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Will Simpson's pat-down bill stay grounded in Legislature?

By Glenn Evans
April 10, 2013 at 10 p.m.


State Rep. David Simpson of Longview presented a bill Wednesday that two years ago drew national attention - along with a federal threat to make Texas a no-fly zone.

Simpson's so-called pat-down bill - which focuses on invasive airport searches - came close to passing in 2011. He vowed in the interim to re-file the bill, which he did as soon as allowed in November.

"Citizens are being humiliated, and the most private areas of their bodies are being touched," the Republican representing Gregg and Upshur Counties said Wednesday in laying out his measure to criminalize law enforcement searches that are deemed intrusive.

His bill - also called the groping bill - says all law enforcement or government agents must have probable cause to search a traveler's most private areas or face a misdemeanor charge of official oppression.

"If it's not probable cause, they go to jail," Simpson told the House State Affairs Committee in laying out his House Bill 80.

The bill was left pending in the committee after about 45 minutes of testimony. The action is routine for measures when a committee wants more time to consider witness testimony and other evidence.

"I'm hopeful," Simpson said later Wednesday. "I think there's definitely some support on the committee - I don't know how widespread."

He noted that all but three members of the 13-member panel were co-authors of the bill in 2011. Five witnesses, representing personal rights or libertarian groups, testified in favor of the bill. No one testified against it, though a committee member had noted the Transportation Security Administration had declined an invitation to testify.

In laying out the measure Wednesday, Simpson recounted searches he has witnessed or been told about, including that of a veteran forced to remove a prosthetic leg.

"And he was humiliated, seeking just to get on a plane," Simpson said during the committee hearing in Austin.

Simpson said TSA agents at airports separate children from their parents or guardians against those adults' wishes to conduct pat-down searches.

He said he is grateful for the federal government's goal to protect travelers, but offended by what he said are intrusions on personal privacy in many instances.

"And this is focused on both the state and federal government," he said, in part responding to a bill introduced immediately before his that would allow Texas airports to opt out of federal security for a state-run version.

<strong>'Same problems'</strong>

Committee member Rep. René Oliveira, D-Brownsville, recalled how a U.S. attorney in 2011 had warned of consequences if Texas exposed TSA agents to potential criminal charges.

"I know you're sincere," Oliveira told Simpson. "I think this needed to be exposed, but at the same time, we ran into considerable problems with being threatened with the withdrawal of federal money. Aren't we going to face those same problems?"

"I know," Simpson replied, "They basically threatened to make it a no-fly zone in the state."

Witness Heather Fazio, executive director of Texans for Responsible Government, later welcomed the federal challenge.

"Quite frankly, I dare them to create a no-fly zone in the state of Texas," she said. "Because they're not going to do it. They are waiting for us to back down."

Witness Jared Atkinson, a Dallas County GOP precinct chairman testifying for himself, said Simpson's bill would boost Texas tourism.

"Because people will realize they are not going to get molested when they go to Texas," Atkinson said. "They can come to Texas without being violated."

Searches by dogs and metal detectors are allowed under the bill, Simpson added. Agents also could search intrusively if they have probable cause, a phrase describing a reasonable suspicion of illegal activity.

<strong>Probable cause</strong>

Rep. John T. Smithee, R-Amarillo, asked Simpson how TSA agents, who are not certified law enforcement officers, would know when they do or don't have probable cause.

Simpson agreed TSA workers are not certified officers, but added any witness is allowed to swear out an affidavit alleging criminal activity.

Simpson listed "suspicious activity" and "nervousness" as examples that would alert TSA agents that a crime potentially was being committed. Under further questioning by Smithee, he said a name indicating Arab descent would not equate to probable cause, but a name that was similar to any name on the no-fly terrorist list would prompt more questions.

"Their training would take care of this," he said. "And they receive a lot of training."

Simpson's bill won House approval two years ago but died in the Senate after U.S. Attorney John Murphy wrote a letter to Lt. Gov. David Dewhurst saying the bill could result in flight cancelations.

"(Transportation Security Administration) would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew," Murphy wrote at the time.

The U.S. Attorney's Office subsequently refused a 2011 News-Journal request for a copy of the full letter.

"He's resigned," Simpson said Thursday of Murphy. "That was all, in my opinion, done to be sprung right as it hit the Senate floor."

Simpson said in 2011 that Dewhurst "blinked" under the federal attention.

A News-Journal open records request to Gov. Rick Perry revealed his office fielded more than 10,000 phone calls, emails and other correspondence, from May 16 to June 20 of 2011 in favor of Simpson's bill.

There were 13 messages opposing the pat-down bill.

That could have played in Perry's decision to designate the bill a priority when he called a special session for June 2011.

That month, Perry was on a book-signing stop in Florida when he was videotaped saying the bill would not pass despite 112 co-authors in the House and two weeks remaining in the special session.

"The governor was either ignorant or misinformed or did not tell the truth when that man talked to him at the book table," Simpson had said after the special session ended.

Meanwhile, House Speaker Joe Straus labeled the 2011 measure a mockery.

On the last day of the 2011 special session, Simpson accepted a Senate version of his bill in order to beat the session deadline. However, he needed a four-fifths majority to override the constitutionally required third reading before passage.

That override needed 120 of the 124 lawmakers still working that final day. The vote was 96-26-2. The journey of the pat-down bill featured prominently in a scathing "personal privilege speech" with which Simpson then closed out his freshman session.

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