Not much work took place in Austin this past week unless you were a tow truck driver, power line technician, or chainsaw merchant, so this will be a shorter update than usual.

Somebody call the Lorax

Two years ago, “Snowpocalypse 2021” wiped out a week of the session. Now we have just survived “Austin Oakpocalyse 2023,” which may have a similar effect. Parts of Austin have been (or still are) without electricity for days due to downed trees and power lines, but even the neighborhoods of those with power look like a war zone with bowed or broken trees everywhere. Things are likely to return to normal next week—which would mean little overt action other than perhaps the publication of House committee assignments—but at this point, any return to normalcy is welcome.

“Flooding the zone”

American politics is rife with colorful expressions taken from our rich sports heritage. One of those is “flooding the zone.” In football, this is used to describe a passing game strategy in which an offense purposely directs multiple receivers into one area of the field in an effort to overwhelm the opponent(s) tasked with defending that zone. In politics and policymaking, it has also come to denote a strategy or situation in which multiple options are thrown at a problem—sometimes purposely, but other times not—in the hopes that something gets passed to address it, even if there is no clear consensus at the outset on what that solution should be.

We’re experiencing a little bit of zone-flooding on the so-called “rogue prosecutor” front right now. Depending on how you define that “problem,” there are anywhere from five to as many as nine bills already filed to “solve” it (either broadly or in narrower respects). And guess what? More bills are coming. You can bank on that.

This week’s addition to the list is SB 648 by Mayes Middleton (R-Wallisville), which would create new removal procedures for prosecutors who don’t enforce certain laws (including the death penalty) or who adopt policies or make statements saying they won’t enforce certain laws. If we were to analogize this bill to a pass pattern, it would probably fall under the “Hail Mary pass” category, but read it for yourself and see what you think.

Thoughts? Questions? We’d love to know what y’all think about all this.

Knowledge is good

In reading some of the social media chatter surrounding the prosecutor accountability bills filed to date, it is obvious that many people—including policymakers and other “influencers”—are not always up to speed on how prosecution works in Texas or how prosecutors are currently held accountable when they allegedly step out of line.

To address the former problem, we updated and released a new version of “Texas Prosecution 101” last year in the wake of the Stephens opinion that clarified and confirmed local prosecutors’ constitutional authority over criminal prosecutions. Don’t assume that people making or commenting upon public policy in this area know as much about this topic as you do, so please feel free to use that information to educate others.

As to the specific issue of prosecutor accountability, it’s been more than a decade since TDCAA issued a September 2012 report entitled “Setting the Record Straight on Prosecutorial Misconduct” in specific response to a deeply flawed “study” attacking prosecutors in Texas for being unaccountable. While the findings in the TDCAA report are still valid, we thought the portion on prosecutorial accountability might be worth dusting off and re-issuing in a more bite-sized format. You can find that updated excerpt here. This is information suitable for sharing with policymakers who are being asked to support legislation affecting prosecutors in a vacuum, without any context or knowledge of what checks and balances already exist in Texas law. (Or worse, getting misinformation about it, whether purposeful or not.) The reality is that prosecutors are probably the most highly-regulated lawyers or public officials in the entire state, but that is probably news to people in the capitol until you educate them about it.

Budget

The Senate Finance Committee tried to kick off its initial budget overview hearings before Mother Nature postponed the proceedings. These broad reviews of the initial baseline budget are traditionally the first foray into live committee hearings at the Lege. That committee won’t get to the judicial branch budget until the week after next, so we’ll give you a more detailed run-down of what that looks like then. Meanwhile, for a peek at some of the goodies in the proposed appropriations bills, check out this handy summary prepared by our friends at TAC, including details on new funding proposals for mental health facilities, TJJD facilities, rural law enforcement personnel, and more.

New bills to watch

Many of the 650+ bills we are tracking so far can be accessed on our Legislative webpage under our Penal Code and Code of Criminal Procedure tracks. We also have a curated list of other “Bills to Watch.” The closure of the capitol resulted in few bills being filed this week, but we still added a couple to that latter list:

HJR 98 by Tinderholt proposing a constitutional amendment authorizing the attorney general to enforce election law crimes
SB 648 by Middleton relating to the removal of prosecutors for failure to enforce laws
SB 665 by N. Johnson creating an online trackable database of civil asset forfeiture cases
SB 677 by N. Johnson authorizing defense lawyers to appear before grand juries in certain cases

You can click on the underlined hyperlinks to access the content of those bills and related details. Along with these bill tracks, we are currently tracking roughly one out of every four bills filed at the Lege. That is a higher percentage than normal. Congratulations, you and your work are popular.

Counties at the Capitol Day

Our good friends at TAC are hosting a “Counties at the Capitol” Day on Tuesday (February 7). For more details—including an agenda and online registration—please visit the TAC website.

Austin-bound?

If you are ready to clear your calendar and come to Austin for a specific time in late February, March, April, or early May, 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. We are here to help you work smarter, not harder.

Scattershooting

Here are some recent stories you might’ve missed:

• “FBI Reportedly Investigates Fentanyl Distribution on Snapchat” (Yahoo News)
• “Texas lawmakers want to address the fentanyl overdose crisis. Here’s what they propose.” (Austin American-Statesman)
• “Lack of Rural Lawyers Leaves Much of America Without Support” (Pew Stateline)
• “It’s Not Just a Police Problem, Americans Are Opting Out of Government Jobs” (The Marshall Project)
• “Biden names Dallas prosecutor Damien Diggs first Black U.S. attorney for East Texas” (Dallas Morning News)

Quotes of the Week

“People want to work from home and you can’t prosecute from home. … [New law school graduates] are just generally not interested in trying cases, being in a courtroom, being more specifically in an office. They want to do remote work, and that’s just not an option as a prosecutor.”
            —McLean County (IL) State’s Attorney Erika Reynolds, in an article seeking to explain why prosecutor offices in Central Illinois are struggling to fill open positions.

“We know that George Soros’ many organizations pump millions into getting these lawless prosecutors elected. The least we can do is hold them accountable.”
            —“Rick Perry,” commenting on a story on “rogue prosecutor” legislation run in the Texas Scorecard—the media arm of the conservative advocacy group formerly known as Empower Texans. (But is it *the* Rick Perry? Or maybe “the other Rick Perry”? Who knows?!?)

“[… District attorneys] do not have the constitutional authority to choose which classes of offenses to prosecute. George-Soros-backed DAs are endangering our communities with policies of non-prosecution. … Our justice system cannot function when DAs are allowed to cafeteria-style pick-and-choose which laws to follow and which to ignore. It is up to the legislature to pass laws and for district attorneys to enforce them, period.”
            —State Sen. Mayes Middleton (R-Wallisville), in his press release announcing the filing of SB 648 “to hold rogue district attorneys accountable for their dangerous policies of not enforcing our laws and prosecuting criminals.”

“The power given to district and county attorneys includes the power not only to prosecute cases but also to decide which cases should not be prosecuted. When the district or county attorney chooses not to prosecute a case, they are permissibly exercising their prosecutorial discretion; it is their prerogative to file or not file charges.”
            —Court of Criminal Appeals Judge Scott Walker, in his concurrence to that court’s refusal to reconsider its prior opinion in State v. Stephens. For a refresher on that debate over rehearing, see our September 2022 Interim Update.

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