There are “only” 122 days left in the 88th 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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