Tuesday, October 21, 2008

Attorney General should stop DPS' end-run around the Lege on roadblocks

The fight over using traffic roadblocks without probable cause to check for drunk drivers has become a biennial affair at the Texas Legislature, and interest groups were already sharpening their knives over the coming roadblock fight in 2009. But the Department of Public Safety has asked Texas Attorney General Greg Abbott's permission to circumvent the Legislature's will on roadblocks and allow the procedure on the agency's own authority, we learn from TheNewspaper.com:
Interest groups are pressuring Texas lawmakers to authorize the use of roadblocks ahead of their return for the 2009 legislative session. The practice of setting up barricades on roads to stop and interrogate motorists suspected of no wrongdoing has been unlawful since a 1994 state appeals court decision ruled that a "politically accountable governing body at the state level" must first approve their use. Now Texas Attorney General Greg Abbott has scheduled an October 23 deadline for briefs to decide the Texas Public Safety Commission's request to bypass this requirement and approve roadblocks on its own authority.
Here's the letter from Public Safety Commission Chairman Allan Polunsky (pdf) seeking authority to set up roadblocks to check driver's license and insurance information. DPS wants to know not only whether they can authorize a "driver license checkpoint program" but also whether they can "authorize other state and local law enforcement agencies" to do roadblocks!

Their claim to this new-found authority, DPS attorneys believe, hinges on whether the Public Safety Commission is considered a "politically accountable governing body at the state level." If that's the standard, this should be a no-brainer and barring some agenda-driven, activist reading, the AG should reject DPS' interpretation.

By "politically accountable," the courts clearly meant accountable to the people through democratic elections. Essentially Polunsky wants to claim for DPS authority that rightfully belongs to the Legislature, specifically so he can override their longstanding rejection of a controversial tactic. That takes a lot of chutzpah - it's the kind of thing Polunsky may pay for later behind the scenes next year in the budget process or elsewhere. Legislators don't generally like bureaucrats making a power grab for their turf.

A reader who alerted me to this outrage also forwarded a letter to AG Greg Abbott from Sputnik, the legendary chair of the Texas Motorcycle Rights Association:
Honorable Greg Abbott
Texas Attorney General

Dear Sir:

It has been brought to my attention that you have set Oct. 23rd as the Deadline to hear remarks about allowing the Department of Public Safety to bypass the legislature and establish a road block rule in Texas.

As you are aware this Bill has been introduced in the Texas Legislature As a deterrent for the DWI problem during three separate sessions and has not garnered sufficient support to be passed into law.

Simply changing the title to a Drivers License and Insurance check does not override the legislative intent that roadblocks should not be allowed in Texas.The Bill will be introduced again in the coming session by Senator Zaffirrini and will once again be defeated. I hope you will accept the will of the legislature on this basic constitutional issue.

State Chair
Texas Motorcycle Rights Association
The deadline for submitting comments about Polunsky's proposal is this Thursday, Oct. 23 (see the AG's Opinions page for more details) and I'd encourage all Grits readers interested in this topic to submit a brief or just tell Abbott your opinion.

The AG should reject this end-run around legislative authority. They'll meet in just a few months and there will be plenty of time then to fight over this topic.


W W Woodward said...

Drivers License and Insurance verification roadblocks, if implemented, will turn out to be nothing more than "fishing expeditions".

"I'll need to see your drivers license and insurance papers. Please step out of your car. Where are you going this time of night? Do you mind if I search your car, or do I have to call for a drug sniffing dog to come out here? Have you had anything to drink tonight? I'm going to ask you to submit to a field sobriety test. if you pass, you may go right on down the road. If you refuse I can suspend your drivers license…."

In no way is the Public Safety Commission a "politically accountable governing body at the state level”. These commissioners are appointed by the governor and most meet on a quarterly basis while the commission staff runs the commission on a day-to-day basis without much if any supervision, guidance, or follow-up from the members of the commission.

It follows that most state commissions, not just the Public Safety Commission, are run by the commission staffs in Austin and those bureaucrats don’t feel accountable to anybody, politically or otherwise; certainly not to the people of the state of Texas. In some instances, if the Austin staff disagrees with decisions made by the actual appointed members of the commission, the staff will ignore the decisions and dream up excuses as to why the wishes of the commission weren’t carried out as directed.

Some Examples:

Several years ago, when the basic jail course hours were increased from 40 hours to 80 hours, the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) directed the Austin staff to develop and implement an 80 hour basic jail correspondence course to replace the existing 40 hour course for rural jailers. The staff in Austin dragged their feet for a little over two years before they finally developed a correspondence course that is in actuality impossible for anyone to complete as a true correspondence course. By the time the faux course was developed the commissioners had either forgotten about their decision, been replaced by other appointments, or just gave up trying to get the Austin staff to comply.

Just a couple of years ago the Legislature had to force TCLEOSE by an appropriations bill rider to refrain from calling themselves the Commission on Law Enforcement.

The Jail Commission, in its quarterly meetings, votes to propose rules for county jails. By law, in order for these rules to go into effect and become requirements for county jails, proposed rules and adopted rules must be posted in the Texas Register. The rules the commission proposes never show up in the Register and therefore are never implemented. The Jail Commission’s Austin staff, when questioned about why the rules don’t show up in the Register, generally attempt to place blame for the ?oversight? onto the folks over at the Texas Register.

I’ve actually had the bureaucrats in Austin when I’ve called to clarify a commission rules tell me, “That rule doesn’t really mean what it says.”

I’ve done it again – Diarrhea of the key board.

Don Dickson said...

Without reaching the merits of the controversy, allow me to correct you in two particulars, w.w.w.

First, the Public Safety Commission meets at least monthly, typically on the third Thursday of the month.

Second, while it may have been true from 1935 to 2007 that DPS administrators acted with little oversight by the Commission, that has certainly not been the case under Chairman Polunsky. My impression as an "informed outsider" is that Department staff are under very intense supervision by the current members of the PSC. Indeed, at their last meeting, the PSC voted to restrict the Department's contracting authority by requiring PSC approval of all contracts and change orders exceeding $500K, which is not a lot of money for an agency with the depth, breadth and scope of the DPS.

Anonymous said...

All DPS wants their Troopers to do is get their ducks, and make their ticket quota.
It only stands to reason that a "checkpoint" roadblock has the sole purpose of getting lots more of those easy ducks.
Whenever there is a statewide manhunt for a cop killer fugitive, they NEVER use roadblocks (like you see in the movies). If this is not used for dangerous felons, then why is it justified for honest citizens with their misdemeanors.
Not a fishing expedition....
just shooting fish in the barrel.

Anonymous said...

Sad that any citizen would give consent for a search of their vehicle after being stopped for a traffic violation. I'm amazed at how many peopleo adhere to the philosophy that "if you ain't doin' nothin' wrong, you ain't got nothin' to hide,"... wake up and smell the coffee.

If I have nothing to hide, then you damned well have no reason to search my vehicle. Get a warrant. I'll wait.

Anonymous said...

I doubt the AG will stop this from happening. He allowed them to collect and publicly release information on the sex offender registry without a law, he will certainly allow it in this case. If he comes out looking clean, it will be his tough on crime stance, if it flops, it will be that DPS acted outside their mandate...

Time to replace the AG if you ask me.