More to Do: TX decarceration reforms led to below-average reductions

Texas has received significant credit - Grits has argued perhaps more than we deserve - for enacting policies to reduce incarceration levels. But the truth is, compared to other states, our decarceration reforms have been fairly minimal and this past legislative session they essentially ceased.

Source: Sentencing Project

This new report from the Sentencing Project tells the tale: Texas incarceration rates are down 4.5% from their peak, just below the average reduction among all states (4.9%). Compare that to the states with the largest reductions in prisoner population (compared to peak levels):

• New Jersey: 35%
• New York: 29%
• Alaska: 27%
• California: 26%
• Vermont: 25%
• Connecticut: 22%
• Minnesota: 17%
• Maine: 16%
• Mississippi: 16%
• Hawaii: 15%

Texas could do much better.

In 2015, Texas took another significant step forward by adjusting property-theft thresholds for inflation, making them the highest in the country and significantly reducing the number of felony theft admissions. That change coupled with declining crime made it possible to close four additional prisons in the next TDCJ budget.

But this year, that progress halted. Legislation to reduce penalties for low-level drug possession and use the savings for treatment never made it out of committee. And with the exception of applying property-theft thresholds to forgery-by-check offenses - tacked on as an amendment to another bill by a liberty-minded senator in the final days of the session - further property-offense reforms all died in the House Calendars Committee, like so many other reform bills before them.

Texas' claims to modeling decarceration among states are now outdated. The "Texas model" - touted by our friends at Pew's Justice Reinvestment project and the Texas Public Policy Foundation as a technocratic fix to mass incarceration  - is now a full decade old and has long since been surpassed by good work in other states.

Texas was "smart on crime" for a brief, shining moment, but we haven't sustained it.

A #SandraBlandAct that omits the #SandraBland story?

Our pal Fatima Mann has an essay at Tribtalk on the Sandra Bland Act (SB 1849), coming to grips with the reality that the bill "does not speak to the case of Sandra Bland" after the Texas Senate defenestrated provisions restricting arrests for non-jailable offenses. Give it a read.

Despite the notable omission of ignoring the key issues in the Sandra Bland tragedy, the bill has some good stuff in it. Indeed, if not for the heightened expectations created by attaching Bland's name to it, it would be hailed as more significant than it seems now in the context of her terrible case. Among the bill's remaining provisions:

• Law enforcement "shall" make a "good faith effort to divert" suspects in mental health crisis or suffering from the effects of substance abuse to a treatment center.
• Authorizes "community collaboratives" to seek grant-funded opportunities to provide services to homeless people, substance abusers, and the mentally ill.
• Requires the Commission on Jail Standards to create rules on medication continuity requiring jail inmates' prescriptions to be reviewed by a qualified medical professional upon intake.
• Requires TCJS to order an independent investigation by an outside law enforcement agency whenever someone dies in a Texas jail. (Between 2005 and 2015, Texas averaged 101 jail deaths per year, with a low of 83 and a high of 126, according to the Texas Justice Initiative.)
• Orders TCJS to create a new examination for jail administrators.
• Requires law enforcement officers to receive 40 hours of de-escalation training (some of which is great and some of which is apologia - will require oversight) and jailers must receive eight hours of mental health training.
• Updates racial profiling data collection to include "warnings," whether physical force was used, and report whether contraband was discovered during roadside searches. (New data collection begins in 2018.)

One quibble: Grits would rather TCJS be given investigators to review the ~101 jail deaths per year themselves instead of appointing another law enforcement agency. Other local agencies won't typically have experience performing investigations in a correctional institution, which is a different kettle of fish from investigations in the free world. The reason they did it this way is to avoid a "fiscal note," but this may be something to revisit down the line when there's more black ink in the budget.

But in all, these are significant changes. Some of them, like the improvements to racial profiling data collection, have been sought unsuccessfully by advocates for many years. This explains why Ms. Mann adopted a glass-half-full attitude in assessing why this eponymic bill is worthy of support, even without addressing the issues which caused the death of its namesake:

Although the final version of the legislation, Senate Bill 1849, may not speak to Sandra’s death, it embodies her life of wanting to make a difference for people of African ancestry. She posted videos of herself speaking on issues people of the African diaspora faced in the United States. She recorded and posted herself speaking on the need for implementing policies that protect people in the community. Sandy used her voice to speak on the need for systemic change. ... 

The final version of this legislation embodies the spirit of Sandy’s life and the work she did to improve the community. Even though the bill does not address how she died, it does embody how she lived. She did not die because she had a mental health issue, she died because she should have never been detained for committing a non-jailable offense. 

Sandy spoke into her life that she would change the world. Her words inspired a bill that will create sustainable change.

Bad bills rising, how to tell if debtors-prison reform works, TX police misconduct roundup, and other stories

Here are a few odds and ends as the final days of the 85th Texas legislative session wind down:

Lawyers to rep Harris defendants at bail hearings
Grits is interested to learn what effect it will have when Harris County deploys public defenders to represent indigent defendants at bail hearings. It's never been done before so all the suggestions about what effect it will have remain unproven. But in theory, it should reduce pretrial detention at the Harris County Jail more than enough to cover the cost of the lawyers. Glad we're finally going to find out!

How to tell if debtors-prison reform bill works
The House concurred to Senate amendments on HB 351, a bill initially generated from a GFB blog post aimed at limiting debtors' prison practices. The amendments included a small item applying property thresholds to check forgery and another that lets probation departments use treatment beds for pretrial diversion clients.

It'll be easy to tell if the debtors prison portion of the bill works. The Texas Tribune reported that 3 million warrants were issued for fine-only Class C tickets in 2015. However, "judges rarely used community service to resolve 'fine-only' cases – just 1.3 percent of the time. In fewer than 1 percent of cases, they waived fines or reduced payments owed because the defendant couldn't afford to pay." If those numbers don't increase substantially, and the warrant numbers don't go down, then the Lege will need to come back in 2019 to beef up protections against jailing indigent drivers. But this is a start.

Bad Bills Rising
Among bad bills passing this session, there was a massive "hate crimes"/enhancement bill for assaults against police that Grits has argued will increase pressure on defendants to plea guilty to false convictions based on police misconduct. The Lege also approved a strange little bill creating a specialty court for prosecuting police officers, treating active duty cops like veterans eligible for veterans court services. Both of these are bad ideas, reduce accountability for police, and deserve to be vetoed, though neither probably will be.

Fed $$ coming to prevent opioid deaths
Texas will  receive money to combat opioid-related overdoses, despite Gov. Abbott vetoing life-saving Good-Samaritan legislation in 2015 and moving the goalposts to stymie the bill from passing in 2017. Reported the Austin Statesman:

The Texas Health and Human Services Commission on May 19 announced that Texas would receive a $27.4 million federal grant to combat opioid-use disorders. 

The increasing rate of opioid use continues to be an issue nationwide, and of the more than 33,000 opioid-related deaths in the U.S. in 2015, 1,186 were in Texas. The grant funds will be used for prevention, training, outreach, treatment and recovery support services and will directly help an estimated 14,000 people over a two-year period, according to the agency.

Texas police misconduct roundup
While I've got you, here are a few stories related to police accountability which merit Grits readers' attention:

• Eva Ruth Moravec has perhaps her best feature yet at Point of Impact documenting Texas law enforcement shootings of unarmed people, this time a black man in Carthage who was shot seven times, five times in the back, by a DPS trooper. He was one of seven unarmed black men shot by Texas law enforcement last year. Scroll down to the end of her article for extensive backup documentation from the story. 
• The mother of an unarmed man shot to death by police in Laredo says police are lying about what happened during the incident.
• A video has surfaced showing a San Antonio police officer hitting a teenage girl. See the SA Express News coverage. 
• Cell phone footage also captured a Lampasas Sheriff's deputy punching the hell out of an 18-year old suspect at a traffic stop.
• A young woman who is currently Miss Black Texas and an intern at the Hunt County DA's Office has accused the Commerce police chief of arresting her after a motorist called her a "black bitch" in a road rage incident. Initially, she thought the chief was the driver, but he was the arresting officer. Regardless, by all accounts he took her in for evading arrest because she refused to apologize to the racist who berated her and tried to walk back to her car. What an embarrassment.
• In Baytown, an officer is under investigation for soliciting nude photos from female drivers in exchange for letting them off of traffic tickets.
• In Fort Worth, two police commanders were demoted for allegedly releasing bodycam video made secret under a bad 2015 Texas law. They claim they've done nothing wrong. The CATO Institute has commentary on what the punishments say about police priorities.
• Another leaked bodycam video shows that the Balch Springs officer who shot Jordan Edwards previously tasered a handcuffed man. Police are investigation the leak, instead of investigating how such a person was retained on the force after such behavior.
• An SAPD officer was suspended 45 days for disabling his bodycam and one additional day for telling a crime victim that police officers "hate citizens."
• An Ector County Sheriff's deputy pled guilty to tipping off a game room operator about investigations and raids.
• In San Juan, a police officer was arrested for stealing three packages of cocaine from a drug bust. See the federal criminal complaint against him. His partner was arrested last month for allegedly lying to the FBI about the missing evidence. 
• See Texas Tribune coverage of new legislation punishing law enforcement agencies which don't report officer-involved shootings to the AG with a $1,000 per day fine. Criminal penalties for failing to report incidents to the Attorney General's death-in-custody database - including about 25% of police shootings over the last decade - have never been used.

Dead hostages, live hostages: Wading through the wreckage at the end of session

Grits will perform a more comprehensive roundup of what happened in the 85th Texas Legislature later, but here are a few quick updates from an eventful week:

Dead hostages, live hostages
In the battle between House and Senate leadership, each killed a hostage, and let a few others live. Among the departed: Lt. Gov. Dan Patrick never referred HB 122 which would have raised the age at which youth are charged as adults for crimes from 17-18 years old.

In apparent retaliation, the major bail reform legislation passed by the Senate and championed by Texas Supreme Court Chief Justice Nathan Hecht died in the House Calendars Committee, though clearly if House leadership had wanted to give it a floor vote, there was time for it to get one.

Other hostages, though, were allowed to live. HB 34 - a watered down version of the "innocence" recommendations from the Timothy Cole Exoneration Review Commission, passed late last night. Reading tea leaves, the hostage was apparently freed from its shackles in exchange for the House bringing the senate's debtors-prison legislation on the floor (although who really knows what politics underlie these subterranean disputes?).

Grits fails to understand how criminal-justice reform legislation became part of the political football being played between the chambers. These are all bipartisan bills with wide support, both the hostages that were killed and the ones allowed to live. But whaddya gonna do?

Kid Stuff
Another good bill passed yesterday - HB 674, eliminating out-of-school suspensions for pre-K to second graders. Research shows a strong linkage between such early suspensions and the likelihood youth will drop out of high school or commit crimes in the future. So while it looks like an education bill, to Grits it's juvenile-justice legislation.

Democrats Eric Johnson and Sylvia Garcia did a great job of building bipartisan support for HB 674 in both chambers, and Texas Appleseed's Morgan Craven did an amazing job shepherding the various bills on the topic through the process. This is a nice vindication for Appleseed's work; they have been running local campaigns to get large ISDs to adopt this policy and now it may become the law of  the land.

A responsible killing for Driver Responsibility "reform"
The Driver Responsibility surcharge was the last, big, extant criminal-justice legislation this session, but the Phillips-Miles Tariff now appears dead. HB 2068 was pulled from the senate intent calendar yesterday, after leadership refused to accept a version of the bill suggested by Sen. Miles with ameliorating amendments.  Rep. Larry Phillips had earlier blamed our friend Emily Gerrick from the Texas Fair Defense Project for the bill's struggle in the Senate, berating her in a couple of angry phone calls. (Henceforth she shall be known as, "Emily the Terrible: Killer of Bills.") Others credited blamed this blog's coverage for derailing the legislation, which had backing not just from the greedy hospital lobbyists seeking extra funds but also from ACLU and reformers at the Smart on Crime Coalition. (You can imagine how upset I was at their disapprobation. 😢)

The hospitals would have gained a bunch of extra money if this bill passed, but it would have been raised on the backs of indigent drivers. The new fines amounted to an attack on the poor and would have the unintended but entirely foreseeable consequence of initiating a debtors-prison nightmare for hundreds of thousands of people. Bottom line: The bill was a piece of junk and the Legislature can do better. They'll get another chance in 2019.

* * *

Beyond the above-mentioned legislation, four more prisons closing, and the modest but important Sandra Bland Act (that lacks key reforms which would have saved her life, but could save the lives of others), not much reform legislation passed this year. But then not much of anything passed of import, on any topic. All the important issues facing the state were put on the back burner in 2017 in favor of culture-war debates over bathrooms and nativist posing over immigration. Presumably, they'll get around to governing the state at some point in the future.

Great reporting on police shooting issues

Here's an update from Eva Ruth Moravec on the latest from her Point of Impact series reporting on Texas police shootings of unarmed people:

My latest shooting profile hit Texas newsstands and websites this past week and tells the story of the February 2016 fatal shooting of Calin Devonte Roquemore in Beckville. This story required an immense amount of reporting, and I hope that on-the-ground digging is apparent to readers. Read the story on the series' website (ed. note: scroll down for underlying documents from the case), in the Houston Chronicle, Austin American-Statesman or the San Antonio Express-News. And on Point of Impact's YouTube channel, you'll find the dashcam footage and audio of the February incident, and footage from a more peaceful interaction between Roquemore and the same officer.

At the Capitol - and now heading to Gov. Greg Abbott's desk - is Democratic Rep. Eric Johnson's HB 245, which would fine law enforcement agencies that don't properly report their shootings to the Attorney General's office as state law requires. Earlier this year, I reported that a dozen fatal shootings of and by Texas officers weren't properly reported to the state. If the data collected and disseminated by the state is incomplete, experts cannot depend on it for accurate analysis.

The proposal would impose $1,000-per-day fines on agencies whose reports are not filed within one week of receiving a warning from the AG's office. It removes the requirement for law enforcement to post their reports on their own websites and delays the deadline by 30 days that the AG's office must submit an annual report on all reported shootings. The bill actually died in the House, but was resurrected and passed at the last minute. The Senate passed it after omitting a data portal with an interactive dashboard that was estimated to cost $1.15 million through 2019. Now that it's passed both chambers, the bill now awaits Gov. Greg Abbott's signature.

Debtors prison legislation pulls off miraculous resurrection, or, How Senfronia Thompson saved Nathan Hecht's debtors-prison bill

What an amazing turnaround on Texas debtors-prison reform legislation, SB 1913, which this afternoon first failed on a 64-77 vote, then prevailed a couple of hours later on a motion to reconsider by a whopping 100-31 margin.

The turnaround was a huge parliamentary feather in the cap of House bill sponsor Senfronia Thompson, who ironically with her victory saved the signature legislation of the session proposed by Texas Supreme Court Chief Justice Nathan Hecht and the Texas Judicial Council, at least now that the bail-reform bill is dead.

Congrats to everyone involved in the furious behind the scenes effort to whip votes, and thanks to the House members who changed theirs. Special kudos to our friends at the Texas Fair Defense Project who spearheaded the vote counting and office-by-office advocacy during the tense stretch between the bill's untimely death and its miraculous resurrection.

This legislation is essentially similar to HB 351, discussed on Grits here, with a few extra bells and whistles thrown in. Given how many good reform bills have died this session, pulling this one out of the hat was a major victory.

UPDATE: This bill finally passed on a 75-70 vote. They lost 25 votes on third reading because the author accepted amendments weakening the bill and grassroots Republicans rebelled, preferring new debtors prison protections not be weakened. Judging from the floor debates and the tenor of the vote, the bill would have passed by a greater margin without the amendments.

Replacing 'Driver Responsibility' fee with Phillips-Miles Tariff replicates worst features of a flawed system

Let's crunch a few numbers regarding the proposed "repeal" legislation for the Driver Responsibility Program (DRP), which Grits earlier suggested is barely an improvement, if at all.

The bill adds $20 to every traffic ticket, creates a new $3,000 fine for DWI on top of existing penalties (which already include a fine of up to $2,000 on a first offense), and adds $750 to tickets for no insurance. Under the DRP, these costs were spread out over three years, but now they're criminal fines due upon conviction.

This additional levy is particularly counterproductive since, for most people, a no-insurance ticket amounts to a poverty crime. If the offender had $750 to pay, public safety would benefit more if she were required to buy insurance than to pay that much in a fine. But if they can't pay for insurance, how can they be expected to pay that big a fine? None of it makes sense.

As a practical matter, the no-insurance tariffs are essentially similar to the penalties under Obamacare for people who don't buy health insurance. Except Texas law provides no subsidies for low-income people to pay for insurance like the federal health care statute.

So, will people be able to pay these massive new levies, which all parties agree are being created for the purpose of revenue generation, not public safety or good government? Even bill proponents don't think so!

The fiscal note for HB 2068 estimates that the new fines will be applied to 82,000 DWI cases and 444,000 no-insurance cases in the first year of implementation. At $3,000 per DWI and $750 per no-insurance ticket, that generates a gross annual debt obligation of $825 million.

However, the Legislative Budget Board estimates that the "new fines and their proposed allocation would generate an estimated $266.2 million in revenue in the 2018-19 Biennium, which would be equally divided between Account No. 5111 and the General Revenue Fund." That's a two-year number. So taking $133.1 million in revenue per year and dividing by $825 million, the state is estimating only 16.1 percent of these fines will be paid!

To repeat, this legislation is being pushed with foreknowledge that most people (83.9 percent) hit with these fines cannot pay them and may end up with warrants issued for their arrest, their driver licenses revoked, etc.. That's more than 440,000 people per year statewide being knowingly condemned to a debtors-prison cycle by this legislation.

Even with such high levels of nonpayment,  the bill ultimately produces more money for trauma centers than the DRP, so arguably the hospitals will be even more reliant on debtors-prison funding than they are now.

That such an outcome could possibly be considered an improvement over the DRP only shows how absurdly flawed the program is now. The good part of this bill is that it eliminates past surcharges, so hundreds of thousands of people will get their licenses back and finally shake off manacles of debt which may be more than a decade old. That's the bill's big selling point - really its only selling point - and it's a tempting benefit. This writer has been calling for DRP repeal and amnesty for many sessions now.

But hundreds of thousands of Texans will rack up new debts almost immediately under what will be known at the "Phillips-Miles Tariff" (for the House and Senate authors of the bill). The situation would be ameliorated somewhat if the bill authors would allow amendments to add an indigence waiver, like the DRP had, and if the bill limited driver-license suspensions to two years, as proposed under HB 74.

Indeed, because the Phillips-Miles Tariff replicates the DRP's structure as new criminal fines, these suggestions are even more important. Otherwise this is quickly going to become a huge source of unnecessary, extra arrests, with all the associated police and jail time wasted on people we already know can't pay. (This expectation of widespread nonpayment is already worked into the fiscal note assumptions.)

With accommodation for indigence and a limit on the length of driver-license suspensions, one could probably make the case that HB 2068 is a marginal improvement over current law, though it's still a fatally flawed system. Without those fixes, Texas and Texas' hospitals are committing to a debtors-prison model as our best and only solution for funding trauma centers, and that's no solution at all.

On the pitfalls of current Driver Responsibility 'repeal' legislation

Legislation to "repeal" the so-called "Driver Responsibility Program" hardly seems like much of a repeal. The "civil" surcharges are mostly shifted into criminal penalties and $20 is added to traffic tickets, all so the amount given to hospitals can INCREASE substantially.

This is the hospitals' "solution" and it's no solution at all. It just recreates the same structural flaws - with some even worse aspects - in the criminal code instead of making it a separate civil surcharge. Politically, they and legislators pushing this approach have refused to accept ameliorating amendments and have turned the bill into an enormous money grab on the backs of indigent Texas drivers.

If Texas were in a budget year with a little black ink around the edges, the better solution would be just to pay for hospitals out of general revenue, perhaps recouping a fraction of the border security money being wasted on DPS to pay for pointless extra patrol time in the Rio Grande Valley. But during a budget crunch, legislators chose to double down on the DRP's inappropriate mulcting of funds from driving infractions to pay for trauma care. That to me makes the bill only barely tolerable, on the best of days.

Some have encouraged your correspondent not to throw the baby out with the bathwater on this, but I'm on the fence - this is an awfully ugly baby. The only real benefit is that DPS has promised (though a cynic notes it's not in the bill and they've broken promises about Amnesty before) that past surcharges will be forgiven if HB 2068 passes, meaning hundreds of thousands of Texans might get their driver licenses back. But going forward, the same problems could intensify, ramping up debtors prison practices that other bills in the Legislature this year aim to limit.

If this is to be the "solution," there are two main fixes Grits sees as necessary to make this bill even barely palatable: 1) There needs to be a mandatory indigency waiver like we got installed for the Driver Responsibility Program. Without it, we're moving backward. And 2) some version of HB 74 should be amended onto the bill limiting the length of time licenses can be suspended for nonpayment to two years. Otherwise, we just replicate the problems from the old program going forward.

Emily Gerrick of the Texas Fair Defense Project has written a summation of the main problematic aspects of this bill. Here's her assessment of what's wrong with the current legislation and how to fix it:

Cure worse than the disease? 

Unfortunately, the most likely vehicle for the repeal of the DRP is looking like its solution could be worse than the disease. HB 2068 has passed out of the house and today it passed out of the Senate Transportation Committee without amendments. Most advocates and many legislators were banking on getting a number of important amendments to the bill to make it palatable, but so far none of them have gone anywhere. 

HB 2068 would repeal the DRP simply by replacing all the surcharges with increased fines – specifically, a $3,000 fine for Driving While Intoxicated, a $750 fine for driving without insurance, and an increase in the state traffic fine of $20 (on top of existing criminal penalties). Here are the things that make those fine increases potentially worse than the DRP itself: 

Unlike the DRP, HB 2068’s fines and fees will no longer have a mandatory indigency waiver 

The DRP currently has an indigency waiver program and an incentive program for low-income Texans. People who make under 125% of the poverty guidelines are able to get all of their surcharges waived, and people who make between 125% and 300% of the guidelines can get their surcharges reduced to a more affordable amount. 

HB 2068 would replace the DRP surcharges with fines and fees, but it will no longer require full or partial waiver for low-income Texans. Without a mandatory indigency waiver, many people will end up in worse positions than they are currently in.  

People will still lose their drivers licenses for failure to pay 

The DRP isn't the only program that takes away drivers licenses for failing to pay something. The Failure to Appear/Pay program under Chapter 706 of the Transportation Code also puts a hold on your license if you fail to pay fines, barring people from getting or renewing their license until the amount is paid in full. Increasing fines will result in more people with holds under this program. And, unlike the DRP, the there is no indigency waiver for these holds.  

The $750 insurance fee and the $20 increase in the state traffic fine will add up quickly  

Low-income Texans who can’t pay their fines and fees often end up with holds on their vehicle registration. Because they cannot register their vehicles, their cars become moving targets and they get pulled over more frequently. When they get pulled over they usually get multiple tickets – one for no insurance, one for no registration, and one for no valid license. With the new $750 insurance fee and the $20 increase in the state traffic fine, debt will accumulate quickly for low-income Texans.   

These increases would not need to be so high if the trauma hospitals were willing to accept the same amount of money that they now receive under the DRP. Instead, under HB 2068 the trauma hospitals would get over $30 million more than they currently receive. 

Many people who can’t afford to pay the fines will end up in jail  

Even though it is unconstitutional, many people do end up in jail due to their inability to pay fines. Without a mandatory indigency waiver, people who cannot afford to pay the new $3,000 DWI fine may have their probation revoked for failure to pay, or they may have their probation extended until they can pay. In addition, thousands of low-income Texans go to jail every year for failure to pay traffic fines. Significantly raising the state traffic fine without a waiver will result in more people being jailed just for being poor.

The judges have argued that, if we simply allow them to waive when they see fit, things will be fine. But at present, waiver of fines is exceedingly rare and defendants never know when and how to bring up that they are indigent. Statewide, less than one percent of class C misdemeanor cases are resolved by waiver each year, and only 1.3 percent are resolved through community service. By comparison, 12.5 percent of these cases are resolved through jail credit each year. So I think it is far more likely that a person will go to jail for nonpayment of, for example, the $750 insurance fine than it is that he or she will receive a waiver.

MORE: From the SA Express-News and the Texas Observer.

A quick status update on #cjreform bills at the #txlege

Let's take a quick moment to see where are the session's significant criminal justice reform bills at the Texas Legislature after a week of important House deadlines. Few bills of any stripe have been sent to the Governor yet, but a number of good bills are still moving throughout the process and have a decent chance of passage.

For starters, both the House and Senate budgets envision closing four more TDCJ prison units, continuing a happy and fortuitous trend. Since it's not a point of conflict, one would expect this to stick in conference committee barring unforeseen shenanigans.

Bail reform (SB 1338) passed the Senate. Judges must evaluate risk assessment data on defendants before making individualized bail decisions and use the least restrictive means necessary to ensure their return to court. This news comes on the heels of a major court victory by our friends at the Texas Fair Defense Project, along with Civil Rights Corps and attorneys at Sussman-Godfrey, in which the Harris County pretrial detention/bail system for misdemeanor defendants was declared unconstitutional. So this legislation now has a lot of juice. But it's also caught up in the House-Senate feuds which have left a cloud over unrelated bills of all stripes. UPDATE: This bill died after failing to make it out of Calendars in time for the final House calendar.

There have been a few other intermediate victories. The Senate passed a version of the Sandra Bland Act without the limits on arrests for non-jailable offenses. Bland's family is upset that the new version of the bill doesn't include the reform that would have prevented her death, a concern which Grits had also raised. But there's a possibility it could be added back in on the House side, and the pieces in the rest of the bill are all good public policy reforms worthy of support. (See a press release from advocates lauding the good aspects of the bill.) There's still time to put Sandra Bland back into the Sandra Bland Act.

HB 34 enacting innocence reforms recommended by the Timothy Cole Exoneration Review Commission passed out of the House and appears to have excellent prospects. This important bill has flown under the media's radar but makes important improvements related to eyewitness identification procedures and documentation related to confidential-informant deals.

Some good legislation limiting local debtors-prison practices has passed in both chambers. SB 1913 includes an array of reform provisions we support that were recommended by the Texas Judicial Council, while HB 351 would let judges waive fines or order community service for indigent Class C misdemeanor defendants at sentencing. Right now, municipal judges and JPs must order fine regimens for indigent defendants and wait until they've defaulted and a warrant has been issued to adjust the sentence. You could think of this as the Can't Get Blood From A Stone bill, and it's a particular point of pride for your correspondent that it was first conceived in a Grits for Breakfast blog post.

Raise the Age legislation (HB 122) passed the Texas House but is hung up in the Senate, where Lt. Governor Dan Patrick has refused to refer the bill to committee. Some observers fear this may be related to the House refusing to pass his "bathroom bill," so the problems may be more about politics than policy. Go here if you want to send the Lieutenant Governor a message asking him to refer the bill. UPDATE: This dead bill was never referred to committee by the Lt. Governor.

An excellent school-discipline reform I'm excited about passed the House unanimously: HB 674, a bill backed by our friends at Texas Appleseed which would eliminate school suspensions for very young kids (pre-K to 2nd grade). While not formally a "criminal-justice" bill, the research shows such a strong link between early suspensions and future behavioral problems that this evidence-based shift really is about criminal-justice reform. It just shows that there are more ways to prevent crime than punishing every minor offense and locking up people who aren't a safety threat.

The House passed a tiny little bill our buddy Amanda Woog likes a lot, HB 245, that would punish police departments that fail to comply with mandatory state reporting when police officers shoot people or are shot. This is an important cleanup provision to the new reporting requirement the Lege passed in 2015, but it's a small thing in the scheme of things and departments ought to be doing this, anyway. We need a complete and accurate picture of police shooting data and departments who hide the ball should be penalized.

On the flip side: A bunch of excellent legislation died in the Calendars Committee, either never being set for a floor vote or being set so late that the House never reached them (the so-called "consolation calendar" on the final day the House could vote on House bills was 27 pages long).

HB 81 creating a civil penalty for low-level marijuana possession was set for a floor vote but the House didn't reach it. Ditto for HB 574 eliminating arrests for non-jailable offenses (though that bill would look especially nice amended onto the Sandra Bland Act when it reaches the House floor. :)

None of the major decarceration or asset-forfeiture-reform bills made it through the sausage grinder before the House deadlines hit. Prosecutors appear to have successfully quashed grand jury reform. Bipartisan police reform bills which seemed promising at the beginning of the year went nowhere. We need to develop better long-term strategies on these issues.

But nothing's truly dead at the Legislature until the session ends and the members leave town, which happens on the last day of May. So there are still possibilities for living bills to die and for dead bills to be resurrected. We'll revisit all this again in a few weeks.

The police accountability bill that might still become law

A short-term defeat: Wednesday's record vote

As the Austin American-Statesman and others have noted, the slew of police accountability bills originally thought to have a chance have largely stalled in the sausage-making that is the Texas legislative process.

The House is on track to eek out one bill, though, which seeks to enforce a law already on the books. Thursday morning - 14 hours after HB 245 lost by one vote - lawmakers preliminarily passed the bill, which now faces a "third reading" vote on Friday.

The proposal would give notice to law enforcement agencies that fail to file the one-page reports with Attorney General Ken Paxton’s office within 30 days of a shooting, and fine them $1,000 per day if the reports aren’t filed within seven days of getting notice. The bill’s author, Rep. Eric Johnson, D-Dallas, said he believes he has the votes to pass it.

“I’m proud that my House colleagues have once again shown their commitment to this important issue,” Johnson said.

Late Wednesday, the legislation was voted down by a lethargic, chaotic body on the heels of a lengthy and tedious discussion about trucking regulations. Johnson said when it came time for his bill, lawmakers “didn’t know what the bill did or that it was agreed upon, and it just got caught up in the wash.”

Some may still oppose the bill because it fines departments – penalties owed to the Crime Victim’s Compensation Fund increase to $10,000 the day after receiving notice a second time in five years and $1,000 each day following. But Johnson was hopeful, since law enforcement and those who scrutinize law enforcement’s behavior are in favor of the legislation.

Texas Municipal Police Association Executive Director Kevin Lawrence said they were “absolutely supportive. Everybody should be required to play by the rules.”

The required reports collect demographic information about the people involved in the shooting; factual information like the address, date and time, severity of the shooting, and whether the person was armed; and a description of the original call.

An analysis of the reports has shown that in the 20 months from Sept. 2015 to May 2017, 302 individuals were shot – 141 fatally and 161 causing injuries – by Texas law enforcement. Fifty-three people who were shot were unarmed. Meanwhile, 50 law enforcement officers were shot while on-duty, 10 fatally and 40 causing injuries, based on the reports.

But the database is incomplete, as the series, Point of Impact, revealed earlier this year, and violators currently do not face punishments. 

In February, I reported that 12 fatal shootings of both officers and civilians were improperly reported. The Attorney General’s office confirmed that all 12 reports should have been filed, and they were within weeks, albeit too late to be included in the annual reports released in 2016 and 2017.

In committee, one person – San Antonio police Sgt. James Johnson – signed up in opposition but did not speak. Nor did he comment for a story.

Kevin Buckler, an associate professor of criminal justice at the University of Houston, was one of two people who testified in support of the bill at the March 14 hearing. Noting that the 2015 requirement was applauded for its push for transparency in police shootings, he called Johnson’s bill “simply the next step in progression to transparency reform.”

RELATED: From the Texas Tribune.

UPDATE: This bill passed on to the senate with a third-reading record vote of 112-21. See here for the vote tally.

Pick different target than bail reform for House-Senate retaliation

Democrat-on-Democrat political sniping is threatening important reform bills, most notably bail reform.

The Houston Chronicle is still pleading with Senate Criminal Justice Committee John Whitmire to pass Raise-the-Age (RTA) legislation, but that ship has probably sailed in the form of the senate's two-year study bill. Meanwhile, RTA author Rep. Harold Dutton has threatened to retaliate by killing Whitmire bills in the House, including Democratic threats to the senate's bipartisan bail-reform bill, SB 1338.

Dutton reasonably asked, "Why do we need [those bills] more than we need raise the age?" OTOH, Grits could make the argument that Texas needs police reform more than either HB 122 or SB 1338, but those bills are all dead. So it's not about what's most important at this stage in the legislative process, only what's possible.

Most any other senate bill Chairman Dutton wanted to make an example of would be fine by me. But Grits would consider it irresponsible act to retaliate for the death of important criminal-justice reform legislation by killing other important criminal-justice reform legislation that could keep tens of thousands of low-risk, working class defendants from being held in jail, with all the collateral consequences that can result from that. There's a ton of crossover between supporters of the RTA bill and bail reform, and real public safety implications for failing to evaluate risk in pretrial detention decisions. There has to be a better means to retaliate than that!

Police accountability bills bottled up by House leadership, and other stories

Here are a few odds and ends that merit Grits readers attention while mine is focused elsewhere:

Tragic shooting colors legislative debates
A Balch Springs cop who shot a fleeing 15-year old with a rifle has been fired from his job and faces murder charges. See the Dallas Morning News coverage. This news spurred the black caucus in the Texas Legislature to issue a stern complaint that none of the important police accountability legislation proposed this session has received a vote on the House floor. Their frustration surely contributed in part to the death of HB 2050, which expanded secrecy provisions related to police misconduct cases.

Sandra Bland Act gutted in senate
The Senate Criminal Justice Committee this week passed out a radically stripped down version of the Sandra Bland Act, but quite frankly it's hard to get too excited about the minimalist items left in the bill. Wrote the Texas Tribune's Jonathan Silver:

Whitmire's version most notably removes language that would ban arresting people for offenses that generally only have fines as a punishment. Earlier versions of the bill also tried to make it easier for nonviolent people in jail to receive personal bonds. Whitmire said fine-only offenses would be addressed in a separate bill, as the Sandra Bland Act is "primarily a mental health, accountability" bill.

The problem with that bit of reportage is that the "separate bill" was SB 271, which had earlier that day appeared on the same agenda with the Sandra Bland Act. But Chairman Whitmire pulled that bill off the agenda hours before the hearing, much to the consternation of the bill author and supporters who believed they had sufficient bipartisan support to pass it out of committee. So Whitmire was pledging to address a problem in a bill which he had already killed just hours before. SB 271's companion, HB 574, is in the Calendars Committee and has yet to be posted for a floor vote. Unless leadership adds the bill to a Major State calendar, it's probably too late for it to be heard.

Remembering (the real) Sandra Bland
Meanwhile, as Grits has pointed out before, it's a bit anomalous to pass a "mental health accountability" bill in response to the Sandra Bland story because she was not, in fact, mentally ill.

Pensions and bill killing
Governing magazine has a nice feature on Houston billionaire John Arnold's efforts to reform public-employee pension plans. Meanwhile, the House debate over Houston pensions ramps up Monday, and every minute it goes on, legislation on the other side of that bill on the calendar dies. The lower chamber, which yesterday ended their workday at 3 p.m., has mapped out a leisurely, care-free stroll toward the Thursday deadline for the House to consider House Bills, not the frenzied pace of work one would expect as hundreds of bills approach a very final deadline. At this point, the House doesn't seem to have much appetite for passing any more legislation and everybody just seems to want it to be over.

Who can settle Harris County bail litigation?
A newly elected Democratic District Judge in Houston has asked the commissioners court whether he can settle with plaintiffs in civil rights litigation against the county's money-based bail system. The commissioners courrt replied that they don't control whether or not he settles, but his lawyer was appointed from the county attorney's office and told the judge she could not settle without permission from higher ups. It's an interesting question: If individual judges start to settle, how long can the county's oppositional approach remain viable?

Of trees, ropes, race, judges and capital punishment
A decidedly un-woke judge faces retraining for lynching suggestion.

Coda to Willingham saga: Did prosecutor commit misconduct?
Jordan Smith at the Intercept has a story from a trial in Corsicana to determine whether the prosecutor in the Todd Willingham case engaged in misconduct when he concealed a deal with a jailhouse snitch who testified against the defendant.

Bill to close police misconduct records deserves an undignified death

UPDATE: There was a substantive floor debate on this bill led by members of the black caucus and it was delayed until Saturday at 1 p.m., when an amendment scaling it back radically is expected to be proposed. NUTHER UPDATE: This bill is dead. The author postponed the bill until session is over, offering a comment that this was a bigger piece of legislation than he'd originally understood. Good for Senfronia Thompson and Co. for opposing the bill, and kudos to Greg Bonnen for pulling it down once he realized its true scope and purpose.

Original post:
Grits is unsure how HB 2050 (G. Bonnen) passed through committee without making it onto reformers' radar screens, but it's on the House calendar today and is generally a terrible idea. Basically, it says that when records of police misconduct are shared with the Texas Commission on Law Enforcement - the state peace officer licensing agency - that they become closed records in the files of the agency that submitted them.

This is an unremittingly awful idea that should have been vetted in committee - nobody opposed it there and it sailed through on a unanimous vote. But perhaps that's because, to understand why this bill is a bad idea, one must understand the structure of Texas open records law as it relates to police misconduct.

Two different statutes govern Texas police misconduct records. In more than 2,500 law enforcement agencies, most records in an officer's disciplinary file are public. In about 70 departments which have adopted the state civil service code, however, those records are secret under Ch. 143.089(g) of the Local Government Code.

Most of those jurisdictions opted into the civil service code in the 1940s and '50s, but the misconduct records were made secret by the Legislature in 1989. In other words, voters, in nearly all cases, did not elect to close those records - the Legislature closed them at the behest of the police unions after the fact.

So for the 70 or so civil service cities, these records are already secret. But for all but one county sheriff and the overwhelming number of other law enforcement agencies in Texas of all stripes, the statute would close records about police misconduct that are presently open and have been for almost 50 years.

In related news, the black legislative caucus held a press conference yesterday to complain that none of the important police accountability bills filed this session have moved. The Statesman's coverage opened:

Revealing a race-related schism at the Legislature on police reform, members of the Texas Legislative Black Caucus on Thursday called for legislative action in the wake of the police killing of Jordan Edwards in North Texas. 

Jordan, an unarmed, 15-year-old, African-American, was killed Saturday by a white Balch Springs police officer as Jordan was riding in a vehicle leaving a party. 

“There’s not a person here who thinks this would have happened in an Anglo community,” said Sen. Royce West, D-Dallas. “I’m not playing the race card; I’m playing the reality card.” 

Among the measures proposed by the African-American lawmakers that they say have largely been ignored by Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Joe Straus, R-San Antonio, none of which have made it to the floor of the Senate or House for a vote are: 

• The appointment of a special prosecutor for officer-involved shootings.  

• Changing the standards for which the use of lethal force is acceptable.  

• Reforming the way police arrest and send people to county jails, as part of a suite of changes inspired by the arrest of Sandra Bland, the African-American woman who was found hanged in a Waller County Jail cell three days after a routine traffic stop escalated into a confrontation with a Department of Public Safety trooper and led to her arrest.

So the House doesn't want to pass bills to hold officers accountable but may pass a bill today to shield their misconduct from the taxpayers who pay officers' salaries. What else could you read into this legislative fact pattern?

Radio spots promote marijuana reform

Check out Dallas Morning News coverage of radio spots being run by Just Liberty on conservative talk radio around the state to support civil penalties for low-level marijuana possession. The spots are based on this original tune, written by your correspondent and illustrated by the wonderful and talented Sukyi McMahon, supporting HB 81 (Moody):

Prison closures = Good (regardless of immigration policy)

Both the Texas House and Senate budget plans would close four additional prison units. Remarkably, the idea is hardly controversial, anymore. The only negging Grits has seen on the units' deletion from the budget comes from liberals fearful that they may be transformed into immigration detention facilities.

To be clear, these are separate questions and conflating them risks allowing the perfect to become the enemy of the good. Texas should continue down the path of decarceration and prison closures - these will bring the total to eight closed units in the past few years - and battles over federal immigration policy mustn't be allowed to interfere with that project.

There will be a LOT of competition for immigration detention beds. It's possible shuttered TDCJ units could end up doing federal immigrant detention, but many other empty jail facilities owned by counties will be competing for those beds, too. They can't all get contracts.