What big ticket criminal-justice items might TX Lege fund with 'surplus'?

Wow, I'm surprised at the size of the spending cap increase the Texas Legislative Budget Board estimated for the 2016-17 biennium: $3.4 billion above the amount of revenue allocated in the last budget, or $1.7 billion per year. Grits had guesstimated they might have about 2/3 that amount.

Of course, they could spend all of that on transportation and still not remotely fill the need. Ditto for public schools, where that amount hardly scratches the surface of what the state will likely owe when pending litigation is complete. And naturally, the Lege could always (in theory) keep spending the same and use the extra $3.4 billion for tax cuts; there will be pressure to go that route.

But let's imagine for a moment what the state might spend money on if they used some of that "extra" cash on prominent, big-ticket criminal justice needs. What would they be? In order from largest to smallest, here are several criminal-justice items the state can in theory afford to fund in light of this blithesome budget news:

Pay for TDCJ prisoner healthcare, guard raises, programming (w/o AC): $546.6 million
The Legislature has already been told that, unless the state changes policies to incarcerate fewer people, the Texas Department of Criminal Justice will need $175 million more in the next biennium just to pay for healthcare for current levels of inmates, in part driven by the aging of the prison population as a result of long, punitive sentences. (Plus, the agency's front-line medical competence is still recovering from 2011 budget cuts.) In all, TDCJ has asked for $546.6 million in "exceptional items" including a 10 percent pay raise for guards to compete with oil field work. Of course, diverting more offenders from prison and shuttering understaffed facilities would relieve the problem, too, letting the state pay for staff raises with savings from facility closures. But TDCJ brass has suggested no such alternative. (There are a few exceptional items for probation and diversion funding in TDCJ's budget request, but overwhelmingly their request for new spending would go to running and staffing facilities.)

Two caveats to this already-large number: First, all this assumes that, while the 84th Legislature in session, the 5th Circuit or a federal district judge doesn't require the state to provide air conditioning at the state's hottest prisons; then the extra expenses get much higher, especially if the prison population doesn't decline. Second, the Lege could and likely will reduce these figures significantly by cutting either the size of raises and/or diversion programming. The latter risks higher recidivism, the former risks unplanned, forced closure of facilities because TDCJ can't find sufficient staff in rural areas. According to the Texas Tribune, "Statewide, the agency has left roughly 1,400 prison beds empty since 2012 because of staff shortages." Pick your poison.

Eliminate the Driver Responsibility surcharge: $110 to $340 million
From a standpoint of bypassing the most vocal political opposition, the shortest distance to abolishing the ignominious Driver Responsibility surcharge would be for the state to find some other way to fund Texas trauma hospitals, which have been receiving about $55 million per year or $110 million per biennium from the DRP. Otherwise, most everybody agrees the program is a failure that's making worse the problems it was intended to solve, as well as creating new ones. Complicating matters, though, the state also mulcts $85 million per year, or $170 million per biennium, from the DRP for the general fund, and uses another $30 million or so to feign balancing the budget. So really, to replace the whole pot of money would cost around $340 million; just to make the hospitals whole (letting the surplus take care of the GR cut) would run $110 million.  On the bright side, about a third of phone calls to the DPS drivers license division related to the surcharge, according to the LAR (pdf, p. 184, formally p. 3B 13 of 23), so eliminating the surcharge would free up significant internal resources to focus on serving other motorists.

Expand Texas' Great Border Security Boondoggle: $105.4 million
Otherwise, Governor-elect Greg Abbott has said he wants to double state spending at the border, but DPS has suggested even more than that. So, as insensible as your correspondent considers that ridiculous, politicized policy, let's add it to the list. In its 2016-17 Legislative Appropriations Request (LAR), DPS has $73.9 million in its Legislative Appropriations Request for its Goal Number Two, "Secure Border Region," and has requested an additional $105.4 million for the biennium, or $179.3 million total, not including the National Guard, etc.. Elsewhere in the budget, there's another $17.4 million for the biennium under "Local Border Security"  to pay for overtime for DPS troopers already stationed along the border, bringing the total to $196.7 million, if all of DPS' border-security dreams were realized (not including the National Guard deployment, grants to local law enforcement, etc..) Of that, the $105.4 million would be considered "new spending" outside the LAR, though in truth it's all part of the same, politicized gallimaufry. Make me Philosopher King, of course, and I'd cut these entire line items from the budget, saving the state $74 million instead of spending nearly three times that on already-dated political theater.

Cover 'unfunded mandates' from Fair Defense Act: $100 million
The Texas Indigent Defense Commission has requested just shy of $100 million per biennium as an "exceptional item" to reimburse counties for increased indigent defense costs since the 2001 passage of the Fair Defense Act. There are reasons to believe that number is slightly overstated (e.g., inflation and population growth account for some of the difference), but in 2013, according to the Texas Criminal Justice Coalition, "Texas counties paid approximately $189.7 million [for indigent defense] compared to the State’s $27.4 million." County spending on indigent defense more than doubled from 2001 to 2013. If the state chooses to fund indigent defense at that level, it should exercise more say in its efficient delivery via public defender systems as opposed to the sorts of screwy, outlier systems (I'm talking to you, Comal County) the TIDC has taken to funding of late. This would also give the state incentive to reduce petty offenses like possessing less than 2 ounces of pot or driving with a suspended license (second offense and beyond) as Class B misdemeanors, since the Lege won't like paying for those folks' lawyers any more than the counties do.

Confront competency restoration crisis: $55.7 million (or more)
Grits dislikes having reached this conclusion, but in the wake of court orders and persistent, problematic backlogs, Texas should expand the number of state mental hospital beds available for competency restoration and simultaneously fund local in-and-outpatient competency restoration programs at the county level, particularly for, say, the state's 20 largest counties. The Department of Health Services requested an additional $55.7 million for state hospitals to address this problem, so I've put the price tag in the headline at that amount. But in addition there needs to be new funding for handling competency restoration at the local level, at least in the larger counties, to permanently calm the waters on this topic. That might cost $15-20 million per year as a fully fleshed out, statewide program, substantially less on the front end,  Either way, if the state doesn't act soon - whether to construct extra hospital capacity, to facilitate the diversion of incompetent inmates into local, pretrial outpatient treatment, or both - then in this non-lawyer's opinion, sooner than later the courts will mandate more expensive solutions than the Legislature might prefer if it addressed the problem head-on. (N.b., these sorts of outpatient competency restoration programs should IMO also be a priority for grants from the Governor's Criminal Justice Division.)

Expand crime lab capacity: $15.7 million (at least)
Among its "exceptional items," DPS requested an extra $15.7 million for crime labs over the biennium, or a 19 percent increase over their base budget. Given current backlogs, plus extra caseloads thanks to revisiting hundreds of cases from the Jonathan Salvador debacle in Houston, not to mention the recent expansion of blood-alcohol testing (at least before Villareal), that amount probably underestimates what's needed just to remain afloat. Unless case volume somehow declines, DPS crime labs could spend that much and still be falling behind. The only other solutions are to  appropriate more money or have DPS shift to a fee for service model.

Other potential crim-just investments
With the exception of abolishing the surcharge, which is the subject of perennial legislation, these are all agency requests representing their ideas how to solve the problems facing them, not necessarily my own, personal preferences. If I were mocking up budgets, for example, I might have included an extra $100 to $150 million in TDCJ's for diversion programming and reduced probation caseloads and suggested cutting 3-4 private prison contracts. Texas' $200 million or so investment per biennium in diversion programs starting in 2007 prevented the state from having to build and operate more than a billion dollars worth of new prisons and let us close three instead. Doubling down on that investment, combined with adjusting sentence thresholds for nonviolent offenses, would let Texas close even more, saving money overall and easing managerial pressures on an array of labor and health-cost related problems. Otherwise, prison costs will continue to grow well beyond the effects of inflation and population growth.

Grits would tack on an extra $10 million or so for the biennium, for starters, for county level outpatient competency restoration in addition to the state hospital funding. (Texas may right now need extra beds - in fact, the $55.7 million number sounds low to me - but the state should plan how to not need them in the future.) Just a few million dollars in additional resources aimed at prisoner reentry could have a big impact; I'd focus in particular on people who spent a significant amount of time in solitary confinement while they were incarcerated. The state could set up a fund to pay for local department's police body cams they way they did in 2003 for dashcams in police cars (with a voter-approved bond issue). Finally, I'd bolster crime-lab funding with money for contractors to get rid of backlogs, while expanding the state's own capacity even more with an eye toward the future.

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This blog post was a thought experiment to identify big-ticket criminal-justice budget asks at the 84th Texas Legislature, but it is certainly not exhaustive. E.g., if I weren't limiting the list to criminal-justice topics, I might have included judicial pay raises. Nor should it be read as an endorsement of every expenditure listed. Grits wouldn't agree with reimbursing counties for indigent defense, for example, without statewide standards and accountability. And regular readers know I wouldn't spend another dime on Texas' border security boondoggle.

Leaving aside Grits' personal preferences (i.e., the items under the final subhed), let's focus on already existing proposals we know the Legislature will be facing. If one totals the above sums requested by big criminal-justice agencies then add in the cost of abolishing the Driver Responsibility Program, one gets to around $1.2 billion per biennium in new spending on criminal justice - more if federal courts mandate installation of air conditioning in Texas prison units.

Compared to what's needed on roads, education or healthcare, that's a small sum. But with only $3.4 billion in new funds available and enormous transportation and education costs looming, it's also unlikely a third of the extra will go toward those purposes. So what should be prioritized? And what other big-ticket items did I miss? Let me know in the comments.