Neither the dust nor the fire has quite settled on criminal justice bills in the 79th Legislature. Amidst a flurry of last-minute legislative sparks, a bill that critics charged would have increased the pace of Texas’ already accelerated executions finally died. And House Bill 268 didn’t go down alone – with it to the grave went long-awaited judicial pay raises, legislative pensions, and millions in additional state funding for indigent defense.
In January, Rep. Terry Keel, R-Austin, filed legislation to revise the qualifications for attorneys appointed to represent indigent defendants in capital cases. While some advocates contested the provisions regarding trial appointments, the main criticism was that Keel’s proposal to extend the mandatory qualifications to attorneys appointed to represent poor defendants in their post-conviction writs would trigger a dormant provision of federal death penalty law that would fast-track death cases, speeding inmates on the death chamber assembly line – potentially without their cases ever receiving meaningful federal court review. The so-called “opt-in” provision of the Antiterrorism and Effective Death Penalty Act of 1996 would shorten the time that a capital defendant has to appeal his case to the federal courts, in essence offering deference to state court opinions. Every state in the union has thus far avoided triggering the opt-in provision.
At first, Keel accepted the criticism of that portion of his bill deferentially, saying he would compromise with Senate sponsor Juan “Chuy” Hinojosa, D-McAllen, to keep the trial appointment revisions intact but remove the language that would trigger the federal opt-in provision. But when the bill came out of the Senate committee there were additional revisions to the trial appointment standards. The legislation went to conference committee, where the bill’s critics say Keel placed the opt-in language back on the table. The conference committee version passed through the full House with a unanimous vote, but the changes didn’t go over well in the Senate, where word quickly spread that Sen. Rodney Ellis, D-Houston, would filibuster the measure – a promise that effectively kept Hinojosa from calling the bill to the floor at all.
Not surprisingly, Keel did not take the news well, and on the day before adjournment, during an extraordinary personal privilege speech on the House floor, he announced his intention to retaliate by using a point of order to kill SB 368, a bill that would’ve raised judicial salaries and, with an Ellis-written amendment, also provide an additional $13 million in state funding to help counties pay for indigent defense. In Keel’s recounting, Ellis’ filibuster threat came up only after Keel expressed his concern over several “questionable” amendments that the Senate reattached to SB 368, after, he says, Ellis and SB 368’s author, Sen. Robert Duncan, R-Lubbock, had agreed to remove them. In short, Keel charged that the senators “reneged” on the lawmakers’ deal. In part, Keel said, the problem was that the Ellis amendment providing the additional funding for indigent defense was not germane to the body of the legislation and would certainly die with a constitutional point of order. Despite last-minute efforts, when the dust settled, both bills were dead.
In a June 1 press conference, Ellis told reporters that the judicial pay raise bill had been “held hostage” by Keel as a means to force the Senate to support HB 268. “[W]hen I refused to blink, they shot the hostage,” Ellis said. Keel counters that he and Hinojosa bent over backwards trying to find a way to appease Ellis’ concerns about HB 268 – Keel says he even proposed removing the habeas appeal portion of the bill. “We did everything to try to allay those fears,” about federal opt-in status, Keel said. Hinojosa said he and Keel tried what they could but that, in the end, the bill died because of philosophical, and not practical, disagreements about the state’s death penalty statute. “To Keel’s credit, he tried to reach an agreement” that would’ve passed HB 268, Hinojosa said, “and he felt that Ellis broke a promise” by withdrawing support for the bill.
Nevertheless, Keel is taking heat across the state for axing SB 368. Texas judges haven’t had a pay raise in nearly a decade, and the state ranks 40th in the nation in judicial pay – facts that Texas Supreme Court Chief Justice Wallace Jefferson says jeopardize the state’s ability to attract good judicial candidates and may drive seasoned jurists from the bench. (Lawmakers passed a judicial pay raise in 2001, but Gov. Rick Perry axed it with a line item veto during his infamous Father’s Day Bill Massacre.) In a final twist, Keel claims that Jefferson called him Sunday night on the House floor threatening to find candidates to run against both Keel and Ellis.
Ellis denies that Jefferson ever threatened him, and Jefferson later said that the whole thing was a misunderstanding – that he told Keel that it would be hard to find judges to run for the bench without the promise of higher compensation, but that Keel hung up on him before he could clarify. “I don’t understand the whole legislative process,” Jefferson told me last week. “But we need to do the best job that we can to retain [good] judges.”
This article appears in June 10 • 2005.