Special thanks to John Castiglione, who argued the appeal for TCRP, assisted by Tyler Nims and Kelli Sussman, of Latham & Watkins LLP in New York and to Todd Batson and Nick Jackson who did terrific work on the case at trial level during their time at TCRP as deferred associates from New York law firms.

The U.S. Fifth Circuit Court of Appeals today reversed a local federal court’s dismissal of a lawsuit against the City of San Antonio and police detective Tony Arcuri brought by San Antonio residents Lindsey Bishop and Carolyn Clark. SAPD officers, led by Arcuri, raided the couple’s Leon Valley home, allegedly searching for methamphetamine after receiving a false tip from a confidential informant.

On April 28, 2009, SAPD officers used a battering ram to knock down Ms. Bishop and Ms. Clark’s front door. Though the officers quickly realized their informant had provided bogus information and their search warrant was bad, they continued to terrorize and harass the women for nearly two hours. The Fifth Circuit held that the officers’ failure to knock and announce their presence before entering the women’s home may have violated their Fourth Amendment rights to be free from illegal search and seizure and sent the case back for jury trial.

“This is a very important decision and calls into question the validity of SAPD’s general no-knock policy,” said Jim Harrington, TCRP Director, who is representing Ms. Bishop and Ms. Clark. “The Fifth Circuit rightly condemned the police practice of entering homes without knocking when officers have no reason to believe that there may be a threat to their safety or a risk that evidence will be destroyed. What’s more, when the officers realized the warrant was based on bogus information, they should have left and not terrorized the women.

“Police Chief William McManus testified that SAPD had a general ‘no knock’ policy that the police use all the time, and the appellate court condemned this blanket practice. We look forward to presenting this case to a jury and ending this wholesale violation of the Fourth Amendment rights of San Antonio citizens. This ‘no knock’ policy is dangerous for both occupants of houses and for the police. The U.S. Supreme Court has severely limited this practice, as did the Fifth Circuit”

The Texas Civil Rights Project is a nonprofit foundation that promotes racial, social, and economic justice in Texas through education and litigation.

The South Texas Civil Rights Project (STCRP) is calling for a full and open investigation into the Jan. 4, 2012 deadly shooting by police of a Brownville middle school student. Fifteen-year-old Jaime Gonzalez was shot by Brownsville police officers while allegedly holding a pellet gun at Cummings Middle School. Police claimed that the boy had plenty of time to lower the pellet gun before being fatally shot. STCRP is demanding today that Brownsville Police Department institutes a policy and training program on de-escalation of violence, especially in schools.

STCRP Director Corinna Spencer-Scheurich stated publicly today that Brownsville’s interim police chief, Orlando Rodriguez’s assurances that the deadly force was excusable are not enough to convince the residents of South Texas that the police acted appropriately.

“Within 30 days, Jaime’s family, as well as the students, parents and residents of Brownsville, deserve a full and open investigation into Jaime’s death,” said Spencer-Scheurich.

“Deadly use of force against our children by police officers cannot be excused simply by a claim that Jaime was holding what looked like a dangerous weapon. We need greater accountability from our police forces when they have taken a life, especially one of a child and in a school setting. In the future, de-escalation should be a priority when police respond to potential school violence.

“This is a terrible situation for everyone involved. This tragedy demands that the Brownsville P.D. take steps to assure this never happens again.”

Specifically, STCRP demanded the following response from the Brownsville Police Department:
a. Full and open investigation into the shooting within 30 days;
b. The hiring of an expert in the policy and training of police departments and schools on the use of deadly force;
c. Institution of de-escalation policy and training; and
d. Participation by parents from the Brownsville Independent School District in the investigation and institution of responsive policies and trainings.

The Sunset Advisory Commission is a state agency which periodically evaluates other agencies to identify and eliminate waste, duplication, and inefficiency. Starting January 1, 2012, the Commission will evaluate the Texas Department of Criminal Justice and the Texas Board of Pardons and Paroles. Harrington urged the Commission to evaluate how increased use of medical parole could avert costly medical bills and lawsuits by paroling terminally-ill prisoners.

Harrington warned Texas prison health care was closely monitored by federal courts from 1982 to 2001. A class action lawsuit brought because of the prison system’s deficient healthcare could return TDCJ to federal supervision. Harrington noted that California, which faced similar conditions of overcrowding and underfunding, was recently ordered by the U.S. Supreme Court to release 40,000 inmates and spend billions on costly improvements.

He advised the Commission the easiest way to protect Texas from future lawsuits is for the parole board to make greater use of medical parole to release elderly and terminally ill inmates. Prisoners who qualify for medical parole must have terminal illnesses or require long-term nursing care, such as those in a persistent vegetative state, those with total mobility impairment, or those with an organic brain syndrome. They must also have served enough of their sentence to qualify for parole.

“The only reason medical parole has not done the job [of lowering the cost of prison health care] is because the parole board has denied medical parole to more than 90% of [eligible inmates],” writes Harrington. “[If] the state released its backlog of terminally ill and or infirm inmates, it could save up to $76 million per biennium.” According to the Legislative Budget Board, the medical care for just 17 inmates who are eligible for medical parole costs the state $200,000 annually.

Sunset Advisory Commission
Austin, TX 78701

Dear Members of the Sunset Advisory Commission
and Rep. Dennis Bonnen, Chair:

I hope you are well. In light of your mandate to review the Texas Department of Criminal
Justice (TDCJ), the Board of Pardons and Paroles (”Parole Board”), and the Correctional
Managed Health Care Committee, I am writing to express my deep concern about the abysmal
condition of health care within the Texas prison system.

The Eighth Amendment of the U.S. Constitution requires prisons to provide adequate medical
care to prisoners.(1) Because of budget pressure, Texas is in danger of failing to provide adequate care even though courts have made it clear that lack of funds is no defense for failing to do so.(2) With this in mind, the state should carefully consider clearing its backlog of prisoners eligible for Medically Recommended Intensive Supervision (“medical parole”), which could save up to $76 million in costs per biennium.(3)

The Texas Prison Crisis

Before the 82nd Texas Legislative Session in 2011, Texas prison health care teetered on the edge of unconstitutionality.(4) This was a direct consequence of inadequate funding. Then, to make matters worse, during the 82nd session the Legislature cut the annual prison health care budget by $75 million.(5)

As a result, the University of Texas Medical Branch’s expenses for prison medical care now
exceed its budget by about $2 million a month.(6) UTMB will have to lay off as many as 250
employees because of the funding cuts (7) on top of the 363 employees it was forced to cut in 2010 to compensate for projected losses (8) and the 3,000 UTMB employees laid off after Hurricane Ike.(9) Health care in the Texas prison system has, or soon will, become unconstitutional.

Texas’ prisons were forced into federal supervision once in 1982 in Ruiz v. Estelle,10 due in part to inadequate health care. Its health care system was released from federal supervision only in 2001.(11) Similar class actions will be almost inevitable if Texas does not act quickly to mend its ways. If the state does not approach this problem thoughtfully, it virtually invites expensive litigation and another lengthy period of federal supervision. The U.S. Department of Justice could also intervene, as it has done recently in the Harris and Dallas County Jails (12) and historically as plaintiff-intervener in Ruiz v. Estelle.

The Origin of the Crisis

The healthcare situation in TDCJ is quickly deteriorating because of factors beyond its control.
TDCJ neither controls the number of prisoners it receives, the rate at which they are released, the length of their incarcerations, nor the funding it receives to house them.

From 1972 to 2011, Texas’ prison population jumped 995%,(13) even though the state’s total
population increased just 124%.(14) This spike was not caused by an increase in the crime rate. In fact, despite the “Great Recession,” the crime rate is now relatively low.(15) Instead, the prison population jump was caused by the creation of new felonies, long prison sentences for nonviolent offenders, and the errant practices of the Parole Board.(16) In the last decade alone, the Legislature has created about 40 new felonies per legislative session, (17) bringing the state total to nearly 2,500.(18) At the same time, the Parole Board grants parole at just a fraction of the frequency recommended by its own guidelines.(19) As a result, the prison population has swelled dramatically in the past 20 years.

Nor does TDCJ control its health care budget — the Legislature does. TDCJ has reported for years about its efforts to make health care more efficient and less expensive, but there is no more room for innovation. The prison health care budget was already cut to the bone before the new round of cuts in 2011. Texas is now dangerously close to suffering the fate of California, which was recently ordered by the U.S. Supreme Court to reduce its prison population by 40,000 and spend billions of dollars to make prison health care constitutional.(20)

Many states faced with rising health care costs have turned to private health care in prisons to
help balance budgets, but private health care has not saved money.(21) Indeed, during the last
legislative session in Texas, private sector health care providers made it clear they would not be able to provide services to TDCJ if the health care budget was cut further.(22) Which it was.

Moreover, private providers are notorious for providing inadequate health care. Prison death
investigators routinely discover the same failings: medical staff trimmed to the bone, doctors
under-qualified or out of reach, nurses doing tasks beyond their training and legal abilities,
prescription drugs withheld, patient records unread, and employee misconduct unpunished. In fact, one nurse working for a private provider joked “[w]e save money because we skip the ambulance and bring them straight to the morgue.”(23) Relying on private health care providers is not the answer to the Texas prison crisis.

The Solution

There are only three potential ways to avert Texas’ prison crisis:

1. Release Texas’ medically most expensive, and criminally least dangerous, inmates.

2. Appropriate dramatically more money for inmate health care in the next legislative
session.

3. Reduce the prison population (24) — either through increased use of parole generally,
reducing prison sentences for nonviolent crimes, or both.

The first option would be the easiest, most politically viable option, and it would go a very long way to solving the crisis. The second two alternatives are less likely to carry support in the Legislature and would require more nuanced and difficult changes to the landscape of Texas’ criminal justice system.

Texas inmates aged 55 and older make up about 8 percent of the state’s prison population, but
account for more than 30 percent of the system’s hospital costs.(25) If released, much of the cost for their care would shift to the federal government, because they would be eligible for Medicaid, Medicare, Social Security Disability Insurance, etc. Likewise, parole is generally much less expensive than incarceration.(26)

The Legislative Budget Board estimates releasing just 17 inmates on medical parole would save the state $200,000 in medical costs.(27) Taking into account the cost of security, if the state released its backlog of terminally ill or infirm inmates, it could save up to $76 million per biennium.(28)

There is very little social cost to medical parole. Older inmates’ rate of recidivism is extremely low.(29) Further, most of the work required to create the system has already been done: medical parole is already authorized by statute.(30) Prisoners who qualify for medical parole are those with terminal illnesses or requiring life-long nursing case,(31) such as those in a persistent vegetative state, those with total mobility impairment, or those with an organic brain syndrome (32)

The only reason medical parole has not done the job is because the parole board has denied medical parole to more than 90% of the inmates UTMB identifies as eligible — in 2010, just 102 of 1367. (33) As a result, the Legislature considered a bill in the last session which would have made medical parole mandatory. Unfortunately, it died because it failed to meet the session’s final calendar deadline.(34)

The single smartest thing Texas could do to help balance its budget and avert costly litigation would be to pass similar legislation to increase the frequency with which qualifying inmates are released on medical parole.

I hope you will carefully consider these matters during Sunset Review.

Sincerely,
James C. Harrington,
Director
Texas Civil Rights Project

Notes

1. See, e.g. Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir. 1982).

2. Id. at 1146.

3. Diane Jennings, Texas unlikely to use more medical parole for inmates despite budget pressures, Dallas Morning News (March 25, 2011) available here.

4. Texas Civil Rights Project, “A Thin Line” The Texas Prison Health care Crisis and the Secret Death Penalty (2011), available here

5. Harvey Rice, UTMB set to halt prison health care, Houston Chronicle (October 14, 2011), available here

6. Mike Ward, Prison officials say UTMB funding running $2 million short each month, Austin American Statesman (October 12, 2011), available here.

7. Harvey Rice, UTMB to lay off 250 employees, cites new Texas budget, Houston Chronicle (July 20, 2011), available here.

8. Rice, supra note 5.

9. Harvey Rice, Union leaders: UTMB’s 3,000 layoffs unnecessary, Houston Chronicle (November 17, 2008), available here.

10. “A Thin Line,” supra note 4 at p. 7.

11. Carl Reynolds, The final chapters of Ruiz v. Estelle (June 1, 2002).

12. Scott Medlock, U.S. Department of Justice focuses on Texas prisons and jails (June 22, 2009).

13. It was 15,709 in 1972. Paul M. Lucko, “Prison System,”Handbook of Texas Online, available here. It was 156,382 in September 2011. Legislative Budget Board, Current Correctional Population Indicators, available here.

14. Texas’ population was 11,196,730 in 1970 and 25,145,561 in 2010. United States and Texas Populations, 1850-2010, Texas State Library and Archives Commission, available here.

15. The crime rate in Texas dropped about 18% from 2001 to 2010. Crime in Texas, Texas Department of Public Safety, Chapter 2, p.12 (2010), available here.

16. “A Thin Line,” supra note 4 at pp. 23-27.

17. Scott Henson, Counting crimes: State and federal (July 26, 2011).

18. Texas Board of Pardons and Paroles, Revised Parole Guidelines (March 21, 2011).

19. “A Thin Line,” supra note 4 at pp. 26-27.

20. Brown v. Plata, 131 S.Ct. 1910 (2011). See also “A Thin Line,” supra note 4 at p. 1.

21. David Shapiro, “Banking on Bondage: Private Prisons and Mass Incarceration,” pp.19-20, American Civil Liberties Union (November 2011), available here.

22. Mike Ward, Perry aides explore privatizing prisoner health care, Austin American Statesman (March 29, 2011) available here.

23. Paul von Zielbauer, As Health Care in Jails Goes Private, 10 Days Can Be a Death Sentence, New York Times (February 27, 2005), available here.

24. “[House Corrections Committee Chairman Jerry Madden, R-Richardson] said one option might be to look at other alternatives to downsize Texas’ prison population, the second largest of any state in the country.” Ward, supra 6.

Over 37,000 prisoners in TDCJ, or almost 25 percent of the prison population, are serving sentences for non-violent drug or alcohol-related offenses. See “A Thin Line” supra 1 at p. 24.

At least 65 percent of TDCJ prisoners are eligible for release on parole or mandatory supervision. “A Thin Line” supra 1 at p. 26.

25. Renée C. Lee, Elderly inmates are putting a burden on Texas taxpayers, Houston Chronicle (May 16, 2011) available here.

26 Texas Criminal Justice Coalition, Criminal Justice Solutions: A Policy Guide, p. 3 (2007), available here (concluding the cost of incarcerating an individual is $44.01 per day while the cost of maintaining him or her on probation is just $2.13 per day)

27. Legislative Budget Board, Texas State Government Effectiveness and Efficiency, pp. 350-53 (January 2010), available here.

28. Jennings, supra note 3.

29. Emily Ramshaw, Few Texas Inmates Get Released on Medical Parole, Texas Tribune (June 3, 2011), available here.

Only 17.6% of prisoners 45 years of age and older who were released in 2007 were reincarcerated within 3 years, compared to almost a third of prisoners under 25. Legislative Budget Board, Statewide Criminal Justice Recidivism and Revocation Rates, p. 34 (January 2011) available here.

30. Tex. Gov. Code 508.146

31. Id.

32. Texas Board of Pardons and Paroles, Board Policy 145.204 (effective July 24, 2008), available here

33. Texas Correctional Office on Offenders with medical or Mental Impairments, FY10 Annual Report, available here.

34. Lee, supra note 25.

TCRP’s Rio Grande Valley office, the South Texas Civil Rights Project (STCRP), has filed a federal lawsuit in U.S. District Court in McAllen on behalf of a U.S. citizen, who could never get a Social Security number in McAllen because the Social Security Administration’s deliberate effort to delay issuance of numbers to older applicants or those born by mid-wives.

Carlos Muñoz, born in Pharr, Texas, filed an application and produced numerous documents, including a Texas birth certificate, but only ever got the runaround from the Social Security Administration (SSA). Time after time, month after month, SSA told him to come back with a never-ending and always different set of documents. He has produced more than twenty official documents, but SSA has refused to issue a Social Security number for more than a year and a half or give him an administrative hearing. As a result, he cannot get any gainful employment to support his wife and minor son.

“Every time I went they told me I needed something different. It was like they were making up the rules on the spot,” said Mr. Muñoz. “How can I support my family without a Social Security card?”

“Some government agencies believe that the Constitution does not apply to them,” said Elliott Tucker, attorney of the South Texas Civil Rights Project, who is handling the case: “The Due Process Clause protects people like Mr. Muñoz from the government randomly refusing him something as important as a Social Security card. It also demands that the government give Mr. Muñoz a way to appeal a negative decision of the agency. Mr. Muñoz did not get any of those protections, only ongoing delays and requests for more and more and more proof.”

STCRP has filed a lawsuit that demands due process of law in the treatment of Mr. Muñoz and all applicants. The lawsuit also includes claims for illegal and irregular practices, specifically that the Social Security Administration ignored its own guidelines in evaluating various documents that Mr. Muñoz produced. The suit demands that SSN issue the number immediately or hold an administrative hearing.

Tucker encourages Social Security number applicants with similar problems to contact him.

Good morning, Your Honor, and may it please the Court.

This case raises a number of propositions—truisms, almost—that are just about as close to absolutes as you can get in our business.

First, political protest lies at the very heart of the First Amendment.

Second, public forums are places where speech and debate are meant to be most free from government restriction.

Third, because of these, political protest in a public forum gets the highest degree of First Amendment protection.

Fourth, there is virtually no more clearly traditional public forum than the public square that faces government buildings like City Hall.

Moreover, Austin has specifically designed, designated, and trumpeted its City Hall plaza as the premier public forum for political speech in Austin.

Fifth, when a speaker’s message criticizes the government, the suspicion—and danger—that the government will use restriction to suppress that speech is at its greatest.

And finally, prior restraints against speech, particularly political speech, get the most exacting degree of First Amendment scrutiny—indeed, it’s fair to say “hostility.”

Each of these points would on their own raise a red flag about the validity of a government’s action to restrict speech.

This case combines all those First Amendment “red flags,” meaning that the City’s actions—banning political protesters from speaking in the public square—invite and deserve the closest and most demanding scrutiny.

And under that examination, it is clear that the steps the City has taken to deal with Occupy Austin simply do not hold up.

Occupy Austin is a political protest directed against the government.

The protesters’ message is one of opposition to corporate influence over our democratic institutions of government, at the local level as well as the national.

They have been speaking that message at City Hall plaza.

They selected City Hall plaza specifically because it is the home of Austin’s government and because it is City’s the premier forum for public debate.

In response, the City has adopted a policy of discretionarily banning speakers from returning and speaking at City Hall for being “disruptive.”

That policy was drafted as a part of the City’s response to the Occupy Austin protests, as a tool to manage protesters there.

People who have been banned have included persons engaged in protest at the time. That includes our clients. In fact, it includes most persons who have gotten bans.

Grounds the City have found sufficiently disruptive have included:

-being a person with a warrant for a traffic ticket
-having a dog off leash
-“suspicious activity”
-using profanity, improper language, or offensive language

It is particularly telling that in multiple instances, even as late as last week, the City has justified banning Occupy protesters based solely and exclusively on the content of their profane or offensive speech.

The bans given by the City extend to any sort of future speech or expression, any assembly, any petitioning activity at City Hall, for the entire length of the ban.

There is no exception from being banned for a person engaged in speech or who wishes to engage in future speech.

And there is no attempt whatsoever to tailor the ban only to future disruptive speech—if you cause “some disruption” on City property, one time, by speaking, your government bans you for up to a month from any kind of future speech at all—even silently holding a sign protesting your ban.

At City Hall, the consequences of a ban are even more egregious because of the inability to return for purposes unrelated to protesting—ban recipients can’t go to City Council meetings, can’t meet with their elected Council representatives, can’t attend any of the many public governmental functions held there, and, in some instances, can’t even participate in the civic positions in which the City itself has asked them to serve.

Moreover, there is no hearing before the ban goes into effect, no opportunity to be heard or to challenge the alleged facts justifying a ban or any other aspect of it.

Instead, the City claims the right to impose a ban and then force people to go through an administrative hearing weeks afterward to prove why their right to speak and protest should be reinstated—a hearing at which the protester bears the burden and at which he likely never has had an opportunity to see the evidence against him.

Bear in mind this mostly includes people who were banned for completely nonviolent activity that was directly connected to their participation in a political protest.
Accordingly, there no good reason that, even if confronted with a nominally disruptive speaker, the City could not provide notice and a hearing before it decides whether to restrict their right to speech.

The consistent pattern that has emerged from administrative reviews of these bans—that the bans are inevitably shortened—shows that even the City quietly acknowledges that bans are being issued in error.

And then even when a ban is ended, the City makes you present your “papers” before it allows you to return to protesting. No papers, no speech. That is what they did to plaintiff Sleeman.

This case has all the hallmarks of an impermissible attempt to crack down on speech.
A big protest sprung up.

The government grew tired of having groups of protesters on its doorstep.

So the government arrested a bunch of protestors.

But then it also banned them for an entire year.

Then, after the fact, it issued a written policy.

That policy had been written with this protest in mind.

Internal communications flew around the City—we can’t get them because they’re privileged—but the mere names of them and timing of them show that this policy was drafted with these protests in mind.

The policy has been applied in most instances to protestors.

The policy allows bans on a highly discretionary basis, and it allows bans based on subjective impressions of merely “disruptive” activity.

It provides officials on the ground with a vast amount of discretion not only over whether to ban someone and why but also for how long, and from where.

Worse, there have been lots of bans that can’t even be supported under the highly discretionary and vague text of the policy.

Also, the policy on its face allowed bans of only 30 days for conduct like that that triggered the mass arrest, but the City didn’t conform the already-issued bans to that policy.

Instead, it decided to make the banned persons go through its newly crafted administrative review process.

That process wrongly puts the burden on speakers to reclaim their First Amendment rights, when the law requires the government to carry the strictest of burdens before it can prospectively tell a particular, disfavored speaker: “No, you can’t come to the public forum and hold up a sign.”

The City has gotten basically what it wanted.

It neutralized the most active protestors by banning them and making them go through a cumbersome administrative process to get their speech rights back.

It chilled all the protestors by making them subject to bans that can be issued for highly discretionary reasons.

That strategy has worked—the protests have lost a lot of momentum from the combination of bans on active protestors and worries among the remaining protestors about being banned.

And now the government tries to justify the ongoing validity of its policy by complaining that the only people who it hasn’t sufficiently discouraged from staying are “transients, vagrants, riff-raff, and criminals.”

The government cannot and should not be allowed to get away with that.

The City is going to try as hard as it can to confuse the actual issues in this case, so it bears emphasizing what is irrelevant, or at best collateral, here.

This is a case about City Hall and its plaza. This is not a case about the City’s ability to restrict access to the many other office buildings and facilities it controls that are not public forums.

This is also not a case about the City’s ability to regulate use of the plaza through reasonable time, place and manner restrictions.

The issue is not whether the City can prevent the protestors from sleeping at City Hall.

Maybe it can, maybe it can’t, but it can’t use those types of concerns as an excuse for singling out people who are active at the protest and banning them entirely from participating in speech at City Hall.

This is not a case about the government’s ability to remove a disruptive person from a City Council meeting. The City’s own policy, on its face, makes clear that what we are challenging is separate from that authority.

Nor is this case about recidivism or serial disruptiveness, though the City will try to say so. Most of the people who have received bans were banned for a single incident of “disruption” and the vast majority have not returned.

The government can remove disruptive people to put an immediate end to disruption. The government can arrest people who are committing crimes.

The question is whether the government can impose a prospective month-long speech ban as a sanction for the most minimal of disruptive conduct.

It absolutely cannot. It obviously cannot.

The City has avenues it could have and should have tried to serve the interests it is claiming justify its policy.

But this policy as written, and the bans the City has imposed, simply cannot stand.

Not when you have political protest critical of the government, in a public forum.

Not when that protest is subjected to a policy that is written and issued in the middle of the protests.

Not when that policy gives officials standardless discretion to enforce restrictions, without any exemption for expressive conduct.

And not when the restrictions take the form of prospective blanket bans that make no attempt to minimize the cost to speech to only serve the alleged interests in protecting safety or preventing disruptiveness.

I began by saying that these propositions, these truisms, are as close to gospel as we lawyers can get.

There is a strong reason for that. The First Amendment requires much more than simply a government’s bare assertion that it has appropriately and reasonably balanced the right to free speech against other interests, even substantial government interests. But that bare assertion is all the City has here.

The First Amendment is our bulwark against a government that arrogates to itself the authority to make decisions about what speech can and can’t be heard.

It demands that, even if a government acts with the purest of motives to ban speech outright, there be an extraordinary reason for doing so and that there be no other way to achieve that compelling goal that imposes a lesser burden.

It equally demands that any mechanism for banning speech not allow even the possibility that speech is being singled out because of its message through exercise of a governmental official’s discretion.

The policy Austin has adopted fails to honor these principles and fundamentally ignores the commitments we as a community of citizens have made to ourselves: that the right to free speech shall not be abridged.

First Disability Rights Gala in Odessa – Dec. 3, 2011

Disability rights are a priority in the work of the Texas Civil Rights Project. Since 1990, TCRP has handled more than 450 disability suits all around the state and conducted more than 30 community education forums. TCRP’s annual statewide disability campaign works with people in the disability community throughout Texas (rural and urban) to enforce the Americans with Disabilities Act’s (ADA) requirements. TCRP hopes to bring disability rights advocacy to this region not only through litigation, but through community building and involvement, and education.

Since its beginning in April 2011, the West Texas Disability Rights Program successfully filed three lawsuits as part of TCRP’s annual ADA campaign, and is working to promote disability awareness and education in the Permian Basin and surrounding areas. Currently, the Disability Rights Program is building relationships with local organizations to provide services to the disability community, and giving presentations about the legal rights of people with disabilities in West Texas.

TCRP strives to foster equality, secure justice, ensure diversity, and strengthen communities. TCRP has offices in Austin, El Paso, Alamo (in the Rio Grande Valley), and Odessa.

On November 16, several local prosecutors implemented local criminal prosecution of egregious wage theft cases. But community groups and City council representatives agreed that we need more local action. “Criminal prosecution will only happen in the most egregious cases, but we need an efficient and effective civil mechanism to handle the vast majority of wage disputes in our community, Said Lidia Cruz, a spokesperson for the Coalition. The participants asked for the City to implement efficient and effective local administrative remedies and give the City the ability to ban violators from getting City permits in the future.

Our state and federal systems for dealing with non-payment and under-payment of wages are not working for victims of wage theft in the city of El Paso. As the recent report, El Paso’s Newest Crime Wave: A Wage Theft Epidemic in the Borderlands, shows, one in five low-wage workers within our city receives under minimum wage. One in eight workers was a victim of wage theft. The Report goes on to show that this culture of impunity results from a lack of enforcement.

To deal with this issue on a city level, the Coalition urged City Council to institute a local wage-theft ordinance that will: (1) implement a procedure for reporting and investigating violations; (2) increase penalties at the City level for unscrupulous employers; and (3) create a framework that will ensure that violators pay penalties back to the City to defray enforcement costs.

An ordinance of this nature is not entirely unique. Counties and municipalities throughout the country are using local tools to deal with the issue of wage theft in their communities, including in Miami-Dade County, Florida and Seattle, Washington. Here in Texas, communities are also taking local action to protect workers. Just last year, Austin City Council passed a law that requires local contractors to provide rest breaks to their workers.

“Local action is needed because any change at the state and federal level is unlikely in the next several years. Meanwhile, our community members continue to suffer as victims of this crime wave,” said Coalition representative, Marco Raposo. “El Paso has the opportunity to take the lead in the state of Texas in this matter.”

City Council Rep. Susie Byrd, along with the fervent support of City Council Representative Dr. Mike Noe, offered a resolution recognizing that the problem of wage theft is affecting our communities and committing the City to review options to stop this crime wave. After presenting the petitions to the City Council members, several members of the Coalition gave their testimony about how wage theft is hurting our communities, businesses, and workers. The City Council voted unanimously in support of the resolution.

In certain industries, such as construction, one in every five workers experiences wage theft. Day laborers in particular are significantly affected by this issue with 50 percent having experienced wage theft. The impact of this theft is widespread and has caused many Texans to be unable to meet their families’ basic needs.

To deal with this issue, Senator Rodríguez authored Senate Bill 1024, which overwhelmingly passed the Legislature and was signed into law by the Governor this past May. The new law addresses incidents of wage theft by making it easier for law enforcement to prosecute employers who willfully fail to pay workers for all of the work that they have done. The new statutory provisions will improve enforcement of wage theft violations and take an important step forward in protecting Texas workers.

The new law took effect on September 1st. After several months of discussion on how to best put into practice these new provisions, local law enforcement and prosecutors are ready to begin investigating and prosecuting employers who fail to follow the law.

“By agreeing to investigate and prosecute employers under the Texas Penal Code, our local law enforcement will ensure that thousands of hardworking El Pasoans receive their promised pay.

This also ensures that employers will be held liable if they willfully disregard the law by not paying their workers,” said Senator Rodríguez.

District Attorney Jaime Esparza said, “Fraud and theft in the workplace is a crime and it undermines legitimate business practices. The District Attorney’s Office looks forward to working with investigators to successfully prosecute these cases.”

“This new law allows us to go after persons in our community who act with impunity and rob wages from our workers every day. It will send a clear message that intentionally failing to pay wages has serious consequences,” said Sheriff Wiles.

A recent study conducted by Paso del Norte Civil Rights Project, the Border Network for Human Rights, the Labor Justice Committee, Dr. Cristina Morales, and Eric Murillo underscores the prevalence of wage theft in the El Paso region. The report shows that one in every five low-wage workers did not receive minimum wage, and one in every eight workers was a victim of wage theft.

During the last two years, Paso del Norte Civil Rights Project has received complaints from El Paso workers accounting for nearly $1 million in unpaid wages.

Lidia Cruz of the Labor Justice Committee, which is a local advocacy organization focused on wage theft, says that their organization is ready to work with law enforcement. “Our members already have several cases in which employers repeatedly rob workers of their wages. We look forward to bringing these cases to detectives and pursuing criminal sanctions.”

They have asked the court to immediately enjoin the city policy, which it codified on November 1. Under that policy, the City can ban anyone it deems “unreasonably disruptive,” regardless of whether they are doing anything unlawful at all. The City has banned approximately 95 protesters since October 30; the current bans range from weeks/months to as long as two years. The City can even issue a permanent ban under the policy.

Because it takes a number of months, at best, to resolve the merits of criminal charges and for a court or jury to decide whether they’re legitimate, the banning policy in effect indefinitely suppresses people’s right to protest at the City Hall and surrounding sidewalk.

Rudy Sánchez was arrested while taking pictures of the Austin Police Department officers during the mass arrest of people on the free speech plaza during the early hours of Sunday, October 30 and then told by a city official that he was “banned” from returning to City Hall for two years. He hasn’t returned to City Hall because of the ban.

Kris Sleeman was at City Hall plaza during the early morning arrests, but wasn’t arrested. Later that morning, he gave an interview to local television news about what he saw during the arrests. That evening, Sunday, he spoke at an “Occupy Austin” general assembly. A number of police began filling the plaza and surrounding the protesters. As Mr. Sleeman attempted to leave, the police arrested him on an outstanding warrant for running a stop sign on his bike. While officers drove him to the jail, a city official told him he was banned from City Hall for one year.

Ryan Bates, of the law firm of YETTER COLEMAN LLP and lead attorney in the lawsuit, called the city’s banning of protesters “an unconstitutional denial of the core freedom to criticize the government provided by the First Amendment. For a city that prides itself on its Free Speech Plaza – and rightfully so – it is sadly ironic that Austin has chosen to bar lawful protesters from using it. We are asking the court to immediately halt this unconstitutional policy.”

Jim Harrington, director of the public interest group Texas Civil Rights Project and also an attorney in the case, said “the use of criminal charges plus the banning order is a ‘one-two punch’ against protesters’ rights and creates an inherent potential of abuse and retaliation by city authorities, which is exactly what seems to be the situation.”