Today is the second Friday the 13th of this year. The first was March 13. They make quite the bookends for 2020, don’t they? We’ve never considered ourselves to be triskaidekaphobians, but this year might change that!
And they’re off!
Legislators started filing bills this past Monday, with 545 bills uploaded on the first day and a total of 725 filed through yesterday. As usually happens, almost half of the pre-filed bills (325, or 46 percent of the total) are re-filed versions of legislation that failed to pass in 2019 (and sometimes 2017 and 2015 and so on; old, dead bills require only a change in number and date to refile electronically with the press of a button). The majority of pre-filed bills have been filed by Democratic members so far, including multiple House bills on major policy issues that appear to have been filed in anticipation of having a Democratic Speaker leading a Democratic majority in that chamber; in the absence of both, those bills will almost certainly have to be scaled back in aspiration if they are to have a chance of passage this session.
Of the total filed so far, we are tracking 80 of them (and counting) due to their potential impact on you or your work. Some examples include:
- HB 88 by Thompson, the George Floyd Act (and its identical Senate companion, SB 161 by West)
- HB 132 by Canales limiting civil asset forfeitures
- HB 225 by Thompson authorizing subsequent writs for new evidence
- HB 439 by Canales creating a new, lower punishment range for marijuana concentrates
- HB 447 by Moody legalizing, regulating, and taxing certain amounts of cannabis
- HB 486 by Wu raising the age of juvenile jurisdiction to include 17-year-olds
To view the text of these or any other bill, go to https://capitol.texas.gov/, enter the bill number in the search box, and press “go.” The text of the bill can be accessed via the tabs at the top of that next page, as can the history, actions, bill companions, etc.
To easily follow along with some of what is being filed, please use the bill tracking buttons on the Legislative page of our website for bills that would amend the Penal Code, the Code of Criminal Procedure, and other “Bills to Watch” (which is a curated list of bills you might hear about in the news or otherwise care about). Keep in mind, however, that we maintain more than 40 different bill tracks for various topics, so just because a bill doesn’t appear in one of the three tracks we make public on our Legislative webpage does not mean we are not following it.
(And that includes a track dedicated to bills proposed by prosecutors, so if you or someone in your office has proposed a bill that gets filed, please drop a note to Shannon and let him know so that he can be sure to follow it.)
COVID & the Lege
We know we sound like a broken record when people ask us what the first post-pandemic session will be like, but the reason we don’t know is because the people who must make those decisions still don’t know. In fact, at current COVID-19 positivity rates, it appears that this won’t be a post-pandemic session but a smack-dab-in-the-middle-of-a-pandemic session. The hope that the Lege might get to experiment with various end-of-interim hearing protocols crashed into reality this week as yesterday’s Sunset Commission meeting had to be postponed for health reasons, while a Senate Education Committee hearing kicked off this morning and took invited testimony remotely, by video only—members of the public continue to be banned from the state capitol until further notice. That appears to be the m.o. for that chamber for the remainder of the interim, as the Senate State Affairs Committee just posted notice for the only other hearing currently scheduled at the capitol and it will also be limited to invited, remote testimony only. That hearing on Wednesday, November 18, at 10:00 a.m., will take up hot-button issues from last session relating to abortion and so-called “taxpayer-funded lobbying,” perhaps giving observers an early peek into whether pandemic limitations can or will be used to stack the deck on controversial issues. To watch along from home or office, see the instructions in the hearing notice.
COVID & the Courts
The Supreme Court of Texas issued Emergency Order No. 29 on Wednesday to extend through February 1, 2021, its previous edicts limiting jury trials during the coronavirus pandemic. The new order continues to bar in-person JP and muni court criminal jury trials and imposes conditions on criminal jury trials in county and district courts, while also requiring courts to use all reasonable efforts to hold proceedings remotely and to otherwise follow OCA guidance for all proceedings.
Sunset Commission update
Speaking of the Sunset Commission: It’s rare that its recommendations merit inclusion in these updates, which is a good thing because that means reviewed agencies are generally performing as intended and merit another 12-year term before their next sunset review. That’s why we think it is noteworthy to pass along a summary of the Commission’s review of the Texas Commission on Law Enforcement (TCOLE), because that agency did not get the usual 12-year seal of approval from the Commission.
Earlier this month, the commission released a report recommending the Lege continue TCOLE for only two years while a “blue ribbon panel” reviews and recommends new and better ways to regulate law enforcement in Texas. The sunset report also recommends greater licensure and regulatory authority be given to the agency (or its successor) to modernize the oversight of law enforcement standards, training, and accountability. Those of you seeking a solution to your frustrations with Brady/Morton Act disclosures should pay attention, because this process could be a possible vehicle for a solution this session.
The Sunset Commission’s executive summary and full staff report are both available in PDF form HERE for those who want to dig deeper into the topic, keeping in mind that these are just staff recommendations at this point. A final recommendation will be made by the Sunset Commission members themselves, who are mostly legislators (along with a few public members), and then that recommendation will become a bill that must be approved by the Lege and the governor in 2021 for anything to change. That process usually takes until at least May, but it will start in earnest with a Commission vote on these staff recommendations as soon as its next meeting, which is now scheduled for the week of December 7 after being postponed this week due to coronavirus concerns.
More interim FRIs
The House Judiciary & Civil Jurisprudence Committee has issued a formal request for information (FRI) relating to its interim charges. That notice, and those topics, can be viewed at this link. Instructions for submitting comments are also found in that notice, as is their deadline of Monday, November 30, 2020. If you have questions about any of this, please direct them to Shannon by email.
CPS judge survey
The Texas Office of Court Administration (OCA) is conducting an annual evaluation of the judges of the Child Protection Courts and is seeking input from attorneys who present cases before those judges. To complete the survey, use THIS LINK. Please complete all submissions by Monday, November 16, 2020.
Legislative rotation sign-up now open
As you know, TDCAA can serve as your eyes and ears at the capitol, but the voice legislators need to hear is yours. To help you do that, we organize a rotating schedule of volunteer slots for prosecutors who wish to come to Austin to be a part of the legislative process. If you would like to plan ahead and schedule a time to spend a few days watching (or helping) the sausage being made, contact Shannon for more details—he can tell you when to come, what to bring, and what to expect. (Although as noted above, we have absolutely no idea what next session will actually look like in operation, but we will proceed under the assumption that they will conduct business in person as usual until we learn differently.)
Quotes of the Week
“Texas’ approach to regulating law enforcement is ineffective.”
—Heading in the executive summary of the Sunset Commission’s staff report on the Texas Commission on Law Enforcement (TCOLE).
“Allen West is irrelevant. He is a failed politician from Florida who is a petulant child trying to get his parents’ attention, and Speaker Phelan, Gov. Abbott, and others are true Republican conservative leaders who are smarter than to listen to the noise of a child.”
—Outgoing House Speaker Dennis Bonnen (R-Angleton), defending his likely successor against internecine attacks from within their own party by newcomers who seem eager to snatch defeat from the jaws of recent electoral victories.
“He’s got dark clouds over him, there’s no question about it. … [But] if you look at his career path, and his arc, he’s been down and come back up with a vengeance, so don’t count him out.”
—Bill Miller, Austin lobbyist, in an article recounting the difficulties facing, and already faced by, the current Texas attorney general.
“I’m not sure that this is going to be the session that it happens, but I know that this session it’s definitely going to be talked about. If nothing else, it jumpstarts the conversation about repealing [marijuana] prohibition, so we can have a conversation about how prohibition has affected the lives of people.”
—Heather Fazio, director of Texans for Responsible Marijuana Policy, on the legislation being filed this session to legalize, regulate, and tax marijuana in Texas.
“It’s the most personal thing you can do [in the Legislature]. … It’ll be high drama, and high drama, and then high drama.”
—State Rep. Charlie Geren (R-Fort Worth), longtime House member, on the upcoming redistricting process.
“Hispanics, especially Mexican Americans, they like this machismo, bravado, lucha libre-style politics — it’s like all-star wrestling, Trump style. It fits perfectly with the South Texas, Tejano person.”
—U.S. Congressman Vicente Gonzalez (D-McAllen), who won re-election by only three points in a traditionally heavily Democratic district, in an article reviewing how support for law enforcement and the oil and gas industry helped Republicans make in-roads in the RGV this election cycle.
“As is the case on so many other issues, you’re seeing a huge cultural divide opening up in the country on issues relating to law enforcement and criminal justice.”
—Dan Schnur, University of Southern California government professor, in an article discussing how criminal justice and policing reform issues played out in local prosecutor elections around the country.
“We’re expecting this to be a very long winter.”
—Ryan Mielke, spokesman for the University Medical Center in El Paso, on the unexpected surge of COVID-19 cases breaking out in that community as it enters the historical flu season.
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