Texas oyster crimes are no joke and a symptom of broader problems

This blog has spent an inordinate amount of time over the years focused on Texas' array of oyster-related criminal offenses, to the point that Politifact once did a fact check on my claims. They found them "Mostly True," with the "mostly" caveat being that one source put the numbers even higher than I'd said!

Marc Levin, who recently left the Texas Public Policy Foundation to become general counsel at the new Council on Criminal Justice, first launched this meme as a way to critique overcriminalization, highlighting the fact that Texas has so many felony statutes on the books it's difficult even to count them.

Your correspondent played into the gag, wondering aloud how many crustacean-related crimes are sex offenses and counting the number of oyster-related felonies in "The Walrus and the Carpenter."

Over the years, however, Grits has come to realize Texas' "oyster crimes" aren't just a silly government foible to be mocked at conservative conferences. (TPPF for years held a panel at their biennial legislative conference highlighting "overcriminalization" and featuring this example.) Rather, they're illustrative of some of the core challenges involved in disentangling criminal law from regulating non-criminal behavior in a society organized around what Jonathan Simon has called "Governing through Crime."

Texas has so many oyster crimes on the books for two, fundamental reasons: Scorn for regulation and the environment. Harvesting native oysters is terrible for the latter and the Legislature prefers criminal law to the former.

Including misdemeanors, Texas has dozens of oyster-related crimes on the books, all because the state uses criminal law to regulate unwanted business practices that other states manage through non-criminal regulatory enforcement.

In most other coastal states, civil regulators enforce rules about oyster harvesting. In Texas, it's game wardens and prosecutors. This leads to a spotty patchwork of enforcement dependent on some random lawyer elected DA knowing and caring about the topic and/or being willing to ignore local donors who might object.

For years, the prosecutors' association scoffed at the oyster-crime depiction, insisting such cases were rarely prosecuted. An old college pal of mine who's written their law books for the last couple of decades said the same thing on Twitter when the oyster-crime meme arose this week. But if that was ever true, it's not any longer. 

Hurricane Harvey disrupted the unfettered harvesting of native oysters, requiring more robust state regulation for the industry to survive. Texas A&M Professor Joe Fox noted in 2019, “Due to overfishing, excessive freshwater inflow and loss of infrastructure mainly due to hurricanes, Texas oyster harvests have been trending downward and have experienced a 43% loss in the past three to four years.”

That's what's generating the push for greater enforcement. Without it, the industry could vanish. But prosecutors aren't regulators. Their job is to prosecute crimes, not regulate aquatic industries, even if the latter task de facto falls to them under Texas' absurdist system.

Even if you took these criminal laws off the books, state intervention would be needed for this industry to exist. Otherwise, overharvesting would wipe out the native oyster population in short order. In the 4-day sweep in December, game wardens restored 48,000 pounds of illegally harvested oysters to the bay. In a similar sweep in 2018 netting twice as many cases, "Some of the violators intercepted had cargo consisting of up to 35 percent undersized oysters."

So it's not that the criminal laws governing oyster harvesting are unnecessary. The government has a role to play here. But criminal statutes are a blunt instrument for regulating fishermen. That's the wrong tool for the job. 

To disentangle criminal law from shellfish regulation requires a big picture view that embraces property rights and responsibilities. Decriminalize, regulate, and let people who want to farm oysters grow their own in designated areas. Just letting rapacious private interests plunder a resource till it's gone makes no environmental, moral, nor economic sense.

Texas could wipe out most oyster-related criminal offenses if it 1) banned harvesting native oysters, 2) fostered a transition to (recently legalized) privately managed beds, then 3) regulated the industry under civil instead of criminal law. That'd be better for the environment and the industry long term, and take law enforcement mostly out of the equation.

Of budgets and border boondoggles: A reality check

The Austin Statesman has a good article (Nov. 22) on the impact of constant border deployments for game wardens, starting with a 19 percent drop in citations written in other parts of the state, as evidenced in the graphic below.

But even more than the lamentable if predictable impact of diverting focus from game wardens' traditional duties to a politicized snipe hunt, this tidbit stood out at me: "Gov.-elect Gregg Abbott said in February that he wants to nearly double state spending on the border, suggesting a 'continuous surge' with 1,000 new officers on the ground."

Not to beat a dead horse, but how does the state 1) double the billion-dollar border surge, 2) shift highway money from DPS to roads, 3) constitutionally index spending increases to inflation and population growth, and 4) cut taxes? Those can't all happen. Something's got to give.

Math trumps ideology when it comes to appropriations, if not in elections. It's fine for politicians to say such foolishness on the campaign stump but the budget has to balance or they don't get to do it all. Governing involves choices and today's generation of Texas Republicans are no longer back-benchers throwing Molotov cocktails at Bob Bullock and Pete Laney's agenda. They're in charge and governing a state with 25 million people and a balanced budget mandated in the state constitution. Moreover, since 2003 the state has already gone through several sessions involving major budget cuts that more or less stripped state government down to the bone, save for this Big Government border-security misadventure.

Grits has hoped throughout the fall that Texas' leaders would begin to walk back some of these oddly contradictory positions once the campaign season ended, but not so far. Eventually, reality will impose itself in the budgeting process whether or not it's able to penetrate state leaders' political rhetoric. But it'd be better for everyone if that happened before the eleventh hour next May.

Game warden SWAT team?

Why in heaven's name does the Texas Parks and Wildlife Department need its own SWAT team? Does the guy in this photo look like he's prepared to perform any task you traditionally associate with a game warden? Wrote William Norman Grigg at LewRockwell.com:

The Texas Parks and Wildlife Department (TPWD) has a newly minted SWAT team. To be sure, the agency maintains that this “cadre of specialty teams” will focus on search-and-rescue missions. However, the way Game Warden Cullen Stakes is dressed in the photo above makes it pretty clear that he’s not getting ready to rescue people who have been stranded by floods, or have gotten lost in the woods.

Among the TPWD’s specialized units is the “Scout Team,” a group of 25 wardens who “have received a variety of training and can be used in border operations, dignitary protection, or any form of high-risk law enforcement, such as serving felony arrests or hostage situations,” explains Texas Parks & Wildlife magazine.

“We can have a team anywhere in Texas in four hours, and that’s the worst-case scenario,” boasts Law Enforcement Special Operations Chief Grahme Jones. “A lot of times it’s much faster.”

Ridiculous. There's nowhere in the state where TPWD couldn't call in local SWAT if they needed it. Utterly absurd, and pointless.