We know today is a holiday for many offices, but the House worked on its historic $300 billion biennial state budget for almost 11 hours yesterday and didn’t finish until late, so we couldn’t get this out until now.

Preview

The legislature will take a three-day break this holiday weekend before hitting the ground running on Monday. Starting next week, it will be pedal-to-the-metal lawmaking until the clock runs out on Memorial Day.

And get a load of what they will discuss next week: a ban on prosecutors’ use of Brady lists, creating a felony offense of prosecutorial misconduct for not complying with Brady obligations, conducting criminal proceedings by videoconference, publicly telecasting all court proceedings, requiring management training for elected prosecutors in certain urban counties (upon pain of removal from office for non-compliance), a host of border-related bills designed to criminalize illegal entries, and more.

Prosecutor discipline bills on the march

On Tuesday, a revised version of HB 17 by Cook was voted out of the House Criminal Jurisprudence Committee by a 6–3 vote. This committee substitute of the bill makes certain non-prosecution policies a form of “official misconduct” for purposes of the removal statute, with exceptions for various legal or evidentiary reasons why a prosecution may not be possible or prudent. The bill also requires a regional presiding judge to appoint a visiting judge and visiting prosecutor for a removal action filed against a prosecutor. The text of the substitute version passed by the committee is available HERE to read for yourself. That bill now heads to the House Calendars Committee for possible scheduling for floor debate.

On Wednesday, the Senate passed SB 20 by Huffman (R-Houston) to similarly create a new definition of “official misconduct” for removal purposes, but it varies from HB 17 in both definition and scope. The engrossed version of the bill passed by the Senate is available HERE if you’d like to compare it to HB 17’s language. The Senate bill has not been referred to a House committee yet.

Later on that same Wednesday, HB 200 by Leach (creating a Prosecuting Attorneys Coordinating Council) was voted out of his own House Judiciary & Civil Jurisprudence Committee by a 5–3 party-line vote. The author promised a “substantial floor amendment” to come, but as the issue now stands, the language of HB 200 is incompatible with both HB 17 and SB 20. Chairman Leach publicly promised an open door and open mind for anyone who brings him suggestions, but he is obviously not open to the idea of there not being a state agency of some type to discipline prosecutors in some as-yet-unclear manner. This bill will also head to the House Calendars Committee (like HB 17), but there is no telling what HB 200 could turn into should it make it to the House floor.

If you have questions about any of these bills, please contact Rob.

State of the Judiciary Address

Texas Supreme Court Chief Justice Nathan Hecht delivered his State of the Judiciary Address on Wednesday, but in an unusual way. Rather than a live address before assembled legislators and state leaders, the address was given via online transmission while senators were passing bills on the Senate floor, representatives were adjourning from the floor and heading back to committee hearings, and the kids and grandkids of both were enjoying an Easter egg hunt at the Governor’s Mansion. Which is a shame, because the Chief had some important things they probably need to hear.

As we predicted in last week’s update, this online address was clearly an effort to drive home the need to give the courts more leeway to conduct remote proceedings. Other highlights of the Chief’s speech were calls for increased salaries for judges and their employees, increased collection of data from and about the judicial system, support for more bail reform, and a mention of various other bills. It was pretty standard fare until the finale, when the Chief voiced his concerns about political attacks directed at the judicial branch. It was really a quite stirring defense of the third branch of government, and a timely one considering not just current events at the national level, but also the overt politicization of issues in Texas like those surrounding the Stephens opinions. Sadly, though, we got the feeling we were one of the few watching his speech. It makes one wonder: If a tree falls in a legislative forest and there is no one there to hear it, does it make a difference?

If you are a law nerd like us and would like to watch or read a transcript of the Chief’s prepared remarks, you can find that information HERE.

Finances

Good news/bad news time.

Regarding elected prosecutor salaries, two bills are moving forward to enhance compensation. First, SB 2310 by Hinojosa (D-McAllen) to create a third longevity tier for elected prosecutor salaries was approved by its committee and voted out of the full Senate by a 31–0 vote this week. It now heads to the House, where Rep. Reggie Smith (R-Sherman) has the companion bill.

Second, HB 2734 by Murr (R-Junction) granting cross-credit for service time as an elected prosecutor or judge was approved unanimously by its committee and now heads to the House Calendars Committee for consideration for full floor debate in that chamber. And in tangentially-related news, HB 438 by Schofield (R-Katy) tying future judicial salary increases to the consumer price index was also approved by that same committee and now heads to Calendars as well.

On the flip side, a substitute version of HB 1487 by Gerdes (R-Smithville) was approved by the House County Affairs Committee to create a rural law enforcement grant program for sheriffs and constables in counties with a population below 275,000. Now, if you are thinking this sounds like SB 22 by Springer (R-Muenster), you’d be right, with one very important exception: The Senate bill includes sheriffs and prosecutors, while the House bill applies to sheriffs and constables. And the pot of money available to pay for the salary supplements provided by these bills is not big enough for all three groups to be included in the same bill. So, if you want your offices to benefit from this concept carried by Senator Springer at the behest of Lt. Gov. Patrick, now is the time to act in what could become a zero-sum game. Senate Bill 22 has passed the Senate and is awaiting referral to a House committee, while HB 1487 is on its way to the House Calendars Committee.

Contact Rob or Shannon with questions if you are at a loss for where to start.

House Calendars Committee

Speaking of the House Calendars Committee, we briefed you two weeks ago on how bills get from a substantive committee to the House floor through the House Calendars Committee (see “Floor fun” HERE). Now that the House has kicked HB 1 over to the Senate, this committee will assume outsized importance in determining what bills the full House will get to debate. You can have a role in that process from the comfort of your office or home if you have a good relationship with anyone on that committee. (Membership available HERE.)

As you read about bills—good or bad—that get referred to that committee, let those committee members know your thoughts, even if it is from the comfort of your office or home.

Other action

Things were too hectic this week to give you a breakdown of events by floor and committee, so we’ll just share here some random information about bills on our “Bills to Watch” tracking list (available HERE) or others of interest to you that saw movement this week:

HB 69 by Schaefer (innocent owner defense) and HB 3659 by Hefner (civil asset forfeiture reforms) passed out of committee and are headed to the House Calendars Committee.

HB 1130 by Spiller (prosecutor serving as attorney ad-litem for child) passed from committee and moves on to the House Calendars Committee.

SB 23 by Huffman (10-year minimum for certain 3g crimes committed with a firearm) passed the Senate.

SB 175 by Middleton (ban on taxpayer-funded lobbying) passed the Senate after the adoption of floor amendments that softened its prohibitions; that bill now moves to the House, where it has faced greater opposition in past sessions.

Future floor debates

Bills to be debated on the House floor next week include (in their docket order) HB 393 by Goldman (child support restitution to children of intox manslaughter victims), HB 362 by Oliverson (legalizing fentanyl testing strips), HB 914 by Hefner (tampering with temporary vehicle tags), HB 1088 by Ann Johnson (CA/DA representation of CSCDs in certain lawsuits), HB 178 by Murr (lab testing of fentanyl), HB 205 by Moody (scientific writs for punishment cases), and HB 1805 by Klick (increasing the potency and uses of low-THC cannabis).

Bills eligible for debate on the Senate floor next week include SB 947 by King (damaging critical infrastructure facilities), SB 950 by Kolkhorst (AG representation of counties in federal court), SB 1133 by Blanco (reimbursements for ag property damaged by border trespassers), SB 1427 by Flores (border crime enhancements), SB 1562 by Hancock (creating the offense of child grooming), SB 1709 by King (sedition), SB 1900 by Birdwell (relating to foreign terrorist organizations), SB 1927 by Hughes (turning the State Prosecuting Attorney into a trial prosecutor), and SB 2424 by Birdwell (offense of improper entry from a foreign nation).

Future committee hearings

Here are just a few of the bills scheduled to be heard in committees next week (so far). For the full agenda of each committee, click on the link to the committee itself. Subsequent committee postings may be added later, so keep checking our website for the latest information.

Monday, April 10

House Corrections – 3:00 p.m. or upon adj., E2.036

• HB 1629 by Wu granting early parole eligibility for certain burglary offenders
• HB 2030 by Dutton restoring certain rights to convicted defendants
• HB 2300 by Allen expanding eligibility for orders of non-disclosure
• HB 2864 by Raymond mandating veterans court diversion absent “good cause”

Tuesday, April 11

Senate Criminal Justice – 1:30 p.m. or upon adj., E1.016

• SB 338 by Hinojosa barring the use hypnotically induced statements against a defendant
• SB 374 by Huffman granting TDCJ more time to dispose of parole violations
• SB 1401 by Zaffirini relating to certain rights of sexual assault victims
• SB 1551 by West relating to drivers who fail to provide identifying information to officers
• SB 1585 by Sparks relating to juvenile proceedings involving mental illness/disability
• SB 1653 by Huffman relating to promotion of prostitution involving a person under 18
• SB 1960 by Perry relating to the carrying of weapons by certain officials
• SB 1970 by Bettencourt authorizing seizure of vehicles used in racing and street takeovers
• SB 2101 by Miles specifying the means for providing notice to crime victims

House Criminal Jurisprudence – 10:30 a.m. or upon adj., E2.016

• HB 327 by S. Thompson expanding the defense of duress
• HB 799 by C. Harris prohibiting prosecutors from accessing or using certain personnel records for Brady purposes
• HB 1163 by Smith creating the offense of boating while intoxicated
• HB 1170 by Gervin-Hawkins imposing standards for indigent capital defense
• HB 1427 by Campos relating to the offense of harassment
• HB 2897 by Walle relating to theft of service
• HB 3025 by Vasut relating to interference with child custody
• HB 3247 by Cain creating a new felony offense for prosecutorial misconduct
• HB 4216 by C. Morales specifying the means for providing notice to crime victims
• HB 4518 by Cook authorizing a court to re-sentence a defendant to reduce a sentence
• HB 4622 by Leach authorizing certain criminal proceedings by videoconference
• HB 5277 by Bucy mandating internet notice and video telecasts of court proceedings

House Homeland Security & Public Safety – 2:00 p.m. or upon adjournment, E2.012

• HB 410 by S. Thompson requiring cite-and-release policies and barring certain arrests
• HB 2668 by A. Johnson relating to sexual assault victims’ rights
• HB 3451 by S. Thompson relating to human trafficking (omnibus bill)
• HB 3729 by Bonnen allowing disclosure of certain evidence to crime victims’ families
• HB 4382 by Guillen requiring CJIS reporting within five days (or loss of funds)
• HB 4966 by K. King relating to law enforcement agency personnel records

Wednesday, April 12

House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.016

• HB 3675 by Ortega mandating management training for certain urban elected prosecutors
• HB 2043 by Bowers creating an OCA sentencing and diversion database

House Juvenile Justice & Family Issues – 10:30 a.m. or upon adj., E2.030

• CPS investigation of self-reports of drug use by pregnant women
• HB 1086 by Hull requiring probable cause for certain CPS investigations
• HB 2715 by Hull criminalizing the tracking of a person’s property or motor vehicle
• HB 4062 by C. Harris relating to recordings of children during certain custody evaluations

House State Affairs – 10:30 a.m. or upon adj., JHR 140

• HB 20 by Schaefer creating a Border Protection Unit, an alien trespass crime, and more
• HB 30 by Moody revising the “dead suspect” limitation for open records access
• HB 65 by Spiller creating a criminal offense for illegal entry from another nation
• HB 800 by Guillen enhancing penalties for various border crimes
• HB 1600 by Hefner creating a criminal offense for illegal entry into Texas from Mexico
• HB 1610 by Leach requiring OAG to defend the constitutionality of certain state statutes
• HB 3012 by Lozano expanding the offense of smuggling of persons
• HB 3782 by Guillen establishing a Border Security Advisory Council

<<NOTE: For the rest of the session, our advanced notice of committee hearings will be limited. Please visit our Legislative webpage for the latest committee postings!>>

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days to weigh in on the bills we’ve discussed this session, 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.

Survey request

You should have received an email from our friends at the Texas Association of Counties (TAC) with a link to their County Pulse survey seeking candid feedback to help TAC better serve Texas counties. The survey deadline is April 12, so look for the survey link in your email inbox and consider completing it before then.

Scattershooting

Here are some recent stories you might’ve missed:

• “Texas Senate OKs bill to rein in progressive prosecutors. Here’s what the bill could do.” (Austin American-Statesman)
• “Should West Texas change time zones? One researcher says it could make roads safer” (Texas Public Radio)
• “‘Mug Shot’: Donald Trump Didn’t Get One, but Where Does the Name Come From?” (Wall Street Journal)
• “TAC on the Lege—Week in Review for April 6, 2023” (Texas Association of Counties video)

Quotes of the Week

“I grow concerned that political divisions among us threaten the judicial independence essential to the rule of law. The left and right, and leaders in both the executive and legislative branches, are in agreement: Judges are not independent, and shouldn’t be. They should take sides—my side. … [This partisan pressure] destroys the rule of law essential to justice for all.”
            —Chief Justice Nathan Hecht, in his State of the Judiciary Address this week.

“It is unacceptable that rogue district attorneys and judges, primarily in big cities, are not following our laws. These bills send a clear message that their delinquent behavior will not be tolerated.”
            —Lt. Governor Dan Patrick (R-Houston), upon passage of SB 20 (prosecutor removal) by the Senate.

“We had a child molester on the floor for years, they helped him get reelected and did nothing to expel him. We’ve had members pee in each other’s chairs. We’ve had members illegally prescribe drugs to their cousin-mistress, and nothing happened. But talk on the floor without permission, and you’ll get expelled.”
            —State Rep. Gloria Johnson (D-Knoxville), one of three Tennessee House Democrats members threatened with expulsion from that chamber for taking over the chamber podium microphone and using a bullhorn to lead a protest of people in the House gallery chanting for gun reform in the wake of the recent Covenant School shooting in that state. (Maybe the Texas legislature isn’t so crazy after all?)

“It’s like cutting cows out of a herd. [The Legislature] will cut large cities out of the herd and make it to where it doesn’t affect the smaller cities. The next thing you know, they’re imposing that same type of legislation on small cities, and it’s too late—they’ve got the whole herd.”
            —David Rutledge, mayor of Bridge City in Orange County, on the pre-emption phenomenon being pushed by state leaders.

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