Candidate Answer #10 Executive Order

The 10th amendment is often trampled on by the Federal Government. Sheriff Richard Mack is one of the few to fight back and win a state sovereignty case heard before the Supreme Court in Mack/Printz v. USA. A local official such as the Sheriff is immune from being compelled to carry out Federal executive orders. He also has the responsibility to his community to protect the people from federal overreach or any act of the Federal Government that violates the Constitution. Sheriff Mack not only endorses my campaign for Sheriff, but he is also my friend and I would utilize him as an expert advisor and resource in combating any federal overreach situation faced by Montgomery County. My oath is to preserve, protect, and defend the Constitution and laws of the United States and of this State. I pledge to keep that oath and protect those who I am sworn to defend regardless of who the enemy may be.

Candidate Answer #9 Ethics

If I became aware of unethical conduct on the part of a peer, I would ensure it was addressed by the proper arm of government charged with oversight for that particular office or act. As a former internal affairs investigator and supervisor of the unit that conducts all internal investigations of Sheriff’s Office misconduct, I am very familiar with these types of complaints and investigations. I am aware that tough decisions need to be made and I am prepared to make those decisions. As a professional law enforcement officer, I know that lines are always drawn between personal and professional relationships and misconduct on the part of a peer is professional. Those that make decisions violating oaths and standards of an office must be held to the standard of public service.

I do believe it should be an element of public service that the reporting of known misconduct is a requirement of the office.

Candidate Answer #8 Transparency

I would favor all three systems in compliance with freedom of information laws, but the arrest data by name of the deputy has particular bearing on my profession as well as the office of Sheriff that I seek.

We at the Sheriff’s Office publish all arrests made by all agencies in the county on our website and the inmate data is searchable. We also send out a weekly news “blotter” that contains a brief account of significant arrests and investigations, which does contain the name of the deputy who was involved or was the lead investigator; however, the deputy’s name is removed by most news outlets before the article is run.

Deputies do have a legitimate concern for privacy as they deal with the worst of the worst when carrying out their jobs then they must live within the same society as a citizen when not on duty. Their privacy and the personal safety of the deputy and his family should be taken into consideration and balanced with the need for a blanket system that indexes arrests by deputy name.

There are too many laws in our country, especially since we are a nation founded on individual liberty. Since the beginning of the U.S., legislators at all levels have been enacting laws that have piled up to create the behemoth list of prohibited criminal conduct that we operate in today. We in local law enforcement hold the power of discretionary enforcement, which is the most powerful tool in law enforcement. If law enforcement were required to enforce every law on the books, we would live in a true police state without liberty. Some laws are enforced mostly universally and are well-known criminal offenses like Burglary, Theft, Robbery, Assault, Driving While Intoxicated, Murder and Manslaughter, etc. Others such as obscure traffic offenses like “Parked Facing Traffic” or “Walking on Roadway where Sidewalks are Provided” among others are not commonly enforced, but are low level crimes nonetheless.

Having worked for the past 21 years enforcing State and local laws while serving the Montgomery County community in local law enforcement, which is the role I seek to continue serving in as your Sheriff, I am very familiar with State criminal law. Texas law is composed of 30 codes of criminal conduct and it runs the gamut from well-known criminal and traffic laws to the obscure and arcane procedural, civil, and regulatory conduct. The law also states that ignorance of the law is no excuse for violating it. This leads to the same issue expressed in the video as there are so many laws that no one actually knows how many there are much less know what they are.

I agree that there are too many laws at every level whether it is local, state, or federal. The legislatures make a living from enacting new legislation, which means more laws every term. What we need is to clean up what we have and eliminate the unnecessary, redundant, and unenforceable laws that are already on the books. Legislators should be evaluated by constituents not only by their productivity in getting their bills passed, but also on how much they did to fix the system as it exists.

The overcriminalization of American society has led to one of the largest prison populations in the world. It is much harder to land a sentence in a Texas state prison than most think. At the local level, there is any number of sentencing options that judges and juries have at their disposal. First time felony offenders may face probation, fines, alternative sentencing such as counseling or treatment, and deferred sentences. It normally takes numerous trips in front of a judge before prison time becomes the option of choice. I believe our local system does provide the defendant with multiple chances to get on the correct path, but if we in local law enforcement keep arresting him, then the court system will eventually put him away in prison as he will finally be deemed as someone who is not a candidate for rehabilitation.

The majority of laws you will find are not those that will land you in prison. Many of the laws that put offenders in prison are either directly or indirectly related to drugs. This is a realm of criminal conduct that has led to the prison expansion and greatly increased incarceration rates as most drug offenses are felonies at the state and federal level. This is realm that needs to be most closely focused on and supply side enforcement has led to more incarceration, but not a decline on the demand side. I believe that narcotics distribution should be illegal and I support putting every drug dealer in jail. There are many areas that do need decriminalization, but in my opinion, drug distribution laws are not among them. We in local law enforcement and at the Montgomery County Sheriff’s Office specifically, will continue to enforce the laws of the State using discretion with a mission of keeping the community we serve a safe place to live, work, socialize, worship, grow a business, and raise a family.

Question #3 Filming the Police

With the advent of smartphones and amateur journalist blogging the filming of public interaction of law enforcement with the public has grown exponentially. The existence of these digital records can have a significant effect, either positive or negative on investigations and conduct of law enforcement as they go about their duties.

One recently proposed bill sought to create a misdemeanor for filming within 25 ft.

Police agencies are responding by drafting new policies that address the legal issues for the public and the members of law enforcement. Recently, the Montgomery County Sheriff’s Dept. and Pct 5 Constables Office attended a NPPA Conference in advance of developing a policy for Montgomery County.

As a Lawmaker, Law enforcer or Law Judge,

What elements must a good policy include and what role should the public play in its development and implementation?

Candidate Answer #3 Filming the Police

The Montgomery County Sheriff’s Office (MCSO) is considering the adoption of a policy that gives guidance to our personnel in instances of the public or media recording our law enforcement activities. This is a controversial issue in some communities and the MCSO policy is intended to provide direction so as to prevent such an issue and to reduce any liability to the agency. The MCSO is 100% video and audio outfitted for all vehicles used to make traffic stops and this has been the case since the State’s adoption of legislation for Racial Profiling data in around 2002. We also have had body cameras for several years in specialized units (Motorcycles, K-9, Bicycle Patrol, etc.) and we look to increase the number currently utilized. There are existing policies that regulate and provide guidance for mobile cameras and body cameras so we are looking to add a policy that governs the public capturing video as well.

Our deputies carry out their work duties at all times as if they are being recorded; therefore, being recorded by the public is not as big of a concern for our personnel as it might be for law enforcement jurisdictions that don’t record their public interactions. An element of this policy that is greatly beneficial to the deputies is that it provides guidance for the recovery of public video recordings that may have evidentiary value and whether the justification for such is through probably cause, exigent circumstances, when a warrant would be required, etc. There is a legal process for recovery of such data and the guidelines assist the deputy in ensuring the data recovery does not jeopardize loss of the evidence, it maintains the admissibility of the evidence into the court process, and it reduces the liability to the agency. The public may not interfere with the duties of law enforcement as set forth with legislation governing interference with public duties and the policy helps to define when the photographer has done so. The policy reinforces that the photographer may not interfere with an investigation or cross police lines in order to capture the footage. Furthermore, the policy gives agency justification to the deputy for his actions and if he follows the guidelines as set forth by the agency and his training, then it greatly reduces any public outcry against his actions as well as reduces agency liability.

The policy we used as a foundation for the MCSO policy is a model developed by the National Press Photographers Association (NPPA), which is a consortium of media outlets. The model policy was developed collaboratively with media outlets in conjunction with law enforcement using guidance from legislation and the courts. Whenever possible, we look to model policies as the foundation for our internal policy governance. We sometimes modify the policy to fit with our specific agency requirements and philosophy. I believe that development of policy that includes stakeholder input leads to the most comprehensive and solid policies. We also look to the County Attorney for guidance as to prevention of liability upon the agency.

Question #2 The Nature of Law

During Texas 84th legislative session State Representative Mark Keough introduced HB 3184 a bill seeking to import the civil law process of mediation into criminal law. The law applied to some first time misdemeanor and felony offenders. The bill passed though the legislative process but failed to become law on veto by Governor Greg Abbott who stated “Making amends with the victim of a crime does not absolve the criminal of his legal debt to the State.”

Do you agree with the Governor? What is the purpose of law from your point of view as a Legislative/Judicial/ Law Enforcement official? Who is it intended to protect?

What should be the role or effect of private judging companies (such as JudicialArbitration and Mediation Service) in the judicial or incarceration system?

(answer should be based on elected office sought.)

Candidate Answer #2

Honorable Mark Keough had a great freshman term in the State House of Representatives and he was able to pass some good legislation. I have heard him talk of HB 3184 several times and he was obviously disappointed that it didn’t pass; however, he did defer to Governor Abbott’s experience as an attorney and the most recent elected Attorney General for the State. This question is directed more at the judiciary than law enforcement, but I think that in certain cases a mediation process might prove valuable. An alternative to incarceration that leads to a decline in recidivism is noteworthy and should be considered for legislation. For first time offenders of lesser misdemeanor crimes, I think the debt to the State and to the victim could be met through a mediation process as an alternative to incarceration. I would not include felony crimes or those offenders with criminal backgrounds as a class of those eligible for this process. This could possibly serve as a mechanism to keep first time offenders from entering the gateway of the criminal justice system thus giving them an opportunity to prove they are capable of being productive members of society. We need to bear in mind that punishment of offenders provides a deterrent effect upon others and de-incentivizes the risk vs. reward for other criminals. Our ultimate goal would be to protect the victim and society from this offender and if both the judge and the victim agree this can be done through the mediation process, then it should be considered as an alternative.

The purpose of law from my perspective as a law enforcement official is that it is a mechanism to keep order within society and keep one person from causing harm to another. This is done in a balancing act between (1) the rule of law and (2) individual liberty. It is often quoted that we are a country of laws and I agree that would be a true statement. We are also a country that founded its laws on religious, specifically Christian, principles of proper behavior when interacting with our fellow man. Our foundation of law is a principal dictating that the vast majority of good Christians will voluntarily follow the law. This occurs because foundational American law is in line with the teaching of the Bible thus Christians see following the law as the right thing to do just as we were taught in our religious upbringing. Unfortunately, we have seen a societal trend that more people are less religious and thus less inclined to self-govern themselves. From a law enforcement perspective, this is a difficult challenge as it makes enforcement more necessary and more commonly we see liberty invasive tools and methods used in the law enforcement profession.

The other perspective of law is that our country is based upon the premise of individual liberty. There is a fine line between free self-governance and the rule of law that is intended to protect society from its law breakers. I see law enforcement as the fulcrum in that balancing act and it is our duty to protect both the individual’s liberty and use our state sponsored powers to take liberty from those who do not play by its rules. I feel that society determines where along that balanced line that law enforcement operates. That is the beauty of law enforcement in the United States as a decentralized system composed of 18,000 or so individual agencies of all sizes and scopes. We the citizens possess control over local law enforcement and we have the ability to petition the government agency responsible for carrying out enforcement of the rule of law. A good Sheriff should understand what is most important to his constituency and listen to the needs and concerns of the public so as not to trample individual liberties, but also to keep the public safe in their community. As your Sheriff, our agency will strive to be proactive to prevent crimes from happening, but we will locate, arrest, and jail the offenders that choose to commit crimes in our community.

Question #1 Civil Asset Forfeiture.

Texas Supreme Court Justice Don Willett said “A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong.”

Candidate Answer #1

The proper application of civil asset forfeiture laws in general in Texas starts with a sound policy that is agreed upon with the law enforcement agencies of the county as well as the District Attorney’s Office. Our current policy dictates that the District Attorney is consulted prior to the asset seizure to determine if legal as well as ethical standards are met. We in law enforcement operate under approved asset forfeiture legislation and we have a duty to create benevolent policies and practices that make application just and fair. As with any law that allows for a great deal of discretion, there is ample opportunity for misapplication as well as abuse. The purpose of civil asset forfeiture is to remove the ill-gotten property from those who have used their criminal activity to attain such property. The theory is that if law enforcement can separate the fruits of the crime from the criminals and use that property or currency in an enhanced effort to combat further criminal activity, that there will be a more productive and better financed effort in thwarting future criminal activity.

This theory has been abused over the years and some agencies use their civil asset forfeiture accounts to buy “cop toys” and to finance purchase of improper or inappropriate items. Some agencies set no or low policy thresholds that bring criticism and allegations of unfairness. It is my opinion that asset seizures should be specifically directed at those who are making money from crime, for example, the drug dealer and not the drug user or the illegal gaming establishment owner not the gambler. The proper application of asset forfeiture would be to remove the asset from the criminal after establishing a tie indicating that the asset was gotten from the profits of crime. The drug user may be in possession of a felony amount of drugs while driving a nice car, but if there is no tie to that car having been purchased using drug money, then there is no call for a seizure. This would require scrutiny or even eliminate the seizure of small or inappropriate items as described in the accompanying article that listed cell phones and DVD players or other small ticket items as seized assets. There should be limits set for cash seizures as well. A person traveling with $2000 cash should not be subject to asset forfeiture for mere possession of the cash. A person with $2000 cash who also had drugs in a felony amount packaged for sale and when asked where the money came from answered by saying, “I don’t know; that’s not mine” would be subject to seizure. The aforementioned scenario is a very common one found in traffic stops.

I believe that the limits should be set to focus solely on felony crimes and not misdemeanors. It is also an important ethical element to ensure that the asset is not granted to the government until the criminal case is disposed. Some agencies will assume ownership of a seized item although the crime for which the defendant has been charged has not been disposed. I think it is imperative, which is a current practice in Montgomery County, that the criminal is convicted of his crime before the asset is awarded to the government.

The spending of asset forfeiture funds by law enforcement is set out in legislation as well. Proper use of the funds would be to enhance, not fund or supplant, the purchase of law enforcement equipment. I would like to see the legislation amended to allow for a local law enforcement agency to use the funds for law enforcement salaries or for overtime projects. This element of the code is limited to the District Attorney’s Office; therefore, local law enforcement looks to the DA for overtime money. I feel that as Sheriff, I should be able to use the money to fund overtime projects that are specifically used to combat identified criminal activity.

The asset forfeiture program in Texas is far from perfect and it has been abused by some; however, it remains a viable tool in combating crime and uses a non-tax payer revenue stream to do so. I feel that if managed properly it is an asset that can be a “game changer” in the law enforcement battle against the criminal element. The Koch produced video, which was also an accompaniment to this question, ended by asking if it was time to stop law enforcement from keeping the assets they seize in order to stop abuses of the law. The first distinction is that law enforcement seizes the assets, but there is a civil or court process that decides if the asset is forfeited and actually awarded to the government. It is true that removing the financial incentive from law enforcement agencies would slow down and even stop asset seizure efforts in some jurisdictions. If the legislation was to change and law enforcement agencies were no longer allowed to keep the assets they seize, we at the Sheriff’s Office would continue to provide law enforcement services at a high level. There are assets we would not have and our abilities to combat crime would be more restricted. We would have a much higher reliance on tax payer based funding for programs that are expensive and that the public would agree are necessary for a large and modern law enforcement agency. I believe that the requirements found in the legislation should be more in line with the policy described previously and that Police Chiefs, Sheriffs, and District Attorneys should be audited regarding their acquisition and use of the fund. If a drug dealer can fund a necessary law enforcement purchase or program, instead of it being funded by a tax payer, I think that is a good application and something we need to take full advantage. If the agency head uses the fund in a manner not consistent with the law or the values of his constituency, then he should be held accountable by the law or through the political process. As your Sheriff, I would welcome public transparency and scrutiny of the account to include how the money was attained as well as how it was spent.