It seemed like a slam dunk.

Last year during the legislative session, when the House Criminal Jurisprudence Committee heard testimony on House Bill 2391, almost everyone present seemed to think it made great business sense. The bill, created with the support of the Travis County Sheriff’s Office, gives officers the discretion to give field release citations for some Class A and B misdemeanor offenses.

In theory, the bill was a cheap way for law enforcement departments to keep officers on the street when making traffic stops instead of playing taxi driver for those caught driving with a suspended license, possessing a small amount of marijuana or committing a handful of other misdemeanors. Instead of waiting for a wrecker to come get a vehicle then driving someone to the county jail, then waiting for the new inmate’s information to be processed, an officer could make an arrest then release the person by issuing a summons detailing when and where to appear in court and face charges. The legislation was also expected to cut down on counties’ pre-trial jail populations since offenders would be sitting at home waiting for their court date, not in jail.

“We think this is a beautiful bill,” testified Suzanna Hupp, a former conservative legislator now with Texans for Public Safety Solutions.

“This bill, as you heard, would allow cities and counties the option — and that’s all it is, it’s just an option — that law enforcement can utilize to make determinations about who goes and sits in their jail cells. They can still go after the bad guys, but it allows them to utilize their judgment as to the best use of their facilities.”

Though Rep. Terri Hodge argued that the legislation could increase opportunities for racial profiling, in the end, everyone in the committee voted in favor of the bill, and it easily passed through both the House and Senate. “We have a good idea that will be cost effective for our counties, that will lead to more effective police work in the counties,” testified Rep. Jerry Madden, the bill’s author.

And many jurisdictions do believe it was a good idea — just one that’s not as simple as it sounds. While sheriffs’ offices around the state have been working to implement the legislation in the hopes that it will keep more deputies on the street, prosecutors around the state have raised issues with its potential impacts.

“One of the problems is that the legislation does not give much guidance in how it is to be implemented,” said Shannon Edmonds, the governmental relations officer for the Texas District and County Attorneys Association. “If law enforcement agencies and prosecutors and the courts don’t work together, there can be significant problems.”

The problems are related to prosecutorial challenges and jurisdictional procedures corresponding with the handling of seized items, gaining proper identification, and how to start the paper trail of a person’s arrest without booking someone into jail.

In addition, some sheriffs’ offices around the state are wary of not arresting people caught possessing marijuana — which greatly reduces the legislation’s impact — and some prosecutors are concerned about departments not protecting themselves against racial profiling charges.

Still, all these challenges are not insurmountable, and Travis County deputies say the advantages are worthwhile. Despite media reports that other jurisdictions around the state are not taking advantage of the bill, Colorado, Palo Pinto, Grayson, Hays, Navarro, Dallas and other counties have all taken steps toward implementing the new option. According to the enrolled legislation, the option only affects seven Class A and B misdemeanors: Driving with an invalid license; theft of property between $50 to $500; theft of service from $20 to $500; introducing contraband into a correctional facility not including guns, drugs, cigarettes and cell phones; possessing less than four ounces of marijuana; criminal mischief causing less than $500 damage; and graffiti causing less than $500 damage.

“We were looking for a way to keep deputies out in their district… we are just trying to give them another tool in the toolbox,” said Travis County Sheriff’s Major Scott Burroughs, adding that during rush hour, deputies on the outskirts of his county may spend four hours or more on one arrest, especially if the arrest is made during peak traffic times. That’s half a shift, gone.

“It makes sense. You’ve got these huge counties where it takes an hour to transport a suspect to jail, so I don’t know why a sheriff wouldn’t want his officers out patrolling as opposed to playing taxi, bringing people to jail.”

Implementation

The biggest challenge in most counties will be deciding when and how to start the paper record for an offense. In most cases, a person’s paper record of an arrest starts with the booking process. Information is taken and then entered into the Criminal Justice Information System, which is reported to the Texas Department of Public Safety and the FBI. Just taking a person’s fingerprint at the crime scene means that while the fingerprint will be available for identification purposes, a record of the arrest is still not being reported to other agencies, Edmonds said.

“When an officer just stops somebody, arrests them for an offense and then hands them one of these citations, there is no booking record created, which means there is no record of the incident that will be entered into state and federal databases,” Edmonds said. “You may have people fall through the cracks, people for whom there will not exist any actual criminal record of the offense. … To prevent that from happening, the courts themselves must book the person in and initiate a criminal record for the state and federal databases, and that is not something that courts are accustomed to doing.”

In that respect, perhaps Travis County lucked out: The county was able to work out a system with a justice of the peace court situated next to the county’s central booking facility.

Travis County deputies there follow a simple procedure, Burroughs said. After they conduct their investigation and determine that probable cause exists, deputies make an arrest. They then determine whether the arrestee fits under the guidelines laid out in HB 2391. Deputies determine whether the arrestee lives in the county and if any other warrants exist. If the person has an existing warrant or lives outside the county, he or she is taken to the Travis County Jail like normal. If the person resides within Travis County and does not have another warrant, the arrested individual is given a field release citation and told to report for book-in and bonding on the third Thursday after the offense was committed, effectively making book-in part of the bonding procedure instead of the arrest procedure.

That third Thursday, the person must report first to the justice of the peace court where the justice of the peace issues an order of commitment. The arrestee then reports to the pretrial facility and fills out an application for personal bond and goes to the bonding desk for fingerprinting and photographing. The person then returns to the justice of the peace court to be released on personal bond and given a first court appearance date in front of a county court-at-law judge.

“One of the benefits from the corrections side is that we can anticipate when these people come in for booking and coordinate with the jail staff,” Burroughs said.

Out of the 30 people who had been issued a field release citation in Travis County since the implementation of the new law through January, only three have failed to show up at the JP’s office. Those three were issued arrest warrants.

Combining the bonding and booking processes may be hard for counties and cities that don’t have courts located next to a booking facility.

Edmonds said some prosecutors are also concerned about issues regarding verifying that a person who shows up for court is the same person that was originally issued a citation. That may not be an issue in most cases, but if someone fails to appear in court, and an arrest warrant is issued for the wrong person, or someone argues that it’s for another person, the county must have a way to show who received the original citation.

Ken Sparks, the Colorado County attorney, addressed the issue on a message board on the Texas District and County Attorney’s Web site, stating that “police chiefs in my small county are planning to take the defendant to the police station, fingerprint and photograph the defendant, then release the defendant with a citation that includes a future date written on the citation.”

While Sparks’ solution doesn’t save as much time as releasing a person on-scene, it still saves time from having to travel out of a jurisdiction or district to the county jail.

Edmonds said the process Sparks describes is no different than using peace officer bonds. That practice is under fire in El Paso, where the American Civil Liberties Union filed a lawsuit since the procedure does not include a process for appointing counsel after booking, among other grievances.

While prosecutors have expressed concerns about the legislation, the media has hounded some counties who are still working out a system for implementation. The bill was projected to save large counties big money — during the House committee hearings, jail overcrowding problems in both Harris and Dallas counties were mentioned multiple times, and Bexar County officials were supportive of the legislation. But none of those counties had implemented any procedural changes by February, for various reasons.

“For the Class C tickets, if you write a ticket for disorderly conduct or for speeding, then the officer assigns that to the nearest JP court,” said Dallas County Sheriff Chief Deputy Edgar McMillan. “Class B and A misdemeanors have to be assigned to criminal court, and we have no way to do that,” he added, since there are several dozen criminal courts in the county. A smaller county wouldn’t have that problem.

However, Dallas County does hope to implement changes eventually.

The Dallas County Attorney’s Office is working with the Dallas Police Department to create a procedure that will be tested first with the police department, then the sheriff’s office. (In exchange, the Dallas Sheriff’s Office is working on installing a direct electronic filing system, in which prosecutors make an early determination as to whether a person should be arrested. Using the direct electronic filing approach would move cases through the system faster because less time is wasted waiting for paperwork.) “We are going to try it on all the eligible offenses except marijuana possessions,” said Ron Stretcher, Dallas County’s director of criminal jusice.

Damita Sangermano, a Dallas County assistant district attorney who helped draft the new Dallas County procedures, said the attorney’s office created new citation books in which the citation number doubled as the warrant number. The county is planning on making it a rule that anyone given a citation must also give a fingerprint before being released.

“We have cases all the time where the person shows up and says, ‘I’m not the person who was arrested, someone else used my name.’ We wanted to make sure that the person we had coming down here to court was the same person being issued the citation,” Sangermano said. Last year, Dallas County agencies made 20,000 arrests relating to misdemeanors listed in the legislation. Most of the arrests were for theft and marijuana possession, Sangermano said.

“If we could even take care of 5,000 cases, which is a quarter of what we receive every year, then it’s benefi cial,” she said. Th e Dallas County Attorney’s offi ce is not currently expecting offi cers to give citations for marijuana possession because of chain- of-custody requirements, she added.

“Th e offi cer has to immediately take that evidence, weigh it and put it in the property room to keep that chain of evidence solid,” she said. “Th ey can’t just ride around, make eight more arrests and then take it all to the property room.”

But those are county procedural rules, not necessarily law. The Travis County Sheriff ’s office is allowing its deputies to keep seized items until the end of their shifts.

As far as identification standards go, Travis County trusts its deputies.

“We’ve always had the option of arresting or issuing a citation under a Class C off ense and I’m confi dent in the professionalism of the offi cers that work for me that they’ll make the right decisions under the circumstances,” Burroughs said. “If we’re not comfortable with who a person is then we are just going to go ahead and make a custody arrest.”

Because of the additional stresses to the attorneys and courts — and the higher risk faced by those counties where larger numbers of defendants could just not show up for processing — other large counties are waiting to see what happens in smaller jurisdictions before they begin to make procedural changes. “I think it will be easier for small rural counties to implement these changes simply because there are fewer moving parts, fewer people to all get on the same page,” Edmonds said. “Th ey will only have one county court to where all these cases will go, rather than 20.” Impact

Most counties in the state have not yet made changes to their procedures in order to begin issuing citations for the allowed misde- meanor off enses for two reasons: First, they fundamentally oppose any kind of perceived “decriminalization” of marijuana and, second, the other offenses just aren’t common enough to make a signifi cant impact, especially since another bill — HB 1623 — during the 80th legislative session lowered most cases of driving with an invalid li- cense from a Class B misdemeanor to a Class C misdemeanor. Th e bill also made it a Class B misdemeanor to be caught driving with a license suspended due to a driving while intoxicated charge, or if a person has been previously convicted of driving with a suspended license. Before, those off enses were Class A misdemeanors.

“Th e DWLI [driving with license invalid] problem has been something that has clogged county courts for some time… offi cers in some jurisdictions would issue tickets for those Class B off enses anyway, even though there was no authority for them to do it,” Ed- monds said. “Th e legislature took care of the driving with license invalid clogging in two separate bills. Th e two bills passed without contemplating each other.”

Still, Grayson County has allowed its offi cers to begin issuing cita- tions for other Class A and B misdemeanors — except for marijuana possession.

The Grayson County’s Sheriff ’s offi ce believes that “marijuana is a drug and should be classifi ed as a drug,” Sgt. Rickey Wheeler said, adding that he did not personally agree that deputies across the state should be ticketing for drug usage, since it could make drug usage seem less dangerous or serious.

“When you’re talking marijuana, which is a drug, and now you’re telling me that I can issue citations for it when it’s always been a jail- able off ense, then what’s going to be the next step in this process?” Wheeler asked. “Are we soon going to be writing tickets for some- one who has a prescription for hydrocodone that doesn’t belong to them? I think once you start a process like this, it has nothing to do but go in the wrong direction.”

The legislation doesn’t change the penalty for marijuana posses- sion or decrease its classifi cation — possessing between two and four ounces of marijuana is still a Class A misdemeanor, punishable by up to one year in jail and a $4,000 fine. Possessing less than two ounces is still a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine.

But Wheeler added that unlike the other misdemeanor off enses listed in the legislation, issuing a citation for people caught possess- ing marijuana would not save deputies much time, since deputies in Grayson County are still required to take seized items directly to the county jail to be weighed and logged into the evidence room.

Th e original legislation had not focused on any specifi c off enses, but had included all Class A and B misdemeanors, with exceptions listed. Th at legislation would have had a greater impact, Burroughs said, adding that he believes what passed during the 80th session is just a fi rst step.

“There seems to be some support or pretty good support among legislators that this makes sense from a business perspective in keep- ing offi cers out on the street,” Burroughs said. “Th ere is going to be a little resistance early on. It’s something new. As it becomes more of the normal protocol throughout the state of Texas, it’ll become a very common practice.

“It’s a good start,” he said. “And we’ll go back next session and see if we can’t add the option to some of the other laws.”