By Scott Henson, Grits for Breakfast
Posted: May 7, 2013, 7:20 pm
The Houston Chronicle
Local control has its place, but the proliferation of invasive government surveillance technology isn’t necessarily one of them. Senate Bill 188 by state Sen. Joan Huffman, sponsored in the Texas House by state Rep. Allen Fletcher, would allow local police departments to perform wiretaps without oversight for the first time in the state’s history.
Presently, the Texas Department of Public Safety is the only non-federal agency authorized to perform wiretaps in Texas. But from 1997 to 2011, according to annual reports submitted to the Justice Department, they were never asked to do so more than five times in a year, a high mark set back in 1998. Some years, as in 2009, the number was zero. Bottom line: Texas prosecutors seldom request them.
Bill proponents have regaled legislators with stories about dangerous Mexican drug cartels who they can investigate only through wiretapping. But they are surprisingly short on examples of times when they needed a wiretap, and DPS wouldn’t oblige them. There’s just no documented need to expand the number of agencies performing wiretaps.
SB 188 would let the six largest Texas police departments and the Harris County sheriff engage in wiretapping on their own. Under current law, when local prosecutors get wiretap orders they must be implemented by DPS officers. Bill proponents argue that DPS is too overwhelmed to handle extra duties. But that’s laughable when you look at the number of such requests by local agencies since before the turn of the century.
Ask and ye shall receive, the Good Book tells us, seek and you shall find. Knock and the door shall be opened unto you. But if you never knock?
There was a telling exchange at a recent House Criminal Jurisprudence meeting. Regarding legislation essentially similar to SB 188 that was filed by Rep. Gene Wu, D-Houston, Houston police Detective Jimmy Taylor told the committee the bill would let the Houston Police Department do many more wiretaps. Hearing this, committee member Rep. Matt Schaefer, R-Tyler, astutely asked how many times HPD had requested a DPS wiretap last year. Taylor replied that the department had not requested any because they knew DPS was too “busy.” DPS, however, has never turned down an agency that asked them to perform a wiretap if they’ve secured the proper orders from their local judge.
Why do local agencies need additional authority when they hardly ever use wiretaps? The argument seems to be, “If we didn’t have to go through DPS, we’d do more of them.” But why? Can they say that without having even tried going through the existing mechanisms?
The other big complaint one hears from law enforcement to justify the bill is that, local law enforcement agencies often must ask federal agencies for assistance when they need a wiretap. So what? Is that a terrible problem? Let the feds do their thing. They’re a lot better equipped to do those sorts of labor-intensive investigations. In 2011, there were 102 federal wiretap orders in Texas compared to two for local agencies. If Texas agencies aren’t even using their current wiretapping authority, why expand it?
This bill amounts to a solution looking for a problem. If HPD had received judicial approval for a wiretap and DPS was unable to implement it, that’d be one thing. But if it’s just to give them a leg up in some bureaucratic turf war with the feds or to keep from having to involve DPS, those don’t seem like very good reasons to let the big local law enforcement agencies have this expanded authority.
The reason past legislatures centralized wiretapping at DPS wasn’t because locals couldn’t operate the technology but because they judged that it’s better to keep such authority in one place to make it easier to regulate. That logic hasn’t changed, and with the volume of requests so low, there’s just no pressing need for the changes sought in SB 188. The Texas House should reject the legislation.
