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 can’t 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.

Sincerely,

Scott Henson

www.GritsForBreakfast.org

shenson@austin.rr.com