With clock ticking, criminal justice legislation moving

Writes House Criminal Jurisprudence Chairman Aaron Peña at A Capitol Blog,

Can you hear it? The clock is methodically ticking away as hundreds of bills confront their possible demise. The window of opportunity for passing legislation in this session is effectively closing in coming weeks.

That's sure right - this time of year every delay for a bill increases its likelihood of death, and bills that aren't out of committee in the next week or two likely won't have time to pass at all.

That makes the relatively few bills that are moving a lot more important and likely to become law - after a certain point, legislators are willing to pass bills just to show they've done SOMETHING, since most bills inevitably (thankfully) die. Which leads us to this week's analysis of what legislation passed out of criminal justice related committees - all of these bills, to be sure, still have legs.

Don't De-Regulate Wiretapping!
The worst bill by far to receive approval this week was legislation to de-regulate wiretapping in Texas. Sen. Whitmire's SB 823 was sent to the Senate's local and consent calendar, and Rep. Debbie Riddle's companion, HB 357, passed out of the Criminal Jurisprudence Committee. Here's how I'd previously described this legislation:

In the 'if it ain't broke, don't fix it' department, Rep. Riddle's HB 357 would de-regulate wiretapping in Texas, allowing local law enforcement agencies to operate their own "pen registers" and other wiretapping equipment. Right now all wiretapping in the state runs through the Department of Public Safety, ensuring uniform standards and application of wiretapping regulations that simply could not be enforced if every local agency was doing it. I've never heard of any circumstance where DPS' involvement in wiretapping cases caused any problems - this bill is a solution looking for a problem. And since there really isn't one, I hope the committee rejects it out of hand. This legislation could lead to a slew of unintended consequences and outright scandals down the line that the current regulatory setup is designed to avoid. It would be foolish and irresponsible to endure those risks when there's no evidence of problems with the current system.

This is a terrible bill, IMO - a solution looking for a problem. Lt. Governor David Dewhurst rejected this same idea when it was proposed to Texas' Homeland Security Task Force he led after 9/11, and I hope he'll act again to kill this legislation. It deserves/needs scuttling.

Guns and traveling
The House Law Enforcement Committee passed Rep. Isett's HB 1815, which would close a loophole that prosecutors said allowed police to arrest motorists with a weapon in the car. This is the legislation fixing the problem described in a public policy report I authored and covered this week in the New York Times.

Strengthening probation
House Corrections passed HB 1678 this week, which is this session's equivalent of the big probation reform bill Gov. Perry vetoed in 2005, with a couple of tweaks to accomodate the Guv's stated concerns. The bill has bipartisan support (see prior Grits coverage) heading into the Calendars Committee.

The House Criminal Jurisprudence Committe approved a good bill, HB 312 by Turner, which creates an evidentiary standard for certain probation proceedings over technical revocations. (See Grits' earlier discussion.)

Another probation-strengthening bill, SB 1909 by Ellis, Carona, and Deuell, passed out of the Senate Criminal Justice Commitee this week. Along with HB 1678 and HB 530 expanding drug courts, this is one of the major probation reforms of the session. (See prior Grits coverage and a surprise blog post from the conservative Lone Star Times in support of the bill.)

Senate Criminal Justice also approved SB 1780 by Whitmire which would require 10% of county asset forfeiture income to be designated for drug courts. As I've said before, it wouldn't bother me if that percentage were expanded quite a bit more, but this is a good, precedent setting first start.

It Wouldn't Be The Lege Without More Enhancements
Finally, it's incumbent on this blog to point out that both the House and Senate continue to churn out criminal penalty enhancements despite the fact that our prisons will be 17,000 beds short in five years under current statutes. The Back Gate blog compares the current situation to two trains heading in opposite directions, the reform train (typified by the probation bills mentioned above) and the mass incarceration train, meaning more and more penalty enhancements. While the reform train gets most of the publicity, what's less often said is that it can be easily derailed if the enhancement train isn't slowed down or even reversed.

Here are the lowlights among the enhancements passed out of committee this week:

The Senate Criminal Justice Committee approved three enhancements I think are unnecessary or even counterproductive. The enhancement for burglary of a vehicle was approved (SB 807), while its companion bill HB 1887 was approved by the full House. This legislation appears likely to pass, despite exacerbating overcrowding problems at Texas prisons and local jails. They also approved SB 109 enhancing assault charges against school employees (discussed here) - an inexplicable move given what's going on at TYC right now. And they backed 15 year minimum sentences against meth addicts who cook their drugs near kids (SB 130, discussed here), a bill that risks significant unintended consequences that could harm children as profoundly as the forbidden conduct.

Meanwhile, on the House side, the Criminal Jurisprudence Committee continued its weekly habit of kicking out multiple penalty enhancements as though they thiink there is some cache of empty prison beds out there it's their duty to fill up. That's not true - the state already must lease abuot 2,000 beds from counites at premium prices, and that number is expected to only increase.

I don't know what this bunch is thinking, or if they're thinking at all about the big picture, but they've approved a ridiclous number of penalty increases so far - quite a few more than their Senate counterparts - and don't even appear to be vetting the bills they pass. In the floor debate over Vicki Truitt's bill on burglary of a vehicle this week, Dallas freshman Thomas Latham, an ex-cop, tried to amend his own bill language on burglary of a vehicle to Truitt's. It came out in the debate that Criminal Jurisprudence had approved his bill, too - it's waiting in Calendars to be set for the floor, he said.

That means the Criminal Jurisprudence Committee passed two contradictory pieces of legislation affecting the same code! That's awfully sloppy committee work. Maybe Paul Burka was right the committee needs the House floor leadership to doublecheck its work. Not only are they reporting some real stinkers out of committee, they're passing contradictory stinkers. Those kind of discrepancies (contradictory language changing the same code) should be worked out in committee, not on the House floor.

The other enhancements approved by Criminal Jurisprudence this week include HB 1586 creating the crime of illuminating aircraft with an intense light, HB 1767 boosting penalties for criminal mischief involving traffic signals, and HB 2719 eliminating probation for 1st degree felony injury to a child. Each of these bills has at least two things in common. They address things that are already illegal, harshly punished and vigorously prosecuted, and the Legislative Budget Board claims none of them will cost any money. So they're both unncessary and deceptively expensive.

Finally, Chairman Peña brings word that a penalty increase his committee approved earlier this year enhancing sanctions for stealing copper wiring passed the full House and is headed for the Senate. I understand the Senate is under pressure to pass some of these penalty hikes, but I'd hope that a lot of these nickel and dime penalty enhancements won't make it all the way through the process. At this point in history the Lege needs to get off the enhancment train and climb onboard the reform bandwagon. I predict those who don't will find themselves in a year or three defending their inaction with TDCJ's probems - which frankly dwarf those at TYC - when they finally begin to surface more prominently in the MSM.