Legislative sessions are like school semesters: When they reconvene after a long break, everyone gets reacquainted and shares what they’ve been up to—and what they’ve been exposed to. As a result, the only things people are passing at the capitol right now are COVID and the stomach flu. But in two weeks, they will start passing things that are really dangerous.

Bonus coverage

We sent a bonus update on Monday regarding abortion-related litigation that could impact prosecutors and new legislation attempting to skirt the Stephens opinion on separations of power; if you missed it, you can find it online HERE.

“Prosecutor accountability” bills

Every time we tell you about a new bill to fine, fire, remove, or stretch prosecutors on the rack, we always end with a caveat that “more bills are coming.” And the legislature has not made liars of us yet. Here’s what dropped this week.

House Bill 3307 by Cook (R-Mansfield) is a narrower offering than most filed to date. It would amend the removal provision in Local Gov’t Code Chapter 87 to specify that “official misconduct” includes announcing, adopting, or implementing a formal or stated policy under

which the prosecutor prohibits or materially limits the enforcement of any criminal offense except to comply with an injunction, judgment, or court order. We have our doubts over whether the legislative branch can censor what elected officials say—that will be a First Amendment issue for another day—but the fact that this bill amends current “prosecutor accountability” laws already in existence at least recognizes that there are removal provisions that work and that perhaps it is best to work off those than invent something out of whole cloth that could have unintended consequences.

That said, the second part of HB 3307 goes where no bill has gone before to allow any DA or CA to petition for the removal of one of his or her neighboring prosecutors, and venue for those proceedings can be in the petitioning prosecutor’s county (as opposed to the county where the alleged policy is in effect). So, again, the question of whether an elected prosecutor can be removed by people with no residency, franchise, or other connection to that prosecutor’s jurisdiction will have to wait for another day. Note, however, that this bill was filed “as received,” meaning the drafting experts at the Legislative Council were not involved in its writing. Bills filed in this manner must usually be revised or cleaned up in the committee process before moving forward. Therefore, consider this a “conversation starter,” but a serious and perhaps more realistic start (sans the neighbor-on-neighbor violence) than some the other offerings filed to date.

Another “conversation starter” is SB 1422 by P. King (R-Weatherford) authorizing the AG to sue any state agency, law enforcement agency, political subdivision, or local entity that adopts, enforces, or endorses a policy, etc., categorically prohibiting or discouraging the enforcement or prosecution of a criminal offense. Although this would certainly include prosecutors, its breadth strikes us as something more likely directed at the ballot propositions adopted in various “blue” cities around the state that purport to ban or de-emphasize enforcement of state laws against abortion, marijuana, or whatever the flavor of the month was in that municipality at that time. The new chapter is structured in a way that reminds us of Gov’t Code §411.209 (Wrongful Exclusion of Handgun License Holder), which some of you may have dealt with if your county (lawfully) excludes LTC holders from carrying handguns in certain parts of your multi-use courthouses. However, as with HB 3307, this bill was not written by the Legislative Council, which may explain the inclusion of a prohibition (can’t “endorse”) that has already been struck down by the U.S. Fifth Circuit when challenged as part of the state’s anti-sanctuary cities bill a few years ago. This means the bill is likely to be re-written as a committee substitute if it starts to move through the process, so some or all of this could change. So, as we said earlier: A conversation starter.

And of course, we must finish this week’s discussion of this topic as we always do: More bills are coming! That means your smartest move at this point may be to keep your powder dry until everyone’s cards have been laid on the table by the end of next week. Then the real conversations can begin.

Judicial salaries

Two bills have been filed to increase by 23 percent the current base pay of district judges (which also raises the salaries of elected felony prosecutors and the state supplement for county attorneys): SB 802 by Hughes (R-Mineola) and HB 2779 by Leach (R-Plano). The additional expenditure for such a raise got a chilly reception in the Senate Finance Committee two weeks ago, and this week the House Appropriations Subcommittee on Article IV left pending the proposed appropriation to support the raise. That doesn’t mean the idea is dead—many requests for additional funding are “pended” for future consideration at this early stage of the session—but it does mean we must wait for those two bills (as opposed to the funding request for them) to be heard in committee later this session to get a better feel for their prospects.

Judicial retirement

It’s no secret that public retirement systems have struggled to remain actuarially sound in the last decade. Faced with over $11 billion in unfunded benefits and a depletion date of 2075, the previous legislature drastically changed retirement for state employees and officers—including felony prosecutors—by creating something called a “cash balance” plan. A variation on the 401(k) theme, this plan applies to all elected felony prosecutors who took or take office on or after September 1, 2022. But the last legislature did not touch the judges’ retirement plan, known as JRS 2, which has a depletion date of 2076. That defined benefit plan is preferable to a cash balance plan for its recipients, so it raised a question during the interim after last session: In the interest of courthouse parity, should elected felony prosecutors explore the option of joining JRS 2 this session?

We got an answer this week in the form of SB 1245 by Huffman (R-Houston) and its companion, HB 3367 by Bonnen (R-Friendswood), and that answer is “no.” These bills would establish a cash balance plan for judges taking office on or after September 1, 2024, that matches the prosecutors’ new plan. This is not exactly unexpected—costly defined-benefit retirement plans have become too expensive for many states to maintain—but they are likely to pass, so if you want more details about how these cash benefit plans work, contact Rob.

Committee news

The Senate State Affairs Committee approved SB 2 by Hughes to increase the penalty for illegal voting back to a felony. It also approved SB 372 by Huffman (Class A misdemeanor to leak draft judicial opinions), SB 578 by Zaffirini (confidentiality protections for protective order applicants), and SB 728 by Huffman (DPS access to juvenile mental health records for firearm background checks). Other bills heard in that committee were left pending.

The House Criminal Jurisprudence Committee approved the following bills this week: HB 247 by S. Thompson granting subsequent writs in certain cases; HB 270 by S. Thompson expanding post-conviction DNA testing; HB 286 by S. Thompson creating new subsequent writs based on non-scientific evidence; HB 381 by S. Thompson requiring a pre-trial jury determination of intellectual disability in death penalty cases; and HB 611 by Capriglione creating a new crime for doxing. Other bills heard in that committee were left pending.

Remember, to read these listed bills, visit https://capitol.texas.gov/ and enter “HB ___” or “SB ___” in the “Search Legislation” box, then click on the “text” tab and click on the format in which you wish to read it (PDF, html, or Word).

Future committee hearings

Here are some of the bills posted for committee hearings next week (click the committee’s name for the full agenda and additional details, including hyperlinks to the bills’ webpages):

Monday, March 6

House Public Health – 10:00 a.m., JHR 120

• HB 576 by Raymond allowing disclosure of autopsy photos to family and their lawyers

Tuesday, March 7

House Human Services – 8:00 a.m., E2.030

• HB 63 by Swanson relating to preliminary investigations of child abuse/neglect reports

Senate Criminal Justice – 8:30 a.m., Room E1.016

• SB 287 by Huffman expanding the scope of felony terroristic threat
• SB 402 by Whitmire granting docket preferences to murder and capital murder proceedings
• SB 645 by Huffman relating to criminal penalties for fentanyl
• SB 1004 by Huffman creating a criminal offense for tampering with an electronic monitoring device
• SB 1318 by Huffman relating to bail reform
• SB 1319 by Huffman relating to overdose mapping
• SJR 44 by Huffman proposing a constitutional amendment authorizing the denial of bail for certain persons accused of violent or sexual offenses

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

• HB 55 by Julie Johnson increasing the punishment for certain indecent assaults
• HB 180 by Moody requiring a court to withdraw an execution date upon a prosecutor’s motion
• HB 205 by Moody expanding scientific subsequent writs to punishment issues
• HB 279 by Jetton increasing the punishment for trafficking disabled individuals
• HB 291 by Murr relating to occupational driver’s licenses
• HB 314 by Toth prohibiting the death penalty in a single eyewitness cases
• HB 369 by S. Thompson imposing a usable quantity for certain controlled substance crimes
• HB 409 by Collier relating to indigent defense
• HB 476 by Jolanda Jones capping pretrial detention at the maximum sentence for a charged offense
• HB 727 by Rose excluding persons with “severe mental illness” from the death penalty
• HB 798 by Collier allowing CVC funds’ use for relocation and housing rental expenses
• HB 842 by Patterson relating to DL suspensions for DWLI convictions
• HB 905 by Moody granting additional credits for certain time served before sentencing
• HB 939 by Dutton reducing penalties for certain first-time POCS crimes
• HB 1161 by Meyer relating to address confidentiality for certain trafficking victims

Wednesday, March 8 (no postings at time of publication)

Thursday, March 9

House Corrections – 9:00 a.m., Room E2.014

• HB 182 & HJR 11 by S. Thompson authorizing a court to commute a prison sentence
• HB 392 by S. Thompson shortening wait times to apply for certain orders of nondisclosure

New bills to watch

The bill filing deadline is one week from today. Over the next five business days, as many as 2,000 more bills may be filed before the window closes next Friday. Your prayers for our mental and emotional fortitude are welcomed during this difficult time.

Some bills filed this week that deserve your attention include:

• HB 2864 by Raymond mandating veteran court participation absent good cause
• HB 2992 by Harrison increasing reporting requirements for asset forfeitures
• HB 3166 by Murr creating a statewide 15th COA for certain civil appeals
• HB 3307 by Cook allowing removal of prosecutors due to non-prosecution policies
• HB 3247 by Cain creating the offense of prosecutorial misconduct
• SB 1195 by Hughes granting prosecution authority to OAG for abortion, election, human trafficking, and official misconduct crimes
• SB 1196 by Hughes / HB 2930 by Spiller granting SCOTX veto power over certain CCA rulings
• SB 1273 by Hughes / HB 2963 by Smithee granting new trials by prosecutorial fiat
• SB 1422 by P. King prohibiting non-enforcement of state criminal laws
• SB 1462 by Hughes, this session’s omnibus judicial branch bill

Many other bills relevant to your work can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a list of “Bills to Watch” that includes these new additions above as well as other bills we have highlighted in these weekly updates.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a few days in March, April, or early May to weigh in on the bills we’ve discussed to date 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.

Scattershooting

Here are some recent stories you might’ve missed:

• “Democrats and Republicans in Texas Might Not Agree on Much. But They’ll Sing Karaoke Together.” (Texas Monthly)
• “Texan young adults can now get licensed to carry handguns at college campuses, businesses” (Dallas Morning News)
• “Texas abortion funds likely safe from prosecution, federal judge rules” (Texas Tribune)
• “17 States Have Now Tried to Pass Bills that Strip Powers from Reform-Minded Prosecutors” (The Intercept)

Quotes of the Week

“This is not Harris County. We take things seriously.”
            —Galveston County District Court Judge Kerry Neves, revoking the bond of an intoxication manslaughter defendant who was caught driving without a license or an ignition interlock device in violation of the terms of his release.

“We want to empower criminal district attorneys to enforce the law, and if they want to change the law, they need to come up here and run against Jeff or myself and become a legislator, not a criminal district attorney.”
            —State Rep. David Cook (R-Mansfield), explaining why he filed legislation about prosecutors who don’t enforce laws, as quoted during a panel discussion with State Rep. Jeff Leach (R-Plano) on criminal justice reform at a recent Texas Public Policy Foundation (TPPF) policy summit.

“There’s never [been] an area of the government that has escaped more accountability than the criminal justice system, and nothing more in that system than prosecutors’ power. There’s very little transparency and there’s very little way to hold them accountable. … You also have prosecutors that will cheat and steal to try to win a case when they know they don’t have the facts to support it, or the law isn’t there to support it.”
            —Brett Tolman, Executive Director of Right on Crime, at the same TPPF policy summit panel, explaining why he and his organization are actively supporting efforts to impose new accountability laws on prosecutors. (Video available on YouTube HERE.)

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