House Interim Study on Criminal Justice Reform Report to the 88th Legislature

The House Interim Study on Criminal Justice Reform interim report to the 88th Legislature covers bail reform, policing, drug offenses, prosecutorial discretion, detention and incarceration, civil asset forfeiture, jury instructions, the grand jury process, juvenile age range, and recidivism and re-entry. For more information see the full report here.

Spotlight on Recommendations

Bail Reform

• The Texas Legislature must continue to focus on fixing, improving, and strengthening the state’s broken bail system, including considering whether additional legislation is necessary to ensure that all Texans are protected from the most dangerous criminals while also ensuring the safeguarding of the constitutional rights of each and every defendant who finds himself or herself in a Texas court. The solutions to this problem should not be and must not be political or partisan. No matter our politics, each of us should be laser-focused on the safety of our citizens, and work to advance policies necessary to ensure that our criminal justice system is fair, reliable, and constitutional – and strong and smart on crime.

Policing

• F-5 Termination Reports
  • The Legislature should direct TCOLE to better address officers who have been terminated and are re-hired by another police department. First, the current F-5 Termination Form should be reworked to provide a better picture of terminations. While there is a legitimate need for some level of confidentiality, however, once there is a final determination, there is a great need for transparency and the information to be available, if not to the public, then at a minimum to all other law enforcement agencies. Further, grounds for decertification only come into play after two dishonorable discharges. A dishonorable discharge can be anything from insubordination to criminal conduct. In the instance of criminal conduct or more serious allegations, it should not take two separate instances of misconduct before a decertification is possible, especially as they are appealable and due process is in place.
  • The Legislature should consider existing law and analyze ways to hold unfit officers accountable at all levels, while maintaining their rights to due process under the law. Sustained Brady violations or sustained excessive force complaints should be grounds for decertification. The existing appeals process for F-5 terminations could be followed for these other types of complaints as well, providing for appeals and confidentiality until a final resolution is reached.
• Decertification Database
  • The Legislature should consider creating a decertification database or registry. Several other states, including North Carolina, Kentucky, Louisiana and California, among others, have implemented such practices to boost police accountability and ensure that those who have proven misconduct do not perpetuate harm by moving on to another community or agency. Access to the created database should be available to the chiefs or heads of law enforcement agencies and could be checked during the hiring process.
• Data Collection and Transparency
  • The Legislature should provide clear and concise guidelines on what data and variables should be collected and the oversight of that data collection. We should provide TCOLE with the resources they need to be able to have the appropriate IT infrastructure to identify errors, make corrections, and enforce compliance. Further, the Legislature should consider expanding our existing data collection practices outside of vehicle stops. This can include data from pedestrian stops and arrests; use of force, particularly settlements, judgements, payouts, and ultimate outcomes; and basic data on department policies and procedures. Finally, with any proposal before us in the Legislature, we should balance the need for confidentiality and uncompromised data on the behalf of law enforcement with the public interest and need for transparency.
  • Additionally, the Legislature should consider granting TCOLE the authority to create a set of statewide professional law enforcement standards and give them the ability to impose sanctions for noncompliance with these standards.

Drug Offenses

• Changes in drug policy should be carefully analyzed by the Legislature, if the intent is to have individuals in a system that provides treatment and necessary services helping them get back on their feet. In order to reduce recidivism rates, the system should be built around that goal with a framework in place to ensure those services and treatment are being provided. The Legislature should consider proposals that maintain public safety, but ultimately ensure that money and resources are being used where they are most needed and most effective — on violent and serious crimes.

Prosecutorial Discretion

• Prosecutors swear a solemn oath to uphold and defend the laws of the state of Texas, as passed by the duly elected Texas Legislature. For prosecutors to knowingly and willingly refuse to enforce state laws — and even further, publicly announce their refusal to follow and enforce state laws — is a violation of their oath and greatly jeopardizes the entire justice system and weakens the rule of law. The foundational principle of prosecutorial discretion on a case-by-case basis must be protected. But state laws must be enforced. Any prosecutor who refuses to do so must be held to account.

Detention and Incarceration

• TDCJ’s Phased AC Installation Plan: The issue of air conditioning directly relates to TDCJ’s issues with recruiting and retaining staff. In addition, it impacts inmates themselves and their health, as both TDCJ and inmate advocates have emphasized. Then Legislature then should fulfill TDCJ’s Legislative Appropriation Request, allowing them to install and retrofit all facilities with air conditioning over a 10 year four-phase plan.

Civil Asset Forfeiture

• The Legislature must continue to balance maintaining a useful and effective tool for our law enforcement officers with meaningful reforms to ensure no Texan has his or her rights and due process violated, and also ensure that there is a transparent process when dealing with forfeiture claims.
• Expand Reporting Requirements: The Legislature should expand reporting requirements and require the tracking of county level data on civil forfeitures. At the county level, we should know the basic information regarding any forfeiture, the location it occurred, the amounts and a description of the property, any criminal charges associated with the seizure and their outcome, as well as the final disposition of property. In conjunction with county level data collection, the state should require departments to submit an annual report on their forfeitures with much of the same information — the number of annual forfeitures, different types of forfeitures collected, the values and the reasons/offenses that gave cause for the seizure, where did the property end up or where were the forfeiture funds spent, the number of convictions associated with forfeitures, etc. This information should be easily accessible and not require months of paperwork and public information requests to obtain. This would not only provide access to important and valuable information, but would create greater transparency throughout the process which in turn, helps foster greater faith in the justice system and its proper functioning.
• Examine Procedural Reforms: The Legislature should strongly consider and evaluate any legislative proposals that would make procedural reforms to asset forfeiture. We should consider proposals that strike the balance between asset forfeiture’s validity as a tool and streamlining the seizure process in a more effective, efficient, and transparent process — whether those proposals focus on a return of forfeiture to the criminal court system, shifting the burden of proof, or making changes to the requirements to utilize forfeiture. As there is no requirement for a prompt post-seizure hearing or even any time of framework for such a process, property owners seeking the return of their property never get before a judge until a forfeiture case has already been filed, oftentimes even after a district attorney has already served them with written discovery requests. The Legislature should consider proposals that provide a clear and efficient framework for returning any seized property when there was no conviction or criminal charges pursued.

Jury Instructions

• HB 252: During 87th Session, the House passed House Bill 252, relating to certain sentencing procedures in capital cases. The bill would have provided clarity for jury sentencing instructions in capital cases. When dealing with capital cases, cases of serious consequence where the death penalty is on the line, there can be no room for confusion and misunderstanding. Instead, transparency and ease of understanding should be a goal of the upmost importance. The Legislature should pass HB 252 or similar legislation to address this issue and provide much needed clarity to jurors.

The Grand Jury Process

• The Legislature should carefully consider proposals that provide meaningful reforms to the grand jury process. When the grand jury process is done correctly and is executed as intended, it can work well. However, it is also a process that can be easily manipulated or abused. The grand jury being a secretive process provides much needed protections for individuals and their right to privacy, but secret does not and should not inherently mean untransparent.
• Increased Transparency: In the interest of transparency, the Legislature should require transcripts of the grand jury process to be made available, either transcribed or recorded. Additionally, the Legislative should require policies that would prohibit the same case to be taken back to grand juries multiple times without the addition of new evidence, which would act as a check on the power of the prosecutor. Ultimately, any proposal on grand jury reform should all be considered and weighed through multiple lenses. Does this create new problems or unintended consequences that defeat the purpose of the reform? Does this create a focus on the use and abuse of the system and work to protect the integrity of the system? Does this benefit every potential defendant, or only those with the resources and adequate counsel to take advantage of them? The Legislature’s goal should be to protect the integrity of a system that works from potential misuse, providing transparency, and returning grand juries to their original intent.

The Juvenile Age Range

• Juvenile justice issues are frequently some of the most difficult issues we face. In these instances, the state handles children who have often not had the easiest path through their young lives and are dealing with trauma, circumstances outside of their control, and whose brains have not finished developing in ways to evaluate logic, risk, and consequences. It is essential for the Legislature to find ways to balance these issues with the need for justice.
• Raise the Lower Age
  • We recommend that the 88th Legislature raise the lower age of criminal responsibility. Currently, the minimum age of criminal responsibility for minors is 10 years old. Children below the age of 13 need responses to behavior that can reach down to the root of the behavior by addressing trauma and the causes of their behavior. Indeed, in 2021, approximately 60% of juvenile justice referrals were for misdemeanor offenses.
  • We recommend then passing legislation that would raise the minimum age of criminal responsibility to exclude 10, 11, and 12 year olds, with certain exceptions. The presumption should be that children in that age range be referred to the mental and physical services that they need in their communities rather than TJJD facilities. However, if a law enforcement officer has received a referral and believes the crime rises to a violent or serious nature, then a juvenile court should be required to hold a pre-adjudication hearing to determine whether or not to waive jurisdiction of the child. The court should look at what interventions have been taken by the parents, family, guardian, school, child protective services, or county family and youth services. The court should then use this to determine if those interventions are sufficient to ensure both the safety of the public and of the child. If the court determines they are sufficient, it should dismiss the charges and refer the child to the appropriate services. However, if the court determines that the court should intervene, then the child would be referred to the Texas Juvenile Justice Department, as it stands today. Ultimately, this process would seek to strike the right balance between getting a child the help they need while ensuring that public safety is protected and justice continues to be served.
• Second Look
  • During the 87th Session, the Texas House and Senate overwhelming passed House Bill 686 by Representative Moody. Known as the “Second Look” bill, it would have adjusted parole eligibility for certain youth offenders by requiring a parole panel to take certain factors relating to growth and maturity into consideration when determining whether to release on parole an inmate who was younger than 17 when the offense was committed. Additionally, it changed parole eligibility for an inmate serving a capital or first degree felony offense if it was committed when they were younger than 17 to allow for parole to be considered after 20 years, rather than 40 years. The bill was vetoed by the Governor due to conflicting issues with required jury instructions in our state. The 88th Legislature should address the issues of conflicting law and pass this or similar legislation again.

Recidivism And Re-Entry

• In recent sessions, the Legislature has implemented several reforms aimed at removing barriers and getting formerly incarcerated Texans integrated back into society smoothly and effectively, whether that is removing red tape from occupational licensing regulation, or providing additional educational opportunities. We can and should continue that work.
• Clean Slate: The Legislature should pass “Clean Slate” legislation,similar to House Bill 3601 by Representative Leach from the 87th Session, which provides for automated record clearance for those who are already eligible to have their record sealed. Under existing law, a person with a first-time, nonserious misdemeanor is already entitled to presumptive relief to have their record sealed. However, there remains an onerous process which requires court filings and necessitates the hiring of an attorney and paying additional fees. The Legislature has already deemed them eligible to have their record sealed — removing these additional barriers eliminates red tape and would make it easier for Texans to find gainful employment and access to housing.
• Occupational Licensing Reform: The Legislature should continue its work with regard to occupational licensing reform. In the 86th Session, House Bill 1342 by Representative Leach was passed, which allowed more Texans who may have had justice involvement to receive an occupational license. Instead of a rubber stamp denial simply from having a criminal record, it required licensing authorities to examine the application more closely, provide for an automatic denial only if the crime had a relation to the license being sought, and provide applicants with additional information for why a denial was issued and how they could improve their chances of licensure on a later attempt. We recommend continuing to build on this work by passing legislation that requires licensing boards to consider cases individually instead of using broad one-size fits-all policies. For certain non-violent offenses, if a period of time has passed without any additional criminal activity, should that prevent someone from accessing a license to have gainful employment? We think not. This is a practice several other states, including Florida, West Virginia, Arkansas, and Ohio have all implemented. Licensing boards should have a presumption in favor of licensure instead of denial, not just for those who haven’t any justice involvement. Obtaining employment after incarceration significantly reduces the probability of recidivism. We should be encouraging Texans to take these steps, not making it more difficult.
• Employer Liability Protections: In 2013, the Legislature passed House Bill 1188 by Representative Senfronia Thompson, which provided liability protections for employers who employ individuals with criminal convictions. This was a huge step forward in helping those with a criminal history gain employment, on this Texas lead the charge and other states, including Louisiana have followed suit. The 88th Legislature should continue to make strides and lead in this direction.