Bill filing deadline is finally here! The clock runs out on any ideas wanting to become bills at 6:00 p.m. today. All good ideas that did not get a bill author will have to wait until next legislative session … or will need a suspension of the rules and then it can become a bill this year. Never say never during legislative session. There are still so many plot twists to uncover. Like … new Regional District Attorney Czars? Grand jury hijinks? Mo’ money, mo’ problems? Read on for details.
OAG-as-prosecutor bills
It will take us another week to dig through all the bills filed before today’s deadline, but one filed earlier this week provides us with a good reason to alert you to legislation trying to grant the Office of the Attorney General (OAG) local prosecution powers that are denied to it by our state constitution’s drafters.
First, a list of those bills and joint resolutions (which would amend the Constitution) filed to date, then we will highlight two—one old and one new twist on this theme.
Bill List
HB 3640 & HJR 162 by Lowe disqualifying a local prosecutor from prosecuting a peace officer in the same jurisdiction and requiring the OAG to prosecute the case or appoint another prosecutor to do it
HB 4717 by Schofield creating a new statewide Special Prosecutor appointed by SCOTX
HB 4803 by Spiller creating five new regional DAs across the state with concurrent jurisdiction to prosecute any crime in their region
HJR 103 by Leo-Wilson / HJR 160 by Morgan / HJR 189 by Hopper authorizing the OAG to prosecute election crimes
HJR 150 by Lowe granting the OAG concurrent jurisdiction to prosecute any criminal offense
SB 16 by Hughes creating a new illegal voter registration crime and authorizing OAG to prosecute
SB 846 by Hughes / HB 1004 by Toth authorizing (nay, requiring) the OAG to prosecute certain election, abortion, human trafficking, and official misconduct crimes
SB 1026 by Hughes / HB 4957 by Leo-Wilson / HB 5138 by Shaheen authorizing OAG to prosecute election crimes not acted upon by a local prosecutor
SB 1210 by Hughes / HB 933 by Spiller granting SCOTX the power to overrule the CCA on certain constitutional matters (as in—you guessed it—deciding whether the OAG has the constitutional power to prosecute local crimes)
SB 1440 by Bettencourt requiring local prosecutors to report to the OAG any refusal or declination of a violent crime referral
SB 1650 by Flores granting the OAG authority to prosecute the offenses of riot or obstructing a highway if not acted upon by the local prosecutor
SB 2057 by Parker creating new election-related crimes prosecutable by the OAG
SB 2384 by Hughes creating five new “regional administrative DAs” across the state with jurisdiction to prosecute any misdemeanor or felony crime in their region
Again, we may supplement this list later with bills filed at the deadline or others already filed that we may have missed. Now, some additional details on two of the bills mentioned above.
Something old
SB 1026 by Hughes (prosecution of election crimes) was heard yesterday in the Senate State Affairs Committee and left pending. The bill would allow the OAG to prosecute certain election crimes if the local prosecutor has not initiated a prosecution within six months of receiving a referral from an investigating agency. If the bill analysis for SB 1026 and the testimony in support of it are any indication, the proponents of this idea still do not agree with what the CCA said in the Stephens opinions or why that court said it so emphatically. That includes an attorney from the OAG whose testimony basically doubled down on the OAG’s failed arguments in the Stephens case. He opined that SB 1026 would give the OAG “constructive consent” to prosecute cases after six months of inaction from a local prosecutor without any need to amend the state constitution simply by changing a “may” in the Election Code to “shall.” Testimony in opposition was given by attorneys from the ACLU and the Texas Civil Rights Project. However, the most interesting line of questioning came from Sen. Birdwell (R-Granbury), who asked what would happen when Texas has an AG “like the one from Minnesota” (insert collective shuddering here). That question went unanswered.
A bill very similar to SB 1026 passed out of committee last session and then squeaked out of the full Senate only to die in the House. (See SB 1195 by Hughes in the 88th Legislative Session that passed the Senate 17–13 with Republican Senators Huffman and Nichols joining the nays.) Whether this session’s version will meet that same fate is unknown. For now, the bill is left pending before the committee. Meanwhile, two identical companions to SB 1026 were filed in the House by Reps. Leo-Wilson and Shaheen (see the list above for those bill numbers).
For those curious, the committee discussion of SB 1026 can be viewed by clicking here.
Something new
Meanwhile, a new idea appeared on the scene this week in the form of SB 2384 by Hughes and HB 4803 by Spiller. These bills (which differ slightly) would create five new “regional DAs” who are untethered from current judicial districts and instead based in five new regions that together cover the entire state. These five elected DAs would have original criminal jurisdiction over all crimes that local DAs or CAs have authority over now and could pick and choose what they want to prosecute and what they want to leave to the local prosecutors. (So, like the Feds, but with wider jurisdiction and fewer resources.)
There are scores of questions about this new concept that spring to mind, but very few answers. For now, be aware of the following advantages such a bill gives to its proponents:
- It does not trigger a Stephens separation of powers problem
- The regions are drawn to ensure Republican candidates will win the seats.
- These new regional DAs would have the authority to let the OAG prosecute any criminal matter as a special prosecutor or pro tem. (And you just know the OAG would be called in when the new regional DA is taking criminal cases involving elections, abortion, trafficking, etc.)
So, kudos to those thinking up ideas like this! It’s always fun to have new reasons to research arcane areas of state constitutional law. Indeed, one glaring constitutional error may already be apparent. (Can you spot it? Email us with your guess and we will have a good prize for the first TDCAA member to reply correctly.) But as the discussion of SB 1026 proves, the unconstitutionality of a bill is no impediment to passage.
In sum: For reasons too detailed to go into here, there have been a rash of “ABCD” (“Anybody But Current DA”) bills filed this session. If they concern you, talk to your local legislators about them.
Grand jury bills
Legislators have filed bills to alter the functions or powers of grand juries in Texas in every session since 2017 following the indictments of then-Gov. Rick Perry (2014, abuse of official capacity) and AG Ken Paxton (2015, securities fraud), and this session is no different. The main vehicles for potential change this session appear to be SB 1630 by Flores (R-Pleasanton) and its identical companion, HB 3664 by Smithee (R-Amarillo). In a nutshell, these bills:
- prohibit re-presentation of a no-billed case absent new, material evidence unknown to the State at the time of the previous presentation.
- mandate recording of all grand jury proceedings and interactions other than deliberations.
- mandate full Art. 39.14-style discovery pre-indictment to any target/suspect notified of a grand jury proceeding.
- grant subpoenaed witnesses/targets time to retain and consult with counsel before appearing (but no defense lawyers in the grand jury … yet).
- require new Miranda-style warnings be given to subpoenaed witnesses before testifying.
- mandate state-sanctioned online training for all grand jurors on the purpose, rules, selection, procedures, and deliberations of a grand jury.
It’s unclear why bills like these continue to be filed. Previous legislatures already addressed alleged abuses of the criminal justice system in the Perry and Paxton cases, both of which were investigated and prosecuted by criminal defense attorneys appointed by the courts, not by elected DAs. In fact, ever since the passage of HB 1690 by P. King/Huffman (2015) to move public integrity investigations to a special unit of the Texas Rangers, followed by the passage of SB 341 by Huffman/Murr (2019) barring non-prosecutors from attorney pro tem court appointments, no prosecutions of statewide officials have occurred. And yet, here we are a decade later, talking about “grand jury reform” again.
This session’s bills have been (or soon will be) referred to committees chaired by each of the authors: Senate Criminal Justice and House Criminal Jurisprudence. If anything in these bills concerns you, now is the time to begin engaging lawmakers with your concerns.
Judicial branch pay
Senate Bill 293 by Huffman (R-Houston) passed the Senate and is on its way to the House. SB 293 is the judicial accountability bill that includes a 15-percent raise for elected judges and felony prosecutors. The Senate approved the bill almost unanimously with only one no vote coming from Sarah Eckhardt (D-Austin). Senator Joan Huffman (R-Houston) reiterated during the vote that “I do want to point out that it is rare for the legislature to provide this significant of an across-the-board pay raise for any group of state employee or officials.” She went on to say, “However, complaints about the judicial system extend beyond criminal court. Encompassing civil and family courts as well, some may not be actively working to clear their dockets. That is why I firmly believe that the judiciary should not receive any type of salary increase unless the necessary and appropriate reforms are also included. That’s why this is all in one bill.” The bill will eventually be referred to a committee in the House, but don’t expect action on it in the lower chamber any time soon.
Meanwhile, the House Judiciary & Civil Jurisprudence (JCJ) Committee heard HB 204 by Tepper (R-Lubbock) to remove the “donut hole” or “dead zone” in which the state claws back some of an elected felony prosecutor’s state salary if a county supplements it above a certain amount. The bill was suggested by a Lubbock County commissioner and is currently limited to DAs in counties with a population of less than 400,000. Kaufman Co. CDA Erleigh Wiley, current chair of TDCAA’s Board of Directors, testified in support of the bill before the committee. A substitute version with perfecting language was laid before the committee and then left pending. If such a bill might benefit you or your community, feel free to reach out to members of that committee (only two of whom currently represent eligible counties with a population below 400,000).
Prosecutor office funding
The House Subcommittee on County Government met Monday to hear a slate of bills that included HB 503 by Tepper (R-Lubbock), which would expand SB 22’s rural law enforcement grant funding to counties with a population of between 300,000 and 400,000. Testifying in support of the bill were three prosecutors who could benefit from that change: Lubbock Co. CDA Sunshine Stanek, Galveston Co. CDA Jack Roady, and Nueces Co. DA Jimmy Granberry (plus the sheriff from Lubbock County). The bill was left pending in that subcommittee.
For what it’s worth, there have been more than a dozen bills filed to expand the size or scope of SB 22 this session, almost all in the House. It’s too early to say whether any of them will find favor with Lt. Gov. Dan Patrick, who created the program in 2023 and has been very protective of that legacy project. But in the House, a bill like Tepper’s HB 503 that benefits Nueces County (represented by the House Calendars Committee chair) and Lubbock County (home of the Speaker) might have a decent shot of at least landing on the Senate’s doorstep for the upper chamber to have to consider. We’ll keep watching it for you and report any news on that front.
Committee actions
The Senate Criminal Justice Committee passed several bills set on their agenda this week. Senator Tan Parker (R-Flower Mound) passed SB 1281 (theft involving mail or a mail receptacle key or lock). Chairman Pete Flores (R-Pleasanton) passed his three bills: SB 1379 (forgery enhancements), SB 1451 (stolen check or sight order enhancement), and SB 1300 (organized retail theft), the latter of which Comal County CDA Jennifer Tharp testified in support of and answered several questions from the committee members. And Senator Robert Nichols (R-Jacksonville) passed three bills out of committee: SB 1497 (search of wireless communication devices), SB 1498 (civil asset forfeiture of digital currency, which Thomas Wilson, Smith Co. Asst. CDA, testified for); and SB 1499 (expanding the scope of the Financial Crimes Intelligence Center in Smith County).
The Senate State Affairs Committee passed two slightly different bills to remedy problems created by the Ex parte Charette opinion. SB 987 by Bettencourt (R-Houston) and SB 1220 by Hughes (R-Mineola) will now be eligible for consideration by the full Senate in a week or so. The committee also heard and left pending SB 318 by Creighton (R-Conroe) to officially establish OAG’s Election Integrity Unit in statute and grant it administrative subpoena powers, and SB 1596 by Hagenbuch (R-Denton) to legalize short-barreled firearms.
Upcoming committee hearings
Monday, March 13, 2025
Senate State Affairs: 9:00 am, Senate Chamber
SB 8 Huffman: Relating to agreements between sheriffs and the United States Immigration and Customs Enforcement to enforce federal immigration law.
SB 779 Middleton: Limiting common law public nuisance claims.
Tuesday, March 14, 2025
Senate Criminal Justice: 8:00am, E1.016
SB 251 Flores: Relating to the creation of criminal law magistrates for Bell County.
SB 608 Flores: Relating to reporting information regarding certain evidence collection kits.
SB 487 Alvarado: Relating to the confidentiality of identifying information of victims of certain offenses.
SB 535 Huffman: Relating to the admissibility of evidence regarding a victim’s past sexual behavior in prosecutions of certain trafficking, sexual, or assaultive offenses.
SB 761 Hinojosa: Relating to rights of crime victims and the enforcement of those rights; authorizing a civil penalty.
SB 955 Parker: Relating to the punishment for the offense of trafficking of persons.
SB 957 Parker: Relating to the creation of the criminal offense of continuous aggravated promotion of prostitution.
SB 958 Parker: Relating to the eligibility of certain victims of trafficking of persons or compelling prostitution for an order of nondisclosure of criminal history record information.
SB 988 Bettencourt: Relating to increasing the criminal penalty for the offense of criminal mischief involving impairment of a motor fuel pump.
SB 990 Bettencourt: Relating to increasing the punishment for certain conduct constituting the offense of murder.
SB 1019 Huffman: Relating to the admissibility of certain hearsay statements in the adjudication of certain sexual or assaultive offenses committed against a child or a person with a disability.
SB 1021 Huffman: Relating to changing the eligibility for community supervision of a person convicted of stalking.
SB 1120 Hinojosa: Relating to the rights of a victim, guardian of a victim, or close relative of a deceased victim in certain criminal cases involving family violence, sexual or assaultive offenses, stalking, or a violation of a protective order or condition of bond.
House Criminal Jurisprudence: 10:30 am, E2.014 (It’s bail reform day in the House!)
HB 36 Bowers: Relating to the monitoring of certain family violence offenders, the provision of resources for family violence victims, and the collection of information about conditions of bond imposed in family violence cases and certain other criminal cases.
HB 75 Smithee: Relating to the release of defendants on bail, the duties of a magistrate in certain criminal proceedings, and the regulation of charitable bail organizations.
HB 76 Smithee: Relating to the use by a political subdivision of public funds to pay bail bonds.
HB 166 Capriglione: Relating to committing the criminal offense of endangering a child, elderly individual, or disabled individual by engaging in certain conduct involving a controlled substance listed in Penalty Group 1-B of the Texas Controlled Substances Act.
HB 799 Moody: Relating to the release on personal bond of certain defendants charged with a misdemeanor or state jail felony.
HB 1135 Isaac: Relating to temporary vehicle tags and the offense of tampering with a governmental record.
HJR 15 Smithee: Proposing a constitutional amendment authorizing the denial of bail under limited circumstances to a person accused of certain violent or sexual offenses or of continuous trafficking of persons.
HJR 16 Smithee: Proposing a constitutional amendment requiring the denial of bail for an illegal alien charged with an offense punishable as a felony.
Wednesday, March 19, 2025
House Judiciary & Civil Jurisprudence: 8:00 am, E2.030
HB 748 Leach: Relating to the enforceability of certain nondisclosure or confidentiality provisions with respect to an act of sexual abuse committed against a child.
HB 1495: Relating to the prohibited release of personal information collected during the jury selection process.
Quotes of the week
“Republicans searching for fraud, waste, and inefficiencies in a state government dominated by the GOP for decades”
—Headline for a WFAA news article about the creation of the new Delivery of Government Efficiency (DOGE) Committee by the Texas House.
“That’s a lot of money for the cast of Cocoon.”
—State Rep. Mitch Little (R-Lewisville), in a tweet referring to the $3.7 million the Texas House paid outside counsel for the unsuccessful impeachment of AG Ken Paxton, whom Little represented.
“You get good news one minute and terrible news the next.”
—106th DA Philip Mack Furlow, when asked how his recent visits at the capitol had gone.
“But it is the new frontier. It’s obviously a new frontier in politics. I will say in some of the ads that I experienced over the last two years, my wife said, ‘You’ve never looked better in these ads. Somehow, they made your forehead a little bit smaller in this ad, and you look pretty good.’”
—Former Speaker Dade Phelan discussing his bill (HB 366) that requires disclosures on political advertising that contains altered media.
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