Wednesday, October 9, 1996

Anti-stalking proposals coming from Texas lawmakers By ANNA M. TINSLEY
Harte-Hanks Austin Bureau

AUSTIN - Tough new anti-stalking proposals will be among the first legislation to be filed by state lawmakers as efforts increase to protect Texans from being terrorized by stalkers.

For weeks, state lawmakers and attorneys have been hammering out a new version of the law that was recently declared unconstitutional by Texas courts.

This week, they are close to finishing the first draft of new legislation to clear up problems found in the previous law. State Rep. Brian McCall, a Plano Republican who has led anti-stalking efforts, has vowed to file the new bill on the first day of filing, Nov. 11.

"Stalking is a behavior that won't be tolerated in the borders of Texas," McCall said. "It's abnormal, it's terroristic and it's wrong. There will be swift and certain consequences for that behavior.

"If there's a role for government, it's to allow people to live their lives peaceably," said McCall, who began working on anti-stalking bills after one of his employees was emotionally terrorized by a stalker. "This measure will force some to give that back."

The Texas District and County Attorneys Association has worked with anti-stalking supporters to create a new draft of the bill.

They have reviewed anti-stalking laws in other states and studied the Court of Criminal Appeals opinion that overturned the Texas law, said Rob Kepple, general counsel for the association.

All states have enacted stalking laws, although some of the early statutes - including those in Texas and Minnesota - have been struck down by the courts. Texas' Court of Criminal Appeals overturned the state's 1993 anti-stalking law earlier this year.

The law first was found unconstitutional by the 5th U.S. Circuit Court of Appeals in 1983 because of vagueness. State lawmakers tightened up the language in 1993, but the court said the current law was, in ways, more broad than the previous statute.

The court ruled the law unconstitutional in the case of an Austin man stalking a woman. The judges said the vagueness of the bill - including use of words such as "annoy" or "alarm" - could take away First Amendment rights in some cases.

"The court was concerned that those words reflect very minimal activity," Kepple said. "We had to be careful to not use minimal terms, and they had to be taken out of the statute."

Other language to be added will show that stalking incidents against a person - whether great or small - are connected. "The state will have to prove a person was doing this in a scheme of conduct," Kepple said.

The ruling said the law must be clear enough for a person of ordinary intelligence to know what is prohibited; it must include guidelines for enforcement; and it must not infringe on First Amendment rights.

"This (new bill) should be fairly well tailored to Texas," Kepple said, adding that a copy of the draft was taken to the Texas Criminal Defense Lawyers Association this week for review.

The original statute - the only one in the state to specifically address stalking - made stalking a Class A misdemeanor on a first conviction and a felony after that. The rewrite will do the same, Kepple said.

Until a new law is passed, prosecutors will rely on other state laws, such as those prohibiting harassment, assault and threats, to protect stalking victims.

"Right now, we in Texas have no definition of stalking," said Sen. Mike Moncrief, D-Fort Worth, who is leading anti-stalking efforts in the state Senate. "And consequently, we find ourselves in a rather unique position.

"Certainly the message this sends to victims is a chilling one. That's why (state officials) are identifying this as a true emergency that needs to be addressed as soon as the gavel goes down and we are called into session."

Gov. George W. Bush has vowed to designate anti-stalking laws a legislative emergency so state lawmakers may take quick action to restore protection for stalking victims when the Legislature meets in January.

Typically, committees can't review bills in the first 60 days of the session. By declaring this an emergency, Bush waives those 60 days. That will let committees immediately review the bill and send it to the floor sooner than they would have otherwise, Bush spokesman Ray Sullivan said.

Concern over constitutionality of anti-stalking laws prompted Congress to develop a model stalking code that could withstand constitutional scrutiny.

Recently passed federal legislation makes it a crime to cross a state line to stalk a person. Stalkers convicted under the federal law face five years in prison for harassment - and life in prison if they kill their victim.

The anti-stalking law is meant to prevent unwanted admirers from threatening their victims with their presence and contact.

"I hope we are able to clarify the court's concerns and to bring a product to the governor's desk that will pass constitutional muster," Moncrief said. "We have a responsibility to the victims of the state to get this law fixed, to get it back on our books and to give them the protection they are entitled to receive."