TDCAA Legislative Update: Week 4

February 7, 2025

Setting the tone for the legislative session, Governor Greg Abbott declared his emergency items. It is the Governor’s show for the first 60 days, as lawmakers can pass only bills pertaining to his emergency items. It is up to the legislature to produce results that will accomplish his goals. (Or else … what? Well, that used to be an open-ended question, but last year’s GOP primary elections finally put some meat on that bone, didn’t it? Republican legislators are now on notice.)

Governor’s Emergency Items

In his “State of the State” speech this past Sunday, Governor Abbott designated seven topics as legislative emergencies. They are school vouchers, property tax relief, water infrastructure, teacher pay raises, workforce training, creation of a state cyber command center, and bail reform. For specific details about each, you can read his prepared remarks here; the text of his remarks includes hyperlinks to more details about each of those topics. We will do a deeper dive into bail reform below, but first we will address other goals Governor Abbott announced that could impact prosecutors despite not being “emergency items”—his wish list, if you will.

The governor called on the legislature to protect private property rights and pass tougher laws to immediately remove and prosecute squatters. (What that looks like in bill form is not clear just yet.) In regard to human trafficking—always a popular topic inside the capitol dome—Abbott advocated for eliminating parole for child traffickers (without further detail). The governor also reiterated his directive to Texas state agencies to assist the Trump Administration with arresting, jailing, and deporting illegal immigrants, and he called on cities and counties across the state to fully cooperate with these efforts. Abbott declared the Venezuelan gang known as Tren de Aragua as a foreign terrorist organization and directed the Department of Public Safety to dispatch strike teams to round up the gang members. (It is unclear if those cases will be handled in state  or federal courts due to this designation, but don’t be surprised if you see those cases hit your desk.) Abbott also invoked the name of 12-year-old Jocelyn Nungaray from Houston, who was (allegedly) raped and murdered by two Tren de Aragua gang members, and he called for “legislation imposing the death penalty on anyone convicted of murdering a child like Jocelyn.” (It is unclear what exactly he meant by that phrase, but we’ll all find out soon enough.)

Finally, the Governor announced his support for “Senator Hughes’s election integrity bill to restore power to the Attorney General to prosecute election violations.” This was likely a reference to Senate Bill 846 by Hughes (R-Mineola), which gives the AG jurisdiction to prosecute election crimes if local prosecutors do not act on a law enforcement referral within six months. That same idea was filed last time around as SB 1195, which passed the Senate on a party-line vote too late in the session to get through the House. (To see who showed up in Austin to support or oppose that legislation in 2023, read this committee witness list.) Of course, we all know such a bill violates our state’s separation of powers doctrine, as ably explained in the Court of Criminal Appeals’ various Stephens opinions, but … well, who’s to say how that might go next time the Court gets such a case? (Actually, we all know how some people think that will go—read to the end of this email for that quote.)

The wish list of subjects that did not make the governor’s emergency item declaration are similar to an AG opinion: persuasive, yes, but not binding on the legislature. How that co-equal branch of government will process them remains to be seen, but the key thing to note is that these wish list topics are not entitled to the same head start given to the governor’s emergency items.

Bail Reform

Governor Abbott did give that head start to bail reform. As you know, the Texas Constitution currently states that “all prisoners shall be bailable, unless for capital offenses when the proof is evident.” There are limited exceptions to that rule, but the narrative in many circles is that those exceptions are woefully inadequate to stop the hundreds of murders by such offenders that have occurred statewide. As a result, the governor’s emergency proclamation (which can be found in PDF form here) permits the legislature to immediately consider and vote upon “legislation reforming the bail system in Texas to end revolving door bail practices that put dangerous criminals back on the streets.”

So, what does that mean for this session? Well, we got a potential glimpse of the answer the day after the governor’s speech when Senator Joan Huffman (R-Houston) filed four different bills to help accomplish the governor’s bail reform goals. Her press release announcing their filing can be viewed on X/Twitter, but we can give you a brief summary here <but note some numbering changes added at the end of this segment>:

  • Senate Bill 9 will likely be this session’s omnibus bail reform legislation (as indicated by the lieutenant governor assigning it one of his prestigious single digit bill numbers). It requires elected judges (as opposed to their appointed magistrate helpers) to set bail on certain high-risk offenders, expands the list of crimes for which release on personal bond is unavailable, provides a mechanism for prosecutors to challenge insufficient bail, and more.
  • Senate Bill 1047 enhances the Public Safety Report System created by prior bail reform legislation by providing new procedures for defendants with family violence or protective order issues and making other improvements.
  • Senate Bill 1048 bans the use of taxpayer money by a political subdivision to fund charitable bail organizations.
  • Senate Joint Resolution 17 proposes an amendment to the Texas Constitution to allow judges to deny bail to the most violent offenders who pose a threat to public safety, regardless of the defendant’s financial resources. This constitutional change allows judges to make decisions based on risk, not resources. Senator Huffman passed similar measures through the Senate in previous sessions, but they have never passed the House due to the requirement that joint resolutions receive approval from two-thirds of each chamber, giving House Democrats a veto over the legislation when they remain unified. This could be *the* bail reform battleground this session.
  • Senate Joint Resolution 49 would mandate the denial of bail for an illegal immigrant accused of a felony. Intended to assist the Feds in implementing the recently enacted Laken Riley Act, which President Donald Trump signed into law last week, this is likely to be the most controversial of all the bail legislation.

Soon after being filed, the Senate Criminal Justice Committee posted notice for its first hearing of the session to consider these bills. The hearing will be held on Wednesday, February 12, at 8:00 a.m. in Capitol Extension Room E1.016.

<UPDATE: Right before this went to press, Sen. Huffman refiled several of these measures with new numbering: SJR 49 will now be new SJR 1 and be called the “Laken Riley Act,” SJR 17 will go forward as SJR 5, and SB 1048 will be SB 40. Those refiled bills have now replaced the original bills posted for Wednesday’s hearing; see that link above for more details.>

We have more background information about these bills and this hearing than we can share here, so if you want to get publicly involved at the committee hearing in a constructive way, you might want to reach out to us first. However, one thing you can do from the comfort of your office is provide us with examples of past cases that would have been positively or negatively impacted by these proposed bills. You can send those “horror stories” to Hector or Shannon and we will get them to the people who requested them before Wednesday’s hearing.

Discovery legislation

As if this weekly update wasn’t already chock full of hot potato issues, we have yet another one to toss your way!

Yesterday, Sen. Huffman filed Senate Bill 1124, a proposal to address the fallout from the Court of Criminal Appeals’s opinion in State v. Heath (from June 2024). If you aren’t familiar with Heath, here are some resources off our website for you:

In a nutshell, the bill attempts to end the unfair gamesmanship occurring in the wake of the Heath opinion by clearing up some ambiguities in CCP Art. 39.14 identified by the CCA. The bill also creates procedures and safeguards to encourage resolution of discovery disputes before trial, and it specifically limits a court’s ability to suppress “Heath evidence” absent bad faith by the disclosing party or incurable prejudice to the receiving party. Importantly, the bill does not impact prosecutors’ duties in regard to exculpatory, impeaching, or mitigating evidence benefitting a defendant (the heart of the Michael Morton Act revisions in 2013). Read the text of the bill for yourself and see what you think.

If you are interested in learning more about this bill, the collaborative process within our service group that led to it, or how you can be constructively involved with the bill going forward, please email Dallas County Asst. CDA Paige Williams.

Next week

Looking ahead, we anticipate Speaker Dustin Burrow (R-Lubbock) will announce his House committee assignments, while in the Senate, those committees with jurisdiction over the governor’s emergency items will take up and consider bills on those topics. The Texas Constitution prohibits legislative committees from hearing non-emergency bills until the 30th day of a session (which is February 13 this year), so while many advocates have accused the House of dragging its heels to date, there hasn’t actually been much for committees to do until next week. That is a feature of our legislative system, not a bug, and there are good reasons for it.

Quotes of the week

“I, along with millions of Texans, am fed up with violent, repeat offenders being released into our communities by judges that are more concerned about their own political agenda than the safety and security of law-abiding Texans.”
           —State Sen. Joan Huffman (R-Houston), author of SJR 17 (now refiled as SJR 5), in a press release announcing the filing of her measure to amend the state constitution to allow judges to deny bail in more circumstances. The legislation has been deemed an emergency item by the governor.

“People need to know who their neighbors are. It’s just a matter of putting it out there, making sure the messaging is appropriate, and letting people know that these registries do exist.”
            —Rep. Liz Campos (D-San Antonio) explaining the reasoning for filing House Bill 2325 that would establish a dangerous dog registry in Texas.

“There was a news report that we are going to target school buses and children. It is absurd. If you want to talk about abuelas, my abuela is a naturalized citizen from Mexico. We surely aren’t targeting abuelas. We are not targeting U.S. citizens.”
            —U.S. Border Patrol Chief Mike Banks responding to Alice ISD’s letter on its website warning that U.S. Border Patrol agents could board school buses carrying students to extracurricular activities near the Rio Grande Valley.

“The Legislature needs to immediately fix the voter fraud issue, reauthorize me to do it, and make the Court of Criminal Appeals strike it down again. Because right now … we’re not a majority, but the message has been sent.”
           —Texas Attorney General Ken Paxton, expressing support for a bill that would authorize him to unilaterally prosecute certain types of crimes despite the Court of Criminal Appeals’s original 8–1 ruling in Stephens that such a law would violate the state’s constitution.

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