SPECIAL LEGISLATIVE BRIEFING ON CRIMINAL JUSTICE
Texas Can Protect Public Safety and Save Money by Not Building More Prisons
► Through key legislation and prioritizing alternatives to prison in the budget, lawmakers can avoid spending billions
of taxpayer money on new prisons over the next decade. Moreover, this can be accomplished solely by focusing on
alternatives to incarceration for nonviolent, low-level drug offenders and parolees who commit administrative
violations, such as missing a meeting or going outside of their zone. The Senate budget proposes 3,900 new prison
beds while the House budget envisions no new prisons, although both budgets fund thousands of additional beds in
secure intermediate sanctions and treatment facilities. These new prison beds would cost at least $233.4 million to
construct and another $750 million to operate over the next ten years, totaling nearly $1 billion dollars.
► SB1909 by Senator Rodney Ellis and SB838 by Criminal Justice Chairman John Whitmire have both passed the
Senate, and SB1909 has been approved by the House Corrections Committee. SB1909 will divert thousands of
nonviolent, low-level drug possession offenders into treatment while SB838 will redirect parolees who commit
technical violations and misdemeanors into intermediate sanctions facilities.

SB1909 Model
B efo re
R e ce ive s

TD CJ
(ID , S tate Jail, S A F P )

R e le a ses

P o p u la tio n o f
e x-o ffe n d e rs

A fter
R e ce ive s

TD CJ
(ID , S tate Jail, S A F P )

R e le a ses

P o p u la tio n o f
e x-o ffe n d e rs
Η
Η

O ffe n se e lig ib ility filte r
P re vio u s co n victio n filte r

revo ca tio n s

n orm al
term ina tio n

10%

P o p u la tio n o f
D iverted
e x-o ffe n de rs

S cen ario A : 3 9 % ine ligib le d u e to pre viou s co n victio n
S cen ario B : 7 5 % ine ligib le d u e to pre viou s co n victio n

P rob ation D ive rsion

SAFP

TTC

5 .0 %
5 .0 %
5 .0 %

IS F

CCF

C oun ty
Ja il

Texas Public Policy Foundation ● Center for Effective Justice ● Marc Levin, Director ● mlevin@texaspolicy.com ● www.texaspolicy.com

SB838 Model
~ 7 9 ,0 0 0

B e fo re

R e v o c a tio n s

TDCJ
(ID , S ta te J a il, S A F P )

P a ro le

~ 1 5 % /y e a r

$ 3 .5 1 p e r d a y

A fte r

A v e ra g e te rm
is 5 y e a rs

R e v o c a tio n s

TDCJ
(ID , S ta te J a il, S A F P )

P a ro le

A v e ra g e IS F s ta y is
120 days

T e c h n ic a l v io la tio n s
re p re s e n t a p p ro x im a te ly
2 2 % o f a ll re v o c a tio n s

IS F

$ 3 5 .2 7 p e r d a y

1 2 % o f te c h n ic a l v io la to rs a re in e lig ib le
(s e x o ffe n d e rs a n d “s u p e r-in te n s iv e s ”)

TPPF and LBB Figures Show Diversion Legislation Results in
Significant Capacity Relief and Savings
Texas Public Policy Foundation Estimates of Diversions 2003-2007
Had SB1909 and SB838 in Place From 2003 to 2007, We Would Be Well Under Capacity Today
SB838: 3,637……SB1909: 5,407……Total Diversions: 9,044

Legislative Budget Board Projections 2008-2012
LBB Finds Total Prison Beds Saved in 2012 As a Result of SB1909 and SB838 Equals 19,954,
Exceeding LBB’s January Projection of 17,332 Bed Overflow by 2012
January 2007 Forecast
Fiscal
Year
2008
2009
2010
2011
2012

Incarceration
Population
Projection
155,652
158,632
161,288
163,812
167,182

Contract
Bed
Demand
4,818
7,798
10,454
12,978
16,348

Internal
Operating
Capacity
150,834
150,834
150,834
150,834
150,834

Decrease in Demand for
Prison/State Jail Capacity
Senate
Bill 838

Senate Bill
1909

House
Bill 1678

932
3,203
5,227
6,634
7,773

1,916
6,868
9,019
10,008
10,778

490
1,403

Texas Public Policy Foundation ● Center for Effective Justice ● Marc Levin, Director ● mlevin@texaspolicy.com ● www.texaspolicy.com

► The LBB fiscal note indicates that SB1909 will produce net savings of $112.3 million to the state this biennium,
$243.1 million in the 2010-11 biennium, and $493.5 million through 2012. The fiscal note also states that this bill
would divert 7,693 low level drug possession offenders who have not previously committed another type of felony
every year from prison into intensive treatment and probation. This estimate assumed that all drug possession
offenders with a past felony would be excluded. In fact, the bill allows for, but does not require, the exclusion of a drug
possession offender with a prior conviction of any crime other than drug possession or fine only traffic misdemeanor.
The LBB also assumed that treatment would consist only of outpatient treatment at a cost of a $3.64 per day for those
offenders who cannot meet the requirement that they pay for their own treatment.
► In contrast, our estimates assume that, on average, offenders would be placed in 90 days of residential treatment at a
rate of $69 per day (Texas Department of State Health Services) following their average of 90 days of outpatient
treatment. Like the LBB, we assumed that half of the offenders would be unable to pay these costs themselves. Also,
our depiction of SB1909 above and calculations build in failure rates, whereby some of the offenders diverted to
probation and treatment under SB1909 are revoked or placed in a facility like an ISF—for the first time, probation will
have access to some of the 1,400 new ISF beds being budgeted. Accordingly, our estimated savings of $80.6 million
from 2003-2007 had this policy been in place are less than the LBB projection for both this reason and the fact that
there will be more total diversions in future years due to the increased number of convictions every year. In all
likelihood, the savings will be between $80.6 million and the $493.5 million forecasted by the LBB, but it is important
to note that neither estimate includes the avoided cost of building new prisons. Just as importantly, the public policy
goal of SB1909 is not simply to maximize savings, but to achieve those savings that are consistent with also providing
for the types of diversions, including residential placement where necessary, to protect public safety and offer the
intensive rehabilitation that is needed to keep some of the most severe drug addicts from re-offending.

2008-09 Budget Supports Diversion Strategies
► The conference committee budget will provide significant resources to support the diversion strategies, ensuring
that there is sufficient community-based capacity so that judges have the resources at their disposal needed to make the
diversions effective.

Strategy
Probation Residential Treatment
Substance Abuse Felony Punishment
Parole Halfway Houses
Intermediate Sanction Facilities
In-Prison Therapeutic Treatment
DWI Treatment
Mental Health Pretrial Diversion
Probation Outpatient Treatment
State Jail Therapeutic Treatment
Transfer of TYC Units

Senate
800 new beds
1,800 new beds
600 new beds
1,400 new beds
1,500 beds/slots
500 new beds
1,500 new clients
2,894 new clients
1,200 offenders
1,200 beds

House
475 new beds, 125 mental health beds
800 new beds
150 new beds
1,400 new beds
400 beds/slots
---1,500 new clients
5,500 new clients
--1,200 beds

Recent Increase in Parole Rate and Better Utilization of County Jails and Private
Facilities Relieve Capacity Pressures
► The parole rate has increased from 26 percent to 31 percent. The last projections released by Legislative Budget
Board in January 2007 were based on a 26 percent parole rate. Since then, the Board of Pardons and Paroles has
enhanced its efforts to meet its own guidelines for the parole of nonviolent, low-risk offenders. According to the
Council of State Governments report by Dr. Tony Fabelo, on ongoing 31 percent parole rate would itself clear out the
backlog by 20121, but more realistically, a historically realistic parole rate of 28 percent combined with key reforms
1

See http://justicereinvestment.org/files/TX%20mid-term%20report_9%20final.pdf.

Texas Public Policy Foundation ● Center for Effective Justice ● Marc Levin, Director ● mlevin@texaspolicy.com ● www.texaspolicy.com

will be more than sufficient to eliminate the need for new prisons through 2012. The budget proposals for expanding
IPTC beds and halfway houses will support more efficient parole release because there are regularly between 500 and
1,000 inmates who have been paroled, but are not released either because of a waiting list to get into the six-month
IPTC program as a condition of parole or a waiting list to get into a halfway house.
► Given that there is always a potential for estimates to be inaccurate, the state can lease beds from private operators
and county jails. Pending legislation would free up more space in county jails. The House passed and the Senate
Criminal Justice Committee is now considering Chairman Madden’s HB198, which would increase the artificial caps
on capacity at existing private correctional facilities. Also, Madden’s HB2391 could free up thousands of beds in
county jails by allowing officers the discretion to issue a citation and notice to appear for minor Class B
misdemeanors.

Alternatives to Prison Are Proven to Work
► These strategies have been proven to reduce recidivism. A Criminal Justice Policy Council study found that SAFP
and IPTC reduced recidivism and resulted in $1.56 in savings in prison costs for every $1 spent.2
► Policies similar to SB1909—the diversion of nonviolent, low-level drug offenders into treatment—have proven
successful in other states. For example, after Arizona redirected nonviolent, low-level drug addicts from prison into
treatment through a plan similar to SB1909, an Arizona Supreme Court study found 77 percent of participants
successfully completed treatment and beat their addiction.3 The national Drug Abuse Treatment Outcome Survey of
10,000 participants found that residential treatment resulted in a 50 percent reduction in drug use and 61 percent
reduction in crime while outpatient treatment resulted in a 50 percent reduction in drug use and 37 percent reduction in
crime.4 The National Institute on Drug Abuse (NIDA), Director concluded, “Research findings show unequivocally
that drug treatment works.”5 Community-based treatment is most effective because a family and support network is
often present, and offenders can be reintegrated into productive educational and employment opportunities.
► On SB838 and the issue of parole revocations for technical violations, Dr. James Austin of JFA Associates, who is
advising the Board of Pardons and Paroles, has found that there is no evidence that parolees who commit technical
violations are more likely to commit another crime than other parolees. Under SB838, these offenders would
nonetheless be secured in nearby Intermediate Sanctions Facilities (ISFs) that provide substance abuse treatment,
which was recently added to most existing ISFs. Such placements could last up to a year, though we assume the
average would be 120 days.

Conclusion
► In light of the current parole rate in 2007 and the new diversion funding in both budgets, the capacity shortfalls
projected by the LBB through 2012 will not occur, based on the new projections done by the LBB and released by the
Council on State Governments. However, given that the parole rate can fluctuate, policy changes such as SB1909 and
SB838 are needed to ensure that existing prison capacity remains sufficient. If both of these bills are implemented, the
parole rate averages a historically realistic 28 percent, and the currently envisioned budgetary support for diversion
strategies is finalized, taxpayers will not only avoid $1 billion in costs associated with new prisons, but the state can
discontinue leasing several thousand county jail beds, resulting in hundreds of millions of additional savings—all
while protecting public safety.

2

See http://www.lbb.state.tx.us/PubSafety_CrimJustice/6_Links/SA3TR.PDF.
See http:// www.justicepolicy.org/article.php?id=24.
4
See http://www.oregon.gov/DHS/addiction/outcome-flyer.pdf.
5
See http://www.nida.nih.gov/Testimony/2-8-06Testimony.html..
3

Texas Public Policy Foundation ● Center for Effective Justice ● Marc Levin, Director ● mlevin@texaspolicy.com ● www.texaspolicy.com