We are bringing a soapbox in each hand to our summary this month, so prepare yourselves for some deep thoughts after we get through some news first.
Interim charges
The lieutenant governor issued to Senate committees the interim charges he wants them to work on for the remainder of this year. Relevant topics on that list include:
- transnational criminal activity, including fuel theft by organized crime (Border Security Committee)
- use of deepfake technology and artificial intelligence to harm or exploit children (Criminal Justice)
- charitable bail organizations (Criminal Justice)
- implementation of SB 1004 (tampering with electronic monitoring device) (Criminal Justice)
- adverse possession of real property (aka squatters) (Local Government)
- illegal electioneering by political subdivisions and public school districts (State Affairs)
- restrictions on intoxicating hemp products (State Affairs)
For the full list of interim Senate charges, click HERE. Note that it is common for this lite guv to add new charges as events warrant, so be on the lookout for that too.
Across the rotunda, House interim charges are not likely to be issued until after the House Speaker’s primary run-off election is over, so look for those in June. (If at all—there’s nothing that requires a chamber to take up issues during an interim, and who could blame them if they punted on the whole thing at this late stage, eh?).
Bill filing
Pre-filing of bills for next year’s 89th Regular Session begins on Monday, November 11, a mere 200 days from today. (If that doesn’t momentarily create a sick feeling in the pit of your stomach then you haven’t spent much time in Austin during a session!)
While it is not necessary to pre-file a bill—in fact, statistical analysis shows that pre-filing a bill may make it harder, rather than easier, to get it across the finish line—now is a good time to start doing the spadework necessary to change any state laws you think need fixing. The state budget-writing process for FYs 2025–2026 will begin in earnest this summer, and we can assure you that advocacy groups and other lobbying entities are already working on their pet projects for next session, so if you have an idea that you’d like to see become law, now is the time to start putting those thoughts into action. For more information on that process or how to get started, contact Shannon.
SB 22 (rural law enforcement grants)
If you applied for state grant funds under Senate Bill 22, then we don’t have to tell you about the implementation challenges facing both local recipients and the state administrators at the Comptroller’s Office. We’ve received many more questions about SB 22 than we have answers, but fortunately, we are told that the comptroller will publish in the coming weeks another “comprehensive list of FAQs” on relevant SB 22 topics. Keep checking that agency’s dedicated SB 22 webpage for that helpful resource when it is finally published.
The culture war never sleeps
OK, now it’s soapbox time! Gather round and allow us to share some observations as we prepare for the 89th Legislature to convene in January 2025.
Name any hot topic on social media or cable news these days and you’re likely to find prosecutors in the middle of it. And that’s true regardless of whether the prosecutors swept up in those issues want to be a party to those ongoing culture war battles between Red America and Blue America. Those who do can find themselves in the thick of the action, fighting in the trenches for policies or beliefs that are important to them. Those who don’t? Well … sorry, but the political scriptwriters don’t consult with the actors before they nationalize an issue and make it The Thing We Are All Going To Talk About This Week.™
We saw this phenomenon up close last session with the debate around House Bill 17 and the resulting creation of a state law exposing prosecutors to potential removal from office for categorically refusing to prosecute a certain type of crime. That law applies to any specific category of crime, or course, but the Lege didn’t pass it because it was concerned about the non-prosecution of Providing Chiropractic Treatment While Intoxicated (a state jail felony per Occupations Code §201.606, as we are sure everyone already knows). No, the Lege passed HB 17 because of the debates surrounding abortion, drug crimes, property crimes, and other hot-button political issues. (As proof, witness the latest cut-and-paste removal petition filed against the current Travis County DA which focuses on abortion and policing reform issues that predate the passage of HB 17.) As long as those issues remain front-and-center in the national political narrative, discussions like those on HB 17 will continue at the state capitol.
That said, it’s fascinating to step back from the local fray and see how these prosecution-related issues are developing outside of Texas. Take Arizona, for instance. That state finds itself in something of a reverse image of Texas politics, with “blue” state leadership (governor, AG) and “red” (or reddish) control of most local governments, including large ones like Maricopa County (Phoenix). In the wake of the Arizona Supreme Court restoring the viability of that state’s 19th-Century abortion crimes, Arizona’s governor recently attempted to bar local prosecutors from enforcing those crimes by delegating prosecutorial authority over those crimes to the state’s attorney general, who has categorically refused to prosecute them. This is setting up a separation-of-powers fight in that state that may be familiar to us in Texas, albeit in a Bizarro World, up-is-down kind of way.
You can learn more about how these debates are playing out in the upcoming election of Arizona’s local prosecutors by reading this recent article. One lesson to take from it, though, is as a reminder that HB 17 was not the end of legislative interest in who prosecutes what and how they do it. Keep that in mind every time we discuss the upcoming 89th Regular Session because it may explain a lot of what will happen next year.
Texas, the Lone Star Deep State?
Need another example of the politicization of prosecution? Let’s talk about state administrative law. Yes, yes, we know—snoozer, right? But no! Administrative law is no longer a niche area of practice that only excites people on the extremes of each end of the political spectrum. We now live in the time of “lawfare,” when combatants in the Culture War see not just the courts but also administrative rulemaking and executive orders as tools they can employ to pre-empt or control local governmental actions as a part of their larger set-piece battles.
So, how does lawfare-by-administrative-rulemaking play out in practice? Allow us to connect some dots between three recent developments: State Bar regulations, proposed OAG rules requiring new reporting by certain prosecutors, and proposed TCOLE rules that may require action by all prosecutors.
State Bar rules
This month the State Bar is soliciting votes from its members on a variety of proposed changes to its ethical rules, including Rule 3.09 (Special Responsibilities of a Prosecutor). (Reminder: If you want to weigh in, you have only a few more days to vote; click here for more details.) Regulation of the practice of law in Texas is a core function of the State Bar, so the promulgation of ethical rules is nothing new. However, outside advocacy groups have increasingly tried to use the State Bar’s somewhat Byzantine procedures to impose new rules and guidelines on prosecutors—including many that were previously rejected by the legislature—often without meaningful input from prosecutors in that process. (For instance, the TDCAA Board recently had to express its concerns to the State Bar when we discovered a proposal to impose new guidelines on prosecutors interacting with pro se defendants which a State Bar committee had been working on for several years without meaningful input from prosecutors themselves.) When combined with anecdotal reports from many of you that some members of your local defense bars are increasingly weaponizing the State Bar’s existing rules and guidelines as a negotiating tactic in their cases, it all paints an increasingly concerning picture of a regulatory structure originally designed to protect the ethics and professionalism of the legal profession now being co-opted by outside advocates who see it as a way to enforce their own policy preferences.
Someone else feeling that heat is our state’s attorney general and his first assistant, who both had grievance actions brought against them in the wake of lawsuits they filed after the 2020 presidential election. Both have claimed immunity from State Bar regulation for actions taken in their official capacities, and those cases are still working their way through the court system. Interestingly, if the courts ultimately decide to immunize certain elected officials or their official acts from the application of State Bar ethical rules, that holding could apply to prosecutors as well. But the point of discussing this matter here is as one recent example of the increased use of administrative rules by a state agency (or quasi-agency like the State Bar) at the request of outside advocates to allegedly achieve a desired result in a particular skirmish of the culture wars.
Proposed OAG reporting rules
Despite our attorney general not wanting to be subject to certain State Bar regulations, and despite his agency’s frequent filing of lawsuits challenging allegedly overbroad federal agency rulemaking, he shows no reticence in attempting to regulate other public officials—or at least certain prosecutors of a certain political stripe in a certain population bracket.
We told you last month about OAG’s proposed new mandate for prosecutors in larger counties to turn over to that state agency all manner of information and documents from their criminal cases, including privileged and confidential information and communications otherwise protected by state law. The comment period for those proposed rules closed a few weeks ago, and many of the prosecutors and counties potentially adversely affected by the proposal rules submitted written comments raising various concerns and objections to those rules. There is no telling when the final proposed rules will be published and take effect, but the posted notice and proposed rules can be found here if you haven’t already reviewed them.
Several of the prosecutors and counties targeted by this latest example of administrative bloat have already indicated an intent to sue OAG if that agency tries to implement such an unprecedented administrative mandate. If so, pay special attention to how OAG defends its actions and what “pressing issues of overriding importance” it cites to justify its latest expansion of the Administrative State. Dollars to donuts, those justifications will be ripped from the latest campaign and social media headlines coming from the front lines of the culture wars. Welcome to politics in Texas, 2024 edition.
Proposed TCOLE reporting rules
Finally, let us alert you to some recently proposed rules that are not directed specifically at prosecutors, but which may number you among the collateral casualties anyway.
Last session, the Lege passed SB 1445, the TCOLE sunset reauthorization bill, which included a statutory mandate for that agency to develop “rules to establish minimum standards with respect to the creation or continued operation of a law enforcement agency based on the function, size, and jurisdiction of the agency” (emphasis added, for reasons discussed below). We can tell you that, behind closed doors, the legislative impetus for this change was to give that regulatory agency more oversight over certain small, “fly-by-night” municipal police departments that were consistently falling short of basic minimum standards of operation or seemingly operating mainly as revenue generators for the local authorities who created them.
The result was a proposal published a few weeks ago by TCOLE which purport to regulate all entities that employ peace officers—which of course includes county attorneys and district attorneys due to their authority to employ peace officers as investigators. However, the agency rule-writers largely ignored the statutory instruction to impose standards “based on the function, size, and jurisdiction of the agency” and instead proposed a largely one-size-fits-all mandate that applies equally to the Houston Police Department and a rural prosecutor’s office with one investigator covering four counties. The rules also authorize TCOLE to sanction non-compliance with any of the proposed standards or related (and voluminous) annual reporting. A PDF excerpt of the proposed rules can be found here; pay special attention to the proposed changes to existing Rule 211.16, which has never previously applied to prosecutors.
Some of these proposed rules—and the related threat of sanctions—have not been popular with our friends over at the Sheriff’s Association of Texas (SAT), one of the groups involved in the drafting and passage of SB 1445 last session. In response, SAT submitted written comments to TCOLE this week raising various objections to proposed Rule 211.16. (You can read that letter here.) After reading the proposed rules and the SAT objections, if you find that you share those concerns, feel free to weigh in with TCOLE with your own written comments; the initial public comment period has closed, but we have been assured that TCOLE will consider further input as they work their way through the many comments they have already received. Comments may be submitted electronically to [email protected] or in writing to Mr. John P. Beauchamp, General Counsel, Texas Commission on Law Enforcement, 6330 E. Highway 290, Suite 200, Austin, TX 78723-1035.
Conclusion
Tl;dr summary: For a state government that has long prided itself on *not* being like “The Swamp” in Washington, D.C., it sure seems like some people are trying to turn Texas government into a mirror image of that many-tentacled “deep state” federal bogeyman. We don’t know when bureaucratic growth, administrative mission creep, and the death of the time-honored concepts of subsidiarity and separation of powers in state government suddenly became popular ideas in this state, but the facts on the ground sure seem to prove their popularity. Why, it’s almost like our wise Founders knew that human nature will inevitably lead advocates to take actions outside the accepted norms—and constitutional limits—when their desired ends justify any means. As a result, we have gone from a time when the guiding light of an elected prosecutor was the verdict of a local jury and the vote of local citizens to a situation in which elected prosecutors must now navigate distantly generated narratives and the dictates of executive and legislative branch officials who both fan, and are blown by, those narratives.
To which we can only say: Remember, you chose to run for this gig, so … good luck with that!
Scattershot
Are you missing our monthly “Scattershooting” entry? If so, then consider signing up for TDCAA’s Round-Up, a weekly email of relevant news articles (like that one from Arizona) that arrives in your inbox every Thursday morning. To get on the Round-Up list, click here
TDCAA job postings
The Texas District and County Attorneys Association is accepting applications for the positions of Executive Director and Domestic Violence Resource Prosecutor. For more information or to apply for either position, click the link for each above. The application period for each position will close at the end of this month.
Quotes of the Month
“What [law enforcement is] going to be asking for is, ‘Hey, can we go to the bordering county, can we go to Montgomery County or Fort Bend County and file?’ You know, these are district attorneys and if you’re a district judge, you kind of can go anywhere in the state, [so] why can’t we do that with district attorneys? And I know that’s a slippery slope that we’ve got to be careful of, but I think that’s one of the things that I can see law enforcement asking for … or, empower the attorney general to file cases with them and they can prosecute without the DA’s interference.”
—Tarrant County Sheriff Bill Waybourn (R), giving a preview of upcoming policy discussions about “rogue prosecutors” during a panel on “Conservative Criminal Justice Solutions” hosted last month by the Texas Public Policy Foundation. (The link goes directly to the relevant discussion of “rogue prosecutors” during that panel.)
“We’re seeing the [U.S. Supreme Court] be both a victim of polarization and a cause of polarization. People on either side of the street have lost the ability to see the court objectively or clearly.”
—Linda Greenhouse, a Pulitzer-prize winning journalist, in a Christian Science Monitor article discussing poll numbers showing an erosion of public trust in the Supreme Court.
“[Dan Patrick] is, in my opinion, the most powerful guy in the state, and his power is growing.”
—Bill Miller, Austin lobbyist, as quoted in a recent Dallas Morning News article discussing the impact of some of the lieutenant governor’s norm-busting political tactics.
“I signed up for the death threats and the late night swatting, but [my family] did not.”
—U.S. Rep. Mike Gallagher (R-WI), who most recently authored the new federal law requiring TikTok’s Chinese ownership to divest and who was considered to be a rising star in national politics, explaining why he is resigning from office and leaving politics.
“We all know what to do, but we don’t know how to get re-elected once we have done it.”
—A famous quote attributed to Jean-Claude Juncker, former Prime Minister of Luxembourg and a vocal advocate for a post-war European Union.
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