TDCAA Legislative Update: 88th Regular Session, Week 11

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

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

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

The “lazy, overzealous prosecutor”

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

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

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

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

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

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

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

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

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

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

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

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

Financial support for rural sheriffs and prosecutors

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

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

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

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

Floor action

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

Committee news

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

Floor fun

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

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

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

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

Future floor debates

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

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

Future committee hearings

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

Monday, March 27

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

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

Tuesday, March 28

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

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

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

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

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

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

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

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

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

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

Wednesday, March 29

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

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

Bills to watch

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

Austin-bound?

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

Training scholarships

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

Scattershooting

Here are some recent stories you might’ve missed:

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

Quotes of the Week

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

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

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

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

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