The House's decision to postpone consideration of HB 8 yesterday afternoon is the result of several factors that converged.
First, the leadership team in the House put HB 8 on a very fast track. Some observers believe that has more to do with House-Senate politics than the topic of the bill. During the general election campaign, Lt. Gov. David Dewhurst announced his support for a Jessica's Law with a death penalty component, and he said it would be a priority of his in the Texas Senate. Some think it may even serve as a foundation for a possible 2010 governor's campaign. Yes, even though the 2006 general election is just behind us, some Republicans are looking seriously at the next race.
Lt. Gov. Dewhurst and House Speaker Tom Craddick have never had a good working relationship, and sometimes the sniping has spilled out into the open on a variety of issues. Some believe the Speaker wanted a House version of Dewhurst's priority legislation passed first.
Another indication of the express track of the legislation was its fiscal note. The Legislative Budget Board, which prepares fiscal notes for all legislation getting a hearing, judged the bill to have, "No significant fiscal implication to the state for the first five years following passage of the bill.," and "No significant fiscal implication to units of local government is anticipated."
Florida passed similar legislation in 2005 (the first Jessica's Law to pass), and HB 1877's analysis showed a significant cost.
The department estimates the cost for FY 2005-06 to be $2.5 million. The cost increases to $6.9 million in the second year and to $13.4 million in the third year.
Some questioned why the LBB had come up with such a different answer in a state with a larger population and the most active death row in America.
Two other factors contributed to the members' unease at seeing a bum's rush on HB 8.
The House Criminal Jurisprudence Committee considered HB 8 at its meeting February 20. You can watch the hearing at the link here. (Consideration of HB 8 began at approximately 7:40 p.m., two hours and 12 minutes after the meeting began to help you fast forward through the video.) There was considerable testimony about the highly questionable constitutionality of a non-homicide capital punishment law. (More here in this Cornell Law Review note.) Committee members clearly expressed concerns and met with witnesses following the hearing.
Committee Chair Aaron Pena, a third-term member serving his first year as Committee Chair, kept all six bills pending in Committee and announced that would be his general custom. Many observers were quite surprised when the Chair called a desk meeting upon adjournment of the House the following afternoon to vote HB 8 favorably out of committee. That sent the bill to Calendars Committee for scheduling floor consideration.
Some members yesterday clearly felt that the committee process had not worked properly, perhaps due to a hasty judgment by the chair, or a bill sponsor reluctant to listen to and address concerns about unintended consequences of the proposal.
For instance, Rep. Riddle stated that "...attorneys we have consulted with say they believe it is constitutionally sound, they do not believe the U.S. Supreme Court would, under any circumstance, overrule the death penalty part of it." She rated "...the remote chance - one in a million" that the Court would rule the death penalty provision unconstitutional.
There was no testimony to that effect in the committee, however. UT Law prof Rob Owen called the death penalty provision highly questionable under several factors. Even prosecutors called it an open question, and Tarrant County Assistant District Attorney David Montague indicated that his office would likely not seek death in a case until the issue was resolved by the U.S. Supreme Court.
Later today, I'll sort through coverage of yesterday's oral argument in the Louisiana Supreme Court of the direct appeal of Patrick Kennedy, the only person on death row in America for a non-homicide sexual assualt.
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