(updated May 12, 2023 at 3:40pm)

Two(-ish) weeks remain in this crazy session. We are tempted to tell you that you have “two weeks to stop <insert bill you don’t like here>,” but that didn’t work with COVID, so we won’t jinx you.

Preview

As this update goes out, the House is working through the rubble of the hundreds of House bills that died at midnight last night, passing the “winners” on final (third) reading and sending them to the Senate. In that upper chamber, senators are working on the floor today for their first Friday of the session. Next week, both chambers will focus on bills from the other side, marking a reduction in the amount of legislation still in play for these final two weeks to “only” about 2,500 bills, 400+ of which we are still tracking (or trying to track).

Due to the sausage-making and deal-cutting that occurs before every impending deadline, we know that some bad stuff happened the past few days—we just don’t know what it is! We will try to review the hundreds of bills and amendments that were crammed through the meat-grinder this week with little or no discussion or debate, so don’t be surprised if we issue some mid-week updates in the coming days upon discovery of the inevitable legislative skullduggery that occurs at the end of every session.

Funding updates

We’ve got more news on this front that you can shake a stick at, but we’ll give it a shot:

Pay raise bill
Earlier this week, the House has passed HB 2779 by Leach (R-Plano) to raise the judicial and prosecutor base pay of $140,000 by 22 percent over the next biennium. We warned you in last week’s update that ERS has asked the legislature to freeze future retirement benefit increases at current levels for certain retired judges in JRS 1 and felony prosecutors in ERS, and HB 2779 passed with one twist—an amendment that froze elected prosecutor retirement benefits, but not those for JRS 1 judges. That will cost the state an extra $8 million over the biennium, but hey, they have fancy robes and must be more important than you, right? Consider this another reminder that elected felony prosecutors might want to explore a return to TCDRS for retirement benefits in the upcoming interim.

Pay raise in budget
Regardless of the fate of HB 2779 in the Senate (where such pay raise proposals have always had a cooler reception), the House version of HB 1 already includes funding for a 10-percent increase in the judicial benchmark salary. That does not require separate legislation to pass—nor does it freeze retired felony prosecutors’ benefits—but there was no similar language in the Senate version of the budget bill. Accordingly, the fate of both of these proposals is still up in the air.

Rural prosecutors grant funding
Good news on two fronts here. First, SB 22 by Springer/Guillen was reported from the House County Affairs Committee this week and is now scheduled for debate on the House floor on Monday. That is the original bill to send a total of about $50 million per year to certain local prosecutor offices (in counties of less than 275,000 population) throughout the state for personnel costs. However, the committee substitute version includes an unanticipated addition that needs to be removed to ensure its acceptance in the Senate. Specifically, Rep. Bryan Slaton (R-Royce City)—who was a member of the County Affairs Committee before his historic expulsion from the chamber earlier this week—added a provision that would allow an elected prosecutor to claim the entire grant award from the state for his or her personal salary. This was never discussed in the committee, nor was that idea ever mentioned to us as a possibility before it was added and passed out of the committee. We have also been told that such an addition is a deal-breaker in the Senate, so we anticipate that new wrinkle being ironed out of the bill on the House floor.
In related news, those of you who heeded our mid-week alert about HB 1487 by Gerdes (R-Smithville) to ask your House members to approve an amendment adding prosecutors into that sheriff/constable grant program were successful! The amendment was adopted and then passed as part of the bill on third reading, so that measure now heads to the Senate with prosecutors included in it. As a result, the two similar (but not identical) measures to provide significant funding to some of your offices are both progressing, which is always good news at this late stage.

Urban prosecutor budget protection
SB 740 by Huffman (limiting urban counties’ ability to reduce prosecutor budgets) is scheduled for a hearing before the House State Affairs Committee on Monday afternoon (see committee posting below for more information).

Cross-credit for elected prosecutors and judges
The language that grants elected judges and prosecutors credit for their service in the other role was originally filed as HB 2734 by Murr (R-Junction) and was also added to HB 3474 by Leach/Hughes, this session’s omnibus court administration bill. That latter bill passed the House and then passed the Senate Jurisprudence Committee this week. It now heads to the Senate Intent Calendar as soon as next week.

Pay parity longevity bump for elected felony prosecutors
SB 2310 by Hinojosa/Smith (pay parity with judges) was reported from the House Judiciary & Civil Jurisprudence Committee and recommended for that chamber’s Local and Consent Calendar. Furthermore, Senator Hughes (R-Mineola) accepted a request to include that same language into his Senate version of HB 3474, the omnibus court admin bill mentioned above. As a result, both of the priority bills recommended by TDCAA’s Compensation Committee (cross-credit and pay parity) are now part of HB 3474. If that bill passes the Senate in the next week or so and returns to the House, Rep. Leach (R-Plano) will then decide whether to accept the Senate changes or go to a conference committee to work out any differences.

Whew! OK, that was a lot to cover. But now, the inevitable caveat: ANY OR ALL OF THIS COULD GO SOUTH AT ANY TIME. Those of you who remember how the last regular session ended in 2021 don’t need us to tell you that. So please, don’t start counting any chickens before they’ve hatched. There is a lot of work (and maybe some praying!) yet to be done on these measures.

Prosecutor accountability bills

AG prosecutions
Last week, we told you about an AG-as-prosecutor measure—SB 1195 by Hughes (R-Mineola)—that was quickly rammed through committee. After several days of delay, the bill was called up today at 2:20 p.m. for consideration on the Senate floor when one of the bill’s opponents was absent. That allowed the author to suspend the 5/9ths Rule on a 17—13 vote (the bare minimum needed to bring it to the floor). Several Democratic senators raised questions about the bill’s constitutionality and how the bill would work in practice, but the result was pre-ordained. The bill now carries over to next week to await final approval on third readingpasses to the House for referral to a committee next week.

Interestingly, one of the bill author’s stated reasons for the bill is to not only provide a back-up prosecutor, but to mandate that the AG prosecute the case—which, if read literally, would also make the bill unconstitutional as a violation of prosecutorial discretion (regardless of who the prosecutor is). But as we’ve noted before, this is not about constitutional prosecutions.

Prosecutor removals
As with SB 1195 last week, this week we had another short-notice hearing in a Senate committee yesterday on a “prosecutor accountability” bill. Specifically, HB 17 by Cook/Huffman—the bill to define misconduct in removal proceedings to include the adoption or announcement of certain non-prosecution policies—was heard in the Senate State Affairs Committee after barely a day’s notice before it happened (and if you haven’t already figured it out, this will be par for the course on many bills going forward). The substitute version of HB 17 that was laid out in committee is essentially the language the Senate already passed as SB 20 by Huffman. At the hearing, Smith County CDA Jacob Putman testified “on” the bill and Williamson County DA Shawn Dick testified against the bill, and several election- and abortion-related witnesses also weighed in for or against it.

The bill was left pending, but we expect it to be voted from committee today or Monday. This old-is-new-again version of HB 17 will then be eligible for Senate floor debate next week, and we expect it to pass by a partisan margin similar to that of SB 20 a month ago. Our best guess at this point is that the House will then refuse to agree to the Senate language (because SB 20 has not moved in the House the past month), and then the two chambers will form a conference committee to work out their differences behind closed doors.

Bring out your dead

Last night marked the deadline by which all non-local and consent House bills had to receive approval on second reading. Assuming those bills are finally approved on third reading today, they survive and advance, but all other House bills not sent to the Senate by the end of business today will be dead. Or at least dead in bill form, that is; the language from a dead bill can always re-appear as a floor amendment to another bill, so nothing is truly over until sine die.

So, what House bills turned to pumpkins at the stroke of midnight last night? Some that we’ve been following for you this session that are now dead by procedural action include:

HB 200 by Leach (creating a prosecutor disciplinary council)
HB 799 by Cody Harris (anti-Brady list bill)
HB 1258 by S. Thompson (grand jury reforms)
HB 1627 by Hernandez (mandated implicit bias training for all judges and lawyers)
HB 1874 by Noble (recovery of defendant’s attorney’s fees in civil asset forfeiture proceedings)
HB 2843 by Kuempel (casino gambling)
HB 3247 by Cain (creating criminal offense of prosecutorial misconduct)
HB 3675 by Ortega (mandatory management training for certain elected prosecutors)
HB 4487 by Smith (student loan repayment for rural prosecutors and public defenders)

Sent to the governor

Bills on their way to the governor’s desk include:

HB 467 by Craddick/Flores extending the statutes of limitations for certain assault offenses
HB 914 by Hefner/Whitmire criminalizing certain temporary vehicle tag offenses
HB 1088 by A. Johnson/Whitmire allowing OAG to represent CSCD officers in certain lawsuits
HB 1207 by Guillen/Flores extending the statute of limitations for tampering with a dead body
HB 1910 by Anchia/N. Johnson creating a presumption in certain forgery cases
SB 435 by Middleton/Bonnen authorizing pre-trial disclosure of certain evidence to homicide victims’ families
SB 840 by West/Anchia increasing penalties for assaulting certain hospital personnel
SB 1319 by Huffman/Turner authorizing overdose mapping for public safety purposes
SB 1527 by Huffman/Thompson, this session’s omnibus human trafficking bill

One chamber down, one to go

The bills on this next list are halfway home. Speak now or forever hold your peace.

The following House bills passed the House this past week:
HB 7 by Guillen (border security and border grant programs)
HB 182 & HJR 11 by S. Thompson (court-initiated commutations of parole)
HB 327 by S. Thompson (making duress a subjective defense)
HB 361 by S. Thompson (limiting incarceration for defendants who are parents)
HB 381 by S. Thompson (pretrial procedures for excluding defendants with intellectual disabilities from the death penalty)
HB 800 by Guillen (mandatory minimum punishments for smuggling-related offenses)
HB 905 by Moody (time credits for confinement on other charges)
HB 1215 by Cook (barring public employers from considering criminal histories before hiring)
HB 1977 by Morales Shaw (pretrial intervention program for certified juveniles in adult court)
HB 2129 by Burns (merchant-run theft education programs as an alternative to arrest for theft)
HB 2646 by Jarvis Johnson (exempting TDCJ inmates from paying court fines/fees)
HB 2687 by Leach (excluding children under 13 from juvenile jurisdiction)
HB 2992 by Harrison (asset forfeiture reporting + a new ban on forfeiting vehicles of < $10k)
HB 3183 by Schatzline (limits on use of in-custody informants as witnesses)
HB 3782 by Guillen (creating a state border protection task force for enforcing immigration laws)
HB 3786 by S. Thompson (granting victims injunction/mandamus powers in criminal cases)
HB 3882 by Wilson (allowing participation in veterans courts over prosecutor objection)
HB 4382 by Guillen (mandated CJIS reporting and consequences for state grants)
HB 4507 by Moody (price gouging lawsuits filed by county attorneys)
HB 4518 & HJR 172 by Cook (prosecutor-initiated resentencing [commutation of old cases])
HB 4642 by Guillen (yet another criminal offense for causing death by fentanyl)
HB 5007 by Plesa (automatic expunction of acquittals)
HB 5159 by Bhojani (additional jury argument after Allen charge)

The following Senate bills passed the Senate this week:
SB 1579 by Bettencourt (expedited PIA reviews requiring new PIO training and fines of local entities for abuse)
SB 2208 by Parker (concurrent jurisdiction for election crimes in neighboring counties)

Future committee hearings

Some of the bills scheduled to be heard in committees next week are listed below. For the full agenda of each committee, click on the link to the committee itself.

Monday, May 15

House State Affairs – 1:30 p.m. or upon final adjournment, Room E2.012

• SB 740 by Huffman limiting budget reductions for prosecutors in certain urban counties
• SB 950 by Kolkhorst authorizing OAG to defend certain prosecutors sued in federal court

Tuesday, May 16

House Criminal Jurisprudence – 8:00 a.m., Room E2.016

• SB 436 by Middleton increasing penalties for purchasing/selling human organs
• SB 726 by Kolkhorst increasing penalties for intoxication manslaughter of multiple victims
• SB 1011 by Parker increasing punishments for certain human trafficking offenses
• SB 1267 by Parker increasing punishments for operating a stash house
• SB 2593 by Springer creating a retroactive defense for law enforcement defendants who cause bodily injury or serious bodily injury by less-lethal projectile devices

Senate Criminal Justice – 8:30 a.m., Room E1.016 <*added*>

• HB 420 by Slawson increasing penalties for providing alcohol to minors
• HB 422 by VanDeaver authorizing remote proceedings in juvenile detention hearings
• HB 844 by Patterson relating to crime victims’ compensation and human trafficking
• HB 1184 by Rose relating to criminal history record information used for research
• HB 1427 by Campos creating a new manner and means for harassment
• HB 1769 by Meyer extending certain statutes of limitations
• HB 2620 by Geren relating to state compensation for inmates in county jails
• HB 2670 by Howard relating to making permanent the Sexual Assault Survivors’ Task Force
• HB 2700 by Guillen relating to sexually explicit visual material involving children
• HB 2877 by T. King relating to crime victims’ compensation
• HB 2897 by Walle relating to theft of service cases
• HB 3025 by Vasut relating to interference with child custody offenses
• HB 3186 by Leach relating to youth diversion procedures in fine-only offenses
• HB 3553 by Thierry increasing penalties for certain human trafficking cases
• HB 3554 by Thierry increasing penalties for certain other human trafficking cases
• HB 3660 by Vasut creating a defense in the cruelty to non-livestock animal offense
• HB 4528 by Wilson relating to the driver’s license of a person who fails or refuses certain intoxication-related tests
• HB 4879 by Holland relating to incident-based reporting of crime statistics
• HB 4906 by Hefner authorizing tracking equipment use by certain peace officers

Wednesday, May 17

Senate Transportation – 8:00 a.m., E1.016

• HB 291 by Murr revising occupational driver’s license laws

<< Please visit our Legislative webpage for the latest committee postings.>>

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas bill creating new state border unit killed by Democrats but GOP keeps effort moving” (Dallas Morning News)
• “Could proposed Texas bills to ban drag shows also ‘criminalize’ Dallas Cowboys cheerleaders?” (Fort Worth Star-Telegram)
• “Daniel Perry is sentenced to 25 years for killing an Austin protester. Gov. Greg Abbott has pledged to pardon him.” (Texas Tribune)
• “She Wrote of Grief After Her Husband Died. Now She’s Charged in His Murder.” (New York Times) (not lege-related, we just found this case fascinating!)
• House Committee on General Investigating: Report in re Rep. Bryan Slaton recommending expulsion from the House (PDF version) (for those curious why a state representative was expelled from that chamber for the first time since 1927)

Quotes of the Week

“[T]his proposal comes amid broad support for targeted reconsideration of sentences that exceed 10 years. … [T]he vast majority of people who have served a decade or more in prison could have been released earlier without compromising public safety.”
            —Opinion piece in the San Antonio Express-News by Hillary Blount, a former California prosecutor, and Marc Levin, formerly of Right on Crime, advocating for the passage of HB 4518 & HJR 172 by Cook (R-Mansfield) to implement a California-style “prosecutor-initiated resentencing” in Texas. The bills have passed the House and are now in the Senate.

“[If prosecutors don’t like a law, then] they need to petition the Legislature to change the law. But at the end of the day, you need to enforce the law. And if that’s not going to happen, then we need a backup, and I think this is the proper backup here.”
            —State Sen. Mayes Middleton (R-Wallisville), explaining why he supports SB 1195 by Hughes to grant the attorney general prosecution authority over certain crimes du jour. That bill received approval from the Senate on a party-line vote.

“You will have a bigger chance of getting a [Republican] primary opponent if you actually support a gun control measure. Until someone loses an election based on the gun issue, there’s not going to be any change.”
            —Vinny Minchillo, GOP political consultant from Plano, as quoted in a Dallas Morning News article on whether the Allen outlet mall mass murder will result in any changes at the legislature.

“Predatory behavior merits such a consequence. I hope the action we’ve taken here today sends a message that sexual harassment and inappropriate activities in the workplace will not be condoned and they are unacceptable.”
            —House Speaker Dade Phelan (R-Beaumont), after the House expelled from office Rep. Bryan Slaton (R-Royce City) for having sex with a teenaged employee whom he first plied with alcohol.

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