Category: Public Policy

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Approaches to Criminal Justice

States employ a variety of approaches to criminal justice.  Some of the more prominent approaches include:

  • Retribution – emphasizes punishment because the guilty violated societal rules
  • Just deserts – views the purpose of the criminal justice system as enacting punishment fitting for the crime
  • Incapacitation – emphasizes removing the guilty from society to prevent new or additional crime
  • Rehabilitation – focuses on therapy or education in order to reform the criminal behavior and reduce recidivism, or the tendency of a convicted criminal to reoffend
  • Restorative justice – sees crime as a break in society between the community, the perpetrator, and the victim; focuses on healing this break

Texas’ Approach to Criminal Justice

Texas is considered to be tough on crime and romanticize vigilante justice, which can be seen in the state’s support for the castle doctrine (the principle that you are justified in the use of deadly force to protect one’s home and its inhabitants from intruders) and capital punishment (legally authorized killing of a person as punishment for a capital felony).

Texas political culture emphasizes retribution and just deserts approaches to criminal justice, which lead to a higher number of acts that are criminalized and higher incarceration rates.  Texas currently has the fifth highest incarceration rate in the United States, with over 150,000 persons in prison; in 2014, the Texas prison incarceration rate was 600 inmates per 100,000 residents.  Texas also has approximately 400,000 people on probation and 110,000 people on parole.  Many of the individuals within our criminal justice system are nonviolent offenders.

From Punishment to Rehabilitation

Since the 2007 legislative session, we have seen a shift in Texas criminal justice from focusing on punishment to focusing on rehabilitation – in other words, from “tough on crime” to “smart on crime.”  This shift was prompted by looming budget shortfalls and an ever-expanding prison population:

“Having crunched the numbers to determine that the state needed to authorize an additional $2 billion for another 17,000 prison beds, a group of conservative thinkers proposed an alternative: What if the Legislature instead reduced the need for the beds by creating drug courts, reducing incarceration rates for nonviolent offenders and offering rehabilitation and educational opportunities to inmates, all for the lower price of $241 million?” (Wiley, 2018) 

The criminal justice reforms passed by the Texas legislature in 2007 have resulted in a decrease in the state’s prison population and the crime rate while saving the state millions of dollars.

The Texas legislature has continued to push for criminal justice policy reform.  For example, in 2015, the Texas legislature supported various criminal justice policies designed to “prevent wrongful conviction, safely reduce the overreliance on costly incarceration, reduce recidivism, and strengthen families” (Texas Criminal Justice Coalition, 2015), and during this past legislative session, lawmakers again set out to reform Texas’s criminal justice policy through a package of reforms called “Smarter Justice, Safer Texas” (McCardel and Whitely, 2021), which included various bills intended to:

  • keep Texans safe (reforming the bail system; denying bail for violent predators)
  • restore the public trust (ending arrests for non-violent offenses; reducing costs of body camera storage data; enhancing training for law enforcement)
  • defend the rights of the accused (protecting personal property from forfeiture; stopping the use of hypnosis in investigations)
  • get justice right (establishing jury instructions for capital felony cases; creating pathway to seek new trials)
  • support smarter second chances (removing arbitrary barriers to probation; eliminating financial barriers to re-entry in society; expunging decriminalized offenses from records)

Inspiring Federal Legislation: FIRST STEP Act

The FIRST STEP Act of 2018, a federal bipartisan prison reform law, drew heavily from elements found in Texas’ criminal justice policy, including offering vocational training, academic classes, and substance abuse treatment and incentivizing participation in these classes and programming through the use of “good time credits.”

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Components of Texas’s Criminal Justice System

Criminal justice systems consist of three major components: law enforcement agencies, courts, and correctional facilities.

Law Enforcement Agencies

Texas has over 1,900 state, county, city, ISD, university, and transit district law enforcement agencies.

State law enforcement agencies include, but are not limited to, the Texas Alcoholic Beverage Commission, Texas Attorney General, Texas Commission on Law Enforcement, Texas Department of Criminal Justice, Texas Board of Pardons and Paroles, Texas Department of Public Safety, Texas Department of Parks and Wildlife, and Criminal Investigations Division – Comptroller of Public Accounts.

Texas Department of Criminal Justice

For the purposes of our discussion, we are going to focus on only one of these state law enforcement agencies: the Texas Department of Criminal Justice (TDCJ).  TDCJ is overseen by the Texas Board of Criminal Justice, which is a nine-member board appointed by the governor.

TDCJ has four goals: (1) to provide public safety; (2) to promote positive change in offender behavior; (3) to reintegrate offenders into society; and (4) to assist victims of crimes.

TDCJ consists of seven divisions, four of which are focused on overseeing the supervision of offenders in various TDCJ-operated and privately-operated state correctional facilities.

TDCJ Divisions that Oversee the Supervision of Offenders

  • Community Justice Assistance Division
  • Correctional Institutions Division
  • Private Facility Contract Monitoring/Oversight Division
  • Parole Division

Other TDCJ Divisions

  • Rehabilitation Programs Division
  • Reentry and Integration Division
  • Victim Services Division

Courts

Texas has nearly 3,000 state, county, and local courts, many of which have jurisdiction over certain criminal offenses.

Correctional Facilities

Texas has a variety of agencies that detain and supervise offenders, including state facilities operated by the Texas Department of Criminal Justice, privately operated facilities, and parole confinement facilities.

TDCJ state facilities include prisons, state jails, transfer facilities, medical facilities, pre-release facilities, substance abuse felony punishment facilities, psychiatric facilities, geriatric facilities, and the mentally challenged offender program.

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Promoting Accountability in Higher Education

As is the case with public school systems, accountability has become a major issue in higher education.  Assessment of courses and programs has become an increasingly prominent part of what universities and faculty must do.  Support for the general idea of accountability in higher education might be high, but defining accountability and how it is measured generates tremendous disagreement.

Learning Objectives

Currently, universities are asked to design assessment instruments and gather data pertaining to student outcomes relating to specified learning objectives.

The Texas Higher Education Coordinating Board (THECB) has identified six core learning objectives: critical thinking skills, communication skills empirical and quantitative skills, teamwork, personal responsibility, and social responsibility.  Not all courses are associated with all six of these objectives; it varies from course to course.

60x30TX Plan

THECB’s current strategic plan for higher education is the 60x30TX plan, which consists of four goals:

  1. Educated Population:  By 2030, at least 60% of Texans ages 25-34 will have a certificate or degree
  2. Completion:  By 2030, at least 550,000 students in that year will complete a certificate, associate’s, bachelor’s, or master’s degree program from an institution of higher education in Texas
  3. Marketable Skills:  By 2030, all graduates from Texas public institutions of higher education will have completed programs with identified marketable skills
  4. Student Debt:  By 2030, undergraduate student loan debt will not exceed 60% of first-year wages for graduates of Texas public institutions

Texas public universities have been tasked with coming up with the strategies and resources to meet these goals.  Attaining these goals has been complicated by the COVID-19 pandemic, which significantly impacted enrollment and universities’ revenues and expenditures (see McGee, 2020; Olivares, 2021).

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Access to Higher Education in Texas

In 1997, Texas adopted the Top 10% rule, which required public colleges and universities to accept any students who completed high school in the top 10% of their graduating class.  This was an effort to promote diversity without explicitly using race as a factor in admissions.

This rule has been modified for some universities, including UT Austin (which is only required to accept the top 7% of a graduating class), to allow for a broader consideration of skills and abilities that may not be apparent in regards to grades when admission decisions are made.

Fisher v. University of Texas at Austin

One of the most recent challenges to the Top 10% Rule and the use of race as a factor in admissions was in the court case Fisher v. University of Texas at Austin.  This case was heard twice by the U.S. Supreme Court – first in 2013 when it vacated the decision made by the Fifth Circuit Court and remanded the case, and again in 2016 after the Fifth Circuit Court reconsidered the case using the strict scrutiny test.  In 2016, the Supreme Court ruled that (1) Texas’ Top 10% Rule does not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and (2) race can be used as a factor in the admissions process.

Direct Link: Supreme Court Upholds Affirmative Action in University Admissions

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Higher Education in Texas: An Overview

Similar to what we saw in our discussion of public education, Texas has long been involved in the state’s higher education.

Three major policies related to higher education in Texas include:

  • the establishment of the Permanent University Fund (PUF) to help fund higher education institutions in Texas (1876)
  • the creation of the Texas Higher Education Coordinating Board (THECB), which is an appointed board that oversees higher education policy in the state (1965)
  • the establishment of the Higher Education Fund (HEF) to help fund universities, health-related institutions, and Texas State Technical College institutions not funded by PUF (1984 & 1993)

Funding: PUF, HEF, and Tuition

Higher education is funded by federal and state monies and institutional profits.

Payments associated with the Permanent University Fund (PUF) endowment fund help financially support the UT and A&M systems.  There are many public colleges and universities, however, that do not fall into these two systems.  State funding to support these institutions comes from the Higher Education Fund(HEF).  HEF was created through amendments to the Texas Constitution in 1984 and 1993, which allowed the state legislature to provide appropriations to universities, health-related institutions, and the Texas State Technical College institutions not funded by PUF.

In 2003, the Texas legislature cut funding from higher education and deregulated higher education tuition, allowing universities to alter their tuition to offset state funding cuts by raising needed funds through increases to tuition, fees, and residence costs.  Now, those who enrolling in higher education bear the cost burden of increased rates, typically through borrowing student loans (in part because the state’s financial aid programs for college students have seen cuts in funding as well).

THECB: Overseeing Higher Education Policy

THECB establishes rules and regulations that apply to all public universities in the states.  Universities’ boards of regents or trustees (which, like members of THECB, are appointed by the governor and serve staggered terms), are then charged with setting guiding policies in line with THECB rules and regulations.

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Public Education: Accountability & Reform

With the passage of the Education Reform Act in 1984, accountability and reform within public education became a major component of Texas public education policy.

The Education Reform Act required that:

  1. teachers and school administrators take a test to assure basic competency (certification and re-certification), and
  2. students be tested periodically to monitor progress

The Texas Legislature added to this framework with the passage of SB3 in 1993, resulting in an educational accountability system that

“. . . measures and holds schools and districts accountable for student performance on assessment tests and dropout rates. Campuses and districts each year receive an accountability rating based on the percentage of all students and the four student groups (white, Hispanic, African American and economically disadvantaged) that pass the state’s assessment tests at grades three through eleven. The rating also considers the overall student dropout rate and each individual student group.” (An Overview of the History of Public Education in Texas, n.d.).

Texas’s educational accountability system ultimately became the model for the No Child Left Behind federal education plan that was passed by the U.S. Congress in 2002, during former Texas governor George W. Bush’s presidency.

The manner in which assessment and testing is completed (i.e., the instrument that is used) is regularly disputed policy and, as a result, the state sometimes modifies instruments in light of policy stakeholder feedback/program evaluation.  Today, students are required to take the STAAR test; before that, students took the TAKS test; before that, students took the TEKS test.

The Texas Education Agency (TEA) oversees teacher certification/re-certification (including accrediting educator certification programs and issuing teaching certificates) and student assessment.

 

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Combatting Financial Inequality in Texas’s Public Schools

Education policy in Texas’s public schools is especially complicated because it brings together the efforts, money, and rules of federal, state, and local governments.  Federal laws such as the No Child Left Behind and the Every Student Succeeds Act have continued to increase federal involvement in Texas public schools; however, the financial responsibility for schools remains mostly with state and local officials.  This is reflected when looking at recent state budgets.  For example, in 2013-2014, Texas public schools received 41.4% of their budgets from the state, 10.6% of their budgets from the federal government, and 48% of their budgets from the local government.

“Equity spending among school districts has been a driving force during the latter half of the 20th Century. From 1989 to today, the system of school finance has been subject to both legislative volleys and on-going court battles between those termed “property-poor” and those termed “wealthy” school districts.” – An Overview of the History of Public Education in Texas, n.d.

Financial inequality amongst school districts has been a problem since the early 20th century; indeed, it was the motivation behind the decision to start purchasing textbooks with state funds in 1917.  Financial inequality between school districts remains one of the most vexing problems in Texas politics in that it results in disproportionate educational services provided to students.  Today, these problems are rooted in the local property taxes that schools rely heavily on for much of their funding.  Some school districts have higher property tax revenues due to higher property tax ad valorem rates and/or higher valuation of property, whereas other school districts have lower property tax revenues.  This translates into differences in educational opportunities.

In 1973, Texas’s public school funding scheme based on property tax revenue was challenged in a federal court under the claim that it violated the Equal Protection Clause of the 14th Amendment.  In the majority opinion in San Antonio v. Rodriguez (1973), the U.S. Supreme Court decided that education:

  1. is not a fundamental right protected under the U.S. Constitution
  2. Texas’s public school funding scheme did not violate the Equal Protection Clause because it did not discriminate against all poor residents

Over a decade later, this issue was challenged again, this time in the Texas Supreme Court in the case Edgewood v. Kirby (1989).  In this case, the Texas Supreme Court decided that Texas’s public school funding scheme violated Article VII Section 1 of the Texas Constitution, which requires the state to provide for free public schools.  This decision, along with the decisions in several other cases, resulted in the Robin-Hood plan, which sought to equalize funding between school districts by “moving money from property-wealthy districts to property-poor districts” (Aycock, 2016).

In 2006, the Texas legislature sought to mitigate the impact of differences in property tax revenues between school districts by establishing a new funding scheme for public education that relies on a mixture of property taxes, an increased franchise tax, $1.00 per pack on cigarette sales, and monies from the general revenue fund.

Despite these changes, issues relating to public school funding persist, in part because “[p]lans that seemed workable are altered by unexpected student growth, property value changes, demographic changes, technology changes, political shifts and other factors too numerous to mention” (Aycock, 2016).

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Combatting Racial Inequality in Texas’s Public Schools

Traditionally, education has been viewed as an area falling under the states’ reserved powers, with the federal government exercising limited authority in public education.  One of the first areas in which the federal government began to directly impact public education in the states corresponds to equality of access to state educational facilities.

Until the mid-twentieth century, segregation in society – including in public schools – was legal within the United States (Plessy v. Ferguson [1896] and the “separate but equal” doctrine).  This changed – at least, legally speaking – in 1954 in the landmark case Brown v. Board of Education of Topeka when the U.S. Supreme Court decided unanimously that the separate but equal doctrine, when applied to educational facilities, is inherently unequal and violated the Equal Protection Clause of the Fourteenth Amendment.  During the following decade, the U.S. Congress passed the Civil Rights Act of 1964 and the Secondary Education Act of 1965, both of which contained provisions aimed at promoting equality and diminishing discrimination within public education.

Texas, like many other states, did not immediately enforce the Supreme Court’s decision in Brown v. Board of Education and did not readily comply with federal legislative requirements.  Finally, the U.S. Department of Justice filed a lawsuit against the state of Texas that resulted in the desegregation of state public schools in 1970.

Of course, as many of you may be aware of through your own experiences, not all public schools are equal, and closing gaps to promote equality in public education for all Texas children regardless of their race has been difficult.

Direct Link: How school segregation lingers in Texas decades after Brown v. Board of Education

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Texas’ Public Education Laws

Texas has been actively involved in elementary and secondary education since the days of the Republic of Texas.  “The Texas Declaration of Independence in 1836 listed the failure of the Mexican government “to establish any public system of education, although possessed of almost boundless resources…” among the reasons for severing political ties with Mexico” (An Overview of the History of Public Education in Texas, n.d.).  Four years later, Texas passed the first state public school law, which required Texas counties to set aside land to support public schools.

In 1854, the Texas Legislature created the Permanent School Fund (PSF), which at the time consisted of $2 million (out of the $10 million) Texas received from the U.S. as a settlement over boundary claims, for the benefit of Texas public schools.  Additional changes to the PSF were made in 1876 (45 million acres of public lands were set aside to support public schools), 1884 (PSF funds were required to be invested in bonds to increase fund revenue), and 1983 (school district bonds were guaranteed by the PSF).

Other significant public education policy decisions in Texas since the beginning of the 20th century include:

  • Permitting the creation of rural high schools and consolidating common school districts (1911)
  • Compulsory attendance law (1915)
  • State purchase of textbooks (1917) — today, textbooks are paid for out of the Available School Fund, which is made up primarily of revenue generated by the PSF and gasoline taxes
  • Passage of the Gilmer-Aiken Act (1949)
  • Statewide curriculum (1981)
  • Passage of the Education Reform Act, which established the current framework through which we promote accountability in public education (1984)
  • Returning more decision-making authority to local school districts and allowing open-enrollment charter schools that “comply with minimum provisions of the education code, but operate with state funds and provide alternative methods of instruction” (1995) (An Overview of the History of Public Education in Texas, n.d.)

NOTE: This is by no means a comprehensive list of Texas’s laws on public education.  Rather, it should be viewed as a starting point for our discussion of public education.

A Closer Look: Gilmer-Aiken Act

The foundation of the modern public school system in Texas was laid with the passage of the Gilmer-Aiken Act in 1949, which:

  • guarantees Texas children twelve years of school with a minimum of 175 days of instruction per year
  • established the Texas Education Agency (TEA), which is the main agency that governs the elementary and secondary public education system
  • revised the structure of the State Board of Education, which oversees the PSF and is involved in policy issues such as curriculum and textbook adoptions, by transitioning it from a state-appointed board to an elected commission
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Civil Law in Texas: The Basics

Civil cases in Texas involve the plaintiff, or party bringing the case, and the defendant, or party accused of causing an injury.  Civil lawsuits usually result in some form of restitution, or financial compensation.

Civil cases take two different forms: uncontested, which means both parties agree on the desired outcome but are using the court system to make the agreement legally binding, and contested, which means the parties involved in the case do not agree on what the outcome of the case should be.

Civil Law Process in Texas

Flow chart depicting Texas's civil law process

Pre-Trial

The civil law process begins when a plaintiff files a petition with the court, which asks the court to grant a certain outcome in a civil suit.  Once the petition is filed, the plaintiff is required to arrange for the defendant to be provided legal notice that the petition has been filed.  The defendant is then allowed to respond to the petition by filing a request or special appearance (if the defendant has a jurisdictional challenge to the petition), filing an answer (if the defendant wishes to demonstrate that he is not defying the court’s authority), or filing a counter-petition (if the defendant has his own claims against the petitioner).  Next, the civil case enters the discovery period, during which legal counsel for both parties may request information relevant to the case that the other party has compiled.

Many civil cases end during the pre-trial stage due to a petition for nonsuit being filed by the plaintiff, settlement agreements between the parties involved, or summary judgments issued by judges.

Trial

If the case is uncontested, chances are the trial stage of the civil law process will be fairly short.  If, however, the case is contested, the trial stage of the civil law process will more closely resemble a trial and will include the introduction and cross-examination of evidence.

Post-Trial

Following the trial, the judge will enter a judgment as to whether the defendant is liable and, if so, what restitution is required, along with how long the defendant has to comply with the court order.  If one of the parties disagrees with the judgment, the case may be appealed to a court of appeals for review.

Tort Reform in Texas

“. . . Texas was known as one of the nation’s “judicial hellholes.”  Equal enforcement of the state’s [civil] laws was simply not a certainty upon which a citizen could rely.” – Nixon & Texas Public Policy Foundation (2013)

In 2003, the Texas government took action to provide comprehensive reform of the state’s civil law system:

  • Governor Rick Perry declared medical malpractice reform an emergency legislation item; shortly thereafter, HB4 was passed and signed into law.  HB4 was an omnibus tort reform bill that contained many procedural, substantive, evidentiary, medical malpractice, and general civil law reforms found in other states and in the federal court system.
  • In 2003, the Texas legislature passed Texas Constitutional Amendment Proposition 12, which would give HB4 full effect and overturn a Texas Supreme Court decision against caps on non-economic damages in civil suits.  This amendment was approved by a majority of voters.

Several studies of the Texas civil law system have found that these reforms have had a positive impact on reducing the volume of civil lawsuits, have increased access to healthcare in the state due to an increase in the number of licensed physicians practicing in the state resulting from decreasing malpractice premiums, and has had a positive impact on the state’s economy.