Congratulations on surviving the hottest, driest October in Texas since the Dust Bowl era. We are going to attribute this unseasonable warmth to this election cycle’s heated rhetoric until someone can prove otherwise.
Notice: TDCAA Annual Business Meeting
The Annual Business Meeting of the Texas District and County Attorneys Association will take place on December 4, 2024, at 5:00 p.m. at the Marriott Woodlands Waterway, 1601 Lake Robbins Drive, The Woodlands, TX 77380. At this meeting, voting members of the association will select officeholders for TDCAA’s Board of Directors and regional caucuses will select directors for Regions 1, 2, 4, and 7. Additional details will be posted on TDCAA’s website when they become available. For more information, contact Rob Kepple.
SB 22 update on rural law enforcement grants
Here are some highlights from an SB 22 online briefing hosted by the comptroller’s (CPA) office yesterday.
- Compliance reports for October fiscal year (FY) offices are due *today* (October 31).
- The CPA won’t accept the return of unspent funds until an office’s compliance report has been received and reviewed.
- The next round of grant funds based on approved October FY applications should start arriving Monday or Tuesday.
- January FY office applications will be accepted starting Saturday (November 2); that application period closes on January 31, 2025.
- Additional administrative rules for SB 22 grants are being crafted by the CPA for posting and public comment in the near future.
We will notify all offices when those rules are available for viewing and commenting. Meanwhile, if you have any other SB 22-related questions, feel free to reach out to Shannon for assistance.
Is busting norms the new norm in Austin?
Unless you spent this past month vacationing in exotic places that have things like “rain” and “fall weather,” the Robert Roberson (non-)execution saga coming out of Austin has been inescapable. While many journalists and political pundits have focused on the strange fault lines that Roberson’s case has revealed among various factions of the Texas GOP, we wanted to take a step back and look at these events through a different lens.
This month’s proceedings mark the second time in two years that an interim House committee has summoned an elected prosecutor to appear in Austin to answer why he or she is defending a death sentence in the appellate courts. But unlike the Melissa Lucio case of 2022—in which the DA told the committee that further post-conviction litigation was in the offing, which proved to be true, leading to no further action by the committee—the Roberson execution went down to the wire. That exhaustion of court remedies led to an unprecedented legal intervention by certain House members who raised a separation-of-powers issue of first impression and were granted a review by the Texas Supreme Court. It was—to use this word as the good Lord intended—literally unprecedented.
Now, subpoenaing a death row inmate to prevent him from being taken to the execution chamber is certainly “up there” on the list of ways to shatter norms and commonly-accepted procedures, but then, “death is different,” right? That’s always been the m.o. of some death row inmates’ lawyers and advocates who feel justified in bending—or where necessary, breaking—rules of professional conduct in order to save their clients’ lives. So in that vein, perhaps the only thing novel about what happened in the Roberson case is that it was legislators, not his appointed counsel, who “got creative” in order to delay his execution (although both are clearly working hand-in-hand in this case).
But is this a one-off?
These two House committee re-investigations of individual cause célèbre death penalty cases may be outliers, or they may be early signs of things to come. For instance, an incoming GOP legislator tweeted a thread of X posts back in September explaining how he and his allies might use legislative committees’ latent investigative powers on various topics if given the opportunity. (And that thread pre-dated the unprecedented actions taken by the House committee in the Roberson situation, for what that’s worth.) And in a similar vein, many of you are aware of the wildly overbroad new reporting requirements being proposed for prosecutor offices in certain jurisdictions that are really just a thinly-veiled attempt to drum up grounds for removing certain prosecutors from office. (And by the way, those unprecedented reporting rules are being proposed by the same statewide official currently helping to defend the conviction and sentence in the Roberson case, and the tweeting legislator referred to above represented that statewide official in last year’s impeachment proceedings and has also been vocally opposed to what the House committee is doing in the Roberson case. Oh, and the House committee efforts to derail Roberson’s execution are being led by two former House impeachment managers, one a Republican and one a Democrat. Like we said, interesting fault lines, no?)
So, what are some takeaways from these observations?
First, if you aren’t aware of the seismic shift in politics currently going on, now is a good time to pay attention. The old liberal-conservative D-R political dichotomy is dead, long live the new political dichotomy—just don’t ask us to try to coherently define the beliefs of either side right now, because things are changing under our feet as we speak.
More specifically, though, we want you to ponder this potential change: As the state legislature in Austin continues to turn into more of a D.C.-style congressional swamp of centralized power and partisan politics, don’t be surprised when state officials of any and all political stripes make greater use of the powers they have given themselves to “investigate” local governmental offices or actions, including local court cases and outcomes. Things in state policymaking may become much more like “death is different” death penalty litigation in which accepted norms of conduct are pushed aside because the ends justify the means. As a result, local officials should now be on notice that quaint notions like limited government and the separation of powers doctrine are increasingly becoming passé in Austin due to the change in polarity occurring in our traditional politics.
Interim committee hearing recaps
The Senate Criminal Justice Committee took testimony on organized retail theft and financial crimes, and for a moment we thought we had stepped through a time portal back to the early 2000s. Gone were the smart-on-crime mantras about property crimes such as “we should only lock up the people we are afraid of, not the people we are mad at.” In their place was testimony from mad merchants and retailers complaining about shoplifting and related organized crimes, and the committee members sounded ready to enhance whatever needed to be enhanced to crack down on such property crimes. Of course, in reality, such enhancements are ineffective unless the offenders are first caught, thorough investigations are conducted, and those cases are then prosecuted. To help on that three-step front, look for proposals next session to streamline relevant statutes, improve data sharing between law enforcement and retailers, and perhaps even provide state-funded investigation and prosecution resources to local officials challenged by these often complex cases.
The Senate State Affairs Committee reviewed multiple topics this month, including a proposal to criminalize the wearing of a mask during certain criminal acts (read: protests that get out of hand) and an inquiry into the proliferation of THC-infused beverages now for sale in a state that allegedly makes such products a crime. Our takeaway on the latter is that several members of the Senate are ready to try to put the cannabis genie back in the prohibition bottle, but they may face an uphill battle (especially in the House) due to all the money the cannabis industry has raked in over the past several years by taking advantage of the loopholes and gray areas of a law that was based on 2018’s federal Farm Bill, the update and fixes for which members of Congress in D.C. cannot seem to pass either.
One other aside: In two different committees hearings this month, two different Republican state senators (from districts 500 miles apart) publicly expressed support for granting OAG more authority to unilaterally prosecute criminal offenses in different contexts. So, if you thought that debate was over after the Stephens opinions, we have some bad news for you.
Upcoming interim committee hearings
With the election and its resulting apple-cart-turnover effect nearing, none of the committees that we follow have posted notice for hearings next month. With pre-filing of bills for next session opening on Monday, November 11, most legislators will turn their focus in that direction until new committees start to meet in February 2025.
The Round-Up rides on
We have been cranking out weekly “Round-Up” emails all summer with links to interesting news stories on topics that may impact your work. If you aren’t already one of the 650+ 700+ (it’s getting higher every month!) subscribers benefitting from those emails, sign up here to start receiving those weekly updates in your inbox every Thursday morning.
Quotes of the month
“We had all these wonderful bills pass the Texas House pretty decisively. And then when we got to the Texas Senate, the door was just slammed on our faces.”
—Elsa Alcala, former judge on the Court of Criminal Appeals who later lobbied on behalf of several controversial anti-death penalty bills proposed by the Texas Defender Service, as quoted in a recent Texas Tribune story detailing the House–Senate fault lines for criminal justice reform brought to light by the Robert Roberson case.
“Voters don’t know data. What they know are anecdotes. And over the last four years there have been a massive number of televised anecdotes with store break-ins or other violent acts that have created the perception of crime run amok.
—Roy Behr, Democratic political consultant in California, as quoted in an LA Times article about incumbent Los Angeles DA George Gascon’s flagging re-election prospects.
“Politicians are not in the truth business, but in the power business, … [and] quite often the truth is collateral damage.”
—Victor Menaldo, political science professor at the University of Washington, as quoted in an Axios article about falsehoods on the campaign trail.
“A lot of marijuana.”
“There are not enough gummies I can take to soothe the angst!”
“A lot of Scotch.”
—Some of the “coping mechanisms” voters confessed to needing during the waning days of the presidential election, as told to the Wall Street Journal in an article titled “America Is Having a Panic Attack Over the Election.”
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