It seems only fitting that this “interesting” year ends with a flurry of last-minute activity.

SB 22 rules

Today’s update is … there is no update. Tomorrow’s issue of the Texas Register for December 22, 2023, has been posted online and does *not* include the final rules for SB 22 grant applications and administration. Those rules could appear in next Friday’s issue, but TDCAA offices will be closed then. You can use the hyperlink above to check for updates next week or wait for more news from us when we return in early January. Either way, you should still have plenty of time to submit your applications before the end of next month.

SB 4 (illegal entry) update

Governor Abbott finally signed into law the controversial Senate Bill 4. (That’s the illegal-entry-crime SB 4 from this year’s fourth special session, not the human-smuggling-enhancement SB 4 from the third special session; if you are confused, see this special session update from a few weeks ago.) The new law goes into effect on March 5, 2024, but at least one federal lawsuit has already been filed in El Paso to enjoin its enforcement by DPS and the local prosecutor, and more such lawsuits may follow.

We encourage everyone to read the text of SB 4 for themselves (PDF version available here), but in a nutshell, the bill:

• creates a Class B misdemeanor offense of illegal entry from a foreign nation at any location other than a federal port of entry (with a state jail felony enhancement for subsequent convictions);
• creates a Class A misdemeanor of illegal re-entry into or presence in the state for anyone previously deported or removed from the country (with several third-degree and second-degree felony enhancements for various circumstances);
• creates a second-degree felony for refusal to leave the country pursuant to an order of a state or local magistrate (see below);
• prohibits community supervision, parole, or mandatory supervision for any of those new offenses;
• requires a sentence for any of those offenses to include a court order that, upon completion of the sentence, requires the defendant to return to the foreign nation from which the person entered the U.S. (even if that is not their country of origin);
• authorizes judges and magistrates to dismiss pending illegal entry/re-entry charges (without the presence or consent of the prosecutor and/or defense counsel) and order the person transported to the foreign nation from which the person entered the U.S.; and
• grants civil immunity in state courts and state or local indemnification in federal court to those who are sued for enforcing these new laws.

There are many, many questions (so many!!) about how this statutory state immigration enforcement scheme would work in real life that may never get answered depending upon the outcome of the impending federal court litigation, but here are two observations we’ll drop here for further pondering:

•  Warrantless “citizen’s arrests” are permitted under CCP Art. 14.01(a) for felonies and breaches of the peace, and there is caselaw supporting the position that certain types of trespass can constitute a breach of the peace, so does that mean non-peace officers can make arrests for these new illegal entry/re-entry crimes? That would be … interesting.
• If a local city, county, law enforcement agency, or prosecutor fails to enforce this new statutory deportation scheme, will that trigger the defunding provisions of the anti-sanctuary cities law codified as Gov’t Code §§752.051–.057 by SB 4 (85th R.S.)? (Yes, we know—another SB 4!! They really need to retire that bill number when it comes to border issues, we can’t keep up). Similarly, would the new removal procedures of HB 17 (88th R.S.) be triggered by a prosecutor’s categorical refusal to enforce this new state immigration enforcement law? (Keep that in mind before opining upon it in public.)

These are all questions with no answers as of right now, but it will certainly give us something to follow during 2024—as if there was nothing else going on next year to demand our attention!

A new sheriff in town?

Or perhaps that should read, “A new game warden in town.”

The recent election of State Sen. John Whitmire (D-Houston) to the Houston mayor’s office leaves the Senate Criminal Justice Committee without its long-time chairman. (How long? Try two decades long.) In response, Lt. Gov. Dan Patrick (R-Houston) has promoted the committee’s vice-chairman, State Sen. Pete Flores (R-Pleasanton), to the middle seat of that committee effective January 2024. Senator Flores serves Senate District 24, which starts south of San Antonio and runs west of the IH-35 corridor until stopping up near Gatesville and Temple. He is a former peace officer—rising to the rank of Colonel as a Texas Game Warden before his retirement in 2012—and he also serves as the vice-chairman of the Senate Border Security Committee. His signature legislation to date is the passage of last session’s “Texas Racketeering Act.”

Senator Flores’s promotion also made room for the Lite Guv to appoint State Sen. Phil King (R-Weatherford) to serve as the vice-chairman on the Criminal Justice Committee. Senator King recently finished his first session in the upper chamber after a long career in the House. He is an attorney who is also a former peace officer (like Flores) and former justice of the peace, and he represents Senate District 10, which generally spans the I-20 corridor from south of Fort Worth westward to Abilene.

This change could definitely result in a shift in state criminal justice policy, but in what fashion remains to be seen. If nothing else, this turnover may help determine whether the sometimes overly Harris County-centric focus of that committee in the past was due more to the chairman or to the fact that the governor and lieutenant governor both hail from that part of the state. (We should have that answer for you by May 2025.)

Primary line-ups for 2024

At the federal level, the 2024 election cycle includes a presidential race, one Senate seat, and a host of Congressional races, but our top tier of state officials (governor, lite guv, AG, etc.) are not on the ballot. That frees up those officials to involve themselves in legislative and judicial races, and this cycle could see an unprecedented level of that kind of politicking in the GOP primaries. With that in mind, let’s see what interesting news we can pick out from the debris of last week’s filing deadline.

Judicial races

Thanks to the continued political saber-rattling over the Stephens opinions, all three CCA judges up for re-election next year have drawn Republican primary opponents. For background on those races involving Presiding Judge Sharon Keller and Judges Barbara Hervey (Place 7) and Michelle Slaughter (Place 8), see this story from The Texas Tribune: “Three court of criminal appeal judges up for reelection targeted by Ken Paxton’s political revenge machine.” In addition, one SCOTX justice (John Devine, Place 4) has drawn a GOP primary opponent who is an associate justice on the 2nd Court of Appeals (Brian Walker, who also happens to be the son of current CCA Judge Scott Walker). There are also Democratic candidates for the CCA and SCOTX races, but … yeah, good luck with that.

Lege races

Only two state senators are voluntarily leaving that upper chamber: Sen. Whitmire (D-Houston) will be the next mayor of Houston, and Sen. Springer (R-Muenster) is retiring.

Across the rotunda, five House committee chairs are not seeking re-election. State Reps. Herrero (D-Robstown) (Corrections), T. King (D-Uvalde) (Natural Resources), and Murr (R-Junction) (General Investigating) are retiring from politics, Rep. Goldman (R-Fort Worth) (Energy Resources) is running for Congress, and Rep. Neave Criado (D-Dallas) (County Affairs) is primarying an incumbent state senator. In addition, roughly a dozen other House members are stepping away from the legislature after their current terms.

The most popcorn-popping-worthy action this spring will be in the GOP primary races involving House incumbents. As mentioned above, the 16 remaining House Republicans who opposed the governor’s school choice proposal now have primary opponents endorsed by the governor, while more than two dozen of the 60 House Republicans who voted to impeach the attorney general face primary opponents endorsed by the since-acquitted AG. And to make it even more fun, several races involve governor-endorsed incumbents or candidates facing different AG-endorsed incumbents or candidates! (Click HERE for an analysis of who is endorsing whom in the GOP primaries.) The uncertainty resulting from those two internecine political feuds promises to make for must-see TV this primary season—but good luck to anyone in down-ballot races trying to get the attention of those GOP voters this cycle.

Prosecutor elections in 2024

Speaking of down-ballot contests, most prosecutor offices are up for grabs during presidential election years, so it promises to be a busy cycle for our profession. With the primaries a mere 76 (!) days away, we have done our best to gather information on all the races and other changings of the prosecutorial guard in 2024 and post it online HERE.

We know the information available on various state websites is incomplete because we are missing updates on more than a dozen different county attorney races alone, so if you have edits or additions for our list, please email them to Shannon. Thanks!

Scattershooting

Some recent stories you might find interesting:

• “Low Pay Plagues Judicial Recruitment in New Texas Business Court” (Bloomberg Law [free link])
• “Alleged Texas mass shooter had warrants, family violence history. Why wasn’t he in police custody?” (KUT News)
• “The Greatest Sideshow on Earth: Behind the Scenes of Ken Paxton’s Acquittal” (Texas Monthly)
• “The ‘Longhorn Football Mom’ Who Made the Lege Pay Attention” (Texas Monthly)
• “A deluge of violent messages: How a surge in threats to public officials could disrupt American democracy” (CNN)
• “The Biggest Root Cause of Crime Is Fatherlessness” (Wall Street Journal [free link])
• “We ranked Texas senators across the ideological spectrum based on their 2023 votes” (Texas Tribune)
• “We ranked Texas House members along the ideological spectrum based on their 2023 votes” (Texas Tribune)

Quotes of the Month

“Surviving the impeachment has given him political capital [Paxton is using] to try to punish people who he feels went after him unfairly. He does appear to have the political wind at his back. Impeachment has become a political anvil around the neck of Republicans who voted for it.”
            —Matt Mackowiak, Austin-based Republican consultant, as quoted in a recent Washington Post article ($) about the political future of Attorney General Ken Paxton (R-McKinney).

“I think we’ve been conditioned, and we have no way of countering the idea, that crime is rising. It’s just an overwhelming number of news media stories and viral videos. I have to believe that social media is playing a role …. [For instances, my] neighbors never post on NextDoor how many thousands of packages they successfully receive, only video of the one that randomly got swiped.”
            —Jeff Asher, data criminologist, on poll results showing an overwhelming number of Americans mistakenly believe crime increased in 2023 despite data showing the opposite.

“Pulling [officers] off state highways, it went from well patrolled to the wild West.”
            —Bill Spelman, emeritus professor at the LBJ School of Public Affairs and a former Austin City Councilman, commenting upon the correlation between decreased traffic enforcement and increased traffic fatalities in that city.

“This has not been a normal grieving process. Most people that lose a child don’t have half the world demonizing that child.”
            —Sheila Foster, mother of Garrett Foster, who was killed during a Black Lives Matter rally in Austin in 2020. The subsequent conviction of his killer, Daniel Perry, elicited a promise of a pardon from Gov. Abbott which has since been largely forgotten but which is still pending before the state’s Board of Pardons and Paroles.

“You may see me doing it more because I’ve been told that it makes me look more intelligent. I should have done this a long time ago.”
            —U.S. Sen. John Cornyn (R-Texas), jokingly responding to a question about wearing eyeglasses during a recent photo op.

“If this office did have such a policy, (Salazar) would surely benefit from it.”
            —Excerpt from the Travis County DA’s response to a recent removal petition filed by a local resident currently charged with drug possession who seeks the removal of the DA because the DA has a blanket policy against prosecuting such cases. (Wait, what? #KeepAustinWeird)

TDCAA offices will be closed next week, so we’ll see you next in 2024. Happy Holidays!

“Do not be afraid; for behold, I proclaim to you good news of great joy that will be for all the people.”

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