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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.
4 comments:
Tim,
First, Thank You!, for all that you are doing to get this thing stopped. You are greatly appreciated.
Secondly, I am following the advice of calling my representives and becoming very discouraged. Sen. Estes' office admitted how crazy that day's voting was and confirmed most of the details you have already given concerning how this bill was slipped in. I was told that Mr. Estes' office was only now attempting to read this bill! I was also told, when I asked that Mr. Estes speak to Gov. Perry about a veto, that "at this point, there is nothing that Mr. Estes can do about it and that it really is up to the citizen to call the Governor's office now." I have yet to get through to Tan Parker's office.
Could it be that that the conservative reps are afraid to admit to the Governor that they mistakenly voted for a bad bill for fear of "losing face"? What else can be done?
The momentum against SB 1440 is growing by the hour and I doubt that reps are afraid to admit they did not know what they voted on. In the Senate, however, Senators are very reluctant to veto or oppose each other's bills. Senator Dan Patrick is an exception who has called on the gov to veto SB 1440. Any Senator can call on the governor to veto a bill as he too is a citizen. Staff who says he can't do anything are really saying, he chooses not to do so.
"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. "
They still never know what they are voting for !
I am SO FRUSTRATED! This sort of stuff should not be happening in TEXAS!! Rick Perry better show conservatives that he is conservative and stand up for parental rights! What is so difficult about vetoing this bill?
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