New shenanigans on arson investigation at forensic commission

Barry Scheck of the national Innocence Project and Todd Willingham's cousin have an op ed in the Houston Chronicle accusing Forensic Science Commission Chair and Williamson County DA John Bradley of more shenanigans aiming to prevent a re-assessment of science in old arson cases. They write:

Last week, after closed meetings that may violate the Texas Open Meetings Act, Bradley sent out an unsigned legal memo instructing commissioners that they have a “relatively narrow investigative jurisdiction.”

Employing “Catch-22” logic, he claimed that commissioners lack the “discretion or power” to investigate evidence that was not from a laboratory accredited by the Department of Public Safety (DPS) — which, as it happens, did not accredit labs before 2003, years after the Willingham fire. By this reasoning, the TFSC cannot review any pre-2003 matter, such as the Houston Police Department crime lab evidence, the scandal that gave rise to its formation.

In 2008, the TFSC carefully considered the jurisdiction question, and, with assent from the Attorney General’s office, determined that the Willingham and other old cases like it are well within its authority.

And rightly so: The Willingham inquiry into the use of unreliable arson analysis is an urgent matter for more than 600 people incarcerated in Texas whose arson convictions may have been based on invalid science. If its investigation is derailed, the commissioners would be turning their backs on these potentially innocent Texans.

Rather than becoming mired in bureaucratic shell games, the commissioners should take their cue from the FBI, which, after learning that a scientific test it used for three decades to do composite bullet lead analysis was unreliable, not only stopped using this flawed science but systematically reviewed its old cases and notified prosecutors across the country when it could no longer stand behind the testimony of its own agent examiners. The same should be done in this instance. 

Doubtless most Grits readers are unsurprised at Mr. Bradley's hubris in relying upon his own opinion over his colleagues' 2008 determination and the commission's advisers from the Attorney General. Such transparent stalling tactics have been his modus operandi since the day Bradley was appointed to the chairman's slot.

MORE: From Jeff Gamso and Willigham's appellate attorney Walter Reaves. Gamso linked to a copy of  the memo.

More backstory on Keller public warning

Rick Casey at the Houston Chronicle has some new detail on the behind the scenes machinations at the State Judicial Conduct Commission over Presiding Judge Sharon Keller's public warning. For starters, he says:

During the closed-door session in which the 13-member commission debated what sanction it should give Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, one non-lawyer member of the commission opined that Keller should be commended for saving the state money by blocking the appeal. 

However, he wrote:

A majority of the panel agreed that Keller needed to be sanctioned for ignoring the procedures she admitted to knowing. Because of the poor performance of Richard’s lawyers and evidence of other problems at the Court of Criminal Appeals itself, none of the commissioners argued to remove Keller from office.

Some did urge a “public reprimand,” a step up from the “warning.” But a reprimand results in a judge being ineligible to sit as a visiting judge after retiring from the bench.

One member asked why they would prohibit Keller from sitting later if they did not did not think she needed to be removed now. That argument carried the day for the lower sanction.

Keller’s attorney said she plans to appeal the “warning.” This would require an entirely new trial before three judges chosen by lot from the state’s mid-level courts of appeal. Their decision would be final.

It's a bit of a strange argument: Why would they prohibit Keller from sitting later if they did not think she needed to be removed now? Another question might be, "Why would the mid-range verdict of a 'public reprimand' exist if that's the commission's basic calculus? By that logic, judges don't deserve a public reprimand until they behave so badly they warrant removal, at which point presumably the commission would instead vote to remove them. What a Catch-22! If, as I suspect, the same commissioners have voted to give other judges public reprimands, that seems a bit disingenuous.

I can actually see a strong argument for a public reprimand as the right outcome - not removing her now but preventing Keller from sitting as a visiting judge later. One might think it proper to allow voters to pass judgment on Keller instead of having her administratively removed, but down the line you wouldn't want someone who would knowingly violate court rules to sit as a visiting judge. (As an aside, I don't understand how the "warning" option jibes with earlier reports that the only options available were removal, censure, or exoneration.)

OTOH, there's little practical difference in the result, since Keller has never argued a front-line court case nor presided over a trial, and I doubt she'll start once she leaves office. Plus she's appealing even this wrist slap. On that score, the Dallas News editorialized yesterday that "it would do everyone else a favor if Keller backed out of defensive mode and took her medicine," and it's hard to disagree with that sentiment.

MORE (7/22): See this item from Andrew Cohen at Politics Daily, coverage from the Austin Chronicle, and an editorial from the Corpus Christi Caller-Times, which opened with this saucy assessment:

An Associated Press article last week described Justice Sharon Keller as “the top criminal judge in Texas.” That’s a technically correct paraphrase for presiding judge of the Texas Court of Criminal Appeals. It wasn’t meant as a value judgment, thank goodness.

The Caller-Times concluded that:

Keller therefore remains for now “the top criminal judge in Texas.” Presumably that will be the case until her term expires in 2012. She has not indicated whether she will seek re-election. If she does, voters will be better acquainted with her and might make a more informed decision than last time. Keller’s case is a cautionary tale for voters, for sure – and a strong argument for an appointed judiciary. But that’s a whole ‘nother discussion.

Cornyn votes 'no' on Kagan

The Senate Judiciary Committee today voted to approve the US Supreme Court nomination of Solicitor General Elena Kagan, but Texas Senator John Cornyn voted against her. Learning of the vote at Sentencing Law & Policy, I left this disappointed comment:

I'm embarrassed by my own Sen. Cornyn's 'no' vote. Harriet Miers would be terrific, he thought, but not Elena Kagan or Sonia Sotomayor? In Texas, Cornyn is defying the White House because he wants to himself name our 4 US Attorneys, which is why we don't have any yet. It's one thing to oppose an occasional Bork, another to become routinely obstructionist toward a sitting president, like him or not, which is where Mr. Cornyn seems to be at these days.

Clear Grits: Texas Tough

As I focus elsewhere today, let me share a few links with y'all that have been backing up on my to-blog list:

Deaf man could be next Texas exoneree
The next Dallas-based exoneree could turn out to be a deaf man convicted of sexual assault whose "confession came during 18 hours of questioning and included admissions to fictitious crimes made up by investigators to test his credibility." A fingerprint found at the crime scene matches another man convicted of sexually assaulting a child.

Texas Tough
I briefly got to meet Robert Perkinson last week, the author of the new book "Texas Tough: The Rise of America's Prison Empire," who was in Austin for an Open Society Institute event. He was gracious enough to send me home with a signed copy, which I promise to review here later,  but in the meantime Ben Philpott at The Texas Tribune recorded an interview with him.

Dallas Jail Limbo
Dallas County Jail has had problems losing inmates in the past for months at a time, so it's unsurprising if disappointing to learn from the Dallas News that the county's criminal justice director found "423 felony cases [which] currently have no future court dates assigned" - in other words which are simply sitting in limbo with the court taking no action.

Houston DNA cases overwhelming crime lab, again
Houston PD generally lacks sufficient crime lab capacity for the volume of cases they handle despite millions spent on upgrades, with the backlog in DNA cases alone growing by 75 per day.

Juveniles incarcerated as adults
Going back to when we worked together at the Texas ACLU, I've learned over the years that when Alison Brock, a staffer in state Rep. Sylvester Turner's office, begins honing in on a problem, you're usually about 2 years from the public realizing there's a massive crisis. We spoke recently and Alison was concerned about juveniles incarcerated in adult facilities. Maybe the rest of us should be, too.

Pay at the Pump?
I recently (re-)suggested Texas switch to pay at the pump insurance, and after Bethany Anderson at Frontburner asked some 'how would it work' questions, I found this (somewhat dated) paper on the subject for anyone interested.

Racing to the bottom
Dave Mann at the Texas Observer fears Texas' underfunded mental health system is about to get worse as the result of next year's budget crisis. Of course, if mental health isn't funded on the outside, one can expect to pay for it more frequently in the prisons and jails.

Limiting license plate readers
Having recently discussed license plate readers I was glad a reader pointed out this story on new limitations governing their use by police in the UK.

Clear Grits
Has anybody hear ever heard of the Canadian "Clear Grits" party? It was apparently a populist farmers reform movement from the 19th Century in what's today Ontario. I found it by checking out search terms that brought people here. According to Wikipedia, "The Clear Grits advocated universal male suffrage, representation by population, democratic institutions, reductions in government expenditure, abolition of the Clergy Reserves, voluntarism, and free trade with the United States. Clear Grits from Upper Canada shared many ideas with Thomas Jefferson." Who'da thunk? One can never collect enough Grits references! :)

Yesterday's graffiti is today's art and tomorrow's economic growth

An exhibit in San Diego incorporating the work of famous former(?) graffiti artists into prominent public spaces around the city brings up a question I've raised previously: "Maybe it's time society started to view graffiti artists not as mere lawbreakers but as creative, marketable human capital? Perhaps it would be smarter to spend public resources not to maximally punish graffiti, but to identify emerging artists and invest in their development?" By 2016, according to a prominent recent study, 1 in 12 Texas jobs will be in the creative sector, which is the fastest growing sector of the economy. Most wall writers will never make a living as artists, just as most bloggers will never make a living as writers. But I've always thought graff writers performing at high levels - like some of the Austin folks whose work is featured on this site - could pretty easily find ways to monetize their talents and ultimately create economic growth for those around them.

UK urged to embrace restorative justice for juvie corrections

An important new report out of the U.K. could signal the start of a widespread shift toward use of "restorative justice" techniques in juvenile law, modeled on a program in Northern Ireland. According to this source:

A landmark report has called for the introduction of restorative justice across England and Wales to halve the current number of juveniles in custody.

The Independent Commission on Youth Crime and Antisocial Behaviour reports that restorative justice in Northern Ireland should provide the model for major changes to the youth justice system.

The commission, which carried out an 18-month study into alternative responses to youth crime, concludes that restorative meetings known as "youth conferencing" are the way to deliver better justice for the victims of crime, while cutting re-offending rates and custody numbers.

Its report, Time for a Fresh Start, estimates the cost of dealing with youth crime and anti-social behaviour as being more than £4bn each year.

It also argues that many millions of pounds are being wasted each year on custody for under-18s with each place costing taxpayers between £69,000 and £193,000 a year, but as many as three out of four young offenders are being re-convicted within a year of completing their sentence.

The commission sets a target for the current use of custody to be halved to fewer than 1,000 young offenders at any one time without adding to crime rates or compromising public safety.

And it urges a significant reinvestment of resources in early intervention to tackle serious anti-social behaviour among children, prevent later offending and save more money for the taxpayer.

In the introduction to the document, authors said:

We have been impressed by the restorative Youth Conferencing Service introduced in Northern Ireland five years ago and believe that its professionally co-ordinated approach provides a suitable model for England and Wales. Reconviction rates among young offenders involved in restorative justice processes are relatively low and youth conferencing in Northern Ireland has been accompanied by lower use of custody. Approval ratings among victims and all those involved are high. No one there suggests it is in any sense a ‘soft’ or easy option. Young offenders themselves acknowledge just how tough it has been to have to face up to the harm and misery they have caused their victims, their families and the community. Restorative justice is an approach whose time has come, and the results, when professionally managed, speak for themselves.

Texas just cut our own juvenile prison population in half, but instead of restorative justice the Lege invested in evidence-based probation programming to supervise those youth in the community. I find it interesting that Britain wants to achieve the same goal using a completely different model. Also notable, with more than double Texas' population, England and Wales incarcerate slightly fewer youth now than Texas does AFTER slashing our own youth prison population in half! But the Independent Commission says their juvie incarceration rate is too high. What do you suppose they'd think about our system?

There has been a great deal of talk about restorative justice in Texas, and a few small programs here and there have been based on the concept. (At TDCJ, for certain offenses victims can choose to engage in mediated discussions with offenders in a restorative-justice inspired program. And when Ronnie Earle was Travis County DA he experimented with restorative justice ideas in juvenile court.) But Texas officials have never come close to embracing the notion on the scale suggested here, as the foundational basis for the entire juvie justice system. This a lengthy report and there's a big stack on my to-read list ahead of it, but the topics coincide with many frequently discussed on this blog and may well interest readers in the juvie arena.

UTMB won't lay off as many prison dentists, but other RIFs stand

UTMB won't be laying off quite as many people in their correctional managed care division as previously reported, restoring dental care to previous levels. (Nurses, especially R.N.s, were the other big category affected.) A reader informed me of the news, which was confirmed when I contacted UTMB's Raul Reyes who declined to respond verbally but later emailed me this written statement:

In response to a projected shortfall of $65M—$105M within UTMB’s Correctional Managed Care budget, a reduction in force within the CMC program will take place as scheduled, Wednesday, July 21. However, working with the TDCJ, UTMB has modified the staff plan so that dental care for offenders can continue at its current level for now, reducing from 363 to 296 the number of individuals affected. In addition, UTMB expects to hire some of the nurses and other medical staff whose positions were eliminated into comparable positions at other sites, which would further decrease the overall impact of the workforce reduction.  The new staffing plan for CMC outpatient units is based on a proven model of community health care delivery that UTMB and TDCJ consider appropriate for the offender patient population as well. This model — which has been designed with anticipated changes related to health care reform in mind — employs a sophisticated electronic medical record system to better manage patient care and outcomes. While UTMB is relieved that the total number of CMC employees affected by the reduction in force is less than anticipated, the university recognizes that this remains a difficult time for everyone involved in the program. Job assistance services are available through the Texas Workforce Commission, and affected employees will continue to receive priority consideration for UTMB and CMC positions for which they qualify. 

Free Market Privacy Response to Red-Light Cameras, License Plate Readers

A commenter pointed out this commercial spray-on product that defeats red-light camera technology and likely also those pesky new License Plate Readers starting to be used around the state. See a story from Austin's KXAN-TV about the unintended spawning of this new technology and economic market by the expansion of police surveillance apparatus in public spaces.

I suppose the Legislature could try to ban the product, but they're divided even on whether red-light cameras are a good idea. Like radar detectors, the product raises the question of the legitimacy of profiting from helping people break the law without consequence. I suspect that generally, the willingness of the public to tolerate and use such products - just as with radar detectors - relates directly to the public's perception of the relative justice of the underlying statute.

The legal justification behind red-light cameras and license plate reading technologies is that individuals have no privacy rights in public because their license plate is in "plain sight" and could be read by anyone. If it works, this product empowers drivers to protect themselves from electronic surveillance but keeps the plate visible to any real-life officer or witness who might immediately need that information relating to a specific offense.

Ironically, makers of this product aren't necessarily against red-light cameras or government surveillance: They'd have no market without it! About the most you can say about this development is that the Law of Unintended Consequences remains in full effect.

Terms 'liberal' and 'conservative' have lost all meaning

The Texas Tribune published a "partisanship" ranking of Texas House members, ranking them 1-150 from the most "liberal" to the most "conservative." In response, Paul Burka posted about the methodology behind creating the list, and I left this observation in the comments:

“Liberal” and “conservative” are both terms that have lost all meaning, or rather their meanings today derive purely from the mind of the beholder.

Is it “liberal” or “conservative” for government to mandate purchasing private insurance? In Washington, the suggestion got Barack Obama labeled a “socialist,” but when we do the same thing for auto insurance it’s considered “tuff on crime” conservatism.

Both Leo Berman and the building trades unions want immigration limits enforced, does that make it a liberal or conservative policy?

These ideological distinctions were coined to describe disputes 200+ years ago. IMO they have little relevance when analyzing debates today and next to no probative value at all in the context of the Texas Legislature.

I could riff on this theme all day. Is mass incarceration liberal or conservative? How about opposing it? When I was growing up, conservatives complained of Soviet gulags and Communism's higher incarceration rates were widely touted as evidence of totalitarianism. I grew up firmly believing that meme.

In high school in the early '80s, I read and was significantly influenced by Solzhenitsyn's "Day in the Life of Ivan Denisovich" and "The Gulag Archipelago," and if - in those heady days of youth when in 1984 I was volunteering for Ronald Reagan's reelection campaign - you'd asked me to describe my antipathy for Communism, I would have regaled you about the moral decay demonstrated by mass incarceration and the casual violation of civil liberties by the state, beaming with jingoism to contrast our own, then-much smaller system, protections against state seizure of property, etc.. All the positions that today get me labeled a "liberal" in the early '80s were things American anti-communists boastfully championed in contrast with Soviet and Chinese totalitarianism, insisting such distinctions were fundamental to the American way of life.

Today, by contrast, the United States has 5% of the planet's population and 25% of its prison inmates. What does that say about the whole Free Markets = Freedom argument that from 1945 through the fall of the Berlin Wall was the animating distinction (on our side) between the "Free World" and the Communist hordes? The late, great progenitors of the conservative movement - folks like Ayn Rand, Bill Buckley, Barry Goldwater, Milton Friedman - all held views that today would have them either hounded out of the GOP by social conservatives, or at best tolerated and ignored as eccentric RINOs.

I've become incredibly cynical about the terms "liberal" and "conservative," which as I said to Burka have lost all connection to any historical meaning. They've simply become a kind of floating slang by which people delineate broad tribal connections within civil society, or else use as pejoratives to belittle views with which the speaker disagrees or doesn't understand. There was a time when I considered myself a "conservative," but not any more. That's because the working definition of the term changed; my own politics pretty much stayed the same.

Smith County Commissioners may bypass voters on new jail debt

Figuring three strikes and you're out on voter-approved jail bonds, the Smith County commissioners court is considering issuing "certificates of obligation" (non-voter approved debt) to expand the jail in my hometown, albeit a smaller expansion than previously proposed. Reports the Tyler Morning Telegraph ("New jail plan would bypass voters," July 14):

Commissioner Jeff Warr has prepared a $33 million, 385-bed jail renovation and expansion project to be unveiled at a 3 p.m. special meeting Tuesday.

For months, Warr worked to produce a plan that he believed would relieve jail overcrowding, reduce costs and safety concerns, increase efficiency and meet state requirements. The plans received the Texas Commission on Jail Standards’ approval last week, and he informed the court he would make a presentation for their consideration next week.

During that time he also has contemplated how to pay for it. He admits that he “may be run out of town on a rail” by merely mentioning taking on debt without taxpayer approval.

But, Warr said he doesn’t care and added he is willing to fall on the political sword because, as a businessman, he believes it would be the right thing to do.

“The thing is, I am going to get criticism because people think I want to build a jail. I don’t want to build a jail, but I can’t go to bed without putting every option out there to stop wasting (taxpayers’) money,” he said. “We’re wasting their money.”

The county has shipped prisoners to as many as eight surrounding counties since 2004 to stay in compliance with state jail population standards. The county has spent more than $15 million housing prisoners out-of-county since it began.

More than $2.3 million was budgeted for out-of-county, shipping, medical and housing this year.

In the last four years, voters have rejected multiple jail proposals. Warr describes the situation in simple terms — either the county can become a landlord or remain a tenant.

I'll give them this: They've scaled back the proposal considerably from the original nine-figure "Taj Majal" version Sheriff J.B. Smith and County Judge Joel Baker had wanted. In the scheme of things, though, between construction and staffing, an expanded jail will cost at least as much as housing inmates elsewhere. Staffing 385 extra beds 24-7 at the TCJS minimum standard of one guard per 48 inmates would require filling 40+ guard slots - let's say, arguendo, that costs $1.2 million. Add to that the annual costs for financing - at 3%, interest alone on $33,000,000 in debt comes to $990,000, plus whatever you're paying on principal - and the costs of jail building vs. housing inmates in surplus beds in other counties comes out a financial wash, at least for now.

Before passing judgment, I'm more interested to see the non-construction details, if there are any, of Warr's plan to "relieve jail overcrowding, reduce costs and safety concerns, increase efficiency and meet state requirements."  If he's suggesting jail building as the only solution, the strategy has already failed. Smith County judges can and will easily fill up as many bed spaces as the commissioners court provides.

The Texas Commission on Jail Standards publishes a monthly comparison of county-by-county incarceration rates, and Smith County is the largest of all counties that have incarceration rates in the local jail above 4 per 1,000 residents. The Smith County Jail incarcerates 4.26 residents per 1,000. Compare that, for example, to 3.73 in McLennan (Waco), 3.66 in Lubbock, 3.14 in Brazos (Bryan/College Station), 2.96 in Angelina (Lufkin), and 2.36 in Midland. El Paso residents are less than half as likely to be locked up in the local jail (2.09 per 1,000) than in Tyler. Smith County's jail overcrowding problem stems primarily from policy decisions by elected officials, particularly judges regarding pretrial detention, not because otherwise the city would be ravaged by crime.

Building more jail space by itself cannot resolve the problem that Smith County incarcerates way too many folks in its jail for a county of 200,000. That's going to require changing either the decisions or the occupants of the local judiciary and DA's office and leadership among law enforcement agencies. As we've discussed on this blog many times, there are plenty of options for reducing overcrowding - including some proposed by longtime District Judge Cynthia Kent - that would be a much smarter way to invest additional money if taxpayers are going to be asked to spend it.

Draconian solutions fail to lower Dallas' uninsured rate

One reason I'm glad to see the proposed new rules for the Driver Responsibility Program is I've become utterly sick of phony, disingenuous non-solutions like the DRP being proposed for the problem of uninsured drivers. The issue has been around forever, voters are frustrated and edgy about it and because everyone drives, everyone's got a strong opinion.

Even so, actual real-world solutions remain elusive. The most draconian possible tactics have been tried and failed, often making the situation worse. The DRP attached huge, multi-year civil penalties to the violation which knocked 1.2 million people off the driver rolls, making them ineligible to even buy insurance. The state has created a massive, Big-Brotherish database of every active insurance policy, which has served only to document the problem, not reduce it. In Dallas and other Metroplex jurisdictions, drivers without insurance have their cars impounded. Name a radical, enforcement-only approach and it's been tried, usually in many places.

Terrence Stutz at the Dallas News reports that after years worth of git-tuff policies in Big D, 25% of Dallas-area drivers still have no auto insurance ("TexasSure program finds about 25% of vehicles uninsured in Dallas County," July 17). He reports:

It's a slight improvement over the last six months, but about 25 percent of all vehicles in Dallas County – 429,478 cars and trucks – remain uninsured, a new analysis by the state Department of Insurance shows.

Dallas County continues to have the highest percentage of uninsured drivers of the six largest urban counties in Texas. In Tarrant County, about 21 percent of vehicles had no insurance coverage.

The figures, pulled from the database of the TexasSure vehicle insurance verification program, also indicated that 3.7 million vehicles statewide – 21.6 percent of the total – lack basic liability coverage, a violation of a state law requiring insurance.

Though the numbers are high, they're an improvement from December 2009, when nearly 26 percent of vehicles in Dallas County and 22.2 percent statewide had no insurance coverage.

Department officials credited the TexasSure program with helping to reduce the percentages. 

It's absurd for anybody to be claiming credit for moving from 26-25% uninsured drivers - that's hardly a statistical blip!

Predictably, the comment section to Stutz's article quickly filled with calls for even more draconian measures (and also many calls for impounding vehicles, apparently not realizing Dallas already does that). But punishment alone cannot solve this problem. I replied in the comments:

The plain fact many commenters here ignore is that when 25% of drivers are uninsured, it would shut down the economy overnight to seize all their cars or otherwise stop them from driving. Sometimes reality must intervene during these absurd conversations.

Speaking of which, why do Republicans hate Obama's healthcare plan for making us buy insurance but don't mind the IDENTICAL, failed scheme for drivers? If government forces you to have insurance, we should just pay at the pump through gas taxes and be done with it so everyone must pay. A requirement in criminal law to buy private insurance has been a complete failure, just as it will be when implemented for healthcare.

I discussed during the 2008 election season why our experience with auto insurance made me agree with what was then (but not now) Barack Obama's criticism of Hillary Clinton's mandatory health insurance plan. She suggested requiring everyone to buy insurance along the Mitt Romney/Massachusetts model, but in Texas requiring everyone to buy auto insurance - and enforcing the requirement with criminal penalties, no less - has resulted in nearly one in four drivers uninsured. That's a failed policy.

Of course, once Obama got into office, Clinton's plan ended up being essentially what he passed! And in its wake, he was labeled every kind of Socialist, Communist, Big Government Liberal, you name it for requiring everyone to purchase health insurance. So somebody please explain to me: Why isn't it also "socialist" to require drivers to purchase private auto insurance? What's the difference?

Since no matter what you suggest these days it seems like one is labeled a "Socialist," let me offer up an actually socialist solution, but one that's at this point the only viable option if we honestly want every driver insured: Drivers should pay at the pump through the gas tax for minimum liability coverage and essentially "nationalize" that market. Doing so would immediately cover every driver and eliminate the need for each driver to have a separate insurance payment for minimum liability. Insurance companies could still deliver liability insurance just like some today participate in Medicare or Medicaid. And they could still sell extra coverage for one's own vehicle, etc., so there's a significant auto insurance market beyond selling minimum liability. But if it's going to be a requirement to purchase insurance - to the point where criminal penalties and property seizure result if you choose not to enter into a commercial transaction with a private insurer - it'd be a lot cheaper and easier for everyone to just make it mandatory and universal.

There, I said it. Let the red-baiting begin!

Confusion over Amnesty rules?
Incidentally, at the end of his story Stutz mentioned the new Driver Responsibility rules, but I think he misstated what's going on with the Amnesty program. He wrote:

Public safety commissioners outlined two changes they hope will improve compliance, including a reduction in the surcharge that must be paid by indigent people – those making less than $14,000 a year – to 10 percent of the total, not to exceed $250.

The other is an amnesty provision for those who have failed to make payments in the past. It will allow them to resume surcharge payments and have their driver's license reinstated if they pay 10 percent of what is owed, not to exceed $250. They still must pay the remainder of their surcharges to stay in compliance.

The way I read the Amnesty provisions, that's incorrect. As I understand it, "Each applicant eligible for amnesty will be required to pay 10% of the total amount of surcharges assessed, not to exceed $250." Then, "Once the department determines the applicant is eligible for amnesty, the department will rescind the suspension of driving privileges for each applicant that receives amnesty." After that, "Payment of the reduced amount must be received by the end of the amnesty period," and "If prior payment(s) exceeds the reduced payment, the driver will not be required to make a payment." However, "Any prior payments that exceed the reduced payment will not be processed for a refund." If you still had to pay the full amount, it wouldn't be much of an "amnesty," would it?

I'm not a lawyer but if there's anything suggesting those receiving amnesty "still must pay the remainder of their surcharges" beyond the $250, I'm not seeing it in the proposed rules.

The goal of the amnesty program is to reduce the massive backlog of folks who didn't pay and thus are for the most part now driving unlicensed and uninsured. That's particularly important among drunk drivers, who have the highest DRP surcharges but are also the folks you most want to make sure have auto insurance. There comes a point in the insurance debate when one must decide whether it's preferable to solve the problem or whether it's enough to punish and castigate everyone who fails to comply with the government's last failed solution(s). I'm pretty much sick of the latter approach.

You've Been Warned: Keller gets wrist slap from Judicial Conduct Commission but vows to appeal

Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals yesterday received a "public warning" from the State Commission on Judicial Conduct, but the panel did not recommend her removal. See their decision (pdf). A public warning may seem weak, but it's not the exoneration Keller was looking for and is particularly unusual for such a highly placed jurist.

Despite the fact that the "warning" amounts to a slap on the wrist, Keller has vowed to appeal. But Chuck Lindell at the Statesman makes the interesting point that "How Keller will appeal the reprimand was unclear Friday. An appeals process was mandated last legislative session, but the Texas Supreme Court has not yet created a process."

I suspect most judges would have resigned their seat long before now rather than rack up endless legal bills and endure the public disapprobation Keller has brought on herself and the court. The fact that she intends to continue slugging it out (she's also appealed her $100K fine from the Ethics Commission, though her attorneys must be costing her more than that) makes me think Keller intends to run for reelection when she's up in 2012. She's looking for vindication, and if she can't get it in the courts I won't be surprised to see her seek it from the voters. CCA races are usually sleepy affairs, but if she's on the ballot again two years from now it could certainly add some zest to the election cycle.

MORE: From Jeff Gamso, Mary Alice Robbins, Kuff, Scott Greenfield, and AP.

Amnesty, Indigence programs make it into surcharge rules; 'incentive' program not immediately implemented

Finally we see the new, proposed rule changes to the Driver Responsibility surcharge, and at first blush they look pretty good compared to what the agency had suggested before, though the "Incentive" program regrettably won't be immediately implemented. (See the proposal uploaded here on Google Docs. Read it for yourself for more details.) Here are the topline descriptions of the programs from DPS:

The amnesty program will apply only to individuals currently suspended and not in compliance with the surcharge assessment. Eligible individuals will pay 10% of the total surcharges due, not to exceed $250.  If 25% of the eligible individuals participate annually in the amnesty program, the estimated collections would be approximately $18 million.

The incentive program will apply only to individuals who are in compliance for all surcharges, or pay a one-time reduced amount for all surcharges.  It is estimated that 39% of individuals would be eligible for the incentive program. The estimated fees waived annually would be approximately $23 million.  Due to the estimated fiscal impact, the incentive program is not implemented with the adoption of the rule but will be implemented at the department’s discretion.

The indigency program defined by this rule will apply only to individuals living at or below 125% of the federal poverty level. Eligible individuals will pay 10% of the total surcharges due, not to exceed $250.  Eligible individuals may be comprised of those currently paying and those not currently paying.  For 100% of individuals currently paying, the estimated fees waived are approximately $11 million. For 100% of individuals not paying, the estimated fees collected are approximately $17 million. Therefore, the indigency program could see additional collections or a loss of uncollected revenue.

So the Amnesty and Indigency programs will go into effect when the rules are finalized, but the Incentive program won't. Bummer.

The Indigency program is less generous than I'd hoped, but in 2011 state law will require DPS to completely waive surcharges for indigents, so that may work itself out over time.

I suppose it's understandable why in tight budget times it's the Incentive program that won't be implemented immediately - those are folks who are current on their payments and the state risks losing revenue for some of them, though others may pay the first year then stop, etc.. When implemented, the Incentive program would give discounts of 30% - 50% if drivers pay their surcharges in a one-time lump sum instead of over three years.

As readers well know, I think this program should be abolished for a multitude of reasons. But that can only be done by the Legislature. This round of rulemaking doesn't solve every problem with the DRP, by a longshot, but it's a big step in the right direction. Congrats and thank you to the Public Safety Commissioners in particular for pushing hard on this, even when staff was at times reluctant. And thanks to Paul Watkins at DPS for letting me participate in their workgroup.

I'll have more analysis soon and will also try to let you know what others think about the new rules. Yesterday they were officially proposed by the Public Safety Commission but haven't yet been published in the Texas Register, so hold your written comments until they are. I'll let readers know when they officially light that candle, which will trigger a timeline for public comments, another hearing, etc..

RELATED: "Public Safety Commission approves driver responsibility program changes," Wilson County News 

UPDATE: You can download DPS' rather minimalist power point presentation on the proposed rules here, though you'll get a better sense of what they're doing by just reading them yourself.

Obama Recovery Act money financing license plate readers Texas told feds were illegal here

The reported use of license plate readers for law enforcement in Texas seems strange and premature to me and I don't quite understand why it's considered legal. Reports Forrest Wilder at the Texas Observer:

license plate readers have only caught on in the U.S. in the past few years. Expense has been one barrier; each unit costs at least $17,000. President Barack Obama’s Recovery Act, though, is helping law enforcement purchase the equipment. In Texas, 14 agencies – from the tiny Penitas Police Department in the Rio Grande Valley to the Precinct 7 Constable in Harris County – have used over $1.2 million in stimulus funds to buy automated license plate readers, according to figures maintained by the governor’s office.

Innovators in law enforcement – egged on by the technology’s vendors – are putting their new toys to creative use. There’s little doubt that the license plate readers could help law enforcement with critical duties. But what can help nab a fugitive or recover a stolen vehicle can also be used to conduct mass surveillance or target political dissidents.

Some law enforcement agencies, like Highland Village, are also storing the data they collect for years, creating vast warehouses of information, including the exact time and location of vehicles scanned, that can be mapped, searched and data-mined.

In the case of the road-rage suspect, O’Bara’s officers punched the license plate into their database and, seconds later, were amazed by the results.

“It basically gives us a map and it shows every place in our city that we had picked up on this license plate, which was astronomical,” said O’Bara. Unknowingly to both the driver and the cops, the license plate scanners had detected and recorded the precise location, time and date of the driver’s car at least two dozen times in the previous three to four weeks.

Many of the hits were clustered in a shopping center, where, as the cops discovered, the man worked. In the end, no arrests were made and the cops probably could have found the road-rager using more traditional methods. But for O’Bara, the experience underscored his belief that the technology could revolutionize policing in much the same way that DNA, fingerprinting, and breathalyzers have.

“Simply limiting the ability of this machine to stolen cars is insane,” O’Bara said. “I looked at it and I saw a hundred different opportunities.”

O’Bara says he’s leading his own grassroots initiative in the Metroplex to interest law enforcement in stitching together a network of scanners.

Here's my point of disconnect, in 2008 in between sessions, the DEA asked permission to put license plate readers on Texas' roads, and TXDOT declined saying it wasn't legal to use them criminal law enforcement. As I described TXDOT testimony to the Legislature at the time, under Texas law any "photographic traffic enforcement system must a) be implemented by a local authority, b) requires a traffic engineering study and evaluation of alternatives, and c) must be aimed at reducing red light violations."

DEA license plate readers failed all three tests, but using license plate readers as described above - especially using them to create a regional network - surely fails the last two. Wilder notes that:

the Texas Legislature nearly passed a provision in 2009 that would have allowed the DEA and other local and federal agencies to track all vehicles on Texas highways using license plate readers and use the information to prosecute any crime except fine-only misdemeanors. The measure was slipped into an enormous transportation bill at the last second, seemingly a stealth move to avoid debate. Although the measure died along with the bill, it’s likely to come back next legislative session.

However, given the unpopularity of red-light cameras in Texas, proponents of license plate readers – if anything, a more insidious device – may actually face an uphill battle. That is, if there’s a chance to debate the issue.

So TXDOT ruled their use illegal. The Legislature "nearly passed" language approving it in 2009, but close only counts in horseshoes and hand grenades. I simply don't understand under what authority are these local agencies using license plate detectors? Will criminal defense lawyers soon be challenging their use under the identical reasoning offered by TXDOT? I certainly hope so.

This is insidious, truly Big Brother technology. Collecting that much data about the public for law enforcement purposes when there's no reason to suspect them of a crime creates an atmosphere fraught with opportunities for abuse.

And btw, thank for nothing to the Obama Administration for the USDOJ financing this invasive technology when the feds had already been told its use violated Texas state law.

Chair leaves Senate Committee just before scheduled DRP hearing

Who knows what this will mean in practice for the Driver Responsibility program, which presumably is still scheduled to be discussed before the Senate Transportation and Homeland Security Committee on August 3, or for that matter the array of other issues facing the committee, but Sen. John Carona, a critic of the program, was replaced as chair by Sen. Tommy Williams, a Republican out of the Woodlands. Austin Sen. Kirk Watson is now vice chair. Carona left the committee entirely and will now chair Business and Finance.

The San Antonio Express News editorialized that Carona was benched for telling the truth about state roads, however there are reports that he requested the change himself because "transportation funding is not something legislative leadership is serious about for next year's session, so he sought a committee chairmanship that will make a difference."

Whatever the case, on the DRP in particular, the switch shouldn't matter in the short term. Williams supported the 2007 legislation that authorized the rulemaking underway at the Department of Public Safety. During the debate on that legislation (available for viewing online here, it's the first bill up) he spoke knowledgeably about the problem and was the senator who moved passage for the "fix" presented to them.  OTOH, Carona had an ongoing burr under his saddle about the DRP program and had openly discussed the possibility of scrapping it. We'll find out more about Williams' attitudes toward the program at the August 3 hearing, assuming it's still on.

(Incidentally, the Amnesty and Indigency rules that 2007 bill authorized were finally presented yesterday to the Public Safety Commission and presumably will soon be published in the Texas Register. I had to work for a paying client and couldn't make yesterday's PSC meeting, but their media relations folks promised to get me the deets today, so check back for more on the subject.)

Other than on the DRP, Williams is less moderate than the Chair he's replacing, for sure, and we disagree on a lot of things. But he's also a CPA by profession and a fiscal conservative by his own description, so perhaps having a chair capable of serious close vetting of all that border-security pork and some of DPS' more crazy Big Brother projects may not be a bad thing. We'll see.

Lt. Gov. David Dewhurst decided to reshuffle the committee chairs on the Senate side early, thinking that the new leadership needed rampup time before a difficult budget session. Sen. John Whitmire remained chair of Senate Criminal Justice, notably, and Steve Ogden remains Chair of Senate finance. See the full updated list (pdf).

Erasing the 'last vestige' of police as neutral truth seekers

The Texas criminal defense blawgosphere has done itself proud regarding the story of Houston PD's new, probably illegal policy that their officers can't speak to defense counsel without prosecutors' permission.

Murray Newman first broke the story on July 1 at Life at the Harris County Criminal Justice Center, publishing the actual memo text, as I'd noted a couple of weeks ago. The Houston Chronicle followed up with a story July 7 quoting Newman: "It is absolutely destroying any last vestiges that a police officer is a neutral witness who is just trying to figure out what happened," Newman said ... "If, theoretically, the truth is supposed to help you, why would anyone advocate hiding it?"

Then over the weekend the Chronicle published an odd editorial that critiqued the new practice but called instead for prosecutors to be present when defense attorneys speak with officers - an even more cumbersome requirement. (Would prosecutors be similarly banned, one wonders, from speaking with police without defense counsel present?) That's not a serious proposal, almost like the unsigned editorial was written by an intern.

The Chronicle's reporting, however, was flamboyantly bested by excellent editorial coverage from Newman, Mark Bennett and Paul Kennedy. On his blog, The Defense Rests, Kennedy reported on the Tuesday City Council meeting where the issue was raised for the first time publicly before the Houston Chronicle did, mentioning that:

Robert Fickman, Mark Bennett and Nicole DeBorde (current president of HCCLA) spoke out this afternoon at the weekly city council meeting and were joined by about 50 of their colleagues. (Click here to see the video of today's meeting.)

Councilwoman Jolanda Jones, a criminal defense attorney, understood the larger issues involved and told Mr. Feldman that "the Constitution trumps overtime."

Notably, Kennedy provides readers with direct access to the video so they can judge what happened for themselves. Bennett links to the relevant law and HPD policies. As an aside, that's one big reason people read blogs and I've never understood why the MSM doesn't make us all redundant by just linking to their primary sources. Instead they pretend they're some sort of information gatekeepers when the fences surrounding raw information in the modern world have all blown down. Why is it that all the links to primary sources on this story come from Newman, Kennedy and Bennett?

Speaking of Bennett, who also spoke to the City Council, he has an excellent analysis of the issue in this post. At his blog Defending People, he notes that:

Texas’s highest criminal court, the Court of Criminal Appeals, has held, in Stearnes v. Clinton, that a rule barring defense counsel from talking to some witnesses without the prosecutor’s presence “is not only in conflict with principles of fair play, but in direct conflict with defense counsel’s responsibility to seek out and interview potential witnesses.”

 Bennett also mentioned that:

At the City Council meeting, City Attorney Feldman poo-pooed the Tampering With Witnesses statute, which suggests that he hadn’t read it—the clear language of the statute could easily be interpreted to forbid the Chief’s conduct. Everyone knows the Chief is never going to be prosecuted for tampering with witnesses, but our government officials shouldn’t be in the business of committing crimes just because they know nobody is going to prosecute them.

This episode not only speaks poorly of whatever dark forces in the Houston Police Department or the City Attorney's office generated this troubling memo, it also shows how blogging has grown up in recent years. Houston criminal defense blawggers not only broke this story but are providing by far the most important, in-depth discussions of the subject and even helping lead the charge to change this odious policy, bypassing the gatekeeper media to dominate the story more than any MSM outlet. Well done, gentlemen. Well done.

TCJC on reentry, DWI, veterans in the justice system

There were several recent items of interest in the Texas Criminal Justice Coalition's most recent newsletter, including an announcement of the publication of their long-awaited Texas "Reentry Guide." Here's the full contents of their 7/14 e-newsletter.

"A New Start: A Re-Entry Guide for Texas "

TCJC proudly announces A New Start: A Re-Entry Guide for Texas - Key Information for Successful Reintegration.    This guide provides valuable information about re-entry related policies, as well as numerous regional resources in various areas of re-entry - housing, health services, employment, benefits and assistance, education, and community involvement.   Our goal with this guide is three-fold.  Primarily, we want to help re-entering individuals seeking to live successfully in their communities.  The guide can point them to community groups and agencies that will assist them in improving their lives and those of their families.  The guide is also a tool for organization and agency leadership, as well as their supervisory personnel and local service providers.  They can use this resource to provide particularized information to their clients and other staff members.  Lastly, the guide will help policy-makers meet requests for information from their constituents. Please click here to download this guide, and feel free to forward it to your colleagues or others who may benefit!

Re-Entry Survey Results
The statewide Reentry Task Force's Community Reentry Working Group, chaired by Commissioner Roy C. Brooks of Tarrant County and vice-chaired by our own Ana Yáñez-Correa, created an online survey intended to evaluate the challenges facing re-entry providers and others in both rural and urban communities.

We sent the survey to a diverse group of recipients, including TCJC's internal list of criminal justice practitioners, members of the Texas Reentry Task Force, the Texas Board of Pardons and Paroles, staff members of the Texas Department of Criminal Justice (TDCJ) and its Community Justice Assistance Division, the Texas Association of Counties, the Urban County Association, participating providers of 2-1-1, and many other critical groups who are knowledgeable and care deeply about improving re-entry practices throughout Texas.     We are grateful for the support of these groups and for their willingness to forward the survey to their own internal lists of relevant contacts.  Over a period of two weeks, 645 respondents provided their feedback.  We thank all the respondents for taking the time to offer their invaluable input!   Click here to review the survey results.

Key Policy Testimony Preventing and Reducing Incidence of DWI

On July 8, 2010, the Senate Committee on Criminal Justice heard testimony on Charge 2: "Review statistics regarding the crime of driving while intoxicated, including accident statistics, alcohol-related deaths and injury, and other impacts on the community.  Examine enforcement options used nationwide to deter driving under the influence and make recommendations to reduce the number of alcohol-related traffic fatalities and accidents in Texas."    Click here to find out what TCJC had to say.    Also, a broadcast of the hearing is available online; you can watch the hearing by clicking here and selecting the July 8, 2010 broadcast.     Helping Veterans Impacted by the Criminal Justice System   On July 13, the House Criminal Jurisprudence Committee and Subcommittee of Defense & Veterans' Affairs heard testimony on Joint Interim Charge 4: "Monitor the implementation of SB 1940 (81R), which established veterans court programs in Texas, and examine the link between combat stress disorders of war veterans, including post-traumatic stress disorder and traumatic brain injury, and the onset of criminal behavior."     Click here to read TCJC's invited testimony before this joint committee.    Also, you can view the hearing online by clicking here and selecting the July 13, 2010 broadcast.

What does it take to get a bad cop fired in civil service cities?

What in God's name does it take to get a bad cop fired in towns where arbitrators can trump police management decisions?

Do you remember the case in San Marcos a couple of years back when the police officer pulled over a couple rushing their dog to the emergency vet and let the animal die while he kept them there on the side of the road, telling them, "It's a dog, okay ... You can get another one"? Well, last year the same cop was fired over a separate incident where the department found he had violated its use of force policy by improperly using his baton and shoving against a woman who wasn't threatening him (according to dashcam video of the incident) and then lying to internal affairs investigators. But an arbitrator out of Houston last month gave the guy his job back and awarded him back pay. Here's the description of the case from Patrick George at the Austin Statesman:

An arbitrator has rejected the indefinite suspension of a San Marcos Police Department officer fired last year over a use of force complaint and for making a false report about the incident.

In a June 23 decision, the arbitrator ruled that Officer Paul Stephens should be punished instead with a 15 day unpaid suspension. Stephens was re-hired by the department, who now owe him back pay since he was terminated, Police Chief Howard Williams said today.

In October, Stephens was fired by Williams, who said that Stephens used his baton unnecessarily against a woman who was not a threat to him during an incident outside a bar around 2 a.m.

In his report, Stephens wrote that the people were fighting, that the woman tripped on the curb and that she continued to fight with others after that. However, his patrol car video showed that none in the group were fighting, the memo said.

According to the memo, Stephens later admitted to Cmdr. Terry Nichols, who conducted the internal investigation, that the people in group were not fighting. Stephens also spoke with several officers about the investigation after being ordered not to do so.

Williams fired Stephens for violating the use of force policy, not fully disclosing the truth about the incident and insubordination.

Stephens appealed the termination to an independent arbitrator, Richard R. Brann, who on June 23 issued a decision saying Stephens did not violate the use of force policy. The arbitrator upheld that Stephens violated the order not to talk about the incident, but said that this did not interfere with the investigation and did not merit termination. Brann also ruled that he was not deliberately dishonest during the investigation into the incident.

Both parties must agree on an arbitrator - a strange practice in disciplinary proceedings under the civil service code that's the equivalent of requiring that criminal defendants agree to the judge who will decide their case, letting them veto those who might be too harsh. Decisions like this one certainly will ensure Mr. Brann's name will remain on the list of arbitrators that police unions are willing to hire.

This officer deployed his baton unnecessarily and attacked a woman who didn't threaten him, according to his supervisors, and his actions in the previous incident brought national disgrace to the department. But in Texas civil service cities, in most instances it's nearly impossible to fire bad cops no matter how badly they screw up. This guy's a statewide poster boy for that fact.

FBI catches bad cop but lets cartel have M-16s, body armor

A case of police corruption in South Texas raises a curious scenario, as reported by Jeremy Roebuck at the McAllen Monitor ("Feds: Pharr police officer sold weapons to drug cartels," July 13):

A Pharr police officer arrested last week was working as a middleman for Mexican drug traffickers seeking military-grade weapons, the FBI said Monday.

Jaime Beas, a six-year veteran of the force, allegedly brokered a deal to purchase an M-16 assault rifle and a bulletproof vest being sold by undercover agents he thought were U.S. Marines.

Authorities arrested the 33-year-old officer Friday in McAllen but released few details about his case over the weekend.

I know, another corrupt South Texas cop: Same song, zillionth verse. But the especially fascinating part of the feds' sting relates to what happened with the weapons and bulletproof vest the officer was selling: Apparently they let the cartel buyer get away with them scot-free. Roebuck reports that federal agents were alerted by Beas' uncle that the officer was looking for weapons to sell to a man  dubbed "El Cubano." The feds apparently contacted the would-be buyer and "urged the man to set up the deal," so he was apparently working as an FBI informant during the transaction, meaning he had a designated "handler" coordinating his actions. That's why it seems a somewhat dubious, as Roebuck reports, that El Cubano was allowed to:

leave the deal with weapons in tow. There is no mention of his arrest in Beas’ charging documents. “There are some serious questions raised about the treatment of the purchaser of this equipment,” [Beas' attorney] said.

A local FBI spokesman did not return calls for comment Monday on the outcome of “El Cubano’s” involvement in the case or how agents first began investigating Beas.

Was El Cubano an informant? Is that why the FBI let a delivery of M-16s and body armor go through to his cartel-bosses? Otherwise, losing the merchandise fronted by undercover agents during such a transaction seems like a huge flaw in the operation. Is the same guy still out there buying guns and body armor for the drug cartels? Quien sabe?

Questions you can't ask a probationer in Fort Worth

Liberty and Justice for Y'all alerts us to a potentially momentous decision out of Fort Worth's Second Court of Appeals which found that probationers retain their Fifth Amendment right against self-incrimination, a decision which likely contradicts the day-to-day practices of probation departments statewide. According to LJ4Y:

In Ex Parte Dangelo, the applicant, who was on probation for pleading guilty to one count of "injury to a child," filed an application for writ of habeas corpus when the trial court incarcerated him after he refused to answer the following questions during a polygraph exam given to him as part of his probation:

1. "Since you have been on probation, have you violated any of its conditions?";
2. "Since you have been on probation, have you had sexual contact with any persons younger than 17?";
3. "Since you have been on probation, have you tried to isolate and child for sexual purposes?"; and
4. "Since you have been on probation, have you intentioanlly committed any sexual crimes?"

The court agreed that violating the probationer's bond for refusing to answer those questions violated his Fifth Amendment right against self-incrimination. Extraordinary! Key to the court's reasoning (from pp. 7-8 of the opinion):

The Texas legislature has explained that the purpose of the communitysupervision statute is to remove “from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems ofcommunity supervision in the public interest.” Tex. Code Crim. Proc. Ann. art. 42.12, §1 (Vernon Supp. 2009) (emphasis added). Thus, the trial court’s broad authorityto create community supervision terms does not extend to imposing terms thatviolate a defendant’s constitutional rights as balanced with the goals of the defendant’s probation.

Questions related to probation violations or the offense for which the probationer was convicted are still fair game, but "if a condition of a defendant’s probation requires the defendant to admit to anoffense that could lead to criminal charges independent of those that the defendant is serving probation for, the defendant has a Fifth Amendment right to not answer such questions."

Who knows whether the Texas Court of Criminal Appeals might ultimately hear this case or how that divided court might rule? But for now, at least in Fort Worth, the Fifth Amendment to the US Constitution still applies to probationers. Who'da thunk it?

If the Texas high criminal court did reverse the 2nd Court of Appeals, it might set the CCA up for yet another showdown with SCOTUS. The Cowtown appellate court relied primarily in its ruling on a US Supreme Court case from 1984, Minnesota v. Murphy, in which SCOTUS held that:

A defendant does not lose [Fifth Amendment protection] by reason of his conviction of a crime; notwithstanding that a defendant isimprisoned or on probation at the time he makes incriminatingstatements, if those statements are compelled they are inadmissible ina subsequent trial for a crime other than that for which he has been convicted. . . . .'

If [a defendant asserts Fifth Amendment rights], he “may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time beingassured that neither it nor its fruits may be used against him” in asubsequent criminal proceeding.

I don't know what the precedents are in other Texas appellate jurisdictions, but this ruling seemingly would alter quite a few common practices at Texas probation departments if it were applied statewide. Indeed, it will be interesting to track what will be the impact within the jurisdiction of Texas Second Court of Appeals.