Will Texas Continue To Allow Arrests For Minor Crimes?

October 05, 2016 by

Following the arrest of Sandra Bland by a Texas State Trooper, many were outraged that Bland’s initial crime – which resulted in her arrest, jailing, and death – was merely failing to signal while changing lanes.

Most people would assume that a police-civilian interaction would need to significantly escalate in order for a crime that’s not punishable by jail time (a simple moving violation) to result in the arrest of an individual – but that’s not the case in Texas.

Under Texas law, law enforcement officers have the ability to make arrests for routine traffic stops and other minor offenses, except for routine speeding. Which is odd because out of all traffic violations, speeding is one where you are more than likely putting those around you at risk.

An example of this discretion given to police is the case of Gail Atwater. In 1997, Atwater was stopped for failing to have her own seatbelt, as well as those of her two children, fastened. She was arrested, booked, and shortly jailed before paying a $310 bail and $150 fine ($50 for each passenger without a seatbelt).

Atwater never contested the violation, only that she should not have been arrested for it.

Following the arrest, Atwater sued the City of Lago Vista and the police officer, saying that the arrest was a violation of her constitutional rights. Her claim was that she should not have been arrested for a crime that carries no jail time.

The United States District Court for the Western District of Texas filed a summary judgement in favor of the city. Following that, a panel of the Fifth Circuit Court of Appeals reversed the decision, saying that an arrest for a misdemeanor was unreasonable. The case was heard by the entire Fifth Circuit who then reversed the panel’s decision, agreeing with the district court.

The case eventually made it to the Supreme Court of the United States which determined in a 5-4 decision that, “The arrest and booking were inconvenient to Atwater, but not so extraordinary as to violate the Fourth Amendment.” The Cato Institute called this a “big setback for liberty.”

The problem with this is that the precedent has been set to over-criminalize someone for an action that doesn’t warrant arrest. This could drastically impact someone’s finances, housing, and employment depending on their situation.

Now, whether officers take advantage of this power is another question. But even if they do, they are only using the discretionary power granted to them by the legislature. Which is why the legislature should prohibit arrest for minor crimes without a warrant, unless they are a “breach of the public peace.”

The Texas Legislature has tried to advance this issue before.

In 2001, they passed SB 730 banning arrests for traffic offenses, and in 2003 they passed SB 1597, to force Police Departments to set policy on whether or not arrests should be made for crimes punishable by fine only. Former Gov. Rick Perry vetoed both, although in 2007 he did sign a bill allowing police to issue citations instead of arrests for Class B and C misdemeanors. But allowing discretion is allowing someone’s liberty to be decided on a case by case, and often tense, situation.

Luckily, the issue is expected to get some attention this upcoming legislative session. State Sen. Konni Burton (R-Colleyville) has said she intends to carry a bill to stop arrests for those whose only offense is a crime not punishable by jail.

With the reforms Texas has made in the nineteen years since Atwater’s arrest, there’s hope to see the legislature, again, vote to curb this behavior, and have Gov. Abbott sign it into law.


About the Author

Charles operates the Houston office for Empower Texans/Texans for Fiscal Responsibility.