A chance to expand police oversight: Why Texas should begin charging cops and jailers licensure fees

Readers may recall Grits recommended over the summer that the agency licensing Texas peace officers, the Texas Commission on Law Enforcement (TCOLE), begin charging licensing fees to Texas cops and jailers. The idea was that they could use the "extra" money to expand their oversight role. 

But a new document from the Legislative Budget Board shows that TCOLE may need to begin charging licensure fees just to keep its funding at current levels. Here's why:

Since 2004, TCOLE has funded most of its activities using General Revenue–Dedicated Funds from Account No. 116, which is composed of consolidated court fees collected pursuant to the Texas Local Government Code, Section 133.102. Currently, multiple agencies spend funds from Account No. 116, including TCOLE, the Comptroller of Public Accounts, and the Department of Public Safety. In addition, employee benefits are paid from this fund. The amount of revenue collected has been decreasing for at least the past 15 fiscal years.

Check out this chart showing the rate at which this account has been outspending intake:

So the account balance is scheduled to drop below expenditures by the end of the next biennium, meaning TCOLE and other agencies funded by Account 116 must turn elsewhere for funding. Or as LBB put it, "Without replacement, the loss of this funding would halt the majority of TCOLE operations." In that light, for TCOLE, charging licensure fees makes loads of sense.

LBB suggested four options for raising revenue for Account 116, but none of them involved licensure fees. That's a mistake not even to consider it. The people who license doctors, lawyers, plumbers, etc., are all financed via licensing fees, why not police and jailers?

Grits wanted more money for the agency to facilitate more oversight and compliance functions. E.g., in FY 2019, LBB reported, TCOLE audited 770 agencies for "law and rule compliance" and found "deficiencies" in 349 of them. It's great that they're catching violations after the fact, but that's an awfully high rate of deficient audits.

Moreover, Texas is one of only a handful of states where the peace-officer licensing agency can't revoke licenses of officers for serious misconduct. Here, we require them to be convicted of a felony first, which almost never happens. But a decertification program would require resources, particularly for attorneys, and licensure fees are the most obvious way to pay for them. 

At the moment, TCOLE's budget runs around $4 million per year. Assuming a) a 95% payment rate, and b) licensure fee rates of $50/year for police, $40/year for 911 operators, and $30/year for jailers, Grits estimates about $4.9 million could be generated. One could fiddle with those fee amounts to adjust that figure up or down.

There are also nearly 3,000 agencies authorized to provide training who could also be asked to pay for the privilege. At $500 per year, ~$1.4 million could be generated from that cohort.

If Texas must begin charging licensing fees, anyway, it should do so at a level that lets the state expand oversight functions, not just keep up the status quo.

Related: See Grits' discussion of TCOLE's Sunset review.

'Sex offenders and the Farm Bill'

Somehow I'd missed this must-read post (Feb. 7) from the Austin Statesman's Eric Dexheimer about new prohibitions in the federal Farm Bill on sex offenders receiving food stamps, framing the issue with a discussion of a registered sex-offender in Austin seeking licensure as a plumber's assistant. Wrote Dexheimer:

Over the years, government aid programs have banned certain convicted criminals from receiving taxpayer assistance. Convicted drug felons have been prevented from receiving food stamps for nearly 20 years. (Some states have opted out of the restriction; Texas has not.) Same with felons on the lam. And some federal housing programs limit where sex offenders can live.

Agree with them or not, there is a public good argument to be made for each. Drug addicts could use their food stamps to buy drugs. Placing sex offenders in public housing might place other tenants at risk. Extending government aid to wanted criminals could delay their apprehension.

The new restrictions in the Farm Bill, signed by Pres. Obama on Friday, are still being parsed; a spokeswoman for the U.S. Department of Agriculture said the agency is scrambling to figure out which offenders would be excluded from food aid. But at least on the surface, the prohibitions appear to be a departure from the public safety rationale, and more directly punative. (Ironically, due to existing prohibitions on where they live and what work they can find, sex offenders are more likely to find themselves in need of assistance.)

For those in favor of perpetual punishment for sex offenders, it is undeniably true that many will always be terrible people unworthy of any assistance. Yet, as Jason C.'s case against the plumbing board demonstrates, not all of them are.

No sex offenders at the junk yard?

At the Austin Statesman, Eric Dexheimer the other day reported on a case (Dec. 23) regarding whether the state should deny licensure to sex offenders as a general rule as opposed to when their offense relates to the nature of their work.

In a rare move, an Austin judge has recommended a man with a history as a sex offender keep his state-regulated job.

Wendell Adkins was convicted of sexual assault of a child in February. State regulators tried to take away his license to work as a used auto part recycler, court documents show, but Administrative Law Judge John Beeler advised them not to.

The state Department of Licensing and Regulation sought to revoke Adkins' license, but Beeler said they shouldn't:

State laws require that regulators demonstrate why a person’s crime will imperil public safety. According to court documents, the licensing agency claimed Adkins “might be a continuing threat to society and allowing him to maintain his license would create an environment that would allow him to repeat his crime.”

Yet when pressed for specifics, regulators conceded Adkins’ crime occurred only once and in his home. His sentence did not prevent him from having contact with other children.

Administrative law judges, who hear occupational licensing disputes, can only recommend a course of action. In his Dec. 9 decision, Beeler sided with Adkins, recommending he be allowed to keep his license.

“The profession of used auto parts recycling involves answering the telephone, greeting customers and determining what the customer needs at a facility commonly referred to as a ‘junk yard,’” he wrote. “Any connection between (Adkins’) conviction and his occupation is slight at best.”

Although Adkins’ “crime was of a serious nature,” the judge continued, the licensing agency must show how his job “might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved. (Yet) the ALJ (administrative law judge) can think of almost no occupation where a person would have less unsupervised access to minor females than at a used auto parts facility.”

The licensing and regulation department can decide whether to accept Beeler’s recommendations or appeal them to district court. Its next meeting is scheduled for Jan. 28.

Unless we're just going to say sex offenders should never be allowed to work at all - and that seems anathema to public safety - this knee-jerk reaction by the DLR should be rescinded. Would you want this fellow working at a day care? No. But at a junk yard? If he can't work there, where in heaven's name would he be allowed to work? Indeed, I'm not sure why a junk-yard employee whose job consists of "answering the telephone, greeting customers and determining what the customer needs" should require a license in the first place.

Texas pays to train prisoner for job the state then won't let him have

The Austin Statesman's Eric Dexheimer has an item about an ex-TDCJ prisoner who was trained while in prison as a barber on the taxpayers dime but was then turned down for licensing ("State government giveth, then taketh away," June 6). Asked Dexheimer, "Why would one branch of the state government buy a citizen something with public money only to then to have another branch take it away a few months later?" Why, indeed!

in an unusually eloquent presentation to Department of Licensing and Regulation commissioners, [Lynn] Mays noted that the cost of barber training wasn’t the only bill citizens had footed on his behalf:

“When I was incarcerated, I was in a correctional facility that was run by the state of Texas. Taxpayer money paid for programs that are called rehabilitation programs, therapeutic programs, that I successfully went through…I’m not here because I’ve broken the law; I’m here because I want to work. I’m asking for a chance to prove the system works.”

They denied him, anyway. The reason:

“Barbers have direct contact with members of the general public, often in settings with no one else present, and a person with a predisposition for crimes involving prohibited sexual conduct would have the opportunity to engage in further similar conduct.”

Mays, agency staff concluded, had not been out of prison enough time to demonstrate that he’d been rehabilitated.

Ironically, at the events Grits attended this week on forensic science, a frequent refrain lamenting the lack of qualifications in certain fields was that people are required to be licensed to cut hair but need no particular certification to perform most forensic analyses with the notable exception of DNA testing. Perhaps Mr. Mays should pursue a job at a crime lab?

MORE: From Texas Watchdog.

Licensing strictures boost ex-felon unemployment

Nearly one-third of Texas' workforce is in a licensed or regulated industry, but increasingly state laws and/or agency regulations don't allow ex-felons to seek employment in those fields, reports Eric Dexheimer at the Austin Statesman ("Texas ex-offenders denied job licenses," April 11). "Thousands of applicants are denied state licenses to work in more than 100 occupations every year because of their criminal pasts, a number that advocates say understates the true volume because others don't bother applying. Although they are a fraction of the total prisoners released, criminal justice experts say, the licensing roadblocks highlight the obstacles all ex-prisoners face when seeking work — challenges that could increase as lawmakers contemplate cutting educational and vocational programs for offenders." Meanwhile:

At the same time, licensing agencies are prying deeper into applicants' brushes with the law, said Louis Leichter, an Austin lawyer whose firm often represents ex-offenders seeking licenses. Where once applicants were required to disclose only convictions, now many must also explain incidents ending in pretrial diversion and deferred adjudication, he said.

And every legislative session, more occupations are contemplated for new regulation, the process that can exclude those with criminal histories. In the past, lawmakers have proposed regulating sheet metal workers and lactation consultants. This year, bills have been filed that would require licensing and criminal history checks for roofers, foundation repairmen and commercial dog or cat breeders

Perhaps most absurdly, "In a few cases, the government covered the cost of occupational training for ex-offenders, only to reject their license applications later." Like increased criminal penalties generally, licensing strictures on ex-felons tend to be a one-way ratchet, seldom rolled back once installed. There has to be some point when ex-offenders have paid their debt to society and are allowed to work, support themselves and, with any luck, their families.

This might make a terrific Interim Study topic for, say, the House Licensing and Administrative Procedures Committee, or perhaps Business and Commerce in the Senate. With the Legislature cutting job training and reentry funds, these type of  restrictions become an even more critical barrier to ex-felons reintegrating into society, focusing government interventions on disincentives to employment instead of funding programs that promote it. How much sense does that make?

Guillen bill would reduce licensure barriers for many former felons

Ana Correa from the Texas Criminal Justice Coalition points out another good re-entry related bill authored by last session's House Appropriations Vice-Chairman Ryan Guillen, HB 70, described thusly in a TDCJ fact sheet she sent me (not online):

Returning offenders need gainful employment in order to reintegrate and take personal responsibility.

Texas has 168 state laws that forbid felons from obtaining jobs. Texas law also designates over 2000 individual offenses as felonies, which results in a huge felon population in Texas. In fact, approximately 1 in 11 Texas adults have a felony conviction on his or her record. These people must find jobs and housing or risk returning to illegal activity to survive.

What does the bill do?

House Bill 70, by Representative Ryan Guillen, would allow for the provisional licensure of individuals convicted of misdemeanors or non-violent, non-sex-related felonies. The bill would not allow crimes older than 5 years to count against an individual’s eligibility for professional licenses, and it would allow those with a recent criminal history to be granted a 6-month temporary license on the condition that they not break laws or administrative rules and not be revoked from parole or probation. Successful completion of the provisionary period would result in the granting of a full license, while failure to comply would result in disqualification of the license.

Licensing requirements apply to a wide range of jobs that should be available to qualified ex-offenders.

Licensing requirements apply to a significant number of occupations, including cosmetologist, manicurist, air conditioning and refrigeration contractors, electricians, water well drillers, and many others.

This list is not complete, but it does reveal the array of options arbitrarily excluded from ex-offenders. By expanding the range of possible vocations, the State can encourage these individuals to support themselves by applying their particular skill sets, thereby reducing the likelihood that they will remain unemployed or return to crime.

H.B. 70 would assist reformed Texans in becoming contributing members of society

By allowing ex-offenders to obtain provisional licenses for which they are otherwise qualified, Texas can help returning offenders obtain gainful employment, which will facilitate their reintegration into our communities and allow them to take personal responsibility for their actions.