No power, no water, no masks, no problem! God bless the good people working in the Texas tourism industry right about now.

COVID and the courts

To the surprise of no one who has been closely following Texas GOP intraparty politics, the governor announced this week that, effective Wednesday, March 10, 2021, he is rescinding past Executive Orders GA-17 (“Strike Force to Open Texas”), GA-25 (limits on in-person jail visitation), GA-29 (statewide face mask mandate), GA-31 (hospital capacity), and GA-32 (partial re-opening) and allowing private businesses to fully reopen without restriction. And in addition to rescinding the statewide face mask mandate, the governor is also prohibiting local governments from enforcing any general mask mandates on their citizenry. Note, however, that the new emergency order does not revoke Executive Order GA-13 (suspension of some jail releases per CCP Arts. 15.21, 17.03, 17.151, 42.032, or 42.035). For all the details of the new order, read the text of Executive Order GA-34 itself (it’s not very long).

That said, one place that is still not “open for maskless business” is your local courtrooms. Current Texas Supreme Court Emergency Order No. 33 (Jan. 14, 2021) still requires Texas courts to abide by the Office of Court Administration’s Guidance for All Court Proceedings During COVID-19 Pandemic (last updated Dec. 31, 2020), and that guidance includes mandated face coverings for in-person court business. (Whether that is enforceable in real life has never been very clear, but as we all know, just a because a judge can’t make you do something doesn’t mean she can’t make you wish you had done something.) We know the Texas Supreme Court met this week to discuss potential changes to its emergency orders in light of the governor’s change of course, but as of when this update went to press, there were no changes to report. (Knowing our luck, new guidance from that court will probably be issued 30 minutes after we hit “send” on this update, so check this website for the latest from that court.)

Committee news

Most House committees held their organizational meetings this week in preparation for taking up bills next week—a key step in the legislative process that would normally start in late February. But this is not a normal session, and the capitol’s pandemic precautions will be put to the test when more members of the public come to the building to testify. Let’s check in again at the end of the month to see how things go. (More on testifying below, for those interested.)

One item of note from yesterday’s House Elections Committee meeting involved witnesses from the Office of the Attorney General testifying that they would be amenable to being granted the authority to request that a district court convene a special OAG grand jury for election fraud purposes. That will probably show up soon in bill format, so now is a good time to start deciding how you feel about that.

Committee notices

Now that committees are getting down to business, we will try to provide you with weekly notice of relevant bills being heard in the upcoming week. Due to space limitations, we won’t list all the bills posted for a hearing, but you can click on the underlined hyperlink in the committee’s name for a full listing of each notice, including more bill information (such as the text of a proposal) that can be accessed by clicking on any bill number in that online notice.

NEW THIS SESSION: Some important committees will meet on Mondays, which makes Friday afternoon notice not very helpful to those of you who might want to get involved on a bill. Therefore, we will try to send you short emails on Thursdays with information about the upcoming Monday’s hearings (as well as re-printing those Monday bills in our usual Friday update). You should have received your first such bonus notices yesterday.

Monday, March 8
House Juvenile Justice & Family Issues
10:00 a.m., Room E2.014, Capitol Extension
HB 39 by Neave, an omnibus protective order bill
HB 454 by Metcalf creating juvenile family drug court programs
HB 567 by Frank limiting parental right terminations
HB 686 by Moody authorizing early parole for certain youthful violent offenders now in prison

House Criminal Jurisprudence
2:00 p.m., Room E2.010
HB 187 by S. Thompson authorizing subsequent writs w/ a prosecutor’s consent
HB 225 by S. Thompson allowing a subsequent writ for non-scientific evidence
HB 252 by Moody requiring unanimity for capital special issue verdicts for the defense
HB 275 by Moody authorizing subsequent scientific writs for punishment issues
HB 277 by Collier requiring appointment of counsel before magistration (withdrawn)
HB 372 by Gonzalez on appointment of habeas counsel w/ a prosecutor’s consent
HB 569 by Sanford expanding jail credits for certain Class C offenders
HB 679 by Gervin-Hawkins relating to standards for appointed counsel in capital cases
HB 689 by Collier relating to magistration using remote video technology
HB 743 by Collier establishing a maximum assigned caseload for defense attorneys
HB 873 by Collier relating to unlawful restraint of a dog

Tuesday, March 9
House Business & Industry
8:00 a.m., E2.028
HB 390 by S. Thompson relating to human trafficking in commercial lodgings
HB 455 by Deshotel barring criminal history inquiries of job applicants by employers

House Judiciary & Civil Jurisprudence
10:00 a.m., E2.026
HB 976 by Price authorizing the appointment of regional specialty court judges

Wednesday, March 10
House Corrections
8:00 a.m., E2.026
Invited testimony from TDCJ, Texas Probation Association, et al.

Thursday, March 11
House Homeland Security & Public Safety
10:30 a.m. or upon adj.
(not posted, but check here for future postings)

New committee procedures

Are you wondering how COVID precautions will impact the committee hearings process and how you might best advocate for yourself on issues that are important to you despite the changes? If so, you are not alone. Let us lay out here what we know so far based on early House committee notices.

For starters, some committees have allowed invited witnesses to testify remotely, but House rules limit that option to invited witnesses. For everyone else, normal in-person testimony is available for all House committees, and in our opinion, in-person testimony is still the best way to convey your thoughts and opinions to committee members. (As we like to say, the Lege is like most raffles—you must be present to win!) Personal appearances may be complicated by new health protocols for working in the Capitol, but as of right now, if you bring a face mask and factor into your schedule an extra 20–30 minutes of time to self-administer a rapid COVID test and await the results before entering the Capitol, everything else will resemble a more distanced version of past sessions.

One new twist is this option now included in each House committee notice: “Texas residents who wish to electronically submit comments related to agenda items on this notice without testifying in person can do so until the hearing is adjourned by visiting <url>.” (For an example of what one of those electronic comment pages looks like, see this example, which will remain open until the committee hearing is adjourned Monday afternoon.) Committee members will supposedly have access to the online comments during the hearing, and the online comments will also be posted under “handouts” several days after each committee meeting, as you can see for the March 1 hearing of the House Juvenile Justice & Family Issues Committee. (Go ahead and click the “handouts” link on that webpage for that date to see what the Lege is going to be receiving online this session, then decide if that’s how you want to interact with them this session.)

Among the many shortcomings of this new communication tool is that commenters’ opinions and positions for/against bills will not appear in the summary or the official committee witness lists or floor reports for a bill, and there is no way to guarantee committee members access or see the submitted comments (especially if hundreds or thousands of comments are submitted on a particular bill by advocacy groups). As a result, we cannot recommend using this new online comment portal except as a last-ditch, better-than-nothing option, and one that pales in effectiveness compared to coming to the capitol or calling the committee members or their offices to register your opinion. That’s how you move the needle on issues that are important to you.

Two final thoughts about the new online comment options. First, if you do use this new option, be sure to complete it using your work contact info and entering your office title for “organization/representing.” Do not say “self”, despite that being offered as an option. (That’s for private citizens.) And second, elected prosecutors might consider adopting a policy for their employees’ use of this comment option, lest some employees submit comments on behalf of their office that are not authorized by or aligned with the elected prosecutor’s position on a particular bill.

Fun stuff, eh? If you have questions about any of it, please contact Shannon.

Prosecutor rotation

Now that we have a better idea of when the Lege will really get down to business (answer: next week!), we can open up the process for elected prosecutors to come to Austin and have a say in that business. We get little notice of what bill or issue will crop up when, but if you want to come to Austin to see how the sausage is made, contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to come participate in the three-ring circus that is the Texas Legislature.

Also, some of you might be interested in watching a webinar put together by the State Bar’s Legislative and Campaign Law Section called “Introduction to the Texas Legislative Process 2021,” for which you can receive 1 hour of MCLE credit (including 0.25 hours of ethics). The webinar is being offered Friday, March 12, starting at 12:30 p.m. for a fee of $65, and registrants have roughly one month to watch the program. For more information or to register, click here.

New stuff

While it sometimes feels like most of a session is spent rehashing old, failed bill ideas, each session also sees new ideas, concepts, and policies proposed. Among some of the more interesting or noteworthy “new” bill ideas this session are these 15 proposals:

HB 3 by Burrows (pandemic disaster powers)
HB 368 by Sherman (alternative address option for prosecutor’s driver’s license)
HB 614 by S. Thompson (eliminating civil immunity for certain public servants)
HB 658 by Gonzalez (prosecutor request for tracking device installation)
HB 1313 by Deshotel (recording of all witness testimony before grand jury)
HB 1374 by Minjarez/SB 295 by Perry (privileged communications in sexual assaults)
HB 1717 by S. Thompson (ban on retaliation for prosecutors’ discharge of Brady duties)
HB 2162 by Raymond (creation of OAG conviction integrity unit)
HB 2190 by White (mandatory pretrial diversion or deferred adjudication for SJFs)
HB 2233 by Ramos (mandatory cite and release policies)
HB 2282 by Toth (bar on cross-designated prosecutors handling federal gun cases)
HB 2335 by Middleton (civil liability for prosecutors who do not enforce riot laws)
HB 2346 by Y. Davis (pretrial review/diversion of criminal cases by community panels)
HB 2655 by Crockett (peace officer misconduct database)
SB 553 by Blanco (five-day mandatory CJIS reporting of criminal case dispositions)
SB 690 by Zaffirini (remote court proceedings)

Bill filings

Through Tuesday of this week—yes, when they file 200 bills a day we start to get behind!—we are tracking 975 (24%) of 4,130 filed bills. To view the current bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.

Scattershooting

Here are some articles we read this week that you might find interesting:

• “Pandemic response tops Texas voters’ legislative priorities, poll finds” (The Texas Tribune)
• “TCOLE launches disciplinary action against Texas police agencies over missed racial profiling deadline” (KXAN News)
• “Texas GOP lawmakers want to bar cities from hiring lobbyists, but delay review of state’s DC office” (Houston Chronicle)
• “Harris County got rid of cash bail for many people accused of minor crimes. GOP lawmakers want to walk that back” (The Texas Tribune)
• “Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic” (The Texas Tribune)

Forensic grant correction

We mentioned last month that the governor’s Criminal Justice Division still has grant funds available for the forensic testing of physical evidence in criminal cases, and the deadline for applying for those funds is March 14, 2021. Please note that our previous notices erroneously titled this topic as “DNA” testing rather than “DA” testing. These funds are *not* limited to DNA testing. Therefore, if you have a good idea for making this grant work for you and your community, now is the time to put that plan to paper ASAP and send it in. For more details, see the “District Attorney Testing of Forensic Evidence” announcement listed on this webpage and download the details as a PDF.

Looking ahead

The Senate finally started referring bills to its committees, which are likely to begin the process of organizing in preparation for considering some of those bills in the upcoming weeks. House committees are a few weeks ahead of their upper chamber counterparts in that regard, but both sides of the rotunda will be focused on beating next Friday’s bill filing deadline.

Quotes of the Week

“There has been a stunning drop in the financial value of bonds set by the courts since the implementation of Rule 9[,] from $135 million in 2015 to $13 million in 2020—one-tenth of the previous amount. Defendants paid bond companies over $4.4 million in 2016. However, since 2018, bail-bond companies have earned less than $1 million annually on low-level misdemeanor cases.”
            —Excerpt from the executive summary of the second report by federal court-appointed monitor of the Harris County bail bond litigation, issued earlier this week. (Just in case you were wondering why the bail bondsmen and their underwriters are so interested in the topic.)

“The governor is saying Texas will be 100% open and no masks. Texans were like, ‘Fix our electrical grid!’ and the governor was like, ‘OK, no masks it is!’”
            —Jimmy Fallon, host of NBC’s The Tonight Show, joking earlier this week about Governor Abbott’s latest executive order on COVID-19.

“I do feel that we’ll probably lose guests based on whatever decision we do make, but I guess that’s just part of the environment that we are in now. It’s either you wear masks and piss a couple people off, or you don’t wear masks and you piss a couple people off.”
            —Jessica Johnson, general manager of Sichuan House in San Antonio, on the impact of the governor’s latest edict on her business.

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