Monday, May 05, 2008

Texas AG: Lege intended prosecution of participants in needle exchange pilot it authorized

Egged on by Bexar County DA Susan Reed, Texas Attorney General Greg Abbott sided with opponents of a legislatively approved needle exchange program in San Antonio, likely pushing the issue to the courts - in the form of the prosecution of Christian activist Bill Day, who was arrested for distributing clean needles to addicts - and back to the Legislature in 2009.

See General Abbott's opinion.

I'm not a lawyer, but I find the stance ridiculous. The Legislature authorized a needle exchange pilot in Bexar County, which by definition involves allowing needles to be exchanged with addicts. But according to Abbott, because:
the Legislature has expressly demonstrated its ability and willingness to exclude otherwise criminal acts from prosecution under the Texas Controlled Substances Act--but did not do so here--this office can neither assume nor legislate such an intent.
So in other words, Abbott believes the Legislature intended to allow a needle exchange program in San Antonio but simultaneously intended for participants - both addicts and government employees - to be prosecuted for engaging in it. That's angeringly stupid, but there's little to be done about it until the Legislature gets back to town. Personally, I think Wentworth should have eschewed the opinion and just let the county launch the program. Often in such matters, it's better to ask forgiveness than permission.

Needle exchange legislation in 2007 enjoyed bipartisan support, and its main opponent in the House of Representatives, Dianne Delisi, won't be back next year, so I suspect the pilot won't have trouble passing again. In fact, I wouldn't be surprised if other counties (like Travis) wanted in on the deal. For now, though, Abbott and Reed have succeeded in delaying the project, though for the life of me I don't understand their motives.

23 comments:

Anonymous said...

Our Elected and Appointed State Officials in Texas are an embarrassment to all they serve. A moron could figure out the intent of the Texas Legislature in this case.


Not a bit surprised at the dumb ass decision from AG Greg Abbot. In fact he has affirmed my low opinion of his kind. Throw the bums out! Our Elected Texas Officials are poster children for term limits!

FTM

rage said...

Jesus Christ.

Anonymous said...

By signing his name to that blatantly results-oriented legal analysis Greg Abbot ensured he will never be appointed to the federal judiciary.

Sure, participants in the disease fighting program may distribute needles, and they may exceed the posted speed limit and they may drive while intoxicated and they may evade taxes.

Gritsforbreakfast said...

Are you kidding? They let Priscilla Owen on the federal bench, and I can't think of a more "results oriented" judge besides Sharon Keller. It SHOULD be true that such legal silliness disqualifies one for the federal judiciary, but I wouldn't bank on it.

paprgl said...

Did you read the ruling? I think it was fairly clear. They needed to change the controlled substance act. That seems reasonable.

Gritsforbreakfast said...

I read it, paprgl - it was clear the AG made a political decision instead of a legal interpretation ... unless you think it's reasonable to assume that, because they didn't expressly create such an exception, the legislative intent was for needle exchange workers and program participants would be prosecuted. Can you really believe that's true? If so, please explain why?

This was specifically a "pilot" program, which means the Lege was creating a special dispensation for it to operate. Doesn't the AG's stance assume the Legislature is so dense that they meant to grant permission for a program and simultaneously intended that any participants should be arrested? Please explain why you think that isn't a ridiculous idea, unreasonable on its face?

Anonymous said...

I don't think it's an issue of Sen. Wentworth letting the County launch the program; I think the issue is the County wanting to make sure that SAPD and the DA didn't arrest and prosecute County employees for doing their jobs. While this may sound laughable, consider the Day case. Also, to FTM in this thread's first post, remember that elected officials such as Rep. McClendon are the reason there is (was!) a pilot program to fight for. So, at least some "Texas Elected Officials" are willing to stand up for common sense.

el_longhorn said...

I understand that an exception to the Controlled Substances Act could and should have been written into the amendment, but Abbott's analysis violates a handful of the rules of statutory construction - he has interpreted the amendment as to have no meaning and he has reached a ridiculous result - that the Leg authorized a pilot program for which county workers could be arrested. That is simply not a plausible reading of the amendment. Worse, he never explains what the Leg thought it was doing when it voted on the amendment - if it wasn't to legalize a pilot program, then what was it for?

doran williams said...

The AG's Opinion is certainly "angeringly stupid," "embarrassing," "ridiculous," and "dumb ass." Lets add "herniated" to the list applicable adjectives.

TxBluesMan said...

The AGO was technically correct.

Don't blame the AG - blame the Lege.

They have been known to screw up legislation for over 170 years.

They'll fix it in January.

Maybe.

paprgl said...

I agree. It was a loophole they need to fix.
Take the politics out of it.
Abbott errs on the side of conservative/literal/strict constructionist.

paprgl said...

But in the interest of full disclosure... I also think the strip club fee is legally indefensible. Even good ideas are sometimes... legally indefensible. :)

Gritsforbreakfast said...

"Abbott errs on the side of conservative/literal/strict constructionist"

Meaning he strictly construed that when the Lege authorized the SA needle exchange program, they INTENDED for participants to be arrested?

That's not construing very strictly the part of the bill that says Bexar County MAY have a program! You cannot listen to the legislative floor debate about intent (I was in the gallery for it) and come to that conclusion.

Bluesman, I know you're the great defender of technical correctness in the face of moral error, but in this case I don't think Abbott was even technically correct. I get that it would be cleaner if the exception to the CSA were made overt, but you can only get to his position by ignoring that Bexar CAN have a program under the law, but CANNOT under his ruling.

That looks to me like a political CYA opinion, not a legitimate legal interpretation of the statute.

TxBluesMan said...

Grits,

I don't disagree with you.

All I'm saying is that technically, his opinion is correct.

You are totally correct about the political part - he's an elected official, and probably looking at a higher office in the future.

The same reasoning tracks on why he would jump into the FLDS case by prosecuting the criminal cases.

It's political, and he thinks, as I do, that most Texans will come down on the side of sending the polygamists to prison.

It's political, but technically correct.

Plus, he knows that the Lege will fix it in January.

rage said...

It's political, but technically correct.

Not true. Statutes are to be interpreted in a way that gives them validity. The way he did this, it renders the approved needle exchange program statute null and void. He should have decided that although an exception was not drafted, the legislature intended anyone participating in a needle exchange program to be acting lawfully.


That, is technically correct. Abbott is just flat out incorrect.

jeremy said...

I'm glad I was linked here. Excellent read on the situation - I'm updating my post at http://endcycle.blogspot.com/2008/05/seriously-texas-wtf.html to reflect this. I am saddened that people can be such jerks about programs that actually save lives and prevent the spread of HIV and other intravenously-borne illnesses.

TxBluesMan said...

Rage,

The AG cannot write law that is not there, and he has to follow the rules of statutory construction.

The Lege messed up by not amending the HSC to include a defense or exception for Bexar County.

This isn't the 1st time that they've done this, and it won't be the last, so long as the Lege only has 140 days every other year to get it's business done.

Whatever the intent of the Lege was (and I know that they wanted the exchange program to work), they still have to put it in writing. They didn't.

The AGs ruling, although political, IS technically correct.

el_longhorn said...

No, the ruling is not technically correct. Technically speaking, if a statute is unclear, ambiguous or appears to be in conflict with another statute (all of which could apply to the needle exchange amendment), the courts (including the AG) are supposed to look at the legislative record for evidence of legislative intent. But the AG twists himself into knots trying to avoid looking at the legislative record because of statements like this:

Senator Deuell:
"Senator Nelson, I did want to establish some legislative intent on the amendment regarding needle exchange. Is it your intent that, notwithstanding any other statutes, Bexar County will be allowed to legally operate a needle exchange program under the provisions of the bill?"

Senator Nelson:
"That is correct."

Senator Deuell:
"Okay, thank you, and thank you for your support in this regard, and many, many other issues: and thank you, Mr. President."

That is from May 27th, when the Senate passed the final version of the bill. The legislative intent could not be more crystal clear. A district court judge would quickly overturn the AG's analysis, but that will probably not happen since Bexar County will probably put the program on ice now.

TxBluesMan said...

Longhorn,

Not exactly correct. Legislative history is one of the items that may be considered.

Other items include the common law or former statutory provisions, including laws on the same or similar subjects, see GC Sec 311.023.

In addition, GC Sec 311.026 requires that the provisions of both statutes be construed so as to give effect to both.

Had he given his opinion that the needle swap was legal, it does not give affect to the statute prohibiting distribution of drug paraphrenalia. By issuing the opinion that he did, both statutes are technically effective, although it may not have been the intent of the Lege.

They'll fix it in the next session.

Gritsforbreakfast said...

How, exactly, Bluesman, is the new statute authorizing a needle exchange program "effective," technically or otherwise, if the law is construed to say that program participants including government employees are subject to arrests?

Simply saying "both" laws can "technically" coexist doesn't make it true if the enforcement of one precludes the other.

Maybe they will fix it next session, though it took years to get this pilot passed. But that doesn't excuse overtly politicized lawyering by the Texas AG.

el_longhorn said...

In the next session they will legalize needle exchange programs statewide. The votes are there: 21-10 in the senate on Deuell's bill and 71-60 on the McClendon amendment in the house. Delisi's chairmanship of Public Health was the only thing blocking the bill - hence the floor amendment to get around her - and she is retiring.

On the law, the courts can look at other statutes and common law IF the legislative record is silent or intent is unclear - as it is in 90% of cases. Here the legislative intent is CRYSTAL CLEAR!! Deuell and Nelson read it into the Senate record before final passage of the bill and there was a 30 minute house debate on the amendment! The AG is spitting in their faces with this - Republican Senators!!

Too tired to find the Senate transcript right now, but I will post it tomorrow.

rage said...

The AG cannot write law that is not there, and he has to follow the rules of statutory construction.

Nor can he ignore a law.

You tout statutory construction as if you knew anything about it. One of the basic tenets of statutory construction is that all statutes are to be given effect, where possible. That's the first step, in fact.

el_longhorn said...

Video archive of proceedings on CSSB 10, by Senator Nelson describing the conference committee report and the floor amendments to S.B.10, followed by comments of Senator Deuell about the Conference Committee's efforts, and his specific statement establishing legislative intent: see Senate Actions archived in video on May 27 at http://www.senate.state.tx.us/avarchive/ starting at 1:56:34 -- ending at 1:59:13.
The following statement is a transcript of the remarks of Senator Deuell about S.B.10 specifically, which begin at 1:58:25 and end at 1:58:55 on this video archive:
"LEGISLATIVE INTENT of S.B. 10 AMENDMENT

Senator Deuell:
"Senator Nelson, I did want to establish some legislative intent on the amendment regarding needle exchange. Is it your intent that, notwithstanding any other statutes, Bexar County will be allowed to legally operate a needle exchange program under the provisions of the bill?"

Senator Nelson:
"That is correct."

Senator Deuell:
"Okay, thank you, and thank you for your support in this regard, and many, many other issues: and thank you, Mr. President."