Texas Voices standing against sex offender residency restrictions

Texas Voices, a group made up of families of people on Texas' sex offender registry and others who support reform of Texas sex offender statutes, has been quite active this session, and it's a good thing.

As Grits told their indefatigable leader Mary Sue Molnar when the organization began, every other criminal justice reform group and activist in the state, including me, will inevitably sell them out at the Legislature. When someone says of a proposal, "well, we can do that but we have to exclude sex offenders," reform advocates routinely will jump at the deal without a second thought. And in general, rightly so. One cannot succeed in legislative politics by making the perfect the enemy of the good.

And yet, what that means as a practical matter is that nobody will consistently, much less passionately stand up for the interests of people on the sex offender registry except their own family members. Not their lawyers, not the ACLU nor any other advocacy group, no legislator nor state official, and (if we're honest) not even this blog ... nobody. If Texas Voices didn't exist, a lot of bad, barely vetted bills would slide through the process without a whiff of opposition, not because they weren't recognized as bad but because those in a position to vet them made a political calculation that opposing them would harm other interests. I'm not particularly proud that that's true - it doesn't speak very well of the criminal justice reform movement in this state - but it's the way it is.

Texas Voices does not suffer from such conflicts. As their name implies, they give voice to the truly voiceless. And last week those voices were at the capitol in force to oppose draconian new sex offender residency restrictions in HB 1064 by Sheffield and HB 1872 by Murphy. I asked Mary Sue to describe the group's efforts to oppose these bad bills and she replied via email thusly:

Both HB 1064 by Sheffield and HB 1872 by Murphy are residency restriction bills. 1064 would create a statewide residency and child safe zone restriction. 1872 would allow General Law cities to adopt their own restrictions up to 1000 feet.  Both bills are based on the myth – research does not support the theory that children are likely to be victimized by strangers at places where children gather than at other places - and - there is no correlation between residency restrictions and reducing sex offenses or improving public safety. Additionally, over 93% of sex offenses are committed by someone who is not on the registry.

To sum it all up, there is no evidence, there are no statistics, there are no studies, and there are no reports to support the theory that residency restrictions or child safe zones improve public safety.  NONE.  In fact, research has shown that these types of restrictions do more harm than good.

We are still trying to kill both of these bills!

HB1064: The hearing for 1064 went really well.  Approximately 50 Texas Voices members attended, 7 testified ‘against’ and 2 law enforcement officers testified ‘for’ (one of which admitted to problems with the bill as written). The final witness registration tally was 42 people AGAINST HB1064 and 1 person FOR.  Here is the link to the video - Scroll to 1:24:28 to watch and be sure to watch the end at about 2:05:54.  We emptied out the room when the bill was over.  It was awesome to have so many of our members fill the room.

HB1872: I think about 4-5 people testified against and a few were for the bill. Rep. Schaefer and Rep. Elkins asked some great questions and made good points about the unintended consequences of these types of bills. Here's the link to the video. Scroll to about 3:49.

See more from Texas Voices on the residiency restriction issue.

At the three quarters mark: What criminal justice bills appear likely to pass?

With just a little more than a month left in the 84th Texas Legislature, let's survey the landscape regarding significant criminal justice bills which appear likely to pass. For purposes of this post, we'll define "likely to pass" as bills which have already been voted out by one chamber or the other. We'll define "significant" as "stuff Grits cares about."

First on the likely-to-pass list would have to be three House bills up Tuesday in Chairman John Whitmire's Senate Criminal Justice Committee, which are among the first HBs I've seen posted for a hearing in the Senate on any topic Grits covers. (Even HB 11 on border security has languished, with the senate passing SB 3 instead of substituting in the House bill.)

HB 593 requires police officers to undergo canine encounter training. HB 225 would help prevent overdoses by expanding use of naloxone, an opiod antagonist (an antidote with no known side effects which is highly effective for heroin and many prescription pain medications) by first responders and adults with a prescription, and create a defense to prosecution for people who call 911 in response to an overdose. (Your correspondent supported this bill in the House.)

The last HB up in Senate Criminal Justice Tuesday is HB 10, a bipartisan anti-human trafficking bill. There's one piece in HB 10 (Sec. 13) which Grits opposes because it makes uncorroborated informant testimony sufficient to obtain a human trafficking conviction - a recipe for false convictions if there ever was one. But nobody seemed to care about that on the House side and I'll be (happily) surprised if the Senate alters it. After the provision causes a few false convictions, maybe a few sessions hence they'll revisit it. See Grits' discussion of the same provision in a stand-alone bill.

The next category of bills with a high likelihood of passage would have to be "anything authored by John Whitmire." Among his bills which have cleared the Senate are legislation decriminalizing truancy and another bill adjusting procedures for criminal charges filed against misbehaving kids in school. Another Whitmire bill now in the House would eliminate the pick a pal grand jury system. His bill reforming the civil commitment system passed the senate (see MSM coverage), as did his bill downsizing the juvenile justice system. That is a successful session by any measure for the Dean of the Senate, and there are five weeks to go.

Sen. Joan Huffman's legislation reinstating the offense of online solicitation of a minor and criminalizing computer terms of service violations both passed the upper chamber, though on the latter bill the House passed its own version instead of taking up her version.

Sen. Royce West's body camera legislation passed the Senate, as did Rodney Ellis' bill clarifying access to post-conviction DNA testing in favor of defendants. Sen. Jose Rodriguez's bill requiring appointment of counsel for habeas writs under certain circumstances has cleared the Senate, and the companion is already out of committee, so it looks like it's ready to move. Sen. Juan Hinojosa's SB 1287 expanding licensing and regulation of forensic analysts through the Forensic Science Commission passed out of the senate, as did Senators Hinojosa's and Rodriguez's bill improving reentry resources provided to inmates leaving TDCJ. The companion to the latter bill was already approved by the House Corrections Committee.

The House has been less prolific passing criminal justice bills. Grits already mentioned HB 1546 by Allen giving diligent participation credits for state jail felons that would save the state hundreds of millions of dollars. The Senate version is already out of committee and on the intent calendar.

Otherwise, scarce little that passed out of the House Criminal Jurisprudence Committee has actually received a floor vote, and quite a few interesting bills with plenty of support to get out of committee have not been given votes by the chair (e.g., HB 507 on civil penalties for pot, asset forfeiture legislation). That's a better track record, though, than the Select Committee on Emerging Law Enforcement Issues, which hasn't voted out a single bill all session (which most observers believed was its purpose all along).

This list is not remotely comprehensive. Plenty of other bills still have a chance if they're already out of committee, or even some that get voted out of committee next week, though that's an even longer shot. After that, committees will mostly focus on the other chambers' bills, or bills where the chair promised a hearing but which nobody thinks can pass.

Roundup: Court costs, innocence, reentry, and faulty forensics

There's so much happening at the Legislature so quickly right now, good and bad, that it's hardly worth writing about all the moving targets. Perhaps over the weekend there will be time for a more thorough review of where we stand. Meanwhile, here are several non-legislative items which have been clogging up my browser tabs and would merit independent posts if your correspondent didn't have so much going on.

FBI admits to overstated hair analyses
Lots of national press this week on the FBI's overstated forensic testimony involving hair and fiber matches. See here, here, here, here, and here. The Texas Forensic Science Commission, readers will recall, is performing their own review of Texas cases. All of our hair and fiber examiners were trained by the feds and use the same techniques. RELATED: Since seemingly any and every topic these days warrants a clickbait list, see this item from Austin's own Jordan Smith at The Intercept, "Five disturbing things you didn't know about forensic 'science'."

A rare look at court costs
The Austin Monitor's Tyler Whitson took a rare, in-depth look at court costs litigation by former GOP Court of Criminal Appeals candidate Jani Maselli Wood, issues with which Grits readers are familiar but which are admirably laid out in Whitson's article. Related legislation to require courts to produce a bill of costs before defendants must pay them passed out of committee and is waiting on the Calendars Committee to give it a floor vote.

Feds investigating TX immigrant detention conditions
A federal report launched new allegations against an immigration detention center in Pecos, which experienced less-well publicized riots prior to the recent one that closed a unit in Willacy County.

SA4 seek innocence declaration
See coverage of the San Antonio Four's habeas writ seeking actual-innocence based exoneration.

Reentry stories
NPR's John Burnett examined the circumstances surrounding the 21,000+ TDCJ inmates released from Huntsville every year.

Slate of forfeiture reform bills heard, but not much moving and time is short

Quite an array of bills on asset forfeiture reform have been featured lately on the western side of the capitol, if not so much in the press. Rep. David Simpson's legislation to abolish civil forfeiture entirely was heard in House State Affairs last week. And several notable bills on the topic were on the agenda in the Texas House Criminal Jurisprudence Committee last night, primarily pressed by advocates from the conservative Institute for Justice and the Texas Public Policy Foundation. (Your correspondent supported these measures on behalf of the Texas Criminal Justice Coalition.)

Of the bills reviewed last night by Chairman Abel Herrero's committee, Rep. Jason Villaba's HB 2116 drew perhaps the most animated law enforcement opposition. That bill would restrict what police and prosecutors could spend money on to items listed in the code and require additional, quarterly reporting of expenditures posted on the agency's website. He's aiming to confront the situation former Dallas DA Craig Watkins created when he used forfeiture funds to settle a lawsuit stemming from a traffic accident he caused. Prosecutors do not want the public to have access to that information, objecting to additional reporting requirements. But the vehemence with which they objected to seemingly banal language limiting expenditures to articulated categories makes one think there must be a lot of expenditures that don't fit within those strictures. Else, why all the weeping and gnashing of teeth over holding them accountable to the text of the law?

There were several other good forfeiture reform bills on the Criminal Jurisprudence roster. Rep. Matt Schaefer's HB 1975 would put the primary burden on prosecutors to disprove an innocent owner claim. Rep. Jeff Leach's HB 249 and Phil Stephenson's HB 472 would install additional reporting about seizures and whether they stemmed from criminal convictions. And Rep. Terry Canales' HB 1012 would change the standard by which prosecutors must prove assets are related to criminality from the current "preponderance of the evidence" to "clear and convincing." (This is a companion to Chuy Hinojosa's SB 95, which is presently stalled in the Senate Criminal Justice Committee; see prior Grits coverage of that bill.)

With this much bipartisan interest, one would think forfeiture reform might stand a chance this session. But time is short - less than six weeks remain in a 20 week session - and no forfeiture reform bill has yet been voted out of committee in either chamber. Further, the Criminal Jurisprudence Committee, while being referred the most bills of any standing House committee, has so far voted out fewer than 20, putting it on a much slower pace than its peers. So unless Chairman Herrero and Co. act on these with uncharacteristic alacrity, there may not be time for anything but a floor amendment strategy. And even then, with so few bills moving on the topic anywhere in the process, there aren't many captions floating around to be amended.

Still, there have been lots of good ideas proffered on forfeiture this session and good groundwork laid for the issue going forward. None of these bills were filed in 2013 and often it takes two or three sessions for new suggestions to percolate their way through the process.

At a minimum, there's clearly enough interest in the House that the Criminal Jurisprudence Committee deserves an Interim Charge to study these suggestions and other potential forfeiture reforms. Perhaps with a little more interim prep and study, these ideas could enter the 85th Texas Legislature with more momentum or even support from the leadership. This year, the effort's been more of  a bottom-up affair.

Waiting for Mr. Goodhart

The Court of Criminal Appeals in November overturned Alfred Brown's capital murder conviction for allegedly shooting a Houston police officer "after the Harris County District Attorney's Office acknowledged it had withheld material evidence that supported his alibi," reported Lisa Falkenberg at the Houston Chronicle. Since then, Brown has waited in jail while the DA's office ponders whether to attempt to retry him. Wrote the columnist:

Much has happened since then: a transcript showing a grand jury threatening Brown's alibi witness into changing her story, and news that the foreman of the grand jury was himself a cop - a longtime colleague of the Houston police officer Brown was accused of murdering - set off a debate about how grand jurors are selected in Texas and calls for reform. Last month, a reform bill passed unanimously out of the Texas Senate.

Meanwhile, however, Brown is "is still there. He is still waiting." Indeed, wrote Falkenberg, "Five months after the district attorney agreed to review Brown's case, her office won't say what is taking so long."

Normally, regrettably, waiting for justice is not news. But sometimes - when reporters must wait while the principals in their stories wait for justice - they dig around long enough to generate news independently, which is what's happened in this latest story.

In this instance, no news was not good news for the prosecutor in Brown's case, Craig Goodhart, who fell more directly under Falkenberg's scrutiny as a result of this unexplained delay. For good measure, she littered her column with examples of past questionable episodes involving Goodhart, who perhaps understandably would not return her phone calls. For example:

In the 1997 capital murder trial of Joe Durrett, who was accused of killing his ex-wife and her sister in Pasadena, [defense attorney Katherine] Scardino presented a credible witness who accused Goodhart of trying to manipulate medical examiner findings. In her closing arguments, Scardino told jurors that the prosecution, which had earlier included Goodhart, "has treated you like idiots." With that, Scardino won a rare acquittal in a death penalty case.

In another murder trial that same year, Goodhart was demoted temporarily after slapping a defendant on the back so hard during his closing arguments that the judge declared a mistrial.

More recently, in February, the Texas Court of Criminal Appeals cleared the way for a hearing into allegations that Harris County prosecutors coerced and blackmailed witnesses to convict Linda Carty, a British national on death row since 2002. ...

As the Chronicle's Lise Olsen reported, most of the allegations of prosecutor misconduct were leveled at Assistant District Attorney Connie Spence, but a key eyewitness in the Carty case also accused Goodhart of threats, intimidation, and coaching his testimony.

"It didn't seem to matter what my eyes had actually seen," the witness, Christopher Robinson, wrote in an affidavit. "They were always pushing me to change things around and add more."

The district attorney's office has not yet responded to the February ruling, but officials have said a county probe is ongoing.

Falkenberg quoted Scardino, who is now representing Alfred Brown, in the article's denouement:

"They don't have any evidence on Alfred Brown," Scardino says. She believes another suspect, already identified, is likely the real killer. Prosecutors may still feel very differently about that.

But Anderson's office owes us an answer, and soon. Brown deserves justice. It's been a decade. He's still waiting.

MORE: A commenter brings word of today's announcement that Falkenberg won a Pulitzer Prize for her columns about Brown's case. Congratulations on a well-deserved honor.

Bill to reduce recidivism, increase state-jail felon program participation would save state $227.7 million

The Texas House last week approved a nice little bill by Rep. Alma Allen, HB 1546, which would save the state $227.7 million over the next five years by reducing incarceration for state jail felons by a few months if they participate in programming, according the Legislative Budget Board. The savings in the first biennium would be $81 million. The proposed tweak to the law would have the state corrections agency apply "diligent participation credits" toward reduction of inmates' state jail felony sentences - up to 20 percent of the sentence - which are otherwise served day for day without possibility of parole or early release. (My colleague Sarah Pahl at the Texas Criminal Justice Coalition has been working hard on this bill.)

The bill passed 141-0 (with a couple of members recording opposition in the journal after the fact) and no opposition in committee. Its companion legislation, SB 589 by Rodriguez/Hinojosa, has already passed out of the Senate Criminal Justice Committee and is on the Intent Calendar. So the Senate could finally approve this bill pretty quickly if the votes are there.

Presently, it's possible but unlikely for state jail inmates to receive sentence reductions based on participation in educational or treatment programs. TDCJ sends judges information about program participation months after the case is over when the defendant's sentence is almost complete, creating a cumbersome and time consuming extra process for the courts for this class of low-level, mostly non-violent offenders. "The court then has to receive and process the request, make a decision about awarding credit to the inmate, and return the report to TDCJ," explained the House Research Organization analysis. Presently, judges do not reply to TDCJ in more than half of cases and in others the decision comes too late to result in a meaningful reduction in the sentence. In other words, the process now is basically dysfunctional.

State jail felons have a higher recidivism rate than other inmates leaving TDCJ and also are not under supervision when they leave, having served a day-for-day sentence. So anything which can be done to reduce recidivism for this category of offenders would be welcome; presently the state has few tools to influence their behavior beyond locking them up for a short time. A few months reduction in state jail felony sentences - already measured in months, not years - is a significant incentive for inmates to participate in programming which reduces recidivism.

These folks will soon be released regardless after spending 6-24 months (max) incarcerated in a Texas state jail felony facility. So the question isn't whether we should "keep them locked up." They'll be released soon enough, either way. The question is whether they'll have done anything productive with their time while they're inside, which this bill incentivizes and prioritizes.

The Senate this year has been all about spending caps but we've heard barely a peep from them about budget cuts. Here's a chance to save nearly a quarter billion dollars over the next five years while reducing both incarceration and recidivism among nonviolent offenders. What's not to like?

Texas House moving harm reduction measures

There were a couple of positive developments on the harm reduction front in the Texas House this week involving bills your correspondent supported in committee:

Good Samaritan bill moves to Senate
On Tuesday, the lower chamber approved HB 225 creating a defense to prosecution when someone calls 911 in response to an overdose, stays at the scene, and cooperates with police - so called "Good Samaritan" legislation. It passed by a 140-4 margin. This is an important sleeper issue, as "overdosing on medications and illicit drugs has been a bigger killer in the U.S. than car crashes or gun deaths at more than 120 per day," according to coverage of the bill from Texas Public Radio. The legislation also authorizes first responders and folks with prescriptions to use naloxone, an opiod antagonist that can save lives during emergency situations but which itself is non-addictive and causes no known side effects. The bill is now in the Senate where its companion was referred to the Criminal Justice Committee.

Unanimous committee support for needle exchange bill
After some initial confusion and a motion to reconsider, CSHB 65 authorizing privately funded and operated needle exchange pilots in several counties passed out of the County Affairs Committee yesterday on a 9-0 vote. See supportive coverage of the bill out of San Antonio and an earlier Grits analysis. HB 65 had seemingly stalled before conservatives threw their support behind language which eliminated all public funding and empowered counties and hospital districts only to authorize other organizations to operate needle exchanges - county government won't operate the programs. Volunteers with authorized needle exchanges will be exempt from prosecution under the paraphernalia laws and the bill includes some reporting requirements for participating organizations on the back end. Indiana of all places, recently suspended that state's ban on needle exchanges in response to a public health crisis.

DPS may promote surcharge amnesty by this fall, and other stories

Here are a few items which merit Grits readers' attention even if I haven't had time to adumbrate them in individual blog posts:

• The Dallas District Attorney has released a list of 192 officers who the DA's office won't sponsor as witnesses because of past mendacity or other credibility problems. 
• An error by city utility employees left prison units in Amarillo without water pressure, forcing them to bring in tanker trucks for drinking water.
• The Texas Senate this week approved a bill by Sen. John Whitmire eliminating criminal penalties for truancy.
• The Senate Transportation Committee voted to eliminate red light cameras.
• Bill Martin of the Baker Institute at Rice University says the political winds are shifting in Texas on medical marijuana. See also an account of Rep. David Simpson defending his legalize-it bill in his home district, and an article about GOP support for Rep. Joe Moody's bill creating civil penalties for low-level pot possession.
• Here's a religious view on why solitary confinement reform is necessary.
• Setting aside for a moment the vexed issue of police shootings, here's an interesting discussion of the appropriate burden police departments should bear in civil court when officers inadvertently harm someone on the job under more mundane circumstances.
• Read a compelling and troublesome reentry story out of Dallas.
• Singer John Legend was in town Thursday to visit with legislators and hold a press conference on criminal justice reform with my employers at the Texas Criminal Justice Coalition. See coverage here, here, here, and here, for example.
• Regrettably, Grits couldn't attend the press conference with Mr. Legend, spending my afternoon instead in a meeting involving indigence and the Driver Responsibility surcharge. Nothing certain yet, but DPS told us they're now considering offering another Amnesty period for the surcharge as soon as this fall. Not long ago, they were telling the Lege they had no plans for another Amnesty, so that's welcome news.

Revenge porn, online solicitation bills clear Senate despite First Amendment problems

The Texas Legislature seems intent on keeping Houston attorney Mark Bennett busy beating down unconstitutional statutes in an ongoing game of whack-a-mole. A pair of bills have passed the Texas Senate and been sent to the House which, if passed, will likely immediately fall within Bennett's crosshairs (or some other attorney challenging on First Amendment grounds).

Sen. Joan Huffman's SB 344 attempts to reinstate Texas' online solicitation of a minor statute, which the Court of Criminal Appeals unanimously struck down in 2013. But Huffman didn't adopt all the changes Bennett insists are necessary to prevent it from being attacked again on First Amendment grounds. Bennett has praised Huffman's bill for being "much closer to constitutional than the statute as it exists now." But he also laid out in the same post exactly how he'll challenge the statute as proposed and what changes would be necessary to make it constitutional, so if the House doesn't revise it they'll have nobody but themselves to blame. The companion bill, HB 861 by Tony Dale, has cleared committee and is waiting for the Calendars Committee to set it for a floor vote, at which time Huffman's bill will be substituted in and finally passed.

Meanwhile, Sen. Sylvia Garcia's "revenge porn" bill, SB 1135, also cleared the Senate this week, though its companions are not so far along. The Dallas Morning News coverage referenced none of the constitutional concerns, but the bill in its present form almost certainly won't pass First Amendment muster. Analyzing the bill earlier this week, Bennett explained that:

Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.

The bills to reinstate the improper photography statute, by contrast, don't appear to be moving.

Observing the Lege pass laws one can already tell are unconstitutional is like watching a slow moving train wreck. You can see a crash is coming well in advance but it seemingly can't be stopped. They pass these laws now then a couple of years later the courts declare them unconstitutional and the state has to figure out what to do with everybody who was convicted under invalid statutes. (Rep. Alonzo's bill on appointment of habeas counsel aims to address that topic.) We've already seen this movie and Denzel Washington doesn't show up at the end to save the train from derailment. It just flies off the tracks.

Lege poised to criminalize violations of internet terms of service contracts

I don't know if this will be the first new crime created by the Texas Legislature this session (I doubt it), but it's surely the most far reaching yet: SB 345 by Huffman, the companion to which was criticized last month by Grits, is poised to pass the Texas Legislature this week and head to the governor's desk. HB 896, its companion, has been placed on Thursday's House General State calendar. But SB 345 is over from the Senate, so it will be substituted in and finally passed if the bill is not defeated on the House floor.

The portion of the bill I don't like would criminalize violations of terms of service contracts between internet service providers and their customers, making law enforcement the enforcer of contracts for wifi the way they've problematically been in the past for payday lenders and check cashing firms. The House committee substitute altered the language slightly but it still contains the problematic provision - (b-1)(2)(B)(ii), see the text - criminalizing violations of "a contractual agreement." [N.b., the fix is either to strike (b-1)(2)(B)(ii) or change the "or" to an "and" in the previous (i).]

Using criminal law to enforce private consumer contracts amounts to corporate welfare and terrible public policy. If the Texas House doesn't amend or reject this bill - and so far it seems to be sailing through the process - then Gov. Greg Abbott should veto it.

See prior Grits' analysis of this bad idea.

UPDATE: Freshman Rep. Matt Rinaldi amended the bill on the floor to make contract violations a crime only if they involve an effort "to defraud or harm another or to alter, damage, or delete property," which will at least keep this law from being used against people logging onto somebody else's wifi.  Grits doesn't oppose laws to combat hacking, I just don't want to authorize cops to become generalized enforcers of consumer contracts. ALSO: Grits had expected the House to substitute in the companion, which was already over from the Senate, but instead they just passed HB 896, with the SB still lingering in House committee. So this bill isn't headed to the governor yet, even though versions of it have now passed both chambers.

Habeas matters: Appointing counsel, codifying Robbins

The Texas House Criminal Jurisprudence Committee today will hear a pair of bills related to habeas corpus writs that relate to topics frequently covered on this blog during the years I worked for the Innocence Project of Texas:

Habeas writs and appointed counsel
HB 1346 by Alonzo provides that indigent defendants may be appointed counsel to file a habeas corpus writ when prosecutors agree in court that a defendant who's already been sentenced "is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court."

This would reach cases like the folks put in limbo when Texas courts overturned statutes on improper photography and online solicitation of a minor, but not necessarily episodes like the Jonathon Salvador fiasco, where it's still not clear everyone entitled to relief was appointed an attorney or even notified about crime-lab misconduct that may have affected their case.

This bill doesn't go nearly as far as the statewide public defender for habeas writs suggested last year by Rick Perry's former general counsel. Indeed, it's a far cry, even, from suggestions in the "white paper" produced by the Court of Criminal Appeals Criminal Justice Integrity Unit and the Forensic Science Commission. But at least the legislation acknowledges a problem and takes tentative first steps to address it. Companion legislation, SB 662 by Rodriguez, was heard yesterday and voted favorably out of the Senate Criminal Justice Committee.

Junk science writ includes bad scientists, not just bad science
HB 3724 by Herrero is an excellent bill which would codify the results of Ex Parte Robbins interpreting Texas' new junk science writ, clarifying the debate over legislative intent at the heart of the 5-4 judicial split in that pivotal case.

In Robbins, the court authorized an inclusive reading of the statute to say the defendant was entitled to relief when the state's expert later corrected her opinion after the conviction to concur with the defense. The majority decided the statute was necessary (and was intended) not just to cover bad science but also bad scientists.

Four members of the Court of Criminal Appeals would only have allowed use of the junk science writ in areas like arson where the entire field has advanced and previously false propositions were testified to as truth in court by investigators because of their training. The majority, though, cited legislative history to say the writ should also cover cases where a forensic expert was simply wrong and later self-corrected.

Having some personal knowledge on the question, Grits agrees that the legislative history supports the majority ruling in Robbins. But the margin supporting that interpretation on the court is razor thin and almost certainly subject to future attack without legislative clarification. (Three of the five votes in the majority left the bench in January.) So it makes a lot of sense for Chairman Herrero to go ahead and say once and for all exactly what the Legislature meant so the courts don't misinterpret later.

This sort of back and forth between the Legislature and the courts has been repeatedly necessary over the last decade and a half in Texas post-conviction law. You saw it in statutes authorizing DNA testing. The CCA said DNA couldn't exonerate someone. The Lege said "yes it can, do the tests." Then prosecutors and courts would find excuses not to grant testing. So the Lege came back to strengthen the law until, eventually, prosecutors had few grounds left available to oppose DNA testing under Ch. 64 of the Code of Criminal Procedure.

Herrero's bill would similarly clarify the statute so this is no longer a point of contention for the court, preventing tremendous uncertainty and innumerable future appellate controversies. From the perspective of someone wrongfully convicted, whether they were incarcerated because of "bad science" or merely a "bad scientist" is a distinction without a difference.

Begging for crumbs on the Driver Responsibility surcharge

Here's what's bugging Grits today: This morning I got up first thing to testify on behalf of the Texas Criminal Justice Coalition in favor of a good bill tweaking procedures for indigent defendants to have their Driver Responsibility surcharges waived by the courts. The committee was receptive and Chairman Larry Phillips even indicated he wanted to pursue further relief to the extent it might fit within the caption of the bill, suggesting a stakeholders meeting that he said he'd attend. Despite the chairman's much-appreciated interest, however, it's hard to avoid the feeling that we're begging for crumbs and being roundly ignored on the issue by the folks who matter most: Legislative budget writers.

I know Judge Edna Staudt feels the same way. The Williamson County JP who's been one of the fiercest opponents of the surcharge testified "on" rather than "for" the reform bill because she didn't think it did enough. Personally, I'm less inclined to allow the perfect to become the enemy of the good. But I understand the impulse to reject less-than-half-a-loaf measures.

Everyone who cares has been told at the Texas Legislature that abolition of the Driver Responsibility surcharge is off the table in 2015 because leadership "can't find the money." To get rid of the program, they'd have to replace the money that goes to the general fund as well as cover the amount that goes to trauma hospitals. But even though there's lots of extra money available, nobody wants to spend it on this.

For the next biennium it would take up to $230 million to abolish the surcharge entirely, if you accept (and we must) this brand of budgetary thinking. For context, keep in mind that $230 million is just a tad more than 1/10 of one percent of the $209.8 billion all-funds state budget.

By contrast, we've been told to expect $4.6 billion in tax cuts, or twenty times what it would take to eliminate the Driver Responsibility Program. In other words, the Lege could eliminate the surcharge entirely and still give 95% of the tax cuts being proposed! Further, as R.G. Ratcliffe reported, "The proposed House budget leaves $2 billion unspent from general revenue and $11.1 billion from the Rainy Day Fund. The budget also includes $4 billion in retained dedicated funds that can be used to certify the budget as balanced." And that doesn't even get to hundreds of millions in new border security spending.

Combining unspent funds, "rainy day" funds, and unspent "dedicated" funds, the House budget essentially leaves $17 billion in tax dollars lying around in the couch cushions, with the Senate budget differing more in details than totals.

So what are we to believe when we see those numbers and yet legislators simultaneously plead poverty when it comes to abolishing the surcharge? "We couldn't find the money." It's just not credible. Yes, $230 million is a lot of cash. But Texas is a large, wealthy state with an enormous budget surplus. We can afford to pay for trauma hospitals in other ways.

If legislators cared as much about the 2 million Texans who've lost their licenses under the surcharge as they do the beneficiaries of the tax cuts, this program would already be history. It's a question of values and priorities, at this point, not really a lack of resources.

RELATED: Bills chip away at Driver Responsibility surcharge catastrophe.

UPDATE: The companion legislation to Sylvester Turner bill I was testifying for, SB 1056 by Hinojosa, passed out of the Senate Transportation Committee on Monday and has been placed on Thursday's Intent Calendar.

Body cams, raise-the-age, overdose prevention, and other weekend links

Grits was ridiculously busy last week, so blogging was light. Here are several items which merit readers' attention even if they didn't make it into independent posts.

• An editorial from the SA Express-News wondered whether data on the effectiveness (or lack thereof) of the DPS border surge are "being purposely withheld because they will hurt the case for this border surge?" Grits wonders, "Surely that's a rhetorical question?" My bet: Those details will be released as soon as it's too late for them to affect the Legislature's border-related budget debates. R.G. Ratcliffe at Burka Blog has been all over this issue lately.
• The Texas Observer had a good article on the status of legislation related to body cameras. Here's more on the subject from the Texas Tribune, the Dallas Observer, the Dallas Morning News, and the Austin Statesman. 
• The editorial board at the Waco Tribune-Herald made the case for raising the age of criminal culpability from 17 to 18.
• "The CDC estimates that 120 Americans die from drug overdoses every day," according to an NPR story on Friday. The coverage was timely with HB 225 by Guillen up for a vote on the House floor on Monday, a bill authorizing naloxone use in response to opiate overdoses and creating a defense for the person who called 911. The bill passed out of committee with no public opposition. See prior Grits coverage and the House Research Organization report (pdf, p. 21) on the bill.
• This is a decent column in the Fort Worth Star-Telegram on why ignition interlocks shouldn't be required of every driver convicted of DWI. I agree with that position, but the American Beverage Institute isn't exactly the best messenger.
• Philip Hilder, an attorney and member of Houston's toothless Independent Police Oversight Board, has a guest column arguing that Houston PD should reveal details about its use of Stingrays and body cameras.
• Now that Texas prison weddings have resumed, here's a story about one of the few people approved so far to officiate them.
• There's been little detailed coverage of the recent hunger strike at a private immigration detention facility in Karnes County, but Candice Bernd at Truthout has a lengthy account.
• Here's a link to the end-of-session deadlines for bills to pass the 84th Texas Legislature. April is the Month of Hope under the pink dome when all things are still possible. Come May, bills begin to die like infantrymen at Gettysburg.

AT&T: Historical cell-phone location data provides 'detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines'

At a hearing Wednesday evening on HB 2263 by Rep. Bryan Hughes requiring warrants for the government to access personal location data from cell phone companies, cops from Dallas and Houston testified that historical information should be subject to a lower standard than a Fourth Amendment probable cause warrant because it's less accurate than real-time tracking. The argument is that you can only tell which cell tower someone connected to, further narrowed by which third of the tower's range the signal came through. They depicted the scope of a cell tower's expanse as up to ten miles, and in rural areas I suppose that could be true. But these were Dallas and Houston cops and, as a factual matter, coming from those urban jurisdictions that's some pretty weak tea.

Here's how AT&T described the accuracy of historical cell phone location data in an amicus brief on the issue in November 2014:

The precision of this location information varies according to the array of the towers and technology employed. As the density of the cell towers increases (decreasing the area covered by any particular tower), the precision of the CSLI increases correspondingly. Rural or sparsely populated areas generally have fewer cell towers, each serving a larger territory. In more densely populated areas, towers are much closer together and serve smaller areas, generating more specific location information. As customers demand more bandwidth to support smartphones, video services, and other high-volume Internet access, service providers are increasing the density of cell towers, further shrinking the size of particular cells. Service providers are also increasingly boosting their network coverage through small cells known as “microcells” or “femtocells” that may cover an area as small as a single floor of a building or an individual house.

Cellular communications technology may also generate other, more precise forms of location information. For example, some mobile devices, such as smartphones, are equipped with GPS technology which determines the device’s exact location based on signals received by the phone from a network of satellites.  In addition, because mobile devices are often in contact with more than one cell tower at a time, it is often possible to  locate the device through triangulation – i.e., determining the point of overlap among the areas covered by each of the multiple towers within range of a particular device. ...

CSLI at times may provide more sensitive and extensive personal information than the car tracking information at issue in Jones [ed. note: a SCOTUS decision declaring use of GPS trackers is a search]. Users typically keep their mobile devices with them during the entire day, potentially providing a much more extensive and continuous record of an individual’s movements and living patterns than that provided by tracking a vehicle; CSLI, therefore, is not limited to the largely public road system or to when the device user is in a vehicle. That difference, in turn, may enable officials to use historical and prospective CSLI to construct a more detailed and intimate portrayal of the targeted person’s daily habits and work and leisure routines – including activities related to the home.

If "historical data is inaccurate" is the best argument they've got (all law enforcement witnesses granted that real-time tracking should require a warrant), this bill with its 97 House authors ought to do fine!

The whole AT&T brief (pdf) is quite a remarkable document for those interested in the topic. It staked out the corporate arguments in a systematic and compelling way for installing a probable-cause warrant requirement for government to access this detailed personal information.

MORE: It's worth noting both AT&T and Verizon registered in favor of Hughes' bill at the hearing.

'Treat it like tomatoes' ... an ode for David Simpson

In honor of Longview state Rep. David Simpson and his bill to legalize marijuana for adults, treating it like tomatoes or jalapeños ...

Treat it like tomatoes

Treat it like tomatoes
Mr. Simpson said
And all around the capitol
Wags laughed and shook their heads

Stoner jokes filled every room
Wry quips at his expense
And though he took it with aplomb
Some thought he’d lost his sense

But I’m here today to tell you
Simpson’s crazy like a fox
And small minds laugh too quickly
When men think outside the box

‘Cause here’s the disturbing thing
That keeps the jokers up at night:
The troubling deep-down knowledge
That David Simpson’s right

Not about everything, it’s true
Yes, God made marijuana, too
But He also made rattlesnake venom
And nobody wants any of that in ‘em

Still, when you get down to it
Pot is safer than alcohol
And society regulates booze
Without all the hype and vitriol

Without armed crooks controlling the cash
Without using residential housing to stash
Drugs guns and money from robbers who crash
And without the corruption and violence and graft

Without spending millions on jails and courts
For defendants who no one fears
Without funding murderous Mexican thugs
Without so much heartache and so many tears

Texas spends a billion border dollars to pretend to stop cartels
But this bill slashes their revenue
And does more to shut them down than a line
Of troopers and guardsmen could ever do

In Colorado they “tax and regulate”
But conservatives don’t like either one
So this bill gets rid of both and
Lets the free market get it done

If you’re going to legalize
Then make the taxes low
So beer drinkers will switch to pot
And Texas farmers have incentive to grow

For if it’s true (and it is) that pot
Is safer than alcohol
Then whenever a drinker switches to smoke
It’s measurably safer for all

So tell me, friends, who’s the real joke?
Supporters of the status quo, or
The guy who wants to solve the problem
By letting Texans toke?

Texas House committee debates pot policy

Grits just finished a long night in a House Criminal Jurisprudence Committee hearing on drug sentencing policy (among other things), culminating in what Chairmen Harold Dutton and Todd Hunter took to calling a "joint" session hearing several marijuana bills simultaneously. Rep. Joe Moody's HB 507 creating a civil penalty for marijuana is the bill most likely to pass and the one supported by the mainstream marijuana lobby (there's three words you never thought you'd see together!).

But nearly all the drama this evening centered around Rep. David Simpson's HB 2165 which would end marijuana prohibition for Texans 21 and over. I was pleased and proud that Ana Correa, Executive Director of the Texas Criminal Justice Coalition, for whom your correspondent is working as a consultant, asked me to testify in favor of Simpson's bill. I told the committee that, although nobody expects the bill to pass, when a legislator stands up to speak the truth on these topics, we'd stand with him. Polling shows the public is way ahead of the politicians on this issue.

Moody has a great bill for which your correspondent also testified. HB 507 will keep 65-70,000 people per year from being arrested and taken to jail. Instead, they'd receive a ticket that's technically a civil, not a criminal offense. Why is that important? Because there are mandatory federal collateral consequences that come with a state drug conviction (starting with losing one's driver's license and eligibility for student loans), so making it a civil penalty provides tremendous relief, mitigating long-term harms from an episode of youthful misbehavior. That would be huge.

But like I said, all the drama at the hearing came from Simpson's bill. It's amazing how the medical and legalize-it memes have morphed, and Simpson promotes that joining more than anybody. For many years, I've resisted that trend, hoping to segregate "criminal justice" from "medical" issues in public policy arguments. But it's no longer possible to stage a public discussion of pot policy of any magnitude in Texas that distinguishes the two, whatever one's personal, mental categorizations.

Rep. David Simpson's HB 2165, the legalize-it bill that stole Rep. Moody's rightful spotlight this evening wasn't ever a serious proposal in the sense that it had a snowball's chance of passing in 2015. Tonight's hearing didn't change that. But in another sense, it's more serious than any other marijuana policy bill filed this session because it dares to comment on the Emperor's naked visage.

I'm sure there will be tons of MSM coverage of the event tomorrow, and I'll update this post with links en la mañana. 

MORE: Less coverage than I expected, though I enjoyed the next-day Dallas News headline, "Texas Young Republicans support decriminalizing marijuana." Other, less sanguine MSM coverage from the hearing included:

• Houston Chronicle
• Dallas Observer
• Drug War Chronicle
• CBS-DFW Ch. 11

Nearly 2/3 of Texas House supports warrants for cell phone location data

When state Rep. Bryan Hughes laid out HB 2663 requiring the government to obtain a warrant to get location data from cell phone carriers in the House Criminal Jurisprudence Committee tonight, he announced the bill had 97 joint and coauthors! Congrats to Hughes and the volunteer team at the Texas Electronic Privacy Coalition who helped put together this broad, bipartisan coalition.

This is what less government looks like: Big budget savings from reduced criminal penalties

Bills reducing criminal penalties would save big bucks, according to state estimates.  As the House Criminal Jurisprudence Committee prepares to hear several bills reducing criminal penalties today, the Legislative Budget Board issued fiscal notes estimating cost savings to the state:

• HB 254 by Thompson reducing penalties for possession of less than a gram of a controlled substance: $105.2 million.
• HB 3326 by Thompson reducing penalties for low-level drug possession and prostitution along with adjusting theft thresholds for inflation: $163.8 million.
• HB 2165 by Simpson legalizing pot and treating it like tomatoes: $71.2 million to the state, much more to counties and cities.
• HB 507 by Moody reducing possession of less than an ounce of pot from a Class B misdemeanor to a civil penalty: $1.9 million, plus a net positive to counties.

To fantasize for a moment, make Grits Philosopher King and here's my suggestion: Pass HB 3326 and HB 2165, save $235 million, and use the savings to eliminate the Driver Responsibility Program. That almost certainly won't happen, but it's a function of a failure of political will, not because it's impossible to find cuts that could pay for eliminating a failed program. C'est la vie.

N.b., the fiscal note on Simpson's legalize-it bill only includes cost reductions but no sales tax revenues from the inevitable increased economic activity which would come from opening up a new domestic agricultural market. The real benefit to the state budget would be much higher.

There's really quite an impressive array of bills suggesting reduced criminal penalties (and several other topics, including warrants for the government to access cell-phone location data) on today's House Criminal Jurisprudence Committee agenda, check them out.

Bills chip away at Driver Responsibility surcharge catastrophe

Grits is swamped so posting will be light for a couple of days, but I wanted to jump on the blog to mention two bills your correspondent is supporting this week related to the ignominious Driver Responsibility surcharge.

First, yesterday in the Texas House Homeland Security and Public Safety Committee, Rep. Senfronia Thompson offered up HB 2671, an excellent bill which would leave the surcharge intact (since legislative budget writers can't seem to pull themselves away from the money teat) and instead eliminate drivers license suspensions as an enforcement mechanism. My testimony mostly batted cleanup and Rebecca Bernhardt from the Texas Fair Defense Project performed the heavy hitting. See the hearing video here; it's the second bill up at the 3:35 mark.) She did a great job and rather than iterate her points here, I'll encourage those interested to watch the short but informative hearing.

Regular readers know the drivers license suspension aspect of the surcharge is a huge problem: Around 2 million people out of Texas' 15+ million drivers have had their licenses revoked over the surcharge, with 1.3 million or so continuing to drive without a license. Indeed, when the Justice Department initially refused to approve Texas' voter ID statute, the main reason was the number of people who had valid ID when they registered to vote but did not now. Most of those folks lost their licenses because of nonpayment of the surcharge.

John Hawkins of the Texas Hospital Association testified against the bill because, he said, 75 percent of surcharge payments come after license revocation, which is a shocking figure, if true. That's further evidence that this program has utterly and profoundly failed at every goal but revenue collection, and even on that it has far underperformed expectations.

This committee has significantly turned over, including a new chair, Larry Phillips, since they studied the issue in an interim charge last year. But I was pleased to learn that several of them already understood the surcharge is a broken system and a significant problem. If we can't abolish the surcharge outright, HB 2671 would be a big get.

Second, this morning I'm headed to an 8 a.m. hearing at the Senate Transportation Committee which will hear Sen. Juan Hinojosa's SB 1056, which would apply the indigence finding for appointed counsel to what's presently a separate, post-conviction indigence finding to waive the surcharge, meaning that if you're poor enough to have a lawyer appointed, your surcharges would be waived.

The Lege in years past approved two versions of indigence programs for the surcharge: One created by rule at the Department of Public Safety and one set in the courts which is less widely accessed by defendants. Conflating the two indigence determinations, as Hinojosa's bill would do, would contribute to judicial economy (why make two separate indigence determinations in the same case?) and allow more indigent defendants to have their surcharges waived.

Who knows what chances these bills have of passage? It'll be a week or more before we know if they'll even make it out of committee. But at least the legislation is helping keep the issue on the state agenda after Rep. Larry Gonzales decided not to seek abolition of the program this year. His reason was that budget writers couldn't find $230 million to fill the revenue gap, despite a House budget that leaves $17 billion unspent and drops a cool half billion on superfluous border security. Politics is the art of the possible, it's been said, and Gonzales determined abolition was not. (Sen. Rodney Ellis filed SB 93 to abolish the surcharge, but it's yet to receive a hearing.) Barring abolition, it's only possible to chip away at the problem.

Hinojosa's and Thompson's bills would help folks going forward but not those already mired in unpaid surcharges. As I told the House committee yesterday and will iterate in the Senate this morning, on one of these bills (or some other related piece of legislation), the Lege should tack on an amendment requiring the Department of Public Safety to hold another Amnesty event, and this time to advertise it more heavily so more people will learn about it and access it. Even if the surcharge were abolished tomorrow, there'd be a lot of cleanup work to undo the monumental damage this misbegotten program has caused.

TX Lege committee agendas packed with criminal justice reform bills

There's really kind of an amazing array of criminal-justice reform bills and a host of other legislation related to the topics covered on this blog up in committee this week at the Texas Legislature. I've no time to adumbrate them all (perhaps a few, as the week progresses), but for now just check out these agendas, especially CrimJur in the House which may well end up being an all-nighter:

• Senate Criminal Justice - Tuesday. Highlights: expansion of hazing offense, post-conviction DNA testing, civil commitment of sex offenders, licensing of forensic analysts, plus repeats on body cameras and asset forfeiture.
• House Homeland Security - Tuesday. Highlights: Dueling bills on DPS collection of driver fingerprints, data retention for automated license plate readers.
• House Criminal Jurisprudence - Wednesday. Highlights: requiring warrants for cell-phone location data, penalty reductions for various nonviolent offenses (including civil penalties for pot), and for the attorneys in the crowd, there's a bill eliminating "the Rule" barring witnesses from hearing other witnesses testimony at trial, but only if they're detectives.
• House Juvenile Justice and Family Issues - Wednesday.  Nothing earth shattering but an array of interesting topics.
• House Corrections - Thursday. Probation, nondisclosure, and mental health diversion.
• House Emerging Law Enforcement Issues - Thursday. Highlights: body cameras, recording custodial interrogations, regulating automated license plate readers.

There is lots more stuff on those packed agendas so give them a look. What a week!

On 'Cops in Lab Coats,' the pitfalls of basing police practices on Jonah Hill, Wallace Jefferson for SCOTUS(?) and other stories

Before the day's family festivities begin, here are a few items which deserve Grits readers' attention but haven't made it into independent posts:

The case for raising the age of criminal culpability based on Pearland ISD cops mimicking Jonah Hill movies
Dan Solomon at Texas Monthly described an 8-month undercover sting at Pearland ISD and the episode's idiotic if inescapable similarities to the 21 Jump Street franchise, comparisons to which consumed national media coverage about the event. Playing the killjoy, Solomon framed the issue in terms of Texas' "raise the age" debate, declaring: "It’s frightening that a high school junior who hasn’t committed a violent crime (none of the charges in the sting are for violent crimes), might find himself or herself facing time in an adult facility designed to imprison violent criminals. And that prospect is only thrown into relief when we’re all laughing about Channing Tatum and Jonah Hill."

No room at the inn for civil commitment offenders
As the state struggles to find housing for civilly committed sex offenders, the Texas Senate Criminal Justice Committee prepares to hear legislation on Tuesday, elaborated in detail by guest blogger Nancy Bunin in this Grits post, to revamp the program. Jefferson County Commissioners blocked using a facility in Beaumont. Even the private prison companies don't want them. The Geo Group "said in a statement that its mission 'no longer aligns' with housing" this cohort.

Casey: Wallace Jefferson for SCOTUS
Long-time columnist Rick Casey poked his head up out of retirement to suggest a potential dark horse nominee for US Supreme Court, should there be another opening: Former Texas Supreme Court Chief Justice Wallace Jefferson, who Casey rightly speculated is somebody who could actually be confirmed by the Republican-controlled US Senate. Rick Perry has already named Jefferson twice to Texas' high civil court, first as a Texas Supreme Court Justice, then as its Chief Justice. So it's intriguing to imagine that Barack Obama might consider a high-profile Rick Perry appointee for SCOTUS. Indeed, while a longshot, it's not entirely outside the realm of possibility that Jefferson could ascend to the court with either man as president. Where do I get my "Wallace Jefferson for SCOTUS" bumper sticker?

Justice Kennedy: Corrections system misunderstood, broken
Speaking of SCOTUS, when asked this week about prison overcrowding while testifying before a congressional budget subcommittee, Justice Anthony Kennedy took the opportunity to expound on prison policy, declaring, “The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government.” “In many respects, I think it’s broken,” lamented the 78-year old Reagan appointee.

'Cops in Lab Coats'
According to this press release, "University of Houston Law Center (UHLC) Professor Sandra Guerra Thompson argues in her released new book. 'Cops in Lab Coats, Curbing Wrongful Convictions through Independent Forensic Laboratories' is published by Carolina Academic Press."

Of glitter bombs and bathroom blues
The Texas Tribune provides balanced coverage of an unbalanced issue: Legislation to criminalize using the wrong restroom, honing in on Rep. Debbie Riddle's legislation highlighted by Grits back in February. The story doesn't mention it, but there's little doubt these bills were the proximate cause of the representatives' district office receiving a "glitter bomb" last month. Her bills have been referred to the State Affairs Committee which is chaired by Byron Cook, a notably open minded Republican when it comes to civil rights for gay people. Grits continues to believe that, if Riddle's bill criminalizing business owners who let someone use the "wrong" restroom were to pass, it would foster the unintended but entirely predictable consequence of rapidly promoting unisex bathrooms to avoid civil or criminal liability. This one's a "be careful what you ask for" moment. I'm not sure everybody has thought this through.

More arrests over faked police training
Arrests warrants for the Hill County Sheriff and three of his employees were issued recently alleging they falsified training records based on an investigation by the Texas Commission on Law Enforcement, adding to a growing list. Grits' belief is that these cases argue for the sort of independent prosecution of police misconduct (by the AG or a special prosecutor) discussed in Reps. Dutton's and Reynold's bills recently at the Lege. Local prosecutors have strong disincentives not to prosecute cases where faked training may endanger the credentials of large numbers of officers in a department - the same folks who are witnesses in all their cases and who they work with every day. In cases like these, it makes more sense to separate that function from local politics.

New Austin PD policy takes secrecy about police misconduct to next level

The Austin Police Department has decided to make secret more police disciplinary cases by ordering training-only punishments instead of suspensions, which under law make a summary of the event a public record - the only window into police misconduct the public has in cities that operate under the state civil service code for police and firefighters (Ch. 143 of the Local Government Code).

The problem is LGC 143.089(g), a secrecy provision added to state law decades after most cities (today, a few more than 70) adopted the civil service code in the the '40s and '50s. Of major Texas cities, Dallas and El Paso never voted to adopt Ch. 143, but many other large and mid-sized jurisdictions did back in the day.

In 1989, at the behest of the big Texas police unions, the then-Democratic controlled Legislature changed the civil service law to create a secret personnel file, exempting it from what was then called the Texas Open Records Act. The result created an odd bifurcation where these 70 or so departments operated under different transparency rules from the other 2,500+ law enforcement agencies in the state.

For example, say an Austin PD officer and a Travis County Sheriff's deputy are each disciplined and punished with a one-day suspension. At Austin PD, where LGC 143.089(g) applies, the public would get to see at most a curt one or two paragraph summation of the offense and punishment with little detail or elaboration. There are exceptions, but that's the typical case. By contrast, at the Travis County Sheriff and other jurisdictions whose personnel files are not covered by Ch. 143, essentially the whole investigative file will be available after the disciplinary process is complete.

The difference from a transparency perspective is night and day.

Change the above example so that the punishment is retraining, and nothing at all - not a word nor syllable - is available about the incident from APD. At the Travis County Sheriff, by contrast, virtually everything would be public ("virtually" because there are other privacy, employment, or attorney-client privilege exceptions which may apply to pieces of it).

So APD wants to take suspension-level misconduct - the only type of police misconduct about which even a scintilla of public information is available - and redefine the punishment so that everything is secret. Thanks for nothing.

Why, you might ask, can't Austin PD suspend an officer for a day and require retraining? The only good reason I can think of is, if they did it that way they couldn't place records about the misconduct in the closed personnel file.

Make me Philosopher King and I'd say let the chief punish his officers any way he wants short of flogging, but the Lege should amend Ch. 143 to strike 143.089(g) so that all of it is a public record, just like at the overwhelming majority of Texas law enforcement agencies. It won't happen this session, but it needs to happen.

'Raise the Age' bills heard in Texas House

The Texas House Juvenile Justice and Family Matters Committee yesterday heard three bills proposing to raise the age at which youth can be criminally charged as adults from 17 to 18 years old. See:

• Coverage of the hearing from the Associated Press
• An editorial in favor from the President of the Texas Association of Business, and
• A pessimistic assessment of the bill's chances in Chairman John Whitmire's Senate Criminal Justice Committee
• MORE: Hearing coverage from the Texas Observer.

To watch the hearing, go here; it begins around the 18-minute mark.

RELATED: Pragmatic arguments the strongest for 'raise the age' proposal

Ring the bell for property threshold adjustments

Sometimes, an unrung bell resonates the loudest.

Such was the case last night when the Texas Senate Criminal Justice Committee heard state Sen. Konni Burton's SB 393, which would adjust for inflation the main theft categories delineating punishment ranges in Texas, updating the code for the first time since 1993. Your correspondent was there to (briefly) testify in favor of the bill on behalf of the Texas Criminal Justice Coalition, but the legislation didn't need much help.

Remarkably, particularly given the contentious hearing early over changes to truancy statutes, there was no opposition to this bill - none, zilch, zero. No cops, no prosecutors, no probation officials, nobody. Just crickets chirping. Even the police unions stayed off. Despite the state's "tough on crime" reputation, not one citizen out of 25 million plus thought to come to the capitol to oppose this bill. Who'da thought?

Shannon Edmonds from the state prosecutors association testified "on" the bill, as is his wont, warning the committee against indexing the thresholds so they automatically update every year, which Sen. Charles Perry had passingly suggested. He said it would create too much confusion, particularly in older cases if the thresholds change through the course of the statute of limitations.

I'm more sanguine than Shannon about Texas prosecutors' ability to adjust to indexed property thresholds. Think of how many things hinge on Federal Poverty Levels, which are updated every year. Indexing property thresholds would be similar - the number would change annually and everybody would use the new one but also have a list of what they were from the previous years.

Regardless, that's not the bill on the table, which envisions only a one-time increase to account for inflation since 1993. The threshold from a Class A misdemeanor to a state jail felony would rise from $1,500 to $2,500.

Sen. Joan Huffman entertained concern that the $2,500 threshold may be too high (though it's almost precisely where the inflation adjustment lands), but she voted for the bill in the end. Marc Levin of the Texas Public Policy Foundation attempted to reassure her by pointing out the enhancements for repeat misdemeanor offenders were still in place; this bill only changes the amounts.

This bill makes so much sense: The last time the Lege consciously considered what the thresholds should be was 1993 in response to recommendations from a statewide Punishment Standards Commission. Then-rookie Criminal Justice Committee Chairman John Whitmire shepherded through the rewrite of the Penal Code, which as Edmonds pointed out would later be called a national model.

But over time, the sort of inflationary creep this bill attempts to mitigate expands the scope of government and reduces the liberty of citizens sans any additional legislative mandate. Without adjusting for inflation, as I told the committee, every year Texans can become felons for stealing less and less stuff. That's not fair from an equal protection perspective and it's increasingly expensive: Half of state jail felons are incarcerated for property offenses, said Sen. Burton when laying out the bill. The fiscal note for the bill predicted a positive impact on the budget but declined to estimate an amount.

Though Burton's a freshman and wasn't on the committee last year, this legislation stems from a recommendation by the committee in their interim report. In 2013, Rep. James White carried similar legislation in the House, with Rep. Ruth Jones-McLendon filing a related bill in 2011. This would be a big get for a rookie if it makes it through.

Burton's SB 393 has the greatest potential for reducing state level incarceration pressures of any bill heard so far this session - perhaps enough, even, for Texas to close more state jail facilities. And the silence of the opposition may be the legislation's most ringing endorsement.

Senate panel would decrimnalize truancy, depopulate Texas youth prisons

Texas Senate Criminal Justice Committee Chairman John Whitmire last night passed a pair of bills out of committee - decriminalizing truancy and further downsizing of Texas youth prisons - which between them would significantly alter Texas' juvenile justice system for the better.

Despite the bill's blessing from Texas Supreme Court Chief Justice Nathan Hecht and a host of supporters, the debate over decriminalizing truancy was more contentious than the eventual, inevitable 6-0 vote might indicate. Not many people confront Chairman Whitmire as aggressively as some of the folks from local truancy programs who came to oppose the bill, and it's been a while since I've seen the chairman as fully in attack mode as when he confronted a Tarrant County vendor who'd been ginning up opposition.

And in truth, I could see why he was mad. There was a great deal of misinformation in the opposition testimony by folks who thought the bill would take away any leverage from the courts, which really wasn't the case. Reported the Austin Statesman's Julie Chang:

Senate Bill 106, filed by Sen. John Whitmire, D-Houston, would make major overhauls to current truancy law, including referring students to a civil court that hears truancy cases rather than a criminal court. ...

According to the Austin-based nonprofit advocacy group Texas Appleseed, 115,000 truancy cases were filed in adult criminal court in 2013 and Texas prosecutes more than twice the number of truancy cases as all other states combined. Most of those states send cases to civil juvenile courts.

Whitmire’s bill would offer students a behavior improvement plan in cases where they face expulsion by a court and would reduce fines to $100 for a first offense, which would increase $100 for subsequent offenses up to a maximum $500.

The predominant dynamic at the hearing involved bill critics exhorting all the wonderful things they do for the families of truant children and how grateful their charges are for the services they get as a result of being ticketed and fined. Chairman Whitmire would respond by insisting that they tell him what portion of the bill would prevent them from doing all those wonderful things - the answer, of course, was always "none," if they answered at all. Rather, their fear was decriminalization would take away a "hammer" to force families to comply with their dicta. They distrusted that Whitmire's civil fines would be taken as seriously. As this metaphor played out during the debate, the old saying kept arising in my head, "If the only tool you have is a hammer, everything looks like a nail."

Regardless, all the weeping and gnashing of teeth by opponents amounted to a tempest in a teapot, with the vote's outcome predetermined before the meeting ever convened. The bill was voted out unanimously.

Significantly, Whitmire's bill comes as the US Justice Department announced an investigation this week into truancy and juvenile courts in Dallas County, reported the Dallas News' Robert Wilonsky:

The U.S. Department of Justice says in a release that its investigation “will focus on whether the courts provide constitutionally required due process to all children charged with the criminal offense of failure to attend school, including whether those protections apply to children whom the county charges with contempt. The investigation will also focus on whether the courts provide meaningful access to the judicial process for children with disabilities.” ...

According to the Justice Department, Dallas County “prosecuted approximately 20,000 failure to attend school cases in 2014.”

In a statement released Tuesday, Attorney General Eric Holder said, “The Constitution’s guarantee of due process applies to every individual, regardless of age or disability. This investigation continues the Justice Department’s focus on identifying and eliminating entryways to the school-to-prison pipeline, and illustrates the potential of federal civil rights law to protect the rights of vulnerable children facing life-altering circumstances. As the investigation moves forward, the Department of Justice will work to ensure that actions of Dallas County’s courts are appropriate; that our constitutional protections are respected; and that the children of Dallas County can receive the meaningful access to justice that all Americans deserve.”

See a related News editorial. That development certainly bolsters the case for Whitmire's bill, which now heads to the full Senate.

In other juvenile justice news, the same committee yesterday approved a major reorganization of Texas' juvenile justice system, as reported by Mike Ward at the Houston Chronicle:

Under Senate Bill 1630, up to 80 percent of juvenile offenders who are now sent to state lockups could instead be held in local treatment programs - a move that could significantly downsize the state's long-troubled youth corrections system and save taxpayers perhaps as much as $40 million.

"This is the next huge step to keep the youth closer to their communities in programs that work, instead of state programs that have not," said state Sen. John Whitmire, D-Houston, the author of the measure. "We'll not only have better results, but this will save money."

Officials and justice experts testified during a public hearing the plan, if approved, would mark the most significant change in Texas' juvenile justice system in years - a change recommended seven years ago, when the number of youths in state lockups was cut by more than half in favor of local treatment and rehabilitation programs. ...

Whitmire said officials have identified 35 regional centers across Texas that could hold offenders under the new plan. More than 800 of the approximately 1,000 offenders currently in state lockups could be housed in those centers, meaning the state could sharply shrink its system.

Under the bill, juvenile court judges would be encouraged to send youths to those regional centers rather than state facilities - with the idea that by 2017, only those serving sentences for the most serious crimes still would go to state lockups.

Whitmire said Senate budget writers refocused the agency's two-year budget to fund more local rehabilitation and treatment programs and to hire more parole officers.

This proposal sounds a lot closer to the original expert recommendations the Lege received eight years ago in the wake of the TYC sex scandals.

To go from nearly 5,000 in youth prisons a decade ago to fewer than 200, potentially, if this bill attains its stated goal, would be a remarkable achievement, particularly if juvenile crime continues to trend downward, as it did during all the while youth prison populations plummeted since 2007.