Monday, November 14, 2016

HB 92: Repeal of the crime of "Homosexual Conduct"

Rep. Joe Moody (D-El Paso) today filed HB 92 to repeal the crime of "homosexual conduct.

You may recall that in 2004 the Supreme Court of the United States declared the Texas law against "homosexual conduct" (which is Penal Code 21.06) unconstitutional in Lawrence v. Texas. The law, although now unenforceable, is still on the books. While it might seem a simple matter of housekeeping to remove it thus far most state lawmakers have seemed too afraid to do anything about it.

In 2009 Rep. Garnet Coleman (D-Houston) filed this exact bill (word for word) (HB 3028). It was sent to the Criminal Jurisprudence Committee which referred it to a sub committee. When a committee has a large number of bills to consider the chair may, at their discretion, appoint sub committees - which usually look at groups of bills on similar topics and then make recommendations to the whole committee.

In 2011 the bill similarly was filed by both Coleman and Rep. Jessica Farrar (D-Houston), was not sent to a subcommittee, but died in committee anyway. In 2013 both again filed the bill and again it died in committee, but Coleman's bill received a hearing.

In 2015 Moody, for the first time, filed a version of the bill - as did Coleman and Farrar. This is significant because Moody had served on Criminal jurisprudence longer than any other member that session. With Moody's support Coleman's bill was heard again and had some support in the committee. Unfortunately the hearing didn't occur until May of last session - much too deep into the session to have sufficient time to pass the legislature, even if the committee had passed the bill (indeed, it seems the hearing was designed specifically for bills the committee wanted to pass, but which were considered politically volatile as a marijuana legalization bill was heard in the same hearing).

The late scheduling of the hearing can be sat squarely at the feet of the committee chair, Rep. Abel Herrero (D-Corpus Christi). Chairs have almost complete discretion about when to schedule bills referred to their committees and the late scheduling of this bill is a black mark on Rep. Herrero's otherwise stellar record as chair.

Criminal Jurisprudence is an interesting committee. It's jurisdiction over criminal law is not particularly important to a lot of movers and shakers and most of what it considers is not particularly high profile. That's why it has one of the most volatile rosters in the House with almost the entire membership of the committee shifting every session. Last session only Herrero and Moody returned from the previous session. That means that the makeup of the committee next session is very likely to have mostly new members and that most of the new members are likely to be in their first term. Many of those membersmay not know that 21.06 is still on the books and may be shocked to learn that it is. Here's hoping that enough new eyes on the issue, and perhaps a stronger backbone on the part of the chair, may finally lead to 21.06's repeal.

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