National tech press loves Stickland email legislation: Will it become law?

After Ars Technica published a widely read piece calling the bill "unprecedented" and the National Journal followed up, several more news stories have come out regarding legislation now pending before the Governor, HB 2268, which includes an amendment by Rep. Jonathon Stickland to require warrants for government to access cloud-based email. See earlier Grits coverage and these recent stories:

• Austin Business Journal: Texas email privacy bill turns heads
• Computer World: In Texas, cops will soon need a warrant to read your email 
• Government Technology: Will Texas pass nation's strongest email privacy bill?
• RT.com: Texas could set new standard on email privacy laws
• Fierce Homeland Security: Texas legislature passes bill requiring warrants for email searches
• Mashable: Texas police may soon need warrants to read emails
• Daily Tech: Texas seeks to become first state with strong email privacy protections
• Law360: Texas email privacy bill could prod states, feds 

Jonathon Tilove at the Austin Statesman linked to the Ars and National Journal stories but besides that, surprisingly the Austin Business Journal is the only Texas media outlet to cover the bill's passage, much less mention that Texas would be the first state to install a warrant requirement for cloud-based email. My theory is that reporters don't want to have to say anything nice about the author of the email amendment, Jonathon Stickland, who's become a bit of a whipping boy in the liberal press and authored a bill aimed at gutting government subsidies to newspapers. Free from such biases, the national tech press (rightly) consider it landmark legislation.

During session, Grits had considered the warrants-for-email bill a bit of a consolation prize. Location data was where government put up a real fight, probably because the tool is used much more often. Location data is an investigative shortcut; reading reams of old email is a slog, so investigators do it a lot less often. Plus, the law-enforcement lobby really didn't want to stand up in public and say the cops should be able to read your personal email without a warrant. Even those registering opposition to HB 3164 at the committee hearing merely "put in a card." Nobody wanted to speak publicly against it, much less answer questions from legislators on the topic.

Several reporters have asked if I think Rick Perry will veto the bill. While having no direct knowledge, Grits tends to doubt it. For starters, the warrant-requirement was amended to prosecutor-friendly legislation that the DAs actually want. Plus, the bill has gotten loads of positive national press, many of the stories plastered with Perry's picture. It sets Texas apart from the Obama Administration which has a terrible record on this topic. Mr. Stickland gives it a fine, grassroots conservative Tea Party imprimatur. And since the Lege didn't do much for ideological conservatives this year, this is something to sell. Meanwhile, vetoing it would open the governor up to criticism from grassroots conservatives in a potential primary fight with Greg Abbott, John Cornyn, or (God help us) another presidential run. Finally, it's the right thing to do and Perry's record on criminal justice reform topics isn't half bad, though the Fourth Amendment has been a weak spot. I just don't see a reason he would pick this bill out of the pile to veto and many reasons for him to let it become law.

One thing's for sure: We'll know by Father's Day.

RELATED: Federalism, search warrants and cloud-based email: Correcting a false meme

Anonymous, Texas, and other stories

Here are a few odds and ends that could and perhaps should have made it into independent posts but wound up in this roundup instead at the end of a busy week:

'FBI scrutinizes Dallas DA'
The headline from the Wall Street Journal says it all. Their story for now is on the free portion of their site. And the Dallas News reported that District Judge Bob Brotherton will decide next week whether to dismiss the pending contempt ruling against Dallas DA Craig Watkins stemming from the same episode that drew the FBI's attention. Wrote reporter Jennifer Emily, "If Brotherton does not dismiss the contempt case, a date will be set for a hearing to determine whether the charge should be upheld." If John Creuzot wasn't all in for the 2014 Democratic primary already, there's certainly no excuse now for not jumping in with both feet. Run, Judge, run!

Snitching works both ways
The Texas Observer has the story of an Hidalgo County Sheriff's deputy wearing a wire to uncover a major South Texas corruption scandal. The mantra of the allegedly corrupt cop at the center of the scandal gives insight into the corrupting influence of asset forfeiture: “We don’t arrest them. We take their shit." Meanwhile, in Fort Worth a police officer allegedly tipped off crooks before police raids, demonstrating that the use of human intelligence can work in both directions.

Anonymous, Texas
Now that Texas' warrants-for-email bill has hit the national press, several folks who work on electronic privacy issues nationally have reached out to Grits and one of them asked my opinion of the Barrett Brown case. "Who is Barrett Brown?," I sheepishly replied. If that was your reaction, here's a sympathetic but detailed account. See more from Vice, the New York Times and The Guardian. Sounds like he's not really a central Anonymous hacker and is mostly being prosecuted for being a punk (chiefly the case stems from a You Tube threat against law enforcement). Given that that's the one thing of which Mr. Brown appears to be actually guilty, my guess is he'll get the max.

Accuracy of historical location data
During the legislative fight over HB 1608, law enforcement claimed that historical location data from a personal cell-phone was relatively inaccurate compared to real-time pinging and they shouldn't have to demonstrate probable cause to obtain it. That argument was mooted in large part by the example, shown in the House committee hearing, of Malte Spitz, a German politician who obtained his historic cell-location data for six months and teamed up with a newspaper to graphically map it. Then, the same week the bill was heard, new research was published showing that even a few location data points reveal a lot about an individual. The ABA Journal has an article detailing the flip side of that argument, calling prosecutors' use of historical location data as evidence "junk science." Cops can't have it both ways: Either historic location data is accurate enough to use as evidence or it's so inaccurate that it shouldn't require a warrant. Right now it seems law enforcement is making one argument at the Legislature and quite different ones in court.

Which two prison units will Texas close?
The Legislature left the decision to the Texas Department of Criminal Justice, but the odds on favorite prison units most likely to be closed are still the ones Sen. Whitmire wanted: the Dawson State Jail and a unit in Mineral Wells, both run by Corrections Corporation of America. There could be other sensible choices, though. The Connally unit comes to mind (they can't even secure adequate water there, much less staff), or Dalhart, which has been perennially understaffed. Or if you wanted to base things on cost per prisoner, they might look at closing some of the units coming up on a century old or more, some of which have higher per-prisoner costs than units with modern designs. The easiest, though, would be Dawson and Mineral Wells. Both are on contracts that are about to expire so the close-out costs would be less than for any other option. There are many incentives for the TDCJ board to comply with the wishes of the Senate Criminal Justice Chairman. For example, the Lege reduced TDCJ's budget precisely by the amount it cost to run those two units! My money is on those two to remain the frontrunners, though we won't know for sure until TDCJ meets again to decide.

Javert in Waco

California voters recently changed that state's three-strikes law so that the final strike can't be a petty offense. Perhaps something similar is needed in Texas if stealing $35 worth of meat from the grocery store can secure a 50 year sentence from a Waco jury because of so-called "enhancements." The fellow had five prior felonies so he's not quite Jean Valjean, even if the McLennan DA continues to perform his best Javert impression.

Image via Xfinity movie blog.

National expert laments Texas drone bill

Though I hate to say it, if I were Governor Perry, Grits would veto HB 912 - the "drone bill" - and request in the veto message that the Lt. Governor and Speaker of the House appoint a joint, select committee to develop better legislation in the interim. Indeed, make me philosopher king and I'd hire Margot Kaminski to figure out how to reasonably govern this technology at the state level, and not just because I enjoy her company more than Lance Gooden's staff. (Kidding guys!) Grits met Margot at the Yale Law School conference I attended earlier this year and she's thought longer and more deeply about these questions than anybody I've met involved with Texas' drone bill. In a tweet lamenting the passage of HB 912 she recommended this recent paper championing "drone federalism" as an explanation for "why this kind of bill threatens free expression and is not a good idea." Like Margot, I think there's a role for state-level drone regulation. This bill, regrettably, isn't up to snuff.

RELATED: See Grits' critique, "Top Five Things Wrong With Texas' Drone Bill."

Federalism, search warrants, and cloud-based email: Correcting a false meme

There's a meme spreading in national coverage of Texas' legislation requiring warrants for email that needs quashing. At the National Journal, Brian Fung wrote that, "The Texas bill can't override ECPA [the Electronic Communications Privacy Act]; it can only change the way the state deals with lower-level cases. But it would set a high-profile example." Then, Cory Doctorow at Boing Boing wrote that, "The Texas law is somewhat symbolic (since it won't stop Fed snooping), but it's still an important step toward establishing a better norm in privacy standards for files on cloud-based services."

The idea that this bill is "symbolic" or only applies in "lower-level cases" couldn't be further from the truth. Grits replied thusly to Doctorow in the comments:

No, no no! Not symbolic at all! The overwhelming number of prosecutions including for the most serious cases like murder, sexual assault, child abuse, etc., all take place in STATE courts. The new warrant requirement applies in all those cases, which means it applies in most criminal cases in Texas, by a longshot. Ask your friends at EFF-Austin about it, they were part of the Texas Electronic Privacy Coalition that promulgated and helped pass the bill. States get to establish their own rules of criminal procedure with SCOTUS rulings and federal law as a floor, so the law headed to Perry covers every state and local cop in Texas, which means peace officers at more than 2,600 agencies.

Let's be clear: Texas and other states get to set their own search-warrant standards as long as they don't go below floors set by the US Supreme Court. Beyond that, federal criminal procedure applies to federal agents - the FBI, DHS, etc.. It doesn't necessarily govern how states handle criminal cases in their own jurisdictions. In this case, however, Texas law currently incorporates the ECPA statute by reference. What the Stickland amendment to HB 2268 did was to delete the sections of Texas' statute that incorporated ECPA, instead insisting that a warrant will always be required for state and local government to access cloud-based email, no matter how old, and whether opened, unopened, or in draft form.

Texas law doesn't apply to the FBI or other federal agencies operating here, but it does apply to state and local cops from the Texas Rangers to the lowliest two-man PD, every county sheriff, and Texas state agencies. In 2011, there were 256,664 felony cases processed in Texas state district courts according to the Office of Court Administrate (see here, p. 8 - add appointed and retained counsel totals).

By contrast, in the fiscal year ending August 2012, federal courts processed 94,121 cases nationwide, with just a fraction of them in Texas (see here, subtract civil cases from the total). In fact, in Texas the feds have been doing fewer traditional criminal cases because the Southern and Western Districts in particular have been overwhelmed with immigration cases, a situation exacerbated by the US Senate's inexplicable delays approving judicial appointments.

All this to say, the warrants for email legislation would apply in the overwhelming majority of criminal investigations in Texas, including in the most "serious" cases. The hundreds of people on Texas death row, for example, all got there via Texas state courts. The bill is not "symbolic," nor does it only apply to minor cases. It's an expression of federalism - the laboratory of the states - and it would be virtually a snub to his beloved Tenth Amendment for Gov. Perry to veto it.

Bench slap: SCOTUS says Texas capital habeas process could 'create significant unfairness'

Grits doesn't usually follow death-penalty topics but I can never resist a good bench slapping, particularly when SCOTUS decides to show the back of its hand to our friends on the Texas Court of Criminal Appeals, who rival the federal 9th Circuit as a favorite US Supreme Court whipping boy. (N.b., SCOTUS was technically rebuffing the Fifth Circuit for approving Texas' methods; see the correction below.)

This week, SCOTUSBlog has the story of another US Supreme Court bench slapping of the Texas Court of Criminal Appeals Fifth Circuit Court of Appeals in Trevino vs. Thaler, which ruled that Texas' bifurcated death penalty review procedure - where direct appeals and habeas corpus process occur simultaneously - “makes it ‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim’ on direct review.” The Texas system, said the majority, "would create significant unfairness." SCOTUSBlog said the case is "Texas- (and capital-) specific." For judges, that's the equivalent of a student being singled out in class for low marks and being ordered to "shape up!" Again.

From the New York Times report you would think the dissenters objected on grammatical or perhaps laundry-related grounds. "In dissent, Chief Justice Roberts said the Martinez decision had announced a 'crisp limit.' 'But today,' he added, 'the court takes all the starch out of its rule with an assortment of adjectives, adverbs and modifying clauses.' Chief Justice Roberts had voted with the majority in Martinez, as had Justice Alito, who joined the chief justice’s dissent Tuesday."

The SCOTUS  majority essentially accused the Texas Court of Criminal Appeals Fifth Circuit of sophistry, opining that “a distinction between (1) a State that denies permission to raise [a] claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.” Ouch!

CORRECTION: In the comments, Rob Owen, who has forgotten more about death penalty litigation than I will ever know, pointed out that the Supreme Court was technically rebuffing the Fifth Circuit for approving Texas' system, so it was them receiving the bench slap, not the CCA. Grits regrets the error. The decision, however, does indict the Texas system specifically and singularly and will require the CCA to alter its methods for handling ineffective assistance claims in some fashion..

43% of House bills voted out of committee never heard on floor

Grits lamented previously that a great deal of Texas' criminal-justice reform agenda died this year in the House Calendars Committee (a procedural committee that schedules bills for floor votes, or doesn't) and apparently those bills weren't alone. The full Texas House of Representatives approved just 57% of legislation voted out of committee this session, according to data from the Legislative Reference Library. Bills that made it out of committee in the Senate had a 90% chance of passing out of that chamber.

It wasn't that the House was voting down bills, for the most part, the difference was by design. Often during the heart of the session, particularly during the crucial month of April, the lower chamber would hear excruciatingly short floor calendars as hundreds of bills backed up  in the Calendars Committee. By the time the deadlines rolled around, Grits wondered why they were still bothering to hold committee meetings. There were more bills backed up in Calendars already than could possibly be heard in the homestretch in May.

Much of this was about the establishment Rs and the Dems aiming to control the Tea Party contingent, which appears ready to embrace more aggressive criminal-justice reforms than their more moderate Republican predecessors. But that can't go on forever. "Do nothing unless you have to" can't be a long-term strategy for governance, even if it appeared to be the mantra of this year's House leadership. Those guys were elected too, in the districts the centrist Rs drew for them two years ago, no less. Sooner or later you've got to let them vote on bills.

Texas first state to require warrants for old email if bill survives veto period

Very nice story from Cyrus Farivar from Ars Technica about state Rep. Jon Stickland's email bill which was amended on to legislation currently headed to the governor. The article, titled "Unprecedented email privacy bill sent to Texas Governor's desk" (May 28), concluded thusly:

“Privacy is a special thing in Texas—it goes to the core values of Texas,” Chris Soghoian, a senior policy analyst at the American Civil Liberties Union, told Ars.

“It's always good to see states passing pro-privacy legislation because it sends a signal to Congress. It sends a signal to conservative members who might not yet be on board that this is something being supported in their own states and it helps the courts to see that this is a safe space to venture into. When cities and states start protecting e-mail, then judges may feel like there is a reasonable expectation of privacy.”

Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, agreed.

“It is the first state legislature I'm aware of to change the law this way,” he also told Ars. “Other states are currently considering similar legislation, including California—where EFF sponsored SB 467 recently passed the Senate 33-1 and is now being considered in the Assembly.”

“It's significant as proof that privacy reform is not only needed, but also politically-feasible with broad bipartisan support. And hopefully that will impact federal ECPA reform efforts by getting people on both of sides of the political aisle to work together to make meaningful electronic privacy reform a reality. The more states that pass similar legislation, the more pressure it will put on Congress to keep up with the changing legal landscape.”

I couldn't be more proud of the Texas Electronic Privacy Coalition, an alliance of state and local groups powered mostly by volunteers who brought Rep. Stickland the bill and helped promote it. And it should be mentioned that while Jon Stickland's reputation may be taking a beating among the capitol cognoscenti, this legislation was a significant achievement for a freshman. He was bold to file it and bolder still to amend it to a passing bill when the filed version got gummed up in the process. In my book he deserves a lot of credit for that.

MORE: From National Journal. AND MORE: From Popular Science.

Studying how to whittle away at solitary, prison suicides

Eric Dexheimer at the Austin Statesman has a pair of stories related to solitary confinement, one of which ("Do prisons need so many inmates in maximum custody," May 25) begins,

While all prison systems typically have some form of administrative segregation, Texas relies on its maximum custody status more than others. Direct comparisons are difficult; however, the most recent national count, in 2005, showed 2.7 percent of state inmates were on administrative segregation. Although the number in Texas prisons has been dropping slowly since 2006, the percentage here has been about 5.5 percent.

Last week, largely in response to concerns raised by mental health advocates, legislators ordered a detailed analysis of Texas’s use of administrative segregation, including recommendations on reducing its use and the amount of time offenders stay. “Very little is known about conditions in administrative segregation and how these conditions affect its population,” said state Sen. John Carona, R-Dallas, the bill’s author.

Several state prison systems recently have begun dramatically reducing their use of isolation. In some cases, the reforms were compelled by court order; in others, they were self-initiated.

Economics is one reason. As state prison systems struggle to meet budgets, they are taking a harder look at expensive programs such as administrative segregation, which can be double the cost of regular prison units. (A Texas corrections spokesman said the state doesn’t break out costs by custody level.)

Public safety is another. Many maximum security residents — about 900 in Texas last year — complete their sentences in isolation and are released directly back into civilian life without re-acclimation or supervision. A 2007 study of similar inmates in Washington state found they had “significantly higher felony recidivism rates” and committed new crimes sooner than other offenders.

Depending on the study's results, perhaps Texas in 2015 can follow the lead of other states described in the story: "In recent years, Ohio has dropped its administrative segregation population from 800 to 90. Mississippi reduced its from 1,300 to about 300, whittling the percentage of total inmates held in maximum custody from more than 5 percent to 1.4 percent."

Another piece, "Texas prison suicide rate high among inmates in isolation" (May 25) revealed the disturbing fact that though just more than 5% of Texas prison inmates are in solitary at any given time, their number make up to 40% of prison suicides. I had no idea it was that disproportionate. Reported Dexheimer:

Most Texans are unlikely to shed many tears over criminals who decide to end their own lives, particularly those convicted of serious offenses. Yet deaths like [Casey] Myers’ raise questions about how well the state is attending to its duty to care for its inmates.

The deaths also add to the debate over confining mentally ill inmates for long periods in relative isolation. About a quarter of Texas inmates held in administrative segregation have a diagnosis of mental illness or mental retardation.

That isn’t dramatically disproportionate from the overall prison population. Yet experts say evidence suggests that, more than in the general population, prolonged periods of isolation can worsen psychiatric symptoms in some and initiate them in others. Of the 56 Texas inmates who killed themselves in administrative segregation cells between 2007 and 2012, 28 — exactly half — had a mental health diagnosis.

With luck, the passage of SB 1003 by Carona will give us a lot more Texas-specific data and detail about these questions. That's the idea, anyway.

TCJC list of reform bills approved by 83rd Texas Lege

The Texas Criminal Justice Coalition sent out an email this morning detailing reform legislation they supported which passed in the 83rd session. There is a surprising number of juvenile justice bills on the roster but a lamentably short list of bills aimed at reducing incarceration in the adult system.

Wiretapping bill dead mainly because Dallas cop was a jerk

Image via Emergent Chaos

The bill Grits put the most effort into killing this session was SB 188 by Huffman (and its companion, HB 530 by Fletcher) expanding authority of local PDs in big cities to engage in wiretapping. It was a bad bill but no one opposed it in the Senate. And Grits probably wouldn't have stuck my nose into the fray if it weren't for the untoward behavior of one of the bill's most prominent backers.

The two main proponents of the wiretap expansion bill - Det. Jimmy Taylor from the Houston PD and Frederick Frazier from the Dallas Police Association - were also the individuals most prominently opposing HB 1608 by Bryan Hughes requiring warrants to obtain cell-phone location data. Det. Frazier had been particularly hostile and abusive toward Rep. Hughes' poor, unsuspecting staffer assigned to the bill, who'd never before been on the business end of such vitriolic police tirades. ("Welcome to my world," I told her.) One day I came into the office and she was on the phone with Frazier holding the receiver a foot away from her ear with an aggrieved look on her face as he screamed into the line. I could hear him halfway across the room.

Grits is not a fan of such bullying behavior, particularly when it's aimed at a well-intentioned twentysomething staffer from my hometown who's working her butt off for my bill! So in retaliation, I authored an op ed against his wiretap expansion bill in the Houston Chronicle and shared it with the House Criminal Jurisprudence Committee staff, submitted written testimony against the bill at the public hearing on the House side, and visited with committee members' offices behind the scenes to scuttle Frazier's pet legislation. To be sure, members of that committee weren't hard to convince and perhaps the bill would have perished anyway, but there was no other public opposition. By the time I made the rounds after the hearing I could count at least six (out of nine) votes against it. Despite a 30-1 vote in the Senate (and btw, kudos to Craig Estes for opposing it), the bill never made it out of committee on the House side.

My purpose was not just to kill a bad bill, which is always a plus, but also to send a message to Mr. Frazier and his ilk: Next time be more polite, pick on somebody your own size, and if you decide to launch an all-out war against reform bills you dislike, keep in mind that strategy may come back to bite you on your own legislation. It did on SB 188.

Texas closing email loophole, requiring warrant for old content: Feds should follow suit

At the federal level in the wake of the IRS and AP surveillance scandals, we're increasingly seeing headlines like this latest one from Wired declaring, "[Eric] Holder Should Demand Feds Get a Warrant to Read Our Email." The nation at large is becoming aware of something Grits readers have known for some time: Under federal law - which Texas statutes currently incorporate by reference - law enforcement doesn't need a warrant to look at emails stored with a third party like Gmail or Yahoo! once they're older than 180 days. (Quick question: What's the oldest email stored on your own personal system?)

Given this nascent national debate, Grits is pleased to report that the Texas Legislature has sent a bill to Governor Rick Perry, HB 2268, that in its amended form requires a warrant for law enforcement to access old emails, closing the loophole at least for state and local law enforcement in Texas. Federal agents can still access your old emails under the 1986 Electronic Communications Privacy Act, though Congress is (again) considering updating that law. But barring an unexpected veto (the bill amended was a prosecutor-friendly measure the governor is unlikely to oppose), Texas will be ahead of the curve on the email front. Perhaps Texas' new warrant requirement will even contribute momentum toward passing similar federal legislation.

Congratulations to freshman state Rep. Jon Stickland whose HB 3164 served as the template for his amendment to HB 2268, which would ban the sort of snooping into old emails that Congress, the US Justice Department and the courts have inexplicably allowed at the federal level. The Texas Electronic Privacy Coalition brought the bill after Stickland and a couple of other legislators specifically requested it. Ever since the Petraeus scandal, privacy-inclined folks have become increasingly aware of the vulnerability of email stored with third parties and legislators who were aware of the issue needed little priming. To my knowledge, though, Texas will be the first state to specifically address the subject through legislation.

Naturally, I'm disappointed that an amendment to the senate companion of the same bill requiring a warrant for police to access historic cell-phone location data didn't make it onto the version that finally went to the Governor. But requiring warrants for older emails is a nice get. And most of the 126 House members who voted for Bryan Hughes' cell-phone privacy amendment will be back again in 2015 when we can take another shot at it.

RELATED: See Grits' coverage from when Stickland's bill was filed and when it was amended onto HB 2268, as well as an op-ed I authored on the bill's behalf in the Dallas News.

Lege slowly but surely plowing through Tim Cole Advisory Panel recommendations

One has to give the Texas Legislature credit where it's due.

The Timothy Cole Advisory Panel on Wrongful Convictions was a one-time task force charged with making recommendations to reduce false convictions in the wake of the posthumous exoneration of Tim Cole as well as dozens of other Texas men declared innocent of serious felonies after post-conviction DNA testing. See their report (pdf). One often hears that panel made eleven recommendations, but really it was fewer than that. For example, five of them related to eyewitness identification standards, all of which were addressed in just one bill. Consolidated, the group effectively proposed six different legislative solutions:

• Eyewitness ID reform
• Recording custodial interrogations
• Discovery reform
• Expand access to post-conviction DNA testing
• Clarify standard for adjudicating junk-science habeas claims
• Fund staff at law-school innocence clinics instead of an innocence commission

Remarkably, with the passage of discovery reform and Sen. Whitmire's legislation allowing habeas relief in junk-science cases, after this session, to its credit, the Texas Legislature will have approved five of the six major recommendations of the Tim Cole Advisory Panel. Some may have been in more watered down forms than Grits might have preferred but still, that's not a bad record.

Assuming Governor Perry approves these latest bills - and he's been supportive of past legislation based on Tim Cole Advisory Panel recommendations - the final major unresolved item from the list for next session will be requiring police to record interrogations in the most serious offenses. This year a bill to that effect was voted out of the House Criminal Jurisprudence Committee but, like a great deal of criminal-justice reform legislation, never received a vote on the House floor. The police chiefs' association says smaller departments can't afford it and until now my response has been that if they can't afford a recording device the department isn't big enough to handle rape and murder investigations. But that argument hasn't moved the needle so next session I've got my eye on a pot of untapped money that could perhaps be used for one-time recording equipment purchases, in much the same way the state used bond money to pay for dashcams in local police cars back in 2001. Recording equipment is cheap these days, it wouldn't take much.

Still, considering the Legislature created the Tim Cole Advisory Panel in 2009 (the same year it increased compensation for exonerees to become the most generous in the nation) and this is only the second session since its recommendations came out, five out of six isn't a bad ratio. There's more to be done, no doubt, and these measures represent modest first steps toward reform, not its culmination. But to outline half a dozen significant legislative suggestions and see five of them enacted in just two sessions is pretty darn impressive.

Forensic commission gets increased budget, expanded jurisdiction; innocence clinic funding restored

At the Texas Tribune, Brandi Grissom has an update on SB 1238 by Hinojosa expanding the jurisdiction of the Texas Forensic Science Commission and brings the welcome news that the FSC's expanded jurisdiction will also come with a larger budget. (Your correspondent is briefly quoted in the story.) IMO the FSC has exceeded any and all expectations I ever had for them and deserves to be rewarded both with the increased authority and funding.

Grits should also mention that the new budget reinstated funding cut during the 82nd Legislature for innocence clinics at Texas' four public law schools - UT-Austin, Texas Tech, the University of Houston, and Texas Southern - which will see their budgets increased to $100,000 per year. In 2011 the clinics took a 20% cut, which the 2013 budget reinstated. This year, the Senate had recommended (largely thanks to Senators Hinojosa and Whitmire) not only restoring those funds but increasing the clinics' budgets in order to accommodate the volume of intake they receive and their growing participation in larger scale projects like Texas' arson review. Regrettably, though the conference committee working group on criminal-justice had recommended going with the higher Senate figure, House Appropriations Chairman Jim Pitts axed the extra funding when he and Senate Finance Chairman Tommy Williams met for a final budget markup. That was a disappointment. Still, the boost back to 2009 levels is a welcome respite for the clinics at a time when more than ever is expected of them.

In the scheme of the Texas budget these are tiny amounts but they're significant for both the FSC and the clinics, expanding their capacity to fulfill their respective, reform-minded missions.

Former Cameron DA convicted of bribery

Reported the Houston Chronicle ("Former DA convicted in corruption trial," May 24), "A jury on Friday night found former Cameron County District Attorney Armando R. Villalobos guilty on all but two corruption charges after two weeks of testimony that he took bribes to influence cases before him." The case is part of a broader ongoing corruption prosecution in South Texas.:

Villalobos, who took the stand in his own defense, was charged in a wide-ranging corruption scheme in Cameron County that has resulted in guilty pleas by eight people, including former state Rep. Jose Santiago “Jim” Solis as well as [former state District Judge Abel] Limas.

Former Austin attorney Marc Rosenthal and Port Isabel attorney Ray Marchan were convicted by juries of extortion and racketeering. Marchan took his life when he jumped from the Queen Isabella Causeway in Port Isabel earlier this year on the same day he was to report to prison.

One notices it took the feds stepping in to hold a local DA criminally liable. State-level accountability mechanisms from the state bar to the court system as a general rule aren't up to the task.

Prosecutors dissing the Michael Morton Act, and defending it

At the Texas District and County Attorney Association's user forum, see 24th judicial district ADA Terry Breen's embittered critique ofTexas' new mandatory open file policy for prosecutors - he's mad that he may have to give up incriminating as well as exculpatory evidence - followed by a quite reasoned response from forum regular Greg Gilleland which explains in essence why TDCAA supported a "one-sided" open file bill. Steamed Breen, "This is the most anti-law enforcement bill to come out of the legis. in memory. The fact that it was pushed by the leadership of the TDCAA makes it especially galling, and the fact that it was sold as a bill that 'all the stakeholders,' (i.e. including you and me) is even more galling." Gilleland responded:

I've had an open file policy for my entire career. Folks like my old boss, John Healey and my current boss, Bryan Goertz, mandated it. I never had a problem with it. They felt it necessary for the accused to know all the evidence against him and I have always agreed.

If you search this forum you'll find some debates from years past between myself and former DA John Bradley. In those exchanges, I argued for an absolute open file policy like I practiced with. He disagreed.

Being the son of a former prosecutor and a long time defense attorney had convinced me that abuses in closed files could only be cured by having an open file. ...

My open file policy and my copied file policy have not prohibited me in the least from obtaining big sentences for bad violent criminals over the years. It has NEVER handicapped me even when it revealed facts adverse to my case. And of course, it eliminates a plethora of appellate issues.

I really recoiled in horror when former DA and now Judge Anderson testified to the effect that he wouldn't be much of a prosecutor these days if he had to give everything to the defense and that he would lose a lot.

When I've lost, it wasn't because of the open file policy but because of the facts and the truths they revealed.

And so on. The whole thing is worth a read.  The Governor has already signed the "Michael Morton Act" so Mr. Breen is crying over spilled milk. Come January 1, 2014 it will be the law of the land.

RELATED: From the SA Express-News, "Bill requires new ethics training for prosecutors."

House amendment on cell-phone location data could get bypassed

Well privacy fans, I hope you enjoyed that pyrrhic victory while it lasted! On Monday, the Texas House of Representatives amended a Senate bill to require law enforcement to get a warrant (with limited emergency and other exceptions) to access detailed cell-phone location data about subscribers, information that some agencies like the Texas Department of Insurance currently get with only a subpoena. For a moment, hope abandoned was rediscovered and the world shined brighter.

Then yesterday the Texas Senate passed the House companion to that bill, HB 2268, without the language about warrants for cell-phone location data, though it includes Rep. Jonathon Stickland's language from HB 3164 regarding warrants for cloud-based email stored longer than 180 days. It's now up to the bill authors - Rep. John Frullo and Sen. John Carona - to decide with which version of the bill they'll move forward. Both have expressed hostility toward the amendment by Rep. Bryan Hughes even though Frullo was a co-author of Hughes' original HB 1608. The House rejected Frullo's motion to table Hughes' amendment by a whopping 126-4 margin

Still possible but time is dwindling and prospects look bleak. The House will vote tomorrow morning whether to concur in the Senate amendments to HB 2268 or to send it to conference committee. Whether the House will go that far I don't know but support for the amendment on warrants for cell-phone location data was strong. See below the jump an image forwarded by an alert reader of the House vote board passing Hughes' amendment to SB 1052 on Monday. The vote was on a "motion to table" so a red "no" vote was a vote in favor of the amendment. The handful of green lights represent votes against it.

UPDATE/LAMENT: SB 1052 along with its House amendments is officially, formally, finally dead as the House on Friday concurred with the Senate amendments to its companion HB 2268 which did not include the language requiring warrants for cell-phone location data. It did, however, include a version of Rep. Jon Stickland's HB 3164 requiring warrants for law-enforcement to access old emails held by third-party service providers like Yahoo! or Google. But though it had a good run, Texas' legislation on cell-phone location data is dead for the year unless the Governor decides to add it to the "call" for a special session, a move that might make him popular with the GOP base if perhaps not with the Dallas police union.

Man bites dog: DAs support reduced drug sentences, but not in Texas

The headline sounded like news from an alternative universe but appears to be (mostly) legit: The Oregon District Attorneys Association came out in support of reducing drug sentences "as a way of curbing the growth of state prisons." Their main concession on drug sentencing was to issue a report (pdf) agreeing that penny-ante pot dealers shouldn't get automatic prison time. The Association agreed with 11 of 18 recommendations by a Governor's task force (see their report [pdf]), but balked at otherwise-consensus suggestions to eliminate certain mandatory minimums, including for some violent offenses. Notably, the main report recommended a more aggressive reduction of current drug and property-offense levels than the Oregon DAs were willing to concede.

It should be mentioned that Oregon operates under a sentencing guideline regimen that's quite different from Texas' sentencing approach. But the two states are united in a desire by their legislatures to limit prison spending growth, which is why the DAs Association made these concessions.

We've seen Texas judges plead with the Legislature to reduce sentencing categories for low-level drug possession but it's hard to imagine our current crop of DAs doing so. OTOH, TDCAA surprised me this session by coming forward with a one-sided open-file discovery deal at a time when the criminal defense bar had walked away from the negotiating table. And some of their more hard-line representatives at the Lege have softened a tad in intensity, for reasons discussed here and here.  Certainly we didn't hear the sort of weeping and gnashing of teeth over closing two prison units (if it sticks, bringing the total shuttered to three) that one would have expected back when, say, Chuck Rosenthal, Bill Hill and John Bradley were at the zenith of their power. Perhaps one day Texas prosecutors will surprise me again and follow the lead of their Oregon brethren on drug sentencing. As TDCAA's Shannon Edmonds replied when I emailed him the link and suggested as much, "Stranger things have happened."

Nuther overturned case based on Jonathan Salvador crime lab fiasco

After a brief hiatus in which several weekly "hand-down lists" came and went without the Texas Court of Criminal Appeals ruling on any more of former DPS crime-lab worker Jonathan Salvador's cases, another one came down yesterday. In "Ex Parte James Antonio Williams," a six year sentence was overturned because evidence in the defendant's case passed through Salvador's seemingly tainted custody. Admittedly Grits has been distracted so I may have missed some, but by my count that brings the total to 18 convictions overturned totaling 141.5 years worth of prison sentences so far as a result of the scandal, with potentially thousands more to come. I'd begun to wonder whether Texas' high criminal court may reconsider its sweeping rejection of all things Salvador after the breathtaking implications of its rulings became apparent. After all, the Houston-based chemist worked on nearly 5,000 cases. But Mr. Williams received relief based on the same standard as prior cases. It all looks like a mess from here but ironically we've got Yankees marveling that Texas has handled it as well as it has. Go figure.

Perusing the remains: No legal punishment for 17-year old capital murderers, several good bills still alive

There will continue to be no legal punishments on the books in Texas for 17-year old capital murderers after the Texas House of Representatives failed to get to SB 187 by Huffman on last night's floor calendar prior to the midnight deadline. Oops. Guess they'll have to charge them with "regular" murder, then, which still can get the 17-year old 99-life. Prosecutors say they will ask Governor Perry for a special session on the subject, but Grits wouldn't expect it unless one is called anyway on the budget, water, or some other reason. IANAL, but my personal view was that SB 187 did not provide enough discretion on sentencing to comply with the Supreme Court's decision in Miller v. Alabama to which the legislation was reacting. (UPDATE 5/25: More from the Austin Statesman.)

Let's run through the fates of a few other Texas bills for which Grits has been following the end game:

The open-file bill for prosecutors, SB 1611 by Duncan/Ellis, dubbed by its authors and the media as the Michael Morton Act, has already been signed. Otherwise, there are a few good bills Grits mentioned previously which are now headed to the Governor or are about to do so:

Both chambers have approved SB 825 by Whitmire which disallows the state bar from issuing private sanctions when prosecutors are found to have committed Brady violations.

Legislation clarifying the standard by which courts judge habeas corpus writs in junk science cases, SB 344 by Whitmire, is on its way to the Governor's desk, the only recommendation from the Timothy Cole Advisory Panel on Wrongful Convictions to make it there this year. State Rep. Sylvester Turner did a masterful job of shepherding it through the House.

SB 1003 by Carona creating a study commission related to solitary confinement received a second-reading vote before last night's headline. One more vote today and the Governor can consider it. And SB 1114 by Whitmire limiting the use of Class C tickets for school behavior violations made it all the way through the process.

Another bill headed to the Governor, SB 1238 by Hinojosa, would clarify the jurisdiction of the Texas Forensic Science Commission in the wake of a too-limiting Attorney General's opinion from 2011 solicited by former FSC Chairman John Bradley.

The only bill left with even minor potential to reduce incarceration rates by creating incentives for probationers' good behavior, HB 1790 by Longoria, was placed on the Senate intent calendar today and still has a shot. (UDATE: This passed.)

Bad wiretapping bill: Dead. Grand jury secrecy bill: Dead. Good drug policy bills: Dead. Sentencing review commission: Dead. Innocence commission bill: Dead. Bills of innocence commission opponent: Dead.

The action today shifts to the Senate side where there's a good grand-jury transparency bill on the intent calendar that still has a chance: HB 3334 by Hughes would require witness testimony to be recorded in grand jury proceedings as well as that of the defendant. (UPDATE: Failed w/o a senate floor vote.) After the Senate approved its version of HB 912 by Gooden, aka, "the drone bill," the House appointed conferees (Gooden, Burnam, Johnson, Moody, and Stickland) and is waiting on the Senate to do the same. (UPDATE: Senate conferees are Estes, Duncan, Ellis, Hegar, West.)

What else have readers been watching pass or die in these waning days? Update us in the comments.

RELATED: No shortage of good criminal justice bills but lower chamber never voted on them.

ALSO RELATED: Maurice Chammah at the Texas Tribune - who's about to leave the Trib to freelance and play fiddle professionally (suerte amigo) - has an article detailing which portions of the Texas Association of Business' new-found criminal justice agenda passed and failed.

Texas House approves electronic privacy legislation

Great news!

A pair of bills backed by the Texas Electronic Privacy Coalition were amended onto a Senate bill in the Texas House of Representatives (SB 1052) - one requiring warrants for police to access cell-phone location data and another instituting a warrant requirement for emails stored with a third party.

Rep. John Frullo accepted Rep. Bryan Hughes' HB 1608 (requiring warrants for law enforcement to access cell-phone location data) as an amendment to SB 1052, though not until after after his motion to table Hughes' amendment failed by a whopping 126-4 margin.  Frullo also accepted an amendment to require warrants for email stored with third parties - legislation originally filed as HB 3164 by Jon Stickland. Now, the Texas Senate must decide whether to concur in the amendments or send the bill to conference committee.

Find below the jump a copy of a press release from the Texas Electronic Privacy Coalition lauding the passage of the two amendments.

Texas House says "Get a warrant!"

May 20, 2013 -- Today the Texas House of Representatives voted to improve privacy protections for email and cell phone location data. SB 1052 by Carona was amended on the House floor to require government to secure a probable cause warrant before it can collect detailed cell-phone location data or the contents of email messages from cell-phone or internet companies.

"Most people are shocked when they learn that law enforcement or government agencies like the Department of Insurance can get the contents of email or find out everywhere you've been for the past two months by going directly to your service provider," said Greg Foster, EFF Austin. Under the current legal framework, crafted before cell phones or email existed, government can get data directly from "third parties" like Verizon or Yahoo, and people are deemed to have "no reasonable expectation of privacy" in that data.

"I can't remember the last time I wrote a paper letter to someone," said Heather Fazio, Texans for Accountable Government. "Technology has now made letter writing easier, and delivery instantaneous. That's a good thing. But how is it possible that my electronic letters don't have the same level of protection from government intrusion that my paper letters have?"

It is possible, because the laws were written before the technology was invented. In the 1980s, no one thought people would store data more than six months. Older data was considered "abandoned" and that is still the basic framework today. Texas law requires agencies to get a warrant for the content of email that is less than 180 days old, but agencies can review older email and unsent draft email with a simple request to the email provider. Historic location data works basically the same way.

"If I record my daily activities in a diary, and keep it in a drawer in my house, government needs a warrant to come in and read it," said Claire James, volunteer for the Texas Electronic Privacy Coalition. "But the much more detailed record of my day created by constant transmissions from my smart phone to my cell company are readily available, and that's just wrong."

Some agencies testified that they do get a judicial order for location data under a lower standard than a warrant requires, but since most of this activity occurs in secret, the public has no idea whether such  invasions of privacy actually result in criminal convictions.

EFF Austin, Texans for Accountable Government, the ACLU of Texas, the Texas Civil Rights Project and others this year joined together to create the Texas Electronic Privacy Coalition, determined to reinstate 4th Amendment rights for the smart-phone age.

"That means government needs a warrant based on probable cause to read a person's digital content or track a person's location, regardless of where the data is stored or in what format," said Coalition volunteer Scott Henson. "Today, the Texas House took a major step forward."

UPDATE (May 23): Hope you enjoyed that pyrrhic victory while it lasted! The Texas Senate passed the House companion HB 2268 without the language about warrants for cell-phone location data, though it includes Rep. Jonathon Stickland's language from HB 3164 regarding warrants for cloud-based email stored longer than 180 days. It's now up to the bill authors - Rep. John Frullo and Sen. John Carona - to decide with which version they'll move forward.

NUTHER UPDATE.

Minimal raises for TX prison guards

The union representing Texas prison guards, the American Federation of State, County and Municipal Employees (AFSCME), issued a press release today complaining that pay hikes for corrections officers are half those given to "other statewide law enforcement" (I presume that's DPS). Taking account "an increase in retirement contributions, correctional officers will only see a little over 1% increase in their actual pay this next September." See the full press release below the jump.

Texas Prison Raise Raises Questions
By Lance Lowry, AFSCME

May 20, 2013

With the Texas Legislature releasing its finalized budget this last week, correctional officers question why their pay raise was only half that of other statewide law enforcement.  Lance Lowry President of the Huntsville American Federation of State County Municipal Employees, which represents Texas Correctional Officers, stated Monday that the State Legislature is treating correctional officers as the ugly stepchild of the Criminal Justice System.  Texas Correctional Officers will only receive  a 5 % raise over two years, while all other state law enforcement will receive a 10 % raise.  Lowry states with the raise split up over two years and an increase in retirement contributions, correctional officers will only see a little over 1% increase in their actual pay this next September. 

Lowry has attempted to address with the legislature the increasing staffing shortages which plague Texas prisons.  Staffing levels have fell to almost half the required officers at several Texas prison units.  Lowry states the current proposed increases fails to cover inflationary cost of living over the last two years and the legislature is being unrealistic on their attempt to address chronic staffing demands now in the thousands.  With energy production increasing dramatically in South and East Texas, Lowry states most officers can make twice as much in the energy sector and expects staffing to only get worse.  

In the late 70's and 80's the Texas Prison System was plagued with chronic under funding, which resulted in the Federal courts taking over the prison system.  Lowry states the legislature and state leadership have signaled again they are incapable of properly running their prison system and states history is repeating itself.  

Lowry states while most correctional officers are out of sight and out of mind, they do one of the most important jobs in our criminal justice system.  The job is hot, dirty, extremely dangerous, and is one of the most stressful jobs anyone can incur Lowry states.  Prison officers receive little recognition unlike police who are exposed to the public everyday.  Lowry states there is a clear wall of silence shielding correctional officers from the general public.  

In February, 17 former prison guards were indicted by a federal grand jury after a 4 year investigation authorities dubbed Operation Prison Cell.  The guards are alleged to have help inmates commit crimes from behind bars at TDCJ's McConnell prison in Beeville, including bringing in drugs and cell phones to coordinate crimes outside the walls.  Lowry states while the majority of correctional officers are honest, the poor pay, lack of experience, and work conditions make prison officers more susceptible to corruption.  Lowry states current politicians making the decision were short sided by not treating correctional officers with professional respect.  Lack of loyalty and commitment creates an atmosphere for corruption.  Lowry states it's not hard to look south of the border and see what a low wage criminal justice system gets you. 

Lowry states every time he visits the Texas Capitol he is haunted by the words of AFSCME's former Beeville Union President Daniel Nagle, who stated in 1999 while on the Texas Capitol steps, "Someone will have to be killed before they do anything about the shortage of staff in Texas prisons."  Two weeks later Officer Daniel Nagle was killed at the McConnel Prison Unit in Beeville by Inmate Robert Pruett who now awaits execution for the murder.  

Lowry states he appreciates a raise, but with the amount it's like appreciating a doctor treating a bullet wound with a small bandage, the problem is still there.  Lowry says the prison raise raises more questions on how the state realistically plans on staffing a chronically understaffed prison system with only a small increase in funds.

Lege leaning toward grand jury transparency

Quick update on a couple of grand-jury transparency bills we've been discussing on Grits this session:

On a positive note, Rep. Bryan Hughes' HB 3334 requiring recording of grand-jury witness testimony in addition to defendants cleared the Criminal Justice Committee in the Texas Senate on Friday and still has time to pass.

On the flip side, as Big Jolly reported on Friday, SB 834 making grand jury names secret appears to have died a much-deserved death on the House side. He wrote, "The only chance it has now of being revived is by attaching it as an amendment to another bill but several reps are carefully watching for this and will make certain that it doesn’t happen." Glad to hear it.  Jolly posted a video of former Harris County First Assistant DA Jim Leitner testifying against SB 834 and he hit most of the high points, but for more background see prior Grits coverage and Mark Bennett's take on the bill.