Things were relatively quiet around here, and then … BOOM! All of a sudden, it’s “game on.” To quote a very wise man: “Boy, that escalated quickly. I mean, that really got out of hand fast.”
The Rule of Law
It appears that a large part of this session may consist of a debate in Austin about the limits of local law enforcement officials’ discretion. It started with the sanctuary cities issue (click here for the latest developments from Travis County), and now it’s coming to the drug enforcement issue on the heels of Harris County DA Kim Ogg’s announcement that misdemeanor marijuana possession offenders (under 4 oz.) will be diverted rather than arrested and no charges will be filed upon successful completion of a counseling class. Weed and illegal immigration have only a passing familiarity to each other, but opponents of both repeatedly stress the importance of “defending the rule of law” as a reason for their positions, so look for that catch phrase to take on wider significance as prosecutors’ authority and discretion increasingly come under scrutiny at the Legislature.
We here at TDCAA have no position on the merits of anyone’s local enforcement policies—that’s why y’all run for office, not us. But we do have a keen interest in the larger implications being raised about your role in the criminal justice system. It shouldn’t surprise anyone that 334 independently-elected local prosecutors enforce various state laws differently in their jurisdictions in response to their local communities’ priorities, especially those expressed via the jury box and the ballot box. Whether it is marijuana, gambling, prostitution, DWI, family violence, or any number of other crimes, prosecutors have usually taken the general view that local control is a strength of the Texas criminal justice system and that you should have the right to conduct your business in your jurisdiction as you and your constituents see fit. However, we’re learning this session that perhaps that view is not shared by everyone at the Capitol.
When you strip away politics and get down to the policy lick log, the ultimate question shared by these various issues is, “Where does a local law enforcement official’s discretion end?” Not only do we not have an answer to that question, but we don’t even know who has the ultimate say on it: Local voters? The Legislature? The courts? Who knows. But what we do know is that the Legislature thinks it gets the final say on everything, and sometimes its solution is not always the most subtle one. Case in point: SB 4, the sanctuary cities bill, which now makes it a Class A misdemeanor (and cause for removal) for a local law enforcement official to not enforce certain state laws on immigration detainers, etc. Perhaps the most important question right now is, where do you think that line should be drawn on other issues?
By their polling you shall know them
All lobbyists know that if you want to get legislators to step out of their comfort zone and vote for something new or unorthodox, you need to give them some “cover”—something that reassures them that they won’t be penalized by voters for adopting the position you are pushing. That cover can take many forms, including: public support by other public officials; a plank in a party platform; or polling of voters on that issue. Of course, when it comes to polling, the “garbage in, garbage out” adage is always applicable, but if the right results are obtained and then parroted over and over again without objection, it’s possible to create a narrative that overtakes any actual facts on a particular issue—and everyone in politics knows that narratives trump facts.
Example: Civil asset forfeiture reformers have been commissioning polls all over the nation trying to show widespread public support for their ideas, and Texas is no exception. Here’s a question from a recent survey bought and paid for by the Right on Crime people:
Civil asset forfeiture is when the state or federal government takes and keeps a person's property without necessarily charging them with any criminal behavior. Should the state or federal government be allowed to take and keep a person's property without a criminal conviction?
Ask yourself: Assuming you knew nothing else about existing forfeiture laws, how would you answer this question? Probably the same way 87 percent of these respondents did: “No.” In fact, without more information, you kind of have to wonder about the 8 percent who replied “yes” (although perhaps that merely reflects the percentage of people who are actually aware of the current law’s protections for innocent citizens). But remember, these questions are not in a jury charge or a court opinion, they are in a poll commissioned by advocates looking for an answer that gives politicians cover.
Or then there’s this question:
If an innocent person's property is used without their knowledge in connection with a crime, should the government be able to take and keep that property through civil asset forfeiture?
Result? 82 percent said “no,” 11 percent said yes. In other words, 11 percent of responders oppose current law, because in one sense, that’s basically what is stated in this question! Nevertheless, this question is now being used to support something never asked, namely: Should the State have the burden to disprove someone’s knowledge of the criminal use of their property in a forfeiture case? Of course, the poll question and the policy question are not at all the same, but remember—these poll questions are about cover. After all, the proposed policies didn’t come after the polling; rather, the polling was done after the policy was already decided and to provide cover for the pre-determined policy.
Oh, and by the way, this poll included questions on two other topics, including this little gem:
In a grand jury proceeding, should prosecutors have the ability to withhold evidence that would tend to demonstrate the innocence of an accused person?
We don’t want to spoil the surprise, but we’ll talk about those results when the grand jury reform drops in another week or two—you know, the one we’ve been warning you about for several months that is coming at the behest of some very powerful people (both in and out of politics) who are offended by the idea that they can be indicted for their conduct just like anyone else (perish the thought).
Finally, returning to the “narrative over facts” theme, those of you who are interested in this topic can watch the reformers’ latest press conference on the topic here. You may not have the stomach to watch all 25 minutes of it, but if you just want to see how some law enforcement officers intend to try to derail this train, fast forward to the 22:00 mark of the video and turn up the volume.
A second act for the Second Chances Act?
Those of you who came to our legislative update seminars in 2015 may remember how we explained last session’s “Second Chances Act” (SB 1902) with a .gif of Oprah Winfrey running around giving away cars non-disclosures like they were candy. Well, guess what? The Right on Crime people are coming back with a sequel to last session’s bill to expand it to other offenders who are not currently eligible to have their criminal records sealed and to apply it all retroactively. While we wait for that bill to drop, though, we got to wondering: How has the last version worked out? Some prosecutors opposed it, while others didn’t seem to have much of an opinion at all, but leaving aside the “should they or shouldn’t they” policy question for the Legislature, we’re interested to know if it has cramped your style (for lack of a better expression). If you have any feedback to provide on that issue, please contact Shannon.
While the substantive committees prepare to hear bills, the budget committees are still going strong. This week’s most important budget development was the naming of members who will focus on specific areas of the state budget. For our purposes, the important subject matter areas are Articles IV (Judiciary) & V (Criminal Justice & Public Safety) of the state budget, and the legislators focusing on them for the next month will be:
Senate working group: Huffman (R-Houston), chair; Hancock, Hinojosa, Kolkhorst, and Whitmire.
House subcommittee: Longoria (D-Mission), chair; Miller, vice-chair; Capriglione, Cosper, and Rose.
If you have a local legislator on one of these subcommittees, your voice in Austin just got a little bit louder—but only if you choose to use it. For help in deciding how you can best do that, contact Rob.
We are 6/20ths of the way through the session, which reduces to 3/10ths … House committees are holding organizational meetings, so it should be at least another week or two before most of them even start thinking about what bills they want to hear … and the full Senate will get to debate a ban on union payroll deductions for certain public employees and will also take up a resolution to convene a constitutional convention (one of Gov. Abbott’s emergency items).
New bills to watch
Here’s a taste of what kind of bills were filed this week:
HB 1739 by Burrows authorizing the Attorney General to prosecute barratry crimes
HB 1740 by Blanco regarding the operations of veterans courts
HB 1820 by Springer creating a presumption for the admission of prior convictions (proposed by Haskell DA Mike Fouts)
HB 1911 by White legalizing the unlicensed carrying of firearms in certain circumstances
HB 1914 by Cain requiring cite-and-release in lieu of arrest for certain firearms violations
HB 1935 by Frullo repealing offenses related to illegal knives
HB 1945 by Swanson repealing offenses related to firearm silencers
HB 2003 by Swanson authorizing certain court clerks to carry firearms in courthouses
SB 841 by V. Taylor criminalizing the unlawful installation of malicious tracking software
SB 857 by Hughes establishing victim-offender mediation programs
SB 917 by V. Taylor expanding the offense of improper contact with a child victim to include adult victims
To follow along with us during the week as more bills are filed, check our live tracking updates on the Legislative page of our website. If you are curious to know exactly what bills we are tracking under any other category, email Shannon and he can send you a list that will include hyperlinks to each bill’s text online.
The only substantive committee hearing posted to date will take place in the House Human Services Committee at 9:00 a.m. Monday in Capitol Extension Room E2.030, where the committee will take up HB 4 by Burkett (R-Sunnyvale), and HB 5 and HB 6 by Frank (R-Wichita Falls). These bills are the House’s vehicles for CPS and foster care reform, including completing a “divorce” of DFPS from the Health and Human Services Commission, creating community-based foster care services, and restructuring foster care payments.
Committee schedule change
Speaking of committee schedules, if you intend to come to Austin for a week of volunteer work or for a specific issue, please listen up.
For the first time in memory, the House Criminal Jurisprudence committee has been moved to Monday afternoons. For those of you coming into town for bills in that committee or for our weekly volunteer rotation, that means you need to move your entire schedule up one day from past sessions and either come to Austin on Sunday night or early Monday morning. Our revised weekly schedule will look something like this:
- Monday morning we will have informal briefings starting around 9:30 a.m. at TDCAA’s office, so try to arrive in Austin in time to make that meeting. Afterwards, we will visit legislators’ offices and prepare for committee hearings to be held Monday afternoon or Tuesday.
- Monday afternoon/evening is spent in the House Criminal Jurisprudence committee; later in the session, these will be late nights occasionally requiring us to work to midnight or beyond.
- Tuesday is spent in the Senate Criminal Justice committee and making office visits (these may also become late night in April and May).
- Wednesday is usually a “mop up” day when we fix problems that arose during that week’s committee hearings and start preparing for the next week’s business as we learn of future hearings.
- Most volunteers will be able to return home on Wednesday, but if you want to stay longer, Thursday involves more mop-up and preparation for the next week’s hearings.
- And of course, all of this is subject to change with little or no notice, especially in regard to random bills in other committees.
If you have questions about this new schedule, please contact Shannon.
Who wants to be on TV, Part II
Hollywood must really be hurting for real crime material, because after last week’s solicitation from the Law & Order/Cold Justice people, we got yet another one from a different company this week! Here it is:
I’m casting an amazing new documentary series project and I’m looking for homicide detectives & investigators (active & retired) to share the story of the one case they’ll never shake: The case with the worst crime scene, the cold case they are determined to solve, or the one that changed the way they do their job or even lived their life. We are also interested in investigators who have also started foundations, non-profits, or community mentorship and outreach programs as a result of such cases. The project is being produced by IPC productions for a major cable network. … Our goal is to show audiences the tremendous personal sacrifices that law enforcement officers endure in order to keep us safe and bring about justice. Assembling the pieces of a puzzle, we’ll tell the story of the case through news footage, crime scene photos, and the detective’s own recollection of events. … My deadline for submissions is February 20, 2017.
Casting Director, Big Fish Casting
Email: [email protected]
Quotes of the month
“The lieutenant governor has said repeatedly regarding sanctuary cities that he does not believe that law enforcement has the discretion to choose what laws to enforce and what laws to ignore. That is his position regarding DA Ogg’s proposal.”
—Alejandro Garcia, press secretary for Lt. Gov. Dan Patrick, when asked about the new Harris County policy on marijuana cases.
“What the DA in Harris County is doing is exercising her discretion as allowed under the law. I support that program. It’s smart in cases of this type. Her predecessor had a similar policy issue. This is not a partisan issue.”
—State Rep. Joe Moody (D-El Paso), chairman of the House Criminal Jurisprudence Committee, whose HB 81 would decriminalize low-level marijuana possession cases, as quoted in the same article.
“This issue is absolutely partisan: A Republican DA in Montgomery County says it’s wrong and the Democratic DA in Harris County says is right. There’s obviously an element in the state that thinks this is a good idea, and an element that does not.”
—State Sen. Paul Bettencourt (R-Houston), same article.
“It didn’t have any visibility until Trump sort of called it out. Now it sort of went from zero to 100 miles an hour.”
—Austin political consultant Bill Miller, on the effects of President Trump’s off-the-cuff asset forfeiture comments last week, which reform advocates have been trying to take advantage of at the state capitol.
“This bill and the creation of this office is essential to basically maintaining the integrity of Texas’ death penalty because the quality of representation is so poor.”
—Amanda Marzullo, policy director for the Texas Defender Service, on why they support HB 1676 , a bill to create a statewide appellate public defender for death penalty cases.
“Roses are red
Violets are blue
Cops are bad at poems blah blah blah
Don’t commit felonies.
Happy Valentine’s Day!”
—Festive tweet from the Lawrence (KS) Police Department earlier this week.