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Stats Show Racial Inequities for Organized Retail Theft Arrests Statewide

Let’s say I wanted to steal an Xbox from Fry’s (or any other retail store). Maybe it’s for a thrill, a dare, voices in my head, or maybe I just want to eat Cheetos all day and play video games on my sofa. Whatever the reason, it is unimportant.

I have committed theft—this is obvious. But, were you aware I also committed Organized Retail Theft (“ORT”)? TEX. PEN. C. 31.16(b) provides:

A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells or disposal of . . . (1) stolen retail merchandise.

Arrests for ORT under these circumstances aren’t theoretical, either. Dr. Michael Braun is a statistics professor from SMU’s Cox School of Business. He recently completed a comprehensive study published in the Journal of Empirical Legal Studies (JELS) which found not only were there thousands and thousands of arrests made for organized retail theft where the amount stolen was consistent with ordinary shoplifting—but also racial minorities are bearing a disproportional share of the arrests.

Dr. Braun studied over 110,000 organized retail theft arrests and ordinary thefts through open records from police agencies around the state. He found an African American is twice as likely as a white person to be arrested for ORT. His research found that African-American females are 160% as likely as a white person to be arrested for ORT. At least 30 police agencies showed racial disparities in their arrests based on Dr. Braun’s statistics and research.

There were unsuccessful attempts made this past session in the Texas House and Senate to make the Penal Code consistent with other states’ treatment of Organized Retail Theft. State Representative Jessica Gonzalez (D–Dallas) and State Senator Royce West (D–Dallas) filed bills in the House and Senate to amend the definition of ORT. However, Lieutenant Governor Patrick did not allow Senator West’s bill to reach the Senate Floor, thereby effectively killing it for this session. The proposed fix would install a $2,500 threshold to ORT amounts and would also require the stolen property to be possessed with the intent for the property to be re-distributed.

The Court of Criminal Appeals has weighed in on the issue, too, holding ordinary shoplifting, in and of itself, cannot be organized retail theft even with the bizarre language under 31.16(b). See Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 11/22/2018). This opinion expounds the need for the statute to be fixed.

Dr. Braun’s full article can be read at the following link: shorturl.at/iuET5.

Voting Rights of Felons

A felony conviction may result in the loss of voting rights in Texas… But not forever.

A person who is convicted of a felony in the State of Texas is not eligible to register to vote—or to vote in an election if already registered—until he or she has successfully completed his or her felony sentence.

This includes any term of incarceration, parole, supervision, period of probation, or pardon.1 He or she must also register to vote at least 30 days prior to an election date to be eligible.2 Voting illegally in Texas is a second-degree felony punishable by up to 20 years in prison.3

Can some persons adjudicated of or charged with a felony vote?

Yes. A qualified registered voter without a “final felony conviction” or adjudication of guilt may vote under certain circumstances:

A conviction on appeal is not considered a final felony conviction. A person confined in jail “pending trial or an appeal of a conviction after denial of bail or without bail, or where release on bail before election day is unlikely” may apply for a ballot by mail.4

“Deferred adjudication” is not considered a final felony conviction.5

“Mere prosecution, indictment, or other criminal procedures leading up to, but not yet resulting in the final conviction, are not final felony convictions.”6

In 1997, George W. Bush, as Governor of Texas, also restored voting rights to ex-offenders upon completing their felony sentences when he signed legislation that eliminated the two-year waiting period for felons, after conclusion of their parole, to vote.

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