FIFTY-THIRD DAY — WEDNESDAY, APRIL 30, 2025

TABLE OF CONTENTS

House Journal Supplement — April 30, 2025

Pages

HB 366 S2

CSHB 45 S25

HB 366, A bill to be entitled An Act relating to required disclosures on certain political advertising that contains altered media; creating a criminal offense.

REPRESENTATIVE TINDERHOLT: Representative Phelan, this bill is numbered HB 366. That's correct?

REPRESENTATIVE PHELAN: Yes, sir. That's correct.

TINDERHOLT: I'm seeing it was filed on February 27, 2025. Is that also correct?

PHELAN: That sounds correct. Yes, sir.

TINDERHOLT: HB 365 in front of it and HB 367 behind it were filed on November 12, 2024. Were you speaker of the house on November 12, 2024?

PHELAN: I sure was, sir.

TINDERHOLT: Why did you save bill number 366 for this bill that you filed four months later?

PHELAN: Well, I reserved 366 for a piece of legislation. It just happened to be this piece of legislation.

TINDERHOLT: Did you consider doing any other bills in the spot for 366?

PHELAN: I can't recall. I had so many bills in Legislative Council that this was one of the first ones that was ready.

TINDERHOLT: I'm looking at the race for House District 21. Apparently, the election night returns had you winning the runoff by 366 votes. Is there any correlation between the house bill number of 366 and winning by 366 votes?

PHELAN: There might be. That's a heck of a correlation you made there, but I will say the official vote was 386.

TINDERHOLT: Okay. And so why did you choose this bill about political speech after your margin of victory in the primary?

PHELAN: I actually have about five bills dealing with ethics reform, the ethics commission, and disclosures. I felt it was time that the legislature address those. They're not fun topics, and it's something that is near and dear to my heart––the integrity of elections. This bill is not about me, Mr. Tinderholt. This bill is not about you. This bill is not about anybody on the house floor. This bill and the other bills I hope to bring to the house floor––I have two tomorrow that I'm sure you're going to love as well. It's about the integrity of our elections and what the voters see, whether it's media or mail. And we know that AI––this would probably be the fifth bill on the house floor dealing with AI. So it's obviously something that is infiltrating different aspects of our lives.

TINDERHOLT: Did you consider whether using your margin of victory as the bill number might make the bill look like a personal vendetta versus a true mission to try to change the election process?

PHELAN: A personal vendetta against whom, sir? I know you ask the questions. It was a number that I appreciate my voters sending me back on. It is simply a bill number.

TINDERHOLT: Would you agree that laws targeting speech should be written objectively and not emotionally?

PHELAN: Sir, there is not a bill I've ever had on this house floor that I am emotional about.

TINDERHOLT: I just find it ironic that it's 366 and that was the first number that came out for the election numbers. I understand that they changed, but I just find it very ironic. Thank you.

PHELAN: There's nothing ironic about it.

REPRESENTATIVE LUTHER: So this bill is a Class A misdemeanor?

PHELAN: That is correct.

LUTHER: So what are the consequences for this? Could you explain that to me?

PHELAN: Of course. It would go to the district attorney's office, and a Class A misdemeanor is––let me see if I have the actual penalties in front of me. It's up to a year in jail, ma'am.

LUTHER: Up to a year in jail?

PHELAN: Correct.

LUTHER: I've been to jail. For three days. For working. Do you think that's a fair punishment for someone creating an image or a meme?

PHELAN: Well, it's a very serious offense.

LUTHER: Up to a year in jail, sir?

PHELAN: Well, we could do a civil fine. Correct? And as of right now—well, going into session—there are 750 cases totaling $3.6 million in uncollected fines. So fining someone $500 in a campaign that could be $5 million, $10 million, correct? A $500 fine is a cost of doing business in an election, but if someone were to commit an offense of this nature, it would certainly get their attention. And hopefully prevent them from doing it.

LUTHER: You think a year in jail for making a cartoon matches the offense?

PHELAN: It would be probation. You and I both know that.

LUTHER: No, I don't. It literally says in your bill––because I personally have dealt with judges who take a personal vendetta against you and make you an example. I have actually lived that my whole life. For working, I got thrown in jail. So I am asking you: If someone creates a cartoon, they could go to jail for a year? That's what you're saying in your bill.

PHELAN: No. What I'm saying is––and by the way, your circumstances and your confinement have nothing to do with this piece of legislation.

LUTHER: No, I'm talking about if the punishment matches the offense. And I can talk about that all day long, sir.

PHELAN: And that's your prerogative. This is a deterrent to using fake or altered media to drastically change the outcome of an election. I think that's a serious offense, and it shoud be taken seriously. I'm not taking this lightly at all.

LUTHER: So you don't think there's been political satire? It's been a tradition in America for a long time.

PHELAN: Absolutely, and it will continue.

LUTHER: Right. So now that you have this bill, you're expecting that to completely stop.

PHELAN: No.

LUTHER: If you're in an area like Dallas, they'll say, "We're going to put you in jail for"—I mean, we have J6ers that are in jail for doing nothing.

PHELAN: This has nothing to do with January 6.

LUTHER: No, I'm comparing the offense to the punishment.

PHELAN: Okay, that's fine. This bill applies to individuals whose political speech is currently being regulated by the State of Texas––either through statute or through rule, the Texas Ethics Commission. The persons, lines 10 through 18, are already required to have disclosures. They have to have "political ad paid for by." That is the same universe that is currently being regulated that is being regulated in this bill. No new individual, no new person is being brought in to HB 366. I know that's the narrative out there on Twitter, social media, but it is not accurate. This is the same universe that is being regulated currently that will be regulated under HB 366. All you have to do is disclose that you are lying to the public with your media. That video's been altered. It did not occur in reality. That's all you have to do is disclose it, just like you disclose "political ad paid for by."

LUTHER: So the first night I was in jail, everyone looking at me, they said, "Why are you here?" And I said, "I was working." And can you imagine someone going to jail for a year, and they say, "What are you in here for?" And they say, "I drew a cartoon."

PHELAN: Well, it wouldn't apply to them unless they are currently also not following the law.

LUTHER: I will not be voting for this bill, thank you.

PHELAN: Thank you, ma'am.

REPRESENTATIVE SCHATZLINE: Representative, are you familiar with strict scrutiny?

PHELAN: I can't hear you. Say that again.

SCHATZLINE: Are you familiar with strict scrutiny?

PHELAN: You can enlighten me.

SCHATZLINE: It's the standard by which courts review government regulations on speech. It requires the government to have a compelling interest and for the bill to be narrowly tailored. What is the compelling interest here?

PHELAN: Again, we have been regulating political advertising since before I was born. This has been going on for decades. This is nothing different than we currently do for political advertising. You, as a candidate or office holder, have to put "political ad paid for by" when you enter this political advertising arena. All this does is asks you, or tells you, to add in a disclosure that you are using altered media.

SCHATZLINE: So if a law burdens more speech than necessary, would you agree that it is unconstitutional?

PHELAN: Absolutely. Again, this is regulating speech, which we have been doing for decades. It is no different.

SCHATZLINE: Did you consult with a constitutional lawyer before drafting this bill?

PHELAN: I actually did consult with several attorneys. Yes, sir.

SCHATZLINE: Were you aware that courts have consistently struck down vague or overly broad speech regulations?

PHELAN: I don't think they apply to this bill, sir.

SCHATZLINE: I want to reiterate another question that's been asked, because I think it's important. So is it your goal to put someone in jail for political speech? Because that's what this bill would do.

PHELAN: It is my goal to prevent someone from impacting or altering an election by using fake media that never occurred in reality––be it AI or deepfakes. We saw the chilling effect it had this past cycle. We see it every day, whether it's President Trump or former President Biden––with their voice and their likeness. You cannot distinguish between reality and this generative, new technology. You cannot tell the difference.

SCHATZLINE: So we know that this law is going to be abused to put people in jail for political speech. Is it your intent to limit grassroots organizations from criticizing their elected officials?

PHELAN: This does not apply to grassroots organizations, sir. Again, Section 255.0015, (1), (2), and (3)––you have to satisfy those requirements to be in this bill. If you are (1), (2), and (3) in this bill, you are already required to put "political ad paid for by." You already have regulations on your political advertising speech. That's the current law as it stands today.

SCHATZLINE: Representative, this is going to end up with people in jail for political speech.

PHELAN: It will not. It will not.

SCHATZLINE: I am going to oppose, and I hope everyone else does too.

PHELAN: It will not. Thank you, but it will not.

REPRESENTATIVE OLCOTT: Is it true, Representative Phelan, that when you laid this bill out in committee, initially the Texas Public Policy Foundation supported your bill?

PHELAN: That is my understanding. Yes, sir.

OLCOTT: Is it true that they later recanted that bill and retracted it?

PHELAN: To my knowledge, they were in my office this week supporting the bill, sir. That is my knowledge.

OLCOTT: That's interesting, because I was told—this was the statement I have been informed that they read. After coming out in support, they recanted it and said, "While we appreciate the efforts of SB 893 and HB 366 to ensure the integrity of our elections, Texas Public Policy Foundation's testimony did not adequately reflect the concerns we have with the current language or go far enough in specifying the precise conditions under which we would ultimately support the bills. We look forward to working with the bill authors and committee members to make the necessary changes that would accomplish the goal of protecting voters and the integrity of our elections." Have you made the changes that they recommended?

PHELAN: Were they speaking to the filed version or the committee substitute?

OLCOTT: That was a statement that they actually just issued. I believe that was a public statement.

PHELAN: You say that. I don't know if you're accurate or not.

OLCOTT: You're not aware of that statement, then?

PHELAN: I'm not aware of that statement, but I do know after that hearing, the committee substitute addressed the concerns brought up in committee.

OLCOTT: Have you discussed any of these changes with the Texas Public Policy Foundation? The ones that they brought up?

PHELAN: Sir, I have not had any conversations with the Texas Public Policy Foundation this session, period. When they supported the bill, it was when they walked in and testified in favor of the bill. I did not talk to them prior to filing the bill, and I have not talked to them since the committee substitute has been laid out and voted out of committee.

OLCOTT: But you're going on record here saying that the Texas Public Policy Foundation currently supports your bill?

PHELAN: I don't know, sir. I don't know. You say they don't. I can tell you no one testified against the bill, and no one has come to my office opposing the bill since the committee substitute has been voted out. Zero. Not one person.

OLCOTT: Okay. Well, apparently they have changed their mind and were looking to work with you, but apparently you didn't want to. I'll be voting against the bill. Thank you, sir.

PHELAN: That statement is your statement. I will call the Texas Public Policy Foundation when we get off the floor, though.

REPRESENTATIVE MONEY: Representative Phelan, can you identify some of the specific types of political advertising that you think would be a crime under this bill?

PHELAN: Well, again, if you knowingly, with the intent to publish through broadcast political advertising, including image and audio recording or video recording, an officeholder or candidate's appearance, speech, or conduct that did not occur in reality.

MONEY: So last election cycle, you and various PACs directed by you spent quite a bit of money in Republican primary elections that published, distributed, and broadcasted political advertising. Is that correct?

PHELAN: I donated money to individuals. I was not involved in the creation of media or the mail or radio and TV. I did not get involved in that, no, sir. No more than when you give a donation to a candidate, you get involved.

MONEY: Sure. And the kinds of political advertisements that we're told are concerning are maybe a picture that didn't happen in reality, such as—I think—a famous picture of you hugging Nancy Pelosi. And you've never hugged Nancy Pelosi, is that correct?

PHELAN: I've never been in the same zip code as Nancy Pelosi.

MONEY: Me neither, and I don't think you would hug her. But there was a picture of you hugging her, and that would violate this rule, is that correct?

PHELAN: It would certainly require disclosure that that image did not occur in reality. That's all it would take.

MONEY: And if someone published that picture without publishing that disclosure, they and any broadcast company, social media site that broadcasted that would be subject to both civil and criminal penalties, is that correct?

PHELAN: No, sir. I don't think you've read the bill, because if you go to page 2, it certainly carves out all those individuals who would have been liable for publishing any type of media.

MONEY: I'll move on then. So last cycle––if there's a PAC that you donated heavily to that sent a political mailer to my district showing a picture of me next to Xi Jinping with the Chinese flag superimposed on farmland, falsely claiming that I helped to sell farmland to the Chinese Communist Party, that would be a crime under this bill, correct?

PHELAN: Are you sure you're not talking about my election when that piece of mail was sent?

MONEY: I think there are probably more of us than just one that got that. But that would be a crime?

PHELAN: I definitely got that one, yes, sir. But you're correct. That would fall under this disclosure that I did not meet that individual. I never shook his hand. A disclosure saying this did not occur in reality would have to be included on that piece of mail, just like in my race and in your race. This is an equal opportunity disclosure bill.

MONEY: Do you think voters in House District 21 believe that you actually did hug Nancy Pelosi?

PHELAN: That's a great question. Yes. The same reason they came up to me and said, "You know what, I don't think Donald Trump endorsed your opponent. That was some deepfake AI stuff." I was not quick to correct them and tell them, no, he did actually endorse my opponent. But they did not believe it was real because there's so much out there that's not real. So when there are things that occur that are actually accurate, they also don't believe it. That's the point of the bill, sir. Mr. Money, it's not about you, and it's not about your election. I'm sorry you had some mail you didn't like. I got mail I didn't like. This is about what your voters believe and what my voters believe. It's not about us. And you and I will just be a face on a composite in the basement one day, and we won't be remembered. But if we don't protect our elections and if we don't do something about the integrity that our voters see on a daily basis, all of this is not worth it. Because then anyone could be up here––an image, a video—anybody could go run for election. I'm not the best-looking man, right? I've got a big forehead. I'd love for my forehead to be a little smaller, but that wouldn't be reality. I'd like to be 6'2", but that wouldn't be reality, right? So let the voters know exactly what they're getting every time they go to the ballot box. Sir, why anyone would want to operate in the shadows is beyond me.

MONEY: I don't want to operate in the shadows.

PHELAN: Good. Vote for HB 366, and you won't be operating in the shadows. Put a disclosure on any mail piece you have out there, and say, "This is fake; I'm lying to you, voter. I'm lying to you."

MONEY: But if someone makes your forehead––

PHELAN: Let him finish his comment about my forehead.

MONEY: I don't want anyone to make fun of my appearance either. You've got a nicer head of hair than I've got. But if someone makes your forehead larger than it should be—

PHELAN: They don't have to.

MONEY: But I don't think they should be subject to jail time for that. This is an overreach. Nobody likes bad political advertisement. You don't, and I don't. And I get that, but that's part of what we have to live with. When people overreach and they say we've sold land to the Chinese Communist Party and they say we're affiliated with neo-Nazis and ridiculous comments like that, then we answer for it, and truth covers truth, and we move on.

PHELAN: This won't stop lies. People are going to lie about me, and they're going to lie about you. They're going to lie about anyone who runs for office, whether it's local, state, federal––there always will be lies. The problem is we're getting to a point in time—again, this is the fifth bill we've heard on the house floor dealing with AI and new technology—we have to get ahead of it. We're always playing catch-up to technology. When I first got elected, it was just the World Wide Web. It was Facebook. Now this is AI. On Monday, Senator Ted Cruz passed the TAKE IT DOWN Act 409 to 2. The federal government—

MONEY: That's a different bill. Let's keep it about your bill.

PHELAN: It's still about AI, though. It's still about AI infiltrating our lives.

MONEY: We're talking about political memes, and I appreciate it. I don't like lies in political advertising as well. But this bill goes too far, and I'll vote against it.

REPRESENTATIVE LITTLE: The conversation got a little emotional. My questions are going to be a little more technical. Speaker Phelan, this morning I woke up, and there was a meme on social media by the learned scholar Carnifex Maximus. It has you in Soviet regalia, and it says you're harboring unauthorized memes. Obviously that wasn't you, right?

PHELAN: I hope not. No, sir.

LITTLE: Certainly not. My understanding of your bill is that you are hoping to exclude—or regulate—memes like that if they are promulgated by a certain class of person. Isn't that what the bill does?

PHELAN: It is a narrower approach, yes, sir. We're trying to stick within the boundaries of current law, and those who currently are––their speech is regulated because they fall in the category currently either through statutes or rules that we regulate political advertising.

LITTLE: So you said earlier in your response to some of these questions that this isn't about us. But it seems to me that this is expressly about us. And the question of whether members of this body should be subjected to ridicule—which aren't there really good reasons to ridicule the people in here?

PHELAN: One hundred percent. We sign up for this. I will say, our families don't sign up for this. Our wives and children don't sign up for this. But we certainly enter this arena, and we certainly sign up for it. I don't care about memes. I don't care about lame memes or funny memes. This has nothing to do with Twitter. This has to do with political advertising, which is a different threshold under statute and under TEC rule.

LITTLE: Speaker Phelan, you said this isn't about the grass roots, and it's not about memes. But I'm looking at Section (a)(2) of your bill, and here's how I read this. Please correct me if you think I'm wrong. It says the section applies to a person who "makes expenditures during a reporting period that in the aggregate exceed $100 for political advertising, other than an expense to cover the basic cost of hardware, messaging software, and bandwidth." So a person in grass roots could make expenditures in excess of $100 in a reporting period about something totally different than that meme, and they would be subjected to reporting under this section. Isn't that right?

PHELAN: Again, this mirrors current TEC rule under political advertising disclosure. That is current rule, Chapter 26.1(c)(2), Subsection (ii); it's the exact same language. So if you spend over $100 in a reporting period––in the aggregate that exceeds $100—for political advertising other than expenses to cover the basic costs of hardware, messaging software, and bandwidth, you have to put "political ad paid for by" on that messaging right now, as we speak. If they're not doing that now, they're not going to have to do the disclosure on AI.

LITTLE: I appreciate your response, Speaker Phelan, but that wasn't the question that I asked. My reading of this bill, as a lawyer, is that if I'm a person who spends $100 or more during a reporting period on political advertising about anything—not about this meme—when I make a meme and I put it out, I've got to append a disclosure to it. Isn't that right?

PHELAN: Well, I would think Subsection (b) applies, correct?

LITTLE: It's right, isn't it? If I've spent $100 on political advertising anywhere, about anyone, during any reporting period, I now have to append this disclosure to any piece of satire that I put out into the world. Am I, as a lawyer, reading this correctly? I think that I am.

PHELAN: Well, I would think that a person with the intent to influence an election, knowingly cause to be published––and that's 19 through page 2, line 5. That would apply.

LITTLE: Everyone, Speaker Phelan, who uses political satire is trying to influence an election, aren't they?

PHELAN: No, sir. I would push back on that. I would say the memes that were published last night and this morning are not trying to influence my election, whether I return in HD 21 or not.

LITTLE: How do you know? How do you know whether Carnifex Maximus wants you to be reelected or not?

PHELAN: Within TEC rules and the statutes about election for or against, making fun of someone—joking around with a meme—is not necessarily influencing an election at all. It could just be a joke, an absolute joke. Who cares?

LITTLE: I totally agree. My concern is if I have spent $100 or more—let's imagine I'm not in the house—if I have spent $100 or more on political advertising in any reporting period, I still have to make this disclosure, right?

PHELAN: You have to, according to Texas Ethics Commission—again, their own rules—you have to put "political ad paid for by" on the bottom of political advertising that is trying to influence an election if you spend more than $100 during any reporting period in the aggregate. That's the current rule. I'm just adding another disclosure that says if you're using fake media to influence the election and you're knowingly publishing that, then you have to add that disclosure.

LITTLE: You've used the term "fake media." "Fake media" doesn't appear in your bill.

PHELAN: Altered media. I'm sorry. I'm channeling my inner Donald Trump. I'm just saying altered media.

LITTLE: I understand. But any type of altered image is going to require this disclosure if you're one of the categories (a)(1) through (3), right?

PHELAN: Correct. I do have an amendment I would like to add on third reading that would exempt some of the media that you may be concerned about.

LITTLE: I'm sorry that I didn't know about your amendment, but let me ask you a couple more questions about your bill. In your original house bill that you filed, it was broader. What you did in your committee substitute was you took out any Internet service provider, any publisher, any social media site, so they wouldn't have liability, right? You excluded them.

PHELAN: That was part of testimony and some of the stakeholder meetings. Yes, sir.

LITTLE: You excluded the big companies. You excluded Facebook, Meta, Google, YouTube. You excluded all of them from liability. But anyone who spends $100 on political advertising in a reporting period, we're okay with them being liable, right?

PHELAN: Well, they're not required to add political disclosures with or without this bill.

LITTLE: Well, my concern is in your original bill, they were going to be liable for publishing it, right? In your committee substitute, you took them out.

PHELAN: They were not expressly omitted.

LITTLE: Speaker Phelan, a narrower question: The purpose of this bill is to regulate a kind of speech, right?

PHELAN: No. The purpose of this bill is so our voters know exactly who they're voting for and whether or not an image they're seeing ever occurred in reality. A video of you shaking hands with Nancy Pelosi––your voters need to know you never met and you never shook her hand. You know images are very powerful. Quite often, people don't even bother to read the verbiage, what's on the paper, or even what's onscreen. The images are more powerful than the words.

LITTLE: Speaker Phelan, I agree they're very powerful. I had images that you paid for sent into my district of me between Joe Biden and Beto O'Rourke. The question is: Why is it okay for you to do it, and it's not okay for the people out there to do it? What makes sense about that?

PHELAN: I don't know what was sent in your district. I just know what was sent in my district. And I know what was sent in other people's districts. It shouldn't be right, and, again, this is the beginning of a new era in ethics where the voters need to know what is real and what is not. This AI technology gets better every single day. It gets more inexpensive every single day. It's going to become the norm. And quite frankly, my voters, again, if they can't tell that my opponent was endorsed by Donald Trump—which is a very valuable endorsement in our primary politics—when they don't even believe that, that's pretty eye-opening.

LITTLE: Speaker Phelan, it seems like you want a new era because you found out that when you live by the sword, you die by the sword.

PHELAN: Well, I didn't die by the sword.

REPRESENTATIVE HARRISON: You talked about AI, and AI is certainly advancing at an exponential rate. There are benefits, and there are risks that are associated with that. But I want to clarify because, in the context of this bill, both yourself and the proponents of this bill constantly reference AI—and your bill does reference AI—but the bill is not scoped exclusively to AI. It is much broader. You are not simply trying to regulate speech that is generated by AI. Is that correct?

PHELAN: There are other elements of the bill. I will say that if you're too narrow or use the word AI, there could be something in the interim—maybe next year—that calls it something different and is just as powerful and just as misleading.

[Amendment No. 1 by Phelan was laid before the house.]

PHELAN: This is a clarifying amendment. The last thing we want to do is bring in small tweaks, whether it be a change in the saturation, brightness, contrast, color, or any other superficial quality of an image or video. If you take a photo and the shadows are wrong––maybe there was a bug flying in your hair and you want to remove that––that would not be subject. This is similar to language that was approved in the senate in a version that has come over to the house as well. It is acceptable to the author.

[Amendment No. 1 was adopted.]

[Amendment No. 2 by Hopper was laid before the house.]

REPRESENTATIVE HOPPER: This is a really simple amendment. The bill author actually said––just from the dais a moment ago––that this bill is not about anybody on the house floor. That is what this amendment affirms—that we want to make crystal clear to everyone in Texas that we are not passing this bill to protect ourselves. That is what this would ensure.

PHELAN: I appreciate where Mr. Hopper's heart is on this. It does make some sense, but, again, this is not about us. This is about the voters. You know, if you have the luxury of spending many, many years here, like Ms. Thompson or like Mr. Craddick, their elections should be applicable to this bill as well. So I do not see why we would carve ourselves out of this legislation. I think the voters in these 150 house districts deserve the same truth in advertising that HB 366 provides for them. So I will be opposed to the amendment.

REPRESENTATIVE ZWIENER: Representative Hopper, do you think it is wrong to lie to try and influence the outcome of an election?

HOPPER: I think it is wrong to lie at all times. But here's the deal––we have a system of government that affirms our right to free speech, and this body needs to make it very, very clear that this bill is not being put forward to protect a class of people who will use the system of government to silence political opponents. Many of the people in this room have been challengers that received just as insidious, or more insidious, of material, and the reality is that we have an electorate that is informed, and we already have platforms out there where people can talk. It is not the role of government to sit there and be a nanny-state police force to decide. The deal is we are just saying let's just make it really clear: We are not doing this law to protect ourselves. And that is what this amendment affirms.

ZWIENER: Do you agree that it is reasonable for us to require that there be disclosures on political advertising? Right now under current Texas law, it has to say "this ad paid for by." Do you agree that that is legal, constitutional, and a good use of state resources?

HOPPER: I would abolish the TEC tomorrow if I could. If that gives you an idea of where I am at.

ZWIENER: So your position is free-for-all on all of this. Let people actively mislead the public of the State of Texas with no regulatory oversight?

HOPPER: I think you are trying to twist me into taking a position that you know I do not believe.

ZWIENER: Well, what would it be then? You just said you would eliminate the TEC and you do not support the current political advertising disclosures.

HOPPER: No, I think we have a body here that has the entire political establishment and lobby behind them that is trying to ensure that anyone that would come against us in an election, that we can use the entire arm of government against them. But we are never going to use—to see it the other way—to allow people to come into this body by basically fighting their way in and saying, hey listen, I'm fighting for this—this is what I am fighting for. And the reality is that it is not the role of government to decide whether or not your little meme was a joke, was obviously a comic, and I agree with the comments by Representative Little. If I am a 501(c)(4), I am not a state GPAC, and I use a Mailchimp account, that could force me to never be able to make a political cartoon. That is the outcome of this bill.

ZWIENER: Representative Hopper, I think we are going to have to disagree on the reading of the bill. I would just ask you to consider that the people of Texas deserve to know the truth when they go to the ballot box.

[Amendment No. 2 failed of adoption by Record No. 981.]

SCHATZLINE: I'm going to keep this incredibly brief. At the end of the day, we signed up to be scrutinized by our constituents when we do something that either goes against the will of the people or goes against their perception of what the will of the people is. We signed up for this. It is as simple as that. To throw someone in jail is to silence political speech. This is insanity that we would propose such a harsh penalty for simply expressing our displeasure of an elected official. This is anti-American. This is anti-Constitution. I hope that today you would recognize that this bill stands in the way of our constituents speaking the truth that they know to be true or having an opinion that we might not agree with. I'm asking you, for those of you who ran off of making sure that we would keep this constitutional republic, to make sure people can have a voice so that they can speak up against the differences that they have with their elected officials. These grassroots organizations––I just have to bring up what was said up here when I asked the question to Speaker Phelan was simply: "Are we going to see grassroots organizations thrown in jail as a result of this bill?" And he referenced something that they already have to report. Well, that's true if they're a PAC, but what about the 501(c)(4)s? What about those that are doing the work, the public servants? Look, members, it was said up here that this is not about protecting politicians. I would challenge you. We're called to be public servants, and right now the only thing this bill serves is us. It is time to take a stand for the people and for free speech. I ask that you would vote no.

HARRISON: I'm trying to get my head around this bill, and I appreciate your clarifying remarks, Representative Schatzline. If I read the bill correctly––are you reading the bill to also create a Class A misdemeanor? And is your understanding that a Class A misdemeanor is actually a crime that is punishable by up to a year in jail?

SCHATZLINE: That is correct.

HARRISON: Okay. Do you believe that Americans should risk jail time for engaging in political speech?

SCHATZLINE: I do not believe that jail time should even be on the table for political speech.

HARRISON: I agree. I can't remember if it was you who was engaging in questions with the bill author, but did you hear the bill author say just a minute ago—and I quote, because I wrote it down—"I don't care about memes"? Did you hear the bill author say that?

SCHATZLINE: I did.

HARRISON: So I found that very interesting. Well, wouldn't you agree that memes are a type, a subcategory, of satire?

SCHATZLINE: Absolutely. And I would also say that they absolutely play a role in elections. They do have an effect.

HARRISON: Right, and a necessary role. And isn't it also true that political satire has a very long tradition in not just our state but in our country, dating back to prior to our founding? Is that your understanding?

SCHATZLINE: Even before our founding, in other countries as well.

HARRISON: Right. And since the bill author says he doesn't care about any memes, I went through and looked through the bill again briefly. It's a short bill. I was unable to find any exception in the bill for satire, for memes, for parody, for obvious jokes. I'm really curious why it wasn't in the bill, but maybe I missed it. Do you find any exceptions for memes, which the bill author says he doesn't care about, in the bill?

SCHATZLINE: I have read this bill fully, and I do not find that.

HARRISON: Is it your understanding that this bill, instead of leaving a consequential decision like, for example, what the disclaimer should say, what it should look like—are you aware that this bill hands the full authority to issue regulations that carry the force and effect of law to unelected bureaucrats at the TEC to determine the type and the manner and the size and the way in which these disclaimers are to be displayed? Are you aware of that? Is that correct?

SCHATZLINE: That is my understanding.

HARRISON: Should we be leaving decisions like that to unelected bureaucrats?

SCHATZLINE: Absolutely not.

HARRISON: I agree with that, and I am very concerned about that. A couple of final questions. If we have to choose––because in government we can never find a perfect equilibrium on most issues––but if we have to decide here, shouldn't the default assumption in America be to err on the side of protecting speech, not on the side of restricting speech?

SCHATZLINE: Absolutely.

HARRISON: Do you believe that this bill is a restriction on free speech?

SCHATZLINE: I absolutely believe that.

HARRISON: Don't you think that it should be the voters, not politicians and bureaucrats, that should be the ultimate judge on what is protected free speech or not?

SCHATZLINE: Absolutely, I do.

HARRISON: And wouldn't you agree that regulating political speech based on whether a government bureaucrat determines something to be true or false is a hallmark of a totalitarian regime, not of a free people?

SCHATZLINE: I completely agree.

HARRISON: Can you think of anything more important of protecting in the State of Texas than our First Amendment protections?

SCHATZLINE: I cannot.

HARRISON: In closing, are you aware that this bill––the fact that we are even debating this bill has made national headlines from coast to coast? Do you agree with me that it is a disgrace that we bring shame upon our body—that we are even deliberating such a measure in the State of Texas today?

SCHATZLINE: I am aware, and I do agree with you.

HARRISON: I agree. Thank you for the answers.

REPRESENTATIVE RAYMOND: I appreciate and agree with what the speaker is doing with this bill. I do. I really wish we would have less lying in campaigns and all that. I understand free speech, but, for example, let's say some years from now you are governor, right? Governor Nate Schatzline.

SCHATZLINE: That has a nice ring to it.

RAYMOND: Let's say you're governor, and you're running for reelection. And let's say, I don't know, that I'm running against you, and I run a TV ad that shows you. It looks like you. It's generated with help from AI. It shows you, and my ad says, "Governor Nate Schatzline allowed all these illegal immigrants to come into the country." It shows you standing there at the border doing this and saying, "Come on! Hey, venga, come on!" And it's you. I mean, it's you, baby. It's you. It looks like you. It sounds like you. It smells like you. Right? Well, maybe not smell. Is that okay?

SCHATZLINE: I think even more egregious things are being done right now.

RAYMOND: But I'm asking you about that specific thing. Let's say it's you.

SCHATZLINE: I think the question you're asking is not relevant.

RAYMOND: It's a very specific example because I'm trying to be specific. Is that okay? Governor Nate Schatzline is saying, "Hey guys, come on, cross over illegally. It's okay. Come on. Oh, some of you look like you've got guns. Oh, cartels? Come on! It's okay." And I'm doing this ad that says Nate Schatzline is letting all these people come in illegally and these cartel members to come in illegally. I'm asking you, fundamentally, are you okay with that?

SCHATZLINE: And I appreciate the question.

RAYMOND: Wait a minute. You're not okay with it?

SCHATZLINE: No, I'm going to answer it. I'll answer it.

RAYMOND: Okay.

SCHATZLINE: I am obviously not going to say that I would desire to have that happen. However, I am willing to let people say lies about me to protect free speech inside of our country and inside of our state.

RAYMOND: Are you okay with that example? Would that be okay?

SCHATZLINE: Oh, I would hate that ad.

RAYMOND: So would you like for that not to be able––for me, as your opponent, not to be able to do that?

SCHATZLINE: We cannot create––

RAYMOND: Or if I do make that ad, at minimum that I put on there, "Hey. It's Richard Raymond. I paid for it. It's not true. I made it up." Would that be okay?

SCHATZLINE: Representative, what I would say is even if you did that, I would not want you to spend a year in jail.

RAYMOND: I'm asking you first and foremost, do you think you'd be okay with someone to be able to misrepresent and lie to the voters about Governor Nate Schatzline asking cartel members and people to come into this country illegally while you're standing there?

SCHATZLINE: Well, it's a great question. People lie about me every day, and I'm sure about you as well. I do not think that merits a year in jail.

RAYMOND: Say again?

SCHATZLINE: I just don't think that merits a year in jail.

RAYMOND: But you think it should be illegal?

SCHATZLINE: I don't want to limit free speech.

RAYMOND: But the example—if you think it's okay, say, "You know what? It's okay."

SCHATZLINE: Here's what I'll say: I would err on the side of I would rather them be able to do that than to put them in jail for a year.

RAYMOND: Do you see that if people did that, I'm a lot more likely, even as a democrat, to get elected governor than you get reelected as a republican governor? If I've shown you in ads where you're asking cartel members and people to come in illegally, can you see how that kind of a lie would impact––

SCHATZLINE: I think it's easily refutable.

RAYMOND: Can you see that that would impact the outcome of the election in a significant way, because we lie to the voters?

SCHATZLINE: The question would be: Do I think someone should spend a year in jail? And I don't.

RAYMOND: Well, should they spend one day?

SCHATZLINE: I don't think they should go to jail. I don't believe that's our role as government. We have to accept that when you sign up to run for office, people can lie about you. They can tell the truth about you, or they can hold you accountable.

RAYMOND: Well, I think about election integrity. Think about election integrity and if the voters are deciding whether or not to vote for you based on something that's completely fabricated––that you're letting cartel members, encouraging cartel members and people to come into this country illegally.

REPRESENTATIVE CAPRIGLIONE: First, I want to thank Speaker Phelan for putting this bill out there, for changing the tone, and for helping everybody understand exactly what this bill does. I'm sure you've all seen on Twitter and other places, as AI goes and expands, the message and the inaccuracies of what this bill does. You can see today, right now, how artificial intelligence, generative AI, can be used to spread misinformation and disinformation, in this case about a bill itself. This bill is clear. It is not about the general public being able to create a meme. What this bill does is require a disclosure when a candidate, an officeholder, someone attempting to influence the election is lying. They can still lie, of course. Some always will. But all this bill does is require that disclosure. For those of us who have been paying attention and working on generative AI for a long time, it's not about when these lies can be spread or how accurate they can be. That can already happen today. I have seen just in the past year that the deception that can occur goes beyond anything that we would have ever thought possible. Just a year ago, I would not have thought you could create whole entire videos, change people's voices to try not only to influence them, but to steal their money. So when I look at this bill, this is not a bill about serving us. This is about a bill so that we can serve the public so that they can be better informed. Companies all over the world have already decided to disclose artificial intelligence, like Google and Meta. All we're saying is it's time for politicians to do that as well.

MONEY: I hear your concern about generative AI. My question is: Is this bill narrowly tailored to only deal with AI?

CAPRIGLIONE: The bill as it stands is tailored to go and provide disclosure that the ad, whether it's video or image, is trying to deceive the public. I know a lot of times people have been saying, "Hey, is it okay for us to be able to lie?" All this bill is saying is, should you have to tell the truth? And for once we have a bill that says we have to be honest.

MONEY: I want people to tell the truth.

CAPRIGLIONE: What I don't understand, if I could just finish the question, is why there are people who would oppose being forced to tell the truth. We already have ads everywhere having to disclose what we do. The speaker mentioned it several times. This is normal campaign disclosure. If you spend $100 or more in your campaign, you have to put on the bottom of it "political ad paid for by Brent Money." Now, if you're using generative AI in an attempt to deceive, not the candidate on the other side, but in an attempt to deceive the public—either it's because you're mailing 10,000 people or you're sending a broadcast commercial to 200,000—all this bill is saying is tell the people that you are not being truthful. I don't know how anybody can oppose that.

MONEY: I absolutely want to tell the truth. I do tell the truth.

CAPRIGLIONE: Well, I hope you absolutely want to. But I hope you do.

MONEY: I will answer to God for every word that comes out of my mouth. I understand that. What I don't want is the Texas Ethics Commission––

CAPRIGLIONE: Sometimes when you have technology like this, you have to provide notice.

MONEY: Let me finish my question. I don't want the Texas Ethics Commission to become a ministry of truth to decide whether or not something is true or not. I don't want someone to decide.

CAPRIGLIONE: If you remember in 1984, in the "Ministry of Truth," that's where they created lies, but those lies were created by the politicians, the candidates, the officeholders. And that's what this bill does and ascribes the penalty to. The penalty is not to the general public. The benefit we're providing is to the public. And the only thing I hear, no offense and with full respect, is you trying to defend the lies.

MONEY: The benefit will be for the members of this body and other politicians.

CAPRIGLIONE: I don't want to provide the politicians any more benefits. I want to provide the public the benefit.

MONEY: No, the politicians are the ones that are going to get a mailer in their mailbox, pick up the phone and call their sheriff, pick up the phone and call their police chief. They're going to call their DA because politicians have the kind of power to do that. The guy in his basement creating a meme where he puts a rhinoceros horn on my face and calls me a RINO is the person who's going to be attacked here. Not me. I've got a voice. I've got a platform. I've got the ability to stand up and say, "No, that's not true." And the answer to lies is truth.

CAPRIGLIONE: And this is what a disclosure is, right? And again, no offense, but I don't really care about your feelings. I don't think the public does, because you're a politician. What we're trying to say is that everybody can see this today. Everybody knows that almost everything, or a lot of what they read, is just not true. There's a lot of misinformation. There are a lot of lies being spread. Most content is being created by artificial generative intelligence. That's just the reality. So what we're doing with this bill and with others that we have passed and are going to pass is provide the public that disclosure––to provide them the ability to know to the full extent that we can what is true and what is not. And I don't think anybody in this chamber opposes providing disclosure about what we're doing.

MONEY: I'm astonished that the people in this body would think that creating a criminal offense and putting the Texas Ethics Commission in charge of deciding what is true and what is not true cannot lead to enormous abuses and will lead to enormous abuses. That's why this kind of law has not been in place before––because we have free speech.

CAPRIGLIONE: Well, it has. With respect, the law is being put in place because of generative AI being new.

LITTLE: Chairman, help me figure out if I'm reading this right. The first category says this section applies only to a person who is an officeholder, candidate, or political committee. That's (a)(1).

CAPRIGLIONE: And spends money on a campaign.

LITTLE: No.

CAPRIGLIONE: I'm sorry. Or spends money on a campaign.

LITTLE: Okay. There are three categories. I'm just dealing with category one. I think that if I'm an officeholder and I retweet something from someone else that falls into this category of an altered image, I think I'm guilty of a Class A misdemeanor. Don't you agree?

CAPRIGLIONE: I think if you're an officeholder or candidate, people consider you to be a leader, and you should probably not spread misinformation.

LITTLE: So the answer to my question is yes, right?

CAPRIGLIONE: I did not say that. I mean, the reality is what your job is, as a leader, and as you will learn, is to go and to represent people, to go and to pass legislation that helps the people, not your donors, not your contributors. First and foremost, we work for the people.

LITTLE: Chairman, that wasn't my question. If you could offer an answer to my question, I think it's going to matter to everyone in here. Maybe I'm wrong. Maybe they've already decided what they're going to do. I think if I retweet an image from someone else, I'm guilty of a Class A misdemeanor because I'm an officeholder.

CAPRIGLIONE: Well, I hope that you do not retweet misinformation. I hope that you don't knowingly try to influence an election by lying.

LITTLE: But it sounds like the answer to my question is yes.

CAPRIGLIONE: I don't know what the retweet has to do with this bill. This talks about whether you're spending money, whether you're deliberately trying to influence an election by spreading, generating, and creating generative AI in order to manipulate the outcome.

LITTLE: It says, "a person may not knowingly, with the intent to influence an election, knowingly cause to be published, distributed, or broadcast." So I think if I'm using––

CAPRIGLIONE: If you know, well—

LITTLE: I'm sorry, Chairman, I wasn't done with my question. Isn't it true that if I am an officeholder and I cause something to be published or republished from someone else, that I'm guilty of a Class A misdemeanor?

CAPRIGLIONE: Well, I heard you pause for a second when you said the word that mattered, which was "knowingly." So yes, if you are knowingly spreading disinformation, you are culpable. And that's true for a lot of other things. Knowledge and intent. And since we've had this conversation, you'd have a hard-pressed case to say you didn't know what the law was. But thank you.

REPRESENTATIVE MANUEL: I am going to ask you all to just bear with me. This is just going to take a little bit. Speaker Phelan is going to be nice about this, and I am not. My community, Jefferson County, Southeast Texas––you all know I love where I am from. You all do not know the hell we went through with lies. This bill does not stop you if you are a community grassroots person and you are sitting in your basement and you create a meme and you share it with your followers. You are not subject to this bill. If you are the Texas Democratic Party, if you are progressive democrats, if you are "stop all RINOs" or "we hate Dade Phelan"—yes, guess what? If you put money in that PAC, from that PAC, you need to put your name on it. This is what does not make sense to me. We ask businesses—take that back—we mandate that businesses have to tell you what the product is; if not, you owe the consumer money because you lied.

Let me also tell you something else that you all do not want to think about. We signed up for this—150 people in this darn room—but our mothers, our sisters, our brothers, our wives, our children, they did not sign up for this. You may have asked them, but they did not sign up for this. They did not put their name on that paper. Let me tell you what happened in my community. Someone told my speaker—your speaker, whether you voted for him or not—it took one bullet to take him out. Do you know what that meant to his family? Let me tell you also what happened. Someone came to his house one night when he was not there because he was knocking on doors. And they were going from neighbor to neighbor pretending to be on his campaign, saying negative things about him, and they were told, "Do not go next door; that is the Phelans' house." And they went next door anyway and harassed his wife while she was home by herself. And I am going to tell you this—and I do not care who reports it—I told him if that had been my wife, I would have blown both of their kneecaps out. And I hope they are listening, because I would have blown both of your kneecaps out. You would have remembered me for the rest of your damn life.

This does not make any sense. This is not about liberty, what you all are talking about. You just voted on a bill yesterday, on the Second Amendment, that created a class of people to protect—and you gave it to an unelected body, a school board, or school officials—to decide what is or what is not anti-Semitism. So now we are for freedom of speech when it comes to political ads when you want to take somebody out. Well, guess what? You got what you wanted. He is not the speaker anymore. But there are other people in this building who their children, their wives, their husbands, their partners, their grandmothers depend on this damn bill. You do not know what it felt like to hear older people say, "I have never seen anything like this in the history of my life." You do not know what it was like for people who supported Covey or supported Speaker Phelan, who said, "I do not know if I can go to this place because someone might do me something."

The vice-chair of the Republican Party in my district had a man—and I do not care what any of you say, any man that runs up on a woman and does not have any respect, you should get popped too, and I mean that. I do not care what you all say. I do not care about any left-wing groups or right-wing groups. I am telling you, respect women––if you do not, you know how I feel about you. He ran up to a woman at a meeting to discuss policy and yelled at her—yelled at her—for discussing republican policies. And I know you all are like, "You are a democrat!" I am, but I am also a human being. You all know that I love and respect every one of you. Even those of you we do not agree on 95 percent of policy, I still think—and I always tell you—you deserve to be here. Your voice deserves to be heard. I stood up for every one of you for every extension. I have never voted for not an extension of time. If it takes us all day and all night, be damned—we ran for this. But do not give me any bull crap and tell me we need to be distorting people's images, lying to people, changing their names, changing their voices, who they voted for. You all do not know what it felt like to get two to three different mailers in your district a day and have people terrified to show up to your political events. I am not talking about democrats, because I know that is what you all think. I am talking about republicans.

Let me tell you about my district. My district is not 90-plus percent democrat. My district is 59 to 60-plus percent democrat—very hard for me to lose—but I love my republicans. I talk to my republicans, even the ones who do not like anything I vote for but maybe two or three things. I respect them. I go to their bars. I go to their events, and I ask them, "What do you need?" I tell them, "I am not going to be able to vote for everything that you like, and you are going to be disappointed in me sometimes. But I promise you, I can always explain how I voted. But the number one most important thing is, regardless of where you fall in the political party line, I will always work for you. You will always have constituent services. You can always call me and tell me you disagree, and you can always ask for a meeting."

All this bill says is if you are going to lie and you are going to be a liar, then tell the damn truth. The Bible says right here, "I tell you on the day of judgment, people will give account for every careless word they speak." And I say this—and some of you think this is a joke, but I mean this—hell is hot, and it is going to stay hot. And if you cannot keep your wicked tongue in your mouth, then prepare for what is judgment day. If you do not believe that judgment day is real, I promise you to God, it is real. Every one of us in here will be on hands and knees shivering before the Lord, thy God.

Do not make a mockery of this building. If you are not for free speech when it comes to protecting all of us––which is a melting pot––then do not all of a sudden be for free speech when it comes to making sure that our families do not have to deal with bullshit when it comes to what could happen to people. You all—I am sorry for that language—you all do not understand what we dealt with. I am going to say this lastly. I am not even going to talk about him. I am going to talk about his wife. That woman donates her time not to Black people, white people, democrats, Mexicans––she donates her time to youth of all races. She stands before a judge and defends them when they are in juvenile court. She does not ask for a dime. She does not pretend to be Black or white or Hispanic—she pretends to be Kim Phelan, a wife, a mother, a child of God, a family member of other people. And every one of you that is sitting up here thinking that this is about you? This is a woman whose life you put at risk—who makes sure that children who have been raped, molested, abused, and neglected do not go to jail, but they get rehabilitation. And that is the kind of woman you had lunatics, evil people, non-Americans go to her door. I believe in liberty. I believe in free speech. This is not the best country, but this is the best country that we have had. In less than 500 years, we have done a lot of good compared to everybody else in the world that has had thousands of years to get to where we are. Do not make a mockery of our system and try to make this about something that it is not. This is not about protecting you and our petty egos. This is about protecting our constituents, our families, and the people who will come after us. And I ask you personally for my district, for Southeast Texas, as a proud East Texan, vote for this bill and stop the lying. And remember, if you lie, the consequences are something that you cannot comprehend, because none of us in here are God. None of us in here are the Messiah. And if you can stand before him today and take a vote and say you do not care who lies because you worry about a little bit of jail time, we put people in jail for lying. We put that executive who had the blood machine—she is in jail for seven years for lying because she put people's lives at risk. Do not put my constituents' lives at risk. And I am not going to apologize for how mad I am because I am going to tell you, you put us through hell for six months. Democrats, republicans, independents, non-voters, postal workers, poll workers—they deserve so much better than what we did, and we can do the best by correcting this. This has nothing to do with what we talked about. This is someone's political agenda. We deserve better than this.

REPRESENTATIVE GATES: I sat here and listened to the debate, and mine is not about these extreme examples or whatever, but what does concern me is line 3. It says "criminal offense," and on line 8, it says "criminal penalty." You know, I own a bunch of properties. I have city inspectors come out, and under city codes, they criminalize—everything is criminalized. I will have people come up to my managers and say, "If you do not open that door"—with a police officer—"we are going to arrest you"—with no court order. I am just concerned. I do not want false advertising. I have not been subject to that at all. But what really concerns me is the criminal offense and the criminal penalty for something—while you can come up with far examples, what about the small examples? And I am just bothered by how so much our society is turning to giving the power to government of criminal penalties and being able to incarcerate someone. That is why I am voting against the bill.

REPRESENTATIVE TOTH: I am concerned what this body is doing. I am concerned at what this body did to our attorney general last session. You can smirk all you want to, but this body led an attack on our attorney general, and we are doing the very same thing with this piece of legislation. In 1988, the courts would have struck down something like this. The courts––when Jerry Falwell was angry at what Hustler had said about him, the courts really clearly, in an 8-to-0 decision, stated that public officials are open to scrutiny, and no, Hustler did not have to disclose that it was satirical. The courts will strike this down. The TEC should not be an arbiter of truth in language, and we should stand against any time government wants to regulate speech.

PHELAN: I apologize for the lengthy debate. I certainly did not expect the emotions. If I raised my voice, I apologize. My wife told me I should never raise my voice, but this is a very serious piece of legislation—elections are very serious. Elections are permanent. We have seen elections—Ms. Howard, I believe—by one vote. If you do not think a deceptive ad can change one vote, you are mistaken. A deceptive ad could change 366 votes very easily. These are million-dollar campaigns now, unfortunately, and a $500 fine—I am going to speak to the criminal nature of this bill—a $500 fine in a $10 million campaign is a rounding error. It would be the cost of doing business. And I will say I misspoke; there are not 750 outstanding cases in front of the Texas Ethics Commission, there are 2,500 cases before the ethics commission—pardon me—referred to the attorney general. There are 2,500 referred to the attorney general. He has collected on seven percent of those. Ninety-three percent of those cases referred for collection to our attorney general's office have not been collected. So what is a fine if you do not have to pay it? What is a $500 fine on a $10 million campaign, especially if you do not have to pay it?

The Class A misdemeanor is a range of zero days to 365 days. It is a very common punishment when you are dealing with something as important as an election. Especially in an election I can say is a stolen election, when in the last 72 hours of the campaign, a video can be released that entirely changes the nature of the electorate going into election day. If it has not already happened, it will happen. So I understand the heartburn on the penalties, but it is the only way to get someone's attention on something as serious as our elections here in the State of Texas.

I appreciate Mr. Capriglione's and Mr. Manuel's wonderful remarks. I do not have to go to church on Sunday—thank you, Christian—you brought it home today. I appreciate you reminding folks that there is a human element to elections. There is a human element to lying about elections. Again, this is the first, I hope, of many bills that we have this session that takes the elections out of the shadows and puts them back into the voters' hands. And we want integrity in our elections. If you're a proponent of election integrity, which I believe the Republican Party platform stipulates, then you support a bill like HB 366.

[HB 366, as amended, was passed by Record No. 982.]

CSHB 45, A bill to be entitled An Act relating to the duty of the attorney general to represent the state in the prosecution of the criminal offense of trafficking of persons.

[Representative Romero raised a point of order against further consideration of CSHB 45 under Rule 8, Section 1(a)(1), of the House Rules on the grounds that the caption fails to give reasonable notice of the subject of the proposed measure. The point of order was withdrawn.]

[Representative Romero raised a point of order against further consideration of CSHB 45 under Rule 4, Section 32(c)(2), of the House Rules on the grounds that the bill analysis is substantially or materially misleading. The point of order was withdrawn.]

REPRESENTATIVE HULL: According to the National Human Trafficking Hotline, Texas is historically ranked as number two in the nation for human trafficking case reports. In 2023, the National Center for Missing and Exploited Children received over 18,420 reports of possible sex trafficking in the U.S. and 28,800 cases of children reported missing. Tragically, it is estimated that as many as one in six runaway children are likely victims of sex trafficking, which disproportionately affects children involved in our child welfare system. Even harder to find is data on the transnational criminal and terrorist organizations that traffic labor and sex through our state. I am sickened to see the number of ads on known commercial sex-trafficking sites that come up from our top 10 cities. In a three-month period alone, there are hundreds of thousands of ads, with my hometown of Houston being number one. Houston also leads in illicit massage businesses, which total over 1,400 statewide. In 2021, we had 247 statewide arrests for trafficking of persons. In 2023, this number dropped to 141. To ensure we are using every tool available to the state to put these evil perpetrators behind bars, this bill would give the attorney general the duty to prosecute human trafficking cases if local prosecutors have not acted within six months. It also requires local prosecutors to share information on cases, which would allow for the AG to see if there are large, multijurisdictional cases. Members, it is incumbent upon us to make sure that we are exhausting all means possible to put these heinous traffickers behind bars and bring justice for survivors of human trafficking. We want to ensure that no trafficking victim is left behind and there is always a second set of eyes reviewing these cases. Texas has invested huge resources in combatting human trafficking cases, and we should fully leverage those resources.

REPRESENTATIVE MOODY: Ms. Hull, I think your explanation of how horrific these crimes are is right on point, and I don't think you're going to find anyone here who disagrees that human trafficking and sex trafficking are serious offenses. They're complicated cases in a lot of instances and can be very complicated in prosecution. I think the entire body would agree with that. But your bill is putting a construct in the law—I just want to walk through the way it works as you have it here on the floor. Law enforcement––when a case is presented to a prosecutor, local prosecutor, on human trafficking or sex trafficking or certain offenses, they are delineated in the bill, correct?

HULL: Can you say that again?

MOODY: The notice provisions, the new notice provisions––under what crimes are we giving notice?

HULL: Under human trafficking.

MOODY: And that notice is coming from whom?

HULL: The notice to who?

MOODY: That notice is being given by whom and to whom under your bill?

HULL: A law enforcement agency would then submit that, the first part, Section (a)––a law enforcement agency then submits to a local prosecuting attorney a report.

MOODY: Okay. Then in conjunction with that, under the terms of the bill, they would send that same notification to the attorney general's office, is that correct?

HULL: Yes.

MOODY: Okay. At that point, your bill then permits the attorney general's office to request, and a local prosecutor shall—must—provide, any documentation related to the investigation to the attorney general's office at their request.

HULL: Only after six months.

MOODY: The request for information is after six months?

HULL: Correct.

MOODY: Okay.

HULL: So the only thing that goes to the attorney general is the initial case. No other information goes to them until after the 180 days—the six months. And we do have an amendment to help clarify.

MOODY: Understood. And I know we can discuss that when we get to it. At that point, you have a six-month provision that says if they haven't moved forward with the case, the attorney general, without consent of the local prosecutor, can take the case. Is that correct?

HULL: If there has been no action.

MOODY: Would that include a prosecutor making the decision that there wasn't sufficient evidence to move forward on a case?

HULL: They would then have that conversation. I'm sure the attorney general would also decide there was not enough.

MOODY: So the power of the prosecutor––and you would agree that prosecutors are constitutional officers, correct?

HULL: Yes.

MOODY: These are officers that have powers under our Constitution.

HULL: Yes.

MOODY: Is one of those powers under Article V, Section 21, as the prosecutor, representing the state in any crimes that occur in their jurisdiction?

HULL: Yes, that's correct.

MOODY: But this isn't a constitutional amendment in front of the body today?

HULL: No, it is not.

MOODY: If prosecutors are constitutional officers and are constitutionally defined to be able to be the attorney representing the state in criminal cases that take place in their jurisdiction, why would we not need to change the Constitution to provide this authority to the attorney general's office? Because under the terms of the bill, the attorney general, without the consent of the local prosecutor, can simply take the case.

HULL: Under Article IV, Section 22, there is a provision that says, "unless otherwise expressly directed by law."

MOODY: Okay. Are you familiar with the State v. Stephens decision?

HULL: Yes.

MOODY: A decision that said that the claim of 70 years of legislatively granted authority for criminal prosecution of election law violations––that the AG has that power––is false? That the legislature has done so in violation of the Constitution? That's the holding in that court case.

HULL: It is my understanding that the Court of Criminal Appeals decision in that case is counter and irreconcilable with precedent set and repeatedly upheld by the Supreme Court of Texas in numerous different cases.

MOODY: But the case law in State v. Stephens is still good law today, is it not? Have there been any other further court cases that have overturned that opinion since the denial for rehearing in 2022?

HULL: It has not been overturned, but it is my understanding that Stephens reasoned that the Office of the Attorney General and local prosecutors cannot both concurrently prosecute criminal matters without violating separation of powers principles. Any overlap in these responsibilities must be on a case-by-case basis. CSHB 45 allows the Office of the Attorney General to represent the state in the prosecution of human trafficking only after local prosecutors have had six months to bring their own prosecutions and have chosen not to bring any action. By creating a protected time when only local prosecutors may bring charges, this bill creates separation of the areas of operation for local prosecutors on the one hand and the Office of the Attorney General on the other. Therefore, I believe this satisfies the Stephens requirement that the overlap between local prosecutors and the OAG in this space only occur on a case-by-case basis.

MOODY: Also, in previous case law—back in 1957—the courts struck down such a law where the legislature purported to give this authority. Are you aware of the Shepperd v. Alaniz case?

HULL: I do not, but I do not believe that is the controlling law here.

MOODY: Understood. So what happened was after Shepperd, the legislature came back in 1973 and recodified that. In fact, that is what led to the confusion that was ultimately rectified in Stephens. Would you agree with me that the power of a prosecutor includes not only the power to prosecute cases but also to get to decide what cases are not prosecuted?

HULL: Yes.

MOODY: So under your bill, if a local prosecutor has evaluated and made those decisions—and I'm not saying they can do that in six months or not because these cases are extremely complex in a lot of ways. The victims are complex and sometimes hard to keep track of. And six months––in the world of criminal prosecution, six months is a very short period of time. But you would agree with me if a prosecutor had evaluated a case and decided that there was not sufficient evidence to move forward on that case, the bill as written today would still give the authority of the attorney general at that six-month period the opportunity to take that case and move forward with it? Regardless of what the local prosecutor says?

HULL: But again that's only after––if they have done not a single thing on the case.

MOODY: But what about them investigating and deciding not to move forward with a prosecution? That's covered under the bill as well, is it not?

HULL: That's when they would have a conversation about the case.

MOODY: But, respectfully, the bill doesn't require a conversation. It says the attorney general can take it, and there is nowhere else in the law that we have this authority because the constitutional provisions relating to prosecutors bars it without consent of the local prosecutor. You talked a little about separation of powers. Under this bill, the legislature—by the terms of the bill—is saying, within six months, a prosecutor has to do "x," otherwise the case can be taken away. So the legislature is now going to step in and tell another branch of government how they are supposed to proceed and takes over control of their preparation for trial. Is that not a separation of powers issue?

HULL: It does not take over control. They have six months to do anything on the case.

MOODY: My point is: Is it within the legislature's purview to tell another branch of government how to proceed and prepare for a trial that's within their constitutional power to prosecute?

HULL: The bill does not infringe on their power. It merely allows them to step in.

MOODY: But I don't think that's what it does. It does infringe on their authority on how they prepare their case for trial. By setting an arbitrary six-month deadline, that is telling a prosecutor how they have to conduct their business in their office and how to prepare for a trial. And the legislature is overstepping into another branch of government.

HULL: I disagree.

MOODY: I appreciate it. I guess we can all disagree on these issues. Can you point me to another place in the law where the legislature has said certain prosecutions have to move forward by a certain time period, otherwise the attorney general can take them over? Or some other prosecuting entity can take them over?

HULL: I am not advised at this time, but the Penal Code has plenty of provisions on deadlines.

MOODY: Correct, deadlines that they have to meet within the confines of due process and bringing things forward, statutes of limitation. This is the legislature, though, stepping in and telling them how to move forward, even within the confines of statutes of limitation and due process provisions. The legislature is now stepping in, pursuant to this bill, and telling them within six months, they've got to take a certain action; otherwise—unconstitutionally, in my opinion—the attorney general can take the case away from them without their consent. Is that the way this works?

HULL: No, it is not a certain action. It's any action. It's not saying that something has to be filed. It is any action, and part of the amendment that I have helps to clarify that as well.

MOODY: And I did have a chance to look at a little bit of that. I know that we're going to get to that part of the conversation, so I don't want to belabor the point. I do want to say that these are horrific crimes that we all need to take very seriously, and you said we got to look for the victims in these cases.

HULL: Yes, I agree. I want to make sure they're prosecuted.

MOODY: That's really what we need to be centered on. As someone who's served in a prosecutor's office, who's worked with victim assistance teams, I know it's very sensitive work. I know it's very difficult work. And some of these victims, as I've stated before, are very complex and complicated themselves. So these cases can take a significant amount of time to come forward. In fact, sometimes you can move forward with certain cases and decide that you want to go through other statutory provisions that you think you can make the case better––you can do better with other Penal Code provisions. But if we're making this arbitrary six-month deadline, then those decisions are being unilaterally taken away from the constitutional officers who have the authority to prosecute those cases in their jurisdiction. Is that not how it would work?

HULL: I just respectfully disagree. Victims are not served when the prosecutor does nothing. This is to make sure that victims are served.

MOODY: I agree. We're going to talk about it in just a little while––victims that weren't served by the attorney general's office.

REPRESENTATIVE LITTLE: Representative Hull, thank you for this incredibly important bill. It seems to me that the purpose of the bill is to make sure that significant human trafficking prosecutions do not fall between the cracks. Am I stating that correctly?

HULL: Yes, you are.

LITTLE: And it seems to me that another purpose of this bill is to give the attorney general an opportunity to prosecute crimes and elevate the Stephens decision back up for reconsideration so that incredibly poorly reasoned opinion can be reconsidered and we can have an opportunity to have these offenses prosecuted. Isn't that right?

HULL: Yes, that is correct.

LITTLE: Thank you. I ardently support it. Thank you for your work on this bill.

REPRESENTATIVE ROMERO: I want to just—dumb it down for me a little bit. Where does the AG get involved? Where does the local prosecutor—what are the requirements? From your understanding, you said after six months. So everyone agrees it is just like we have talked about rape kits just sitting there and nothing happening with them. So your belief is that we have to do something if there is a case that has been sitting. At what point in your bill do you instruct the local prosecutor to notify the AG of that case? Is that when it happens? So when they learn there is somebody that has committed that offense, they immediately notify the attorney general that that type of situation has happened?

HULL: So when it first starts—when the case first starts or law enforcement—then the AG is first notified. Nothing else happens. The district attorney does not have to notify the AG of anything else beyond that. They do not have to update them. They do not have to give them anything until after six months. At six months, then it is on the attorney general to check in with the DA, and part of our amendment clarifies, that we are not on that.

ROMERO: But your intent is––so this situation happens, then the attorney general knows that six months have elapsed, so––case number, whatever it is––AG reaches back out to the local prosecutor. The local prosecutor says, yes, that is still an active case, and this is what we have done. What satisfies the AG that that is enough that they are actually working that case? Can they simply just give a verbal notification that something is going on? Do they have to show that there has been a court case?

HULL: No, nothing has to be filed. It could be anything. It could be the investigator going and talking to a witness again. It could be anything. They just have to show that they are doing something. That does not mean that anything has had to be filed.

ROMERO: So as long as the prosecution––the local prosecutor or the DA's office––shows that some progress is being made. You said anything. So as long as the local DA has documentation of their continuation with that case to prosecute, then at that point it will be up to the DA? Is there going to be some resolution? What happens if there is some discrepancy as to what is in your eyes, action or not action?

HULL: My amendment also helps to clarify that. But again, if they have done any action whatsoever on this case, this bill would not apply.

REPRESENTATIVE SPILLER: With regard to your legislation, the bill here, we talked for a minute, and Speaker Pro Tempore Moody asked you some questions about the bill itself, and I want to follow up on some of those questions. Your bill seems to allow six months after the local law enforcement or the law enforcement authority notifies not only the local prosecution but also the attorney general's office of the arrest of the information, and the AG's office can request that information. There is a six-month time frame within which prosecutors can determine what they are going to do with that case; is that correct?

HULL: Correct.

SPILLER: Is it your understanding that these types of cases can be fairly complex and maybe somewhat difficult to prosecute because of either uncooperative witnesses, witnesses that may be in other counties, witnesses that may be in other states, witnesses that may be in other countries––but if the local prosecutor, if they initiate, as your bill says, if they have not initiated proceedings to prosecute the offense, then it would go forward. But initiation of proceedings could be any of those things relative to the investigation of that case; is that correct?

HULL: That is correct. Again, we have an amendment to help clarify that even further.

SPILLER: I think Mr. Moody talked about if they chose not to prosecute—is it your understanding that there are a couple of ways they can do that? They could just do nothing, which is what we are trying to combat here. Or if they actually want to investigate and do something within that time frame, they could investigate. They could contact witnesses. They could schedule a grand jury. They could present the evidence to a grand jury, and if, in fact, a grand jury no-billed someone, my understanding and my reading of this was that a no bill would preclude the attorney general's office from prosecuting them for that offense of which they were charged or at least the offense that was presented to the grand jury. Is that correct?

HULL: That is correct, yes.

SPILLER: So when we talk about taking no action and actually presenting a case to a grand jury, and a grand jury no-billing someone, those are two entirely different things?

HULL: Yes, completely different.

SPILLER: Likewise, he asked some questions about the Constitution. First of all, with regard to district attorneys and county attorneys, although I would submit to you that district attorneys are the ones primarily prosecuting these types of offense––that authority that they have––is it your understanding of the Constitution under Article V, Section 21, that those duties, as it says, "shall in such counties be regulated by the legislature"? Such that this body has the authority to regulate what they prosecute––although it is set forth in the Constitution, this body determines what they get to do, correct?

HULL: That is correct.

SPILLER: And likewise, when we are talking about the Constitution, we also had the provision dealing with the attorney general's office under Article IV, Section 22, where they are allowed to "perform such other duties as may be required by law," correct?

HULL: Yes.

SPILLER: And what your are asking this body to do is approve this so that they would be authorized by law to do exactly what your bill has asked them to do?

HULL: Yes, that is correct.

SPILLER: Do you think that is a fair request?

HULL: I do.

REPRESENTATIVE DUTTON: Under the bill, it says if the local prosecutor takes an action––any action is what you said, any action that would basically send this down another track––it would not go to the attorney general, is that right?

HULL: Can you repeat that? Sorry, I am struggling to hear.

DUTTON: I thought I heard you say that if the prosecutor takes any action, that would be enough—would suffice—taking it out of the hands of the attorney general?

HULL: Yes, that is correct.

DUTTON: And would a no bill be an action?

HULL: Yes.

DUTTON: And likewise, would a motion to dismiss with prejudice from the prosecutor be an action?

HULL: Yes.

DUTTON: Okay. So if the prosecutor no-billed, then that would be with prejudice, and then that would be the end of the case?

HULL: Yes.

[Amendment No. 1 by Hull was laid before the house.]

HULL: Members, this amendment does a few things to help clarify a lot of what has already been talked about. I can walk through it. When it talks about "information requested," we're changing it to say requested information that has not been made publicly available. This is so when the attorney general is reaching out to the district attorney to ask about what is going on, if information is publicly available—things that they can find themselves—then they do not need to reach out to the DA if they can already see that action has been taken. The other has to do with where it says "initiated proceedings." We're changing that to say prosecutorial action, and so to change that again to where it's any action, not just a proceeding, to make that broader. The other where we talk about—for Section (b)—this is where there would be a disagreement if the attorney general wants to take up the case and the district attorney disagrees, they can take that to a district court to where they have to have a finding where the local prosecuting attorney has taken prosecutorial action to prosecute the offense and determine whether the attorney general or local prosecuting attorney shall represent the state in the prosecution of the offense.

MOODY: I'm going to focus more on the second portion––"taken prosecutorial action." Previously, as the bill came to the floor, it was "initiated proceedings," correct?

HULL: Yes, that is correct.

MOODY: So now we've changed that to "taken prosecutorial action," which I assume is meant to capture a broader category of actions.

HULL: Yes, that is correct.

MOODY: Because "initiated proceedings" may have meant taking the case to a grand jury or actually started the case forward. So this is an attempt to gather more activity that would be considered taking an action, correct?

HULL: Yes.

MOODY: Where in the process does the local prosecuting attorney get to file this motion to object to the state being represented by the attorney general?

HULL: It would be after six months.

MOODY: So after the six months, the attorney general does what?

HULL: They will reach out to the district attorney to see the status of the case, but again, if anything—and part of the amendment has to do with requested information that has not been publicly made available. So if the attorney general sees that action has been taken, then they do not even need to bother the district attorney.

MOODY: That's what I'm trying to pin down here, though. Not so much the informational part of it, but there is a new provision in the amendment that they get to file a motion in front of a district court objecting to the attorney general's representation of the state. So does that then presume that the attorney general has entered an appearance on behalf of the state without the consent of the local prosecutor?

HULL: Can you repeat that? I only heard part of the question.

MOODY: It's okay, I'm sorry. Mechanically, you've added in a provision that would permit the local prosecuting attorney to object to the attorney general representing the state in a particular matter in a district court.

HULL: Yes.

MOODY: So what action are they responding to?

HULL: When the AG steps in, if they're going to take over the case, and if the DA disagrees.

MOODY: Just functionally, that's why I want to get the timing of it down, because that's really kind of the crux of it.

HULL: Yes, all after six months.

MOODY: I understand the six-month thing. So six-month timeline under the bill, the attorney general's office decides to, if the bill becomes law, would enter an appearance on behalf of the state in a district court in whatever jurisdiction the case is in?

HULL: Yes.

MOODY: And would they do that with or without the local prosecutor's consent? I'll just ask it two ways. Could they do it with the local prosecutor's consent?

HULL: Yes.

MOODY: Can they do it without the local prosecutor's consent?

HULL: If they have not taken any action, then yes, they could.

MOODY: So they enter an appearance. The local prosecuting attorney is now in a posture to object to that entry of an appearance in the district court. And now their posture is: We don't consent to this; we're objecting to their representation because they are the constitutional officer charged with prosecuting cases in their jurisdiction. They now have to prove in that district court what prosecutorial action they've taken?

HULL: Yes.

MOODY: So nowhere in here are we involving our constitutional officers in the decision whether the state's attorney general enters an appearance on behalf of the state in one of these cases. They can do that unilaterally. Nothing in this amendment changes that?

HULL: Yes, that is correct.

DUTTON: I'll try not to ask you the same questions Speaker Moody asked. When the local prosecutor files a motion in objection to the AG's appearance in the case, does that happen after the AG has filed a motion to appear in the case?

HULL: Not necessarily.

DUTTON: I'm trying to figure out how it happens. Does the AG file a motion to appear in the case? Is that what happens?

HULL: A notice of appearance.

DUTTON: And is that a motion that has to be approved by the court?

HULL: Yes, they have to make a finding and make a ruling.

DUTTON: On the AG's motion to appear, the court would have to make a finding at that point, and then?

HULL: The prosecuting attorney would have to file.

DUTTON: So the AG's filing the notice of appearance would necessitate the filing by the local prosecutor of an objection.

HULL: Correct.

DUTTON: Is that the way it would work?

HULL: Can you repeat the question? I'm struggling to hear.

DUTTON: I'm just trying to understand what the process dictates in terms of—the AG would file a motion to appear in a case where the AG may believe that there had been no action taken on the case. Is that the first thing that happens?

HULL: Yes.

DUTTON: And in doing so, the court would have to rule on the motion, but is that the time in which the local prosecutor would have to file a motion objecting to the AG's appearance?

HULL: So the court will either allow it or rule on the objection.

DUTTON: I'm sorry, I didn't understand that. You said the court would—

HULL: The court would either allow it or rule on the objection. So the AG would file a motion to appear. Would the court have to have a hearing on that motion?

HULL: If the prosecutor objects.

DUTTON: Only if the prosecutor objects? So when it says the local prosecuting attorney may file a motion in a district court objecting, I assume that's in the district court where the proceeding lies. It couldn't go to a separate court and get a—

HULL: Yes, that is correct.

DUTTON: And get a ruling? Okay. The other thing I wanted to ask is: How many times could the attorney general do this? More than once in the same case?

HULL: I'm not understanding your question.

DUTTON: Well, if the court denied the motion of the attorney general, I'm assuming it's like most motions. It can be appealed, correct?

HULL: I'm not advised.

DUTTON: What happens if the court denies the motion of the attorney general?

HULL: You take it up on mandamus.

DUTTON: You do what?

HULL: Mandamus.

DUTTON: Oh, the AG's office could file a mandamus rather than appeal?

HULL: Yes, it could.

DUTTON: And when they file the mandamus action, it would be kind of like an appeal almost, but what would be the basis for the mandamus?

HULL: Abuse of discretion by the court in making the findings.

DUTTON: An abuse of discretion––the court would look to whether or not—because this dictates only one action. One thing needs to happen for the local prosecutor to maintain the case, and that's take an action of some kind in the case. Is that right?

HULL: Yes.

DUTTON: Well, how would an abuse of discretion work if the only facts underlying the case would be the local prosecutor took an action on the case?

HULL: Factual insufficiency would be the basis.

DUTTON: And so it would be an examination not only of whether or not the local prosecutor took a prosecutorial action, but there would be some analysis of whether or not that was sufficient?

HULL: Yes.

DUTTON: I'm not sure how that would work. But let me ask you this question finally: It says the court shall make a finding as to whether or not the local prosecutor attorney has taken prosecutorial action. That's not enough, is it? Because it says "and," which is conjunctive. They also have to determine whether the attorney general or local prosecutor should represent the state. But what that seems to suggest is that it doesn't matter whether the local prosecutor has taken a prosecutorial action, because you don't need "and" if the local prosecutor taking any prosecutorial action is enough to defeat the entry of the attorney general––the appearance of the attorney general.

HULL: With the amendment, you have to make both findings.

DUTTON: Well, that's what I mean. So the local prosecutor could actually take a prosecutorial action, and the attorney general could still have a ruling that he or she is still taking the place of the local prosecuting attorney.

HULL: Yes.

DUTTON: Even though they took a prosecutorial action.

HULL: A trial court could rule that way.

DUTTON: And so what I just said is something that could actually happen?

HULL: Yes.

DUTTON: So what would be the standard the court would be looking for to determine whether the attorney general or the local prosecutor would represent the state?

HULL: That would be up for the appellate court to decide.

DUTTON: That would be up for the appellate court? Okay, I'm not sure what that means. Let me be sure I understand, finally. It is not enough, under the amendment, that the local prosecutor has taken a prosecutorial action. Is that true or false?

HULL: There would have to be two findings.

DUTTON: And the first finding is whether they took a prosecutorial action. What's the next finding? What's the second one?

HULL: To determine whether the attorney general or the local prosecuting attorney shall represent the state in the prosecution of the offense.

DUTTON: Well, that's what the whole question is about, isn't it?

HULL: Yes.

DUTTON: So we don't need whether or not the local prosecutor has taken a prosecutorial action.

HULL: I believe it's important to have that in there.

DUTTON: Yeah, but it's not important to the final ruling, though, is it?

HULL: You have to make both findings, one of the two. You have to make both.

DUTTON: Let me ask it this way. Let me ask it in the reverse. If the court made a finding that the local prosecutor had not taken a prosecutorial action, what would be the result then? What would be the result of the case if the court made just that one finding?

HULL: Made which one finding?

DUTTON: Made a finding that the local prosecutor had not taken a prosecutorial action.

HULL: That the attorney general would be allowed to prosecute.

DUTTON: That what?

HULL: That the attorney general would be allowed to prosecute.

DUTTON: So it works that way when he hasn't taken a prosecutorial action; that's all you need. But if he has taken a prosecutorial action, you still need to determine whether or not—the court would still have to determine—whether the attorney or the local prosecutor would take the case. You understand what I'm saying? It doesn't seem to be a balanced approach because if they don't make a finding, you're saying that defaults to the attorney general. But if they do make a finding, then the court still has to make the determination.

HULL: You're saying, on number two, whether it's the attorney general or the local prosecutor, they have to decide either one.

DUTTON: That's what the whole issue is. The issue is whether or not the attorney general or the local prosecuting attorney will represent the state. That's what the issue is, right?

HULL: Yes.

DUTTON: Okay. And so the way the amendment seems to be drafted is––and what I understood you to say is––that if the court makes a finding—

[Amendment No. 1 was adopted.]

[Amendment No. 2 by Moody was laid before the house.]

MOODY: I just kind of want to zero in on the functional parts of this and why I think it matters. I don't think you're going to find anyone here who doesn't want to prosecute these cases to the fullest extent of the law. In fact, we've passed bills after bills after bills on human trafficking and sex trafficking. In fact, one of the first committees I was appointed to during the interim was the Select Committee on Human Trafficking, and it was a joint committee with the senate. The first of its kind, it led to some revolutionary laws that helped prosecutors figure these cases out and bring them forward successfully. In fact, it was done in partnership with our friends at TABC because––if you don't know the early days of prosecuting these types of crimes––it was TABC that really created the strike force. They understood how to get into some of these legal businesses that were doing illicit activity out the back door, and they had the right to inspect. So there were a lot of partnerships going on. The Texas Department of Licensing and Regulation does the same thing now.

So there's a lot of good collaboration. I want to be very clear. I am not against collaboration. In fact, in a lot of cases, that is the best way to go forward and find a good prosecution. What I do object to is doing this in an unconstitutional fashion. Our 1876 Constitution is unique in a lot of ways when you look at it compared to other states. We divided our government into three branches like others do. But unlike the federal government and other states, we housed our criminal prosecutions with our local prosecutors in the judicial branch. That is where they sit. In the executive branch is where the attorney general's office is, and they have authority to prosecute a whole number of things that are laid out but not criminal prosecutions. It's never been that way, no matter what the legislature has tried to pass; that is not the way the Constitution is built. We have separated those for a purpose. And those actions matter.

So when we do this, how we do it also matters. That's why I'm bringing forward this amendment, which does no violence to Ms.  Hull's bill, which is let's get these things moving. Let's get another set of eyes on this. I don't object to that. It's a good idea, but how we do it matters. I know we've been here all day, and I don't want to get into the nuances of all these laws. The way this amendment works in conjunction with Ms. Hull's bill and her amendment—all still intact, this does not conflict with it in any way—is it preserves the consent of the local prosecutor. It doesn't upend the six-month provision. It doesn't upend the information being shared back and forth. In fact, it fosters collaboration. That is what this amendment does. It does no violence to the core principles—and Ms. Hull stood up here, and I believe her. Other people may say this bill is about getting a test case. I don't think that's the real reason; I think it's that Ms. Hull wants to make sure that victims are taken care of. And I believe in that, too. And so this does no violence to that underlying purpose, but it inserts our constitutional officers—our prosecutors back home––into the process so there is collaboration by virtue of the bill, not a takeover of a case. That's not collaboration. This is the better way to do this and would allow the attorney general to enter into these cases when they're working together with our local prosecutors. Those are the best-case scenarios when done correctly. So that's what this amendment does.

ROMERO: One of the points that was brought up by the author was that some of these cases may be statewide––these rings that may be going all over our state, people that are doing these things. Do you, as someone that's worked in a prosecutor's office, believe that a DA doesn't coordinate with other law enforcement agencies or wouldn't bring in the AG?

MOODY: I think very often you do have complex networks that would touch multiple jurisdictions. So you would have collaboration in those cases. So that's my point. No one here is against collaboration. It is the way in which we do it so that we preserve the boundaries that we created between the branches of government in a way that fosters collaboration and not conflict. Conflict doesn't help the victims. Collaboration helps the victims. So by inserting our prosecutors locally into these conversations about information sharing, about bringing the attorney general's office into a case, putting them in that position to collaborate is a better structure to get these cases moving faster. And the six-month provision is still in here under my amendment. I didn't touch any of those provisions. All of that's still here. All that's been done here is that the local district attorney or county attorney is going to need to consent to those stages of the process and keep them engaged in the collaborative prosecution of these cases. They could also make the decision to just hand it off. If they're a small office and they want to do that, they could do that today.

ROMERO: That's the point I was hoping you would make and elaborate on––because I feel very confident that the Tarrant County DA and Phil Sorrells would communicate with the Johnson County DA. Because as our communities continue to grow and they grow together, the locals, I would feel like, know best. I don't know what would happen when an attorney general's office comes in. Do they just turn over the investigation to completely new investigators? Could we be dropping cases? Could we actually be doing a disservice to the people we're purportedly trying to help?

MOODY: I think that's a very good question. When you create unilateral authority to come in and take a case, those victims don't get to decide whether their cases are being worked properly or not. It wasn't very long ago that because of turnover and staff shortage in the attorney general's office, major sex trafficking crimes were dropped through the cracks, leading a republican district attorney in Gatesville to say, "I made the mistake of trusting them that they would come in and do a good job." That's a republican district attorney in Coryell County that said that about the way the victim's case was handled by the attorney general's office. So all I'm saying is that that DA in Coryell County should get to be able to say whether they think that office is functioning well enough to collaborate with or not. If it's running on all cylinders, I guarantee you that case would've ended up differently. But if it's not, then that prosecutor needs to be able to protect their community. That's their job. And all I'm saying is don't take that power away from them. It is constitutionally given to them. Let them collaborate. In Bexar County, there was another example where you had a 16-year-old that was part of a sex-trafficking ring. The mother of that victim said, "I don't even trust the system anymore," when the people that were charged with those crimes, they ended up taking plea deals that kept them out of jail and even kept them from having to register as sex offenders. That's not victim-centric. So let's make sure that our local DAs, who are the frontline protectors for those victims—in fact, when we have victims' services offices, they are housed in our prosecutors' offices. Why? Because they're the ones that have to care for them. They're the ones that have to hold their hands through the process, and it is a difficult process. And I've been in the rooms with those victims as they're revictimized going through this stuff, and it is challenging. Let's not take those trusted, locally elected officials out of this process. That's all the amendment would do. It keeps them in the mix so that collaboration works for those victims.

ROMERO: Speaker Moody, I believe that the author shares your passions for the victims, and I don't believe anybody in this body should not be listening to what we're talking about right now. We cannot drop the ball. Is there anything in the bill that tells us what's going to happen if nothing happens again? This is not something—this is important enough to every single person in this room. My deskmate, I don't think there's very many people in here—because I serve with her on Licensing—than Senfronia Thompson, our dean, is working harder on sex trafficking. Speaker Moody, I didn't see anything in the bill that says what happens after a month if the AG doesn't do anything. So what happens after six months, and now it's in the hands of the attorney general? What do we tell the families if, once again, nothing is happening?

MOODY: I don't know. I don't know the answer to that question. I don't know how I would answer to the mother of this 16-year-old child who had this case fall through the cracks when it was being handled by the AG's office just a few years ago or the district attorney in Coryell County. I don't have an answer for them. My point is these problems may not exist in that office anymore. I hope they don't because that's not good for Texas. And if they don't exist and we have a good collaborative working relationship between our local prosecutors and our attorney general, that's best for everybody. That's a winning combination for the victims of crime in the state. And that's why I'm asking the author to take this amendment because I agree with you wholeheartedly. I know what her focus is on this, and it's bringing resolution for those victims and holding people accountable for the vicious crimes they've committed. But we don't do that by cutting out our local prosecutors, who are best suited to understand their needs and are constitutionally charged with prosecuting crimes in their jurisdiction. If we want to do this the way the bill came to the floor, bring a constitutional amendment. If you want to do it within the confines of the Constitution as it is now, let's do it this way, and let's keep these local prosecutors involved in the decision. Like I said, this doesn't upend any of the timelines or any of the structures of the bill as it came to the floor. All this says is let's respect our local district attorney and county attorney and keep them in the process. And if we do that in a collaborative fashion, we're all going to win. Most importantly, the victims are going to win.

ROMERO: Thank you for keeping them in the front of mind.

DUTTON: Chairman Moody, I'm trying to understand how this process would work. On what basis would an attorney general decide to get into a case? That's kind of escaping me. Does he just read the newspaper and make that decision, or does he do some—ask the local prosecuting attorney for some files on it or how?

MOODY: I'll answer within the confines of my amendment here. If the amendment goes on, the way that would work is that notification with the consent of the local prosecutor can be sent to the attorney general's office, so they're aware of it. But now, the way the amendment's written, both the local prosecutor and the AG are collaborating from the get-go. And the local prosecutor's saying I want them to have that information and then the supplemental information––they agree to that, too. And then if they want to come in—if they think it's the right thing to do—the way it would work with the amendment is that the local prosecutor would consent to the attorney general's office coming into the case. They could do it one of two ways. They could do it together, or they could hand the case off to the attorney general's office to handle as a whole. That's the way the amendment would work, but it keeps our local prosecutor involved in the decision-making.

DUTTON: Would that decision by the local prosecutor be voluntary?

MOODY: Under my amendment, it would be. It wouldn't be compulsory. Under the bill as it came to the floor, it's a unilateral decision. And that's really kind of the crux of the matter for me: to respect our constitutional boundaries and also to respect our prosecutors that have the very important job in each one of our communities to protect their community from crime and also stand up for the victims of crime.

DUTTON: So under your amendment, the local prosecutor has to voluntarily send over whatever files or copies of files to the attorney general's office?

MOODY: It would put them in the discussion of whether to engage or not. And if they want to engage, then all of the things under the bill continue to move forward. The six-month deadline is also something that continues to move forward. But the difference between the bill unamended and if this amendment went on is that you are making sure that there is a local prosecutor involved in that decision-making.

DUTTON: And if the local prosecutor—let me turn it on its head—if the local prosecutor made the decision not to send any information to the attorney general's office, is there something in here that would cause that to be changed?

MOODY: In the amendment?

DUTTON: Yes.

MOODY: No, it would have to be done with their consent.

DUTTON: It would have to be done what?

MOODY: It would have to be done with the prosecutor's consent. So ultimately they're going to be accountable for those decisions that they make.

DUTTON: And if the prosecutor, again, decides I'm not sending you anything, the attorney general says, I'd like to have the information––there's no penalty? There's nothing in here that would suggest that you could even have a mandamus on the part of the attorney general's office, is there?

MOODY: No, with the amendment, you would put the local prosecutor in the decision-making tree.

DUTTON: In charge.

MOODY: Yeah, so your hope would be––and I do think this would be the case––I think in reality the way this is going to work with this amendment on it is that the local prosecutor, they know their bandwidth, they know their ability to move forward on cases, and they're going to make a decision on how to handle complex litigation like this. And my guess is 9 times out of 10, they are going to reach out to the attorney general's office and seek that help. But that decision should be theirs because that's what the Constitution says.

DUTTON: Right. I know this doesn't happen generally, but it seems to me we're creating an opportunity for a local prosecutor to get out of a case.

MOODY: Oh, sure.

DUTTON: The prosecutor says, I don't really want to deal with it, so I'll just give it over to the attorney general.

MOODY: Well, an office like the Harris County office, while I'm sure they would not say they have plenty of resources, they are a well-resourced office. But I know back in my county––particularly as we went through two changes of administration and a very high-profile, mass-murderer case and a lot of turnover––the bandwidth in the office was very low. On a good day, they would be able to take any of these cases and prosecute them to the fullest extent of the law. But in the current state of affairs, they're going to make the decision to reach out and collaborate, and they have. They have. But that decision needs to rest with our local prosecutors, and I'm telling you, if you talk to your local DA, they're going to agree with me. Some of them may have already reached out to you because this is about preserving their constitutional authority.

DUTTON: Finally, let me ask this question: Does the attorney general have to take the case?

MOODY: It's a good question. I don't think they can be compelled to take the case.

DUTTON: So even though the local—

MOODY: I don't want to speak out of turn—

DUTTON: I'm talking about the amendment. The amendment you have doesn't force the AG's office to take the case even though the prosecutor may have—

MOODY: Consented to it.

DUTTON: Yes.

MOODY: I don't think there's a compulsory nature to that, no. I think obviously you've got to be willing and able to take on the case as well. As I said, it's the collaboration that's the key.

DUTTON: Okay. Thank you, Speaker Moody.

MOODY: Members, I've had similar conversations like this throughout my time in the house. The conversation always comes down to: Talk to your local prosecutor. They're the ones that are on the ground. They're the ones that are directly accountable to the folks they serve where these crimes are being committed. Their job is to prosecute these crimes. It is to protect these victims. And they will tell you, just don't cut me out of the process, and that's what this amendment does. I have no objection to collaborating with the attorney general's office. I think I would encourage it in many of these cases because they are complex.

HULL: I have to respectfully disagree with my friend, Speaker Pro Tempore Moody. I also know his heart for these victims, too, and everyone in this chamber. The amendment would undo the entire purpose of the bill, and so I have to respectfully oppose. We want to make sure these cases are prosecuted. So I respectfully oppose and ask that you vote no.

MOODY: I certainly appreciate your attention. These are incredibly important issues––not just the cases––but when we're talking about constitutional boundaries and separation of powers. I know that can get a little bit weighty, particularly at this time of night, but these are important barriers that we have in place that have been in place since 1876 for a reason. And if we want to encourage collaboration, this amendment does nothing to upend the goal of the bill, which is to get the attorney general's office involved in these cases, and they will be as long as we're following the provisions of the Constitution that our local prosecutor—your DAs back home—play a role in this decision-making. That's all I'm asking. I ask you to vote yes on the amendment.

[Amendment No. 2 failed of adoption by Record No. 1106.]

REPRESENTATIVE JOHNSON: First, let me say thank you to Chairwoman Hull. She and I came in together. We've always had a great working relationship, and I appreciate that she has taken time to talk to me about this particular bill. With that, though, I deeply oppose this legislation. In 2007, I was appointed to represent a 13-year-old little girl who was charged with prostitution. At the time, she was convicted. I believe that that was wrong, and it took me three years to get that case to the Texas Supreme Court, where the Texas Supreme Court proudly, for the first time in this nation's history, said that 13-year-old little girl was a victim, and she was not the offender. I never imagined that in my life I would become a human trafficking expert, but I did over the three years that it took me to develop that case and get that analysis to our court. I am proud of what this state has done on human trafficking. I went back to the DA's office and became your chief human trafficking prosecutor in Harris County. I've taken these calls. I've sat with these kids. I've been in these courtrooms. And I will tell you, there is nobody here that wants to take a vote against human trafficking. I can walk into any place at any time and say, I'm your former chief human trafficking prosecutor, and let me tell you, people's eyes will light up. It's the kind of phrase that breaks down all barriers. It's the kind of phrase that breaks down all partisanship. And that's the thing that scares the hell out of me about this bill. Because this bill is suggesting to you that you need the attorney general's office to––"shall"––reach in and supersede the jurisdiction and control of each and every one of your elected DAs under the promise that it has to do with human trafficking.

I don't believe this. I don't believe you need this, and I have grave concerns about why. In January of 2016, the attorney general's office created a new unit. That new unit was supposed to do what they say now, which is to go into jurisdictions and help other counties that didn't have the same kind of robust prosecution unit that we did and to help where people were not trained. In January of 2020, there was an article posted in the Texas District and County Attorneys' office by Lisa Tanner that said, "Happy New Year. I'm writing each of you to talk about the confusion about how you get the attorney general to assist in your case for prosecution. Our review is the same. Upon receipt of your request, we will decide if we can accept it, either because you are disqualified or you need special assistance." Human trafficking would be one of those that was special assistance. Look halfway down the article––"Please do not ask a judge to appoint us on a case before hearing from us that we will accept it. Additionally, if a judge indicates to you that he wants to appoint us, please urge him not to do so until the request and approval process has been completed. While we would like to help you in each and every request, we only have 20 prosecutors able to cover 254 counties." Well, guess how many prosecutors they have handling this today? Go look at the AG's website for today. You know how many they have? Seven. This is not a good bill. This is not about human trafficking. This is about the attorney general, regardless of who is in that office, having the unilateral power to supersede your elected local DA. We all should vote against this bill.

[CSHB 45, as amended, was passed to engrossment by Record No. 1107.]