Long but worth the read

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HOME: SEPTEMBER 10, 2010: NEWS

Sex Offenders Exposed
Sex offender laws are supposed to punish ‘predators’ and promote public safety. Critics argue that they increasingly produce precisely the opposite effects.
BY JORDAN SMITH



Henry met Sarah in the summer of 1994, when he was 19 years old. They lived in the same small New Jersey town but hadn't met until Henry was two years out of high school, living with a friend's family. "It was a transitional period," he recalled recently. "I was trying to figure out what I wanted to do with my life." Henry (fearing retaliation, he asked that we not use his real name) met Sarah (also not her real name) through a friend at Sarah's family home, which Henry says was a "social center. A lot of kids hung out there." He met Sarah's siblings and parents, and before long the two were dating; Sarah was 16, he says he was told. Henry didn't think much of the age difference and neither did her parents. They saw each other regularly, and her family included Henry in their outings – including a trip to Six Flags Great Adventure. That summer day, they'd piled into the family van for the trip to the amusement park; on the ride Henry and Sarah held hands. They'd kissed and touched but never took their affections any further, he says.
Then Sarah ran away from home; it wasn't the first time. "There were domestic problems," Henry recalls, "and she ran away a lot." Looking for the girl, the local cops contacted Henry. They asked Henry's age and peppered him with questions about their relationship. "We didn't have a sexual relationship; that was my saving grace," he said. Yet in the end, that "didn't matter." As a result of that investigation, Henry was charged with "sexual contact" with a minor for "fondling outside of the clothes," he said. As it turned out, Sarah was just 14 – a fact that surprised Henry. He had no idea she was that young; he had no reason to think she was not as old as she'd said.
The charge was a fourth-degree misdemeanor in New Jersey, and as a result of a plea bargain – Henry took the deal because he'd been told if he didn't he would get jail time – he was given 18 months probation and was required to register with the police as a sex offender for 10 years. Notably, under New Jersey law he was registered on a database of offenders that was private and used only by police. Henry completed his probation and complied with the registry requirement – updating his personal information and address at designated intervals. His case didn't get through the system "until 1997, so I didn't start the list until 1997," he said. "In 2007, it would've been 10 years, and it would've been over."
And then, in 2004, he moved to Texas.
When he was preparing to move south to be closer to his new wife's family, he checked in with police. They told him that because his charge was so minor they weren't sure he'd have to be listed on Texas' sex offender registry, and that even if he did have to register, his information would remain on a list compiled for police eyes only. "The police told me that it would be private," he says. "They lied." Not only are Henry's name and addresses – including that of his employer – now listed on the wildly expanding Texas sex offender registry, but even though New Jersey considered his offense a low-level misdemeanor, under Texas law the charge is considered a felony offense of "indecency with a child." As a result, he would have to have his personal information listed, publicly, for life. When he balked about the arbitrary change in terms, he says he was told that if he didn't like it he should "feel free to leave Texas."
Who Is Dangerous?
Henry's story is not an uncommon one, says Mary Sue Molnar, founder of the nascent sex offender law reform group Texas Voices. Molnar's son is in prison for what she says was a consensual sexual relationship with a girl six years his junior. In the wake of her son's conviction, Molnar began doing research on sex offender laws, about which she then knew nothing; what she found she calls "un¬be¬lievable." Indeed, in Texas and across the nation in the late Eighties and early Nineties, lawmakers expanded the number of crimes considered sexual in nature, increased the consequent punishments, created onerous probation and parole restrictions and requirements for sex offender treatment, and vastly expanded the number of people who would also be required to register publicly as "sex offenders."
The original idea for increasing penalties and restrictions, and for creating the public registry, was that harsh punishment and the public branding of offenders would enhance public safety – saving children, especially, from falling victim to sexual predators. In practice, however, the rapid expansion of crime and punishment in this area of the law has created a clumsy system that has diluted those original intentions beyond recognition. As of March 1, there were nearly 63,000 persons on Texas' public database administered by the state's Department of Public Safety, which adds roughly 100 new names to the list each week. The database includes not only serial rapists and pedophiles but also thousands of offenders like Henry and like Molnar's son, whose conduct, while considered criminal because the girls involved were younger than the legal age of consent (in Texas, that's 17), is hardly as alarming as that of a middle-aged man with a demonstrable sexual penchant for prepubescent girls – the sort of predator that in theory the laws target.
The registry now includes not only these "Romeo and Juliet" cases – youthful, consensual relationships – but others caught in the criminal justice web for things such as indecent exposure (which also includes the "poor drunk" popped by police while urinating behind a 7-Eleven in the middle of the night, says attorney Bill Habern, a veteran Texas pardon and parole specialist); it has never been retooled to differentiate among offenders and their offenses. So the crimes of serial rapists and pedophiles have been conflated with much more minor offenses under the catch-all term "sex offender," leading many to believe that everyone listed on the registry is in fact worthy of continuing public scorn and fear. "The public in general only hears, 'He's a registered sex offender.' Through ignorance, they believe that is synonymous with 'sexual predator,'" says Austin Police Department Lt. Greg Moss. "Registered sex offenders are not only sexual predators."
An expert on the enforcement of the state's sex offender laws, Moss is the former supervisor over the APD's Sex Offender Apprehension and Registration Unit, a three-detective squad tasked with keeping track of more than 1,500 sexual offenders registered as living in the city of Austin – including Henry. Of those on Austin's list, Moss estimates that just 10% are "your sexually violent predators," those folks who "we should be proactively monitoring, to ensure they're abiding by probation and parole." But APD is responsible for monitoring everyone on the list – a task that is expensive and time-consuming and has very little, if any, positive impact on public safety.
Instead, a growing body of research on the effect of broad sex offender laws reflects that requiring thousands of individuals to register for increasingly long periods of time actually undermines public safety. "That's what the current science is telling us," says Liles Arnold, a sex offender treatment provider and chair of the state's Council on Sex Offender Treatment. Moreover, research also reflects that the restrictions placed on individuals by the municipalities in which they live – such as barring individuals from living near schools, parks, or in a home with young children, even if they're the offender's own children or siblings – create extensive collateral damage. "There are a growing number of registrants, not just in Texas but across the country," says Arnold. But there's no "delineation of who is dangerous or not."
While neither Molnar nor Henry, who is also a member of Texas Voices, argue that the state shouldn't be tracking individuals who are high-risk sexual predators, they do argue that current laws trap too many people and do much more harm than good. In short, the state should make sure that it stays true to the original intent of the registry and other sex-offense-related laws – such as by creating viable ways for some to earn a way off the registry. But the ability of the state to actually create a path to deregister people is currently stalled. At issue instead is whether the state will move in 2011 to implement the Adam Walsh Child Protection and Safety Act, a federal law passed four years ago that would, in essence, require the state to again expand its registry while making it even more difficult for low-risk offenders, like Henry and hundreds of others who are among the ranks of Texas Voices, to earn a chance to escape the list.
The political tide may finally be turning. There were once very few voices at the Capitol decrying the extremely punitive consequences of sex offender laws, and even fewer were the voices of former offenders whose lives have been permanently damaged. That's now changing, says Huntsville attorney Hab¬ern, as advocacy groups established by former sex offenders are beginning to appear. One is Texas Voices, which Molnar started in 2007. What began with just a handful of participants has grown to include 600 active members and more than 1,800 who have signed on to a petition to support reforming Texas law. "This tells me that there are hundreds of families out there suffering," says Molnar. "There are hundreds that don't know what else to do to deal with the mess that's been created."
Invisible Sanctions


Members of Texas Voices started by San Antonio mother Mary Sue Molnar (c) at the Capitol
Photo by Jana Birchum
Seven-year-old Ashley Estell disappeared from a Plano playground on Sept. 4, 1993. The following day her body was found on the side of a road, six miles away; she had been strangled. Police quickly found and charged with the crime 23-year-old Michael Blair – he'd been seen driving past the site where Estell's body was dumped with several teddy bears in his car, and prosecutors later said that hair found at the crime scene was a match to his. Although Blair proclaimed his innocence, he was convicted of capital murder and, after a 90-minute jury deliberation, sentenced to death.
Estell's murder prompted Texas lawmakers to get tough on those who would harm children and, although there was no evidence that Estell was sexually abused, to focus that toughness on laws aimed at punishing "sex offenders." At the time of Estell's disappearance, Blair, who'd previously been convicted of burglary and indecency with a child, was on parole. The facts surrounding Estell's disappearance and death combined with the facts of Blair's criminal history prompted state Sen. Florence Shapiro, R-Plano, to call for swift and strong action against sexual predators. "So that we may never forget the life that was lost and certainly the tragedy that occurred in Plano, I plan to call these Ashley's Laws," Shapiro told the Fort Worth Star-Telegram in 1994. "No community is safe while we have a broken criminal justice system. We always wait for the big tragedy before anything is done. Michael Blair should never have been free to roam that park."
In the years since Estell's death, Texas laws relating to sexual offenses and sexual offenders expanded dramatically. They now include more than 20 offenses considered sexual in nature, many of which will land a convicted person on the state's sex offender registry for life – indeed, one of Shapiro's successful bills made registration retroactive for individuals convicted of crimes dating as far back as 1970.
Have these laws made the public safer? The answer from a growing number of experts is a very firm "no." In fact, many researchers are now suggesting that these registration and public notification laws might actually harm public safety. In a recent study, Jill Levenson, a professor at Lynn University in Florida, and Richard Tewksbury, a professor at the University of Louis-ville, found that public disclosure also negatively impacts the families of sex offenders. "The public disclosure to which sex offenders are exposed is unprecedented, and therefore [registration and notification] is unique in the degree to which invisible sanctions are inadvertently imposed upon and experienced by the loved ones of offenders," they wrote. As such, these laws create "impacts that are broad, and ... deep and lasting. Family members, even those who do not live with [registered sex offenders], experience harassment, threats, violence, economic hardships, difficulties with housing, and psychological stresses simply because they are related to a sex offender," continues the study. "Whether intended or not, the criminal justice system, via [registration and notification] policies, extends punishments to a wide swath of society beyond sex offenders."
Many of these laws were rushed onto the books with little thought to their consequences and without the benefit of scientific research. What we thought might have been a good idea hasn't turned out that way – not unlike the way the Estell case turned out. Blair was exonerated in 2008 after new genetic testing proved that the hair from the crime scene was not his. Estell's real killer remains at large; the laws rushed onto the books in the wake of her murder remain – and, many argue, they pose a mounting problem for the state's criminal justice system.
Permanent Punishment
For the June 10 Texas Senate Committee on Criminal Jus¬tice meeting, the room was packed. On the agenda was the committee's first interim charge, to study the "efficiency and fairness" of the sex offender registry system and make recommendations for improving it "if necessary" and to consider whether Texas should implement the Adam Walsh Act. Among the more than 100 people in attendance were dozens from Texas Voices – so many that the committee had to open up an overflow room to accommodate the crowd. It was the best turnout so far for the fledgling group, which only started working Capitol halls during the 2009 session. Molnar, a gregarious 52-year-old mother of two from San Antonio, now spends her days fielding dozens of calls and letters and coordinating with Jan Fewell (a member from Williamson County, who joined after a friend of her daughter landed in prison for a "Romeo and Juliet" teen romance), who works tirelessly to investigate the veracity of the stories offenders share with the group.
Molnar recalls talking with attorney Habern when she was just beginning to get the group together. Don't be surprised, he told her, if this project never gets off the ground. It's a population of offenders so marginalized that they're unlikely to want to go public with their stories, he advised. Instead, the opposite occurred. "Once they find out that there are other people that understand, then they feel like it's OK and that people will understand what they're going through," Molnar said recently. "They start telling their stories, and they'll say, 'I've never told anyone this before.' And then they're inspired."
The ranks of Texas Voices have swelled in just two years to include some 600 active members – folks who come to meetings (now held in cities across the state), who call and write lawmakers to lobby for a more sober approach to sex offender laws, and who are willing to attend meetings at the Capitol and publicly share their stories. In a short period of time, Molnar says, she's learned a lot – including that many of these cases are not what they seem. "We know there are tons of falsely accused people out there," she says. And there are countless other cases "where it looks like one thing and then," when you hear the underlying facts of the case, "you find out it's something else."


Heather Kelley
Photo by Jana Birchum
That's certainly the case with Henry and with others just like him, including Heather Kelley's husband, who will also have to register for life, the result of a relationship he had with a 15-year-old girl when he was just 19. Peter (Kelley asked that we not use his real name) was still in high school when he met and began dating his "victim." He – like Henry and presumably thousands of other teens – had no idea that his youthful relationship could run afoul of criminal statutes. In Peter's case, a teacher turned him in after finding a note the girl had written, which included details of their relationship; the teacher told a counselor, who told police.
Peter took a plea bargain for five years probation and lifetime registration. He was doing fine to begin with, attending the weekly sex offender treatment sessions. But then, three years later, he got a DWI; he was sent to prison, where he spent four years and eight months. Since then, it's been tough for Kelley and Peter, who now have twin toddler sons. The onerous terms of probation – and the specter of being labeled for life as a sex offender – have really taken a toll on the family. Peter has a hard time finding any work; Kelley, who is disabled, cannot work. They've found few places where they can afford to live. And since getting out of prison, Peter has continued to struggle.
Peter completed his sentence on the original charge of sexual assault of a child but has since been popped for assault for defending his dad in a bar fight. Even though his latest trouble does not involve any sexual offense, as part of his current probation he must again attend sex offender treatment classes. He's now behind in paying for his treatment ($25 per week), and Kelley fears he's dancing dangerously close to having his probation revoked again. Although the U.S. Supreme Court has said that a person cannot be kicked back to prison strictly for falling behind in such payments, that doesn't seem to apply in Williamson County, say Molnar, Kelley, and others. All it takes, they note, is a single violation – including missing a treatment session – to trigger the revocation process. And some counties are more prone to take action. "When you're on sex offender probation they can always find a violation if they want to," says Molnar. Indeed, she says she was recently notified that one Harris County Texas Voices member is facing revocation for TV channel surfing and for sending an e-mail to a member of his Alcoholics Anonymous group; under the terms of his treatment contract he is only allowed to watch TV if he knows what channel he wants to watch, and he is banned from sending e-mails not work-related. "Come on; it's ridiculous," says Molnar.
The restrictions placed on many offenders take a toll. Kelley is convinced that Peter's subsequent troubles are a direct result of the burden of being branded a sexual offender. "Losing jobs, [offenders] can't pay for what they have to pay for, so they need welfare and they're filling up prisons," Kelley says of the plight of people in Peter's position. Peter has had to get "special permission to go to our church for the Easter egg hunt" because it is a place where children congregate, "and he can't go out on Halloween" with his kids. "He has to stay inside with the lights off." It's no wonder, she says, that he's depressed and has again found himself in trouble with the law. "If he had committed any other crime, he would have finished his sentence and they would've said, 'You're done,'" she notes. "Why is he suffering again for this same offense?"
A Broad Brush
The stated motivation for keeping such a tight leash on "sex offenders" is the belief that they are more prone to reoffend than other types of criminals. But that simply isn't true. First, there's the issue of who exactly commits sex offenses, especially those against children. Although a conceit of the law is that children are in danger of being assaulted by strangers, statistics show otherwise. According to the federal Bureau of Justice Statistics, 93% of assaults against children are perpetrated by people they know. Moreover, according to a 2003 report by the BJS, which tracked more than 272,000 individuals, including more than 9,600 convicted sex offenders, just 3.5% of sex offenders were rearrested and convicted of another sexual offense during the study period. The general recidivism rate for sexual offenders was 43% – meaning it was far more likely that these folks would be arrested for some other sort of crime, as happened with Peter. Notably, however, that's a lower rate than for non-sex offenders, 68% of whom were rearrested during the three years following their original release from prison. In other words, the notion that sex offenders are a special class of criminal, more prone to committing further acts of sexual violence, is by and large not true. "It's what B.F. Skinner and that crowd call 'one-trial learning,'" says Philip Taylor, a licensed sex offender treatment provider in Dallas. "The ritual of standing in front of the community and acknowledging an offense seems to be very effective treatment for the majority of folks."
Nonetheless, despite the research findings, no one seems especially eager to change the laws. "Any time there is a horrific case, there comes a law that is usually rushed into service with very little discussion or debate, and once it is passed it is impossible to delete it," notes Taylor. That's the case in Texas, he says, where thousands of names are added to the registry each year despite the growing body of research that demonstrates such laws to be ineffective. The Texas registry, says Taylor, is "ineffective at best and panic-mongering at worst."
State Sen. John Whitmire, D-Houston, chair of the Senate Committee on Criminal Justice, says that dealing with sex offenders "in general" is probably "our number one challenge." First, he says, there's the problem of public perception: "There is a fear factor," he notes. Second, there are the problems that current laws have created: "We're painting everybody with a broad brush." Third, there's the prospect of the Adam Walsh Act, and whether Texas will adopt the broad new federal requirements for registering and reporting sexual offenders. Whitmire is among a growing number of criminal justice professionals, including police, who believe that implementing the new federal law would likely make the current situation worse. "I don't think we do Adam Walsh," he said during a recent phone call from his Hous¬ton office. "Law enforcement says it's not necessary and might hurt their crime fighting."
The Adam Walsh Act, passed by Congress in 2006 with little debate or fanfare, is named for the 6-year-old boy whose 1981 Florida abduction and murder prompted the first modern wave of criminal statutes aimed at protecting children from predators – and simultaneously distorted the public perception of the number of stranger abductions and murders as well as the consequent legislation. The AWA requires states to add a host of new offenders to their sex offender registries – including juveniles as young as 14 – and requires the public reporting of additional information on those registries, including the name and address of a person's employer. (The idea behind the law was in part to standardize the registries kept by each state and federally recognized Indian tribe.)
The law also makes changes in the duration of registration for individuals within a tier system based on offense only, without consideration of empirical risk assessment. Although states and tribes were given until 2009 to "substantially" implement the law, to date just three states and two tribes have done so. Part of the issue is the cost of implementing the unfunded federal mandate; according to Washington, D.C.-based think tank the Justice Policy Institute, implementing the AWA could cost Texas nearly $39 million (conversely, not adopting the law would mean the loss of just $1.4 million in federal funding). Even bigger issues are what the tier system would do to the classification process and the pressure it would place on police agencies required to monitor registered offenders.
Since 2000, Texas' registration system has relied, in part, on one or more risk-assessment tools designed to determine the threat of reoffending. Under the new federal law that system would become obsolete, and police and treatment providers believe that would lead to a large number of offenders being tagged as high-risk, a designation that requires the most strict scrutiny by police. "There are a few areas of concern" with the AWA, says Council on Sex Offender Treatment Chair Arnold. One major concern is that there would be "lots of misclassification of offenders who are low-risk as high-risk" and vice versa. For example, said Lt. Moss, under the act, Henry would be considered a high-risk offender and would be required to check in with police in person, repeatedly, throughout the year, at a considerable cost to APD, which right now is running a ratio of about 400 offenders for each of the unit's detectives.
Henry's case "is probably the best example" of what the AWA would do. Technically, he says, Henry's offense was sexual indecency with a child, but realistically, he's a thirtysomething man with two children who had a youthful indiscretion. "What are the risks of [Henry] reoffending?" asks Moss. "Probably so low as to be unmeasurable." Under AWA, he would nonetheless be subject to a heightened level of scrutiny – and that comes with a big price tag for local cops. (Another offender, however, who might be a higher risk but who had pleaded his case down to a lower-level offense might receive a lower-risk designation and be able to escape much scrutiny at all.) To keep up with the current registration requirements, the APD has had to seek federal grant funding to train beat cops to do sex offender checks, and that money hasn't kept flowing, says Sgt. John Herring, the current supervisor of the sex offender unit. In 2010 alone, the city has had to fork over an additional $55,000 to help police do additional checks. Under AWA, that money would have to keep coming, notes Herring, or the department would have to shift more people to his small unit. "Either way, you're going to be spending more."
Under an extended federal deadline, the state has until July 2011 to decide whether to adopt the act. The ranks of experts and advocates lined up against adoption are swelling – they include not only Texas Voices' 600 active members, but key state lawmakers, including Whitmire; a growing number of lawyers; the Council on Sex Offender Treat¬ment (which has officially come out against implementation); and even some police officers, including Moss. But many lawmakers remain hesitant, at best, to take any steps that might make them appear "soft" on molesters – an always-handy campaign wedge issue. That axiom was clearly on display last year when conservative Euless Republican state Rep. Todd Smith drew a primary opponent who attacked him for having sponsored a bill that might allow certain "Romeo and Juliet" offenders to escape having to register altogether. (Although an overwhelming majority of lawmakers favored the modest measure, Gov. Rick Perry vetoed the bill.)
In the meantime, however, in anticipation of the possibility that the state might implement the act, the state has begun putting specifics about offenders' employers onto the online registry. The addition to the public domain was a decision made by Attorney General Greg Abbott in response to several official inquiries, says Tela Mange, a spokeswoman for the Texas Department of Public Safety. Molnar believes the addition of that information is now serving as a further barrier to re-entry for sexual offenders, because many employers simply don't want to deal with any potential public hassles. "It is an obstacle to re-entry. Do we want these people to be working, or do we want them homeless?" she asks. "Which makes us safer?"
The uncertainty about what will happen with the AWA has completely stalled efforts to find a way to let people like Henry apply for removal from the list. At issue, says Allison Taylor, executive director of the Council on Sex Offender Treatment, is a provision of statute that ties any deregistration plan to federal law. At the time the statute was revised, the controlling federal law was the Jacob Wet¬ter¬ling Act, which in 1994 essentially created the model for public registries in place across the country. It allowed for "early termination potential" from the registry for four main crimes, including sexual indecency with a child, says Taylor. The state has not moved to implement that deregistration mechanism, however, because of the federal adoption of the AWA, which changes the offenses that can be considered for deregistration and how long an offender has to wait to apply.


Martin Ezell is married to his “victim,” with whom he has three children.
Photo by Jana Birchum
Should the state decide against implementing AWA altogether, then lawmakers would have to revise existing law to untie the state and federal statutes, which would allow the state to develop its own unique deregistration procedures. "We've had hundreds of requests for early termination," says Taylor, but the council has been unable to process them. "We have taken lots of steps backwards because of the AWA. It is definitely a very flawed situation."
How Many Voices?
To Molnar and others in Texas Voices, the situation is more appropriately described as an ongoing disaster. "It is such a mess, and it's taken a lot of years and a lot of bills to get us into the mess we're in," says Molnar. "And I suppose it's going to take that again to get us out of it." First on the to-do list, says Molnar, should be a way to weed out people who are not dangerous and get them off the list. "It boils down to differentiation: whether someone poses a threat or whether they ever did [pose a threat] in the first place."
That is the only hope for potentially thousands of people who have wound up charged, convicted, and registered because of a youthful relationship, including those like Martin Ezell, who is married to the woman he is labeled as having assaulted as a child. He was much older than her when the two met in the late Nineties; he was already 32, and she was just 16. But they fell in love and have remained together for more than 12 years and now have three children. He has a master's degree from St. Edward's University and had hoped to teach high school; that can't happen now, and as a result his wife has to work more than one job to keep the family afloat. After a friend of their then-10-year-old daughter found Ezell's photo online, the couple had to sit their daughter down to try to explain what, exactly, a sex offender is and why her father is considered one. Not surprisingly, she didn't understand.
Ezell isn't sure he understands either – and he certainly doesn't understand why, all these years later, he's still being punished for something that the state has otherwise closed the book on. "If I had been convicted of drinking and driving I would've done my sentence, and I would be done. That doesn't mean that I'm still not drinking and driving," he says. But there's no online registry for DWI offenders. "So if you're my neighbor, you don't know that I'm a drunk, and if your kids are outside and playing and I've been drinking out at the lake, you're not going to know until I come wheeling around the corner." If public safety is a motivating factor for having him register, why doesn't the state seek to do the same for others? That's certainly not the solution, he says, but it does raise the question of what is fair and what is just. "If we don't start standing up and speaking for ourselves," he says, "nobody will."
That is exactly what Molnar hopes the members of Texas Voices will spend 2011 doing: speaking up and trying to change things inside the Capitol. Otherwise, she fears things will get far worse before they get even a little bit better. "What is going to happen when we get to 100,000 people on the list? To 200,000? Will we be safer?" she asks. "How much larger is our group going to have to grow?"
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By the Thousands: 'Sex Offenders' by County
The following list includes the entire registered population in a selection of major and Central Texas counties, including all police agencies in each county, per Department of Public Safety registry, as of June 6.
Registered
offenders Offenders
per 1,000
population
Harris 5,922 1.48
Dallas 4,308 1.80
Tarrant 2,761 1.57
Bexar 2,588 1.58
El Paso 917 1.22
Travis 1,526 1.51
Williamson 356 0.88
Hays 211 1.39
Bastrop 203 2.75
Caldwell 122 3.31
Fayette 31 1.28