Madden Proposes Constitutional Amendment To Allow Wage Garnishment For Restitution In Criminal Cases Creates Slippery Slope

A Plano lawmaker has introduced legislation which would put a constitutional amendment before voters to allow a person’s wages to be garnished for the payment of restitution in a criminal case.

The legislation, House Joint Resolution 80, and accompanying enabling lesiglation (HB 2373) by State Rep. Jerry Madden (R-Plano) would allow up to 50 percent of a person’s disposable income be garnished from their paycheck to pay restitution in criminal cases.

A constitutional amendment to allow the practice is required because the Texas Constitution, since 1876, has protected wage-earners paychecks from creditors. Since 1876, the constitution has been amended only twice to allow for exceptions. More than 100 years after the constitution was ratified, the first amendment to allow for garnishments was passed by voters. Proposition 6 gained overwhelming voter approval in 1983 to allow wages to be garnished to pay child support. Texas voters approved Proposition 7 almost a decade ago (by a much more narrow margin) to allow for spousal maintenance or alimony to be deducted from a wage-earner’s check by garnishment.

Madden authored similar legislation during the 80th Texas Legislature, but it never reached a vote in the House. The legislation filed in the past two sessions is the first attempt in almost a decade to alter the state’s long tradition of protecting wages from attachment by creditors or the government.

While a Texan may be subject to garnishment for federal obligations such as failure to pay student loan debts, it is the only state other than North Carolina, South Carolina, and Pennsylvania with prohibitions on wage garnishment–excluding federal obligations and child support or alimony, or taxes (a practice some states allow).

Although the 1983 amendment to allow for garnishment of wages for child support was passed by voters easily–after all, Texas law recognizes the right of children under 18 to receive support from both parents–Texans have an historic aversion to wage garnishment provisions, and for good reason.

One problem with Madden’s constitutional amendment is that, if passed, it would open the door for what the House Research Organization called in 1983 [.pdf], “a precedent for profiteering creditors to use in seeking further exceptions to the ban on garnishment.”

While no lobbyist in Texas has yet been successful in getting a member of the Texas Legislature to author a constitutional amendment to expand the wage garnishment provisions since 1983–save for alimony–the tough economic climate facing the state in the next few years could finally erode the final sentimental barriers that have to date kept such legislation off the floor of legislative chambers.

After all, more and more companies in Texas and across the nation are in financial trouble because of bad debts. It would be to their advantage–although not to consumers’ advantage–to get the legislature to pass on to voters a constitutional amendment allowing wage garnishment for debts of all kinds such as exist in many other states. As we have seen with other legislation, greasing the wheels of the legislative process with piles of cash can help make almost any idea get translated into the paper reality of a bill or HJR.

In that same vein of argument, allowing garnishment for restitution in criminal cases opens a Pandora’s Box from which all government entities in the state owed a debt can push for similar exemption legislation and amendments. For example, appraisal districts and school districts could push for a garnishment for payment of delinquent property taxes, counties can push for legislation to allow garnishment for unpaid civil court fees associated with judgments and lawsuits, and an alphabet soup of state agencies and commissions with permitting authority over everything from plumbers to political candidates could push for garnishment to pay administrative fines and penalties and even delinquent permit or license fees.

On a more human level, Madden’s legislation could force another class of Texans into poverty (or, rather, further into poverty). While it is understandable that the public should give no quarter to intoxicated drivers who injure a motorist or someone who steals your television set or stereo to buy drugs, it should be realized that state law already exists to punish offenders who do not appropriately pay their restitution as ordered by the state’s courts: their probation can be revoked and they can be sent to jail.

Assuming that a person convicted of a felony or misdemeanor is already required to pay necessary restitution under existing judgments, such are typically paid monthly. And, it may well be that the person who is paying such restitution can’t afford to pay that restitution out of their paycheck because, let’s face facts: the job market for convicted drunk drivers and convicted drug offenders isn’t exactly rosy. For all the Legislature knows, someone convicted of those offenses may have taken to collecting and selling aluminum cans in order to pay their court ordered restitution. And, if they don’t pay the restitution, they will end up in jail anyway.

Madden’s legislation would serve to punish the families of convicted offenders more than it would punish the offenders themselves. Offenders who are paying their restitution in good faith have probably had to alter their personal budgets to do so; taking the money from their paychecks simply forces them to alter their budget again and could mean less food for their families or less money for rent, depending upon how they arranged their budget to pay their fines and restitution.

There are other issues at play, as well.

Although the Texas Code of Criminal Procedure at Article 42.037(f)(1) specifies that, “The court may not order restitution for a loss for which the victim has received or will receive compensation only from a source other than the compensation to victims of crime fund.  The court may, in the interest of justice, order restitution to any person who has compensated the victim for the loss to the extent the person paid compensation.  An order of restitution shall require that all restitution to a victim or to the compensation to victims of crime fund be made before any restitution to any other person is made under the order,” Texas courts have, on many occasions, required that restitution be paid to the insurance companies who actually paid money to victims of crime. Nevertheless, some prosecutors offices have made it a practice to make sure insurance companies are reimbursed, while some do not.

The amendment would open the door for insurance companies to jump on the restitution gravy train more often because they know now they’ll be able to get restitution through garnishment.

Too, Madden’s bill also opens up a gray area between employer and employee privacy. Many times, employees with a criminal conviction they have obtained while employed don’t let their employers know about that conviction. This amendment would equal an involuntary disclosure requirement. While the legislation as written provides protections so employees aren’t fired as a result of the knowledge an employer gains as a result of a garnishment–and prevents hiring discrimination because of such garnishments–it would be difficult if not impossible to prove such a case since a smart employer would actually find another reason to fire an employee. Thus, the bill would create a flood of jobless people who, although given the right to sue their employer under the legislation for firing them as a result of the garnishment, would have cases that would be almost impossible to prove to a jury’s satisfaction.

In addition, the bill creates yet another unfunded mandate for county governments. County governments that typically process restitution payments along with fines and fees regularly paid by people on probation would now be faced with floods of checks coming in that have to be processed and properly credited. Even in the smallest of probation departments in terms of case load, such a task would require an additional employee or two.

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