By Eric Dexheimer
Friday, December 26, 2008
Many Texas laws old, in the way
Statutes dealing with topics from telegraphs to communism hang around for decades after they're out of date, sometimes causing problems.
In 1954, Allan Shivers, anticipating a difficult campaign for his third term as Texas governor, proposed that membership in the Communist Party be made punishable by death. More moderate lawmakers voted to make it punishable by a mere 20 years in prison instead. Such McCarthy-era restrictions have since been cleansed from state statutes.
Most of them, anyway. A citizen cannot work for the state government if his supervisor has "reasonable grounds to believe that the person is a communist," says Chapter 557 of the current Texas Government Code.
"We don't have any communists," insisted Andy Homer, director of government relations for the Texas Public Employees Association. But, he said, "I'm not sure about the Texas State Employees Union," a rival organization.
The prohibition against communists is one of hundreds of laws still on the books despite being outdated, unenforceable or — like Article 4413 of Vernon's Texas Civil Statutes — meaningless: "A person may not conduct blasting, rock quarry operations, or another activity that causes ground motion in excess of one micron in frequencies of five hertz or less as measured at an interaction region of the super collider."
That would be the superconducting supercollider, the vast atom-smashing project near Waxahachie that the federal government canceled 15 years ago.
Texas laws prohibit the sale of baby formula and contact lenses at flea markets, selling an armadillo or tripping a horse. On the other hand, since 1997 residents can legally cast a vote from space. Ten Texans have, according to NASA.
Such minor laws see irregular enforcement. The state's Business and Commerce Code requires companies advertising a going-out-of-business sale to "file an original inventory with the chief appraiser of the appraisal district in which the person's principal place of business is located." The permit costs $20.
"If we get two a year, it's a banner year for going-out-of-business-sale permits," admitted Ron Melton, director of the Travis Central Appraisal District's personal property division.
That's a better track record than offenses related to secondhand watches. The Business and Commerce Code still identifies as an outlaw anyone who sells used watches not labeled as such "in letters larger than any other letters on the invoice." Austin Curry, owner of Austin Watch and Jewelry, said the old laws are "kind of a sticky deal" — a vestige from the time when not-always welcome immigrants used their jewelry as currency. It was passed in the 1940s "out of fear," he said.
Though still valid, today it's a rule flouted thousands of times daily on Craigslist and at pawn shops across the state. "We don't enforce that," Austin Police Department spokeswoman Veneza Aguiñaga said.
"I'm not familiar with that statute," Travis County Attorney David Escamilla said.
Sometimes, leaving outdated laws on the books is simply a matter of lack of momentum.
Senate Bill 387, which will be considered when the 81st Legislature convenes in mid-January, would update the Code of Criminal Procedure to include the use of "secure electronic means" to transmit an arrest warrant. Yet references to telegraphs — Article 15 outlines the duties of a telegraph officer — remain embedded in the same statute. And much of the section being considered for revision has been irrelevant since a 1967 law gave police authority to arrest someone without a warrant in hand.
Rep. Bill Callegari, R-Katy, has been trying to clean up the state's outdated laws for years, said Jeremy Mazur, his chief of staff. Last year, he managed to repeal the Texas Centennial Commission's authority to condemn land — about 70 years after the state celebrated its 100th anniversary.
"When they're still on the books, these old laws can be live wires," Mazur said.
Prosecutors say so-called boutique laws can cause serious headaches. Criminal defendants must be charged under the most specific law possible. Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association, said it's not unheard of for a prosecutor unaware of a new or little-known statute to earn a conviction using a more general law, only to have it appealed because of the incorrect charge.
Outdated laws that stubbornly remain on the books can also reveal social fissures.
Federal courts have long since deemed flag-burning and homosexual conduct to be legal. But Texas legislators have been unwilling to officially erase the laws against them for fear of alienating an ambivalent public.
The last time the lawmakers contemplated removing flag-burning, "nobody really wanted to go on record as repealing it because it's a symbolic statute important to much of the public," Williamson County District Attorney John Bradley said.
The Texas Legislative Council periodically rewrites the codes to make them more reader-friendly and streamlined. It last sand-blasted the Texas penal code in 1993. In 2000, a university law review identified Texas as having one of the clearest codes in the country.
But that was four legislative sessions ago. Since then, state lawmakers have been busy creating new offenses — despite pleas to show restraint.
The district and county attorneys association used to give legislators a pamphlet at the start of each session outlining the pitfalls of cramming the penal code with nit-picky laws. "New legislation, although well-meaning, may inject unnecessary confusion into the system," it said.
The association stopped several years ago, however, after noticing that no one was paying attention. "You get a special interest that wants its own law, so they hire lobbyists to get it done," Edmonds said.
The 2003 and 2005 legislative sessions created 70 new violations, according to the association. The more recent session created four dozen more.
Texans can now be arrested, fined or both for shining a laser pointer at an airplane (unless it's an emergency distress signal), recklessly moving feral swine or attempting to drive over a railroad crossing in a car with insufficient undercarriage clearance.
The specialized laws can be more catharsis than serious public policy enhancement.
Last session, Sen. Jeff Wentworth, R-San Antonio, heard of an incident in which a father and son were driving home from a hunting trip. The father asked his son, who had a learner's permit, to drive while he napped. A few miles from home, the boy crashed; a child in another car died.
After hearing that no laws had been broken, Wentworth pushed through Senate Bill 153, making it illegal for an adult supervising a probationary driver to fall asleep, or be intoxicated or otherwise distracted.
"I don't know of any other case like that," Wentworth said. "But clearly it's something that needed to be fixed in the law."