediction about the potential Abbott/O’Rourke general election campaign for governor in 2022.

“It’s pretty hard to think of situations where a Democrat does something so bad or a Republican does something so bad that their own partisans will en masse turn on them.”
            —Joshua Blank, research director of the Texas Politics Project, when asked to explain recent poll results for certain races on next year’s ballot.

“Just chill out. Drink a 7-Up. Eat a Moon Pie. Quit murdering people.”
            —Grady Judd, Polk County (FL) sheriff, offering his prescription to cure a recent surge in violent crime in his community.

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Things are pretty quiet in Austin as we limp towards the holidays, so for our final interim update of what has been a thoroughly craptastic year, please indulge us while we regale you with some custom lyrics we composed to the tune of “The Twelve Days of Christmas”:

In the Year 2020, COVID gave to us …
   Twelve dismissed jurors
      Eleven halted trials
         Ten p.m. curfews
            Nine lockdown protests
               Eight months of resets
                  Seven online courses
                     Six feet of spacing
                        Five Zoom hearings
   Four Purell pumps
      Three nose swabs
         Two latex gloves
            And a judge who won’t wear a face mask

(Don’t worry, we aren’t quitting our day job to move to Nashville to write hit songs anytime soon.)

COVID & the Lege

The chains are to be removed from the gates around the state capitol property and the grounds opened to the public starting this weekend, but access to the building itself will remain closed for now. (Guess you can file that under “baby steps.”) Meanwhile, we still have no guidance on how the Lege plans to pull off a COVID-safe session. We are only 25 days from the start of the 87^th Regular Session, and judging from some of the horror stories we’ve read about in other states (see quotes, below, for an example), you can color us skeptical that an outbreak can be avoided at the state capitol next spring. Let’s all pray that the powers-that-be find some wisdom and foresight in their stockings this Christmas.

Bill filing continues

Through yesterday, we are tracking 345 pre-filed bills. To review those that would amend the Penal Code or the Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. We maintain more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been proposed so far. (And if you or someone in your office has proposed a bill that gets filed, please drop Shannon a note so he can track it as such.)

CCP changes for next month

You can download free PDF copies of the new versions of the Code of Criminal Procedure chapters affecting protective orders, grand juries, and victims’ rights that take effect on January 1, 2021, at https://www.tdcaa.com/books/ (look for the links along the right-hand “rail” of your desktop layout). These documents include related source and disposition charts to help you figure out what was moved where by these non-substantive changes.

New online training

Registration is now open for next year’s “Fundamentals of Prosecution,” an online course designed to give newer prosecutors the tools they need to contribute to the mission of their office more effectively. The course consists of 10+ hours of recorded training over core subjects such as bonds, search and seizure law, case analysis, and ethical decision making. Additionally, prosecutors who complete the course will have four TDCAA publications (Predicates, DWI Investigation and Prosecution, Punishment and Probation, and Traffic Stops) mailed to them, and they will get to participate in live online forums with faculty and presenters. Registration and additional information for this course can be found here.

Victim services consultations

Jalayne Robinson, TDCAA’s Victim Services Director, is available to assist prosecutor’s offices in providing support services for crime victims in their jurisdictions by phone, email, or Zoom videoconference. If you would like to schedule a free one-on-one or group training for your office in 2021, please email your request to [email protected].

PVAC applications now being accepted

TDCAA’s Professional Victim Assistance Coordinator (PVAC) recognition program is a voluntary process for recognizing professionalism in prosecutor-based victim services. If you have a VAC in your office interested in obtaining that certification, detailed requirements and an application may be found on our TDCAA Victim Services webpage. The next deadline for PVAC applications is January 31, 2021. Please mail PVAC applications and supporting documentation to: Jalayne Robinson, TDCAA Victim Services Director, 505 W. 12^th St., Ste. 100, Austin, TX 78701. For related questions, email [email protected].

Quotes of the Week

“Just wait ’til 2020 turns 21 and starts drinking.”
            —One of the messages this week from Austin’s infamous El Arroyo restaurant sign.

“Police work is not entertainment.”
            —Kim Ambler, sister of Javier Ambler II, who died during an arrest by Williamson County Sheriff’s deputies that was filmed by a “Live PD” crew from A&E Network (but the footage never aired and was subsequently erased). Ambler’s family is supporting the passage of House Bill 54 by Talarico (D-Round Rock), which would prohibit Texas law enforcement agencies from participating in reality TV filmings.

“He crossed the line from dirty politics to commission of a violent crime, and we are lucky no one was killed. His alleged investigation was backward from the start—first alleging a crime had occurred and then trying to prove it happened.”
            —Harris Co. DA Kim Ogg, announcing the aggravated assault indictment of a former Houston PD officer who allegedly ran an A/C repair truck off the road and held the driver at gunpoint because he thought the truck contained hundreds of thousands of fraudulent ballots. (Narrator’s voiceover: “It did not.”)

“Those in our caucus who refused to take precautions are responsible for Dick Hinch’s death.”
            —NH State Rep. William Marsh, MD (R-Brookfield), tweeted after the 71-year-old Speaker of New Hampshire’s House of Representatives died from COVID-19 following an indoor GOP caucus meeting where many attendees refused to wear masks and several later contracted the disease. Nationwide, Marsh is at least the fifth confirmed state legislator death from COVID-19 complications.

“There is light at the end of the pandemic tunnel.”
            —Liz Youngblood, president of Baylor St. Luke’s Medical Center in Houston, which was scheduled to receive its first allotment of COVID-19 vaccine doses this week.

[Fiat Lux indeed! And Happy Holidays from all of us at TDCAA!
We’ll be back in touch after the New Year.]

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Some have described a Texas legislative session as being like high school, but with money and power. We’re not sure what that analogy says for the Lege’s ability to avoid a COVID outbreak, but the thought is not filling us with confidence.

COVID & the Lege

Still no definitive word from the decision-makers about how they plan to pull off a COVID-safe legislative session starting next month. Ideas floated this week include holding a limited number of in-person committee hearings for the first 60 days but restricting public attendance to only those who register online several days in advance and provide proof of a negative coronavirus test in the 24 hours preceding the hearing. Such steps might help, but color us skeptical. Even now, with the capitol locked down and very little business being conducted before the session starts, there are rumors of legislators and staff members testing positive—the former because politicking is by nature an in-person gig, the latter because they are in the highest risk group for contracting the virus (namely, 20-somethings who socialize with each other and strangers). We say “rumors” of positive tests because, with very few exceptions, most of those results within the capitol community are not being publicly confirmed, something that only adds fuel to the already inferno-level gossip machine that is a regular part of the legislative process.

In other legislative news, the Lite Guv has announced his preference for yet another reduction in the number of votes it takes to bring legislation to the Senate floor, reducing what was historically known as the “Two-Thirds Rule” (21 of 31 senators) to what would be more like a new “7/12ths Rule” (18 of 31), bringing to fruition something we predicted last month. Assuming that rule is adopted, it would signal a further transfer of power from individual senators to their presiding officer, something that is likely to continue happening in both chambers as long as the pandemic continues (just as it may have happened on your local commissioners court).

Interim hearings

The Senate State Affairs Committee convened in person on Tuesday to consider the prohibition of “taxpayer-funded lobbying,” one of the Texas Republican Party’s public policy priorities for this session. (If you recall, last session a bill to restrict advocacy by local officials and their associations—Senate Bill 29 by Hall (R-Edgewood)—passed the Senate but was defeated on the House floor by a vote of 85-58.) The hearing went about as expected, with no new ground being plowed. Advocates for the ban blamed local officials for the past failures of their preferred policy positions (property tax reform, etc.), and being unable to defeat the offending messages, they apparently intend to “kill the messengers.” (Or, using today’s social media vocabulary, perhaps it’s more accurate to say they want to “cancel” the opposition.)

After the committee hearing, Senator Hall filed a new version of his bill as SB 234, which is an identical companion to HB 749 by Middleton (R-Wallisville), also filed earlier this week. These new bills differ in language from last session’s legislation, but their goal is the same: Prevent local governmental officials from spending public funds to hire or employ lobbyists, pay dues to trade or professional associations who employ lobbyists, or advocate for or against legislation (unless done on their own dime). Unfortunately, you (as local officials) and we (as your professional association) find ourselves in those crosshairs because of positions many of you have taken in the past on issues (such as preserving civil asset forfeiture) opposed by those supporting this new prohibition, so if these “cancellation” measures concern you again this session, now is the time to start expressing those concerns to your local legislators while you are still allowed to.

On more side note: Perhaps the most noteworthy aspect of this hearing was that it was closed to public attendance and only accessible online, with invited-only witnesses testifying remotely. If that is a preview of what committee hearings might be like next session, then prepare to be on the outside looking in on many policy debates in 2021 due to lack of access.

Bill filing continues

Through yesterday, we are tracking 30 percent of bills pre-filed so far (313 of 1042 total bills). To see what bills would amend the Penal Code, the Code of Criminal Procedure, or fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page for a complete list. We maintain more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been proposed so far. (And if you or someone in your office has proposed a bill that gets filed, please drop Shannon a note so he can track it as such.)

Legislative rotation

As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice legislators need to hear is yours. To help you do that, we have in the past organized a rotating schedule of volunteer slots for elected prosecutors or their surrogates who wish to come to Austin to be a part of the legislative process. We have no idea what this next session will look like, or whether or how prosecutors will be able to participate, but if you would like to plan ahead and schedule a time to watch (or help) the sausage being made in Austin, contact Shannon for more details—he can tell you when to come, what to bring, and what to expect.

Key Personnel and Victim Assistance Coordinator Board Elections

TDCAA will hold elections for two positions on our KP/VAC board next Tuesday afternoon, December 15, 2020 via Zoom. The open positions are: (1) combined Regions 1 & 2, and (2) combined Regions 3 & 7. (Regional map available HERE.) Any key personnel or VAC is eligible to serve on the board if they are a dues-paying member of TDCAA and have the permission of their elected prosecutor employer. If you know of someone in your office who would be a good candidate for these positions, please email their name and contact information to Jalayne Robinson ([email protected]) ASAP—the elections are next week!

CCP changes for January 2021

As part of its code reorganization efforts, the Texas Legislature passed a bill (HB 4173) in 2019 that makes non-substantive changes to chapters in the Code of Criminal Procedure affecting protective orders, grand juries, and victims’ rights. Those changes take effect on January 1, 2021, and the crack staff in our publications department (read: one very busy Diane Beckham!) has laid out those new chapters, along with source and disposition charts, as PDFs that you can download for free at https://www.tdcaa.com/books/ (look for the links along the right-hand “rail” of your desktop layout). These changes will also be incorporated into the upcoming 2021 edition of TDCAA’s code books, which will be available next summer following the 87^th Regular Session, but to bridge the gap until then, please take advantage of these free resources and share them with others in your courthouse as needed.

Quotes of the Week

“Was it the lobbyists, or the political will of the legislature?”
            —State Sen. Eddie Lucio, Jr. (D-Brownsville), member of the Senate State Affairs Committee, in response to interim testimony this week that local officials and their associations killed bills limiting “taxpayer-funded lobbying” last session.

“I feel sorry for Texans that their tax dollars are being wasted on such a genuinely embarrassing lawsuit. Texas is as likely to change the outcome of the Ice Bowl as it is to overturn the will of Wisconsin voters in the 2020 presidential election.”
            —Josh Kaul, Wisconsin Attorney General, tweeted in response to news that Texas Attorney General Ken Paxton filed a Hail-Mary-pass of a lawsuit in the U.S. Supreme Court challenging presidential election results in Wisconsin, Pennsylvania, Michigan, and Georgia.

“The only thing we have to do this session is we have to do the budget and redistricting. … [T]here’s not going to be as many bills, there’s not going to be as many opportunities to have public testimony and things of that nature because I don’t think there’s going to be as many committee meetings.”
            —State Rep. Dan Huberty (R-Humble), chairman of the House Public Education Committee, in a local event earlier this week.

“The key to this session is very straightforward, and it is the Texas recovery. … [I]f we are focused on anything other than the economic and the health care recovery of this state, then we are not spending our time wisely.”
            —State Rep. Joe Moody (D-El Paso), current speaker pro tem of the House, in an online panel discussion about the upcoming session.

“No, they have not. We’re not there yet. The House and Senate are kind of wandering in different directions.”
            —State Rep. Charlie Geren (R-Fort Worth), chairman of the House Administration Committee, when asked earlier this week whether any decisions have been made on how the legislature will operate next session.

“It’s real. It will hurt you.”
            —Bill Waybourn, Tarrant County Sheriff, who recovered from COVID-19 after losing 20 pounds and suffering coughing, fever, headaches, and fatigue symptoms.

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Members of the next legislature will descend on Austin in 39 days to decide how they are going to conduct business in the middle of a still-raging pandemic. If you’re the praying type, add them to your “in need of wise discernment” list because they are going to need all the help they can get.

TDCAA officers for 2021

TDCAA’s annual business meeting was held earlier this week, and a new slate of officers was selected. For a complete roster of 2021 board members and their positions, click here.

Thanks to all our departing board members, and welcome to our newcomers—we appreciate your dedication and service to improving our profession!

COVID & the Lege

Another interim meeting fell victim to coronavirus concerns* as the Senate State Affairs Committee cancelled its hearing on abortion and so-called “taxpayer-funded lobbying” that was scheduled for this Wednesday. [*“concerns” = legislators and/or staffers testing positive for COVID but not telling anyone publicly.] That hearing was initially re-scheduled for next Monday, and then re-re-scheduled for Tuesday, December 8 at 1:00 p.m. For details on how to watch from home or office, see the latest committee hearing notice.

 As we turn our view to January, when the Lege must meet in person and begin business in earnest, things are … not looking great. Assuming continued virus spread after the Christmas and New Year’s holidays and a vaccine roll-out to the general population that will last well into mid- or late-2021, the state capitol could remain closed to the public deep into the 87^th Regular Session. Nothing has been decided officially, but don’t be surprised if the Lege convenes on January 12, 2021, conducts business for a day or two, and then adjourns for several weeks—maybe even until early March. That would allow the Lege to keep the building closed to everyone but legislators and staff for the first 60 days of the session, a time period during which they are already constitutionally prohibited from passing bills (absent an issue being officially declared an “emergency” by the governor). Most legislators may already be resigned to the fact that they will have to return to Austin for multiple special sessions later next year anyway, so it’s possible that the traditional ebb-and-flow (and panic) of legislative deadlines will become less important in a regular session that is shaping up to be anything but “regular.”

Bill tracking

To see what bills have been to filed to date that would amend the Penal Code, the Code of Criminal Procedure, or fall in our somewhat-arbitrary “Bills to Watch” category, use the links on the right-hand side of our Legislative page for a complete list. We maintain more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been proposed so far. (And if you or someone in your office has proposed a bill that gets filed, please drop Shannon a note so he can track it as such.)

Legislative rotation

As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice legislators need to hear is yours. To help you do that, we organize a rotating schedule of volunteer slots for elected prosecutors or their surrogates who wish to come to Austin to be a part of the legislative process. If you would like to plan ahead and schedule a time to watch (or help) the sausage being made in Austin, contact Shannon for more details—he can tell you when to come, what to bring, and what to expect. (Although as noted above, we have no idea what next session will actually look like in operation, so we will proceed under the assumption that they will conduct business in person as usual until we know differently.)

Online bingo

We have received a joint letter from Texas Lottery Commission Chairman Robert Rivera and Charitable Bingo Operations Commissioner Cindy Fields stating that they have reason to believe illegal bingo games are being conducted online through platforms such as Facebook and Instagram, which may constitute a third-degree felony under Texas law. The letter encourages prosecutors to investigate and prosecute this alleged illegal gambling activity and offers the assistance and cooperation of the Lottery Commission in doing so. If you are interested in pursuing the matter further, email Shannon for a copy of the letter and related contact information.

CCP changes for January 2021

As part of its code reorganization efforts, the Texas Legislature passed a bill (HB 4173) in 2019 that makes non-substantive changes to chapters in the Code of Criminal Procedure affecting protective orders, grand juries, and victims’ rights. Those changes take effect on January 1, 2021, and the crack staff in our publications department (read: one very busy Diane Beckham!) has laid out those new chapters, along with source and disposition charts, as PDFs that you can download for free at https://www.tdcaa.com/books/ (look for the links along the right-hand “rail” of your desktop layout). These changes will also be incorporated into the upcoming 2021 edition of TDCAA’s code books, which will be available next summer following the 87^th Regular Session, but to bridge the gap until then, please take advantage of these free resources and share them with others in your courthouse as needed.

Quotes of the Week

“By definition, the criminal justice system operates with large groups of people gathered in small spaces for hours on end with lots of talking. Can there be a worse circumstance during a pandemic?”
            —Patrick Wilson, Ellis County & District Attorney, in a story about the impact of the coronavirus on some courthouses in the Metroplex area.

“Generally, the feeling is, if you wear a mask, you’re a (Democratic Governor Jared) Polis supporter. If you don’t wear a mask, you’re a true patriot. And it’s not so much about wearing masks. It’s about being told that you have to wear a mask.”
            —Colorado State Rep. Matt Soper (R-Delta), in a story about the debate over coronavirus prevention measures in that state’s capitol building during a recent special session.

“We’re going to plan for an outbreak in the Capitol. I think we have to.”
            —State Rep. Charlie Geren (R-Fort Worth), chairman of the House Administration Committee, as reported in this story about potential limits on public participation for the session.

“Who’s to say that two years from now Democrats don’t have a better showing without straight ticket voting? It helped Republicans this time and it’s up for grabs as to who it helps two, four, and six years down the line. It’s a to-be-continued story.”
            —Derek Ryan, Republican pollster, on the impact of eliminating straight-ticket voting, which may have saved several down-ballot Republicans in certain suburban counties where President Trump underperformed this election cycle.

“It’s high on everybody’s minds right now, with the problems we’re seeing going on with elections across the nation.”
            —State Rep. Drew Springer (R-Muenster), on why he and other GOP legislators have pre-filed dozens of election fraud-related bills this session despite an absence of verified incidents in Texas. (Look for this partisan topic to be a divisive one next session.)

“The national conversation has focused a great deal of attention on racial equity, criminal justice reform, and other social justice issues. We found Texans are more concerned with the nuts and bolts of governing: How safe are we from the pandemic? How likely are people to be employed and able to access health care?”
            —Mark P. Jones, political science expert, on the results of a recent poll of Texans’ top concerns heading into next session. (For the full results of the polling, click here; as usual, criminal justice issues may no longer be foremost in voters’ minds.)

“It seems bizarre, especially if you’re not a lawyer or you’re not a legislator. What other laws can DAs break? The good news in this is the Texas Legislature can fix this in the next session, and that’s encouraging.”
            —Michael Morton, exoneree, referring to plans by the Innocence Project of Texas to address the 2019 holding in Hillman v. Nueces County (summarized here) that county officials are immune from a wrongful termination lawsuit brought on behalf of a prosecutor who claimed he was fired for disclosing exculpatory information against his supervisor’s wishes.

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If some big-brained scientist could figure out how to use tryptophan as a delivery system for a COVID-19 vaccine, we could have this pandemic licked by this time next week.

TDCAA business meeting & elections

Remember, TDCAA’s annual business meeting and regional director elections will take place on December 2, 2020, at 10:00 a.m. Elected prosecutors who are members in good standing should receive the required Zoom link the week before the meeting. If you have any questions about the election or your membership status, please contact Rob at 512/474-2436 or [email protected]. For more details, see our original notice in this previous update.

Bill tracking

Curious about what is being filed for next session? Of the 809 bills filed through yesterday, we are tracking 222 (27 percent) of them, including 37 bills relating to firearms, 33 that would create one or more new crimes, 32 relating to policing, and 22 relating to marijuana and other drugs. To see bills that would amend the Penal Code, the Code of Criminal Procedure, and other “Bills to Watch” (a curated list of some bills you might care about), use the links on the right-hand side of our Legislative page for a complete list. We maintain more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what is being proposed so far. (And if you or someone in your office has proposed a bill that gets filed, please drop Shannon a note so he can track it as such.)

More interim FRIs

The House Corrections Committee has issued a formal request for information (FRI) relating to its interim charges. The notices and topics—including DWI treatment, blue warrant revocations, and probation department funding—can be viewed at this link. Instructions for submitting comments are also found in those notices, the deadline for which is Friday, December 4, 2020. If you have questions about any of this, please email Shannon.

COVID & the Lege

Another interim meeting fell victim to coronavirus concerns as the Senate State Affairs Committee cancelled its hearing on abortion and so-called “taxpayer-funded lobbying” that was scheduled for this Wednesday. That hearing has now been re-scheduled for Monday, December 7. (For details on how to watch from home or office, see the new committee hearing notice.)

COVID & the Courts

The Supreme Court of Texas issued Emergency Order No. 29 last week to extend through February 1, 2021, its previous edicts limiting jury trials during the coronavirus pandemic.

And for those curious about the ongoing “¿Quién es más macho?” fight between the State and local officials in El Paso (which is facing a worrisome surge in coronavirus cases), be sure to check out the recent Eighth Court of Appeals majority opinion and dissent mentioned at the end of today’s case summaries.

Blue warrant changes

Your friends at TDCJ wanted to make sure felony prosecutors are aware of a new policy they have implemented for certain parolees being detained on blue warrants alleging new, unindicted criminal conduct.

In response to the Court of Criminal Appeals opinion in Ex parte Jimenez, 2020 WL 5933212 (Tex. Crim. App. Oct 7, 2020) (seven-month detention on a blue warrant violates 41-day deadline of Gov’t Code §508.282 and related constitutional due process protections), the TDCJ Parole Division is adopting a new policy for offenders on supervision who are picked up on a blue warrant alleging criminal conduct that has not been formally charged. For those offenders who have been held for more than four months without indictment, the Parole Division will either:

• withdraw the blue warrant and the offender will be released from custody (absent another warrant or hold from a different agency); or
• request the Board of Pardons & Paroles to move forward with a revocation hearing before indictment of the new offense.

Many of you who have been unable to attend grand jury proceedings have benefitted from the suspension of the 90-day deadline under CCP Art. 17.151 (per Executive Order GA-13), but the governor did not suspend the 41-day deadline in Gov’t Code §508.282—and even if he tried, the related due process concerns may be beyond his power to suspend. Therefore, please keep this new potential consequence in mind when considering the timing of your limited grand jury presentations.

Legislative rotation

As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice legislators need to hear is yours. To help you do that, we organize a rotating schedule of volunteer slots for elected prosecutors or their surrogates who wish to come to Austin to be a part of the legislative process. If you would like to plan ahead and schedule a time to watch (or help) the sausage being made in Austin, contact Shannon for more details—he can tell you when to come, what to bring, and what to expect. (Although as noted above, we have no idea what next session will actually look like in operation, so we will proceed under the assumption that they will conduct business in person as usual until we know differently.)

[NOTE: There will be no update next week due to the Thanksgiving Day holiday; look for our next update in your inbox on Friday, December 4.]

Quotes of the Week

“The fact that we’ve got felons out on a combination of low-dollar bonds and we’ve had five dozen murders allegedly from this, it’s just got to stop.”
            —State Sen. Paul Bettencourt (R-Houston), in response to news reports of murders allegedly committed by accused felons previously released by Harris County judges on personal bonds or minimal cash bonds.

“Hate drives readership more than any of us care to admit.” 
            —Anonymous New York Times employee, quoted in a New York Magazine article analyzing how the internet, social media, and related phenomena have altered the business model of “the paper of record” (and many other traditional forms of media, no doubt).

“The reality is you gotta have someone with the moxie to stand up to the Senate and the lieutenant governor. There’s no question in my mind [Phelan] has that capacity. He’s not somebody with a weak personality and not someone who’s gonna get pushed around.”
            —State Rep. Terry Canales (D-Edinburg), quoted in an article about the challenges that presumptive House Speaker Dade Phelan (R-Beaumont) will face in his first session in that role.

“I’ve been telling everybody they should anticipate we will be in this same posture through summer of next year, if not fall. If we go till April 1, we will have over 11,000 jury trials in backlog, which is more than we try in a normal year. It means years of digging out of jury trials. We are encouraging people try the cases virtually when they can be tried.”
            —David Slayton, administrative director of the Office of Court Administration, on the latest status of the coronavirus’s impact on Texas courts.

“Pretrial diversion is a great program, and I’ll continue to do it, but I’m not going to collect donations that by law I’m not allowed to collect. … You don’t want a system where you can just buy your way out of trouble.”
            —Erin Lands, DA-elect for the 69^th Judicial District, who plans to ask state authorities to investigate her predecessor’s diversion practices. (Read the linked article to find out what went wrong, and remember that if you have questions about what you can or cannot do in your pretrial diversion programs, TDCAA is always here to help!)

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Today is the second Friday the 13^th of this year. The first was March 13. They make quite the bookends for 2020, don’t they? We’ve never considered ourselves to be triskaidekaphobians, but this year might change that!

And they’re off!

Legislators started filing bills this past Monday, with 545 bills uploaded on the first day and a total of 725 filed through yesterday. As usually happens, almost half of the pre-filed bills (325, or 46 percent of the total) are re-filed versions of legislation that failed to pass in 2019 (and sometimes 2017 and 2015 and so on; old, dead bills require only a change in number and date to refile electronically with the press of a button). The majority of pre-filed bills have been filed by Democratic members so far, including multiple House bills on major policy issues that appear to have been filed in anticipation of having a Democratic Speaker leading a Democratic majority in that chamber; in the absence of both, those bills will almost certainly have to be scaled back in aspiration if they are to have a chance of passage this session.

Of the total filed so far, we are tracking 80 of them (and counting) due to their potential impact on you or your work. Some examples include:

• HB 88 by Thompson, the George Floyd Act (and its identical Senate companion, SB 161 by West)
• HB 132 by Canales limiting civil asset forfeitures
• HB 225 by Thompson authorizing subsequent writs for new evidence
• HB 439 by Canales creating a new, lower punishment range for marijuana concentrates
• HB 447 by Moody legalizing, regulating, and taxing certain amounts of cannabis
• HB 486 by Wu raising the age of juvenile jurisdiction to include 17-year-olds

To view the text of these or any other bill, go to https://capitol.texas.gov/, enter the bill number in the search box, and press “go.” The text of the bill can be accessed via the tabs at the top of that next page, as can the history, actions, bill companions, etc.

To easily follow along with some of what is being filed, please use the bill tracking buttons on the Legislative page of our website for bills that would amend the Penal Code, the Code of Criminal Procedure, and other “Bills to Watch” (which is a curated list of bills you might hear about in the news or otherwise care about). Keep in mind, however, that we maintain more than 40 different bill tracks for various topics, so just because a bill doesn’t appear in one of the three tracks we make public on our Legislative webpage does not mean we are not following it.

(And that includes a track dedicated to bills proposed by prosecutors, so if you or someone in your office has proposed a bill that gets filed, please drop a note to Shannon and let him know so that he can be sure to follow it.)

COVID & the Lege

We know we sound like a broken record when people ask us what the first post-pandemic session will be like, but the reason we don’t know is because the people who must make those decisions still don’t know. In fact, at current COVID-19 positivity rates, it appears that this won’t be a post-pandemic session but a smack-dab-in-the-middle-of-a-pandemic session. The hope that the Lege might get to experiment with various end-of-interim hearing protocols crashed into reality this week as yesterday’s Sunset Commission meeting had to be postponed for health reasons, while a Senate Education Committee hearing kicked off this morning and took invited testimony remotely, by video only—members of the public continue to be banned from the state capitol until further notice. That appears to be the m.o. for that chamber for the remainder of the interim, as the Senate State Affairs Committee just posted notice for the only other hearing currently scheduled at the capitol and it will also be limited to invited, remote testimony only. That hearing on Wednesday, November 18, at 10:00 a.m., will take up hot-button issues from last session relating to abortion and so-called “taxpayer-funded lobbying,” perhaps giving observers an early peek into whether pandemic limitations can or will be used to stack the deck on controversial issues. To watch along from home or office, see the instructions in the hearing notice.

COVID & the Courts

The Supreme Court of Texas issued Emergency Order No. 29 on Wednesday to extend through February 1, 2021, its previous edicts limiting jury trials during the coronavirus pandemic. The new order continues to bar in-person JP and muni court criminal jury trials and imposes conditions on criminal jury trials in county and district courts, while also requiring courts to use all reasonable efforts to hold proceedings remotely and to otherwise follow OCA guidance for all proceedings.

Sunset Commission update

Speaking of the Sunset Commission: It’s rare that its recommendations merit inclusion in these updates, which is a good thing because that means reviewed agencies are generally performing as intended and merit another 12-year term before their next sunset review. That’s why we think it is noteworthy to pass along a summary of the Commission’s review of the Texas Commission on Law Enforcement (TCOLE), because that agency did not get the usual 12-year seal of approval from the Commission.

Earlier this month, the commission released a report recommending the Lege continue TCOLE for only two years while a “blue ribbon panel” reviews and recommends new and better ways to regulate law enforcement in Texas. The sunset report also recommends greater licensure and regulatory authority be given to the agency (or its successor) to modernize the oversight of law enforcement standards, training, and accountability. Those of you seeking a solution to your frustrations with Brady/Morton Act disclosures should pay attention, because this process could be a possible vehicle for a solution this session.

The Sunset Commission’s executive summary and full staff report are both available in PDF form HERE for those who want to dig deeper into the topic, keeping in mind that these are just staff recommendations at this point. A final recommendation will be made by the Sunset Commission members themselves, who are mostly legislators (along with a few public members), and then that recommendation will become a bill that must be approved by the Lege and the governor in 2021 for anything to change. That process usually takes until at least May, but it will start in earnest with a Commission vote on these staff recommendations as soon as its next meeting, which is now scheduled for the week of December 7 after being postponed this week due to coronavirus concerns.

More interim FRIs

The House Judiciary & Civil Jurisprudence Committee has issued a formal request for information (FRI) relating to its interim charges. That notice, and those topics, can be viewed at this link. Instructions for submitting comments are also found in that notice, as is their deadline of Monday, November 30, 2020. If you have questions about any of this, please direct them to Shannon by email.

CPS judge survey

The Texas Office of Court Administration (OCA) is conducting an annual evaluation of the judges of the Child Protection Courts and is seeking input from attorneys who present cases before those judges. To complete the survey, use THIS LINK. Please complete all submissions by Monday, November 16, 2020.

Legislative rotation sign-up now open

As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice legislators need to hear is yours. To help you do that, we organize a rotating schedule of volunteer slots for prosecutors who wish to come to Austin to be a part of the legislative process. If you would like to plan ahead and schedule a time to spend a few days watching (or helping) the sausage being made, contact Shannon for more details—he can tell you when to come, what to bring, and what to expect. (Although as noted above, we have absolutely no idea what next session will actually look like in operation, but we will proceed under the assumption that they will conduct business in person as usual until we learn differently.)

Quotes of the Week

“Texas’ approach to regulating law enforcement is ineffective.”
            —Heading in the executive summary of the Sunset Commission’s staff report on the Texas Commission on Law Enforcement (TCOLE).

“Allen West is irrelevant. He is a failed politician from Florida who is a petulant child trying to get his parents’ attention, and Speaker Phelan, Gov. Abbott, and others are true Republican conservative leaders who are smarter than to listen to the noise of a child.”
            —Outgoing House Speaker Dennis Bonnen (R-Angleton), defending his likely successor against internecine attacks from within their own party by newcomers who seem eager to snatch defeat from the jaws of recent electoral victories.

“He’s got dark clouds over him, there’s no question about it. … [But] if you look at his career path, and his arc, he’s been down and come back up with a vengeance, so don’t count him out.”
            —Bill Miller, Austin lobbyist, in an article recounting the difficulties facing, and already faced by, the current Texas attorney general.

“I’m not sure that this is going to be the session that it happens, but I know that this session it’s definitely going to be talked about. If nothing else, it jumpstarts the conversation about repealing [marijuana] prohibition, so we can have a conversation about how prohibition has affected the lives of people.”
            —Heather Fazio, director of Texans for Responsible Marijuana Policy, on the legislation being filed this session to legalize, regulate, and tax marijuana in Texas.

“It’s the most personal thing you can do [in the Legislature]. … It’ll be high drama, and high drama, and then high drama.”
            —State Rep. Charlie Geren (R-Fort Worth), longtime House member, on the upcoming redistricting process.

“Hispanics, especially Mexican Americans, they like this machismo, bravado, lucha libre-style politics — it’s like all-star wrestling, Trump style. It fits perfectly with the South Texas, Tejano person.”
            —U.S. Congressman Vicente Gonzalez (D-McAllen), who won re-election by only three points in a traditionally heavily Democratic district, in an article reviewing how support for law enforcement and the oil and gas industry helped Republicans make in-roads in the RGV this election cycle.

“As is the case on so many other issues, you’re seeing a huge cultural divide opening up in the country on issues relating to law enforcement and criminal justice.”
            —Dan Schnur, University of Southern California government professor, in an article discussing how criminal justice and policing reform issues played out in local prosecutor elections around the country.

“We’re expecting this to be a very long winter.”
            —Ryan Mielke, spokesman for the University Medical Center in El Paso, on the unexpected surge of COVID-19 cases breaking out in that community as it enters the historical flu season.

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Well, that was a crazy week, wasn’t it? The 2020 script writers keep one-upping themselves with each new episode. Can’t wait for the season finale!

Changes in latitudes, changes in attitudes

OK, enough of that coronavirus update stuff. We did more than 30 of them—way more than we envisioned when we started that project back in March—but now it’s time to turn our primary focus to what the Lege is (or isn’t) going to be doing come Monday when legislators can start filing bills for January’s session.

This doesn’t mean that we’ll stop passing long helpful information about coronavirus-related news in these updates. All our COVID-19 resources—including sample motions and orders, helpful information, and past coronavirus updates—will remain available HERE, and we will continue to include coronavirus-related news in this space. But going forward, these interim updates will be posted on the Legislative page of our website instead of the COVID-19 page linked above. To flip a common phrase: The virus may not be done with us, but we are darned sure done with that virus. (Bye Felicia!)

Prosecutor election results

If you missed our recounting of local prosecutor election results, check them out HERE. If we missed any relevant results, please email them to Rob. Thanks!

Election post-mortem

Now that we’ve had some sleep and a chance to sift through the rubble of Tuesday’s election, we thought we’d add a few comments to our final autopsy of this election cycle.

In a word, the Democrats’ legislative performance was abysmal. As shockingly well as they did in the 2018 mid-terms (picking up 12 seats), they did equally poorly this session by not adding a single seat to their tally. It may sound harsh to say that about an effort that did not lose any ground, but this election was all about expectations. Pundits, pollsters, and experts on both sides expected a much different outcome after the unprecedented fundraising, polling, and messaging to flip the House before a crucial redistricting session. We even had four House Democrats declaring their candidacy for Speaker before the votes were counted, no doubt in anticipation of a sweeping victory. But in the end, it was all for naught. File that away as yet another reminder that strategies created to better fight the last war are often no help in winning the next one.

But enough rubbernecking as we drive past that wreck—it’s time to focus our eyes on the road ahead. Looking forward, we will see a repeat of the power division from last session, with Republican control of all three branches of state government continuing. That will be most important during this weird, pandemic-impacted session, especially when it comes to the only two things the Lege absolutely must do: pass a budget and re-draw districts for themselves and Congress. That said, the fate of many of the issues that matter most for your job remain up in the air until the House selects a speaker and that speaker hands out new committee chairmanships and assignments.

Habemus Speaker?

Last Friday we told you “No one has a bead on who the likely front-runner is at this point, so don’t bother asking us; however, that could change by this time next week. Stay tuned!” And sure enough, there is white smoke arising from the stove pipe at the top of the capitol dome right now.

State Rep. Dade Phelan (R-Beaumont), current chairman of the House State Affairs Committee, has claimed enough bi-partisan support to win the job in January to succeed outgoing Speaker Dennis Bonnen (R-Angleton). While lightning-quick, his victory was not accomplished without some ruffled feathers. Several Republicans House members would have preferred their caucus decide the issue as a group, as provided for by previous rules to which they had agreed, but this is the second consecutive speaker race in which the presumptive Republican winner has wired around that little detail. That also caused some consternation with the state GOP party leadership and related Republican grassroots groups who openly expressed concerns about what the new front-runner may have allegedly promised to his Democratic supporters, specifically in the way of “criminal justice reform” or other hot-button social issues. Whether true or not, it’s an indication that the high profile those issues gained over the summer and throughout the recent election campaigns are likely to continue into the session.

Despite these various roadblocks, Rep. Phelan is proceeding with his planned transition into the Speaker’s Apartment while other claimants to the dais step aside. For many issues we followed for you last session, the legislators voting for and against them have remained the same; thus, the deciding factor in 2021 could be the role and priorities of the new House leadership—not just the speaker, but who he chooses to chair and serve on various committees. That could very well depend on how the speaker’s race played out behind closed doors. If giving priority to criminal justice and policing reform had a role in the Speaker’s race, it could give those issues an even higher priority than they would have already had next session. What that ultimately means in terms of output at the end of the session remains to be seen, however.

More interim FRIs

The House Judiciary & Civil Jurisprudence Committee issues a formal request for information (FRI) earlier today relating to its interim charges. That notice, and those topics, can be viewed at this link. Instructions for submitting comments are also found in that notice, as is their deadline of Monday, November 30, 2020.

In addition, the House County Affairs Committee has not formally posted a FRI but it has emailed one to us—and therefore by extension, you. If you’d like to weigh in on any of that committee’s charges or related issues they wish to explore, you can view that notice HERE. Any input or recommendations are due by Friday, November 13, 2020.

If you have questions about any of this, please direct them to Shannon by email.

CPS judge survey

The Texas Office of Court Administration (OCA) is conducting an annual evaluation of the judges of the Child Protection Courts and is seeking input from attorneys who present cases before those judges. This survey allows attorneys who represent DFPS to provide feedback on all judges employed by OCA who serve on the Child Protection Courts which oversee CPS cases. (This means you will need to take the survey separately for each Child Protection Court judge you appear before.) To the extent permitted, your responses will be maintained in confidence and OCA does not provide any responses to the judges which might identify who responded to the survey.

To complete the survey, use THIS LINK. Please complete all submissions by Monday, November 16, 2020.

The horses are in the starting gate

As we mentioned above, legislative bill filing begins on Monday. (Yes, THIS upcoming Monday.) The first week of bill filing usually sees several hundred bills filed, and we will start reviewing and tracking them for you as always. To follow along with what is being filed, use our bill tracking buttons on the Legislative page of our website and contact Shannon with any questions. But remember—no matter how good or bad a pre-filed bill looks, nothing can happen to it for another 60–90 days, so keep your powder dry! We don’t even know who will be in what positions next session, so until that political game of musical chairs ends, keep your cards close to your vest.

Legislative rotation sign-up now open

As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice legislators need to hear is yours. To help you do that, we organize a rotating schedule of volunteer slots for prosecutors who wish to come to Austin to be a part of the legislative process. If you would like to plan ahead and schedule a time to spend a few days watching (or helping) the sausage being made, contact Shannon for more details—he can tell you when to come, what to bring, and what to expect. (Although on that last point, we have absolutely no idea what next session will actually look like in operation, so we will proceed under the assumption that they will conduct business in person as usual until we learn differently.)

Quotes of the Week

“It’s a massive disappointment. You cannot classify it as anything other than a total failure.”
            —Colin Strother, Democratic campaign consultant, on that party’s disappointing results in Congressional and legislative races throughout Texas.

“[Mid-term results in] 2018 allowed all of the Republican candidates to really have a wake-up call in Texas.”
            —Matthew Langston, Republican consultant, quoted in that same linked article.

“That’s something a lot of members and others have been talking about for a while now. I don’t know how palatable that’s going to be to a lot of members, to be told that they’re going to have to limit what they’re doing.”
            —State Rep. Donna Howard (D-Austin), on whether legislative leaders might try to impose limits on how many bills each legislator can file during the upcoming session.

“Literally the two things Nevada is known for is COUNTING THINGS and STAYING UP ALL NIGHT!!!! <over a .gif of Joe Biden saying, “C’mon man!”>”
            —A viral tweet by Diya Mishra, in response to the news that Nevada officials were temporarily stopping their vote counting on Wednesday night.

“Y’all think your election night was exciting … we had a bat chasing us around in the courthouse. Quite a site [sic]. The red dot in the picture is the tip of a dart, my county judge killed it with a blow gun. Election 2020!!!”
            —Bena Hester, Briscoe County clerk [Sorry we don’t have the photo to go with it, we were only texted this part—but it made us proud to be a Texan!]

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Best of luck to everyone on the ballot for next week’s primary contests.

DPS crime lab announcement

By now most of you have seen the letter DPS issued last week announcing its plan for how to eat the elephant that is marijuana THC quantification. (Answer: One leafy felony bite at a time, but no misdemeanors and no edibles.) And even that promised testing for felony plant material appears to be slowed once again—first it was to be ready by January, then February, now more like June or July. But we guess that’s a start, at least when it comes to felony-level amounts. Ultimately this problem is one of simple math: Too many cases plus not enough money from the Lege equals no state testing and hard choices for local officials. It’s the definition of an unfunded mandate, but it’s not the first to roll downhill from Austin, nor will it be the last.

As for what to do with evidence in the approximately 80,000 misdemeanor marijuana arrests that occur in Texas every year, our advice might best be summed up as “¯\_(ツ)_/¯.” There may be some creative half-solutions and work-arounds available to you depending on your local resources, but our only rock-solid recommendation is to do the best you can with what you have and try not to get stuck taking the blame for a problem not of your making.

Sexual assault audit

The State Auditor’s Office (SAO) has gone live with its legislatively-mandated survey to collect information from district attorneys’ offices about their processes for screening and prosecuting sexual assault crimes. All felony prosecutors should have received a link by email to complete that survey, but for those of you who have not started the survey, another link reminder will be sent in the coming weeks. If you have not received that link but want to get started on it sooner, please contact [email protected] or call Thomas Mahoney at 512/936-9500. The online survey will be accessible through Friday, March 20, 2020.

Firearm admonition

The Texas Judicial Council met earlier this month and among the items on the agenda was the promulgation of a rule requiring a post-sentencing admonition (in appropriate cases) regarding a person’s ineligibility to possess a firearm or ammunition. The proposed rule can be read here, although it may be further tweaked before final publication and adoption. It remains to be seen how this new judicially-created admonition will work in practice once it is imposed statewide (at a yet-to-be-determined date), but be wary of its potential to create additional post-conviction litigation.

Free mental health books

The Judicial Commission on Mental Health (JCMH) has two FREE publications to share with you:

1) The Texas Mental Health and Intellectual and Developmental Disabilities Law: Selected Statutes and Rules combines relevant civil and criminal law into one code book and is available from the JCMH at [email protected]; and
2) The Second Edition of the JCMH Bench Book has been reprinted and can be requested via that same email address.

But that’s not all!

NAMI Texas also recently published the 6^th edition of its Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide by Texas Tech School of Law professor Brian Shannon. As with previous editions of this book, NAMI Texas will use grant funds to distribute free copies to Texas judges, prosecutors, criminal defense attorneys, and others, and the publication is also available for downloading in PDF format at https://namitexas.org/texas-criminal-justice-guide/. The book was made possible through a grant from the Texas Bar Foundation.

Interim committee hearing recaps

Some observations from interim committee hearings held this month … the Harris County Attorney’s Office appeared before the House Ways & Means Committee seeking the authority to recover tax delinquency collection costs via a proposed fee that would eliminate the need to file a lawsuit first. As you might imagine, that reasonable idea was not popular with several witnesses who have a dog in that hunt and claim that only a private, third-party tax collection firm (like one rhyming with “binelarger”) can do this work effectively, so how that idea fares at the Lege next session remains to be seen. … The House Higher Education Committee heard complaints about the lack of criminal prosecutions for college hazing incidents and hopes that new laws in that area might increase the profile of those cases. … The Senate State Affairs Committee got an update on human trafficking, including testimony from TDCAA President (and Rockwall County CDA) Kenda Culpepper and new staff at the Attorney General’s Office tasked with those duties, in what was a very cordial, collaborative presentation. That committee also took testimony on low-level theft enforcement and heard from Dallas County CDA John Creuzot about the challenges of implementing evidence-based anti-recidivism measures to address that issue and related problems. … And the Senate Transportation Committee considered suggestions to reduce traffic fatalities in Texas, including those caused by intoxication (the second-leading cause of motor vehicle fatalities in 2019) and distracted driving. Among the options presented from other states were mandatory motorcycle helmet laws, automated speed enforcement, and DWI sobriety checkpoints—all of which have been successful elsewhere but are politically unviable here.

Interim committee hearings

Legislative committees have posted notice for the following interim hearings in March:

House Committee on Pensions, Investments, & Financial Services
Monday, March 9, 2020, at 10:00 a.m.
Capitol Extension Room E2.026, Austin, TX
Relevant topics: Implementation of HB 2945 (combatting fuel pump credit card skimmers)

Senate Select Committee on Mass Violence Prevention & Community Safety
Tuesday, March 10, 2020, at 9:00 a.m.
Capitol Extension Room E1.036, Austin, TX
Relevant topics: Potential regulation of stranger-to-stranger gun sales

House Select Committee on Mass Violence Prevention & Community Safety
Wednesday, March 11, 2020 at 9:00 a.m.
Student Center Ballroom, University of Houston, Houston, TX
Relevant topics: Criminal history data and firearms; digital media threat detection; cybersecurity

Senate Committee on Health & Human Services
Monday, March 30, 2020, at 9:00 a.m.
Capitol Extension Room E1.012, Austin, TX
Relevant topics: DFPS placements and terminations; family preservation; community-based care

Use the hyperlinks above for more details about each hearing. If after reading a posted notice you still have questions, contact Shannon for more information.

Crimes Against Children Conference

Online registration for our Crimes Against Children Conference is now open. The course will be held in mid-April at the Omni Westside Hotel in Katy, just west of Houston. For more information or to sign up online, visit https://www.tdcaa.com/training/crimes-against-children-conference/.

National Computer Forensics Institute Course

Registration for various National Computer Forensics Institute (NCFI) Prosecutor Courses are now available online at https://ncfi.knack.com/digitalevidenceforprosecutors. These five-day courses focus on digital evidence, computer forensics, and social networks for state and local prosecutors. All costs associated with the course (including travel) are covered through the federal government. The dates for the courses are June 8–13, July 13–17, July 27–31, August 24–28, and September 14–18 for Digital Evidence for Prosecutors (DEP); and September 21–25 for Advanced Digital Evidence for Prosecutors (ADEP). The deadline to apply is March 13, 2020.

Quotes of the Month

“At a minimum, it will affect rural law enforcement—who don’t have the resources for this—and rural prosecutors.”
            —A.J. Louderback, Jackson County Sheriff, on the impact of DPS’s formal decision to not accept misdemeanor marijuana cases for THC testing.

“I’m happy to see higher parole approval rates, but it shows that parole approval is based on whether the state wants to save money—not whether people are good candidates for parole.”
            —Doug Smith, policy analyst with the Texas Criminal Justice Coalition, attributing the recent announcement that TDCJ will close two more prison units to an increase in parole approval rates, or what he terms a “parole kick-out.”

“It’s not a simple answer. That’s part of the problem with some of these questions. You’re forced into a purity test and it’s a yes or no answer.”
            —Glenn Rogers, Republican candidate for an open Texas House seat located between Fort Worth and Abilene, on why he retreated from opposing a ban on so-called “taxpayer funded lobbying” after receiving criticism from certain party activists.

“The sands continue to shift in the politics of the Democratic party. A platform that seemed progressive four years ago now seems outdated and not ambitious enough. … Prosecutors are supposed to be these hard-nosed, cigarette-stubbing, coffee-swilling attorneys who are putting criminals behind bars. A progressive prosecutor seems to be a bit of an oxymoron. But they’re becoming more common in these big urban areas.”
            —Brandon Rottinghaus, University of Houston political scientist, in a Texas Monthly article about the Democratic primary race for Harris County DA.

“Absolutely. I have less confidence in the criminal justice system. … If you can go into a grand jury and you don’t even have to record anything, and then if you happen to lie to the grand jury—if you’re the DA and you lie—there’s no consequence for that, and there’s no remedy for the defendant. … We have, I think, one of the worst grand jury systems in the country.”
            —Ken Paxton (R-McKinney), Texas Attorney General, on a recent episode of Y’all-itics, WFAA’s Texas politics podcast, when asked if his pending criminal case has changed his view of the criminal justice system. (For his full comments on proposed grand jury reforms, start at the 35:20 mark of this video.)

“… I think [being] a prosecutor is an honorable job. I am disheartened that the work is not being portrayed the way it should be.”
            —Jackie Lacey, Los Angeles (CA) DA running for re-election in that county’s upcoming Democratic primary, responding to attacks from certain criminal justice reform advocates in that state.

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