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Governor Perry is taking heat for his veto of SB 1440 which would have given CPS authority to obtain a court order ex parte (without notification of the family or their counsel present) to gain access to the home or children in the course of an investigation of abuse or neglect. In his official statement with the veto, the Governor said, "Senate Bill No. 1440 ... overreaches and may not give due consideration to the Fourth Amendment rights of a parent or guardian ... I am also directing DFPS, through its parental advisory committee, to develop and recommend statewide procedures to follow when seeking court orders to aid investigations, while protecting the rights of parents and families." Read the full statement.
The Austin American Statesman ran a story on the issue, pointing out that the Governor received over 17,000 calls, letters, and e-mails asking for the veto and only 455 in support of the bill. Several newspapers across the state have published editorials condemning Governor Perry for this action (e.g., Austin American Statesman and Dallas Morning News). One rare article praised his action and expressed understanding of the issue.
On July 1, Representative Jerry Madden, the House sponsor of SB 1440 who asked the Governor to veto his own bill, hosted a meeting of proponents and opponents of SB 1440 to discuss the issue as a starting point for future action. One of the lead groups supporting SB 1440, CPPP (Center for Public Policy Priorities), posted an article outlining their arguments about how the Gates decision has impacted CPS and why changes in the law are needed. All this is evidence that this issue is not going away, and as a member of the CPS Parental Advisory Committee, I will work to make sure any changes protect children from abuse at the hands of Child Protective Services.
Wednesday, July 1, 2009
Friday, June 19, 2009
Governor Perry Vetoes SB 1440!
Moments ago I received a phone call from Governor Perry's office to let us know that he will announce shortly that he is going to veto SB 1440. He has heard the outcry from parents all over Texas (and many other parts of the country) and is responding.
Please join me in writing notes and send messages of thanks and appreciation to Governor Perry for this great action on behalf of the children and parents of Texas. The media will be notified shortly, and I'm certain that many will attack the governor for this action. It is important for us to let him know how much we appreciate his response. (Click here to send an e-mail or message to thank Governor Perry.)
Thanks also to the many organizations and activists who raised this issue and who continue to battle against heavy odds to protect children from intrusive and abusive actions by CPS! Thanks to all of you who made calls and sent messages! You made a difference!
Thanks again, Governor Perry!
Please join me in writing notes and send messages of thanks and appreciation to Governor Perry for this great action on behalf of the children and parents of Texas. The media will be notified shortly, and I'm certain that many will attack the governor for this action. It is important for us to let him know how much we appreciate his response. (Click here to send an e-mail or message to thank Governor Perry.)
Thanks also to the many organizations and activists who raised this issue and who continue to battle against heavy odds to protect children from intrusive and abusive actions by CPS! Thanks to all of you who made calls and sent messages! You made a difference!
Thanks again, Governor Perry!
Sponsor of SB 1440 Calls for Veto
Rep. Jerry Madden, the House sponsor of SB 1440, has issued a letter asking the governor to veto his own bill. This is a huge development as it supports our position that this legislation was passed without the full understanding of the legislature. The governor may make his decision as soon as today. Read Madden's letter.
In other developments, Scott McCowen's opinion in support of SB 1440 has been published today in a second Texas newspaper. An excellent opinion piece in response to McCowen's by Richard Wexler, executive director of the National Coalition for Child Protection Reform, was published today. Read the response.
In other developments, Scott McCowen's opinion in support of SB 1440 has been published today in a second Texas newspaper. An excellent opinion piece in response to McCowen's by Richard Wexler, executive director of the National Coalition for Child Protection Reform, was published today. Read the response.
Tuesday, June 16, 2009
Legal Basis for Veto of SB 1440
Yesterday we delivered a letter outlining the legal arguments for our request that Governor Perry veto SB 1440. This letter was drafted with the help of several attorneys who defend innocent families in CPS investigations on a regular basis, as well as some constitutional attorneys. It is a long and detailed legal argument that clearly shows why this bill must not become law.
At the end of the document are two "exhibits." One is the memo by the Department of Family and Protective Services (DFPS) that outlines their interpretation of SB 1440. The other document is the bill analysis that was prepared for the bill that was the basis for the amendment to SB 1440.
Note that there are many organizations signing this letter and asking Governor Perry to veto this bill. Others have forwarded the letter asking their supporters to join in the request. Read the letter.
At the end of the document are two "exhibits." One is the memo by the Department of Family and Protective Services (DFPS) that outlines their interpretation of SB 1440. The other document is the bill analysis that was prepared for the bill that was the basis for the amendment to SB 1440.
Note that there are many organizations signing this letter and asking Governor Perry to veto this bill. Others have forwarded the letter asking their supporters to join in the request. Read the letter.
Monday, June 15, 2009
Veto SB 1440
Yesterday the Ft. Worth Star Telegram printed an editorial by supporters of SB 1440 calling on the governor to sign the bill into law. I have sent the following response to several papers in the state.
SB 1440 was passed by amending a non-controversial bill on the Local and Consent Calendar during the chaotic last days of the session. The House sponsor of SB 1440 was not aware that the language amended to his bill was more expansive than the language of the original SB 1064, and there is reason to believe that the House was not aware of what it was voting for. This bill would give CPS the ability to obtain ex parte orders, just like law enforcement but without the constitutional constraints by which they must abide.
The affidavit standard established by SB 1440 may be executed by an investigator or authorized representative of the department. Therefore, the affidavit is not even required to be from a person who has any knowledge of the case. Furthermore, the affidavit is to be “based on information available,” not credible evidence or corroborated allegations. In other words, the affidavit is to be based on the allegations called in to CPS. These allegations can be anonymous, made by a well-meaning person who has no personal knowledge or by someone using CPS to settle a grudge against a parent.
Proponents of SB 1440 have implied that the Order in Aid of Investigation is no different than a criminal search warrant and that it is based on a probable cause standard. However, case law is clear that a search warrant cannot be issued based on evidence that has not been corroborated by the police officer. An informer must assert personal knowledge that an illegal act has occurred. Otherwise, the police must do their own investigation to corroborate the information given them.
The Texas Family Code is silent as to whether the court may issue an Order in Aid of Investigation ex parte (without the parents present), and some courts interpret this as giving them the right to issue ex parte orders. This bill would codify the practice and provide cover to those judges who ignore the Fifth and Fourteenth Amendments, which provide that a person shall not be deprived of any interest in liberty or property without due process of law.
No opportunity is afforded in this bill for parents to refute claims made regarding lack of cooperation or to explain circumstances from their point of view. There are no standards or provisions provided or referred that exist in other parts of the law (such as concerning the execution of warrants or citations) regarding how the order will be executed.
On its face, granting a government agent access to a private citizen’s home based on allegations made in an anonymous phone call and without corroboration of those allegations violates the U.S. Constitution’s Fourth Amendment protection against unreasonable search and seizure. SB 1440 seriously undermines parents’ ability to assert their legal rights against unwarranted intrusions by CPS investigators during abuse or neglect investigations. Governor Perry should veto this bill and let the legislature readdress the issue in the future.
SB 1440 was passed by amending a non-controversial bill on the Local and Consent Calendar during the chaotic last days of the session. The House sponsor of SB 1440 was not aware that the language amended to his bill was more expansive than the language of the original SB 1064, and there is reason to believe that the House was not aware of what it was voting for. This bill would give CPS the ability to obtain ex parte orders, just like law enforcement but without the constitutional constraints by which they must abide.
The affidavit standard established by SB 1440 may be executed by an investigator or authorized representative of the department. Therefore, the affidavit is not even required to be from a person who has any knowledge of the case. Furthermore, the affidavit is to be “based on information available,” not credible evidence or corroborated allegations. In other words, the affidavit is to be based on the allegations called in to CPS. These allegations can be anonymous, made by a well-meaning person who has no personal knowledge or by someone using CPS to settle a grudge against a parent.
Proponents of SB 1440 have implied that the Order in Aid of Investigation is no different than a criminal search warrant and that it is based on a probable cause standard. However, case law is clear that a search warrant cannot be issued based on evidence that has not been corroborated by the police officer. An informer must assert personal knowledge that an illegal act has occurred. Otherwise, the police must do their own investigation to corroborate the information given them.
The Texas Family Code is silent as to whether the court may issue an Order in Aid of Investigation ex parte (without the parents present), and some courts interpret this as giving them the right to issue ex parte orders. This bill would codify the practice and provide cover to those judges who ignore the Fifth and Fourteenth Amendments, which provide that a person shall not be deprived of any interest in liberty or property without due process of law.
No opportunity is afforded in this bill for parents to refute claims made regarding lack of cooperation or to explain circumstances from their point of view. There are no standards or provisions provided or referred that exist in other parts of the law (such as concerning the execution of warrants or citations) regarding how the order will be executed.
On its face, granting a government agent access to a private citizen’s home based on allegations made in an anonymous phone call and without corroboration of those allegations violates the U.S. Constitution’s Fourth Amendment protection against unreasonable search and seizure. SB 1440 seriously undermines parents’ ability to assert their legal rights against unwarranted intrusions by CPS investigators during abuse or neglect investigations. Governor Perry should veto this bill and let the legislature readdress the issue in the future.
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