Expungements for old weapons charges under Texas' new unlicensed-carry law could be widespread, but likely initially limited

Much have been made of the public-safety implications of Texas passing unlicensed-open-carry legislation (HB 1927) in the wake of mass shootings in El Paso, Odessa, and Sutherland Springs. But little attention has been paid to a provision in the bill allowing expunctions for past convictions for unlicensed carrying of a weapon (UCW, Penal Code 49.02). Rep. Senfronia Thompson added the amendment in the House, Charles Schwertner stripped it off in the Senate, then a narrower version was adopted in conference committee, expunging only UCW cases.

Even so, this is the most common weapons-related offense. In 2018, more than 13,000 Texans were arrested for UCW or some other weapons charge - about 48.3 weapons arrests for every 100,000 people.

Projecting backward, hundreds of thousands of people have likely been arrested for unlawfully carrying a weapon over the years, and now all those cases can be expunged.

Will they? That's another question. It's not automatic. People must file an ex parte petition with a district court to have their old conviction reviewed for possible expungement. So they'll need to hire a lawyer or possess the gumption to strike out on their own to tackle the job. Some will; most won't.

I'd love to see some advocacy group create a form ex parte petitioners could use to ask the court to expunge their old cases. (Hey, Texas Fair Defense Project and/or Civil Rights Corps, y'all up for this?) Prosecutors have historically fought expungement petitions - particularly on weapons charges - because they want to be able to use people's past crimes to seek enhancements or argue for harsher sentencing. But they don't have much grounds to oppose expungement in these cases; the law is pretty clear.

In the long, run, though, if legislators think these old convictions should be expunged, they should instruct it be done as a class. This provision will help a few folks but will mostly remain a symbolic gesture unless lawyers are paid to process the cases or expungement is made automatic.

Blakinger: Myriad pandemic updates, conflicting accounts on intra-prison transports, and one happy story to cheer you up

Our pal Keri Blakinger offered up another excellent and much-appreciated email update while Grits' blog content ramps back up. I couldn't be more grateful, thanks Keri!

Hey Grits,

Guess what I had for breakfast? Actual grits. For the first time in my life. I always skipped grits days in the prison mess hall but now I bought a bunch for my pandemic pantry. They are surprisingly good!

I was pleased to see your update and welcome your imminent return to the blogosphere! Here is one more get well and come back soon email and update.

As I’m sure you’ve noticed, the world is falling apart. So I’ve included eight depressing virus-related items, one longer discussion of an uncovered issue, and one short happy thing!! You have to make it to the end for the happy thing, no cheating!

Depressing Items

1. As coronavirus began making its way across the country a few weeks ago, people suddenly realized: Prisons literally banned a lot of basic disease prevention measures. With a lot of pressure some of this has changed, but generally, as of a few weeks ago prisons across the country banned alcohol-based hand sanitizer, made social distancing impossible, and did not allow face masks. (Relatedly, this is a good Stateman story from a few weeks ago about supplies/prisons.) 
2. There are a lot of aging and medically needy prisoners. This is a thing you have, of course, written about. And it came up a lot in the Pack litigation. But now it could be extremely problematic for the prisons and jails that are about to be overwhelmed with an illness that particularly puts medically compromised and aging populations at risk.
3. Given all that, prisoners are suing TDCJ. The attorneys on the case are - of course! - Scott Medlock and Jeff Edwards. Their names should be familiar to Grits readers because of the air conditioning and hepatitis C lawsuits. FWIW, there are a lot of corona-related lawsuits out there across the country, but most of the ones I’ve seen seem to be about release. This one is about conditions; i.e., they’re asking for supplies like hand sanitizer and measures like social distancing, not arguing that they should get out.
4. Speaking of release, everyone from experts to advocates to law enforcement officials to editorial boards has been advocating for jail and prison releases as a way to minimize the spread behind bars. The exact mechanics vary but the Galveston jail population is down 20 percent, Travis County is down some 600 people, and Dallas County - where 20 inmates have tested positive - is down a few hundred.
5. In addition to f***ing up the jails, prisons, courts and every aspect of life in general, the coronavirus is f***ing up death. Specifically, the pandemic has forced Texas to postpone three execution dates and seems likely to force the state to call off more. It’s also slowing down litigation, investigations and clemency efforts, as well as delaying trials, hearings and argument. Maurice Chammah and I quote your beloved podcast co-host Amanda Marzullo in our coverage of it.
6. The state is actively fighting to keep people in jail. First, Ken Paxton - himself a felony arrestee out on personal bond - filed to intervene and prevent the possible release on personal bond of 4,000 Harris County inmates who he said would be able to “roam freely and commit more crimes during the ongoing COVID-19 pandemic.” Then, the governor stepped in and did an executive order banning use of personal bond for anyone with any current or prior violent charge. The misdemeanor judges here in Harris County DNGAF. The felony courts are a little more complicated, as Gabrielle Banks and frenemy Sinjin report.
7. Speaking of death, a lot of people are buying guns. Federal background checks for gun sales are way up over last month, Ted Oberg reported. This is exactly not at all surprising - though the fact that in Texas gun stores have stayed open and abortion clinics were closed seems to have raised some eyebrows.
8. We all know short-term fluctuations in crime aren’t necessarily indicative of anything, but FWIW crime is down. I guess it’s hard to burglarize when everybody is at home. But at the same time, police are worried about seeing an increase in child abuse and domestic violence in the coming weeks. (In Dallas, the CBS affiliate already reported that happening more than two weeks ago, and Houston Public Media wrote about it this week.) I’m sure that’s only one of many awful, terrible things to come. Sorry this is the world you’re coming back to Grits, things got fucked up while you were gone!

The Longer Discussion:

The Texas prison system was slow to give employees access to protective gear and to halt inmate transfers, both practices that officers and advocates worried would create health risks during a pandemic that has already made its way into the state prison system. (As of Sunday evening, 18 inmates and 25 TDCJ staff had tested positive and some 3,700 prisoners were on medical restriction.)

Typically, hundreds of prisoners across the state are moved around every day, and there are more than 200 transport officers whose jobs are dedicated to making that happen. Sometimes the moves are for medical reasons, but other times it’s for court appearances, in preparation for release, to go to a unit that offers a specific type of program. The moves - often in the wee hours of the night - are stressful for everyone involved, and typically involve being chained to another person and loaded onto the white prison buses zipping up and down I-45.

But in the era of social distancing, that poses a clear safety risk - both because of the forced proximity and because of the possibility of spreading disease across the system through asymptomatic carriers. TDCJ - like every other prison system in the country - has already cut off visitation and programming, as well as attorney visits and in-person parole board interviews. But the continued need for prisoner transports has been a source of some tension. 

Even after officials in late March said the agency had stopped all but medical transports, officers repeatedly said that wasn’t true. At one point, it broke out into a little spat on Facebook between the Texas Correctional Institute Facebook page, a group run by TDCJ officers involved in a nonprofit by the same name.

“Texas prisons are breeding grounds for spreading COVID-19 with non medical chain buses running daily and staff lacking proper PPE such as N95 mask,” Texas Correctional Institute (TCI) posted on March 26, linking to an article titled: “Could Prison System Contribute To Increased Spread of COVID-19?”

“You are wrong,” spokesman Jeremy Desel wrote in response. “There are only medically necessary transfers occurring along with intake from unaffected counties. There are also significant supplies of N-95.”

The TCI main page and numerous individual posters disputed that, as did several officers I interviewed. 

Later, when I called Desel about it for a story, he clarified: Almost all transports had ceased, but sometimes people have to be moved from one unit to another to make room for other medical-related transports. The officers I’ve talked to still say that’s understating what’s going on, and point out that the agency is still accepting new intakes from counties and out-of-state. For example, officials in Louisiana confirmed sending two people to Texas last weekend - and both are now in custody of TDCJ. 

So it appears that even as the governor was drafting an last weekend’s executive order for any travelers from Louisiana self-quarantine, Texas was taking in new inmates freshly transported from a part of the country with one of the highest coronavirus infection rates in the country. It’s unclear if they’re parole violators or if they were picked up by a local law enforcement entity before ending up in TDCJ.

In recent days, officers have confirmed that internal transfers are down significantly, but the allegation that too many happened for too long is not unique to Texas: Across the country, other prison systems - particularly the BOP - were seemingly reluctant to slow down internal moves, facing some criticism for it.

Another source of criticism for prison officials in Texas and elsewhere has been the reluctance to allow the use of masks - both by prisoners and staff.  In the federal system, some units have issued them to prisoners and in New York they’ve (as of last week) been allowed for corrections staff and some prisoners. In Nebraska, last week the agency mandated masks for employees (and the prison director posed in one to make the point). Here, officers and union leaders voiced concerns over the past week or so about the lack of access to masks, which many report they have were not permitted to wear at work. 

“We’re already 4,800 officers short, we can’t afford a mass exodus because they’re not provided PPE,” AFSCME Texas Corrections president Jeff Ormsby told me. “The CDC is recommending a mask anywhere you go now, but we should be letting the staff wear them in prison.”

Late Sunday, that changed. Now, all medically restricted prisoners and all agency staff will be issued cloth masks. And, prisoners at the garment factories are making more. 

On the one hand, this raises questions as to whether the agency could have acted sooner - but on the other hand, it’s hard to fathom what a really successful intervention might look like in a prison system. In the absolute best case scenario, meaningful social distancing is just not possible in most housing areas, and so many of the other mitigation efforts pose significant logistical challenges. So what’s next? The union is pushing for a systemwide lockdown. So far, I haven't heard any official support for that idea but with the pace of this news cycle - who knows.

The Good Thing

PAM COLLOFF HAS A HAPPY STORY. Everybody hearts Pam, and I especially heart her right now for providing a rare, rare moment of hope when everything seems to be on fire. I could go on but you’ve read enough words by now so here it is: Joe Bryan got out. ENJOY. Congrats to Pam, and welcome home to Joe.

What the judges want: Judicial Council recommendations to the #txlege

The Texas Judicial Council last month issued its recommendations to the Legislature on criminal-justice reform heading into the 86th session in 2019. Let's take a look at what judges are asking of the Texas Lege.

'Data! Data! Data! I cannot make bricks without clay'
Although listed under the heading for opioids, a recommendation to improve statewide collection of case-level court data deserved to be highlighted more prominently. The Council wants Texas to  begin collecting:

relevant case level data from all court levels including magistrates, to generate more timely and detailed information to support policy, planning, management, and budget decisions for the justice system. The collection of the relevant case level data should be fully funded by the Legislature.

This recommendation would have policy making implications well beyond the opioid crisis, and would benefit legislators themselves as much as anyone. As Grits mentioned earlier this week, you can't manage what you can't measure. And there are large swaths of the justice system that cannot be managed because it's impossible to talk with precision about exactly what's happening on the ground. Case-level data could help change that. (MORE: A helpful commenter pointed out the Council put out a separate set of recommendations specifically addressing data issues; see here.)

Establish an Opioid Task force
Yawn. Outside of Houston, meth is the bigger problem in Texas. And solutions on overdose deaths are the same no matter which drugs we're talking about.

'Pretrial Decision Making Processes'
The Judicial Council recommended eight different items on bail reform, providing a comprehensive roadmap for the Legislature to shift from money bail to risk assessments when determining pretrial detention. The list includes both statutes and constitutional amendments necessary to implement the plan, with rulemaking at the Office of Court Administration to flesh out the details within a "sufficient transition period."

In the Judicial Council's vision, all defendants would be assessed for potential risk with a validated instrument developed by the Office of Court Administration. The state constitution would be amended to a) create a presumption that defendants will be released on personal bond and b) allow judges to detain defendants they deem to be a public safety risk regardless of their ability to pay.

They want the Legislature to help fund pretrial supervision as well as training for magistrates and others making bail decisions. They also want the Lege to require data collection on pretrial-release decisions as part of the reforms.

Getting the Governor Out of Specialty Court Oversight
This one is interesting. Under Gov. Rick Perry, specialty courts in Texas blossomed. Today, "Over 190 specialty court dockets operate across Texas, including DWI court, drug court, family drug court, veterans court, mental health court, and commercially sexually exploited persons court," with the Governor's Criminal Justice Division the largest funder. But this was the prior Governor's priority, not this one. So it's little surprise that the Judicial Council might suggest that "certification and oversight" of specialty court programs be shifted from the Governor's CJD to the Office of Court Administration, which answers more directly to the judiciary.

The Council noted that current practice in Texas is out of step with national norms; only one other state places oversight authority for specialty courts with the Governor.

Firearms
This was clearly their most tentative proposal. Of all the things judges might request to stop mass shootings, asking the Legislature to fund better data entry into the national background check system is one of the least controversial, least bold, and least-likely-to-make-a-big-difference reforms you might name. But it's the only thing they could come up with.

No IAC Fix Suggested

One item Grits noticed was conspicuous by its absence. On the Court of Criminal Appeals, Judge Elsa Alcala has been calling for a legislative fix on ineffective assistance of counsel, which for the most part can only be challenged via habeas-corpus writs where defendants do not have access to an attorney. After four US Supreme Court justices raised the same issue in a recent dissent, Grits thought the subject might secure the Judicial Council's attention. I don't know whether they considered it or not, but clearly it didn't make the final cut.

Texas AG: Carrying a gun doesn't justify 'Terry' frisks

Texas Attorney General Ken Paxton has signed onto an amicus brief aimed at the US Supreme Court to argue that carrying a firearm in a state where that's legal does not justify a "Terry frisk" based on officer safety. Here's the full text of his press release:

Attorney General Ken Paxton yesterday joined West Virginia’s amicus brief in Robinson v. United States along with Indiana, Michigan and Utah in the United States Supreme Court to protect against unjustified frisk searches occurring on the suspicion that a citizen is armed. The basis for this search places a burden on the Second Amendment right to carry a firearm. 

In 1968, Terry v. Ohio determined that a law enforcement officer may both stop and frisk an individual when “specific and articulable facts” lead an officer to reasonably believe criminal activity is occurring. This search is justifiable when the officer believes the detained individual “is armed and presently dangerous to the officer or others.” However, an en banc Fourth Circuit recently interpreted Terry to require only a reasonable suspicion that the individual is armed. This interpretation allows officers to justify a frisk search solely on the suspicion of possessing a weapon during a lawful stop, regardless whether there is a reasonable belief that the individual is dangerous. 

“The Fourth Circuit interpretation places an unlawful burden on Second Amendment rights. The Constitution plainly guarantees law-abiding citizens the right to bear arms, whether through open or concealed carry,” said Attorney General Paxton. “We must ensure the Court continues to protect the constitutional rights of law-abiding citizens.”

The issue to be decided in this case:

Whether, in a State that permits residents to legally carry firearms while in public, a law
enforcement officer’s belief that an individual stopped during a lawful Terry stop has a firearm on his or her person provides a sufficient basis — standing alone — for the officer to conclude that the armed individual is “presently dangerous” and thus allow the officer to lawfully engage in a warrantless “frisk” of that individual.

The implications are significant: Possibly carrying a gun is the main justification for Terry frisks, so if that's no longer sufficient, it could virtually end the practice.

Ken Paxton may be the most unlikely Fourth Amendment advocate imaginable, which may explain why he only reached these questions when a Second Amendment right was at stake.

NRA afraid to confront 'real threat' to Second Amendment

Bravo, Radley Balko!

[The National Rifle Association] is the group that claims to be the only thing preventing the government from obliterating the Second Amendment, yet they’re noticeably quiet about the people doing the most violence to the Second Amendment — the armed, badge-wearing government employees we call law enforcement officers. For all the NRA’s dire warnings about government gun confiscation, the real, tangible threat to gun-owning Americans today comes not from gun-grabbing bureaucrats but from door-bashing law enforcement officers who think they’re at war — who are too often trained to view the people they serve not as citizens with rights but as potential threats. Here, the NRA just doesn’t want to get involved. ...

[T]he NRA’s allegiance to law enforcement has made the NRA indifferent to the ways that police tactics, use-of-force policy and police training violate the rights of gun owners (and those perceived to be carrying guns). And as with most bad criminal-justice policy, the laws, policies and training disproportionately violate the rights of blacks and Latinos — and the NRA is indifferent to that, too. The group does itself no favors when its figurehead spouts lazy, racist dog-whistles; when its aforementioned record of criticizing ATF goes silent when the agency’s aggressive tactics are aimed at minority neighborhoods. 

Preach, brother!

Texas courts illegally jailing motorists for unpaid tickets, and other stories

Here are several more items which merit Grits readers attention even if I don't have time this week to turn them into independent blog posts:

• Check out a top-notch story from BuzzFeed, of all places, with the teaser, "People in Texas get thrown behind bars just because they can’t afford their traffic tickets. That’s a disaster for people who are already struggling. It’s also completely against the law." The article delivers as promised, read it.
• See video of an hour-long Texas Tribune festival panel on criminal justice. About half of it was spent on culture-war questions - gun control and the death penalty - and about half on subjects where there was largely bipartisan agreement.
• Grits disputes the premise behind this headline: How does one measure whether there's a "shortage" of police when crime is down? Maybe there's just the right number and they need to be diverted from wasteful activities like responding to false home burglar alarms.
• Is it okay for a judge to tell petitioners to F*%# off if they do it in Italian slang? The Commission on Judicial Conduct issued a warning to a Fort Worth JP for such behavior.
• I'd forgotten that, in addition to the new state data published on police shootings, the Houston PD earlier this year launched a database which includes historical data.
• See coverage of the disgraced Hill County Sheriff and two of his top managers who were convicted of tampering with government documents, claiming officers received training when they had not. 
• Contract negotiations between San Antonio and the union broke down because the city refused to drop a lawsuit challenging an "evergreen" clause that keeps the old terms going for ten years after their meet-and-confer contract ends. Good for Mayor Taylor. That's a terrible, antidemocratic provision they should never have agreed to in the first place. It pointlessly ties the city's hands.

More on blaming prosecutors for mass incarceration, or, Pfaff's pfigures pfit Texas' pfacts

When Grits wrote about a David Brooks' NY Times column the other day, I'd failed to make the connection that Prof. John Pfaff, whose name looks like he should hail from Pflugerville, is the fellow who wrote a series of posts on PrawfsBlawg in 2014 which I quite enjoyed critiquing the National Research Council report on mass incarceration. Part 1 looks at the over-emphasis on the drug war. Part 2 and Part 3 argue against assigning too much importance to longer sentences. And Part 4,  Part 5, Part 6, Part 7, Part 8, and Part 9 look at the role of prosecutors. Part 10 considers red herrings surrounding private prison debates. Check them out.

This morning Grits spent some time reading this recent law review article elaborating Pfaff's views.

Some critics of mass incarceration will find Pfaff's work quite challenging. If you're Michelle Alexander and you come to accept Pfaff's premise, it would require rethinking big chunks of your analysis and underlying assumptions. For Grits, though, his work pretty closely jibes with my own observations over the years.

While this blog only tracks Texas closely and Pfaff is reviewing national data, I find myself largely in agreement with his analysis, if not all of the conclusions David Brooks would draw from it. Pfaff disputed claims that mass incarceration is primarily caused by the drug war. Instead, he pins blame on county-level actors, specifically local prosecutors, whom he demonstrates have used their discretion and increased power (boosted through a combination of mandatory minimums, enhancement mechanisms, and drug-war era SCOTUS decisions scaling back the rights of the accused) to file felony charges ever-more frequently, even as crime declined.

Grits has made similar calculations before for Texas with similar results. The rate of convictions here far outpaced arrests or crime rates since the turn of the century and the number of new direct sentences to prison continued to increase even as crime declined. So Pfaff's thesis mostly matches Texas' experience, in this author's view.

Pfaff discounts the drug war as a cause for mass incarceration to an extent Mr. Brooks perhaps overstates. There's no doubt the drug war accounts for some portion of mass incarceration, which Pfaff doesn't dispute. In Texas, the 16% of state prisoners with a drug offense as the primary charge would be about 24,000 prisoners, which is nothing to sneeze at. But the drug war accounts for an even greater portion of local arrests and disproportionately fills up local jails, court dockets, and probation rolls. And the contribution of drug charges to expanding the number of people with criminal records is greater than those offenders' representation in prison, where length of stay for user-level possession remains short. For police, county jails, and probation departments, the drug war remains a bigger driver of both volume and cost.

Even so, I agree with Pfaff that the empowerment of prosecutors to increase the number of felony convictions, even when crime declines, is a core driver of mass incarceration and remains the greatest barrier to rolling it back. A recent letter from the San Antonio city manager to uniformed police officers included the following data

Comparing 2015 YTD (year-to-date, Jan. 1 through May 23) to 2014 YTD:

• Violent crimes are down 0.3%
• Property crimes are down 10.5%
• Drug arrests are up 8.1%
• Weapons arrests are up 18.8%

These numbers show how, when actual crimes decline, it's still possible to boost arrests and convictions in America's 21st century justice system. Weapons arrests are mostly targeting people with criminal records in possession of a firearm, not people who fired a gun, while drug arrests are far and away mostly for simple possession, and mostly for pot. Previously convicted felons and drug addicts form a pool for potential arrestees whose offenses are basically status crimes and thus can be prosecuted even if there's no victim or harm.

Prof. Pfaff's right to look to county actors to explain mass incarceration. If Grits were to fault his analysis at all, it would be that he doesn't dig deep enough into county-level dynamics, where policing priorities play as meaningful a role as prosecution decisions and the drug war, which he discounts as a major driver of state-level incarceration trends, arguably has a more important impact than his writing portrays.

MORE: Prof. Pfaff responded to this post in a series of Tweets. Well done. The reason Grits doesn't Tweet is that I've never been good at making arguments in 140 character chunks, which he does quite ably.

Kangaroo court in Waco: No reason needed to arrest packing pastor with CCL

Gun ownership is on trial in Waco, so why aren't the NRA and all the open-carry advocates going nuts over what's happening regarding prosecutions from the the Twin Peaks biker massacre?

In McLennan County, visiting Judge James Morgan ruled after an examining trial that there was sufficient cause to have arrested a 65-year old concealed carry permit holder who wasn't wearing a biker cut but a Christian t-shirt (he's chaplain to the Bandidos and two veterans groups) because he was carrying legal personal weapons. The judge declared there was probable cause to support an arrest even though no police "officer could offer evidence that Yager conspired to commit murder, assault or any crime that day" Like everyone else arrested in the episode, Yager's bail was initially set at $1 million.

An earlier examining trial found probable cause to arrest a Brenham couple even though police agreed they were "merely present at a murder" that there was no evidence they committed.

Legality aside, how is it that a Texas judge can declare police don't need a reason to arrest legal Christian gun owners and there's not immediately an army of Second Amendment protesters beating down the DA's door? The silence from that wing of the political spectrum on this issue is deafening.

Regardless, the law doesn't seem to matter in Waco anymore. These are kangaroo courts and a flat-out embarrassment to the state.

RELATED: Why won't authorities say how many in Twin Peaks massacre were shot by cops?

Barney Fife gets demoted following one-man shoot-out

Mclennan County District Attorney Abel Reyna has demoted his First Assistant, Michael Jarrett, after he fired a pistol in his office, shooting out a window. Though it's a Class A misdemeanor to fire a handgun within the city limits of a town the size of Waco, no one should be surprised that Reyna declined to prosecute one of his own. The most pathetic part of the story, though, was that the DA launched an aggressive investigation to discover who leaked a photo of the shot-out window to the Waco Tribune Herald. The paper reported:

After the shooting incident, an internal office investigation was launched to try to determine who sent a photograph of the shattered window to the Tribune-Herald, courthouse sources said.

Prosecutors’ phones have been examined and prosecutors have been interviewed by Reyna’s staff in an effort to uncover who sent the photo to the newspaper.

Reyna said Monday the investigation was not conducted because the photo appeared in the newspaper. He said it was conducted because the photograph “jeopardized the security of this entire office and was a huge security issue.”

Grits calls "bullshit." The notion that it created a "huge security issue" is nonsensical. (See the picture in question above.) What it created was a huge embarrassment. Or maybe it was McLennan County voters who did that when they installed Reyna and Co. in the first place.

RELATED: Time to implement the Barney Fife rule at McLennan DA's office.

Time to implement the Barney Fife rule at McLennan DA's office

This is too funny not to share: Readers may recall that McLennan County District Attorney Abel Reyna hired one of John Bradley's lieutenants, Michael Jarrett, to be his First Assistant (his second choice) after he entered office on the back of a demagogic tuff-on-crime campaign, declaring he wanted to model his office on the former Williamson County DA. Yesterday Jarrett, doing his best Barney Fife impersonation, accidentally fired a Glock .40 caliber pistol in the office while he and another prosecutor - both concealed carry licensees - were fooling around with his subordinate's new handgun. Luckily, no one was hurt. Reported the Waco Tribune-Herald:

First Assistant District Attorney Michael Jarrett said he asked fellow prosecutor Landon Ramsay if he could see Ramsay’s new Glock .40-caliber pistol about 2 p.m. Monday.

Jarrett said he asked Ramsay if the gun was loaded and was told it was not. Jarrett pulled back the slide, he said, to double-check if it was loaded and didn’t see a bullet slide into the chamber.

He aimed the gun at a window in Ramsay’s office and pulled the trigger. The bullet shattered the window and struck the brick exterior of the adjacent vacant downtown county jail, Jarrett and McLennan County Chief Sheriff’s Deputy Matt Cawthon said.

No one was injured, which Jarrett said was because he was careful to point the pistol out the window at a brick wall.

“I was being extremely safe,” Jarrett said. “I inspected the gun even after I was told it was not loaded, but it was just an unfortunate accident.”

It's hard for anybody above a certain age to read this story and not think of The Andy Griffith Show's Barney Fife (played brilliantly by the late Don Knotts), who famously was so inept and accident-prone with his firearm that the sheriff would only allow him to carry a single bullet and required him to keep it in his shirt pocket. At least, though, when Fife's weapon famously discharged in the office, he only shot up the floor. Reyna, who normally does not speak to the local newspaper, limiting constituent communications to his Facebook page (which presently doesn't mention the episode), told the Trib's Tommy Witherspoon, “I am thankful that no one was hurt, but it doesn’t change the fact that I am extremely angry about it, and I will deal with it accordingly by disciplinary action or by implementation of policy, or both.”

Apparently shooting a gun in the office at the McLennan DA isn't a firing offense. Hard to believe prosecutors need a "policy" to know not to fire a gun in the office, but if you're going to implement one perhaps it should be the Barney-Fife rule: One bullet apiece, boys, and keep it in your pocket.

MORE: A commenter ("Aunt Bee") pointed out that in municipalities with more than 100,000 population, it's a Class A misdemeanor to fire a handgun within the city limits. Waco's population topped 124K in the 2010 Census. Anyone wanna guess whether the First Assistant DA will be prosecuted under that statute?

Mug-shot media, tickets in school, and yet more discovery debate: Previewing Senate Criminal Justice highlights

Having gone through highlights from the House Criminal Jurisprudence Committee agenda on Tuesday, March 26, let's turn our attention to the Senate Criminal Justice Committee agenda on the same day. Regular readers know Grits will be paying special attention to SB 786 by Sen. Juan "Chuy" Hinojosa, the companion to HB1608 which would require law enforcement to secure a probable-cause based search warrant to obtain cell-phone location data. But here's a look at what else is on the list:

Regulating mug shot media
Sen. Tommy Williams has a bill up regulating media outlets that engage in the publication of mug shot and criminal history information, requiring them to publish accurate information and to correct errors or outdated information, giving them a "duty to disseminate complete and accurate criminal history information." Also, such entities could not charge a fee for removing someone from their website. Good bill.

Limiting Class C tickets for school discipline
Chairman John Whitmire's SB 1114 would create alternative, non-criminal sanctions for school misbehavior instead of writing Class C misdemeanor tickets, a topic the senate dean has been aiming to change for some time.

Gun bill trifecta
There are three minor gun bills including one by Sen. Hinojosa requiring Texas licensure for concealed carry permit holders from other states once they establish residency here, and another by Sen. Craig Estes clarifying the law on brandishing a firearm to require a proactive display of a weapon in a way calculated to cause alarm. A third, by Sen. Royce West, would expand the scope of the offense of "unlawful transfer" of a weapon.

Bailing out
A pair of bills related to easing requirements on bail bond companies made the list. SB 876 by Patrick would let surety bond companies get out from under old liabilities if a skip is not caught for five years after their last hearing, a requirement the bill analysis calls "improper government overreach." Another bill by the chairman would give defendants who don't show up for their hearing an extra 72 hours to show good cause before the bond company forfeits the money they put up.

Discovery reform, redux
As in the House, the debate over discovery reform may be among the most contentious of the day as the committee considers Rodney Ellis and Robert Duncan's SB 1611.  The defense bar has dug their heels in but these folks are arguing over tiny margins of trial turf for a profession that pleas out 97% of convicted criminal clients. Lots of folks will be scurrying back and forth between committees over this issue.

Committees begin to hear criminal justice bills

Texas legislative committees are finally beginning to consider bills, with the first criminal-justice related legislation up for hearings today and tomorrow.

This morning at 8:30 a.m., the House Insurance Committee will hear HB 361 by Anchia which would expand the ability of exonerees to purchase health insurance at state rates to their spouses and dependent children. Anyone with a family knows that having everyone covered under the same insurance policy makes lots of sense, and since exonerees are paying for the insurance out of their own pockets, there would be no fiscal impact. This is a small bill, but it's surely important to exonerees, a couple of whom I believe are coming to town to testify.

Later on, at 10:30 a.m. or after the full House adjourns, the Criminal Jurisprudence Committee will consider legislation for the the first time, though only three bills are up in their first session.

HB 61 by Guillen is an enhancement for arson, boosting penalties from a second to a first degree felony for setting fire to an agricultural facility or a state park. Readers already know how I feel about enhancements: If the prospect of a second degree felony won't deter someone, changing it to a higher penalty - that most offenders will never know was altered until they're charged - won't increase that deterrence. The bill's  "fiscal note" was deemed insignificant, though that's not really true. With prisoner health costs alone at more than $9 per day, any extra inmates incarcerated for longer stretches will cost the state more money in the long run.

HB 153 by Taylor alters definitions in the law banning sale of firearms to intoxicated persons, deleting a more general definition and adopting the same one used for drunk drivers, including a BAC level of .08. The change seems mostly nonsubstantive, though it slightly broadens the scope of firearm sale prohibition. It's unclear to me how gun sellers are supposed to know if someone's BAC is at .07 vs. .09.

HB 70 by Fletcher is perhaps the most substantive of the three, changing what attorneys refer to as "The Rule" to allow one, designated prosecution witness who may be in the courtroom while others testify. Traditionally, witnesses aren't supposed to be in the room so their testimony won't be tainted by what they hear from others. If the designated witness getting to attend the hearing is a police officer, that person would be forbidden from wearing their uniform in court. The defense side, of course, would not be afforded the same privilege. Houston defense attorney Paul Kennedy last session argued that the bill is "a solution for a problem that doesn't exist. The only purpose is to make it easier for the state to obtain convictions."

Tomorrow, the House Corrections Committee will hear bills for the first time. They too have just three bills on the agenda.

HB 144 by Raymond expands the scope of "mental examinations" of juvenile offenders to include diagnosing substance abuse.

HB 431 by Riddle (which seems like it ought to have a fiscal note, though as of this writing one hasn't been posted) would expand the categories of offenders ineligible for release under "mandatory supervision," a category which only includes offenders convicted many years ago before the Lege modified "mandatory supervision" to become (oxymoronically) "discretionary mandatory supervision" if the offense involved a child victim. That's already the case for the most serious offenses. Riddle's bill would expand the prohibition to second and third degree felonies, forcing TDCJ to incarcerate those individuals longer. Hard to see how that wouldn't have a budget impact.

HB 634 by Farias would require TDCJ to verify inmates' veteran status via lists held by the Health and Human Services Commission and assist them (presumably upon reentry) with applying for benefits for which they may be eligible from the federal Department of Veteran Affairs. The fiscal note says there would be one-time automation costs to perform this function but suggests the duties could be absorbed in the agency's current budget.

And of course I'd already mentioned that the House Transportation Committee today will consider bills related to banning texting and/or talking on a cell phone while driving.

The game is afoot!

Bigger safety threat: Guns or violent video games?

A recent opinion poll (pdf) of Republican primary voters posed the question, "What do you think is a bigger safety threat in America: guns or violent video games?" Among respondents, an amazing 67% said video games, 14% said guns, 19% said not sure. The sample size was rather small (just over 500), but still, that's an enormous difference.

My personal belief is that, in fact, the opposite is true: IMO video games likely reduce crime because of the incapacitation effect of young males spending large amounts of time playing them. As a 2011 study on the subject put it, "Even if a gamer is predisposed to being more aggressive due to gaming, he can express this aggression only over a shorter time non-gaming period." Or in layman's terms, the kid who spends hours perfecting his skills at Grand Theft Auto has less time to spend stealing my car.

At the macro-level, too, the threat from violent video games falls flat. Max Fisher at The Washington Post reported in December that, "the United States has the highest firearm murder rate in the developed world. But other countries where video games are popular have much lower firearm-related murder rates."

'School shootings, no matter how horrific, do not justify creating an Orwellian surveillance state in America'

Ron Paul, of all people, expressed views similar to my own "pox on both their houses" perspective on the recent policy debates in the aftermath of the Connecticut elementary school shootings: “Predictably," he declared, as reported by Politico, "the political left responded to the tragedy with emotional calls for increased gun control,” suggesting that, “This is understandable, but misguided. The impulse to have government ‘do something’ to protect us in the wake of national tragedies is reflexive and often well intentioned. … But this impulse ignores the self evident truth that criminals don’t obey laws.” Thank you!

OTOH, Paul blasted the NRA's proposal to place armed police in every school:

He said the federal government should not try to “pursue unobtainable safety” with state-sanctioned security and claimed Democratic and Republican lawmakers have “zero moral authority to legislate against violence.”

“This is the world of government provided ‘security,’ a world far too many Americans now seem to accept or even endorse,” Paul said in a statement on his website. “School shootings, no matter how horrific, do not justify creating an Orwellian surveillance state in America.”

He continued: “Only a totalitarian society would even claim absolute safety as a worthy ideal, because it would require total state control over its citizens’ lives. We shouldn’t settle for substituting one type of violence for another.”

The proliferation of legal guns in America over the last several decades makes their prohibition as fanciful as the prohibition of alcohol or pot. Yes, "we could try." But you'd fail, just as the drug war has failed, just as alcohol prohibition failed. This isn't Europe or Japan, where the populace was disarmed by totalitarian states, or else under martial law after a war, so that strict gun control could be imposed from scratch. In the US, and certainly Texas, it would be many decades before the black market exhausted its supply. The only upside would be for the private prison companies, who are always looking for new categories of citizens to criminalize and incarcerate.

By the same token, in an era when the Obama Administration considers civilian casualties acceptable collateral consequences of extra-judicial executions (read: drone strikes), I couldn't agree more that “Democratic and Republican lawmakers have 'zero moral authority to legislate against violence.'” And his comment about the NRA proposal "substituting one kind of violence for another" could have come straight from Gandhi or Dr. King. Paul's statement expanded on the theme: "Real change can happen only when we commit ourselves to rebuilding civil society in America, meaning a society based on family, religion, civic and social institutions, and peaceful cooperation through markets. We cannot reverse decades of moral and intellectual decline by snapping our fingers and passing laws." Amen, brother. Preach!

I always worry when government makes policy in reaction to some specific, rare event like the mass shooting of first graders. There's an old saying, when you hear hoofbeats, think horses, not zebras. The massacre in Connecticut was a zebra, one cannot reasonably ban everything with hooves in response.

Personally, I find US and Texas gun laws both over- and under-restrictive, in an almost schizophrenic kind of way. For example, it's no doubt too easy for folks diagnosed with a serious mental illness to acquire firearms, and the legal framework governing mental illness is conflicted and generally underdeveloped. We could do much better at getting those in need access to mental health services and supervising, whether in corrections facilities, hospitals, or in the community, people who pose a serious risk of violence when off their meds. Intermediate levels of supervision - perhaps including greater use of preemptive civil commitments - could support compliance with treatment protocols on the front end instead of punishing the mentally ill after something bad has happened. But all that would require a community mental health infrastructure that today doesn't exist. In most places, the county jail is now the area's largest mental health provider. OTOH, if you want to talk about "gun control" aimed narrowly at those with serious mental illness, you'd probably get a lot less pushback than for any kind of general ban.

At the same time, the universal ban on felons possessing firearms ends up sending a lot of folks to prison who've committed no other recent offense, and only a subset of those people (Texas releases more than 70,000 felons from prison every year) are so dangerous they merit a lifetime ban on firearm ownership, as federal law prescribes. Meanwhile there are some misdemeanors, including family violence, that probably merit elimination of gun rights but don't. (In Texas, a domestic violence conviction means you can't own a gun for five years.) Misdemeanors vs. felonies is an arbitrary line.

Certainly I believe the law can be changed in ways that would reduce the number of gun deaths. As our e-pal Dan Kahan recently opined, the most immediate and effective method of reducing the gun death total - though it has nothing to do with lone-gunman school shootings - would be to legalize, tax and regulate marijuana and cocaine. A large proportion of gun deaths - not the least of which are the 60,000 or so in northern Mexico over the last six years - relate to the black-market drug trade. You don't see the makers of Samuel Adams lager engaged in gun battles with Anheuser Busch.

However, there's no public safety benefit from criminalizing common activities and uses by everyday gun owners, especially because there are too many of them. (Long-time readers may recall Grits worked with the Texas State Rifle Association and even authored a public policy report in support of legislation to allow legal gun owners to carry a weapon, stowed securely, in their personal vehicles.) But neither are more guns inherently a good solution. Giving teachers guns to keep in classrooms full of mischievous kids, for example, as has been suggested in Arlington, is a recipe for disaster.

The all-or-nothing debate over guns has turned into another hackneyed, culture-war flashpoint, obscuring more moderate, selective policies aimed at mitigating specific, underlying causes of gun violence. Ron Paul, I fear, is the wrong messenger; the public is so used to ignoring him it's got to be second nature by now. And Grits thinks government should probably play a bigger role in this matter than the Congressman would countenance, along the lines described above. But I'm glad to hear somebody say in the wake of the Sandy Hook tragedy that more, harsher criminal laws aren't the only or even the best solution.

AG correctly interprets bad law: Open Records Act nostalgia and law enforcement records

The Attorney General's open records division ruled that the state does not have to release security footage of two Brownsville police officers shooting an eighth grader at a middle school . Reported the Brownsville Herald ("Ruling: Security footage should not be released to public," Oct. 17):

Jaime Gonzalez Jr., 15, an eighth-grader at the school, was killed by two Brownsville police officers in a school hallway after he pointed a weapon at them and refused to put it down, despite being ordered repeatedly to do so. The weapon was later determined to be a pellet gun.

John Bussian, the attorney who handles First Amendment issues for AIM Media Texas LLC, the parent company of The Brownsville Herald, said the AG’s office issued its ruling on an issue that was not even addressed in the request made by the DA’s office to keep the video confidential.

“Unfortunately, the Attorney General found another excuse not to allow public access to this important material that would remove any suspicion about what happened. The downside of the ruling is that whenever a juvenile dies the public will never have access to the records of the surrounding circumstances,” Bussian said.

In a letter to the state dated Aug. 28, the DA’s office argued that since no charges were filed in the case, the video need not be made public.

Despite the fact that the court perhaps unnecessarily relied on arguments, apparently, that the state did not make to come to its decision, from my own understanding of the Public Information Act, Grits reluctantly agrees with the court ruling. That's because I think the court correctly interpreted the current statute, which leaves release of such information to the discretion of  the agency in cases where there's no criminal prosecution. But as a long-time user of the Public Information Act, né the Open Records Act, I also understand that before 1996, those records would absolutely have been public information, and I'd like to see the Legislature reverse the changes in 1996-97 spawned by the Texas Supreme Court case Holmes v. Morales, and at a pivotal moment codified the following session into state law. State Rep. Harold Dutton has heroically carried legislation in the past that would perform that good-government mitzvah, but his bill deserves bipartisan sponsorship. Right now, departments pick and choose when they'll release such information based on their own, short-term public relations goals.

A quarter-century ago when I began using it in earnest, the Texas Open Records Act was a mighty tool for justice, allowing the weak to challenge the powerful in ways that today have been diminished or sometimes shut down entirely, particularly when it comes to criminal justice. Back then, when the law was less than two decades old, many of the Open Records Act's original proponents were still at the Texas statehouse to defend it from attack, while then-Attorney General Jim Mattox was building up what, in retrospect, was the most pro-transparency record of any Texas AG, ever. Looking back, though I couldn't have known it at the time, those were the salad days of government transparency in Texas. Today, not so much.

About half of all open-records requests, if we are to judge from the proportion of cases sent to the Attorney General for review, relate to law enforcement and/or criminal cases, so the criminal-justice system is one of the main things the general public actually wants to know about. But as Grits has related before, the courts, the Legislature and a series of lame Attorneys General have conspired to gut the open records act (now annoyingly rebranded the "Public Information Act"), particularly as it regards records related to law enforcement and the criminal justice system. This is an example of a correct court decision interpreting a law  that gave too much discretion to law enforcement. But it hasn't always been thus; they're interpreting a section of the Public Information Act, section 552.108, which was rewritten in 1997, just a few short years before the GOP took control of the Texas House and Senate. The Lege could go back to the Mattox-era interpretation - as Rep. Dutton has proposed - if GOP champions existed to take up the mantle for transparency.

There's a lot of new blood coming into the Texas Lege, particularly in the House, where perhaps a third of the members will be freshmen or sophomores, and for the most part their views (read: "voting patterns," not espoused views) on open-records matters remain a mystery. Some may have never seriously considered the subject. In the Senate, long-time Public Information Act custodian Jeff Wentworth, who was generally a barrier to any and all pro-transparency reforms and an ally of law enforcement (and other) interests intent on weakening the act, was defeated in the primary, so that body will need to find a new go-to senator (or at the most, two) on the issue. Whoever that senator might be, their priorities will significantly influence whether that body will take a pro-government or pro-citizen requestor approach. Given that uncertainty, Grits cannot begin to guess how (or whether) the Lege might consider open records issues next session, and if so, whether they'll be pro-government or pro-transparency. I just know the status quo could use some shaking up and government transparency could use some new champions in both legislative chambers. Be on the lookout and let me know in the comments if you hear of any.

MORE: From the Corpus Christi Caller Times.

GEO Group employees implicated in straw purchases of guns for cartel

Good heavens! Reported AP:

Six of the seven Laredo residents who pleaded guilty to illegally buying guns Monday worked at a federal detention center.

Federal prosecutors say the six worked at the Rio Grande Detention Center in Laredo. The center is privately managed by The Geo Group and holds federal detainees awaiting trial for the U.S. Marshals Service. The seventh was a close friend of one of them.

Prosecutors alleged that in 2011, the group acquired 16 guns, mostly semi-automatic rifles of the sort preferred by organized criminal groups in Mexico. In the purchases, they indicated they were buying the guns for their own use. However, they were being paid to buy them for someone else, a tactic known as straw purchases.

Read more here: http://www.sacbee.com/2012/09/10/4806787/6-detention-center-employees-guilty.html#storylink=cpy

Fast and Furious, Rick Perry's chutzpah, and the politics of executive privilege

Governor Rick Perry today compared Barack Obama to Richard Nixon for using executive privilege to conceal documents in Congress' "Fast and Furious" investigation, which takes a lot of chutzpah considering Perry's record on transparency.

Said Perry to CBS' Bob Scheiffer, "If this President over the past three and a half years had made any effort to secure the border instead of running operations like Fast and Furious ..." then he trailed off into his Nixon comparison without finishing the thought. It's a bizarre framing of the issue since the Obama Administration has beefed up border security (a buildup, incidentally, that this blog has criticized) more than any time since Woodrow Wilson sent the Army there in 1916.

Grits must admit, I'm befuddled at how ineptly the Obama Administration has handled the "Fast and Furious" investigation by Congress. In politics, it's often not the act itself that gets you in trouble but the coverup. The politically smart thing to do would have been to release everything, continuously point out the bungled undercover operation was planned and launched during the Bush Administration, fire an ATF administrator or three, and put the issue as quickly as possible in the rearview mirror. The most logical reason for NOT doing that is in fact the one cited by Attorney General Eric Holder and dismissed out of hand by his partisan critics - the possibility of revealing undercover agents and sources. (Ironically, President Bush used executive privilege in order to cover up the outing of an undercover agent, while Obama is now being criticized for using it to keep operatives from being outed.)

To be clear, there's no doubt that Fast and Furious was one of the most screwed up undercover operations ever, with the ATF targeting cartel operatives who were also paid FBI informants. And it was a bipartisan screwup, spanning administrations. Once hundreds of deaths, including a US Border Patrol agent, were linked to guns lost in the operation, the boondoggle reached epic proportions.

But there's more than a little irony when folks like Rick Perry who pound on "border security" themes make such attacks. Mules caught smuggling drugs north or guns south are the lowest folks on the cartel totem pole, and arresting them barely makes a dent in the problem: For every mule arrested at a border checkpoint two more crop up to take their place. So if you want to go after the big fish - actual cartel leaders - the only way to do it is through long-term, large-scale undercover operations like Fast and Furious. And such operations must offer the cartels something to justify the risk: Guns, shipment protection, money laundering services, or what have you. Otherwise, why would they let an undercover operative near them?

A small portion of the public favors full-on drug legalization (for marijuana, now a majority). But if one believes the drug war should be prosecuted - if you believe the US government should be targeting drug cartels through law enforcement - I don't see any other way but long-term undercover ops like Fast and Furious. Inevitably, some of those will fail, just like the military has often failed to stop violence in Afghanistan despite their best efforts. But should they not try? Would it have been better if they'd remained paralyzed by fear of failure? And importantly, does anyone believe that without Fast and Furious, Mexican drug cartels would have been unable to buy guns and kill people with them? I certainly don't.

Ironically, Governor Perry and other Fast and Furious critics are adopting arguments normally bracketed to supporters of gun control. A common refrain from the NRA and gun-rights advocates - in the past including Governor Perry - is that guns don't kill people, people kill people. The same is true in the case of the Border Patrol agent and others killed using guns from Fast and Furious: The cartels are responsible for the people they kill, not the Obama Administration. Or, if Perry et. al. believe suppliers of guns are to blame, it's hard to understand why the same logic doesn't undermine their domestic stance on gun rights. Perhaps discomfort with that strange repositioning is behind the almost bizarre accusations by some conservatives that Fast and Furious was intended (by the administration and a shadowy cabal of gun control advocates) to fail, blow back, and thereby give Americans cause to enact stronger gun-control laws. That nutty idea is spreading in large part because there's been no real information released to counter it.

I for one hope for a quick about-face from the Obama Administration. Release as much information as possible to the general public without putting undercover operatives at risk, and release everything else under the usual confidentiality requirements for Congressional oversight of national security. Then, like gawkers slowing down on the highway to look at a car crash, we can all see the mess for ourselves and move on to our day jobs.