The district attorneys meet their own personal Alamo in the 79th Legislature
BY JONATHAN YORK
or more than 30 years, district attorneys have held sway on criminal justice issues at the Texas Capitol. Rob Kepple, the executive director of the Texas District and County Attorneys Association (TDCAA) traces their dominance back to 1971 and an aborted attempt by legislators to rewrite the penal code. The move inspired the district attorneys to get involved and offer their expertise. Over the years, prosecutors entrenched themselves to the point where they became the final word on law and order for legislators. Most of Texas’ district attorneys are elected, and legislators see them as significant players in district-level politics. Many, like John Bradley of Williamson County, have worked with legislators over the years and established deep relationships. (Bradley once was employed by the Senate Criminal Justice Committee and supervised now-Rep. Dan Gattis (R-Georgetown) when Gattis was an assistant district attorney.) Finally, the prosecutors, with their “lock-’em-up” mentality, offered lawmakers a surefire way to appear tough on crime—tantamount to legislative catnip for politicians. In the 79th Legislature, that pattern changed. For the first time in recent memory, the prosecutors received a series of stinging setbacks on major legislation they opposed. In the past, when prosecutors testified in committee, it was often the final word. This session, they were just as likely to find themselves under cross-examination by hostile legislators. Some of the prosecutors’ trouble was self-inflicted, but much of it was the result of changes that go beyond even the power of district attorneys to control and involve how state leaders look at criminal justice. According to a slide show presented to its members prior to the session in December, the TDCAA’s main priorities at the legislature were to keep prosecutors’ budgets intact and obtain higher pay. The association relegated criminal justice issues to a second tier. Normally association staff only testify on bills as neutral witnesses. They leave it to individual prosecutors to lead on specific issues. Historically, the district attorneys’ lobbying power comes in proportion to the size of their offices. Prosecutors in Harris County (Chuck Rosenthal), Dallas County (Bill Hill), and Tarrant County (Tim Curry) each have an assistant district attorney in Austin full-time during the session. Because they represent elected officials, these attorneys do not have to register as lobbyists. Perhaps the most high-profile loss experienced by the prosecutors at the hands of legislators involved probation. (At press time, the governor has yet to issue his vetoes. Final passage of criminal justice legislation is not assured until he does.) House Bill 2193, authored by Rep. Jerry Madden (R-Richardson) and Sen. John Whitmire (D-Houston), reduces probation for some offenders, gives judges more discretion over probation periods, and in some cases increases supervision of probationers. Most prosecutors hated it but were overwhelmed by an intense lobbying effort by the ACLU and others on behalf of probation reform. It also appears they took their own power for granted. When HB 2193 came up in the House committee hearings in April, no one opposed it. In Houston Democratic Sen. John Whitmire’s criminal justice committee, however, four DAs registered opposition. Ann Del Llano, a lobbyist with the ACLU of Texas, said people were wondering where the prosecutors had been. Bradley, of Williamson County, was the only DA who actually spoke against the bill. He took issue with the five-year limit it would impose on most probation periods, the lenience on technical violations (such as failing drug tests) it would allow, and the opportunity it would create for probationers who return to prison to receive time-served credit. “[T]he bill would add no new services, severely damage our ability to protect society from criminals and increase the likelihood that criminals will be sentenced to prison,” Bradley wrote in an Austin American-Statesman editorial attacking HB 2193. “[T]hese ‘savings’ don’t take into account the pain that new victims of crime will feel, the costs of re-arrest and prosecution that law enforcement will absorb, and the cost of finally imprisoning these repeat criminals for even longer prison sentences.” Bradley pushed a narrower rewrite of probation laws that would not allow anyone who had committed a crime above a misdemeanor to benefit from the early release. The governor’s office brought roughly the same rewrite to the Senate committee hearing. And, according to the Statesman, Rep. Gattis (Bradley’s former employee) and Rep. Terry Keel (R-Austin and an ex-prosecutor himself) raised concerns similar to Bradley’s about a week earlier, when the bill reached the House floor. Between the prosecutors’ lobby, an influential House member (Keel), and the governor’s office, enough momentum might have built up to kill probation reform. But it didn’t happen. Though Harris, Tarrant, and Brazos county DAs signed the witness list opposing HB 2193, Bradley was the only prosecutor to testify. In the committee room, he came off as irritated and arrogant. Whitmire addressed his former committee employee with clear impatience: Bradley: The defendant can commit a bunch of crimes under this bill, and you’re still encouraging that judge, while the guy’s still on probation, to early-terminate that probation despite the fact that he’s done— Whitmire: [interrupting] Whoa. Whoa. Back up. We’re not encouraging a judge to keep him on probation even though he’s committed other offenses. That’s just not right, John. Later, the senator even told Bradley to get to the point. “[Prosecutors] were completely uninformed about probation,” says the ACLU’s Del Llano. “They started lobbying against it on May 12, one day before the House debate.” Sen. Whitmire’s role in passing probation reform was key. The senator also made it clear at the beginning of the session that the prison system was at capacity and there was no extra money to build more prisons. For that reason, he would not be passing sentence increases out of his committee (see Political Intelligence, page 5). The ACLU estimates that approximately 100 enhancements, many backed by prosecutors, died. “In two years the legislature will meet again, and they have the chance of coming to grips with the problem they have ignored for the past four years, namely, the need for more prisons,” one TDCAA member wrote on the group’s website in a typical post. “That is a problem that is much easier fixed than refixing probation again.” Prior to the session, TDCAA also formed a workgroup to toughen drunk driving laws. The association wanted to create an offense for refusing to give police a breath or blood sample, and House Bill 3241 would have done so. “One of the issues that we’ve got in Texas is the long-term viability of breath testing,” said Kepple. “Prosecutors have been looking for ways to basically enhance the viability of the breath-testing program.” But the bill did not even leave its House committee. In another stinging defeat, Sen. John Carona (R-Dallas) carried House Bill 3152, which would stop prosecutors from talking with defendants before they consult with a lawyer. “Seems you mean ol’ prosecutors have been pleading out defendants without allowing defense attorneys to ding the county for a couple hundred bucks,” Shannon Edmonds, the TDCAA’s second-in-command lobbyist, wrote of the bill on the online forum. The bill, however, passed the Senate on the consent calendar, which is reserved for bills without opposition. Any senator friendly to prosecutors could have removed it. None did. A divide between the big city DAs and their small town peers might have contributed a setback on another high-profile issue. For eight years, Brownsville Democratic Senator Eddie Lucio has tried to pass a bill establishing a new alternative to the death penalty: a life sentence without the possibility of parole. Big city prosecutors, who try most of the capital cases, did not want to give juries the option. Rural prosecutors favor the measure because capital cases suck up so much of their limited resources. In the past, the major metropolitan prosecutors won out. Not so this time. Rosenthal, the Houston district attorney, and his lobbyist, had successfully led the charge against life without parole in previous sessions. His county sends more convicts to death row than any other in the nation. But the U.S. Supreme Court has embarrassed Texas prosecutors by overturning death sentences four times in two years. Most recently, a death sentence in Dallas was overturned because prosecutors excluded blacks from juries in capital cases. Rosenthal’s office has also come under scrutiny for relying on faulty information from the Houston crime lab to win its convictions. Despite vigorous lobbying by Rosenthal and others, life without parole passed. But it was not a total loss for the prosecutors. Lucio’s original bill offered three sentencing options: life with parole, life without parole, and death. In exchange for this small victory, death penalty opponents agreed to eliminate the option of life with parole. Additional prosecutor defeats this session included a drug task force bill that puts all task forces under the authority of the Department of Public Safety and mandates stringent quarterly reporting on asset forfeiture seizures and racial profiling, among other requirements. An effort to streamline death penalty cases, a perennial favorite of prosecutors, also failed. Despite the setbacks, prosecutors were not without some victories. Legislation supported by prosecutors allowing them to depose dying witnesses to preserve evidence, raise the penalty for certain aggravated assaults, create tougher laws to combat methamphetamine, and clarify the rules for pleading not guilty for the reason of insanity all passed. Some lawmakers also floated a proposal to create a shield law for reporters; once the district attorneys heard of the possibility, it quickly died in the Senate under the weight of their opposition. But despite their defeats, the legislative session has not yet concluded for the prosecutors. They are heavily lobbying the governor to veto much of the reform legislation that they opposed during the session. Williamson County DA John Bradley sent Perry a letter signed by 32 other district attorneys urging the governor to stop the probation reform bill, according to the San Antonio Express-News. “They are not accustomed to the opposition prevailing through the system,” says Will Harrell, executive director of the Texas ACLU. “Now they are left with one option, which is to lobby the governor.” Jonathan York is an Observer legislative intern.