Thursday, June 03, 2021

New TX homeless ban creates unfunded mandates for cities: Costs downplayed during #txlege process but cities must foot bill to store homeless belongings and can't limit arrests to ↓ costs

A Joint Memo From the Unintended Consequences and Unfunded Mandates Departments:

Now that the Texas Legislature has passed HB 1925 criminalizing homelessness (or more specifically, criminalizing cooking or sleeping under a blanket outside), cities must figure out how to implement the new law, which restricts their ability to limit arrests through policy.

Here's the catch: The statute requires police who arrest homeless people under this statute to take custody of their belongings and store them without a fee while they're in jail. Here's the relevant provision:

It's unclear if they must store people's stuff when arresting for unpaid warrants based on Class C tickets under HB 1925. If not, it would defeat the purpose of the provision: It's inevitable most folks who receive these tickets won't be able to pay.

Regardless, the bill forbids cities from establishing policies that limit these arrests, so if and when costs start racking up, the Lege will have taken away their ability to limit this expense.

Let's get down to brass tacks: Where will police take their belongings and what procedures will be put in place for them to be able to retrieve them later? Will they get a receipt? Where will police take their stuff? Who will be in charge of it while folks are jailed? How will  people retrieve it later and what happens when folks don't have good ID?

These are not idle questions: Most police evidence rooms are already overflowing (e.g., see this audit of the Denton PD evidence room, which is stuffed to the gills.) When I was policy director at the Innocence Project of Texas, evidence-room shortcomings emerged as a significant, hidden flaw generating all sorts of problems throughout the justice system: Evidence lost or damaged, guns stolen, DNA gone bad because it was kept at room temperature (that last one we fixed via legislation). The volume of stuff they keep track of boggles the mind, and housing all the earthly belongings of every homeless person arrested is going to overwhelm them.

So cities must create new systems, and probably find new locations, to store belongings of HB 1925 arrestees, but despite these extra costs, are forbidden from setting policies that limit these arrests/costs.

This is an unfunded mandate on cities and one assumes an unintended consequence, since the problem was barely-if-at-all discussed during the legislative process.

OTOH, if we're honest, the bill wasn't written to be good public policy or workable for cities, it was written to punish Austin and virtue-signal to the middle class against homeless people. They're doing it because they believe demonizing societal outcasts plays well in the suburbs, and it appears to be true, at least for the moment.

But whatever "signal" the new law sends to voters, it also lards new costs and responsibilities on cities big and small which they're both ill-prepared for and forbidden from managing. I called this an "unintended consequence" earlier, but that's probably generous. Governor Abbott and the Texas Legislature view putting the screws to cities as a legislative feature, not a bug.


Anonymous said...

The same thing they already do when they arrest them for public intoxication, trespassing or theft or for warrants for those crimes. Inventory it and put it into their evidence facility. They usually give people a handout with contact information on how to get their stuff back.

How this stuff is handled is already governed under state law, and the section of the law requiring them to store it in the new camping law is redundant. If the officers just threw it out or left it they would violating existing law and it would be an unlawful 4th Amendment seizure.

They did clean up some of the language a session or two back that that lets the agencies get rid of found and abandoned property much faster, like 30 days (or maybe 90 or something) so if nobody picks it up in a timely fashion, there is a property hearing at a county court, the items are declared abandoned and the agency throws it out. This is a pretty routine thing at most evidence facilities and they usually have one big hearing for all of the items eligible for disposal. This isn't an issue.

Phelps said...

If they treat it as property seized under CR19 (I'm not sure from the text if it is clear that it is) then they only have to keep it for 30 days before it is "unclaimed" and they can do whatever (auction/sell/discard) it. That's probably not the intent of the lege, but maybe it is.

It's not evidence. It doens't have to go to an evidence room where the same chain of custody requirements apply -- and in fact, probably shouldn't, BECAUSE of the chain of custody issues.

If I were told to administer this, I would fence off an open air part of the camp area that cities will have to establish under this (most cities in Texas already have before the law, and it's a practical necessity now), mark it out with a grid, and then leave the property in a grid square. It's already there for us to give back to you when you make it to the campground.

Remember, the goal of the law is to get them to go to the designated camping area (or a shelter) INSTEAD of criminalizing homelessness. If you already have to go there to get your property, that makes it a lot easier to just stay. Once you're there, you've got access to healthcare, including mental healthcare, along with social workers.

Sam said...

Grits would complain if the homeless had to pay for storage or if the city had to store the homeless people’s stuff and not charge them. Regardless, Grits would complain.

Anonymous said...

Our perfumed princes and princesses of the lege cannot leave things alone. Did our lege not notice that Austin, target of their zeal, had reinstated the city ban?

This was and is a local issue with zero consequence to the state.

But by gosh we'll strike up the national anthem at all those entertainment venues.

Phelps said...

If you’ve been telling your kid to clean their room forever, that they decide to finally start stomping upstairs when the Xbox is in your hands doesn’t mean you trust them to do it. You still ground them.

TheLawEnforcementProject said...

It's clear that the seized possessions are not "evidence" of a crime, and does not need to be in an evidence room, nor should it be.

TheLawEnforcementProject said...

Anonymous; I have never heard of an instance anywhere ( I have read many hundreds of 4th amendment related case decisions and opinions, and many hundreds of 4th amendment related news stories) where "possessions", things, as opposed to people, have been determined to have been unlawfully seized. The 4th amendment applies specifically, and I believe exclusively, to "persons"

Phelps said...


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Effects is another word for possessions.

That law enforcement is accustomed to infringing the rights of the people does not excuse it.

Anonymous said...


Shelly Swank said...

Quite frankly, I'm very glad that this law is going into effect. Where I live, there are a LOT of very large "homeless camps" that are just FILTHY. The residents of these camps have zero regard for the environment around them. They throw their trash into the creeks, they urinate and defecate in those creeks, there is drug use, prostitution and all kinds of criminal activity associated with them. Many of these camps are located near major intersections and a lot of people from the camps wander in and out of traffic. They bang on car windows looking for handouts. They pose a danger to themselves and to other motorists, because one of these days, someone is going to get hit-- and I'm sure it's happened already. Camps set up next to businesses, they attract rats and other pests, the people sit around those businesses and beg from customers or behave in a threatening manner. It's one thing if a homeless person sets up camp in a discreet area of a forest, and is respectful of the surroundings (not leaving trash and human waste "wherever"). It's another when these camps exist where God and everyone can see the trash, smell the human waste, dodge panhandlers and crazy people when you're just trying to go inside a gas station for a coke-- or even just driving up the road. We have shelters, but many either can't or WON'T go to them, they refuse or are incapable of following shelter rules, and many "homeless" are that way BY THEIR OWN ADMITTED CHOICE. Yes. I'm GLAD it's a crime now. Seeing, smelling and dodging the trashy messes and criminal activities of many of these people is the worse crime.