Texans incarcerated thousands of years over traffic-ticket debt

In 2018, according to Office of Court Administration data, 524,628 people satisfied Class C misdemeanor fines and fees through jail credit.

By contrast, despite legislation passed in 2017 to make it easier for judges to waive fines and provide community service options, only 53,773 people had their fines waived for indigency in 2018, and 97,260 avoided fines with partial or full credit for community service.

So more than three times as many people last year sat out their fines in jail compared to those who received indigency-based relief. But we know many more people than that struggle to pay traffic fines. Last year, the Federal Reserve estimated that 40 percent of Americans could not pay a surprise $400 bill without borrowing or going into debt.

The OCA provided no data on how long those getting "jail credit" were incarcerated. Grits thinks a reasonable estimated average may be two days. Most people will only be in jail one day, but some will be in much longer, with jail credit satisfying their fines at a statutory rate of $100/day. 

Based on an estimated 2-day average length of stay, Texans spent 2,875 bed years incarcerated for petty Class C tickets in 2018, at a cost of ~$63 million. That's a significant, hidden expense generated by the current system.

There are additional, unintended consequences to jailing hundreds of thousands of people over debt collection: Research shows that cities which rely on low-level fines as revenue sources tend to solve more serious crimes at lower rates.

Regular readers know that, in 2018, both the Republican and Democratic party platforms in Texas called for eliminating arrests for non-payment of Class C misdemeanor debt, using commercial debt collection methods instead. And an Office of Court Administration poll last year found that 2/3 of Texans oppose arresting people who can't pay court debts.

There's nothing sacred about government debt. When Texans can't pay their Visa or cable bill, those companies don't get to incarcerate them until they come up with the money, and neither should the government. Grits expects legislation to be filed soon addressing this populist (and popular) bipartisan priority. That's necessary to prevent more than a half-million Texans from going to jail next year over unpaid Class C misdemeanor debt.

Texas courts already know how to handle debt without incarceration; now the #txlege should apply those lessons to Class C misdemeanor fines

In a private conversation, a frequent #cjreform opponent recently criticized a proposal endorsed by both the Republican and Democratic Party platforms in Texas to eliminate arrests for non-payment of Class C misdemeanor debt.

"So you're just saying they shouldn't be punished?," our critic wondered, in an exasperated voice. "How is that justice? Should they face no consequence at all?"

We're going to be hearing this argument a lot in the coming months, so let's address it.

First, of course, no one is saying offenders shouldn't be punished. Overwhelmingly, most people who receive traffic tickets just pay them. And states that treat traffic infractions as non-criminal and send the debt to collections have essentially similar payment rates to us here in Texas.

So the question becomes, is it "justice" when a judge assesses debt which cannot be paid but fails to incarcerate the debtor for nonpayment?

Indeed, we need look no further on this question than to the same Texas Justices of the Peace who handle Class C traffic tickets at the county level. Those courts also handle civil claims up to $10,000.

When a defendant loses in small-claims court (it's not called that, anymore, but that's what it is), a JP typically orders monetary payment as judgment.

If the defendant cannot pay, jailing them is not allowed. Instead, plaintiffs must pursue debt collection using other methods, such as liens on property, turnover orders, sending the debt to commercial collections, etc..

We're left to wonder, why is debt to the government somehow such a big deal that it warrants incarceration of those who cannot pay? Clearly, non-carceral methods are sufficient for these same judges to declare "justice" done if the beneficiary of court-declared debt is a person, not the government.

The government has created a double standard to benefit itself. Ethical qualms about the private sector excessively squeezing the poor are routinely ignored in the public sector when it comes to criminal-justice debt, particularly Class C misdemeanor traffic fines.

Locals enjoy wide leeway on these questions and cities' reliance on Class-C-fine debt for revenue varies widely. Though apples-to-apples data is hard to come by, an item in Forbes a couple of years ago calculated 2013 per-capita ticket revenue for US cities with more than 250,000 population: In El Paso, the city received $6.16 per capita from these sources in 2013; in Houston the per-capita figure was $17.89; Dallas, $32.58; Plano, by contrast, received $43.36 per capita. That's all over the map.

Since municipalities which rely more heavily on ticket revenue have lower clearance rates for more serious crimes, no one should aspire to match those higher per-capita totals.

The use of incarceration to punish the poor for non-payment of traffic fines appears flat-out ironic when one considers that wealthier people are more likely to commit traffic offenses. So the class of folks facing the harshest punishments for Class C misdemeanors is also the least culpable. In a nation where 40 percent of the population, according to the Federal Reserve, cannot afford a surprise $400 bill without going into debt or selling something, that makes little sense.

There's nothing sacrosanct about debt to the government, certainly from the point of view of the debtor. From the perspective of the stone, it doesn't matter who wants to squeeze blood from it; none is forthcoming.

Emily Gerrick: Chipping Away at Debtors Prison Policies

On the latest Reasonably Suspicious podcast, I interviewed Emily Gerrick, a staff attorney with the Texas Fair Defense Project specializing in policies surrounding people jailed for traffic-ticket debt. We only used a 5-minute segment for the podcast, so here's our full conversation for those interested, ranging from recently passed reform bills, jailing drivers for failure to pay tickets, the ignominious Driver Responsibility surcharge, and what local municipal court judges and Justices of the Peace can do to minimize debtors prison practices under current law.

Listen to the full interview here or read a transcript below the jump:


SEE ALSO: A report from the Fair Defense Project and Texas Appleseed on debtors prison issues, a summary of reform legislation from the Texas Municipal Courts Education Center, and comments about Emily's interview from Edward Spillane, presiding judge over the College Station municipal courts. RELATED: Check out Grits' call for a "Jubilee" on criminal-justice debt, an analysis of opposition to this year's reform legislation, and an account of the dramatic reversal that allowed the bill to pass in the Texas House.

Blessed are the Poor: Examining opposition to debtors-prison legislation

Texas State Sen. Paul Bettencourt was quoted by the Associated Press (June 11) criticizing debtors-prison legislation (SB 1913) which he and five others voted against in the senate. He:

said that it did not adequately consider “personal responsibility” and that it provided too much leeway for judges to waive fines. 

“Current law already allows a court to work with indigent defendants who are truly unable to pay court imposed fines,” said Bettencourt, a Houston Republican.

Let's flesh this criticism out. Here's what the bill does that Bettencourt is criticizing:

Under current law, if a defendant is indigent and unable to pay a Class C misdemeanor fine, the judge cannot waive the fine or authorize community service at sentencing. Instead, insensibly, they must order the indigent defendant - whom everyone in the room knows cannot afford it - to pay the full fine, anyway. This judicial fiction drags the process out for weeks or months while everyone waits for the inevitable default.

Then, at that point, if the defendant comes back into court, the judge may waive fines and/or order community service. But many defendants are afraid to return to court for fear of being jailed. Often, warrants are issued instead and the defendant doesn't come back to court until the next warrant roundup or when they're pulled over at a traffic stop. The Office of Court Administration's David Slayton told the AP, “Our belief is that people don’t go to court because they think they’ll automatically get jail time if they can’t pay.”

So when Sen. Bettencourt says, "Current law already allows a court to work with indigent defendants," he's leaving something out: The law actually forbids judges from working with defendants at sentencing, insisting they must impose fines even when the debtor cannot pay. The extra leeway he deplores giving judges would simply let them waive fines and impose community service at sentencing instead of waiting for an all-but inevitable default. The former Houston Controller's Harris County Tax Assessor's goal appears to be to drag the process out so the state can bleed every last dime out of indigent defendants before granting them constitutionally mandated relief. That's cruel and pointless.

Once Class C defendants default, it's true, the court is authorized to "work with" defendants down the line if they do not pay up. But Bettencourt's preferred status-quo approach needlessly extends by weeks or months a process that should take a single hearing. Moreover, it results in many thousands of arrest warrants for indigent defendants who default on a payment plan, and is an affront to common sense and judicial economy. The governor should sign this important bill.

MORE: See an op ed from College Station municipal judge Edward Spillane and former District Judge John Delaney in support of debtor-prison reform legislation. Here's a notable excerpt:

In Texas, fewer than 2 percent of all cases in municipal and justice courts are currently resolved with community service. One in every eight cases is resolved at least partly with jail credit. It is better for communities if people to have more access to community service and avoid going to jail just because they cannot afford to pay a ticket. 

SB 1913 will also ensure that in circumstances where it’s appropriate, judges no longer should wait for a defendant to default on debt before considering whether to waive some or all of what is owed. 

Texas has a well-earned reputation for being tough on crime — but that doesn’t mean we should be putting people in jail because they simply don’t have the money to pay their court bill. We need to be tough and fair. SB 1913 doesn’t mean giving anyone a hand out; it means tailoring sentences and allowing people who can’t pay their bills to work it off in another way. 

SB 1913 will also save Texas cities and counties money. When someone is put in jail for nonpayment of a fine or fee, we all end up footing the bill. This legislation will make it less likely that people go to jail for failing to pay and more likely that they will comply with their sentences. If judges can work with people on plans that make sense for their individual circumstances, they won’t end up in jail — and taxpayers won’t need to be charged for their unnecessary jail costs.

SB 1913 will also decrease the amount of time and energy that peace officers spend tracking down people for unpaid traffic tickets by reducing the number of warrants for unpaid tickets. Currently, 95 percent of the warrants issued in Texas come from fine-only cases, most of which stem from traffic tickets.

NUTHER UPDATE (6/15): This legislation was signed today!! 

Bill bows to pragmatism, overburdened muni, JP courts to help indigent

One of the first bills up in the Texas House Criminal Jurisprudence Committee this year, HB 351 by Rep. Terry Canales, would eliminate certain "Debtors Prison" practices in Texas municipal and Justice of the Peace courts related to indigence and Class C misdemeanors. (HB 50 by Corrections Committee Chairman James White is an identical bill.) The bill is on the agenda for Monday's CrimJur hearing.

In particular, HB 351 would eliminate the requirement that judges wait until a defendant has defaulted on payments before declaring them indigent, making them eligible for community service or to have their fees waived at the time of sentencing instead of waiting for them to fail.

As it happens, the most detailed explication of these problems comes from a Grits for Breakfast guest post by Ted Wood, formerly of the Office of Court Administration and now at the Harris County Public Defender Office. Read it for more background.

To Grits, this is a question of values. What does the court want? What is its purpose? Maximizing income, or justice? HB 351 reverses the priorities expressed in the current law, untying judges' hands and allowing them to dispense with cases more efficiently and responsibly.

If the defendant is indigent at the time of sentencing and there's no reasonable expectation they'll be able to pay, what's the point of fining them anyway and only accommodating their indigence when they default? At that point, a warrant is issued. So all of a sudden, someone the court knew couldn't pay when they were sentenced may be jailed for nonpayment if they don't come back before the judge to set up an arrangement that logic and common sense would dictate should have been done in the first place.

Basically current Texas law is designed to squeeze as much money as possible from indigent people before affording them the accommodation (via waiving fines or letting defendants work them off through community service) that the constitution and practicality require.

HB 351 isn't a major bill, but it's a really good one. Hope it passes.

Debtors prisons and bail reform: TX Judicial Council taking up heady issues

The Texas Judicial Council this morning approved changes to court collections programs aimed at reducing incarceration of low-income Texans due to nonpayment of fines, but not without a fair amount of controversy and substantial changes to the original version of the rules. Buzzfeed published a great story earlier this week describing the backlash of the bureaucrats in response to them.

Texas Supreme Court Chief Justice Nathan Hecht declared that the rules were conceived in response to the USDOJ report on Ferguson, MO last fall. The national Conference of Chief Justices and Conference of State Court Administrators formed national task force on the topic, which includes Justice Hecht. The conservative American Legislative Exchange Council, he approvingly noted, recently adopted a resolution encouraging reform in these areas. And he found it remarkable that support for the changes came from ideologically diverse groups from the ACLU and the Austin City Council to the Texas Public Policy Foundation, conservative state Sen. Don Huffines, and Texas Association of Business CEO Bill Hammond (who just announced he'd retire at the end of the year), all of whom favor reducing the burden from fines and fees on indigent defendants.

Here are the comments on the rules and here is a document articulating how the Office Of Court Administration changed them in response. Grits has not closely enough vetted the changes to judge exactly how watered down the final rules are compared to the original version. (I emailed our friends at the Texas Fair Defense Project for an assessment and will update this post when I hear back.) But judging from the continued pushback, it appears they've retained some teeth. The chief justice pushed through the changes despite naysayers in the peanut gallery, not to mention a few "no" votes on the council who wanted to re-publish the amended rules. They take effect January 1st, 2017, though some courts have pledged to adopt them as soon as Sept. 1st in order to help the OCA evaluate how they work in the field.

Related: From Texas Monthly, "Texas has a debtors prison problem." Good article, which mentions a related analysis from Houston of which Grits was unaware:

In May, a committee organized by Mayor Sylvester Turner released a damning report that found that the city uses its municipal court “as a profit center.” Of the court’s 169,000 convictions in 2014, only 2,800 were given the option to pay their fines through community service, and only six cases saw their fines waived. As the report notes, nearly 25 percent of Houston’s population is below the poverty line, and they estimated that “at least 30,000 people” should have been given the option of community service. “Attempting to finance the city budget on the backs of the poor criminalizes poverty and destabilizes lives, ultimately doing more harm than good,” the report found.

Pretrial/bail recommendations coming
The Judicial Council also heard from its Criminal Justice Committee which will make recommendations in October related to the bial system. Twenty five years ago, opined the chair, 32 percent of jail population were presumed-innocent people being held pretrial. Today that number is 75 percent, he said. According to the Texas Commission on Jail Standards, the average cost per day to house these inmates is $60.12. At that rate, it costs more than  $1 billion per year for pretrial incarceration, or around $2.5 million per day. He called the situation a "perfect storm ready for change."

Researchers from A&M are doing a report on Tarrant and Travis Counties, he said, and their findings so far corroborate the idea that far fewer people could be jailed pretrial without harming public safety..

In October, the committee will release recommendations suggesting that the Legislature require misdemeanor defendants to be assessed with valid risk assessment instrument prior to appearing before a magistrate. There should be a presumption through statute for pretrial release on personal bond, leaving judges with discretion to decide the evidence before them rebuts that presumption. They hope the new system would allow release of "high numbers of people who have little risk of reoffending and little risk of flight." The Lege should pony up to fund supervision for pretrial defendants and magistrate training, he opined. The Court of Criminal Appeals would create rules to implement these processes.

Related: From the Houston Chronicle, "Bail system is unjust and undermines public safety."

Judicial Council Lege agenda
The council reviewed areas where they intend to make legislative recommendations next year, though nothing has yet been finalized. Here's the list of resolutions they're considering.

Wood weighs in on collections rules for Class C misdemeanors

For years, Ted Wood was the go-to expert on fines and fees at the Texas Office of Court Administration's General Counsel's office; he likely has forgotten more about the topic than most lawyers will ever know. Now he's an assistant public defender in Harris County. Grits asked Ted's opinion on the recent letter by Judge John Bull, highlighted in this post, and reforms being debated aimed at reducing burdens from Class C fines and fees on indigent defendants. He responded thusly:

From Ted Wood, Assistant Public Defender, Harris County
Here are my thoughts on: (1) Judge Bull’s letter; (2) the Buzzfeed article about Judge Bull’s letter; and (3) your analysis of the letter and the article in your Grits column of April 21, 2016.  You can consider this to be “on the record.”

FIRST, you have identified the main problem.  The main problem is Article 45.0491 of the Code of Criminal Procedure which reads as follows:

A municipal court, regardless of whether the court is a court of record, or a justice court may waive payment of a fine or costs imposed on a defendant who defaults in payment if the court determines that:

(1)    the defendant is indigent or was, at the time the offense was committed, a child as defined by Article 45.058(h); and
(2)    discharging the fines and costs under Article 45.049 [i.e., discharging the fines and costs by performing community service] or as otherwise authorized by this chapter would impose an undue hardship on the defendant.

There is a parallel statute that you did not mention.  The parallel statute is Article 43.091 of the Code of Criminal Procedure.  This statute deals with courts other than municipal courts and justice courts.  In other words, this statute deals with district courts, statutory county courts, and constitutional county courts.  The language of this statute is almost identical to Article 45.0491 discussed above.  Article 43.091 is set out below:

A court may waive payment of a fine or cost imposed on a defendant who defaults in payment if the court determines that:

(1)    the defendant is indigent or was, at the time the offense was committed, a child as defined by Article 45.058(h); and
(2)    each alternative method of discharging the fine or cost under Article 43.09 or 42.15 [discharging fine and costs through the performance of community service] would impose an undue hardship on the defendant.

As you pointed out in your analysis, “judges don’t have authority to declare them [defendants] indigent, according to that reading of the law.”  I might add this: “that reading of the law” is correct.  Judges may not waive court costs at sentencing.  Rather, judges may only waive court costs once a defendant has been ordered to pay court costs and then defaults on that obligation. Also, judges may not authorize a defendant (other than a child) to perform community service until a defendant has been ordered to pay court costs and has defaulted on that obligation.

I am in 100% agreement with your following statement:

The Legislature could help things a lot by deleting the four above italicized words [who defaults in payment] from the statute, clarifying that muni judges can waive fines and fees for indigence at sentencing and don’t have to wait until the indigent defendant has failed to pay.

Your idea needs to be expanded to delete those four words in both the statutes I set out above so that all judges (not just municipal judges) can waive fines and fees for indigence at sentencing.  The law also needs to be changed to permit judges to order defendants to perform community service (in lieu of paying a fine) at sentencing. 

This is currently permitted for children. See Article 45.058(h) referenced in both statutes set out above.  For example, one of my sons pleaded guilty to a speeding violation in the Leander Municipal Court when he was sixteen years old.  He asked to be able to perform community service instead of paying the fine and court costs because he did not have the $165 that was required.  The judge, appropriately, allowed him to perform community service which my son did go on to perform.  This was a totally appropriate action by the judge.  But the judge would not have been able to let my son do this if my son had been one year older (17).  This is because this type of action is only permitted in cases involving children – not adults.

So I am wholeheartedly with you on getting the statute changed. 

SECOND,  I am a member of the advisory committee to the Judicial Council along with Judge Bull, Judge Spillane, and several others.  We have been tasked with proposing changes to the current Collection Improvement Program rules.  We have not been tasked with suggesting legislation.  According to your quote of Judge Spillane, he said something about “creating legislation.”  I think this is exactly what needs to be done – exactly as you have suggested and exactly as Judge Spillane has said.  But this is not what the advisory committee has been asked to do.  Rather, the advisory committee has been asked to change the collection program rules.  I don’t think changes to the collection program rules really solve any problems.  The statutes still don’t allow for judges to waive court costs and that is what we need to do to solve the problem.  As Judge Spillane said (as stated in your article), “judges need to be free to exercise proper discretion by assessing alternative punishments like community service or waiver of fines for indigent defendants.”  Legislative changes are going to be necessary to give judges this freedom.

The members of the advisory committee are to provide suggested responses to the committee chair (Justice of the Peace Bill Gravell of Williamson County) by April 29th.  (Judge Gravell is also a member of the Texas Judicial Council.)   I have not yet written out my response – maybe I will just send in this letter.  In any event, I expect to say that what we need is not so much a reworking of the Collections Improvement Program rules as a change to the statutes as described above.

THIRD, I share Judge Bull’s feeling that courts should not exist to bring in revenue.   Courts should not, to quote Judge Bull, “be viewed as ‘cash cows’ as opposed to places where people can receive a fair and impartial hearing on their cases.” But, with all due respect to Judge Bull, I think his broadside against the Office of Court Administration (OCA) is misdirected.

The Legislature had directed OCA to operate a Collections Improvement Program (CIP). See Article 103.0033.  OCA is only doing what the Legislature has required.  I strongly disagree with Judge Bull’s suggestion that OCA’s Collections Improvement Plan is “encouraging courts to jail people who don’t pay.”  Here is what Judge Bull wrote:

In fact, the “analysis” implies that “‘community service” is an option, but “credits for jail time should be limited to cases in which a  defendant refuses to pay or perform community service, but has the ability to do so.”  The language in the analysis could be read in such a way that encourages courts to jail people who don’t pay.

It could?  How can this language be interpreted to encourage courts to jail people who don’t pay?  I understand this language to put a limitation on the situations in which a person can be jailed for non-payment of fines and court costs.  This limitation is precisely in line with Article 45.046(a) of the Code of Criminal Procedure which says:

(a) When a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, the judge may order the defendant confined in jail until discharged by law if the judge at a hearing makes a written determination that:

(1) the defendant is not indigent and has failed to make a good faith effort to discharge the fine and costs; or
(2) the defendant is indigent and:

(A) has failed to make a good faith effort to discharge the fines and costs under Article 45.049; and
(B) could have discharged the fines and costs under Article 45.049 without experiencing any undue hardship.

See also Article 43.03(d) of the Code of Criminal Procedure for the equivalent statute applicable to courts other than municipal courts and justice courts.

The past practices in El Paso that you also discuss in your April 21st article were absolutely wrong.  Defendants were being jailed without regard to the limitations set out in Article 45.046(a).  But OCA is not encouraging this practice.  In fact, OCA is discouraging the practice.  Here, Judge Bull takes a statement from OCA about the limitations on jailing defendants and somehow twists it into an encouragement by OCA that courts jail people who don’t pay.  This is not at all what OCA is suggesting.

I just hate to see OCA and its Collections Improvement Program dumped on.  OCA is not the problem.  The Collection Improvement Program is not the problem.  The problem is that the current statutes do not allow for the waiver of court costs up front.  The problem is also that the current statutes do not allow a judge to order that a person perform community service in lieu of paying fines and court costs up front.  The problem is also that some courts were improperly jailing people.  Again, this improper jailing is not something that OCA and the CIP are advocating – at all.  To the extent that Judge Bull suggests otherwise, I part ways with him.

But my final word is this – although I disagree with parts of Judge Bull’s letter, he is a fine man and an excellent judge.  I look forward to working with him and others on the rules advisory committee.

Ted Wood
Assistant Public Defender
Harris County Public Defender’s Office

Timid proposal on surcharges offers no solution for drivers stuck in Lege-created morass

Your correspondent spent this morning waiting around to testify to the Texas House Homeland Security and Public Safety Committee about the Driver Responsibility surcharge on behalf of the Texas Criminal Justice Coalition. The committee was assembled in part to discuss draft legislation (pdf) to enact modest reforms to the program, but I testified on behalf of TCJC that their suggestions are too timid.

TCJC had earlier this spring submitted written testimony to the committee recommending reforms and there were faint hints of some of those proposals in their draft, though in my estimation the recommendations were far too tepid. For example, they agreed to change from three consecutive years of surcharges to a single year with a payment plan, but the reductions in the draft document - none for DWIs, $100 for other offenses - aren't large enough to entice people whose surcharge debt may run into the thousands.

All of the suggestions in the draft legislation were forward looking, taking effect for cases after September 2015.; none of them addressed the backlog of drivers owing surcharges, including around 1.4 million who presently have no licenses because of surcharge nonpayment.

It was particularly disappointing that the draft did not direct the Department of Public Safety to implement another Amnesty program. They have the authority but have only ever done one and have said they don't plan to do another any time soon. But with hundreds of thousands of unpaid surcharges dating back a full decade, at this point, it will be impossible to clear out those old files without some sort of renewed or even beefed up Amnesty program, I told the committee.

The principle element of the bill would allow judges to dismiss charges for driving with no insurance or no license if they get the insurance or license within 20 days. Judges are probably already doing that, so it would codify an unwritten practice. A judge from Harris County (Hughes? I didn't get her name in my notes) testified that 20 days was too short for DWLI, because it took longer than that (perhaps up to 90 days) to schedule and take a DPS driving test if you don't have a driver's license.

Perhaps most significantly in the big picture, the draft would eliminate the three-year structure of the surcharge, reducing lower-level surcharges from $750 over three years to $650 assessed all at once. I told the committee that if drivers had the $650 they'd have bought insurance. Chairman Joe Pickett emphasized that amount could change and was just a placeholder; I acknowledged that and said our recommendation was that they'd need to lower the amount significantly to do much good. It's true, though that the staggered three-year civil payments on top of whatever crimnal fines were already paid has been a tremendous source of on-the ground confusion. If this bill passes, there will be just one un-just, unnecessary extra payment instead of three.

DWIs would also become a one-year surcharge under the committee draft but the amounts would stay the same: $3,000 total on the first offense, $4,500 on the second. DWIs already suffer from a 58% non-payment rate on surcharges, the committee was told. In past committee hearings, a rep from the Texas Association of Counties testified that DWI conviction rates had precipitously declined, mostly because judges and prosecutors were working with defense attorneys to find workarounds (like pleading to obstruction of a roadway) that don't incur surcharges. I suggested that if they thought drunk drivers should pay $3,000 they should put that in the criminal penalty and not have a separate, civil surcharge.

I meant to suggest, I see in my notes, that allowing deferred adjudication for DWI would give counties an option to prosecute DWIs without triggering the surcharge. But I forgot. Oops. Well, maybe their staff are readers.

Chairman Pickett emphasized repeatedly that he did not support getting rid of the Driver Responsibility surcharge, only modifying it slightly to address what he's dubbed are its most objectionable aspects. But how to judge which parts are the most objectionable? ¿Quien sabe? This baby is so reprehensible it deserves to be thrown out with the bathwater. Then set on fire. The swath of human misery this program has left in its wake is difficult to overstate. Very few judges or even prosecutors with first-hand experience have a kind word to say about the surcharge, one finds.

Speaking of which, Judge Edna Staudt, a Williamson County JP, made the excellent point that the thing the Lege liked about the program was the money but the thing causing all the problems is the policy of suspending driver's licenses for nonpayment. That's what's filling the jails and multiplying the number of offenders driving without insurance and/or with an invalid license. If you're looking for incremental reforms, why not eliminate all driver's license suspensions associated with nonpayment of surcharges? That'd mitigate much of the harm.

At this point, even the hospitals say they're fine with eliminating the Driver Responsibility program if the Lege will come up with some other source of funds for trauma hospitals, an idea with which nobody disagrees. All that's required is the political will to identify and implement a revenue source. TCJC suggested several in a 2013 report (pdf); a judge from Harris County suggested others today. And the truth is, the state will likely enjoy a surplus large enough next year that it could spend that sort of money volitionally - just because hospitals are a public good - without having to raise taxes. They could do it just by spending a portion of the budget surplus projected for the next biennium, if anybody really wanted to fix the problem.

Finally, just for my own reference, I should mention that while I was off for vacation the Texas Tribune published an item titled, "Driver program relies on lender fined by feds." Give it a read and see what you think: Something, or nothing? I'm a bit surprised none of those issues came up at today's hearing, which was narrowly focused on the proposed legislation.

MORE (8/5): See coverage from the Dallas News. A minor clarification: I am not "director" of the Texas Criminal Justice Coalition, I just work for them on this issue as a consultant. Also, reporter Christy Hoppe ID'd the judge mentioned above whose name I failed to record in my notes: Harris County Criminal Court Judge Jean Spradling Hughes. AND MORE: From Texas Public Radio.

See prior, related Grits posts:

• Judge: Driver Responsibility surcharge unfair, 'unconstitutional'
• Radio discussion of Texas' Driver Responsibility surcharge
• Lege ponders the effect of 'Driver Responsibility' surcharge on DWI convictions
• Could Texas Driver Responsibility Surcharge become an election issue? Examining reform suggestions 
• DPS announces 'incentive program' rollout on driver surcharges
• Be thankful: Incentive program all the fix we're getting for now on surcharges
• Lege committee looking to tweak Driver Responsibility program; incentive program about to gear up
• Piling on: TPPF offers more reasons to abolish Driver Responsibility surcharge
• House rep promotes abolition of Driver Responsibility surcharge
• Is 2013 the year legislators axe Orwellian-named Driver Responsibility surcharge?
• Did the Driver Responsibility Surcharge cause Texas' voter ID law to be rejected?
• Few defendants getting surcharges waived by judges based on indigence
• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'

Judge: Driver Responsibility surcharge unfair, 'unconstitutional'

Another judge critical of Texas' Driver Responsibility surcharge, via a Lubbock TV station:

Lubbock County Justice of the Peace Jim Hansen is one of the many Texas judges working to get this law abolished.

"Because what a surcharge represents, it's double jeopardy and it's unconstitutional. You are being punished over and over and over again for the same one offense," Hansen said.

Surcharges are racked up based on convictions. Such as a DWI, or driving without valid insurance or a drivers license.

"This has created a whole new criminal class of citizens in Lubbock County," Hansen said. "I would estimate we've got about 15,000 people driving today with their drivers license suspended because of the surcharge program. And many, or most, of those don't even know that they're in this criminal class." ...

"Let me put it this way, I despise red light cameras, and I put surcharges in the same category. It's a money scam, in my opinion, even though it funds a worthy cause," Hansen said.

RELATED:
Radio discussion of Driver Responsibility surcharge
Lege ponders effect of 'Driver Responsibility' surcharge on DWI convictions

Perfumed perpetrator wouldn't get ticket under new Texas statute

Don't know how I missed this 2011 Austin story, but if you did too, check out this TV news report about a girl given a Class C misdemeanor ticket in school for allegedly disrupting class by wearing too much perfume. (Somebody posted the dated item on Reddit yesterday.) The alleged perpetrator was being bullied and used the perfume in response to taunts that she "smelled."

Seeing that story makes me happier than ever that the Texas Legislature this year approved Sen. John Whtimire's SB 1114. That bill prohibits giving Class C tickets to kids under 12. So the girl in the above news story couldn't get a ticket at all under the statute that goes into effect September 1st. After that, police cannot ticket children under 12 in Texas schools. For students 12 and above, all Class C charges must include "an offense report, a statement by a witness, and a statement by a victim. This would apply to offenses that were alleged to have occurred on school property or on a vehicle owned or operated by a county or school district. Prosecutors could not proceed in a trial unless the law enforcement officer met these requirements," according to the official digest (pdf) from the House Research Organization. Moreover, "The Education Code offenses of disruption of class and disruption of transportation would no longer apply to primary and secondary grade students enrolled in the school where the offense occurred." That's a big change.

There are other amendments to the code that should significantly reduce the number of Class C tickets written in schools:

Children accused of any class C misdemeanor (maximum fine of $500), other than a traffic offense, could be referred to a first - offender program before a complaint was filed with a criminal court. The cases of children who successfully completed first - offender programs for class C misdemeanors could not be referred to the court if certain conditions in current law were met.

SB 1114 would prohibit arrest warrants for persons with class C misdemeanors under the Education Code for an offense committed when the person was younger than 17 years old. School district peace officers no longer would be authorized to perform administrative duties for a school district but would be limited to their current authority to perform law enforcement duties.

Also, "Courts would be required to dismiss complaints or referrals for truancy made by a school district if they were not accompanied by currently required statements about whether truancy prevention measures were applied in the case and whether the student was eligible for special education services."

With any luck, thanks to SB 1114, we won't hear more horror stories like that terrible tale of the perfumed perpetrator in the coming school year. Whitmire's legislation has been mostly unheralded - even to some extent on this blog, which should have lauded it in this retrospective post - mainly because it was met with only tepid opposition from law enforcement and received broad, full-throated support from nearly everyone else, regardless of party or station. The media are drawn to a fight but here there was (mostly) sweeping consensus. Be that as it may, SB 1114 was one of the major accomplishments of the 83rd Texas Legislature. Of all the criminal-justice bills passed this year, arguably SB 1114 is the item legislators can point to that will affect the largest number of average, everyday families. It'll be fascinating to parse the data down the line to find out the effect both on ticket writing and the use of traditional school disciplinary methods outside the criminal justice system, which one hopes will be enhanced with the passage of this new law.

Rough day for Central Texas prosecutors: Anderson, Lehmberg headed to jail

Today was a rough day for Central Texas prosecutors:

Re: Judge Ken Anderson and the Michael Morton court of inquiry:

Former Williamson County District Attorney Ken Anderson was ordered arrested and booked into jail for the “intentionally harmful act” of hiding favorable evidence to secure Michael Morton’s 1987 conviction for murder, the court of inquiry found.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” District Judge Louis Sturns ruled. [Ed. note: See his findings.]

Sturns found probable cause to believe that Anderson broke two state laws and committed criminal contempt of court, then ordered Anderson to be arrested.

Re: Travis DA Rosemary Lehmberg, sentenced to 45 days in jail for DWI:

Attorney David Sheppard, representing Travis County District Attorney Rosemary Lehmberg at her plea hearing, said Lehmberg's punishment is “without a doubt” the “harshest” sentence for a first-time drunken driving charge in the history of Travis County. Lehmberg pleaded guilty Friday to drunken driving and was sentenced to 45 days in jail before being immediately taken into custody. Lehmberg’s driver’s license was also suspended for 180 days.

Between these extraordinary events and the crazy news out of Kaufman County, where the murderer of the DA, his wife and another local prosecutor allegedly turned out to be a former Justice of the Peace (as opposed to the Aryan Brotherhood or Mexican drug cartels, as widely speculated), it's been a truly remarkable week for Texas prosecutors. I can't offhand think of another one like it.

Drivers may soon seek indigency determination from courts for waiver of Driver Responsibility surcharges

In September, legislation approved back in 2009 will finally take effect allowing county and municipal courts and Justices of the Peace to declare drivers indigent for purposes of paying off the Driver Responsibility surcharge, and if they do, the Texas Department of Public Safety must waive all surcharges assessed," under a provision in HB 2730 (81st). This is a completely separate indigency program from the one recently installed in Department of Public Safety rules. To qualify with the courts for indigent status, drivers:

must provide information to the court in which the person is convicted of the offense that is the basis for the surcharge to establish that the person is indigent. The following documentation may be used as proof:
(1) a copy of the person ’s most recent federal income tax return that shows that the person ’s income or the person ’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;
(2) a copy of the person ’s most recent statement of wages that shows that the person ’s income or the person ’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or
(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:
          (A )the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;
          (B) the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786;
          (C) the medical assistance program under Chapter 32, Human Resources Code;
          (D) the child health plan program under Chapter 62, Health and Safety Code; or
          (E) the national free or reduced-price lunch program established under 42 U.S.C. Section 1751 et seq.

We'll see how courts handle this. I'm not a lawyer, but the statute language pretty clearly seems to allow petitioners to seek indigency determinations even in older cases, since drivers would petition "the court in which the person is convicted," and one wouldn't have been convicted yet on prospective cases. At the Texas District and County Attorneys Association legislative briefing, Shannon Edmonds criticized the Legislature on this language for providing little procedural guidance to judges, telling attendees of the Austin briefing merely, "Good luck."

Whatever procedure is used, clearly drivers may petition for an indigency determination in the court of conviction and judges must make a ruling. If a driver is determined indigent, all surcharges are waived. That's a big deal, even if it's perhaps a logistically clunky way to address the matter.

Will courts see a rush (or even a trickle) of drivers with old DRP surcharges seeking indigency determinations after September 1? And going forward, what methods will municipal courts, JPs, and county courts at law use to identify indigent defendants and notify DPS that their surcharges need to be waived? Will it be a different method from indigency determination for appointed counsel? And will DPS be prepared with sufficient bureaucratic infrastructure to process such cases, whether they come in at a trickle or a flood? All these factors remain unknown.

In any event, though the Texas Legislature has refused to abolish the Driver Responsibility surcharge outright, in the past couple of sessions they have provided significant additional relief. DPS created an amnesty program for drivers who defaulted prior to 2008. The Legislature also told DPS to create its own, separate indigency program, which only just rolled out a few months ago. (In that program, drivers must provide an affidavit or other evidence that their income is below 125% of poverty.) And an incentive program which will be implemented soon will allow drivers to pay half the full assessment up front and be done with the surcharge entirely.

After September 1, drivers who may or may not qualify for those other programs can also solicit a court to declare them indigent and have the surcharges waived entirely. It's a bit of a hodge podge, but little by little the Lege has created new ways for people to climb out of the surcharge-driven financial hole that's mercilessly bled millions of drivers since the program's creation in 2003.

See related Grits posts:

• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• Bill to abolish Driver Responsibility surcharge gets hearing Tuesday
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'