#cjreform on life support: Good TX justice bills need a House floor vote

How much criminal-justice reform the Texas Legislature can muster this year will largely be decided over the next few days. Marijuana-penalty reduction should receive a House floor vote today, and a vote on eliminating the Driver Responsibility surcharge should happen this week. The Senate hasn't done much at all, tbh.

Otherwise, much of the bipartisan Texas justice-reform agenda remains bottled up in the House Calendars Committee, facing deadlines that could kill them off soon if that body doesn't act.

Basically, if a House bill hasn't been voted out of committee by now, it's dead as a door nail. If it's made it to the Calendars Committee, it still has a chance to be voted on in 2019, but only if that committee sets it on one of the next couple of calendars. After that, time will run out, with hundreds of bills that will never receive a vote stranded on what the lobby calls the "consolation calendar."

With that now-or-never context, let's run though a top-line list of #cjreform bills that the House Calendars Committee should immediately set for a floor vote.

Sandra-Bland-Bill Redux
HB 2754 (White): Limits police authority to arrest for Class C misdemeanors where the maximum allowable punishment is a fine, not jail time. This provision was pulled out of the Sandra Bland Act in the Texas Senate in 2017, in part because law enforcement claimed it rarely happened. But now - thanks to data-collection mandated under that bill, as well as an analysis of jail booking data from 11 counties by Texas Appleseed - we know that tens of thousands of people are arrested statewide for Class C misdemeanors, which make up more than one-in-ten jail bookings in large counties like Harris and Travis.

HB 2754 includes provisions allowing officers to arrest in situations involving intoxication offenses, family violence, when the defendant asks to be taken to a magistrate, or where failing to arrest would result in a continued breach of the peace. The bill enacts an idea which both the Texas Republican and Democratic Parties endorsed in their 2018 state party platforms, and enjoys strong bipartisan support.

Rationalizing misdemeanor theft enhancements
HB 1240 (Davis): Presently, a third misdemeanor theft in Texas can be "enhanced" to a state-jail felony, even if prior offenses happened decades ago and/or the third theft is only a small amount. This can cause petty shoplifting charges to end up costing the state to incarcerate people for very low-level theft. This bill adjusts the enhancement for repeat, misdemeanor property theft in two ways: It requires that all three thefts occurred within five years, and it would enhance the triggering theft by one penalty category, not all the way to a state-jail felony.

So if the third theft were a Class A ($750-$2,500), there would be no change. But if the third theft were a candy bar from the grocery store, that Class C charge would only be enhanced to a Class B, not to a felony. Not only does that give the person a felony record, state jails notoriously have higher recidivism rates than other TDCJ divisions. So we're sending these folks someplace that won't rehabilitate them.

Finally, this bill will generate budget savings. In the fiscal note, LBB couldn't estimate the exact amount, but declared that passing HB 1240 would result in "fewer demands upon the correctional resources of counties or of the State due to short terms of supervision in the community and fewer person sentenced to a term of confinement in state correctional institutions."After Texas reformed its property-theft thresholds in 2015, this category of offenders has accounted for most state-jail felony theft cases, and the second largest number of incarcerated state-jail felons (behind less-than-a-gram drug possession) of all case types.

Defining 'undue hardship' would keep people out of debtors prison cycle
HB 465 (White): This legislation updates debtors-prison reform legislation from 2017 by defining what "undue hardship" means in the context of municipal judges and Justices of the Peace waiving Class C fines or authorizing community service. After debtors-prison reform passed in 2017, the number of people whose fines were waived or who were allowed to satisfy debts through community service increased significantly. But many times more people (more than 524,000 in 2018) satisfied their Class-C debt via jail credit. At the same time, the Federal Reserve estimated last year that 40 percent of Americans can't afford a surprise $400 debt without selling something or going into debt, while 20 percent can't pay their current month's bills. The state should respond to this level of economic pressure with compassion, not incarceration.

Mitigate unintended consequences from surcharge-related license suspensions
Even if the Texas Legislature abolishes the Driver Responsibility surcharge this year, hundreds of thousands of people have already been cited for driving with license invalid (DWLI) because of them. The first offense is a Class C misdemeanor, but the second offense is a Class B. And in some jurisdictions, the cases are piling up. The Ector County Attorney, for example, estimated last year that these were the second most common type of case on his misdemeanor caseload after marijuana possession and more than intoxicated driving! Alma Allen's HB 372 would make all driver-invalid cases a Class C misdemeanor, meaning counties wouldn't have to pay to incarcerate people over it or, pay for attorneys when drivers are indigent. Counties often complain of unfunded mandates, but this bill relieves counties of mandates during a time when the Legislature may limit their revenue. That makes this bill potentially very important for local governments.

Other excellent #cjreform bills
There are too many other small #cjreform bills stuck in Calendars to highlight them all, but here are some that definitely should make it onto the list in these final days.

• HB 1653 (White) would implement a pretrial-diversion grant program that TDCJ in its appropriations request suggested would reduce prison admissions by several thousand per year. The House included money for the program in its version of the budget.
• HB 176 (Canales) would mandate that prosecutors can't require waiver of future non-disclosure/expunction of their sentence as part of a plea bargain. Grotesque to think that's even happening, really.
• HB 353 (Blanco) would codify the US Supreme Court's Carpenter decision requiring warrants for law-enforcement to access customers' cell-phone location data from their cell-phone company. 
• HB 1761 (Coleman) and HB 828 (Rose) are similar bills authorizing courts to credit defendants who are charged with a new offense after their initial arrest to have their pretrial detention apply toward sentencing in both offenses. This will have modest decarceration effects but perhaps bigger benefits in judicial economy and misdemeanor-court caseloads.
• HB 3500 (Gonzales): Grits loves, loves, loves this bill by a freshman Democrat who's been a bold voice and potential future #cjreform star on the Texas House Criminal Jurisprudence Committee. I was delighted it made it out of committee unanimously. It would require judges to appoint counsel in habeas corpus writs if they determine the applicant has a "potentially meritorious" claim. This is an interest-of-justice question: Lots of valid claims are getting thrown out by the Court of Criminal Appeals not because they have no merit but because the pro se applicant somehow screwed up their filing. (That's not a criticism, necessarily, the nine judges evalute thousands of pro se habeas corpus filings every year. So viable writs get denied, but come back again and again.) Better to appoint lawyers and competently deal with the issue up front.
• HB 2559 (Bowers): Counties perennially complain about paying to incarcerate parolees in the county jail for "blue warrants" - these are people accused of a parole violation and awaiting a hearing. The state has balked against reimbursing those costs, but this bill lets alleged violators receive a summons instead of issuing an arrest warrant, keeping them out of the county jail while they wait for the state to convene parole hearing. This bill would save counties money.
• HB 1189 (Johnson): This legislation requires courts not to assign fines and fees to juvenile defendants in the foster care system. These fines and fees are almost always paid by family, not the kids, and that puts these children in a unique situation.
• HB 2973 (Gonzalez): In cases where judges order indigent defendants to pay for appointed counsel through probation fees, this bill disallows judges from extending probation periods just to collect those costs. It also creates a mechanism for amending the order if defendants can't pay. This is needed. Another good bill from the Criminal Jurisprudence Committee's star freshman.
• HB 64 (Canales) and HB 691 (White) relate to expunction and non-disclosure, respectively, and while this isn't my area, I'm told by those who know that these are both good bills which should pass.
• HB 363 (Johnson): Against all odds, and helped greatly by the barrage of reporting from Keri Blakinger this spring on TDCJ malfeasance, this bill creating an office of independent oversight for TDCJ made it into Calendars in time to be heard before the deadline! No one knows its prospects in the Senate, but this would be a great bill to debate on the House floor. I suspect enough state reps may be sick of the stream of misconduct-at-TDCJ stories to think it may be necessary.
• HCR 33 (White): Last but not least, this resolution would formally oppose automatic driver-license suspensions in Texas for drug crimes, which is a pre-requisite for eliminating such suspensions here at the state level. (Long story short, this is something states opted into; now some of them, hopefully including Texas, are deciding it wasn't a good idea.)

So-called "bail reform  legislation" also made it into the Calendars Committee, but these are not ready for prime time and all should die.

It's not even May yet. But if there's a snowball's chance of Santa coming early, please let him come in the form of the House Calendars Committee giving these good bills a floor vote before time runs out.

And for heaven's sake, please don't waste valuable time on bail-reform bills that aren't responsive to the federal litigation and will be mooted by the federal 5th Circuit Court of Appeals before the 87th Legislature meets.