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Dateline Houston

Recent stories from diverse parts of Texas suggest that increased awareness, public pressure and new technology are creating more accountability for law enforcement officers who use excessive force.

On Saturday, the City Council of the small central Texas town of Hearne voted unanimously to fire a police officer who shot and killed a 93-year-old woman in her home. Her nephew had called police after the woman threatened him with a revolver, angry that he wouldn’t turn over her car keys. The officer’s firing is especially remarkable because the woman’s nephew says she shot twice before being killed. Councilmembers may have been swayed by national media attention and local outrage, but also by the officer’s history. In just two years on the force, Stephen Stem, who is white, killed two black citizens in the city of about 5,000. The first shooting took place a few months after Stem became an officer. That time, a grand jury cleared Stem and he returned to work.

On Monday, a federal jury found that four Galveston police officers used excessive force when they beat and pepper-sprayed members of a wedding party at a bar in 2008. The jury awarded the dozen plaintiffs almost $49,000 in damages. The brawl started when an off-duty officer working as a security guard tried to arrest a 19-year-old, Cole O’Balle, for underage drinking. O’Balle allegedly struck the officer, who called for backup, and about 30 officers—nearly every on-duty officer on the island—responded. They beat O’Balle so badly he had to be flown to the hospital by helicopter. Nine officers involved were temporarily suspended and four received written reprimands. The jury did not, however, find consensus on the $13 million claim by former Astros pitcher Brandon Backe, another attendee who says the injuries police gave him that day ended his career.

Also on Monday, an Austin grand jury indicted Detective Charles Kleinert on a charge of manslaughter for shooting an unarmed man in the back of the neck in July. Kleinert was investigating a robbery at a bank when Larry Eugene Jackson Jr. tried to use a fake name and ID to get service there. The bank manager reported this to Kleinart, who tried to question Jackson and pursued when the man fled. Kleinart flagged down a passing motorist to use his car and chased Jackson under a bridge where he says he shot Jackson accidentally. Kleinart, who’d been an officer for almost 20 years, retired in October before an internal affairs inquiry was complete, and the Austin Police Department decided not to complete its investigation. With no official negative findings against Kleinart, the file on the killing was sealed. (For more on the secrecy of internal affairs investigations, read the Observer feature “Crimes Unpunished” here.) If convicted of the second-degree felony, Kleinart could face up to 20 years in prison. It’s the first time a grand jury has indicted an Austin officer for an on-duty shooting in more than a decade.

Finally, in Dallas on Wednesday the City Council approved a $105,000 settlement in a lawsuit claiming excessive force during a home search in 2010. Danny Cantu alleges officers threw a flash-bang grenade into his house, entered without warning, zip-tied his hands and then beat him until he lost consciousness. Officers say they were executing a no-knock search warrant because they believed Cantu was trafficking cocaine for a Mexican drug cartel. They found 0.1 grams of cocaine and a sawed-off shotgun, but Cantu was never charged with a crime in connection with the search warrant. The Dallas Morning News reports that verdicts or settlements in lawsuits against the Dallas Police Department have cost the city about $6 million since 2011. There have been 10 six-figure awards in that time. For contrast, between 2006 and 2010 there were six awards of that size totaling just $1 million.

Video played a key role in several of the recent cases. “The frequency with which we now have videotapes has certainly leveled the playing field,” Don Tittle, a lawyer for one of the plaintiffs, told the Dallas Morning News. “Now, in all those scenarios where we had an individual’s word against an officer—which was always a loser for the individual—if there is videotape, it doesn’t lie, and it has changed things.”

Youth in the Texas Juvenile Justice Department's Phoenix Program
Patrick Michels
Youth in the Texas Juvenile Justice Department's Phoenix Program, photographed in September 2012.

Until recently, the conservative pivot from “tough on crime” to “right on crime”—policies that push de-incarceration for nonviolent offenders—has been couched in economic terms. Locking people up is expensive. If it doesn’t increase public safety, why do it? But a new criminal justice study from a prominent right-wing think tank barely even mentions money. Instead, other Republican love objects take the fore: family and responsibility.

The subject is confinement of youth for status offenses. A status offense is a behavior outlawed for minors that would be allowed if an adult were doing it, like drinking, violating curfew or, most vaguely, “incorrigibility.” Federal law prohibits extended detention of children for status offenses, but the Texas Public Policy Foundation (TPPF) estimates that thousands of minors are still hauled off to jails because of a legal loophole: violating a valid court order. It’s basically contempt of court for kids. If you run away from home, and a judge tells you not to do it again, but you do, then you’ve violated a valid court order and can be sent to a group home, detention center, or other residential facility. The practice has dropped in popularity nationwide, and Texas accounts for more than 15 percent of confinements for status offenses nationally—about 1,300 a year.

The study’s authors call these detentions unnecessary government intrusion. “When I was a kid, half of this stuff seemed to be juvenile shenanigans,” says Derek Cohen, a policy analyst for the TPPF’s Center for Effective Justice. “[It’s] the sanctity of the family, and I would say the responsibility of the family to discipline their own children without the state interceding.”

Punishment for status offenses are distinct from criminal punishments because they’re meant to protect youth from themselves rather than to protect society. Putting kids who’ve only, say, run away from home in close quarters with serious juvenile criminals risks fostering antisocial attitudes and gang affiliation, the report says. “In addition, the confinement of status offenders is expected to increase barriers to reentry into community, home, and school settings, and increase the likelihood that they will be rearrested, re-adjudicated, and re-incarcerated,” write the study’s authors.

It’s an interesting tack for the think tank that recently posted a piece on its website titled, “Forcing Reusable Bags On People Really Is Dangerous.” Research indeed shows that criminalizing youth misbehavior such as truancy (which in Texas, unlike most states, can be a misdemeanor) does more harm than good. But the same research demonstrates that other barriers to re-integration, like the many restrictions on felons, increase the risk of continued criminal behavior. The Texas Public Policy Foundation folks see some of this as government overreach, like the occupational licensing requirements that bar felons from obtaining certain jobs.

But they do have a limit. Will the state’s foremost conservative think tank someday advocate for ex-cons to be eligible for food stamps? “We haven’t considered that,” Cohen says. “That’s not really in our bailiwick.”

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Houston Mayor Annise Parker
Greater Houston Partnership / Richard Carson
Houston mayor Annise Parker at the State of the City Address

Houston Mayor Annise Parker’s proposed civil rights ordinance wasn’t a day old before a religious group said it evoked “fear” that Christians would be punished for “practicing our historical beliefs.”

Ah, history. Have you ever gotten it wrong?

Parker announced the new ordinance yesterday in her annual State of the City address. Though still being drafted, it would codify an existing executive order prohibiting discrimination by city government and its contractors but also cover housing and public accommodations. That means retail stores, restaurants, bars, and any service provider with a brick-and-mortar location could be cited for discrimination based on age, sex, race, disability, veteran status, sexual orientation or gender expression. The Office of the Inspector General and a new seven-member Human Rights Commission would investigate complaints and try mediation first, though failing that the offender could be charged with a misdemeanor and fined.

The fuss, of course, is over including gay and transgender Houstonians among the protected. The Texas Pastor Council, a far-right group that has called Parker a “sodomite,” issued an open letter to the mayor today calling the “San-Antonio Style [sic]” ordinance a “Bad Fit for Houston.” It’s referring to the LGBT non-discrimination ordinance San Antonio passed in September after much hullabaloo. The letter says that the ordinance “assaults not only the values but the basic First Amendment rights of city citizens, business owners and churches to live, speak about and practice their faith.” It also spells Jim Crow “Jim Crowe.”

San Antonio had to pass an LGBT-specific ordinance because—like every other major city in the United States—it already had other civil rights protections. Houston, a majority-minority city and one of the most diverse in the nation, has none. Parker states her goal is not just to create local recourse for discrimination but to take a stand as a city. “[T]he Houston I know doesn’t turn its back on inequality,” she said.

In a press conference following the speech, Mayor Parker said the ordinance is not a primary focus of her final term in office and that she hopes the City Council will pass the measure quickly and “get on down the road.” But her administration must have known it would meet resistance. The whole State of the City Address, which was hosted by the Greater Houston Partnership, the city’s most powerful business group, was structured to psychologically prime its audience for acceptance. The opening invocation by a Catholic priest mentioned diversity, differences and those needing “special protection,” and included Mayor Parker’s lesbian partner in its blessings. As the large, be-suited crowd enjoyed their chicken and haricot verts, three huge screens behind the stage alternated triptychs of Mayor Parker doing mayor things—plus one image of her wedding day—with affirmations like “Houston is tolerant” and “Houston is inclusive.” The sayings were pretty pointed. “Houston is open-minded. Houston is unbiased. Houston does not discriminate.”

When she spoke, Parker saved announcing the ordinance for last. The audience laughed at her jokes and interrupted repeatedly with applause as she detailed the city’s successes—a hot economy, infrastructure investment and lowered crime—but they responded tepidly to the speech’s capstone. That may have been because business owners are concerned about frivolous complaints or because the bathroom lines were going to be really long.

Parker plans to present a draft of the ordinance April 30th and place it on the City Council agenda for May 7th. She says most council members have expressed support for LGBT protections so she expects quick passage, but backers are concerned that groups like the Texas Pastor Council will successfully petition to add a referendum on it to the November ballot. Even if they do, they may have a hard road. Houston narrowly but consistently leans Democratic. Back in 2001, voters amended the city charter to ban city spousal benefits for anyone except “legal spouses,” but Parker recently defied that successfully.

“It’s long past time that we ensure equal protection for all of our residents,” Parker said in a statement yesterday. She’s betting the city that elected her three times agrees.

Texas Court of Criminal Appeals seal

Craig Rudy Reynolds was lucky three times, but not four.

In 1990, when Reynolds was convicted of sexual assault of a child, Texas didn’t have a public sex offender registry. Lawmakers established one just a year later, but it applied only to convictions after September 1991, so Reynolds was exempt. Then, in 1997, legislators changed the law to require all sex offenders convicted after 1970 to register—but only if currently incarcerated or on probation or parole. Reynolds had already served his full five-year sentence. He was a free man.

But it didn’t last. In 2005, lawmakers amended the statute again to require every post-1970 sex offender to register, whether supervised or not. Reynolds, who’d done his time a decade before, says he didn’t know about the change, but that didn’t matter to the court that found him guilty of failure to register in 2009.

The Court of Criminal Appeals, Texas’ highest for criminal cases, heard Reynolds’ appeal in February. This time, he argued both that he couldn’t have known he was supposed to register and—more intriguingly—that the new requirement is unconstitutional because it was retroactive punishment.

The U.S. Constitution forbids ex post facto laws, which change the legal consequences of an act committed before the law was passed. That’s why you can’t go to jail for having eaten apples in 1970 if they’re outlawed in 2015. But you can, at any time in the future, get added to an apple-eater registry, denied an occupational license, and kicked out of public housing. Those are considered civil penalties, meant to protect the public, rather than punitive ones meant to punish or deter. Unlike punishment, civil penalties can apply retroactively.

“Criminal convictions carry a wide variety of what are called collateral consequences,” says Jennifer Laurin, a professor at the University of Texas School of Law. “In Texas, there are dozens and dozens of them.” For example, most felons in Texas can’t get welfare, run for office, serve on a grand jury, or drive a school bus. Restrictions like these can be enacted at any time and affect people whose crimes are long behind them.

So what makes something a civil penalty and not a punishment? The Legislature’s say-so. In court challenges, the effect of a law has been considered less important than its stated intent. “Obviously [sex-offender registries] do have a consequence of making life very difficult … and are certainly experienced by the person, as well as the community, as punishment in a meaningful sense,” Laurin says. “Nevertheless, that’s not the primary purpose of them.”

In the end, the Court of Criminal Appeals declined to rule on whether Texas’ registry law can be applied retroactively, saying Reynolds should have brought that up earlier. Reynolds lost his appeal and now faces another five years in prison.

Laurin says such civil penalties are on the rise. “There are states that have domestic violence registries,” she notes. “There are states that have animal cruelty registries. There are states that have at least proposed DUI and DWI registries.”

The main check on such expansions is political. “The more that the general public is affected… the harder it is for the Legislature to enact,” Laurin says. “The reality is that convicted sex offenders don’t have much of a lobby.”

Texas Attorney General Greg Abbott
Patrick Michels
Texas Attorney General Greg Abbott

Last week, I think we can all agree, was pretty rough on Greg Abbott. After weeks of Wendy Davis pushing the fair pay issue, it finally went down like a vending machine: slow, then fast, then with treats for everyone. But Davis and the media weren’t the only ones giving Abbott a hard time. On Wednesday, the Texas Court of Criminal Appeals got into the act, issuing a response directed at Abbott that could also legally be considered a burn.

It went like this. In October, the court threw out a 2005 statute banning sexting between adults and minors because the language was too broad. It could criminalize constitutionally-protected speech, the court said, and besides, everything about such exchanges that could be illegal already was: harassment, obscenity, sharing pornography and soliciting sex. The 2005 law made sexually explicit online contact with minors for sexual gratification a third-degree felony punishable by up to 10 years in prison, but the court overturned it 9-0.

Greg Abbott was displeased. He asked for a rehearing, citing a 2011 law that requires the court to notify the attorney general’s office and give it 45 days to respond whenever the constitutionality of a Texas law was challenged.

But instead of reconsidering its ruling on sexting, the court threw out the notification requirement on Wednesday. Not our job, they said. Tipping off Abbott’s office is “not only non-judicial but would operate solely for the apparent benefit of the attorney general,” reads a footnote to the unanimous opinion. “And to what extent the attorney general would benefit from receiving such notice is elusive, given that the attorney general has no authority to appear in criminal cases before this court.”


In a concurrence, the presiding judge, Sharon Keller, called the requirement a violation of the separation of powers. Moreover, “during the last fiscal year, this Court disposed of well over nine thousand matters,” many of which addressed constitutionality, Keller wrote. If the Attorney General wants to know about them, the list is “available on its website.”

Kesha Rogers
Kesha Rogers

By now, you’ve probably heard that Kesha Rogers—a perennial candidate from Houston who wants to impeach Obama—is in the lead among Democratic candidates to challenge U.S. Sen. John Cornyn, according to a University of Texas/Texas Tribune poll released on Monday.

That’s bad news for a party pushing a narrative about resurgence, relevance and seriousness. Yesterday the Texas Democratic Party sent an email with the subject line “Don’t Vote For Kesha Rogers” that called her candidacy “an insult” and mentioned that she’d “paraded around Texas with a poster of the President with a Hitler mustache.”

But while it’s easy—and, let’s face it, fun—to write about mustaches and plans to industrialize the moon (more on that in a minute), Rogers could very well be the Democratic nominee. I talked to her to learn where she stands on other issues important to Democrats.

First, some background: Rogers is a LaRouche Democrat, meaning she follows Lyndon LaRouche, a conspiracy theorist whose devotees advocate a world gold standard and want to colonize Mars. At 37, Rogers has had no career other than a certain brand of politics and has never held elected office. In 2006, she ran (unsuccessfully) for chairman of the Texas Democratic Party. In 2010 and 2012, she ran for Congress, winning the Democratic nomination both times before decisively losing the general. Her new lead is not small, but neither is it immutable. Though almost three-quarters of those surveyed had no opinion, Monday’s poll shows her pulling 35 percent among likely voters in a five-way race. Her closest competitor, David Alameel, trails with 27 percent despite an endorsement from Wendy Davis.

When I asked to speak with Alameel, his campaign responded with an email calling the new poll “nonsense.” His spokesperson, Suzie Dundas, wrote, “The only poll that matters will be on March 4, when voters will choose David’s vision for Texas – withdrawing from Afghanistan and reinvesting the billions back here at home to create jobs, ensure a quality education for all children, and protect Social Security and Medicare – over all others.”

Maybe. The Democratic Party certainly hopes so. But just in case, let’s meet our front-runner.

In some ways, Rogers fits in with many of her party. Rogers wants to abolish the death penalty. She would protect unemployment benefits, food stamps and Social Security. She wants to reform campaign finance laws and stop drone attacks, and she thinks a true Democrat is “one who looks out for the lower 80 percent of the population.”

But Rogers also thinks climate change is “a fraud.”

“The green environmentalist agenda should be stopped and destroyed,” she told me. “[It is] an agenda for population reduction.”

And her financial policy? “We have to bankrupt Wall Street,” Rogers says. “We have to shut down the bail-in, bail-out policy [that’s] taking away our industry, our jobs, our infrastructure and put an end to bailing our quadrillions of dollars of speculative gambling activity.”

Another policy priority is planetary defense, which is “how we are going to defend the planet from asteroids which are very seriously threatening the planet.” The same technology push will help with the “development of a successful industrialization of the moon,” she says, “[for] the mining of raw materials and resources such as helium-3 on the moon, which is a productive resource for developing fusion. I am a very strong supporter and proponent of fusion development as a source of energy.”

This is all part of Rogers’ usual platform and she speaks about it with practiced conviction. But she’s less forthcoming about other policy areas. When asked her stance on abortion, she says, “First of all, I don’t believe in single issues,” though she specifies that she’s pro-life meaning she’s in favor of “stopping the threat of thermonuclear war.” Would she vote to overturn Roe v. Wade? She pauses for a very long time, then says, “No. I’m not sure.”

She’s opposed to drug legalization, coercive interrogation and would raise the minimum wage. But what about gay marriage?

“My concern right now is that we have a lawless president in the White House,” she says.

When pressed, she says, “I’m telling you the same thing I tell these people. I’m telling you that my concern is not on single issues. And so therefore my concern is on making sure that whoever you are, you’re not going to be threatened, that your lives are not going to be endangered by the threat of thermonuclear war, which we are now facing.”

I ask again and she refers me twice to her website, a search of which returns no results for “gay,” “homosexual,” or “marriage.”

“Okay fine,” I thought. Giving in, I asked Rogers how, as the U.S. Senator from Texas, she would prevent thermonuclear war.

“The way you prevent thermonuclear war is that you have to actually have the interest of nations in mind. We need a program for peace… We all need food. We all need water… You have to respect these different cultures, but at the same time, we have to figure out what is in the interest of every single human being.”

Who could argue with that?



Hostage negotiation. Narcotics enforcement. Border patrol. Fraud investigation. These may sound like the duties of a few distinct, highly trained law enforcement groups, and they usually are. But they’re also the purview of … game wardens?

A recent issue of Texas Parks & Wildlife, the department’s magazine, featured a lengthy article on several new specialty units comprised of game wardens, all of whom are fully commissioned peace officers. Some of the new groups are understandable, like the K-9 team used to detect smuggled game and fish, and a search-and-rescue team trained in disaster response, swift-water recovery and how to escape from a sinking helicopter. Additionally, there’s an underwater search-and-recovery dive team.

But the department also has a unit to investigate boat theft and boat-related fraud. Then there’s the “Forensic Reconstruction and Mapping Team” that uses state-of-the-art technology to piece together crime scenes and “produce 3D videos re-creating accidents.” The “Scout Team” is specially trained in “border operations, dignitary protection, or any form of high-risk law enforcement” such as hostage situations. And the “Maritime Tactical Operations Group” responds to “unique maritime operations,” presumably with the department’s five gunboats equipped with .30-caliber machine guns.

Mike Cox, who works for the Texas Parks and Wildlife communications department and wrote the article, says the gunboats patrol Falcon Lake and Lake Amistad, Texas’ border lakes, where they may have to confront illegal commercial fishermen or heavily armed drug smugglers. “We’ve always operated patrol vessels,” he observes, though “this is the first time we’ve had automatic weapons on some of them.”

He adds, “That’s perfectly within their jurisdiction, and we’re proud that they are there on the border being vigilant.”

Texas Parks and Wildlife isn’t alone in employing its own police force. The Texas Alcoholic Beverage Commission has more than 230 peace officers who carry weapons and make arrests. They usually solve alcohol-related crimes, says spokesperson Caroline Beck, inspecting licenses and finding out who served alcohol to a minor. But they also investigate drugs, weapons and human-trafficking crimes that take place in bars, “as well as just your normal prostitution and gambling.” Like game wardens, the enforcement duties of Texas Alcoholic Beverage Commission officers have no firm parameters. After Hurricane Katrina, they provided security at the George R. Brown Convention Center in Houston. During wildfires in Bastrop, they patrolled neighborhoods and rescued pets.

The Texas State Board of Dental Examiners is a little more reserved. Its 12 peace officers carry sidearms, but “physical custodial arrests are typically made by assisting local law enforcement agencies,” wrote Director of Enforcement Lisa Jones in an email. “The agency does not take a lead role in criminal investigations for any offenses not related to the practice of dentistry.”

The Texas Department of Insurance has 30 peace officers in its Fraud Unit, which investigates criminal offenses related to insurance. They too are armed and “adhere to the same use of force continuum as any law enforcement agency,” wrote spokesperson Jerry Hagins in an email.

Cox, of the Texas Parks and Wildlife Department, says none of this should come as a surprise. “We’ve always been a little frustrated that the general public does not seem to understand that game wardens are police officers,” he says. “That means they can enforce any state law. … I’d say every day, somewhere in Texas, one of our game wardens does something that is not connected to hunting and fishing law. And that’s a good thing.”

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Jail hands

Updated with a response from the Harris County Sheriff’s Office.

A new study of sexual violence in U.S. correctional facilities supports earlier findings that Harris County has a serious problem with inmate sexual abuse. Can Sheriff Adrian Garcia fix it without admitting it exists?

Last July, Dateline Houston reported on a related Justice Department study that quantified sexual violence by directly surveying inmates about their experiences. The Harris County Jail came out looking pretty bad by that method. At the largest of the jail’s four locations, the reported rate of sexual mistreatment was twice the national average. Harris had the third highest rate of the more than 350 jails surveyed.

The Harris County Sheriff’s Office took exception to the study, calling it “flawed and misleading” in a letter to the Justice Department. The main objection was that the allegations were unofficial, unverifiable and anonymous. But a new study aggregating official allegations of sexual abuse doesn’t look much better.

In each year addressed—2009 through 2011—Harris County had by far the most allegations of “nonconsensual sexual acts” by inmates of any jail in the state. That’s perhaps to be expected since Harris County has Texas’ largest jail by far. But over the three years, it also had more official allegations than all of Texas’s other public local jails combined. This is despite housing about half as many inmates as the sum of all other such jails.

Earlier this month, Harris County Sheriff Adrian Garcia was called to testify at a Justice Department hearing on the first study’s results. It didn’t go great. The Houston Chronicle reported, “After several minutes of reading an opening statement describing the jail system he commands…Garcia was cut off by a panelist and urged to get to the point of the sexual assault statistics.”

Harris County Sheriff Adrian Garcia
Harris County Sheriff Adrian Garcia

In short, he didn’t. His testimony could be summarized as, “There isn’t a problem because there shouldn’t be a problem.” The jail is designed for direct observation by guards. It has extensive surveillance cameras and more will soon be installed at a cost of $800,000 or more. Inmates are evaluated upon intake for whether they need special protection or pose a threat to others and housed appropriately. There is a zero tolerance policy for sexual abuse and allegations are taken seriously. Staffers watch a video, sign a form and take training about preventing and handling sexual abuse. Posters and flyers inform inmates of the zero-tolerance policy and a toll-free phone line to report abuse. More guards have been hired and security rounds made more frequent. A committee has been established. The jail passes regular inspections and evaluations.

Many of these safeguards have been instituted since 2011, when the reporting period for the studies ended, so they may well be working but stats wouldn’t show it yet. And whether or not the jail’s abuse rate has dropped in the last two years, all these efforts are unquestionably to the good. They show the sheriff’s office is serious about preventing abuse.

One might even say it’s doing all it can—except for one thing. The Harris County Sheriff’s Office refuses to admit it has a problem with sexual assault. In November, Sheriff Garcia responded to a letter from the Justice Department asking for an explanation of the study’s findings. The first question was, “What are the factors that lead to the high incidence of sexual victimization at the HCJ during the time of the BJS report?” Garcia called that a “false premise” and responded, “There was and is no high incidence of sexual victimization in the Harris County Jail facilities.”


Garcia’s objections to the study vary in their ability to hold water. He rightly observes that the question lumps all four jail locations into one question although three had sexual abuse rates lower than the national average. But his point carries the seed of its own illegitimacy. First and foremost Garcia finds the anonymous reports unreliable. Fair enough. But another Harris County Jail location housing almost as many prisoners reports a rate of 0.9 percent, versus the worst facility’s 6.3 percent. Why would inmates at one jail, taking the same anonymous survey, falsely report abuse seven times more often? Is it likelier that there are seven times more liars in one spot than another or that one jail has a problem and the other three don’t?

Garcia also notes that the (“flawed and misleading”) survey finds higher rates of victimization among women, inmates with mental illness and non-heterosexual inmates, which the high-rate facility houses most of. So which is it? Are the higher rates non-existent, a product of false reporting and bad statistics, or is the rate legitimate and caused by a concentration of more-victimized groups?

The frustration in Garcia’s letter is palpable. His answer to this first, contentious question concludes with a paragraph describing how his office tried to investigate the findings and “without access to all of the underlying data” was simply “unable.”

But “we cannot tell if there’s a problem” is very different from “there is definitively no problem.” The first indicates concern and a willingness to try, which the rest of the county’s preventative measures suggest is Garcia’s true position. But the latter is his official stance. Having to preserve it may, tragically, keep the county from fixing what the best information available says is broken.

From Alan Bernstein, Director of Public Affairs for the Harris County Sheriff’s Office:

“The Harris County Sheriff’s Office appreciates the chance to provide information and perspective for this article. Better late than never.

Sexual victimization of inmates in America’s jails and prisons continues, much to the frustration of the Harris County Sheriff’s Office and other law enforcement agencies undertaking sophisticated, aggressive, progressive and inventive ways to stop it. The traits of those efforts reflect every aspect of Sheriff Adrian Garcia’s reform administration, as shown in other Texas Observer articles.

The fact that such alleged incidents are relatively infrequent – coming from 1.6 percent of all U.S. inmates, if one of the studies referred to in the article are to be believed – is of no comfort. Although not mentioned by Texas Observer, the key point of the other study cited is that U.S. prison and jail commanders have been able to substantiate only 10 percent of inmate sexual victimization allegations, meaning the other 90 percent unfortunately lacked conclusive evidence, were the subject of shoddy investigations or were false.

As Texas Observer well knows, an allegation is not proof of guilt. Just ask Michael Morton. However the studies and the TO article confuse allegations with proven incidents of sexual victimization (which the study says ranges from forced sex acts to uninvited touching of an inmate’s clothed thigh).

Recent news media reporting on sexual victimization claims in the Harris County Jail, by far the state’s most populous, stems from a 2011 anonymous survey of less than a tenth of the 9,000 or so inmates. At three connected jail buildings that hold the majority of inmates, the allegation rate was below the national average. At one connected jail building, called 1200 Baker St., the allegation rate was 6.3 percent. The study says it was designed to get a 65 percent response rate from inmates, but at that building, the threshold was not reached. This is one of many reasons why the study is deeply flawed; by its own admission, it forfeited statistical reliability and also was unable to determine the frequency of false claims.

Also, that building houses the jail system’s inmates with acute mental illness. In fact the statistician who worked on the 2011 study tells us that two-thirds of the surveyed inmates in the so-called “high” rate building had “psychological stress disorders.” We don’t know how that was determined, and we would never allege that people with mental illness fabricate allegations more often than anyone else. But in his testimony in Washington, Sheriff Garcia described the day-old case of an inmate outcry of sexual victimization and in the process showed how many claims are elusive.

Texas Observer claims the sheriff never got around to such a discussion. Oh well! The case involved a man housed in the mental health unit. Deputies interviewed him as part of the full investigation they conduct on every such allegation. He said he awoke and found his trousers pulled down; he believed he had been sexually assaulted; and did not know by whom, or how, or where or how often. No doubt that is the kind of claim that led to one of four jail buildings having a so-called “high” rate of allegations (not assaults).

As for which prisons and jails rank among the worst, the study points out that about 20 agencies refused to cooperate with the 2011 anonymous survey. One was in Texas. One was the New Orleans Parish Jail. The Harris County Sheriff’s Office allowed the surveyors access to inmates, and Sheriff Garcia accepted the invitation to testify in Washington, because of his commitment to transparency and accountability in the cause of restoring the public’s faith in the operations of the jail.

In sum, Sheriff’s Garcia’s statements still stand: The biggest jail system in Texas does not have a “high rate” of sexual victimization of inmates, but that does not excuse us from trying to eradicate any such incident. All Harris County jail inmates , including the two-thirds who are awaiting trial and therefore have not been found guilty, deserve respectful treatment. We are striving to be a national leader in how we deal with sexual abuse and allegations thereof.”

Judge Denise Pratt
Judge Denise Pratt

Early voting for the March primaries will begin in just a month and, as usual, all eyes will be on top-ballot races with multiple viable candidates. But one far less noticeable Harris County vote may help answer a perennial political question: Does bad press make a difference in down-ballot races?

At issue is Denise Pratt, the judge for the 311th Family District Court. She faces four Republican challengers in the primary. And with good reason: She’s been mired in scandal since last October and a fresh round of allegations has just emerged. But unlike so many scandals, the accusations against Pratt have nothing to do with slush funds, tax fraud, or “hiking the Appalachian Trail.” Rather, they’re about how she does her job, if she’s negligent, whether she broke the law to cover it up.

The Houston Chronicle, Houston Press, and even local conservative bloggers have reported the debacle diligently. Defenses and explanations offered by Pratt’s lawyer have ranged from weak to nonsensical. But should Pratt win the primary, she’s likely to keep her judgeship thanks to straight-ticket voting. So if persistent, apparently well earned bad press is going to make a difference, it’ll be on March 4th.

Here’s the Denise Pratt story, also known as How to Lose Friends and Alienate Lawyers.

Pratt started strong. An experienced family law attorney, she garnered a Chronicle endorsement and beat four other candidates in the 2010 primary without a runoff. Then she won election by 10 points. But for reasons unknown, Judge Pratt fell behind. She started issuing rulings long after their hearings and letting cases pile up that needed only a signature. In May of last year, the 14th Court of Appeals reprimanded Pratt for “unreasonable” delays and ordered her to rule on a case she’d heard 10 months before, which she did.

Then the intrigue began. In June 2013, just after the appeals court slapped Pratt’s wrist, a man whose divorce case Pratt heard three months earlier finally got his ruling. His hearing had been March 25th. The ruling was dated March 25th. But the man didn’t receive notice until June. This was, he said, despite contacting Pratt’s office repeatedly and being told he’d get the ruling as soon as it was ready.

Greg Enos, a local family law attorney, was suspicious. Enos suspected Pratt had gotten in trouble, fished out an overdue case and backdated the ruling. He wrote as much in his watchdog blog, “The Mongoose,” and asked other lawyers who suspected judicial shenanigans to contact him.

They did. When Enos filed a criminal complaint against Pratt in October, he cited six cases and alleged rampant backdating. In November, 32 Houston-area family law attorneys signed a letter calling for Pratt to step down. Then the Houston Bar Association’s biennial judicial evaluations savaged her. Seventy six percent of respondents said Pratt was “poor” at following the law; 81 percent said she was bad at issuing timely rulings; 83 percent reporting she wasted attorney time; and 79 percent rating her poor at working hard and being prepared. In all, 57 percent of respondents gave her the lowest of five possible overall ranks.

But Pratt wasn’t merely unpopular. Enos’ complaint sparked an investigation by the Harris County district clerk, during which Pratt’s lead clerk, a 25-year veteran, pleaded the Fifth and resigned. Pratt heard one case in January, issued a ruling in May, and dated the ruling a day before the two-day trial actually ended.

The district attorney empaneled a grand jury to investigate whether the judge tampered with court records. Though in December the grand jury declined to indict Pratt, visiting judges did grant eight lawyers’ requests to have her removed from their cases.

And her time on the un-fun side of the bench may not be over. On Thursday, Enos filed another complaint against Pratt, this time citing what the Chronicle adorably calls a “surprise docket purge” of more than 700 cases in a month.

For obvious reasons, if a judge schedules a hearing he or she has to give the affected lawyers notice. Failure to appear can be grounds for dismissal. But according to Enos and several other lawyers, Judge Pratt dismissed hundreds of cases without warning attorneys to show up.  Most of the purged cases were signed on Dec. 30 and 31, when the district clerk’s office told the Chronicle no dismissal dockets were scheduled.

It’s hard to see how Pratt thought this would go well. Her lawyer, Terry Yates, has yet to pitch a convincing explanation for any apparent improprieties, though he’s made up for in quantity what his explanations lack in quality. Among the justifications offered are:

  • Lawyers didn’t receive notice because of the new electronic filing system in the District Clerk’s office, which that office’s spokesperson told the Chronicle “has nothing to do with the mailing of notices.”
  • Lawyers with dismissed cases have “just got to file a motion to reinstate…so it’s really no big deal,” Yates said to the Chronicle.
  • Purging cases at the end of the year is normal, though in December Pratt dismissed at least 561 and the eight other family court judges dismissed between 28 and 121.
  • Pratt has the most pending cases of any family court—more than 3,000—which Yates told the Chronicle is “really a legislative issue to get more family courts here so the dockets are manageable.”
  • And of course, no litany of excuses would be complete without this old chestnut: The accusations against Pratt are, according to her email to GOP precinct chairs, all “rumors that are being spread by the Democrats and the liberal media.”

Even if all the criminal and more moustache-twirling allegations against Pratt are untrue, there’s no question that she issues tardy rulings, lets cases pile up, and is held in abysmal esteem by the lawyers with whom she works. All indicators suggest, in short, that she does a bad job. She’s also not a seasoned incumbent letting things slide; this is her first term. And she’s drawn four challengers in the primary.

One would think all this would doom her, but besides incumbency she has one advantage: While the local conservative press has turned against her, the Republican Party hasn’t withdrawn its endorsement. Thus, Pratt’s primary pits the media against the establishment.

It’s not Chris Christie-level drama, but for the hundreds of Houstonians whose divorces and child visitation rights hang in the balance, the quality of a single judge matters very much indeed. The question is, come March 4th, will that matter to the voters?

Texas DPS

Yesterday, the Houston Chronicle reported that the Texas driver’s license application asks drivers whether they’ve been diagnosed with a psychiatric disorder. The question isn’t new—the Department of Public Safety has asked since the 1970s. Nor has it gone unnoticed; state Rep. Garnet Coleman has been trying to have it removed for the last few legislative sessions. But it’s an important story because, in several ways, it’s about what happens when government and reality collide. (Spoiler: reality loses.)

First, the question is overly broad. It asks, specifically, whether an applicant has in the last two years been diagnosed with, hospitalized for, or is currently receiving treatment for a psychiatric disorder. It doesn’t ask whether the disorder interferes with a person’s ability to safely drive, which is a component of another question about medical conditions in general. By asking separately about medical conditions and psychiatric conditions, the question implies that psychiatric illnesses are not medical, which is a funny distinction to make about a problem effectively treated by a wide array of drugs. And by including all psychiatric disorders in the question’s scope instead of conditions that might affect driving, it’s uselessly inclusive.

Have you ever felt grumpy from caffeine withdrawal? According to the most recent Diagnostic and Statistical Manual of Mental Disorders, that’s a diagnosable psychiatric problem. So are binge eating, sleepwalking and restless leg syndrome. Considering that a quarter of Americans will suffer a mental illness in a given year, the question assumes most drivers will lie.

Second, the question is illogical. A psychiatric condition that’s being treated will usually be less symptomatic than an untreated one. For greater relevance, the question would ask whether a driver has been diagnosed with but declined treatment for a disorder. Or better, it would ask if someone has a mental illness of which they’re unaware. While inquiring about that, Dateline Houston suggests the Department of Public Safety ask if an applicant texts while driving, tends to make terrible decisions, or has ever played Grand Theft Auto.

Third, the enforcement mechanism appears to rely on applicants to lie. Answering “yes” doesn’t disqualify a person, but it leads to more questions to determine whether someone’s psychiatric record should be examined by the Medical Advisory Board of the Department of State Health Services. That board comprises 13 doctors, none of whom are psychiatrists. Texas has about 18 million licensed drivers.

And yet, after all the questions about medical history, a shaded box reminds applicants, “False information could also lead to criminal charges with penalties of a fine up to $4,000.00 and/or jail.”