No power, no water, no masks, no problem! God bless the good people working in the Texas tourism industry right about now.

COVID and the courts

To the surprise of no one who has been closely following Texas GOP intraparty politics, the governor announced this week that, effective Wednesday, March 10, 2021, he is rescinding past Executive Orders GA-17 (“Strike Force to Open Texas”), GA-25 (limits on in-person jail visitation), GA-29 (statewide face mask mandate), GA-31 (hospital capacity), and GA-32 (partial re-opening) and allowing private businesses to fully reopen without restriction. And in addition to rescinding the statewide face mask mandate, the governor is also prohibiting local governments from enforcing any general mask mandates on their citizenry. Note, however, that the new emergency order does not revoke Executive Order GA-13 (suspension of some jail releases per CCP Arts. 15.21, 17.03, 17.151, 42.032, or 42.035). For all the details of the new order, read the text of Executive Order GA-34 itself (it’s not very long).

That said, one place that is still not “open for maskless business” is your local courtrooms. Current Texas Supreme Court Emergency Order No. 33 (Jan. 14, 2021) still requires Texas courts to abide by the Office of Court Administration’s Guidance for All Court Proceedings During COVID-19 Pandemic (last updated Dec. 31, 2020), and that guidance includes mandated face coverings for in-person court business. (Whether that is enforceable in real life has never been very clear, but as we all know, just a because a judge can’t make you do something doesn’t mean she can’t make you wish you had done something.) We know the Texas Supreme Court met this week to discuss potential changes to its emergency orders in light of the governor’s change of course, but as of when this update went to press, there were no changes to report. (Knowing our luck, new guidance from that court will probably be issued 30 minutes after we hit “send” on this update, so check this website for the latest from that court.)

Committee news

Most House committees held their organizational meetings this week in preparation for taking up bills next week—a key step in the legislative process that would normally start in late February. But this is not a normal session, and the capitol’s pandemic precautions will be put to the test when more members of the public come to the building to testify. Let’s check in again at the end of the month to see how things go. (More on testifying below, for those interested.)

One item of note from yesterday’s House Elections Committee meeting involved witnesses from the Office of the Attorney General testifying that they would be amenable to being granted the authority to request that a district court convene a special OAG grand jury for election fraud purposes. That will probably show up soon in bill format, so now is a good time to start deciding how you feel about that.

Committee notices

Now that committees are getting down to business, we will try to provide you with weekly notice of relevant bills being heard in the upcoming week. Due to space limitations, we won’t list all the bills posted for a hearing, but you can click on the underlined hyperlink in the committee’s name for a full listing of each notice, including more bill information (such as the text of a proposal) that can be accessed by clicking on any bill number in that online notice.

NEW THIS SESSION: Some important committees will meet on Mondays, which makes Friday afternoon notice not very helpful to those of you who might want to get involved on a bill. Therefore, we will try to send you short emails on Thursdays with information about the upcoming Monday’s hearings (as well as re-printing those Monday bills in our usual Friday update). You should have received your first such bonus notices yesterday.

Monday, March 8
House Juvenile Justice & Family Issues
10:00 a.m., Room E2.014, Capitol Extension
HB 39 by Neave, an omnibus protective order bill
HB 454 by Metcalf creating juvenile family drug court programs
HB 567 by Frank limiting parental right terminations
HB 686 by Moody authorizing early parole for certain youthful violent offenders now in prison

House Criminal Jurisprudence
2:00 p.m., Room E2.010
HB 187 by S. Thompson authorizing subsequent writs w/ a prosecutor’s consent
HB 225 by S. Thompson allowing a subsequent writ for non-scientific evidence
HB 252 by Moody requiring unanimity for capital special issue verdicts for the defense
HB 275 by Moody authorizing subsequent scientific writs for punishment issues
HB 277 by Collier requiring appointment of counsel before magistration (withdrawn)
HB 372 by Gonzalez on appointment of habeas counsel w/ a prosecutor’s consent
HB 569 by Sanford expanding jail credits for certain Class C offenders
HB 679 by Gervin-Hawkins relating to standards for appointed counsel in capital cases
HB 689 by Collier relating to magistration using remote video technology
HB 743 by Collier establishing a maximum assigned caseload for defense attorneys
HB 873 by Collier relating to unlawful restraint of a dog

Tuesday, March 9
House Business & Industry
8:00 a.m., E2.028
HB 390 by S. Thompson relating to human trafficking in commercial lodgings
HB 455 by Deshotel barring criminal history inquiries of job applicants by employers

House Judiciary & Civil Jurisprudence
10:00 a.m., E2.026
HB 976 by Price authorizing the appointment of regional specialty court judges

Wednesday, March 10
House Corrections
8:00 a.m., E2.026
Invited testimony from TDCJ, Texas Probation Association, et al.

Thursday, March 11
House Homeland Security & Public Safety
10:30 a.m. or upon adj.
(not posted, but check here for future postings)

New committee procedures

Are you wondering how COVID precautions will impact the committee hearings process and how you might best advocate for yourself on issues that are important to you despite the changes? If so, you are not alone. Let us lay out here what we know so far based on early House committee notices.

For starters, some committees have allowed invited witnesses to testify remotely, but House rules limit that option to invited witnesses. For everyone else, normal in-person testimony is available for all House committees, and in our opinion, in-person testimony is still the best way to convey your thoughts and opinions to committee members. (As we like to say, the Lege is like most raffles—you must be present to win!) Personal appearances may be complicated by new health protocols for working in the Capitol, but as of right now, if you bring a face mask and factor into your schedule an extra 20–30 minutes of time to self-administer a rapid COVID test and await the results before entering the Capitol, everything else will resemble a more distanced version of past sessions.

One new twist is this option now included in each House committee notice: “Texas residents who wish to electronically submit comments related to agenda items on this notice without testifying in person can do so until the hearing is adjourned by visiting <url>.” (For an example of what one of those electronic comment pages looks like, see this example, which will remain open until the committee hearing is adjourned Monday afternoon.) Committee members will supposedly have access to the online comments during the hearing, and the online comments will also be posted under “handouts” several days after each committee meeting, as you can see for the March 1 hearing of the House Juvenile Justice & Family Issues Committee. (Go ahead and click the “handouts” link on that webpage for that date to see what the Lege is going to be receiving online this session, then decide if that’s how you want to interact with them this session.)

Among the many shortcomings of this new communication tool is that commenters’ opinions and positions for/against bills will not appear in the summary or the official committee witness lists or floor reports for a bill, and there is no way to guarantee committee members access or see the submitted comments (especially if hundreds or thousands of comments are submitted on a particular bill by advocacy groups). As a result, we cannot recommend using this new online comment portal except as a last-ditch, better-than-nothing option, and one that pales in effectiveness compared to coming to the capitol or calling the committee members or their offices to register your opinion. That’s how you move the needle on issues that are important to you.

Two final thoughts about the new online comment options. First, if you do use this new option, be sure to complete it using your work contact info and entering your office title for “organization/representing.” Do not say “self”, despite that being offered as an option. (That’s for private citizens.) And second, elected prosecutors might consider adopting a policy for their employees’ use of this comment option, lest some employees submit comments on behalf of their office that are not authorized by or aligned with the elected prosecutor’s position on a particular bill.

Fun stuff, eh? If you have questions about any of it, please contact Shannon.

Prosecutor rotation

Now that we have a better idea of when the Lege will really get down to business (answer: next week!), we can open up the process for elected prosecutors to come to Austin and have a say in that business. We get little notice of what bill or issue will crop up when, but 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 come participate in the three-ring circus that is the Texas Legislature.

Also, some of you might be interested in watching a webinar put together by the State Bar’s Legislative and Campaign Law Section called “Introduction to the Texas Legislative Process 2021,” for which you can receive 1 hour of MCLE credit (including 0.25 hours of ethics). The webinar is being offered Friday, March 12, starting at 12:30 p.m. for a fee of $65, and registrants have roughly one month to watch the program. For more information or to register, click here.

New stuff

While it sometimes feels like most of a session is spent rehashing old, failed bill ideas, each session also sees new ideas, concepts, and policies proposed. Among some of the more interesting or noteworthy “new” bill ideas this session are these 15 proposals:

HB 3 by Burrows (pandemic disaster powers)
HB 368 by Sherman (alternative address option for prosecutor’s driver’s license)
HB 614 by S. Thompson (eliminating civil immunity for certain public servants)
HB 658 by Gonzalez (prosecutor request for tracking device installation)
HB 1313 by Deshotel (recording of all witness testimony before grand jury)
HB 1374 by Minjarez/SB 295 by Perry (privileged communications in sexual assaults)
HB 1717 by S. Thompson (ban on retaliation for prosecutors’ discharge of Brady duties)
HB 2162 by Raymond (creation of OAG conviction integrity unit)
HB 2190 by White (mandatory pretrial diversion or deferred adjudication for SJFs)
HB 2233 by Ramos (mandatory cite and release policies)
HB 2282 by Toth (bar on cross-designated prosecutors handling federal gun cases)
HB 2335 by Middleton (civil liability for prosecutors who do not enforce riot laws)
HB 2346 by Y. Davis (pretrial review/diversion of criminal cases by community panels)
HB 2655 by Crockett (peace officer misconduct database)
SB 553 by Blanco (five-day mandatory CJIS reporting of criminal case dispositions)
SB 690 by Zaffirini (remote court proceedings)

Bill filings

Through Tuesday of this week—yes, when they file 200 bills a day we start to get behind!—we are tracking 975 (24%) of 4,130 filed bills. To view the current 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:

• “Pandemic response tops Texas voters’ legislative priorities, poll finds” (The Texas Tribune)
• “TCOLE launches disciplinary action against Texas police agencies over missed racial profiling deadline” (KXAN News)
• “Texas GOP lawmakers want to bar cities from hiring lobbyists, but delay review of state’s DC office” (Houston Chronicle)
• “Harris County got rid of cash bail for many people accused of minor crimes. GOP lawmakers want to walk that back” (The Texas Tribune)
• “Debate ramps up at Texas Legislature over governor’s emergency powers during pandemic” (The Texas Tribune)

Forensic grant correction

We mentioned last month that the governor’s Criminal Justice Division still has grant funds available for the forensic testing of physical evidence in criminal cases, and the deadline for applying for those funds is March 14, 2021. Please note that our previous notices erroneously titled this topic as “DNA” testing rather than “DA” testing. These funds are *not* limited to DNA testing. Therefore, 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 ASAP 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.

Looking ahead

The Senate finally started referring bills to its committees, which are likely to begin the process of organizing in preparation for considering some of those bills in the upcoming weeks. House committees are a few weeks ahead of their upper chamber counterparts in that regard, but both sides of the rotunda will be focused on beating next Friday’s bill filing deadline.

Quotes of the Week

“There has been a stunning drop in the financial value of bonds set by the courts since the implementation of Rule 9[,] from $135 million in 2015 to $13 million in 2020—one-tenth of the previous amount. Defendants paid bond companies over $4.4 million in 2016. However, since 2018, bail-bond companies have earned less than $1 million annually on low-level misdemeanor cases.”
            —Excerpt from the executive summary of the second report by federal court-appointed monitor of the Harris County bail bond litigation, issued earlier this week. (Just in case you were wondering why the bail bondsmen and their underwriters are so interested in the topic.)

“The governor is saying Texas will be 100% open and no masks. Texans were like, ‘Fix our electrical grid!’ and the governor was like, ‘OK, no masks it is!’”
            —Jimmy Fallon, host of NBC’s The Tonight Show, joking earlier this week about Governor Abbott’s latest executive order on COVID-19.

“I do feel that we’ll probably lose guests based on whatever decision we do make, but I guess that’s just part of the environment that we are in now. It’s either you wear masks and piss a couple people off, or you don’t wear masks and you piss a couple people off.”
            —Jessica Johnson, general manager of Sichuan House in San Antonio, on the impact of the governor’s latest edict on her business.

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Legislators spent a good part of yesterday being mad at people, so maybe things really are starting to return to normal.

Thawing out

Now that the state is on the road to recovery from #Snowpocalypse2021 / #SNOVID-21 / “The Big Chill” / #TexasFreeze (take your pick), it’s become even more obvious that this will be a session unlike any other. The lost week put the 87^th Legislature yet further behind schedule when compared to the pace of a “normal” session, with more delays to come due to the coronavirus pandemic (remember that?). However, there were some new signs of life, such as the House finally starting to refer filed bills to committees. That is generally considered only the second of roughly 15 steps a bill must take on its way to the governor’s desk, but for those hoping to pass bills this session, it’s welcome news. The unanswered question is how the Lege will prioritize its 94 remaining days this spring when things are moving so slowly.

Lite Guv’s chart toppers

For a glimpse into how the Senate may answer that question, look no further than the lieutenant governor’s list of 31 priority bills that he released earlier this week, all of which will be given highly-coveted bills numbers (SB 1­–SB 31) once they are filed by their Senate authors. Among those that may impact your business are:

• Senate Bill 1 by Nelson (R-Flower Mound) (state budget)
• SB 7 (election and ballot security)
• SB 10 (taxpayer funded lobbying)
• SB 11 by Huffman (R-Houston) (appellate court reorganization)
• SB 20 (gun possession defenses)
• SB 21 (bail reform)
• SB 23 (don’t defund the police)
• SB 24 (law enforcement transparency)

All we have for most of these high priority bills right now are labels, not actual words on paper in bill format. As a result, we can’t get into a detailed analysis of any of them now (with one exception we’ll discuss below). What we can say is that these are 31 bill topics that will get to cut to the front of the line when it comes to committee hearings and floor debates in the upper chamber; how they will fare across the rotunda remains to be seen.

Appellate re-org?

One bill in the above list that might jump out to you as an odd topic to prioritize is SB 11 by Huffman (R-Houston), a bill to re-organize our state’s appellate court system. This is something we noted in passing a few weeks ago through one of our “quotes of the week” taken from a news story out of El Paso in which local officials expressed concerns about what the bill might morph into. Here’s more on that story.

While the Lege is constitutionally required to redistrict itself, Congressional seats, State Board of Education seats, and the state’s judicial districts every decade (the latter of which they routinely ignore), the boundaries of the state’s courts of appeals are determined solely by the Lege and are not required to be redrawn. However, that doesn’t mean there aren’t good policy reasons to reconsider the wisdom (such as it is) behind our state’s large, decentralized appellate court system. That’s where the tort-reforming folks at Texans for Lawsuit Reform come in. They released a study last year titled “A System Needing Structural Repair” which describes the somewhat haphazard historical development of our appellate court system, then compares it to other states’ (usually smaller and more centralized) appellate court systems and advocates for a replacing our current 14-court system with a more centralized five- to seven-court system. You can read the report for all the details; it’s linked above, and we found it interesting from both an historical perspective and a nerdy appellate public policy perspective.

So, that report contains the policy pitch for re-organizing the appellate courts by merging them into a more efficient and centralized system. But what other consequences might it have? As pointed out in the El Paso story mentioned above, some observers have wondered what impact the proposed changes might have on recent gains Democrats have made on the appellate courts in the larger metropolitan areas of the state, gains which might be rolled back or diluted if those urban courts’ districts included more outlying counties that traditionally vote Republican. And during a session in which partisan distrust may be at its peak due to the redistricting duties already on its agenda, this could end up being a stealthily controversial topic for the Lege this year, especially if certain Republican legislators from smaller communities decide that voting their district—especially those that might lose their local appellate courts in a re-organization—is a higher priority than voting their party.

That said, what does this mean for prosecutors who could be directly affected by any wholesale re-organization of the appellate court system? For starters, the conventional wisdom is that the current version of SB 11 is a “shell bill”—a placeholder for more detailed language to come when the bill is heard in committee—so don’t get wound up about anything currently in it. However, you should start weighing the pros and cons of potential changes to your current appellate district, including how far away your “local” district might move, how that might impact your office’s budget and operations, and who might ultimately serve on those courts, among other concerns. Meanwhile, we will continue monitoring the issue and let you know when more actionable information comes to light.

Remote court proceedings

The long-awaited bill to allow the greater use of technology for remote proceedings during non-pandemic times has been filed. Senate Bill 690 by Zaffirini (D-Laredo) was filed this week and it should spur an important discussion of these issues.

Unfortunately, the initial filed version of the bill is not very illuminating. In a nutshell, it would allow any judge to remotely conduct a court proceeding or a portion of a court proceeding—such as jury selection or a witness’s testimony—without the consent of the parties, unless the state or federal constitutions require that consent, in which case either party may object. And when, you might be wondering, is a party’s consent constitutionally required? Good question, and it’s one not answered by the bill. Which means the current language provides no real guidance on resolving the issue of when remote technology can or can’t be done, which is the only answer many of you care about. But the good news is that the author’s office is open to constructive feedback from practitioners with the intent to improve the bill as it moves through the process, so if you have thoughts on this topic that you want to share, reach out to Shannon for more information on how to most effectively do that.

Bill filings

Bill filings continued at a steady pace this week and are only a few hundred bills behind historical norms despite the challenges posed by the pandemic and the recent storm outages. Through yesterday, we are tracking 870 (26%) of the 3,315 bills filed to date. Time permitting, next week we will try to highlight some of this session’s most interesting “new” bills (as opposed to the many, many, many bills that are re-filed versions of old bills which failed to pass in prior session.)

To view the current 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.

House committee schedule

In addition to the referral of House bills to committees, the committee schedule was also released. Among those committees that prosecutors may most often find themselves in front of will be:

Juvenile Justice & Family Issues        Mondays, 10:00am, E2.014
Criminal Jurisprudence                       Mondays, 2:00pm or upon adjournment, E2.010
Corrections                                          Wednesdays, 8:00am, E2.026
Judiciary & Civil Jurisprudence         Wednesdays, 8:00am, E2.014
Homeland Security & Public Safety  Thursdays, 10:30am or upon adj., E2.030

Many of these committees will hold their organizational meetings in the next week or two, at which time they will adopt their rules and prepare for hearings on actual bills later in March.

Scattershooting

Here’s a few stories we read this week that you might find interesting:

• “What drove the historically large murder spike in 2020?” (The Intercept)
• “Why cities have more people but less clout” (Governing)

Looking ahead

Next week’s menu will still feature budget hearings as the main course, with House committee organizational meetings serving as appetizers and desserts. No word on when Senate committee might organize for action, but don’t be surprised if they wait until after the bill filing deadline (March 12). In preparation for those eventual bill hearings, next week’s update will include a look at how the committee hearings process will differ from past sessions and how you might best advocate for yourself on issues that are important to you.

Quotes of the Week

“Unfortunately, the last few days have been a black eye on the reputation of Texas.”
            —Texas comptroller Glenn Hegar (R-Katy), during testimony before the Senate Finance Committee on the fiscal impact of the recent winter storms.

“Some of the blame belongs right here in this building. There’s blame out there for everybody.”
            —State Rep. Charlie Geren (R-Fort Worth), during this week’s House hearings on the causes of, and potential cures for, the state’s recent power outages.

“There’s a powerful commitment to that base ideology of small government, low taxes, and deregulation … [that will] limit the amount of reform that is mandated. … Once we’re in the spring, we’ve got pleasant weather, the sun is out, we have a cooling breeze, a lot of the ardor for this series of reforms is going to evaporate.”
            —Cal Jillson, author and political scientist at SMU, when asked how he thinks state leadership will respond to last week’s energy debacle.

“It’s like H-E-B is the moral center of Texas. There seems to be in our state a lack of real leadership, a lack of real efficiency, on the political level. But on the business level, when it comes to a grocery store, all of those things are in place.”
            —Stephen Harrigan, Austin-based novelist, quoted in a NY Times article about the role the iconic Texas grocery store chain plays during natural disasters in Texas.

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It’s been a rough week for everyone and we all could probably use a break. Who’s up for a quick trip to Cancun?

Deep freeze

TDCAA World Headquarters took a direct hit from Snowpocalypse 2021. Building power (heat, phone, internet) went down Monday morning and is only just now coming back online in fits and starts. The water is currently shut off in the hopes of avoiding flooding from potentially busted pipes, and we cannot resume heating until the good people at Trane oversee a re-start of our previously frozen rooftop equipment. (Their slogan may be “It’s hard to stop a Trane®,” but Mother Nature found a way.) Meanwhile, TDCAA staff in the greater Austin area are in still in various stages of recovery; most have power again but several still lack internet service, while city water has been out since Wednesday-ish and it may be several more days before water pressure returns to needed levels. In short: We can’t promise prompt responses to your calls, emails, or requests, but we’re doing the best we can, just like all of you. Hang in there.

Wipe out

A whole lotta nuthin’ got accomplished in Austin this week. (That doesn’t just describe the Lege, but we will confine our comments to it because you already know about <gesticulates wildly in every direction to indicate “this”>.) The House and Senate were required to meet this Tuesday, so they gaveled in without quorums and punted things to today, when they punted again until Tuesday afternoon (because they can only recess for a few days at a time without the agreement of their other chamber, which neither can obtain right now due to a lack of a quorum.) That leaves the schedule for the next few weeks completely up in the air. All that can be said for certain is that dozens or even hundreds of fewer bills will be passed this session due to this “lost week.”

Meanwhile, Governor Abbott added “ERCOT reform” to his list of emergency legislative items earlier this week, which means that not only has the Lege lost a week of productivity, but it now has another hot-potato issue to take up in the increasingly short time remaining to conduct business this regular session.

Appropriations subcommittee

The chairman of the House Appropriations Committee named his subcommittees yesterday. The House members tasked with doing a deep dive on court- and prosecutor-related funding are on the Subcommittee for Articles I, IV, and V, which consists of: Mary Gonzalez (D-Clint), chair; Matt Schaefer (R-Tyler), vice-chair; Trent Ashby (R-Lufkin), Justin Holland (R-Rockwall), Carl Sherman, Sr. (D-DeSoto). If any of those members are your local legislators, please call or email Rob if you’d like to know what you can do to help protect against budget cuts this session.

Scattershooting

Here are a few state stories we read this week that we found interesting:

• “How judicial appointments in Texas will work—or not—under a Democratic president and two GOP senators” (Dallas Morning News)
• “2021: Such a disappointment” (Austin American-Statesman)

Bill filings

Due to this week’s work stoppages, it’s probably safe to say that if you have a bill idea that has not yet been submitted to the Legislative Council for drafting, that ship has sailed. Instead, just ask that it be filed as-is and worry about the details later. (If you need a bill draft template for doing so, contact Shannon—he has one he can share.) However, those of you with bill ideas already in the Legislative Council drafting process still have several weeks for them to be returned and filed before the March 12 deadline.

Despite the deep freeze, bills continued to be filed this week thanks to the modern miracle of electronic filing. As a result, we are now tracking 782 (29%) of the 2,725 bills filed to date, and that number of filed bills could double (or triple?) between now and the filing deadline.

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.

Looking ahead

Well, it will be warmer and drier, so that’s a start. House and Senate activities may resume on Tuesday afternoon, assuming no further biblical plagues are visited upon us. That likely means that most of what was to happen this week—namely, budget hearings and a roll-out of the lite guv’s legislative priorities—could get taken up next week, along with some very heated (see what we did there?) legislative hearings about the recent power failures across the state. And if you are feeling poorly about your current predicament, just remember that there is always someone worse off than you—in this case, the people who run ERCOT.

Quotes of the Week

“By, number one, not defunding the police.”
            —President Joe Biden, in response to a question at a CNN town hall meeting this week asking how law enforcement can protect citizens in high crime neighborhoods.

“The ERCOT grid has collapsed in exactly the same manner as the old Soviet Union. It limped along on underinvestment and neglect until it finally broke under predictable circumstances. … It happened before and will continue to happen until Texas restructures its electricity market.”
            —Ed Hirs, an energy fellow in the UH Economics Department, on the causes of the recent power blackouts around the state.

“There’s no evidence that I can see that tells me he’s vulnerable in a Republican primary, but I will also say that if he gets indicted again a second time, that changes things. … He’s in a dicey situation right now. He knows that. But I also think he’s a hell of a fighter.”
            —Matt Mackowiak, GOP strategist, on the current political status of Attorney General Ken Paxton (R-McKinney), whose latest kerfuffle has arisen after he declined to reveal who paid for his trip to Washington, D.C., to participate in the “Stop the Steal” rally that preceded the storming of the U.S. Capitol last month.

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So much for enjoying the three-day weekend outside. (Be careful out there, y’all!)

Senate Finance

This week the Senate Finance Committee began its work on SB 1, the General Appropriations Act. The committee members were almost giddy when the comptroller reported that the looming fiscal crisis for the next biennium wasn’t looking as bad as he once feared; sales tax revenues from online purchases have been a welcome surprise, and federal COVID-19 relief money has been squirreled away to assist in budget planning. So, instead of being $4.5 billion short for the upcoming biennium, the state is still on target to end this current biennium with a small surplus while facing a shortfall of less than a billion dollars for FY 2022–2023. The sighs of relief were palpable.

Looking ahead, Chairwoman Jane Nelson (R-Flower Mound) repeatedly emphasized that the committee has four funding priorities: public education, the coronavirus, the economy, and public safety. The committee made good on the public safety part as far as prosecutors are concerned by fully funding (at 2020 levels) prosecutor salaries, county attorney supplements, felony prosecutor apportionment funding, and assistant prosecutor longevity pay at the outset.

One item we will continue to monitor is visiting judge appropriations. Texas Supreme Court Chief Justice Nathan Hecht requested additional funding for visiting judges to help reduce the pandemic backlog in local courthouses, and while the committee wasn’t necessarily against the idea, it asked the chief justice to come back with a more detailed plan for exactly what was needed and how that would work in action. This caught our attention because more visiting judges generally creates a need for more prosecutors and defense attorneys, at least in the short term. State Sen. Joan Huffman (R-Houston), a former prosecutor and district judge, raised the issue of using federal COVID-19 relief funding in that effort, and we will keep you informed if that idea gains traction.     

ERS woes

In other Senate Finance Committee news, one of the first agencies it examined was the Employee Retirement System (ERS) that manages the retirement benefits for elected felony prosecutors (among many others). The news here isn’t good. Even after increasing participant contributions in 2017, the investment fund will still be depleted by 2061 if no additional increases are made. The committee members did not have a ready solution during the hearing, but it was clear that there is no room to increase participant contributions over the current 9.5 percent. If this issue impacts you, then keep an eye on SB 321 by Huffman (R-Houston); this is a shell bill* that will serve as the vehicle for any yet-to-be-determined additional state contributions to put ERS back on the path to stability. (*A “shell bill” is a bill filed with the understanding that the contents of the bill will change as it moves through the legislative process.) If you are an elected felony prosecutor who visits with your legislators about their work, you might want to put this on your list of things to talk about. To see the ERS PowerPoint presentation explaining things in more detail, click here for a PDF version.

Gubernatorial wish list

With the Lege still trying to shift into second gear during these early stages of the session, the spotlight remains on the governor, who released his recommended state budget last Friday. This document is significant not for what it is—governors have no real role in crafting state budgets until it comes to veto time—but it does highlight the gubernatorial priorities that could come into play at the end of a session. With that in mind, some of those priorities are:

• Improving TCOLE’s IT system for maintaining peace officer employment records
• Authorizing and funding online TCOLE training
• Increasing grant funding for body cameras
• Clearing the remaining backlog of untested sexual assault evidence kits
• Funding the development and implementation by the Office of Court Administration of a statewide pretrial risk assessment tool for use in bail determinations

Whether these ideas will find favor with legislative budget writers remains to be seen, but we will continue to follow these issues during the session to the extent they impact your business.

Scattershooting

We see a lot of good news coverage of legislative issues that we retweet on our social media account, but for those who don’t keep up with us there, we thought we’d re-post a few of them in this space. Some of those we came across this week included:

• “Winners and losers: Texas House Speaker shakes up chamber’s leadership with emphasis on new faces” (Dallas Morning News)
• “No ‘meaningful relief’: Harris County trials plunge from 1,600 a year to 52 since COVID” (Houston Chronicle link)
• “Texas Senators scold AG Ken Paxton for violating his budget authority with $40M in staff raises” (Houston Chronicle)
• “Gov. Greg Abbott prioritized changing how bail is set. He isn’t addressing people stuck behind bars because they can’t afford to pay.” (Texas Tribune)

Bill filings

Consider this your reminder that if you have a bill idea that has not been submitted to a legislator by now, you have one more week to get that done; after that, your idea’s chances of making it into law rapidly approach zero.

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. We are tracking more than 700 bills, so if you have an interest in a specific issue, there’s probably already a bill (or seven) filed on it.

Looking ahead

The House and Senate conducted minimal floor duties this week and will return on Tuesday, February 16, for … probably more of the same. (Although to be honest, this isn’t much different from the floor output of a non-pandemic session other than the absence of legislative recognitions and resolutions that normally fill the constitutionally-imposed inactivity of the first 60 days.) Meanwhile, the House Appropriations Committee will start its review of the initial House budget bill next week in an attempt to catch up with the Senate Finance Committee, which got the jump on them by starting last week. We also expect Lt. Gov. Patrick to roll out his list of legislative priorities next week. Unlike a governor—who can designate an issue as an emergency but can’t make the Lege act on it—a lieutenant governor has ways to make sure his chamber moves his preferred bills. (But of course, that’s only half the battle, isn’t it?) Look for more details on those bills next week.

Counties at the Capitol

TAC’s “Counties at the Capitol” WebEx meeting will be held remotely on the morning of February 16 and you can “attend” from the comfort of your home or office; for an agenda of speakers and related information, visit this page of their website.

PROTECT

PROTECT, the state’s online protective order registry operated by the Office of Court Administration (OCA), should now be available for access by prosecutors and peace officers and can be found at https://protect.txcourts.gov/. For security purposes, this PROTECT portal is separate from the portal utilized by courts and the public and is designated only for use by prosecutor and law enforcement personnel.

Pursuant to Government Code §72.155, PROTECT allows prosecutors and peace officers to view comprehensive protective order information from across the State. Texas courts have been entering applications, protective orders (POs), and magistrate’s orders of emergency protection (MOEPs) into the registry since October 15, 2020—including images of the actual signed orders—which may be a useful tool for enforcement, investigation, and safety planning for survivors of family violence and other related crimes.

Earlier this week you should have received an email from Kimberly Piechowiak, OCA’s Domestic Violence Training Attorney, with more information on getting access to the registry and adding your staff users. In the coming weeks, Kimberly will also be sending out invitations for a webinar about the registry and how it can enhance prosecution and investigation of the violent offenses endured by survivors and their families, so please be on the lookout for that information.

Quotes of the Week

“Three years.”
            —Texas Supreme Court Chief Justice Nathan Hecht, when asked to guess how long it would take the Texas criminal courts to work through the backlog created by COVID-related shutdowns. (Our unofficial Twitter poll on that topic was not as confident, though.)

“Who will pass the last bill of the year in October? Or however long we’re going to be here?”
            —Lt. Gov. Dan Patrick (R-Houston), rhetorically asked from the Senate dais with tongue firmly planted in cheek after that chamber passed its first resolution of the regular session, which will end in May.

“I’m very careful not to get emotionally invested [in my bills] because they might not see the light of day.”
            —State Rep. Ina Minjarez (D-San Antonio), in a Texas Monthly article discussing the impact of pandemic-related slow-downs on the legislative process this session.

“There’s so much infighting and competition among all the people in that arena, that’s why it never goes anywhere, and so it’s not even an issue that’s going to see the light of day this session.”
            —Lt. Gov. Patrick, when asked about the prospects for legalized sports betting in Texas.

“The problem is he is really fixed on just his language. I can’t get him to understand the legislative process: You don’t always get what you want.”
            —State Sen. John Whitmire (D-Houston), chairman of the Senate Criminal Justice Committee, referring to his discussions with Gov. Abbott on various bail reform proposals.

“It’s kinda like when you get on the tiger—you can’t get off it ’cuz it will eat you. … My point, I guess, is that we need to figure out a way to fix what we’ve got.”
            —State Sen. Charles Perry (R-Lubbock), during the Senate Finance Committee’s discussion of the state’s predicament in funding its Employee Retirement System obligations.

“We were social distancing when social distancing wasn’t cool.”
            —Bonnie Sudderth, Chief Justice of the 2^nd Court of Appeals, explaining to the Senate Finance Committee why COVID-related restrictions did not impair the appellate courts as badly as the trial courts.

“It’s a good thing she did it last session, because it would not have happened this session.”
            —State Sen. Jane Nelson (R-Flower Mound), chairwoman of the Senate Finance Committee, in response to a judge who began his testimony in her committee by thanking State Sen. Joan Huffman (R-Houston) for passing judicial branch pay raises last session.

“I was [embarrassed] at first, but the more I think about it—well, shit happens. … If the country can have a chuckle at my expense today, I’ll accept it, because we’ve all been going through a stressful time. I just don’t want to repeat it on a frequent basis.”
            —Rod Ponton, Presidio County Attorney, who gave everyone a good chuckle this week by  going viral as the #CatLawyer on Zoom.

“If I stumble upon a legal issue that I want to get oriented to, I will look for Cathy’s opinions just as a starting place. Her scholarship was so wide and her curiosity so great that when she decided to take on a subject … she gave every issue the treatment of a scholar and the best lawyer you can imagine.”
            —Andy Drumheller, speaking of one-time co-worker and former Court of Criminal Appeals Judge Cathy Cochran, who passed away this week after a long illness. Judge Cochran led a distinguished career as a prosecutor, defense lawyer, and jurist and actively supported our Foundation as a member of the Texas Prosecutors Society; all of us at TDCAA mourn her passing. #RIP

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It’s Day 25 of our 140-day voyage, but it still feels like we have yet to weigh anchor and leave port. That may change when the Senate Finance Committee begins its budget hearings next week. Let’s hope for weather more fair than foul in the offing.

“Brimming with promise”

Or at least that was the term used by Governor Abbott to describe Texas in Monday’s State of the State Address (transcript here). Fair enough.

The main news to come from this speech was the governor’s identification of five issues he has deemed “emergency items,” qualifying them for immediate action by the legislature. Those five items are: expanding broadband internet access, punishing local governments that “defund the police,” bail reform (of the lock-’em-up variety), “election integrity,” and limiting civil liability for businesses open during the pandemic. Other than the first item, which enjoys broad bipartisan support, the rest of these issues will get a head start by being deemed emergencies, but none are guaranteed to pass. Furthermore, the mention of these issues in Monday night’s speech is not actually binding—instead, the governor must file proclamations with the legislature to make it official, and that will be where the rubber meets the road regarding the specificity and scope of what will or won’t constitute an emergency.

Besides these five emergency items, the governor also mentioned dozens of other policy issues that he supports or wants to see passed by the legislature, and Lt. Gov. Patrick is expected to roll out Senate bills on many of those topics soon. Stay tuned for a review of those bills as soon as next week.

House committees

House Speaker Dade Phelan (R-Beaumont) released this session’s House committee assignments yesterday. The turnover was significant: Of the 35 standing House committees, 29 (!) now have new chairs. What that means for the future of individual bills remains to be seen. All that can be said with certainty right now is that there will be a distinct lack of certainty in predicting the fate of many issues in the House because of these changes. The chairs are the gatekeepers for which legislation gets heard in committee, and in a session in which fewer committee hearings are expected to be held, these new chairs are in a position to kill thousands of bills by mere indifference. With that in mind, here’s the skinny on some House committees relevant to your work.

            APPROPRIATIONS: G. Bonnen (R-Friendswood), chair; M. Gonzalez (D-Clint), vice-chair; Ashby (R-Lufkin), C. Bell (R-Magnolia), Capriglione (R-Southlake), Dean (R-Longview), Dominguez (D-Brownsville), Gates (R-Rosenberg), Holland (R-Rockwall), Howard (D-Austin), A. Johnson (D-Houston). Ja. Johnson (D-Houston), Ju, Johnson (D-Dallas) [yes, there are three Democratic Johnsons on one committee!], Minjarez (D-San Antonio), Morrison (R-Victoria), Raney (R-Bryan), Rose (D-Dallas), Schaefer (R-Tyler), Sherman (D-Dallas), Stucky (R-Denton), E. Thompson (R-Pearland), Toth (R-The Woodlands), VanDeaver (R-New Boston), Walle (D-Houston), Wilson (R-Marble Falls), Wu (D-Houston), Zweiner (D-Driftwood).
            Notes: R chair, D vice-chair, 14 Rs, 12 Ds. Wholesale changes include a new chair, vice-chair, and 10 of the 26 members. The former subcommittee chairman for your budget items is also gone; stay tuned for news on that appointment in a few weeks.

            CALENDARS: Burrows (R-Lubbock), chair; Moody (D-El Paso), vice-chair; Craddick (R-Midland), Harris (R-Palestine), Hefner (R-Mt. Pleasant), Hernandez (D-Houston), Leman (R-Iola), Patterson (R-Frisco), Rose (D-Dallas), Slawson (R-Stephenville), Talarico (D-Round Rock).
            Notes: R chair, D vice-chair, 7 Rs, 4 Ds. Nine of 11 members are new, including the chair, which means there could be a substantial change in how the committee operates. This is the committee that determines what bills do—and do not—get to the House floor, and its real work is done almost entirely behind closed doors. If your House member is on this list, we hope you have a good relationship with him/her because you may need it this session.

            CORRECTIONS: Murr (R-Junction), chair; Allen (D-Houston), vice-chair; Bailes (R-Shepherd), Burrows (R-Lubbock), Martinez Fischer (D-San Antonio), Rodriguez (D-Austin), Sherman (D-Dallas), Slaton (R-Royce City), White (R-Hillister).
            Notes: R chair, D vice-chair, 5 Rs, 4 Ds. New chair, four new members (of nine). Oversees TDCJ, TJJD, BPP.

            CRIMINAL JURISPRUDENCE: Collier (D-Fort Worth), chair; K. Bell (R-Forney), vice-chair; Cason (R-Bedford), Cook (R-Mansfield), Crockett (D-Dallas), G. Hinojosa (D-Austin), A. Johnson (D-Houston), Murr (R-Junction), Vasut (R-Angleton).
            Notes: D chair, R vice-chair, 5 Rs, 4 Ds. Same chair, but six of nine members are new, including five freshmen. While that is more new faces than usual, seven of the nine committee members are lawyers, which is an unusually high rate. However, to our knowledge only two have practiced criminal law—Crockett (a former public defender) and Johnson (a former Asst. DA in Harris County). Compared to the Senate Criminal Justice Committee’s heavy Harris County contingent, House “Crim Jur” (as we call it) looks weighted toward the DFW Metroplex, which should make for an interesting contrast. This committee handles the largest percentage of bills we track in the House during a session, so if you have any House members on this committee, be sure to reach out to them—they may become your new best friends at the capitol this session.

            HOMELAND SECURITY & PUBLIC SAFETY: White (R-Hillister), chair; Bowers (D-Rowlett), vice-chair; Goodwin (D-Austin), Harless (R-Spring), Hefner (R-Mt. Pleasant), E. Morales (D-Eagle Pass), Patterson (R-Frisco), Schaefer (R-Tyler), Tinderholt (R-Arlington).
            Notes: R chair, D vice-chair, 6 Rs, 3 Ds. New chair and vice-chair, both of whom are new to the committee; in fact, seven of nine members are new. Some hot-potato policing reform bills may get referred here, so this committee could be in the spotlight more than usual.

            JUDICIARY & CIVIL JURISPRUDENCE: Leach (R-Plano), chair; Y. Davis (D-Dallas), vice-chair; Dutton (D-Houston), Ju. Johnson (D-Dallas), Krause (R-Fort Worth), Middleton (R-Wallisville), Moody (D-El Paso), Schofield (R-Katy), Smith (R-Van Alstyne).
            Notes: R chair, D vice-chair, 5 Rs, 4 Ds. Same chair, plus four other returning members. Seven of nine members are lawyers. If you are seeking a statutory change to your office’s authority or if your local jurisdiction is seeking a new court, this is the committee that will hear it in the House.

            JUVENILE JUSTICE & FAMILY ISSUES: Neave (D-Dallas), chair; Swanson (R-Spring), vice-chair; Cook (R-Mansfield), Frank (R-Wichita Falls), Leach (R-Plano), Ramos (D-Richardson), Talarico (D-Round Rock), Vasut (R-Angleton), Wu (D-Houston).
            Notes: D chair, R vice-chair, 5 Rs, 4 Ds. All but one member is new to the committee, including the chair and vice-chair.

            STATE AFFAIRS: Paddie (R-Marshall), chair; Hernandez (D-Houston), vice-chair; Deshotel (D-Beaumont), Harless (R-Spring), Howard (D-Austin), Hunter (R-Corpus Christi), P. King (R-Weatherford), Lucio III (D-Brownsville), Metcalf (R-Conroe), Raymond (D-Laredo), Shaheen (R-Plano), Slawson (R-Stephenville), Smithee (R-Amarillo).
            Notes: R chair, D vice-chair, 8 Rs, 5 Ds. New chair; all told, six of 13 members are new. This committee traditionally gets referred bills on several very controversial social and political issues, including the issue of local government advocacy. Interestingly, these returning members voted 7-5 against the “taxpayer-funded lobbying” ban last session, with the new chairman voting “nay.” It will be interesting to see if any of those votes change in 2021.

These are the House committees in which prosecutors are most likely to find themselves during a session, but for others, you can find the full list of committee line-ups here. If you are so inclined, now is a good time to reach out to your local legislator(s) to congratulate them—or commiserate with them—on their committee assignments. And if they are on one of the committees listed above, this is also the time to start educating them on the issues relevant to those committees that are important to you. Due to the significant turnover reflected in these assignments, much of your past work and relationship-building in that regard may need to be repeated with new members. Such is the circle of life at the Lege.

Bill filings

Bill filings continue to increase despite the pandemic-related challenges faced by the agency tasked with drafting the official versions of legislation. Due to the resulting delays, if you have a bill idea that has not already been submitted by a legislator for drafting, then we suggest you get that done ASAP or you’ll have to punt it to next session. As for those of you with bill language requests already in the hopper at the Legislative Council, you are probably safe to wait a couple of more weeks for progress, but if your bill author doesn’t have a finished or almost-finished draft in hand by the end of this month, you may want to consider asking them to file a non-council draft and then fix things during the process as needed. (If this is Greek to you or you have questions about the bill-filing process, contact Shannon.)

As of yesterday, we are tracking 665 bills in more than 40 different bill tracks. So far, the 10 most popular tracks are:

Track                                                   Bills
Code of Criminal Procedure           199 bills
Penal Code                                         163
New crimes                                        106
Guns                                                    91
Policing/new officer duties               87
Drugs/controlled substances           45
Enhancements                                     40
New prosecutor powers/duties       31
COVID & disaster laws                      29
Sex crimes                                           27

If this were a normal session, we’d expect the bill filing volume to triple between now and March 12, the deadline for filing most bills. However, this is anything but a normal session, so this time around we have no idea what to expect; we just know that they will keep filing bills and we will keep reading them.

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.

Looking ahead

The House and Senate will return for some minimal floor actions on Tuesday and maybe Wednesday of next week, and then … who knows? Rumor has it that both chambers might adjourn again until Tuesday, February 23, but we won’t know for certain until this time next week.

Counties at the Capitol Day

One of the many session traditions put on pause by the pandemic are “advocacy days,” those events during which people united by place (Chambers County Day!) or politics (Republican Women’s Day!) or other predilection (Texas Biker Day!) descend on the capitol to lobby during the day and socialize during the night (and vice versa). Regrettably, current coronavirus restrictions have put an end to most of those events, some of which are being replaced by “virtual” legislative days. One such opportunity that may interest you is TAC’s “Counties at the Capitol” WebEx meeting on the morning of February 16; for details, visit this page of their website.

Legislative CLE

The State Bar will air “Introduction to the Texas Legislative Process 2021” on Tuesday, February 9, from 12:30 to 1:30 p.m. The webcast costs $65 and is approved for one hour of MCLE credit, including 0.25 hours of ethics. Click here for registration information.

Quotes of the Week

“Texas has always been a law-and-order state and we are going to stay that way. We will not let Texas cities follow the lead of cities like Portland, Seattle, and Minneapolis by defunding the police.”
            —Gov. Greg Abbott (R-Houston), in his State of the State Address Monday night.

“This is a very stupid problem to have. The technology that was created specifically to eliminate car thefts, such as key fob technology, is now being used against us.”
            —Anonymous police department official, as recounted in a story about the proliferation of car thefts in the NYC tri-state area.

“It’s been a failure. I wouldn’t want to see Texas go down that route. I don’t think it’s great for this state. I think we’re doing just fine without legalized marijuana.”
            —House Speaker Dade Phelan (R-Beaumont), speaking at a Texas Lyceum event last week on the inability of marijuana legalization to eliminate black market sales and related crimes in places like California. (He also downplayed the likelihood of legalized casino gambling in Texas at that same event.)

“If you’re a high-risk danger to the public, you should receive no bond. I don’t know anyone who would argue that, but the Constitution of Texas guarantees a bond. It’s outdated and should be changed.”
            —State Sen. John Whitmire (D-Houston), quoted in response to the filing of SB 532 by Bettencourt (R-Houston), aka “Caitlynne’s bill,” which would deny personal bond eligibility to certain offenders and set minimum cash or surety bail amounts for other offenders.

“I don’t have any idea, and neither does anybody else know what it would look like. … So, it’s kind of like fighting a phantom, because I don’t know what that plan exactly entails.”
            —Chief Justice Yvonne Rodriguez (D-El Paso), 8^th Court of Appeals, referring to rumors about a redistricting of Texas’ appellate courts that would cut the number of courts in a manner that would dilute recent Democratic gains on the urban appellate courts.

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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 49^th 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.

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Eleven days completed, 129 to go—but we’re betting the coronavirus will make it feel longer, as it does with everything in life right now.

Senate committees

The Lite Guv released his committee assignments for this session and the following appointments (with related commentary scrubbed clean for public consumption) may be of interest to you:

            CRIMINAL JUSTICE: Whitmire (D-Houston), chair; Huffman (R-Houston), vice-chair; Bettencourt (R-Houston), Birdwell (R-Granbury), Hinojosa (D-McAllen), Miles (D-Houston), Nichols (R-Jacksonville).
            Notes: Four Rs and three Ds, but this is the lone Senate standing committee (out of 17) chaired by a Democrat. Four new members: Bettencourt, Birdwell, Hinojosa, and Nichols (although Birdwell and Hinojosa have been on Criminal Justice in past sessions). Four of seven members (57%) are from Harris County, so expect that tail to wag the dog on many criminal justice issues (as it often does, seeing as how it has almost twice the population of Dallas, the next largest county).

            FINANCE: Nelson (R-Flower Mound), chair; Lucio, Jr. (D-Brownsville), vice-chair; Bettencourt (R-Houston), Buckingham (R-Lakeway), Campbell (R-New Braunfels), Creighton (R-Conroe), Hancock (R-North Richland Hills), Huffman (R-Houston), Kolkhorst (R-Brenham), Nichols (R-Jacksonville), Perry (R-Lubbock), Schwertner (R-Georgetown), Taylor (R-Friendswood), West (D-Dallas), Whitmire (D-Houston).
            Notes: Twelve Rs and three Ds. New vice-chair in Lucio, who replaces Hinojosa (D-McAllen).

            JURISPRUDENCE: Huffman (R-Houston), chair; Hinojosa (D-McAllen), vice-chair; Creighton (R-Conroe), Hughes (R-Mineola), Johnson (D-Dallas).
            Notes: A new committee composed entirely of lawyers (but only two with significant criminal law experience). Three Rs and two Ds. The subject matter jurisdiction is still unclear, but we expect it to be given certain issues that formerly may have been referred to the Criminal Justice or State Affairs Committees, such as judicial selection (more on that below) and possibly some hot-button issues such as policing and/or bail reform.

            LOCAL GOVERNMENT: Bettencourt (R-Houston), chair; Menendez (D-San Antonio), vice-chair; Eckhardt (D-Austin), Gutierrez (D-San Antonio), Hall (R-Edgewood), Nichols (R-Jacksonville), Paxton (R-McKinney), Springer (R-Muenster), Zaffirini (D-Laredo).
            Notes: A new committee replacing the former Intergovernmental Relations Committee. Five Rs and four Ds. Its jurisdiction is still unknown, but it could be tasked with vetting various local control bills or disaster-related bills, which will be a hot topic this session.

            STATE AFFAIRS: Hughes (R-Mineola), chair; Birdwell (R-Granbury), vice-chair; Campbell (R-New Braunfels), Hall (R-Edgewood), Lucio, Jr. (D-Brownsville), Nelson (R-Flower Mound), Powell (D-Burleson), Schwertner (R-Georgetown), Zaffirini (D-Laredo).
            Notes: Six Rs and three Ds, with Hughes as the new chairman (a role he took over during the interim). This committee previously handled high-profile issues like AG jurisdiction, “taxpayer-funded lobbying,” abortion, and election laws; whether that will change due to the new committees is unknown.

For a full list of committee assignments, you can view them online here. If you have one or more local legislators on any of the committees listed above, now is a great time to reach out to them when they are back home to let them know that you are interested in the work of that committee and can be a resource for them on the issues that will come before those committees during this session. And speaking of the issues to come before them, they will do so in the form of bills that get referred to each committee, a process that can now begin in the Senate. (But don’t be surprised if that is a slower process than in past sessions due to the pandemic, etc.)

Across the rotunda, House members have until 3:00 p.m. today to submit to the Speaker’s office their requested committee assignments, with no deadline given for when the Speaker might release his new line-ups.

The Big Issues

While we will spend most of the rest of the session talking about criminal justice, public safety, and related local government issues, the break this week has allowed us to give you an overview of the “big picture” issues that will consume most of the oxygen in the capitol this session. We provided a link in our initial Zero Week update to a general overview of issues as summarized by the House Research Organization (which you can access here if you didn’t catch it then), but now we’d like to give you a look at what we think might be the five hot-button issues on which legislators spend the most time and effort this session (in order of increasing importance): Policing, budget, elections, redistricting, and COVID.

5. Policing
Policing reform and law enforcement funding is not a new issue, but the events of 2020 have given it heightened importance coming into this session. To be honest, “our issues” rarely qualify as being of top importance at the Lege, but the polarizing and highly politicized nature of the debates over this topic the past year have secured it a spot on this list. As we’ve said before (such as here and here), we think it is a near-certainty that something will pass that changes how law enforcement perform their duties or how those duties are funded, but we don’t know right now what that will be or who will or won’t be happy with the finished product(s). Further complicating matters, policing reform is also related to the debate over the proper roles and boundaries of the powers of state officials versus local officials, and that state/local tension—which almost merited its own stand-alone inclusion in this Top Five list—will run through several of the issues on this list.

4. Budget
Along with redistricting (and arguably some agency sunset bills), passing a state budget is the one thing legislators must accomplish this year. (Note we didn’t say “this session” because the deadline for a budget agreement is really August 31, the end of the fiscal year, but it’s been many years since a budget was not put to bed in a regular session. [Dang it, there we go, jinxing ourselves!]) In the big picture, the state’s General Appropriations Act is always the single most important bill of any session. As we discussed last week, legislators must figure out how to fund the massive increase in public education spending that they passed last session while navigating the shoals of social shutdowns and the perils of a pandemic economy. Due to the importance of the budget to every other piece of legislation that might have a positive or negative fiscal impact to the state, the House Appropriations and Senate Finance Committees may be the only legislative committees to hold hearings during the first 60 days of the session. What those hearings will look like is anyone’s guess, but if state budget negotiations go south during a session, then everything goes south.

3. Elections
In a highly partisan two-party political system that relies on votes to determine winners and losers, the battle over who can vote and how they can vote is always a heated one. This session, however, recent events—even if mostly outside of Texas—have added more fuel than ever before to this fire. The controversy surrounding the past two presidential elections and the growth of different partisan narratives around each one will make it difficult for either side to find common ground with the other, especially now that the state GOP party platform has identified “election integrity” as its top legislative priority. Despite all the high-falutin’ talk about the sanctity of the vote, etc., etc., these issues involve power politics at its most intense, which can lead to frayed nerves and volatile outbursts at the Lege. Legislators have already filed 100+ bills related to elections, election integrity, voting rights, and the like, and there are more to come. If you are wondering what issue might be most likely to cause the Lege to melt down and grind to a halt, election laws are a good “dark horse” wager.

2. Redistricting
Some of you who have been around the block a few times might recall Texas Democrats breaking quorum and hiding out across state lines two decades ago. The cause? Redistricting. It’s been said about this topic that “every two years, voters pick their legislators; but every 10 years, legislators pick their voters.” And trust us, that picking process can get ugly. While most election-related issues are of partisan importance, redistricting is highly personal for legislators, especially those who are forced to fight for their political life. Few issues lead to as much hurt feelings and bad blood at the capitol, which can make the end of a redistricting session very chippy as legislators pick their moments to retaliate against others—even within their own party—who they think have wronged them by stealing “their” voters or drawing them into unfavorable districts. Due to a delay in receiving federal census data, it is doubtful legislators can finish the redistricting process before adjourning the regular session sine die at the end of May, but whenever it happens, you can be certain that the closer they come to finishing that job, the hotter their tempers will run.

1. COVID recovery & disaster powers
Duh, right? When one issue dominates the news cycle for more than a year, it doesn’t require rocket science to predict that it will also be front and center for legislators. Whether it’s the administration of vaccines, the disaster powers granted to state and local government officials, how businesses are helped or hindered by government actions during a pandemic, or who does or does not have to wear a mask—including in the capitol building itself—the issue of how government has responded, or can or should respond, to a coronavirus-like situation will be perhaps the most contentious topic this session. These debates will involve disputes between state and local governments, the executive branch and the legislative branch, and intra-party Republican battles on the scope and role of government in such situations. What makes the outcome of these issues even more uncertain is the fact that, unlike other issues on this list, they will be issues of first impression for most legislators. As a result, we have no idea how these policy and political debates will be resolved, but let’s pray they get it right.

So, that’s one perspective on the biggest issues facing the Lege this session. Next week—assuming no big news events happen when legislators return for a few days before breaking again—we will look at some hot-button issues more directly affecting prosecutors, along with an overview of the initial House and Senate versions of the state budget that were both released yesterday.

Judicial elections

The Texas Commission on Judicial Selection, which was created by the previous legislature to review the method by which Texas judges are selected for office, published its final report last month. The upshot of its deliberations was that an ever-so-slight one-vote majority of the commission recommended ending the partisan election of future judges, but there was no consensus among the commission members on what should replace it. Perhaps more revealing was that six of the eight legislators on the commission voted against ending partisan judicial elections, which is probably a better indicator of this issue’s fate before the Lege than the final tally. Term limits for judges also failed to gain a single supporter on the commission, while more popular recommendations from the report include:

• increasing the minimum qualifications for judges;
• further regulating campaign funding in judicial elections; and
• continuing the work of the commission in future years.

We expect a bill to be filed to accomplish these latter three recommendations; beyond that, who knows. If this topic interests you, you can read the commission’s final report here.

Bill filings

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. We are currently tracking more than 500(!) bills in more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been proposed so far. And if you ever have questions about an individual bill, feel free to contact Shannon.

Legislative involvement

You can contact Shannon for details on how to get involved in the legislative process. Remember, the squeaky wheel gets the grease at the Capitol, so don’t be shy—your legislators need to hear from you!

Looking ahead

Both chambers will resume work in person on Tuesday, January 26, for a day or two of paper-shuffling, but neither is expected to do anything substantive on the floor next week—although that’s as much a function of the early stages of a session as it is a response to any pandemic or security threat this year. Other than that, no news is good news at this stage.

COVID and the courts

FYI, if you are interested in seeing what other counties’ COVID-19 operating plans and re-certifications look like, the Office of Court Administration has kindly posted them (along with related information) on their website here.

DNA grant funds

The Criminal Justice Division of the Governor’s Public Safety Office has posted notice of $1 million in grant funds available statewide for the forensic testing of physical evidence in state fiscal year 2022. For details, see the “District Attorney Testing of Forensic Evidence” announcement listed ninth on this webpage and download the details as a PDF. The deadline for applications is Thursday, February 11, 2021. For questions or further information, please refer to the eGrants website.

Quotes of the Week

“We must make it fiscally impossible for cities to defund police. This session, Texas must pass laws that give cities a clear choice: Eeither fulfill their duty to keep their residents safe or lose access to all of their tax revenue.”
            —Gov. Greg Abbott (R-Houston), in a roundtable event on the topic of public safety held at DPS headquarters in Austin this week.

“I do not believe the citizens, [or] my constituents, of the state of Texas want this right taken away from them, and I’m not going to be in a position or be the one who does that.”
            —State Sen. Joan Huffman (R-Houston), former district judge, on why she voted against ending partisan judicial elections as a member of the Texas Commission on Judicial Selection.

“There’s a lady that I’m taking care of that I’ve known since I was a child … we grew up together, and I know she’s going to die … It’s the same thing: ‘We got together for Christmas.’ Now we’re seeing the ramification of it.”
            —Ivan Melendez, Hidalgo County Health Authority, quoted in an article on the dire state of hospital capacity due to the current surge of COVID-19 cases.

“I don’t know where it came from. It rather shocked me when the guy told me. … You can certainly have [the coronavirus] and not know it, I can tell you that.”
            —State Rep. Joe Deshotel (D-Beaumont), who tested positive for COVID-19 on the third day of session last week.

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And they’re off! (Literally. As in, the Lege met for a few days and then adjourned for two weeks.)

First week follies

Legislators convened in Austin on Tuesday to take their oaths of office in what served as the first (but surely not the last) coronavirus super-spreader event of the 87^th Regular Session, and then the fireworks began in each chamber.

Senate
Senate members were sworn in and then debated and approved the Senate rules that will govern their business for the next two years. The biggest change to standard Senate operating procedures was a further relaxing of the traditional Two-Thirds Rule (21 of 31 senators) for floor debate. That mechanism was reduced to a Three-Fifths Rule (19 of 31) in 2015 but going forward it was further watered down to a Five-Ninths Rule (18 of 31) to keep the shrinking GOP majority in the Senate above the threshold needed to bring legislation to the Senate floor. Everyone who could count knew the outcome ahead of time, but they debated it anyway, beginning like this after the rule change was laid out and explained by author Sen. Bryan Hughes (R-Mineola):

Sen. Whitmire (D-Houston): “First of all, would you be offended if I called you a snake-oil salesman?”
Hughes: “Not in the least, senator. I’m a politician and a lawyer.”
Whitmire: “An East Texas lawyer. And I’m glad it’s you trying to sell it and not me.”

Of course, the Senate being the Senate, they all had a good laugh at this exchange, and things continued in that vein until everyone had their say and then the rule change passed by a party-line vote of 18-13.

In addition to this change, the new Senate rules also resurrect the Jurisprudence Committee (which was last seen back in 2013 and will have five members this session) and change the Committee on Intergovernmental Relations into the Local Government Committee (which will have nine members instead of seven). But the Senate declined to change any committee rules—such as allowing remote testimony—at this time, with the understanding that most Senate committees (other than the Senate Finance and Redistricting Committees) will not meet for the first 60 days of session. The plan may be to revisit these rules at that time if pandemic conditions in Austin have not improved, but regardless of rules, don’t be surprised if many Senate committees hold no more than two or three hearings on Senate bills for the entirety of this regular session. That would represent a drastically reduced number of hearings compared to a normal session, so keep that in mind when figuring out how to accelerate or slow down Senate legislation you care about.

House
Across the rotunda in the House, members were sworn in on Tuesday and officially selected State Rep. Dade Phelan (R-Beaumont) to be the Speaker of the House, with the only “nay” votes coming from freshmen State Reps. Bryan Slayton (R-Royce City) and Jeff Cason (R-Bedford), two hard-right members of a group that some have dubbed the “Freedom Freshmen.” (Perhaps that’s a new pledge program for the Texas House Freedom Caucus?) Also, in what could be a preview of coming challenges, four House members were absent on the first day: two due to their own positive COVID-19 test results before the session, and two who feared contracting the disease due to lax mask-wearing on the House floor. And sure enough, yesterday a House member who had declined to be tested for COVID-19 before Opening Day announced that he has now tested positive after spending three days on the House floor with other members, leading some of those other members to announce self-quarantines between now and when the Lege reconvenes. (Welcome to the new normal, #txlege-style.)

The House later considered its rules for the next two years, and after a few hours of debate it adopted rules that include a pandemic addendum now in effect, but which can be revoked by a vote of the House later if conditions improve. Those new pandemic rules include temporary changes so that House members can attend floor sessions from the House gallery and can also vote on floor measures from secure House laptops placed in adjacent rooms and the gallery. Like the Senate, the House then adjourned until Tuesday, January 26.

So, that is a brief preview of how legislators will conduct their business during this pandemic session, but what about the rest of Texans who must come to the capitol if they want to get something done?

Public participation

The general rules for public access to the capitol building are available here and include single-point entry/exit, voluntary COVID-19 testing, the mandatory wearing of face masks in public spaces, unspecified capacity limits, and more. However, the House and Senate rules include differing requirements for how the public might participate in committee proceedings during the pandemic. (Nothing can ever be easy with the Lege, can it?)

In specific regard to the pandemic, the new Senate rules limit public attendance in the Senate gallery or in Senate committee rooms to only those with a wristband indicating a negative COVID-19 test or completed vaccination. The rules also require face masks be used in public areas of the Senate except when speaking into a microphone during a committee hearing or floor debate. However, senators will still make their own rules for admission to their individual offices, and they needn’t wear masks when at their floor desks, which are already spaced out. (“Membership has its privileges,” as they say.) The Senate’s COVID-19 testing requirement was not included in the new House rules, but unless you’ll only be handling House business when in the capitol, the temporary Senate requirement will probably bear following for now.

Other than these temporary mask-and-test rules, the Senate has largely taken a wait-and-see approach to its committee and floor proceedings with the understanding that there won’t be many Senate committee hearings or floor discussions until mid-March. However, the House adopted new pandemic floor and committee procedures that go into effect immediately. Under these new rules for the lower chamber, committees will be allowed to hold hearings and take testimony with an in-person quorum of any two committee members as long as other members of the usual quorum requirement participate remotely. At those hearings, each House committee chair will have the discretion to invite witnesses to appear before the committee remotely, but any other witnesses will have to testify or register their support or opposition in person. However, as was sometimes done over the interim, House committees will electronically accept written public testimony on each bill heard by a committee from “persons domiciled in this state” in a manner yet to be determined, and that submitted testimony will be publicly accessible in some form or fashion.

So, what does this mean for you? Our guess is that experienced capitol advocates and well-organized special interest groups will have an advantage over the general public in obtaining coveted “remote testimony” invitations if they lobby committee chairs and other committee members for them ahead of time. For everyone else, the new mask and room/building capacity requirements may make the new electronic participation option attractive, but we think that alternative is likely to be ineffective for at least two reasons. First, it will be difficult for committees to police the “Texas resident” limitation on online submissions, resulting in a glut of content being submitted online; and second, legislators have historically been unlikely to read written submissions at the committee stage, and a high volume of submitted testimony may make it even less likely that public comments submitted online ever reach their intended audience. Therefore, your relationships with, and access to, your local legislators who end up serving on relevant committees this session will be more important than ever before, as will some tolerance for masking up and waiting (… and waiting … and waiting …) for those of you who wish to get involved in person.

Legislative involvement

This is probably a good point at which to remind you that you can contact Shannon for details on how you can get involved in the legislative process. Remember, the squeaky wheel gets the grease at the Capitol, so don’t be shy—your legislators need to hear from you!

Budget revenue estimate

The comptroller issued his biennial revenue estimate (BRE) this week to give a snapshot of the state’s current finances and set the bar going forward for how much money the legislature can spend in its next two-year state budget.

The good short-term news is that the state should end up only ~$1 billion short of revenue for the current biennium despite the economic downturn caused by the pandemic. The Lege had given itself an almost $3 billion cushion in the original FY 2020-21 budget, but the pandemic and resulting economic downturn blew a hole in that plan and some estimates last summer projected as much as a $5 billion deficit in lieu of that original cushion. Thus, ending that teeter-totter ride of projections down only ~$1 billion looks relatively good in context, for which you can thank Uncle Sam’s largesse, along with whoever in your house has been doing all the internet shopping and helped to keep state sales tax collections steady. For a state that annually blows through more than $120 billion in state and federal funds, a $1 billion hiccup is not too bad, and that number could be further reduced once the impact of agency budget cuts from last summer are factored in. The Lege also has the cushion of the state’s Rainy Day Fund, which weighs in at roughly $8.5 billion right now and could grow to around $11 billion if left untouched for the next two years.

Going forward, the state budget writers will have to write a check to cover the current biennial shortfall invoices coming due now (for a total of ~$1.5 billion). They will also have a hair less to spend over the next two years than they had during the current biennium, which is not good news considering the growing demand placed upon government coffers by the pandemic and our state’s growing population, not to mention looming problems like the continued underfunding of the state’s Employee Retirement System (ERS)—in which you elected DAs are members of the Elected Class. As a result of these competing demands and a lack of new revenue, budget writers are likely to take a “hold the line” approach on most funding this session unless they hear differently in April or May when the comptroller can fine-tune his projections for the final budget negotiations. Between that flat-line plan and the possibility of yet more federal pandemic funds coming our way, we don’t expect the Lege to seriously consider passing anything that smacks of a new tax or other revenue source this session—and that includes sin taxes like casino gambling or marijuana.

For any budget nerds out there, the full BRE can be found here.

Bill filings

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. We are already tracking more than 450 bills in more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been proposed so far. And if you ever have questions about an individual bill, feel free to contact Shannon.

Looking ahead

Both chambers have adjourned until Tuesday, January 26, at which time they are likely to come together to caucus behind closed doors and perhaps hear the governor’s State of the State Address, although that could be delayed until early February. Such a long break is unusual, but it serves at least three purposes: It allows Democratic legislators to jet off to D.C. for President-elect Biden’s “inauguration lite” festivities on Wednesday without missing anything important back in Austin; it keeps large legislative crowds from congregating inside the state capitol during a pandemic; and it gives legislators and their staffers a reason to not be in the Big Pink Building the latter part of next week, when the FBI expects more “stop the steal”-type protests at all 50 state capitol buildings. And after they convene for a few days two weeks from now, don’t be surprised if the House and Senate adjourn again until the second week of February for further pandemic-avoidance reasons. Such long adjournments are practically unheard of during the early weeks of a session, but guess what, Toto—we are not in Kansas anymore.

Assuming nothing goes sideways on us next week, we will try to use our free time to pen a “big picture” analysis of the upcoming session for our next update. Look for that next Friday!

Quotes of the Week

“Be prepared for fewer bills to pass the House and Senate.”
            —State Rep. Charlie Geren (R-Fort Worth), as quoted during a remote conference with the Texas Taxpayers and Research Association about the impact of pandemic restrictions on the legislative process.

“There is so much potential for lack of transparency, for back-dealing, for really shady business to happen during a session when much of the public is shut out of the process.”
            —Stephanie Gharakhanian, advocate for the Workers Defense Project, on why she worries that some of the health and safety proposals put forth for the session could have adverse consequences on the end product.

“It basically means you don’t need to negotiate with the other party in order to get things passed.”
            —Robert Lowry, political science professor at UT-Dallas, on the change in the threshold rule for considering legislation on the Senate floor.

“We’re the majority. Elections matter. If we don’t change the rules today… the Democrats would be controlling the Senate.”
            —Lt. Gov. Dan Patrick (R-Houston), as quoted in that same article.

“Just like you gotta wear pants.”
            —House Speaker Dade Phelan (R-Beaumont), when asked during a pre-session interview whether visitors would have to face coverings in the public areas of the state capitol this session.

“I’ve long said Texas lawmakers are just like the Texas people they represent. Some are insightful people here to do the most good for the most people. Some are thieving crooks killing time before they become lobbyists. And some are just wondering what’s for lunch.”
            —Ken Herman, Austin American-Statesman columnist, in an article discussing new press restrictions at the state capitol.

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Is it too soon to wish it were already 2022?

New phone, who dis?

Welcome to the inaugural TDCAA legislative update for 2021. For those of you who are newly elected, this will be the first of a series of weekly updates from us in Austin that are intended to help you keep up with the important happenings at the state capitol. The goal of these updates is to make you the most well-informed person in your courthouse on the legislative issues that affect your offices and our court system at large. These updates will be emailed to elected prosecutors and other key office staff who track legislative issues; to add, delete, or correct an email on this distribution list, please email Shannon Edmonds. Note also that most content in these updates will be publicly archived on our Legislative webpage if you want to direct interested parties to that resource as well.

Mandatory training

Congratulations to all our new and returning elected prosecutors! Now it’s time for you to read the fine print on the job you just won, and that includes two mandatory training requirements.

The first training mandate is for all new and returning elected prosecutors who were just sworn in and it relates to the Public Information Act, as required by Gov’t Code §552.012. Every elected prosecutor—or that prosecutor’s public information officer if the office has one—must complete this open records course within 90 days of taking the oath of office. You old-timers might recall that we used to offer this at our December Elected Prosecutor Course, but the 2020 version of that training was postponed due to the pandemic, meaning that all of you who were just sworn in—whether for the first of fifth time—will probably need to take it online. Fortunately, the Office of the Attorney General (OAG) has created an online course that satisfies this training requirement; to complete it, visit this webpage.

The second mandatory training course relates to a prosecutor’s duty to disclose exculpatory and mitigating evidence and is required by Gov’t Code §41.111. Every new elected and assistant prosecutor—whether elected, appointed, or hired—has 180 days from the date of his or her election/hire/appointment to complete this required Brady training. Thanks to funding from the Criminal Justice Section of the State Bar and the Court of Criminal Appeals, prosecutors can complete the required training for FREE through our website. This course (from 2018) is required every four years; contact [email protected] if you aren’t sure whether or when you last took the class.

OK, now on to the main event!

Important legislative dates

If your Texas civics lessons have gotten a little fuzzy after all these years, never fear! We are here to remind you how this works. (Or doesn’t work, as the case may be.)

Every odd-numbered year, the Texas legislature convenes on the second Tuesday in January and meets in regular session for a maximum of 140 days. For the upcoming 87^th Regular Session, the following dates might deserve a place on your 2021 calendar:

            Tuesday, January 12:              86^th Legislature convenes (“Opening Day”)
            Tuesday, January 19:              Inauguration Day for the governor and lt. governor
            Friday, March 12:                   60^th Day; final day to file most bills
            Monday, May 31:                   140^th Day (“Adjournment Sine Die”); session ends
            Sunday, June 20:                     Deadline for governor to veto a bill
            Sunday, September 1:             General effective date for most legislation

Other things that will take place the first six weeks of the session include the release of the comptroller’s official revenue estimates (letting the state’s budget writers know how much they have to spend for FY 2022–23), the election of the speaker of the House, the adoption of House and Senate rules, the governor’s State of the State address, the chief justice’s State of the Judiciary address, the naming of committee members, and the filing of several thousand more bills. (Don’t worry, we will read them so you don’t have to.) The 60-day bill-filing deadline forces the first month or two of session to focus on drafting and filing bills; the remaining 80 days are then dedicated to passing or killing them, and that is when prosecutors who are interested in supporting or opposing legislation can have the greatest impact on the process.

Legislative involvement

This is probably a good point at which to remind you that you can contact Shannon for details on how you can get involved in the legislative process—even if it is only to get an up-close-and-personal view of the sausage-making for your first time. Remember, the squeaky wheel gets the grease at the Capitol, so don’t be shy—your legislators need to hear from you!

That said, the coronavirus pandemic will make this a session like no other. Uncertainty regarding the public’s access to the capitol makes it impossible to plan ahead or to know what issues will be taken up when, much less in what format that will happen. We will keep you posted as news trickles out regarding rules for accessing the capitol and participating in committee hearings and such, but if you already know you are interested in coming to Austin during the session to get more involved, reach out to Shannon now to get on his list for whatever that may look like.

Capitol access

The state capitol, which has been closed to the public since March 2020 due to the pandemic, was finally opened to the public this past Monday—only to be locked up tight again on Wednesday in response to the rioting in the nation’s capital. The Big Pink Building then re-opened on Thursday with an increased security presence, and they will probably be taking things day by day from there.

The initial rules for public access to the capitol building are available here and include single-point entry/exit, recommended COVID-19 testing, unspecified capacity limits, and more. As for who’s in charge of all this, access to the capitol proper is the purview of the little-known agency called the State Preservation Board (SPB), which is chaired by the governor and includes the speaker, lite guv, and other legislators. What will make capitol access challenging this session is that the SPB can issue one set of general rules for the capitol complex, but the House and Senate will also adopt rules for own their members’ access and conduct, and all three sets of rules may conflict. (One example: Both House and Senate are planning to kick the media off their cushy floor-level seating and into the gallery above with the hoi polloi, but the House is permitting four times as many press observers as the Senate, and the Senate may bar media from committee rooms, unlike the House.) As a result, trying to interact with legislators in person in Austin will be even more of a chore than usual. If you are planning to make a trip to Austin for that purpose, feel free to contact Rob or Shannon ahead of time to get the latest information if you don’t want to make a potentially fruitless trip. At a minimum, we expect any in-person capitol visits for the first 60 days of the session to require face coverings, delays in entering due to capacity issues, and legislators or staff who may meet only by pre-arranged appointments.

Big issues and bill filings

For a glimpse at some of the issues the 87^th Legislature may tackle this session, check out Topics for the 87^th Legislature (PDF), a preview prepared by the House Research Organization. We’ll delve into some of these issues in greater detail in future updates, including some that may not be on your radar yet but should be. (How’s that for a teaser?)

We are also keeping up with daily bills filings at the capitol. For a list of bills filed to date 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. We are currently tracking almost 400 bills in more than 40 different bill tracks for various topics, but these three lists will give you a good idea of what has been proposed so far. And if you ever have questions about an individual bill, feel free to contact Shannon.

COVID and the courts

We didn’t have much to add to our COVID-19 resource webpage over the final month of 2020, but some newsworthy things happened over the holiday period, including:

• The Texas Supreme Court blocked restaurant and bar restrictions imposed in Travis County (and by extension, Bexar and El Paso Counties) over the New Year’s holiday after the governor and attorney general registered opposition;
• The Texas Supreme Court, through its Office of Court Administration (OCA), has extended to January 11 the deadline for local administrative district judges to re-certify their COVID-19 local operating plans, with a continuing emphasis on limiting all in-person proceedings; and
• OCA noted that “workers supporting the operations of the judicial system, including judges, lawyers, and others providing legal assistance” are identified as “essential critical infrastructure workers” by the U.S. Department of Homeland Security, a fact that may become relevant to who is eligible for COVID-19 vaccination when Texas reaches Phase 1C. Those details have not been confirmed by the state—which has only addressed Phases 1A and 1B to date—but we will let you know when that decision is made.

Online CLE

Registration is now open for this year’s “Fundamentals of Prosecution,” an online course designed to give new (and new-ish) prosecutors the tools they need to effectively accomplish the mission of their offices. Starting January 11, the course consists of 13.5 hours of recorded training over core subjects such as bonds, plea-bargaining, search and seizure law, case analysis, and ethical decision-making. Additionally, optional live webinars are scheduled after each of four consecutive weekly content releases to allow attendees to confer with experienced TDCAA faculty regarding that week’s training (or prosecution issues in general). Prosecutors who complete the course will also receive four TDCAA publications (Predicates, DWI Investigation and Prosecution, Punishment and Probation, and Traffic Stops) by mail. Registration and additional information for this groundbreaking new course can be found here.

Quotes of the Month

“Senators have agreed to a much shorter opening day ceremony to reduce the time spent in a large gathering. The Senate is reducing all ceremonial events and gatherings this session to focus solely on their constitutional legislative duties.”
            —Lt. Gov. Dan Patrick (R-Houston), in a memo announcing the state Senate’s coronavirus protocols for the opening day festivities at the capitol next week.

“This will make it even harder for the public to engage in the legislative process. If you’re an activist on any given topic, it’ll be harder for you to have an impact.”
            —Brendan Steinhauser, GOP political consultant, on health and safety protocols that will limit public access to the state capitol during the upcoming session.

“I found out it’s not good to talk about my troubles. Eighty percent of the people who hear them don’t care, and the other 20 percent are glad you’re having trouble.”
            —Tommy Lasorda, Hall of Fame former manager of the Los Angeles Dodgers, who passed away yesterday at the age of 93. #RIP

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