(Note: This has been updated after its original posting with additional committee notices)

The bill filing deadline portcullis slams down at 6:00 p.m. tonight, leaving many unfiled bill ideas on the outside looking in. Better luck next time for those who couldn’t find a bill sponsor.

A look ahead

This week was mostly about bill filing. The 88^th Legislature filed 1,883 bills the first four days of this week, and it is on pace to set the record for the most bills ever filed during a session. That means next week will be all about bill reading—not just because of the sheer volume of bills filed the past few days, but also because that volume has apparently crippled our bill tracking system, which keeps crashing. Good times.

Anyhow … having passed the 60-day mark of the regular session today, legislators are free to start voting non-emergency matters off their respective floors. So, while many of you are enjoying yourselves on a well-deserved spring break next week, things at the capitol will kick into a higher gear as legislative committees meet to discuss and debate fentanyl test strips, medical marijuana, prosecutor funding, taxpayer-funded lobbying, capital punishment, raising the age of juvenile jurisdiction, human trafficking, expunctions, and more! Read along for more details.

Doing things for you

At some point today, SB 22 by Springer (R-Muenster) should be filed to create a funding mechanism for financial assistance to sheriffs and prosecutors in rural counties. The low bill number identifies this as a priority for Lt. Governor Patrick that could substantially ease the post-COVID personnel challenges many prosecutor offices are experiencing. It also has a bi-partisan list of 16 other senators already signed on as co-authors, so it’s close to a lead pipe cinch to pass the Senate. (But remember, it takes two [chambers] to tango!) We will have more to say about this bill next week, but if you need some good* news heading into the weekend, SB 22 may be your ticket. (*Offer not valid for readers in the state’s 20 or so largest counties.)

For those in urban counties of more than a million people, SB 740 by Huffman (to include prosecutors in the law that restricts urban counties’ ability to reduce law enforcement funding) will be heard in the Senate Finance Committee on Monday.

And for those of you in counties between “rural” and “urban” … <crickets chirping> (LOL) Sorry! But all is not lost. Bills to restore pay parity between elected felony prosecutors and judges have been filed today in both chambers that could help elected felony prosecutors regardless of location. House Bill 5002 by Smith (R-Sherman) and its identical companion, SB 2310 by Hinojosa (D-McAllen), would provide a new third salary tier for elected prosecutors with more than 12 years in office, similar to the arrangement judges received when the current salary structure was enacted in 2019.

We’ll have a lot more to say about these funding measures next week and later in the session, but for now, be sure to bookmark them and follow their process from home.

Doing things to you

OK, enough “good” news. We now return to our regularly scheduled programming. <Insert sad trombone sound here.>

Guess what? That’s right—more “prosecutor accountability”-type bills have been filed over the past week. (Shocker!) By our rough count, 32 (!) bills have now been filed on this topic through yesterday, and more are probably being filed today. It will take us time to sift through the newest ones, so look for a more thorough review of them from us next week.

That said, we can leave you with this teaser: Judging from the low bill numbers, the Speaker’s priority bill on this topic will probably be either HB 17 by Cook (R-Mansfield) or HB 200 by Leach (R-Plano)—the latter being a duplicate refile (albeit with a snazzier bill number) of the prosecutor disciplinary council language we’ve discussed before—and the Lite Guv’s priority bill on this topic will be SB 20 by Huffman (R-Houston). Therefore, if you only have time during your impending spring break vacation to read three bills from this category over the weekend, make it those. The rest of the chaff can wait. (And trust us, there is a LOT more chaff than wheat on this topic this session.)

Floor action

Most people in the capitol were focusing on the impending bill filing deadline this week, but we did see the first bills voted off the floor of a chamber. Specifically, the Senate passed SB 372 by Huffman (criminalizing the unauthorized disclosure of draft judicial opinions) and SB 728 by Huffman (including juvenile information in federal firearm background checks). Those bills will now be delivered to the House, where they will sit on some clerk’s desk for the next six weeks while the House focuses on House bills.

Committee news

The following House bills were reported favorably by committees and now head to the House Calendars Committee for possible consideration by the full House: HB 270 by S. Thompson (expanding postconviction DNA testing), HB 286 by S. Thompson (expanding subsequent writs), HB 381 by S. Thompson (pretrial jury determination of intellectual disability in capital cases), and HB 611 by Capriglione (new doxing crime).

The House Criminal Jurisprudence Committee gave preliminary approval to: HB 178 by Murr (fentanyl testing by crime labs), HB 188 by Moody (jury instructions in capital cases), HB 218 by Moody (reducing marijuana penalties), HB 469 by Smith (jury sequestration), and HB 513 by Metcalf (manufacture or delivery of drugs that cause death).

The Senate Criminal Justice Committee gave preliminary approval to: SB 402 by Whitmire (docket preference for murder cases), SB 645 by Huffman (fentanyl punishments), SB 1004 by Huffman (tampering with electronic monitor), SB 1319 (overdose mapping), and SJR 44 (denial of bail).

To read any bill, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format in which you wish to read it (PDF, html, or Word).

Future committee hearings

Committees start hitting on all cylinders this week by hearing hundreds of bills. Here are just a few of them (click the committee’s name for the full agenda and additional details, including hyperlinks to the bills’ webpages):

Monday, March 13

House Public Health – 9:00 a.m., Room JHR 120

• HB 362 by Oliverson legalizing fentanyl testing strips
• HB 861 by Lozano legalizing the sale of kratom to those 18 or older
• HB 1805 by Klick increasing the potency of “low-THC” cannabis and expanding its uses

Senate Finance – 10:00 a.m., E1.036

• SB 740 by Huffman limiting urban counties’ ability to reduce prosecutor office funding

Senate State Affairs – 10:30 a.m., Senate Chamber

• SB 175 by Middleton barring the use of public funds for lobbying activities

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

• HB 828 by Dutton raising the age of criminal responsibility to 18 years old

Tuesday, March 14

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

• HB 28 by Slawson increasing the punishment range for certain aggravated assaults
• HB 914 by Hefner relating to tampering with temporary vehicle tags
• HB 937 by Dutton relating to inmate legal services
• HB 1004 by Shaheen relating to human trafficking and compelling prostitution
• HB 1088 by A. Johnson relating to the legal representation of CSCDs by OAG
• HB 1203 by Ordaz criminalizing the criminally negligent abuse of non-livestock animals
• HB 1207 by Guillen eliminating the statute of limitations for tampering with a body
• HB 1300 by Geren reducing penalties for tampering with certain evidence
• HB 1347 by Dutton requiring new allegations in a resisting arrest charging instrument
• HB 1385 by Moody relating to criminal history record access by pretrial services
• HB 1394 by Moody expanding eligibility for drug court participation in gun cases
• HB 1528 by Smith relating to magistration, appointment of counsel, etc.
• HB 1589 by Cook expanding the scope of FV findings for enhancement purposes
• HB 1715 by Canales authorizing expunctions of certain deferred adjudications
• HB 1730 by Schaefer increasing punishments for repeat indecent exposure convictions
• HB 1736 by Leach limiting death penalty exposure for party actors and retroactively reviewing death row cases for possible clemency
• HB 1737 by Leach granting automatic orders of non-disclosure for certain deferred adjudications
• HB 1762 by M. Gonzalez expanding the “Romeo and Juliet” defense to same-sex cases
• HB 1907 by Anchia requiring prosecutors to expunge records upon successful completion of certain specialty court or pretrial diversion programs
• HB 1910 by Anchia creating a presumption in forgery cases

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

• HB 347 by Jarvis Johnson requiring post-arrest child placement policies for all agencies that employ peace officers
• HB 767 by Harless relating to entering stalking bond conditions into TCIC

Wednesday, March 15

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

• HB 1741 by Leach criminalizing the unauthorized disclosure of draft judicial opinions
• HB 2014 by Leach increasing jury service pay
• HB 2015 by Leach limiting certain exemptions from jury service
• HB 1372 by C. Harris relating to the tort of public nuisance

Thursday, March 16

House Corrections – 8:00 a.m., E2.014 (*added after original posting)

• HB 93 by Swanson limiting probation for repeat DWI felony offenses
• HB 252 by A. Johnson expanding nondisclosure eligibility to certain specialty courts
• HB 361 by S. Thompson mandating probation for certain defendants with children
• HB 1227 by Metcalf limiting probation for child pornography offenses

New bills to watch

We can’t even begin to tell you about all the … “interesting” … bills filed over the past week as the filing deadline hits, but here are a few we haven’t already mentioned above that might deserve your attention:

• HB 3474 by Leach, this session’s omnibus judicial branch legislation
• HB 3659 by Hefner limiting the use of civil asset forfeiture
• HB 3675 by Ortega requiring management training for certain elected prosecutors
• HB 3677 by Jolanda Jones creating the offense of prosecutorial misconduct
• HB 3786 by S. Thompson authorizing victims’ enforcement of crime victims’ rights
• HB 4635 by Guillen / SB 1788 by Flores relating to organized crime and racketeering

Many other bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions above as well as other bills 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.

Scattershooting

Here are some recent stories you might’ve missed:

• “As Texas pushes to ban delta-8, it’s squaring off with the drug’s biggest proponents: the VFW” (Houston Chronicle)
• “Texas law enforcement agencies hope lawmakers will solve state worker shortages” (Austin American-Statesman)
• “Local agency preventing credit card skimming across Texas” (CBS 19 News – Tyler)
• “Federal judge says controversial Missouri gun law violates US Constitution” (CNN) (Note: Texas passed a similar law in 2021, now found in Penal Code §1.10)
• “Bill would allow district clerks to carry handguns to work” (Spectrum News)
• “Murder cases could be in jeopardy as Dallas police review 450 cases for missing evidence” (Dallas Morning News)

Quotes of the Week

“I think what we’re seeing is a backlash to industry overreach, a backlash to an industry that is targeting kids with child-friendly products, an industry that is advertising everywhere, just like Big Tobacco did. I think people in Oklahoma were really sick of that.”
            —Luke Niforatos, executive vice president at Smart Approaches to Marijuana (SAM), which successfully opposed a recent marijuana legalization proposition in Oklahoma.

“With a mandatory minimum, you’re essentially turning the prosecutor into the judge, jury, and executioner.”
            —Molly Gill, vice president of policy at Families Against Mandatory Minimums, as quoted in a Texas Tribune article on new proposals this session from the governor and lt. governor to impose 10-year mandatory minimum sentences for various offenses.

“Some of these bills should just be tweets.”
            —Amy Bresnen, Austin lobbyist, commenting upon the record number of bills filed by the 88^th Texas Legislature.

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Legislative sessions are like school semesters: When they reconvene after a long break, everyone gets reacquainted and shares what they’ve been up to—and what they’ve been exposed to. As a result, the only things people are passing at the capitol right now are COVID and the stomach flu. But in two weeks, they will start passing things that are really dangerous.

Bonus coverage

We sent a bonus update on Monday regarding abortion-related litigation that could impact prosecutors and new legislation attempting to skirt the Stephens opinion on separations of power; if you missed it, you can find it online HERE.

“Prosecutor accountability” bills

Every time we tell you about a new bill to fine, fire, remove, or stretch prosecutors on the rack, we always end with a caveat that “more bills are coming.” And the legislature has not made liars of us yet. Here’s what dropped this week.

House Bill 3307 by Cook (R-Mansfield) is a narrower offering than most filed to date. It would amend the removal provision in Local Gov’t Code Chapter 87 to specify that “official misconduct” includes announcing, adopting, or implementing a formal or stated policy under

which the prosecutor prohibits or materially limits the enforcement of any criminal offense except to comply with an injunction, judgment, or court order. We have our doubts over whether the legislative branch can censor what elected officials say—that will be a First Amendment issue for another day—but the fact that this bill amends current “prosecutor accountability” laws already in existence at least recognizes that there are removal provisions that work and that perhaps it is best to work off those than invent something out of whole cloth that could have unintended consequences.

That said, the second part of HB 3307 goes where no bill has gone before to allow any DA or CA to petition for the removal of one of his or her neighboring prosecutors, and venue for those proceedings can be in the petitioning prosecutor’s county (as opposed to the county where the alleged policy is in effect). So, again, the question of whether an elected prosecutor can be removed by people with no residency, franchise, or other connection to that prosecutor’s jurisdiction will have to wait for another day. Note, however, that this bill was filed “as received,” meaning the drafting experts at the Legislative Council were not involved in its writing. Bills filed in this manner must usually be revised or cleaned up in the committee process before moving forward. Therefore, consider this a “conversation starter,” but a serious and perhaps more realistic start (sans the neighbor-on-neighbor violence) than some the other offerings filed to date.

Another “conversation starter” is SB 1422 by P. King (R-Weatherford) authorizing the AG to sue any state agency, law enforcement agency, political subdivision, or local entity that adopts, enforces, or endorses a policy, etc., categorically prohibiting or discouraging the enforcement or prosecution of a criminal offense. Although this would certainly include prosecutors, its breadth strikes us as something more likely directed at the ballot propositions adopted in various “blue” cities around the state that purport to ban or de-emphasize enforcement of state laws against abortion, marijuana, or whatever the flavor of the month was in that municipality at that time. The new chapter is structured in a way that reminds us of Gov’t Code §411.209 (Wrongful Exclusion of Handgun License Holder), which some of you may have dealt with if your county (lawfully) excludes LTC holders from carrying handguns in certain parts of your multi-use courthouses. However, as with HB 3307, this bill was not written by the Legislative Council, which may explain the inclusion of a prohibition (can’t “endorse”) that has already been struck down by the U.S. Fifth Circuit when challenged as part of the state’s anti-sanctuary cities bill a few years ago. This means the bill is likely to be re-written as a committee substitute if it starts to move through the process, so some or all of this could change. So, as we said earlier: A conversation starter.

And of course, we must finish this week’s discussion of this topic as we always do: More bills are coming! That means your smartest move at this point may be to keep your powder dry until everyone’s cards have been laid on the table by the end of next week. Then the real conversations can begin.

Judicial salaries

Two bills have been filed to increase by 23 percent the current base pay of district judges (which also raises the salaries of elected felony prosecutors and the state supplement for county attorneys): SB 802 by Hughes (R-Mineola) and HB 2779 by Leach (R-Plano). The additional expenditure for such a raise got a chilly reception in the Senate Finance Committee two weeks ago, and this week the House Appropriations Subcommittee on Article IV left pending the proposed appropriation to support the raise. That doesn’t mean the idea is dead—many requests for additional funding are “pended” for future consideration at this early stage of the session—but it does mean we must wait for those two bills (as opposed to the funding request for them) to be heard in committee later this session to get a better feel for their prospects.

Judicial retirement

It’s no secret that public retirement systems have struggled to remain actuarially sound in the last decade. Faced with over $11 billion in unfunded benefits and a depletion date of 2075, the previous legislature drastically changed retirement for state employees and officers—including felony prosecutors—by creating something called a “cash balance” plan. A variation on the 401(k) theme, this plan applies to all elected felony prosecutors who took or take office on or after September 1, 2022. But the last legislature did not touch the judges’ retirement plan, known as JRS 2, which has a depletion date of 2076. That defined benefit plan is preferable to a cash balance plan for its recipients, so it raised a question during the interim after last session: In the interest of courthouse parity, should elected felony prosecutors explore the option of joining JRS 2 this session?

We got an answer this week in the form of SB 1245 by Huffman (R-Houston) and its companion, HB 3367 by Bonnen (R-Friendswood), and that answer is “no.” These bills would establish a cash balance plan for judges taking office on or after September 1, 2024, that matches the prosecutors’ new plan. This is not exactly unexpected—costly defined-benefit retirement plans have become too expensive for many states to maintain—but they are likely to pass, so if you want more details about how these cash benefit plans work, contact Rob.

Committee news

The Senate State Affairs Committee approved SB 2 by Hughes to increase the penalty for illegal voting back to a felony. It also approved SB 372 by Huffman (Class A misdemeanor to leak draft judicial opinions), SB 578 by Zaffirini (confidentiality protections for protective order applicants), and SB 728 by Huffman (DPS access to juvenile mental health records for firearm background checks). Other bills heard in that committee were left pending.

The House Criminal Jurisprudence Committee approved the following bills this week: HB 247 by S. Thompson granting subsequent writs in certain cases; HB 270 by S. Thompson expanding post-conviction DNA testing; HB 286 by S. Thompson creating new subsequent writs based on non-scientific evidence; HB 381 by S. Thompson requiring a pre-trial jury determination of intellectual disability in death penalty cases; and HB 611 by Capriglione creating a new crime for doxing. Other bills heard in that committee were left pending.

Remember, to read these listed bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format in which you wish to read it (PDF, html, or Word).

Future committee hearings

Here are some of the bills posted for committee hearings next week (click the committee’s name for the full agenda and additional details, including hyperlinks to the bills’ webpages):

Monday, March 6

House Public Health – 10:00 a.m., JHR 120

• HB 576 by Raymond allowing disclosure of autopsy photos to family and their lawyers

Tuesday, March 7

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

• HB 63 by Swanson relating to preliminary investigations of child abuse/neglect reports

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

• SB 287 by Huffman expanding the scope of felony terroristic threat
• SB 402 by Whitmire granting docket preferences to murder and capital murder proceedings
• SB 645 by Huffman relating to criminal penalties for fentanyl
• SB 1004 by Huffman creating a criminal offense for tampering with an electronic monitoring device
• SB 1318 by Huffman relating to bail reform
• SB 1319 by Huffman relating to overdose mapping
• SJR 44 by Huffman proposing a constitutional amendment authorizing the denial of bail for certain persons accused of violent or sexual offenses

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

• HB 55 by Julie Johnson increasing the punishment for certain indecent assaults
• HB 180 by Moody requiring a court to withdraw an execution date upon a prosecutor’s motion
• HB 205 by Moody expanding scientific subsequent writs to punishment issues
• HB 279 by Jetton increasing the punishment for trafficking disabled individuals
• HB 291 by Murr relating to occupational driver’s licenses
• HB 314 by Toth prohibiting the death penalty in a single eyewitness cases
• HB 369 by S. Thompson imposing a usable quantity for certain controlled substance crimes
• HB 409 by Collier relating to indigent defense
• HB 476 by Jolanda Jones capping pretrial detention at the maximum sentence for a charged offense
• HB 727 by Rose excluding persons with “severe mental illness” from the death penalty
• HB 798 by Collier allowing CVC funds’ use for relocation and housing rental expenses
• HB 842 by Patterson relating to DL suspensions for DWLI convictions
• HB 905 by Moody granting additional credits for certain time served before sentencing
• HB 939 by Dutton reducing penalties for certain first-time POCS crimes
• HB 1161 by Meyer relating to address confidentiality for certain trafficking victims

Wednesday, March 8 (no postings at time of publication)

Thursday, March 9

House Corrections – 9:00 a.m., Room E2.014

• HB 182 & HJR 11 by S. Thompson authorizing a court to commute a prison sentence
• HB 392 by S. Thompson shortening wait times to apply for certain orders of nondisclosure

New bills to watch

The bill filing deadline is one week from today. Over the next five business days, as many as 2,000 more bills may be filed before the window closes next Friday. Your prayers for our mental and emotional fortitude are welcomed during this difficult time.

Some bills filed this week that deserve your attention include:

• HB 2864 by Raymond mandating veteran court participation absent good cause
• HB 2992 by Harrison increasing reporting requirements for asset forfeitures
• HB 3166 by Murr creating a statewide 15th COA for certain civil appeals
• HB 3307 by Cook allowing removal of prosecutors due to non-prosecution policies
• HB 3247 by Cain creating the offense of prosecutorial misconduct
• SB 1195 by Hughes granting prosecution authority to OAG for abortion, election, human trafficking, and official misconduct crimes
• SB 1196 by Hughes / HB 2930 by Spiller granting SCOTX veto power over certain CCA rulings
• SB 1273 by Hughes / HB 2963 by Smithee granting new trials by prosecutorial fiat
• SB 1422 by P. King prohibiting non-enforcement of state criminal laws
• SB 1462 by Hughes, this session’s omnibus judicial branch bill

Many other bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions above as well as other bills 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.

Scattershooting

Here are some recent stories you might’ve missed:

• “Democrats and Republicans in Texas Might Not Agree on Much. But They’ll Sing Karaoke Together.” (Texas Monthly)
• “Texan young adults can now get licensed to carry handguns at college campuses, businesses” (Dallas Morning News)
• “Texas abortion funds likely safe from prosecution, federal judge rules” (Texas Tribune)
• “17 States Have Now Tried to Pass Bills that Strip Powers from Reform-Minded Prosecutors” (The Intercept)

Quotes of the Week

“This is not Harris County. We take things seriously.”
            —Galveston County District Court Judge Kerry Neves, revoking the bond of an intoxication manslaughter defendant who was caught driving without a license or an ignition interlock device in violation of the terms of his release.

“We want to empower criminal district attorneys to enforce the law, and if they want to change the law, they need to come up here and run against Jeff or myself and become a legislator, not a criminal district attorney.”
            —State Rep. David Cook (R-Mansfield), explaining why he filed legislation about prosecutors who don’t enforce laws, as quoted during a panel discussion with State Rep. Jeff Leach (R-Plano) on criminal justice reform at a recent Texas Public Policy Foundation (TPPF) policy summit.

“There’s never [been] an area of the government that has escaped more accountability than the criminal justice system, and nothing more in that system than prosecutors’ power. There’s very little transparency and there’s very little way to hold them accountable. … You also have prosecutors that will cheat and steal to try to win a case when they know they don’t have the facts to support it, or the law isn’t there to support it.”
            —Brett Tolman, Executive Director of Right on Crime, at the same TPPF policy summit panel, explaining why he and his organization are actively supporting efforts to impose new accountability laws on prosecutors. (Video available on YouTube HERE.)

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Some interesting stuff happened on Friday that we were not able to include in our previous weekly update, so allow us address that now rather than wait until next Friday. If you dig constitutional law, this is going to be the update for you!

Post-Dobbs opinions start to roll in

First, we want to make sure you know about some cases coming out of Austin related to the Dobbs opinion by SCOTUS that overturned Roe v. Wade and returned the abortion issue to the states last year.

As you may recall, the impact of that decision on the criminal offenses surrounding abortion left more questions than answers in Texas. Specifically, there is uncertainty about whether pre-Roe crimes are now in effect, and if so, how to resolve the irreconcilable conflicts that may exist between those laws drafted a century ago and the more recent criminal and civil sanctions passed last session before the Dobbs opinion came down. (For a refresher, see this June 2022 update.) But last Friday, two different court opinions were issued in this area that you should be aware of.

First, in Fund Texas Choice v. Paxton, 1:22-CV-859-RP (Feb. 24, 2023), a federal district judge in the Western District of Texas partially granted the plaintiffs’ motion for a preliminary injunction against the enforcement of pre-Roe abortion crimes against those who might speak about, fund, or otherwise facilitate out-of-state abortions. Without getting too deep into the weeds on this case at this time, the trial court made the following findings:

• The crimes and sanctions enacted by Texas’s “trigger law” (HB 1280, 87RS) do not regulate or apply to abortions performed outside of Texas; and
• Texas’s pre-Roe laws might have applied to abortions performed outside of Texas, but they have been repealed by implication and are unenforceable (citing McCorvey v. Hill, 385 F.3d 846 (5^th Cir. 2004), the case we mentioned in our June 2022 update).

The upshot of all this is that the Attorney General—who declined to represent the local county and district attorneys sued in this case—has been dismissed from this litigation and now the court will move on to the question of whether this ruling should be expanded from the five local prosecutors who were initially sued to include all county and district attorneys in Texas. We will keep you posted as that litigations evolves.

On the same day that the Fund Texas Choice opinion was issued, the Texas Supreme Court (SCOTX) also issued an opinion in two related lawsuits and held that it was not defamatory for a pro-life advocate to call abortion providers “murderers” or “criminal enterprises.” This unanimous opinion rested on basic First Amendment analysis, but a related issue raised by the parties was whether Texas’s 1925-era pre-Roe abortion crimes were restored by the Dobbs opinion. The Court did not need to decide that issue to resolve the case, but in a concurring opinion, Justice Devine urged the Court to rule that the pre-Roe crimes are still good law. However, his concurrence garnered the support of only one other justice; the other seven declined to sign on. As a result, while you may see this concurrence touted as evidence that SCOTX believes the pre-Roe laws are now in effect, that question has not been conclusively answered by SCOTX. (For a summary of these Dickson cases, see HERE; you can also read the Court’s opinion by Justice Bland HERE and the concurrence HERE.)

So, where does that leave us? One federal district court ruling that pre-Roe laws are void, and one Texas Supreme Court opinion that declined to decide the issue (despite two justices urging them to do so.) To date, we are unaware of any legislation filed this session to cure potential conflicts between the old and new abortion enforcement laws. The 88^th Legislature could resolve these ambiguities once and for all, but unless a bill is filed and passed in the next three months, it appears the legislature will punt that issue to the state and federal courts to fix it instead. As we said back in June of 2022, “There remain many unanswered questions about the enforcement of HB 1280 and other laws that will have to be hashed out by the courts.” It looks like that process has now begun, but it could take several more years of litigation to get definitive answers. So … good luck with that!

Separation of Powers under attack

Not only did both of those court opinions drop on Friday of last week, but two new bills were filed to address prosecutor accountability in the context of election law enforcement.

On Friday, we told you about a legislative two-step to allow the governor and state senate to remove troublesome prosecutors, with one of those steps being a constitutional amendment (aka “the DeSantis Option”). But now we have a new legislative two-step to tell you about that is almost certainly an attempt to get around last year’s Stephens opinion in a way that its proponents think would not require amending the state constitution. Here’s the skinny.

For starters, recall what the Stephens opinion from the Court of Criminal Appeals (CCA) said: While the attorney general can investigate election-related crimes (just like any other crime), the legislature cannot grant the AG original prosecution jurisdiction because that violates the Texas Constitution’s Separation of Powers Clause. (Summaries of the original opinion can be found HERE, and our summary of the denial of rehearing is available HERE.) This limitation on the AG makes some folks scratch their heads in wonder because they don’t realize that the Texas constitution puts local prosecutors in the judicial department of state government rather than the executive department. (This difference is why we first wrote Texas Prosecution 101 almost 20 years ago and have been sharing it with all who ask ever since.) This placement of prosecutors in the judicial branch was done by the constitution’s drafters—and adopted by Texas voters—for the specific purpose of insulating local prosecutors from control of the executive branch in Austin and limiting the power that certain statewide officials could wield. If you know anything about our state constitution, you know that this was just a variation on the entire theme of that document—and if you read Judge Slaughter’s painstakingly thorough historical research in her concurring and dissenting opinion on rehearing in the Stephens case, you can be left with little doubt that the AG’s claims to the contrary are a misreading of both state history and state law.

But who cares about facts, eh? Fast-forward to the current state of election fraud politics in which complaints from a certain segment of the body politic that local prosecutors are refusing to prosecute legitimate cases of voter fraud mean that someone else must be a “backstop” for that (unsubstantiated) refusal. The result of that narrative has been numerous bills being filed to task the AG with that election fraud prosecution job again or otherwise involve that office in the prosecution process, including:

• HB 125 by Slaton (R-Royce City)
• HB 678 by K. Bell (R-Forney)
• HJR 98 by Tinderholt (R-Arlington)
• HJR 110 by Isaac (R-Dripping Springs)
• SB 1195 by Hughes (R-Mineola)

That last bill is the one we want to draw your attention to. Senate Bill 1195 was filed Friday to grant the AG original prosecution authority not just in election fraud cases, but also abortion crimes, human trafficking crimes, and miscellaneous official misconduct-type crimes. (There are some other surprises in there as well; read the bill for yourself.) What did not accompany the bill was an SJR (senate joint resolution) to amend the constitution in a manner permitting such prosecutions by the AG. And in truth, most observers doubt any such measure could get to the voters for approval because it would require 100 votes in the House, and there aren’t 100 votes in the House for such a power grab. But the AG and/or his advocates apparently think they have hit on another way around the traditional constitutional understanding of prosecution in Texas that was confirmed by the Stephens opinion.

Concurrent with SB 1195 was the filing of SB 1196 by Hughes, which purports to grant to SCOTX the power to overrule the CCA regarding the constitutionality of state statutes. (Another similar bill was also filed this week as SB 1092 by Parker (R-Flower Mound)). It appears that the working theory behind these bills is that granting SCOTX a veto over CCA rulings doesn’t require a constitutional amendment because Article 5 of the state constitution generally makes the powers of each court subject to other constitutional provisions or laws passed by the legislature. Once these changes by SB 1195 and SB 1196 are enacted, the AG can run another election fraud (or abortion or human trafficking) prosecution appeal up the flagpole and when the CCA doesn’t salute, the AG can ask SCOTX to overrule its sister court. Of course, no one knows how the state’s top civil court would rule on criminal constitutional issues, but trust us, that won’t prevent this type of forum-shopping from being attempted.

Fortunately for those who like the rule of law, this scheme is likely based on a (mis-) reading of the constitution very similar to the one that got the AG in hot constitutional water in Stephens to begin with. It is true that Article 5, Sec. 3(a) of the state constitution says that the state supreme court’s “appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law.” We assume proponents of this forum-shopping theory will try to argue that the exception in 3(a) (“and as otherwise provided in this Constitution or by law”) swallows the preceding rule (“except in criminal law matters”) that currently limits SCOTX’s authority, even though that exception is a further limitation on that court’s authority, not an expansion of it. But then, this is similar to the failed argument the AG made in Stephens—namely, that Article 4, Section 22’s grant of authority to the AG to “perform such other duties as may be required by law” meant that the legislature could trump other constitutional provisions merely by passing statutes that gave the AG additional duties, even if they were already assigned to other officers under the constitution. That didn’t pass the plain reading test, the grammar test, or the historical analysis test in the Stephens opinion(s), and it almost certain won’t pass muster this time around either—after all, “all cases except in criminal law matters” seems pretty simple and to the point when it comes to what SCOTX can address. But don’t be surprised if advocates of expansive centralized prosecutorial authority go to that well once again.

All we know for certain is that the Separation of Powers concept is rarely popular with the people whose powers are being separated. Therefore, prepare yourselves to answer questions about these and related bills this session, and educate your legislators about this issue as needed.

Quotes of the Addendum

“Forum shopping has long been a problem in civil litigation. Clever lawyers use procedural rules to file in courts deemed most likely to be sympathetic to their claims. But what Mr. Paxton and other plaintiffs are doing is something far more nefarious—they’re engaging in a novel and specific form of judge shopping, seeking out the specific judge whom they wish to hear their case, presumably because of how they expect that judge to rule. … Litigants of all political and substantive stripes have taken advantage of this loophole [in federal procedure] …. But Mr. Paxton has made the loophole into an art form.”
            —Steve Vladeck, a UT School of Law professor specializing in federal court procedures, in a guest essay in the New York Times published February 5, 2023, entitled “Don’t Let Republican ‘Judge Shoppers’ Thwart the Will of Voters.”

“I’m not the criminal law expert in the room. My colleague, Presiding Judge Keller, is here, but the understanding I have of the criminal law is that the Texas constitution does not allow you to do [pre-trial preventive detention] and so we would need an amendment to be able to do that.”
            —Nathan Hecht, Chief Justice of the Texas Supreme Court, appropriately deferring to the Presiding Judge of the CCA when being asked about criminal law matters during a recent Senate Finance Committee hearing.

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Today marks the completion of the first third of the 140-day 88^th Regular Session. We hope you enjoyed the languid pace of the session to date, because next week things get real.

Needs and wants

Some of the dust has settled from the governor’s State of the State Address that we reviewed last week so we can now divide the policy initiatives he mentioned into official emergency items (“needs”) and unofficial policy initiatives (“wants”). In the first “official” category are property tax relief, COVID-19 mandate prohibitions, school choice, school safety, bail reform, border security, and fentanyl. These are the policy areas in which the legislature can officially act now rather than having to delay voting until after March 10 (and as you will see later in this update, some committees are scheduled to take up bail- and fentanyl-related bills next week). Conversely, there are several other policy initiatives that were mentioned in the governor’s speech and/or press releases—including prosecutorial accountability—that are not in the official list of emergency items. These topics now go into the “priorities but not emergencies” pile. Similarly, we are still waiting to see language for SB 20, the lite guv’s priority legislation to “remove DAs who refuse to follow Texas law.” If you have thoughts or feedback on this topic that you haven’t yet shared, consider touching base with your regional director prior to our quarterly board meeting next Friday—this issue will surely be a topic of discussion there, and your feedback is important.

The “DeSantis Option”?

Yet another new iteration of “prosecutor accountability” legislation was filed this week. On Wednesday, State Sen. Brian Birdwell (R-Granbury) filed what we might call the “DeSantis Option” because it appears to follow the process used by Florida Governor Ron DeSantis to remove a Florida prosecutor from office (something he touted on the pre-presidential campaign trail earlier this week at an appearance in New York or Chicago or some other Yankee metropolis, we can’t keep up, sorry).

The “DeSantis Option” filed by Sen. Birdwell is a two-step legislative process: First, SJR 60 would amend the state constitution to authorize a governor, by executive order, to suspend any state or local official who is either convicted of a felony or who “willfully neglects the duties of office” or who “publicly declares that the officer will not enforce the laws of this state.” The suspended official would then go before the state senate, which could remove or reinstate the official by a simple majority vote (as opposed to the two-thirds majority required for all other removals or impeachments by the state senate). The second step to implementing this new removal option is SB 1105, the statutory enabling language to govern how that process would work. (Although as far as we can tell at this stage, it’s short and sweet: governor suspends, majority of senate removes [or not], and that’s that—no appeal, do not pass Go, do not collect $200.) Oh, and all of this would be in addition to existing removal laws; those are not repealed.

The key thing to know here is that the enabling bill can take effect only if SJR 60 passes both chambers of the legislature with two-thirds approval and then gets the support of a majority of voters as a statewide proposition in November 2023. This is necessary because the state constitution currently does not permit local officials to be removed from office absent a jury trial. If such a system were to become law, though, there would be little standing in the way of a governor and a partisan state senate from suspending or removing any local officials with whom they found fault.

Judiciary budget

The House Appropriations Subcommittee overseeing judicial branch funding took up that topic yesterday. On those items most relevant to your work, 46^th Judicial DA Staley Heatly testified to the importance of continued funding for prosecutor salaries and related office funding items and thanked the subcommittee members for their continued support.

In other news from that hearing, some subcommittee members took a particular interest in the need for the State Commission on Judicial Conduct (SCJC) to request additional funding to defend itself against two lawsuits in which OAG has declined to represent them. Further questioning revealed that OAG has declined to represent SCJC—for perhaps the first time in that commission’s history—in litigation that would uphold its authority to sanction judges who violate judicial impartiality rules by publicly declaring that they will not conduct same-sex marriages. Coming on the heels of news last session that OAG declined to represent the Texas Ethics Commission (TEC) in certain lawsuits and had also declined to collect certain ethics fines assessed by that agency, this latest news may set the stage for some interesting questions during the debates over elected officials’ enforcement discretion later this session.

Committee news

Non-budget-related committees started to meet this week, the most notable for our purposes being the House Criminal Jurisprudence Committee, which held its organizational meeting on Tuesday. In addition to hearing testimony from invited witnesses about the criminal justice system in general, the committee chairman—State Rep. Joe Moody (D-El Paso)—made the following announcements:

• A Subcommittee on Criminal Procedure will hear bills amending procedural laws in the CCP (duh). Members: Rep. Bhojani (D-Euless) (F), chair; Bowers (D-Rowlett), Cook (R-Mansfield).
• A Subcommittee on Asset Forfeiture will … yeah, you get it. Members: Rep. Harrison (R-Midlothian) (F), chair; Christina Morales (D-Houston), Schatzline (R-Fort Worth) (F).

In other committee news, Speaker Dade Phelan announced the formation of the new House Select Committee on Community Safety that will have jurisdiction over bills related to firearms, ammunition, and related criminal offenses and penalties. Members of that new committee are: Rep. Guillen (R-Rio Grande City), chair; Jarvis Johnson (D-Houston), vice-chair; Bowers (D-Rowlett), Burrows (R-Lubbock), Canales (D-Edinburg), Dorazio (R-San Antonio) (F), Goodwin (D-Austin), Harless (R-Spring), Holland (R-Rockwall), Tracy King (D-Uvalde), Landgraf (R-Odessa), Moody (D-El Paso), and Troxclair (R-Lakeway).

Future committee hearings

Each week we will try to highlight for you certain bills scheduled to be heard in certain committees. The volume of bill hearings will be mind-boggling, so we have to pick and choose what we pass along (for both your sanity and ours). But remember, the committee process is where the public can be most directly involved in the legislative process and, not coincidentally, where most bills die—either due to the lack of a hearing or a failure to get the necessary approval after being heard. In other words, this is where the rubber meets the road for most legislation.

With that in mind, here are some of the bills posted for committee hearings next week (click on the committee name for the full agenda and additional details, including hyperlinks to the bills’ webpages):

Monday, February 27

Senate State Affairs Committee – 11:00 a.m., Senate Chamber

• SB 2 by Hughes increasing the criminal penalty for illegal voting
• SB 559 by Hughes limiting State Bar restrictions on lawyers’ constitutional rights
• SB 599 by Birdwell relating to district clerks carrying handguns
• SB 578 by Zaffirini expanding confidentiality for protective order applicants

Tuesday, February 28

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

• HB 178 by Murr relating to testing possible controlled substance evidence for fentanyl
• HB 188 by Moody changing jury instructions and sentencing procedures in a capital cases
• HB 218 by Moody lowering penalties for marihuana & THC and related changes
• HB 247 by S. Thompson granting subsequent writs in certain felony cases
• HB 270 by S. Thompson granting expanded postconviction forensic DNA testing
• HB 286 by S. Thompson creating a new non-scientific evidence subsequent writ
• HB 381 by S. Thompson barring the death penalty for a person with an intellectual disability
• HB 393 by Goldman authorizing restitution for the support of a child whose parent or guardian is a victim of intoxication manslaughter
• HB 469 by Smith changing procedures for jury sequestration in criminal cases
• HB 513 by Metcalf increasing penalties for delivery of a controlled substance that causes death
• HB 598 by Shaheen creating an offense for possession of an animal by a person who has been previously convicted of an offense involving animal cruelty
• HB 611 by Capriglione creating a criminal offense for doxing

Wednesday, March 1

Senate Criminal Justice – 8:30 a.m., Room 2E.20 (Betty King Room)

• SB 287 by Huffman expanding the scope of felony terroristic threat
• SB 402 by Whitmire granting docket preferences to murder and capital murder proceedings
• SB 645 by Huffman relating to criminal penalties for fentanyl
• SB 1004 by Huffman creating a criminal offense for tampering with an electronic monitoring device
• SJR 44 by Huffman proposing a constitutional amendment authorizing the denial of bail for certain persons accused of violent or sexual offenses

Homework

Over the past week we have reviewed more than 600 new bills so that you don’t have to. (You’re welcome!) That said, that are some bills that may deserve your attention at this early stage, so we’d encourage to take ~20 minutes to read and familiarize yourself with these bills in case they start to move this session (To read these or any other bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format you wish to read it in (PDF, html, or Word)):

• HB 2527 by Dutton codifying proposed changes to State Bar ethics Rule 3.09
• HB 2543 by Raymond creating a conviction integrity unit within OAG
• HB 2734 by Murr granting cross-credit service for judges and prosecutors for salary purposes
• SB 1045 by Huffman creating a statewide intermediate appellate court for certain cases
• SB 1092 by Parker granting SCOTX the authority to overrule a TXCCA ruling that a state statute is unconstitutional
• SB 1105 and SJR 60 by Birdwell authorizing the governor to suspend and the state senate to remove elected officials who neglect to or publicly declare they will not enforce the law

Many other bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions above as well as other bills 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.

Scattershooting

Here are some recent stories you might’ve missed:

• “In the Hill Country, a new state psychiatric unit stays empty while waitlists swell” (Houston Chronicle)
•  “Power struggles between state and local officials escalate in Texas—and across the nation” (KERA News)
• “Republicans take aim at elections and how Texas conducts voting, prosecutes voter fraud” (Dallas Morning News)
• “Tug-of-war between Denton voters and city officials continues over pot ordinance” (Dallas Morning News)

Quotes of the Week

“Anything that is considered gun control is dead on arrival. In terms of school safety, the focus is going to be almost exclusively on hardening the schools in terms of more money for installing modern security.”
            —Mark Jones, political science professor at Rice University, quoted in a Texas Tribune story about school safety in the wake of news that an elementary school student found in a school bathroom a handgun that had been left behind by the school district superintendent.

“Local cases deserve to be heard by local judges, but cases with statewide implications—like those involving the state or state agencies—deserve to be heard by judges who are accountable to voters statewide. The new 15th Court of Appeals will help equalize dockets on our existing appellate courts and allow judges to apply specialized precedent in complex subjects like administrative and constitutional law, while giving Texas voters oversight of a court that handles critical matters for the entire state.”
            —State Sen. Joan Huffman (R-Houston), in her press release announcing the filing of SB 1045 to create a new statewide intermediate court of appeals.

“The Supreme Court [sic] said the attorney general cannot prosecute voter fraud. It’s got to be the DA. So, if they want to turn a blind eye, or just not do it, whatever the reason may be, the attorney general can say, ‘Why aren’t you looking into it?’ It adds checks and balances to the process.”
            —State Rep. Bryan Slaton (R-Royce City), as quoted in the Dallas Morning News giving his reason for filing HB 125 authorizing the attorney general to sue and/or remove local prosecutors who decline to enforce election law crimes. (The case to which he referred is the Stephens opinion by the Court of Criminal Appeals.)

“We’re not going to delay bills there’s been a solid consensus on in the past. For new members: Trust me, it’s better to get to the House-versus-Senate fight as early as you can.”
            —State Rep. Joe Moody (D-El Paso), chairman of the House Criminal Jurisprudence Committee, announcing at the committee’s organizational hearing his plan to accelerate the passage of criminal justice reform legislation that has passed the House in past sessions but died in the Senate.

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If you wanted some clarity about what the legislature may do for you or to you this session, we’re afraid you’re going to be disappointed. This week in Austin was more about heat (politics) than light (policy). But politics often trumps policy in the capitol sausage-making factory, so read along with that in mind.

The State of the State …

“… has never been more exceptional.” At least according to Governor Abbott, who gave his State of the State Address last night in a made-for-TV event live from San Marcos. But despite that exceptionality, the governor identified dozens of additional new laws he wants this legislature to pass, focusing mostly on seven priority areas (in no particular order): cutting property taxes, limiting pandemic restrictions, school choice, school safety, fentanyl, border security, and ending revolving-door bail. Those latter three deserve more attention, so here is what was actually proposed (with links to his office’s helpful press releases):

• Fentanyl: Classify fentanyl “overdoses” as poisonings; prosecute dealers for murder; make opioid antagonists like Narcan more readily available.
• Border security: Impose 10-year mandatory minimum sentences for human smuggling and for “criminals who illegally possess guns” (that second bit about guns is not in the press release but was mentioned in the speech); enhance stash house crimes to a third-degree felony; increase penalties for human smuggling and stash house operations when committed in a disaster area; enhance criminal penalties for foreign terrorist organizations.
• Revolving door bail: Propose a constitutional amendment allowing judges to deny bail for the most violent offenders; hold judges and district attorneys accountable for “reckless decisions compromising the safety and security of Texans.”

Interestingly, if you watched the address live you never heard any mention of that final blurb regarding DA accountability, nor was it in his prepared remarks—only judges were singled out in the context of bail decisions. (The full text of his prepared speech can be read HERE for those who are interested.) However, prosecutors are mentioned in the press release. So, what does all this mean?

From a political perspective, this is a handy list of gubernatorial priorities to keep in mind during the session. But from a legislative timing perspective, no speech or press release can grant an issue the “emergency” status necessary to allow the Lege to take up the issue and vote on it immediately. As a result, we must wait until official proclamations are issued by the governor’s office before we can tell you what merits emergency designation. (Those have not been made public as of the release of this update.) And if you find it odd that speeches were made and press releases were issued but no actual proclamations were issued as required under the state constitution … well, see our earlier comment about “heat” and “light.”

Lt. Gov’s priorities

It has long been the practice in the House and Senate for those chambers’ presiding officers to reserve low bill numbers for priority legislation. These designations do not carry a constitutional advantage like an emergency proclamation issued by the governor, but they do signal what is important to the people who matter. And Lt. Gov. Dan Patrick (R-Houston) has taken that practice to another level during his time in office, rolling out as many as 30 “priority bills” identifying his focus. This session’s list of reserved Senate bill numbers came out Monday—before the governor’s State of the State Address, but we’re sure that was just a coincidence—and includes:

• Senate Bill 2: Restoring voter fraud to a felony
• SB 20: Removing DAs who refuse to follow Texas law
• SB 21: Removing judges who refuse to follow Texas law
• SB 22: Rural law enforcement funding increases
• SB 23: Mandatory 10-year prison sentence for certain crimes involving a firearm
• SB 26: Expanding mental health care beds (esp. in rural counties)
• SB 27: Creating a statewide business appellate court

For the full list, click HERE.

You may notice some overlap—but not complete agreement—between the lieutenant governor’s priorities and the governor’s priorities. Note also that no language has been filed under these priority Senate bill numbers as of the time this update is being issued, but some—such as SB 23 (10-year minimum for certain crimes committed with a gun)—will likely be a refiled version of what was already filed as SB 787 by Huffman. Whether SB 20 (DA removal) ends up being a refiled version of a bill already filed on that topic or is something entirely new remains to be seen.

Judiciary budget

The Senate Finance Committee took up judicial branch funding yesterday and heard from a string of judicial officials highlighting their inability to hire and retain quality attorneys and staff due to inadequate pay. As we reported last week in our discussion of the OAG budget, this session’s baseline already includes raises for many state agencies—including the appellate courts—but their primary ask is for yet more funding to keep pace with inflation and the private sector.

The main non-funding item of discussion for the committee was whether judges are making good use of their discretion (especially in Harris County) and what the legislature needs to do to prevent offenders out on bail from re-offending. There were also several mentions of the State Commission on Judicial Conduct (SCJC) and whether it is an adequate check on the judiciary—which is interesting, considering that a similar agency is being pitched this session for governing prosecutors. Also of interest was a mention later in the hearing of two pending court challenges to the authority of that commission to discipline judges for certain actions—as well as the fact that OAG declined to represent SCJC in those actions—forcing it to hire outside counsel.

On the prosecution front, Comal County CDA Jennifer Tharp briefly testified to thank the committee for fully funding DA apportionment funding, CA supplements, assistant prosecutor longevity pay, and related items. She also received from Chairwoman Huffman a public commitment to continue working on how to help local prosecutors hire and retain adequate staffing. As of now, that help might most likely come through SB 22, the lieutenant governor’s yet-to-be-filed priority issue to increase rural law enforcement funding, perhaps through an increase in DA apportionment funding for personnel costs—but again, none of those priority bills have been filed yet, so the details (such as how much and to whom) remain to be seen. And finally, SB 277 by Huffman (to grant cross-credit service time for elected prosecutors and judges who switch between those roles) has been referred to her own Senate Finance Committee, which is always a good omen.

Across the rotunda, House Appropriations subcommittees were named this week and will get to work next week digging into the details of HB 1, the massive state budget. The subcommittee that will tackle issues important to your work is the Subcommittee on Articles I (executive branch), IV (judiciary), and V (public safety): Mary Gonzalez (D-Clint), chair; David Spiller (R-Jacksboro), vice-chair; Steve Allison (R-San Antonio), Mano DeAyala (R-Houston), and Jarvis Johnson (D-Houston). We’ll report back on their initial work in our next update.

Looking ahead

The Senate started referring bills to committees this week, including several of the bills on “prosecutorial accountability” that we have identified for you in the past, which were all sent to the Senate State Affairs Committee chaired by Sen. Bryan Hughes (R-Mineola). These referrals mean that those Senate committees can hear and vote on bills as soon as next week. However, no notices have been posted by the time this update was distributed, so bill hearings are more likely to begin the week after next. House committees may also start to hold their initial organizational meetings to prepare them for eventual bill hearings, but as of now, no bills have been referred for that purpose; look for that to start happening next week as well.

More 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. We also have a list of “Bills to Watch” that includes these new additions this week:

• HB 2272 by Swanson requiring a DA to represent CPS if a CA opts out of that representation
• SB 950 by Kolkhorst authorizing OAG to defend a CA or DA against certain federal lawsuits
• SJR 44 by Huffman authorizing the denial of bail for certain violent or sex crimes.

To read these or any other bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format you wish to read it in (PDF, html, or Word).

Austin-bound?

Committee hearings are almost here, so if you are ready to clear your calendar and come to Austin for a few days in March, April, or early May, 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:

• “District attorney Tetens having trouble finding prosecutors willing to accept capital murder cases in the wake of recusals” (KWTX–Waco)
• “As Texas booms, local governments—especially in small towns—struggle to find workers” (Texas Tribune)
• “Who will pay for Texas AG Ken Paxton’s office $3.3M settlement with whistleblowers?” (Dallas Morning News)
• “Proposed amendment to Texas constitution would give judges more discretion to deny bail” (KHOU-Houston)
• “Republicans clash with prosecutors over enforcement of abortion bans” (Politico)

Quotes of the Week

“While Texas made great strides to protect our cities, we must shut and lock the revolving door by passing laws to keep dangerous criminals behind bars. This session, Governor Abbott will work with the legislature to:

• Propose a constitutional amendment allowing judges to deny bail for the most violent offenders
• Pass legislation to hold judges and district attorneys accountable or [sic] reckless decisions compromising the safety and security of Texans”
  —Excerpt from the press release issued by the governor’s office after Gov. Abbott’s State of the State Address last night.

“Having a child removed is one of the strongest police actions that we can take. … We have all kinds of checks and balances for getting [put] in jail for any amount of time. Rightfully so. We have checks and balances and we have due process. But child removal? It has due process, but not nearly as consistent.”
            —State Rep. James Frank (R-Wichita Falls), as quoted in a Texas Tribune article explaining the basis behind his filing of HB 730 to amend procedures and standards for CPS investigations and lawsuits.

“Mr. Paxton is going to have to come to the Texas House, he’s going to have to appear before the appropriations committee and make a case to that committee as to why that is a proper use of taxpayer dollars. And then he’s going to have to sell it to 76 members of the Texas House. That is his job, not mine.”
            —House Speaker Dade Phelan (R-Beaumont), when asked by a reporter if he supported the use of taxpayer dollars to fund Attorney General Ken Paxton’s $3.3 million settlement with four former aides who accused him of misconduct.

“Put yourself in my position: How would I go back to my constituents—some of whose children have been murdered by decisions of judges—and tell them that I’ve put in a budget, and I’ve voted for a bill, giving that person a 20-percent pay raise?
            —State Sen. Joan Huffman (R-Houston), chairwoman of the Senate Finance Committee, posing a question to the chairman of Judicial Compensation Committee after he pitched their recommended 23-percent increase in the judicial benchmark salary this session.

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Good news! If this whole “lawyer thing” goes south, we now have enough hours behind a chainsaw in the wake of the recent “Arborgeddon” to consider lumberjacking as a second career.

Budget news

The substantive action at the capitol right now is on budget and funding matters, so we’ll lead with that.

Judicial pay raise bill gets filed
State Sen. Bryan Hughes (R-Mineola) filed SB 802 this week to increase the starting benchmark salary of a district judge from $140,000 to $172,494 as of September 1, 2023. We expect a similar companion bill to be filed in the House by State Rep. Jeff Leach (R-Plano), but that version may break out the same increase into two annual 11-percent bumps. (That’s the actual math that results in the uneven new figure.) These bills will be the enabling legislation for the most recent recommendations by the Judicial Compensation Commission.

Funding for these proposals has not been included in the base budgets of either the House or the Senate, but Chief Justice Hecht will no doubt make that request to the Senate Finance Committee next Thursday when it takes up that part of the state budget.

Senate Finance Committee hearings
Last Friday’s Senate Finance hearing included a review of the initial budget proposals for various executive branch agencies, including the Office of Attorney General (OAG). In laying out his budget presentation, Attorney General Ken Paxton (R-McKinney) pointed out the challenges OAG faces in recruiting and retaining quality lawyers, noting their average annual salary of around $97,000 pales in comparison to the average law firm salary of about $150,000 in Texas (and some firms start new lawyers at even higher salaries). The state’s baseline budget currently includes two annual 5-percent raises for those lawyers and other agency staff—something the budget writers are doing for many state agencies—but OAG is requesting $26+ million in additional funding for more targeted salary increases as well as 30 additional law enforcement positions (at a cost of $10.5 million). Many of you may find yourselves facing similar challenges in recruiting and retaining good help, so the fate of those OAG funding requests may shed light on how the legislature feels about similar asks related to local prosecution later this session.

Other highlights of that OAG presentation last week included the following:

• In response to a question from State Sen. Pete Flores (R-Pleasanton) about helping rural prosecutors with human trafficking and border prosecutions, AG Paxton bragged on his office’s willingness to help any prosecutor who asks for help and then pivoted into an attack on unnamed DAs who “have nullified Texas law on certain types of crimes,” and he recommended that the legislature “give some kind of concurrent jurisdiction either to us or to some other entity that could actually be a back-up if certain district attorneys decide not to prosecute certain crimes that you all have said are crimes” (starting at the 01:23:45 mark of the video link below).
• When asked by State Sen. Lois Kolkhorst (R-Brenham) why OAG failed to help several small counties sued in federal court over the new state anti-abortion laws, First Assistant AG Brent Webster said OAG cannot do that without specific statutory authority, so Sen. Kolkhorst said she will file a bill to give OAG that civil authority (starting at 01:33:13).

The archived video of this entire hearing is available HERE, with the OAG agency testimony beginning at the 01:11:45 mark for those interested.

Next week we hope to have an update for you on how the Senate Finance Committee feels about possible judicial branch funding increases, plus potential news on the status of more prosecutor-specific funding ideas. Stay tuned!

House committees named

The Speaker released his committee assignments on Wednesday (full list available HERE). This is the final organizational step necessary for the legislature to begin its committee work, which is where the rubber meets the road for most lawmaking. Relevant committees for most of you will include the following (* = new role or new committee assignment for that member; (F) = freshman):
            Appropriations (R chair, 14R/12D): Bonnen (R-Friendswood), chair; M. Gonzalez (D-Clint), vice-chair; *Allison (R-San Antonio), C. Bell (R-Magnolia), *Bryant (D-Dallas), *DeAyala (F) (D-Houston), Gates (R-Richmond), *Gervin-Hawkins (D-San Antonio), Howard (D-Austin), *Isaac (F) (R-Dripping Springs), *Jetton (R-Richmond), Ja. Johnson (D-Houston), *Martinez (D-Weslaco), *Martinez Fischer (D-San Antonio), Morrison (R-Victoria), *Orr (F) (R-Itasca), *Ortega (D-El Paso), Rose (D-Dallas), *Spiller (R-Jacksboro), *Tepper (F) (R-Lubbock), *Thimesch (F) (R-Lewisville), E. Thompson (R-Pearland), Toth (R-The Woodlands), VanDeaver (R-New Boston), Walle (D-Houston), Wu (D-Houston).
            Calendars (R chair, 7R/4D): 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, *E. Thompson (R-Pearland).
            Corrections  (D chair, 4R/5D): *Herrero (D-Robstown), chair; *Kacal (R-College Station), vice-chair; Allen (D-Houston), *V. Jones (F) (D-Houston), *R. Lopez (D-San Antonio), Murr (R-Junction), Sherman (D-Dallas), *Swanson (R-Spring), *Toth (R-The Woodlands).
            Criminal Jurisprudence (D chair, 5R/4D): *Moody (D-El Paso), chair; Cook (R-Mansfield), *vice-chair; *Bhojani (F) (D-Euless), *Bowers (D-Rowlett), *Darby (R-San Angelo), *Harrison (F) (R-Waxahachie), *Leach (R-Plano), *C. Morales (D-Houston), *Schatzline (F) (R-Fort Worth). (Note: Eight of nine members are new to this committee, although two—Moody and Leach—have served on it in the past.)
            Homeland Security & Public Safety (R chair, 5R/4D): *Guillen (R-Rio Grande City), chair; Bowers (D-Rowlett), vice-chair; *Canales (D-Edinburg), *Dorazio (F) (R-San Antonio), Goodwin (D-Austin), Harless (R-Spring), *Holland (R-Rockwall), *Ja. Johnson (D-Houston), *Troxclair (F) (R-Austin).
            Judiciary & Civil Jurisprudence (R chair, 5R/4D): Leach (R-Plano), chair; Ju. Johnson (D-Farmers Branch), *vice-chair; Y. Davis (D-Dallas), *Flores (F) (D-Austin), Moody (D-El Paso), *Murr (R-Junction), Schofield (R-Katy), *Slawson (R-Stephenville), *Vasut (R-Angleton).
            Juvenile Justice & Family Issues (D chair, 5R/4D): *Dutton (D-Houston), chair; *Lujan (R-San Antonio), vice-chair; Cook (R-Mansfield), *Leo-Wilson (F) (R-Galveston), *J. Lopez (F) (R-San Benito), *Martinez Fischer (D-San Antonio), *Smithee (R-Amarillo), *Talarico (D-Round Rock), Wu (D-Houston).
            State Affairs (R chair, 8R/5D): *Hunter, chair; Hernandez, vice-chair; *Anchia (D-Dallas), *Dean, *Geren (R-Fort Worth), *Guillen (R-Rio Grande City), Metcalf, Raymond, Slawson, Smithee (R-Amarillo), *Spiller (R-Jacksboro), *S. Thompson (D-Houston), *Turner (D-Arlington).
There are more House committees and assignments than we can recount here, so if you are curious about another committee or what assignments your local House member(s) received, check the House website.

Looking ahead

The governor has announced that he will give his State of the State Address next Thursday evening (Feb. 16) from San Marcos in a made-for-TV event. That address is likely to include his designation of what legislative issues he will deem “emergencies,” a status that allows the legislature to debate and vote on those issues or bills before the 60-day “quiet period” imposed by the state constitution. Look for more information in this space next week on whether those emergencies involve you or your jobs.

Bill filing deadlines approaching

In addition to making the legislature wait 60 days before voting on any legislation, the state constitution also establishes the 60th day of a session as the deadline for filing general legislation. That puts this session’s Deadline Day on Friday, March 10, a mere four weeks from today. But in reality, the effective deadline is even earlier than that because the Office of Legislative Council (which drafts bills for legislators) already has a huge backlog of work to complete, so it has given legislators a deadline for requesting the drafting of non-local bills as the end of business on Friday, February 17. (As in, next Friday.) So, if you’ve been toying with the idea of requesting that a bill be filed on a particular topic but haven’t pulled the trigger yet, you are now on notice. In addition, the naming of committee members gives you the final piece of information necessary to identify good (or not-so-good) potential authors for those ideas. If you need help with any of that, feel free to contact Shannon.

Many of the bills relevant to your work that have been filed to date can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of other “Bills to Watch” that includes these nine new additions this week:

• HB 1874 by Noble relating to the award of attorney’s fees in a civil asset forfeiture proceeding
• HB 2038 by Allison requiring forfeiture proceeds be awarded to certain property owners
• HB 2043 by Bowers creating a statewide pretrial and sentencing database
• HB 2117 by Oliverson creating a new cause of action against judges who wrongfully release offenders on personal bond
• SB 740 by Huffman requiring an election to reduce or reallocate funding or resources for certain county prosecutors’ offices
• SB 787 by Huffman imposing a 10-year minimum sentence for 3g offenses involving a firearm
• SB 793 by Hinojosa applying the exclusionary rule to civil asset forfeitures and raising the State’s burden of proof in those civil cases
• SB 802 by Hughes increasing the annual base salary of a district court judge
• SB 819 by Perry allowing crime victims to enforce rights by mandamus, injunction, etc.

To read these or any other bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format you wish to read it in (PDF, html, or Word).

Austin-bound?

If you are ready to clear your calendar and come to Austin for a specific time in late February, March, April, or early May, 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 veterans vow to protect the state’s hemp market as one state lawmaker hopes to crack down” (Texas Tribune)
• “Texas House Speaker Dade Phelan defies GOP pressure, taps Democrats to lead committees” (Dallas Morning News)
• “Appeals court ruling says alleged domestic abusers have a constitutional right to keep their guns” (Texas Tribune)
• “Texas AG Ken Paxton’s office, whistleblowers reach $3.3M settlement in retaliation lawsuit” (Dallas Morning News)

Quotes of the Week

“There is zero excuse for driving under the influence and putting lives in danger, in particular by a member of the legislature whose conduct should be held to a higher standard.”
            —Lt. Gov. Dan Patrick (R-Houston), publicly commenting upon the DWI arrest of State Sen. Charles Schwertner (R-Georgetown) in Austin earlier this week.

“We have a really good team. We have, I think, the best team to prosecute human trafficking in the state. … We would like to step in and help in those cases. We think we can save lives. … I’m really passionate about this issue. … It is at the heart of, like, what I care about. And I’m very sad … that there was opposition, I guess, from the district attorneys who didn’t want to share any kind of jurisdiction. We don’t care. We want you to prosecute. But if you’re not going to, please let us prosecute these people who are doing great harm to a lot of young women in our state.”
            —Texas Attorney General Ken Paxton, commenting at last week’s Senate Finance Committee hearing upon a bill he pushed four years ago to grant his office original criminal jurisdiction in human trafficking cases because too many local prosecutors either don’t care about them or lack the resources or expertise to properly handle them (according to his testimony again this session).

“Prosecutors play an absolutely critical role in the criminal justice system as they are charged with obtaining justice for victims of crime. Prosecutors with criminal jurisdiction should be treated no differently than law enforcement, and I hope that this bill delivers that message.”
            —State Sen. Joan Huffman (R-Houston), in her press release announcing the filing of SB 740 to prevent counties with a population exceeding one million from defunding their prosecutor offices.

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Not much work took place in Austin this past week unless you were a tow truck driver, power line technician, or chainsaw merchant, so this will be a shorter update than usual.

Somebody call the Lorax

Two years ago, “Snowpocalypse 2021” wiped out a week of the session. Now we have just survived “Austin Oakpocalyse 2023,” which may have a similar effect. Parts of Austin have been (or still are) without electricity for days due to downed trees and power lines, but even the neighborhoods of those with power look like a war zone with bowed or broken trees everywhere. Things are likely to return to normal next week—which would mean little overt action other than perhaps the publication of House committee assignments—but at this point, any return to normalcy is welcome.

“Flooding the zone”

American politics is rife with colorful expressions taken from our rich sports heritage. One of those is “flooding the zone.” In football, this is used to describe a passing game strategy in which an offense purposely directs multiple receivers into one area of the field in an effort to overwhelm the opponent(s) tasked with defending that zone. In politics and policymaking, it has also come to denote a strategy or situation in which multiple options are thrown at a problem—sometimes purposely, but other times not—in the hopes that something gets passed to address it, even if there is no clear consensus at the outset on what that solution should be.

We’re experiencing a little bit of zone-flooding on the so-called “rogue prosecutor” front right now. Depending on how you define that “problem,” there are anywhere from five to as many as nine bills already filed to “solve” it (either broadly or in narrower respects). And guess what? More bills are coming. You can bank on that.

This week’s addition to the list is SB 648 by Mayes Middleton (R-Wallisville), which would create new removal procedures for prosecutors who don’t enforce certain laws (including the death penalty) or who adopt policies or make statements saying they won’t enforce certain laws. If we were to analogize this bill to a pass pattern, it would probably fall under the “Hail Mary pass” category, but read it for yourself and see what you think.

Thoughts? Questions? We’d love to know what y’all think about all this.

Knowledge is good

In reading some of the social media chatter surrounding the prosecutor accountability bills filed to date, it is obvious that many people—including policymakers and other “influencers”—are not always up to speed on how prosecution works in Texas or how prosecutors are currently held accountable when they allegedly step out of line.

To address the former problem, we updated and released a new version of “Texas Prosecution 101” last year in the wake of the Stephens opinion that clarified and confirmed local prosecutors’ constitutional authority over criminal prosecutions. Don’t assume that people making or commenting upon public policy in this area know as much about this topic as you do, so please feel free to use that information to educate others.

As to the specific issue of prosecutor accountability, it’s been more than a decade since TDCAA issued a September 2012 report entitled “Setting the Record Straight on Prosecutorial Misconduct” in specific response to a deeply flawed “study” attacking prosecutors in Texas for being unaccountable. While the findings in the TDCAA report are still valid, we thought the portion on prosecutorial accountability might be worth dusting off and re-issuing in a more bite-sized format. You can find that updated excerpt here. This is information suitable for sharing with policymakers who are being asked to support legislation affecting prosecutors in a vacuum, without any context or knowledge of what checks and balances already exist in Texas law. (Or worse, getting misinformation about it, whether purposeful or not.) The reality is that prosecutors are probably the most highly-regulated lawyers or public officials in the entire state, but that is probably news to people in the capitol until you educate them about it.

Budget

The Senate Finance Committee tried to kick off its initial budget overview hearings before Mother Nature postponed the proceedings. These broad reviews of the initial baseline budget are traditionally the first foray into live committee hearings at the Lege. That committee won’t get to the judicial branch budget until the week after next, so we’ll give you a more detailed run-down of what that looks like then. Meanwhile, for a peek at some of the goodies in the proposed appropriations bills, check out this handy summary prepared by our friends at TAC, including details on new funding proposals for mental health facilities, TJJD facilities, rural law enforcement personnel, and more.

New bills to watch

Many of the 650+ bills we are tracking so far can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a curated list of other “Bills to Watch.” The closure of the capitol resulted in few bills being filed this week, but we still added a couple to that latter list:

HJR 98 by Tinderholt proposing a constitutional amendment authorizing the attorney general to enforce election law crimes
SB 648 by Middleton relating to the removal of prosecutors for failure to enforce laws
SB 665 by N. Johnson creating an online trackable database of civil asset forfeiture cases
SB 677 by N. Johnson authorizing defense lawyers to appear before grand juries in certain cases

You can click on the underlined hyperlinks to access the content of those bills and related details. Along with these bill tracks, we are currently tracking roughly one out of every four bills filed at the Lege. That is a higher percentage than normal. Congratulations, you and your work are popular.

Counties at the Capitol Day

Our good friends at TAC are hosting a “Counties at the Capitol” Day on Tuesday (February 7). For more details—including an agenda and online registration—please visit the TAC website.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a specific time in late February, March, April, or early May, 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. We are here to help you work smarter, not harder.

Scattershooting

Here are some recent stories you might’ve missed:

• “FBI Reportedly Investigates Fentanyl Distribution on Snapchat” (Yahoo News)
• “Texas lawmakers want to address the fentanyl overdose crisis. Here’s what they propose.” (Austin American-Statesman)
• “Lack of Rural Lawyers Leaves Much of America Without Support” (Pew Stateline)
• “It’s Not Just a Police Problem, Americans Are Opting Out of Government Jobs” (The Marshall Project)
• “Biden names Dallas prosecutor Damien Diggs first Black U.S. attorney for East Texas” (Dallas Morning News)

Quotes of the Week

“People want to work from home and you can’t prosecute from home. … [New law school graduates] are just generally not interested in trying cases, being in a courtroom, being more specifically in an office. They want to do remote work, and that’s just not an option as a prosecutor.”
            —McLean County (IL) State’s Attorney Erika Reynolds, in an article seeking to explain why prosecutor offices in Central Illinois are struggling to fill open positions.

“We know that George Soros’ many organizations pump millions into getting these lawless prosecutors elected. The least we can do is hold them accountable.”
            —“Rick Perry,” commenting on a story on “rogue prosecutor” legislation run in the Texas Scorecard—the media arm of the conservative advocacy group formerly known as Empower Texans. (But is it *the* Rick Perry? Or maybe “the other Rick Perry”? Who knows?!?)

“[… District attorneys] do not have the constitutional authority to choose which classes of offenses to prosecute. George-Soros-backed DAs are endangering our communities with policies of non-prosecution. … Our justice system cannot function when DAs are allowed to cafeteria-style pick-and-choose which laws to follow and which to ignore. It is up to the legislature to pass laws and for district attorneys to enforce them, period.”
            —State Sen. Mayes Middleton (R-Wallisville), in his press release announcing the filing of SB 648 “to hold rogue district attorneys accountable for their dangerous policies of not enforcing our laws and prosecuting criminals.”

“The power given to district and county attorneys includes the power not only to prosecute cases but also to decide which cases should not be prosecuted. When the district or county attorney chooses not to prosecute a case, they are permissibly exercising their prosecutorial discretion; it is their prerogative to file or not file charges.”
            —Court of Criminal Appeals Judge Scott Walker, in his concurrence to that court’s refusal to reconsider its prior opinion in State v. Stephens. For a refresher on that debate over rehearing, see our September 2022 Interim Update.

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There are “only” 122 days left in the 88^th Regular Session.
If you want to pass a bill … get to work! The clock is ticking.
If you don’t want a bill to pass … get to work! The clock is not ticking fast enough.

What’s old is new again

As we reported two weeks ago, one of the bills that has been filed to reign in “rogue prosecutors” is SB 404 by Senator Phil King (R-Weatherford). Yesterday, the identical House companion was filed as HB 1732 by Rep. Jeff Leach (R-Plano). These bills would re-establish the defunct Prosecuting Attorneys Coordinating Council (PACC) that was first established in 1977 and subsequently abolished in 1985. To better understand the implications of resurrecting this state agency—and to see how the new agency created by these new bills might differ from the original agency—we hopped in our DeLorean and took a trip back in time (with the help of the Texas State Archives) to learn just what that agency accomplished in its short prior life.  

History
Unlike the new bills, the original PACC was not strictly focused on disciplining prosecutors; it was more of a centralized agency that could deliver technical assistance, education, and professional development to Texas prosecutors. In its day, the original PACC partnered with TDCAA to produce training and assist prosecutors in various ways, and certain wizened former prosecutors tell us that some prosecutors viewed the PACC as a prosecutor-generated effort to advance professionalism.

On the flip side, the agency also accepted and investigated complaints alleging incompetence or misconduct by elected prosecutors (which is the sole focus of the new bills). These duties were carried out by a staff that grew to as many as eight employees operating under the direction of a council consisted of nine members: the presiding officer was the president of TDCAA, four additional members were elected prosecutors appointed by TDCAA, and four members were non-lawyer citizens appointed by the governor.

The PACC was slow to get off the ground because it wasn’t funded by the state when it was created; instead, it subsisted on grants from the governor’s office for the first two years of its existence. We were unable to discover how many complaints it received, but from what we can tell, in that initial two-year period the PACC appears to have filed two public reprimands, one private reprimand, and three removal actions (outcomes unknown) against elected prosecutors. Once the PACC started receiving regular state funding in 1981, it produced more robust reports of its activities, but the number of disciplinary outcomes remained the same or declined.

From 1981–1984 the agency received 187 formal complaints. The vast majority of the complaints were from dissatisfied crime victims (87) or defendants (44). There were also complaints from the general public (24), law enforcement (9), state and local agencies (6), judges and commissioners (5), grand jury foremen (3), and even an assistant prosecutor (1). In their annual reports, PACC members noted that most of these complaints showed a lack of knowledge about the role of an elected prosecutor and/or prosecutorial discretion and thus failed on the merits. Specifically, most complaints were dismissed based on lack of substantiation (92) or a proper use of prosecutorial discretion (60). In another 44 cases the PACC concluded that it did not have jurisdiction over the questioned conduct (for instance, because the conduct occurred in open court and was reviewed by an appellate court, or because the conduct related to the prosecutor’s private civil practice). Ultimately, during this funded period of 1981–1984, the PACC issued three public reprimands and one private reprimand and initiated only one additional removal action against elected prosecutors.

When the PACC came up for sunset review in 1984, duplications of effort and inefficiencies in agency operations caught the Sunset Commission’s attention. As attorneys, elected prosecutors were already subject to discipline for misbehavior through the State Bar, and there was a general lack of oversight on how certain funds were spent by the PACC staff. Rather than engage in a major overhaul of the agency’s statute to narrow its focus and firm up its budgetary restrictions, the legislature allowed the agency to expire in 1985 with the knowledge that elected prosecutors would still be subject to accountability through the ballot box, State Bar discipline, removal from office statutes, courts of inquiry, criminal and/or civil liability, and contempt of court actions. (All of these accountability options are still in effect, by the way.)

Finally, it is worth noting that the 2023 bills are not the first time legislators have considered reconstituting the PACC to discipline elected prosecutors. Such bills were filed in 1991 and again in 1993 but failed both times. Oddly enough, those bills were proposed 30 years ago as responses to alleged overzealous prosecutions—specifically, the then-Travis County DA indicting the sitting House Speaker. But in 2023, this idea is being resurrected for the opposite reason: non-prosecution, rather than over-prosecution. That is just one of several differences that may be relevant to how you might want to engage the legislature on this issue today.

Then and now
So, how does the original PACC law compare to the 2023 proposal? On one hand, the language relating to the basis for disciplining an elected prosecutor in the original PACC statute is similar (although not identical) to both the proposed new language and the current removal statute for local officials that already applies to elected prosecutors (see Local Gov’t Code Ch. 87). All purport to sanction elected prosecutors’ incompetency or official misconduct, the latter of which generally includes a failure or neglect to perform a duty imposed by law (although interestingly, SB 404 and HB 1732 do not overtly address a prosecutor’s publicly-stated refusal to enforce a specific law, which seems to be the crux of this issue in 2023). But there are important differences between the original PACC and the newly proposed agency.

One significant difference is the composition of each council. The 1977 PACC’s nine members had a 5–4 majority of elected prosecutors and the presiding officer was an elected prosecutor. But under SB 404/HB 1732, a proposed council of seven members would consist of only two elected prosecutors—one county attorney and one district attorney selected according to a process devised by the Supreme Court—along with one sheriff or chief of police appointed by the governor, a criminal judge appointed by the Supreme Court, and two non-lawyers appointed by the Speaker of the House and Lieutenant Governor, respectively. Furthermore, the bill gives the governor carte blanche to appoint whomever he wishes to the seventh position, that of presiding officer.

Another significant difference between the original PACC and the new proposal is the times in which we live. From 1977 through 1984, if someone wanted to complain about a prosecutor, they would need to open a phone book (remember those?), find out who to call at the PACC, learn from them how to file a complaint, then sit down in front of a typewriter (remember THOSE?!?) and compose a complaint, which would have to be addressed, stamped, and sent to Austin by snail-mail. Thus, it should not be a surprise that the few hundred phone calls logged in by the PACC during its existence morphed into fewer than 50 formal complaints per year during its funded period. Now fast-forward to today’s online world, in which the State Commission on Judicial Conduct received more than 1,700 complaints last year alone. Based on that indicator, were a new PACC to be created, one might reasonably expect that resulting agency to receive hundreds, if not thousands, of complaints every year against elected prosecutors based on technological advances alone, even if the vast, vast majority ended up being unfounded. You don’t need us to tell you what kind of negative impact that could have on your office’s limited resources in this post-pandemic time of case backlogs and unfilled positions.

In that same vein, prosecution in 2023 is not the same as prosecution in the 1970s and ’80s. Technology has combined with new discovery laws and other new legal obligations in a way that, when added to the explosion of new crimes and punishments passed over the intervening decades, has made your job busier and more complex than prosecutors from the Carter Administration era could have ever imagined. Similarly, the Texas Legislature of 2023 is not the Texas Legislature of the 1970s and ’80s. The partisan divides were different, the politics were different, and the “rogue prosecutors” narrative was not a narrative at all, much less a nationalized one. So, while SB 404 and HB 1732 propose resurrecting a disciplinary agency that was sunsetted once before for being ineffective and duplicative, the times have changed so much that the coming debate over it will be largely new to everyone involved.

Conclusion
In sum, there is only so much from the state’s experience with the original PACC (and its eventual abolishment) that can give you a well-formed opinion about how such an entity might work today. The fact that the original PACC was one of the few agencies to ever be moth-balled by the legislature due to lack of effectiveness is no guarantee that the idea won’t be re-considered now. And we’ve probably already spent too much of your time looking backwards, so we won’t even begin to ask how this specific new disciplinary system might work in today’s more complicated world. For now, what we can tell you with certainty is that many members of the legislature are serious about this issue, so it deserves your full attention. And keep in mind that there are more solutions to the alleged “rogue prosecutor” problem yet to be filed, so this is something that you will want to continue to follow during the bill-filing period that expires in mid-March.

Thoughts? Comments? Questions? Let us hear ’em. We’d love to know what y’all think about all this.

Senate committees take shape

This was yet another “ducks on the water” week: Most legislators and staffers looked calm on the surface but were paddling like mad underneath. Don’t mistake lack of hard news for lack of action.

The little news we do have is that the Lite Guv released new Senate committee assignments this week. Here’s a run-down of the committees most relevant to your jobs, with partisan breakdowns in parentheses (R/D) and new assignments from the last regular session in bold:

Border Security (3/2): Birdwell, chair; Flores, vice-chair; Blanco, Hinojosa, King.
Criminal Justice (4/3): Whitmire, chair; Flores, vice-chair; Bettencourt, Hinojosa, Huffman, King, Miles.
Finance (13/4): Huffman, chair; Hinojosa, vice-chair; Bettencourt, Campbell, Creighton, Flores, Hall, Hancock, Hughes, Kolkhorst, Nichols, Paxton, Perry, Schwertner, West, Whitmire, Zaffirini.
Jurisprudence (3/2): Hughes, chair; Johnson, vice-chair; Creighton, Hinojosa, Middleton.
State Affairs (8/3): Hughes, chair; Paxton, vice-chair; Bettencourt, Birdwell, LaMantia, Menendez, Middleton, Parker, Perry, Schwertner, Zaffirini.

We expect another relatively quiet week or two before House committees are assigned, and then the real fun begins another week or two after that as those committees assemble and get to work. Meanwhile, anywhere from 50 to 250 new bills will be filed every weekday. Good times.

New bills to watch

Many of the 600+ bills we are tracking so far can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. (Look on the right-hand side of that webpage on your desktop or the bottom of the page on mobile devices.) We have a curated list of other “Bills to Watch” for you as well. Bills recently added to that list include:

HB 1603 by Guillen governing the appointment of pro tem prosecutors in JP courts
HB 1618 by Moody awarding good conduct time credits for certain violent offenders
HB 1627 by Hernandez mandating implicit bias training for judges and lawyers
HB 1714 by Canales changing certain civil asset forfeiture practices and procedures
HB 1732 by Leach creating a Prosecuting Attorney Coordinating Council
SB 571 by West aka “the George Floyd Law Enforcement Accountability Act”

You can click on the underlined hyperlinks to access the content of those bills and related details.

Capitol “Days”

One way to get involved in Austin is to take part in one of the many “Day at the Capitol” events that local cities and counties hold during every session. In addition, our friends at TAC are hosting a “Counties at the Capitol” Day on Tuesday, February 7. For more details—including an agenda and online registration—please visit the TAC website.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a specific time in late February, March, April, or early May, 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. We are here to help you work smarter, not harder.

Scattershooting

Here are some recent stories you might’ve missed:

• “Petition filed seeking removal of Nueces County District Attorney Mark Gonzalez” (KRIS 6 News)
• “East Texas lawmaker files bill targeting prosecutors who decline taking on election crimes” (KLTV-Tyler)
• “Texas DPS stops enforcing handgun age limits for young adults” (Dallas Morning News)
• “Dallas County informs state it plans to sue over slow jail transfers” (Dallas Morning News)
• “Three Texas counties are suing the attorney general to get clarity on when the public can access post-election ballots” (Texas Tribune)
• “Poker house lawsuits: Dallas OKs spending at least $550,000 in legal fees” (Dallas Morning News)

Quotes of the Week

“Unfortunately, nothing will happen to most of these rioters because of the Marxist prosecutors who have seized control of the justice system in Atlanta … just like they have in other places. … When I’m president again, if Marxist prosecutors betray their oaths and refuse to protect our citizens, I will not hesitate to send in federal law enforcement to restore peace and public safety. We will restore law and order in America.”
            —Former President Donald Trump (R-NY), in an excerpt from his video comments about last night’s rioting in Atlanta related to some kind of craziness that we haven’t even had time to process because we are too immersed in legislative happenings.

“District attorneys are appropriately investigating fraud, as far as we know. There’s not cases where election fraud is happening and district attorneys just refuse to move forward. There’s just not evidence of these things being problems.”
            —Matt Simpson, with the ACLU of Texas, in an article discussing several election-related bills filed so far this session.

“I don’t want people to think that I have a grudge against the [capitol] because I don’t. It’s a wonderful place. And it can be wonderful and terrible all at once. All of that was me, not the place. And I think that place will change anyone—it’s just what you let it do to you.”
            —Former State Rep. Poncho Nevárez (D-Eagle Pass), in a Houston Chronicle article about his road to recovery following a drug possession arrest that short-circuited his political career at the legislature.

“Governor” = small; “Senate” = medium; “House” = large.
            —Drink sizes at the Capitol Café, a new coffee shop across the street from the state capitol that was opened this week by former state legislator Dan Huberty (R-Kingwood). Can you guess in which chamber Mr. Huberty served?  😉

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We are a mere 11/140ths (8 percent) of the way through the 88^th Regular Session.

Echoes of shots

On the heels of last week’s filing of SB 378 by Parker (R-Flower Mound) (fines and removal from office for non-prosecution) comes the filing of a House companion: HB 1350 by Cook (R-Mansfield). “Companion” means the language of each bill is identical, and the bills can move independently through the process on each side. Double the fun!

Regarding SB 404 by King (R-Weatherford), (prosecutor disciplinary council), we are continuing to research the history of its predecessor agency that was abolished in the 1980s as well as the background behind several failed legislative attempts to reconstitute such a council in the early 1990s in retaliation for then-Travis County DA Ronnie Earle indicting a sitting House speaker. While we work on that, you might gain greater context on this proposed change by asking your local judiciary how they like being under the purview of the State Commission on Judicial Conduct, an analogous disciplinary body that received more than 1,700 complaints against Texas judges in FY2022. We’ve never paid that much attention to it, but maybe that is about to change?

By the way, if these preceding paragraphs are Greek to you, then feel free to rewind back to last week’s Legislative Update. (That will also help you make more sense of some quotes of the week at the end of this update.) We recognize that all of you have busy day jobs and may not have a chance to read our updates, but if you haven’t read both of those bills yet, you might move that task to the top of your to-do list. Bills that could result in you being sued, publicly reprimanded, and/or removed from office deserve your full attention. Even if we all know these bills are directed at a select few prosecutors in certain jurisdictions, there is nothing limiting their scope to only those prosecutors. As we’ve said before, the legislature tends to solve problems not with a scalpel, but with a sledgehammer. So read the texts of those bills for yourself and let us—and even more importantly, your legislators—know what you think. Inquiring minds want to know.

More formalities

The second week of session was dominated by the inauguration of the governor and lieutenant governor, the roll-out of each chamber’s baseline budget (more on that below), and a visit from the World Champion Houston Astros. (Sorry, Rangers fans.) Behind the scenes, legislators are jockeying for their preferred committee positions and/or chairmanships. Senate assignments will likely come out next week and House assignments the following week.

Committee assignments are key events in any legislative session because historically, at least three-quarters of all the bills filed in a session go into a committee but never come out (and are therefore dead). On a related note, the chair of each committee historically has the best bill passage rate out of that committee, so if you wait until those positions are named and then succeed in having the chair file a bill that is likely to be referred to that committee, that bill is in very good shape indeed.

Interim committee reports

House and Senate committees meet sporadically during the interims between legislative sessions, and their output varies. Most (but not all) committees produce interim reports recommending future action to the next incoming legislature; some of those recommendations become future legislation, while others serve more as a glimpse into some legislators’ priorities. Interim reports from 2022 are still trickling in, but recommendations you might find interesting include the following:

House Interim Study Committee on Criminal Justice Reform

• Increase transparency and accountability for peace officer disciplinary actions
• Increase reporting and transparency requirements for civil asset forfeiture
• Require transcription of grand jury proceedings and prohibit re-presentations absent new evidence
• Raise the lower age of juvenile jurisdiction from 10 to 13 years of age
• Grant “second look” early parole eligibility to youthful violent offenders
• Automatic sealing of criminal records for certain adult offenders

House Committee on Judiciary and Civil Jurisprudence

• Increase the benchmark judicial salary and consider automatic cost-of-living increases
• Increase juror pay, enact wage protections for those who serve on juries, and narrow the current exemptions for jury service to provide a wider pool of jurors

Senate Committee on Finance

• Further restrict personal bonds for certain offenses and allow judges to deny bail in more situations
• Reduce wait times for inpatient forensic mental health services while increasing the availability of mental health services in local communities

Budgets news

The state’s budgeting process for the FY 2024–25 biennium officially began this week with the filing of the two chambers’ dueling General Appropriations bills: HB 1 by Bonnen (R-Friendswood) and SB 1 by Huffman (R-Houston). As you know, the comptroller has projected a historic budget surplus of $32.7 billion at the end of the current biennium, and revenue estimates project that the state will have $188.2 billion available to spend in the 2024-2025 biennium. All of that translated into a lack of drama when the initial “baseline” budget bills were filed this week—no one’s ox appears to have been gored in these bills.

Some big-ticket promises were included in the bills, like $15 billion in property tax relief, $1.8 billion for state employee pay raises, and $4.6 billion to support Operation Lone Star. Without going into too much detail at this early point in the process, both bills also greatly increase spending for the Juvenile Justice Department, add resources to beef up the DPS crime lab, and promise (without a specific number) to air-condition TDCJ units. Funding for the judiciary and prosecutors begins at 2022–2023 levels, so at the very least no one sees a cut from the get-go (as has sometimes happened in past baseline budgets).

Now the fun begins. These appropriation bills are the starting point for discussion, and the final product may look much different after the pork barrel politicking is done. In down budget years, legislators have it a little easier in a way—they can say “no” to new funding requests because the money just isn’t there, and almost everyone with a new funding request leaves the table empty-handed. This year, however, there will be both winners and losers in the race to secure additional funding, and the difference may fall more squarely upon the personal whims of legislators.

For a detailed summary of the filed version of HB 1, click here. For a detailed summary of the filed version of SB 1, click here. Questions about specific items? Email Rob at [email protected].

Other bills to watch

We are already tracking more than 500 bills this session (with eight weeks of bill filing still to go!). Many of them you can access on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. (Look on the right-hand side of that webpage on your desktop or the bottom of the page on mobile devices.) We also have a curated list of “Bills to Watch” that you can access on that same webpage. Bills recently added to that list include:

HB 1258 by S. Thompson revising grand jury procedures
HB 1332 by Herrero exempting firefighters and peace officers from jury service
HB 1350 by Cook sanctioning prosecutors for failing to enforce laws
SB 372 by Huffman criminalizing the disclosure of certain judicial opinions and work product

You can click on the underlined hyperlinks to access the content of those bills and related details.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a specific week in February, March, or April, 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. We are here to help you work smarter, not harder.

Capitol “Days”

Another way to get involved in Austin is to participate in one of the many “Day at the Capitol” events that local cities and counties hold during every session. In addition, our friends at TAC are hosting a “Counties at the Capitol” Day on Tuesday, February 7. For more details—including an agenda and online registration—please visit the TAC website.

Scattershooting

Here are some stories from this past week that you might’ve missed:

• “Texas Republicans want to rein in ‘rogue prosecutors’ like Dallas County DA John Creuzot” (Dallas Morning News)
• “Texas Republicans vow to crack down on ‘rogue’ prosecutors—here’s why” (Austin American-Statesman)
• “Ken Paxton wants more power to prosecute election crimes. These bills in the Texas Legislature would give it to him.” (Texas Tribune)
• “Can Texas Prosecute Providers of Medical Treatments Legal in Other States But Criminalized in Texas?” (Texas Civil Justice League)
• “Texas Legislature’s state budget proposals leave more than $50 billion in state funds up for grabs” (Texas Tribune)

Quotes of the Week

“We cannot attract new prosecutor talent at the wages that are being offered.”
            —Kurt Klomberg, Dodge County (WI) DA, who announced his resignation from office last week due to an inability to fund the basic level of practice needed to assure safety in his community.

“You can’t just take a bill over there and expect it to pass the first time. You got to kind of build your case. And you can’t quit. It’s not a sprint. It’s a marathon.”
            —Scott Stephens, a father who successfully pushed legislation requiring more student-athletes to be screened for heart issues after the death of this son, as quoted in a Texas Tribune article on civic engagement with the legislature.

“If you count up all of the ideas, all the money—the $32.7 [billion surplus]—is spent over like five times. There’s just a lot of requests. … Some ideas are better than others. So, they are going to have to prioritize.”
            —Texas Comptroller Glenn Hegar (R-Katy), in an interview on the current budget surplus and how the legislature is being asked to spend it.

“Last session, we passed a law that defunds any city that defunds their police. This session, we must end the easy bail policies that let dangerous criminals back on our streets. We must impose mandatory sentences on criminals caught with guns and on anyone caught smuggling illegal immigrants.”
            —Governor Greg Abbott (R-Houston), in his speech delivered at his inauguration this week.

“Carte blanche public pronouncements by district attorneys that laws we have on the books will be ignored renders the authority of the Legislature to determine what is and isn’t a crime, moot. … Rather than adopt politically-motivated virtue signaling and blanket immunity for criminals, district attorneys have a duty to evaluate the merits of each alleged crime on a case-by-case basis to ensure the public safety of Texans.”
            —State Rep. David Cook (R-Mansfield), in a press release announcing his filing of HB 1350 “to rein in renegade district attorneys.” The bill is an identical companion to SB 378 by Parker (R-Flower Mound).

“Prosecutors have absolute discretion to determine who it is that they want to investigate and prosecute. And the Stephens decision makes that clear. There’s simply not some legislative run-around [of] the court ruling.”
            —Chad Dunn, Austin lawyer who prevailed in the Stephens appeals, as quoted in a Texas Tribune article about legislation filed this session to roll back parts of that decision.

“Prosecutors swear a solemn oath to uphold and defend the laws of the state of Texas, as passed by the duly elected Texas Legislature. For prosecutors to knowingly and willingly refuse to enforce state laws—and even further, publicly announce their refusal to follow and enforce state laws—is a violation of their oath and greatly jeopardizes the entire justice system and weakens the rule of law. The foundational principle of prosecutorial discretion on a case-by-case basis must be protected. But state laws must be enforced. Any prosecutor who refuses to do so must be held to account.”
            —Recommendation of the House Interim Study Committee on Criminal Justice Reform on the charge of “prosecutorial discretion.”

“In short, the controlling motivations for the suspension were the interest in bringing down a reform prosecutor—a prosecutor whose performance did not match the Governor’s law-and-order agenda—and the political benefit that would result. The actual facts—whether Mr. Warren actually had any blanket nonprosecution policies—did not matter. All that was needed was a pretext to justify the suspension under the Florida Constitution.”
            —Conclusion of the U.S. District Court for the Northern District of Florida issued this morning in Warren v. DeSantis, finding that Gov. Ron DeSantis’ removal of a local Florida prosecutor was arguably illegal under Florida law, but in a way not cognizable under federal law and therefore denying relief. (Click on the link to the full opinion for a behind-the-scenes look at how that governor and his staff went about that removal decision—it’s a fascinating reminder of how and why these issues have become nationalized.)

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Let’s hope the first week of the new legislature ending on Friday the 13th is not an omen for the rest of the session.

Shots across the bow

Well, that didn’t take long.

Mere hours after newly re-elected Speaker Phelan mentioned during his acceptance speech a need to “rein in rogue prosecutors” (see “Quotes of the Week” below), State Sen. Tan Parker (R-Flower Mound) filed SB 378 relating to “the enforcement of criminal offenses by district attorneys, criminal district attorneys, and county attorneys.” The bill is essentially a slimmed-down version of the anti-sanctuary cities bill passed in 2017 (Senate Bill 4 by Perry (85RS)) which could expose elected prosecutors to civil fines and a potential quo warranto removal action for … well … it’s not quite clear what, exactly. But that doesn’t sound like fun, does it?

Those of you who attended our legislative preview at last month’s Elected Prosecutor Conference may remember our discussion of HB 125 by Slaton (R-Royse City), which would apply civil fines and a potential quo warranto removal from office to any prosecutor who “prohibits or materially limits the enforcement of any criminal offense prescribed by the election laws of this state.” In the same vein, SB 378 applies those sanctions to (the alleged mishandling of) any criminal offense. And before you ask: No, we don’t know what “prohibits or materially limits enforcement” means, and neither do the courts. While SB 4 has been on the books since 2017, there are no court opinions shedding light on what that phrase does or does not include; see City of El Cenizo v. Texas, 890 F.3d 164, 190–191 (5th Cir. 2018) (declining to grant a pre-enforcement challenge that SB 4’s ban on a “policy” or “practice” that “prohibits or materially limits” the enforcement of immigration laws is unconstitutionally vague on its face). Perhaps you can read the text of the bill for yourself here and let us know what you think it means.

Once you are done with that, you can move on to reading SB 404 by King (R-Weatherford) relating to “the reestablishment of the Prosecuting Attorneys Coordinating Council.” Some of you old-timers might remember the Texas Prosecutor Council, which was in existence from 1977–1985 before being abolished. It functioned as an oversight body for elected prosecutors, not unlike a much smaller version of the Judicial Conduct Commission, with the authority to accept and investigate complaints against elected prosecutors and issue reprimands or refer claims on to a separate judicial proceeding that could result in the removal from office of an elected prosecutor. The text of SB 404 was only made available late yesterday and we are still processing it, but tune in next week for more history and background on that topic. Meanwhile, read the bill for yourself and let us know what you think.

Going forward, we will track bills of this ilk under the “Bills to Watch” track you can access on our Legislative webpage (right-hand side for desktop access, bottom of the page on mobile devices), along with tracks for all bills amending the Penal Code and Code of Criminal Procedure.

One final note before moving on: In light of the apparent alignment among the Big Three (governor, lt. governor, and speaker) on the need to crack down on “rogue prosecutors”—a narrative that has apparently become part of the partisan culture war at the national level—it is possible that one or more bills like these could be tabbed by the governor as “emergency items” in the coming weeks. Such a designation frees the legislature to vote on those bills ASAP (rather than the usual 60-day delay imposed by the state constitution), so if you are interested in this topic and intend to participate in those legislative discussions, your preparations should begin now.

Sidebar: Format of these updates

We purposely started this update with some news we thought would grab your attention, but please don’t assume everything of importance will be on the first page of every update. Instead, they will usually follow a similar format:

• an overview of what happened last week;
• some deeper dives on specific issues of note;
• a preview of what (we think) might happen next week;
• some news clips of interest; and
• quotes of the week (some will make you laugh, others … not so much).

The length of these weekly updates will grow with the length of our workdays at the capitol. We know it can be hard to get through all of this information when you have a busy day job to manage, but we encourage you to try. At the capitol, information is power. If you don’t have the latest information, you’re going to be firing blanks when you try to advocate for or against something at the legislature. Please consider actively reading these missives with that in mind.

OK, now back to our regularly-scheduled programming …

Formalities

The first week of the new session was spent dealing with formalities like moving in, hiring staff, getting sworn in, adopting rules, and selecting a speaker for the house.

No Washington, D.C.-type drama was exhibited on that last account (thankfully); as expected, State Rep. Dade Phelan (R-Beaumont) was comfortably re-elected to that leadership role on Tuesday by a vote of 145-3. The next day was spent adopting rules governing the legislative process this session. Other than a new rule designed to deter future quorum-busters by imposing fines and other potential sanctions on those members, not much of significance changed.

Across the rotunda in the upper chamber, things were even more sedate (as usual). State Sen. Kelly Hancock (R-North Richland Hills) was chosen to serve as president pro tem of the Senate, a largely ceremonial position awarded by length of tenure in that chamber. On the following day, the senators engaged in the “staggered term lottery” that follows every redistricting election, drawing lots to determine which of them get four-year terms now and which have to run again in two years to start their next four-year term. (For the curious, those senators who must run again in 2024 are Senators Alvarado, Bettencourt, Blanco, Campbell, Eckhardt, Hinojosa, Huffman, Johnson, King, LaMantia, Parker, Paxton, Springer, West, and Whitmire). The bad news for those who drew two-year terms is they have to run again next year; the good news is that any of them who get re-elected yet have higher aspirations can take a free run at a statewide office in 2026 because the legislature somehow forgot to apply the resign-to-run rules to themselves. And finally, the Senate adopted its rules with minimal discussion or change from last session, the most interesting difference being the splitting of the former Committee on Veterans Affairs & Border Security into two separate committees.

On tap next week: A holiday on Monday, followed on Tuesday by the inauguration of the governor and lt. governor, speeches by the governor and lt. governor, parties to celebrate the governor and lt. governor, and then not a few hangovers. These festivities will limit the amount of work done in the open, but behind the scenes, legislators and their staff will kick their bill filings into higher gear and start internally lobbying for their preferred committee assignments and/or chairmanships, which could be announced before the end of the month. Then the real work begins.

All you need to know about the state budget

The Texas Legislature is going to have more money to play with than it has ever had in the history of this great state. The projected FY 2024–2025 revenue and savings surplus alone is larger than the annual budgets of most other, lesser states. Don’t bother worrying about the specific numbers—those are important to people inside the capitol who have to make everything balance, but to the rest of the world, the figures all end in “billions” (with a “B”) so we can’t comprehend them anyway. Just know that even with all that money to work with, demand will still outstrip supply, so anyone advocating for, oh, for instance, additional funding to help recruit and retain prosecutors in local offices, will need to come to Austin prepared to answer tough questions and justify that need. Stated another way: There are still no free lunches at the capitol.

When in Rome Babylon Austin

If you have never found a reason to be interested in the legislative process until recently—even if that was only a few minutes ago when you started reading this update—it can be a daunting process to understand. You might find this recent primer from the Texas Tribune to be a good place to start: Texas Legislature 101: Understanding the state government and how it passes laws. (Yes, we could quibble with its accuracy on some points or what it includes or fails to include, but like we said, it’s a good introduction.)

One challenge in engaging with the legislature on a specific issue is that the legislature provides limited notice of upcoming events, even going as far as to suspend its own notice rules when it sees fit. As a result, we may not be able to give you much notice of when particular bills may be considered. Instead, we recommend to anyone interested in seeing the process first-hand—either to learn or to engage—that you clear some room on your schedule so you can come to Austin for a few days during the session and see what is what. Preference will be given to elected prosecutors, but assistants are also welcome to volunteer (with their boss’s permission, of course). But remember, you are coming here to work on your issues; TDCAA will generally not take positions on bills at the legislature. We are here to be your eyes and ears at the capitol and help point you in the right direction when needed, but what you do with that help is up to you.

If you are ready to clear your calendar and come to Austin for a specific week in February, March, or April, 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 skinny before you make plans. We are here to help you work smarter, not harder.

Capitol “Days”

Another way to get involved in Austin is to participate in one of the many “Day at the Capitol” events that local cities and counties hold during every session. In addition, our friends at TAC are hosting a “Counties at the Capitol” Day on Tuesday, February 7. For more details about that—including an agenda and online registration—please visit the TAC website.

Scattershooting

Here are some stories from the holiday break and this past week that you might’ve missed:

• “Tarrant County’s new DA stands before a mountain of work. How is he scaling the slope?” (Fort Worth Star-Telegram)
• “Wade Jackson to step down as District Attorney of 110th District Court” (Lubbock Avalanche-Journal)
• “Ample Jan. 6 Evidence Helps Secure High Conviction Rate in Capitol Riot” (Wall Street Journal)
• “Six Reasons the Murder Clearance Rate Is at an All-Time Low” (The Atlantic)
• “Legislature could eliminate police dishonorable discharges, create officer database” (KXAN)
• “The fringe ideology of ‘constitutional sheriffs’ is attracting believers within Texas law enforcement” (Texas Tribune)

Quotes of the Week

“Well, I have happy political consultants.”
            —State Sen. Paul Bettencourt (R-Houston), finding a silver lining upon learning that he drew a two-year senate term this week and has to run for re-election again in 2024.

“It’s always easiest to spend other people’s money, so everyone is going to try to get their pet projects done.”
            — Brian Smith, political scientist at St. Edward’s University, quoted in a Texas Tribune article in reference to the state’s record $32.7 billion revenue surplus this session.

“We have proven you can be tough on violent criminals while also making the criminal justice system work better for nonviolent offenders. And that is what we will continue to do. We can work all day on these issues, but if rogue district attorneys will not uphold the law, what progress are we really making? It is time to rein them in.”
            — House Speaker Dade Phelan (R-Beaumont), listing off his priorities for this session during his acceptance speech.

“Thankful that Speaker @DadePhelan mentioned a priority for this session is addressing rogue District Attorneys who are publicly picking & choosing which laws they will enforce. We’ve seen this with #prolife laws in the last year & the #txlege must address this threat to Life.”
            — Tweet by Dr. John Seago, president of Texas Right to Life.

“REINING IN ROGUE PROSECUTORS: Prosecutors are elected to enforce Texas law and to pursue and hold accountable Texas lawbreakers. The practice of District Attorneys publicly and proudly thumbing their nose at the legislature and refusing to enforce entire classes of Texas crimes is an affront to the rule of law itself. This must end—and Prosecutors who continue to do so must be held to account.”
            — State Rep. Jeff Leach (R-Plano), current chairman of the House Judiciary & Civil Jurisprudence Committee, in a press release announcing his upcoming legislative priorities.

“We know that certain policies adopted by some district attorneys in our state have hindered the enforcement of criminal offenses, thereby placing the public at risk. This is unacceptable, and action must be taken to ensure that district attorneys are held accountable for their actions and carry out their duties by enforcing the laws we have on our books.”
            — State Sen. Tan Parker (R-Flower Mound), in a press release announcing the filing of SB 378.

<OK, we’ll stop there, you get the drift. Look for another update in this same space next Friday!>

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