Reflecting on the 83rd Texas Legislature's criminal justice record: Blow by Blow

The 83rd Texas Legislature overall had a good session on criminal-justice issues, said Rick Casey at the SA Express News, and in large part Grits would have to agree. There were also a few setbacks, however. Let's take a look at both.

Innocence: Discovery and junk science reform

Photo via the SA Express-News

Casey praised passage of the new open-file statute dubbed the "Michael Morton Act" and SB 1238 by Hinojosa expanding the jurisdiction of the Forensic Science Commission, both of which were undoubtedly big improvements. But they're not the only ones.

Prosecutors will receive more training on Brady issues, and the Lege passed SB 825 by Whitmire would disallow the state bar from issuing private reprimands to prosecutors who withhold exculpatory evidence from the defense. SB 1292 would require DNA testing of all biological evidence gathered in death penalty cases.

Another important bill headed to the Governor is SB 344 by Whitmire clarifying standards for relief for habeas corpus claims in junk science cases. This has been a long time coming and just in time, too, as more and more such cases have been reaching the Court of Criminal Appeals over the last several years. Slowly but surely the Lege is plowing through the recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions. With the passage of SB 344, they've now approved five of the six major legislative recommendations made by that group. Requiring police to record custodial interrogations is the big one yet to go.

On the flip side, the Legislature sent SB 12 by Huffman to the Governor eviscerating Rules 404 and 405 of the rules of evidence in child molestation cases, a bill Grits has opposed in years past. This was sort of an anti-innocence bill, making it easier to convict people who aren't guilty of the offense for which a grand jury indicted them. The House version couldn't get out of the Criminal Jurisprudence committee so Rep. Debbie Riddle asked for the senate bill to be assigned to her "select" committee on criminal procedure reform, which waived it on through. Given this episode, Grits worries what that house panel - which was assigned the Herculean task  of rewriting the Code of Criminal Procedure - will end up recommending headed into next session. Seems like an ill omen.

The Lege also restored money cut in 2011 from innocence clinic budgets at Texas' four public law schools. The Senate and even a conference committee working group recommended increasing that amount to $150K per year, but House Appropriations Chairman Jim Pitts vetoed it at the last moment. Legislation to allow dependents of exonerees to receive health insurance under their policies stalled out in the Calendars Committee.

Fusion Center funding restored
Not every outcome was positive. Despite earlier reports that the House budget eliminated funding for DPS' fusion center, most of the money was reinstated under the general heading of "intelligence" in the conference committee and the fusion center will continue to operate, reported the Austin Statesman. Too bad, I consider that thing redundant and nearly worthless for assisting day-to-day law enforcement functions.

CO, trooper raises of different magnitude
Correctional Officer pay at TDCJ will increase 10% over the next biennium. But every other law enforcement agency in the state got a whopping 20%, so guards are still grumbling. Since the amount taken out of their paychecks for retirement will also increase, the actual raise COs will see this fall will come in around 1%, according to the union. By contrast, for troopers "When coupled with an existing program that allows DPS troopers to earn overtime for working an extra hour a day, the cumulative increase in pay could total as much as 35 percent," reported the Austin Statesman. Grits can't immediately tell if troopers will take the same ding as COs on their retirement contributions.

Prison closures timid but welcome
Grits couldn't be more pleased that the Lege doubled down on prison closures this year instead of succumbing to the pleas of special interests to keep open facilities TDCJ doesn't need. I'd like to have seen at least one more unit closed - preferably one with chronic understaffing - but this was a good Step Two after the landmark closure of the Central Unit last session. If they'd let just a few key de-incarceration reforms though they could close quite a few more, which brings us to ...

De-incarceration bills mostly stifled
The Lege this year sent only two bills to the Governor aimed at de-incarceration: HB 1790 creating incentives (through reduced charges) for state jail probationers to succeed on community supervision, and SB 484 incentivizing new prostitution diversion programming in larger cities. Right now there are several hundred women locked up on prostitution charges so the latter is a small change but potentially significant for the women's units.

Lots of good bills that would have reduced incarceration costs died in the House Calendars Committee, which this year seemed utterly uninterested in letting members vote on criminal-justice reform bills that didn't involve Michael Morton. The Lege did pass SB 1003 authorizing a review and report on overuse of solitary confinement, perhaps presaging issues that will be taken up more seriously in the 84th session.

Probation: A missed opportunity
Probation saw a slight bump in programming funding and perhaps more importantly for probation directors, the Lege agreed to pick up their budget busting healthcare tab, which I'm told will relieve a lot of end-of-the-year budget pressure. Here's where the failure to close another prison becomes an issue: The Legislature basically used the money from prison closures to pay for CO raises. If they'd closed one more unit, they could also have afforded to significantly increase funding for successful probation programming. A missed opportunity.

Modest reentry improvements
A few notable achievements on reentry,  including a bill sent to the governor reducing civil liability for employers who hire ex-prisoners. Another by Whitmire would take employers off the online sex offender registry. Those two bills perhaps reflect the influence of the Texas Association of Business, which supported both. SB 1185 by Huffman authorizes a mental health diversion project in Harris County.

New enhancement critics on House committee
In recent years a predictable pattern had arisen in which the House Criminal Jurisprudence would pump out dozens of enhancements and then Chairman John Whitmire would stop most of them in their tracks in the Senate Criminal Justice Committee. This year the Criminal Jurisprudence Committee was much more reluctant to increase penalties, which was a welcome change of pace. The big exception was an enhancement for leaving the scene of an accident causing death, legislation pumped up by the high-profile Gabrielle Nestande case in which a jury gave probation and six months in jail to a Republican legislative staffer who left the scene of an accident after killing a pedestrian. As with the Michael Morton case, seemingly any legislation associated with that episode took on a note of inevitability this session.

So often, law is driven for good or ill by singularly compelling stories, which is why enhancements are considered "easy" bills to pass in typical sessions: Describe a bad outcome and propose new crimes or penalty increases as the solution: X is bad. Punish X more. The formula lends itself to incorporating sympathetic anecdotes in the same way that innocence bills inherently do. At least this session the Criminal Jurisprudence Committee was somewhat more immune to that dynamic, though obviously not completely.

Grits' Nominations coverage a death knell
I never planned it this way but in each of the last three sessions, this blog has directly contributed to the Senate's rejection of at least one Governor's nominee: Shanda Perkins for the parole board in 2009, John Bradley at the Forensic Science Commission in 2011, and this year, it was Annette Raggette for the Texas Board of Criminal Justice. This brief Grits blog post alerted the Senate Nominations Committee to conflicts of interest by TDCJ board nominee Annettee Raggette, the sister-in-law and former business partner of TDCJ board chair Oliver Bell, whose nomination was withdrawn within a week. Truly the Governor's office and the Senate Nominations Committee need to do a better job vetting these candidates. The Raggette imbroglio should have been spotted and stopped long before her name was posted for consideration on the Nominations Committee agenda. That it wasn't tells you no one involved in the vetting process ever Googled her name.

And something for us bill readers
One bill stands out above all as likely to make Grits' blogging tasks easier next session: HB 1271 by Martinez-Fischer which would require the Legislative Council to provide links in the online text of proposed legislation to other state laws referenced in the bill on the capitol website. I can't tell you how much easier that will make it to vet legislation when bill filing season begins for the 84th session.

That's the big stuff aside from privacy issues, which apparently some of y'all are sick of reading about. Much more good than bad, overall, though with the cooperation of the House Calendars Committee much more could have been done. See also the Texas Criminal Justice Coalition's list of successful legislation they supported this session. (Strong hint: I'd love to see the Texas Public Policy Foundation's Center for Effective Justice put out a similar list.) Let me know in the comments what other criminal justice legislation you were following that Grits failed to mention.