Roundup of Key Texas Criminal Justice Legislation

With scant weeks left in the 80th Texas Legislature, several people have asked me to do a roundup of what legislation is still moving of the bills I've written about on Grits. It turned out to be a big task, and this is just a partial list, but here's a stab at it.

As always, you can check the status of any bill on the Texas capitol website. Those interested in criminal justice legislation can also check out what the prosecutors support and oppose on their website, and the Texas Criminal Justice Coalition has posted a list of bills they support.

Before I get to specific bills, though, here are a couple of general rules of thumb for those watching the process. When legislators return on Monday there will be 21 days left in the 80th session. At this late date if a bill has not had a hearing or been voted out of committee in its chamber of origin (senate bills in the senate, house bills in the house), it's already dead. That doesn't mean somebody won't amend it to another piece of legislation, but it's too late for bills to move all the way through the process.

House bills in the Calendars committee must be voted over to the Senate by the end of the coming week, with the final new calendar of House bills occurring on Thursday. Any House bill not passed out of the House by next Friday is dead, and the same is basically if not formally true of the Senate. After that each chamber will focus only on the other chamber's bills. After the 22nd of May, all that will be left will be conference committees to decide differences between House and Senate versions of bills, so a LOT of lawmaking is going to occur over the next two weeks, for good or ill.

With that said, let's run through the highlights of where we're at:

Treatment vs. Prisons
This is definitely the $64 question for the session on criminal justice. Whether Texas builds new prisons and the level of funding for treatment programs will be decided in a conference committee. Bottom line, the Senate proposed building three new prisons the House didn't want, and also supported spending much more on treatment and incarceration alternatives. I'll discuss both packages separately in an upcoming post.

Good bills likely to pass

Keep your guns in a disaster
Sen. Carona's SB 112 has been signed by the Governor and is already effective. This new law forbids government authorities from taking your firearm away during a disaster, responding to what happened after Hurricane Katrina when local authorities attempted to disarm the populace. Looters, beware!

Expanding phone access for prisoners
SB 1580 expanding phone access for prisoners, discussed here, has cleared both chambers and is headed to the Governor. The legislation is self funding, would reduce recidivism, strengthen family relations, and increase reporting of in-prison conditions and abuse.

Reduce staffing ratios, abuse at TYC facilities
SB 103 by Hinojosa (see here and here) has cleared the House Corrections Committee and is ready to be substituted for its companion, HB 2807, on next week's House calendar. Rep. Madden has a couple of floor amendments and negotiations are still underway to determine if some (probably violent, recidivist) subset of misdemeanor offenders might be placed at TYC. Otherwise, some version of this bill will almost certainly pass and head to the Governor. I'll separately analyze other TYC legislation's status at a later time - much is fluid, and the picture on that should be clearer after next week. Madden's HB 914 creating and inspector general at TYC (discussed briefly here) is also moving through the process and likely to pass in some form.

Competency Restoration
SB 867 by Duncan (discussed here) along with new funding for state hospitals (that will be decided in conference committee) are the two main legislative initiatives to address the crisis of mentally ill defendants languishing in jail without trial - often on misdemeanor charges - because the state mental health system doesn't have sufficient resources for competency restoration. The legislation was heard this week by the Criminal Jurisprudence Committee and I'd expect it to be passed out soon. I add it to the "likely to pass" category mostly because the issue is at such a grave crisis level I can't imagine the Lege doing nothing - if they unexpectedly go that route, expect litigation to force their hand in 2009.

Good bills that still have a chance

'Innocence' legislation
Sen. Ellis' three "innocence" bills, described here, have all passed the Senate and been assigned to three different House committees. One bill creates an "innocence commission," one increases state payments to people who were wrongfully incarcerated, and the third is a study bill to recommend guidelines for eyewitness lineup procedures.

Reduce Jail Overcrowding
HB 2391 by Madden (discussed here), which would allow police to issue summons instead of arrest for certain non-violent misdemeanors, unanimously passed the House and is headed to the Senate. The bill is the most important piece of legislation aimed at reducing jail overcrowding still moving at the Lege. It received no opposition in committee appears to have momentum heading into the upper chamber.

Meanwhile, on Monday's incredibly lengthy House calendar Rep. Turner's HB 2699 (discussed here) would create mechanism to pay for a jail monitor for local jails that are chronically non-compliant.

Spend asset forfeiture on drug treatment
Legislation that passed the Senate and has already received a Corrections Committee hearing, Whitmire's SB 1780, requires 10% of drug asset forfeiture income generated by counties to be used to finance drug courts. This is a two-fer: Drug courts need funding and perverse incentives surrounding asset forfeiture need reform. I'd like to see them up the percentage.

Strengthen and improve community supervision
Much of Texas important legislation on probation is still moving but hasn't finally passed, and a lot of it is waiting on backed up calendars to get off of the House floor and over to the Senate. By next week I hope most of this legislation would move into the "likely to pass" column, but it would be wrong to assume anything at this point.

SB 1909 is Texas' scaled back version of California's Prop 36 drug treatment program (see here) - with several key fixes to avoid challenges to implementation faced in the Golden State. It's scheduled for a hearing in House Corrections on Monday. Prosecutors have spread a lot of misinformation about this bill, but it also has a lot of support and a good chance of passage. SB 838, up in the same hearing, was discussed here - that bill would expand Texas' Intermediate Sanctions Facilities for petty parole violators instead of revoking them to prison for their full term. Also scheduled for that jam-packed hearing is HB 530, which is Chairman Madden's drug court bill (discussed here and here).

Perhaps the biggest probation news last week was SB 166 by West clearing the House Corrections Committee - that bill (discussed here and here) expands the use of grant funding to encourage departments to implement progressive sanctions programs. HB 312 by Turner passed the House after a healthy debate and is headed to the Senate - the bill would require prosecutors to present evidence a probationer did not fail to pay fees because of indigency. A more important probation bill HB 1678 (discussed here) which contains substantial portions of a bill Perry vetoed in 2005, has passed the House and is waiting for a Senate committee hearing.

Guns and Traveling
Rep. Carl Isett's legislation to stop prosecutors from interpreting a statute passed last session to continue to prosecute legal gun owners carrying a weapon in their person vehicle (discussed here). Earlier this spring I authored a public policy report (see here) on behalf of the Texas State Rifle Association, the Texas Criminal Justice Coalition and the ACLU of Texas criticizing prosecutors who continued to instruct police to make such arrests. The bill has been set on Monday's House floor calendar, so they should get to it even though they're way behind schedule.

Centralize and standardize traffic stop data collection
The Senate has approved HB 1448 by West (discussed here) that would centralize and standardize data collected at traffic stops under Texas' 2001 anti-racial profiling. Unlike previous years, Sen. West appears to have fixed the bill to assuage its main critics; it received no opposition in its Senate committee hearing.

Since the law's inception, the Texas Criminal Justice Coalition has collected, analyzed and published this information by gathering it under the Public Information Act (see their latest report), but does not have authority to require compliance with the law or enforce standardized data definitions and formats. This legislation would finally allow departments' data to be compared across agencies for the first time, making the data more useful to both departments and their communities.

In 2005 the bill died when a similar Senate bill was referred to then Chairman Talton's Urban Affairs Committee and he refused to give it a hearing. This year Talton will get to see the bill in committee again, but not as chair - it's been referred to the House Criminal Jurisprudence Committee where one supposes it will receive a more favorable reception.

Journalists' shield law
After failing on its initial attempt, SB 966 creating a limited journalists' shield law passed out of the Senate last week and has been scheduled for a hearing in the House Judiciary Committee. I see that Corbin Van Arsdale is the House sponsor of Carona's bill, but Criminal Jurisprudence Chairman Aaron Peña has also been pushing a shield law in the House - it's still early and this is one of the prosecutors' most hated targets, but this bill may have legs.

Needle Exchange!
I've supported this bill for years, so I have to say it's amazing to be writing in May SB 308 by Deuell (discussed here), which would allow local governments to decide whether to sponsor needle exchange programs, has passed the Senate for the first time ever and is awaiting a committee hearing in the House. If the bill makes it through committee, and I've heard rumors it may get a hearing as early as next week, I predict it will find enough support to pass on the House floor. What Governor Perry does with it is anybody's guess, but with 40% of the prison pharmacy budget going for HIV drugs, anything Texas does to reduce HIV and AIDS among that group will save a lot of money for taxpayers.

Voting Rights Notifications
Two days ago I would have put HB 770, described here, in the likely to pass category (which argues for not creating such a category at all until bills are signed by the governor!). This small bill would notify ex-offenders in writing when they become eligible to vote and give them a voter registration card. It passed the House, and the Senate Criminal Justice Committee recommended it for the "local and consent calendar," which normally would almost guarantee its passage. But Sen. Ken Brimer knocked it off - probably as an unfortunate offshoot from a larger fight over voting rights involving Voter ID (or voter suppression, depending on your politcal persuasion). The bill can still pass on a regular floor vote and has received no opposition before now, so it still has a good chance to make it to the governor's desk.

Good bills that are deader than dead

Rationalize low-level drug penalties
Ironically, these bills garnered more support when a Republican ran the Criminal Jurisprudence Committee. HB 758 and HB 759 (discussed here), both by Rep. Harold Dutton, which would restructure penalties for low-level drug posssession offenses, are still languishing in committee and are dead for the year. Groups from prison ministry activists to the Texas Public Policy Foundation to the ACLU backed the bills as a way to address prison and jail overcrowding, but the new Democrats on the committee couldn't bring themselves to join Debbie Riddle, Juan Escobar, Terri Hodge and the Chairman who voted a bill identical to HB 758 out of committee in 2005.

Bad bills likely to pass

Jessica's Law
HB 8, which is the main sex offender enhancement for pedophilia in the 80th Legislature, has gone into a conference committe - House conferees have already been named. See prior Grits coverage.

Closing DPS Misconduct Records
This bill (SB 740 , discussed here) has already gone to the Governor and deserves his veto. Public records are essential because, as the TYC scandal shows, agency boards aren't always effective at policing themselves and need help from the press and the citizenry. If these same records had been closed for employees the Texas Youth Commission, the scandals currently rocking that agency would ever have become public. Please, Governor - Ignore the police unions and veto this bad bill!

Swiping Away My Privacy
HB 320 by West, described here, would let store clerks use the magnetic strip on your driver's license to verify check cashing. For good reasons related to preventing identity theft, this authority is currently restricted to financial institutions. The Governor should veto this bill to protect consumer privacy and prevent identity theft.

Wiretapping Deregulation
Although the House improved the legislation on the floor, SB 823 (discussed here, here and here) is one third reading vote away from passing both chambers. Barring the unforeseen, some version of this bill will likely become law - it allows the six largest police departments and the Harris County Sheriff to run their own wiretapping operations instead of using DPS as they have for years. This is an unncessary bill that - barring a gubernatorial veto - I'd expect to see repealed in a few years after some scandal involving unprofessional local misuse of wiretapping equipment.

Bad bills that still have a chance

Closing search warrant affidavits
Where is Terry Keel when you need him? If the Austin attorney and former county sheriff were still chair of the House Criminal Jurisprudence committee, it would have never passed SB 244 (discussed here), which conceals search warrant affidavits from the media and public but requires they be given to the target of the search! That means the supposed crook can know the contents of the affidavit, but the public can't!! Somebody needs to jump on this bad bill with both feet and kill it on the House floor, or else the Governor should veto this nonsensical piece of public relations-driven flotsam.

Jacking up penalties
I need to write separately about enhancements or criminal penalty increases, because there are a LOT of them, a lot of them are moving, but it's still unclear which ones will make it all the way through the home stretch. Suffice it to say there's a good chance we'll see a raft of new criminal penalty increases that will diminish gains from whatever probation and parole reforms are passed, and make those other bills even more critical.

Senate bans seeing God; will House concur?
The Senate approved Senator Estes' SB 1796 banning the sale of Salvia Divinorum to minors, discussed here. This is a non-addictive, quite unpleasant substance whose hallucinogenic affects last just 5-10 minutes. It was used by indigenous people in Mexico as part of shamanic rituals. I've never tried salvia, but here's my question: What if it's true that's how to see God? Should it then be disallowed?

Bad bills that are deader than dead

Who cares? They're dead! Hurrah! :)