Harris DA: Delay pleas on drug cases till lab results are in

Reacting to numerous drug cases where defendants pled guilty to get out of jail and crime labs later returned results saying they'd never been in possession of a controlled substance, overturning their convictions based on "actual innocence," Harris County DA Devon Anderson recently announced a new policy in which prosecutors can no longer agree to a plea in such cases unless final results are back from the crime lab. The only exception is that "a defendant housed in jail [may] receive a term of community supervision with no additional jail confinement as a condition of the community supervision." Here are three, notable discussions of the new approach:

• Eric Dexheimer, Austin Statesman, "Investigation spurs Harris County to change drug testing policy"
• Murray Newman, Life at the Harris County Courthouse, "An Unworkable Drug Policy"
• TDCAA User Forum, "Drug Lab Delay Question"

There are a lot of moving parts to consider so I understand Murray Newman's pessimistic view that the policy is unworkable. If lots of low-level drug defendants fill up the jail because they can't make bond (and Harris judges notoriously issue few personal bonds), or if court dockets expand significantly beyond their already very high levels, it's easy to see how there may be pressure on the DA to do things differently.

If local judges would agree to issue personal bonds to these defendants while they await crime lab results, that would make this policy work a lot more smoothly. Without that sort of tacit cooperation, though, it's hard to understand how the approach is sustainable in the long term.

OTOH, the situation described recently by former Texas Court of Criminal Appeals Judge Cathy Cochran surrounding these drug-possession innocence cases is equally untenable. She told Texas Monthly:

speaking of keeping people out of jail, I really think the law needs some help with pre-trial bail, letting people out before the case is sentenced. We’ve had a lot of cases recently where we’ve granted relief because here’s somebody arrested for possession of cocaine or meth or whatever and they plead guilty because they’ve got a job or a family or they just can’t stay in jail for the next six months before trial; they don’t have enough money to make bail, but they plead guilty. Then sure enough six months later the analysis on the drugs comes back and guess what? It’s not a drug.  

There aren't a lot of good answers here. Our friends at the prosecutors' association have suggested boosting crime lab funding, but throwing money at the problem won't change the structural dysfunction created fundamentally by high case volumes and unreasonable bail policies.

Grand jury reform: Beyond eliminating the pick-a-pal system

The Houston Chronicle's Lisa Falkenberg - whose reporting on conflicts of interest in Houston grand juries involving shootings by police helped launch the current effort to end the pick-a-pal method of selecting grand jurors - has published an op ed (Feb. 10) articulating what, in her view, grand jury reform must look like beyond random selection to solve problems witnessed from H-Town to Ferguson, MO. The column concluded:

A random system isn't magic fairy dust that will fix everything. Choosing our grand juries the way we choose trial juries will likely produce fairer panels with fewer biases. But, naturally, they will also be less informed about the system, and about their rights and duties.

More education is needed. Harris County provides an informative orientation, from what I've gleaned from agendas and interviews. But it's lacking in the perspectives from the defense, from groups like the Innocence Project, or from exonerees themselves.

"I get about 10 minutes. There's only so much I can cover," said Alex Bunin, Harris County's chief public defender.

Grand juries could also benefit from a staff attorney, or some kind of independent legal adviser who doesn't have a dog in the hunt.

The impenetrable shroud of secrecy is another issue lawmakers should keep in mind.

While I think grand jurors' oath of secrecy is still appropriate in most cases, judges need more explicit discretion to allow for exceptions, such as releasing witness names or transcript excerpts when appropriate. District attorneys need the same guidance.

Lastly, critics argue that a random system still won't result in diverse grand juries because many folks can't get off work to serve. I agree that grand juries will always skew older. Retirees simply have more time. But the system need not be so onerous on younger working folks. The law should make it clear that jurisdictions can get creative with the number of days and hours that grand juries can meet.

Why not a Saturday grand jury, or one that meets in the evening?

Law enforcement officials who advocate for reform deserve applause. And Texans deserve that their lawmakers finally get it right.

What jurors need to know during sentencing

Recently retired Texas Court of Criminal Appeals Judge Cathy Cochran told Texas Monthly that jurors should be informed how much prison sentences would cost taxpayers, Grits noted yesterday. That got me thinking about what else jurors might be usefully told to better inform their decision making during the punishment phase.

To me, perhaps even more probative than the cost of a prison sentence (which in the context of government budgets is a bit of an abstraction, anyway), jurors should be informed of the lowest plea bargain offered by the prosecution to the defense pretrial, giving them a baseline to consider for the low end of the punishment range.

That simple improvement would substantially mitigate the "trial penalty" which has radically driven up plea bargain rates in the modern era. If jurors knew that the prosecutor before trial believed that penalty X was sufficient, the temptation to punish a defendant with 6X might be more easily avoided.

Public safety arguments for arresting pot smokers eroding

One of the main arguments trotted out in Texas by opponents of legislation to reduce penalties for personal-use marijuana possession (mainly police union reps) is that there's no reliable way for police to detect stoned drivers on the side of the road the way there is for drunk ones. That's true to an overstated extent, for the moment (even as I write this, technology advances, and observed impairment during roadside sobriety tests still would merit arrest). But it doesn't justify arresting every driver with marijuana in their bloodstream as potentially impaired because pot remains detectable in the system long after impairment subsides. Such are the implications of a federal report described by Christopher Ingraham under the Washington Post headline, "Stoned drivers are a lot safer than drunk ones, new federal data show."

His article opened, "A new study from the National Highway Traffic Safety Administration finds that drivers who use marijuana are at a significantly lower risk for a crash than drivers who use alcohol. And after adjusting for age, gender, race and alcohol use, drivers who tested positive for marijuana  were no more likely to crash than who had not used any drugs or alcohol prior to driving." That could be a game changing pronouncement. (The story included the remarkable chart at right.)

It's been extraordinary how rapidly public opinion has shifted on marijuana regulation. Legalized pot in Colorado, Washington and elsewhere transformed the terms of debate both nationally and in Texas. And myth busting research like this contributes to a more honest, evidence-based debate over these sorts of once-taboo topics.

That said, this news shouldn't be taken as license to immediately go smoke and drive. Ingraham's column concluded:

So, should we all assume that we're safe to blaze one and go for a joyride whenever the whimsy strikes us? Absolutely not. There's plenty of evidence showing that marijuana use impairs key driving skills. If you get really stoned and then get behind the wheel, you're asking for trouble.

What we do need, however, are better roadside mechanisms for detecting marijuana-related impairment. Several companies are developing pot breathalyzers for this purpose.

We also need a lot more research into the effects of marijuana use on driving ability, particularly to get a better sense of how pot's effect on driving diminishes in the hours after using. But this kind of research remains incredibly difficult to do, primarily because the federal government still classifies weed as a Schedule 1 substance, as dangerous as heroin.

Bottom line, impaired drivers should be arrested and taken off the road whether they're drunk, stoned, or high on prescription drugs. But the argument that cops must arrest every pot smoker because they might drive impaired doesn't jibe with reality or the data reviewed by the feds. As a general rule, there's no greater public safety benefit from arresting and jailing a pot smoker than from giving them a Class C ticket or a civil citation.

DPS backs down on collecting all ten fingerprints from drivers as Lege session gets underway

The Texas Department of Public Safety Government Relations Division this morning sent out an email to legislators declaring that,

based on concerns and questions raised by a number of legislators regarding the statutory authority of DPS to collect all 10 fingerprints in order to obtain a driver license (DL) or identification (ID) card, the department will immediately cease collecting all 10 fingerprints in order to obtain a driver license or identification card. The department will continue to comply with Texas Transportation Code, Section 521.059, passed by the legislature in 2005, which requires the department to collect “an applicant’s thumbprints or fingerprints.”  The department will comply with any further direction or legislative action taken by the Texas Legislature regarding this matter.

So, if this program is ending, one wonders what will happen with the vestigial data collected over the last year? Will it be expunged? Has it already been shared with the feds through the state's fusion centers? (See more from the Dallas Morning News.)

I'm not a betting man but, if I were, I'd wager a sweet sum that DPS won't get the post hoc authorization they're looking for. The last time the Texas Legislature voted on this topic, the House shot down the idea by an 111-26 margin, defying the leadership in a post-9/11 homeland security vote. (See more background here.) It's hard to imagine that the margin has shifted at all since then and indeed today my rough guess would be the vote would turn out even more lopsided. We'll soon find out, won't we?

Innocence and clemency: An early test for Greg Abbott

Ben Spencer's case provides an early-in-term test for new Texas Gov. Greg Abbott's clemency policy. Reported Jennifer Emily at the Dallas Morning News (Feb. 8):

Spencer wants new Republican Gov. Greg Abbott to pardon him based on actual innocence. In other words, he wants Abbott to proclaim Spencer didn’t commit the crime.

“I’m getting older,” Spencer said during a recent interview at the Coffield prison unit where he turned 50 in December. “I try to keep a positive outlook, hopeful that one day, by some means, I’ll be free.”

Spencer was convicted in the 1987 fatal robbery of West Dallas clothing firm executive Jeffrey Young during the city’s crack cocaine epidemic. He was sentenced to 35 years for murder but won a new trial after a witness did not disclose she had received reward money. It was on that second chance that a jury sentenced Spencer to life in prison for aggravated robbery.

Spencer then won a third opportunity — a hearing in front of state District Judge Rick Magnis in July 2007. That chance came after witnesses pointed to another man as the killer and questions surfaced about how much witnesses could have seen from 100 to 200 feet away on a dark, moonless night. Magnis eventually found Spencer innocent. But Spencer’s hopes were dashed in April 2011 when the Court of Criminal Appeals rejected the judge’s findings.

Spencer’s new plea will go to the Texas Board of Pardons and Paroles, which will make a recommendation to Abbott. If the board or Abbott denies his request, Spencer could be running out of chances. ...

Dozens have written to the parole board in support of Spencer’s pardon, including lawmakers and exonerees who served time with him.

But the letter that could have the most impact is from Craig Watkins, who served as Dallas County’s district attorney for eight years before leaving office Dec. 31.

Watkins had opposed Spencer in the 2007 hearing before Magnis. But in Watkins’ letter, written while still in office, he said that the hearing happened before he created a nationally recognized conviction integrity unit and witnessed the release of so many wrongly convicted men.

“We learned many lessons through those exonerations,” he wrote. “We confirmed that eyewitnesses can be mistaken in their identifications. We established that science can disprove even the most resolute witnesses. And we proved that even well-intentioned, well-meaning prosecutions can nonetheless be misdirected.”

Russell Wilson, who oversaw the conviction integrity unit for Watkins and is now in private practice, said he’s not sure a jury would convict Spencer today.

“Any jury hearing a case today is aware of problems with identification. And, in Ben’s case there is a viable alternative suspect,” Wilson said. “The evidence that puts you in prison has to keep you in prison every day that you’re there. If it’s not good enough, then you should be free.”

Watkins’ new stance could have sway with the board. The Court of Criminal Appeals noted in its ruling that Watkins, a Democrat, is known for exonerating the innocent and that he did not at the time support Spencer.

RELATED: Pardon me, Governor Abbott, but about your clemency policy?

Cochran: Tell jurors financial cost of prison sentences

Texas Monthly's Michael Hall has an extended exit interview this month with recently retired Texas Court of Criminal Appeals Judge Cathy Cochran up on the magazine's website. I especially enjoyed this glimpse behind the scenes from Judge Cochran into the court's internal functioning:

It’s like having a very large dysfunctional family and you may fight amongst yourselves and have arguments, but to the outside world you project that you’re a family. You get to know each other quite well and you get to know what’s going to go over with someone and what won’t. So you try to fashion your opinions with the concerns and issues of other people in mind to make sure you could get the majority. And so how do you go about making sure you put things in there that would satisfy one judge and not upset another judge? And those judges are doing the same with you. There’s a lot of chess playing that goes on here.

And I particularly liked her idea for informing juries about the cost to taxpayers of prison sentences before they're assessed. Asked what issues the court and the Legislature should be focused on, Cochran opined:

I think there’s going to be a much greater emphasis on not going to prison. The jury ought to know just exactly how much it costs to send somebody to prison for a year. I think that the evidence-based studies these days show that criminal justice reinvestment and putting money into the community and having people on a short leash and keeping them out of jail—with jobs, with families—does a whole lot better job not just for that person, but for all of society in general. And speaking of keeping people out of jail, I really think the law needs some help with pre-trial bail, letting people out before the case is sentenced. We’ve had a lot of cases recently where we’ve granted relief because here’s somebody arrested for possession of cocaine or meth or whatever and they plead guilty because they’ve got a job or a family or they just can’t stay in jail for the next six months before trial; they don’t have enough money to make bail, but they plead guilty. Then sure enough six months later the analysis on the drugs comes back and guess what? It’s not a drug. 

Finally, here's a notable exchange on the impact of innocence cases on the court's jurisprudence:

MH: How is it that Texas, a conservative law-and-order state, has enacted all these groundbreaking reforms?

CC: I think that when you come right down to it, Texas is a pretty open-minded place. People listen and pay attention and acknowledge issues if you bring them to their attention in an appropriate sort of way. And all those DNA exonerations woke a lot of people up. I was as surprised as anybody.

MH: They were a big moment for you and others?

CC: Yes. I think that we knew there were mistakes, but we thought it was maybe a one-in-fifty-million kind of thing. Clearly, it was much worse, and if we can’t be accurate in the results in the criminal justice system, we will lose the respect of the people on the street. And the second big thing was in 2009, when the National Academy of Sciences came out with the report “Strengthening Forensic Science in the United States,” and that really was an eye-opener. It basically said that most of the forensic sciences being used in criminal cases were not very valid, or not validated, except for DNA.

Perhaps the single most important development was the Innocence Project’s survey of the various reasons for wrongful convictions, giving some coherence to when and how mistakes are made. We rely heavily on eyewitness testimony, and it turns out that eyewitness testimony is the number one reason for wrongful convictions. We had no idea it was so unreliable. And number two is forensic science. And then false confessions, and then Brady issues—prosecutors not turning over information that would have been helpful to the defense. We wrote several opinions dealing with these issues. In 2008 Judge [Barbara] Hervey started the Criminal Justice Integrity Unit, and eyewitness identification was an early focus, bringing together players from every area of the law, including the police officers, because if the police officers aren’t on board, no reform is going to take place. Along the way we also saw the Forensic Science Commission, the Timothy Cole Advisory Panel, and the Michael Morton Act.

All good stuff. Go here to read the whole thing.

Years long battle between Lege and courts continues over access to post-conviction DNA testing

For a decade and a half we've seen a similar dynamic on DNA testing. The Court of Criminal Appeals issued a bad decision (e.g., the Roy Criner case launched the whole modern DNA testing trend in Texas). The Legislature acted to correct their overreach, creating Chapter 64 of the Code of Criminal Procedure to establish a procedure for access to DNA testing. In response, prosecutors scheme and fight to the bitter end to prevent DNA testing at all costs and the courts interpret their power to oppose it broadly. So the Legislature expanded access to testing to overturn their victories, most prominently upending former Williamson County DA John Bradley's years-long opposition to DNA testing in the Michael Morton case.

Now, in response to another questionable Court of Criminal Appeals opinion limiting access to DNA testing, state Rep. Rodney Ellis has yet another bill to expand access to DNA testing, with Michael Morton at his side at the capitol to promote it. See also coverage from the Texas Tribune and the Austin Statesman. Find the text of Ellis' press release below the jump.

Harris DA backs eliminating 'key man' system for picking grand juries

It's impressive that Harris County DA Devon Anderson has announced her support for state Sen. John Whitmire's grand jury reform proposal to eliminate the key man system and select grand jurors from regular jury pools. Reported the Houston Chronicle (Feb. 8):

In a two-page Letter to the Editor of the Houston Chronicle on Sunday, she offered her full-throated support for changing the law on how grand juries are selected.

"The public is losing confidence in the grand jury system," Anderson wrote. "I support the efforts in the Texas Legislature to abolish the jury commissioner system."

Anderson, who called the current system "a historical anachronism," joins a chorus of calls for reform in the midst of fierce national debate over the diversity of the people picked to be grand jurors, an issue that has been spotlighted by several high-profile cases across the country.

Good for her! With the Republican DA of the state's largest county backing the idea, perhaps Whitmire's bill will find real legs. After all, he only has to get 19 votes in the senate now as opposed to 21 in years past. At a minimum, Anderson's position ensures opposition to the bill will be fragmented and vulnerable. I thought before this news hit that Whitmire's bill might find an untapped well of bipartisan support at the Lege. With a little luck, Anderson's vocal endorsement might put it over the top.

MORE: See more background on the topic in a link-filled post from Radley Balko published last August.

West Texas indigent defense: A Nolan County case study

An infrequent poster on the Texas prosecutor association user forum offered up the following question on February 5:

Our newly-elected county court at law judge does not want to continue the former judge's practice of giving an admonishment sheet to all unrepresented defendant on court days, advising them of their right to counsel before allowing them to talk to the prosecutors, as per CCP 1.051. Our prosecutors have taken the position that the law does not allow us to talk to unrepresented defendants unless they have received these admonishments, so we seem to be at an impasse. Any thoughts on how to get around this?

No way to tell who the judge in question is or what county she's from. Forum regular Martin Peterson responded that:

1.051 (f-1) prohibits communication only "with a defendant who has requested the appointment of counsel." (f-2) requires an admonishment by the judge only if the judge determines to "direct or encourage the defendant to communicate with the attorney representing the state." If a defendant has not requested appointed counsel, has not retained counsel, and comes to the prosecutor without any encouragement from the court, you are not legally prohibited from discussing the case with the defendant by 1.051. But see comment 4 to Discip. Rule 3.09. Your judge, however, may not to be following Oliver, 872 S.W.2d 713,716 which establishes: "The appearance of a criminal defendant in court without counsel, therefore, necessitates an examination by the trial judge to assure that the defendant is actually aware of his right to retain an attorney and to discover whether he intends to do so." But, I guess your judge might be able to validly assume that this responsibility has already been satisfied under art. 15.17(a).

But TDCAA staffer Shannon Edmonds was more succinct: "If your new CCAL judge wants to get sued or wants to jeopardize your county's funding (if any) from the Indigent Defense Commission, then she should stick to her guns. If she wants to avoid those headaches, then she should listen to you." That seems like sound advice.

In the meantime, though, Grits was fascinated by the response from forum regular Nolan County Attorney Lisa Peterson:

We have a form which is a waiver of rights for 24 hours - it is handed out by the court coordinator on our "Wild Wednesday" (aka cattle call). After completing it, each defendant is called to the bench and offered the chance to come talk to me. We also have "stand by" defense counsel available for general "they didn't read me my rights" type questions. (they actually talk many out of court appointed attorneys).

If the defendant is incarcerated, the magistrate has a form in which they request that the prosecutor come visit with them about the case OR they request appointed counsel...

That's quite an indigent defense system: The judge assists with coercing a waiver of counsel from defendants while a "stand by" defense counsel sits by to "talk many [defendants] out of court appointed attorneys." If they don't sign the waiver then the case isn't set and the defendant goes back to jail. Good Lord! What kind of self respecting criminal defense lawyer signs up for that "stand by" counsel job?

Lege, not mayors, must address police accountability in civil service cities

Previewing public safety issues in the Houston mayoral race, Charles Kuffner opined that:

The discipline policies and practices for HPD in general need a long, hard look. It’s very rare for officers to be punished for excessive force complaints, even in the face of overwhelming (and sometimes video) evidence. Between 2007 and 2012, according to HPD records, officers killed citizens in 109 shootings. Every killing was ruled justified. The process needs an overhaul, and more public involvement. I want to hear Mayoral candidates address these issues, and not just give me the same paeans and platitudes we’ve gotten in past campaigns.

While Grits' shares Kuff's concerns about the HPD disciplinary process, it's worth mentioning that, because Houston decades ago adopted the state civil service code (many years before the most onerous provisions limiting discipline and open records were added), most of the policy issues which need addressing lie in state law, not under the purview of local government. Indeed, there's a Houston-specific section of Local Government Code Chapter 143 which governs disciplinary policy in detail. About 73 Texas police departments operate under the Chapter 143 civil service code, including most of the larger cities except Dallas and El Paso.

The problems created by Chapter 143 are fundamental. For example, police disciplinary files are closed records in civil service cities and open records in non-civil service cities, making the latter departments more transparent and accountable to the public. We know departments can operate successfully with open disciplinary files because most of them do. And secret disciplinary files arguably contradict new disclosure requirements under the Michael Morton Act, since the records are concealed from prosecutors as well as the public. Re-opening those disciplinary files would be one of the most important police accountability reforms the Lege could undertake. (See a related NY Times story published Feb. 4.)

Further, the civil service code limits the time frame in which complaints can be filed to 180 days but also disallows management from amending the complaint after subsequent investigation. And it limits promotion decisions to a combination of written test scores and seniority without taking into account an officer's disciplinary record.

Those are the sort of mundane bureaucratic mechanisms which must be adjusted to improve police discipline in civil service cities. A civilian review board which only makes recommendations won't do the trick. The barriers to accountability are enshrined in state law and out of the control of municipal officials, a fact which contributes immensely to weakened disciplinary processes in those jurisdictions.

The rest of Kuff's piece is excellent so give it a read. I only wanted to clarify the complex issues surrounding police accountability and the limits of any mayor or city council to improve it.

Lege can lower county jail costs by reducing incarceration for nonviolent offenses

The Dallas Morning News today published a column authored by your correspondent arguing that the Texas Lege could reduce the tax burden for local county jails by reducing penalties for two nonviolent offenses: low-level pot possession and subsequent offenses of driving with an invalid license. Changing both from a Class B to a Class C misdemeanor - or a civil penalty as Rep. Joe Moody has suggested for user-level marijuana possession - would have prevented more than 90,000 arrests last year for those two offenses. (The House County Affairs Committee explored this dynamic during the interim as part of an interim charge.)

Grits readers will be familiar with the column's pragmatic, less-government thesis: "Less government can’t just be about less taxes. If you want to cut the budget in a meaningful, sustainable way, you must identify something government is currently doing that costs money and choose not to do it." The article concluded thusly:

Those 90,000 or so arrests qualify as something the government is currently doing that costs money that the state could choose not to do. If the state would make that choice, it would reduce upward pressure on county property taxes, essentially removing an unfunded mandate. Plus, it would help “get the government out of the lives” of those 90,000 individuals, in particular, whose personal liberty interests in and of themselves are no small thing.

Does anybody seriously believe that public safety would be harmed?

More inmates in solitary confinement in Texas than prison systems in 12 states

Check out a new report from ACLU of Texas and the Texas Civil Rights Project assessing the state's use of solitary confinement. Chuck Lindell at the Austin Statesman has an item up (Feb. 5) adumbrating their findings, which opens:

Texas prisons keep too many inmates in solitary confinement for too long — sometimes years — damaging their mental health and placing communities at risk when the prisoners are eventually released, a study by civil rights groups concluded.

Released Thursday, the report criticized Texas for keeping 4.4 percent of its inmates in solitary confinement — 6,564 in September 2014, or more than the combined prison population of 12 states.

“On average, prisoners remain in solitary confinement for almost four years; over 100 Texas prisoners have spent more than 20 years in solitary confinement,” said the report by the ACLU of Texas and the Texas Civil Rights Project.

And although the practice can lead to mental damage, in 2013 the Texas Department of Criminal Justice released 1,243 inmates “directly from solitary confinement cells into Texas communities,” said the report, titled A Solitary Failure.

Legislation filed to reduce jail pops, shut down red light cameras, and other stories

Here are a few items which likely won't make it into independent posts this week but merit Grits readers' attention:

• State Rep. Senfronia Thompson filed a good bill, HB 1115, that would double down on legislation by former Rep. Jerry Madden to allow police to issue citations instead of making arrests for pot possession, driving with an invalid license, and several other Class B misdemeanors. Thompson's bill would mandate citation instead of arrest for those offenses unless there are other reasons (e.g., outstanding warrants, they're from out of town) to detain a suspect.
• The Fort Worth Star-Telegram reported on a renewed legislative push to shut down red light cameras.
• State Sen. Juan "Chuy" Hinojosa had an op ed in the SA Express News calling for Texas to raise the age at which defendants are tried as adults from 17 to 18. In the Corpus Christi Caller Times, House Criminal Jurisprudence Committee Chairman Abel Herrero also backed the "raise the age" proposal, citing his committee's interim report, discussed here.
• The San Angelo Standard Times published an item on legislation to promote use of police body cams through grants and the proliferation of standards.
• This morning I noticed several referrals from The Washington Post and discovered they linked to a Grits post in a staff editorial today about solitary confinement.
• I agree with much of what Forrest Wilder wrote here about Texas having barely begun its journey down the path of de-incarceration, and have written as much in the past. But I disagreed in the comments with his assessment of Rick Perry's record.

House committees announced: Reviewing the criminal justice chairs

The Texas House announced committee chairs and memberships today.

Among the criminal-justice oriented committees, two of three - Corrections and Homeland Security and Public Safety - got new chairmen, with both their former chairs upgraded to more powerful posts.  Rep. Jim Murphy now chairs House Corrections and Larry Phillips has Homeland Security and Public Safety. Senior Houston Democrat Harold Dutton chairs the newly created Juvenile Justice and Family Matters Committee. Democrat Abel Herrero out of Corpus Christi retained the Criminal Jurisprudence chair.

Criminal Jurisprudence experienced significant continuity amidst a reduction in total seats from nine to seven. Joe Moody out of El Paso is vice chair. Brian Hughes and Matt Schaefer are gone, replaced by David Simpson and Matt Shaheen. Reps Lon Burnam, Steve Toth and Stefani Carter did not return to the House. But Jeff Leach and Terry Canales both returned to the committee, and all and sundry are joined by Calendars Committee Chair Todd Hunter, which at least may help get some of the committee's priority bills up for floor votes, for a change.

By contrast, Corrections and Homeland Security and Public Safety are essentially new committees from stem to stern, with scarce little overlap in membership from prior sessions (two members on Corrections, one on Homeland Security and Public Safety). And of course the Juvenile Justice Committee was created new this session. See the full list of House committee assignments.

The stage is now set. Time now to get down to business.

RELATED: See also Grits' discussion of appointments to the Senate Criminal Justice Committee.

Prayer for relief: Bill to abolish Driver Responsibility surcharge

By popular demand, I give you SB 93 by Rodney Ellis to abolish the "Driver Responsibility" surcharge. Several readers have asked me whether abolition legislation had been filed yet, so there you go. It has been referred to the Transportation Committee, which is chaired by Sen. Robert Nichols. Last session, state Rep. Larry Gonzales filed legislation in the House to get rid of the surcharge, but a quick check finds nothing comparable so far. If a senator who represents you is on that committee (find out who represents you at this link if you don't know), you may want to give their office a call and let them know you support Ellis' bill.

Most of the money in the DRP accounts was finally released to trauma centers during the last biennium, I discovered this week, and going forward they can expect about $55 million per year from the surcharge at current (stubbornly, pathetically low) collection rates. The shortest distance between two points would be for the Lege to just pony up that amount for trauma centers from the multi-billion dollar surplus they've got in front of them and get rid of the surcharge in its entirety. That might take more political will than is present; there a lot of new members this session and many of them have never closely considered the surcharge issue, even though it has impacted millions of Texas drivers. Still, it's worth a try.

BTW, if you or someone you know (including clients or folks you've encountered in a professional capacity) have a story to tell about how the Driver Responsibility surcharge has impacted them, go here to share it with the Texas Criminal Justice Coalition, which will choose the greatest hits for materials to help advocate for abolition of the surcharge.

Draft budgets short shrift prisoner health care

Hard to avoid a sense of déjà vu when checking in on proposed funding levels for prisoner health care in the first-cut budget for the Texas Department of Criminal Justice.

The draft House and Senate budgets (here and here, respectively) both keep funding for health services at TDCJ stagnant from last biennium at $963.1 million (down from $990.6 million in the 2010-11 biennium), despite a declaration by agency administrators that they'd need an additional $175 million over the next biennium just to meet "minimum standards," or an 18 percent increase in the three main medical line items.

There are two ways to cut prison health costs: Set funding without regard to need and roll the dice regarding whether the state must pay more down the line if and when litigation comes. (Call that the California model.) Or reduce the number of offenders for which the prison system must provide health care, especially aging long-timers but also targeting categories of nonviolent offenders for reduced penalties to lower the population across the board. Obviously, your correspondent would prefer the latter.

There's a third option but it hinges on bigger questions than just prison policy. If the state were to expand Medicaid under Obamacare, Texas could be reimbursed from $110 to $240 million per biennium for prisoner hospital care. But reducing prisoner medical costs will not be the central driver behind that hot-button decision.

Eventually, perpetual underfunding of prison healthcare will bite the state in the metaphorical tuckus. When it does, legislators can't say they weren't warned. TDCJ has already told them that these funding levels won't meet "minimum standards."

Bennett: How Texas can constitutionally reboot online solicitation statute

One of the sleeper issues confronting the 84th Texas Legislature are proposed revamps of the state's online solicitation of a minor statute, deemed unconstitutional last year by the Court of Criminal Appeals. Legislation to reboot the statute has been filed by Rep. Tony Dale in the House and Sen. Joan Huffman in the Senate, reported Chuck Lindell at the Austin Statesman (Feb. 3). See the text of their proposal and a press release from Dale.

Grits forwarded the legislation to Mark Bennett - the Houston attorney whose aggressive appellate work invalidated the statute and arguably the state's leading, practicing expert on the intersection between First Amendment and criminal law - and he offered up this post on his blog Defending People analyzing the Dale/Huffman proposal from a constitutionality perspective.

Bottom line, says Bennett, the language is "not quite right, but is much closer to constitutional than the statute as it exists now." He suggested a few "small changes" which would bring "the statute ... almost in line with First Amendment incitement law."

Indeed, the barrister opined, "The only element of incitement that isn’t in the statute is imminence: for incitement to be unprotected speech the defendant must intend that a crime be imminent. There is, as you might imagine, not a lot of case law on imminence. If you stuck 'the imminent' in between 'commence' and 'commission' [in his edited text], you’d have a statute that I’d have difficulty attacking (which is not to say that I won’t come up with something)."

A few observations. First, this was a 9-0 ruling by the Court of Criminal Appeals so the replacement of three judges in November likely won't change it. That means the case law Bennett helped establish on this issue will govern whatever the Lege does this session. Second, let's be clear, Bennett understands First Amendment law and the prosecutors don't. Moreover, he's been licking his chops for a chance to challenge any replacement statute. So if Mark Bennett is offering drafting advice, it would behoove the bill authors to take it and run. That's especially true since the changes he's suggested are truly not major; they've already narrowed the bill most of the way.

RELATED: Is it possible for Lege to resuscitate online solicitation statute?

Assault on youth by guard at Evins caught on video

As if state officials need another excuse to consider further downsizing of Texas' youth prison system, "A juvenile correctional officer at Evins Regional Juvenile Center was caught on video assaulting two youths that were in his care last fall" for taking a remote control, reported the McAllen Monitor (Feb. 2).

Regular readers know this is by no means the first episode at Evins. Honestly, it's seemingly always something.

Surge in bipartisan desire to limit asset forfeiture abuses

It seems like prosecutors are aggressively pursuing asset forfeiture in Tarrant County the Metroplex. Last year it was seizing vehicles from college-student pot dealers at TCU. Now we hear of a thief whose pickup truck was seized after he was arrested for stealing three 18-packs of beer.

Meanwhile, in Austin, legislators prepare to debate a remarkable variety of legislation aimed at limiting or at least documenting civil asset forfeiture by law enforcement.

State Rep. David Simpson recently argued for requiring a criminal conviction to seize assets, while Sen. Juan "Chuy" Hinojosa and Rep. Jeff Leach have both filed legislation to raise the standard the state must meet (from "preponderance of the evidence" to "clear and convincing evidence") for the state to seize assets.

There's a remarkable level of interest in this topic from across the political spectrum. Legislation by Rep. Phil Stephenson would require audits of forfeiture funds to "include a detailed report that itemizes all seizures of proceeds or property under this chapter and that indicates the specific criminal offense on which each seizure was based and, if charges were brought in connection with the offense, the disposition of those charges." Rep. Borris Miles has filed legislation limiting the application of asset forfeiture in certain misdemeanor cases to repeat offenders.

At an event in December sponsored by the Texas Public Policy Foundation, Andrew Kloster of the Heritage Foundation recommended that anyone interested in forfeiture reform should review these three sources:

• 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.

Given the level of interest in asset forfeiture among Texas legislators in both parties, that's probably a good reading list for staffers and reporters who'll have to deal with this topic as well. In addition to those resources, the Office of Court Administration in December published a report titled "Asset Forfeiture in Texas: DPS and County Interactions" (pdf) which Grits would add to Kloster's recommendations, at least for a Texas-specific audience.