House releases 'interim charges': What criminal justice topics on the agenda?

Speaker Joe Straus last week issued the "Interim Charges" for standing committees in the Texas House. Since the Texas Lege meets only 140 days every two years, in the interim committees study lingering problems or emerging issues with an eye toward developing legislation in the next session. So issues studied in interim charges tend to have a tad more momentum once session starts - particularly early in the session - than bills that weren't part of that process. The committees also hold oversight hearings during the interim that tend to generate a lot of information about the agencies under each committee's purview.

Here's the full list (pdf) of interim charges and below are the criminal-justice related issues among them I identified (duplicates deleted where committees have joint charges):

Appropriations:

10. Examine annual cost increases and the factors related to the increases for Correctional Managed Health Care. Recommend policy changes that could yield savings to the state.

14. Monitor and review the disbursement and use of border and homeland security funds. Evaluate the effectiveness in meeting the state's border and homeland security program goals and objectives. Joint Interim Charge with House Committee on Defense and Veterans' Affairs

Border and Intergovernmental Affairs

1. Evaluate the effectiveness of state operations at controlling drug-related crimes and other violence along the Texas-Mexico border. Joint Interim Charge with House Committee on Public Safety

Corrections

1. Examine implementation of the diversion pilot programs, juvenile case management system, and other policy and funding initiatives to determine whether the Texas Juvenile Probation Commission and the Texas Youth Commission have adhered to legislative directive in implementing these programs, and the impact of these programs on commitments at the Texas Youth Commission. Joint Interim Charge with House Committee on Appropriations

2. Study and evaluate the availability and efficiency of community-based corrections supervision and treatment programs and their impact on prison capacity and recidivism rates. Determine whether the supervision and treatment programs have been designed in accordance with evidence-based practices and whether adequate evaluation methods have been incorporated.

3. Study current re-entry programs and procedures across the juvenile and adult criminal justice continuum. Make recommendations to ensure that offenders who are released or discharged have the necessary supervision and access to employment, housing, treatment, and other support programs to allow successful entry and integration into the community. Evaluate the working relationship between state agencies facilitating re-entry and make recommendations on how to achieve greater efficiency and cost savings.

4. Examine policies and programs designed to identify, divert, and enhance the supervision and treatment of special needs offenders within local jails and state correctional facilities. Recommend changes to address appropriate alternatives to incarceration or institutionalization.

5. Review the range of services provided to females in the juvenile and adult criminal justice systems and recommend changes to ensure responsiveness to gender-specific issues. Review should include institutional and community supervision programs and utilization of correctional facilities that house nonadjudicated populations.

County Affairs

3. Study county oversight related to pretrial release on bond in criminal cases.

Criminal Jurisprudence

1. Examine the deferred adjudication system in Texas and recommend legislative changes.

2. Study how the state presently supports the establishment and maintenance of public defender offices.

3. Study the human and sex trafficking problem in Texas. Make recommendations on best practices in the areas of investigation, prosecution, and tracking of the victims of these crimes. Study whether victims of these crimes are allowed to adequately recover from their attackers in a civil cause of action. Joint Interim Charge with House Committee on Judiciary and Civil Jurisprudence

4. Monitor the implementation of SB 1940 (81R), which established veterans court programs in Texas, and examine the link between combat stress disorders of war veterans, including post-traumatic stress disorder and traumatic brain injury, and the onset of criminal behavior. Joint Interim Charge with House Committee on Defense and Veterans' Affairs

Public Safety

1. Study the recruitment and retention practices that the Department of Public Safety currently employs and make recommendations on how to make improvements. Specifically, examine the current officer shortage in Texas and the effect it is having on the state's public safety.

2. Investigate best practices to process concealed hand gun licenses in order to alleviate backlog and make recommendations for implementation, if appropriate.

3. Monitor the Driver Responsibility Program and consider methods for overall improvement of the program.

4. Study the statutory definition, duties, and authority of a Texas peace officer.

Several items here stand out. For starters, it's interesting to me that Appropriations will independently investigate prison health care costs. That indicates that, as state cost drivers go, prison health has made it fully onto state leaders' radar screens. Texas spends nearly $1 billion per biennium on prison health care, and costs are increasing largely as a function of long sentences and an aging prisoner population - inmates age 55 and older consume healthcare services at three times the rate of their younger counterparts.

One also notices that the Border and Intergovernmental Affairs Committee's top issue this go-round is evaluating state border security efforts, whereas last time the first item on their list was "Study the establishment of a citizen trade policy commission and an office of trade development." That's a notable shift in priorities.

The Corrections Committee's plate is full with many issues regularly covered on this blog. By contrast, aside from its charge to investigate deferred adjudication and the narrow issue of veterans courts, the Criminal Jurisprudence Committee's load seems relatively light, avoiding topics regarding overcriminalization and innocence-related issues that I'd have liked to see them take on.

A sleeper on the list may be the County Affairs charge on pretrial bonds. Increased pretrial detention rates are the main cause of county jail overcrowding in Texas and analyzing "county oversight" of the process is a sticky question because so many players are involved.

I'm also glad to see the Public Safety Committee take on the Driver Responsibility Surcharge. We've been waiting for months now for DPS to issue new rules governing the surcharge but nothing has come out yet in the Texas Register. (CORRECTION: An attentive commenter supplied the text of the new rule which was filed with the Secretary of State Nov. 23. More to come on this development.) And though the topic sounds dry, the issues surrounding definitions of a police officer potentially could make for a lively debate in Tommy Merritt's committee.

Finally, though not directly related to criminal justice, as a blogger I feel obligated to point out this odd charge for the General Investigating and Ethics Committee:

2. Review the definition of "political advertising" and determine whether the definition should be expanded to include content contained in blogs and other types of Internet communications.

I don't know what that's about but the discussion will bear watching.

Slip Slidin' Away: Restrict DL magnetic strip use for routine commerce

On this afternoon's House Law Enforcement Committee agenda sits a bad bill whose risk of unintended consequences is nearly as great as its likelihood to pass: SB 1354 by Carona, which would allow vendors to gather information from the magnetic strip on your driver license when you cash a check.

The same committee already recommended the companion bill, HB 320 by Buddy West, for the "local and uncontested" calendar, so on its face this bill looks like a slam dunk. As I wrote when I first saw the legislation:

This perhaps bothers me more than it might otherwise after recently learning about an Austin man, a confidential informant for the feds who ran 3 Austin convenience stores and was found to have made hundreds of small, fraudulent transactions at or after the point of sale while he was working as their snitch. Checking my ID to let you see if the picture and the signature match is one thing. Scanning it into a computer means you've gathered that information electronically, can store it, and can use it for whatever you want.

I'm not sure I'm okay with that - banks doing it are one thing, but a convenience store requiring it starts to make me nervous.

At a minimum, I wish the House would add restrictions on use of this information similar to those described here in Sen. Harris' SB 307. That legislation allows use of the driver license swipe for limited purposes, with the caveat:

Information accessed under this section may not be sold or otherwise disseminated to a third party for any purpose,including any marketing, advertising, or promotional activities.

There's nothing like that restriction in the Carona/West legislation the Law Enforcement Committee will hear today, so if passed vendors can use that data for whatever they want. Add that information to the account number on the check and the risk of identity fraud increases. I don't think legislators have fully considered potential unintended consequences from removing longtime restrictions on using these data.

Busy committees clear bills on prison rape, parole, TYC, medical release, gun rights, and local jail diversion

Time for Grits' weekly rundown of this weeks' Texas legislative committe action. It's the busiest time of the legislative season, and in the scheme of things the legislation moving this week in the Texas Legislature on criminal justice matters was pretty positive, I'm happy to report. Easily the biggest news was the presentation of Senate and House budgets, the criminal justice implications of which are discussed here.

But lots of other important legislation is moving, too. Here are some of the week's highlights, starting with a slew of bills passed out of the House Corrections Committee (not comprehensive):

• HB 1944 which would create an "ombudsman's" office to receive complaints from inmates about sexual assault and assist in compiling reports, making policies, and ensuring investigations don't fall through the cracks.
• HB 2938 (discussed here) would require parole for certain low-level offenders when they've completed minimum requirements.
• HB 2100 expanding the use of parole for seriously ill patients with high medical costs.
• HB 199 (discussed here) establishing a residential infant care program for mothers who give birth in TDCJ, more than 250 per year.
• HB 429 (discussed here) authorizing a study for options to manage and hopefully reduce increases in elderly inmates' healthcare costs.
• HB 46 expanding opportunities for inmates to earn "good time" as a means of improving inmate discipline.

Meanwhile, Rep. Hodge's HB 43 allowing TDCJ to restore good time as a disciplinary tool, which had previously passed out of Corrections, passed the House this week and headed to the Senate. Congrats to her on passing an excellent bill through the lower chamber.

The House Criminal Jurisprudence Committee passed a couple of very good bills, my favorite of which is HB 2391 by Madden (discussed here) which gives police officers discretion to cite and summons Class A and B misdemeanor offenders at their discretion instead of arresting them and taking them to jail. This will help with local jail overcrowding, keep officers on the street longer doing productive police work, and streamline misdemeanor court dockets clogged with offenders waiting in jail to have their cases heard. This bill's cause is aided by the fact that the idea is supported by jail administrators in Bexar County and also in Midland, Speaker Craddick's home turf.

Meanwhile Criminal Jurisprudence also approved Rep. Escobar's HB 2437, discussed here, which authorizes counties to establish "a pretrial victim-offender mediation program for cases involving a first-time offender arrested and charged under Title 7 of the Penal Code (Offenses Against Property). A county with a population of more than 100,000 would be required to establish a pretrial victim-offender mediation program." This bill, too, will help reduce local jail overcrowding, and I'm glad to see both of them make it out of committee.

Of course, it wouldn't be a Criminal Jurisprudence Committee if they didn't pass at least one criminal penalty increase this week, this time HB 401 which I've called the Congressman Mark Foley Act, enhancing penalties for already illegal text message sexual solicitations of minors by adults. This is pure grandstanding to my mind. The conduct described is already illegal and harshly punished under current law. How much you want to bet some version of it passes the House, anyway?

The House Law Enforcement Committee this week kicked out Rep. Carl Isett's HB 1815 which I've written about favorably, allowing Texans to legally carry a handgun in their car if it's stowed and they're not a felon or otherwise diqualified from doing so. I have high hopes this piece of legislation will make it all the way to the Governor's desk.

In the Senate Criminal Justice Committee, the passage this week of Chuy Hinojosa's SB 103, a major Texas Youth Commission reform bill, made headlines (see prior Grits coverage). Rather than go through the details of the substitute, let me refer you to MSM accounts here, here, and here for more detail. I was also glad to see the committee kicked out Sen. Whitmire's SB 838 which creates intermediate sanctions options for parole violators that should reduce overall parole revocation rates.

As described here, the Senate Health and Human Services Committee this week approved SB 308 by Deuell to allow local governments to operate or approve nonprofit needle exchange programs.

Finally, on the House floor next week (in addition to a bad bill, HB 1422, discussed previously), an important piece of legislation is up on Monday, HB 1178 by Escobar, a slightly different version of which was vetoed by Gov. Perry in 2005 "due to concerns that it would impact traffic court proceedings," according to the Texas Criminal Justice Coalition. "HB 1178 resolves those concerns, by applying only to cases before county and district courts in which defendants are facing confinement in jail." (See prior Grits coverage).

HB 1178 is designed to ensure that defendants are made aware of their right to speak with an attorney before prosecutors seek to question them or negotiate a plea, according to a Texas Criminal Justice Coalition's fact sheet in support of the bill. "The bill also changes current law to ensure that defendants can try to hire a lawyer on their own without losing the opportunity to request appointed counsel if it turns out that they cannot afford to hire a lawyer."

As always, see the capitol website for more details on these and other bills at the Texas Lege.

Monday's Law Enforcement Agenda: Four 'bad bills that need a good killing'

Looking ahead to Monday's Texas House Law Enforcement Committee hearing, I saw four bills on the agenda worth highlighting.

In my recent site survey, a reader suggested that I identify more "bad bills than need a good killing." All four of these bills, IMO, fall into that category. Let's run through them:

Sobriety checkpoints
I've never understood the push for sobriety checkpoints. They have sort of a "Can I see your papers, comrade?" feel to them that to me just seems anti-American. (In El Paso the Sheriff improperly used what were essentially roving checkpoints for immigration enforcement as part of Operation Linebacker and had to shut down the operation.)

From a legal perspective the Supreme Court has ruled them acceptable in narrow instances, but unacceptable in others - here's a link to the Wikipedia entry on the topic, and perhaps someone in the comments can explain better than I when a police stop is a "detention" and when they're allowed to do it anyway in pursuit of broader public safety goals.

But to me that's an important but secondary concern to the fact that, as a law enforcement tactic, it's the most ineffective possible use of traffic enforcement personnel - one that generates a high profile for the agency with the public and the media, but low results per resources expended.

Stopping hundreds of people on the off chance you'll stop a handful of drunks is simply a mindless, scattershot approach. If half as many officers were busy rigorously patroling the bar district, it would make a bigger difference.

According to Wikipedia, "the National Highway Traffic Safety Administration, after extensive field studies, concluded that 'the number of DWI arrests made by the roving patrol program was nearly three times the average number of DWI arrests made by the checkpoint programs.'" [2] That makes sense when you think about it - you're more likely to find a drunk pulling over traffic violators than just pulling over everybody randomly.

Anyway, whatever their constitutionality or effectiveness, MADD and other anti-DWI groups have made them their benchmark for being "tuff" on drunks, so Rep. Todd Smith and a host of cosponsors have joined to present HB 253, whose language tries to navigate the narrow framework allowed by Supreme Court rulings. I'm not a lawyer, so others must judge whether the bill succeeds on that score. But if it's a more ineffective tactic, not to mention constitutionally questionable depending on how it's implemented, I don't think the Lege should do it on those grounds alone.

Leap, Don't Look, Then Leap Again
What happens to kids seized from their parents convicted of meth use? Right now nobody knows.

In 2005 the Texas Lege passed what I considered an ill-advised bill restricting pseudoephedrine sales that included provisions for taking children away from anyone found manufacturing meth near a child. HB 946 by Miller would expand the range of people whose children would be seized to anyone "possessed" or in any way introduced meth into the body of any other person.

You might think it'd be a good thing to know how many kids have been or would be affected by this policy before passing such a bill, but as far as I can tell no one seems to care. The House Law Enforcement Committee studied the effects of the 2005 legislation during the interim, but as I wrote in December, the committee:

failed to focus at all in its report on the most important aspect of this bill: What happened to the children seized as a result of this new law? Were they later returned to their parents? Did they enter the foster care system? Since HB 164 provided no new or specialized resources for these chidren, do we know whether they received counseling and support needed by a child traumatized by removal from their family? None of these questions are discussed in the report - we don't even know how many children were seized under the new law - 10, 50, 100, 500, quien sabe?

[I wrote then,] Did anybody see 60 Minutes' segment on foster children who were taken away from their parents last night? Here's the video. What happens psychologically to children under such circumstances really can't be understood unless you've witnessed it. These kids are psychically brutalized then basically thrown away. And the Law Enforcement Committee's report reflects that - nobody even looked to see what happened to them.

So now, Rep. Miller comes forward with a bill that will likely dramatically increase the number of kids seized from meth using parents. Really? How many will there be? What services will they need? How much will it cost? We don't know; in its interim report the Law Enforcement Committee didn't even know how many kids were seized under the law as it's already written.

Can the system handle them all? No telling. Certainly since they aren't tracked there are no targeted services for these youth, which is a missed long-term crime prevention opportunity. Children of incarcerated parents are estimated to be 6-8 times more likely than their peers to follow their parent's footsteps into prison as an adult.

There's no fiscal note posted on this yet, but Texas arrests a lot of meth users. I'd be surprised if we're not talking about seizing a pretty large cadre of kids in the scheme of things. The Committee should look before it leaps on this bill. Since they know from their own report they don't have information about the kids already seized under this law, they need to look after those kids' wellbeing before significantly expanding their numbers. Given what's going on with TYC, it'd be better to find out what's going on with them first, I'd think.

Subsidizing Alarm Companies, For What?
I'm no fan of burglar alarm companies like ADT and others that purport to notify the police to protect your family from home invaders, etc. Basically these are huge, taxpayer subsidized boondoggles with little public safety purpose - in some cities more than 99% of calls are false alarms, and even those that aren't false don't catch anybody by the time police arrive. If you're looking for security, buy a dog. It's more effective at scaring away crooks and at least you'll have someone to console you after your stuff is stolen.

Home alarms in particular are an enormous waste of police time, and in some jurisdictions are the most common type of police call. Some cities have responded to the problem by requiring "verified response" from alarm companies (i.e., the company must verify a crime was committed before the police come). That puts the cost and onus on the company that's making the profit, instead of having taxpayers eat the primary security cost while private companies make money off the public service. However, Rep. Buddy West's HB 1906 would require municipalities to hold a full-blown plebicscite before making such a decision! My first thought: Uh ... isn't that what we elect city councils for?

The Burglar and Fire Alarm Association was a significant contributor to Chairman Driver in the 2006 election cycle, but I hope that won't sway him or others to hamstring cities trying to maximize the public safety impact of police spending. There probably isn't a single other reform that would immediately put more new officers' boots on the ground, or at least divert them from useless endeavors to useful ones. From a public policy perspective, I'd rather see the Lege requiring verified response rather than try to get in its way.

Keep thorough records about officer terminations
The issue over what records should be kept and shared with other agencies when an officer is terminated has been a hot one over the last several sessions, largely because of one man - Tom Coleman, the so-called "gypsy cop" who'd been fired from multiple law enforcement agencies before landing in Tulia, Texas for what turned out to be his final policing gig.

Records at the state licensing agency, the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE), hadn't given supervisors who hired Coleman a clear picture of trangressions at his previous employer, so after much brouhaha, last session Chairman Driver and Sen. Kel Seliger (whose district includes Tulia) passed legislation to require departments to record with TCLEOSE the reasons an officer was terminated.

Now Driver would delete that requirement, as well as change the definition of when an officer is "dishonorably discharged." Under current law, the term dishonorable discharge "applies only to an officer whose employment was terminated for a violation of law or department policy or for other substantiated misconduct." Chairman Driver's bill would narrow that definition to say that

"Dishonorably discharged" means:
(A) the officer retired or resigned in lieu of termination for a criminal offense;
(B) the officer was terminated for a criminal offense after charges were filed;
(C) the officer was terminated for a criminal offense;
(D) the officer retired or resigned in lieu of termination for an administrative violation of truthfulness or insubordination; or
(E) the officer was terminated for an administrative violation of truthfulness or insubordination

So under this new terminology, the only adminstrative violations that would merit the label "dishonorable discharge" are for "truthfulness or insubordination," whereas previously the term applied to any "substantial misconduct." I see no good reason to change the definition except to allow officers fired for good cause to find new employment without their bosses' knowing about their past. Who benefits from that? Only bad cops whose misconduct is allowed to continue until they're arrested and prosecuted.

This is Chairman Driver's second bill reducing accountability at TCLEOSE, which in my opinion is an agency whose power should be bolstered and emboldened, not further diminished. One wonders whether it will require some TYC-type scandal for the Legislature to re-energize this toothless watchdog.

Fees, Police Misconduct, Technocorrections and Guns: Monday's Law Enforcement Committee Agenda

It's time to take a look at the bills up in tomorrow's Texas House Law Enforcement Committee that deserve Grits readers' attention. I've already mentioned legislation on the agenda that would gut Texas' Forensic Science Commission, but here are the rest of the high and lowlights:

Guns and Traveling, Once and For All
HB 1815 by Isett: This bill would settle the debate in Texas once and for all over traveling with a firearm in a personal vehicle. Last session legislators thought they'd fixed this problem by passing HB 823, but some prosecutors refused to abide by the new law and continued to tell police to make arrests when they found someone with a concealed weapon in a personal vehicle. I filed a bunch of open records requests on the subject last year and authored a public policy report (pdf) released last month that identified DAs who flouted the law. HB 1815 contains clear language that should simply resolve the question once and for all by redefining the crime of unlawfully carrying a weapon (UCW) as not applying if a person is "inside of or directly en route to a motor vehicle that is owned by the person or under the person's control." That should setlle the question and stop the legal hairsplitting some DAs have engaged in to continue to harass otherwise law abiding motorists who carry guns in their vehicles.

Will TCLEOSE regulate officer misconduct, or not?
I find Rep. Brian Hughes' HB 2813 an interesting piece of legislation because it appears to fly in the face of two bills the Law Enforcement Committee already approved (discussed here), so I don't quite understand why the chair gave it a hearing. Hughes' bill would expand the authority of investigators for the state police licensing agency, the Texas Commission on Law Enforcement Officer Standards and Education. However, last week the committee approved Chairman Driver's HCR 96, which called for a moratorium on expanding authority under the section of code Hughes' bill would alter. Even more interesting, the Chairman's HB 488 strips TCLEOSE of all regulatory authority, leaving local prosecutors as the only agents capable of causing an officer to lose his or her license (under the bill, officers' licenses can only be revoked if they commit a crime). Given that context, I don't understand a) why Hughes' bill wouldn't violate the HCR 96 moratorim, and b) what these newly empowered police officers would investigate if HB 488 passes. I generally support greater investigatory power for agencies investigating law enforcement corruption, but I'm not sure empowering TCLEOSE officers make much sense if the agency's regulatory authority may be curtailed

Technocorrections for Drunks
HB 934 by Harper Brown would require manatory ignition interlocks for everyone given probation for DWI, changing a provision that says judges "may" order interlocks to say they "shall" do so in every case. For my part, I think ignition interlocks may well be part of a long-term solution for drunk driving, but they're not free and even if probationers pay for them, ignition interlocks still require extra staff and resources for monitoring the devices (which record how often drivers' blow and are disallowed from driving). For my part, I'd like to see this policy begun on the second or third offense, not for every drunk driver receiving probation. Repeat drunk drivers are the big problem - the vast majority who are arrested for DWI once are never arrested again. Besides, a program like this should start smaller to see if it's effective before expanding it to every drunk driving arrest in the state. Still, with those modifications this could be a bill I'd support - technocorrections for DWI IMO show great promise.

Should citizens pay a fee to have charges dismissed?
HB 588 by Gonzalez-Toureilles has to be one of the most ill-conceived pieces of legislation I've seen this year. Though it's just a small bill, I find it particularly offensive that if it were to become law, motorists who receive dismissals on alleged traffic violations must pay a $10 processing fee to the court. What hogwash! Why not make the police department pay that fee to the courts? They're the ones who gave a ticket that wasted the court's time and the defendant's. Forcing defendants to pay a fee after the court ruled they never actually broke the law and dismissed the case makes a mockery of justice and fairness. They didn't ask to be pulled over, didn't ask to be given a bogus ticket, and have already take time out to contest the ticket to seek dismissal. Mulcting them with fees, anyway, just piles on injury to insult. OTOH - if you made police departments pay court fees when tickets are dismissed, and it would create a financial incentive for officers to only bring forward stronger cases. If the fees are needed, that's who should pay them in my opinion.

So those are the highlights from tomorrow's Texas House Law Enforcement Committee hearing. If your representative sits on the commitee, be sure to let them know what you think about these bills.

The Justice Project: Don't gut Texas' Forensic Science Commission before it gets off the ground

Edwin Colfax, Director of State Reform Campaigns at the Austin office of The Justice Project, emailed today with concerns about HB 2832 by Driver which is up in the House Law Enforcement Committee on Monday. More soon on the rest of the committee's agenda, but I thought I'd share Colfax's critique with Grits readers:

HB 2832 completely rewrites the statute authorizing the Forensic Science Commission (FSC) in a way that is unnecessary and undermines its independence, thus putting at risk approximately $1.5 million in federal forensic science improvement funds.

Texas has plenty of first hand experience with negligence and misconduct in forensic science. The Houston Crime Lab debacle is only the most famous, but serious problems have surfaced in other local jurisdictions and the DPS lab. The Forensic Science Commission was created last session to provide fully independent, external oversight. It has so far been given no appropriations to hire staff and start working, but the Senate has provided for the FSC budget in the current session.

The Commission has sought some clarification and guidance about its nuts and bolts operation and the extent of its authority. This is natural for a new commission. The needed guidance can be provided without radically restructuring the statute.

This commission has not been given the opportunity to even get off the ground because of no appropriation. A budget for staff and investigation has been provided in the Senate appropriations process. Once the Commission is staffed, staff will have the opportunity to work through these concerns. We should give the existing structure the opportunity to work before radically changing it.

The proposed bill takes away the supervisory authority over investigations from the FSC and gives it to the director of DPS. The FSC is also to be housed and staffed by DPS. All these things (especially the first) compromise the independence of the Commission.

The intent was to provide for independent external investigations regarding allegations of professional negligence or misconduct. The commission should be in charge of overseeing investigations. If allegations regarding a DPS lab are at issue, it is undesirable to have DPS hand-pick and contract with an investigator to investigate itself. This is unnecessary because the FSC will have a budget and staff to do this.

By compromising the independence and externality of the investigative supervision, the proposed bill places in jeopardy approximately $1.5 million per biennium in federal grants through the Paul Coverdell Forensic Science Improvement Program. These funds are now contingent on a state providing for independent, external review of allegations of forensic negligence or misconduct.

The bill eliminates the duty of accredited labs to report allegations of professional negligence or misconduct to the Forensic Science Commission. Essentially, the only duty for the Forensic Science Commission under the bill is to perform a superficial review of any allegations it happens to receive, and forward ones it deems credible to the DPS.

Under the bill, the Forensic Science Commission has no control or oversight over the conduct and reporting of investigations into forensic negligence or misconduct. Its only role under the bill is to provide a superficial review of any allegations it happens to receive, and forward credible ones to DPS. That guts the Commission of the substantive oversight powers it was created to exercize.

The legislature’s intent was to create a mechanism independent and external of law enforcement bureaucracies, to review and investigate allegations of professional negligence or misconduct. The proposed restructuring is at odds with that goal.

UPDATE: AP (3/25) has an excellent story on why forensic science commissions in Texas and other states have yet to hear a case despite a dire, pressing need for their services.

Drug courts, medical parole moving, but bills reducing police accountability mar criminal justice work in House this week

Having looked at criminal justice legislation passed in Senate committees, let's examine this week's action in the Texas House:

House Corrections
A couple of good bills by Chairman Jerry Madden made it out of committee this week, while his big probation bill (discussed here) was left pending for a week as is the chairman's custom. Madden's HB 2611 expanding medical parole made it out of committee. The fiscal note only assigned $1 million in savings to the bill over the first biennium, but depending on who is released it could easily be more than that. There are a small number of very expensive prisoners in TDCJ, a handful of whom cost the agency more than one million dollars each annually.

The Chairman's main drug court bill (HB 530, discussed here and here) passed with flying colors. The legislation would require all counties above 200,000 to have a drug court, state and federal funding permitting. Still, passing a bill and funding it are two different subjects. According to the fiscal note, "The bill would make no appropriation but could provide the legal basis for an appropriation of funds to implement the provisions of the bill."

Finally, Rep. Bohac got his bed time reading - a monthly emailed list of offenders getting out of prison or off community supervision would be sent to every legislator under HB 1453. Unless he intends to greet each of them with a fruit basket and a voter registration card, I still don't understand why he wants the information.

House Criminal Jurisprudence
This committee continues to churn out new penalty enhancements every week, despite the state's lingering prison overcrowding crisis. Just to run down this week's list, Chairman's Peña's enhancement for stealing copper wire (HB 1766) was approved, as was Rep. Delisi's HB 126 expanding the definition of organized criminal activity, and Charlie Geren's HB 1093 expanding the area around a funeral where protests are prohibited.

Thankfully the committee also kicked out a good bill from Scott Hochberg, HB 681 which requires the state to pay for postconviction DNA tests ordered by a judge. I was also glad to see them approve HB 1178 by Escobar, which would forbid District Attorneys from seeking waivers from defendants of their right to counsel. Both are good bills that deserve approval.

House Law Enforcement
To start out on a postive note, the House Law Enforcement Committee this week approved HCR 96, which I described here, calling for a moratorium on legislation creating new types of police agencies and a two-year study to reconcile the hodge podge of nickel and dime police forces with overlapping jurisdictions around the state.

But that modest achievement, I'm afraid, was the high point, and things went south quickly from there. The Committee also approved a couple of truly bad bills aimed at reducing police officer accountability. The first, HB 488 (discussed here), strips the state police officer licencing agency of meaningful regulatory authority. HB 1422 (discussed here) which closes records related to officer misconduct for DPS troopers. (The companion bill to HB 1422 also passed in Senate Criminal Justice this week.) These bills both head in the opposite direction the state needs to go given the enormous problems we've witnessed with police misconduct and the drug war.

Next, for reasons described here I think it was a particularly bad idea, the more I think of it, for the committee to approve this week HB 320 by Buddy West, which would allow any commercial business to scan the stripe on the back of your driver's license to electronically gather the information whenever you cash a check. There are simply no significant restrictions on how that data can be used, and by whom.

Finally, the Law Enforcement Committee couldn't help but get into the enhancement act, though they limited the damage to local county jails instead of sending more people to overcrowded prisons. They approved HB 855, described here, which expands the crime of failure to identify from people arrested to people merely "detained." That's a huge difference - I'm arrested when they cuff me and read me my rights. Whether someone is "detained" when an officer stops and begins to speak to them, though, can be a matter of significant dispute. Conceivably this could add a significant number of people to county jail populations.

So those are this week's high and lowlights. The new House budget was presented, but I haven't had a chance to review it yet to see what's in it on the criminal justice front. More soon previewing next weeks criminal justice committee hearings.

Do highway alerts really help? Monday's House Law Enforcement Agenda

After committing to preview the agendas each week of the coming criminal-justice related committees in the Texas Lege, I find this week's House Law Enforcement Committee agenda a yawner compared to last week, which had two signficant bills of interest. Still, I'll go ahead and trudge through the highlights - the things I do for you people!

There's a minor but good accountability bill for federal grantees by Noriega - HB 563 - but other than that not much that particularly interests or worries me.

That said - and let's call this an exasperated qualm more than a "worry" - I'm beginning to question the use of these highway alerts, which is the subject of three of the bills, two of which would expand their use from children to seniors (only missing parents and the middle aged, apparently don't deserve an all-out search!).

Here's an example why these "Amber Alerts" and now "Silver Alerts" for seniors may be a bad idea: The other day I saw an Amber alert out on the highway asking for help to find a child that was eventually discovered in New Mexico. An electronic sign encouraged me to report to a hotline if I saw any vehicle fitting the following description: A red Dodge pickup truck. No license plate, no other distinguishing features listed.

I counted. I saw three between that sign and my home a few miles away.

So should I have gathered their license plates and called the police? What good would it have done? The child wasn't even in Texas by then. It would just waste my time, their time, and if they actually followed up on the leads, hassle three innocent motorists more than a thousand miles away from the scene of the crime.

This is one of those tactics that Bruce Schneier calls "security theater" - it makes everybody feel like the authorities are doing something, but it's perhaps the most ineffective approach they could take. I don't find these programs offensive, per se, just exasperatingly futile, and incredibly wasteful of resources.

That said, if I were a betting man I'd wager one of the "Silver Alert" bills will pass. But if it does it will be a triumph of symbolism over security substance.

Podunk PDs and Toothless Watchdogs

The Chairman of the Texas House Law Enforcement Committee, Joe Driver, has two noteworthy bills up in his own committee today, one I think is quite necessary, and another that I think is a bad idea.

Stop Proliferation of Podunk PDs
To start with the one I like, HCR 96 is a resolution calling for a moratorium on the creation by the Lege of new types of hyperlocal police agencies, and a joint legislative study to create a policy on what constitutes a police force.

This is sorely needed - as the number of bush-league, penny ante police forces in Texas proliferate, the quality of both officers employed and supervision given them declines. There is only so much supervisory talent in the state, and today it is spread out over more than 2,500 separate law enforcement agencies, creating a web of confusion and logistical problems (particularly in urban areas) from differences in training, procedures, and overlapping jurisdictions.

Article 2.12 of the Code of Criminal Procedure identifies 34 different classes of individuals as police officers, compared to four in the Texas constitution - sheriffs, marshals, constables, and municipal police. Others include airport police, school district police, "municipal park and recreational patrolmen," arson investigators, insurance investigators, officers appointed by appellate courts, the Department of Health, and a variety of others.

Every session it seems like somebody wants a new police agency - a good example this year is HB 702 by Bonnen, which would allow school districts to create a "volunteer reserve police force," for which the school district board would "establish qualifications and standards for training." (If you've ever been to a school board meeting, you know how qualified those folks are to decide such things and can likely guess at the wisdom for leaving issues of "volunteer reserve" police officer qualifications to such local bodies.) Another twist on the police proliferation theme comes in HB 700 by Berman which would extend Texas peace officer authority to most federal agents, creating further confusion.

So Driver's right to want to get this situation under control. I've hoped for a moratorium on creating new, specialized "boutique" police agencies for years. It's difficult because everything goes through different committees - Bonnen's HB 702, for example, was assigned to Public Ed. Bully for the Chairman for tackling the problem. (For those with a particular interest, here's some testimony I gave on the topic a few years ago to the Senate Criminal Justice Committee.)

Don't De-Fang Lazy Watchdog
Another piece of legislation by the Chairman, though, bothers me and I hope the Law Enforcement Committee will reconsider the wisdom of moving it without significant changes. HB 488 by Driver restricts the rulemaking authority of the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) to enforce licensing restrictions and rules in ways that seem to encourage all but the most serious, finally prosecuted police misconduct. Under the bill,

(d) The commission may revoke a license issued under this chapter to an officer elected under the Texas Constitution only if the officer is convicted of:
(1) a felony; or
(2) a criminal offense directly involving the person ’s duties as an officer.

Under current law, TCLEOSE establishes procedures for recovation of an officer's license, which is automatic right now if an officer commits a felony or official oppression. This bill would restrict TCLEOSE from suspending an officer's license for anything OTHER than the most severe misconduct that's a) discovered and punished by the department, b) reported to and pursued by the District Attorney, and c) vigorously prosecuted, usually over objections of the local police union.

That puts local political barriers between officers and de-licensing that needn't apply, completely gutting the agency's licensing authority, in many ways, though truthfully TCLEOSE already was a rather lazy watchdog.

If this bill passes, the state licensing agency for private investigators will have (much) more authority over its licensees than TCLEOSE will over police officer licenses. Though I haven't looked at the law, I'd guess the same is true for electricians!

Seriously: What good is TCLEOSE's rulemaking authority if literally the only way officers can lose their license is to be convicted of a crime? Why not then just abolish TCLEOSE, if only prosecutors will have the authority to enforce licensing rules?

We've got a significant police corruption problem in this state, particularly in South Texas but really all over. Most officers aren't corrupt, but those who are too often are tolerated. It won't help the problem to de-fang the already near-toothless state police licensing agency. As watchdogs go, the poor old hound was pretty much gumming her food already.

House Law Enforcement Committee: Where's the love?

I've gotta tell you, I'm not feeling the love from tomorrow's House Law Enforcement committee agenda.

Though several bills are up that deserve Grits' readers' attention, I wish I had more good news to report. Only one item would I call a modestly "good bill," and even it doesn't go as far as another one I still hope the Lege will pass. The rest I think we can do without. Here are the high and lowlights:

Don't make DPS misconduct records secret
The most potentially harmful of the bills up tomorrow is one perennially promoted by the state troopers' union, HB 1422 in its current incarnation, which would close most disciplinary records of Department of Public Safety officers. This is a terrible idea. Right now records of officer misconduct at DPS, just like at more than 2,400 other Texas law enforcement agencies, is governed by the Texas Public Information Act.

Seventy three Texas cities' records are governed by the state civil service code, and ever since the unions convinced the Legislature to close their misconduct files in 1989, every other law enforcement union has argued they should get get to conceal records about complaints against officers and what departments do about them. The difference in what you can get under the public information act is enormous. Many items HB 1422 and the state civil service code close to the public - the actual original complaints by citizens, for example, and closed investigative files - are among the most important documents for evaluating whether misconduct is being prosecuted or tolerated at police agencies.

Police corruption is an increasing problem in Texas, especially on the border and on the highways, largely as a result of the drug war. Public oversight through transparency of records provides an important layer of accountability for state troopers that shouldn't be diminished.

Having been through this argument many times over many years, let me offer this final prediction: All of the arguments that will be put forward tomorrow by the unions about the grave harm caused to officers by public records fall flat when you realize the same open records provision works fine at more than 2,000 agencies everywhere in the state, even including at county sheriffs and larger agencies like Dallas and El Paso PD. So for heaven's sake, if it ain't broke, don't fix it.

Leave police state tactics to police states
HB 855 by Delisi would fill local jails with low-level prisoners and give police too much power to harrass people who haven't committed any crime. The bill would expand the crime of "failure to identify." The definition would include not just people who are "arrested" by an officer, which is the current law, but to also include people merely "detained" by police. It would also boost penalties for not complying.

What's the difference between "arrest" and "detention"? Probably a large number of people. To oversimplify, but not by much, under current constitutional law being "detained" means any time a reasonable person wouldn't feel free to leave - not just at a traffic stop but questioning someone on the street or anywhere else. Expanding this "crime" to include those situations would add a lot of petty offenders to local jail populations with little identifiable benefit. It would just give officers a tool to arrest people when they woudn't have another reason to arrest them, like for committing a crime.

Slip Slidin' Away
HB 320 by Buddy West will allow businesses to swipe your drivers license as part of cashing your check to verify information collected on the magnetic stripe. Right now only banks can do that.

This perhaps bothers me more than it might otherwise after recently learning about an Austin man, a confidential informant for the feds who ran 3 Austin convenience stores and was found to have made hundreds of small, fraudulent transactions at or after the point of sale while he was working as their snitch. Checking my ID to let you see if the picture and the signature match is one thing. Scanning it into a computer means you've gathered that information electronically, can store it, and can use it for whatever you want.

I'm not sure I'm okay with that - banks doing it are one thing, but a convenience store requiring it starts to make me nervous.

Does EVERYTHING have to be a crime?
Chairman Driver has another bill up, HB 1765, that is certainly well intentioned but which I think applies the wrong tool to the problem he's trying to solve. He wants to hold employers of commerical license holders accountable for failing to enforce licensure restrictions on their employees. I think we all want commercial drivers properly licensed, but I don't like the idea of using the criminal code (he would make it a Class B misdemeanor). Most offenders will be businesses, so you can't jail them and the fine at that level would be meaningless.

Even if you could jail them, all the urban jails are full! It's time to stop using the criminal justice system as the automatic solution to every problem, and this bill is as good a place to start as any. In my opinion it would be more effective to fine the company significantly, with increases for multiple offenses, under adminstrative codes. Companies care more about their bottom line than jail time - at least Class B jail time. Enron jailtime they still worry about.

A Little Bitty Good Bill
The one bill of the bunch I think is okay, HB 964 by Guillen, would allow students in college-level law enforcement programs to carry a weapon to and from class in their vehicle. That's fine and dandy, but I'd much rather they just pass Rep. Isett's HB 1815 that would let you and me carry a handgun in our personal vehicles, too.

DPS: REAL ID Act would cost $268 million to implement in Texas

DPS head honcho Tommy Davis told the House Appropriations Criminal Justice Subcommittee this afternoon that it would cost Texas taxpayers $268 million dollars over two years for Texas to implement the federal REAL ID Act, including 737 new full-time employees for at least the next five years.

That's a huge sum of money - a LOT more than the $13 million the House Law Enforcement Committee estimated it would cost to implement. Congress has said that if states don't implement the changes by May 2008, their driver licenses will no longer be accepted for a variety of federal purposes, including entry onto airplanes or federal courthouses. But I think that's a bluff - especially since, as Davis mentioned, the federal rules haven't even been issued yet, I think it just can't reasonably happen.

Rep. Debbie Riddle was especially anxious about implementing the REAL ID Act, declaring she wouldn't "sleep better at night" until it was done. To me, this is a boondoggle of epic proportions - especially at a state pricetag of more than a quarter billion dollars!

Several states have already said they won't meet the feds' timeline, and Davis said the federal legislation included "zero" dollars to reimburse states for the cost. As I've written earlier, "maybe Texas should just call the feds' bluff and wait to see if things change under the Democratic Congress."

An LBB rep said the REAL ID Act would cost all states a total of $11 billion, with a "B," while only $40 million has been allocated so far, all to the federal DHS. LBB recommends that Congress be petitioned for money, flexibility and especially more time for implementation. There will also be phase-out costs, they warned, after five years when fewer FTE staff positions and facilities would likely be required.

LBB said implemeting the program would require an additional fee of $15 per driver license and renewal to pay for the program.

MORE from security guru Bruce Schneier analyzing the flaws in the REAL ID program, and why states should reject it. Also, the Lufkin Daily News wants the Lege to reject the program.

DPS Colonel: Perry didn't ask him about agency reorg and he disagrees with it

Col. Tommy Davis of DPS told the House Appropriations Criminal Justice Subcommittee today that no one from the Governor's office had spoken to him before issuing their proposal to move the driver license division from his agency to the Department of Transportation. Davis said DPS had been the custodian of Texas driver license records since the state began issuing licenses in 1935.

Turner asked if there is a good reason for uniformed officers to participate in DPS' driver licenses function. Davis said he disagrees with the Governor's proposal and said that driver licenses are a law enforcement function. He says many people are arrested on warrants when they come in to get their license renewed, so officers need to be there, plus they add an additional layer of security.

Steve McCraw, the Governor's homeland security director, said his office had come up with the idea "in house" in consultation with the Governor without speaking with DPS, but that it was "just a recommendation." He said the Governor directed him to act "like the bomb is going to go off next week," so he thought this should happen immediately. Chairman Turner, though, said he thought it "didn't feel like"a good idea to remove commissioned officers from driver license offices.

TCLEOSE: 770 Texas peace officers currently indicted or under arrest!

More from the House Appropriations Criminal Justice Subcommittee hearing this afternoon:

The Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) is the licensing agency, said the director, for 75,000 peace officers and 25,000 jailers in Texas and supervises 280 peace officer academies. They also (in theory) regulate police misconduct (though mostly that means rescinding officers' licenses if they've been convicted of felonies or official oppression).

According to the director's testimony, there are currently 770 licensed Texas peace officers who are either indicted or under arrest, and whom TCLEOSE is monitoring to ensure their license is revoked if they're convicted. TCLEOSE is frustrated that LBB's proposal doesn't fund travel for their staff to monitor these officers.

That's a helluva lot of arrested and indicted cops!! I've never seen a comprehensive study of indicted or arrested Texas officers, but I had no idea the numbers were that high.

Deconstructing why criminal justice committees are considered "least important"

I do not dispute Paul Burka's assessment in his deconstruction of Texas House Committee assignments that, for legislators, media, and capitol hands, the Corrections, Criminal Jurisprudence, Law Enforcement, Judiciary, Defense Affairs, Border and International Affairs, Urban Affairs and Juvenile Justice Committees in the House are considered among the "least important.".

But I find it interesting and wanted to pause for a moment to deconstruct his deconstruction.

Think about it: These seven committees are those that primarily deal with public safety and security issues which are the bread and butter for both parties' hackneyed tuff-on-crime campaign rhetoric. How many times have you heard a politician say, "Public safety is my number one priority"?

So why are these committees considered dogs by the members themselves, so much so that droves of freshmen in the opposition party to the Speaker fill their ranks and Robert Talton won't even deign to attend Criminal Jurisprudence Committee meetings, he finds them so unimportant?

Partly that's because those seven committees' work funnel into two Senate committees, so in practice House members' power is diffused. (Juvenile Justice, in particular, has no budget officer on Appropriations.) It's also because there aren't as many opportunities for these committee members to make big-money lobby connections that help in campaign fundraising.

I also agree that's an accurate assessment because legislators' real-world willingness to spend money on corrections has never matched their rhetoric. Spending represents priorities in their most raw, honest form, but the courts are overworked, TDCJ guards, probation and parole officers, and their suport staff are all woefully underpaid, and meanwhile the Legislature elected to dole out billions in budget busting election year tax cuts.

So when is public safety really a priorty? Only during election season, certainly not during budget crunching time. Ask a TDCJ guard if I'm wrong.

Still, I think there's another reason. I believe that the "tuffer" rhetoric for many lawmakers is no more than a steaming pile of horse hockey some poltical consultant told the politician to repeat during campaign season to get elected (and I've been in the room when it was said to them when I worked in campaigns, I should add).

Problem is, Texas laws are already ridiculously "tough." We literally lead the known universe in the percentage of our population under control of the criminal justice system, with one in 20 adult Texans in prison, on probation or on parole. For two decades, dozens of "enhancement" bills, as they're euphemistically called, i.e. bills increasing penalties or creating new crimes, passed in the Lege each session.

Every behavior that is reasonable to criminalize or "enhance" has basically already been outlawed in Texas, usually in spades. All that is left are unreasonable things, though those are still frequently suggested.

So that leaves managing the problems created by this long-time casual dismissal by the pols of these important topics (in their actions at the Lege as opposed to their rhetoric in the campaign) - basically mopping up the mess. But it doesn't have to be that way. If I were a Democratic strategist I'd look at those committees as among the session's biggest opportunities for House Democrats to work together to make a difference.

The Corrections Committee oversees prisons, probation and parole, including TDCJ's $5 billion plus budget - this one should be easy because the chair is already working closely with the Senate Criminal Justice Committee's John Whitmire, a Houston D, on that committee's big reform ideas. The Criminal Jurisprudence Committee is responsible for setting most sentences and for all of the myriad due process reforms that would be necessary to address the growing concerns over convicting innocent people. At the Juvenile Justice Committee, TYC itself faces both crises from prior mismanagement and poor legislative plannning and opportunities from current events. On Border and International Affairs, these are precisely the topics a) around which flux a the immigration and drug war debates and b) which will decide Texas' long-term economic future as the international economy transitions.

I could go on, but you get the point. It's the same one Christ was making in his parable of the talents.

Tradition and other legislators may deem these committees "least important." But it is possible to BE important, to do important things for Texas, from those committees, and I see no reason not to.

As Eleanor Roosevelt declared, no one can make you feel inferior without your permission.

My advice to members on these committees would be to ignore Burka's opinion and listen to Eleanor Roosevelt. The Speaker's race is over. All that matters right now is 150 House members, 31 senators, and what they do, or don't do, in the next 121 days, and counting.

This is not journalism: Recapping Grits coverage of Texas criminal justice committees' interim reports

The Texas Legislature has adjourned until Monday. With the politicians gone and the freeze momentarily lifted, Austin almost seems to be breathing a collective sigh of relief. Or maybe it's dread. In any event, it's a welcome and unexpected pause in capitol action.

On such a day, perhaps it's a nice opportunity to review the major issues on criminal justice that face the Legislature when it returns on Monday. So with apologies to Kimberly Reeves for the headline, I wanted to recap Grits' recent analyses of interim reports from Texas standing legislative committees on criminal justice issues facing the 80th Texas Legislature:

TDCJ Sunset Advisory Commission Report

• Evaluating Texas Corrections: Links to TDCJ Sunset Commission coverage

Senate Criminal Justice Committee

• Understaffing at youth lockups caused skyrocketing abuse rates
• Number of mentally ill inmates, parolees rising
• Senate committee weighs prison alternatives
• Somebody please get Sen. Estes a copy of the Texas Constitution
• Whitmire: Texas may turn two juvie facilities into adult prisons
• 80th Texas Senate Criminal Justice Committee membership

House Corrections Committee

• House Corrections Committee looks to private prisons to expand capacity
• House Corrections: Community based treatment more effective for sex offenders

See also Grits' coverage of an instructive House Corrections Committee interim hearing in March:

• House Corrections Highlights
• Juvenile justice bashed and defended
• Advocates: Texas needs stronger probation
• More Texans on probation than any other state
• Criminal Justice Gets Preview of Legislature's return

House Criminal Jurisprudence Commitee

• Lawyers, Guns and Money: The House Criminal Jurisprudence Committee interim report

House Law Enforcement Committee

• What happened to children seized under Texas' new meth law?
• Real ID Act a real boondoggle for states

Senate Transportation and Homeland Security

• Homeland security committee bases border proposals on bogus crime stats
• Senate committees disagree on border security effectiveness

House Judiciary Committee

• Do Journalists Need a Shield Law? Do Reporters S#*t in the woods?

SEE ALSO:

• Retrospective: Top ten Texas criminal justice stories of 2006
• Fantastic Fiscal Flip Flop bad news for prison builders
• A real public safety agenda for Texas
  
• Texas criminal justice legislation to watch
• House Research Organization studies on red light cameras, sex offenders, and immigration
• Are conservatives undergoing a "jailhouse conversion" on criminal justice

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