Travis County Commissioners Court
Tuesday, June 22, 2010,
Item 24
>> item number 24, consider and take appropriate action on the following: a, receive briefing regarding duties of public officials in criminal justice matters; b, review historical funding for public officials in criminal justice and consider plans for future needs; and c, offer from the texas association of counties for programming on duties of county officials for use on channel 17. Commissioner davis?
>> yes, judge, thank you. And before we get started, i'd like to --
>> this is an explanation that -- the district attorney will not be able to be present with us, but she has sent two persons out of her shop, one by the name of clara brown, who will actually maybe go through the process of grand jury procedures, selection process as far as that role, and also the first assistant da, john mill. So we just wanted to make sure that those particular persons are available and they will attend this particular meeting on this particular item. In addition to that, i'd like to basically applaud everyone here for participating in this particular agenda item. It's been very well put together, the information to bring forth and the persons that are being involved with this particular agenda item. And of course, we want to make sure that the -- and in fact, let me just back up just a little bit. On i guess may 11th mr. Nelson linder came before the commissioners court under citizens communication, and of course he laid out a lot of things. And of course, at that time he -- as you know, we cannot basically talk back and forth under citizen communication. That's just not the proper format to address a lot of the concerns as far as the role of county government and the role of independent --
>> hold on one second, please. Mr. Reeferseed, we will need to you have a seat in the audience. There are eight or nine people here on this item. They will have an opportunity to speak to the court first. At the time that we take open comments, we'll make sure we recognize you, okay. Sorry, commissioner.
>> that's all right. And in fairness to mr. Nelson linder, who is the president of the naacp, i thought it would be more appropriate to place an item on the agenda where we can fully flush a lot of things out, and especially the role of county government and the elected officials that are involved in this. So what i'm trying to do basically in each one of these particular items, a, b and c, is to bring up the proper persons that will be involved with deliberation and discussion. Of course, wanting to make sure they're all here, and i think they all are, but to begin with item a -- and of course mr. Linder, he's our special guest this morning. We want to make sure he's sitting here at the table also so he will be able to gather up front all the information that is readily available and he will have an opportunity to speak accordingly also. So we really appreciate him being here this morning. However, i would like to make sure that the following persons -- i would like to -- you know, when you put something on the agenda, you hope, you hope that the folks will participate and come down with us and be able to take the time out of their busy schedule because some of these folks are elected officials. And of course, they have -- i would like to call several of them to the table. Of course i would like to call first of all the da's representatives who is here today, john mill and also clara brown. And of course if they will come up to the table along with sheriff hamilton, bruce elfant. And item b will have to be tied in with pbo as far as that item is concerned, the role. Of course with mr. Nelson linder, we also want him to come to the table so he can be a part of this process. So it's kind of important that we all kind of lay the things out the way we are laying it out so we'll try to approach it in that vain. So at this time, judge, if they will basically look at the duties and responsibilities. They may want to comment on their individual roles; however, we do have -- on item c we actually do have a d.v.d. That describes and discusses the role of elected officials here with travis county. And of course, they may want to enlighten us a little more, judge, that may not be suggested in the d.v.d. That we have for item c. So they may want to enlighten us a little bit more on what the duties and role -- the duties of the officials here in travis county.
>> i see the county attorney has joined us. Can we let him sit on bacteria row where he is now? -- on the back row where he is now?
>> this is fine. I think i'm serving here today as more of a legal counsel. So this would be appropriate.
>> and roger jeffreys, for item c he would be very important that -- as far as public safety and a whole lot of other things. This is the big umbrella here as far as travis county government. Unfortunately all of the things that we would like to have maybe illustrated here this morning from all of our elected officials who have been voted in by the voters of travis county are not a part of this process; however, the video d.v.d. That we do have in item 2 does highlight their duties and responsibilities. So we don't want to leave anybody out, but this is coming from the vein of basically the criminal aspect, we wanted to make sure that the criminal aspects of those persons involved in county government are actually highlighted. So this is basically where we are at this point. So whoever would like to start first, the constable, whoever would like to go through the presentation or however you would like to deal with it and speak on your own behalf, that's very important.
>> i'll begin. I'm john neal from the district attorney's office and i'll talk about the district attorney's office. The district attorney is an independently elected official whose powers, duties and existence come from the texas constitution and the government code and other statutes. The duties of the district attorney are laid out in the code of criminal procedure, section 2.01, and it states generally that each district attorney shall represent the state in all criminal cases in the district courts of his district and appeals and it shall be the primary duty of all prosecutorring attorneys, including any special prosecutors not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.
>> go ahead.
>> those are the duties as laid out for the district attorney.
>> okay. Thank you. And next. Don't be bashful.
>> i'm greg hamilton, travis county sheriff. I am the chief law enforcement officer here in travis county, and my responsibilities is keeper of the jail and also to enforce the laws of the state of texas.
>> thank you. And as far as the constables are concerned, i guess --
>> i'm bruce elfant, constable precinct 5 and also vice-president for the texas association of counties, so we always look forward to having discussion items about the nature of county government and what our roles are. County government has been around in texas since the 1820's when stephen f. Austin established the first colonies here in texas. We were under mexican government, we were under federal texas government and then we were under the state of texas government. After the civil war and during reconstruction the folks who govern texas created a more centralized model for county government creating a centralized power in the role of county judge or mayor, a strong central government. And in a reaction to that, texans felt like centralized government wasn't meeting their needs, they didn't have enough input and the constitution of 1876 rat kelly decentralized government in the state of texas and that's where we have all the elected officials from the county judge and the commissioners court, which was intended to serve as the administrative body of the county, but then they decided that the sheriff was going to be elected, the district attorney was going to be elected, the county attorney was going to be elected, the district and county clerks were going to be elected, the constables were going to be elected, the treasurer was going to be elected, but the auditor wasn't elected. Auditor was also appointed, but not by the commissioners court, but by the district judges to check on the power of the commissioners court. And interestingly until recently the only person who could arrest a sheriff in texas was a constable until about the last 10 years. Now, sheriff, anybody can arrest a sheriff.
>> [ laughter ] i'm sorry.
>> not this sheriff.
>> [ laughter ]
>> but the idea was to decentralize government, have a centralized administrative authority, but to have individual elected officials that maintained some independence. And a lot of people are thinking this doesn't seem like a very good deal for commissioners court. They don't have a lot of control. But the control commissioners courts have in texas is the power of the purse strings. The idea is to encourage the independent elected officials to cooperate with the commissioners court and governed by more consensus. To where people come together and reach agreements on what their authority ought to be and what their roles and their budgets ought to be. And so in texas it's really worked pretty well. And the ultimate check and balance really is the voters. And if any voter is not happy with a commissioner or with the constable or sheriff or a da, they get to take that up individually with that elected official and they don't have to go to commissioners court and hope that the commissioners court can try to make something happen in that vein. So even the -- we're surviving from 1876, we're still a very decentralized model of government with the exception of the hide inspector and the county surveyor. We no longer have those. Constables have their power, their authority from the texas constitution. And the code of criminal procedure gives constables the authority as peace officers in texas to perform any duty that a peace officer would perform. And the occupations code talks about the primary duties of constables as being -- bailiffing the courts and serving and executing process, civil and criminal process within the county and contiguous counties. And when i have complaints that go to commissioners court about what we do, they come directly to me and we make the decisions about the complaints. If it's an officer we'll create an internal investigation, but ultimately the authority for what i do rests with me. And if the voters aren't happy with me, they have the opportunity to vote me out and put somebody else in. And that's the case with any elected official in travis county. Probably more than you wanted to hear.
>> no, that's a good overview. Basically also i think has been mentioned is the grand jury and i guess the process as far as how the grand jury is dealt with since it's part after tool that's also used in the criminal aspects as far as what the county does. We do deal with grand juries. So can we have some comments on basically how -- what comments do you have to make as far as the process as far as grand juries are concerned?
>> absolutely. The grand jury -- it's not the district attorney's office that does that. And the process for impaneling grand juries is set out in the texas code of criminal procedure, chapter 19. And there are two different ways in which grand juries can be selected. There's the commissioner system, and in that system a district judge, when it's his term of court to select a grand jury, will appoint three to five grand jury commissioners. And these grand jury commissioners are supposed to be from different portions of the county. And each of these grand jury commissioners will submit names of potential grand jurors. And they submit 15 to 40 potential grand jurors' names. The code directs that these potential grand jurors are supposed to represent a broad cross-section of the population of the county, considering factors of race, sex and age. When these grand jurors come in, the judge will test their qualifications. They have to be of sound mind, qualified to vote in the county, even though they don't have to be registered. They cannot have been convicted of a misdemeanor theft or any level of felony or they cannot be presently charged with any misdemeanor, theft or level of felony. Once he's qualified them, the first 12 are selected as grand jury members and two alternates are named. There's a second way of selecting grand juror members that's provided for in the code, and that is drawing the potential members of the grand jury from the civil jury pool, just as any regular pettite jury is selected. The judge will ask that 20 to 150 potential jurors from the jury pool be sent to his courtroom. He will test them once again as to the qualifications, sound mind, qualified to vote and no prior convictions as i've laid out before. And then once again he would select 12 of those members and two alternates. And that's how the grand juries are formed. In travis county our grand jurors typically sit for a three-month term, although the terms of court are now six months, so if the grand jury is selected at the beginning of that six-month term, they are able to be a grand juror for that six months and the code provides that they can be extended 90 days beyond their regular term, but it is the tradition in travis county that we have a -- grand jurors are selected for three-month terms. At this time we have three grand juries operating at all times, and in the past few years, probably three or four years ago, the judges only selected grand juries by the commissioner system, but one of the judges tried using the jury pool, it worked very well for them, and so we typically now have a combination. Usually we have one or two grand juries that are chosen by the commissioner system and at least one by the jury pool or vice versa. Right now we have three grand juries sitting. Two were selected by the pool system and one was selected by the commissioner system. So it just depends on which judge, but both of those systems are being used to select them. Once the jurors are select and i am paneled by the judge -- impaneled by the judge, they procedure to hear cases in travis county. Their duty is to hear all felony cases and determine if there is probable cause to indict those cases for them to be tried. All grand jury proceedings are secret. The county attorney, the district attorney and the attorney general can appeal before the grand jury and bring any cases that are liable to indictment before that grand jury or the grand jury can ask to hear those cases themselves if something comes to their attention that they may be liable for indictment, they can ask that it be presented. The droirn district attorney or the county attorney or the attorney general are really the legal advisors for the grand jury and the statutes provide that the grand jury can ask for advice from the prosecutors at any time. And basically their duty is stated as being to inquire into all offenses liable to indictment. They can also ask for advice from the judge at any time during their term. When the grand jury is presented any criminal case, they are entitled to ask questions of any witnesses. They have the right to subpoena power to bring any witnesses before them that they want to hear from. And they also can ask questions themselves. It's unlike a petit jury that you see trying a case to beyond a reasonable doubt where the jurors don't have any interaction with the witnesses. Grand jurors in the secrecy of the grand jury room can ask any questions they want and the rules of evidence don't apply. Once a grand jury, if they have to have nine members to have a quorum and before an indictment can be returned, nine members have to vote affirmatively for a true bill of indictment. It is not a unanimous system, it just requires nine votes for an indictment.
>> do grand juries have the power to subpoena documents?
>> yes. Yes. They have very broad powers and can subpoena any kind of document. The only document i ever found that we couldn't subpoena for a grand jury was i.r.s. Records.
>> well, thank you. Were you finished?
>> unless you have any questions. I can talk about grand juries for hours, but that's the basics.
>> i didn't have any specific questions at this time, it's just amazing the information that has come forth this morning. Like i said, the public is unaware of a lot of information as far as what the role of county government actually does from the elected offices' perspective, and it's good to hear this. And i had talked with mr. Nelson on the telephone a couple of times and i told him that i would try to place this item on the agenda since he did come before the commissioners court on may 11th and of course it wasn't fair to him as far as what he had brought before us at that time. And i told him i would get something on the agenda to allow him an opportunity to bring forth his point. So at this time if nothing else from the court, i would like to go ahead and hear from mr. -- i'm sorry.
>> i had two questions that i thought would be interesting points to bring out. From your perspective, ms. Dawson-brown, philosophically, what is the reason for grand juries being independent from the prosecution?
>> well, i think it -- it states back to the history of the -- dates back to the history of the citizens' skepticism about the powers in texas. It's the guard, the sieve between law enforcement and the citizens. It allows them to listen to what's happening in law enforcement, to determine if this person being -- being charged with a felony is an extremely serious situation. You lose many rights if you are convicted of a felony. And a grand jury is there to determine whether or not there is sufficient probable cause that any person should be indicted and put in the criminal justice system at the district court level to be held answerable for a felony. So it is that opportunity for the citizens to make sure that only people who should be charged with a crime are charged with a crime as serious as a felony. And to continue to give input -- i think it's very important to give input to the prosecutor about the citizens' feelings about the criminal justice system, how law enforcement is operating, how prosecutors are operating. It is that time when they can communicate on a very intimate way with us, unlike petit juries, and tell us what their concerns are and to make sure that only the appropriate people are charged with a crime.
>> and then mr. Neal, similarly the philosophy -- and perhaps actually constable elfant as well. Similarly the philosophy behind the -- there's 48 separate elected officials in travis county governance. And my understanding, having been in two of those areas, having been the county attorney's office and having been on the commission urs court, that there is a distinction, a delineation and an independence between those 48 in such a way that while the commissioners court -- and i guess david is the best to answer this one, but y'all can jump in on it too. While the commissioners court does have budgetary authority and the power of the purse, for instance, it would be highly -- it would not be good for sitting commissioner or another elected official. And i imagine there's actually a penal code provision to prevent this. One of the other elected officials from trying to impose upon the prosecutors their opinion in a particular case. Where is that line as far as the independence between these 48 elected officials, particularly as it results to criminal prosecution by the county attorney's or the district attorney's office?
>> well, you hit on it, commissioner. Those 40 some-odd elected officials that you cite, all that authority and authority for travis county -- for counties being political subdivisions of the state, all of our authority and respectfully those individual elected individuals, comes from the state. So it is specifically delineated. So the first problem would be is a question of jurisdiction. It would be similar where a commissioner would -- might try to impose their will on some specific matter with a particular elected official on that is clearly delineated within that elected official's authority and not the commissioner's. Wouldn't be any different than the county treasurer trying to impose their will on a district attorney to do something specific on a case. There's just a lack of that jurisdiction completely to do that. And then as you pointed out, there are case by case, but certain precautions you have to take because there are certain prohibitions in the local government code, for example, specifically where commissioners courts aren't even supposed to involve themselves in the hiring or getting too involved in recommending people that elected officials have under them to hire. Commissioners court by the budget, in the slots, but the elected officials get to make the decisions on the hiring and the firing. And additionally, claire and mr. Neal i think have some experience with this, there are penal code provisions, abuse of office, official oppression, that you always have to be careful of as well when you lack jurisdiction or lack authority and try to impose some will upon someone else to their detriment. There could be criminal sanctions that come from that.
>> thank you.
>> thanks. Anybody else on court have anything to say before i go to mr. Nelson linder? Okay. So at this time mr. Linder, if you would -- at this time it's your turn. I'm recognizing mr. Linder.
>> let me first say good morning.
>> i'd like to thank you for being here.
>> judge and fellow commissioners, especially commissioner davis. I came here initially back in 2009 to address what i thought was a abuse of force against african-americans and hispanics. I came back in may to address the same issue and i gave you sort of some information that addressed these concerns. But today i want to talk about another document that's very important. It's a letter from the department of justice that was issued on december 23rd, 2008 to the city of austin. What it said was really that this city had a problem with abuse of force against african-americans and hispanics. What it said was that specifically that in terms of use of force, the policy was too liberal and it gave the city some very precise instructions, but of course this letter was pretty much not really dealt with as an overall city issue. It was primarily concerned to the police department and that's why i'm here because in 2003 the fourth and third judicial court in this city, they saw two different standards in terms of justice for black people and essential white people. They called the council and other agencies to work together to address this disparity and they gave plenty of evidence. When you look at the tris his try of police shootings in austin texas for the last 10 years, it's primarily black and brown victims. Yet in many cases there's been plenty of evidence in my opinion that shows it was excessive, but basically almost no indictments. So under this department of justice letter, it's very clear that in this city you have a problem. But the problem is not being addressed. So -- they said look, when you're talking about use of force here, let me give you a legal standard that you should look at as a body, da office, county. They cited a case, brown versus connor, which talks about how to do an arrest properly. They cited a case tennessee versus garner which talks about the recognizable and appropriate use of force. Those are two very well documented cases all over the country buvment more importantly it said austin, your use of force policy is deficient. I think that's a very indicting statement for somebody to tell them that the police department is deficient. While they understand the fact that under texas penal code officers talk about being objectionable and reasonable, the question is is force in these cases really necessary? And nobody is addressing any of the shootings that involve people, for example, like jesse owens or daniel rocha or people like kevin brown. They're not asking the question was force necessary? As a result the cases come up to the da's office and for the most part we're not getting any indictments. They're saying it's based on something called criminal intent, but there's a very important federal statute that says that no officer has a right to take anybody's life unfairly. That was written after the civil war. And it only addresses intent. It does not address homicide or negligence, which is why i'm here today. When i examine the cases of sanders or kevin brown or daniel rocha or sophia king in 2002 i see a lot of negligence, but somehow this very efficient office, and the da's office is very efficient in most cases. On the one hand you're very efficient, but when it comes to police officers and what they're doing to black people in the city, you become almost incompetent. We have a problem with that. According to the f.b.i., if you're deficient in the force, why are we not mobilizing to address these kind of issues? When i look at the case preparation in the history of these cases, like sanders or brown, you see the same thing. But in 2003 this grand jury here actually indicted scott (indiscernible) for negligence. Yet somehow it was thrown out by the da's office. They had some kind of argument about it being a deficient document, which to me is very suspicious. My point is that this is not just a police issue, this is a city issue. And if the da's office can't do competent investigations that involve also criminal negligence, then what are we paying for? According to the 14th amendment, everybody in the city no matter of color, is entitled to due process. This issue goes on and on and yet it's almost like it's acceptable. What i'm saying is the issue is right here in the county. And i think we have a very deficient da's office because their investigations i think are flawed. Let's be honest about something. Nobody in the country is want to go indict police officers, but when you're taking black folks' lives at will, nobody is doing anything about it, it's your job to do fair, competent investigations. These issues are being (indiscernible). As a result you have a police department. It's not their job to solve the problem, it's your could job as the court and dat's office to do competent investigations. What i'm saying is when you look at your case preparation, why not examine criminal negligence? Why not examine this these cases like kevin brown and nathan sanders, was force really necessary? Many folks say it wasn't. So i think we're ignoring really in many cases the causes of these issues, so we address the causes here and let the officers know that under a uniform they cannot abuse people's rights. Unfortunately this is 2003. This is 2010 and the data is in this document. You had a huge dpairty here from 2000 to 2005. It still exists, but to a lesser extent. You have the same response. Officers shoot black people and brown people for the most part. Nothing happens. There's an uproar. The issue really is why is the law not being enforced efficiently as you say in other cases? I think it's because, number one, it's not being -- to include criminal negligence and i think it's time for this county to look at this office overall and demand number one competent investigations and also case preparations. And to make the community a part of this process. You talk about community involvement. I don't see it. So if everybody wants justice, where's the black community? Where's the black community? How do you adapt your process here to make sure things are done properly under the guides of the federal government because that's who is involved now n essence the county and the state in my opinion has beaskly not done its job. As a result we look to the federal government. So my question today is what are you going to do to help us address these issues when we come to your court, when it's very clear in many cases this is excessive court? This is not going to stop until you put your foot down and say we have a higher standard. They're saying their standards are much higher than yours in the state. It's a civil rights issue for me and i think it's overdue for us to address this issue by putting our foot down and talking about what we expect from the city, especially police officers. Is force necessary? If not, we need to address that. Otherwise i'll be here again in two or three years. It will continue. It will not be solved downtown, it will be solved right here in the da's office because you have authority to address this issue. It's a political issue and to me the discrepancies are so glaring it's not that hard to figure out. Increase your statutes, increase your investigation. Look at negligence if you can. And that way i guarantee you you're going to make sure folks, when they pull their weapons this tha in fact it's time to do so, you will see less negligence and more caution. That's what we want. In fact, that's what this report argues for. It argues for it to be very careful and make sure that when force is used, is it a last resort? It's beyond being objectionably reasonable and that's why i'm here today.
>> thank you, nelson, for those comments. And i guess what i'm trying to ensure and make sure that everyone understands the independence of elected officials' body, and i hear you. You know, nelson, i ran for city council a few times. And one of the things that -- the main planks in my platform when i ran for the city council was something called cultural sensitivity. I felt that was deemed necessary with the austin police department. And i ran on that platform. In fact, i was even -- received the a.p.d.'s endorsement when i ran once. Nelson, i was born in this city, i've lived on the east side all my life basically. And nelson, i recall cultural sensitivity include a.p.d. Officers that i knew just like when i saw you -- just an example, when i saw you at the martin luther king -- not the martin luther king, but the june teenth parade, i saw you there and i saw a lot of folks there that i knew from the hood, from the neighborhood. But i'm saying this. I remember the late captain louie white, they walked the streets. They was on what you call the beat. I remember him way before he became a captain. He's moved on. He's deceased, but i knew him and he knew the community. He understood the community. It was all under cultural sensitivity. I knew (indiscernible) hannah, another fine police officer who was in that same era. Freddie maxwell, perry winston. All these men that were a part of a vibrant community. And the point was that -- i'm making this point to say this: there is a cultural sensitivity, i feel, that's not embraced as it has been in the past. I remember warren jones. I don't know if you were here. Where are you from, nelson?
>> atlanta, georgia.
>> there was a fellow by the name of warren jones, and you ask the folks back in the day about warren jones. But he was a part of the community and he understood cultural sensitivity. When i ran for city council, nelson, i wanted to bring something that i saw that had escaped the community, no longer there, and that bothered me tremendously, is the cultural sensitivity that i feel is not there. I don't know how you can regain it. I had some ideas when i ran for city council i could keep it constant to mare sure that folks that are on the beat or on the streets or patrolling understand cultural sensitivity of others in this community. I still would like to see that take place. I'm not on the city council. I can't dictate to those folks. Just as i can't dictate to these elected officials what i would like for them to do. I don't have the authority to tell the sheriff, sheriff, i would like to see you not incarcerate anybody in your jail for a month. I can't -- even though the sheriff is doing a good job, i can't dictate to him and tell him that. Nor can i dictate to the da and tell them how i would like for them to operate their operation. I can say it, i can say all of these things to them, but i do not have the jurisdictional authority for them to accept what i say. They don't have to. They can listen to me and say well, go fly a kite, commissioner. There's no court member up here have that -- because of the independence of each elected official that is sitting here at this table and all throughout the county. Now, as i stated, though, i did not -- i was unsuccessful in becoming a city councilmember. I'm not sorry about it. No, i'm not hardly sorry about it, but i was not elected by the people of austin. But the main plank in my platform during that time was bring about a sensitivity that i think is void. When an officer knows the community that they are working in, they know the folks in that community. And if we did something to be sure they would correct us and even tell our parents about what we had done, that type of sensitivity is no longer here. I don't know why. I don't know why it can't be regained. I don't know. But the only thing i know is it's not there. And as an independent elected official, as i stated before, as tough as it is and as sensitive as it feels and as much as i do not embrace some of the things that have happened -- no, i did not embrace a lot of things that have happened to persons on the east side, but i believe that there is a lack of cultural -- cultural sensitivity that is not there anymore as it used to be. I don't know for the answers, i don't know.
>> if i may, judge and commissioners. The report has two points, an administrative letter. When they can provide more data than dat's office, you have a major problem. When folks in this down look for information from an independent report, not your office, i think that's a major issue. Secondly, beyond the issue of cultural sensitivity, the bottom line is we're all human beings. If folks break the law, i don't care if they're black, white, whatever, indict them. The office is very efficient, but when it comes to police officers in the city they give them a special status. We need to stop that. I think the federal government is on board, but the question is is the county on board? Are you willing to change your policies? Because i can tell you right now, the da's office has very little faith in the black community because of what has been done in the past. That's just the way it is. Once again, when a report can give you data that you don't get from this office, which has a larger budget by the way. The report cost $50,000. They're not serving the black community and that's a violation in my opinion of the 14th amendment. Thank you.
>> so does the district attorney have any responses to mr. Linder's points.
>> i will make a brief response, your honor. The district attorney's office takes these investigations very seriously. And all of the information that we can gather are presented to the grand juries. And the grand juries themselves can question witnesses. They can ask for additional evidence, additional witnesses. They're not bound by what we bring them. These are citizens of travis county who independently from the district attorney's office can ask for additional investigation, additional witnesses to be brought to the grand jury, and it's the grand jury that decides on indictment, not the district attorney's office.
>> the justice department letter of december 23rd, 2008 came about a year and a half ago. They make a lot of recommendations regarding procedures and processes and training and other things. So do we know what a.p.d.'s response has been?
>> nelson?
>> they would say they've made multiple changes that were required.
>> they would say that for the most part they put those recommendations into effect. But i would say that they haven't and i think the most recent incident in 2009 indicates that.
>> you're telling the agency to essentially police itself. While that's okay, the law has to be enforced. And these guys here, that's their job. Unless they enforce the law and say look, once again, more than is being objectionably reasonable, is this force against black force necessary? The evidence is it's not. If that's the case somebody is not doing their job. Beyond all the technical stuff it's a basic issue. Is the force in these cases really necessary? And i think if we examine the sanders case, the brown case, the brown case was atrocious. Shot in the back on the ground. Nobody was ever indicted. They didn't indict olson. He got another job as a security officer. My point is these guys are looking the other way because they're hiding behind the old an ta waited statute that says criminal intent. I'm saying break the wall down and prove criminal negligence and i guarantee you will get a response and the stuff will stop.
>> mr. Neal, would you like to respond to the standards -- the standard of review and the tieppedz of intent that are necessary? I want to preface this and frame with this i'm trying to listen through to the root of this issue because it is a terrible, terrible legacy that we are providing for our next generations as well. And we're all painfully aware of the demographic breakdowns in our jail being utterly, utterly representative of our demographic break down in the population as a whole. We are all of us in this room painfully aware of that. Also in arrest statistics. And we have the stlif sitting next to you and he's painfully aware of that as well. But i do want to make the distinction, while you are craving, as we all are, a systemic change to address that, i must concede and i'd like to hear the da speak on this, the da's -- the da and the county attorney and the sheriff's department are elected officials and organizations that are by design to look at case by case issues rather than systemic change. It's legislative bodies that look at systemic change, like the city council, like the texas legislature. We on this body can't effect a systemic change inside a.p.d. Frankly, we actually don't have the authority to effect a systemic change inside the da's office, but i want to be respectful of the dat's statutory manned date and it's a case by case mandate other than that -- could the da even declare an investigation of a.p.d.? Is that even -- is that even statutorily possible?
>> well, commissioner, i'm not sure about that and i will check on it and get back to you, but i would like to address mr. Linder's point about the negligence and the intentional crimes. All of our grand juries who hear officer-involved shootings are fully briefed on the law from the intentional crimes to the reckless state of minds to the negligent state of minds. They're presented the full range of all mental states, not just the intentional crimes.
>> but this recommendation is not negligence, it's criminal negligence.
>> it couldn't be civil negligence --
>> hold on. What's your response to that?
>> i'm sorry, i don't understand the question.
>> his recommendation said we use a criminal negligence standard. Not just negligence, which applies to auto accidents and -- criminal negligence.
>> i'm sorry. Yes, sir. There is criminal negligence in our statutes and that's what's explained to the grand juries.
>> you're saying we cover that in the briefing.
>> there's the offense of criminally negligent homicide, manslaughter, which requires a reckless intent, and then murder. And that's the full range of homicide crimes. And criminal negligence is one of those crimes, and that's always given to the grand jury too view. The federal statute quotes, we don't have authority to prosecute under that federal statute, we can only prosecute under state laws, but the state laws do include causing the death of an individual by criminal negligence. If it's civil negligence, of course that's not a criminal violence and a grand jury can't take that up.
>> who can prosecutor under the federal statute?
>> the federal prosecutors.
>> under the united states department of justice, if a violation they felt they -- they found that a violation has taken place, they have the authority to prosecute?
>> yes. There are civil rights violations. Clearly under texas law, if you criminally negligently cause the death of someone, that's a crime. And that is a law that is given to every grand jury that looks at any police officer shooting.
>> let me say something about that. Part of this conversation is very disingenuous. We know when it comes to civil rights violations we have invited the federal government to come in and participate. You have the same right as a local body. You chose not to do it. Ms. Eckhardt, we're not saying deal with a.p.d. They'll be dealt with. We're saying deal with your own court. You do fund this office. All i'm saying is it's not -- it doesn't take a miracle to do case preparation. What i'm telling you here is that you're prosecutors, they're not really addressing properly the idea of criminal negligence. I've talked to people. They're not addressing it. It's a problem. They're not addressing it in the case preparation f they make it an issue -- let's be honest about t we know that the dra leads the grand jury. I'm not doing to -- they don't lead it themselves. You have a major role to play in terms of case preparation. If you put it on the table as these folks did, these were former police officers who knew the law. As a result, guess what, they had an indictment and they actually fought with the da. They said look, this is what's happening. They argued against t they argued against this jury. So i'm saying you have an internal problem that we need to address. This jury was strong, they fought this. What happened is they said the indictment was technically insufficient. They said it. So what i'm saying is we're not being honest about this whole issue. Forget the federal government. I'm saying here in your county you can write indictment for criminal negligence. You can do it yourself. You can address civil rights. You don't have to go up to washington, d.c. Because the states don't respond. That's an historical issue. The states have never responded. You can if you want to.
>> (indiscernible).
>> would you like to know the definition of the mental state for criminal negligence? I've got it here. A person acts with criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or as a result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and agrieved that the failure to perceive is constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. That's from the penal code, one of the culpable pen men tall states that claire has listed all of them. The grand jury, when the case is presented, is presented with all of the possible -- all of the possible charges that might come of that specific incident.
>> but i specifically asked -- mr. Linder, are you suggesting that the commissioners court itself can indict an individual under criminal negligence?
>> of course not. I'm a pretty good guy in sisks. I'm saying in terms of moral persuasion, you can add your influence through conversation. Through these type of discussions and public bodies it's need the. I know you can't tell these guys what to do, but we're taxpayers and you do fund them. So you can begin to look at as an examiner, as commissioner davis has done, these shootings have taken place in his precinct. As a county you ought to be concerned. You don't invite to do it legally, but you can say look, these are very interesting. What about the case brown versus connor? Look at the behavior and compare what the standard is in brown versus connor about identifying yourself as a police officer and use the proper techniques. I think that's a case discussion. We're not having these kind of conversations anywhere in this city. As a result -- the case that was graham versus connor.
>> was it a federal case?
>> it's a federal standard, yes, ma'am. It talks about the legal standard governing use of force. These kind of cases ought to be case studies in these kind of offices where folks know -- where grand juries know what the standard s i'm saying our standard is much higher than texas. We have a federal standard and that's why the f.b.i. Is here. You can too if you want to. Tennessee versus garner. Use force if necessary. These are case studies nationally that people are citing because they want to. Your standard can also be raised. I'm saying what i see here in the city of austin, i don't see the interest in addressing this issue. We can address business here, developments, we can address birds, bees, environment, creeks, lakes. I'm saying the interest is not here on this issue. Until you have the interest in it, you're not going to resolve it.
>> do we have any other comments i guess from the da on -- in response to mr. Nelson linder's assertion of the latest findings? Is there any -- do you have any comments on those?
>> nothing further. I'll answer any other questions that you may have.
>> okay.
>> so i think this process is something that we needed to have, mr. Linder, ain't no doubt about it. And i think we may need to even be a continuum. I don't really know, but i do know this, that under what i'm hearing here today, that independent role of elected officials appears to still be paramount. I'm not saying that other things can't happen under that. Let me ask this question to you, nelson, if you don't mind. You don't mind me calling you nelson?
>> no, that's fine.
>> okay. Have -- this was sent out -- i know the new -- the new united states attorney general, the justice department, have this -- have this request been revisited or resent to the justice department under the new united states attorney general? In other words, the one that the judge -- the december 23rd documentation and the recommendation that have come down from the justice department back in 2008? I'm sorry, go ahead.
>> actually, a current team that was assigned by (indiscernible) is still working these cases. That team is still working in austin, texas. They're reviewing the sander shooting right now. So we have a permanent team here in place addressing these issues right now. I can tell you they've been quite responsive. Of course, the f.b.i. Don't talk much, but they've been quite responsive about these issues and they're working these issues ongoing. They've assured us that these are very serious issues and they're working right now on some sort of review for the sanders' case. So the team is already in place here and they're working it based on the previous request. It's a binding document.
>> the justice department seemed to be more concerned about actions by the austin police department. Have they taken a look at the grand jury deliberations and results?
>> not really. That issue has come from us. That's what we're doing now. We're saying basically that if local da's can't do these kind of investigations for political reasons or whatever, then why not consider special prosecutors or even bring in federal prosecutors? Around the country a lot of cities are looking at new ideas now to do these kind of investigations. If you can't get indictments that are fairly obvious for a black person being shot if it's a political issue locally, why not bring in special prosecutors? You can also have those conversations. If you don't think the da's office is doing a good job or because of politics they can't do the investigations, we can look for state level prosecutors to come in and do these investigations. That's an option on the table. I think the biggest problem here is not that. It's number one that even the idea of what you can do is not being fully discussed. The thing about grand juries leading the way is absolute nonsense. We know better than that. That's why we say if we talk about these federal statutes, they ought to be household names to these people in this business, that's what lacking is the education and the information to continue. It's the human will to do the right thing. It's not that complicated really. When folks -- they'll find a way to do the right thing. What i'm finding in this city and county is some of the folks are not going to do the right thing in terms of justice for black people. I don't mind saying that. If they wanted to, they would be a lot tougher on police officers when they do these kind of things and ini guarantee you i will get a response. That's a direct accusation.
>> have you asked for an audience with our district attorney?
>> actually, we've talked a few times before, yes. And we're going to continue to have these conversations, but once again, until there is political pressure from elected officials to push this conversation forward, it's primarily her and me. I think that's not enough because once again this needs to be a wide public discussion from everybody as requested by the grand jury here. It should be a deliberate process and comprehensive. The city of austin, county of travis, police monitor. They want everybody involved in this conversation. This is a citywide issue. One of our problems is here we made it too mayor roavment it's not just a police issue. It's not a police issue and that's part of our problem. It's a city issue and a county issue and everybody has a role to play in this issue, including the community. And that's where we are now. We're saying let's raised awareness, raise the level of awareness and i think vul to higher your standard, everybody will.
>> that's a good point you brought up. I'm sorry, judge.
>> my final question is do we know of a community or county where the grand jury is a lot more sensitive to issues like this?
>> i think we look at the whole country you've had sporadic results. In some cases you've had indictments. For the most part there hasn't been any real consistent because number one i think on the local level you're dealing with these state penal codes. The texas state penal code is really -- it's fairly conservative. If you're a police officer you need to learn the texas state penal code. Most of the states are very conservative. Because local da's will hide behind the state penal codes, they don't have the will to change the system. What we're saying is they don't really have to. Not necessarily. You don't have to ignore criminal negligence, but the problem is from a political standpoint, let's be honest about this, if you are an elected official, a lot of the unions that support police officers have a lot of money and they pay a lot of down payments on political candidates, so it's a very sensitive issue politically and most pokes for don't want to touch it in public offices, which is a whole different issue. In the community it's a different topic, unions have a lot of power and a lot of times they direct this conversation. But i really believe if the counties get involved more and have these kind of forums as commissioner davis has done today, i think that was a great move, by the way, (indiscernible). To what a higher standard really s once they see that they will demand more accountability.
>> and on that part, judge, i think -- thank you for the questions from everyone.
>> before we close, let mr. Reeferseed have his way.
>> i'm sorry. Okay.
>> are you good b. To close?
>> no, i was just going to follow up on what mr. Linder said. Those were some good points, mr. Linder, you brought up, especially the accountability, those are very critical points. And let me ask this question. And will you accept this for awareness, accountability, responsibility, all these other kind of things. We're bring it to the public, the viewing residents of travis county lk able to maybe tune in to this. Let me ask this question of you, mr. Linder. Have this same type of format and arrangement been brought before the austin city council?
>> i sent the city council a letter about a month and a half ago. I think i got one response. The city council on this issue has been unresponsive and down right incompetent. When an elected body doesn't read a report from an independent organization and claim they don't know about it, i think they're incompetent. I think they're not interested. And for the most part i think they've been a major problem. I think they're an embarrassment to this city, personally.
>> with that, i guess mr. Reeferseed, let mihm make comments. Thank you.
>> do you still have comments?
>> yes, i'm sorry. I want to thank you, sir. I totally agree with you about the city. And about these items i -- the duties of public officials are going to be -- a and b are going to be affected by this revolution that's going on. They're about to have an election in california that's going to bring an end to this idiotic war against pot smokers. And once we do that, once that happens in california, it's going to happen here. And so about reviewing an historical funding for public officials and criminal justice, we have to face reality. The drug world gives a lot of -- a whole lot of money into these communities and we have to be ready to pay them. We need to pay them more. We need to pay our police officers and law enforcement people just more to make up for this huge change that's going to happen once we decriminalize marijuana. There will be a whole lot of money we have to make up for because there's a bunch of criminal money going into justice right now. But i wanted to thank our -- we're very lucky here with a great sheriff and all the rest. Thanks again.
>> thank you. Commissioner davis?
>> yes, judge. I wanted to lead off -- because there's some aspects of i think folks need to be aware since this is a type of awareness and opening up process as far as what we do here, our accountability and things like that. There is also a funding nexus in this process of elected officials and it's a process that we go through. So at this time if i could get the pbo person, and again i would like to thank all the participants that were on item a. Thank you for your input into this process. So if we could have pbo come and give us a brief overview of the role that the commissioners court plays as far as some of the funding requests that have come in from our elected officials throughout the county in the criminal justice side. So go ahead and give us a brief overview.
>> thank you. You have in your backup some historical budget appropriations that have been set by department, primarily for elected officials. There are a few appointed firbled that are directly related to the criminal justice area. And it just gives you again some historical background in terms of annual appropriations for the -- for those offices. Each year the budget process takes place through the months primarily of march through september. In counties where the commissioners court have appointed budget officers, the budget officers' role and responsibility is to develop the proposed appropriations budget. The auditor's role is to set and certify revenue throughout that process and the final revenue estimate for the upcoming fiscal year. The commissioners court in travis county annually approves the budget manual and the budget calendar at the beginning of the budget process, and that sets forth the guidelines that your planning and budget office goes through in terms of the budget development and the recommended appropriations budget. During the course -- and i won't go into a great deal of detail on the calendar, i'll just hit the highlights, but during the course of the month as i mentioned of march through september, the commissioners court takes up issues of elected officials' salaries, they go through the appropriate and required postings, notifications to each of the elected officials, and if necessary the grieving process that the elected officials have available to them. Throughout the course of the budget development process, your planning and budget office meets with each of the departments, including elected officials and those that report to the commissioners court. And we worked through with those elected officials their budget requests and that is a part of the development process that you get in july when the preliminary budget is filed. From the point of moving forward from july through the adoption process, you hold public hearings, you hold budget hearings, and give each elected official and appointed official the opportunity to address the court on their budget requests, and in preparation for the final budget markup process which takes place in september prior to the budget adoption. During the budget adoption process, the proposed tax rate is posted in the newspaper and we break that down by the maintenance and operation as well as the debt service tax rates. And you have public hearings on those tax rates. And the public has an opportunity to address the court as well. And then finally the budget is adopted in the september time frame and the appropriations budget takes place on october 1 of each year. So that is kind of a snapshot overview of the budget process and the involvement that your planning and budget office has in terms of working with the elected official and the development, the elected officials' opportunity to address the commissioners court and the citizens' opportunity to address the commissioners court as it relates to the public hearing process. We'll be happy to answer any questions you might have.
>> anybody have any questions on this item? All right. Well, thank you very much for laying that out. And i really appreciate that. We just wanted the public to understand that our role at the commissioners court is also funding the operation and maintenance budget for the elected officials to carry out their duties that has been expressed here today. So i want to appreciate that aspect. And if anybody would like to get a copy of this, how would they be able to get a copy of how -- as far as what the county does as far as funding, not only an elected official, but the budget overall, how would they be able to get the information?
>> in terms of the budget calendar and the budget manual, those are available i believe both online and in hard copy. We'll be happy to -- happy to have those available if someone doesn't have computer access. And then if there's any questions we'll be happy to walk them through the process and help them out as well.
>> okay. I appreciate that very much.
>> yes, sir.
>> and judge, if there's no other questions, we can -- if any other questions from the audience, i don't know, but if not i would like to go to c if possible.
>> please do.
>> thank you. In item c, judge, what this is is a d.v.d., and hopefully if the court -- there's also a memorandum of understanding agreement. Have a seat, thank you. In the backup that have allowed us to deal with the texas association of counties and using channel 17 television to show some of the aspects or some of the duties and responsibilities of our elected officials. And of course, if we possibly can, at this time if media would just show a couple of examples of what's on this particular d.v.d., i would really entertain that at this time. So if media is listening, if you could maybe show us a couple of examples of some of the elected officials there on the d.v.d., we would appreciate that at this time. Can you go ahead and roll that, media?
>> all rise. The 277nd district court is in session.
>> please be seated.
>> for many people this is the image the word courthouse brings to mind. A trial, however, is often the last step in our justice system. There are a number of events that must plaque tase first, frequently beginning with the county sheriff.
>> the main responsibilities of the county sheriff is to provide protection and safety for the residents of the county, primarily in the rural areas, but also assisting within the municipalities. And to be responsible for managing and administering the jail. And in addition to that is also to provide security at the local courthouse. Without public safety nothing else matters.
>> once an individual is arrested and brought before a judge for a plea. For some crimes a judge may sentence the individual to serve up to two years in the county jail. Representing the people of texas in a criminal trial is the county attorney for miss demeanor crimes and the district attorney in felony cases.
>> this includes working with local law enforcement, in the investigation and presentation of cases before the criminal courts. This would include working with defense counsel of the accused and the presentation of a case before a judge and/or jury to achieve a justice result. What we're really striving for here is justice.
>> they did that on purpose.
>> [ laughter ]
>> thank you.
>> judge, it would really be -- i guess a big step in educating the residents of travis county that tune in to channel 17 television, if it's at all possible, that this particular d.v.d. Can be aired on channel 17 whenever deemed necessary as an educational tool to actually further decide the role of not only this commissioners court, but even the position of county judge and just many of you here at the county attorney, but so many others, county attorney and others, that is really disclosed in this particular d.v.d. That was the property of the texas association of counties. And of course, i think commissioner eckhardt even had a great suggestion and maybe you need to put that out, and that suggestion is to allow the role of the commissioners and also the county judge to be placed on our individual web pages with the county so it maybe can further -- the public will get a better understanding of what we do here in the role that we are statutorily required to play. So that was the intent of item c was to do just that and have staff to carry out this -- this wish if the court deemed it necessary.
>> so on that d.v.d., i saw a couple of offices covered, so how many are covered.
>> it's 17 minutes of t i think it's the clerk and --
>> is there a motion?
>> i move --
>> i think it can describe more fully what the rest of the d.v.d. Includes?
>> morning, judge, commissioners. Steven brotherburg, director of records management and communication resources. This video is one that tac produced and that we helped produce as well. You may remember a year ago we went into an agreement with tac that some of our media producers might be involved off-time of travis county to help tac produce a series of videos that would help describe the roles of elected and appointed officials within county government. And i'm happy to say that these videos have been in regular rotation on tctv and been viewed -- they've been viewed all over the state at this point. And in fact, we had a request from tac that these could be used by texas a&m on their website to educate all of the people in texas and various communities.
>> would perhaps the most appropriate place as far as where this video might live on the website is for it to live on the commissioners court page before it splits out to the various commissioners courts -- to the various commissioners and the judge, there is one page that's just commissioners court with all of our general information, and perhaps a link to this video would be helpful on that page.
>> i think that would be a fine idea. We would be glad to talk to its about that.
>> thank you.
>> so where exactly -- what exactly do we need in a motion?
>> i haven't heard it yet.
>> i move approval.
>> of what? Of putting these on channel 17? I thought they were already there?
>> i believe they're already on channel 17.
>> they are, commissioner.
>> i guess my point, they aren't contiguous. They aren't right behind each other, are they? It's one here, one there, one there. Let's say a person wants to know what the role of county government is, and this elected official. Is there any way that they could be -- just on that d.v.d. Itself, con continuous, right behind each other?
>> yes, sir, we could do that.
>> that's what i'm suggesting is that. That was the intent of it, they could capture all of it at one time within that. In other words, they don't have to wait to see this one at this time and then the sheriff at another time and this other person someplace later on in the schedule. They want to know about elected officials, here it is right here in one shot.
>> is there a second?
>> second.
>> discussion?
>> judge, one other item that need to be brought up. On the memorandum agreement with tac, texas association of counties, they have commissioner daugherty's signature on it, but i understand from tinnily the reason why it was done is because when we came to that agreement he was the commissioner of record.
>> actually, there are a whole different of number offices here that are not filled by the same people now. So my question is that -- is that historical?
>> that's a very good point. That's a very good point. Would you consider it friendly, commissioner, for us to take a week to review the content of the tac d.v.d. And have a further discussion with its about -- and with channel 17 with how it -- how it should be -- whether or not and how it should be updated before we actually broadcast this either through the website or additionally through channel 17?
>> that would be fine. So if we would like to do that, that would be just fine.
>> so somebody plans to submit new language for c?
>> i'm sorry, what did you say?
>> does somebody plan to submit new language for c? I heard you mention two or three things that are not covered by c. If we bring it back, we may as well bring the others back.
>> would that be all right with you?
>> that would be fine. Just delay c until we get all the appropriate information to go forth with all the additional input here.
>> new language by noon tomorrow. We'll get it done.
>> we'll have it on next week.
The Closed Caption log for this Commissioners Court agenda item is provided by Travis County Internet Services. Since this file is derived from the Closed Captions created during live cablecasts, there are occasional spelling and grammatical errors. This Closed Caption log is not an official record the Commissioners Court Meeting and cannot be relied on for official purposes. For official records please contact the County Clerk at (512) 854-4722.
Last Modified:
Tuesday, June 22, 2010 1:35 PM
