Deadlines are nigh, and as time gets short, so do the fuses of some of the people working under the pink dome. If you reach out to a legislator or staffer and they seem more stressed than usual, please try to show them a little understanding and grace. There’s too little of that in the building right now.

Preview

Only 10 days remain before sine die on Memorial Day. Hundreds of bills are still moving through committees today in a last-ditch attempt to meet impending deadlines, and we’re doing our best to keep track of as much of it as we can. As a result, this update may be skimpier than usual because the fur is still flying. Legislators will also work on the floor tomorrow in an effort to beat some of these upcoming deadlines:

Saturday, May 20:  House committee reports on Senate bills must be filed
Sunday, May 21:  Final House calendar of Senate bills must be printed by 10 p.m.
Tuesday, May 23:  All Senate bills must be approved by House on 2nd reading before midnight
Wednesday, May 24:  All Senate bills must be approved by House on 3rd reading before midnight; all House bills must be approved by Senate on 2nd and 3rd reading before midnight.

When legislators return to work next Thursday morning, all that will remain to do is work on bills passed by both chambers in different forms that need to be reconciled and finally approved by both chambers by next Sunday. No substantive work can be done on Monday, May 29, the 140th and final day of the session.

Funding updates

Just the facts, ma’am. Here goes:

Pay raise in budget (HB 1)
The HB 1 Conference Committee disclosed some preliminary results of its negotiations over conflicts between the House and Senate versions of the next state budget. On the judicial pay raise front, the committee rejected the House’s proposed 10-percent raise in the judicial benchmark salary. (Not a surprise to us because the Senate was never on board with that idea.) As a result, any judicial branch pay raise now depends on the fate of HB 2779 (see next).

Pay raise bill (HB 2779)
Yesterday, the Senate Finance Committee laid out a new committee substitute for HB 2779 by Leach/Huffman. The version previously approved by the House would raise the judicial and prosecutor base pay of $140,000 by 22 percent over the next biennium but also freeze future retirement benefits for felony prosecutors absent an increase recommended by the Texas Ethics Commission (TEC)—that last bit being added by floor amendment before final passage in the House. However, the new version considered by the Senate Finance Committee is completely different.

Rather than an across-the-board raise, the Senate committee substitute to HB 2779 (PDF version viewable HERE) creates a new third tier of salary providing a 10-percent pay raise after 12 years of service ($182,000). The bill also pushes back the current judicial longevity bump of 5-percent of a judge’s current salary to apply it after 14 years of service instead of 12. (NOTE: SB 2310 by Hinojosa/Smith—which makes tenured elected felony prosecutors eligible for that same 5-percent judicial longevity increase—will fit seamlessly with this committee substitute language so that those prosecutors can also claim it. If our math is correct, that would result in a state salary of $191,100 after 14 years of service. More on that bill’s status below.) However, this new version of HB 2779 does freeze in place retired judges’ and prosecutors’ ERS benefits with no TEC option for an increase.

The substitute version of the bill was approved by the committee and will be eligible for consideration by the full Senate in a few days. You may hear some discontent from your judges about this change in HB 2779, but we are a little surprised by that reaction. Yes, this is a more targeted raise than the judges wanted, but it is no shock to us that the Senate would balk at increasing the salaries of local officials they have been criticizing for much of this session (see, e.g., SB 20 by Huffman [“rogue DAs”] and SB 21 by Huffman/Leach [“rogue judges”]). When viewed through that prism, this more limited Senate version makes sense. However, some of the judges who testified on the bill yesterday clearly did not get that memo and made clear their displeasure at the change—to the point where it would not have surprised us if the Senate committee just scrapped the whole thing. However, there were other, more astute witnesses who still testified in support of this slimmed-down raise, including Comal County CDA Jennifer Tharp. Despite getting a copy of the new proposal only minutes before testifying, she supported the proposal and thanked Chairwoman Huffman and her committee and staff for the many bills that are financially advantageous to prosecutors which are still moving toward final passage this session.

Should HB 2779 pass the Senate in this new form next week, it will then return to the House, which will either concur with the Senate’s changes or ask for a conference committee to hash out the details. How that will end up is anyone’s guess, but one thing we can tell you is that HB 2997 appears to be the only remaining vehicle for any kind of judicial pay raise now that the HB 1 Conference Committee has rejected a general across-the-board increase.

Pay parity longevity bump for elected felony prosecutors
As we mentioned above, SB 2310 by Hinojosa/Smith (pay parity with judges) passed the House on its Local and Consent Calendar this morning and will be on its way to the governor’s desk soon.

Cross-credit for elected prosecutors and judges
The language granting elected judges and prosecutors credit for their service in the other role is part of HB 3474 by Leach/Hughes, this session’s omnibus court administration bill, which is eligible for approval by the full Senate as soon as today.

Rural prosecutors grant funding
There are still two bills that could deliver substantial financial aid to local prosecutors seeking help to recruit and retain good employees. Unfortunately, HB 1487 by Gerdes (R-Smithville) has not received a hearing in the Senate Local Government Committee and is on life-support right now. However, SB 22 by Springer/Guillen passed the House this week (after the adoption of an amendment removing new language allowing funds to be used for elected prosecutor salaries) and now returns to the Senate. We have been told that the Senate is still not keen on some of the constable-related changes made in the House, so we expect the bill to go to a conference committee to iron out those differences. The last day for both chambers to adopt agreed versions of bills in conference is Sunday, May 28.

Urban prosecutor local budget protections
SB 740 by Huffman (limiting urban counties’ ability to reduce prosecutor budgets) passed the House State Affairs Committee this week and is now in the House Calendars Committee.

Prosecutor accountability bills

As of the time of this update being posted, there has been no House action on SB 1195 by Hughes (R-Mineola), the bill purporting to give the attorney general some (unconstitutional) prosecution powers over certain crimes. If that holds true for another 36 hours, that bill will be dead.

On the prosecutor removal front, the Senate version of HB 17 by Cook/Huffman—which is identical to the Senate sponsor’s SB 20—is awaiting approval by the full Senate as early as today. The bill will then likely go to a conference committee for the two chambers to hash out their differences.

There are two other bills that might fit under this (admittedly vague) category and are still moving. One is SB 2208 by Parker/DeAyala to move the “neighboring county” venue provision of the Election Code into the Code of Criminal Procedure, where it will also apply to non-Election Code crimes that are related to an election. That bill is in the House Calendars Committee.

The other is SB 409 by Hinojosa/Leach, an unobjectionable bill clarifying and expanding certain victims’ rights, which took on a surprise House floor amendment of language from HB 3786 by S. Thompson, a bill being pushed by the Texas Association Against Sexual Assault (TAASA) to allow victims to enforce various rights through mandamus or injunctive intervention in a criminal case. That stand-alone bill had been opposed by no fewer than nine prosecutors when heard in a House committee earlier this month and the bill has not been heard in the Senate, but the language from the bill suddenly reappeared as an amendment to SB 409 and was adopted without discussion on the House floor before the bill was passed in the lower chamber. Fortunately, the Senate author of SB 409 has refused to accept that amendment, so the bill will now go to a conference committee to strip out that late surprise addition before passing the underlying, agreed version of the bill on to the governor. There will certainly be further discussions about that proposal over the interim, though, so if this is an issue that interests you, contact Shannon to be included in those future debates.

Signed by the governor

Welcome to a new category!

For those who remember your Texas civics lessons, bills passed by the legislature automatically become law without the governor’s approval after a certain period of time because Texas law has no “pocket veto” provision, unlike the federal system. However, most governors like to sign bills into law for the PR value, so a host of bills were recently signed into law by Governor Abbott. Among those was SB 1325 by Alvarado/Goodwin “relating to the notice given to certain victims of family violence.” That’s a new notice requirement that will kick in on January 1, 2024, according to the terms of the bill. But remember, most bills will take effect on September 1, 2023, and some bills can take effect immediately upon being signed by the governor.

If you are wondering how you will keep up with all those different effective dates, never fear! Check this space in June for details about our upcoming Legislative Update CLEs where we will cover all the important changes coming your way, including effective dates!

Sent to the governor

Bills on their way to the governor’s desk include:

HB 28 by Slawson/Birdwell increasing punishments for certain aggravated assaults
HB 63 by Swanson/Sparks eliminating anonymous reporting of child abuse or neglect
HB 165 by A. Johnson/Whitmire increasing punishments for certain mass shootings
HB 598 by Shaheen/Whitmire creating a new criminal offense for the possession of an animal by someone previously convicted of animal cruelty
HB 1760 by Hefner/Hughes clarifying the scope of the Places Weapons Prohibited crime
HB 2015 by Leach/Zaffirini raising the age of jury service exemption to 75
HB 2306 by Hefner/Middleton expanding the offense of voyeurism
HB 2545 by Capriglione/Johnson restricting access to DNA from direct-to-consumer genetic testing companies
HB 3345 by Bonnen/Huffman doubling the sexually-oriented business “pole tax” to $10
SB 224 by Alvarado/Leach increasing punishments for the theft of a catalytic converter
SB 372 by Huffman/Leach criminalizing the leaking of draft judicial opinions
SB 728 by Huffman/Leach including juvenile mental health information in firearm background checks
SB 1124 by P. King/Neave Criado imposing qualifications to be a sheriff or candidate for sheriff
SB 1725 by Hughes/Leo-Wilson relating to expunctions for certain alcohol-related offenses
SB 2310 by Hinojosa/Smith regarding longevity pay parity for elected felony prosecutors

Future floor debates

Senate bills cued up for consideration by the full House today and in coming days include (in order of docketing):

SB 1045 by Huffman/Murr (creating 15^th Court of Appeals for civil cases involving the state)
SB 1445 by Paxton/Goldman (TCOLE sunset reauthorization bill)
SB 12 by Hughes/Shaheen (restricting certain sexually-oriented performances)
SB 129 by Springer/Meyer (child pornography punishment ranges based on number of images)
SB 1518 by King/Guillen (terrorist offender registry)
SB 402 by Whitmire/Harless (trial court priority for murder and capital murder cases)
SB 386 by Hall/Harless (presumption in capital murder cases involving peace officer victims)
SB 338 by Hinojosa/Leach (ban on State’s use of hypnotically-induced statements at trial)
SB 991 by Hinojosa/Leach (creating a DPS crime lab portal for discovery)

House bills eligible for consideration by the full Senate today and tomorrow include:

HB 17 by Cook/Huffman (removal from office of prosecutors)
HB 291 by Murr/Hughes (occupational driver’s licenses)
HB 420 by Slawson/Flores (increasing punishments for providing alcohol to a minor)
HB 422 by VanDeaver/Perry (remote proceedings for juvenile detention hearings)
HB 3474 by Leach/Hughes (omnibus court creation and administration bill)
HB 3956 by Smith/Creighton (DNA collection upon felony arrest)
HB 5010 by Schofield/Hall (limitation on filing of State Bar grievances)

Future committee hearings

None. Amen.

Scattershooting

Here are some recent stories you might’ve missed:

• “GOP-Backed Laws Could Oust Local Prosecutors” (Bloomberg News)
• “Texas budget writers move to block funding for AG Paxton’s $3.3M whistleblower settlement” (Dallas Morning News)
• “Drug Overdose Deaths Topped 100,000 Again in 2022” (Wall Street Journal)
• “GOP border bill expanded to stiffen penalty for human smuggling, create border-crossing crime” (Texas Tribune)
• “It Doesn’t Matter How Strong Texas’ Election Laws Are Until Someone Enforces Them” (TPPF)
• “The Dangers of Prosecutorial Nullification” (The Dispatch)

Quotes of the Week

“It’s the Stone Age again.”
            —Douglas Huff, president of the Dallas Criminal Defense Lawyers Association, as quoted in this Dallas Morning News article on the inability of the Dallas Police Department to access evidence in the wake of a hostile ransomware attack.

“Unfortunately, if this bill were to pass, those 1,000 children would be left to continue experiencing abuse and neglect or worse. Leaving children in danger can have disastrous consequences. Last year, 182 Texas kids died of abuse and neglect.”
            —Kate Murphy, director of child protection policy at Texans Care for Children, testifying in opposition to HB 63 by Swanson/Sparks, which proposes to eliminate anonymous reports of child abuse or neglect. Ms. Murphy noted that there were more than 12,000 anonymous reports in 2022, of which about 1,000 resulted in a substantiated finding of abuse or neglect. (The bill passed the legislature yesterday and is now headed to the governor’s desk.)

“We do think we need to consider increases in the base pay as we go forward, and I’ll tell for you a different reason that what you’ve heard: The voters of Texas need to fire some of their judges. They just do. We’ve got lots of good, hardworking judges in Texas who are following the rule of law, but we’ve got a few out there that just don’t care what it is that you all have done legislatively in the statutes of this state. They’re not paying attention to it. They’re deciding cases based on whatever they think is right [at] that given period of time. They need opponents. To get good opponents, those opponents need to know that the pay is going to be worthwhile, taking that risk in their job to go run for election. So, for reasons that I don’t think anybody else will tell you, we’ll tell you the voters need to fire some judges and the new judges need to think that it’s worthwhile to go run for office. So, thank you for what you’re doing.”
            —Lee Parsley, general counsel for Texans for Lawsuit Reform, testifying in favor of HB 2779 by Leach/Huffman (judicial pay raise bill). (To view the full 25-minute discussion of that bill in committee, fast forward to the 32:00 mark of this archived video.)

###

(updated May 12, 2023 at 3:40pm)

Two(-ish) weeks remain in this crazy session. We are tempted to tell you that you have “two weeks to stop <insert bill you don’t like here>,” but that didn’t work with COVID, so we won’t jinx you.

Preview

As this update goes out, the House is working through the rubble of the hundreds of House bills that died at midnight last night, passing the “winners” on final (third) reading and sending them to the Senate. In that upper chamber, senators are working on the floor today for their first Friday of the session. Next week, both chambers will focus on bills from the other side, marking a reduction in the amount of legislation still in play for these final two weeks to “only” about 2,500 bills, 400+ of which we are still tracking (or trying to track).

Due to the sausage-making and deal-cutting that occurs before every impending deadline, we know that some bad stuff happened the past few days—we just don’t know what it is! We will try to review the hundreds of bills and amendments that were crammed through the meat-grinder this week with little or no discussion or debate, so don’t be surprised if we issue some mid-week updates in the coming days upon discovery of the inevitable legislative skullduggery that occurs at the end of every session.

Funding updates

We’ve got more news on this front that you can shake a stick at, but we’ll give it a shot:

Pay raise bill
Earlier this week, the House has passed HB 2779 by Leach (R-Plano) to raise the judicial and prosecutor base pay of $140,000 by 22 percent over the next biennium. We warned you in last week’s update that ERS has asked the legislature to freeze future retirement benefit increases at current levels for certain retired judges in JRS 1 and felony prosecutors in ERS, and HB 2779 passed with one twist—an amendment that froze elected prosecutor retirement benefits, but not those for JRS 1 judges. That will cost the state an extra $8 million over the biennium, but hey, they have fancy robes and must be more important than you, right? Consider this another reminder that elected felony prosecutors might want to explore a return to TCDRS for retirement benefits in the upcoming interim.

Pay raise in budget
Regardless of the fate of HB 2779 in the Senate (where such pay raise proposals have always had a cooler reception), the House version of HB 1 already includes funding for a 10-percent increase in the judicial benchmark salary. That does not require separate legislation to pass—nor does it freeze retired felony prosecutors’ benefits—but there was no similar language in the Senate version of the budget bill. Accordingly, the fate of both of these proposals is still up in the air.

Rural prosecutors grant funding
Good news on two fronts here. First, SB 22 by Springer/Guillen was reported from the House County Affairs Committee this week and is now scheduled for debate on the House floor on Monday. That is the original bill to send a total of about $50 million per year to certain local prosecutor offices (in counties of less than 275,000 population) throughout the state for personnel costs. However, the committee substitute version includes an unanticipated addition that needs to be removed to ensure its acceptance in the Senate. Specifically, Rep. Bryan Slaton (R-Royce City)—who was a member of the County Affairs Committee before his historic expulsion from the chamber earlier this week—added a provision that would allow an elected prosecutor to claim the entire grant award from the state for his or her personal salary. This was never discussed in the committee, nor was that idea ever mentioned to us as a possibility before it was added and passed out of the committee. We have also been told that such an addition is a deal-breaker in the Senate, so we anticipate that new wrinkle being ironed out of the bill on the House floor.
In related news, those of you who heeded our mid-week alert about HB 1487 by Gerdes (R-Smithville) to ask your House members to approve an amendment adding prosecutors into that sheriff/constable grant program were successful! The amendment was adopted and then passed as part of the bill on third reading, so that measure now heads to the Senate with prosecutors included in it. As a result, the two similar (but not identical) measures to provide significant funding to some of your offices are both progressing, which is always good news at this late stage.

Urban prosecutor budget protection
SB 740 by Huffman (limiting urban counties’ ability to reduce prosecutor budgets) is scheduled for a hearing before the House State Affairs Committee on Monday afternoon (see committee posting below for more information).

Cross-credit for elected prosecutors and judges
The language that grants elected judges and prosecutors credit for their service in the other role was originally filed as HB 2734 by Murr (R-Junction) and was also added to HB 3474 by Leach/Hughes, this session’s omnibus court administration bill. That latter bill passed the House and then passed the Senate Jurisprudence Committee this week. It now heads to the Senate Intent Calendar as soon as next week.

Pay parity longevity bump for elected felony prosecutors
SB 2310 by Hinojosa/Smith (pay parity with judges) was reported from the House Judiciary & Civil Jurisprudence Committee and recommended for that chamber’s Local and Consent Calendar. Furthermore, Senator Hughes (R-Mineola) accepted a request to include that same language into his Senate version of HB 3474, the omnibus court admin bill mentioned above. As a result, both of the priority bills recommended by TDCAA’s Compensation Committee (cross-credit and pay parity) are now part of HB 3474. If that bill passes the Senate in the next week or so and returns to the House, Rep. Leach (R-Plano) will then decide whether to accept the Senate changes or go to a conference committee to work out any differences.

Whew! OK, that was a lot to cover. But now, the inevitable caveat: ANY OR ALL OF THIS COULD GO SOUTH AT ANY TIME. Those of you who remember how the last regular session ended in 2021 don’t need us to tell you that. So please, don’t start counting any chickens before they’ve hatched. There is a lot of work (and maybe some praying!) yet to be done on these measures.

Prosecutor accountability bills

AG prosecutions
Last week, we told you about an AG-as-prosecutor measure—SB 1195 by Hughes (R-Mineola)—that was quickly rammed through committee. After several days of delay, the bill was called up today at 2:20 p.m. for consideration on the Senate floor when one of the bill’s opponents was absent. That allowed the author to suspend the 5/9ths Rule on a 17—13 vote (the bare minimum needed to bring it to the floor). Several Democratic senators raised questions about the bill’s constitutionality and how the bill would work in practice, but the result was pre-ordained. The bill now carries over to next week to await final approval on third readingpasses to the House for referral to a committee next week.

Interestingly, one of the bill author’s stated reasons for the bill is to not only provide a back-up prosecutor, but to mandate that the AG prosecute the case—which, if read literally, would also make the bill unconstitutional as a violation of prosecutorial discretion (regardless of who the prosecutor is). But as we’ve noted before, this is not about constitutional prosecutions.

Prosecutor removals
As with SB 1195 last week, this week we had another short-notice hearing in a Senate committee yesterday on a “prosecutor accountability” bill. Specifically, HB 17 by Cook/Huffman—the bill to define misconduct in removal proceedings to include the adoption or announcement of certain non-prosecution policies—was heard in the Senate State Affairs Committee after barely a day’s notice before it happened (and if you haven’t already figured it out, this will be par for the course on many bills going forward). The substitute version of HB 17 that was laid out in committee is essentially the language the Senate already passed as SB 20 by Huffman. At the hearing, Smith County CDA Jacob Putman testified “on” the bill and Williamson County DA Shawn Dick testified against the bill, and several election- and abortion-related witnesses also weighed in for or against it.

The bill was left pending, but we expect it to be voted from committee today or Monday. This old-is-new-again version of HB 17 will then be eligible for Senate floor debate next week, and we expect it to pass by a partisan margin similar to that of SB 20 a month ago. Our best guess at this point is that the House will then refuse to agree to the Senate language (because SB 20 has not moved in the House the past month), and then the two chambers will form a conference committee to work out their differences behind closed doors.

Bring out your dead

Last night marked the deadline by which all non-local and consent House bills had to receive approval on second reading. Assuming those bills are finally approved on third reading today, they survive and advance, but all other House bills not sent to the Senate by the end of business today will be dead. Or at least dead in bill form, that is; the language from a dead bill can always re-appear as a floor amendment to another bill, so nothing is truly over until sine die.

So, what House bills turned to pumpkins at the stroke of midnight last night? Some that we’ve been following for you this session that are now dead by procedural action include:

HB 200 by Leach (creating a prosecutor disciplinary council)
HB 799 by Cody Harris (anti-Brady list bill)
HB 1258 by S. Thompson (grand jury reforms)
HB 1627 by Hernandez (mandated implicit bias training for all judges and lawyers)
HB 1874 by Noble (recovery of defendant’s attorney’s fees in civil asset forfeiture proceedings)
HB 2843 by Kuempel (casino gambling)
HB 3247 by Cain (creating criminal offense of prosecutorial misconduct)
HB 3675 by Ortega (mandatory management training for certain elected prosecutors)
HB 4487 by Smith (student loan repayment for rural prosecutors and public defenders)

Sent to the governor

Bills on their way to the governor’s desk include:

HB 467 by Craddick/Flores extending the statutes of limitations for certain assault offenses
HB 914 by Hefner/Whitmire criminalizing certain temporary vehicle tag offenses
HB 1088 by A. Johnson/Whitmire allowing OAG to represent CSCD officers in certain lawsuits
HB 1207 by Guillen/Flores extending the statute of limitations for tampering with a dead body
HB 1910 by Anchia/N. Johnson creating a presumption in certain forgery cases
SB 435 by Middleton/Bonnen authorizing pre-trial disclosure of certain evidence to homicide victims’ families
SB 840 by West/Anchia increasing penalties for assaulting certain hospital personnel
SB 1319 by Huffman/Turner authorizing overdose mapping for public safety purposes
SB 1527 by Huffman/Thompson, this session’s omnibus human trafficking bill

One chamber down, one to go

The bills on this next list are halfway home. Speak now or forever hold your peace.

The following House bills passed the House this past week:
HB 7 by Guillen (border security and border grant programs)
HB 182 & HJR 11 by S. Thompson (court-initiated commutations of parole)
HB 327 by S. Thompson (making duress a subjective defense)
HB 361 by S. Thompson (limiting incarceration for defendants who are parents)
HB 381 by S. Thompson (pretrial procedures for excluding defendants with intellectual disabilities from the death penalty)
HB 800 by Guillen (mandatory minimum punishments for smuggling-related offenses)
HB 905 by Moody (time credits for confinement on other charges)
HB 1215 by Cook (barring public employers from considering criminal histories before hiring)
HB 1977 by Morales Shaw (pretrial intervention program for certified juveniles in adult court)
HB 2129 by Burns (merchant-run theft education programs as an alternative to arrest for theft)
HB 2646 by Jarvis Johnson (exempting TDCJ inmates from paying court fines/fees)
HB 2687 by Leach (excluding children under 13 from juvenile jurisdiction)
HB 2992 by Harrison (asset forfeiture reporting + a new ban on forfeiting vehicles of < $10k)
HB 3183 by Schatzline (limits on use of in-custody informants as witnesses)
HB 3782 by Guillen (creating a state border protection task force for enforcing immigration laws)
HB 3786 by S. Thompson (granting victims injunction/mandamus powers in criminal cases)
HB 3882 by Wilson (allowing participation in veterans courts over prosecutor objection)
HB 4382 by Guillen (mandated CJIS reporting and consequences for state grants)
HB 4507 by Moody (price gouging lawsuits filed by county attorneys)
HB 4518 & HJR 172 by Cook (prosecutor-initiated resentencing [commutation of old cases])
HB 4642 by Guillen (yet another criminal offense for causing death by fentanyl)
HB 5007 by Plesa (automatic expunction of acquittals)
HB 5159 by Bhojani (additional jury argument after Allen charge)

The following Senate bills passed the Senate this week:
SB 1579 by Bettencourt (expedited PIA reviews requiring new PIO training and fines of local entities for abuse)
SB 2208 by Parker (concurrent jurisdiction for election crimes in neighboring counties)

Future committee hearings

Some of the bills scheduled to be heard in committees next week are listed below. For the full agenda of each committee, click on the link to the committee itself.

Monday, May 15

House State Affairs – 1:30 p.m. or upon final adjournment, Room E2.012

• SB 740 by Huffman limiting budget reductions for prosecutors in certain urban counties
• SB 950 by Kolkhorst authorizing OAG to defend certain prosecutors sued in federal court

Tuesday, May 16

House Criminal Jurisprudence – 8:00 a.m., Room E2.016

• SB 436 by Middleton increasing penalties for purchasing/selling human organs
• SB 726 by Kolkhorst increasing penalties for intoxication manslaughter of multiple victims
• SB 1011 by Parker increasing punishments for certain human trafficking offenses
• SB 1267 by Parker increasing punishments for operating a stash house
• SB 2593 by Springer creating a retroactive defense for law enforcement defendants who cause bodily injury or serious bodily injury by less-lethal projectile devices

Senate Criminal Justice – 8:30 a.m., Room E1.016 <*added*>

• HB 420 by Slawson increasing penalties for providing alcohol to minors
• HB 422 by VanDeaver authorizing remote proceedings in juvenile detention hearings
• HB 844 by Patterson relating to crime victims’ compensation and human trafficking
• HB 1184 by Rose relating to criminal history record information used for research
• HB 1427 by Campos creating a new manner and means for harassment
• HB 1769 by Meyer extending certain statutes of limitations
• HB 2620 by Geren relating to state compensation for inmates in county jails
• HB 2670 by Howard relating to making permanent the Sexual Assault Survivors’ Task Force
• HB 2700 by Guillen relating to sexually explicit visual material involving children
• HB 2877 by T. King relating to crime victims’ compensation
• HB 2897 by Walle relating to theft of service cases
• HB 3025 by Vasut relating to interference with child custody offenses
• HB 3186 by Leach relating to youth diversion procedures in fine-only offenses
• HB 3553 by Thierry increasing penalties for certain human trafficking cases
• HB 3554 by Thierry increasing penalties for certain other human trafficking cases
• HB 3660 by Vasut creating a defense in the cruelty to non-livestock animal offense
• HB 4528 by Wilson relating to the driver’s license of a person who fails or refuses certain intoxication-related tests
• HB 4879 by Holland relating to incident-based reporting of crime statistics
• HB 4906 by Hefner authorizing tracking equipment use by certain peace officers

Wednesday, May 17

Senate Transportation – 8:00 a.m., E1.016

• HB 291 by Murr revising occupational driver’s license laws

<< Please visit our Legislative webpage for the latest committee postings.>>

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas bill creating new state border unit killed by Democrats but GOP keeps effort moving” (Dallas Morning News)
• “Could proposed Texas bills to ban drag shows also ‘criminalize’ Dallas Cowboys cheerleaders?” (Fort Worth Star-Telegram)
• “Daniel Perry is sentenced to 25 years for killing an Austin protester. Gov. Greg Abbott has pledged to pardon him.” (Texas Tribune)
• “She Wrote of Grief After Her Husband Died. Now She’s Charged in His Murder.” (New York Times) (not lege-related, we just found this case fascinating!)
• House Committee on General Investigating: Report in re Rep. Bryan Slaton recommending expulsion from the House (PDF version) (for those curious why a state representative was expelled from that chamber for the first time since 1927)

Quotes of the Week

“[T]his proposal comes amid broad support for targeted reconsideration of sentences that exceed 10 years. … [T]he vast majority of people who have served a decade or more in prison could have been released earlier without compromising public safety.”
            —Opinion piece in the San Antonio Express-News by Hillary Blount, a former California prosecutor, and Marc Levin, formerly of Right on Crime, advocating for the passage of HB 4518 & HJR 172 by Cook (R-Mansfield) to implement a California-style “prosecutor-initiated resentencing” in Texas. The bills have passed the House and are now in the Senate.

“[If prosecutors don’t like a law, then] they need to petition the Legislature to change the law. But at the end of the day, you need to enforce the law. And if that’s not going to happen, then we need a backup, and I think this is the proper backup here.”
            —State Sen. Mayes Middleton (R-Wallisville), explaining why he supports SB 1195 by Hughes to grant the attorney general prosecution authority over certain crimes du jour. That bill received approval from the Senate on a party-line vote.

“You will have a bigger chance of getting a [Republican] primary opponent if you actually support a gun control measure. Until someone loses an election based on the gun issue, there’s not going to be any change.”
            —Vinny Minchillo, GOP political consultant from Plano, as quoted in a Dallas Morning News article on whether the Allen outlet mall mass murder will result in any changes at the legislature.

“Predatory behavior merits such a consequence. I hope the action we’ve taken here today sends a message that sexual harassment and inappropriate activities in the workplace will not be condoned and they are unacceptable.”
            —House Speaker Dade Phelan (R-Beaumont), after the House expelled from office Rep. Bryan Slaton (R-Royce City) for having sex with a teenaged employee whom he first plied with alcohol.

###

Happy Cinco de Mayo. With only veinticuatro dias to go before the legislature adjourns sine die, things are about to get loco. Prepare yourselves.

Preview

As this update goes out, the House is doing its best not to melt down over a transgender-related bill (don’t ask us the details, we stay in our lane). Assuming the building is still standing after that debate, the House will also meet Saturday, and then both chambers crank up again on Monday. The public will get only 24–36 hours of notice of floor debates going forward, and perhaps even less notice of committee hearings, so forgive us in advance if we miss something that is important to you.

Deadlines

Next week is Deadline Week in the House. The final House floor calendar for House bills (other than local bills) must be printed by 10 p.m. on Tuesday, May 9, and House bills on that final calendar must be approved on second reading by midnight on Thursday, May 11. Any general House bill that doesn’t cross that bridge before then is cast into the pit of despair.

For those still hoping for their House bills to beat the clock … may the odds be ever in your favor.

AG bills on the move

Now is the point in a session when things can change quickly. Case in point: SB 1195 by Hughes (R-Mineola), which would mandate that the AG take over prosecution of election, abortion, human trafficking, and various public integrity-related crimes if a local prosecutor has not “initiated proceedings to prosecute” within six months of getting a probable cause report from a law enforcement agency. (No, we don’t know what a “PC report” is either, but the people drafting these AG-fan-fiction bills aren’t criminal practitioners, so just ignore that for now.) Senate Bill 1195 had been sitting the Senate State Affairs Committee for weeks without a hearing when it was suddenly re-referred from that committee to the Senate Jurisprudence Committee on Tuesday afternoon, and then a few hours later all applicable rules were suspended so that the bill could be heard on Wednesday morning without the usual required notice. So, why the rush?

For starters, the Fort Worth Star-Telegram just coincidentally ran an opinion piece by the attorney general on Wednesday encouraging the legislature to pass such laws. But also, the clock is ticking on the plan to wire around the Stephens opinion without amending the state constitution. (We laid this out for you more than two months ago HERE; see “Separations of powers under attack.”) This two-step approach needs both SB 1995 and SB 1092 by Parker (R-Flower Mound) to pass. The latter has been eligible for Senate floor consideration for some time without being called up for a vote, indicating that it may lack the necessary support on the Senate floor. (Perhaps that explains the AG’s exhortation in the FWST opinion piece for his supporters to call on their Republican state senators to move the bills?)

As for the short notice hearing on SB 1195, several prosecutors made it to the capitol in time to register opposition to the patently unconstitutional proposal, as did the criminal defense bar. An employee of the AG’s office testified to the alleged need for the legislation to combat election fraud, but he also had to address recent human trafficking prosecution failures by that office in Bexar County and Coryell County. But election and trafficking cases aside, the majority of the testimony in the committee was from witnesses concerned about the enforcement of abortion-related crimes, which was a good reminder of what else is providing the partisan winds under these sails. (Kudos to a witness on election fraud who steered the committee into a Tammany Hall discussion, though—that was fun for all us history majors in the audience.) For those interested in watching the discussion on SB 1195, you can access the archived video HERE (starting at the 05:20 mark and continuing for about 75 minutes).

The bill was eventually voted out of the committee on a 3R–2D partisan vote (to the surprise of no one). Senate Bill 1195 will be eligible for Senate floor debate early next week, so if that concerns you, consider following General Paxton’s suggestion and let your Senate delegation know your thoughts.

Funding update

Tomorrow the full House will consider HB 2779 by Leach, which in its current form would increase the judicial benchmark salary by 23 percent. However, if you recall the discussion of retirement benefits in our last update, you know that ERS believes DA retirement benefits must be locked in at current rates to maintain actuarial soundness. The language to do that was added to SB 1509 (as we told you last week), but this week it was removed from SB 1509 before that bill finally passed, and the language has now been substituted into HB 2779. It is also possible that more changes could be made to HB 2779 before it passes from the House over to the Senate. Stay tuned.

In other funding/salary news:

HB 2734 by Murr (cross-credit for prosecutors and judges) was never reported from its committee after being approved, but the same language is in HB 3474 by Leach/Hughes, the omnibus court administration bill that has passed the House and will soon be referred to the Senate Jurisprudence Committee.
HB 4487 by Smith (rural prosecutor and public defender student loan repayment) was never voted from the House Higher Education Committee and is likely dead.
A substitute version of SB 22 by Springer/Guillen (rural sheriff and prosecutor grant funding) was approved by its House committee more than a week ago but still has not been “reported” (which means the paperwork isn’t completed). That kind of delay is not unusual at this point in a session.
SB 740 by Huffman (limiting urban prosecutor budget cuts) passed the Senate and was referred to the House State Affairs Committee almost four weeks ago but hasn’t received a hearing.
SB 2310 by Hinojosa/Smith (pay parity with judges) was heard in the House Judiciary & Civil Jurisprudence Committee and left pending. (You can thank 21^st Judicial DA Julie Renken for coming to Austin to testify in support of the bill.)

TAC notes

Speaking of the state budget, our friends at the Texas Association of Counties (TAC) are following an issue that might interest some of you. Specifically, the Senate version of the budget (HB 1) reduces funding for the Texas Indigent Defense Commission (TIDC) to the tune of a $11.4 million budget shortfall. This gap could have a disproportionate effect on rural communities, where indigent defendants are four times more likely to go without an attorney than in urban areas. Restoring TIDC funding helps ensure counties can meet their constitutional obligation to provide counsel, so if this concerns you as well, consider letting your Senate delegation know your thoughts so they can help their colleagues on the HB 1 conference committee make well-informed decisions.

Bills still on the move

Several House bills we’ve been following for you this session just emerged from their committees in the last tidal wave of committee reports issued before next week’s House deadlines. Those bills, which are now in the Calendars Committee, include:

HB 200 by Leach (creating a prosecutor disciplinary council)
HB 1874 by Noble (recovery of defendant’s attorney’s fees in civil asset forfeiture proceedings)
HB 2992 by Harrison (data collection in civil asset forfeiture cases)
HB 3675 by Ortega (mandatory prosecutor management training)
HB 3786 by S. Thompson (victim mandamus/injunction to enforce rights)
HB 3882 by Wilson (veterans court admission over prosecutor’s objection)
HB 4518 & HJR 172 by Cook (prosecutor-initiated commutation of non-3g felons in prison)

If any of these bills concern you, contact members of that House committee, stat. Note also that this wave of controversial bills coming out of House committees will not crest until this weekend, so if there is a specific bill that you are following and want to be notified about ASAP, contact Shannon.

Elsewhere:

HB 17 by Cook (prosecutor removal) has been referred to the Senate State Affairs Committee.
HB 2127 by Burrows (preemption of local civil enforcement) was approved by a Senate committee and will soon be eligible for consideration on the Senate floor.
HB 2139 by Burrows (code construction and writ-of-error fallacy bill) was postponed indefinitely by its author, so those of you concerned about that bill can move on to other projects.
HB 3659 by Hefner (civil asset forfeiture reforms) passed the House 139–5 and is now in the Senate.

Sent to the governor

Bills on their way to the governor’s desk include:

HB 842 by Patterson/Whitmire relating to DL suspensions
SB 49 by Zaffirini/M. Gonzalez relating to crime victims’ compensation
SB 1004 by Huffman/Herrero criminalizing tampering with an electronic monitor device
SB 1325 by Alvarado/Goodwin expanding notice given to certain crime victims

One chamber down, one to go

The bills on this next list are halfway home. Speak soon or forever hold your peace.

The following House bills have passed the House:

HB 30 by Moody (closing “dead suspect” loophole in open records laws)
HB 247 by S. Thompson (prosecutor authorization of subsequent writ)
HB 270 by S. Thompson (expanded post-conviction DNA testing)
HB 410 by S. Thompson (no arrest for Class C or fine-only offenses)
HB 438 by Schofield (tying judicial branch salaries to consumer price index)
HB 469 by Smith (judicial discretion to grant jury sequestration)
HB 1163 by Smith (boating while intoxicated with child passenger)
HB 1927 by Hull (parental intervention and diversion of child in lieu of emergency detention)
HB 2345 by Guillen (legalizing poker rooms)
HB 3474 by Leach (128-page omnibus court creation and court administration bill)
HB 3659 by Hefner (civil asset forfeiture reforms)
HB 4622 by Leach (remote proceedings in criminal and juvenile cases)
HB 4635 by Guillen (creating a civil and criminal RICO law)
HB 4966 by King (peace officer separation from law enforcement agency)
HJR 11 by S. Thompson (authorizing courts to commute certain prison sentences)

The following Senate bills have passed the Senate:

SB 1166 by Birdwell increasing penalties for theft of firearm from a vehicle

Future committee hearings

Some of the bills scheduled to be heard in committees next week are listed below. For the full agenda of each committee, click on the link to the committee itself.

Monday, May 8

(None posted yet)

Tuesday, May 9

House Criminal Jurisprudence – 8:00 a.m., Room E2.016

• SB 129 by Springer relating to how child pornography cases are punished
• SB 386 by Hall creating a presumption in certain capital murder prosecutions
• SB 467 by Bettencourt increasing penalties for tampering with motor fuel pumps
• SB 1346 by Miles relating to certain littering offenses
• SB 1361 by Huffman criminalizing certain sexually explicit deep fake videos

House Human Services – 8:00 a.m., E2.030

• SB 187 by Miles criminalizing the failure to report certain crimes in group homes
• SB 189 by Miles criminalizing the failure to report certain crimes in boarding homes
• SB 515 by Hall relating to the child abuse and neglect registry

Senate Criminal Justice – 8:30 a.m., E1.016

• HB 28 by Slawson/Birdwell increasing punishments for certain aggravated assaults
• HB 165 by A. Johnson/Whitmire increasing punishments for other types of aggravated assaults
• HB 393 by Goldman/Paxton requiring child support restitution payments by certain intoxication manslaughter defendants
• HB 517 by Ju. Johnson/Parker relating to parole panel considerations
• HB 541 by Longoria/Hinojosa relating to charitable donations by probationers
• HB 568 by Bowers/Menendez relating to peace officer training regarding dementia
• HB 1221 by Metcalf/Zaffirini relating to unclaimed property and crime victims
• HB 1442 by A. Johnson/Bettencourt relating to street takeovers and forfeitures
• HB 1826 by Turner/Whitmire creating an organized retail theft task force
• HB 2251 by Raymond/Zaffirini relating to computerized criminal fee records
• HB 2306 by Hefner/Middleton relating to the offense of voyeurism
• HB 2454 by Guillen/Huffman criminalizing the unlawful acquisition of firearms
• HB 2708 by Swanson/Flores relating to TDCJ visitation policies
• HB 3075 by Kacal/Flores criminalizing drones flown over correctional facilities

<< Please visit our Legislative webpage for the latest committee postings.>>

Scattershooting

Here are some recent stories you might’ve missed:

• “How George Floyd-inspired activism backfired in Texas, fueling a crackdown on protesters” (Houston Chronicle)
• “Scooby doobie don’t: Discarded joints pose hazards for dogs” (AP News)
• “Heavy Marijuana Use Increases Schizophrenia in Men, Study Finds” (Bloomberg)
• “Most Texans look to Republican leaders to resolve differences, deliver on major priorities” (Texas Politics Project [poll results])
• “Texas AG Ken Paxton falsely blames Travis County DA for dropping charges against Capitol protesters” (Houston Chronicle)

Quotes of the Week

“We regret if the information was incorrect and detracted from the important goal of finding and arresting the criminal.”
            —Response from the office of Gov. Greg Abbott (R-Houston) after his controversial press release that highlighted the immigration status of the shooting victims (but not the suspect) in Cleveland, Texas, last week.

“A DA is an elected official, meaning political considerations could affect the decision to prosecute local election crime if doing so would damage his or her electoral ambitions or political allies.”
            —Texas AG Ken Paxton (R-McKinney), in an opinion piece in the Fort Worth Star-Telegram this week explaining why he thinks the legislature should give him—an elected official—prosecutorial powers over election-related crimes that he believes cannot be entrusted to other elected officials.

###

A mere 31 days remain in this regular session. Let the mensis terribilis commence!

Preview

Legislators are about to start their sprint to the finish line. That means more time spent on their respective floors and less in committees. Topics to be discussed today and next week include civil asset forfeiture reforms, policing reforms, CPS reforms, and various other we-don’t-trust-the-institutions-we-created reforms. Read on for details!

House Bill 17

Yesterday, the House debated and passed on second reading HB 17 by Cook (R-Mansfield), the prosecutor accountability bill that defines misconduct for purposes of removing a prosecutor from office to include implementing categorical non-prosecution policies. The debate was spirited, and the author accepted several floor amendments to address potential unintended consequences of his legislation before it eventually passed on second reading by a 92–55 margin. (Update: The bill was finally passed without further change on third reading today and will now be sent to the Senate for further consideration.)

Current indications are that the Senate is likely to act on HB 17 in lieu of pushing for the House to accept SB 20 by Huffman (R-Houston), which the Senate sent over to the House weeks ago. However, the Senate is unlikely to approve all of the amendments to HB 17 adopted by the House, so the bill will have to navigate the process in that upper chamber anew and possibly go to a conference committee before we have more clarity on what a final version might look like.

If you want to watch the second reading debate on HB 17, click HERE (starting at the 3:00:02 mark and lasting 48 minutes).

If you want to read the limited portion of the Q&A discussion that was transcribed and printed in the House journal, click HERE.

Grand jury reforms

Just as the famous swallows return to Mission San Juan Capistrano every spring, every session the legislature considers a bill on grand jury reforms. This session that bill is HB 1258 by S. Thompson (D-Houston), and it is a doozy in much the same way that many “prosecutor accountability” bills have been this session—sanctions, civil liability, onerous conditions, and more.

Bills like this always tend to get prosecutors off their seats in opposition, and this session was no exception. When the bill was heard Tuesday evening, respectful testimony against the bill was offered by 46^th Judicial DA Staley Heatly, Cherokee County DA Elmer Beckworth, 8^th Judicial DA Will Ramsay, San Jacinto County Criminal DA Todd Dillon, and Kaufman County CDA Erleigh Wiley, and there were numerous other prosecutors who registered opposition in person without testimony. The bill was left pending in committee.

Retirement benefits

Elected felony prosecutor retirement benefits—which are tied to those officials’ state-established salaries—have had a rough go of it the last several sessions. First, retired DAs missed out on an increase in benefits in 2019 when the new tiered judicial branch salary increases left the benchmark pay at $140,000 for already-retired former prosecutors. Then in 2021, the legislature abolished the defined benefits plan for future elected DAs in favor of a cash balance plan (think 401(k)). Now comes the latest blow—one that our friends at ERS couldn’t be bothered to tell anyone about until we dragged it out of them.

The latest House committee substitute version of SB 1509 by Huffman (R-Houston)/Bonnen (R-Friendswood) “relating to the service retirement eligibility and benefits of certain members of the Employees Retirement System of Texas” would repeal language that currently grants retired DAs automatic increases in retirement benefits when judicial and DA salaries increase. That was a nice feature of the DA retirement plan for four decades, but according to ERS, it is now too expensive to continue if the legislature gives sitting judges and prosecutors future pay raises. For instance, the pay raise being considered in the House version of HB 1 is estimated by ERS to cost the retirement system $30 million on top of the salary cost to the state budget. Instead, the retirement system people claim that future judicial/prosecutor pay raises will not be actuarially feasible for the state unless retirement benefits remain tied to the current benchmark salary figure.

Senate Bill 1509 has been recommended for the House Local and Consent Calendar and given that it is authored by the Senate Finance chair and sponsored by the House Appropriations chair, the repeal of this beneficial language is about as sure a thing as there can be. But … could there be a reason ERS all of a sudden decided they needed this change in the waning days of a session in which a judicial pay raise is being considered by the budget conference committee behind closed doors? Some of you have asked us about the prospects of that raise and we always advise you to expect little from the legislature if you want to avoid disappointment, but some of you may be tempted to read into this unexpected change what you will. And who are we to say otherwise? After all, everyone is entitled to their own dreams. Just remember that the legislature is an accomplished dream-buster.

Beyond speculation about a raise, this adverse change also makes us wonder whether elected felony prosecutors should explore pulling the plug on ERS membership and consider returning to the Texas County and District Retirement System (TCDRS) for your retirement benefits. That will be something to talk about after the dust of this session settles. Meanwhile, if you have thoughts or questions about any of this, please contact Rob.   

Funding updates

In other funding- and salary-related news:

The House County Affairs Committee approved SB 22 by Springer (R-Muenster)/Guillen (R-Rio Grande City) on Monday. This is the bill that would provide sheriffs and prosecutors in most counties with additional funding for hiring new staff and retaining existing employees. The committee report from that vote—which includes the official committee substitute version as voted out by the committee, the vote tally, and related paperwork—has still not been turned into the office that posts that information online and then refers it to the Calendars Committee for further consideration. There are a lot of rumors floating around about the latest language in the bill—including competing changes that conflict with each other and which no one will claim as their own—so rather than speculate, we’ll let the dust settle and then report on what we know to be true next week.

On Tuesday, the House granted preliminary approval on second reading to HB 438 by Schofield (R-Katy) to tie judicial branch salary increases to future changes in the consumer price index. However, rumor-fueled remorse quickly set in among some Republican members who were told the bill might feather their own retirement nest. (It does not, but their momentary panic shows how sensitive an issue that is for those worried about being primaried over it.) The confusion led to the bill being postponed until next week for final approval on third reading. If passed into law, any resulting inflationary raises for judges and elected prosecutors would not go into effect until September 1, 2025 (2+ years from now). However, the bill still has to be approved by the Senate, which has no companion version of this proposed raise and has historically been cool toward automatic raises in the past.

Finally, the House Higher Education Committee heard HB 4487 by Smith (R-Sherman) to expand rural prosecutor student loan repayment to include public defenders, but the bill was left pending and it will soon run out of time to beat various House deadlines unless it gets moving in a hurry.

Sent to the governor

It took 106 days for the first of our tracked bills to make it through the legislative gauntlet and onto the governor’s desk. That bill is … <drumroll> … SB 497 by Zaffirini/Lozano relating to “the processing and sale of kratom and kratom products; providing civil penalties; creating a criminal offense.” Exciting stuff, eh?

This list will start to grow in the coming weeks, but for now, most legislators’ focus will remain on getting their own bills out of their own chambers.

One chamber down, one to go

The bills on this next list are halfway home. Speak soon or forever hold your peace.

The following House bills have passed the House:

HB 6 by Goldman (fentanyl penalties)
HB 17 by Cook (removal of prosecutors)
HB 63 by Swanson (limiting preliminary investigations into child abuse allegations)
HB 213 by Moody (early parole consideration for youthful violent offenders)
HB 218 by Moody (reducing penalties for possession of marijuana and THC substances)
HB 467 by Craddick (extending statutes of limitations for certain assaultive offenses)
HB 1130 by Spiller (allowing certain prosecutors to accept ad litem appointments)
HB 1207 by Guillen (no statute of limitations for tampering with a body)
HB 1300 by Geren (changing penalties for tampering with evidence)
HB 1603 by Guillen (allowing JPs and muni judges to use private pro tem prosecutors in certain Class C cases)
HB 2696 by Howard (consent in sexual assault cases)
HB 3956 by Smith (expanded DNA collection upon arrest)
HJR 107 by Price (extending mandatory judicial retirement age by five years)

The following Senate bills have passed the Senate:

SB 1516 by P. King (revising procedures and venue for writs of habeas corpus)
SB 2208 by Parker (neighboring county venue for election-related crimes)
SB 2593 by Springer (defense to prosecution for cops using less-lethal devices; retroactively applies to pending prosecutions)

Other action

Confession: We’ve pretty much lost track of what random bill has emerged from which various committee in what kind of form. It happens every session around this time, and we’re not going to try to hide it. We’re just going to take our “L” and live with it. Sorry, but a man’s got to know his limitations. (Feel free to reach out if you have a question about the status of a particular bill, though.)

Future floor debates

Bills up for debate on the House floor today include (in order of their appearance on the calendar):

HB 3659 by Hefner (limitations on civil asset forfeitures) (*update: passed without debate this morning)
HB 412 by S. Thompson (requiring corroboration of undercover drug officers’ testimony) (*update: passed without debate this morning)
HB 730 by Frank (limiting child abuse investigations and parental termination lawsuits)
HB 1715 by Canales (retroactive expunction of misdemeanor deferred adjudications)
HB 469 by Smith (requiring good cause for sequestration of certain juries)
HB 476 by Jo. Jones (limiting pretrial detention)

Bills to be debated on the House floor next week include (in docketed order):

HB 3474 by Leach (omnibus judicial branch administration bill)
HB 247 by S. Thompson (subsequent writs upon permission of prosecutor)
HB 1163 by Smith (creating offense of boating while intoxicated with child passenger)

The Senate Intent Calendar for Monday is pretty light on your issues (yay!), but that can change on a daily basis so if you want to keep up at home, you can check daily Senate Intent Calendars HERE.

Future committee hearings

Committees are now concentrating on hearing bills from the other chamber. They are also often dispensing with many notice rules, suspending those rules at the drop of a hat to hear bills with little notice. We will share what we can, but if you have a particular interest in any bill, you might consider tracking it yourself through the free public TLO system to stay up-to-date.

Some of the bills scheduled to be heard in committees next week are listed below. For the full agenda of each committee, click on the link to the committee itself. Subsequent committee postings may be added later, so check our website for the latest information.

Monday, May 1

(None posted yet)

Tuesday, May 2

Senate Criminal Justice – 8:30 a.m., E1.016

• HB 279 by Jetton relating to the trafficking of disabled individuals
• HB 467 by Craddick extending limitations periods for filing certain assaultive offenses
• HB 598 by Shaheen criminalizing possession of animals by certain offenders
• HB 767 by Harless relating to entering stalking bond conditions into TCIC
• HB 914 by Hefner relating to criminal offenses concerning temporary tags
• HB 1088 by A. Johnson allowing OAG to represent CSCD employees in civil suits
• HB 1161 by Meyer relating to OAG’s address confidentiality program
• HB 1207 by Guillen extending limitations periods for tampering with a dead body
• HB 1910 by Anchia creating a presumption in certain forgery cases
• HB 2183 by Stucky relating to the temporary appointment of county jailers
• HB 2899 by Plesa relating to the impoundment of vehicles used in racing crimes

House Criminal Jurisprudence – 10:30 a.m. or upon adj./recess, E2.016

• SB 23 by Huffman imposing a minimum sentence for certain offenses involving use of a firearm
• SB 338 by Hinojosa prohibiting the use of hypnotically induced statements at trial
• SB 402 by Whitmire granting trial preferences for murder & capital murder charges
• SB 947 by P. King increasing penalties for damages related to critical infrastructure facilities
• SB 1653 by Huffman relating to the offense of promotion of prostitution
• SB 1717 by Zaffirini relating to the offense of stalking

Wednesday, May 3

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016 <added>

• SB 21 by Huffman relating to complaints against current and former judges
• SB 2310 by Hinojosa granting longevity pay to certain elected prosecutors

<< Please visit our Legislative webpage for the latest committee postings.>>

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days to weigh in on the bills we’ve discussed this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Scattershooting

Here are some recent stories you might’ve missed:

• “Tensions rise between Texas’ top leaders as legislative session rolls toward finish line” (Dallas Morning News)
• “‘A way to throw kids away’: Texas’ troubled juvenile justice department is sending more children to adult prisons” (Texas Tribune)
• “Texas House OKs marijuana decriminalization bill again as Senate hurdles remain” (Houston Chronicle)
• “Why Texas lawmakers are looking to end the ‘dead suspect loophole’” (Corpus Christi Caller-Times)
• “Fentanyl test strip bill stalled in Texas Senate as the drug crisis grows” (Dallas Morning News)
• “Sex, Threats, and Late-Night Phone Calls: The Allegations from Inside Jolanda Jones’s Legislative Office” (Texas Monthly)
• “How Rich Is the US Supreme Court?” (Bloomberg)

Quotes of the Week

“Rouge [sic] DAs in Texas – your time is up. #HB17 by @DavidCookTexas to ensures [sic] public attorneys are doing their job by enforcing the law as the state legislature intended, not pushing a political agenda.”
            —Tweet on “Reining in Rogue DA’s” by the Texas House Republican Caucus on the day of the House floor debate over HB 17. (“Rouge”? So now we can now add “prosecutors wearing make-up” to the list of those who must be punished by the Lege this session? Sure, why not.)

“[For] prosecutors … that want to legislate instead of prosecute, I would urge that they run for a seat in the house as opposed to running for DA.”
            —State Rep. David Cook (R-Mansfield), speaking on the House floor in favor of the passage of HB 17, his bill on removal of prosecutors.

“I have to go. I’m going to get in trouble.”
            —Christopher Stanford, to another driver whom he rear-ended before running away from the scene and hiding. Mr. Stanford was subsequently sentenced to life in prison in Parker County for felony DWI. Read why HERE.

“Stoked for some tasty waves on the Texas Coast this summer after #txlege hits its gnarly Sine Die!”
            —Tongue-in-cheek tweet by House Speaker Dade Phelan (R-Beaumont), in apparent response to Lt. Gov. Dan Patrick (R-Houston) calling him “California Dade” last week. (You’ll have to click this link to see the visuals that accompany his tweet)

###

Happy San Jacinto Day! Thirty-eight days remain in this regular session. More than 1,000 bills will be sent to the governor during that time. This is where the rubber meets the road. This is also where the “ache” meets the “head,” so pace yourself as you read some of the lists below. We don’t do it because we want to, but because they are important to somebody (or somebodies) out there.

Preview

Next week will be a transition week in the House as its members start spending more time on the floor and less in committees while also trying to cram their final hearings with last-chance bills. That means there will be plenty of late-night work to be done!

Topics to be discussed next week include student loan repayment for prosecutors (and public defenders), grand jury reform (it’s back, and it’s the version all of you hate!), victims’ legal intervention into criminal cases, bail reform, accelerated parole eligibility for violent offenders, and more. Read on for details!

Help for rural(-ish) prosecutors

The House County Affairs Committee heard SB 22 by Springer/Guillen on Wednesday. This is the bill that would provide sheriffs and prosecutors in the 230 or so smallest counties with additional state grant funding to hire more personnel and/or supplement salaries for existing personnel. Testifying for the bill were Comal County CDA Jennifer Tharp, Hill County CA David Holmes, and Callahan County C&DA Shane Deel (and a host of other prosecutors who registered in support of the bill without testimony), as well as Chambers County Sheriff Brian Hawthorne. The committee also heard testimony from a representative of the constables’ association—whose members are not included in the bill but would like to be—and the policy director for the Conference of Urban Counties (CUC) who is seeking to amend the bill with language that would exempt future shortfalls from triggering last session’s law prohibiting the defunding of law enforcement. (That last bit was very odd, considering that the defunding ban applies only to counties with populations of 1 million or more people while SB 22 applies only to counties of less than 300,000 people. Go figure.)

Senate Bill 22 was left pending in the committee while the House sponsor—Rep. Ryan Guillen (R-Rio Grande City)—considered whether to make the changes suggested by other witnesses. Unlike with HB 1487 by Gerdes, there is no indication at this time that the House intends to swap out prosecutors for constables, but we are watching it closely to make sure no adverse changes are made to the bill. If you have further questions, contact Rob.

On a related front, the House Higher Ed Committee will also consider HB 4487 by Smith (R-Sherman) Monday morning. This bill—filed one day before the filing deadline last month—would amend the current student loan repayment law applicable to prosecutors in counties with a population of less than 50,000 by raising that threshold to 100,000 and making defense lawyers appointed or employed to represent indigent defendants eligible for it as well.

Now, if you read that sentence and said, “Wait … WHAT law?!?”—we understand your confusion. A prosecutor loan repayment law has been on the books for decades, but the legislature has never funded it. The TDCAA Compensation Committee explored efforts to activate and expand that law during the recent interim but were steered away from it by legislative insiders and told to focus on bills like SB 22 instead. (And to date, that advice appears to be paying off.) However, our friends in the rural indigent defense community have been working on HB 4487 behind the scenes, and if they have found the magic key to unlock new funding for such a loan repayment program, we’re certain that many of you would be happy to help push it across the finish line. Keep watching this space for more information as we get it.

Dueling budgets

The Senate passed its version of the state budget (HB 1), which differs from the version passed by the House, so the bill will now be referred to a conference committee. Differences between the two appropriations bills include (in amounts for the two-year biennium):

• The House budget includes a 5 percent-per-year increase in the general benchmark judicial (and elected felony prosecutor) salary, while the Senate does not include any raise
• The House has set aside $350 million for county law enforcement grants, while the Senate trimmed that by 5-ish percent (to $330,800,000)
• The House increases indigent defense funding by $40 million over the current budget, while the Senate cuts it by $11 million
• The House increases DPS crime lab funding by $33 million, while the Senate increases it by $37 million

Five representatives and five senators—led by the chairs of the House Appropriations and Senate Finance Committees—have been appointed to the budget conference committee and will soon disappear into undisclosed locations for the next month to hammer out the differences in the two versions for eventual approval by both chambers. This is one of the most opaque of all processes at the legislature, so don’t expect news from us on budget matters until the final full week of May.

Prosecutor accountability bills

There was no action on any of the 30+ bills we’ve been following under this category except for HB 3675 by Ortega (D-El Paso) mandating the removal of an elected prosecutor in a jurisdiction larger than 850,000 people who fails to complete mandated management training. That bill was voted from committee and now heads to the House Calendars Committee for further consideration.

To see where all those bills are in the legislative process, visit this updated page on our website.

One chamber down, one to go

The bills on this next list are halfway home. READ THIS LIST CAREFULLY. If you like one of these bills, congratulations! Statistically, it has about an 80-percent chance of reaching the governor’s desk this session. Conversely, if you object to any of these bills, your time is growing short to move them into that pile of “20-percenters” that pass one chamber but not the other.

The following House bills have passed the House:

HB 16 by Moody (juvenile justice reforms)
HB 420 by Slawson (SJF enhancements for providing alcohol to minors)
HB 422 by VanDeaver (remote proceedings in juvenile court)
HB 513 by Metcalf (causing death/SBI by manufacture or delivery of controlled substance)
HB 1736 by Leach (limiting death penalty for parties; retroactive review of death row cases)
HB 1737 by Leach (retroactive automatic nondisclosure for certain deferred adjudications back to 1993)
HB 2127 by Burrows (pre-emption of local regulations)

The following Senate bills have passed the Senate:

SB 129 by Springer (increased punishment ranges for child pornography)
SB 338 by Hinojosa (ban on using hypnotically induced statements at trial)
SB 435 by Middleton (disclosure of certain evidence to homicide victim’s next of kin)
SB 600 by Birdwell (10-year minimums for human smuggling-related crimes)
SB 1269 by Hughes (imposing discovery obligations on DFPS in child abuse cases)
SB 1653 by Huffman (promotion of prostitution enhancement)

Other action

Other bills of potential interest to you that were approved by a committee this week include:

HB 939 by Dutton (reducing penalties for drug possession)
HB 946 by Dutton (dismissal with prejudice for spoliation of evidence by the State)
HB 1163 by Smith (boating while intoxicated with child passenger)
HB 1383 by Rose (expediting procedures following a restoration of competency)
HB 3183 by Schatzline (limiting use of in-custody informant testimony)
HB 3659 by Hefner (civil asset forfeiture reforms, including a $2,500 minimum valuation)
HB 3729 by Bonnen (disclosure of certain evidence to homicide victim’s next of kin)
HB 4382 by Guillen (mandated CJIS reporting)
SB 224 by Alvarado (catalytic converter theft) (reported favorably from House committee)
SB 1004 by Huffman (tampering with electronic monitor) (reported favorably from House committee)
SB 1527 by Huffman (omnibus human trafficking bill) (reported favorably from House committee)

Future floor debates

Bills up for debate on the House floor next week include (in their order of appearance on the calendar):

HB 3504 by Leach (emergency detention and court-ordered MH services)
HB 576 by Raymond (sharing autopsy records with next of kin or their lawyers)
HB 115 by Ortega (public consumption of alcohol)
HB 1130 by Spiller (allowing certain prosecutors to accept ad litem appointments)
HB 1207 by Guillen (no statute of limitations for tampering with a body)
HB 1603 by Guillen (allowing JPs and muni judges to use private pro tem prosecutors in certain Class C cases)
HB 438 by Schofield (tying the benchmark judicial salary to the consumer price index)
HB 63 by Swanson (limiting preliminary investigations into child abuse allegations)
HB 218 by Moody reducing penalties for possession of marijuana and THC substances
HB 772 by Allen criminalizing corporal punishment in schools

In the Senate, bills eligible for debate include:

SB 1516 by King (revising writ of habeas corpus procedures)
SB 2589 by Schwertner (increasing penalties for certain crimes committed by TJJD confinees)
SB 2593 by Springer (defense to prosecution for cops using less-lethal devices)

Future committee hearings

The hour is getting late for House bills not heard in a House committee yet. If you are following a bill like that and it is not on the list below, then it might be time to throw some dirt over it until the next session. (Senate bills have more life in the Senate, though—that chamber’s deadlines are made to be broken.)

Here are just a few of the bills scheduled to be heard in committees next week. For the full agenda of each committee, click on the link to the committee itself. Subsequent committee postings may be added later, so check our website for the latest information.

Monday, April 24

House Higher Education – 10:00 a.m., Room E2.010

• HB 4487 by Smith expanding the state’s (currently unfunded) prosecutor student loan repayment program to include more prosecutors and public defenders in rural areas

House Corrections – 11:00 a.m., E2.028

• HB 1064 by Sherman granting retroactive good conduct credits to 3g offenders
• HB 1618 by Moody granting retroactive good conduct credits to 3g offenders
• HB 2743 by Smith relating to court-ordered psychoactive medication for certain offenders
• HB 4362 by A. Johnson expanding nondisclosure eligibility for certain felons
• HB 5114 by Sherman granting time credits for probationers/parolees who are employed
• HB 5177 by Lopez granting veterans court graduates a set-aside of their probation

Tuesday, April 25

House Criminal Jurisprudence – 10:30 a.m. or upon adj., E2.016

• SB 1318 by Huffman relating to bail reform
• SJR 44 by Huffman authorizing denial of bail in certain cases
• HB 261 by Cortez increasing penalties for certain burglary of vehicle cases
• HB 485 by Gervin-Hawkins increasing penalties for certain crimes on a public transportation system
• HB 1131 by Spiller authorizing non-lawyer JPs to issue DWI blood search warrants
• HB 1203 by Ordaz criminalizing negligent cruelty to non-livestock animals
• HB 1258 by S. Thompson reforming grand jury procedures; allowing prosecutors to be sued for actions in the grand jury; more
• HB 1311 by Dutton relating to locations at which knives are prohibited
• HB 1533 by Lozano adding possession w/ intent to deliver drugs to EOCA
• HB 1581 by Thimesch criminalizing delivery of drugs resulting in death/SBI
• HB 1653 by Campos relating to attacks by dangerous dogs
• HB 1713 by Canales mandating certain standardized forms in criminal actions
• HB 1906 by Stucky authorizing temporary detention without bail for certain crimes
• HB 2092 by Manuel relating to the duration of an emergency protective order
• HB 2187 by Y. Davis relating to abandoning/endangering elderly/disabled victims
• HB 2193 by Y. Davis relating to expunctions of certain misdemeanor records
• HB 3381 by Cook creating a crime for Munchausen by Proxy-related conduct
• HB 3384 by Cook relating to the punishment for promotion of prostitution
• HB 3786 by S. Thompson authorizing intervention in cases by victims’ lawyers
• HB 3816 by Herrero relating to the use of body armor during an offense
• HB 3817 by Herrero relating to videoconference appearances in court by inmates
• HB 4398 by Kitzman relating to personal bond/pretrial supervision offices
• HB 4596 by Hinojosa prohibiting use of a “gay panic” defense
• HB 5088 by Moody relating to adult and juvenile procedures involving persons with a mental illness or intellectual disability

House Homeland Security & Public Safety – 2:00 p.m. or upon adj., E2.012

• SB 1445 by Paxton revising and reauthorizing TCOLE (sunset bill)
• HB 258 by M. Gonzalez prohibiting motorcycle profiling by officers
• HB 769 by Allen reducing penalties for DWLI
• HB 1808 by Jo. Jones requiring all peace officers to carry liability insurance for misconduct
• HB 3480 by Turner relating to overdose mapping
• HB 3506 by C. Harris removing certain DNA samples from databases
• HB 3858 by Frazier mandating MH wellness units for entities that employs peace officers
• HB 3957 by Smith establishing a rapid DNA analysis pilot program
• HB 3958 by Smith establishing a grant program for agencies that collect DNA samples from felony arrestees
• HB 4628 by Goldman relating to procedures following DNA profile comparisons
• HB 4875 by Flores requiring drug/alcohol testing of officers after use-of-force incidents
• (and about 30 other bills—click the link above for all of them)

<<NOTE: Advanced notice of committee hearings is limited from now until sine die, so please visit our Legislative webpage for the latest committee postings.>>

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days to weigh in on the bills we’ve discussed this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Scattershooting

Here are some recent stories you might’ve missed:

• “Venue is a platypus, a mixed-up animal” (SCOTUSblog)
• “Bills to create new Texas courts would likely reverse Democratic gains, restore GOP dominance” (Texas Tribune)
• “Tucker Carlson called for a Texas killer’s pardon. The next day, Gov. Greg Abbott stepped in.” (Houston Chronicle)
• “Anti-domestic violence and gun groups unite to urge Supreme Court to reverse domestic violence ruling” (CNN)
• “Three Shootings in a Week Over a Simple Mistake. Why Is This Happening?” (Wall Street Journal)

Quotes of the Week

“Texas is definitely a bit of a wild, wild west with respect to this industry. We don’t have a legal rec(reational) state for marijuana, and we’re barely a medical marijuana state. Right now, the name of the game is hemp.”
            —Ryan Soroka, president and co-founder of 8^th Wonder Brewery in Houston, which now offers consumers a variety of “herbal” alcoholic and non-alcoholic beverages infused with CBD and delta-8 THC.

“California Dade wants a California tax plan.”
            —Lt. Gov. Dan Patrick (R-Houston), in a recent interview, on the subject of the dueling property tax reform proposals between himself and House Speaker Dade Phelan (R-Beaumont). (Just in case you were wondering how the two chambers were getting along with five weeks remaining in the session.)

“Remember, I can’t call a special session, but I can create one by not passing a key bill that has to pass. … If we don’t get some major priorities that the people want us to pass because [the House] acted very slowly during the session, then I think we ought to finish the job. I’ll leave it at that.”
            —Lt. Gov. Patrick, criticizing the House during that same interview on the topic of private school vouchers.

###

<updated at 4:30pm>

Six weeks remain. This is usually the point of a session when it feels there is too much time for all of the bills you don’t want to pass and not enough time for all the bills you do want to pass. The reality lies somewhere in between those two extremes, but as sine die approaches, reality often has little to do with events in Austin.

Preview

If you are wondering what legislators will be up to next week … join the crowd! We have hit the stage of a session at which notice is scant and getting worse. Everything beyond Tuesday’s schedule is hidden by the fog of legislative opacity, but we will do the best we can to keep you updated on the things that we think are important to you. Read on for details about those bills and for news of an amicus brief that might interest you.

Prosecutor accountability bills

Bills in this category that saw action this week include:

HB 799 by Cody Harris (denying prosecutors access to Brady information) was heard in the House Criminal Jurisprudence Committee and left pending. No prosecutors testified for or against the bill.

HB 3247 by Cain (felony offense of prosecutorial misconduct) was heard in the House Criminal Jurisprudence Committee; Chambers County DA Cheryl Henry and Dallas County Asst. CDA Ellyce Lindberg testified against the bill, which was also left pending in committee.

HB 3675 by Ortega (mandatory management training for certain prosecutors) was heard in House Judiciary & Civil Jurisprudence and left pending. No prosecutors testified for or against the bill.

Remember, there are no prohibitions on ex parte communications when it comes to legislating. (In fact, that’s the basis of this crazy process!) Therefore, when a bill is left pending in a committee, members of that committee are still taking input and deciding whether to support or oppose it and you are welcome to contact any of them.

Finances

SB 22 by Springer (rural sheriff and prosecutor funding) has been referred to the House County Affairs Committee. That committee already approved a different version that excludes prosecutors in favor of constables, and that bill—HB 1487 by Gerdes—is in the House Calendars Committee now.

SB 740 by Huffman (limiting urban prosecutors’ budget reductions) was referred to the House Committee on State Affairs.

SB 2310 by Hinojosa (pay parity bill) has been referred to the House Judiciary & Civil Jurisprudence Committee.

Remote proceedings

The legislature is once again considering giving the judiciary the post-pandemic authority to conduct remote proceedings in certain criminal matters. This was a big issue for some of you last session in the midst of the pandemic, and bills to empower judges to hold proceedings in person or remotely, as they saw fit, ultimately failed to pass due to opposition in the state senate. During the interim, the Texas Supreme Court adopted rules to grant them some of those powers in civil cases (see our Week 0 Update/Preview for more details about that), but they do not (yet) apply in criminal matters.

Enter HB 4622 by Leach (R-Plano), a substitute version of which was passed out of the House Criminal Jurisprudence Committee this week. That latest version—which can only be read HERE because it is not yet online—differs in several ways from the rules now applicable to civil proceedings. The substitute version also lays out new procedures for remote proceedings in juvenile matters (similar to HB 422 by VanDeaver) that grant lawyers/parties less say in having remote proceedings than would apply in criminal cases under the bill.

We heard many concerns about these ideas in 2021 but have heard nary a peep from any of you about this topic this session, so please read this new language that we linked above and let us (and your legislators) know if you have concerns about a judge forcing you into remote proceedings in the situations described by the latest version of that bill. The bill heads to the House Calendars Committee next.

Other action

Other bills that saw movement this week include:

HB 20 by Schaefer (Border Protection Unit) was heard in the House State Affairs Committee and left pending.

HB 180 by Moody (withdrawal of execution warrant by prosecutor) passed the House.

HB 213 by Moody (early parole for youthful felons) was approved by a committee and now heads to the Calendars Committee.

HB 513 by Metcalf (controlled substance causing death) passed the House.

HB 1730 by Schaefer (enhancements for repeated indecent exposures) passed the House.

HB 1910 by Anchia (forgery punishment presumption) passed the House.

HB 2864 by Raymond (vet court admission over prosecutor’s objection) was heard in the House Corrections Committee and left pending.

SB 950 by Kolkhorst (AG representation of counties sued in federal court) passed the Senate.

SB 2424 by Birdwell (offense of improper entry from a foreign nation) passed the Senate.

House Calendars Committee

Guess what? Even if you can’t make it to Austin to engage with legislators on bills that are important to you, you can still have a role in the process that determines which bills get considered on the House floor if you have a relationship with anyone on that committee. (Membership available HERE.) As you read about bills—good or bad—that get referred to that committee, let those committee members know your thoughts, even if it is from the comfort of your office or home.

Future floor debates

Other than HB 1760 by Hefner (carrying guns on college campuses) and HB 1589 by Cook (family violence enhancements), there aren’t many bills in our world scheduled for debate on the House floor on Monday or Tuesday, which are the only days posted as of now. However, that is sure the change as the week progresses, so keep an eye on your inbox if events merit.

Across the rotunda, bills eligible for debate on the Senate floor early next week include

SB 1269 by Hughes (expanded discovery from DFPS but limited use of evidence by DFPS), SB 1445 by Paxton (TCOLE sunset reauthorization), SB 1518 by King (terrorist offender registry), SB 1709 (sedition and EOCA), and SB 2275 by Hughes (limits SCOTX rulemaking authority in civil actions).

Future committee hearings

Here are just a few of the bills scheduled to be heard in committees next week. For the full agenda of each committee, click on the link to the committee itself.

Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, April 17

House Business & Industry – 8:30 a.m., Room E2.012

• HB 4507 by Moody authorizing price gouging actions by local prosecutors during emergencies

House Corrections – 11:30 a.m. or upon adjournment, E2.028

• HB 2129 by Burns authorizing theft diversion programs by merchants in lieu of arrest
• HB 3363 by Frank compensating counties for certain costs of confinement
• HB 3547 by Anchia limiting parolees’ access to hospitals as visitors
• HB 3603 by Anderson relating to restitution by parolees
• HB 3882 by Wilson authorizing veterans court participation over a prosecutor’s objection

Tuesday, April 18

House Criminal Jurisprudence (asset forfeiture subcommittee) – 8:00 a.m., E2.016

• HB 1874 by Noble awarding attorneys’ fees to defendants in unsuccessful forfeitures
• HB 2992 by Harrison creating an online searchable database for forfeiture proceedings
• HB 3758 by S. Thompson replacing civil asset forfeiture with criminal forfeiture

Senate Criminal Justice – 8:30 a.m. or upon adj., E2.012

• SB 435 by Middleton authorizing disclosure of crime scene evidence to victims’ families
• SB 726 by Kolkhorst increasing punishment for certain intoxication manslaughters
• SB 760 by Lamantia relating to blood drawn from a body during an inquest
• SB 840 by West increasing penalties for assaulting certain hospital personnel
• SB 1248 by Flores relating to smuggling of persons in parklands
• SB 1433 by Hinojosa relating to the emergency detention of persons with mental illness
• SB 1516 by King revising procedures governing writs of habeas corpus
• SB 1969 by Bettencourt increasing penalties for certain crimes near schools and daycares
• SB 2134 by Miles relating to telemedicine in the juvenile system
• SB 2479 by Zaffirini changing procedures relating to persons with mental illness or intellectual disability
• SB 2589 by Schwertner revising punishments for juvenile crimes committed at TJJD facilities
• SB 2593 by Springer creating a defense to prosecution for peace officers using less-lethal projectiles

House Select Committee on Community Safety – 9:00 a.m. or upon adj., E2.012

• (Click the link above for the 18 gun-related bills set for discussion in this committee)

House Criminal Jurisprudence (procedure subcommittee) – 10:30 a.m. or upon adj., E2.016

• HB 303 by Bernal relating to fines and jail confinement for Class Cs
• HB 322 by Cortez removing the presumption of incompetency following a prior finding
• HB 1017 by Sherman relating to family violence findings
• HB 1136 by Jetton relating to the period of sex offender registration for compelling prostitution
• HB 1178 by Rogers authorizing non-lawyer JPs to issue DWI blood search warrants
• HB 1230 by J. Gonzalez relating to the confidentiality of certain witness information
• HB 1232 by J. Gonzalez relating to authorizations for the use of tracking equipment
• HB 1921 by Dutton adjusting the fine amount discharged by jail layouts
• HB 1940 by Cook authorizing extraneous offense evidence in adult sex crime trials
• HB 2380 by Vasut adjusting the fine amount discharged by jail layouts
• HB 2961 by Cook relating to jury instructions on conspiracy
• HB 3005 by Flores expanding pseudonym protections to victims of certain offenses
• HB 3686 by J. Jones relating to expunctions after certain drug crime dismissals
• HB 3688 by J. Jones requiring written explanations by the prosecution for dismissals
• HB 3871 by Cook revising procedures governing writs of habeas corpus
• HB 4037 by Hayes requiring pretrial hearings to be held w/in 30 days of competency restoration
• HB 4671 by Hayes relating to the qualifications and summoning of grand jurors
• HB 5007 by Plesa mandating automatic expunction upon certain acquittals
• HB 5041 by Garcia authorizing non-prosecutors to be appointed as attorneys pro tem
• HB 5159 by Bhojani authorizing additional closing arguments following an Allen charge

Wednesday, April 19

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016 <NEW>

• HB 4504 by Moody relating to nonsubstantive revisions of the CCP
• HB 4657 by Oliverson authorizing the AG to represent certain county officials
• HB 4674 by Hayes relating to the qualifications, summoning, and pay of jurors
• HB 4946 by Flores prohibiting challenges to certain prospective jurors

House County Affairs – 10:30 a.m., E2.012 <NEW>

• SB 22 by Springer creating a grant program for rural sheriffs and prosecutors
• HB 1409 by Orr authorizing sex offender child safety zones in unincorporated areas
• HB 2186 by Y. Davis relating to photo ID for filing real property records
• HB 2560 by Metcalf authorizing sex offender child safety zones in unincorporated areas
• HB 3264 by Meza defining intoxication for the purposes of removal from office

Thursday, April 20

House Environmental Regulation – 10:30 a.m., E2.030 <NEW>

• HB 3913 by Morales Shaw relating to civil penalties recovered by local governments

<<NOTE: For the rest of the session, our advanced notice of committee hearings will be limited. Please visit our Legislative webpage for the latest committee postings.>>

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days to weigh in on the bills we’ve discussed this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Amicus brief opportunity

The Tarrant County Criminal DA’s Office intends to submit an amicus brief to the U.S. Supreme Court in support of an appeal of the Fifth Circuit’s decision in United States v. Rahimi, (— F.4th —, 2023 WL 23117796 (5th Cir. March 2, 2023)), overturning the federal statute prohibiting the possession of firearms by someone subject to a protective order. That office is supporting the appeal because the Rahimi opinion calls into question the validity of Texas laws prohibiting the possession of firearms by someone subject to a protective order. (Click HERE for a recent Texas Prosecutor journal article about that potential impact.)

If you would like to join their amicus brief or have questions about it, please email Asst. CDA Fredericka Sargent at [email protected] no later than Tuesday, April 18.

Scattershooting

Here are some recent stories you might’ve missed:

• “Lawmakers’ attempts to tighten drug laws could saddle crime labs with an unsustainable workload” (Texas Tribune)
• “Texas Senate approves ban on local governments using public funds on lobbyists” (Austin American-Statesman)
• “Expanded access to medical marijuana gains traction as Texas House advances bill” (Texas Tribune)
• “Don’t Be Fooled by the Legislature’s Tough Talk About Ken Paxton” (Texas Monthly)
• “With tweet about a pardon, Gov. Greg Abbott injects politics into Texas’ criminal justice system” (Texas Tribune)

Quotes of the Week

“[Abbott is] essentially treating them like his minions, like puppets. In my 35-plus years of doing parole work, I have never seen a governor make a request of a parole board like this. … He didn’t allege any kind of specific misconduct, he just engages in this puerile dog whistle. He is a former attorney general. He was a justice for the [Texas] Supreme Court. He should know better.”
            —Gary Cohen, an attorney who specializes in pardon applications, referring to the governor’s social media comments about the recent murder conviction of Daniel Perry in Austin.

“It’s shocking. It’s a little girl’s goat, not Pablo Escobar.”
            —Ryan Gordon, an animal welfare attorney in California, as quoted in an LA Times story about local fair officials who obtained a search warrant for the recovery of a 4-H goat kept by the little girl who raised it and then had the goat slaughtered to “teach [our] youth that they … have to abide by the rules.”

“[The] first third of #txlege is pomp and circumstance, second third of #txlege is working, and final third of #txlege is fighting. [In] other words, we are right on schedule.”
            —Tweet by Jason Sabo, Austin lobbyist and political strategist.

###

We know today is a holiday for many offices, but the House worked on its historic $300 billion biennial state budget for almost 11 hours yesterday and didn’t finish until late, so we couldn’t get this out until now.

Preview

The legislature will take a three-day break this holiday weekend before hitting the ground running on Monday. Starting next week, it will be pedal-to-the-metal lawmaking until the clock runs out on Memorial Day.

And get a load of what they will discuss next week: a ban on prosecutors’ use of Brady lists, creating a felony offense of prosecutorial misconduct for not complying with Brady obligations, conducting criminal proceedings by videoconference, publicly telecasting all court proceedings, requiring management training for elected prosecutors in certain urban counties (upon pain of removal from office for non-compliance), a host of border-related bills designed to criminalize illegal entries, and more.

Prosecutor discipline bills on the march

On Tuesday, a revised version of HB 17 by Cook was voted out of the House Criminal Jurisprudence Committee by a 6–3 vote. This committee substitute of the bill makes certain non-prosecution policies a form of “official misconduct” for purposes of the removal statute, with exceptions for various legal or evidentiary reasons why a prosecution may not be possible or prudent. The bill also requires a regional presiding judge to appoint a visiting judge and visiting prosecutor for a removal action filed against a prosecutor. The text of the substitute version passed by the committee is available HERE to read for yourself. That bill now heads to the House Calendars Committee for possible scheduling for floor debate.

On Wednesday, the Senate passed SB 20 by Huffman (R-Houston) to similarly create a new definition of “official misconduct” for removal purposes, but it varies from HB 17 in both definition and scope. The engrossed version of the bill passed by the Senate is available HERE if you’d like to compare it to HB 17’s language. The Senate bill has not been referred to a House committee yet.

Later on that same Wednesday, HB 200 by Leach (creating a Prosecuting Attorneys Coordinating Council) was voted out of his own House Judiciary & Civil Jurisprudence Committee by a 5–3 party-line vote. The author promised a “substantial floor amendment” to come, but as the issue now stands, the language of HB 200 is incompatible with both HB 17 and SB 20. Chairman Leach publicly promised an open door and open mind for anyone who brings him suggestions, but he is obviously not open to the idea of there not being a state agency of some type to discipline prosecutors in some as-yet-unclear manner. This bill will also head to the House Calendars Committee (like HB 17), but there is no telling what HB 200 could turn into should it make it to the House floor.

If you have questions about any of these bills, please contact Rob.

State of the Judiciary Address

Texas Supreme Court Chief Justice Nathan Hecht delivered his State of the Judiciary Address on Wednesday, but in an unusual way. Rather than a live address before assembled legislators and state leaders, the address was given via online transmission while senators were passing bills on the Senate floor, representatives were adjourning from the floor and heading back to committee hearings, and the kids and grandkids of both were enjoying an Easter egg hunt at the Governor’s Mansion. Which is a shame, because the Chief had some important things they probably need to hear.

As we predicted in last week’s update, this online address was clearly an effort to drive home the need to give the courts more leeway to conduct remote proceedings. Other highlights of the Chief’s speech were calls for increased salaries for judges and their employees, increased collection of data from and about the judicial system, support for more bail reform, and a mention of various other bills. It was pretty standard fare until the finale, when the Chief voiced his concerns about political attacks directed at the judicial branch. It was really a quite stirring defense of the third branch of government, and a timely one considering not just current events at the national level, but also the overt politicization of issues in Texas like those surrounding the Stephens opinions. Sadly, though, we got the feeling we were one of the few watching his speech. It makes one wonder: If a tree falls in a legislative forest and there is no one there to hear it, does it make a difference?

If you are a law nerd like us and would like to watch or read a transcript of the Chief’s prepared remarks, you can find that information HERE.

Finances

Good news/bad news time.

Regarding elected prosecutor salaries, two bills are moving forward to enhance compensation. First, SB 2310 by Hinojosa (D-McAllen) to create a third longevity tier for elected prosecutor salaries was approved by its committee and voted out of the full Senate by a 31–0 vote this week. It now heads to the House, where Rep. Reggie Smith (R-Sherman) has the companion bill.

Second, HB 2734 by Murr (R-Junction) granting cross-credit for service time as an elected prosecutor or judge was approved unanimously by its committee and now heads to the House Calendars Committee for consideration for full floor debate in that chamber. And in tangentially-related news, HB 438 by Schofield (R-Katy) tying future judicial salary increases to the consumer price index was also approved by that same committee and now heads to Calendars as well.

On the flip side, a substitute version of HB 1487 by Gerdes (R-Smithville) was approved by the House County Affairs Committee to create a rural law enforcement grant program for sheriffs and constables in counties with a population below 275,000. Now, if you are thinking this sounds like SB 22 by Springer (R-Muenster), you’d be right, with one very important exception: The Senate bill includes sheriffs and prosecutors, while the House bill applies to sheriffs and constables. And the pot of money available to pay for the salary supplements provided by these bills is not big enough for all three groups to be included in the same bill. So, if you want your offices to benefit from this concept carried by Senator Springer at the behest of Lt. Gov. Patrick, now is the time to act in what could become a zero-sum game. Senate Bill 22 has passed the Senate and is awaiting referral to a House committee, while HB 1487 is on its way to the House Calendars Committee.

Contact Rob or Shannon with questions if you are at a loss for where to start.

House Calendars Committee

Speaking of the House Calendars Committee, we briefed you two weeks ago on how bills get from a substantive committee to the House floor through the House Calendars Committee (see “Floor fun” HERE). Now that the House has kicked HB 1 over to the Senate, this committee will assume outsized importance in determining what bills the full House will get to debate. You can have a role in that process from the comfort of your office or home if you have a good relationship with anyone on that committee. (Membership available HERE.)

As you read about bills—good or bad—that get referred to that committee, let those committee members know your thoughts, even if it is from the comfort of your office or home.

Other action

Things were too hectic this week to give you a breakdown of events by floor and committee, so we’ll just share here some random information about bills on our “Bills to Watch” tracking list (available HERE) or others of interest to you that saw movement this week:

HB 69 by Schaefer (innocent owner defense) and HB 3659 by Hefner (civil asset forfeiture reforms) passed out of committee and are headed to the House Calendars Committee.

HB 1130 by Spiller (prosecutor serving as attorney ad-litem for child) passed from committee and moves on to the House Calendars Committee.

SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm) passed the Senate.

SB 175 by Middleton (ban on taxpayer-funded lobbying) passed the Senate after the adoption of floor amendments that softened its prohibitions; that bill now moves to the House, where it has faced greater opposition in past sessions.

Future floor debates

Bills to be debated on the House floor next week include (in their docket order) HB 393 by Goldman (child support restitution to children of intox manslaughter victims), HB 362 by Oliverson (legalizing fentanyl testing strips), HB 914 by Hefner (tampering with temporary vehicle tags), HB 1088 by Ann Johnson (CA/DA representation of CSCDs in certain lawsuits), HB 178 by Murr (lab testing of fentanyl), HB 205 by Moody (scientific writs for punishment cases), and HB 1805 by Klick (increasing the potency and uses of low-THC cannabis).

Bills eligible for debate on the Senate floor next week include SB 947 by King (damaging critical infrastructure facilities), SB 950 by Kolkhorst (AG representation of counties in federal court), SB 1133 by Blanco (reimbursements for ag property damaged by border trespassers), SB 1427 by Flores (border crime enhancements), SB 1562 by Hancock (creating the offense of child grooming), SB 1709 by King (sedition), SB 1900 by Birdwell (relating to foreign terrorist organizations), SB 1927 by Hughes (turning the State Prosecuting Attorney into a trial prosecutor), and SB 2424 by Birdwell (offense of improper entry from a foreign nation).

Future committee hearings

Here are just a few of the bills scheduled to be heard in committees next week (so far). For the full agenda of each committee, click on the link to the committee itself. Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, April 10

House Corrections – 3:00 p.m. or upon adj., E2.036

• HB 1629 by Wu granting early parole eligibility for certain burglary offenders
• HB 2030 by Dutton restoring certain rights to convicted defendants
• HB 2300 by Allen expanding eligibility for orders of non-disclosure
• HB 2864 by Raymond mandating veterans court diversion absent “good cause”

Tuesday, April 11

Senate Criminal Justice – 1:30 p.m. or upon adj., E1.016

• SB 338 by Hinojosa barring the use hypnotically induced statements against a defendant
• SB 374 by Huffman granting TDCJ more time to dispose of parole violations
• SB 1401 by Zaffirini relating to certain rights of sexual assault victims
• SB 1551 by West relating to drivers who fail to provide identifying information to officers
• SB 1585 by Sparks relating to juvenile proceedings involving mental illness/disability
• SB 1653 by Huffman relating to promotion of prostitution involving a person under 18
• SB 1960 by Perry relating to the carrying of weapons by certain officials
• SB 1970 by Bettencourt authorizing seizure of vehicles used in racing and street takeovers
• SB 2101 by Miles specifying the means for providing notice to crime victims

House Criminal Jurisprudence – 10:30 a.m. or upon adj., E2.016

• HB 327 by S. Thompson expanding the defense of duress
• HB 799 by C. Harris prohibiting prosecutors from accessing or using certain personnel records for Brady purposes
• HB 1163 by Smith creating the offense of boating while intoxicated
• HB 1170 by Gervin-Hawkins imposing standards for indigent capital defense
• HB 1427 by Campos relating to the offense of harassment
• HB 2897 by Walle relating to theft of service
• HB 3025 by Vasut relating to interference with child custody
• HB 3247 by Cain creating a new felony offense for prosecutorial misconduct
• HB 4216 by C. Morales specifying the means for providing notice to crime victims
• HB 4518 by Cook authorizing a court to re-sentence a defendant to reduce a sentence
• HB 4622 by Leach authorizing certain criminal proceedings by videoconference
• HB 5277 by Bucy mandating internet notice and video telecasts of court proceedings

House Homeland Security & Public Safety – 2:00 p.m. or upon adjournment, E2.012

• HB 410 by S. Thompson requiring cite-and-release policies and barring certain arrests
• HB 2668 by A. Johnson relating to sexual assault victims’ rights
• HB 3451 by S. Thompson relating to human trafficking (omnibus bill)
• HB 3729 by Bonnen allowing disclosure of certain evidence to crime victims’ families
• HB 4382 by Guillen requiring CJIS reporting within five days (or loss of funds)
• HB 4966 by K. King relating to law enforcement agency personnel records

Wednesday, April 12

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016

• HB 3675 by Ortega mandating management training for certain urban elected prosecutors
• HB 2043 by Bowers creating an OCA sentencing and diversion database

House Juvenile Justice & Family Issues – 10:30 a.m. or upon adj., E2.030

• CPS investigation of self-reports of drug use by pregnant women
• HB 1086 by Hull requiring probable cause for certain CPS investigations
• HB 2715 by Hull criminalizing the tracking of a person’s property or motor vehicle
• HB 4062 by C. Harris relating to recordings of children during certain custody evaluations

House State Affairs – 10:30 a.m. or upon adj., JHR 140

• HB 20 by Schaefer creating a Border Protection Unit, an alien trespass crime, and more
• HB 30 by Moody revising the “dead suspect” limitation for open records access
• HB 65 by Spiller creating a criminal offense for illegal entry from another nation
• HB 800 by Guillen enhancing penalties for various border crimes
• HB 1600 by Hefner creating a criminal offense for illegal entry into Texas from Mexico
• HB 1610 by Leach requiring OAG to defend the constitutionality of certain state statutes
• HB 3012 by Lozano expanding the offense of smuggling of persons
• HB 3782 by Guillen establishing a Border Security Advisory Council

<<NOTE: For the rest of the session, our advanced notice of committee hearings will be limited. Please visit our Legislative webpage for the latest committee postings!>>

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days to weigh in on the bills we’ve discussed this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Survey request

You should have received an email from our friends at the Texas Association of Counties (TAC) with a link to their County Pulse survey seeking candid feedback to help TAC better serve Texas counties. The survey deadline is April 12, so look for the survey link in your email inbox and consider completing it before then.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas Senate OKs bill to rein in progressive prosecutors. Here’s what the bill could do.” (Austin American-Statesman)
• “Should West Texas change time zones? One researcher says it could make roads safer” (Texas Public Radio)
• “‘Mug Shot’: Donald Trump Didn’t Get One, but Where Does the Name Come From?” (Wall Street Journal)
• “TAC on the Lege—Week in Review for April 6, 2023” (Texas Association of Counties video)

Quotes of the Week

“I grow concerned that political divisions among us threaten the judicial independence essential to the rule of law. The left and right, and leaders in both the executive and legislative branches, are in agreement: Judges are not independent, and shouldn’t be. They should take sides—my side. … [This partisan pressure] destroys the rule of law essential to justice for all.”
            —Chief Justice Nathan Hecht, in his State of the Judiciary Address this week.

“It is unacceptable that rogue district attorneys and judges, primarily in big cities, are not following our laws. These bills send a clear message that their delinquent behavior will not be tolerated.”
            —Lt. Governor Dan Patrick (R-Houston), upon passage of SB 20 (prosecutor removal) by the Senate.

“We had a child molester on the floor for years, they helped him get reelected and did nothing to expel him. We’ve had members pee in each other’s chairs. We’ve had members illegally prescribe drugs to their cousin-mistress, and nothing happened. But talk on the floor without permission, and you’ll get expelled.”
            —State Rep. Gloria Johnson (D-Knoxville), one of three Tennessee House Democrats members threatened with expulsion from that chamber for taking over the chamber podium microphone and using a bullhorn to lead a protest of people in the House gallery chanting for gun reform in the wake of the recent Covenant School shooting in that state. (Maybe the Texas legislature isn’t so crazy after all?)

“It’s like cutting cows out of a herd. [The Legislature] will cut large cities out of the herd and make it to where it doesn’t affect the smaller cities. The next thing you know, they’re imposing that same type of legislation on small cities, and it’s too late—they’ve got the whole herd.”
            —David Rutledge, mayor of Bridge City in Orange County, on the pre-emption phenomenon being pushed by state leaders.

###

<<last updated March 31, 2023 at 4:55pm>>

Yesterday was not only Opening Day of the Major League Baseball season, but it also marked the 80th day of this 140-day session. Which is more likely: The Rangers win more than 80 games this season, or the Astros lose more than 60 games?

Preview

Looking ahead, the full House will debate HB 1 by Bonnen (state budget) on Thursday, which will demand the attention of most House members in preparation for that marathon session of debates, amendments, points of order, and late night fun. Other topics on tap for discussion next week include a potential salary increase for certain long-serving elected prosecutors, prosecutor-initiated resentencing (“PIR”), DNA collection, dozens of gun bills, and more. Read on for details!

Prosecutor accountability update

Although there are many options to choose from, the legislature appears to be leaning toward making SB 20 or HB 17 its preferred solution to the alleged problem of “rogue DAs.” The language of the two bills differs in important ways, but the gist of both is to tweak the existing removal statutes by adding a definition of official misconduct that includes categorical non-enforcement of certain types of crimes.

The Senate State Affairs Committee heard SB 20 by Huffman (R-Houston) last week but left it pending. On Monday of this week, the committee approved a committee substitute version on an 8–2 party-line vote. The bill will be eligible for consideration by the full Senate anytime next week, where it is expected to pass. The latest text of that bill can be read HERE.

Across the rotunda, the House Criminal Jurisprudence Committee considered HB 17 by Cook (R-Mansfield) and then left it pending. The discussion among committee members was more detailed than in the Senate, which was not surprising considering that the bill author is vice-chair of the committee and both the committee chairman—Joe Moody (D-El Paso)—and committee member Jeff Leach (R-Plano) are joint authors of the bill. (In fact, there are now 52 joint or co-authors for HB 17, an indication of strong support if or when it comes to the House floor). It was encouraging to hear the serious discussions among the committee members, including thoughtful questions from Rep. Leach about not improperly regulating speech and musings from committee member Drew Darby (R-San Angelo) about the importance of honoring voters’ choices. The committee also received input from Galveston County CDA Jack Roady and Smith County 1^st Assistant CDA Chris Gatewood, both of whom thanked the members for their measured approach to the issue and testified “on” the bill (which means neither supporting or opposing it) to point out some remaining ambiguities or concerns that the committee might want to address.

As we go forward, it is likely that a new version of HB 17 will be hammered out by the committee members and then voted upon next week. Look for further HB 17 updates in this space then.

Separation of powers: How does it work?

In a special addendum sent out almost exactly one month ago (Update 7.1, available HERE), we reported on bills designed to wire around the decision by the Court of Criminal Appeals (CCA) in Stephens that found the AG’s unilateral prosecution of a criminal case to violate the state constitution’s separation of powers clause. The simple solution would be to amend the state constitution, but that requires 21 votes in the Senate and 100 votes in the House, and those votes are almost certainly unattainable for such fringe issues. Hence, some “creative” bill drafting has been proposed. Here is a status report for some of those bills.

The Senate State Affairs Committee approved a new version of SB 1927 by Hughes (R-Mineola) this week to move the authority of the CCA to appoint the State Prosecuting Attorney (SPA) from that court to the Texas Supreme Court (SCOTX). The committee substitute version of the bill also expands the authority of the SPA to prosecute certain crimes du jour (election, abortion, human trafficking) in the trial courts. As we discussed last week, that last bit is a constitutional dead-end; no one but locally-elected prosecutors have the constitutional authority to prosecute those cases. Period, full stop. But the committee voted the bill out 8–2 anyway. C’est la vie.

That committee also approved SB 1092 by Parker (R-Flower Mound) purporting to give SCOTX the ability to review and reverse any decision by the CCA involving constitutional law (such as in a future Stephens-type situation). That bill was heard last week—which we summarized for you in more detail in last week’s update—and was voted out 7–2 along party lines this week.

Another bill almost identical to SB 1092 is HB 2930 by Spiller (R-Jacksboro), which was heard in the House Judiciary and Civil Jurisprudence Committee on Wednesday. As with SB 1092, a representative of the AG’s Office testified “neutrally” on the bill but essentially stated that the change was needed because, well, it is all just too confusing having two courts, and he further assured the committee that the legislature has the power to take criminal authority away from the CCA (based on what we will charitably call a “convoluted reading” of the constitutional provisions at issue).

However, in a rare event at the capitol, representatives from both the prosecution and criminal defense bars testified in opposition to the bill. Galveston County CDA Jack Roady and Allen Place—a former state rep who now lobbies for the Texas Criminal Defense Lawyers Association (TCDLA)—pointed out that Article 5, Section 3 of the state constitution is crystal clear in excluding all criminal law matters from SCOTX’s jurisdiction. This framework has been in place since 1876 and there is an abundance of caselaw affirming this constitutional division of responsibilities. But, knowing legislators prefer to hear solutions rather than problems, Jack Roady offered the committee a simple one: If you disagree with the current system, then amend those provisions. The people of Texas enshrined that division of judicial labor in the state constitution, and the people of Texas can change it. But the legislature, alone, cannot. (The bill was left pending, by the way.)

Financial support for prosecutors

The Senate unanimously approved SB 22 by Springer (R-Muenster), the lieutenant governor’s rural law enforcement support initiative that will benefit those of you with criminal prosecution duties in counties/jurisdictions with populations below 300,000. It now moves on to the House for further consideration.

Interestingly, there is a similar bill in that chamber that was heard in the House County Affairs Committee this week, but with one important difference. House Bill 1487 by Gerdes (R-Smithville) proposes creating a rural law enforcement grant program, but instead of benefiting sheriffs and prosecutors, it benefits sheriffs and constables. And to do that, it would draw from the same pot of money in the proposed state budget bills. To date, the author of that bill has declined to add prosecutors to his bill, but we will keep you posted as that develops.

In other compensation-related news, the House Judiciary & Civil Jurisprudence Committee heard HB 2734 by Murr (salary cross-credits for judges and prosecutors) and left it pending. Thanks go out to 46^th Judicial DA Staley Heatly for coming to town and testifying on that important bill. And on Monday morning, the Senate Finance Committee will hear SB 2310 by Hinojosa (D-McAllen), the bill to restore pay parity with the judges. (Email Staley HERE if you want to support that bill in person—he could probably use some help!)

State of the Judiciary Address

Chief Justice Nathan Hecht will deliver his constitutionally-required State of the Judiciary Address at noon on April 5 via a live-stream telecast from the courtroom of the Texas Supreme Court. This curve ball of an announcement represents a change from the traditional pre-pandemic practice of personally giving the address before assembled legislators, but it is consistent with the governor’s recent practice of finding creative new ways to pitch his State of the State Addresses. We assume the Chief will also use this opportunity to tout the benefits of video testimony, something the Texas Judicial Council hopes the legislature will broaden this session.

To view the event live, tune in to the Texas Judicial Branch website next Wednesday at noon.

Floor action

The House started passing House bills this week, including HB 28 by Slawson (agg assault enhancement). The House also gave preliminary approval to HB 727 by Rose (no death penalty for severe mental illness), but the vote on second reading was close, so final consideration of that bill on third reading was postponed until Wednesday, April 5.

The Senate passed the following Senate measures this week: SB 1151 by Whitmire (10-percent surety bond fee) and SB 1318 by Huffman (bail reform clean-up). Those bills now head to the House.

Committee news

Not many House bill committee reports were finalized this week, but in the Senate, committees approved SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm), SB 129 by Springer (punishment ranges in child pornography cases), SB 386 by Hall (presumption in capital cases), SB 602 by Birdwell (felony arrest authority for U.S. border patrol agents), SB 950 by Kolkhorst (AG may represent counties in federal civil suits upon request), SB 1045 by Huffman (creation of a 15th court of appeals for civil appeals by or against the state), SB 1527 by Huffman (omnibus human trafficking and child grooming bill), and SB 1717 by Zaffirini (stalking).

Future floor debates

There isn’t much of note scheduled for the House floor next week other than the state budget and HB 727 (set for Wednesday, as mentioned above), but in the Senate, bills eligible for floor consideration next week include SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm), SB 48 by Zaffirini (standardized protective order forms), SB 175 by Middleton (ban on taxpayer-funded lobbying), SB 224 by Alvarado (catalytic converter theft), SB 950 by Kolkhorst (AG may representation of counties in federal court upon request), and SB 1133 by Blanco (reimbursements for ag property damaged by border trespassers).

Future committee hearings

Here are some bills scheduled to be heard in committees next week (so far). Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, April 3

Senate Finance – 10:00 a.m., Room E1.036

• SB 2310 by Hinojosa restoring pay parity between elected prosecutors and judges

Tuesday, April 4

Senate Criminal Justice – 8:30 a.m., E1.016 <<added>>

• SB 409 by Hinojosa clarifying certain victims’ rights to confer with prosecutors
• SB 435 by Middleton permitting disclosure of certain evidence to victims’ families
• SB 533 by Paxton relating to peace officer training on child fatalities
• SB 839 by West creating a witness protection unit of the Texas Rangers
• SB 1010 / SJR 51 by Parker relating to the denial of bail for certain crimes involving child victims
• SB 1179 by Perry relating to crimes at civil commitment facilities
• SB 1180 by Perry limiting civil actions by civilly committed offenders
• SB 1325 by Alvarado relating to notice provided to victims of family violence
• SB 1361 by Huffman criminalizing sexually explicit deep fake videos
• SB 1445 by Paxton, the TCOLE sunset reauthorization bill
• SB 1562 by Hancock creating a criminal offense of child grooming
• SB 1852 by Flores relating to active shooter training for peace officers
• SB 2085 by Whitmire creating a grant program for crime victim notification systems
• SB 2101 by Miles changing the manner of crime victim notification
• SB 2429 by Hancock relating to law enforcement training for missing children/persons

House Criminal Jurisprudence – 10:30 a.m. or upon adj., E2.016

• HB 909 by Moody authorizing prosecutor-initiated resentencing and commutation
• HB 948 by Dutton relating to bail for parole violations
• HB 1506 by Meyer extending the statute of limitations for abandoning/endangering a child
• HB 1731 by Jolanda Jones requiring personal bonds for certain misdemeanor offenders
• HB 1739 by Leach clarifying certain victims’ rights to confer with prosecutors
• HB 2019 by Neave Criado extending the statute of limitations for certain burglary offenses
• HB 2326 by Moody relating to blood specimens taken during an inquest
• HB 2700 by Guillen criminalizing AI-generated explicit visual imagery of children
• HB 2696 by Howard redefining consent for purposes of certain sexual assaults
• HB 3660 by Vasut creating a defense for certain trap-neuter-release programs
• HB 3956 by Smith relating to DNA sample collection after arrest

House Select Committee on Community Safety – 2:00 p.m. or upon adjournment, E2.012
(there are a dozen firearm-related bills posted for this hearing; click on the link above for details)

Wednesday, April 5

House Judiciary & Civil Jurisprudence – 8:00 a.m., Room E2.016 <<added>>

• HB 103 by Murr relating to a retired judge’s appointment as a visiting county court judge
• HB 1627 by Hernandez requiring implicit bias training for judges and lawyers
• HB 3249 by A. Johnson relating to the reporting of district court workloads
• HB 3474 by Leach, the omnibus court creation and court administration bill
• HB 4635 by Guillen creating a civil cause of action for racketeering and organized criminal activities
• HB 5010 by Schofield relating to the classification of a state bar grievance

House Licensing & Administrative Procedures – 8:00 a.m., Room E2.010 <<added>>

• HB 1601 by Wu authorizing and regulating poker clubs
• HB 2345 by Guillen changing gambling statutes to authorize poker rooms

House Juvenile Justice & Family Issues – 10:30 a.m., or upon adj., E2.030 <<added>>

• HB 491 by Wu changing the age of juvenile jurisdiction to 12-17 years of age
• HB 506 by Wu imposing certain limitations on restraint and clothing of juveniles in court
• HB 507 by Wu limiting the discretionary transfer of a juvenile to adult court
• HB 804 by Talarico relating to the confidentiality of juvenile records
• HB 1059 by Thierry prohibiting juvenile referrals or prosecutions for prostitution
• HB 4356 by Talarico replacing TJJD with the Office of Youth Safety and Rehabilitation

Bills to watch

Bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks, as well as a “Bills to Watch” track that includes these new additions above and others we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in April or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas Republicans, once allied with prosecutors, seek to rein them in” (Texas Tribune)
• “The Horrifying Epidemic of Teen-Age Fentanyl Deaths in a Texas County” (The New Yorker)
• “Texas House delays final vote on barring the death penalty for mentally ill defendants” (Texas Tribune)
• “As book bans ebb, the battle to criminally charge Texas librarians has started” (Houston Chronicle)
• “Texas legislators debate bill to remove gay sex ban from state law” (Dallas Morning News)

Quotes of the Week

“It’s scary to think about prosecuting librarians for providing books. That doesn’t sound like America.”
            — Bill Mendy Autry, president-elect of the Texas Association of School Library Administrators, as quoted in a Houston Chronicle story about attempts to criminally enforce laws against making books with sexual content available to children or teens.

“We had a couple times where people have overdosed in bathrooms. You never used to see people wheeled out on stretchers, and that’s happened three or four times this school year. The nurses have Narcan hanging right by the door in case somebody needs to come in and grab it real quick.”
            — An anonymous student at Lehman High School in Hays County, where nearly 40 percent of the fentanyl overdoses recorded by the sheriff’s office last year involved people younger than 18.

“Alright … you got your moment. I hope you enjoy it.”
            — State Rep. Jeff Leach (R-Plano), after having to read several prank names of fake witnesses registered to testify on a bill this week. (You can view the South Park-worthy video HERE, with the NSFW audio portion from 7:01:15 to 7:02:05. Kudos to Chairman Leach and his staff for managing it as well as possible.)

###

<*supplemented with new committee notices after original posting*>

Last Monday was the 70^th day of this 140-day legislative session, meaning we are now on our downhill slide to sine die when this session ends, for better or worse, on Memorial Day. As with most amusement park thrill rides, these final two months will be filled with twists and turns, thrills and chills, and occasional projectile vomiting. Please remain seated and keep your hands inside the ride at all times.

Looking ahead, topics on tap for discussion next week include (more) prosecutor removal bills, (more) asset forfeiture limitations, (more) fentanyl changes, human trafficking, stalking, and family violence changes. Read on if you dare!

The “lazy, overzealous prosecutor”

We have long joked that many bills that get filed at the legislature are a response to feelings that prosecutors either aren’t doing their jobs (lazy) or are overdoing their jobs (overzealous), and if only we could meld the two stereotypes together, we’d have a perfect “lazy, overzealous prosecutor” strawman for all occasions. Here is how that is bearing out this session.

In our previous update, we pointed out the many policy fronts on which legislators are seeking to stop overzealous local officials—including county attorneys and district attorneys—from over-regulating or overusing their regulatory authority in ways contrary to the wishes of the current ruling party. But another powerful impetus behind attacks on local prosecution this session stems from general feelings of impotence in the face of officials allegedly “not doing their jobs”—at least not in the manner desired by the complainants. This reaction has been most visible in the area of border security. Legislators have filed dozens of bills to creatively enforce immigration laws that the U.S. Supreme Court has said lie solely within the power of the federal government to administer. Justifications for pushing the constitutional envelope on this front usually come down to claims that the Feds have abdicated their duty to defend the border and that the State of Texas has a “responsibility” to fill that gap. However, from a federalism point of view, states have no such responsibility; instead, what they have is a desire to take up that job. As a result, you end up with two contrary policy positions that are causing a lot of friction this session: On one hand (and to paraphrase a meme), “the Constitution doesn’t care about your feelings.” On the other hand, feelings are very powerful drivers of politics and public policy.

With this border security dynamic in mind, turn now to the many bills filed this session to empower the AG (or anyone and everyone else) to prosecute crimes that local prosecutors allegedly won’t prosecute. Proponents of this position make arguments very similar to the border debate: The legislature has a “responsibility” to step in, the legislature has to “save” citizens from crime, the legislature has to “take matters into its own hands,” etc. But as with the immigration issue, the state constitution purposely limits the legislature’s authority to “color outside the lines” in order to achieve its desired results in this policy area. The question is: Does the legislature care?

We may have gotten a glimpse this week into the process that will yield that answer thanks to four bills heard in committee this week (all of which were left pending in committee).

Disciplining prosecutors: Round 1
On Wednesday, the House Judiciary and Civil Jurisprudence Committee heard HB 200 by Chairman Jeff Leach (R-Plano), one of the many bills filed to “do something” about prosecutors who “won’t do their job.” To do that, the bill re-creates the defunct Prosecuting Attorneys Coordinating Council that was abolished in 1985. Only two advocacy groups testified in favor of it. One was from Texas Right to Life, which supports the bill because it would allow for the punishment of prosecutors who speak out against prosecuting abortion-related offenses. (“Lazy” prosecutor? Check.) The other group testifying for the bill was the Combined Law Enforcement Associations of Texas (CLEAT, a cop union). It and other law enforcement unions who did not testify are in favor of the bill because a re-created council would give them a home for their complaints about prosecutors who prosecute too many police officers but not enough other people, especially drug and property crime offenders. (“Overzealous” and “lazy” prosecutor? Check, check.)

In opposition, Galveston County CDA Jack Roady and Smith County CDA Jacob Putman testified that any solution should be narrowly focused on public pronouncements by prosecutors that they will not enforce an otherwise valid criminal statute, and the state doesn’t need to recreate a failed state agency to do that. And in the category of strange bedfellows, the ACLU also testified against the bill and in support of prosecutorial discretion. The committee also heard in great detail all the ways that prosecutors are already held accountable (more on that HERE).

Disciplining prosecutors: Round 2
On Thursday, the Senate State Affairs Committee took testimony on SB 20 by Joan Huffman (R-Houston). Senator Huffman’s bill amends Local Gov’t Code Ch. 87 (removal of local officials) by adding a provision that an elected prosecutor “may not adopt or enforce a policy under which the prosecuting attorney refuses to prosecute a class or type of criminal offense for any reason other than to comply with an injunction, judgment, or order issued by a court,” nor may that elected prosecutor allow an assistant to do likewise. This language is from a new committee substitute version of the bill (“CSSB 20”) drafted with input from some prosecutors who have been in Austin working on this issue. (You can view that language HERE.) Testimony in support of the bill was similar to HB 200: CLEAT and Texas Right to Life (plus the Texas Alliance for Life, which prefers this version to HB 200) in favor, with the ACLU opposed. No prosecutors testified for or against CSSB 20.

SCOTX > CCA
Two other bills heard in Senate State Affairs yesterday could also impact prosecution in Texas. First up was SB 1092 by Parker (R-Flower Mound), which would grant the Texas Supreme Court (SCOTX) a veto over certain rulings made by the Court of Criminal Appeals (CCA) on the constitutionality of state statutes. Bills like this are a direct reaction to the Stephens opinion and an attempt to reverse it without amending the state constitution. That was made crystal clear in the layout of the bill and a question-and-answer colloquy between the author and Grant Dorfman, the Deputy First Assistant Attorney General called as a resource witness for “on” the bill. If you enjoy listening to an OAG lawyer (and former civil district court judge) testify that the criminal courts aren’t equipped or experienced enough to handle grand matters of constitutional interpretation that might impact more than one defendant, you can watch that 10-minute discussion HERE (17:47–27:00 mark). However, we did enjoy his confirmation that—as we predicted last month—the basis behind the supposed constitutionality of these anti-CCA bills is a patently misleading reading of the plain language of Article 5 of the state constitution. But hey, we’re just dumb ol’ criminal attorneys, what do we know about the constitution?!?

Another bill heard yesterday that relieves the CCA (and you) of some duties was SB 1927 by Hughes (R-Mineola) which would move the State Prosecuting Attorney (SPA) under the authority of SCOTX instead of the CCA and then grant that SPA (whom SCOTX would appoint) new powers to prosecute certain crimes in the trial courts. This idea is also a constitutional dead-end because Article 5, Section 21 reserves that criminal trial authority to locally elected county attorneys and district attorneys alone. But as was made clear by the abortion- and election-focused witnesses who testified for this bill, “something has to be done” about prosecutors who allegedly won’t prosecute those cases—and that end may justify whatever means are required to do it. (By the way: no judge or justice of either court appeared to testify on either of these bills, nor was the current SPA available to testify.)

Takeaways
So, what did we learn from these first two rounds of prosecutor accountability hearings?

First, although the “rogue DA” story line may be a hot topic in certain political circles, it appears to have garnered little interest from the public at large outside of some very issue-specific advocacy groups. Stated another way, it is more of a “primary election” issue than a “general election” issue. (But guess which issues often get the most attention in a state in which our leadership is determined by the primary results of one party?) We also saw some of our friends in law enforcement desperately trying to make what is generally a “lazy prosecutor” problem for the single-issue abortion and election primary voters into an “overzealous prosecutor” fix for their union members. So maybe they will succeed in finally creating that Frankenstein’s monster of a strawman we always mused about in sessions past.

That said, we also learned that many of you may be amenable to a targeted approach by the legislature that addresses public pronouncements and hard-and-fast policies in a manner that doesn’t create collateral damage in unrelated areas (as a new disciplinary council could do). We know legislators (especially in the House) are telling us that they are hearing from their local prosecutors, so keep them updated on your views as new language on these bills comes out (and don’t forget to clue us in on where you stand as well!) If you need more information about any of this, please contact Rob.

Financial support for rural sheriffs and prosecutors

OK, who’s ready for some good news?!? (This is what the kids call “a timeline cleanser.”)

The Senate Finance Committee considered and approved a committee substitute version of SB 22 by Springer (R-Muenster), the lieutenant governor’s rural law enforcement support initiative. The primary thrust of this bill is to help rural sheriffs, but this latest version will also benefit those of you with criminal prosecution duties in counties with populations below 300,000 by providing $100,000 to $275,000 per year in new grant funding for your personnel costs. (For details, read the bill linked above.)

This measure now heads to the Senate floor (perhaps as soon as next week) for approval by that chamber, after which it will be sent to the House for further action. Both chambers’ baseline budget bills include funding for these programs, but the Senate bill has no House sponsor yet, so its fate in that chamber is murky at this time.

Thanks go out to Galveston County CDA Jack Roady (TDCAA’s board chairman) and Smith County CDA Jacob Putman for testifying on this issue before the committee.

Floor action

The House won’t start passing House bills until next week, but the Senate passed the following Senate measures this past week: SB 740 by Huffman (limitation on reduction of certain urban prosecutors’ budgets), SB 1004 by Huffman (tampering with electronic monitors), and SJR 44 by Huffman (constitutional amendment on bail denial).

Committee news

In the House, committees gave preliminary approval to the following bills: HB 1737 by Leach (mandating orders of nondisclosure) and HB 1805 by Klick (expanding compassionate use of cannabis). These bills now head to the Calendars Committee for possible consideration by the full House.

Floor fun

“Calendars Committee”? What’s that, you ask? Now that bills are passing House and Senate committees, it’s important you know how this works if you want to continue to engage with the legislature about them. Allow us to provide as short a summary as possible so that you can act when needed.

In the upper chamber, bills that have a committee’s stamp of approval may be placed on the Senate Intent Calendar to indicate the author’s intent (duh) to bring the bill up for a vote on the floor. That floor consideration requires the approval of five-ninths of the senators present (or 18 of the 31 senators if all of them are on the floor—which just coincidentally is one fewer than the number of Republican senators). But even if a senator can clear that hurdle, there is another, larger one: The lieutenant governor, as presiding officer, has the sole authority to recognize a senator to bring up a bill. If the Lite Guv doesn’t like a bill, he can ignore the author’s request to bring up that bill and kill it—even if it has unanimous support. It’s like a veto that cannot be overridden. (And now you know one reason why our state’s lieutenant governor is so powerful.) This system is also why there is no way to know what bills will be heard when—it entirely up to the Lite Guv to call on senators for bills to debate on the floor.

Across the rotunda, the House rules for getting bills to the floor are less centralized in power but more orderly—perhaps the only time that last bit can be said about the more boisterous lower chamber. Rather than give the Speaker powers similar to those of the Lite Guv, the House uses a Calendars Committee to decide (without public testimony) which bills already approved by a committee get debated on the House floor and in what order the lucky winners get heard. This makes the Calendars Committee members increasingly powerful as the session goes on due to various deadlines that kick in about six weeks from now. Therefore, if you are interested in a House bill that has received committee approval and you know any members of the Calendars Committee, you can give them a ring and let them know your thoughts. Some bills will fly through House Calendars, while others will die a mysterious death with no fingerprints left behind.

For the curious, the members of the House Calendars Committee are: Burrows (R-Lubbock), chair; Rose (D-Dallas), vice-chair; Cook (R-Mansfield), Geren (R-Fort Worth), Hefner (R-Mt. Pleasant), Hernandez (D-Houston), A. Johnson (D-Houston), Patterson (R-Frisco), Slawson (R-Stephenville), Talarico (D-Round Rock, and E. Thompson (R-Pearland).

Future floor debates

With that background in mind, we can tell you that the first House bill calendar of the session has been set for next week and includes the following bills set for Wednesday, March 29: HB 727 by Rose (barring application of the death penalty to certain offenders with mental illness), and HB 28 by Slawson (aggravated assault enhancement). (Those are listed in their appearance on the calendar and the House will take them up in that order—along with a bunch of other measures you probably don’t care about.)

Meanwhile, bills that could be debated by the full Senate next week include: SB 22 by Springer (rural law enforcement grants), SB 175 by Middleton (ban on taxpayer-funded lobbying), and SB 1151 by Whitmire (10-percent surety bond fee).

Future committee hearings

Here are some bills scheduled to be heard in committees next week (so far). Click the committee’s name for the full agenda of bills and additional details, including hyperlinks to each bill. Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, March 27

House Select Committee on Youth Health and Safety – 2:30 p.m. or upon adjournment, E2.026

• HB 1977 by Morales Shaw creating a youth offender pretrial intervention program
• HB 2066 by Cook diverting foster youth from juvenile court
• HB 2687 by Leach limiting juvenile court jurisdiction over children aged 10-12

Tuesday, March 28

House Human Services – 8:00 a.m., E2.030

• HB 635 by Frank providing notice to alleged child abuse perpetrators

Senate Criminal Justice – 8:30 a.m., E1.016

• SB 49 by Zaffirini relating to crime victims compensation
• SB 385 by Hall relating to impoundment of vehicles used in street racing
• SB 386 by Hall creating a presumption for capital murder cases involving peace officer victims
• SB 806 by Paxton imposing duties for officers interacting with victims of sexual assault
• SB 991 by Hinojosa establishing a DPS crime lab online portal
• SB 1527 by Huffman relating to human trafficking; creating an offense of Child Grooming
• SB 1717 by Zaffirini relating to the offense of stalking and evidence admissible at trial
• SB 1727 by Schwertner, the TJJD sunset reauthorization bill
• SB 2000 by Whitmire allowing parochial schools to commission peace officers

House Corrections – 10:30 a.m. or upon adjournment, JHR 140

• HB 1449 by Collier restricting probation revocations for certain felony offenders
• HB 1705 by Allen granting early release credits to certain state jail felony offenders
• HB 2141 by J. Gonzalez authorizing notice of a probation violation by summons
• HB 3341 by A. Johnson authorizing orders of nondisclosure for young offenders

House Criminal Jurisprudence – 10:30 a.m., E2.016

• HB 6 by Goldman relating to fentanyl and other drug prosecutions and punishments
• HB 17 by Cook relating to the removal of prosecutors for official misconduct
• HB 227 by A. Johnson imposing a 10 percent fee requirement on surety bonds
• HB 382 by Collier legalizing consumable hemp containing marijuana or other drugs
• HB 1362 by Wu barring application of the death penalty to offenders younger than 21
• HB 1603 by Guillen authorizing pro tem appointments of non-prosecutors in Class Cs
• HB 1709 by Canales authorizing a reform of a final bail bond forfeiture judgment
• HB 1712 by Canales relating to including a magistrate’s name on signed orders
• HB 1769 by Meyer extending statutes of limitation for certain crimes against kids
• HB 1784 by Landgraf relating to protective order and bond condition violations
• HB 1896 by Guillen relating to intimate visual material
• HB 2055 by V. Jones repealing the criminal offense of homosexual conduct
• HB 2084 by Landgraf increasing the punishment for street racing
• HB 2189 by Julie Johnson increasing the punishment for assaulting hospital personnel
• HB 2306 by Hefner relating to voyeurism
• HB 3183 by Schatzline limiting the use of testimony from in-custody informants
• HB 3260 by Herrero authorizing statutory county courts to expunge records
• HB 3659 by Hefner increasing the state’s burden for (and reporting of) civil asset forfeitures and barring forfeiture of contraband in amounts less than $5,000
• HB 4061 by Schatzline barring sex offenders from victims’ residences
• HB 4517 by Moody limiting the use of some personal bonds

House Homeland Security & Public Safety – 2:00 p.m. or upon adjournment, E2.012

• HB 2883 by K. King authorizing DPS highway checkpoints along the New Mexico border
• HB 2899 by Plesa relating to impounding vehicles involved in street racing
• HB 4528 by Wilson letting DWI suspects keep their DLs after test refusals/failures
• HB 4598 by Leach relating to catalytic converter theft and resale
• HB 4642 by Guillen making “fentanyl poisoning” a manslaughter offense

Wednesday, March 29

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016 <*added*>

• HB 1130 by Spiller allowing CAs or DAs to appear as counsel adversely to the State in civil cases
• HB 2734 by Murr granting service credits to certain elected prosecutors and judges for salary purposes
• HB 2779 by Leach increasing the judicial benchmark salary
• HB 2930 by Spiller granting SCOTX a veto over certain constitutional rulings by the CCA
• HB 3504 by Leach relating to emergency mental health detentions
• HJR 107 by Price raising the mandatory retirement age for state judges

Bills to watch

Many bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks, as well as a “Bills to Watch” track that includes these new additions above and others we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Training scholarships

The Criminal Justice Section of the State Bar is offering a limited number of scholarships to our Annual Conference in September. The deadline for being considered is April 30. For more information or to apply, use this online form.

Scattershooting

Here are some recent stories you might’ve missed:

• “Republicans Try to Rein in ‘Rogue’ Progressive Prosecutors” (Pew Stateline)
• “Must-pass bills of Dan Patrick, Dade Phelan show Texas GOP has warring factions” (Dallas Morning News)
• “Opinion: The Legislature’s shameless and unconstitutional court-packing plan” (Austin American-Statesman)
• “Cornyn chides House GOP for targeting Manhattan DA over Trump’s porn star hush money case” (Dallas Morning News)
• “A sex trafficking case, a plea deal and a mother’s pain” (AP News)

Quotes of the Week

“You can only spread really good jelly on bread so thin.”
            — Bill Helwig, Yoakum County CDA (and current TDCAA president), as quoted in a Texas Tribune article describing the challenges of providing criminal defense services in rural Texas.

“The old joke was that the first thing the Legislature did when they met was to increase the penalties for everything. This session it’s a reality. Crime is a potent political issue, and both chambers want to look responsive.”
            — Brandon Rottinghaus, University of Houston political science professor, as quoted in the Dallas Morning News. (For what it’s worth, we count at least 120 enhancement bills filed this session, including several that impose mandatory minimum sentences for crimes, something that the Texas Legislature has rarely favored in the past.)

“I’m a firm believer, as a former criminal defense lawyer and judge, that we should not be messing with the discretion we grant prosecutors because they, for the most part, exercise that discretion through their deputies every single day on every single case. [But when] they just declare—through, in my opinion, a usurpation of the legislative power—the ability to ignore entire categories of crime, that’s not prosecutorial discretion. That’s just prosecutorial blanket nullification.”
            —Charles Stimson, senior legal fellow at the Heritage Foundation, as quoted in a Pew Stateline story covering responses by Republican legislatures around the country to progressive prosecutors’ policies or actions.

“It doesn’t make sense to me that the federal government can pass a law, then not enforce it, and then say, ‘Sorry, you can’t enforce a similar law.’ … We’ve got a different [U.S. Supreme] Court, we’ve got the best chance we’ve ever had to overturn that and give the states the ability to protect our citizens. Because if we can’t do it, then we leave our citizens unprotected in various ways.”
            —Texas Attorney General Ken Paxton (R-McKinney), testifying on border security-related bills before the Senate Border Security Committee and publicly laying out the theory justifying the enactment of new laws whose enforcement would violate current Supreme Court caselaw but create new legal vehicles to challenge that caselaw.

###

<*The original post has been updated with additional hearing notices for Wednesday and Thursday*>

Happy Saint Patrick’s Day! May you find a pot of gold at the end of your March Madness rainbow. (Offer not valid for Arizona or Virginia or A&M fans.)

A look back, a look ahead

After the dust from Friday’s deadline settled, the 88th Texas Legislature had filed a record 7,857 bills and joint resolutions. (The House alone filed 5,292 bills, the first time it has ever exceeded 5,000.) We are now tracking 1,752 pieces of legislation—22 percent of all bills and joint resolutions—far more than we have ever had to track before. After spending all week getting caught up, we’re too tired to draw any pithy conclusions from that excessive volume, so insert your own joke here.

Looking ahead, topics on tap for discussion next week include new funding for “rural” sheriffs and prosecutors, asset forfeiture changes, employment law actions for and against prosecutors, early parole for violent offenders, juvenile justice reforms, about two dozen gun-related bills, and more. Read on if you dare!

Financial support for some sheriffs and prosecutors

At the filing deadline last week, State Sen. Drew Springer (R-Muenster) filed SB 22, the lieutenant governor’s rural law enforcement support initiative. This bill will benefit many (but not all) of you and it was just posted for a committee review this upcoming Wednesday, so please read the bill (at that link) and the following summary carefully.

As we previously reported, the Senate has set aside $350 million during the next biennium to support law enforcement in rural Texas, including prosecution. To do that, the introduced version of the bill establishes a grant program run by the comptroller that is based on three population tiers: less than 10,000, 10,000 to less than 50,000, and 50,000 to less than 300,000. (Sorry Lubbock, you missed the cut by a hair!). Law enforcement grants would be awarded to counties in the amounts of $250,000/year for the smallest tier, $350,000/year for the middle tier, and $500,000/year for the largest tier. Those funds would then be used to establish minimum annual salaries of $75,000 for a sheriff, $45,000 for deputies who make traffic stops, and $40,000 for jailers. The bill also establishes a Rural District and County Attorney’s Office Salary Assistance Grant Program using the same three tiers, awarding a county $100,000, $175,000 or $275,000 per year (per tier, respectively) for assistant prosecutor and CA/DA investigator salaries.

Of course, many of you may note that a county-based model that works for sheriff’s departments and one-prosecutor counties might not work as smoothly for multi-prosecutor counties. But not to worry—we are working with the powers that be to address that complication. The important thing to note at this stage is that this legislation represents significant support for rural prosecutors, and the early reaction from some of the prosecutors who could benefit from this program is that it will make a real and lasting improvement in their ability to protect and serve their local communities.

We are excited to be working on this new project for you, and we fully expect this priority of the lieutenant governor to have smooth sailing through the Senate. However, it doesn’t hurt if those of you who might benefit from it and who have senators on the Finance Committee drop them a line to let them know of your support. (Committee membership available HERE.) We still can’t guarantee what this will look like when all is said and done, but if you have general questions about this bill, please contact Rob (after reading the bill for yourself, of course).

House committee approves judicial pay raise

On Thursday, the House Appropriations Committee met to consider and approve the work of the various subcommittees that hammered out the initial details of HB 1 (the state budget for FY2024–2025). The committee substitute version of that budget bill should be printed next week and scheduled for floor debate in early April, which is when the rest of the House members will get their crack at spending the public’s money.

Of particular note, HB 1 now includes a 5 percent per year raise to the benchmark pay of a district judge—from $140,000 to $147,000 in FY 2024 and to $154,350 in FY 2025. That also means an increase in longevity tiers as well (up to as much as $185,220 in FY 2025 for those with more than eight years of service). But don’t go spending that money yet—as we have previously reported in this space, the Senate Finance Committee may be less enthused about giving district judges a raise. However, if the recent House bump is still in HB 1 when it leaves the House and heads to the Senate, hope remains until the joint House–Senate conference committee hammers out their differences during the final week of the session and everyone learns the answer. (For those of you who have seen this play out fruitlessly in the past, we have some inspiration for you.)

Welcome to the crowd

As we noted during last summer and fall’s political campaigns, prosecution has become part of the national culture war battle being fought between those with binary worldviews colored by their red or blue lenses of choice. That explains the 34 new bills filed in the areas of “prosecutorial accountability” or “prosecutorial discretion” this session (33 of them by members of the same political party). Almost every one of these bills is original legislation that has not been filed in past sessions (see our previous point again), so we have created a separate track to follow them. To review that list and see where those bills stand as of this morning, CLICK HERE.

(Seriously, click it. Scroll through it. If you plan to engage with legislators on any topic under the sun this session, you need to be aware of this pre-emption undercurrent because it explains much of what is going on in Austin right now.)

Obviously, there is no way all of these bills will be considered this session, but we expect some of them to start moving soon. Remember, committee hearings in the Senate can be posted with only 24 hours’ notice, and sometimes they waive even that minimal warning. As a result, anyone hoping to engage with legislators on these bills must be familiar with them ahead of time. So … happy scrolling through that list!

Local officials defend public nuisance authority

On Wednesday, the House Judiciary & Civil Jurisprudence Committee took testimony on HB 1372 by Cody Harris (R-Palestine). The pre-emption bill is designed to strip local governments of the ability to use public nuisance suits in situations in which the offender was authorized to act by an ordinance, permit, etc., of a political subdivision, the state, or the feds. (An example of a suit that would be barred under the bill would be one against a drilling company that destroys a county’s water supply; because the company operates under a TCEQ permit, only TCEQ could seek a remedy—in that case, an administrative penalty.)

Witnesses in favor of the measure included big money groups such as the Texas Association of Business (TAB), the U.S. Chamber of Commerce (USCC), and Texans for Lawsuit Reform (TLR). Opposition to the bill from local governments focused on highlighting successful efforts by counties to recover damages from pharmaceutical companies in response to the opioid crisis (something that an assistant AG testified was critical to the success of the state’s own opioid recovery efforts). Effective testimony against HB 1372 was offered by McMullen County Attorney Kimberly Kreider-Dusek, Coryell County Attorney Brandon Belt, and Assistant Harris County Attorney Tiffany Bingham, who deserve your appreciation for taking the time to come to Austin and be heard on this important local issue.

Meanwhile, across the rotunda this week, a Senate Committee heard testimony on SB 175 by Middleton (R-Wallisville), the so-called “taxpayer-funded lobbying ban” designed to hamstring local officials who want to organize and oppose bills such as HB 1372 through their affiliate groups like the Texas Association of Counties. That Senate bill was approved by the Senate State Affairs Committee (as it always is in the Senate) and now heads to the Senate floor, where it will pass (as it always does in the Senate).

Floor action

The House should start passing House bills over to the Senate late next week. Meanwhile, the Senate passed the following bills this past week: SB 2 by Hughes (increased punishment for illegal voting), SB 402 by Whitmire (docket preference for homicide cases), SB 497 by Zaffirini (regulating kratom), and SB 1319 by Huffman (overdose mapping).

The Senate also passed SB 645 by Huffman (fentanyl crimes), but with two twists you should know about that were apparently requested by Governor Abbott’s office. First, his staff wanted death certificates to include a “fentanyl poisoning” notation any time fentanyl turns up in a post-mortem toxicology report—regardless of whether it was actually related the person’s cause of death. Fortunately, that language was fixed on the Senate floor to make any such notation more factually accurate. And second, the bill now amends Penal Code §19.02 (Murder) to add a manner and means for manufacturing or delivering fentanyl that results in death. But this proposed form of murder only applies to fentanyl, not heroin or xylazine or the next new way people will find to kill themselves via drug use in a few years. Also, the new murder crime requires no intent to kill (or even knowledge of the presence of fentanyl), so unless that gets fixed in the House, good luck seating a jury for a crime that carries a potential life sentence for a high school kid who unknowingly passed an unmarked pill to her now-dead friend. On the other hand, we also know what the legislature is threatening prosecutors with if you don’t strictly enforce laws like this, so … yeah, good luck with that.

Committee news

The House Corrections Committee approved HJR 11 and HB 182 by S. Thompson (judicial clemency to release parolees from supervision) and HB 392 by S. Thompson (earlier eligibility for orders of nondisclosure).

The House Criminal Jurisprudence Committee approved HB 28 by Slawson (agg assault enhancement), HB 180 by Moody (withdrawal of execution warrant), HB 393 by Goldman (child support restitution for intox manslaughter), HB 727 by Rose (exemptions certain mentally ill offenders from the death penalty), HB 1207 by Guillen (no statute of limitations for tampering with a corpse), and HB 1736 by Leach (limiting party liability for capital cases).

These bills now head to the Calendars Committee for possible consideration by the full House.

Future floor debates

We are entering the stage of session in which upcoming floor calendars can give us an inkling of what the two chambers will be debating and voting upon as a whole in the near future. The House hasn’t posted its first calendar yet, but bills that could be debated by the full Senate in the near future include: SB 175 by Middleton (ban on taxpayer-funded lobbying), SB 740 by Huffman (local election required to reduce funding for urban prosecutor offices), SB 1004 by Huffman (crime of tampering with electronic monitor), and SJR 44 by Huffman (constitutional amendment authorizing denial of bail in some cases).

Future committee hearings

On next Tuesday alone, we are tracking 51 bills that will be heard in eight different committees. Here are just a few of those bills, along with others scheduled to be heard in committees this week that have been posted to date. (Click the committee’s name for the full agenda of bills and additional details, including hyperlinks to each bill. Subsequent committee postings may be added later on the web version of this update; visit our website for the latest information.)

Monday, March 20

House Select Committee on Youth Health and Safety – 2:30 p.m. or upon adjournment, E2.026

• HB 16 by Moody relating to community-based juvenile services and diversion from TJJD
• HB 18 by Slawson creating a DTPA action for improper material on kids’ social media
• HB 213 by Moody granting retroactive early parole eligibility to certain capital and first-degree felons

Tuesday, March 21

House Human Services – 8:00 a.m., E2.030

• HB 1900 by Wu requiring notice of changes to DFPS investigation reports
• HB 2229 by Goodwin relating to notice for certain victims of family violence
• HB 2243 by Campos providing assistance to elderly applicants for protective orders

House Criminal Jurisprudence, Subcommittee on Asset Forfeiture – 8:00 a.m., E2.016

• HB 69 by Schaefer reversing and increasing the innocent owner defense burden
• HB 928 by Dutton requiring a final conviction for civil asset forfeitures
• HB 1442 by A. Johnson relating to street takeovers and reckless driving consequences

Senate Criminal Justice – 8:30 a.m., E1.016

• SB 37 by Zaffirini relating to hazing
• SB 129 by Springer increasing punishments for child pornography
• SB 224 by Alvarado increasing punishments for catalytic converter theft
• SB 432 by Middleton increasing punishments for catalytic converter theft
• SB 465 by Bettencourt increasing punishments for catalytic converter theft
• SB 467 by Bettencourt increasing punishments for motor fuel pump mischief
• SB 509 by Perry restricting the publication of mug shots
• SB 947 by P. King criminalizing offenses relating to critical infrastructure facilities
• SB 1151 by Whitmire mandating certain minimum fees on surety bonds
• SB 1173 by Huffman relating to a special presiding judge in Harris County

House Criminal Jurisprudence, Subcommittee on Criminal Procedure – 10:30 a.m., E2.016

• HB 311 by S. Thompson expanding the Michael Morton Act and creating an employment law cause of action related to disclosures under that act
• HB 352 by J. González relating to indigent applicants for a writ
• HB 399 by Collier relating to automatic orders of nondisclosure
• HB 412 by S. Thompson requiring corroboration of undercover drug officers
• HB 467 by Craddick expanding statutes of limitation for certain assaults
• HB 504 by Wu limiting no-knock entry by officers
• HB 519 by Wu requiring expunctions after grand jury no-bills
• HB 908 by Moody granting defense copies of children’s forensic interviews
• HB 946 by Dutton relating to spoliation of evidence in criminal cases
• HB 964 by Jetton requiring sex offender registration for improper educator–student relations
• HB 1104 by Cunningham relating to the return of a seized weapon in a criminal case

House Corrections – 10:30 a.m. or upon adjournment, JHR 140

• HB 168 by Moody relating to the confidentiality of certain execution information
• HB 1577 by Hull changing the eligibility for mandatory supervision of certain inmates
• HB 1742 by Leach imposing a mandatory minimum sentence for intoxication manslaughter and probation and parole for that offense
• HB 1811 by Hefner criminalizing the act of tampering with an electronic monitor
• HB 2984 by Herrero criminalizing the act of tampering with an electronic monitor
• HB 3549 by Anchia criminalizing the act of tampering with an electronic monitor

House Select Committee on Community Safety – 2:00 p.m. or upon adjournment, E2.012

• HB 165 by A. Johnson increasing the penalty for certain mass shootings
• HB 175 by Schaefer authorizing expunctions for old UCW deferred adjudications
• HB 1760 by Hefner relating to carrying weapons in certain prohibited places
• HB 2076 by Goodwin prohibiting certain family violence offenders from possessing firearms
• HB 2454 by Guillen criminalizing certain “straw purchases” of firearms

Wednesday, March 22

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016 <*added>

• HB 200 by Leach re-establishing the Prosecuting Attorneys Coordinating Council
• HB 1989 by Cook relating to clerk fees for copies of certain documents
• HB 2117 by Oliverson creating a financial cause of action against judges for certain bond decisions
• HB 2139 by Burrows revising the Code Construction Act to limit judicial interpretation
• HB 3166 by Murr creating a 15th Court of Appeals with statewide jurisdiction over certain civil cases involving the State
• HJR 39 by Vasut repealing the mandatory judicial retirement age

Senate Finance – 9:00 a.m., E1.036

• SB 22 by Springer establishing a rural sheriff and prosecutor grant program

House State Affairs – 10:30 a.m. or upon adj., JHR 140

• HB 613 by Vasut relating to charges imposed by a governmental body under the PIA
• HB 904 by Moody re-defining gambling for fantasy sports purposes
• HB 1942 and HJR 102 by Leach legalizing and regulating sports wagering
• HB 2142 by Guillen changing various gambling definitions
• HB 2309 by Hunter relating to the availability of certain DOBs under the PIA
• HB 2843 by Kuempel legalizing and regulating casino gaming and sports wagering

House Juvenile Justice & Family Issues – 10:30 a.m. or upon adj., E2.030 <*added*>

• HB 422 by VanDeaver authorizing remote proceedings in juvenile cases
• HB 1310 by Gamez requiring juvenile detention hearings every two days
• HB 1654 by Cook relating to a determinate sentence for organized criminal activity
• HB 2096 by Manuel relating to personal bonds in certain family violence cases
• HB 2272 by Swanson requiring a DA to represent DFPS if a CA opts out

Thursday, March 23

Senate State Affairs – 9:00 a.m., Senate Chamber <*added*>

• SB 12 by Hughes restricting certain sexually oriented performances on public property; creating a criminal offense
• SB 20 by Huffman relating to the removal of prosecutors for failing to enforce criminal laws
• SB 21 by Huffman relating to sanctions for judges who fail to follow certain laws
• SB 23 by Huffman imposing a minimum sentence for certain offenses involving firearms

New bills to watch

This will be our last entry under this heading (and not a moment too soon; reviewing 7,000+ bills is exhausting!). Here are some new bills filed before the deadline that might pique your interest:

• HJR 163 by Harrison authorizing recall elections of local officials
• SB 1906 by Sparks / HB 4487 by Smith relating to student loan repayment for prosecutors and public defenders
• SB 1908 by Bettencourt empowering prosecutors to pursue election crimes outside their home counties
• SB 1927 by Hughes empowering the State Prosecuting Attorney to prosecute certain crimes in trial courts throughout the state
• SB 1968 by Bettencourt requiring prosecutors to report discretionary decisions to OAG

Many bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks, as well as a “Bills to Watch” track that includes these new additions above and others we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.

Training scholarships

The Criminal Justice Section of the State Bar is offering a limited number of scholarships to our Annual Conference in September. The deadline for being considered is April 30. For more information or to apply, use this online form.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas House Prioritizes Removing Rogue Prosecutors” (Texas Scorecard)
• “Georgia Republicans push for prosecutorial oversight amid Trump election probe” (Washington Post)
• “Lawmakers want to change Texas constitution to tighten bail restrictions” (Houston Public Media)
• “As Texas pushes to ban delta-8, it’s squaring off with the drug’s biggest proponents: the VFW” (Houston Chronicle)
• “Red States Are Fighting Their Blue Cities” (FiveThirtyEight)

Quotes of the Week

“Whose job was it to do a simple Google search?”
            —Shakee Merritt, Newark (NJ) resident, in a CBS News interview after the city admitted that it had been duped into entering a “sister cities” agreement with the non-existent Asian country of “Kailasa.”

“It’s a wildfire. It’s a huge boom and everybody in the industry that studies these things saw it coming.”
            —Matthew McMurray, assistant professor at Miami (Ohio) University’s Institute for Responsible Gaming, Lotteries and Sport, referring to the documented rise of gambling addiction (especially among young men) in states that have legalized online sports betting.

“This is as close as Paxton will come to a political sanction from his party for his actions. … The party is not going to directly say that they think that he’s done wrong, but they certainly don’t want to be on the hook to foot the bill. … The ambiguity about whether there’s any kind of lawbreaking going on here is frustrating for a lot of members who then don’t want to pay for what Paxton is doing in office.”
            —Brandon Rottinghaus, political science professor at the University of Houston, as quoted in a Houston Chronicle article on the Legislature’s hesitation to approve the settlement of the whistleblower lawsuit pending against the Attorney General’s Office.

“For progressive prosecutors this is a politically self-inflicted wound. When you … stand up on the tallest building in your jurisdiction and holler at the legislature that you are not going to follow their law, somebody is going to pay attention. When you do something like that you are basically waving a red cape in front of a bull. … [But advocates for pre-emption] would be better off letting voters and reality make a correction here in the long run.”
            —Thomas Hogan, Chester County (PA) District Attorney, as quoted in a recent CNN story about crime becoming the latest front in the national culture wars.

“This is a straightforward attack on a system we’ve had in place for hundreds of years: local elections of local prosecutors. If you go back into the mid-2010s, a lot of the preemption was driven by business—it had to do with workplace equity, living wage, family leave, medical leave, and maybe some pollution-oriented regulations. This stuff is all ideological now: crime, elections, schools.”
            —Richard Briffault, a Columbia Law School professor who studies state preemption of local policies, as quoted in that same CNN article.

###