Capitol Offenses

Among the bills coming out of Austin Representative Terry Keel’s office this session are three that just don’t seem to fit. Most of the Republican former sheriff’s proposed legislation seems predictable enough: He’s got one bill to make it easier to prosecute someone who robs an elderly person, for instance, while another increases the penalties for evading arrest. But in House Bills 511, 512, and 513, the American Civil Liberties Union of Texas and the Drug Policy Forum have found an unlikely ally. The first of these would strengthen an existing requirement that affidavits supporting arrest warrants be made public immediately. HB 512 sets limits on the time people can be held in jail without probable cause for belief of guilt and sets a maximum bond. And should HB 513 become law, Texas would join the small group of states that have enacted statutes decriminalizing medical marijuana use.

Terry Keel is a lawman, as a quick glance around his office will tell you. Most of the walls are decorated here and there with plaques and thank-you certificates from police groups. The man himself doesn’t shake this impression with his nearly unblinking stare and stretched-out vowels. No donut-belly, he looks younger than his actual age of 43. Keel won’t hesitate to tell you he’s a conservative. A Republican. But for the representative of half of Austin and Travis County, that might mean something different than it would in any other Texas district.

“You know that saying, ‘only Nixon could go to China’?” says Keel, explaining how he came to cross the Great Wall between enforcement and treatment. In sponsoring marijuana legislation, he has joined forces with what his office calls “a weird constituency” from all over the political map. House Bill 513 would change the Health and Safety Code to allow a person using marijuana because of a physician’s recommendation to use that recommendation as a defense against a possession charge in court. “We ought to have a realistic approach in Texas that recognizes that just because a drug may be abused by some, its medicinal qualities should not be kept from legitimate use, and that decision should rest between a patient and a doctor,” says Keel.

Al Robison, a professor of pharmacology and director of the Drug Policy Forum of Texas, is upbeat about the bill, but he laments that it doesn’t protect the recommending doctors. Keel doesn’t think doctors face any legal danger, since only a recommendation–not a prescription–is needed as a defense. Professional reputation is a matter doctors will have to work out among themselves.

Then there’s the bill that Texas ACLU Director Will Harrell describes as “extraordinary and brilliant,” HB 512. For those arrested without a warrant, the bill would set a maximum jail time of 24 hours for misdemeanors and 48 hours for felonies if a magistrate hasn’t found probable cause to believe a suspect is guilty. Moreover, the bill limits personal bond to maximums of $5,000 for misdemeanors and $10,000 for felonies. Harrell says being left to rot in jail is more common than you might think. “Too often we’ve discovered cases of people languishing in jail for months without having been charged and almost certainly without having been given bond, and certainly one that was set a reasonable amount. And a lot of that was due to negligence of the judges, but more often than that, an effort on behalf of the prosecutor to extract pleas of guilt.”

Keel says the bill’s jail-time limits would correct a mistaken, but all-too-common interpretation of a civil court ruling that found agencies liable for time spent in jail in excess of 72 hours. “Some agencies have unfortunately allowed officers to throw people in jail and then they just sit around and either wait until the full 72 hours to file charges, or they don’t ever file charges and the jail lets them go. And then later they file a warrant and go back and throw them in jail for the same thing. That’s wrong.” Since a person arrested on a minor charge can’t post bond if charges haven’t been filed, Keel says it’s possible for someone arrested on a felony charge to get out first.

David Weeks, director of the Texas County and District Attorney Association, says he hasn’t paid much attention to the bill, but he sounds fairly amicable to the idea. “Finding a probable cause should be done fairly quickly because you have to get a bond set in a reasonable period of time.” Keel expects opposition, but only until the bill can be explained. “It’ll protect sheriffs’ offices of the state who’re in charge of incarcerating these people.”

Nor has TCDAA opposed Keel’s open records bill, which Weeks says he reads as a clarification of present law. As Texas law stands, sworn affidavits supporting arrest warrants have to be made public right away, just like those for search warrants. Sometimes they’re not. The law doesn’t really say, in black and white and in one place, precisely when to make these affidavits public record or where to display them. Keel’s bill clears up any vagueness by borrowing language from a similar law that covers search warrant affidavits. A similar effort in the last legislative session, Keel’s HB 1246, died in the House Committee on Criminal Jurisprudence.

Harrell says the practice of making these affidavits public is at the discretion of a judge, who will often seal them at a prosecutor’s suggestion. “This is a situation that would be very important in cases like Tulia (a town where a number of black citizens were arrested on questionable drug charges). If we had had access from the very beginning to what the basis of the arrest was and could criticize it then we could have pointed out the inconsistencies and flat-out lies that the prosecutor was using to get the warrant for these people’s arrests.”

Chris Womack is interning aKeel in C The Texas Observer.