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.