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Interim Update: December 2021

December 20, 2021


TDCAA’s World Headquarters will close this Thursday afternoon and remain closed until January 3, 2022, so that we can recover from this God-forsaken mess of a year. Let’s all start 2022 with a fresh outlook, shall we?

Candidate filings

Now that the deadline for 2022 candidate filings has passed, we thought we’d share with you this Google doc spreadsheet we found online that lists 2022 candidates for major federal and state offices in Texas, including congressional and legislative races. The first post-redistricting election of every decade is often a free-for-all, and with retirements and resignations factored in, it’s likely that 30­­–40 percent of members of the upcoming 88th Legislature will be new to their jobs in 2023. On the other hand, almost one-third of current state legislators drew no opponent in a primary or general election and will coast back to Austin unscathed by campaign wounds. (That’s considered good map-drawin’ if you work under the big pink dome!)

As for local prosecutors, the 2022 election cycle impacts only the state’s 50 criminal district attorney offices (except for three judicial district attorney offices that have swapped with three criminal DAs to run in this cycle—nothing can ever be simple when it comes to election laws, can it?). We’ve done our best to put together a list of 2022 prosecutor elections that you can view HERE. It’s hard to get good information on some prosecutor races outside of the big metro jurisdictions, so if you have information correcting or supplementing what we’ve cobbled together so far, please email that to Shannon HERE and he will update our running list.

PS–Congratulations to the 75 percent of y’all up for election next year who have no primary or general election opponent!

AG authority

For constitutional law nerds (like us), Christmas came early last week courtesy of the Court of Criminal Appeals, which held in Stephens v. State that the state statute granting the Attorney General unilateral power to prosecute certain election law violations was unconstitutional because it violated the state constitution’s Separation of Powers Clause. Of course, this wasn’t anything prosecutors hadn’t been telling the Lege for years—and on your behalf, we’ve been publicly asserting that opinion in every legislative session in which it came up—but it is nice to have the Court back that reading of the state constitution on a topic that is so important to our members. Of course, the ruling didn’t make everyone happy, but perhaps that’s to be expected when the high court boxes your ears on something that you have made the center point of your re-election campaign.

So, what does this mean going forward? For starters, it probably won’t have much impact on the majority of election law cases because OAG’s Election Fraud Unit has historically worked cooperatively with local prosecutors in most cases. Nothing in the Stephens ruling limits the ability of OAG to prosecute crimes—election-related or otherwise—as long as the local prosecutor requests that type of prosecution assistance. So, in theory, things should run post-Stephens according to the standard model for other crimes. That said, the partisan nature of the “election integrity vs. voter suppression” fight in today’s politics will mean some legislators may decide that this ruling should be overridden. We will be keeping an eye out for proposed legislation on this topic—some of which is already being floated on social media—but barring this topic being added to the call of a special session, it will be 2023 before the state legislature can address this topic (if at all).

Scattershooting

Some articles that you might find interesting:

  • “Texas attorney general cannot unilaterally prosecute election cases, state’s highest criminal court rules” (Texas Tribune)
  • “Starting assistant DA salaries seem criminally low” (The National Jurist)
  • “What new data on gun recoveries can tell us about increased violence in 2020” (FiveThirtyEight.com)
  • “You can stand your ground in Texas. Even when you kill a cop.” (Texas Monthly)

Quote of the Week

“I don’t always storm the Capitol of the United States of America, but when I do, I prefer Coors Light.”
            —Paul Conover, of Keller, Texas, in a social media video of himself holding a “silver bullet” in Washington, D.C., on January 6, 2021. Conover is currently charged with several federal crimes relating to the breach of the capitol building on that date.

“If I can lose 30 pounds, it’ll be so worth it.”
            —Jenna Ryan, of Frisco, Texas, remarking on her 60-day federal sentence for breaching the U.S. Capitol last January.

“I was kind of in shock. I was surprised someone would be that stupid.”
            —April Hatch, a defendant in the 182nd District Court (Harris County), commenting upon the melee that broke out earlier this month when another defendant attacked a female bailiff and fought with a prosecutor and the judge who came to defend her.

“Saddle up, @RepMattSchaefer. The House is going to pass civil asset forfeiture reform again. #CJreform #txlege”
            —House Speaker Dade Phelan (R-Beaumont), in a quote tweet of an article highlighting a K-9 unit at Love Field in Dallas that helped interdict $100,000 in cash, which the story said would be subjected to forfeiture. (Subsequent inquiry showed this to be a federal forfeiture, not a state matter, but key details like that sometimes escape the notice of policymakers.)

[Merry Christmas and Happy New Year from all of us at TDCAA!]
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Interim Update: November 2021

November 29, 2021


“Omicron,” eh? Well, at least we finally found a real-world benefit to being forced to memorize the Greek alphabet before a lit match reached our fingers. #hazing

Latest SCOTX emergency order

We’re still in the midst of a statewide disaster declaration due to COVID-19, so the Texas Supreme Court issued Executive Order No. 45 on the Wednesday before Thanksgiving to renew its previous edict on various pandemic proceedings (which would have expired on December 1, 2021). This latest order appears to be the same as past orders in regard to the major pandemic issues—e.g., still no remote jury trials over a party’s objection in a jailable criminal case—and it will last until February 1, 2022, unless amended or extended before that date.

Fourth time’s the charm?

The conventional wisdom in Austin is that our governor will call a fourth special session to begin sometime in January to address federal vaccine mandates (and whatever else it is that a governor who is running for re-election wants to address). Most of the offerings on recent special session menus haven’t directly involved prosecutors, but the current border situation could raise prosecution-related issues during a called session, so we’ll keep you posted if we hear anything actionable.

Funny money

Speaking of the border, if you are wondering where the state got $3+ billion to throw at that issue during the most recent special session, look no further than the comptroller’s latest budget projections. Based on current trends—including a see-saw price of oil that is still higher than past years—the comptroller’s office predicts the state could have as much as $23 billion on hand by the end of this budget cycle (August 2023). Half of that will be Rainy Day Fund money and the other half will result from increased sales tax revenues. And those figures do not include federal pandemic relief still headed from Washington, D.C., to Texas. What this will mean for the 2023 legislative session remains to be seen, but we will keep an eye on this issue over the next year for the interest of those of you with innovative ideas for how the state could use its growing nest egg.

Elected Prosecutor Conference this week

Speaking (again) of the border, we will kick off our 2021 Elected Prosecutor Conference on Wednesday with a panel of local prosecutors who will provide their opinions of the situation from their front-row seats. Online registration for the program has closed, but walk-in registration will be open on location at the Rockwall Hilton Hotel, so come join us if your schedule allows! Details on dates, classes, and location are available HERE.

Scattershooting

Some articles that you might find interesting:

  • “Oregon’s pioneering drug law raises more questions than answers in early months” (Oregon Public Broadcasting)
  • “Dangling air fresheners and ‘faulty’ plates: These Texas police make the most minor traffic stops” (Houston Chronicle)
  • “New Study Finds Staffing Shortages, High Workloads and Low Compensation Among the Nation’s Largest Prosecutors’ Offices” (press release and report from the Association of Prosecuting Attorneys)

Quote of the Week

“Still in Texas. Worst drivers so far.”
            —Kent Wosepka, a cyclist from Massachusetts, posted online during on a cross-country ride from California to Florida the day before he was struck and killed by a motorist in Liberty County.

“On both sides, this is gonna be an angry and existential election.”
            —Zack Malitz, field director for Beto O’Rourke’s 2018 Senate campaign, making a prediction about the potential Abbott/O’Rourke general election campaign for governor in 2022.

“It’s pretty hard to think of situations where a Democrat does something so bad or a Republican does something so bad that their own partisans will en masse turn on them.”
            —Joshua Blank, research director of the Texas Politics Project, when asked to explain recent poll results for certain races on next year’s ballot.

“Just chill out. Drink a 7-Up. Eat a Moon Pie. Quit murdering people.”
            —Grady Judd, Polk County (FL) sheriff, offering his prescription to cure a recent surge in violent crime in his community.

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  • KP VAC Materials 2021

    • TDCAA Legislative Update: Called Session 3 – Sine Die

    October 19, 2021


    Hello, autumn. Hello, interim. We’ve missed you both.

    El fin?

    Your Texas Legislature adjourned its third called session sine die in the wee hours of this morning after passing around a dozen bills all told, several of which will be the subject of litigation for years to come. However, most of those bills don’t directly impact your day job, so we’ll leave the summarizing of those new laws to your news source of choice.

    There were really only three pieces of legislation in play related to your bailiwick this third special session. The first was SJR 1 by Huffman/Kacal, which would have placed a constitutional proposition to allow judges to deny bail in certain cases on a future ballot. As in past sessions, a party-line vote resulted in that measure falling two dozen votes shy of the two-thirds approval required to send it to the voters. Chalk that up to further proof that Texas Rs and Texas Ds are still not playing each other’s reindeer games during this year of Washington, D.C.-style partisan politics.

    The second measure was SB 5 by Lucio/Patterson, the anti-tethering dog bill, a previous version of which was vetoed by the governor during the regular session. After some minor face-saving tweaks, the governor appears ready to sign this version and put an end the #AbbottHatesDogs hashtag that went viral on social media after the earlier veto.

    The final piece of this puzzle was SB 8 by Nelson/Bonnen, the bill to spend the billions of federal dollars coming to the state as part of the American Rescue Plan Act (ARPA). These one-time expenditures ended up being spread among a variety of different articles in the state budget. Of relevance to your office are the funds dedicated to crime victims compensation, services, and related grants; increased mental health treatment options; and visiting judges and indigent costs related to working on local docket backlogs. What that will look like in action remains to be seen, but most of the state agencies you deal with got at least a little sumpin’-sumpin’ to help them address pandemic-related issues.

    Now we wait to see whether the governor will call a fourth special session. Rumors abound about another special session in January to take up as-yet-unnamed issues, but frankly, we don’t care enough to try to run those to ground right now. The 87th Legislature is leaving town, and we are going to take our wins where we can find them. Full stop.

    November conference

    Registration is open for TDCAA’s Key Personnel & Victim Assistance Coordinator Seminar to be held in Kerrville on November 10–12, 2021, at the Inn of the Hills Hotel. The TDCAA Key Personnel-Victim Services Board has planned outstanding workshops for Texas prosecutor staff and victim assistance personnel, so if you wish to send any of your office staff to this excellent training, CLICK HERE for hotel and registration information. 

    Scattershooting

    Some articles that you might find interesting:

    • “Texas law says jury panels must be chosen randomly. A Brazoria County official had a different idea.” (Texas Monthly)
    • “Texans will decide eight proposed amendments to the state Constitution on Nov. 2. Here’s what you need to know.” (Texas Tribune)
    • “Analysis: An election slogan you won’t hear in Texas in 2022” (Texas Tribune)

    Quote of the Week

    “I think my campaign has had a dramatic impact on his policies.”
                —Don Huffines, Republican candidate for governor, when asked about various recent actions taken by the current governor.

    “Have a nice day.”
                —Gov. Greg Abbott, when asked by a reporter about the prospects for a fourth called session in the near future.

    [This will (hopefully) be the last legislative update from Austin for a while.
    These messages will continue only as needed depending upon whether there is another special session or other interim business.]

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    TDCAA Legislative Update: Called Session 3, Update 1

    October 7, 2021

    It was great to see so many of you in Galveston for our 2021 Annual Conference last month! We hosted almost 900 attendees and speakers, and to date, we haven’t heard of a single COVID-19 case arising from that gathering. (Knock on wood!) #GoodJobGoodEffortPeople

    Drawing lines

    We are past the halfway point of this third called session and there is still precious little to report in the way of changes that would directly affect your business. But that doesn’t mean legislators aren’t working hard. They are. Picking your voters can be very hard work. And it may take more than one special session—especially regarding congressional maps, which are important, but not as important to legislators as their own districts. Legislators will take care of themselves first, then move on to the partisan battle over who goes to Washington, D.C. Whether that can be completed before the clock runs out on this third special session is anyone’s guess, but the main fireworks are set to go off next Tuesday when the new Texas House map gets debated on the floor of that chamber. Prepare your popcorn flavor of choice.

    We aren’t going to get into the nitty-gritty of the redistricting process or outcomes here, but some of you may find yourselves with unfamiliar legislators after the new maps are adopted, so if you have questions about where things stand, feel free to contact Shannon with those inquiries.

    Writing checks

    The other big lift of this third special session is deciding how to spend $16 billion of federal pandemic largesse. Those funds are separate from the money sent to local cities and counties and will be appropriated to state agencies for various purposes—some associated with the pandemic, others not so much. Initial drafts of those expenditures include money for crime victims’ compensation, crime victim-related grants, visiting judges, and indigent defense, but the final versions are yet to be hashed out.

    SCOTUS and COVID

    While we were in Galveston for our Annual Conference, the Texas Supreme Court issued yet another pandemic edict. The court’s Emergency Order No. 43 took effect on October 1, 2021, and will expire on December 1 (unless extended yet again). The order is mostly more of the same ol’ same ol’, but a new wrinkle exists in regard to the extension of deadlines; read this blog post from the Texas Municipal Courts Education Center (TMCEC) for more on that.

    November conference

    Registration is open for TDCAA’s Key Personnel & Victim Assistance Coordinator Seminar to be held in Kerrville on November 10–12, 2021, at the Inn of the Hills Hotel. The TDCAA Key Personnel-Victim Services Board has planned outstanding workshops for Texas prosecutor staff and victim assistance personnel, so if you wish to send any of your office staff to this excellent training, CLICK HERE for hotel and registration information. 

    Scattershooting

    Some articles that you might find interesting:

    • “Student-loan forgiveness to include more public-sector workers” (Wall Street Journal)
    • “Houston is ‘ground zero’ for fake temporary license tags, and a loophole in Texas law is to blame” (Houston Chronicle)
    • “Analysis: When Texas legislators admit they don’t know what they’re doing” (Texas Tribune)
    • “Police Officers Resist Getting Vaccinated for COVID-19, Now Their No. 1 Killer” (Wall Street Journal)

    Quote of the Week

    “Cutting off of hands is very necessary for security.”
                —Mullah Nooruddin Turabi, former justice minister during the Taliban’s previous rule over Afghanistan, on what punishments might be returning following the Taliban’s re-establishment of sharia law in that country.

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  • Elected Prosecutor Conference Materials 2021

    • TDCAA Legislative Update: Called Session 3 – Preview

    September 17, 2021


    The Lege is coming back for a third 30-day special session on Monday, September 20, 2021. We will be in Galveston all of next week for our 2021 Annual Conference, so there won’t be any legislative updates from us next Friday. Consider this your primer until we can get caught up in two weeks.

    Why?

    After a two week break to allow the participants to retreat to their respective sides and get fixed up by their corner teams, legislators will answer the bell and return to Austin to take up a new slate of issues put on their plates by the governor. Those are:

    • state and federal redistricting;
    • how to spend ~$16 billion in one-time federal pandemic relief funds;
    • weighing in on whether state or local governments can impose COVID-19 vaccine mandates; and
    • re-considering past bills on dog tethering and transgender school athletes.

    While several of these issues are controversial, none of the heat they bring is likely to match that of redistricting, that decennial exercise of political muscle in which legislators get to pick their voters. Redistricting happens at both a micro (by district) and macro (state and federal delegation) level. While the latter gets much of the ink, that big picture battle is decided by a relatively small group of chamber, committee, and caucus leaders. It’s at the micro level where the real hand-to-hand nastiness occurs among individual members who are fighting for their political lives. Bring your popcorn.

    New House committee

    The Speaker has created a new House Select Committee on Youth Health & Safety to address issues like coordination between the state’s child protective services, youth mental health services, and juvenile justice system. The committee will be chaired by State Rep. J.M. Lozano (R-Kingsville), vice-chaired by Rep. Ann Johnson (D-Houston), and will include as members Reps. Steve Allison (R-San Antonio), David Cook (R-Mansfield), Harold Dutton (D-Houston), James Frank (R-Wichita Falls), Stephanie Klick (R-Fort Worth), Jeff Leach (R-Plano), Eddie Morales (D-Eagle Pass), Victoria Neave (D-Dallas), and Toni Rose (D-Dallas). No word yet on how this committee work will mesh with that of other committees that traditionally address those issues.

    Hurricane Ida relief effort

    In the wake of Hurricane Ida, Louisiana has once again been dealt a hard hand. To help support Louisiana prosecutors and their families who have been adversely affected, our good neighbors at the Louisiana District Attorneys Association are partnering with their training foundation (LDATF) to raise funds for their benefit. Anyone interested in helping can CLICK HERE to donate. Any contribution—no matter the amount—will make a difference and is greatly appreciated. All donations are TAX DEDUCTIBLE under existing IRS rules.

    Scattershooting

    Some articles that you might find interesting (including a few from earlier this year that we are only just getting to read now that the legislature has left town):

    • “Who killed criminal justice reform in Texas?” (Texas Monthly)
    • “Life without parole is replacing the death penalty—but the legal defense system hasn’t kept up” (The Marshall Project)
    • “CSI Houston: How a Texas lab has remade the science of forensics” (Christian Science Monitor)
    • “How Elizabeth Loftus Changed the Meaning of Memory” (The New Yorker)

    Quotes of the Week

    “It’s the most personal thing that a legislator will do. … There will be some votes that probably look partisan and probably are partisan, but there’s going to be a lot of votes that are really personal.” 
               —Former State Rep. Burt Solomons (R-Carrollton), who chaired the House Redistricting Committee in 2011, as quoted in an article on the impending drama facing legislators next week.

    “Merrick Garland has an interesting job. He gets up, goes to the office, sues the state of Texas and then goes home.”
                —Ross Ramsey, executive editor of the Texas Tribune, in a column on the new nature of national litigation on several hot-button political issues.

    “In any other location with permitless carry, we have no idea whether people have had a background check and if they are legally carrying. There are legitimate questions why you and I on the street, out in public, don’t have that same protection, and we would support having the same protection because permitless carry is dangerous.”
                —Gyl Switzer, executive director of Texas Gun Sense, questioning why non-LTC visitors who enter the state capitol with a handgun are being detained for the purposes of running a criminal history check to determine their eligibility to carry without a license in the wake of the new constitutional carry law.

    “It felt like a scene out of ‘Scooby-Doo’ after they handcuffed me and pulled the mask off, like, ‘I would have gotten away with it if wasn’t for those meddling Karens,’ you know?”
                —Mark Metzger, criminal defense attorney in Galveston, as quoted in a story about his recent arrest for disorderly conduct after he was filmed walking the beaches during Tropical Storm Nicholas in a Michael Myers costume and (fake) bloody knife.

    [Our next special session update will be in two weeks.
    We’re looking forward to seeing many of you in Galveston!]

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  • Free Domestic Violence Training 2021 (Galveston)
  • To Abate or Not to Abate?

    • TDCAA Legislative Update: Called Session 2 – Sine Die

    September 3, 2021

    It’s over! But consider this not so much a “good-bye” as a “see you later.”

    Adios (for now)

    This second called session was to conclude on Sunday, September 5, but the legislature has adjourned sine die before then. Having passed what red meat it can push through the sausage grinder this session, both chambers adjourned last night, giving the governor bills on most (but not all) of the subjects he requested while also giving themselves a true Labor Day holiday weekend.

    Next up? Well, there is still redistricting to tackle. The conventional wisdom in Austin is that the governor will let legislators go home for a week or two to let tempers cool a bit, then call them back in late September or early October to start drawing lines on maps. The governor might also add to the call of that third special session some of the items that still have not passed this year, but that is speculation at this point.

    Bail bond reform crosses the finish line

    Fifth try is the charm, eh? The Lege finally delivered Governor Abbott the “bail bond reform” bill that he asked for. Senate Bill 6 by Huffman/Smith has been delivered for his final approval after some last-minute tweaks in the House. Among its many provisions, the bill:

    • prohibits certain violent offenders being released on personal bond;
    • requires magistrates to review a Public Safety Report (PSR) and criminal history on each arrestee prior to setting a bail amount;
    • adds new factors—such as citizenship status and past court involvement—to the list of things to be considered before setting bail;
    • imposes new requirements on judges setting bail for arrestees with pending cases;
    • requires bond conditions to be entered into TLETS; and
    • increases the bail-related training requirements for magistrates.

    Different parts of the bill will be phased into effect from December 2021 through April 2022. Look for a complete PDF text and review of the new law to be offered for free on TDCAA’s Publications web page before those new changes take effect.

    Meanwhile, the other prong of bail bond “reform”—SJR 3, the constitutional proposal to allow outright denial of bail for certain violent or sexual offenses—fell a dozen votes short of the two-thirds approval needed for it to appear on the ballot next spring, so that idea is dead (again).

    Dolla dolla billz, y’all

    The Lege also passed two supplemental appropriations bills related to border security. House Bill 5 by Bonnen/Nelson included a late House floor amendment that will direct $180 million to Texas Anti-Gang Center programs in the state’s largest cities, while HB 9 by Bonnen/Nelson appropriates almost $2 billion to border-related purposes, including:

    • almost $3.8 million to the Border Prosecutor Unit (for hiring and training more prosecutors);
    • $14 million to border counties for law enforcement expenses; and
    • more than $32 million to the Office of Court Administration (to provide indigent defense funds, visiting judges, and related assistance to counties along the border).

    These bills take effect immediately.

    TDCAA training update

    We’re up to 962 registered attendees for the 2021 Annual Conference in Galveston later this month; check out the details and register HERE if you’d like to join us. We will also be offering an in-person Legislative Update the day before the Annual at that same location. We’ve received 510 registrations for that course, but it will be held in the same cavernous convention space as the main course, so you can sign up HERE if you’d prefer that socially-distanced in-person experience to our online version, which appears to be a huge hit based on the positive evaluations rolling in. The online course will be open for several more months and can be accessed HERE.

    Free training

    The National Computer Forensics Institute (NCFI) will start offering its five-day prosecutor courses on digital evidence, computer forensics, and social networks in 2022. All costs associated with the course (including travel) are covered by the United States Secret Service. Eligible dates and application instructions for their Digital Evidence for Prosecutors (DEP) and Advanced Digital Evidence for Prosecutors (ADEP) courses can be accessed at HERE. The deadline to apply for these free courses is September 28, 2021. Additional information on the NCFI can be found at www.ncfi.usss.gov. 

    Scattershooting

    Some articles that you might find interesting:

    • “What Philadelphia Reveals About America’s Homicide Surge” (ProPublica)
    • “2022 election dates hinge on how fast Texas lawmakers get redistricting bill to Gov. Greg Abbott” (Dallas Morning News)
    • “Thanks to local politics and a railroad, rural Kinney County accounts for most of Texas’ migrant arrests” (Texas Tribune)

    Quotes of the Week

    “I want to see if [the lieutenant governor] has his big boy pants on. This meeting is adjourned.”
                —House Rep. Harold Dutton (D-Houston), chairman of the House Public Education Committee, explaining why he adjourned that committee on Monday without a vote on two hot button education issues—critical race theory and transgender athletes. (Ultimately, the former passed but the latter did not.)

    “Health care workers have been dealing with this for years, and it’s become more pronounced with the COVID pandemic.”
                —Karen Garvey, vice president of patient safety at Parkland Hospital in Dallas, as quoted in an article about verbal abuse and physical assaults against health care workers by hospital patients and visitors.

    [With the conclusion of this second called session, these weekly updates will become monthly updates—at least until the next called session.
    Happy Labor Day Weekend!]

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