Having now made several trips to the Capitol, we’re going to warn any of you who come to Austin this session that the building is eerily quiet. If you’ve spent any time in the middle of the beehive that is the capitol during a session, it’s nothing like that right now. For a deeper look into how the building looks and sounds during this sporadic session, check out this video from the Texas Tribune.
Big Issues
In last week’s update, we mentioned five general policy areas that have the potential to cause a meltdown at the Lege: policing, budget, elections, redistricting, and COVID. This week, we’re going to examine five other areas of controversy this session that may be especially important to prosecutors: forfeitures, bail, grand juries, discretion, and advocacy.
5. Civil asset forfeiture
Texas’ current civil asset forfeiture system has long been in the crosshairs of criminal justice reformers on the left and right ends of the political spectrum, even though bi-partisan legislative changes made in 2009, 2011, and 2013 have helped ensure that it works as intended. Nevertheless, multiple bills have been filed again this session to limit or abolish the current forfeiture system, something the Lege has considered—and rejected—the past three sessions. What is new this session is that some usual forfeiture opponents also campaigned this summer and fall against “defunding” the police—which is exactly what could result if the current civil asset forfeiture system were scaled back or abolished. The fact that a vote to limit or abolish civil asset forfeiture can be easily portrayed as a vote to “defund the police” by an election challenger may make some legislators less likely to want to risk that kind of headache down the road, but don’t underestimate the ability of other legislators to ignore the cognitive dissonance they have created in professing two contrary positions this session and try once again to limit this crime-fighting tool.
Bills to watch so far: HB 132 by Canales (D-Edinburg), HB 251 by S. Thompson (D-Houston), HB 667 by Dutton (D-Houston), HB 1331 by Canales (D-Edinburg), HB 1441 by Schaefer (R-Tyler).
4. Bail/pre-trial release
The topic of “bail bond reform” is a great example of the inadequacy of the word “reform.” From the left, “reform” means eliminating cash and surety bail and letting out most defendants before trial on a form of release that may or may not include pre-trial supervision by government officials; while from the right, “reform” means ending revolving-door releases on low or no bail that lead to additional victimizations by dangerous offenders, something that has been especially noticeable in Harris County (despite the best efforts by the Harris County DA to obtain higher bond amounts on dangerous offenders who are unlikely to re-appear for trial). Thus, anytime someone mentions “bail bond reform” to you, be sure you know which type they mean before proceeding.
There have been at least 16 bills filed to date that amend CCP Ch. 17 or otherwise alter pre-trial release practices, but none of them are likely to be the bail bond reform bill of the session. Instead, you can expect bills still to come from both sides of the “reform” debate. From the “release” camp, the Texas Judicial Council, et al., will make a third attempt to impose a default release presumption in most cases along with an unwieldy preventive detention mechanism, all of which we summarized in more detail in this update from last session; while on the “no revolving door” side, the governor has expressed support for further restrictions on pre-trial releases in the form of:
- expanded criteria that must be considered by judges when setting bail;
- limits on which judges are authorized to set bail in certain cases; and
- the creation of a uniform statewide court management system that will provide judges more criminal history information when setting bail (although why they can’t get that for free from their local sheriff or jailer is unclear).
And just yesterday, State Sen. Joan Huffman (R-Houston), chairwoman of the new Senate Jurisprudence Committee, issued a press release promising to file a bill with provisions similar to some of those supported by the governor. How this will all shake out in the end in anyone’s guess, but it will definitely be a hot topic again this session, and one that needs the input of prosecutors if it is to be resolved in a manner that improves our criminal justice system.
3. Grand juries
Those of you working in the trenches may see this heading and think, “Ah, finally! The Lege is ready to help us fix the grand jury problems we’ve experienced during the pandemic!” But alas, that is not what we refer to.
While prosecutors throughout Texas have struggled to convene functional grand juries to review the felony cases required to be presented to a grand jury, leading to massive backlogs and contributing to local criminal justice systems grinding almost to a halt, the people most interested in tinkering with grand jury proceedings are those who want to make the process more adversarial, more time-consuming, and more expensive. We refer, of course, to efforts like those from the previous two sessions that we summarized in greater detail in this 2019 update, when a version of the bill passed the Senate before dying in the House in the waning days of that session. These measures have been almost uniformly opposed by prosecutors for the past 30 years, but pressure behind the scenes from several current and former statewide elected officials may put them front-and-center once again this session.
Bills to watch so far: HB 179 by S. Thompson (D-Houston) (the Texas Public Policy Foundation’s omnibus reform bill), HB 713 by Reynolds (D-Missouri City) (defense lawyer in the grand jury), HB 1313 by Deshotel (D-Beaumont) (recording of all grand jury witnesses).
Meanwhile, for those of you still struggling with seating in-person grand juries in a safe manner, we’ve updated our COVID-19 grand jury resources with a remote grand jury policy submission from the 49th Judicial DA’s Office (Webb and Zapata Counties).
2. Prosecutor discretion
Once again, the questions of who can prosecute what cases and how they should be prosecuted are shaping up to be go-to-the-mattresses-type issues for local prosecutors this session.
Despite repeated rejections over the past 20 years (or more) of the idea of giving the state attorney general greater power to independently prosecute local crimes, we expect that proposal to be filed and pushed again this session with the active encouragement of the current holder of that office. We know this is a frustrating issue for many of you who hold the assistant prosecutors in that office in high regard and rely on their help from time to time, but the more tenured of you know that this has long been an issue regardless of the party or personality holding that office.
Last session this topic was in play until the waning days of the session, and this session it may be even further complicated by those at the capitol who want to dictate not just who, but also how, certain cases should be prosecuted. For instance, one faction in the House came out this week in favor of “revoking the governmental immunity of local prosecutors who refuse to charge rioters and other violent actors,” while the governor and a few others have objected to certain local prosecutors’ handling of various low-level misdemeanor property and marijuana offenses. Combine that with the continued mission creep and concentration of prosecution and policing powers in the state attorney general’s office that has occurred over the past 20 years and you have a recipe for a busy session of whack-a-mole this spring.
Bills to watch so far: HB 715/HJR 41 by Reynolds (D-Missouri City) (AG prosecution of peace officers), SB 252 by Bettencourt (R-Houston) (AG prosecution of abuse of office cases [yes, you read that correctly]).
1. Advocacy
If you read through the list above and think, “Wait a minute, these are the same issues I have to go to Austin to work on every session!”—you are correct. And it’s that successful work that some in Austin are not happy about, so they intend to make it more difficult in the future.
We’ve always considered it a recognition of your effectiveness at the state capitol that some people want to muzzle your voice there. (Congratulations?) But unfortunately, those of you who have come to Austin in the past to educate legislators and advocate for or against certain policies have been lumped in with various other local officials and deemed “suitable for cancellation” by a faction who have made it a priority to end what they call “taxpayer-funded lobbying.” We put that term in quotes because it is a poorly-defined effort that changes in scope and focus depending on who or what is the target; it excludes prosecutors in some iterations (“Abolish the Texas Association of Counties”) but includes them in others (“Local officials must spend their personal funds to advocate for their work-related matters in Austin”). But make no mistake: Your—and TDCAA’s—inclusion on the “naughty list” is intentional, and it is a result of your past opposition to some of the issues on this list. As a result, you can expect this to again be an ad hominem, kill-the-messenger frontal assault approach on locally-elected officials. The Senate version of this bill passed the Senate last session before dying on the House by an 18-vote margin, but proponents believe they have gained more supporters this session, so it will have to be confronted again unless you want to forego your ability in the future to be effective advocates on the issues important to you, your office staff, and your constituents.
Bills to watch: SB 234 by Hall (R-Edgewood), HB 749 by Middleton (R-Wallisville).
State budget
The House and Senate filed their versions of the “baseline” state budget last week which will serve as a starting point for the Senate Finance and House Appropriations Committees to craft the state’s budget for the 2022-2023 biennium. Both bills—HB 1 and SB 1—spend about $119.7 billion for the biennium which, according to current revenue estimates, is $7 billion too much. (The comptroller has estimated that the state will generate $112.5 billion in the next biennium, which is a 0.4 percent decrease from the current biennium.) The filed budgets reflect a five-percent overall reduction in spending, but more cuts or delays in spending may be needed unless the comptroller provides an improved revenue outlook later in the spring, legislators tap the Rainy Day Fund, or more federal COVID relief funds fill the gap.
As for the judicial branch in general, the good news is that, at only 0.4 percent, it is a very small part of the state’s budget, which may be why budget writers decided not to apply the five-percent reduction in baseline budgets to judicial salary items, including those that fund district and county attorney salaries, supplements, and longevity pay. We had previously predicted that the legislature would likely restore any salary cuts during the process if they started with them in the baseline bills, but it is much less stressful when you start budget deliberations with your salaries intact. (And your legislators may be thankful that they don’t get hundreds of calls from judges and prosecutors asking for their salaries to be restored!). That said, nothing is set in stone yet. Finance Committee hearings begin February 8 and they will take up judiciary-related items on February 11, so we will have a better idea of how these items will be handled afterwards.
The one exception to the full funding of prosecution-related items in the baseline budgets can be found in HB 1, which cuts $5,000 from the annual apportionment funding for felony prosecutor offices serving jurisdictions of less than 50,000 people. This reduction from $27,500 to the statutory minimum of $22,500 (as in larger offices) would save the state about $1 million over the biennium, but we all know how crucial that extra $5,000 per year is to smaller prosecutor offices. Once the House committees are named, we will have a better idea about whom you can talk to on this issue if it affects you; until then, keep your powder dry.
For those of you who don’t want to wade through the 1,000-page filed versions of HB 1 and SB 1, summaries of them, complete with informative graphs and charts, can be found here and here, respectively.
Committee testimony
Speaking of the state budget, the Senate Finance Committee has posted a string of notices for hearings in February, providing us a first glimpse into how that chamber might handle public input this session. As currently posted, that committee will allow oral and/or written testimony from members of the public who pre-register and provide proof of a negative COVID test prior to entering the hearing room. Whether those rules will be used for all Senate committees remains to be seen, but if you anticipate testifying before a Senate committee this session, you might check out those detailed instructions now to get a head start on how that may proceed.
Looking ahead
The governor will give his State of the State Address on Monday, February 1, at 7:00 p.m.—a prime-time first, and one attributable to a pandemic that makes it unwise for the combined House and Senate to meet in person on the House floor, as is customary. That address will be telecast live on TV and the internet by various news outlets, during which time the governor will lay out his policy agenda for the current session and proclaim certain issues as “emergency items.” That designation allows the Lege to vote on them before the normal (and constitutional) 60-day wait after the beginning of a session to vote. You can learn about those emergency issues in your local news, but watch this space later in the week for insights into what those moves might mean to you.
Joining those of you who take a #Netflixandchill approach to watching the State of the State Address will be most members of the legislature, whose presence on their respective floors is not required until Tuesday, February 9, thanks to a lengthy adjournment agreed to after this week’s brief floor session last Tuesday. The other big happening expected during this two-week break is the naming of House committees, which the speaker will make public and then turn off his cellphone and scoot out of town to avoid any members who are less than pleased with their assignments for the session. (Past speakers always seem to become avid hunters of whatever is still in season the weekend after committee assignments come out, usually on a lease that has very poor cellphone service. Go figure.)
Bill filings
We are tracking more than 550 bills in more than 40 different bill tracks for various topics so far. For a list of bills filed through yesterday that would amend the Penal Code or Code of Criminal Procedure or that fall into our subjective “Bills to Watch” category, use the links on the right-hand side of our Legislative page. If you ever have questions about bills affecting a particular issue, feel free to contact Shannon.
DNA testing grants update
We mentioned last week that the governor’s Criminal Justice Division has grant funds available for the forensic testing of physical evidence in criminal cases, and this week we learned that the deadline for applying for those funds has been extended from February 11 to March 14, 2021, along with a technical correction to make sure all felony prosecutor offices are eligible to apply. This is a welcome resource that has been included in the governor’s office new budget request for FY 2022-23, but you know how government funding works: Use it or lose it! So, if you have a good idea for making this grant work for you and your community, now is the time to put that plan to paper and send it in. For more details, see the “District Attorney Testing of Forensic Evidence” announcement listed on this webpage and download the details as a PDF.
Quotes of the Week
“I am working with the legislature to develop strategies to end the revolving door bail system that we have in Texas.”
—Gov. Greg Abbott (R-Houston), at a press conference on public safety issues last Friday.
“We’re going to see, historically, the largest one-year rise in murder that we’ve ever seen.”
—Jeff Asher, criminal justice data consultant, who recently noted that it’s been more than 50 years since the U.S. saw as large an increase in murder rates as in 2020.
“We’re going to have to use some of the tactics that the left do [sic]. I’m not talking about violence, of course, but I am talking about showing up at state reps’ or state senators’ offices, showing up at their homes, not tormenting their families, I’m not advocating for that, but they got to know that we’re deadly serious about this.”
—David Robert Thomas, self-professed Texas secessionist, expressing support during a virtual town hall meeting for HB 1359 by Biedermann (R-Fredericksburg), the “Texas Independence Referendum Act.”
“This is the tip of the spear. If we succeed, this is going to be the piece that succeeds first. … If we can’t get this done, it’s likely that there’s not much they can get done this session.”
—Scott Henson, aka the “Gritsforbreakfast” blogger, on renewed attempts to prohibit arrests for most fine-only offenses this session following a recent wrongful arrest in Tarrant County.
“My guess is you all will be back in a special session sometime this summer or early fall.”
—Lloyd Potter, Texas state demographer, explaining to the Senate Redistricting Committee the impact of this week’s news that the census data needed to finalize their maps won’t arrive until this session is over.
“And here’s a bonus tip: Don’t try to make plans with nobody on Sundays. Sunday is for church and football. They take both of those very seriously.”
—Nikalaus Peiler, professional photographer who recently moved from California to San Antonio, in a viral TikTok video he posted last week on what his fellow Californians can expect if they move to Texas.
###