On the limits of tuff-on-crime ideology at the Texas Court of Criminal Appeals

One of Grits' favorite pastimes is parsing contentious Texas Court of Criminal Appeals decisions to better understand the dynamics and factions arising on various topics. Since nobody in the mainstream media routinely covers these cases, this usually involves tilling virgin soil. And such is the situation with Ex Parte Jeremy Wade Pue, which was decided on March 13 but has been ignored in the press. Mr. Pue was represented by an attorney from the State Counsel for Offenders.

Judge Bert Richardson wrote the main opinion, with Judges Mary Lou Keel and Sharon Keller authoring concurrences and Judge Kevin Yeary isolated by himself in dissent, which is a space he's increasingly chosen to occupy in recent cases. To me, this is perhaps the most significant change in the court's dynamic in the wake of the 2016 election, when Judges Keel and Walker joined the court.

While on capital cases, Judge Yeary has tended to be more defense-oriented, in more workaday cases he has proven himself a tuff-on-crime outlier, even compared to the Government-Always-Wins (GAW) faction, led by Judge Keller. Indeed, Yeary's pro-prosecutor stances are sometimes so extreme that even the traditional GAW faction members (Keller, Hervey, and Keasler) cannot abide them. That's what happened in Pue, where the state sought to uphold a 30-year sentence which, in light of the facts, clearly was improper.

The case involved an illegal sentence for evading arrest with a vehicle, which in Texas is a third degree felony punishable by 2-10 years. Two California cases were used as an enhancement under Texas law to increase the penalty to thirty years under the habitual-offender statute. But the California convictions were not "final," as required by Texas law, and the defendant's lawyer failed to appeal the issue. (Mr. Pue separately has also alleged an ineffective assistance claim.) The CCA majority said the sentence was illegal, and even the GAW faction agreed.

Judge Yeary would let the sentence stand, insisting the claim should have been raised on direct appeal and should not be alleged for the first time in a habeas writ.  Moreover, he made a distinction (which Judge Keel rightly considered spurious) between a sentence outside the prescribed range (for example, a life sentence for a third degree felony where the max should be ten years), and illegally using a prior conviction to increase the penalty outside the prescribed range. Keel called out Yeary for "inconsistent" reasoning, and he tried to respond in a footnote. But when you read them both, it's pretty clear she's right and he's confused. Even Judges Keller and Keasler thought so.

Further, Judge Keller believed Pue's lawyer performed ineffectively:

Because the conviction was not final regardless of what law applies, and because Applicant has no other prior convictions (aside from the two in California), I would hold that counsel was deficient for failing to challenge the use of this conviction for enhancement purposes, and Applicant was prejudiced because his thirty-year sentence exceeds the maximum punishment allowed for his offense.

Keller believed Pue's lawyer's performance was deficient on its face ("Given the circumstances, I would hold that there is no conceivable strategy for failing to challenge the prior conviction, and so, there is no need to remand for factual development.") Judge Richardson and the majority, however, noted that the issue was raised at trial and he was reluctant to allege ineffective assistance for not doing so on appeal because "there were existing intermediate Texas appellate court decisions to the contrary" about whether California or Texas law controlled which offenses could be used for enhancements. (Going forward, the answer is "Texas'.")

As case law, Pue does little more than confirm common perceptions about which cases qualify for an habitual-offender enhancement. But it certainly reveals telling dynamics on a court suffering from strained personal relations and often-bitter legal disagreements. We're beginning to see previously unplumbed limits regarding how far certain members of the court are willing to go just because a prosecutor asked them for something.

Will Judge Yeary's extremist views solidify control of the court among moderates like Richardson, staking out positions so harsh and unyielding that they drive even the GAW faction toward more centrist stances? Time will tell but, to this observer, that looms as an increasingly likely (and admittedly unexpected) possibility.

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.

Bad enhancement bill boosts pressure for false convictions

On Monday in the House Criminal Jurisprudence Committee, Rep. Todd Hunter has a bill up - HB 2908 - that contains no redeeming qualities that I can tell. Grits dislikes everything in it below the author's name.

Essentially it makes offenses motivated by bias against a police officer hate crimes and jacks up up already-enhanced penalties for assaulting a cop. These penalties are already so high they can and do coerce false convictions. In San Antonio, Officer Matthew Belver beat Carlos Flores while handcuffed, then accused him of assaulting a peace officer. Flores pled no contest to avoid the possibility of a very long sentence, even though video of the incident shows he was not the aggressor and did not assault Belver. (The Bexar DA's Conviction Integrity Unit later discovered Mr. Flores was innocent and convinced the courts to overturn his conviction.)

So the penalties facing Mr. Flores were already so severe that he pled no contest rather than risk a trial. (Nobody outside the police department at the time knew video of the incident was available.) Increasing those penalties creates even greater pressure for innocent defendants to succumb and plea guilty to charges they didn't commit.

Similarly, HB 2908 creates a new second-degree felony offense of unlawful restraint if you're restraining a police officer "in retaliation or on account of an exercise of official power." So, for example, when Trooper Brian Encina reached into Sandra Bland's car to arrest her for failure to signal a lane change, she would have committed a second-degree felony under this bill for grabbing his wrist to stop him.

The bill repeats this pattern in several places throughout the law, senselessly boosting already boosted penalties. Terroristic threat - already enhanced from a Class B to a Class A if the target is a public servant - would be boosted to a state jail felony under the bill if the target is a police officer. Intoxication assault would be enhanced a second time to a first degree felony (up to life in prison) if the victim is a police officer; right now it's a second degree felony if the victim is a police, firefighter or EMS tech, third degree for everybody else.

These enhancements won't change behavior and won't make anyone safer. After all, all these crimes are already enhanced for police-officer victims and apparently that hasn't solved the problem. But if the only tool the Lege can find is a hammer, then everything apparently looks like a nail. So this legislation goes back to the enhancement well.

Finally, the bill mandates a rather ham-handed propaganda campaign by the Texas Commission on Law Enforcement to "develop and implement a campaign to educate children in this state on the value that peace officers bring to a community." What this peace officer licensing agency knows about educating children is anyone's guess, but the point isn't really for the children to be educated - it's to pass something that leaves the public with an impression that the Legislature backs law enforcement. Hell, so do I. But this is not the way.

Case study: Why to question (another) enhancement for assaulting police officers

Governor Greg Abbott has responded to recent ambush killings of police with a suggestion to make murder of a police officer a "hate crime" and to "increase criminal penalties for any crime in which the victim is a law enforcement officer."

Though Grits has long opposed most enhancements, considering the one-way ratchet applied to criminal penalties to have surpassed any real need for additional punitiveness in Texas by around the turn of the century, in the scheme of things, I don't mind the symbolic gesture of creating another "hate crime." It's already a capital offense to murder a police officer, so the difference is purely semantic.

However, the penalty for assaulting a peace officer is already significantly enhanced, with murders of police securing a death sentence or life without parole and lesser assaults bumped upward by one offense category. So we should already be witnessing any possible benefit from enhanced criminal penalties on reducing the number of murders of police officers. If that strategy worked, we wouldn't be having this discussion!

The problem is, criminals don't carry around pocket copies of the Penal Code to read in their spare time at the bus stop. Killing a police officer and standing trial for it is a one-time life event during which offenders typically only contemplate potential consequences after the fact. Nobody is weighing penalty thresholds in their mind's eye at the moment they assault a cop. Or if they are, they have resigned themselves already that they will die if the officer does.

OTOH, there may be good reasons why one wouldn't want to boost the penalty by two categories (instead of one) just because the victim is a police officer. For example, in September, Sgt. Rick Van Houten, a police union president out of Fort Worth, allegedly assaulted another officer at a CLEAT convention on Padre Island then fled the hotel before local police came. His department investigated the incident and decided it was worth only a three-day suspension. Does anyone think the situation really merited prosecution as a felony if his department would let him back on the job so quickly? Van Houten was even allowed to participate in meet-and-confer negotiations while on restricted duty because of the incident.

Many people accused of assaulting a police officer, just like Sgt. Van Houten, claim they were defending themselves against unwarranted aggression. And there's little doubt that those claims are sometimes true. The difference is, because Van Houten himself wears a badge, he's more likely to be believed in the absence of video evidence.

Yes, cops receive lenient treatment compared to civilians when they hurt other people or break the law. But perhaps the best way to achieve justice is neither to punish cops more harshly nor to mandate felony incarceration for relatively minor altercations like this one. Instead, perhaps average citizens should be afforded the same protections and benefit of the doubt they'd receive if they were a member of a protected class like politicians or police officers. The punishment afforded the union boss is closer to "justice" in this situation than if the law demanded he be prosecuted for felony assault.

When considering whether to change the law, legislators should assess how Sgt. Rick Van Houten should be treated, not some hypothetical scary black guy conjured up for purposes of pushing a cause. If Sgt. Van Houten deserved a felony rap, fine. But if not, don't mandate that outcome for people who commit the same offense but don't wear a badge.

Roundup: Jean Valjean at Christmastime and other stories

Here are a few odds and ends which haven't made it into individual Grits posts during a busy week but which merit readers' attention:

Draconian enhancements based on decades-old offenses
Thanks to "enhancements" based on felonies committed two decades ago, a Hays County man received a six-year sentence for stealing $45 worth of ground beef and toys for his children from a Walmart just before Christmas last year. The kicker: Texas Supreme Court Justice Jeff Brown was foreman of the jury who convicted this latter-day Jean Valjean. Les Miserables similes aside, there needs to be some statute of limitations on how long old convictions can be used to enhance new misdemeanors into lengthy prison sentences. Nothing about what this guy did 20 years ago predicts that he's a danger today; in fact, the nature of this latest trumped-up "felony" indicates his priorities have shifted. The fellow committed what otherwise would have been a Class C misdemeanor theft so he could give his kids a modest Christmas, and "To love another person is to see the face of God."

Judges call for independent crime lab
Travis County judges are calling on the city to separate its crime lab from the Austin Police Department, a move presaged by recommendations from the National Academy of Sciences in its landmark 2009 report. Grits agrees with that assessment, with one caveat: They should make the lab truly independent, as was done in Houston. What they shouldn't do is shift those functions to the county medical examiner, as some have suggested. Let's please do this right the first time. In related news, Sen. Cornyn is pushing legislation to reauthorize federal funding for crime labs and reducing rape kit backlogs.

Contempt of cop: A case study
This article from Meagan Flynn at the Houston Press depicts a class example of an arrest for "contempt of cop" by a Harris County Sheriff's deputy.

Can bureaucracy prevent jail suicides?
Despite this Texas Tribune story, Grits suspects that far too much credit is being given to a new intake form when it comes to reducing jail suicides. We'll have to see if reductions hold long-term. But it's just as likely that jails stepped up prevention efforts because the Commission on Jail Standards began making suicides a greater point of emphasis and Sheriffs didn't want to end up in the paper with the next Sandra-Blandesque death occurring in their facility. If that's the case, suicides will continue to fluctuate and may go back up as new incidents arise. I hope I'm wrong, but it seems hard to believe such a small bureaucratic change could make a huge dent in a problem rooted deep in the human psyche. My instincts say to look for a) alternative explanations and b) future increases.

Veterans courts are cool, but don't scale up
This Houston Chronicle article touts veterans courts as an intervention that works, and they do, but it's also true that they're resource intensive and don't scale up well given the volume and gaping needs of the target population. Reported the Chron, quoting the judge in charge of the project: "The common denominator of the veterans in his court is a 'very low sense of self-esteem and self-purpose,' along with self-hate." But couldn't you say that about defendants in every criminal courtroom in America? Strong probation methods work, but they require more resources than most county governments are willing to provide, and you can't place it all on the backs of defendants through expensive court fees. These courts are important experiments, but they are not yet scale-able solutions and are unavailable to most veterans who commit crimes.

Asset seizures skyrocketed since turn of century
Total assets seized by Texas law enforcement increased more than 150 percent from 2001 to 2013, according to Right on Crime. At this point, agencies have become reliant on the income in unhealthy and problematic ways. If the interdiction strategy were working, one wonders, wouldn't authorities seize LESS illicit assets over time?

LWOP for illegal immigrants makes no cost-benefit sense
Here's a legislative proposal that would cost a small fortune with little public safety benefit to show for it: Authorizing life without parole for first-degree felonies committed by illegal immigrants. Life without parole didn't exist in Texas until 2005, when death penalty abolitionists made a deal with the devil, creating the new punishment as the sole alternative available to their clients in death-penalty cases. IMO that legislation threw their clients under the bus. Since then, we've seen hundreds of people sentenced to LWOP while death sentnences dropped. But LWOP is also a death sentence, just in slow motion. Next we had people wanting LWOP for sex offenders, then for sex traffickers, and not for illegal immigrants. There's no public safety argument for this policy and the cost-benefit analysis cannot stand up to scrutiny. This is just pandering to nativist sentiments in a crass and ham-handed way. One hopes cooler, wiser, and more cost-conscious heads will prevail as the bill is considered at the Lege.

1033 program: Not as free as 'free' sounds
Lots of Texas agencies got "free" personnel carriers through the Pentagon's 1033 program, but the Texas Public Policy Foundation points out that that statement masks significant costs to locals from operating the vehicles.

CAN-DO Clemency
Grits was interested to learn of the CAN-DO Foundation, which stands for Clemency for All Nonviolent Drug Offenders. As folks push Obama to maximize his use of clemency on his way out the door,  it's worth mentioning there's still time for him to posthumously pardon the writer O. Henry, as this blog along with Pete Ruckman has long advocated.

Locked up for the holidays
In an item titled, "Locked up for the holidays," the Pew Charitable Trusts' Stateline site examined the impact of the holiday season on inmates and their families and charity work aimed at supporting both.

TPPF's Derek Cohen on criminal penalty enhancements

Our pal Derek Cohen at the Texas Public Policy Foundation's Center for Effective Justice this week published a new public policy brief this week titled, "Texas' Mandatory Sentencing Enhancements." Grits sat down with Derek on Thursday to talk to him about his analysis. Here are a few excerpts from our conversation.

Lege poised to criminalize violations of internet terms of service contracts

I don't know if this will be the first new crime created by the Texas Legislature this session (I doubt it), but it's surely the most far reaching yet: SB 345 by Huffman, the companion to which was criticized last month by Grits, is poised to pass the Texas Legislature this week and head to the governor's desk. HB 896, its companion, has been placed on Thursday's House General State calendar. But SB 345 is over from the Senate, so it will be substituted in and finally passed if the bill is not defeated on the House floor.

The portion of the bill I don't like would criminalize violations of terms of service contracts between internet service providers and their customers, making law enforcement the enforcer of contracts for wifi the way they've problematically been in the past for payday lenders and check cashing firms. The House committee substitute altered the language slightly but it still contains the problematic provision - (b-1)(2)(B)(ii), see the text - criminalizing violations of "a contractual agreement." [N.b., the fix is either to strike (b-1)(2)(B)(ii) or change the "or" to an "and" in the previous (i).]

Using criminal law to enforce private consumer contracts amounts to corporate welfare and terrible public policy. If the Texas House doesn't amend or reject this bill - and so far it seems to be sailing through the process - then Gov. Greg Abbott should veto it.

See prior Grits' analysis of this bad idea.

UPDATE: Freshman Rep. Matt Rinaldi amended the bill on the floor to make contract violations a crime only if they involve an effort "to defraud or harm another or to alter, damage, or delete property," which will at least keep this law from being used against people logging onto somebody else's wifi.  Grits doesn't oppose laws to combat hacking, I just don't want to authorize cops to become generalized enforcers of consumer contracts. ALSO: Grits had expected the House to substitute in the companion, which was already over from the Senate, but instead they just passed HB 896, with the SB still lingering in House committee. So this bill isn't headed to the governor yet, even though versions of it have now passed both chambers.

Bathroom bill spawns glitter bomb protest

State Rep. Debbie Riddle's district office in Montgomery County received a "glitter bomb" in the mail, reported the Texas Tribune, in response to which a DPS captain sent around a document (pdf) to legislative offices titled "Glitter Bombing: Weapon of Choice for Gay Rights, Pro-Choice Activists." A glitter bomb is a spring loaded package which spews glitter around the room when it's opened. So elevating its status to weaponry is a stretch, but we are in the Era of Hype and Hysteria where overstatement is the watchword of the hour. Every minor threat must be hyped to the Nth degree: It's a rule.

The Tribune offered no suggestion why Debbie Riddle might have been victimized except for a reference in the document from DPS declaring that "The common denominator among [targets] is a conservative orientation and opposition to gay rights, especially marriage equality." But I doubt this had anything to do with marriage equality. Grits would bet dollars to donuts this protest was about telling transgendered folk where to go to the bathroom.

Grits felt a momentary twinge of guilt upon hearing that Riddle's district staff were glitter bombed, since this blog broke the story about the bill that is almost certainly the proximate cause of the episode. But somebody would eventually have noticed the legislation and the reaction was bound to be negative, whatever the source from which folks heard it. To be clear, while Riddle's bill is goddawful, I also don't condone harassing her staff or creating extra work for the cleaning crew (anyone with kids knows that glitter is incredibly hard to remove).

Indeed, from the perspective of trying to prevent Riddle's bathroom bills from passing, such pranks aren't just childish but counterproductive. These sorts of juvenile tactics don't help anyone's cause except, ironically, Debbie Riddle's.

Don't use criminal law to enforce contract terms

A bill scheduled to be heard in the Texas House Criminal Jurisprudence Committee next week, HB 896 (Hernandez), revives the effort by internet service providers to get law enforcement to enforce their private consumer contracts, much the same way prosecutors did for payday lenders for many years before legislators and the courts (mostly) reined them in.

See the language of HB 896 - subsection 2(B) is the overbroad piece which needs to be deleted. But in years past, the bill's backers weren't willing to accept legislation without the broader provision - criminalizing terms-of-service violations in consumer contracts is really the main thing they're after, not preventing hacking, which is what 2(A) is primarily about.

I'd written about this bill in 2013, so rather than rehearse the arguments again, I'll refer readers to that post. The issues remain the same: Having cops and prosecutors enforce consumer contract terms amounts to over-criminalization and corporate welfare. Here's hoping the bill will be amended or die (again).

Debbie Riddle wants Potty Police to combat gender bending in Texas restrooms

From the "You Can't Make This Stuff Up" Department, I think this may be my favorite* new crime proposed yet in 2015: Texas state Rep. Debbie Riddle has filed legislation making it a Class A misdemeanor for a transgendered person to use the restroom of their adopted gender, even after reassignment surgery, and a state jail felony for a building manager to allow them to do so.

Indeed, the bill goes beyond transgendered people to criminalize anyone entering the restroom of the opposite gender with three exceptions: if they enter for custodial purposes, to give medical attention, or accompanying a minor under eight years old. I can think of more than one instance in my life where I would have committed a Class A misdemeanor under this provision, how about you?

My wife suggested that many women may have violated this proposed law at nightclubs or public events because the lines to women's restrooms are always quite long and the stalls in the men's room are frequently empty.

Criminalizing that demographic may be an unintended consequence. But to me, what makes it look like the bill targets transgendered folk are the particular gender definitions imposed in the bill:

For the purpose of this section, the gender of an individual is the gender established at the individual's birth or the gender established by the individual's chromosomes.  A male is an individual with at least one X chromosome and at least one Y chromosome, and a female is an individual with at least one X chromosome and no Y chromosomes.  If an individual's gender established at the individual's birth is not the same as the individual's gender established by the individual's chromosomes, the individual's gender established by the individual's chromosomes controls under this section.

That definition understates the complexity of possible chromosomal variations and conflates a cultural construction - "gender" - with chromosomal sex determination in ways that don't jibe with modern understanding. "Gender" is not necessarily "established by the individual's chromosomes." According to the World Health Organization, "Gender, typically described in terms of masculinity and femininity, is a social construction that varies across different cultures and over time. There are a number of cultures, for example, in which greater gender diversity exists and sex and gender are not always neatly divided along binary lines such as male and female or homosexual and heterosexual." One may or may not agree with that assessment of gender vs. sex, culture vs. science, but the WHO analysis points to the fact that these questions are not nearly so cut and dried as the binary framework suggested in Rep. Riddle's bill. At a minimum, it would set the stage for years of litigation as every gender-identity permutation steps forward to assert their preferences. Implementing this statute would be a full-on mess.

Ironically, it's likely that, if this bill passed, it would hasten the move toward unisex restrooms so that building managers wouldn't risk committing a state jail felony if the wrong person uses the wrong toilet. It'd seem like the only rational response from a business perspective. Why risk committing a state jail felony when you can eliminate the possibility by posting two stick figures on the door instead of one?

Unintended consequences, anyone?

*My "favorite" not because I approve of the suggestion but because I'm entertained by it.

MORE: Apparently this group has been promoting this idea for some time. Their effort appears to have begun in earnest after Houston Mayor Annise Parker issued an executive order allowing "transgendered individuals to use restroom facilities in city-owned buildings for the gender with which they identify." Last year she backtracked on the issue, to a degree. AND MORE: Checking Google News, I discovered there is legislation on this topic (failing) in Kentucky and Florida. According to this source (Feb. 10):

In 2013, a proposed bill in Arizona (why is it always Florida and Arizona?) would have allowed police to stop anyone suspected of using the "wrong" bathroom and demand identification. Had the bill not been defeated, violators would have faced a $2,500 fine and up to six months in jail. Earlier this month, a Colorado bill that died in committee would have banned transgender students from accessing changing rooms.

So this is a coordinated effort across multiple states, not just one oddbird bill in Texas.

AND MORE: This article from Towleroad followed up on Grits' story and has been driving a lot of traffic here. WOAI Radio covered the bill and contacted Debbie Riddle's office, who surprisingly declined to comment. Rep. Riddle hasn't been microphone-shy in the past. The San Antonio Current also ran a piece. AND MORE: Texas Monthly picked up on the story. See coverage from The Advocate and State of Trans. 

And three days after Grits broke this story, there's this: Via the Dallas Voice, Equality Texas put out an action alert opposing Riddle's legislation.

New Juvenile Justice committee in Texas House; other rules changes

Grits finally had a moment to go through this session's rules for the Texas House of Representatives, as approved in HR 4. (Read them here for yourself.) Here are some changes which may interest Grits readers:

Juvenile justice was taken out of the Corrections Committee's domain and given its own committee: Juvenile Justice and Family Matters, which will have seven members. (Chairs and members haven't been named yet.) As a practical matter this was probably a good move: The Corrections Committee has a big enough task with oversight of the adult system to delve into juvenile stuff in depth during the brief 140 day session. But there may also be a political angle to the division given that Sen. John Whitmire and Tony Fabelo are openly talking about shuttering more youth prisons. The appointment of the chairman may tell a lot about whether the Speaker agrees with Whitmire regarding further downsizing at the Texas Juvenile Justice Department.

The House Criminal Jurisprudence Committee will have seven instead of nine members. I liked it with nine. C'est la vie.

Bill analyses must henceforth include "a statement indicating whether or not the bill or resolution expressly creates a criminal offense, expressly increases the punishment for an existing criminal offense or category of offenses, or expressly changes the eligibility of a person for community supervision, parole, or mandatory supervision."

Bills that create new crimes, increase penalties, change probation or parole eligibility must now say so in the bill caption. IMO they should have gone further by requiring those bills to have a fiscal note, meaning they'd have to be accounted for in the budget. In the past, the Legislative Budget Board insisted nearly all bills increasing penalties or creating new crimes would have no significant fiscal impact on the state, though the cumulative impact off passing dozens of new crimes and "enhancements" each session has been enormous.

This will be helpful: The Parliamentarian must now give written explanations for rulings on points of order, including cites to precedent. The whys and wherefores of point of order denials have long been a mystery - maybe this will promote more consistency.

It's regrettable that this change was necessary: "The committee coordinator may exclude from the committee coordinator's office or refuse to interact with a member or a member's staff if the member or member's staff engages in abusive, harassing, or threatening behavior." Wouldn't you love to learn the backstory behind that new rule?

The General Investigative and Ethics Committee was given additional authority including the power to propose articles of impeachment and to investigate misconduct by political appointees at agencies. Given what's happened recently at the Department of State Health Services and the Legislature's run ins with UT regent Wallace Hall, this could be a highly significant development.

The Technology Committee was eliminated and science and tech issues were handed to the renamed Government Transparency and Operation Committee. The language describing their turf is theoretically broad enough to include forensic science but DPS crime labs and the Forensic Science Commission remain under the jurisdiction of the Homeland Security and Public Safety Committee, whose jurisdiction didn't change.

The rules further limited access to media credentials and created a method for legislators who want to challenge a reporter's credentials if they engaged in lobbying or advocacy on the floor. I've never heard of that being an issue, so unless there was some episode last session of which I'm unaware, this seems like a solution looking for a problem. UPDATE: A reader reminds me the media credential issue was in response to Michael Quinn Sullivan, FWIW.

More criminal justice bills pre-filed at the Texas Lege

Here are a few more bills (see here, here, here and here for earlier installments) from the first week of pre-filing at the Texas Legislature that may merit Grits readers' attention:

Can prison spending be limited to population/inflation growth rates?
There are a couple of bills out there to restrict state spending to the combined effects of inflation and population growth, like this one, so it's worth mentioning that state prison spending has far surpassed those rates consistently for more than three decades. Also, there's a basic math problem with a constitutional amendment proposed by rookie Sen. Charles Perry limiting budget growth to the sum of inflation and population growth (or personal income growth, whichever is lesser). However, to actually index spending you would multiply those rates, not add them. Over time, his method would systematically under-fund the budget if not corrected. Perhaps if legislators want a smaller budget, they should propose cuts instead of constitutional amendments.

Whither border security funding if highway money spent on highways?
Also on the budget front, SB 139 by rookie Sen. Charles Perry and SB 184 by Sen. Charles Schwertner would cease using money from the state highway fund to finance the Department of Public Safety. The questions then become: Where does DPS funding come from? And, is their border security profile sustainable without tax increases?

How to raise local property taxes everywhere
HB 191 by Rep. Jim Murphy creating mandatory minimums for people convicted of multiple misdemeanors would launch a new 21st century jail building boom in Texas. County commissioners and Sheriffs, if they're wise, will come out of the woodwork to oppose this. In many counties in recent years, rising jail costs have been the primary driver for local property tax increases.

Record custodial interrogations
State Sen. Rodney Ellis has once again filed legislation to require recording interrogations of people suspected of serious, violent offenses. Make me philosopher king and I'd require recording of all custodial interrogations, but this is a good start. Last session state  Rep. Terry Canales carried  companion legislation in the House and Grits expects him to file the bill again in the 84th session.

Prioritize saving lives over prosecution in overdose cases
Rep. Ryan Guillen put forward a version of a Good Samaritan bill, HB 225, to make it a defense to prosecution on drug charges for people who call 911 when someone they're with overdoses. There have been several versions of this kicking around over the years. Last session a version cleared committee but, like many criminal justice reform bills, never received a vote on the House floor.

Grants, policies for police bodycams
In 2003, state Sen. Royce West carried legislation that created a grant fund for police departments to apply to install dashcams in patrol cars, and most of them did. Now he's filed SB 158 which would authorize the state to issue grants for police body cams and requires those using them to create written policies that govern their use and train on them. The difference between this and the one authorizing dashcams is that in 2003, Sen. West also passed a measure authorizing a statewide bond election for money to pay for them (which voters approved) and requirements for racial profiling reporting that were more stringent if departments didn't have cameras in their cars. This bill presently includes neither as many carrots nor sticks as his earlier legislation. For body cams to be adopted as widely as dashcams, there'd need to be a pot of money to fund these grants and some incentive for departments to use them.

No probation for illegal immigrants?
In SB 174, Sen. Joan Huffman recommends that "illegal aliens" be denied the chance to receive community supervision as a punishment, another potential budget buster for both state prisons and county jails. If this bill doesn't receive a gigantic "fiscal note" it will be proof once and for all that the Legislative Budget Board's mechanism for assessing bills' fiscal cost is utterly and profoundly broken.

Harsher punishments for 'official oppression' by police: Would it help?

Grits opposes most penalty enhancement bills and I may end up being against this one after I've given it sufficient thought. However, with police unions poised to go after the Smart on Crime agenda, I'm at least glad to see legislation filed that will keep them occupied some of the time next session playing defense. State Rep Borris Miles filed HB 265 increasing penalties for "official oppression" from a Class A misdemeanor to a third degree felony if the public servant in question was a police officer who "knowingly caused bodily injury to another."

(That oughtta rile the unions up more, even, than Jon Stickland's proposed HB 137 limiting government grants to law enforcement groups that lobby at the Legislature.)

At times, prosecutors have pled serious assault cases against officers down to Class A misdemeanor official oppression as sort of a place-holder to avoid pursuing more serious offenses that would get you or I charged with felony assault or worse. So I certainly understand Miles' frustration. Even so, arguably the public would be at least as well or better protected by altering the civil service code to make it easier for police departments to fire bad cops and empower the Commission on Law Enforcement to keep them from being re-hired elsewhere in Texas if they engaged in serious misconduct.

Prosecutors can always find a lesser charge to plead down a case and will find something else if misdemeanor official oppression is removed from their toolkit (e.g., misdemeanor assault). As much as one might like to, I don't see how it's possible to legislate away the discretion of elected District Attorneys to exercise routine lenience toward criminal defendants employed by police departments. The punitive impulse is not a pragmatic one.

That said, another piece of Miles' legislation, HB 270, would make official oppression complaints subject to the Public Information Act in Dallas and Houston (cities over two million) and require their retention as long as the officer as employed. That's a fine idea that IMO needn't be limited to the state's biggest cities.

Levin: Create new barriers in House rules to new crimes, penalty enhancements

Grits liked Marc Levin's suggestions to the House Criminal Jurisprudence Committee yesterday to reduce the proliferation of new laws and criminal penalty enhancements every session. 1) To create criminal penalties outside the penal code should require both the Criminal Jurisprudence Committee and whatever committee normally handles the code to approve the bill. Anything that slows down the process for new criminal penalties would be helpful, he said. For example: 2) Disallow new crimes and enhancements from being passed on the House Local and Consent Calendar. He also suggested, 3) "strengthening the fiscal notes" for bills with new or enhanced criminal penalties to better reflect the true costs, particularly to local government and 4) requiring captions to state if the bill includes new crimes or penalty enhancements.

Levin noted that we have a process for "Sunsetting" agencies but not outdated criminal laws. He pointed to the example of Minnesota's governor calling an "Un-Session" to repeal outdated, duplicative and unnecessary laws and suggested the Legislature should create some sort of interim commission similar to that suggested in unsuccessful legislation by state Rep. Steve Toth last session. See the new TPPF by Vikrant Reddy on the topic, "More Law, Less Justice: The Proliferation of Non-Traditional Crimes in the Texas Legal Code" (pdf).

Shannon Edmonds from the Texas prosecutors' association told the committee there were now more criminal offenses in the Texas occupations code than the penal code.

40% increase in cattle rustling followed 2009 penalty enhancement

Grits readers are aware of my longstanding view that "enhancing" (read: increasing) criminal penalties for things that are already illegal rarely has any impact on the rate at which those crimes are committed. A fine example comes from StateImpact Texas, a project of public radio stations KUT-Austin and KUHF-Houston, which reported today that a 40% rise in cattle rustling supervened the Texas Legislature's 2009 enhancement of penalties for that crime.

Ranchers saw a sharp jump in cattle rustling last year in Texas and Oklahoma. Over 10,000 cows and horses were reported missing or stolen. That’s an almost 40 percent increase from the year before. It’s a trend that’s surprised some in law enforcement.

Doug Hutchison is a special ranger commissioned by the Texas Department of Public Safety to investigate cattle theft. He points out that -since the drought ravaged herds in 2011- there’s simply less and less Texas cattle to steal.

“I was really starting to think that maybe we’d start to see a downturn, because these ranchers are watching so close to what they have with the downsizing of the herd, it’s a little easier to track,” said Hutchison.

He might have had another reason to expect a decline in thefts: Penalties against rustlers were toughened by Texas lawmakers in 2009. Now, the crime could put you in prison for up to 10 years. But ironically more and more cattle have gone missing or stolen since that law was passed.

Richard Hartley Chairs the Criminal Justice Department at UT San Antonio. He says it goes to show that tougher sentencing doesn’t generally serve as a deterrent. After all, cattle rustlers plied their trade even when the penalty was death.

“If you read a lot of the research or even just the historical writings on that era. When there was hangings in the town square crime would actually go up,” Hartly said. “Because when you had a lot of people congregated in an area where pickpockets would know that we steal stuff from them.”

Grits has never understood: Since empirically enhancing criminal penalties (I despise that euphemism) has little effect - indeed, often the opposite - what exactly is the point?

Texas criminalized uprooting seagrass, legalized switchblades (but not daggers, dirks, stilettos, poniards, or Bowie knives)

Were you aware that the Texas Legislature this session legalized switchblade knives? Me either, but HB 1862 by Dutton removed switchblades from the list of prohibited weapons in Chapter 46.05 of the Penal Code. However, the Penal Code at 46.01(6) still lists under the definition of "illegal knife" any knife with a blade over five and one-half inches; any hand instrument designed to cut or stab another by being thrown; a "dagger, including but not limited to a dirk, stiletto, and poniard"; a Bowie knife (scandalous in Texas, no?); a sword; or a spear. So a spring-loaded knife with a blade under 5.5 inches is legal so long as it's not a dagger, dirk, stiletto or poniard. Got it?

Where else are you going to get that kind of information? Thanks to the generosity of Grits donors, on Friday I attended the biennial legislative update from the Texas District and County Attorneys Association, which kicked off a statewide tour giving CLEs about changes in criminal law this past session. (To contribute to this sort of coverage, hit one the Pay Pal button in the right-hand column. Between $125 for the training plus a few recent research and travel expenses, Grits' blog coffers are running low.)

TDCAA's Shannon Edmonds put up a telling slide depicting the number of new crimes created by the Legislature each session (excluding mere penalty "enhancements," or increased penalties for existing crimes):

2001: 34

2003: 23

2005: 49

2007: 50

2009: 40

2011: 53

2013: 41

New crimes this year include "Uprooting seagrass plants" (Class C misdemeanor) and "performing device maintenance services without a license (Class B misdemeanor, Class A for a subsequent offense).  Drone fans will recall the new prohibition on "possession, display, disclosure, distribution or use of image captured by unmanned aircraft" (with many exceptions). And it's now an offense for motorcyclists to carry a passenger if their bike doesn't have footrests and handholds. The list goes on.

In addition to 41 new crimes, TDCAA counted 25 new criminal penalty enhancements, including."criminal slander or libel of a savings bank" (now a state jail felony). Perhaps a more important enhancement was to boost the penalty for witness tampering in family violence cases to a second or third degree felony, depending on the circumstances. That one could get used far more often than anyone would ever slander a savings bank. Making, selling or altering a car's airbag without proper credentials can now be a first degree felony if death results. Failure to stop and render aide is now a second degree felony if the person dies. And while prostitutes may be treated more gently under diversion programs the Legislature approved, criminal penalties for pimps were increased all the way up to a first degree felony (5-99 or life) if one or more prostitutes was under 18.

"Horror stories" drive policymaking on criminal justice, prosecutors were told, so if they want their bills to pass they should look for horror stories that exemplify the need for them the way the Michael Morton case drove criminal-discovery reform. (Morton, incidentally, has agreed to be the keynote speaker at TDCAA's annual conference.) For a moment, the group thought the Kaufman County prosecutor murders were going to become that sort of high-profile, policy changing case, they said, but the media and legislators lost interest when it turned out the perpetrator was a former Justice of the Peace and not a member of the Aryan Brotherhood or a Mexican drug cartel.  The Legislature did make birth dates and home addresses confidential on certain public documents for prosecutors and peace officers but not much else was done in direct response to those events, they said.

One horror story from half-a-continent away that did gain traction was the school shooting episode in Connecticut. In response, the Texas Legislature created a new system of armed, undercover school marshals. But the idea is already running into resistance, said Edmonds, because insurance companies don't want to cover school districts employing said marshals, apparently fearing that an anonymous, armed adult on campus might get shot by police responding to a chaotic active shooter situation. I hadn't followed this development; only time will tell how it plays out.

Much attention was paid to the so-called "Michael Morton Act" mandating open files by prosecutors. Kepple said the bill was never run through the Legislative Council so as written it's "a little boogered up." The bill essentially codifies Brady v. Maryland, they said, requiring the state to document what it does and doesn't give to the defense. The defense bar, in turn, can't share that information with third parties, including the media, before it's submitted into evidence. There was some discussion of the lack of penalties if defense attorney abuse open-file privileges. Before this law, prosecutors could threaten to withhold discovery in future cases if defense lawyers released confidential information. Now that's a hollow threat. The law requires disclosure. If they can find the right "horror story," perhaps prosecutors will seek penalties next session for defense attorneys who release information without proper authority. OTOH, Kepple pointed out, there are also no penalties for prosecutors who don't comply with the law, so it's possible they'd be better off leaving well enough alone.

 They mentioned a couple of bills familiar to Grits readers: One expanding access to habeas corpus writs in junk science cases and another requiring warrants for cloud-based email and other digital content. I'm still pretty pleased about both of those.

Judges must now formally ask the state whether they've received a victim impact statement in cases where they're authorized. Apparently 2/3 or more of the time they'll be told "no." Most victims decline to provide them, said Edmonds. Victims can also decline to be contacted by the defense in capital murder cases as part of "defense initiated victim outreach," which Kepple described as a predator "in sheep's clothing." The new statute says victims may designate someone at the prosecutor's office to interact with the defense counsel, though it's not required. If this option is widely used, I bet it's because prosecutors push for it, not victim families.

Edmonds chided the Legislature for continuing to create human trafficking offenses when few if any prosecutors in the field are running across those sorts of cases in their regular practice. He asked the audience if anyone had used the statute and no hands visibly rose. There's a new reporting requirement for prosecutors on human trafficking and a new civil cause of action.

Grits has been attending these post-session TDCAA wrap ups for several sessions and I'll give them credit for consistency. When Texas passed its much ballyhooed Life Without Parole (LWOP) legislation for adult capital cases in 2005 - a bill Grits disliked at the time - TDCAA's Edmonds and Rob Kepple opined that the Legislature could not prevent themselves from expanding the use of the penalty to non-capital crimes, predicting that LWOP sentences would result in a sort of mission creep beyond just its role as an alternative to the death penalty.

That turned out to be prescient. Though LWOP was pitched as an alternative to the death penalty, in 2007, Kepple pointed out, the Lege added LWOP on a second conviction for continuous sexual abuse of a child. In 2011, they created an LWOP punishment for human trafficking and second-offense agg-sex assault. This year they added sexually violent offenses against a child under 14. Now that the penalty exists, Kepple pointed out, politicians of all stripes inevitably will seek to apply it in more circumstances. Though he didn't say so, this sets the state up for our grandchildren to pay for constitutionally required medical care for elderly prisoners the state can't release 40-50 years down the line. It also gives prosecutors enormous leverage to coerce plea bargains in cases where the penalty may be applicable. Along the same lines, the Legislature created several new mandatory minimums including for organized criminal activity and injury to a child, increasing the amount of time before offenders become parole-eligible. One can't expect TDCAA to complain about prosecutors being handed a bigger club, but implicit in Kepple's comments was a sentiment that it's probably not a wise policy choice: Texas' criminal penalties have long been tough enough.

Grits may have more tidbits to come from the "Legislative Update" manual that accompanied the program but those are the highlights from my notes.

RELATED: See the Texas Criminal Justice Coalition's lists of reform-oriented criminal justice bills that passed and bad bills defeated in the 83rd Texas Legislature.

By the numbers: 83rd TX Lege created 33 new crimes (6 of them felonies), passed 20 enhancements

After shifting their weekly legislative updates exclusively to email instead of posting them on their website during the final weeks of the session (perhaps Grits was quoting from and linking to them too frequently?), the Texas District and County Attorneys Association has posted a legislative recap that may interest Grits readers. Here's an interesting "by the numbers" summary of 2013 criminal-justice legislative action at the Texas Legislature:

The final tally.  The Legislature ultimately passed almost 1,300 bills and joint resolutions, of which we were tracking more than 300.  Here are some early numbers on the bills that passed (noting that some of these categories may overlap):

            Code of Criminal Procedure (# of bills): 76
            Penal Code: 45
            Traffic laws: 33
            Juveniles: 21
            Increasing punishments: 20
            Firearms: 19
            New Class As or Bs: 18
            Sex offense/offender: 17
            New duties for prosecutors: 12
            Human trafficking: 11
            Family violence: 11
            New Class Cs: 9
            Reducing punishments: 8
            New felonies: 6
            Controlled Substances Act: 3
            DWI: 2

These are rough numbers based on our tracking software.  We will nail down "official" numbers after we summarize these bills in our popular Legislative Update book, followed by our famous traveling road show this summer. 

So if those numbers hold, that's 33 total new crimes (6 new felonies, 18 Class A and B misdemeanors, and 9 new Class Cs), plus 20 bills increasing punishments for existing crimes and a remarkable 8 bills reducing punishments. Though it sounds like a lot, that's far fewer new crimes and enhancements than the Texas Lege has typically approved in past sessions. Heck, usually "reducing punishments" wouldn't even be a category!

It should be mentioned that TDCAA's count uses Shannon Edmonds' own nomenclature and the number of new crimes he estimates may not jibe precisely with, say, the number the parole board comes up with when they assign each new crime a risk factor for release purposes. Despite the occasional philistine suggestion that it's possible to come up with a hard and fast number, counting crimes is an inherently subjective task. Like federal law, Texas has reached the point where the number of criminal statutes is literally "countless"; nobody really knows for sure how many crimes there are anymore.

I'm looking forward to discovering what are the 12 new duties of prosecutors when TDCAA begins holding its legislative update seminars. (Grits has already signed up for one of the Austin events.) Go here for information if you'd like to attend one of TDCAA's legislative updates (worth 3 hours of CLE credit) for their take on the important changes made by the 83rd Texas Legislature that affect their members.

Javert in Waco

California voters recently changed that state's three-strikes law so that the final strike can't be a petty offense. Perhaps something similar is needed in Texas if stealing $35 worth of meat from the grocery store can secure a 50 year sentence from a Waco jury because of so-called "enhancements." The fellow had five prior felonies so he's not quite Jean Valjean, even if the McLennan DA continues to perform his best Javert impression.

Levin: 'Look Askance Before You Enhance'

The headline to this post is the title of a two-page policy brief from Marc Levin at the Texas Public Policy Foundation giving legislators guidance when considering new criminal penalty enhancements. Here are the questions Levin says legislators should be asking. (See the full  document for more detail.)

• Have sentences already gotten tougher?
• Is there evidence that current penalties are ineffective?
• Will an enhancement deter the conduct?
• Does the enhancement reduce the discretion of judges, juries and corrections officials?
• Will the enhancement make the penalty for the offense more or less commensurate with other penalties?
• Are there other solutions?

This is a sequel to his 2011 document, "Analyze Before You Criminalize."

Please use the comments to suggest other potential, rhyming titles along these themes for Marc's 2015 edition, e.g., "Don't enhance with insouciance," or "New crime weaning time."

Separate bills, committees, contemplate different-themed revamps of Texas penal laws

Never put off until tomorrow what you can put off for a biennium. Apparently this is the week when Texas House committees will study whether to study the penal code and other criminal statutes to consider making recommendations for future changes by the 84th Legislature.

On Thursday, the House Select Committee on Criminal Procedure Reform will hold what to my knowledge is its first meeting where Chair Debbie Riddle and her fellow committee members will hear pending legislation. Most of its work was expected to be performed in the interim, but on Thursday they'll hear HB 2804 by Toth relating "to the creation of a commission to review certain penal laws of this state" that are outside the Penal Code, controlled substances regulations, or the statutes related to the operation of a motor vehicle. The main purpose of this commission would be to "make recommendations to the legislature regarding the repeal of laws that are identified as being unnecessary, unclear, duplicative, overly broad, or otherwise insufficient to serve the intended purpose of the law." So the goal here is to delete extraneous statutes - e.g., maybe we can live with only three instead of seven, 11, or 16 oyster crimes. That's certainly needed.

Meanwhile, at its regular meeting on Tuesday, the House Criminal Jurisprudence Committee will hear HB 990 by Rep. Senfronia Thompson relating to "the establishment of a sentencing policy, accountability and review council to develop means to assess the effect of sentencing practices and policies on state correctional resources and improve the efficiency of the state criminal justice system."  "The purpose of the council is to develop means to promote a more balanced and cost-effective state criminal justice system," says the filed version of the bill. The commission under Chairwoman Thompson's legislation would "determine means by which to balance state and county criminal justice responsibilities with resources and devise an approach that would allow the state to balance sentencing policies with correctional resources." That's a much more ambitious project than just looking for oyster crimes to delete: A lot of politically potent stakeholders and mountains of money become involved, if they dig into the subject seriously. (Personally, I've often thought counties should reimburse the state for incarceration costs of people they send to state prisons and that would resolve a lot of the present, perverse incentives that favor overcriminalization and overincarceration.)

One notices the charge of Chairwoman Riddle's committee was to rewrite the Code of Criminal Procedure but Rep. Toth's bill relates primarily to criminal charges and punishments - an important subject but not particularly a criminal procedure issue. So does Thompson's bill, though it also speaks to broader state-local economic relationships underlying the current criminal justice terrain.

Note: This post was edited to make clear that Rep. Toth's bill only addresses non-traditional criminal laws codified outside of the Penal Code, Texas' controlled substances statutes, and codes governing motor vehicle offenses. Thanks to Marc Levin for the clarification.