How to deliver local property-tax relief: Cut county jail, court costs for pot, DWLI cases

Texas' statewide leadership has been speaking broadly of property-tax relief throughout the campaign season. But now that elections are over and it's time for governing and budget writing, what exactly does that mean?  Reported Peggy Fikac at the SA Express-News (Dec. 6):

The devil, as always, is in the details of a state budget that totals $200 billion in the current two-year fiscal period, including state and federal funds that are largely spoken for before lawmakers convene. Education and health and human services alone take up nearly three-quarters of the total.

“I fully expect there to be some tax relief. The question is, what’s the nature of it?” said Rep. John Otto, a Dayton Republican who serves on the House Appropriations Committee.

Texas has plenty of revenue, in theory, but it also has plenty of needs that can easily sop up the $3.4 billion "extra" allowed for under the new spending cap. With a likely adverse school-finance ruling looming, billions in new state spending are practically if not formally spoken for. So how could the state reduce property taxes for the average Texan?

Here's an idea: Reduce local jail costs - which have been a big driver of tax increases in many Texas counties - by reducing penalty categories for low-level marijuana possession (currently a Class B misdemeanor for possession of two ounces or less) and driving with an invalid license (DWLI, currently a Class B misdemeanor on the second offense). Make those two offenses a Class C or even a civil violation and local governments, especially counties, would save money a) by writing tickets instead of jailing people, b) from the fact that attorneys aren't appointed for the indigent in Class C cases, and c) by keeping more officers, both sheriffs deputies and municipal PDs, out on patrol instead of at the jail arresting pot smokers and drivers who couldn't pay the Driver Responsibility surcharge.

Texas already started down this road, reducing first offense DWLI from a Class B to a Class C in 2007 after the Driver Responsibility surcharge flooded county courts with unlicensed drivers in the first years after its passage. That same year, the Lege passed and Gov. Perry signed legislation to allow local police departments to write tickets instead of make arrests for DWLI, marijuana possession, and several other petty Class B offenses. Only a few agencies took the Lege up on that optional authority, though, and county jails and court dockets remain stuffed with these low-level, non-violent offenders. So reducing penalties for those two Class Bs is a logical next step, as the House County Affairs discussed during an interim committee hearing on the topic earlier this year.

Unlike the feds, Texas' budget must balance. Any claim to cut taxes will prove a mare's nest without a correspondent reduction in spending in a long-term sustainable way. That's why property-tax relief through the school districts can't be certain in light of the surely soon-to-be-coming court verdict on school finance. The state has little wiggle room to spend less on healthcare. And pols have promised to spend more, not less, on transportation and border security. After baseline reductions in 2003 and 2011, there's not a lot of fat left to cut, particularly that would impact property taxes.

By changing state policies to reduce county jail costs, the 84th Legislature could deliver real, not just temporary or superficial, local property-tax relief, cutting costs on a big-ticket item that affects every Texas county. I can't think of a quicker, more certain way the Lege could reduce upward pressure on local property taxes given the practical constraints imposed by law and politics on the state budget.

CCA: Courts mustn't rubber-stamp juveniles' certification as adults

A Texas Court of Criminal Appeals ruling this week established a new, more stringent test for when a juvenile should be certified to be tried as an adult, as Cameron Moon became the first Texas juvenile in a quarter century to successfully challenge his certification as an adult. Henceforth, trial judges must make much more detailed findings related to a defendant's background and fitness as opposed to relying mainly on the seriousness of the crime as a reason to certify. See MSM coverage following Wednesday's ruling from:

• The Texas Tribune
• The Houston Chronicle
• The Houston Press
• WOAI radio

On his way out the door, Judge Tom Price authored a majority opinion declaring that, "The transfer of a juvenile offender from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule." Judges Keller and Hervey dissented, holding that "a juvenile transfer order need not specify in detail the facts supporting the order." (Meyers dissented, too, but didn't sign on to Keller's opinion.) John Stride from TDCAA summed up the ruling from a prosecutor's perspective this way:

This decision certainly provides some valuable guidance as to how to properly review the sufficiency of the evidence to support a juvenile transfer order—just probably not the guidance that we were hoping for.  In order to support the certification of a juvenile offender into adult court, you must carefully review the factors set forth Section 54.02(f) of the Penal Code [sic, ed. note, he means the Family Code] and make sure that you have evidence that speaks to each of those factors.  Section 54.02(h) also requires the juvenile trial judge to be specific in his fact findings with regard to those factors.  There is one silver lining in the court’s opinion in this case.  It leaves open the possibility for a new transfer hearing if the evidence is found to be insufficient to support the findings from the first transfer hearing.  If that happens to you, as has happened to the State in this case, read footnote 90 and see if you can comply with that which is set forth there to earn yourself a second transfer hearing.

Bottom line: Texas courts can still certify juveniles as adults but judges, prosecutors and defense counsel all must first do their homework, more closely examining mitigation evidence on the defendant's behalf and making detailed, defendant-specific findings. The court has rejected a rubber-stamp approach which governed the process for nearly 40 years. Probably about time.

What is 'The Real Crisis in Journalism'?

George Packer at The New Yorker this week offered up a comforting etiological myth regarding "The Real Crisis in Journalism," suggesting "It’s true that journalism is in crisis, but the crisis has nothing to do with the work journalists actually do."

In what's either a disingenuous or ahistorical lament, Packer declared that, "It’s easy to feel that the very task of reporting and writing in depth, at length, and in complex detail is somehow to blame for [journalism's] problems." But he reassured his peers with a pat on the head that they need not straightaway put on the hair shirt. You see, "The crisis in journalism is a business crisis, and it’s been going on for twenty years," which of course roughly corresponds to the arrival of the Internet, which led to all those nasty bloggers, podcasters, celebrity Twitter feeds, etc., that allegedly took away the media's mojo.

IMO, though, the Internet only exacerbated journalism's problems, it did not cause them. Last year, this blog offered a contrary view: "Some say the internet is killing the newspaper industry but the truth is it was dying long before most readers had a PC and an email account. (Ask the former employees of the Dallas Times Herald and the Houston Post.) Grits instead believes a major underlying reason for journalism's decline is a preponderance of poor quality, formulaic journalism that fails to meet  popular needs for engaging the democratic process."

The rise of alternative web media accelerated journalism's decline, no doubt. But the deeper crisis predated that development and continues independent of it, such that Christopher Lasch could write (quite accurately) in 1990 that, "Much of the press, in its eagerness to inform the public, has become a conduit for the equivalent of junk mail. Like the Post Office - another institution that once served to extend the sphere of face-to-face-discussion and to create 'committees of correspondence' - it now delivers an abundance of useless, indigestible information that nobody wants most of which ends up as unread waste." How much more true is that today? That's the real crisis in journalism, of which the business crisis is but a symptom.

Lots of Texas departments getting, considering police bodycams

It's been remarkable to see how rapidly the terms of debate have shifted surrounding police body cameras in the wake of the Ferguson and Staten Island protests going national, including here in Texas.

In Houston, the DA's office will spend $2 million to purchase bodycams for Houston PD officers, reported the Houston Chronicle (Dec. 11), which is a good start but less than would be required to equip every patrol officer. "This summer, Houston Police Chief Charles McClelland said he asked City Hall for $8 million to equip 3,500 officers with body cameras over the next three years, but funding for the equipment has not been identified," the paper reported.

Similarly, in Dallas (reported the Morning News last month), DA-elect Susan Hawk announced she would use asset forfeiture funds to buy bodycams for DPD, a move supported by the local policy union. At least some Fort Worth PD officers already use bodycams.

Meanwhile, the San Antonio Express-News reported this week (Dec. 10) that SAPD Chief William McManus recommended to the city council :

that 210 officers on the Park Police and downtown bike patrol units incorporate the devices as a permanent part of their uniforms. Those officers currently do not have any camera system — unlike the majority of the officers, who have vehicles equipped with dashboard cameras.

The recommendation follows a six-month pilot program in which 150 officers were temporarily outfitted with devices.

WOAI radio in San Antonio ran a brief piece saying "Texas cops support body camera idea," and KTRH radio in Houston sported a similar headline, though in my experience that may be too broad a generalization. Here's a good piece on how body cameras work.

It's not just big cities, though. Lakeway, west of Austin, has used bodycams for three years. Georgetown PD in Williamson County adopted them over the summer. Celina PD (straddling Collin and Denton counties) has used them for nine months. In tiny Whitehouse, Texas (well, not as tiny as it used to be - lots of growth in that neck of the woods), the local PD adopted body cameras for its officers about a month ago (KETK-TV, Dec. 9). "It's going to protect the innocent, whether it's the officer or the citizen," said the police chief. The version of the camera used in Whitehouse have no "delete" button so officers can't go back after the fact to erase a recording. "The price runs about $300 dollars for each camera. The Whitehouse police chief says he believes that these cameras are the future of law enforcement."

Tyler Junior College PD has also adopted bodycams for all officers, and the Gatesville city council voted this week to outfit their police officers with them. College Station will outfit bicycle and motorcycle cops with body cameras, as will the Texas A&M University police. In addition, "The Brazos County Sheriff's Office has outfitted its patrol and courthouse deputies with body cameras, and Sheriff Chris Kirk said last month that jail staff is also testing the gear." Further, "Bryan police are also looking into purchasing body cameras for its officers. The department currently has five body cameras being tested by patrol and school resource officers." The Smith County fire marshal even wants firefighters to wear them!

That's a lot of recent progress on this front. Bodycams are not a panacea, but they're no small thing, either.

How Texas police can better prevent overdose deaths

Yahoo! News reported (Dec. 3) that, "The rate of deaths involving prescription painkillers like Oxycontin and Vicodin more than tripled between 1999 and 2012, according to a new CDC report. The heroin-related death rate is also on the rise, increasing nearly threefold in the same time period."

Which raises the question: Can law enforcement do more to reduce drug overdoses than just make arrests?

In timely coincidence, out last month from the Bureau of Justice Statistics: A "Law Enforcement Naloxone Toolkit" titled "Engaging law enforcement in opioid overdose response: Frequently asked questions." The introduction to the document reads:

Claiming nearly 120 American lives daily, drug overdose is a true national crisis. The main driver of this epidemic is opioid overdose (OOD), which cuts across class, race, and demographic characteristics. Certain groups, including veterans, residents of rural and tribal areas, recently-released inmates, and people completing drug treatment/detox programs are at an especially high risk of OOD.

The vast majority of OODs are accidental and result from taking inappropriate doses of opioids or mixing opioid drugs with other substances. These drug poisonings typically take 45-90 minutes to turn fatal, creating a critical window of opportunity for lifesaving intervention. Appropriate assistance, including administration of the antidote naloxone, can quickly and effectively reverse the OOD.

Reducing the time between the onset of OOD symptoms and effective intervention is a matter of life and death. Tragically, many victims do not receive timely medical attention. In many cases, witnesses delay calling for help because they do not recognize OOD symptoms or are concerned about getting in trouble with the law. In other cases, emergency medical response may take too long to arrive or the victim may not be discovered until it is too late.

Law enforcement officers (LEOs) have always been on the front lines of the battle against drug-related harm in our communities. The current OOD crisis is no different. Across the US, law enforcement agencies are increasingly initiating programs to stem the tide of overdose fatalities. This document provides an overview of the frequently asked questions (FAQs) that may arise in agencies that are considering or initiating such efforts.

A couple of Texas legislators (Eric Johnson, Ryan Guillen) have already filed bills to create a defense when drug users call 911 to report an overdose. But equally important is having patrol officers carry Naloxone, an opioid antagonist which "has no potential for abuse," according to the FAQ. It is a "very safe medication with the potential side effect of a theoretical risk of allergy that has never been documented." It can administered nasally or be injected - a company that makes a naloxone auto-injector makes the product available at a discount for law enforcement.

Texas has never passed statutes about the drug one way or another, according to a website that tracks state laws related to naloxone, but I've never heard of a Texas police agency using it."Almost half the states in the United States have passed naloxone access laws that shield 'any person' from civil and criminal liability if they administer naloxone."

The FAQ recommends police agencies partner with local health agencies to procure naloxone and train officers in its use. "In most cases, a protocol called a 'standing order' can be issued for the entire department by any provider holding a license to write prescriptions. Larger departments may have a medical director or other licensed prescribers already on staff, the FAQ noted. In New Jersey and New York, their Boards of Pharmacy "have streamlined the process by which law enforcement agencies can order the medication, allowing these agencies to purchase naloxone directly from a wholesaler instead of receiving it from a retail pharmacy via a prescription from a health care provider." (NYPD equipped nearly 20,000 officers with naloxone.) And North Carolina authorized "agreements between law enforcement overdose response programs and EMS agencies to handle purchasing and training."

Grits would like to see Greg Abbott's Criminal Justice Division look into the possibility of grants to Texas police departments interested in these sorts of overdose prevention programs. There seems to be little downside that I can see and also a real opportunity to save lives.

Ted Cruz adopts Big Government, anti-Tenth Amendment stance on pot

Why has Texas Sen. Ted Cruz adopted a Big Government, anti-Tenth Amendment stance on marijuana policy?

According to Politico, he criticized the Obama administration earlier this year (I'd missed it at the time) for failing to arrest pot smokers in Colorado and Washington state, declaring that the failure of the DOJ to prosecute marijuana cases after voters legalized it in those states is somehow “fundamentally dangerous to the liberty of the people.”

Really? Think about it: Abiding by the voters' wishes is "dangerous" to their "liberty"? But arresting them wouldn't be? This is weird, Orwellian, language: War is Peace, Freedom is Slavery, Ignorance is Strength.

I know the guy's running for President but I wish he would at least pretend to represent Texas and not presume to dictate to other states.

What a tone deaf stance, particularly with Colorado a presidential swing state! How can this guy not realize voters in those states - and Alaska, and Oregon, and D.C. - have their own opinions about liberty and voted in favor of it?

Reed on ridesharing and DWI

Commenting on local anti-DWI efforts, outgoing Bexar County DA Susan Reed cited ridesharing services Lyft and Uber as a means to reduce drunk driving in a city without a robust public transportation system (which pretty much describes every Texas city).

Grits found this interesting because local debates over these services have largely revolved around whether they're fair to taxicab companies, whom one would suppose from the rhetoric enjoy a God-given natural cartel that trumps the forces of capitalism and technology.

The city of San Antonio is considering regulations to limit ridesharing services, but the Texas Public Policy Foundation's Jess Fields rightly suggested yesterday that "San Antonio’s council members would do well to remember that the threat of new competition threatens taxicab companies, not consumers while the threat of drunk drivers is very real indeed."

I'm not a fan of Reed's other suggested DWI solution - "sobriety checkpoints" where every car is stopped at a roadblock regardless of whether there's reasonable suspicion.  But IMO she's right to frame the debate around ridesharing services in terms of providing an alternative to drunk driving.

Check out the Smart on Crime Coalition agenda

Texas' "Smart on Crime Coalition" is made up of the Texas Public Policy Foundation, the Texas Criminal Justice Coalition, ACLU of Texas, Goodwill, and the Texas Association of Business. Check out their agenda for the 84th Texas legislative session in 2015.

Judge skirts DWI bust, new guidelines for certifying juveniles, what crime really pays, and other stories

Busy day today but here are several items that merit Grits readers attention, even if I don't have time to fully adumbrate them. 

DA does favor for appellate judge on way out door
Hidalgo DA Rene Guerra is on his way out the door (following 32 years in office and a primary defeat this spring) so there's probably little that can be done in response to his abuse of discretion declining DWI charges against 13th Court of Appeals Justice Nora Longoria. It turned out, though he said no video recorded at the stop, that was a falsehood and the contents were damning. See coverage from Texas Monthly and ValleyCentral.com.

CCA: Judges must better explain reasons for certifying juvies as adults
The Texas Court of Criminal Appeals today established stricter criteria for certifying juveniles to be tried as adults, requiring that judges better articulate their reasons for such decisions. See the majority opinion and coverage from the Houston Chronicle. Earlier, the paper reported that this was "the first certification overturned in Texas in a quarter century." That's an amazing statistic! "'It's potentially a really big deal, because there's not a lot of appellate guidance on this issue,' state District Judge Michael Schneider noted." The boy's attorney "hopes the landmark ruling spurs lawmakers to make changes to the practice of certifying certain juvenile offenders as adults, a process criminal justice advocates say has been reduced to a 'rubber stamp.'"

Reflection follows tragedy in death of mentally ill Midlander
A mentally ill man was shot and killed in Midland after he threatened police officers with a machete when they visited his home for a "welfare check." They'd first tried and failed to take him down with bean-bag rounds. The Midland Reporter-Telegram followed up with a story titled "Mentally ill often end up in criminal justice system" that merits Grits readers' attention.

Update on feds' hair and fiber review
See a letter from the USDOJ to Attorney General Greg Abbott from September regarding the review of flawed hair and fiber analyses by the FBI crime lab, which were used in some 20,000 cases. Most of these are from the '90s and earlier before DNA analysis supplanted these now dated and discredited techniques and the overstated conclusions drawn from them. Even more hair and fiber analyses were performed at the state level by crime lab analysts the FBI trained. The Texas Forensic Science Commission has launched its own, similar review which is only just beginning to pick up steam. Before long, perhaps we'll see Texas' new junk science writ used to overturn convictions which were principally based on hair and fiber analysis.

Crime does pay, but wages are crappy
A new study finds that street-level drug dealers make about half the minimum wage and that the disparity between front-line workers and management in drug organizations is greater than at US corporations.

Making the conservative case against civil asset forfeiture

Yesterday, Grits attended a Texas Public Policy Foundation sponsored panel at the capitol on the topic of civil asset forfeiture reform. It was moderated by Derek Cohen of the Right on Crime initiative (who authored a paper on forfeiture for TPPF earlier this year) with Andrew Kloster of the conservative Heritage Foundation, Matt Miller from the libertarian Institute of Justice, Shannon Edmonds from the state prosecutor's association, and state Rep. David Simpson, an East Texas Republican.

To a large extent, Simpson and conservative reformers were in agreement. Civil asset forfeiture is abused, mostly targeting small amounts of money and personal property instead of going after "kingpins" as was promised when the laws were passed. Most of the recommendations offered will be familiar to long-time Grits readers such as requiring a criminal conviction before a civil seizure (a reform undertaken recently in Minnesota); putting seized monies in state or county general funds instead of law-enforcement budgets; shifting the burden of proof to the state before property may be seized; adopting a minimum threshold for seizures to avoid the petty mulcting witnessed in Tenaha ($25,000 or $50,000 were mentioned as possibilities); and more detailed reporting about assets seized and how the money is spent. Rep. Simpson made a particularly strong case for limiting civil seizures to cases with convicted defendants.

Kloster highly recommended three resources worth passing on to Grits readers:

• A 2013 article from the New Yorker titled, "Taken."
• A multi-part series from the Washington Post titled, "Stop and Seize."
• An hilarious segment on asset forfeiture from John Oliver's HBO show, Last Week Tonight.

While somewhat surprising that a Heritage man would recommend such "liberal media" sources, it shows how this topic has become a bipartisan concern that defies ideological labels. There's a left-right coalition to be had on the topic - certainly in Texas and, according to Kloster, also in Congress, which he suggested will see legislation proposed on this topic by Republicans in both chambers next year.

Miller described watching asset forfeiture proceedings in Harris County. On one side of the courtroom, prosecutors had a small law office, he said, with stacks of boxes full of case files with styles such as State of Texas vs. $832, or State of Texas vs. 1989 Chevy Impala. Almost all the cases, he said, were for very small amounts. (He mentioned a study out of Minnesota which found the average forfeiture amount there is about $1,200.) No one was at the defense table, he said, for obvious reasons: Who would pay a lawyer $3,000 to dispute an $832 seizure?

Miller agreed with an audience member during the Q&A that a possible solution may be to allow recovery of attorney fees if assets are recovered from the state, but Kloster demurred to his group's tort-reform stance and said Heritage wouldn't go that far.

Shannon Edmonds from the Texas District and County Attorneys Association had been asked to the event as a last-minute replacement and did his best to counter his fellow panelists. He portrayed conservative motivations for forfeiture reform as stemming from a general desire to reduce government budgets and de-fund law enforcement, citing Grover Norqust's famous line that he wanted government small enough to drown in a bathtub. I found that point a bit disingenuous. It's certainly not parsimony that motivates folks like Mr. Miller, for example, who before asset forfeiture was active fighting for eminent-domain reform. Shannon's critique failed to acknowledge the personal freedom/property rights motivations of movement conservatives on this topic.

Edmonds suggested that elections provided sufficient oversight. The DA who famously bought a margarita machine with forfeiture funds lost his next election, he pointed out, also citing Dallas DA Craig Watkins misspending of asset-forfeiture funds as a contributor to his recent ouster. Of  Miller's description of Harris County forfeiture proceedings, he declared, "That's a lot of due process for $832."

Texas' asset forfeiture laws were passed in 1989 at the height of Texas' worst-ever crime wave, Edmonds reminded the crowd, and has been amended every session since then. Most changes were to broaden the statute's scope to allow for more, easier seizures, he said. But state Sen. John Whitmire had also passed reforms in response to the Tenaha mess and other scandals that placed new restrictions on officers' ability to coerce drivers to sign roadside waivers, modestly strengthening due process before forfeiture proceedings may go forward.

Finally, perhaps thanks to truncated preparation time, Edmonds reverted to an argument he frequently uses in other contexts - particularly whenever anyone suggests scaling back "over-criminalization" - (mis)quoting G.K. Chesterton to say, “Don’t ever take a fence down until you know the reason why it was put up.” In this case, though, that's hardly a compelling sentiment. We know why the law was enacted: To seize money from drug "kingpins." And clearly cases like State vs. $832 aren't targeting kingpins. The law was supposed to de-fund drug smuggling organizations which instead have flourished unabated throughout the last quarter century and possess so much liquidity that their cash may have saved the economy during the 2008 global banking crisis.

In sum: The law was created to target kingpins but in practice is used on small-timers. It was supposed to de-fund cartels but instead at most has amounted to a minor, inconsistently applied tax on them. It was supposed to provide extras for law enforcement but increasingly many departments rely on forfeiture to make their budgets. We know why the fence was built. Which brings us back to Shannon's quote attributed to Chesterton, which is actually a quote from John F. Kennedy paraphrasing him. Here's the actual Chesterton quote (from his 1929 book, The Thing) on which Kennedy's comment was based:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

In that light, today's reformers find themselves in an excellent position to advocate destruction of the civil-forfeiture fence. (By "destruction" I mean requiring a criminal conviction before seizure.) The reasons for its creation are both well known and profoundly flawed. It has failed at all its stated goals except revenue generation, which was supposed to be a happy side effect, not a primary motivator. Moreover, forfeiture has generated a litany of unintended consequences from skewing law enforcement priorities to eroding public faith in the rule of law.

Good fences make good neighbors but crappy fences are a blight. It's past time to tear this one down.

Houston chief says war on drugs a failure, and other stories

Here are a few items which deserve Grits readers attention as my own is focused for the moment outside the blog.

Houston police chief: War on drugs a 'miserable' failure
Houston Police Chief Charles McClelland on Friday called the war on drugs a "miserable" failure and suggested political attitudes have sufficiently shifted, even in Texas, to the point where altering marijuana laws could happen "soon." He declared that "people are beginning to think about this issue differently, and they know that we've got to do something different than what we're doing."

Prison doc: death by natural causes; ME: homicide
The Lubbock Avalanche Journal recently reported that "Six Montford Psychiatric Unit detention officers have not been reprimanded after using force to restrain a 63-year-old inmate who died shortly after the incident earlier this year." The episode may involve a coverup. The paper investigated "after a Lubbock County medical examiner’s ruling this fall contradicted previous rulings by the state." "A Montford doctor originally reported McCoin’s death as natural" but a Lubbock medical examiner declared the case a "homicide."

'Bad traffic law has to go'
The San Antonio Express-News had an editorial calling for abolition of the Driver Responsibility Surcharge.

Jail phones profit from a 'Captive Audience'
The Dallas Observer recently ran a cover feature on Securus and the rise of privatized jail phone service and video visitation at Texas county jails. The topic will be familiar to Grits readers but the coverage was thorough and reaches a new, different audience, one hopes, than this stodgy old blog.

Newspaper calls for mental health investments
The Houston Chronicle editorial board called for construction of a new state mental hospital in the Houston area. According to the paper, "When the Neuropsychiatric Center at Ben Taub Hospital in the Texas Medical Center is out of room, our law enforcement professionals must drive around in their squad cars with people suspected of mental illness, waiting for a bed to open up or looking for an alternative. This happens not infrequently, according to mental health professionals." They also complained of a shortage of competency restoration beds and the aging and outdated Rusk State Hospital, which is a three hour drive from Houston.

Juvenile justice and the arts
Ronnie Sanders, who serves on the Texas Commission for the Arts, wrote a column praising a Bexar County juvenile diversion program with remarkably low recidivism rates in which "Students who have often resorted to violence in the past are taught methods of conflict resolution through writing, acting, team-building and communication skills." Says Sanders, "We should all celebrate when people can be earnestly reformed through the arts," and "we should seek more opportunities and increase funding that could allow more young Texans to transform their criminal past into a life sentence of positive choices and a realization of their potential as a contributing citizen to Texas."

News flash: Crime labs screw up outside of Texas, too
The Jonathan Salvador fiasco was one of five recent misconduct scandals at U.S. crime labs described in this article from Chemistry World. Can you guess the other four? Perhaps, in the near future, Grits will compile Texas' own top five. Hard to believe we only got one in a national top five list on this topic; author Rebecca Tragle should Google "Houston police crime lab scandal" for the granddaddy of them all in Texas.

No way feds reimburse Texas on border security
Texas' request to the feds for reimbursement for the Great Border Security Boondoggle is a laughable exercise in hubris. Given that, IMHO, the entire spending program serves no real security purpose but instead is a political expenditure aimed at snubbing the Obama Administration, why would the feds ever consider paying for it. They're basically asking them to pay for an extended, years-long Rick Perry campaign commercial.

Ten predictions about police bodycams based on experience with dashcams
Having been deeply involved more than a decade ago in the effort to get dashcams in police cars in Texas, I find the description of their effects from The Atlantic to be fairly accurate. However, I disagree that past is entirely prologue when it comes to bodycams, which IMO may have greater deterrent effects for police misconduct because they're recording personal interactions, not just views from a distance. Time will tell. In practice, they support officers stories more often than contradict them and make report writing more accurate. There's as much incentive for police to adopt them as for reformers to support them.

Advice for 1Ls and lawmakers: Don't make laws you wouldn't kill to enforce
Yale law prof Stephen Carter in a recent column offered sound advice to law students that goes double or triple for lawmakers: "On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you."

Should Texas abolish rather than reform grand juries?

State Sen. John Whitmire has filed legislation to eliminate the "key man" system of selecting grand juries in Texas. But in the wake of national debates of the failures of grand juries to hold police accountable, it's worth asking whether grand juries oughtn't be abolished entirely. Public Radio International pointed out that "England abolished grand juries decades ago because they didn't work." Here's a notable excerpt:

The concept [of grand juries] comes from our colonial parent, England. "It goes back centuries here," explains London-based legal writer Joshua Rozenberg. "In medieval times, it was drawn from the local neighborhood. And these were men who were expected to look around and report criminal behavior within the community. They're people who actually knew the offenders, as we'd call them today, and could perhaps bring them to justice."

By the 16th century, that morphed into the system we'd now recognize as a grand jury: A group of people listening to a prosecutor's evidence and deciding whether to indict.

But the United Kingdom actually abolished its grand jury system in 1933. "We now send cases that are serious enough straight to jury trial," Rozenberg says. That way, both sides are able to present evidence and make their arguments, which is definitely not the case with a grand jury.

In fact, the UK exported grand juries to most of their former colonies — Canada, Australia, New Zealand — and virtually all of them have stopped using them.

"They are said to be 'putty in the hands of the prosecutor.' In other words, the prosecutor really tells them what he or she wants and they will go along with it," he says. "Or that's what we are told, because we don't really know. We can't watch grand juries at work."

That's why former New York judge Sol Wachtler once famously said that a district attorney could get a grand jury to "indict a ham sandwich." But, Rozenberg points out, "it must be even easier to get the sandwich acquitted if that is what the district attorney may actually want."

Whitmire's bill was reacting to alleged misconduct by grand juries in Houston but the Ferguson and Staten Island episodes (much less a similar episode in Jasper, TX) have cast more light on these shadowy entities than at any point in my lifetime, though their cozy relationship with law enforcement has been well-documented for years. There's an opportunity now for a more substantive debate about the role of grand juries. Perhaps instead of "reforming" them, Texas should abolish these anachronistic vestiges of colonialism and let elected prosecutors make the decision whether to pursue a case, whether against a cop or a private citizen, since as a practical matter that's what's happening, anyway.

McCraw: Terrorist threat at Texas border a myth, or, In favor of reality-based border-security policy: A minority view

The dumbest part of Texas' border "surge": There are no, none, zilch, zero viable metrics for measuring success. It's a truism in public policy of any sort that one cannot solve a problem one cannot measure. A Dec. 4 Austin Statesman story said DPS claimed this week that the surge worked because of increased illegal-immigrant apprehensions. but Rep. Donna Howard called them on this particular line of bullshit, pointing out “that officials also have claimed success when the number of apprehensions is down, which she said has been described as a sign of deterrence. That makes it difficult for lawmakers to figure out 'how much money to appropriate for this activity,'” she said. That's an understatement!

It's not that data-driven policy isn't possible. The McAllen Monitor recently offered thoughtful, incredibly detailed suggestions for fixing federal immigration courts that made loads of sense. (Read them, a summary won't do them justice.) Problem is, at the federal level neither party is advocating an approach that actually processes cases faster. These are good ideas, though, showing the problems are not insoluble if politicians actually wanted to resolve them.

Instead, the state plans to add 4,000 cameras along the border, another initiative that Grits considers a complete waste. There's little evidence cameras work even in crime-ridden inner-city hotspots, much less out in the boondocks along hundreds of miles of border. Then you have to pay people to watch them as well as waste manpower on responding to lots of false positives.

Finally, in a rare moment of (post-election) candor, DPS Col. Steve McCraw affirmed to the committee what anyone with access to Google already knew: That "there is 'no credible information that a terrorist has crossed or will cross' the Texas-Mexico border." I'd add one caveat: There's no evidence that terrorists are coming from Mexico to the United States to do harm. There's evidence that Texas prison gangs crossed the border south to work as soldiers in the Juarez cartel wars and may be responsible for hundreds or even thousands of murders there. Whether one considers them "terrorists" is a political and semantic question.

Otherwise, Greg Abbott, Dan Patrick and other state officials should adjust their rhetoric to reflect acknowledged reality from the state's top law enforcement official. Perhaps it would help to stand before a mirror each morning and recite McCraw's words aloud three times before the day begins - there is no credible information that a terrorist has crossed or will cross the Texas-Mexico border. (In particular, perhaps Breitbart Texas editors would benefit from such an exercise.) Barring that, I don't know what it will take to get Texas politicians to stop telling lies about border security threats.

A happy, secondary benefit to marijuana legalization and the rise of American pot suppliers

Grits doesn't imagine voters in Colorado, Washington, Oregon, Alaska, D.C., etc. who approved measures to legalize pot in recent elections were considering the global geopolitics of criminal organizations and their funding streams when they cast their ballots for recreational pot use. But the demand for legal pot may be squeezing bad guys from south of the border out of the market. According to Texas Public Radio, "Legal pot in the U.S. may be undercutting Mexican marijuana," reducing the base revenue stream to violent drug cartels. Who'da thought? Not all "unintended consequences" are negative!

Even outside states where pot has been legalized or decriminalized, the market is shifting to higher quality American product. The story included this local quote about the shift in suppliers for domestic marijuana markets: "'We're still seeing marijuana. But it's almost all the homegrown stuff here from the States and from Canada. It's just not the compressed marijuana from Mexico that we see,' says Lt. David Socha, of the Austin Police Department narcotics section."

Police, Lege can do more to prevent overdose deaths

I wonder how many Texas police departments have patrol officers carry naloxone to save lives after drug overdoses? The New York Times coverage this week prominently re-raised the issue and US Attorney General Eric Holder this summer said it was a good idea (possibly the kiss of death in these parts). But Grits hasn't heard the question confronted for years here in Texas, so I'm guessing not many. Increasingly naloxone is used to respond to overdoses from prescription opioids as well as illicit ones, which along with its high rate of effectiveness and general overall safety may explain growing public support. "That naloxone has rapidly gained acceptance, expanding from needle-exchange programs to police precinct station houses, underscores how widespread the twin scourges of heroin use and painkiller abuse have become in recent years," the Times reported.

Here in Texas, Rep. Ryan Guillen has filed "Good Samaritan" legislation creating a defense from prosecution for people who call 911 when a drug user overdoses. Rep. Eric Johnson filed similar legislation two years ago and may still do so again. But that's just one component of overdose prevention. Equipping and training first responders with naloxone would help a lot, too, especially in departments facing a serious heroin problem. (States with legal needle exchanges may train addicts to use naloxone and send them home with a dose in case of emergency, but obviously Texas is several steps away from that.)

According to the CDC, "In 2012, there were 41,502 deaths due to drug poisoning (often referred to as drug-overdose deaths) in the United States, of which 16,007 involved opioid analgesics and 5,925 involved heroin."  Texas' death rate from overdoses is slightly lower than the national average, at 9.8 deaths per 100,000 people, while nationally. the death rate from drug poisoning is around 13.1 per 100,000, up from 6.1 in 1999, says CDC.

Though lower than the national average, the number of overdose deaths grew in Texas by 150 percent from 1999 to 2007, according to the most recent available analysis from the Drug Policy Alliance, which added that, "Legal prescription opioid drugs such as oxycodone and hydrocodone were identified in 50% of all accidental overdose deaths between 2005 and 2009 in Houston, claiming more lives than all illegal drugs combined." Indeed, "in 2007 more people died from accidental overdose in Houston than from car crashes." Further, "Statewide, accidental poisoning (most commonly due to drug overdose) is the third-leading cause of injury-related death in Texas, behind car crashes and suicide."

For more on the scope of this problem, check out this tidbit promoted in October by Mother Frances hospital in Tyler titled, "Prescription painkillers fueling overdoses in ERs, study finds." The press release concluded:

Study author Michael Yokell, medical student at Stanford University School of Medicine, and his colleagues reached their conclusion by analyzing tens of thousands of reports of narcotic overdoses from a sample of nationwide emergency room visits from 2010.

Almost 68 percent of the overdoses involved prescription drugs. That number may be higher since the drugs were unspecified in 13 percent of cases, and multiple narcotics were involved in 3 percent of cases in the study. Heroin alone was responsible for 16 percent of the overdoses.

Narcotic overdoses were most likely to happen in urban areas (84 percent) and the South (40 percent of the total). Most were in women; 1.4 percent of the total patients in the study died.

"Opioid [narcotic] overdose exacts a significant financial and health care utilization burden on the U.S. health care system. Most patients in our sample overdosed on prescription opioids, suggesting that further efforts to stem the prescription opioid overdose epidemic are urgently needed," the researchers wrote.

The study is published online Oct. 27 in the journal JAMA Internal Medicine.

Training first responders to use naloxone and allowing cities and counties to sanction legal needle exchanges both make good public policy sense for the same reason drug and veterans courts work: At root, addicts must not just abstain from drugs but change their lifestyle in order to avoid recidivism and possibly death. Put an overdose treatment in someone's hand and perhaps its mere presence reminds of the dangers and serves as a deterrent. Similarly, the interaction with needle exchange workers that puts the naloxone in an addict's hands represents an opportunity to provide education, shepherd them toward treatment and medical assistance, and in more ways than one potentially save their lives.

It's hard to stop people's bad choices and they can't change unless they want to. But there are ways at the margins to keep overdoses from turning tragic, saving the addict's life until they can turn it around: Where they don't already, patrol officers and EMTs should keep naloxone in their vehicles and be trained how to use it. And the Legislature could authorize local needle exchange pilots in cities that want them and allow them to distribute naloxone to heroin addicts along with needles, kit cleaning equipment, medical and treatment referrals, etc.. Nobody wants addicts to use drugs, but the public has an equal or greater interest in drug users not spreading Hep C, HIV (which the taxpayers will likely pay for through either Medicaid or the prison system), or overdosing with no insurance and being taken to the local ER.

Though it's treated as a crime, and regrettably the only treatment options available for many people are through the courts, at root substance abuse is more of a health (or perhaps mental-health) issue than a traditional crime with victims, etc.. When confronted with an overdosed addict, whether the cause is heroin or Oxy, the sensible approach is to save their life first and worry about punishment, treatment, or whatever one thinks is the right legal comeuppance later.

What big ticket criminal-justice items might TX Lege fund with 'surplus'?

Wow, I'm surprised at the size of the spending cap increase the Texas Legislative Budget Board estimated for the 2016-17 biennium: $3.4 billion above the amount of revenue allocated in the last budget, or $1.7 billion per year. Grits had guesstimated they might have about 2/3 that amount.

Of course, they could spend all of that on transportation and still not remotely fill the need. Ditto for public schools, where that amount hardly scratches the surface of what the state will likely owe when pending litigation is complete. And naturally, the Lege could always (in theory) keep spending the same and use the extra $3.4 billion for tax cuts; there will be pressure to go that route.

But let's imagine for a moment what the state might spend money on if they used some of that "extra" cash on prominent, big-ticket criminal justice needs. What would they be? In order from largest to smallest, here are several criminal-justice items the state can in theory afford to fund in light of this blithesome budget news:

Pay for TDCJ prisoner healthcare, guard raises, programming (w/o AC): $546.6 million
The Legislature has already been told that, unless the state changes policies to incarcerate fewer people, the Texas Department of Criminal Justice will need $175 million more in the next biennium just to pay for healthcare for current levels of inmates, in part driven by the aging of the prison population as a result of long, punitive sentences. (Plus, the agency's front-line medical competence is still recovering from 2011 budget cuts.) In all, TDCJ has asked for $546.6 million in "exceptional items" including a 10 percent pay raise for guards to compete with oil field work. Of course, diverting more offenders from prison and shuttering understaffed facilities would relieve the problem, too, letting the state pay for staff raises with savings from facility closures. But TDCJ brass has suggested no such alternative. (There are a few exceptional items for probation and diversion funding in TDCJ's budget request, but overwhelmingly their request for new spending would go to running and staffing facilities.)

Two caveats to this already-large number: First, all this assumes that, while the 84th Legislature in session, the 5th Circuit or a federal district judge doesn't require the state to provide air conditioning at the state's hottest prisons; then the extra expenses get much higher, especially if the prison population doesn't decline. Second, the Lege could and likely will reduce these figures significantly by cutting either the size of raises and/or diversion programming. The latter risks higher recidivism, the former risks unplanned, forced closure of facilities because TDCJ can't find sufficient staff in rural areas. According to the Texas Tribune, "Statewide, the agency has left roughly 1,400 prison beds empty since 2012 because of staff shortages." Pick your poison.

Eliminate the Driver Responsibility surcharge: $110 to $340 million
From a standpoint of bypassing the most vocal political opposition, the shortest distance to abolishing the ignominious Driver Responsibility surcharge would be for the state to find some other way to fund Texas trauma hospitals, which have been receiving about $55 million per year or $110 million per biennium from the DRP. Otherwise, most everybody agrees the program is a failure that's making worse the problems it was intended to solve, as well as creating new ones. Complicating matters, though, the state also mulcts $85 million per year, or $170 million per biennium, from the DRP for the general fund, and uses another $30 million or so to feign balancing the budget. So really, to replace the whole pot of money would cost around $340 million; just to make the hospitals whole (letting the surplus take care of the GR cut) would run $110 million.  On the bright side, about a third of phone calls to the DPS drivers license division related to the surcharge, according to the LAR (pdf, p. 184, formally p. 3B 13 of 23), so eliminating the surcharge would free up significant internal resources to focus on serving other motorists.

Expand Texas' Great Border Security Boondoggle: $105.4 million
Otherwise, Governor-elect Greg Abbott has said he wants to double state spending at the border, but DPS has suggested even more than that. So, as insensible as your correspondent considers that ridiculous, politicized policy, let's add it to the list. In its 2016-17 Legislative Appropriations Request (LAR), DPS has $73.9 million in its Legislative Appropriations Request for its Goal Number Two, "Secure Border Region," and has requested an additional $105.4 million for the biennium, or $179.3 million total, not including the National Guard, etc.. Elsewhere in the budget, there's another $17.4 million for the biennium under "Local Border Security"  to pay for overtime for DPS troopers already stationed along the border, bringing the total to $196.7 million, if all of DPS' border-security dreams were realized (not including the National Guard deployment, grants to local law enforcement, etc..) Of that, the $105.4 million would be considered "new spending" outside the LAR, though in truth it's all part of the same, politicized gallimaufry. Make me Philosopher King, of course, and I'd cut these entire line items from the budget, saving the state $74 million instead of spending nearly three times that on already-dated political theater.

Cover 'unfunded mandates' from Fair Defense Act: $100 million
The Texas Indigent Defense Commission has requested just shy of $100 million per biennium as an "exceptional item" to reimburse counties for increased indigent defense costs since the 2001 passage of the Fair Defense Act. There are reasons to believe that number is slightly overstated (e.g., inflation and population growth account for some of the difference), but in 2013, according to the Texas Criminal Justice Coalition, "Texas counties paid approximately $189.7 million [for indigent defense] compared to the State’s $27.4 million." County spending on indigent defense more than doubled from 2001 to 2013. If the state chooses to fund indigent defense at that level, it should exercise more say in its efficient delivery via public defender systems as opposed to the sorts of screwy, outlier systems (I'm talking to you, Comal County) the TIDC has taken to funding of late. This would also give the state incentive to reduce petty offenses like possessing less than 2 ounces of pot or driving with a suspended license (second offense and beyond) as Class B misdemeanors, since the Lege won't like paying for those folks' lawyers any more than the counties do.

Confront competency restoration crisis: $55.7 million (or more)
Grits dislikes having reached this conclusion, but in the wake of court orders and persistent, problematic backlogs, Texas should expand the number of state mental hospital beds available for competency restoration and simultaneously fund local in-and-outpatient competency restoration programs at the county level, particularly for, say, the state's 20 largest counties. The Department of Health Services requested an additional $55.7 million for state hospitals to address this problem, so I've put the price tag in the headline at that amount. But in addition there needs to be new funding for handling competency restoration at the local level, at least in the larger counties, to permanently calm the waters on this topic. That might cost $15-20 million per year as a fully fleshed out, statewide program, substantially less on the front end,  Either way, if the state doesn't act soon - whether to construct extra hospital capacity, to facilitate the diversion of incompetent inmates into local, pretrial outpatient treatment, or both - then in this non-lawyer's opinion, sooner than later the courts will mandate more expensive solutions than the Legislature might prefer if it addressed the problem head-on. (N.b., these sorts of outpatient competency restoration programs should IMO also be a priority for grants from the Governor's Criminal Justice Division.)

Expand crime lab capacity: $15.7 million (at least)
Among its "exceptional items," DPS requested an extra $15.7 million for crime labs over the biennium, or a 19 percent increase over their base budget. Given current backlogs, plus extra caseloads thanks to revisiting hundreds of cases from the Jonathan Salvador debacle in Houston, not to mention the recent expansion of blood-alcohol testing (at least before Villareal), that amount probably underestimates what's needed just to remain afloat. Unless case volume somehow declines, DPS crime labs could spend that much and still be falling behind. The only other solutions are to  appropriate more money or have DPS shift to a fee for service model.

Other potential crim-just investments
With the exception of abolishing the surcharge, which is the subject of perennial legislation, these are all agency requests representing their ideas how to solve the problems facing them, not necessarily my own, personal preferences. If I were mocking up budgets, for example, I might have included an extra $100 to $150 million in TDCJ's for diversion programming and reduced probation caseloads and suggested cutting 3-4 private prison contracts. Texas' $200 million or so investment per biennium in diversion programs starting in 2007 prevented the state from having to build and operate more than a billion dollars worth of new prisons and let us close three instead. Doubling down on that investment, combined with adjusting sentence thresholds for nonviolent offenses, would let Texas close even more, saving money overall and easing managerial pressures on an array of labor and health-cost related problems. Otherwise, prison costs will continue to grow well beyond the effects of inflation and population growth.

Grits would tack on an extra $10 million or so for the biennium, for starters, for county level outpatient competency restoration in addition to the state hospital funding. (Texas may right now need extra beds - in fact, the $55.7 million number sounds low to me - but the state should plan how to not need them in the future.) Just a few million dollars in additional resources aimed at prisoner reentry could have a big impact; I'd focus in particular on people who spent a significant amount of time in solitary confinement while they were incarcerated. The state could set up a fund to pay for local department's police body cams they way they did in 2003 for dashcams in police cars (with a voter-approved bond issue). Finally, I'd bolster crime-lab funding with money for contractors to get rid of backlogs, while expanding the state's own capacity even more with an eye toward the future.

* * *

This blog post was a thought experiment to identify big-ticket criminal-justice budget asks at the 84th Texas Legislature, but it is certainly not exhaustive. E.g., if I weren't limiting the list to criminal-justice topics, I might have included judicial pay raises. Nor should it be read as an endorsement of every expenditure listed. Grits wouldn't agree with reimbursing counties for indigent defense, for example, without statewide standards and accountability. And regular readers know I wouldn't spend another dime on Texas' border security boondoggle.

Leaving aside Grits' personal preferences (i.e., the items under the final subhed), let's focus on already existing proposals we know the Legislature will be facing. If one totals the above sums requested by big criminal-justice agencies then add in the cost of abolishing the Driver Responsibility Program, one gets to around $1.2 billion per biennium in new spending on criminal justice - more if federal courts mandate installation of air conditioning in Texas prison units.

Compared to what's needed on roads, education or healthcare, that's a small sum. But with only $3.4 billion in new funds available and enormous transportation and education costs looming, it's also unlikely a third of the extra will go toward those purposes. So what should be prioritized? And what other big-ticket items did I miss? Let me know in the comments.

CCA overturned five more convictions where belated lab report failed to support drug charges

Rounding out Grits' synopsis of interesting cases from the Texas Court of Criminal Appeals hand down list last week (see also here, here, here, and here), I should mention that the Court overturned five more drug convictions on Wednesday because lab reports came back after the plea deal saying there were no drugs or less drugs than alleged by the government.

These cases have become increasingly common. Other than expanding funding for crime labs, I'm not sure what the practical solution is in an era when the Drug War operates at such high volumes. But perhaps eliminating trace cases would help reduce crime-lab caseloads and wait times, particularly in Harris County which saw three of the five cases overturned last week.

Ticket quotas in Cowtown, privatizing Terrell State Hospital, and other stories

Here are several important articles that I don't have time to adumbrate but which you should read:

• Deanna Boyd, Fort Worth Star-Telegram, Nov. 23: "Prosecutor says ticket quota derailed cases against officers" (a big deal, read the whole thing)

• Emily DePrang, Texas Observer, Nov. 28: Why is Texas privatizing the Terrell state psychiatric hospital and "picking a notorious company to run it?" (haven't we already been through this once in Montgomery County?)

•  Elizabeth Campbell, Star-Telegram, Nov. 26: "Johnson County settles jailing lawsuit: Man was falsely imprisoned, denied access to lawyer"

• Chuck Lindell, Austin Statesman, Nov. 29: "Will Fran and Dan Keller be exonerated?"

• Robert Garrett, Dallas News, Nov. 29: "Abbott seeks new spending but wouldn't raise tax revenue" (the maths thing again)

CCA: Junk science writ covers bad scientists as well as bad science

As birthday presents go, Texas Court of Criminal Appeals Judge Cathy Cochran quoting me in a concurrence on the winning side of Ex Parte Robbins - the first, pivotal case interpreting the state's new junk science writ, as it's been called, at Art. 11.073 of the Code of Criminal Procedure - was the best one I got this year. That statute, which became effective Sept. 1, 2013, provided a new basis for habeas relief if a defendant can show, by a preponderance of the evidence, that they would not have been convicted if erroneous scientific evidence had not been used against them.

This is the second time the court considered a writ from Neal Robbins on this topic; see Grits coverage from the first, before the new law had passed. Judge Tom Price was the swing vote who switched positions in light of the new statute. (Congrats to Robbins' attorney Brian Wice for his perseverance.)

The court faced a tough question: What to do when the issue isn't that the field of science changed but the scientist herself was merely wrong and later self-corrected? On a close 5-4 vote, the court decided Robbins deserved relief, reading the statute to maximize the court's jurisdiction over junk-science habeas cases.

The judges divvied up the work. Judge Paul Womack, who will soon be leaving the court, wrote the main opinion. Judge Cochran's concurrence focused on making the case for an expansive reading in the legislative history. (Grits has explained before why she's right about that.) And Judge Cheryl Johnson's separate concurrence made the textual case, arguing that the court is not charged with evaluating science but evidence, which inevitably in court means the testimony of an individual scientist.

Judge Michael Keasler dissented, declaring the majority had reached an "absurd" result interpreting "an admittedly awkward" statute. He argued that the court's habeas jurisdiction under 11.073 should be limited to the narrowest possible class of defendants - extending only to bad science, in other words, but not bad scientists.  Judges Sharon Keller and Barbara Hervey agreed with Keasler save for a procedural right they said the defendant had not forfeited. The fourth dissenter, Larry Meyers, ironically believed the Legislature had inappropriately infringed on the court's authority by granting it optional ("may," not "shall") authority over a new class of cases.

Why ironic? While helping the Innocence Project of Texas advocate for passage of Texas' junk science writ, I had occasion to read an excellent book by Paul Halliday titled, "Habeas Corpus: From England to Empire," which sampled every fourth year's habeas corpus writs (and selected, notable others from the off years) from the King's Court in England over hundreds of years to portray the writ as a dynamic arena for turf wars between the judicial and legislative branches. Over the course of British history, Halliday argued, and I would argue over American history (certainly Texas'), too, most legislation regarding habeas corpus has restricted courts' jurisdiction. The best, recent example in Texas were legislative restrictions on habeas in the '90s aimed at speeding up executions, strictures that one of their legislative authors, Pete Gallego, has said went too far.

Thanks to Halliday's book, as the Innocence Project of Texas promoted the legislation being interpreted in Robbins, (a task with which I assisted them as Policy Director for several years), I was acutely aware that this bill cut against the historical grain by granting the court more habeas power rather than limiting it. As originally conceived, habeas corpus was a function of the unfettered divine right of kings, and thus the King's Court, to bestow mercy on their subjects. Limitations on the Great Writ arose when the will of the Court conflicted with elected Parliaments down the line.

Today, we're centuries away from divine rights. Legislative bodies have profoundly constrained habeas corpus and thus the ability of courts to dispense justice to prisoners as they see fit, independent of the popular will of the day. But thanks to 2013 legislation by Sen. John Whitmire and Rep. Sylvester Turner, the CCA has enjoyed a rare reversal of the historical trend of vanishing habeas authority. Meyers' impression is that the Legislature was meddling. My impression is that they were correcting for past meddling.

Otherwise, read the opinions for yourselves; it is what it is. Unless the new court sees things differently next spring (three members of the Robbins majority will be replaced in January), for now the CCA has maximized its jurisdiction to remedy bad scientists in criminal cases as well as bad science.

This was the outcome Grits had hoped for, interpreting the new statute broadly. Even if the timing was serendipitous, there's no question the Robbins decision was my favorite birthday gift of the year.

MORE: From Craig Malisow at the Houston Press.

Not just movie magic: Why the CCA sided with 'Bernie'

Grits pledged to examine all the notable outcomes from Wednesday's Court of Criminal Appeals hand down list, so I suppose I should mention the Bernie Tiede case in which the CCA granted a new punishment phase hearing to the murderer subject of a (quite good) Richard Linklater movie starring Jack Black as the eponymous "Bernie" and Matthew McConnaughey as the DA whose pleadings are now before the court agreeing to reduce the penalty category from a first to a second degree felony. Tiede has been out on bail awaiting the court's decision and reportedly living in Linklater's house. The media blew up at his release in May. (See exemplar editorial pieces pro and con.)

In a surprising (to me) development, it appears the court may have used the state's new "junk science writ" to reach its conclusion, though the per curiam order did not go into detail. It merely said that the:

Applicant alleges there is newly available relevant scientific evidence that contradicts the scientific evidence relied upon by the state at trial, and that false evidence was presented at trial thus undermining confidence in the verdict at sentencing.

The trial court, after conducting a live hearing and based upon an extensive record, has recommended that applicant be granted relief in the form of a new punishment hearing. The State agrees that Applicant is entitled to relief.

The substantive debate played out in the dissenting opinion by Judge Sharon Keller and a concurrence by Judge Elsa Alcala, who ironically applied the same deferential standard to local prosecutors and the trial court that one normally sees from Keller and Co. when the state wants to hang-em-high. To be fair, Keller makes some excellent points in her dissent, calling on the court to exercise independent discretion instead of mindlessly parroting the prosecution's party line without justification. I've thought the same thing myself many times reading rulings in which she was in the majority, siding with the State for no other reason (at least publicly stated) than that she had the votes to do so.

Basically, here the State agrees it presented "false evidence" when an expert important to the prosecution's punishment-phase case told the jury that Tiede had an unremarkable mental health history. It turned out he was a victim of child abuse, state and defense experts agree. Since the prosecutor agrees false evidence was presented and the local trial court's findings support the claim, from my perspective the only news here is that the court did not hypocritically up-end its defer-to-the-state-no-matter-what approach when it benefited a defendant. A cynic might think that dynamic only plays one way.

Judge Alcala is turning out to be an important thought leader on the court and an intellectual counter-weight to Judges Keller and Keasler on the pro-government side. Perhaps her presence will make Judge Cochran's lamentable departure easier to bear.