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Ken Herman: Low-level arrests fight pits Texas lawmakers against law enforcers

Ken Herman

Today, let’s do a post-mortem on important legislation concerning whether you can be arrested and hauled to jail for a traffic ticket or other minor offense.

It was an effort that had among the oddest rides of the legislative session that ended Monday. The fate of this legislation wasn’t decided until Sunday evening, the last day it could have been handled. And it died as a direct result of a heated-rhetoric battle between lawmakers and law enforcers.

Space limitations prohibit me from detailing here the up-and-down ride of this topic during the 140 days of lawmaking. I’ve detailed it in previous columns, including the bipartisan agreement that there’s a problem here that needs to be addressed.

Class C misdemeanors are the lowest offenses. They include traffic tickets. You cannot serve jail time for a Class C misdemeanor conviction. But you can serve jail time if arrested for a Class C misdemeanor offense. The numbers show 4.6 million annual stops for Class C misdemeanors in Texas. About 23,000 result in arrests.

State Rep. Joe Moody, D-El Paso, mounted a session-long effort to place limits on those arrests. His final effort, temporarily successful, came as an amendment on a far less consequential bill concerning criminal case record keeping. The amendment, approved by the House, said in cases with an arrest for an offense punishable by fine only, the case would be dismissed unless the arresting officer can show the arrest was necessary because of “a clear and present danger to public safety.” It also would allow the arrest of people who refuse to sign a citation promising to pay the fine or show up in court.

In winning House OK of the amendment, Moody mentioned Sandra Bland, whose 2015 death in a Waller County jail was ruled a suicide. She was jailed after being stopped for failure to signal a lane change, a Class C misdemeanor.

“Whatever we think of how everyone involved in that case behaved,” Moody told the House, “the fact is that Sandra Bland would be alive today if the system hadn’t allowed her ticket to become an arrest.”

The amendment won approval over objections from Rep. Phil King, R-Weatherford, who’s a former Fort Worth cop. King acknowledged there are “way, way, way too many people sitting in jails today on Class C misdemeanors” but said Moody’s amendment was an overreach and that the “vast, vast, vast majority” of those people were arrested for unpaid traffic fines. King suggested lowering the cost of traffic tickets.

He also said “there are just times people need to go to jail” because they could be a danger to themselves or others.

The Moody amendment, which does not bar such arrests, went on the bill and the Senate rejected it. The amendment was removed by the House and Senate conferees. On Saturday, the Senate, with no discussion, unanimously approved the conference committee report without the Moody amendment.

When the bill hit the House floor Sunday evening, there was plenty of discussion, much of it targeting the Combined Law Enforcement Associations of Texas, which fought Moody all session.

“Changes will dramatically affect public safety,” CLEAT had said in a statement, claiming the Moody amendment “will severely limit the ability of officers to do their duty and protect the public.”

CLEAT President Todd Harrison, an Austin Police Department sergeant, said in the statement that the Moody amendment would expose cops to “liability and legal exposure for false arrest. We believe that this will also lead to officers being attacked and getting physically injured.”

And Harrison rejected the link to the Bland case: “The irrational, emotional argument for this legislation is based on the unfortunate suicide of a citizen suffering from mental illness in a county jail.”

Sunday evening, Moody, not wanting to kill the bill on which the House approved his amendment, reluctantly asked colleagues to approve the measure without his amendment. But Moody and others were not shy in criticizing CLEAT’s efforts. The word “misinformation” came up several times. Moody said “lies destroyed” his effort. And he continued to insist the amendment “didn’t limit discretion to arrest at all.”

“It just said that an officer who arrested someone for something like a traffic ticket had to provide a reason it was an arrest instead of a ticket. That’s it,” he said. “I can’t imagine any ordinary Texan disagrees with that in the least. But, to some, it’s apparently treasonous.”

He also said he’d been willing to talk with CLEAT “to address what I thought were imagined concerns.” But he said CLEAT declined. The House approved the bill 102-39, sending it to Gov. Greg Abbott without the Moody amendment.

CLEAT was elated.

“Breaking: Officer Class C Discretion, Employment Files Saved. CLEAT VICTORY!” it said in a statement that also mentioned an unrelated legislative outcome.

“The majority of the House of Representatives engaged in an open war against their hometown heroes,” Harrison said in the statement. “There was no lack of leadership. The leadership led the House in direct attacks sponsored by police hate groups against our professionalism, officer discretion and our reputations.”

CLEAT pulled no punches in criticizing the somewhat-counterintuitive coalition that backed Moody’s session-long effort.

“The Republican Party of Texas and the powerful Texas Public Policy Foundation with its Right On Crime Initiative joined with anti-police groups Just Liberty, Austin Justice Coalition and other black lives matter groups to attack front-line officers and their rarely used discretion to arrest for Class C offenses,” CLEAT said. “These battles are not over. We can expect to see them again and again. Those who hate law enforcement and the men and women who run toward danger to protect others have turned toward attacking those who advocate for those officers. They have declared open warfare on police unions and more specifically, CLEAT. We will not waiver in defense of our members.”

This has a to-be-continued feel to it. Moody, a persistent fellow, told House members they can count on that.

KEN HERMAN is a featured columnist for the Austin American-Statesman.

Letters to the editor, May 31

'Happy' is not the right word

There were several ads in the May 26 edition of the Denton Record-Chronicle and even the Parade magazine wishing readers a “Happy” Memorial Day. How can anyone be so heartless to think Memorial Day should be “happy”?

Memorial Day is a day of reverence and remembrance of those brave men and women who fought and gave their lives to preserve our freedom. Please stop and think about what this day is about. And don’t be “happy” for it.

Paul McCoig,


Roy's disaster bill grandstanding failed Texans

This editorial was first published in the Austin American-Statesman. Guest editorials don’t necessarily reflect the Denton Record-Chronicle’s opinions.

We’re not sure who U.S. Rep. Chip Roy was representing last week when he single-handedly blocked a $19.1 billion emergency bill for hard-hit communities — including more than $4 billion for Texans still recovering from Hurricane Harvey.

It wasn’t the scores of residents at a Northwest Harris County mobile home park that volunteers visited three weeks ago, where people are still living in moldy, flood-damaged homes. Some of the homes still have the holes that residents punched in the walls in the fall of 2017 to let Harvey’s floodwaters drain out, said Brian Carr with Northwest Assistance Ministries, a nonprofit that uses private donations to help families rebuild.

“We estimate in just the northwest quadrant of Harris County that we serve, there’s still tens of thousands of people that are living in homes that were damaged by Harvey, by the flood,” Carr told us. “And so they’re living with mold, or they’re living without walls, or they’re living without air conditioning, or they’re living with that damage because they don’t have the ability to pay for [fixing] it.”

Nevermind those folks. Nevermind others who are still living in FEMA trailers, on leases extended through August because their Harvey-damaged homes remain unrepaired. Nevermind the buyouts and other mitigation projects that coastal cities hoped to tackle before the next hurricane season — which starts Saturday.

Roy, a Republican congressman for northern Hays and southern Travis counties, ignored them all when he stood up May 24 to block the $19.1 billion emergency relief bill (a colleague from Kentucky blocked the bill again on Tuesday, likely delaying approval until early June). The measure needed unanimous approval of those in the chamber because so many members of Congress had left for the Memorial Day weekend.

Roy decried such a vote, in the absence of so many members, as a “kind of swampy practice.” We won’t argue it was Washington at its finest. But who pays for Roy’s grandstanding? It’s not his colleagues in Congress. It’s the Texans still rebuilding from Harvey. It’s our Gulf Coast neighbors who’ve also been battered by storms. It’s Midwesterners hit by flooding, and residents of Western states ravaged by wildfires.

Reasonable people can debate whether the disaster package was too large or too small. Roy argued it was both: He objected to spending “over $19 billion that is not paid for,” yet lamented the package did not include “the quite modest $4.4 billion request” by the Trump administration for border security. Just for good measure, Roy also blamed his no vote for disaster aid on the fact that “Speaker [Nancy] Pelosi would rather play politics on impeachment.”

Remind us again how this is helping Texans?

It’s not. It hasn’t taken long for Roy, elected last year, to forget about the pressing needs of people back in Texas. We hope voters next year will remember.

William Cohen: When will Republican silence on Trump end?

William Cohen

Now that Robert Mueller has broken months of silence, declined informal invitations to appear before Congress and said his 448-page report “is my testimony,” it now falls to lawmakers to take the next steps, if any, in the matter of President Donald Trump. House Speaker Nancy Pelosi, D-Calif., has been hesitant to initiate impeachment proceedings against Trump. Her caution is well placed.

Impeachment is an extraordinary political remedy under the Constitution. The democratic process by which we elect a president is defined by passion and partisanship, but any effort to remove that leader is likely to be unsuccessful if it is similarly motivated. As an English lord chancellor once wrote, “The power of impeachment ought to be, like Goliath’s sword, kept in the temple, and not used but on great occasions.”

All who are elected or appointed to high office are fiduciaries of the public trust. Supreme Court Justice Benjamin Cardozo once described the standard of a fiduciary’s conduct to be “something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive.”

With the exception thus far of Rep. Justin Amash, R-Mich., Republicans have taken the position that Mueller’s redacted report has resolved all issues of alleged presidential collusion with the Russians and obstruction of justice. Case closed.

This is not a tenable position. The Mueller report has raised nearly as many questions as it has answered. But more important, as someone who legislatively helped craft the original Office of Special Counsel, I can attest that Congress never intended to subcontract out its investigative powers to the executive branch.

Congress can be informed by, and take advantage of, Justice Department or special counsel investigations, but it should never be limited by them.

At the moment, public opinion polls indicate that a majority opposes impeachment proceedings against Trump. It also appears unlikely that two-thirds of the Senate would support removing the president from office based on the evidence currently available.

Politicians who ignore public opinion do so at their peril, but peril goes with the territory of holding office. It’s also important to remember that public opinion is not anchored in concrete. It shifts according to the information it finds to be persuasive and free of rank partisanship.

During the Watergate scandal, the majority of the American people initially opposed impeachment proceedings being launched against President Richard Nixon.

But as the hearings moved forward, we learned that, among other activities, the president had authorized the payment of “hush” money to those who had engaged in criminal activity, urged his subordinates to commit perjury before Congress, attempted to have the CIA derail an ongoing FBI investigation, and sought to use the IRS to punish those on a list of his political enemies.

In our private deliberations, the majority of Republican members of the House Judiciary Committee at the time divided into those who strongly opposed the effort to find impeachable conduct whatever the facts, several members who indicated they were open to persuasion if the evidence was clear and convincing, and a few who held their cards very close to their vests.

Democratic members seemed divided between those who were strongly in favor of impeachment and those who had to be persuaded — among the latter were those from Southern states where Nixon had strong support.

In the end, six Republicans nonetheless felt compelled to place loyalty to the rule of law above our political affiliation and political futures. We concluded that Nixon clearly had engaged in obstruction of justice and abuse of power.

The silence of Republicans today in the face of presidential behavior that is unacceptable by any reasonable standard is both striking and deeply disappointing.

When one talks privately to some Republican members about a president who lurches from tweet to taunt; who, according to those who have worked closely beside him, is incapable of telling the truth even in mundane situations; who accepts the word of President Vladimir Putin and rejects the unanimous judgment of our intelligence community that Russia launched a cyberattack at the very heart of our democracy; and whose toxic combination of egotism and insecurity distorts the basic process of governing, they express their disdain and even alarm at how he conducts the nation’s affairs.

Yet, the same members are reluctant to speak out publicly even in the face of behavior they would find intolerable by any previous occupant of the Oval Office.

Fear is a potent weapon. Today, Trump uses the accelerant of social media to rally and stir the passions of his supporters, even with information that is patently false. Technology’s ubiquity, speed and power, and other profound changes, make this a more complex time than the Watergate era was.

But Congress should not turn away from the central issue of whether Trump has, in word and deed, engaged in conduct that is fundamentally inconsistent with, and antithetical to, the highest office in the land.

If Congress cannot secure the cooperation of executive branch officials in the exercise of its oversight responsibilities, it will have no choice but to enter the temple and remove the fabled sword.

WILLIAM S. COHEN is a former Republican congressman, senator and defense secretary who served on the House Judiciary Committee in 1974 during the Watergate impeachment inquiry. This column was written for The Washington Post.