Wednesday, July 22, 2009

Proposed DPS rule would create new Indigence program for 'Driver Responsibility' surcharge

As I mentioned last week, the missus and I have been working on a little side project to propose changes to agency rules to the Public Safety Commission to establish an indigence program for Texas' Driver Responsibility surcharge. Today I sent out this letter to friends and allies among criminal justice reformers who may have an interest in supporting this proposal. Here's the text of that letter (edited slightly for context and to add hyperlinks). Anyone else interested in supporting this proposal can shoot me an email or leave a comment below.

Dear friends and compadres,

This quick note is a request for your support for a petition for rulemaking (see the petition) which will be filed with the Department of Public Safety next week to modify the rules that govern the so-called "Driver Responsibility Surcharge."

This surcharge is a civil penalty (that must be paid in three consecutive years) tacked on by the Legislature in 2003 in addition to criminal fines for certain traffic violations - most notably DWI, no-insurance, driving with a suspended license, and a lesser surcharge for drivers who accumulate a record of moving violations over time. (See more detail here.) The program has expanded until today the surcharge is owed by 6% of all Texas drivers, nearly 2/3 of whom cannot pay. The Legislature authorized an "indigency" program which DPS must implement by Sept. 1, 2011, but this proposal requests that DPS implement those changes immediately as well as create "amnesty" and "incentive" programs which were authorized in 2007 by SB 1723.

In particular, I'm looking for organizations and/or prominent individuals willing to endorse the proposed changes, as well as for folks in Austin who're interested in physically signing the petition for rulemaking. If after reading the draft amendments to the Texas Administrative Code proposed in this petition, anybody has significant suggestions or comments about the proposed rules (much of which tracks language in the recent DPS Sunset bill, but some of which is new), I'd certainly be happy to entertain them. I've little doubt these proposals may change, perhaps significantly, as they traverse through the rulemaking process - this petition merely aims to get the ball rolling.

If this issue doesn't interest you or seems outside your bailiwick, stop reading here and I apologize for wasting your time. For those who are interested, please indulge me just a moment to describe the Driver Responsibility Surcharge and the reasons for supporting these particular rule changes at this time to the Public Safety Commission. See also recent coverage from Grits for Breakfast. There's also a version of the draft rules posted online here.

Texas has assessed more than $1.5 billion in surcharges since 2003 but only successfully collected just over $400 million of that amount. The vendor takes 4% off the top. After that, by law 49.5% of net revenue from surcharges goes to Texas’ trauma center hospitals, 49.5% goes to state General Revenue, and DPS keeps 1% as an administration fee. While the number of Texas drivers getting these surcharges is high (about 6% of all drivers, at this point), collections rates are strikingly low (36% overall, according to the collections vendor).

The main problem in practice is that indigent people or low-income people just can’t afford all this money in addition to already steep fines and mandatory insurance coverage. People who don’t pay their surcharge lose their drivers license, inevitably continue to drive, and thus rack up more surcharges in addition to their traffic fines. An ultra-punitive approach set out in DPS rules for these surcharges exacerbates the problem with short payment periods and limited paths to get back on track. The Legislature gave DPS authority to fix the program in 2007 with the passage of SB 1723, which authorized but did not mandate "indigency," "amnesty," and "incentive" programs.

Slow to move on these ideas, the Public Safety Commission authorized but never implemented a very limited incentive program in the fall of 2008, just as lawmakers were returning for the new session. While claiming to be an amnesty and indigency rule, it is really just a minimalist "incentive" plan and does little to fix the underlying problems that result in high nonpayment rates.

So this 81st legislative session, lawmakers got serious (Sylvester Turner authored the relevant amendments) and did something very positive for low income people Texas drivers generally—IF the Department of Public Safety implements it properly, and soon. The Legislature mandated that DPS create an “Indigency” program and changed the minimum payment requirements to give people more time to pay. The new law (H.B. 2730) mandates the creation of the indigency program by September 1, 2009 [Sec. 6.10 of the bill] and mandates certain standards for the program by 2011 [Sections 15.01-15.08 of the bill].

At first, DPS' General Counsel said they needn't implement any indigency program for another two years, but most other observers including the District and County Attorneys Association interpret the Sunset bill's language in Section 6.10 to require some sort of indigency program go into effect at the beginning of the next fiscal year. By submitting this petition with 25 signatures, under state law the PSC is required to at least has to give the issue a hearing.

I realize it's a little unusual for a blogger to take the lead proposing changes to state agency rules - perhaps stretching the term "advocacy journalism" a tad further than its more typical and familiar usage. But I've been following these legislative changes closely and writing about the issue for years, so my better half Kathy Mitchell and I decided to develop this proposal ourselves and bring it forward independently, making the case for more consumer-friendly provisions in the rules directly to the Public Safety Commision.

To their credit, the PSC was genuinely receptive when I spoke to them on this topic last Thursday and the chair established a subcommittee of the board to work on the topic. Submitting this petition will require them to at least give the idea a hearing and let advocates make the case that the surcharge needs to be scaled back substantially.

Other things you can do to help even if you cant physically sign the petition:
  • Allow me to list you as an endorsing organization or individual, even if you do not formally sign the petition letter.
  • Write individual or organizational letters of support to the Public Safety Commission before the public hearing.
  • Comment on the rules when they are published in the Texas Register. I will notify everyone when rules are published for public comment.
  • Use any email alerts, listservs or other means at your disposal to encourage your group's members to respectively, constructively voice their support to the PSC.
  • Attend the public hearing and testify: I believe we will easily get the 25 signatures required for a public hearing. At that time (probably in September), I would love for you to come support the rules changes at the PSC.
  • Help me identify other groups or individuals who might support this proposal and convince them to voice their support. I'm looking for support from across the political spectrum: to my mind this should be a nonpartisan issue.
  • Contact the Governor in support of the proposal after the public hearing.
  • Keep me in the loop about any communications by your group, etc., so I can promote this brief campaign on Grits for Breakfast and give credit to everyone who's supporting it.
I will send a final version of the attached letter to the Director of the Department of Public Safety along with the requisite 25 signatures early next week. That will launch formally a process that is likely to take at least 60 days and result in a public hearing over the proposal.

Thanks in advance for any support you can provide for what I hope will be a brief and productive mini-campaign over the next couple of months.

Scott Henson


Anonymous said...

Looks great! Call my office tommorow and we will include a letter from rep. Turner that we discussed! Keep on keepin on...

Soronel Haetir said...

40% collection rate sounds pretty good. As for people driving without a license, impound and auction vehicles whenever someone is caught driving without or on a suspended license or without insurance. It need not be an inevitable problem.

People will learn very quickly not to lend their cars to friends.

Anonymous said...


Your suggestion is about as brilliant as the DRS bill itself. Let's make it just as hard as we can for people to maintain employment and then get pissed off because so many are unemployed.

Maybe you should run for the legislature. You would fit right in there!

Gritsforbreakfast said...

11:59 - If I had my way the Lege would abolish this program. Until they do, these rules scale back DRP payments and expand options for payment plans, they don't "make it just as hard as we can for people to maintain employment," at least not harder than is currently the case.

Soronel, you think a 60%+ non-collection rate is good? Nearly 2/3 don't pay, the rest get their driver license revoked, and you think that's a viable program? Really?

Gritsforbreakfast said...

11:59, I just realized you were talking to Soronel, not me - I was confused by the initials. :)

Anonymous said...

The DRP was and is an ill-concieved idea that throws people into financial quicksand that is very difficult to escape.

Touted as a money maker for the state, it hasn't produced as predicted and in fact has shifted a financial burden onto local government. Many of those folks charged with driving with license invalid (the violation one faces when caught driving and not having paid the surcharge) end up sentenced to days in county jail, a cost assumed by local government.

This thing needs to go away, the sooner the better. Assessing punishment that offenders can not or will not successfully complete and that exposes them to further penetration into the criminal justice system is just bad policy.

Anonymous said...

If you sign this thing you are selling yourself short. This is illegal, unconstitutional, unjust, and plain immoral. Anything short of abolishing this and returning all money plus interest is unaceptable. And maybe a fine should be imposed on the people responsible for this.

Anonymous said...

This is just an attempt to squeeze blood out of a turnip.

Soronel Haetir said...


In reference to my comment that 40% sounds pretty good, what are the payment rates for other restitution orders? I suspect most of those go almost entirely unpaid.

So again, I will say that getting 40% of this money out of people who have violated the law is pretty good. And it could be higher if the state were willing to use harsher tools.

Anonymous said...

As someone who currently will have to pay these fines which is exactly what they are, I find it unconstitutional that I am being fined by TWO Texas State departments. 1 local and 1 state. I carry my burden and while the burden should be on the individual it is more of a burden to those of us with low incomes and relying on friends and family if we live in places such as Williamson county with no Public transit and Suburbia sprawling everywhere I can't even ride my bicycle anymore to get where I need to go. I've been coerced into a Religious program (AA) and have been told by my probation officer that maybe I should rely on my friends in AA for rides as well as family. Since certain parties have taken power over the past 10yrs, they have taken rights away from citizens and imposed even more fines which don't work as a deterent. If they even halved that I would be able to afford another vehicle, pay my fines on time, pay my bills. Its seems local goverments have found a way to create Technical violations to control those of us on probation. They have even outsourced their duties for people with DWI convictions using video telephony devices and if you miss one call its a technical violation even if you have problems with their device they force you to pay for. If I made more than 30k a year I could probably manage to get by but I can't. Please Help US!

Anonymous said...

I am currently paying someone elses surcharges to help a friend. This law is designed to take money away from the person and everyone they know. I say vote out of office anybody that supports this law. It's the only way!

doran said...

Scott, I'll be in Travis County Probate Court on Tuesday morning (7/28). I can come by your office and sign the Petition if it will not be too late to do so and if you want or need my signature. Let me know.

Anonymous said...

Great work Scott. Please list the The Texas Criminal Justice Coalition as a supporting organization.
ANA :)

Anonymous said...

I guess I'm old school but I remember a time when insurance companies did not run this country. None was required and if you wanted it you bought it. I did not have a problem with it then and I think it should be like that. Its nothing but greed that has put this country in the situation it is now in. The Constitution gave us the people certain rights. As for SH, must be a cop.

Anonymous said...

SH is either a cop or he is associated in some way with the collection agency, MSB.

R. Shackleford said...

I'll sign it, for sure.

juarez said...

If only they went by income made! $200/month i could do, not $600! Dont you think something is better than nothing?! They wont recieve a f***** dime from me because of their own rules!

Tamara said...

Thank you very much for the update. Despite the unproductive House during the last legislative session, I am still fighting for a repeal. It looks like a class action suit is the next step.

Anonymous said...

I respect this blog more than the CJS itself. This surcharge is nothing more than an attempt by very unintelligent legislators that have no concept of the Law of Economics. The proposed change just makes economic sense. Unfortunately, few of our legislators and DPS officers have any common sense what so ever. I served in the military which I have a high respect for. As for TX laws etc. you alll are a complete joke. Go back to school. Better yet, in time you will be on the wrong side of the fence and then your opinions will change.