Friday, May 22, 2015

Still a chance for surcharge reform bills in home stretch

With not much time to spare, CSSB 93, which in its revised form would make Texas DPS stop suspending driver licenses for unpaid Driver Responsibility surcharges, passed the senate yesterday on a 28-3 vote. See MSM coverage here, here, and here. This would be the most significant Driver Responsibility reform which has so far passed either chamber this year. The bill has been received from the senate and would need a referral today and a near-instant hearing in the House and a lot of luck to make it all the way through the process.

Meanwhile, SB 1056, which passed this week out of the House Homeland Security and Public Safety Committee, includes some of the reformist tweaks to the surcharge system which had been in bills which died last week on the House calendar. The version going to the floor, Chairman Larry Phillips proudly conveyed to me, includes an increase of the indigence thresholds for having DPS waive surcharges by rule from 125 percent of poverty to 175 percent. Of the two, this more modest proposal faces much better odds of passage, mainly because of the amount of time left.

Neither option is as good as abolition, but as my Dad likes to say, both are better than a sharp stick in the eye. For a moment last week I feared we may not see even incremental reform legislation on surcharges. Now there appears to be a decent chance.

Thursday, May 21, 2015

Dutton-Whitmire bill logjam breaking up: Truancy decrim, juvenile regionalization and grand-jury reform all still have time to pass

The Texas House may get one final chance to vote on Sen. John Whitmire's legislation - now amended onto a passing house bill - to eliminate the state's pick-a-pal grand jury system.

On Tuesday in the Senate Criminal Justice Committee, Chairman John Whitmire substituted his "consensus" senate version of grand jury reform to HB 2150 by Rep. Carol Alvarado, stripping out the version Rep. Harold Dutton amended on the House floor, including the brackets added by Rep. Ed Thompson to limit the bill to counties with more than 500,000 population. He also left on some additional minor changes that were in Alvarado's pre-amended bill.

The Senate earlier passed Whitmire's grand jury reform bill 31-0. HB 2150, added  to the committee agenda at the last minute via a suspension of the rules, also received a unanimous vote in committee and, having been previously agreed to in the upper chamber, should move out of the senate fairly quickly.

Sen. Whitmire also amended his legislation decriminalizing truancy to a bill by Rep. James White. The chairman said White was strongly supportive of decriminalizing truancy, legislation which never received a vote in the House Juvenile Justice and Family Matters Committee, which Rep. Dutton chairs.

Both bills face concurrence votes when they get back to the House, which will essentially be that chamber's up or down vote on Whitmire's legislation.

In related news, on Tuesday, the Houston Chronicle's Mike Ward reported that Whitmire's juvenile regionalization legislation, which would result in at least one TJJD unit closing, was near death's door. "By Tuesday afternoon, supporters of the Senate bill were pushing for a hearing in the House to get the bill moving again — and were looking for a House bill in the Senate that could be amended to make the changes contemplated in Whitmire's bill." Then on Wednesday, Chairman Dutton finally obliged reform supporters and voted SB 1630 unanimously out of his committee. It still has time to pass if the committee report doesn't lollygag on its way to Calendars.

Grits is relieved to see the stalemate subsiding, better late than never. All these issues are too big and important to let inter-chamber rivalries prevent their passage.

Monday, May 18, 2015

Ted Cruz: Rein in prosecutor power, lower "draconian" mandatory minimums

Several Texans are featured in a new book by the Brennan Center, "Solutions: American Leaders Speak Out on Criminal Justice."

Regular readers are used to TPPF's Marc Levin's focus on outcome-based supervision policies, as well as Rick Perry taking credit for probation policies he first vetoed then grudgingly accepted. A graph available elsewhere on the Brennan Center site shows why voters might rightly be dubious of Perry's plea to follow the "Texas Model." He's presided over a modest decline in incarceration rates, but Texas remains the nation's incarceration capital, warehousing more inmates than any other state, including much larger California.

We've heard from Levin and Perry before. But Ted Cruz's positions, for me anyway, stake out new territory. His "essay focuses on three vital areas of concern: overcriminalization, harsh mandatory minimum sentences, and the demise of jury trials." On overcriminalization:
The place to start is with incremental reforms aimed at mitigating the harmful effects of overcriminalization. Congress should begin by requiring that all criminal offenses are put into one title of the Code, Title 18, or if that proves too difficult, Congress can enact a law that prohibits criminal liability on the basis of any statute that is not codified or otherwise cross-referenced in Title 18. Having thousands of criminal laws scattered throughout the entire Code works an intolerable hardship on the public akin to Caligula posting his laws high up to make them difficult for the public to see.

To ameliorate the effect of redundant or overlapping criminal laws, Congress should also pass legislation requiring courts to presume that a single criminal act or transaction should be treated as one crime subject to one punishment, even if the act or transaction is punishable under multiple statutes. And to mitigate the consequences of criminalizing regulatory offenses, Congress should repeal criminal penalties for violations of agency regulations. At the very least, it should require that any new regulations carrying criminal penalties be approved by Congress and the president. Perhaps most importantly, Congress should enact legislation that requires the government to prove the defendant knowingly violated the law — or that, at least, allows a mistake of law defense — for certain classes of crimes that have no analog in the common law or that no reasonable person would understand to be inherently wrong. Where the government has criminalized non-blameworthy conduct for regulatory purposes, ignorance of the law should be a valid defense to criminal liability.
He also lamented "the ratcheting up of mandatory minimum sentences over the last several decades" to "draconian" levels, and spoke of "the undeniable costs and dubious benefits of mass, long-term incarceration of nonviolent drug offenders."

Perhaps Cruz's most notable complaint, however, involved the "demise of jury trials." He wrote:
Plea bargaining has become the norm in our criminal justice system, while the constitutional right to a jury trial — which the Founders understood to be a bulwark against tyranny — is now rarely exercised. Contrary to popular perceptions, we no longer have a system where a jury determines a defendant’s guilt or innocence in a public trial. In 2013, 97 percent of all federal criminal charges that were not dismissed were resolved through plea bargains; less than 3 percent went to trial.

In this plea-bargaining system, prosecutors have extraordinary power, nudging both judges and juries out of the truth-seeking process. The prosecutor is now the proverbial judge, jury, and executioner in the mine-run of cases. Often armed with an extensive menu of crimes, each with their own sentencing ranges, federal prosecutors can wield their discretionary charging power to great effect by threatening the most serious charges that theoretically (if not realistically) can be proved. If the accused succumbs to the threat and pleads guilty, which often happens, the prosecutor agrees to bring lesser or entirely different charges that carry a lower sentencing range.

Given the risks involved in turning down a plea offer, it is not unheard of for people to plead guilty to crimes they never committed. Of the 1,428 legally acknowledged exonerations recorded by the National Registry of Exonerations since 1989, 151 (or roughly 10 percent) involved false guilty pleas. It is estimated that between 2 and 8 percent of convicted felons who have pleaded guilty are actually innocent. In a federal prison population of 218,000 — the number at the end of fiscal year 2011 — where 97 percent pleaded guilty, that means that anywhere from 4,229 to 16,916 people could be imprisoned for crimes they did not commit.

The plea-bargaining system is premised on the assumption that there is relatively equal bargaining power between the accused and the state. Nothing, of course, could be further from the truth. Mitigating the coercive effect of the plea-bargaining process will require empowering the defense. And one way to do that is to reduce the informational asymmetry between prosecutors and defense counsel. Plea offers are often foisted upon the accused before the defense has had enough time to investigate the facts, and the longer the investigation takes, the less generous the plea off may become. Congress should pass legislation that requires the government — whether constitutionally required or not — to disclose material exculpatory evidence before the accused enters into any plea agreement. This reform will reduce the risk of false guilty pleas by helping ensure that the accused is better informed before sealing his or her fate.
Very few people in 21st century criminal justice debates have focused on the increasing omnipotence of prosecutors in the process, usurping the role of judges, juries and even legislators thanks to wide discretion and the plea-bargain process. So that's a new an interesting frame for the debate among national GOP leaders. Similarly, a presidential candidate estimating that between 4-17,000 federal inmates "could be imprisoned for crimes they didn't commit" opens up the conversation considerably. Few elected officials in either party are willing to publicly countenance the idea that so many innocent people may be sitting in prison.

This may be the first presidential campaign since '88 and '92 when criminal justice issues come to the fore, and on sharply different vector from the tuff-on-crime fetishism of a quarter century ago. Here's an interesting, related National Journal item on the prospects for federal sentencing reform.

Sunday, May 17, 2015

Will Texas join conservative states adopting syringe exchange in 2015?

In the wake of the Texas House of Representatives approving syringe exchange legislation last week,* Grits was interested see this article in the New York Times about changing laws and attitudes on the topic in conservative states. Though the Texas vote wasn't mentioned, the Times' Carl Hulse reported:
Now, with a severe outbreak of H.I.V. and hepatitis due to a surge in heroin use in states including Indiana, Kentucky and West Virginia, the question of whether to let federal money support needle exchanges is back. Still, in contrast to a new willingness by state politicians to accept needle exchanges, Congress appears unlikely to overturn the moratorium even with drug problems hitting hard in states represented by those responsible for the spending bills that impose the ban. ...
Though evidence has mounted that needle exchanges are effective — the Centers for Disease Control and Prevention and the World Health Organization, among others, have recommended them — they have remained anathema to many politicians, particularly Republicans who have long framed opposition as an essential element of their antidrug image.

“As Republicans, we don’t want to look like we are facilitating drug use,” said Representative Tom Cole, the Oklahoma Republican who is chairman of the appropriations subcommittee that distributes health funding. “We want to get you help, but we want to do other things.”

While expressing reservations, Mr. Cole acknowledged that public funding of needle exchanges could be more cost effective than the potential public expense of treating increasing numbers of AIDS and hepatitis cases. He said he expected the issue to come up as Congress put its health spending bill together and, like [Rep. Harold] Rogers, said he was open to exploring the issue.
“If the evidence is such that it really makes a difference, it is something to look at,” Mr. Cole said.
To some Democrats, there is no question that the ban should be eliminated and that Republicans are stuck in the past when it comes to both drug and health policy.

“We should lift the ban,” said Representative Rosa DeLauro of Connecticut, a senior Democrat on the appropriations subcommittee. “Health, and not ideology, should be the determining factor.”
In Indiana, an epidemic of H.I.V. related to intravenous drug use in one southeastern county led Gov. Mike Pence, a former Republican House member and longtime supporter of the ban, to back away from his opposition. In March, he signed an executive order allowing a temporary needle exchange in Scott County. This month, he signed legislation allowing counties around the state to begin exchanges if officials can demonstrate that they would be an appropriate public health response. The Kentucky Legislature, on a bipartisan basis, also passed legislation allowing needle exchange programs.
Apparently Mr. Hulse didn't know about the Texas House's remarkable vote to approve syringe exchange pilots in seven counties on essentially conservative grounds - it would have fit perfectly into his story's narrative. But perhaps news of such programs spreading in conservative states will contribute to new momentum on the senate side, where the Texas bill still awaits referral to committee.

Grits wondered before session whether changing political dynamics regarding the drug war and disease prevention might give needle exchange legislation new legs. Apparently that's the case, and not just in Texas.

*Your correspondent supported this legislation on behalf of the Texas Criminal Justice Coalition.

Saturday, May 16, 2015

Why is John Bradley smiling? ... and other stories

Here are a few odds and ends that may interest Grits readers from a busy week in which the legislative picture for 2015 began to gain some clarity.

A case study in faulty sex-offender registration restrictions
Not long after testifying at the Legislature on the unfairness of sex-offender registration conditions, Fresh off a Soros fellowship, and just a couple of weeks after testifying before the Texas Legislature, activist Josh Gravens' faces prison again for a sex-offender registration violation. See an account of his alleged new offense by an eyewitness.

Somewhere in Palau, John Bradley is smiling
Williamson County politics is sort of a cesspool and DA Jana Duty has been feuding with the local establishment for a decade. So it's hard to tell from the coverage whether a judge's threat to hold her in contempt for violating a gag order has subtexts beyond the immediate issues in the case. Regardless, somewhere in Palau, John Bradley is smiling.

Newsflash (not!): DPS withholds answers from reporters
I'm not sure it's news that the Department of Public Safety fails to give reporters information even when they obviously know and could easily provide answers to their questions, but it's now proven.  Given that DPS provides the Legislature dubiously overstated information, who is really surprised?

Conservative views on threat from government inform left-right reform coalitions
Polling re: Jade Helm shows 45 percent of Americans fear their government. Grits harbors no concern at all from an in-country military exercise, Greg Abbott's pledge to monitor the situation notwithstanding. But for good or ill, it's this underlying political reality that makes left-right coalitions on criminal-justice reform possible in the current environment. If conservatives fear a hypothetical police state may be turned on them, they're a little more careful to limit police power and preserve constitutional protections.

Bill would require in-person visit option at (most) county jails
The House passed legislation to require jails to offer in person visits, but grandfathering facilities built in the last few years that only include video. The MSM coverage did a good job on this. I don't like the amendment - and I suspect some or all the grandfathered facilites previously had in-person visits and could revert more easily than they're pretending - but I understand why it would be  necessary to pass and it limits future harm.

Passing more unconstitutional statutes: Revenge Porn edition
A bill banning revenge porn also made it across the threshold out of the Texas House and into the Senate before Thursday's deadline, but Mark Bennett says the version passed can't survive constitutional challenge. That doesn't mean it won't become law, anyway, just that Mark won't soon find a shortage of First-Amendment-challenged legislation to blow up in court. It could be possible to write a constitutional revenge-porn statute but there's no evidence this is one.

Late train on Driver Responsibility surcharge reform
Rodney Ellis' bill to repeal the Driver Responsibility surcharge has morphed into a version of a now-dead House bill to eliminate driver license suspensions associated with the program. It's passed out of committee but will need to hurry to catch the late train. Both reform bills in the House this session died on the calendar Thursday night.

Don't double down on stupid
The Houston Chronicle unwisely suggested giving the GR portion of Driver Responsibility surcharges to trauma hospitals in addition to the 49.5% of the money they get now, which Grits thinks is a terrible idea. We need to wean them off that funding source, not double down on it. As I wrote in the comments, "The state needs to find a more stable means of funding hospitals - the larger point of the article with which I wholeheartedly agree - and stop pretending Texas can pay for them by mulcting poor people. Texas should abolish the DRP and expand Medicaid to cover hospitals' indigent care - that's the real solution."

Polunsky inmates made Willie Nelson a badass guitar
From Willie's blog:
 How awesome is that?

Friday, May 15, 2015

Civil commitment bill targets agency dysfunction; clock ticking on housing crisis

The Texas House yesterday passed Sen. John Whitmire's and Rep. Sylvester Turner's bill overhauling the sex-offender civil commitment program, reported the Houston Chronicle's Mike Ward and Anita Hassan. (See an analysis of the bill from attorney Nancy Bunin.)

In a quote that must be music to the ears of the Texas Juvenile Justice Department, Whitmire declared that, "In all my years up here, I don't think I have ever seen a program as dysfunctional and legally challenged as this program - and that's saying a lot." In recent years, such comments have often been aimed at TJJD, or its predecessor agency TYC. Finally, they've elevated from the bottom rung of agency dysfunction! Or maybe the floor just dropped.

Regardless, while addressing issues of agency management and eliminating the jurisdiction of a biased Montgomery County judge who oversees the program, the reforms do not address the most immediate problem with Texas' civil commitment program: Where if anywhere can the state house them in the community without being pushed out by NIMBY backlash? Nobody knows, and the clock is ticking to find a solution. The Chron article concluded:
The bill, however, does not address a critical housing shortage facing the agency.

The roughly 175 men currently active in the program are living in halfway houses, jails and boarding houses under round-the-clock supervision.

The private halfway houses, however, have demanded the men be removed by August. The agency has no room to house the men or those who are expected to come out of prison throughout the year. Because of that, officials had asked for the changes to take effect immediately so they can move ahead with plans to buy or lease a new facility where the offenders outside prison can be confined while they undergo treatment.

Thursday, May 14, 2015

House passes 'ban the box' bill for state agencies

A Houston Chronicle editorial (May 11) rightly praised "ban the box" legislation for state agencies which the Texas House passed today. The article opened:
The "box" asking about a criminal conviction is one most of us mindlessly check on employment applications. But for many otherwise employable adults, it's the biggest barrier to moving forward with productive lives.

Rep. Eric Johnson, D-Dallas, introduced a bill this legislative session that would prevent state agencies from asking about an applicant's criminal background until the interview stage. The proposal is in line with a national trend that has strong bipartisan support.

Center for American Progress, a progressive think tank, recently teamed up with the conservative Koch Brothers to form an advocacy group for criminal justice reform. One of the coalition's goals is to lessen the barriers to employment for ex-offenders. The Koch brothers have banned the box at Koch Industries, the multinational conglomerate.

Policies promoting rehabilitation for ex-offenders require a strong dose of common sense. No one is proposing, for instance, that a former drug dealer be allowed to work for the Texas Pharmacy Board. Or, for that matter, that any state agency be required to hire any ex-offender. A "ban-the-box" law just gives the potential employee an opportunity to present himself to a potential employer and for the potential employer to see the whole person. When that box is checked, applicants often are immediately rejected for a prior offense that may have no bearing on the job or is so old that it's not relevant.
Now, HB 548 on to the Senate. This would be a really good and important change, I hope it makes it through..

Hissy fits have consequences: Juvie bills derailed by grand-jury reform fight

In the midst of a feud with Sen. John Whitmire over failed legislation to reform the state's pick-a-pal grand jury system, Rep. Harold Dutton exercised his authority as Chair of the Juvenile Justice and Family Matters Committee to cancel a meeting last night. The apparent motive: Retaliation. The agenda included Whitmire's reorganization of the Texas Juvenile Justice Department, shifting more youth to county control. Bills by Senators Burton, Uresti, Eltife and Schwertner were also affected.

In theory, I suppose, nobody could make Dutton convene the committee again this session, though such behavior might not get him invited back as chair next time. Houston Chronicle columnist Lisa Falkenberg penned a column laying blame for the grand-jury reform mess at Dutton's feet, and though I like and respect Dutton, that's a sentiment universally shared by insiders observing the debacle close up. Dutton carries too many bills and doesn't always work them aggressively. At times, there are inexplicable bungles. And what happened on the floor on grand-jury reform was an unnecessary disaster. (If needle exchange could get 92 votes on second reading, for heaven's sake, Dutton should have been able to find 76!)

I've seen multiple lists of legislators who would likely flip on Thompson's amendment if the vote were held again. They voted for it because members didn't understand the bill and Dutton hadn't worked the room. Part of the blame lies with advocates for the change, to be sure: If members didn't understand the bill, that's because nobody explained it to them. But the chairman can't escape a sizable share of culpability.

Between killing raise-the-age legislation by chubbing the gay marriage re-ban and now potentially scuttling juvenile de-incarceration in addition to grand-jury reform, Democrats run the risk of derailing the bulk of criminal-justice reform legislation still moving in these final stages of the session.

In the legislative process, at least, hissy fits have consequences.

UPDATE: In the waning hours of Thursday evening, Dutton amended the senate version of the grand jury bill onto other legislation. With Ed Thompson's amendment added to make it apply only in counties with more than 500,000 population, it passed without debate. See coverage from the Houston Chronicle.

Wednesday, May 13, 2015

Overdose prevention legislation soon headed to governor

As Texas' needle exchange legislation heads from the House to the Senate, another harm reduction bill - HB 225 by Guillen, aka the Good Samaritan overdose prevention bill - has passed both chambers and is all but on its way to the governor's desk. Your correspondent supported the bill in both chambers on behalf of the Texas Criminal Justice Coalition.

The Good Samaritan piece of this bill creates a defense to prosecution for people who dial 911 during an overdose if they stay on the scene, cooperate with police, etc.. The bill had never moved far in past sessions but this year rocketed through the system early, with nearly unanimous support. Along the way, Sen. West's legislation expanding access to naloxone for first responders and people with a prescription got tacked onto the bill, creating a more comprehensive overdose prevention package which enjoyed wide support. Sen. Lois Kolkhorst was the lone "no" vote in the senate, joining four House members who opposed the bill.

Now, there's just one vote left who matters: Gov. Greg Abbott. Given news this spring that the state has dramatically under-counted opiod overdoses and the unquestioned effectiveness of naloxone at saving lives, it's hard to see a downside to the governor signing it, or an upside to making this his first veto. But you never know.

For more background on these naloxone access and Good Samaritan laws, see this extensive and detailed fact sheet from the Network for Public Health Law.

Tuesday, May 12, 2015

Texas House approves non-government funded, operated needle exchange pilots

Remarkably, HB 65 by McClendon this evening passed on second reading by a 92-37 vote with no floor debate, after needle exchange had been one of the more contentious topics debated on the House floor in 2013. A majority of Republicans supported the bill (44-37) and all Democrats. 

Congratulations to Chairwoman McClendon and her staff. This was an impressive victory after the filed version of the bill faced a rocky start in its committee hearing. From there to a 9-0 committee vote to a 5-2 margin on the House floor has been quite a fascinating trek. (Your correspondent has been pleased to help them in the process on behalf of the Texas Criminal Justice Coalition.)

Now, on to the Senate, where we find out if the re-vamped bill - no taxpayer money, operated by nonprofits instead of government - receives as cheerful a welcome on the eastern side of the capitol.

See related coverage from the SA Express News, the Dallas News, and perhaps the best coverage so far from the Dallas Voice.

RELATED: Why conservatives should support TX bill authorizing non-government needle exchange pilots.

UPDATE (5/13): The bill passed on third reading Wednesday morning and now heads to the eastern side of the capitol for consideration by the Texas Senate.

Hostage crisis: Raise-the-age bill dies if Dem chubbing kills gay marriage super ban

After an inexplicable delay, Texas' "raise the age" legislation increasing the age of adult criminal culpability from 17 to 18 years old was placed on a House floor calendar with remarkable alacrity. Formally, it's on Tuesday's calendar, but they'd need to hoof it to get to the bill even by Wednesday. As of this writing, Thursday appears more likely.

Here's the rub, though: The bill in question, HB 1205, sits 10 bills behind HB 4105 banning gay marriage, which of course is already banned in Texas. I guess we're going to Extra-Ban it, or maybe place it on Double-Secret Probation.

Democrats plan a major floor fight, reported the Austin Statesman, and rumors are flying around the capitol that they may begin "chubbing" - or dragging out debate to kill bills further down the calendar - in hopes that they'll never get to HB 4105.

That would mean they'd never get to the raise-the-age bill, which the Calendars Committee placed as a hostage just behind the gay-marriage train wreck to give Dems an incentive to keep moving bills. (To raise the ante for your correspondent, even further down the calendar there are a couple of modest reform bills on the Driver Responsibility surcharge - HB 1795 by Turner and HB 2671 by Thompson - which represent the main, extant reform options on the topic this session.)

My preference: Dems needn't and shouldn't chub. Propose a few choicely worded amendments to get everybody on the record and move on to the bills they really care about. Trust the US Supreme Court and the tide of history to take care of the gay marriage issue. Instead, focus legislative efforts on topics the state can actually do something about.

Raise-the-age would be a big get for Dems. OTOH, in light of shifting public opinion, Republicans re-banning gay marriage is tantamount to a dog catching a car. They're pandering to their current base at the expense of a future one. And as a practical matter, it changes nothing. So who cares?

Grits' advice to Dems thinking about chubbing: Let the dog catch the car then get some business done.

UPDATE: Dems decide to kill the hostages.

Side with transparency in red-herring execution drug debate

The Texas Senate yesterday passed legislation to make vendor information about execution drugs secret and the House may follow suit soon, but Grits considers this a stupid, red herring of a debate all the way around.

First, there's no evidence whatsoever of credible threats against pharmacists who compounded execution drugs for the state. That's why a district judge ruled the Public Information Act applied: The premise justifying secrecy was phony from the get go.

OTOH, abolitionists want information about the drug vendors in order to pursue claims that lethal injection is cruel and unusual. But that's ultimately a dead-end argument: If lethal injection isn't constitutional, the firing squad still is.

Despite my disdain for the entire debate, in the end for me transparency trumps: The vendor information should be public because all vendor information should be public.

The court got it right. The senate got it wrong.

RELATED: See an editorial from the Austin Statesman.

Reform of 'pick a pal' grand jury system stalled, but options still available

The issue may have earned Lisa Falkenberg a Pulitzer Prize, but that wasn't enough to convince the Texas House the state's "pick a pal" grand jury system should be eliminated.

Much-ballyhooed legislation to eliminate the "key man" system of picking grand juries died in a double-barreled blast last night on the floor of the Texas House. Your correspondent happened to be in the gallery for the event, which took overconfident proponents by surprise.

As soon as the bill was laid out, it became apparent Rep. Harold Dutton didn't have his votes. First, he preemptively gutted his own bill with an amendment to give judges an option to use either system. Then he pulled the bill down entirely - or rather, postponed it to a time-certain in 2016 - after other members cabined the change to Harris County on a 73-69 vote, expanded to counties over 500,000 by an amendment to that amendment.

Chairman Dutton is also House sponsor of the related senate bill, which is already sitting in Calendars, and there are some other grand jury captions floating around. So if some of those 73 votes can be flipped - perhaps not an impossible task - he can try again.

See coverage from the Houston Chronicle and the Dallas News.

MORE: At the Houston Chronicle, Lisa Falkenberg laid the debacle at Harold Dutton's feet:
I blame ego. And I blame the Democratic sponsor of the bill's House version, Dutton, for its catastrophic flop.

More than a month ago, a similar bill to end the Texas pick-a-pal system flew out of a Senate committee and passed the full Texas Senate, which this session is considered to be the more conservative body. It passed 31-0, garnering even the support of the Lt. Gov. Dan Patrick, a tea party favorite from Houston whose son is a Republican Harris County judge.

How? Well, the sponsor in that case, Sen. John Whitmire, D-Houston, who heads the Senate Criminal Justice Committee, reached across the aisle for bipartisan support. With one concession that lets judges add names to the random pool of grand jurors, Whitmire gained the support of Republican judges and even state Sen. Joan Huffman, R-Houston, a former prosecutor who sometimes stands in the way of criminal justice reforms.

Even Republican Harris County District Attorney Devon Anderson came out supporting Whitmire's bill, followed by the Houston Police Officers' Union.

Instead of taking the baton from Whitmire as soon as the Senate bill hit the House, Dutton started fresh with his own bill. He wouldn't explain to me why, except to say "I like my version better." I have to wonder if he also liked the look of his own name and bill number.

Dutton's version included a giant concession to a few judges he said voiced "concerns." Although the bill would have made random grand jury selection the default in Texas, it would have allowed judges to use pick-a-pal if they could express a good reason. That's very close to the current system we're trying to get rid of.

In a phone interview Tuesday, Dutton seemed unaware of the smaller concession Whitmire had made that addressed the same concerns from judges. He also didn't take kindly to Whitmire's suggestion of finding other surrogate sponsors in the House.

"He's free to do whatever the hell he likes," Dutton said. "This is the House over here. He runs the Senate, maybe, but he doesn't run the House."

Whitmire, meanwhile, has vowed to press on and to enlist other veteran Houston House members, such as Reps. Senfronia Thompson and Sylvester Turner, to help.

And Dutton does need help. It was obvious that he hadn't done his homework on the legislation. He hadn't worked the floor. He hadn't educated members on his bill. Even some members who tried to aid him in the debate struggled with basic facts of the bill and missed crucial talking points.

"He had not worked the delegation. He did not recruit people to help. It was horrible," Whitmire says.
That may or may not be true, but assigning blame won't pass the bill. In three weeks, the 84th session is over, and it will end without grand jury reform if supporters of the idea can't work together to accomplish it.

Sunday, May 10, 2015

Why conservatives should support TX bill authorizing non-government needle-exchange pilots

Though there are now many delayed bills ahead of it which weren't heard on Friday, in theory HB 65 by McClendon will be up for a floor vote on Monday in the Texas House of Representatives. Or perhaps it will now be delayed until Tuesday if debate on the bills before it go long.

Either way, there's reason to think needle-exchange legislation could succeed this session when it's failed in the past. In 2013, an earlier version of McClendon's bill failed to pass the House on a tight 63-70 vote following an unusual bout of parliamentary back and forth.  At root, opponents objected to using taxpayer money of any sort to pay for needles for addicts.

New bill, new dynamic
Which brings us to this year's bill: In committee, a faction of Tea Party legislators combined to block the original version, which would have allowed hospital districts or public-health departments in seven pilot counties (Harris, Dallas, Bexar, Travis, El Paso, Nueces, and Webb) to operate taxpayer funded needle exchanges. In its stead, they demanded a version in which spending taxpayer money on needle exchange is forbidden and private charities operate the program. That version passed out of committee unanimously, with some of the most conservative members of the Texas House (Burrows, Schubert, Spitzer, Stickland, and Tinderholt) voting to approve it.

Find below the jump the text of a flyer I created on behalf of my employers at the Texas Criminal Justice Coalition making the case, "Why Conservatives Should Support CSHB 65 Authorizing Non-Government Needle Exchange Pilots." The themes came from your correspondent visiting with conservative offices that supported the bill in committee and mining the reasons why each of them voted for it, using to the greatest extent possible their own rhetorical framing and language. Check it out.

* * *

Thursday, May 07, 2015

Volteface on pot by committee extends to full-blown legalization

Who knows what it means that the House Criminal Jurisprudence Committee yesterday voted out Rep. David Simpson's treat-it-like-tomatoes legalize pot bill on a 5-2 vote?  (See MSM coverage.) That's one more vote in favor, ironically, than Joe Moody's HB 507 reducing low-level possession to a civil penalty was able to muster! And keep in mind, at one point last week, Moody's bill was actually voted down in committee, then resuscitated, with the chairman switching his vote on a motion to reconsider. Grits had considered it a low point in the session when the chairman seemingly scuttled the bill by bringing it up for decision while its yes votes were out of the room.

So it was that the committee went from actively snubbing marijuana reformers to endorsing full-blown legalization in just a little more than a week. What a wild ride!

Sure, they basically passed it too late to matter. It seems unlikely the Calendars Gods will smile on Simpson's bill, as much as I might like it. But then, perhaps I shouldn't project: I didn't think Chairman Abel Herrero would give the legislation a vote, much less vote for it himself. Since Calendars Committee Chairman Todd Hunter is on the Criminal Jurisprudence Committee and voted for both bills, I suppose anything's possible with his support. HB 507, though, probably represents the version of reform which presently has the votes to pass on the House floor, at least if it can get set for a floor vote before the deadline. Right now, both bills are in the netherworld between the committee vote and actually becoming eligible for consideration by the Calendars Committee, and every day's delay makes it less likely either will be heard.

The vicissitudes of the marijuana bills' story demonstrate in part why Grits' blogging has lightened up in the last week or so: Things are moving so fast at the Legislature (in a hurry-up-and-wait kind of way) that what seems true today may not be true tomorrow. Trying to write about them in the moment can be like skeet shooting with a handgun.

MORE: The Houston Chronicle offered a similarly pessimistic assessment about the bills' prospects, at least in the short term. At this point (5/9), even if the bill were put on a calendar in the final days, it's probably too late for it to be heard in 2015 on the House floor. The House adjourned for Mother's Day weekend with five legal-sized pages worth of bills left unheard, so next week's calendars will all be pushed back substantially. Never say never, but these bills have now entered extreme long shot territory.

Wednesday, May 06, 2015

Bill updates during a busy week

Grits has been too busy to blog much this week but here are a few updates on bills we've followed this session.

Hope springs eternal and thus the Texas House Criminal Jurisprudence Committee on Monday passed out several more House bills which now face an uphill climb to make their way into the crush of legislation the lower chamber will hear between now and May 14. Technically still alive, these bills are on life support. It'll take a few days for the bills to even get to the Calendars Committee, and by then there won't be many if any realistic opportunities for them to receive floor votes without a lot of luck. Still, getting voted out of committee is better than dying in committee.

Civil penalties for pot. Rep. Joe Moody's HB 507 creating civil penalties for low-level pot possession was resurrected on a motion to reconsider and passed out of committee 4-1 with 2 absent. The bill had earlier been voted down when the chair conducted a vote while the members supporting it weren't in the room. See coverage from the Houston Chronicle.

Decreasing punishments for certain nonviolent offenses. Rep. Senfronia Thompson's HB 3326 reducing certain nonviolent misdemeanor and state jail felony punishments passed out of committee 4-1 with 2 absent. This bill would save the state $163 million in the coming biennium and nearly half a billion dollars over five years.

However, not all the bills passed in House Criminal Jurisprudence Monday face such long odds:

Update property offense levels to account for inflation. HB 1530 was an exception to the judgment that bills voted out Monday face long odds of passage. That's because the senate companion is already over and has been referred to the same committee, so the unanimous committee vote for the House bill will translate into support for SB 393.

Also, to update an earlier Grits post:

Raise the age.  HB 1205 finally made it from the committee office to the Calendars Committee, but there remain a lot of bills seeking a hearing in these final days. It'll need some leadership help or a lot of luck to make it at this stage. (Update: This bill was quickly placed on a calendar and it's highly possible the Lege will get to this bill before the 5/14 deadline.)

On a more sanguine note, several good bills have made their way onto House floor calendars:

Pretrial hearings. HB 452 by Alonzo moving up the timetable for pretrial hearings has been set for a House floor vote on Friday.  This is a really good (if perhaps under-appreciated) bill that will save  courts time and money.

Asset forfeiture. There's a bill on Friday's floor calendar, HB 530, with a caption big enough to carry some other asset forfeiture legislation related to reporting requirements as amendments. Legislation to raise the standard by which assets may be seized from "preponderance of the evidence" to "clear and convincing" evidence remains in Calendars.

Needle exchange. Coming off an unlikely 9-0 vote in the County Affairs Committee, HB 65 by McLendon authorizing needle exchange pilots in seven counties has been scheduled for a floor vote Monday. The version that came out of committee forbids government funding and has authorized nonprofits instead of government agencies operate the programs.

As always, this list is non-comprehensive - just a sampling of bills that merit notice, not by any stretch a complete list.

Sunday, May 03, 2015

Indigent defense, civil commitment and the Texas surveillance state

No time to delve into these issues in-depth, but fyi:

Finally ... the conservative case against pandering to police unions

Interesting to see a meme I've heard from several Texas conservatives this year repeated in the pages of the New York Times. See Ross Douthat's "Our Police Union Problem," in which he declared that there is "a strong argument that the rise of public sector unions represents a decadent phase in the history of the welfare state, a case study in the warping influence of self-dealing and interest-group politics." However, he lamented, "this argument also applies to a unionized public work force that conservatives are often loath to criticize: the police." He concluded by challenging conservatives to finally "reckon with the ways in which police unions, no less than other interest groups, can align against the public that their members vow to serve."

Douthat also linked to a couple of related conservative critiques published in December, one of which I'd seen and one of which I hadn't.

Grits links to these items not because of Texas-specific content - there isn't any. But a shift in the political balance of power which would naturally result from the sort of recalibration Douthat envisions within the conservative movement is a trend with specific implications for Texas politics.

Texas doesn't yet have conservative politicians who've dared to openly take on the police unions. We haven't seen the Texas Public Policy Foundation, for example, directly challenge union power the way they routinely do with teachers' unions. Increasingly, though, one can hear the rumblings of discontent rising inexorably closer to the surface. Especially where unions bypass traditional labor concerns to engage on policy issues (e.g., opposing civil penalties for pot), there's a growing sense that their reach has exceeded their grasp.

In the near term - say, over the next biennium or two - I could see the conservative, anti-union view associated with the above-linked essays becoming infused within the grass roots base of the party, with the more centrist wing and statewide pols siding with the police unions. That would leave Democrats with a precarious choice between their union sympathies and their base - a choice that's even harder for them in red states where the union movement is weak.

It's always been hypocritical to blast public employee unions but exempt police unions from the same critique. What's changing is that voices within the conservative movement are for the first time openly challenging that exception.

It's remarkable the extent to which the political landscape on criminal justice has changed since the turn of the century when police unions in Texas enjoyed virtual veto power over criminal justice legislation. That's not true today, though they still enjoy undue deference. But if Douthat's views became widespread within the GOP base, it would dramatically alter the already shifting political terrain facing criminal-justice reform.

Saturday, May 02, 2015

Raise-the-Age Shenanigans


Texas' much-ballyhooed raise-the-age legislation - HB 1205 by Dutton increasing the age of adult criminal culpability in Texas from 17 to 18 - passed unanimously out of the House Juvenile Justice and Family Matters Committee on April 8th. But, as of today, with just ten days left until the last House calendar, the committee report still hasn't made its way to the Calendars Committee, which sets bills on the agenda for a vote by the full House.

Grits cannot recall in my experience a committee report ever taking longer to get from the originating committee to Calendars after a positive vote. Usually, a week is considered a long time. More than that and in my experience somebody is f%^#ing with you. But who? It's the committee chairman's bill! Grits' sources tell me the delays stem from Legislative Council's apparent inability to compile a valid bill analysis, which hardly seems credible. Yes, they're understaffed, but nothing justifies that long a delay!

Barring an intervention by leadership, this staggering hiatus probably killed the bill. Grits can't say who's behind this unprecedented postponement, but I call shenanigans!

UPDATE: Amazing what an effect a little sunlight can have. Today (5/4) the bill finally made it from the Juvenile Justice committee to the Committee Coordinator who will transmit it to Calendars. With a mountain of luck, in theory there's still time for the bill to make it onto the House floor. As a practical matter, though, probably not unless leadership in the lower chamber decide to make it a priority. One day, it'd be fascinating to learn the backstory behind this mess.

A non-comprehensive survey of good crimjust bills still moving

It's May of an odd numbered year which means wheat and chaff are separating when it comes to criminal-justice reform legislation from Texas' 84th session. It's now possible to see much more clearly which stand-alone bills still have a chance to pass. (N.b., where nothing has changed from last week's assessment I haven't updated all of those bills.) Anything, of course, can be revived as an amendment if germane to another bill's caption, so Grits won't speculate on what bills appear dead. Instead, let's focus on reform bills still living. Here's a non-comprehensive survey of good bills still moving.

The last day for the full Texas House to consider House bills on second reading is May 14 and the bills languishing in the Calendars Committee waiting for a floor vote are stacking up. Let's start by looking at a few bills that need a timely House floor vote:

Warrants for cell-phone location data (HB 2263): In 2013, this legislation was set on the House Calendar too late to actually get a vote. It was later amended to another bill on a 126-4 vote, only to have the (since-unelected) senate author strip the provision out. This year, with the bill out of committee and already in Calendars, there's plenty of time for HB 2263 with its 96 joint and coauthors to receive a floor vote and I'm modestly sanguine it may get one before the clock runs out. (Special thanks to committee clerk Miguel Liscano and his team for cranking out the committee report in record time!) Heck, given the importance of the topic and widespread interest among members, IMO the bill deserves to be set on the Major State calendar. For more background, visit the Texas Electronic Privacy Coalition.

Asset forfeiture reform (HBs 472, 249, and 1975): These bills passed out of committee on Thursday, but they had the votes to get out of committee the day they were heard. Instead, Chairman Abel Herrero, as has been his pattern both sessions he's been chair, delayed most reform bills until the last minute, significantly jeopardizing their chances. Another, less controversial forfeiture bill, HB 530, was heard with the others but passed out of committee earlier and may yet make it to the floor. It authorizes forfeiture money to be used for scholarships for children of peace officers killed in the line of duty, and also includes some reporting requirements. That latter aspect means that portions of the other bills related to reporting could fit as amendments onto HB 530 on the House floor. On the Senate side, though, SB 95 remains stalled in committee, casting a shadow on these bills' prospects even if they make it out of the House. Still, alive in May is better than most bills filed at the Texas Legislature, so you never know.

Pretrial hearings (HB 452): This bill would require pretrial hearings to be held earlier in the process and makes so much practical sense from the standpoint of logistics and judicial economy that it almost hurts. Rep. Alonzo had done his homework and there was no opposition to the legislation, which was one of the first bills heard in the House Criminal Jurisprudence Committee. But the bill was delayed for more than a month before Chairman Herrero let it out of committee. This is a terrific bill and I'm still hopeful the Calendars Gods will smile upon it and send it to the House floor sooner than later. The fact that Mr. Alonzo is himself on the Calendars Committee gives me some small measure of hope that the bill may still make it to the floor in time.

Ad seg reform (HB 1084): The House Corrections Committee this week voted out legislation to require additional reporting about solitary confinement (known by the euphemism "administrative segregation" in Texas prisons) and a process for recommending reforms that would reduce its use. A small measure but better than nothing. This deserves a prompt floor vote.

Bulk records accuracy (HB 2700): This important but little-noticed bill passed unanimously this week out of the House Government Transparency and Operations Committee. It would require clerks and criminal justice agencies to redirect all requests for bulk criminal records, B misdemeanors and up, to the Department of Public Safety. That would save the locals money and provide for greater consistency, eliminating reports about cases which were dismissed or which never reached a denouement. Plus, since DPS has systems in place to respond to monthly bulk records requests, it won't cost them much, if anything, to perform the function. See a fact sheet (pdf) from my colleagues at the Texas Criminal Justice Coalition for more background.

Bond for blue warrants (HB 3329): This Sheriff's Association bill, which House Corrections voted out this week, would let county judges authorize bail for parolees picked up on technical violations. The years-long complaint is that parole officers use county jails for "jail therapy," keeping their charges locked up for a while when they have no intention of actually revoking them back to prison. Whether that's true on any broad scale, the meme is ubiquitous. Yet seemingly every year this bill dies right here: Awaiting a vote on the House floor. Maybe this year they'll finally get over the hump.

Syringe exchange, Tea Party style (HB 65): The version of Ruth McLendon's needle exchange bill that came out of the County Affairs Committee looked a lot different than when it went in. Changes necessary to appease Tea Party Republicans on the committee stripped out all public funding and forbade government from operating pilot syringe exchange operations, instead having counties and hospital districts authorize outside charities to perform the function. (As one conservative staffer said to me, the bill reduces government's role and "lets charities do what charities do best.") With those changes, the bill passed out of committee unanimously. I'm anxious to find out what the bill's reception will be like on the House floor, assuming the Calendars Committee will give it a vote. This is quite a different profile for the issue than the Lege has seen in past sessions.

Looking beyond bills in the House Calendars Committee, here are several bills your correspondent is watching which still have an excellent chance of passage and deserve full-throated support:

Updating theft value thresholds (SB 393): Value thresholds for theft in Texas haven't changed since 1993. So, because of inflation, it becomes a felony to steal less and less stuff every year. This bill, which has been passed by the full Senate, updates the theft thresholds to roughly match where they'd be if they tracked inflation. It would save money and significantly reduce incarceration pressures, especially at Texas state jails.

Good Samaritan/overdose prevention (HB 225): This bill would expand access to opiod antagonists and create a defense to prosecution for low-level drug crimes for people who call 911 and cooperate with police. The House bill passed the Senate Criminal Justice Committee unanimously and was recommended for the local and consent calendar. It appears on a fast track and could head to the governor very soon.

Diligent participation credits for state jail felonies (HB 1546): This House bill is scheduled for a hearing in the Senate Criminal Justice Committee on Tuesday, but its Senate companion already passed so there shouldn't be too much additional controversy. This bill would generate $81 million in savings in the next biennium and nearly a quarter-billion dollars in savings over five years by encouraging participation in programs to reduce recidivism. It should be a priority for the less-government, fiscal conservative types in the eastern chamber.

Innocence Commission (HB 48): It was a love-fest for Rep. McLendon on the House floor when the bill passed, but it received a chillier reception two years ago in the Senate. IMO this is the best version of the bill McLendon's ever presented. And with the Lege having enacted nearly all of the recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, it's time for a fresh evaluation. It's not as though all the causes of false convictions have been extinguished. MORE: See good coverage of this bill from the Houston Chronicle.

Indigent representation and forensic writs (SB 1743): This legislation would expand the duties of the Office of Capital Writs to include "forensic" writs under Texas' new junk science writ passed last session. It came out of the Senate Criminal Justice Committee this week unanimously and has been placed on the intent calendar.

Reentry guide (SB 578): About 29,000 of the 70,000 or so inmates released from TDCJ each year do not qualify for the agency's Reentry and Integration Division programs. This senate bill, which has already passed out of the House Corrections Committee, "requires TDCJ to identify organizations that provide reentry and reintegration resources guides and to collaborate with those organizations to make those resource guides available to all inmates." It appears pretty likely at this point to pass.

Expanding access to DNA testing (SB 487): Rodney Ellis' bill pushing back against prosecutor recalcitrance over post-conviction DNA testing is over from the Senate and ready for the House Criminal Jurisprudence Committee to take it up. I don't know how many times we must perform this dance before prosecutors and the Court of Criminal Appeals get it through their heads that the Lege wants convicted felons to have access to potentially exonerating post-conviction DNA testing. Maybe this time will be the charm.

Grand jury reform (SB 135): This senate bill eliminating the pick-a-pal grand jury system is already out of committee in the House. Don't expect it to get a floor vote before the House is done with HBs, but I wouldn't be surprised if it's one of the first SBs heard thereafter.

Decriminalizing truancy (SB 106): That this is the first SB heard in the House Juvenile Justice and Family Matters Committee next week gives the sense this bill may be fast-tracked. 

Regulating body cameras (SB 158): This bill's referral to the House Select Committee on Emerging Law Enforcement Issues doesn't bode well for Sen. West's bill. Not only did that committee fail to approve companion body camera legislation, it hasn't passed much to speak of at all and none of what it has passed has received a floor vote. Though it cannot be proven, at the capitol the committee was widely considered a vehicle for killing legislation from the aftermath of the Ferguson episodes last year, and with some exceptions that perception has held. Maybe West's bill will be the case that disproves, or at least mitigates, those rumors.

As always, this list is not remotely comprehensive. It's just a first-cut look at what's still standing after a brutal week of last-ditch committee votes. Let me know what other bills readers are paying attention to in the comments.

Friday, May 01, 2015

'Let's sign up on and for things'

Last week at the Texas capitol, Grits witnessed a scene so funny I've retold it a dozen times since then and may as well share it with you, gentle readers.

I was near some of the electronic kiosks where people who want to sign up to testify, support, or oppose bills in the House must fill out forms on touch screens to record their registration. (The Senate still has you fill out paper cards; the House has gone electronic.) A couple of young gals walked up the corridor with the full tats, piercings, leather, dark makeup, spiked hair, 21st century punk ensemble one might expect to see at the club late Saturday night. So far, so good, it's their capitol, too.

One of them appeared to be leading around the other, giving a mini-tour, clearly having some knowledge of the place from a different layer of her life than she shared with her companion. Stopping at the kiosk, she explained their function then declared in an inspired tone, "Hey, let's sign up on and for things!" And so, they each manned a kiosk and began intently poking the touch screens, reading random captions to one another and giggling, registering "on" or "for" each one.

I've laughed on and off at that scene for more than a week. Makes me grin every time I think about it.

The genius of that ploy is that, by signing up "on" or "for" bills, you'd never piss anybody off. Nobody minds if you support their bill, whether randomly or not. And signing up "on" a bill but not testifying is random, but not harmful. Signing up "against" means the House Research Organization mentions the opposition in their floor report, people notice, maybe somebody calls you to ask why you don't like the bill (at the phone number you gave them to register).

I suppose one might derive a similar, if more cynical, nihilistic pleasure from signing up against random bills. I know plenty of folks who wish the Lege would go a biennium or two without passing any laws at all. Still, registering random "nos" would be a more disruptive intervention.

By contrast, registering "on" and "for" random bills is like harmless graffiti littering the legislative process. It may be a meaningless thing, but those two gals got a kick out of it and, for some reason, so did I.

Thursday, April 30, 2015

Legislative odds and ends

Here are a few odds and ends from the Texas Legislature to occupy readers' attention while your correspondent is focused elsewhere:
  • The Senate passed legislation ending municipal red-light programs. Here's a good overview of legislation, litigation and activism on the topic.
  • Legislation sitting in Calendars waiting for a House floor vote would require county jails using video visitation to also offer in-person visitation, as they did for generations prior.
  • As far as I can tell, nearly all medical marijuana testimony qualifies as "tearful."
  • See an editorial from the Fort Worth Star-Telegram in support of Rep. Ruth McLendon's Innocence Commission legislation, which is scheduled for a House floor this afternoon.
  • The Dallas Morning News runs down efforts to improve police transparency during the 84th Texas Legislature.
  • Another new crime involving drones is sitting in the Calendars Committee, where one hopes it will die. To my knowledge, nobody has been prosecuted yet under the criminal drone statute passed last session. (If you are aware of any drone prosecutions, please let us know in the comments.)
  • Sen. John Whitmire is raising questions about a juvenile corrections program run by the Texas Military Department.
  • See coverage of a press conference this morning calling for abolition of the Driver Responsibility surcharge.
  • Later this afternoon, I'll be at a meeting of the House Select Committee on Emerging Law Enforcement Issues to support a bill by Dwayne Bohac requiring law enforcement to get a warrant to use "Stingray" or "IMSI catcher" technology to track cell phones.

Bills to prevent, cause false convictions on House floor today

Ironically, there are bills on the Texas House floor calendar today (Thursday) aimed both at preventing false convictions and guaranteeing more of them.

RE: Preventing False Convictions. HB 48 by Ruth McLendon would create an Innocence Commission to analyze the causes of false convictions and suggest legislative reforms to prevent them in the future. The Lege once before created a short-term study commission but has enacted nearly all the reforms they suggested. Time for a fresh look. The House has supported this bipartisan idea in the past; the Senate is where it ran into trouble. See a Fort Worth Star-Telegram editorial in favor of the bill.

RE: Ensuring More False Convictions. HB 189 by Senfronia Thompson would remove the statute of limitations on all sexual assault cases, allowing, say, a date rape allegation from decades past to be sufficient to secure a conviction. Presently, old cases can be prosecuted when there is biological evidence to support the allegation. Thompson's bill would eliminate those fetters even for uncorroborated allegations going forward. (They can only change it for future cases, thankfully, not past ones.) The suggestion came from the Wendy Davis gubernatorial campaign, though Thompson now likes to downplay its origins and her staff is referring to the legislation as the Bill Cosby Act. Really it's the Wendy Davis Campaign Memorial Bad Idea.

Thompson's bill especially bugs me because she did not follow through on the compromise the House Criminal Jurisprudence Committee was told would be made in the committee substitute. The committee was informed the substitute would only expand the SOL for cases where biological evidence existed, simply adding an absent category of sexual assault not included in the language now, but requiring DNA to prosecute very old cases. But that's not the version voted out of committee, which simply removes the statute of limitations entirely.

The version of HB 189 headed to the floor is a goddawful bill that's virtually guaranteed to produce more false and questionable convictions in the future. Honestly, after witnessing dozens of men falsely convicted of rape streaming through the capitol over the years in support of Rep. McLendon's bill and other innocence reforms, Rep. Thompson should know better.

Regrettably, McLendon's bill can't pass quickly enough for a commission to recommend that Thompson's bill is a catastrophe from an innocence perspective. House members will have to figure it out on their own for this bad idea to be rejected. And it should be.

UPDATE: The House Research Organization report, released today, brings this addendum:
The author plans to offer a floor amendment that would change the statute of limitation only for certain sexual assault cases involving multiple victims. Under the planned amendment, there would be no statute of limitation if there were probable cause to believe the defendant repeatedly committed the same or similar offense against five or more victims.
That at least would limit the bill's scope, but it's still not an intellectually consistent policy. Better if HB 189 were simply voted down altogether.

NUTHER UPDATE: I didn't get to watch the floor debate but, as amended, the bill passed by a relatively narrow 88-46 vote. All "nay" votes were Republican.

Wednesday, April 29, 2015

Committee contemplates Driver Responsibility surcharge abolition

The Texas Senate Transportation Committee this morning held a belated hearing on SB 93 by Ellis which would abolish the Driver Responsibility surcharge. There was a good discussion (video here), a heartbreaking tale from a father in Tyler who went broke over surcharges and an inability to drive to work. (See more on his story.)

There was an especially poignant exchange between Sen. Bob Hall and one of the hospital representatives (who oppose abolition because they receive half the money). Hall declared sharply (see here), "What I just heard you tell me was that this bill was designed, was allowed to destroy people's lives in order to provide money from the state for your operation. And that's the same thing I read in the letters I see here from THA, and the TMA, and the others, that they are really only concerned about the money they get, they really don't care about what it does to people's lives." Ouch! That's gonna leave a mark! I've seldom heard a legislator confront the hospitals about about their own ethical position regarding this program. Bully for him! Hall, Huffines and Garcia wanted to vote the bill out today and the votes were clearly there, but the chair never brought it back up.

Nobody opposes hospital funding but the Lege has plenty of money to pay for it other ways, which was the subject of your correspondent's testimony in support of the bill on behalf of the Texas Criminal Justice Coalition. Last year, the surcharge brought in just shy of $145 million, or a $290 million per-biennium. Hospitals get 49.5% and 49.5% goes to the general revenue fund.

Texas is a large and wealthy state and in the scheme of budget politics, that's not an insurmountable sum. If the Senate reduced its border security proposal to the amount suggested by the House, I pointed out, they'd free up about that much money. Similarly, if the House reduced its tax cuts to Senate levels ($4.9 billion to $4.6 billion), that would free up enough money to replace the surcharge. In the scheme of budget items, it's big but not insurmountable. I don't think property owners will even notice tax relief as their valuations rise. But the hundreds of thousands of people impacted by surcharges will certainly notice.

To me the question becomes, is ending the surcharge a priority for the Legislature? So far, regrettably, despite an enthusiastic reception from this committee, the answer appears to be "no." Budgets speak louder than words and though it's a goal that's within their grasp, nobody with the power to accomplish the task prioritized the issue this session. As such, this bill serves more as placeholder and trial run for some more serious, future effort when there's a budget fix in play. That's the only way this misbegotten monster of a program will ever be abolished.

MORE: See coverage of the bill from the Austin Statesman.

Tuesday, April 28, 2015

Warrants-for-cell-phone-location data bill clears committee but time waning

With a half-dozen Texas Electronic Privacy Coalition volunteers gathered around, along with some staffers and a few interested members, Rep. Bryan Hughes' HB 2263 requiring the government to obtain warrants to access consumers' personal cell-phone location information passed out of committee yesterday at a sparsely attended desk meeting. Despite the fact that five committee members are coauthors, the bill was delayed uncomfortably long because of opposition from House Criminal Jurisprudence Committee Chairman Abel Herrero, who was the only "no" vote.

Interestingly, Chairman Herrero opposed this bill in committee last year, then later voted on the floor to amend it to another bill. But this session he opposed it again, even though both sessions he gave it an early hearing and then, after inexplicable delays, a vote. I can't understand what was going on. When a chairman opposes a bill, typically he'd just never give it a hearing, much less a vote, the way Senate State Affairs Chair Joan Huffman has done with Craig Estes' SB 942 in the upper chamber. ¿Quien sabe?

Regardless, firm and jovial support from Calendars Committee Chairman Todd Hunter at yesterday's meeting - and that fact that 12 of 15 Calendars Committee members are coauthors - makes Grits sanguine that HB 2263 might receive a floor vote in the lower chamber before time runs out, even though we're late in session. Senate deadlines are more flexible than in the House - they suspend the rules for everything on the eastern side of the capitol - so there's still plenty of time to pass the bill if the Calendars Committee will expedite giving the thing a vote.

RELATED: Though not yet posted, I'm told Duane Bohac's HB 3165 requiring warrants when police use Stingray devices will be set for a hearing Thursday in the House Select Committee on Emerging Law Enforcement Issues. However, a) it's late and b) that committee hasn't passed out a bill all year. Correction: A reader corrected me by pointing out that Emerging Issues voted for four bills last Thursday, but they've yet to be formally reported out yet, still in that nether region after a vote but before the committee report arrives at Calendars. My error. The fact remains, time is short. UPDATE: The hearing for HB 3165 has been posted.

No room at the inn: Proposed Lege reforms won't solve civil-commitment housing SNAFU

The crisis over Texas' dysfunctional sex offender civil commitment program deepened this week, reported the Houston Chronicle's Mike Ward and Anita Hassan (April 25), and, though legislation is in the works to modify the process, "Even if the reforms are approved, the housing crisis will remain." Until then:
Faced with a worsening housing shortage and no prospect of a quick solution, officials quietly have started putting together "home plans" for most of the state's 185 sex offenders deemed too dangerous to live unsupervised in society.

So critical is the housing problem, officials said, that a two-time child molester freed from prison on Friday had to be temporarily placed in an already-full Houston halfway house after nearly 100 nursing homes refused to take the man, who is confined to a wheelchair and is developmentally disabled. State officials said he would not return home because several of his immediate family members also are sex offenders.

"We have no places to put the ones that are coming out of prison, and we have no place for the 185 who are in halfway houses and have to be out in August," said Marsha McLane, executive director of the Office of Violent Sex Offender Management that oversees Texas' civil-commitment program for repeat sex predators. "I would say we have a crisis on our hands."

Should the agency eventually implement the "home plans," the men would be sent back to live in their communities under supervision, required to wear ankle monitors to track their movements 24 hours a day. Caseworkers would check in on them each day.
These "civil commitment" programs are floundering all over the country. Wrote Ward and Hassan:
Texas is one of several states with a civil commitment program in limbo. Minnesota lawmakers are scurrying to make reforms to that state's civil commitment program under the threat of a court ruling that legal experts say could place it under federal control or shutter it altogether.

Last fall, the Missouri Attorney General's Office halted civil commitment trials in the Show Me State for six months while it prepared to fight a class-action federal lawsuit claiming the program is unconstitutional. That trial is set for later this year.
Just this week headlines from Kansas and Missouri iterated that point:
Whitmire's bill passed the Senate but, according to the Chron, the bill "faces a less-than-certain future in the House, partly because of its estimated $13 million cost, roughly twice the current budget" and partly because of how late we are in session, though as a Senate bill already in the House the legislation is pretty far along in the scheme of things. (Right now it needs a committee referral.) The status quo - with the only judge in the state authorized to hear the cases routinely disqualified for bias - cannot stand. I'd be surprised if some version of the bill doesn't pass.

Regardless, everyone acknowledges that alone won't fix the housing problem nor stop NIMBYs from opposing and thwarting every possible, viable option. So then what?

RELATED: Analyzing legislation to reform Texas' sex-offender civil commitment program

Sunday, April 26, 2015

First TDCJ prisoners pass 30-year mark in solitary confinement

TDCJ ad-seg cell interior. Statesman/TDCJ.
Ugh. Eric Dexheimer at the Austin Statesman reports (April 25) that, on April 10, Texas witnessed the first of a wave of prisoners in solitary confinement who have passed the thirty-consecutive year mark.
A second Texas prisoner passed the 30-years-in-solitary mark last Monday. A third will reach it June 15, a fourth on Aug. 3. By the end of November, there will be 10 inmates with the distinction of having spent one score and 10 years in one room, with others not far behind; the state has more than 100 prisoners with at least 20 years in solitary confinement under their belts. ...

State records show Texas’ first 30-year solitary prisoner was 58 years old as of March 1. That means he has spent more than half his middle-aged life in one 60-square-foot room.

And while it would be correct to assume that many of those who have served the longest in the system’s most restrictive setting are also some of the state’s worst criminals, that’s not always the case. Two of the inmates who will reach the 30-year solitary mark this year are serving time for burglary.
Since 2006, the number of Texas prisoners kept in solitary (known within the bureaucracy as "ad seg" or "administrative segregation") declined 37 percent, from nearly 10,000 to around 6,000, or from 6 percent to 4 percent of the inmate population. By contrast, in Mississippi 1.4 percent of inmates are kept in solitary, Dexheimer reported.

There's not much moving legislatively on solitary issues during Texas' 84th session. Rep. Marisa Marquez, who's been a quiet, consistent champion on this topic, passed a bill out of committee which would require mental health assessments before TDCJ commits an inmate to ad seg, but it has yet to be scheduled for a floor vote. And the inestimable Sylvester Turner tacked on a rider to the House budget providing funds for mental health treatment for inmates leaving ad seg. Otherwise, most of what's been filed of significance hasn't left committee.

And so we wait, and they wait, and in the meantime the number of prisoners in ad seg more than 30 years and counting will continue to grow, with hundreds more released directly to the streets each year. If change occurs in the next biennium, it'll have to come from the agency or possibly litigation.

BTW, for those interested in the issue, the blog Solitary Watch should be required reading. See also prior, related Grits posts: