Criminal Jurisprudence Has 35 Days Left to Define a Legacy

Rather than focus this week on the bills up in the House Criminal Jurisprudence Committee - which as I've mentioned has become an increasingly frustrating and disappointing enterprise as the session has drug on - why don't we examine some good bills that are still languishing in committee that deserve approval?

It's not that the committee hasn't passed ANY good bills. As noted elsewhere, they've passed several important bills I heartily approve of. But its members appear overly infatuated with penalty enhancements and draconian police state tactics as the solution to every social problem. The committee hasn't fully participated in the grand project Rep. Madden and Sen. Whitmire have undertaken to reverse Texas' recent overwhelming prison growth.

That's not entirely the committee's fault. For starters they have a rookie chairman, and three of its members are freshman with no background on the issues who couldn't be expected to dive straight into complex details. But even before bill filing deadline in March it was clear that this committee simply didn't get enough good bills filed on its topic areas. Next session I hope committee members and other House members step up more aggressively, particularly to propose more so-called "innocence" reforms, which fall squarely in the committee's purview but which are largely absent or ignored among filed House bills. Indeed, some bills this committee proposed and approved head in the opposite direction.

That said, for this session they'll have to work with bills they've got in front of them. So let's run through some good legislation that's already been heard in the Criminal Jurisprudence committee that I think deserves to be voted out as soon as possible. (I'm not going to link to every bill, but you can look them up on the capitol website.)

Let's start with Rep. Turner's HB 337, which would require that courts find a probation violation was willfull and intentional in order to revoke probation. This would seem to me to fit in handily with other probation reforms taking place this session, but after receiving a hearing early on the bill has sat around in committee without ever receiving a vote. It's a moderate bill, its author is a member of the Speaker's leadership team, it's an issue Democrats should be in favor of - I really don't understand why it hasn't moved yet.

Another bill, HB 1513 by Haggerty, would allow judges discretion to order community supervision in certain violent offenses in the interest of justice. Haggerty is an El Paso Republican and former Corrections Committee chair, so it's not like this is coming from some wild-eyed radical. But so far, no dice - the bill was also heard a month ago and inexplicably left pending since. Similarly, Rep. Turner's HB 1075 laying out the "purpose" of criminal sentencing in Texas law for the first time, as far as I'm concerned has little to recommend against it, but the bill again has been sitting around in committee for far too long without receiving a vote.

Though there are few hard deadlines until May, it's getting awfully late in the session for bills that have already received a hearing to have a chance if they don't move out of committee this week.

Ditto for HB 758 and HB 759 (discussed here), both by Rep. Harold Dutton, which would restructure penalties for low-level drug posssession offenses. Groups from the Texas Public Policy Foundation to the ACLU backed the bills as a way to address prison and jail overcrowding, but the seven Democrats on the committee so far haven't brough themselves to vote for them.

HB 758 in particular is one of the few bills heard this session that would significantly reduce county jail overcrowding, but it's been languishing after both bills received a hearing on March 20. Last year some of the most conservative Republicans in the Legislature - Mary Denny, Debbie Riddle, Terry Keel - voted along with Chairman Peña for an identical bill to HB 758, but this year Peña and the six other Democrats on the committee haven't deemed it worthy of floor consideration. (Another bill they did approve, thankfully - HB 2391 by Madden, discussed here - allows police to issue citations for misdemeanor offenses. Without it the 80th session would be a near-complete loss on local jail overcrowding.)

It's not a big one on my list, but criminal defense attorney readers will be disappointed to learn that the Chair's HB 1267, also heard in February, has yet to move out of committee. That bill would require counties to pay for indigent defense services within 60 days of billing.

Another Turner bill I'd like to see move out of Criminal Jurisprudence is "HB 1476, [described here, which] empowers judges and juries to ignore 'enhancements,' or pile-on penalties, as our friend 800 Lbs Gorilla calls them, 'on a unanimous determination by the jury or a written determination by the judge that the enhanced punishment would result in disproportionate or unfair punishment.' That leaves enhanced penalties available when they're necessary to fulfill the purposes of sentencing"

A bill which I understand may be voted out this afternoon, HB 1148 by Madden, was just heard last week but it's a worthy bill that deserves support and quick vote - it narrows the range of things that can be declared a "deadly weapon" for purposes of enhancing penalties to a more reasonable standard, limiting "creative" uses of the statute. (When I asked Chairman Madden about this bill he said he hoped it'd be voted out of committee today, so supporters should keep your fingers crossed.)

Legislation to improve representation for capital defendants cleared the Senate and now the ball is in the Criminal Jurisprudence Committee's court, so we'll soon see what they'll do with it. SB 528 by Seliger was approved by the Senate on April 12 and is presently awaiting a House committee hearing. It's a companion to HB 1266 by Peña, which has been pending in committee since February. Again, since the committee's already heard the bill once, I hope the committee doesn't dilly dally around too long before taking this up.

Rep. Escobar proposed a good bill, HB 1773 (discussed here), to compel more thorough notice when prosecutors intend to introduce extraneous or "prior bad acts" into evidence - current law requires notice, and Escobar would add "written" notice 30 days before trial. Some DAs may give the information verbally in an informal setting and claim they've complied with the current law, but Escobar's bill creates a needed paper trail to avoid he-said she-said disputes among opposing counsel. It was heard in late March and remains pending.

A bill disallowing introduction of hearsay evidence at bail revocation hearings by Rep. Alonzo (HB 2674) also received a hearing in March but hasn't been voted out.

In addition, the committee could salvage some good out of the session by passing good Senate bills - Rodney Ellis' three "innocence" bills were just approved by the Senate, e.g. - and killing bad ones like SB 244 which the committee heard last week that would let prosecutors petition to temporarily close off access to search warrant affidavits.

With 35 days left in the session and counting, there's really just a short time left for this committee (and the rest of the Lege) to accomplish whatever they're going to this session. I said at the beginning of the session that the Democratic majority on Criminal Jurisprudence made it one of the D's best opportunities to show they're able to govern - by that measure, they've not acquitted themselves as well as one would hope, but perhaps there's time in the home stretch to make amends.