<<last updated March 31, 2023 at 4:55pm>>
Yesterday was not only Opening Day of the Major League Baseball season, but it also marked the 80th day of this 140-day session. Which is more likely: The Rangers win more than 80 games this season, or the Astros lose more than 60 games?
Preview
Looking ahead, the full House will debate HB 1 by Bonnen (state budget) on Thursday, which will demand the attention of most House members in preparation for that marathon session of debates, amendments, points of order, and late night fun. Other topics on tap for discussion next week include a potential salary increase for certain long-serving elected prosecutors, prosecutor-initiated resentencing (“PIR”), DNA collection, dozens of gun bills, and more. Read on for details!
Prosecutor accountability update
Although there are many options to choose from, the legislature appears to be leaning toward making SB 20 or HB 17 its preferred solution to the alleged problem of “rogue DAs.” The language of the two bills differs in important ways, but the gist of both is to tweak the existing removal statutes by adding a definition of official misconduct that includes categorical non-enforcement of certain types of crimes.
The Senate State Affairs Committee heard SB 20 by Huffman (R-Houston) last week but left it pending. On Monday of this week, the committee approved a committee substitute version on an 8–2 party-line vote. The bill will be eligible for consideration by the full Senate anytime next week, where it is expected to pass. The latest text of that bill can be read HERE.
Across the rotunda, the House Criminal Jurisprudence Committee considered HB 17 by Cook (R-Mansfield) and then left it pending. The discussion among committee members was more detailed than in the Senate, which was not surprising considering that the bill author is vice-chair of the committee and both the committee chairman—Joe Moody (D-El Paso)—and committee member Jeff Leach (R-Plano) are joint authors of the bill. (In fact, there are now 52 joint or co-authors for HB 17, an indication of strong support if or when it comes to the House floor). It was encouraging to hear the serious discussions among the committee members, including thoughtful questions from Rep. Leach about not improperly regulating speech and musings from committee member Drew Darby (R-San Angelo) about the importance of honoring voters’ choices. The committee also received input from Galveston County CDA Jack Roady and Smith County 1st Assistant CDA Chris Gatewood, both of whom thanked the members for their measured approach to the issue and testified “on” the bill (which means neither supporting or opposing it) to point out some remaining ambiguities or concerns that the committee might want to address.
As we go forward, it is likely that a new version of HB 17 will be hammered out by the committee members and then voted upon next week. Look for further HB 17 updates in this space then.
Separation of powers: How does it work?
In a special addendum sent out almost exactly one month ago (Update 7.1, available HERE), we reported on bills designed to wire around the decision by the Court of Criminal Appeals (CCA) in Stephens that found the AG’s unilateral prosecution of a criminal case to violate the state constitution’s separation of powers clause. The simple solution would be to amend the state constitution, but that requires 21 votes in the Senate and 100 votes in the House, and those votes are almost certainly unattainable for such fringe issues. Hence, some “creative” bill drafting has been proposed. Here is a status report for some of those bills.
The Senate State Affairs Committee approved a new version of SB 1927 by Hughes (R-Mineola) this week to move the authority of the CCA to appoint the State Prosecuting Attorney (SPA) from that court to the Texas Supreme Court (SCOTX). The committee substitute version of the bill also expands the authority of the SPA to prosecute certain crimes du jour (election, abortion, human trafficking) in the trial courts. As we discussed last week, that last bit is a constitutional dead-end; no one but locally-elected prosecutors have the constitutional authority to prosecute those cases. Period, full stop. But the committee voted the bill out 8–2 anyway. C’est la vie.
That committee also approved SB 1092 by Parker (R-Flower Mound) purporting to give SCOTX the ability to review and reverse any decision by the CCA involving constitutional law (such as in a future Stephens-type situation). That bill was heard last week—which we summarized for you in more detail in last week’s update—and was voted out 7–2 along party lines this week.
Another bill almost identical to SB 1092 is HB 2930 by Spiller (R-Jacksboro), which was heard in the House Judiciary and Civil Jurisprudence Committee on Wednesday. As with SB 1092, a representative of the AG’s Office testified “neutrally” on the bill but essentially stated that the change was needed because, well, it is all just too confusing having two courts, and he further assured the committee that the legislature has the power to take criminal authority away from the CCA (based on what we will charitably call a “convoluted reading” of the constitutional provisions at issue).
However, in a rare event at the capitol, representatives from both the prosecution and criminal defense bars testified in opposition to the bill. Galveston County CDA Jack Roady and Allen Place—a former state rep who now lobbies for the Texas Criminal Defense Lawyers Association (TCDLA)—pointed out that Article 5, Section 3 of the state constitution is crystal clear in excluding all criminal law matters from SCOTX’s jurisdiction. This framework has been in place since 1876 and there is an abundance of caselaw affirming this constitutional division of responsibilities. But, knowing legislators prefer to hear solutions rather than problems, Jack Roady offered the committee a simple one: If you disagree with the current system, then amend those provisions. The people of Texas enshrined that division of judicial labor in the state constitution, and the people of Texas can change it. But the legislature, alone, cannot. (The bill was left pending, by the way.)
Financial support for prosecutors
The Senate unanimously approved SB 22 by Springer (R-Muenster), the lieutenant governor’s rural law enforcement support initiative that will benefit those of you with criminal prosecution duties in counties/jurisdictions with populations below 300,000. It now moves on to the House for further consideration.
Interestingly, there is a similar bill in that chamber that was heard in the House County Affairs Committee this week, but with one important difference. House Bill 1487 by Gerdes (R-Smithville) proposes creating a rural law enforcement grant program, but instead of benefiting sheriffs and prosecutors, it benefits sheriffs and constables. And to do that, it would draw from the same pot of money in the proposed state budget bills. To date, the author of that bill has declined to add prosecutors to his bill, but we will keep you posted as that develops.
In other compensation-related news, the House Judiciary & Civil Jurisprudence Committee heard HB 2734 by Murr (salary cross-credits for judges and prosecutors) and left it pending. Thanks go out to 46th Judicial DA Staley Heatly for coming to town and testifying on that important bill. And on Monday morning, the Senate Finance Committee will hear SB 2310 by Hinojosa (D-McAllen), the bill to restore pay parity with the judges. (Email Staley HERE if you want to support that bill in person—he could probably use some help!)
State of the Judiciary Address
Chief Justice Nathan Hecht will deliver his constitutionally-required State of the Judiciary Address at noon on April 5 via a live-stream telecast from the courtroom of the Texas Supreme Court. This curve ball of an announcement represents a change from the traditional pre-pandemic practice of personally giving the address before assembled legislators, but it is consistent with the governor’s recent practice of finding creative new ways to pitch his State of the State Addresses. We assume the Chief will also use this opportunity to tout the benefits of video testimony, something the Texas Judicial Council hopes the legislature will broaden this session.
To view the event live, tune in to the Texas Judicial Branch website next Wednesday at noon.
Floor action
The House started passing House bills this week, including HB 28 by Slawson (agg assault enhancement). The House also gave preliminary approval to HB 727 by Rose (no death penalty for severe mental illness), but the vote on second reading was close, so final consideration of that bill on third reading was postponed until Wednesday, April 5.
The Senate passed the following Senate measures this week: SB 1151 by Whitmire (10-percent surety bond fee) and SB 1318 by Huffman (bail reform clean-up). Those bills now head to the House.
Committee news
Not many House bill committee reports were finalized this week, but in the Senate, committees approved SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm), SB 129 by Springer (punishment ranges in child pornography cases), SB 386 by Hall (presumption in capital cases), SB 602 by Birdwell (felony arrest authority for U.S. border patrol agents), SB 950 by Kolkhorst (AG may represent counties in federal civil suits upon request), SB 1045 by Huffman (creation of a 15th court of appeals for civil appeals by or against the state), SB 1527 by Huffman (omnibus human trafficking and child grooming bill), and SB 1717 by Zaffirini (stalking).
Future floor debates
There isn’t much of note scheduled for the House floor next week other than the state budget and HB 727 (set for Wednesday, as mentioned above), but in the Senate, bills eligible for floor consideration next week include SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm), SB 48 by Zaffirini (standardized protective order forms), SB 175 by Middleton (ban on taxpayer-funded lobbying), SB 224 by Alvarado (catalytic converter theft), SB 950 by Kolkhorst (AG may representation of counties in federal court upon request), and SB 1133 by Blanco (reimbursements for ag property damaged by border trespassers).
Future committee hearings
Here are some bills scheduled to be heard in committees next week (so far). Subsequent committee postings may be added later, so keep checking our website for the latest information.
Monday, April 3
Senate Finance – 10:00 a.m., Room E1.036
- SB 2310 by Hinojosa restoring pay parity between elected prosecutors and judges
Tuesday, April 4
Senate Criminal Justice – 8:30 a.m., E1.016 <<added>>
- SB 409 by Hinojosa clarifying certain victims’ rights to confer with prosecutors
- SB 435 by Middleton permitting disclosure of certain evidence to victims’ families
- SB 533 by Paxton relating to peace officer training on child fatalities
- SB 839 by West creating a witness protection unit of the Texas Rangers
- SB 1010 / SJR 51 by Parker relating to the denial of bail for certain crimes involving child victims
- SB 1179 by Perry relating to crimes at civil commitment facilities
- SB 1180 by Perry limiting civil actions by civilly committed offenders
- SB 1325 by Alvarado relating to notice provided to victims of family violence
- SB 1361 by Huffman criminalizing sexually explicit deep fake videos
- SB 1445 by Paxton, the TCOLE sunset reauthorization bill
- SB 1562 by Hancock creating a criminal offense of child grooming
- SB 1852 by Flores relating to active shooter training for peace officers
- SB 2085 by Whitmire creating a grant program for crime victim notification systems
- SB 2101 by Miles changing the manner of crime victim notification
- SB 2429 by Hancock relating to law enforcement training for missing children/persons
House Criminal Jurisprudence – 10:30 a.m. or upon adj., E2.016
- HB 909 by Moody authorizing prosecutor-initiated resentencing and commutation
- HB 948 by Dutton relating to bail for parole violations
- HB 1506 by Meyer extending the statute of limitations for abandoning/endangering a child
- HB 1731 by Jolanda Jones requiring personal bonds for certain misdemeanor offenders
- HB 1739 by Leach clarifying certain victims’ rights to confer with prosecutors
- HB 2019 by Neave Criado extending the statute of limitations for certain burglary offenses
- HB 2326 by Moody relating to blood specimens taken during an inquest
- HB 2700 by Guillen criminalizing AI-generated explicit visual imagery of children
- HB 2696 by Howard redefining consent for purposes of certain sexual assaults
- HB 3660 by Vasut creating a defense for certain trap-neuter-release programs
- HB 3956 by Smith relating to DNA sample collection after arrest
House Select Committee on Community Safety – 2:00 p.m. or upon adjournment, E2.012
(there are a dozen firearm-related bills posted for this hearing; click on the link above for details)
Wednesday, April 5
House Judiciary & Civil Jurisprudence – 8:00 a.m., Room E2.016 <<added>>
- HB 103 by Murr relating to a retired judge’s appointment as a visiting county court judge
- HB 1627 by Hernandez requiring implicit bias training for judges and lawyers
- HB 3249 by A. Johnson relating to the reporting of district court workloads
- HB 3474 by Leach, the omnibus court creation and court administration bill
- HB 4635 by Guillen creating a civil cause of action for racketeering and organized criminal activities
- HB 5010 by Schofield relating to the classification of a state bar grievance
House Licensing & Administrative Procedures – 8:00 a.m., Room E2.010 <<added>>
- HB 1601 by Wu authorizing and regulating poker clubs
- HB 2345 by Guillen changing gambling statutes to authorize poker rooms
House Juvenile Justice & Family Issues – 10:30 a.m., or upon adj., E2.030 <<added>>
- HB 491 by Wu changing the age of juvenile jurisdiction to 12-17 years of age
- HB 506 by Wu imposing certain limitations on restraint and clothing of juveniles in court
- HB 507 by Wu limiting the discretionary transfer of a juvenile to adult court
- HB 804 by Talarico relating to the confidentiality of juvenile records
- HB 1059 by Thierry prohibiting juvenile referrals or prosecutions for prostitution
- HB 4356 by Talarico replacing TJJD with the Office of Youth Safety and Rehabilitation
Bills to watch
Bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks, as well as a “Bills to Watch” track that includes these new additions above and others we have highlighted in these weekly updates.
Austin-bound?
If you are ready to clear your calendar and come to Austin for a few days in April or early May to weigh in on the bills we’ve discussed to date this session, please call or email Shannon to reserve that week ahead of time. Ditto for any questions you might have—call or email Rob or Shannon to get the scoop before you make plans.
Scattershooting
Here are some recent stories you might’ve missed:
- “Texas Republicans, once allied with prosecutors, seek to rein them in” (Texas Tribune)
- “The Horrifying Epidemic of Teen-Age Fentanyl Deaths in a Texas County” (The New Yorker)
- “Texas House delays final vote on barring the death penalty for mentally ill defendants” (Texas Tribune)
- “As book bans ebb, the battle to criminally charge Texas librarians has started” (Houston Chronicle)
- “Texas legislators debate bill to remove gay sex ban from state law” (Dallas Morning News)
Quotes of the Week
“It’s scary to think about prosecuting librarians for providing books. That doesn’t sound like America.”
— Bill Mendy Autry, president-elect of the Texas Association of School Library Administrators, as quoted in a Houston Chronicle story about attempts to criminally enforce laws against making books with sexual content available to children or teens.
“We had a couple times where people have overdosed in bathrooms. You never used to see people wheeled out on stretchers, and that’s happened three or four times this school year. The nurses have Narcan hanging right by the door in case somebody needs to come in and grab it real quick.”
— An anonymous student at Lehman High School in Hays County, where nearly 40 percent of the fentanyl overdoses recorded by the sheriff’s office last year involved people younger than 18.
“Alright … you got your moment. I hope you enjoy it.”
— State Rep. Jeff Leach (R-Plano), after having to read several prank names of fake witnesses registered to testify on a bill this week. (You can view the South Park-worthy video HERE, with the NSFW audio portion from 7:01:15 to 7:02:05. Kudos to Chairman Leach and his staff for managing it as well as possible.)
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