[Updated and corrected March 13, 2021]
The 87th Regular Session is 40 percent done on the calendar but only 20 percent done based on its output, so while many of you enjoy Spring Break next week, the Lege will be making up for lost time. That means committee hearings on bills about grand juries, civil asset forfeiture, hate crimes, discovery, and human trafficking on Monday, and an expansion of AG prosecution authority on Tuesday. Read on for details!
COVID and the courts
Last Friday, we sent out our Week 8 update with the wry observation that “[k]nowing our luck, new guidance from that court will probably be issued 30 minutes after we hit ‘send’ on this update.” In fact, it only took 13 minutes. Are we good, or what?
Now that the governor’s Executive Order GA-34 has taken effect to “re-open Texas 100 percent” and “eliminate statewide mask mandates,” some are realizing that it doesn’t necessarily do that in practice. Not only are private businesses free to adopt policies for their property, but those who run your local courthouses and courtrooms can still decide whether or when to require masks, distancing, temperature checks, and whatnot.
In that vein, the Texas Supreme Court issued its 36th Emergency Order of the COVID-19 pandemic last Friday afternoon. In a nutshell, the order:
- rescinds prior edicts that court proceedings must be conducted remotely (while still encouraging it);
- requires a court to permit remote participation of some parties or witnesses upon request and a showing of good cause; and
- defers to local presiding judges on what health and safety precautions should be imposed in local courtrooms and courthouses.
As with past orders from that court, the Office of Court Administration has issued court operation guidance for implementing this new emergency order. In addition to imposing several specific requirements for in-person jury proceedings, those guidelines also prohibit judges in jailable criminal cases from conducting any remote jury proceedings without the consent of the prosecution and defense. For more details, please refer to OCA’s Court Operations Guidelines webpage.
Of course, all this talk about in-person proceedings is fine in theory; how you convince your local constituents to come serve on in-person grand juries and petit juries is another matter altogether. We have no easy solutions for that problem, so … good luck with that!
COVID and the capitol
For those coming to the legislature this spring, things remain the same (for now). Rapid COVID-19 testing is available for visitors and masks are “encouraged” while doing business in the building, according to the latest information from the State Preservation Board (which operates the state capitol). However, each chamber governs the rules and conduct of its own members, and neither has announced a change in those rules yet, so we will proceed accordingly until told differently.
Money for nothing and your hot checks for free
The “American Rescue Plan Act of 2021” finally passed Congress this week. The $1.9 trillion aid package includes almost $17 billion in pandemic aid for our state government and another $10+ billion for city and county governments in Texas. This one-time windfall has the potential to totally change the tenor of the state and local budget discussions. As one pundit put it, after all the money is handed out, it will be as if the pandemic recession never happened (at least from the perspective of government budgets).
What that means for your office remains to be seen. Can counties use some of that funding to help you add staff to address your docket backlogs caused by the pandemic? Perhaps. (That was a question that Congressman Pete Sessions (TX-17) asked the Treasury Department this week, but without a clear answer.) This latest round of federal government largesse does appear to come with fewer spending restrictions than past aid packages, but there are still plenty of details to work out. More information will follow once the final version of the package is reviewed. In the meantime, you can check out TAC’s analysis of the new law that was posted last week and includes a list of what each Texas county might receive.
Senate Finance subcommittees
The Senate Finance Committee announced its subcommittee work groups, so we now know that the senators tasked with going over the budget for the judicial branch (plus other public safety agencies) will be Sens. Joan Huffman (R-Houston), chair; Donna Campbell (R-New Braunfels), Charles Schwertner (R-Georgetown), and John Whitmire (D-Houston). As previously reported, all funding items relating to prosecution are currently fully funded in the Senate version of the next budget, but if one of your senators is on this subcommittee, consider touching base with Rob so he can keep you posted if anything goes south during the session.
Committee news
Committees started taking testimony on bills this past week, but most were left pending. If you were unable to come to Austin to testify for or against a bill we notified you about last week but you still want to weigh in, better start making those phone calls to committee members ASAP because last week’s bills might be voted upon as soon as Monday.
Committee notices
The following bills have been posted for hearing in committee this week. For a full agenda of all bills to be heard at each meeting, please click the link in the committee’s name.
Monday, March 15
Senate State Affairs – 9:00 a.m., Senate Chamber
SB 9 by Paxton creating new civil and criminal penalties relating to abortion
SB 798 by Nelson relating to birth records and DLs for victims of family violence
SB 808 by Hughes relating to the recovery of attorney’s fees in civil cases
SB 1173 by Hancock creating new criminal penalties relating to abortion
SB 1647 by Perry criminalizing conduct related to certain types of abortions
House Juvenile Justice & Family Issues – 10:00 a.m., Room E2.014
HB 193 by Rose destroying juvenile records relating sex trafficking referrals
HB 488 by Wu relating to a juvenile’s physical appearance in court
HB 576 by White / HB 1319 by Noble establishing a deadline for rendering a final order in certain CPS cases
HB 1193 by Wu authorizing the sealing of certain juvenile determinate sentence records
HB 1372 by Guerra relating to a protective order applicant’s cell phone service
HB 1401 by A. Johnson authorizing juvenile sealing applications/orders to be sent electronically
House Criminal Jurisprudence – 2:00 p.m., Room E2.010
HB 73 by G. Hinojosa banning use of a “gay panic defense”
HB 132 by Canales requiring clear and convincing evidence in asset forfeiture cases
HB 148 by Toth extending the statute of limitations for certain family violence crimes
HB 251 by S. Thompson requiring a criminal conviction for asset forfeiture
HB 366 by Sherman extending the duration of hate crimes protective orders
HB 367 by Sherman relating to the reporting of and punishment for certain hate crimes
HB 375 by Smith including disabled victims w/in continuous sexual abuse offense
HB 667 by Dutton requiring a criminal conviction for asset forfeiture
HB 744 by Collier requiring law enforcement agencies to provide info to prosecutors
HB 789 by Geren changing the punishment range for tampering with evidence
HB 978 by Metcalf relating to releasing unclaimed property to an owner’s victim|
HB 1313 by Deshotel requiring the recording of all grand jury testimony
HB 1402 by A. Johnson revising hate crimes based on orientation or gender identity
HB 1441 by Schaefer shifting burden for innocent owner defense to state
HB 1540 by S. Thompson relating to human trafficking (omnibus bill)
Senate Local Government – 2:00 p.m., Extension Auditorium [*corrected]
SB 252 by Bettencourt granting the AG original concurrent prosecution jurisdiction over abuse of office crimes
Tuesday, March 16
(no relevant hearings)
Wednesday, March 17
House Corrections – 8:00 a.m., E2.026
HB 408 by Metcalf relating to veterans treatment court programs
HB 460 by Shaheen barring the solicitation of pen pals by certain TDCJ inmates
HB 787 by Allen allowing probationers to have contact with certain prohibited persons
House Judiciary & Civil Jurisprudence – 8:00 a.m., E2.014 [*updated]
HB 167 by Ortega authorizing temporary restraining orders in certain nuisance actions
HB 228 by Murr allowing electronic recording devices in lieu of court reporters
HB 1071 by Harris regulating the use of therapy dogs in civil & criminal cases
HB 1374 by Minjarez creating privileged communications in sexual assault cases
HB 1495 by Dutton regarding attorney’s fees in certain governmental lawsuits
HB 1706 by Neave creating specialty courts for sexual assault victims? (unclear)
HB 1880 by Schofield linking judicial salaries to the consumer price index
House Licensing & Administrative Procedures – 10:30 a.m. or upon adj., JHR 120
HB 770 by Wu regulating poker clubs in certain counties
Thursday, March 18
Senate Jurisprudence – 9:00 a.m., Betty King Committee Room (2E.20)
(not posted yet; check here for future postings)
House Homeland Security & Public Safety – 10:30 a.m. or upon adj. [*updated]
HB 8 by Pacheco relating to the hiring of peace officers
HB 496 by Wu requiring peace officers to display name and identification
HB 766 by Harless requiring certain bond information entered into TCIC
HB 1035 by Dutton limiting the use of force by peace officers
HB 1172 by Howard authorizing counseling advocates at sexual assault interviews
HB 1674 by Holland mandating blood draws after certain DWI arrests
Prosecutor rotation
Special thanks to Laurie English, 112th Judicial DA (Ozona), for helping to man the ramparts this week!
If you want to come to Austin to see how the sausage is made, contact Shannon for details on how to get involved. We have several slots available for prosecutors to come to Austin and help craft the laws and appropriations that directly impact you, so check your calendar and find a good time between now and mid-May to participate in the three-ring circus that is the Texas Legislature.
Bill filing deadline
The deadline to file general bills this session is 6:00 p.m. today. There will be upwards of 2,000 bills filed this week alone, so please be patient with us as we slog through them all.
We are caught up with most bills filed through the early part of this week and—as is common every session—some very interesting bills are being filed right at the deadline. Among those we noted from this past week are the following new bills or new twists on old ideas:
HJR 4 by Kacal (constitutional amendment to allow denial of bail in some cases)
HB 20 by Murr (governor’s revised bail bond reform proposal; enabling law for HJR 4)
HB 2916 by Schofield (OAG prosecution of public order and public corruption crimes—as we predicted)
HB 3392 by Moody (judicial commutation on motion of a prosecutor)
HB 3508 by Ellzey (OAG prosecution of certain riot-related crimes)
SB 10 by Bettencourt (ban on local government funds being used to impact legislation)
SB 23 by Huffman (ban on defunding the police)
SB 24 by Huffman (transparency in peace officer background and hiring)
SB 990 by Gutierrez (notice and hearing before court can increase bail)
SB 1119 by N. Johnson/HB 3421 by G. Hinojosa (defense lawyer invited into grand jury)
We hope to have a more thorough review of bill filings next week (assuming we can still see straight after reviewing all of them). Meanwhile, to view the bills that would amend the Penal Code or Code of Criminal Procedure or that fall into our “Bills to Watch” category, use the links on the right-hand side of our Legislative page. And as always, if you ever have questions about any piece of legislation, please contact Shannon for more scoop.
Scattershooting
Here are some articles we read this week that you might find interesting:
- “Analysis: How Gov. Greg Abbott’s attack on ‘defunding the police’ has divided Texas Democrats” (The Texas Tribune)
- “Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic” (The Texas Tribune)
- “As Federal Courts Strike Down Bail Practices, Texas Chief Justice Proposes Reforms” (Arnold Ventures)
- “12 jurors must set aside what they saw in the George Floyd video. How will lawyers find an impartial jury?” (USA Today)
- “Michigan Zoom hearing adjourned when attorney spots alleged assaulter, victim in same home” (USA Today)
Looking ahead
The House will re-convene on the floor Monday afternoon (and may even vote on bills later in the week), while the Senate re-convenes on the floor on Tuesday. Now that bill filing is done, all eyes turn to committee hearings. This is the time of the session when the public—and you—can have the greatest impact on legislation. (Game on!)
Free CLE opportunity
The Texas Tech Law Review is hosting its Annual Criminal Law Symposium on April 8–9, 2021. The two-day symposium will cover double jeopardy, the Fourth Amendment, confessions, and substantive criminal law. For more information about this free live-streamed CLE event, please go to the Symposium registration page. If you have any questions, please contact Neely Brown at [email protected].
Quotes of the Week
“I’m a libertarian and believe there are very few things government should do, [but] power and water and sewage are things that government should be doing.”
—Bryan Frasier, a computer engineer from Tarrant County, as quoted in a story on the results of a new Dallas Morning News/UT-Tyler poll released in the wake of the recent storms and resulting power and water outages.
“It looks almost like the district had a hernia across [I-]35 to encompass my house.”
—Overheard at a meeting of the Senate Redistricting Committee this week.
“There isn’t any specific provision in the law that places that responsibility on a certain agency or party. It’s not clear if it’s the role of the judge, the sheriff, the police, or a prosecutor. Because of that, nothing happens. That is why we need legislation to address this issue.”
—Staley Heatly, 46th Judicial DA (Vernon), expressing support for legislation on gun surrender protocols for family violence offenders.
“We hope this isn’t a case of moving too fast, too soon.”
—Grant Scheiner, president of the Texas Criminal Defense Lawyers Association, urging judges to remain vigilant against the coronavirus in the wake of the state supreme court’s latest emergency order lifting many of its previous restrictions on court proceedings.
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