June 10, 2005 Austin American Statesman "Tough on crime? Not this time..."

For the first time in at least a decade, the Texas Legislature notched up its gun belt less against felony criminals in their recently ended regular session.

An analysis released Thursday by the Senate Criminal Justice Committee shows that only about a dozen measures were passed to create new felony crimes or increase sentences for existing felonies — roughly half as many as two years ago.

In all, at least 99 proposals were filed during the session to toughen felony penalties.

The potential effect for Texas taxpayers? More than $1 billion in new money won't have to be spent on jails and prisons, criminal justice officials say.

In some recent sessions, lawmakers have added as many as 29 new and enhanced crimes to the books. Since 1995, at least 59 offenses and at least 44 toughened penalties have been approved, according to a Texas Legislative Council report issued in February.

"It used to be that having an enhancement in your bill pretty much guaranteed it would pass," state Sen. Rodney Ellis, a Houston Democrat who has been in the Senate since 1990, observed in the waning days of the session. "This session, it's the opposite."

For the first time in years, the Senate Criminal Justice Committee, through which felony enhancements usually pass, approved none. And other enhancement plans died in a special House Criminal Jurisprudence subcommittee designed to screen the proposals and measure their costs.

"What was historically the easiest bill to pass was the toughest to pass — and we didn't compromise public safety one bit," the Houston Democrat said. "Most of the proposed enhancements this session were in areas where the current penalty wasn't being used to its maximum level. Why pass a tougher penalty just to pacify some special interest group or constituency when the current penalty isn't being used?"

Police in Fort Worth, Dallas and other large cities argued for tougher penalties to curb a growing wave of break-in crimes. At the same time, Whitmire and opponents of the move argued that auto burglars who are caught now serve an average of seven days in jail — far less than the maximum penalty — and most crimes are never solved because police lack resources or evidence.

Had the toughest of several proposals to increase the penalty been passed, Texas would have had to find space for an additional 7,800 offenders in five years at a cost of more than $38.7 million, according to the analysis by Whitmire's committee.

That analysis also says Texas could have faced spending well over $1 billion for new prisons in five years had just 11 of the most significant enhancement bills passed. Operating costs would have run another $113.7 million.

"I think there's a growing realization or acknowledgement in the Legislature that we simply can't afford to get tougher and tougher on penalties every session," said state Rep. Ray Allen, R-Grand Prairie, the former chairman of the House Corrections Committee. "Enhancing penalties may have been politically popular in the past, but we simply don't have the money or the (prison) space now to do it."

Texas' 151,000-bed prison system, the second largest in the country, has been running brim full for months. Prison officials recently announced plans to lease 700 county and privately owned beds in coming months, and lawmakers recently approved changes in probation laws that are partly designed to keep as many as 3,500 beds free during the next two years.

Keith Hampton, legislative chairman for the Texas Criminal Defense Lawyers Association, agrees that the tide on enhancements turned. Numbers often vary on how many new crimes and enhanced penalties were approved because some provisions are added to large bills without much notice.

Hampton noted that the specter of higher prison costs was on lawmakers' minds as they scrambled to reform school finance and find additional money for human services and other politically important programs.

With Whitmire having publicly announced his intent to kill all enhancement measures assigned to his committee, and the House subcommittee sitting on many proposals because the price tag was too high, sponsors scrambled to get their legislation through unlikely committees such as Business and Commerce, Health and Human Services and even Inter- governmental Relations.

"An awful lot of sponsors dropped their enhancements after they figured out it (getting their bills to other committees) was the only way to get their bill through," said Whitmire, who joined the Legislature in 1973. "I can't recall a session where it was like that, where we held the line like we did this time."