(Some) Victims’ Rights
Some groups in Texas are more equal than others.

By James A. Cooley, senior correspondent, The Lone Star Report.
May 8, 2001 1:50 p.m.

emember when the national media discovered Texas during last year's presidential race? One item frequently discussed was that a proposed "hate-crimes" measure, named after the 1998 victim of a gruesome dragging death in Jasper, failed to clear the Texas legislature in 1999. The collapse of the James Byrd Jr. Hate Crimes Act became an issue in the Bush vs. Gore campaign, with the NAACP unleashing a particularly infamous campaign spot on the topic.

The Texas legislature is in session again and the hate-crimes bill has been refiled. Pressure from the Democratic party, civil-rights groups, and the media has been relentless. The bill's senate sponsor, for instance, has repeatedly denounced opponents as being afraid to offend "ultra right-wing homophobics."

Under attack, a minority of Republican legislators decided to join a unanimous block of Democrats in letting the bill move forward. Gov. Rick Perry, perhaps bowing to the inevitable, has indicated that he is likely to sign the legislation.

So: Since the national media can be expected to revisit the topic of hate crimes in Texas, now is a good time to address a few common media misconceptions.

First, despite what you may have heard, Texas already has a hate-crimes law. In fact, it has been on the books for the eight years. It can be found in the Texas Code of Criminal Procedure, Art. 42.014; it reads:

"In the punishment phase of the trial of an offense under the Penal Code, if the court determines that the defendant intentionally selected the victim primarily because of the defendant's bias or prejudice against a group, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of that case."

Those are found to have committed a hate crime face enhanced penalties, per the Texas Penal Code, § 12.47:

"If the judge or jury, whichever assesses punishment in the case, makes an affirmative finding … in the punishment phase of the trial of an offense other than a first degree felony or a Class A misdemeanor, the punishment for the offense is increased to the punishment prescribed for the next highest category of offense. If the offense is a Class A misdemeanor, the minimum term of confinement for the offense is increased to 180 days."

So, we already have a law. It already enhances penalties. Oh, but doesn't the existing law exclude homosexuals? Wrong again. The current Texas statute contains language targeting "bias or prejudice against a group." This open language not only covers gay-bashing offenses — it has been successfully used to prosecute them. In fact, a defendant who had assaulted a man whom he believed to be a homosexual attempted one of the three unsuccessful legal challenges made to the current law, all filed in Texas courts.

All three of these challenges attacked the existing law as being too vague regarding what constitutes an offense subject to enhanced penalties. And all three challenges failed.

Robert Kepple, General Counsel for the Texas District and County Attorney's Association, testified in front of our senate's committee on criminal justice on May 2 and attempted to settle just this question. "In my opinion, the statute, as applied in its normal context, is constitutional," stated Kepple.

Despite affirmation from both the courts and prosecutors, the oft-repeated claim of unconstitutional "vagueness" is driving the push to revamp the existing law. Supporters of the Byrd Act want to insert language that contains a listing of specific groups to be protected. What groups should be included, excluded, or whether specific groups should be named at all, is what this fight is really all about.

As for prosecutors, according to Kepple, it makes no difference whether the groups are listed or left open. "The broad statute covers what I believe to be the core elements in the hate crimes group," Kepple testified.

If the legislature wanted to list groups, it could do so. Or, it could append a list to the existing open language. This would continue to allow the law to be stretched to cover crimes directed at other groups, such as gang-on-gang violence.

Kepple also refuted assertions that a fear of "constitutional issues" was the reason that existing law was invoked so rarely in relation to what seemed a much larger volume of reported hate crimes. "I think the reason that it hasn't been used is because oftentimes the facts aren't there, and the cases aren't there, sufficient to prove the elements," Kepple said.

He noted that 18 so-called hate crimes had been reported in 1999 by the Austin Police Department. Of these, only one had met the criteria of having an actual crime committed, a suspect identified, a victim willing to prosecute, and enough evidence on hand to support a hate-crimes conviction.

So what about all those other reported hate crimes?

"The vast majority were instances of graffiti or damage with no defendants. There were some that were not even offenses. They were verbal things said in a bad manner, untoward speech — but not a criminal offense," Kepple explained. "So we have lots of reports of hate behavior, or hate crimes, but oftentimes the evidence is not there to take it all the way to court and make a case."

This would remain the case under both the old law's open definition and the enumerated definition proposed by the new law.

So, in the end, Texas could go from a state that attempts to protect everybody to one that establishes a list of hate-crimes haves and have-nots. Then, once a list of protected groups is established, others will likely clamor for inclusion and the officially listed may soon start to grow.

One state senator opposed to adopting specific groups found that other states had recently discovered several new categories in need of special protection. The newly sheltered included: Marital status, matriculation, pro-choice or pro-life, union-membership status, political affiliation, family responsibility, and even personal appearance.

As for how a group wins this protected status, here is an insight on the deliberative process. A senator at the same May 2 committee meeting was earnestly courting the vote of a reluctant colleague on the hate-crimes bill. "If you want to add a couple of groups, we can add them," he offered. The important thing, he stressed, was that Texas needed this new law to "send a message."

In response, an observer in the back of the hearing room suggested that renting a billboard might be more appropriate.

When the bill hit our senate floor on May 7, there was an attempt to preserve a version of the open-group language. It was beaten back by a 12-17 vote. The bill then achieved final passage on a 20-10 vote.

Opponents of the new law remain concerned that it will lead to unequal protection under the law. Are these worries are justified? I invite you to judge for yourself. Here is a quote from a state senator at the press conference held after the Byrd Act cleared his chamber:

"We're saying to all Texans — especially those groups enumerated — that your government cares."