*This being Texas, we know we can’t go wrong if we include a nod to football in our reading material. Special h/t to the NCAA and the UIL for the “Week Zero” concept. Also … #GoFrogs on Monday night!
When in Austin
The Texas Legislature’s 88th Regular Session convenes on Tuesday, January 10, which means more of you than normal might be visiting our capital city between now and Memorial Day. One of the many benefits TDCAA provides for its members during a legislative session is an office that serves as a home away from home for you when you are in town. We have free parking, free Wi-Fi, open workspaces, and a stocked kitchen waiting for anyone who comes by, and we are located a short 10-minute walk from door to door for those doing business in the Big Pink Building. So please, come by and take advantage of our prime location and open door when you come to town!
As for the upcoming schedule this month … not much else of note will happen for several weeks after Tuesday’s Opening Day ceremonies. Legislators and their staff will spend most of this month attending swearing-in ceremonies (and parties), inauguration ceremonies (and parties), and other getting-to-know-each-other functions (and parties) while filing lots of bills. (Lots and lots and lots of bills, to be honest.) This traditionally slow start gives those of you who want to come to Austin to work on legislation plenty of time to get your ducks in a row at home and work before heading this way. If you have questions, or if you are ready to clear the decks and come to Austin for a specific week in February, March, or April, please call or email Shannon. Preference will be given to elected prosecutors, but assistants are also welcome to volunteer (with their boss’s permission, of course).
Prosecutor recruitment and retention
The Deason Criminal Justice Reform Center at SMU’s Dedman School of Law just released a policy brief entitled “Greening Criminal Legal Deserts in Rural Texas” that some of you might find interesting. (Translation for those who don’t speak academician: Pony Law put out suggestions on how to entice more lawyers to do criminal work in rural Texas.) Most of the paper focuses on problems with criminal defense and a need for rural public defenders, but there is a good plug on pp.10–13 for funding the rural prosecutor loan repayment assistance program that has been on the books in Texas for two decades but has never been funded. That’s not something the Lege has on its To Do list for this session either, but the loan repayment concept is related to some ideas they are considering this session, so consider this yet another argument for improving prosecutor recruitment and retention. And on that front, the more, the merrier! But give the report a look-see if you are so inclined, and share it as needed with your legislators and local policymakers if you think it will be helpful.
Remote proceedings
The Texas Supreme Court’s 59th (!) Emergency Order Regarding the COVID-19 State of Disaster took effect with the new year and continues to include provisions authorizing a court to allow or require anyone—lawyer, party/defendant, juror, or witness—to appear for a non-jury proceeding remotely, regardless of consent or objection. That’s been the state of things for about a year as we continue to live and work in a society in which almost everyone seems to have moved on from COVID—everyone, that is, but the governor and Texas Supreme Court, which both continue to issue edicts granting themselves various supernumerary powers due to the emergency they have self-declared. However, at some point this must surely end—and indeed, this latest emergency order extends only until the end of this month, which is much shorter than previous emergency orders from the court. So, what gives?
One of the unresolved issues from the recent pandemic is to what extent the courts should be able to perform their duties using remote technology without certain lawyers, parties, or witnesses physically appearing in court. The Lege took a crack at codifying new laws on that topic in 2021, but that legislation—which was proposed by the judiciary and largely granted judges the unilateral authority to make most remote-versus-in-person decisions—failed to pass over the various objections of lawyers on all sides of the bar (civil, criminal, plaintiff, defendant, and prosecutor). Over the interim, however, the judiciary has resorted to its rulemaking authority to draft new rules of civil procedure for remote proceedings in the impending post-emergency-order world. They include the new Texas Rules of Civil Procedure 21d and 500.10 (plus related conforming changes to other rules) which would grant the courts some of the same powers they could not obtain from the legislature last session. Specifically, the two rules would give trial and appellate judges the general authority to allow or require remote participation in civil proceedings, while also:
- requiring good cause or agreement of the parties before a court can allow or require remote participation by a party or lawyer at a proceeding in which oral testimony is heard;
- requiring agreement of the parties before a court can allow or order a lawyer, party, or juror appear remotely for a jury trial; and
- laying out notice and recording provisions and a range of factors for determining “good cause” in such cases.
Those new and amended rules, which can be read in their proposed form as Misc. Docket No. 22-9091 (posted on October 14, 2022), will soon be published in final form and take effect on February 1, 2023. Anyone who practices in civil courts should familiarize yourselves with whatever changes are set to take effect on that date, keeping in mind that the legislature can always override the judiciary’s procedural rules by legislation. Note also that Chief Justice Hecht has publicly stated that after the new civil rules become effective, the judiciary may turn to rulemaking related to criminal procedure next.
Bill tracking
Of the 1,605 bills filed through yesterday, we are tracking 405 (~25 percent). To see bills that would amend the Penal Code, the Code of Criminal Procedure, or other “Bills to Watch” (a curated list of 18 other bills that you might care about), use the links on our Legislative webpage (right-hand side for desktop access, bottom of the page on mobile devices). We maintain more than 40 different bill tracks for various policy subjects, but those three tracks available for viewing on our website will give you a good idea of what has been filed so far.
Also, if you or someone in your office has proposed a bill that gets filed by a legislator, please drop Shannon a note so he can track it as such. Legislative offices often seek information from us about bills, but we can only forward them to you to pitch your bill if you let us know which bill is yours!
Free CLE: Mandatory Brady training
The 2022 version of TDCAA’s free Mandatory Brady Training is now available online. Click the link above for more details and be sure the other prosecutors in your office are clicking it too!
PVAC recognition
TDCAA’s Professional Victim Assistance Coordinator (PVAC) recognizes professionalism in prosecutor-based victim assistance. If you know of a VAC who might merit such recognition, a list of the requirements and an application can be found here. The deadline for this year’s applications is January 31, 2023. For questions, contact [email protected].
Scattershooting
Here are some stories from the holiday break and this past week that you might’ve missed:
- “‘It destroyed our family’: Why Dallas DA is trying a new strategy in deadly driving crimes” (Dallas Morning News)
- “Josh Tetens inheriting district attorney’s office plagued with vacancies, staggering backlog of felony cases” (KWTX News (Waco))
- “Rodriguez steps in as DA” (Port Lavaca Wave)
- “Texas AG must determine whether a popular form of animal control constitutes cruelty” (Dallas Morning News)
- “How the marijuana ‘green rush’ fell apart” (Washington Post)
- “Property tax revision, judicial branch expansion among new Texas laws that took effect Jan. 1” (Texas Tribune)
- “Texas criminal justice employees disciplined after Dallas parolees jailed in murder cases” (Dallas Morning News)
- “Abbott says legislative action needed for ankle monitor violations” (Tyler Morning-Telegraph)
Quotes of the Week
“[T]he upcoming revenue estimate is my most challenging yet. On one hand, our growth in the coming years will be hampered by a slowing economy, so caution is needed. On the other hand, people will be shocked when I announce that the cash carry-over balance in the treasury is greater than the $27 billion originally forecasted. We will never have a surplus of discretionary funds like this again.”
—Glenn Hegar (R-Katy), Texas Comptroller, in a recent Austin American-Statesman column prefacing his impending official revenue estimate announcement later this month.
“He is at the apex of his power since he’s been lieutenant governor, with a 19-seat majority of which all 19 of those Republicans are on the Patrick team.”
—Mark. Jones, political scientist at Rice University, describing in a recent Dallas Morning News article the political dynamics in the state senate under Lt. Gov. Dan Patrick heading into the 88th Regular Session.
“Some of us at the Capitol have joked that we need to have Miami Herald subscriptions so that we can read today what Greg Abbott is going to do three days from now.”
—Scott Braddock, editor of the Quorum Report, cracking wise about how a potential presidential primary contest pitting Texas governor Greg Abbott against Florida governor Ron DeSantis may impact the policy debates at the Texas legislature in 2023.
“This bill is designed to stop these radical DAs and reinstate the constitutionally guaranteed rights of law enforcement officers. I’m proud to work with my local law enforcement officials as well as pro-law enforcement organizations across the state to put an end to this abusive practice.”
—State Rep. Cody Harris (R-Palestine), as quoted in a Palestine Herald-Press story about HB 799, his CLEAT-proposed bill “relating to a limitation on the use of certain unsubstantiated information relating to peace officer misconduct” that would restrict prosecutors’ ability to disclose certain impeachment evidence to the defense (and thereby likely jeopardize the finality of any cases they’ve worked).
TDCAA will deliver these legislative updates by email every Friday afternoon during the regular legislative session. If you would prefer these updates be delivered to a different email address, please reply to this email with that new contact information.
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