Arguments for Republican bail bill become nonsensical when debating rural jails

I've gotta say, 2021 has been dispiriting on many levels, not the least of which is the partisanship injected into criminal-justice topics turning once-rational individuals into liars and/or idiots.

Over the last week, Just Liberty has been walking around to rural members - almost all Republicans, since the Dems are in Washington, D.C. - discussing the effects of the Governor's bail bill (HB2/SB6/HJR1) on rural jails. (See Grits' testimony to the House Criminal Jurisprudence Committee on the topic.)

The basic argument is that 97 mostly rural jails, as of July 1st, were already full and contracting to house prisoners outside their facilities. Boosting pretrial detention in HB1 is aimed at supposed problems in Houston, but the laws they want to change would affect all of Texas, and would harm rural counties the worst. 

Most member offices were happy to receive information about how the bail bill would affect jails in their districts. But we received bizarre pushback from the offices most closely involved with the bill: They insisted that the claim pretrial detention would increase was "overstated."

This is bizarre because we didn't make any claim about the scope of the increase, just that there would be one. But staffers working on the bill pushed back to say magistrates forbidden from giving personal bonds could just set bail at $1 and then pretrial detention wouldn't go up.

Which would be fine, except then what's the point of the bill? My understanding was that there is a class of defendants currently being released on personal bonds that Andy Kahan, the Governor, and Joan Huffman think should be held in jail instead. To the extent that the bill achieves that goal, it does so by increasing the scope of pretrial detention. If the bill authors don't mind those same defendants being released on $1 bond, and don't think pretrial detention will go up, I'm not sure what the hell we're doing here.

IRL, no serious person believes that HB1/SB6 would not increase pretrial detention. That's a political stance, not a legitimate policy take. If Republican legislators admitted these thoughtless policies put rural counties in an economic bind, the conflict between this legislation and rural interests would quickly become apparent. Historically, that's one of the axes on which even popular legislation can die at the Texas capitol.

But as long as rural, Republican legislators value attacking Democrats in Houston more than protecting the economic interests of the counties they represent, rural interests will continue to be sacrificed on the altar of the Governor's political ambitions.

To be clear, this isn't just about bail; it's part of a larger trend. Texas' government at this point is broken, driven by national, partisan agendas with little connection to the eclectic, diverse communities that make up this state. I'm sure ignoring rural interests to "own the Dems" on bail seems super clever to the Governor's political consultants, but that's the core of their base: Taking them for granted and even harming them to score partisan points may work out in the near term., but long term it's not great politics.

CREATIVE ASIDE: For handouts at the capitol, I'd created this little booklet with a general discussion of how the bail bill affects rural jails:

Then I created member-specific flyers discussing specific issues in members' districts, including the little orange booklet as insert. Here's the one for Rep. Shelby Slawson:

These pieces are a bit of an experiment: With many offices still hard to reach due to COVID protocols, staffers working remotely, and the rise of Zoom meetings, it's become harder to reach legislators and their staff. Whereas it used to be easy to drop into an office and talk to whomever you needed to speak to, these days you're likely to be asked to schedule a Zoom meeting in a week or just drop off a fact sheet. But I question whether anybody's reading the mountain of 8.5x11 paper being dropped off in member offices, so I'm testing different forms for legislative communications, using methods more commonly associated with movement zines to communicate with offices.

I figure if I'm bored with the 8.5x11 fact sheet format, staffers would likely be completely fed up with it.

Humorously, the missus was skeptical about distributing my "arts and crafts project" in a professional environment, but members' staff loved them and our lobbyist came back wanting more of the individualized versions. People liked them because they're unique, relevant, and personalized. We may be living in the Digital Age, but there's still some room for more creative papercraft in political comms.

Fascism Unsheathed: Let's be very clear about what just happened at the #txlege

For many years, your correspondent has sought to work in a bipartisan fashion at the Texas Legislature on criminal-justice reform, and I've taken a lot of crap from folks on the left for working closely with Republicans who are sometimes, shall we say, less than ardently committed to the project. 

Beyond the simple math of needing Republican votes in a red state to pass bills, my response has been that more moderate, pro-social elements in the GOP needed to be affirmed and bolstered. The GOP base in Texas includes totalitarian, racist elements which lately have been swirling in a near-policy-free furor of anger and resentment. By engaging with libertarian factions and more compassionate elements in the religious wing of the party, I've argued in innumerable trainings and funder conversations, the criminal-justice reform movement in Texas was attempting to "blunt the spear tip of American fascism."

In 2021, the spear tip was unsheathed and thrust deep into the body politic: A combination of the pandemic, President Trump's defeat, and the January 6th insurrection seem to have finally awakened the beast. This was the year the far-right wing of the party finally got its wish list they'd been denied in the 20 years since Republicans took power in Texas: The entire legislative session was about abortion, guns, jingoism, and "backing the blue." Compassionate conservatism and non-gun-themed libertarianism were more or less banned from the building, or at least the eastern wing.

The Texas House, with a larger, more ideologically diverse membership, retains a broader array of Republicans that still includes some "small government" and/or "compassionate" types. They managed to pass several significant criminal justice reform bills, but virtually nothing of consequence made it through the senate. Reforms with overwhelmingly positive, bipartisan polling numbers like reducing marijuana penalties and ending arrest/jail for Class C non-jailable traffic offenses could never even get committee hearings on the eastern side of the building. Instead Sen. Joan Huffman wasted weeks on a failed effort to gerrymander appellate courts to rescind recent Democratic gains.

Some of this lurch toward totalitarianism was overt and ham-handed, perhaps most notably legislation to require sports teams to play the Star Spangled Banner. More insidious were attempts to control historical narratives about race and slavery in Texas schools and museums. These efforts were as shameful as they were transparently authoritarian. We're just a step or two away from parading historians through the streets in dunce caps. 

Perhaps the most subtly fascist influence radiating out of this session was HB 1900, ostensibly punishing cities that "defund police." Large cities and counties henceforth must prioritize spending on law enforcement, leaving roads, parks, social services, or any other traditional municipal functions to wither in a time of massive urban growth. 

Grits believes the purpose here is both political and dystopian: Texas' large cities are now almost all (but Fort Worth) run by Democrats. So the Governor and his allies aim to make cities un-manageable, then blame Democrats for mismanaging them. Given the state's largely lapdog political press, I understand why he thinks he'll be able to control that narrative and redirect blame. He's probably right.

It's a valid and effective political strategy, even if it's nonsensical bordering on asinine as public policy.*

If HB 1900 is enforced, it will be incredibly harmful: All large Texas cities have for years already prioritized police spending over other municipal functions which have languished and at this point require investment this bill will prevent. 

Now, new spending must go first to the cops, and with municipal revenue caps installed last session, that pretty much precludes spending on anything else. This exacerbates the problem of which police chiefs have complained for years: that they're being tasked to solve social problems for which they're ill equipped. Nowhere is that dynamic more clear than in the statewide homeless ban, which criminalizes cooking or sleeping outside under a blanket. Poor people evicted from their homes? Send police. Mental illness untreated? Send police. Veterans with addiction and/or PTSD who can't hold a job and end up on the streets? Send police. Elderly people forced to live in tents because inadequate social security checks won't cover escalating rents? Send police. I can't think of a clearer definition of authoritarianism. 

Not only does the legislation criminalize poverty and punish it with unreasonable penalties (fining homeless people is a fool's errand and jailing them for sleeping accomplishes nothing), it begins the process of de-linking law enforcement from civilian control. HB 1925 prevents cities from setting policies for police departments' enforcement priorities regarding homelessness, making them over time both ever-more extravagantly funded (thanks to HB 1900) and increasingly unaccountable to the cities paying their bills.

Who knows how far we'll head down that path? But history generally views with disapprobation those periods when the armed agents of the state are left free to abandon the public weal and act in their own interests. The Roman legions, for example, were prone to deposing emperors who asked them to pound swords into ploughshares. Law enforcement interests in Texas behave the same way, which is why Emperor Abbott panders to them so incessantly.

Grits see this as a camel's nose under the tent, mandating cities fund police departments to the exclusion of other priorities while eviscerating cities' policy-setting role and leaving the cops as independent actors. Well-funded, unaccountable law enforcement acting as independent agents outside of civilian control is the sort of situation that makes me use a harsh term like "fascist." The net sum of all these policies taken together aims Texas' largest jurisdictions squarely in that direction.

Indeed, this year it became evident that police reform of even the smallest sort cannot occur in Texas while Greg Abbott and Dan Patrick remain in office. Both of them defer almost completely to police-union interests on criminal-justice policy. Even the "Sunset" bill for the Texas Commission on Law Enforcement could not pass. Legislators wanted to create a "blue-ribbon commission" to study reforming the police licensing agency, but police unions don't want reforms proposed and so killed the bill outright. 

Of roughly eight different bills making up the Texas George Floyd Act package, only one (banning chokeholds) made it through in anything close to the original, filed version. Another, the "duties" to intervene and render aid, passed in a form that will almost certainly guarantee no interventions and very little aid. 

Two years ago, I wrote that 2019 was a "killing field" for criminal-justice reform bills; this year was worse. This time, law enforcement wasn't just killing off reform proposals, they were ascendant, insisting their interests be prioritized above all other public-policy goals or community values. And Texas state leadership all but fell over themselves giving them everything they wanted.

This blog and Just Liberty, the group I work for, focus a lot on wonky minutiae in order to identify narrow reforms both parties can support. But we can't wonk our way out of this political moment: What's at stake is nothing less than the soul of the state and arguably, given national implications of Texas' role in the GOP and the electoral college, the future of the American political experiment.

Texans of good will: Today, you're living through the American equivalent of the Weimar Republic and history has placed us at the epicenter of far-right-wing ascendance in American politics. Behave accordingly. We may not get another chance.

*More than asinine, to channel Stephen A. Smith, this is assi-ten, ass-eleven ...

Might "anti-defund" legislation demilitarize and redefine 21st century policing? On the predictable if unintended consequences of micromanaging city budget decisions

Grits has been thinking about "defund the police" legislation (HB 1900) at the Texas Legislature, which seeks to punish Austin's budget decisions from last year shifting money from police to EMS and making the crime lab and 911 call center independent. The bill would punish cities that reduce police budgets unless the overall budget reduces by the same proportion. If the overall budget increases, the police budget must increase to retain its prior, overall percentage of spending. In other words, henceforth, in cities with more than 250,000 population, every new investment in roads, parks, housing, infrastructure, mental health, addiction treatment, homeless services,  etc., would have to be matched with increases to the police budget.

On its face, this would bind Texas cities' hands and make them all but unmanageable. After all, the biggest problems they face stem from the fact that their predecessors over-invested in police, jails, and prisons to confront social problems instead of investing in other solutions (e.g., mass transit, mental-health-and-addiction services, transitional housing and services for the homeless).

I believe that's the goal: A feature, not a bug. Governor Abbott intends to make Texas cities unmanageable and then blame Democrats for mismanaging them. If Republicans ever regained control of these jurisdictions, his office would cease to enforce the "defund" strictures (it's 100% at his discretion), and I wouldn't expect these requirements to ever be imposed on Republican-led cities, even though several of them in recent years have reduced their police-department budgets.

But for large cities which for the foreseeable future are governed by Democrats, this creates a conundrum. Big-city police chiefs have been complaining for the past decade that their officers are being asked to impose criminal-justice solutions to what are essentially social and healthcare problems they're ill-equipped to handle. Now, though, the Legislature is poised to insist cities can only confront these problems with police: A full-blown Catch 22 from a management perspective. They're leaving cities with no good options to address urban problems, which again, Grits believes is the point.

That said, I also believe this ham-handed attempt to bludgeon city leaders underestimates the variety of tools at their disposal and the wide array of methods available for cities to get around any strictures.

I'm sure there are many options, but here's my first thought: If the anti-defund bill passes, cities should begin to deploy unarmed officer cohorts whose primary functions fulfill the needs they'd otherwise fund in other parts of the budget.

Anyone who's traveled to the UK has seen unarmed police officers ably enforcing the laws as surely as American cops do with guns, and when they're needed there are special armed squads which can be called out or beat officers can be armed in a pinch. 

Here, though, Grits suspects squads of unarmed officers might be deployed much differently. For example, using money diverted from the police budget, Austin has begun having EMS respond to certain mental-health calls, with impressive early successes. If they're not allowed to expand that going forward because money must be spent on police, that won't obviate the need for non-carceral solutions to untreated mental illness. 

So what should they do? No one but fools think Texas can arrest its way out of these problems. And once legislators go home (without having expanded Medicaid, I should add, which might pay for non-carceral mental-health treatment), cities will still have to confront these issues with whatever tools are left in their toolbox. 

Consider the possibilities of unarmed social-or-health workers with a badge but no gun responding to homeless and mental health calls, possibly working closely with or even for the expanded EMS cohort recently created for mental-health first response and various city service providers. Whereas past protocols put officers in charge when they were on site with EMS, those roles could just as easily be reversed, particularly for the squad of unarmed officers whose primary role isn't arrest-and-incarcerate.

Such a program could include specialized recruitment and training to get people with relevant backgrounds in health care or social services who want to, say, work with the homeless or the mentally ill but don't want to carry a gun, enforce traffic laws, fire bean-bag rounds at protesters, etc..

These unarmed officers could always call their armed colleagues if needed but would primarily be deployed at tasks where it's not. Over time, cities could identify other activities where unarmed officers could fill roles that, in a more rationally governed state, might not normally be associated with law enforcement. But if cities are only allowed to fund cops, don't be surprised if the definition of "cop" inevitably expands.

The governor and his allies intend to box cities in, but I suspect they're making a strategic error. There's a bit of common military advice dating to Sun Tzu: Never completely surround an enemy's army; surround them on three sides and leave open the path you want them to take. The "defund" legislation does the opposite, attempting to surround cities completely and give them no path at all to move forward. Sun Tzu counseled that this could lead to either a) desperation and a bloodbath or b) creative tactics by the enemy that exploit one's army's overreach.

The latter is where I think this is headed: The Legislature meets only once every two years while city councils meet all the time and deploy vast bureaucracies to find ways to bypass legal barriers erected at the capitol. There will be several obvious workarounds, but here's a starting point: If the "punish defunders" legislation passes, Grits believes it will mark the beginning of a transformation of the definition of "police officer" as cities deploy services under the policing banner to confront problems they're not allowed to pay for in other parts of the budget.

If cities can only spend money on cops but the problems they must confront are only tangentially crime-related, inevitably they will begin to adjust what police do to deploy the only resources at their disposal at the biggest problems facing their constituents.

If I'm right, the "defund" legislation could have an unintended consequence of rapidly altering the definition of what it means to be a "police officer" in this state. How ironic would it be if this train wreck of a policy, promoted in the name of defending law enforcement, ends up being the trigger that launches its devolution into a less militarized, more service-focused 21st-century institution?

That outcome's not inevitable - the police unions would fight it, just as the Roman legions resisted pounding their swords into ploughshares - but Grits wouldn't be surprised: As the prophets foretold: The arc of history is long, but bends toward justice.

Five Observations and a Prediction: Why police budget hikes could become a thing of the past in Texas if HB 1900 becomes law

In no particular order, here are five observations and a prediction about a week filled with losses for the Texas criminal-justice reform movement at the Texas Legislature and in San Antonio and Austin.

#1: Policy fights now head to the courts

Every policy fight can and frequently does play out in an array of venues and the legislative process is only one of them. Some of the legislative losses this week are on topics - more restrictive detention policies from bail reform, limiting prosecutor discretion on new anti-homeless laws and arrested protesters, dictating home-rule-cities' budget prerogatives, etc. - that Grits expects to be litigated as soon as they're implemented. Some of it will stand, some of it won't. ¿Quien sabe? E.g., Austin changed its homeless arrest policy after federal court rulings deemed similar laws in California unconstitutional. Once it's changed back, those precedents will now be litigated here. Hell, if it's extended statewide, litigants can cherry pick which judge they want to bring it before. Right now, debates at the Texas Legislature on everything from bail to homelessness to abortion have become rather unhinged from and not particularly cognizant of nor in any way aligned with federal court rulings governing the same topics. Sign of the times, I guess: Picking needless fights on every front. I can't always tell if it's intentional or they just don't know any better. Little of both, probably.

#2: Ex Post Facto: Know the term

The "defund the police" legislation which will likely pass the Texas House today is a rather blatant example of an "ex post facto law" banned in Art. 1, Sec. 16 of the Texas Constitution and Art. 1, Sections 9 and 10 of the US Constitution. House Parliamentarians don't rule on constitutional issues (with few exceptions, they stick to interpreting the House rules), but IRL, courts do. And the originalist history of the ban on "ex post facto laws" is well established: While more commonly used today in terms of criminal law, it was created so that governments couldn't arbitrarily invalidate budgeting and spending decisions.

#3: The push to disconnect policing from policy makers

An oddity of both the anti-homeless legislation in the Texas Legislature and Prop B approved by Austin voters is the proposal to divorce law enforcement decision making from the policy making bodies that set their budgets and supposedly provide oversight. The state legislation would extend this to prosecutors, limiting prosecutor discretion in Class C cases against the homeless and creating a bizarre situation where prosecutors have more discretion to be lenient to murderers than the poorest of the poor. There are long-term implications for divorcing the armed agents of the state from the control of legitimate democratically-elected policymaking authorities: Examples are numerous, dating at least to the Roman legions' repeated usurpations of the Imperial Senate and various emperors in ancient times. That's more or less how your correspondent views the police-union cabals to whom legislators are kowtowing, and it's hard to see much good coming from disconnecting those folks from the constraints of civil authority.

#4: Why the folks shouting "Back the Blue" don't mind risking cops' lives

The most remarkable thing about this week was that MANY of the same legislators who've been crowing "Back the Blue" for months ignored widespread warnings from law enforcement to pass unlicensed-carry gun legislation. And I mean didn't give a damn: Lip service paid, then vote the other way on a party line, with cops telling them openly, in numbers, "this puts us at risk." Pairing that with the "defund the police" debate on the House floor, one witnessed legislators touting near the top of their lungs that cops deserve absolute deference, then in nearly the next breath insisting the cops were overstating the risks they faced because they were intimidated by some kind of woke, Big Government liberalism from the cities. It was bizarre, and only makes sense if one assumes the love of police is conditional on their political utility. Tbh, I always have, but this made it obvious and nearly inarguable.

#5: A craven betrayal

The word that keeps coming to Grits' mind for the Austin city council restarting cadet classes without demanding a reformed curriculum is "craven." They promised there'd be community participation in the process and then plowed forward without it. And while they added an amendment to the item requiring a report from the City Manager on the progress of curriculum change before the new class starts (June 7), the amendment created no process to halt the class if the curriculum isn't ready. That's because the council majority DOES NOT CARE ABOUT REFORMING THE ACADEMY. It was a promise several of them made when they were running for re-election. But now that they're safely back in their seats, having secured all the support they needed from grassroots reformers in their districts, they don't mind screwing over the Chas Moores and Meme Styles of the world: West Austin brings more votes. Adding insult to injury, most of the key, Austin police-reform leaders skipped the meeting at City Hall to show up at the Legislature and try to fight the "defund" bill, scheduled for the same day on the House floor. No good deed goes unpunished. This was a betrayal and your correspondent won't soon forget it.

Prediction: If "Anti-Defund the Police" bill passes, police budget hikes are a thing of the past

The Legislature gets to write the laws, but even they are not immune from the Law of Unintended Consequences.  I don't think legislators have considered the incentives they're putting in place in HB 1900 punishing cities that "defund" police department (by which in Austin's case they mean delaying cadet classes by one year). Going forward, cities that increase police spending can never again lower it. But they often need to do so. Now, cities will decline to spend more, knowing they won't be allowed to spend less. Bill authors even rejected amendments so that overtime for one-off special events - like a Super Bowl weekend in Houston - would be counted against them the following year. If I'm right about the new incentives facing city councils under this legislation, the result will be to suppress police spending instead of bolster it. I predict that if HB 1900 becomes law, when we look back five years from now the growth rate in police budgets will have flattened, not rallied.

Indeed, the most delicious irony may well come if HB 1900 ends up itself defunding the police! 

Wealthy communities without much police presence have for decades coveted caps on utility rates and property taxes. Some of them also want de-annexation (the recent Austin lakeside de-annexation dispute a case in point). They don't see police much and most of their thinking on this is based more on ideological and partisan predilections than a hard-nosed assessment of self interest.  HB 1900 could well create a "run on the bank" with voters at both ends of the spectrum showing up to defund the police, reallocate hundreds of millions of dollars, and trigger revenue caps and de-annexations that could change fundamentally how cities are constructed and managed in Texas.

Is that the intent of the legislation? No, the intent is to "own the libs." And the libs don't want to be "owned." Other than that, very few under the Pink Dome have thought through the implications of this legislation at all. And it shows.

Bootlicking city officials a barrier to police reform

As long as politicians let police dictate the limits of reform, there will be no significant reform and the same problems inevitably will recur. When the El Paso City Council approved its legislative agenda three weeks ago, the police department was given de facto veto power. Reported KTSM-TV:

The El Paso Police Department has proposed the council consider opposing the following:

• Prohibiting neck or throat restraint, unless allowed in extreme circumstances
• Removal of qualified immunity
• Elimination or revision of asset forfeiture
• Prohibition of no knock entries, unless adopted under TCOLE policy
• Unfunded mandates
• Disciplinary matrix
• Cite and release mandates

The El Paso Police Department supports

• Policies around the department’s policies
• Use for force policy promulgated by the TCOLE
• De-escalation policy promulgated by TCOLE
• Release of police employment records promulgated by TCOLE
• Duty to intervene
• Additional reporting requirements for use of force, no knock entries
• Consent to motor vehicle search, provided that motor vehicle recording is allowed
• Additional training, provided that does not result in significant increase in costs, unless state provides resources and funds.

In the end, on every point "the council voted in-line with the El Paso Police Department’s recommendations for issues police support."

Other than additional reporting for use of force and no-knock entries, which would be a significant get, the police department's "reform" agenda largely amounts to acquiescing to non-binding policy recommendations while continuing more-of-the-same policing. They oppose even what most people consider the "low hanging fruit" like ending chokeholds or instituting a disciplinary matrix. After episodes like George Floyd's killing in Minneapolis and the horrendous treatment of Jorge Gonzalez in Edinburg, I'm amazed police are still defending neck restraints. But apparently we still have to have that argument.

In addition, bowing to pressure from the department, "The council decided to remain neutral in the deliberation of the proposed George Floyd Act unveiled by the Texas Black Caucus last August."

Pay close attention to local politics in most Texas cities and you'll find civilian control of police departments is an in-name-only arrangement. Cops dictate to city councils, not the other way around. That's clearly what happened with El Paso's legislative agenda. It's likely what's happening in your town, too.

#txlege committees should post witness materials, testimony online

Some Texas legislative committees, like House County Affairs, helpfully post on the committee website the handouts and written testimony given to members at committee hearings.

Others, like the House Criminal Jurisprudence and Corrections Committees, do not.

All of them should, whether it's individual committee chairs choosing to post that material or implemented across the board when each chamber's rules are adopted in January.

Posting handouts and written testimony online, particularly the data-driven presentations frequently offered by agency staff, would make it easier for the public watching the hearings outside of Austin to follow along. It would also improve press coverage of legislative debates.

In general, reporters or members of the public can always, ultimately get access to these presentations, either by appealing to a sympathetic member, calling individuals who testified to ask for their materials, or filing open records requests in the case of agency testimony. But many more people would/could access the information, and with a lot less hassle, if it were posted online automatically.

This move would help everyone, from the wonkiest number cruncher looking for data discussed at the hearing to the average citizen in Abilene or Amarillo watching the hearings from afar and trying to understand what's going on. It would even benefit legislative and agency staff to put all that stuff where they can access it electronically.

Grits would like to see the practice become the rule, not the exception.

***

Still waiting on TDCJ statistical report
Speaking of not posting data online, the FY 2017 TDCJ Statistical report, discussed here, STILL has not been posted online. The last annual dataset released by the agency was for year ending Aug. 31, 2016, so that information is now more than two years old. WTF?

This is all data that TDCJ tracks in minute detail and includes in various, internal reports which are updated monthly. There is no good reason to believe annual reports couldn't be produced by the end of the CALENDAR year in which the fiscal year ends. County jails must update their population figures monthly; there's no way to justify TDCJ getting to sit on their data for so long.

Brandi Grissom Interview: TJJD/Gainesville sex abuse scandal

In the December episode of the Reasonably Suspicious podcast, we included an excerpt from an interview by Grits with Brandi Grissom-Swicegood, who just left her post as Dallas Morning News Austin bureau chief to pursue a second career as a professional triathlete. Brandi's final story for the News focused on the emerging sex-assault scandal at the Texas Juvenile Justice Department's Gainesville State School (see prior Grits coverage).

Find a transcript of our full conversation after the jump.

Criminal justice reformers dubbed 'Texan of the Year'

The Dallas News' selection of criminal justice reformers at the Texas Legislature - specifically Rodney Ellis, John Whitmire, and Ruth Jones McLendon, who they collectively dubbed the "Texas Justice League" - as their Texans of the Year was an interesting and welcome choice.

It's welcome because it further highlights the extent to which criminal-justice topics came to dominate the political landscape in 2015, in Texas just as much as across the rest of the country. Interesting because, while reformers had a successful session, it wasn't wildly so. In that sense, the declaration was more of a lifetime achievement award for the three Democrats named than a statement about what was accomplished in 2015. (And if you're going to focus on 2015, why not give props to Chuy Hinojosa who got so much done on forensics reform?)

Also, I don't agree with the "behind-the-scenes political players" who "uniformly described a strong reluctance among rank-and-file Republicans to embrace criminal justice reform." Grits isn't sure whom they interviewed, but rank-and-file Republicans are largely supportive whenever they get to actually vote on reform measures. It's been GOP leadership, especially in the House, which won't move the bills. While these three Dems all deserve recognition, one could easily have identified Republicans - like James White, David Simpson, Konni Burton or John Smithee - to add to their list. In a 2-1 R controlled Legislature, realistically nothing happens just because Democrats want it.

To me, the gifting of Texan of the Year status speaks more broadly to how much the terms of debate have changed in recent years regarding criminal-justice politics in Texas, and at a rapidly accelerated pace throughout 2015.

A lot has gone into changing those terms of debate. Much credit must go to stories like Steven Chaney's and Sandra Bland's, which have fundamentally altered how the justice system is discussed in the press and in political circles. The Texas Public Policy Foundation, key Right on Crime signatories, and a handful of conservative legislators and donors have worked tirelessly in right-wing circles to make it politically safe for Republicans to back small-government justice reforms. Meanwhile, the largest state-level criminal justice reform movement in the country has grown up in Texas to match our largest-in-the-nation prison population, providing considerable expertise, momentum and grassroots oomph to reform efforts.

So, while the Texan of the Year award justly acknowledges these three legislators' achievements, it's also a recognition of a real volteface on criminal justice. In the past 20 years, Texas has gone from a raging bipartisan consensus in favor of mass incarceration - with Ann Richards and the Democrats seeking to out-tuff the Rs with a largest-in-the-history-of-the-nation prison building spree - to an equally bipartisan effort to bring back common sense to the justice system, exhibiting real leadership on innocence, forensics, indigent defense, and sentencing.

By 2015, the terms of debate had shifted 180 degrees from the Ann Richards lock-em-up era to such an extent that, at a legislative hearing soon after Sandra Bland's untimely death, Tea Party affiliated members spoke out as or more strongly against anti-liberty police practices than Democratic liberals on the panel.

In that sense, "Texan of the Year" status is justified for the reasons stated in an accompanying editorial:

The reason this newspaper focuses so much on [criminal justice] is simple: The system has been inherently unfair for decades, wrongfully sending people to prison, or worse, and ruining lives. Change was long overdue. If someone didn’t step up to fight for reforms, this state would continue to rank among the worst in the nation. Texas is now celebrated as a reform leader.

To be clear, in terms of the number of proven false convictions and our tops-in-the-country incarceration levels, Texas continues to "rank among the worst in the nation." But the arguments against addressing that situation have withered away over time. In 2015, it became clear reformers are winning the debate. But politics isn't debate club and it remains to be seen if that will translate in 2017 and beyond to actually ending the era of mass incarceration. That may require Justice League participation of a different order.

Reflecting on Rick Perry's criminal-justice vetoes

Grits has suggested in the past that Texas Gov. Rick Perry has signed more criminal justice reform legislation, arguably, than any sitting U.S. governor. And it's true.

It's also true, though, that some of his vetoes have been particularly damaging to the reform cause. The Austin Statesman performed an an analysis of Perry's vetoes and found that 38 of his 301 vetoes have been in the criminal justice realm. Some I agreed with; many IMO were misguided. Several, regrettably, were bills I've worked on. C'est la vie. Anyway, here are what I consider Perry's worst criminal-justice related vetoes:

Maximizing police arrest powers

Photo via The Economist

SB 730 (2001): After the US Supreme Court ruled in Atwater v. City of Lago Vista that Texas police officers could arrest a Central Texas soccer mom for a Class C misdemeanor traffic offense (in this case, a seat belt violation), the Lege passed bipartisan legislation (Chris Harris in the Senate, Senfronia Thompson and Robert Talton in the House) to forbid arrests (with four limited exceptions) for offenses where the ultimate potential penalty would not include incarceration. Perry vetoed that bill and the extra authority he granted peace officers that day in 2001 has been a source of significant mischief, not to mention additional jail overcrowding pressure, in the intervening years.

There was a second veto related to the Supreme Court's Atwater ruling in 2003, though regrettably the Statesman's database misidentified the bill. SB 1597 by Hinojosa was a watered down version that would have required police departments to enact written policies regarding when their officers may effect arrests for Class C misdemeanor violations. Perry vetoed that, too. And his threat of vetoing related bills essentially closed the issue for a decade after the 2003 compromise bill went down.

If the grassroots wing of the GOP had been in ascendance back in '01 and '03 the way they are today, I seriously doubt Perry would have vetoed these bills. But back then the former Democrat was more beholden to the police unions than to small "l" libertarians in his party base. 2005 represented the last session when the governor appeared to openly carry water for them and these "Soccer Mom Bills," as they were dubbed in the media (after the defendant in the Lago Vista case), were high on the unions' hit list in the years following the turn of the century.

Nixing restraints on police search power at traffic stops
Another unfortunate Perry veto in 2005 nixed a requirement that law enforcement obtain written or recorded oral consent before searching a vehicle at a traffic stop unless they had probable cause, in which case they didn't need it. SB 1195 by Hinojosa was good public policy, both informing drivers of their rights and generating more and better data about the murky world roadside searches. When the Austin PD began requiring written or recorded consent, the number of so-called consent searches at traffic stops declined dramatically. This was an excellent bill and Perry's veto was one of my personal biggest political disappointments during his reign.

No to Blue Warrant relief for county jails
I know there are still Sheriffs frustrated with the governor's 2007 veto of HB 541 by Trey Martinez Fischer that would have allowed parole violators arrested on "blue warrants" (an alleged parole violation) to be released on bond awaiting revocation hearings. This is a perennial complaint from counties - that housing the parolees is an unfunded mandate from the state, which is essentially true - and the governor dashed the hopes of many a local official when he throttled this modest assistance to counties to address jail overcrowding.

Don't tell ex-prisoners about voting rights
It still sticks in my craw that Gov. Perry vetoed a bill in 2007 to provide eligible inmates with voter registration information upon release. That seemed like a small thing and his veto motives appeared transparently partisan, especially after the bill was sent to his desk by a Republican-controlled Lege.

Other Veto Errata
Perry famously line-item vetoed the budget for Tony Fabelo's old Criminal Justice Policy Council, ostensibly because Fabelo issued prison population projections that necessitated either spending on prison construction or passing bills to promote de-incarceration. I've never understood why he vetoed Todd Smith's bill exempting Romeo and Juliet relationships (four years difference or less) from sex offender registration statutes - it passed 131-12 in the House, unanimously in the Senate. Perry has also been hostile to good-time credits applied to inmates seeking parole (vetoed bills in '05 and  '07), and in 2005 he insensibly vetoed Jerry Madden and John Whitmire's comprehensive probation reform package, though he signed an essentially similar bill the following session and now takes credit for it on the campaign stump.

* * *

Grits has occasionally dared to hope that the Lege might revisit some of these topics now that we'll have a new governor in 2015.

What impact of Texas legislative turnover on criminal justice reform?

The Austin Statesman's Tim Eaton has a political analysis of the likely makeup of the Texas House next year, projecting that Republicans will lose seats in the lower chamber but still hold onto 60% or more and ideologically are likely to become more conservative. Further, between unusually large turnover in 2010 and a large number of retirements, there will be more relatively inexperienced legislators in the Texas House, D and R, than any time probably since the aftermath of the Sharpstown bank scandal. Reports Eaton:

Inexperience will also contribute to molding the House's personality.

With 38 freshmen in 2011 and maybe 30 newbies in 2013, the 2013 session could have the most inexperienced collection of members in more than 30 years, Jillson said.

Rep. John Smithee, a Republican from Amarillo with 27 years of experience in the state House, said he can imagine a situation in which there will be more first-term and second-term lawmakers in the House than he has ever seen.

Smithee said it will be difficult to replace some of influential members, who will be leaving for a variety of reasons — personal, professional and political considerations.

"The biggest impact will come from the loss of lots of institutional knowledge," he said. "It's a big loss."

Some Republican legislative leaders who will depart include: Reps. Burt Solomons, R-Carrollton, and chairman of the Redistricting Committee; Will Hartnett, R-Dallas; Jerry Madden, R-Richardson, chairman of the Corrections Committee; Beverly Woolley, R-Houston; Warren Chisum, R-Pampa; and Jim Jackson, R-Carrollton, chairman of Judiciary & Civil Jurisprudence Committee.

The Democrats are losing relatively few important members, such as the soft-spoken Rep. Pete Gallego, D-Alpine, who chaired the House Criminal Jurisprudence committee, and Rep. Scott Hochberg, D-Houston, an expert on school finance. The result of the Democrats remaining largely intact could be greater influence for the party, Acuña said.

But the exodus of long-serving and powerful members also represents opportunity for younger members to fill important committee chairmanships.

On the criminal justice front, of special concern is who fills the chairmanships at the Corrections and Criminal Jurisprudence Committees. On Corrections, Jerry Madden earned a national reputation as a co-author with Sen. John Whitmire of Texas' 2007 probation reforms, while as chair of Criminal Jurisprudence, Pete Gallego was the House sponsor/author of several key innocence reforms including Texas' new eyewitness ID statute. Who replaces those men will tell us a lot about the direction those committees might take, and by extension what might be possible in 2013.

There's a pretty impressive record of criminal justice reform since Texas has been under Republican control, so there's not inherently anything to fear for reformers from the Legislature's continued partisan tilt. More concerning, arguably, may be legislators' relative inexperience. As a general principle, a legislative body awash with inexperienced members bodes poorly for criminal justice because every politician knows as a default  it's safe to run as "tuff" on crime. It takes time to learn the byzantine, interconnected reality of the justice system involving a vast alphabet soup of different local, state and federal actors. There are also many other issues much higher on voters' priority lists, so these subjects mostly aren't coming up in campaigns. Thus, once  at the capitol, inexperienced legislators can become paralyzed, willing to vote for enhancements and new crimes because it looks "tuff," but fearing to reform a system they don't understand yet. By the time a legislator has spent several sessions on the Corrections Committee, for example - hearing testimony, having been lobbied by prosecutors, police unions, chiefs, Sheriffs, not to mention judges, cities, counties, and reformers, delving into the details of recurring, longstanding political squabbles - it becomes (a little) easier to apply one's own principles to specific, real-world problems. That's impossible to do when folks don't even understand what the institutions are and how they work together, plus our short, biennial sessions mean there's not much time for learning on the job.

OTOH, depending on the issue, it's also possible a wave of new, ideologically committed conservatives could take on criminal justice issues that haven't received much focus. At the end of the 2011 session, freshman Rep. David Simpson made Fourth Amendment rights at TSA searches in airports an issue and used grassroots conservative clout to muscle the provision further through the process than anyone thought possible. In my experience, Fourth Amendment issues are ripe for attention by conservatives who really do want government out of our private lives. Much of the grass-roots base supports it, even if the establishment types in the GOP continue to kowtow to the tuff-on-crime crowd.

Moreover, the 2013 Texas Legislature faces a yawning budget gap that will have every pol in the building, freshmen and sophomores included, scratching for budget savings in ways that, on criminal justice, potentially benefit reformers looking to scale back mass incarceration. Unlike education and healthcare, prison spending is one of the few areas the public won't howl like scalded cats in the face of large spending reductions. Indeed, the Lege was mostly praised last year when Texas closed its first prison unit ever since the founding of the Republic. There aren't many other parts of the budget you can point to where cuts earn praise from the public instead of disapprobation. So if the type of draconian cuts threatened at the beginning of last session actually came to fruition, ironically prisons may be one of the politically safest places to cut

Of course, in the real world the Lege can't reduce prison spending significantly without changing incarceration policies. The Lege on paper reduced the budget for prison healthcare last year by around $100 million over the biennium, then TDCJ almost immediately began paying $5 million per month extra while they renegotiated healthcare services, an amount greater than the Lege had cut. Real savings must come from actually reducing the burden on government - bolstering less expensive community supervision while reducing high-cost incarceration to the greatest extent possible. There are an array of possible policy mechanisms to achieve that goal, but with so many new members and so much of the leadership in flux, it's difficult to say whether the Lege will embrace reform or, as happened on so many issues last session, just kick the can further down the road with band-aids and accounting gimmicks.

Bottom line, oversimplifying only a tad: If Small-Government Conservatives act on their principles on criminal justice, generally reformers win. When Big-Government Conservatives side with Big-Government Liberals - which historically has happened much more often - we get penalty enhancements and tuff-on-crime demagoguery. With so much in flux, my crystal ball is hazy regarding which outcome to expect. Texas government finds itself, both politically and financially, in an extraordinarily uneasy transition moment, with such questions largely held hostage by dynamics which are utterly unrelated to public safety and effective criminal justice policy.

'How to curb rogue prosecutors,' or, 'The gathering clouds'

Grits linked the other day to a Dallas News editorial (behind paywall) published over the weekend (Nov. 12) titled "How to curb rogue prosecutors" which opened:

One thread running through many criminal exoneration cases in Texas involves prosecutors who failed their legal and moral duty to justice and fair play.

Too many of them appear to have been more interested in winning a conviction than airing the whole truth, even at the expense of someone’s liberties.

Lawmakers need to unravel these tangled messes, then find ways to build safeguards against willful or sloppy miscarriage of justice in a district attorney’s office.

Notably, to solve this problem, the News offered three suggestions: A statutorily mandated "reciprocal discovery procedure" where prosecutors must open their files to the defense, improved training (la de da), and most intriguingly, creating state-level civil liability for extreme prosecutor misconduct:

Finally, though a prosecutor can be criminally charged for misusing his position, an individual who is railroaded by a crooked DA has no access to state courts to pursue civil claims.

Legislation was filed this year to provide that access and limit a prosecutor’s immunity, but the bill went nowhere, with no debate. Lawmakers should take another look, give the matter their full attention and hear pros and cons.

The vast majority of prosecutors are honorable public servants and should not have to look over their shoulders in fear of nuisance suits. That could drive them out of the profession.

But there are outliers in any occupation, and they should not be immune from accountability.

The bill they're talking about was Rep. Lon Burnam's HB 2641, which, as described in this Grits post, would have provided a "a state-level remedy to federal judicial activism" which created the doctrine of "absolute immunity" for prosecutors whole cloth with no statutory basis whatsoever. If you're really and truly "fed up" with the federal judiciary from a state's rights standpoint, this should be a cause you can get behind: It's the ultimate snub, asserting Texas' rights as a state over decades-old federal judicial fiat. Framed thusly as an expression of 10th Amendment state's rights, I see no reason why such legislation couldn't garner bipartisan support, even if it rankled a lot of prosecutors along the way.

Such ideas seem dangerous and heretical to career prosecutors. But we live in a moment when folks in the Tea Party, the "occupy" movement, those groups' respective fellow travelers, and wide swaths of unaffiliated but alienated voters are fed up with the status quo and potentially open to "dangerous and heretical" ideas. At their user forum, the District and County Attorney Association lobbyist pointed to the Dallas News editorial under the headline, "The gathering clouds." They can see the storm coming.

In many ways, tackling prosecutor (and police) misconduct remains among the lasts frontiers where criminal justice reformers have made little progress. A lot of the early legislative goals of the innocence movement in Texas have been met. Post-conviction DNA testing was established, then expanded. Eyewitness ID legislation was passed and Texas courts are reexamining eyewitness evidence. Corroboration was required for jailhouse informant testimony and undercover drug snitches. Texas now has the most generous compensation package in the nation for exonerees. New standards are being created regarding biological evidence preservation.

Certainly the task is far from complete. I'd still like to see police required to record interrogations, and in light of recent rulings at the Court of Criminal Appeals, Texas' writ law needs tweaking so that defendants can seek habeas relief not just based on new evidence but also new scientific findings that discredit old evidence. Thousands of old, untested rape kits discovered at police departments around the state should be vetted not just for who they might help convict but also who might be exonerated. The Forensic Science Commission's jurisdiction is too constricted and needs to be expanded. With the notable exception of arson cases, no official body has begun to systematically vet bad forensics in old cases. (For example, there's been no official examination of cases where people were convicted based on since-discredited testimony by dog-handler Keith Pikett in so-called "scent lineups.") There's still a lot to do.

But at least on all those issues, what needs to be done is fairly straightforward. Prosecutor misconduct has been among the toughest nuts to crack, in part because there's a paucity of ideas for how to effectively rein it in. To say the state bar has been ineffective on the topic would be generous. (I've heard it said they've been "complicit," which is closer to the truth.) Complicating matters, prosecutors enjoy disproportionate power both in local politics and at the Lege.

There's a little time - not much, but a little - to figure out the best approach to confront prosecutorial misconduct in the current political environment before the 83rd Texas Legislature is upon us. See Grits' greatest hit list of ideas on possible legislative solutions to prosecutorial misconduct, and let me know what other clever suggestions you come up with, in the comments or via email. There's bound to be a way to skin this cat that'll satisfy everybody across the political spectrum, or at least everyone who's not just fundamentally against cat skinning in the first place.

Prominent committee chairmen leaving House criminal justice posts

House Corrections Committee Chairman Jerry Madden and House Criminal Jurisprudence Chairman Pete Gallego have both announced they won't run for reelection next year, reports the Austin Statesman. Both will be missed by criminal-justice reformers.

A Craddick Republican loyalist, Jerry Madden was the House architect of Texas probation reforms that reduced incarceration rates and avoided new prison construction during the first decade of the 21st century, while Gallego, a West Texas Democrat, was the House author of much of Texas recent "innocence" legislation, including insisting that police departments have written eyewitness ID procedures and requiring corroboration for the testimony of jailhouse informants. I think Gallego may have been the only legislator under the pink dome who actually understood the ins and outs of habeas corpus proceedings. Both men had the kind of tactical know-how only years of experience can bring. As a nationally respected GOP reformer, Madden's voice will be especially missed as chairman. His storied partnership with Senate Criminal Justice Committee Chairman John Whitmire made possible a series of reform bills that nobody expected but which have saved the state hundreds of millions in incarceration costs during a period of declining crime.

The problem is these are complex topics where every decision affects multiple, disparate institutions from the local to county to the state and occasionally even the federal level. For their first few sessions, most legislators are baffled by what to do on criminal justice subjects beyond whatever seems "tuff," and usually only more seasoned veterans like Gallego, Madden, Ray Allen before him on Corrections, or John Whitmire and Rodney Ellis on the Senate.side demonstrate the cojones to pursue more serious reforms.

My hope is that the Speaker replaces Madden on Corrections with somebody who, like his or her conservative predecessors, is a respected veteran committed to keeping costs down. If that remains the goal, then no matter who replaces Madden, basically the same array of policy choices will confront them: either spending potentially billions to build more prisons or plowing forward along the alternative path Madden and Whitmire began to forge. The pair weren't named Governing magazine's 2010 Public Officials of the Year for nothing.

The House Criminal Jurisprudence Committee, by contrast, while it has passed significant "innocence" legislation, much of it carried by Pete Gallego, has never been on board with de-incarceration reforms passed in other committees. Instead they passed dozens of new crimes and enhancements each session under Gallego's leadership, even as the Lege adopted other measures, mostly through the Corrections Committee, to reduce the prison population.

Criminal Jurisprudence needs to continue its innocence work, but it would benefit from a new small-government focus to consolidate the goddawful mess created by piecemealing together dozens of new crimes and enhancements every session. In many ways, Gallego's not personally to blame that the committee operates that way; the committee has always operated that way, which is how Texas got more than 2,400 felonies on the books. But there needs to be a concerted effort by the next chair to stop creating new crimes and enhancements, and to shift more liability, where possible, back to the civil courts. The next chair of House Criminal Jurisprudence should reconsider past enhancements, and going forward, the committee should follow the advice of the Texas Public Policy Foundation to stop criminalizing business and social behaviors that could be better regulated by other means.

The Legislature will be filled with new faces in key positions in the 83rd session. What that says about the prospects for reform depends largely on the quality of leaders who replace these chairmen and what they're willing and able to accomplish. In any event, certainly in these two committees and probably more broadly, 2013 will see a changing of the guard at the Texas Legislature. Good luck to Madden and Gallego, as well as other departing legislators, as they move to the next chapter of their lives.

MORE: Texas Insider posts Madden's exit statement.

Criminal-justice items among TX House interim charges

Looking through the interim charges (pdf) for Texas House Committees (i.e., the questions the Speaker of the House has formally asked committee chairman to examine in between the state's biennial sessions), here are the ones I identified as potentially interesting from a criminal justice perspective:

Appropriations
 For reasons made clear in this recent Grits post, this subject may delve more than expected into criminal justice topics: "Study existing financing mechanisms and delivery methods for long-term services and supports in the Texas Medicaid program. Consider best practices, expansion of consumer-directed models, and successful programs in other states. Make recommendations to simplify and streamline existing programs and to provide services in a more cost-effective manner to a greater number of eligible individuals while ensuring an appropriate level of services for those with significant needs."

Appropriations will also cross into the criminal justice arena when they "Assess the current infrastructure and funding mechanisms for mental health services in both rural and urban areas throughout the state. Study innovative local programs that could be expanded, as well as successful delivery and financial models in other states. Make recommendations to expand access and improve services through increased efficiency, competition, and transparency."

And they'll formally revisit prison health financing in the wake of devolving negotiations between TDCJ and UTMB: "Monitor the administration of the Correctional Managed Health Care system. Examine the implementation of reforms passed during the 82nd Legislative Session, including the contracts between the Texas Department of Criminal Justice and participating entities under Rider 55 to ensure the expenses incurred match the appropriated amounts."

In a joint charge with the House Committee on Homeland Security and Public Safety, Appropriations will "Monitor the Texas Department of Public Safety's implementation of the driver's license improvement plan and the use of the funds appropriated to the department for such purposes by the 82nd Legislature" and "Evaluate the feasibility of privatization with the intent to minimize wait times for Texans."

Border and Intergovernmental Affairs
In a joint charge with the House Committee on Homeland Security and Public Safety, the committee will investigate "whether existing provisions adequately address security and efficiency concerns for steamship agencies and land ports of entry along the Texas-Mexico border," and "Evaluate whether the state and the federal government have provided sufficient manpower, infrastructure, and technology to personnel in the border region."

Also portending a interesting hearing: "Examine the extent of interstate coordination concerning border security and intelligence sharing and determine whether any changes to state law are needed to enhance such coordination and cooperation."

Corrections

This committee will have a big juvenile focus in the interim, overseeing the creation of the new juvenile justice department and entertaining notable, juvenile related charges including to, "Study ways to reduce the number of youth referred to the juvenile justice system. Consider the availability of mental health services, diversion and early intervention programs, and other prevention methods." The committee will also "Study and make recommendations about issues related to the certification of juveniles as adults.

On the adult side, the Corrections Committee has been charged with taking a prolonged look at parole: "Review current parole supervision strategies to ensure that resources are being used efficiently to maximize the state's need for public safety and rehabilitation."

County Affairs
This committee has a potentially far-reaching charge to "Conduct a general study of issues facing county jails. The study should include innovative ways to address overcrowding, the impact homelessness has on the county jail population, and recommendations for handling inmates undergoing detoxification and withdrawal from drugs and alcohol." That charge could go almost anywhere.

Criminal Jurisprudence
Shannon Edmonds said it was inevitable. Interim charge number one for this committee is to study the feasibility of so-called "Caylee's Law." "Study and make recommendations for criminal penalties for the failure of a parent or guardian to report a missing child or the death of a child." As Grits reported in July after attending the prosecutor association's post-legislative briefing, "According to Edmonds the law is unnecessary in Texas. There are at least seven crimes on the books here, he said, with which Anthony could be charged besides murder, including tampering with physical evidence - a second degree felony. Even though it's unnecessary, Edmonds declared 'I guarantee you' the Lege will pass Caylee's Law in 2013. He thinks they simply won't be able to help themselves." He may be right.

One hearing that should be interesting in the wake of passage of SB 122 this session will  be when the committee studies and makes recommendations "regarding the current procedures used in the testing of DNA evidence in Texas. Include a review of the feasibility of certifying additional DNA testing centers." Michael Morton, Hank Skinner, and other names familiar to Grits readers will crop up in that discussion, I'm guessing.

The committee will also broadly examine issues related to sentencing and the mentally ill: "Review the current sentencing practices for defendants with mental illnesses and make recommendations. Study practices in other states," and "[c]ompare recent incarceration trends between those who have mental illnesses and those who do not."

Culture, Recreation and Tourism
The best chance for new seafood-related felonies in 2013 may come from interim recommendations by this committee which includes among its interim charges a call to "Evaluate strategies to control known existing invasive aquatic species, including species commonly referred to as giant salvinia (Salvinia molesta), water hyacinths (family Pontederiaceae), and zebra mussels (family Dreissenidae)." There are presently 11 oyster-related felonies, and if they do one for mussels IMO it should count.

Homeland Security and Public Safety
In addition to the joint committee charges listed above, this committee will "Examine the role of law enforcement personnel assigned to school district campuses and postsecondary education campuses and determine whether any changes to laws concerning the enforcement of safety and discipline are necessary. Determine whether additional training of law enforcement personnel assigned to school district and secondary education campuses is necessary."

Public Education
This committee's main criminal-justice related charge is to "Review and make recommendations on the effectiveness of Disciplinary Alternative Education Programs (DAEPs) and Juvenile Justice Alternative Education Programs (JJAEPs) in reducing students' involvement in further disciplinary infractions. Determine the appropriate role of disciplinary alternative placements in promoting education achievement and how technology could be used to supplement education services. Consider appropriate placements in DAEPs or JJAEPs and consistent funding models for those programs. Consider options for counties without a JJAEP or inefficiently few placements in a JJAEP. Identify positive behavioral models that promote a learning environment for teachers to appropriately instruct while addressing any behavioral issues and enforcing student discipline."

Relatedly, the committee will "Review methods and best practices in Texas and other states to encourage more parental and community involvement in the education of Texas children."

State Affairs
This committee, in a joint effort with the Committee on Government Efficiency and Reform, will "Examine areas of potential privatization of state services in an effort to achieve a higher level of service and greater efficiency for Texas taxpayers."

Technology
This committee will "Examine the benefits and financial costs associated with modernizing 911 call centers with the newest technology to connect dispatchers with callers using mobile means of communication in the fastest and most accurate manner possible during a time of emergency."

Texas: Awash with limited government, and hundreds of new laws

Just received this press release from Tom Vinger at the Texas Department of Public Safety:

Below is a list of selected changes to traffic and criminal statutes. Unless otherwise listed, all laws below take effect September 1, 2 011. Please note that this is not a comprehensive list of all new laws passed by the Texas Legislature.

Criminal Laws
·        Certain synthetic compounds deceptively labeled as “bath salts” and synthetic marijuana products (K2 or spice) have been added to Penalty Group 2 of the Texas Controlled Substances Act. (HB 2118, SB 331)  Bath salts contain dangerous stimulants, and K2 mimics the effects of marijuana. Both have been sold in convenience stores and head shops, and have side effects that can be harmful and long-lasting.
·        The electronic transmission or possession of visual material depicting a minor engaging in sexual conduct (“sexting”) has been added as an offense in the Penal Code. The penalty can range from a Class C misdemeanor to Class A misdemeanor, dependi ng on the circumstances. This does not apply to minors involved in a dating relationship or spouses. (SB 407)
·        The possession or use of tire deflation devices, commonly known as caltrops, for any purpose other than law enforcement use or as an antique or curio is prohibited. Criminal organizations have increasingly used caltrops as they attempt to evade apprehension, resulting in damage to patrol vehicles and innocent vehicles on the road. (SB 1416)

Traffic Laws
·        Tow trucks have now been added to the slow down or move over laws, which require drivers to slow down 20 miles per hour below the speed limit, or to vacate the lane closest to the stopped emergency vehicle that has emergency lights activated if the road has multiple lanes traveling in the same direc t ion. (HB 378)
·        Speed limits will now be the same during night and day driving, and separate speed limits for trucks have been eliminated. The maximum speed limit on state highways may be raised to 75 miles per hour if approved after a finding by TxDOT that the increased speed would be reasonable and safe following an engineering and traffic investigation. (HB 1353)
·        A driver may not allow a child under 18 to ride in a watercraft while it is being towed on a street or highway.  This does not include watercraft being towed on a beach or in a parade. (HB 2981)

Driver License
·        Hardship driver licenses will be suspended if the holder is convicted of two or more moving violations during a 12-month period. DPS may no longer waive the driver education requirement to issue a 60-day hardship license. (HB 90)
·        Drivers subject to the Driver Responsibility Program will be able to pay the entire three-year amount of surcharges owed for a violation in advance, rather than paying across all three years. (HB 588)
·        Veterans will be exempt from the fee for a personal identification certificate if they can show honorable discharge and at least 60 percent service-related disability. Disabled veterans are exempted from driver license fees under current law. (HB 1148)
·        A veteran design ation will be displayed on a driver license for applicants who provide proof of military service and honorable discharge. (HB 1514)
·        The Sunset Commission has been charged with reviewing the current oversight structure of driver education and driver safety schools, which are currently overseen by the Texas Education Agency, and determine if another state agency should have oversight. Providers of driver education courses, including DPS for the purposes of parent taught driver education, will be able to provide certificates of completion directly to those who have completed driver education courses. (HB 2678)
·        DPS will establish a deferral program for surcharges assessed under the Driver Responsibility Program to military personnel actively deployed outside the U.S. for the duration of the individual’s deployment. (HB 2851)
·        Voters will be required to present a driver license, personal identification certificate, military identification, election identification certificate, United States citizenship certificate passport, or concealed handgun license to participate in an election. DPS must create an election identification certificate to be issued by DPS for registered voters who do not have any of the other acceptable forms of photo identification. The election identification certificate will be distinguishable from a driver license or personal identification certificate, and will be issued free of charge to persons only if they do not hold any other acceptable form of identification, as listed in Election Code 63.0101. These forms of identification include a driver license, personal identification certificate, military identification, a United States citizenship certificate, passport, or concealed handgun license.  (SB 14)
·        A four-hour driving safety course was approved for drivers under 25 years old. Drivers under 25 who are cited for a moving violation may be required to take this course. (SB 1330)
·        Applicants for a driver license or identification certificate must provide proof that the applicant is lawfully present in the United States. Applicants who are not U.S. citizens, legal permanent residents, or admitted to the U.S. as refugees or asylees are considered temporary visitors. Driver license and identification certificates issued to temporary visitors expire concurrent with the end of the applicant’s lawful presence, or after one year if the legal stay is indefinite. Driver license and identification certificates issued to temporary visitors are to be i n the same format and contain the same information as those issued to U.S. citizens and legal permanent residents. (SB 1, 82 ^nd 1 ^st Called Session, effective September 28, 2011)

Weapons
·        A person may carry a handgun, knife, or club in a watercraft under the person’s ownership or control. The handgun, knife, or club may not be in plain view, used while engaging in criminal activity, or carried by a member of a criminal street gang. (HB 25)
·        Employers may not prohibit employees with a concealed handgun license from having firearms or ammunition in their personal cars in the employer ’ s parking lot. This does not apply to employees of public, private or charter schools, or employees of chemical manufacturers or oil and gas refiners. (SB 321)

Crime Labs
·        Crime laboratories are required to preserve biological evidence used in the investigation or prosecution of a felony for at least 40 years, or until the applicable statute of limitations has expired if there is an un-apprehended actor associated with the offense. (SB 1616, effective June 17, 2011)
·        Law enforcement agencies are required to submit DNA evidence in active sexual assault cases to an accredited laboratory within 30 days of receipt. Once the evidence has been analyzed, the DNA must be compared by DPS to state and federal DNA databases. The bill requires law enforcement agencies to submit unanalyzed DNA evidence collected after September 1, 1996, to DPS for analysis. (SB 1636)

Miscellaneous
·        A new category of missing person alerts may now be issued for missing persons with intellectual disabilities. Activation of this alert includes a requirement of documentation of a qualifying intellectual disability. (HB 1075)
·        DPS must create a pass for expedited access to the state Capitol building. To be eligible, an applicant must meet the criteria to apply for a concealed handgun license, with the exception of handgun proficiency requirements. (HB 2131, effective May 30, 2011)
·        The Texas Fusion Center Policy Council was created to assist DPS in monitoring fusion center activities in Texas. The council is required to establish a privacy advisory group, recommend best practices for fusion centers in Texas and annually submit a report to the Governor and the Legislature regarding the council's progress. (HB 3324, effective June 17, 2011)

In a press release, state Sen. Rodney Ellis mentioned several additional bills of note, including:

• HB 215, which will enact a pivotal eyewitness identification reform recommended by the Tim Cole Advisory Panel to help reduce wrongful convictions.  The bill requires all Texas law enforcement agencies in the state to adopt written eyewitness identification policies based on proven best practices by September 1, 2012; 
• SB 122, legislation I authored to strengthen Texas' post-conviction DNA testing law, another important reform recommended by the Tim Cole Advisory Panel.  SB 122 will ensure that if there is DNA evidence available to prove someone's innocence, it can and will be tested.  No longer will the door to justice be shut just because of a procedural error;
• HB 417, legislation enacting comprehensive exoneree compensation reforms, including health care to the wrongfully convicted, standards for attorney's fees in compensation claims, and removing bureaucratic hurdles in order for exonerees to receive the compensation they deserve. It gives exonerees access to health insurance through the Texas Department of Criminal Justice.  It also modifies the current compensation statute so that individuals like Anthony Graves, who was recently denied compensation due to a technical error in his dismissal order, can get compensation in the future.

RELATED: All told, the legislative website lists 673 bills which take effect tomorrow. From the Austin Statesman, "DPS to streamline driver's licensing with megacenters"; from the Texas Tribune, "During a legislative session where hardly any services were spared the budget ax, funding for border security actually increased"; from KXAN-TV, "Hundreds of new laws taking effect Thursday"; from the Huntsville Item, "New law increases speed limit to 75 mph"; from the Wall Street Journal, "Federal judge blocks new Texas abortion law"; and from CultureMap Houston, "Ten new Texas laws you need to know."

Let me know if your favorite new law didn't make the list.

Small counties can live off speed traps under new legislation: Report documents bills affecting judiciary

The Office of Court Administration this month "released a Judicial Council report (pdf) identifying all of the recently passed bills that affect the courts," we see from Carl Reynolds at CourTex. It's a lengthy list, and lots of these bills have been discussed on Grits before, but several bills I hadn't noticed caught my eye:

For starters, a new statute will likely turn Texas' smallest counties into full-blown speed traps, allowing commissioners court to make their budgets off of traffic tickets given to drivers passing through town. HB 1517 by freshman Rep. Jason Isaac (Glenn Hegar carried it in the Senate), "Authorizes counties with a population of less than 5,000 to use fines collected for highway law violations for any purpose approved by the commissioners court" up to 30% of the previous year's revenue. According to the drafting manual for the Texas Legislative Council (see here, p. 181) there are 51 counties that can now profiteer off traffic tickets for their entire budget: Armstrong, Baylor, Borden, Briscoe, Cochran, Coke, Collingsworth, Concho, Cottle, Crane, Crockett, Culberson, Dickens, Donley, Edwards, Fisher, Foard, Glasscock, Hall, Hansford, Hardeman, Hemphill, Hudspeth, Irion, Jeff Davis, Kenedy, Kent, Kimble, King, Knox, Lipscomb, Loving, Mcmullen, Martin, Mason, Menard, Mills, Motley, Oldham, Reagan, Real, Roberts, Schleicher, Shackelford, Sherman, Sterling, Stonewall, Sutton, Terrell, Throckmorton, and Upton.  Terrible idea. Grits predicts this will be abused immediately.

HB 2425 requires courts to "give notice to the attorney general of any action in which a party to the litigation files a petition or motion challenging the constitutionality of a Texas statute." After a couple of years or so, that should make for an interesting and provocative list.

Texas passed another statute, HB 253 by Rep. Harvey Hildebran, that's clearly aimed at the FLDS polygamist sect in West Texas but, naturally, will now apply to everybody. It lengthens the statute of limitations for bigamy to the later of ten years from the date of commission or of the victim's 18th birthday. It also raises the penalty for "failure to comply with the duties surrounding filing a birth certificate" from a Class C (ticket only) to a Class A misdemeanor. No off the grid kids: Next they'll want DNA samples from every live birth, or maybe they'll just save time and start tattooing every infant with a bar code.

Finally, a totally unneeded closed records bill: During the special session, SB 1 Article 79A made peace officer travel vouchers and reimbursement records confidential for a period of 18 months for members of the security details of state elected officials. This is all about Rick Perry not wanting to release his schedule to the public or tell them where he's been, who he's visited, etc., until long after the information would be useful to anyone performing a watchdog function. Attorney General Greg Abbott had already said those records from the Governor's office could be concealed, but this bill closes a back door reporters had used to try to access the information anyway. Absolutely absurd that voters can't know where the Governor went on their dime until 18 months after the fact, and downright pathetic IMO that the Governor would seek such an exception, much less that the Legislature would grant it.

Lots of other interesting stuff in the report but I thought I'd point out at least those few items.