This time it was not legislators in Utah but in Texas.

That presents a serious problem for supporters of Utah's hate-crimes law, because their proposed legislation is nearly identical to the law Texas will junk.

Utah's legislation passed the state Senate but stalled in the House this year. Sponsoring Sen. Pete Suazo, D-Salt Lake City, and Attorney General Mark Shurtleff, a Republican, vowed to continue fighting for its enactment.

Now comes a Texas-size warning sign.

Patrick Johnson, counsel to Texas Rep. Senfronia Thompson, D- Houston, sponsor of the new hate-crimes legislation, says Utah would be making a mistake to follow Texas' 8-year-old lead to the same dead end.

"It is too vague," Johnson said of the original law. "It leads to arbitrary and capricious enforcement."

And in fact, there is usually no prosecution at all.

A 1999 investigation by the the Dallas Morning News found that fewer than one-half of 1 percent of documented hate crimes over seven years were tried using the statute.

The new Texas legislation, which passed the Senate Monday and is expected to soon reach the desk of Gov. Rick Perry, stiffens penalties for crimes motivated by bias based on the victim's sexual orientation, race or religion.

Conservative Texas Republicans opposed the new law, because of it includes anti-gay crimes as deserving of enhanced punishment. Two years ago, then-Gov. George W. Bush was one of the gay provision's main opponents.

Contention over granting special legal protection to gay and lesbian citizens had a lot to do with why Utah lawmakers have proposed to mimic Texas' old statute. Instead of naming protected categories or groups, as is the case in many hate-crimes statutes nationally, the Texas approach increased penalties for crimes committed based on prejudice or bias against members of "any group."

While that tactic neatly sidesteps the sexual orientation issue, it leaves a toothless law of questionable legality, Johnson said.

"What is a 'group'? It is two or more people with a certain characteristic. Could it be child molesters? Crack dealers?" Johnson said. "A criminal law must put you on notice as to what actions would violate the law."

Utah's top legal officer agrees the Texas approach is questionable constitutionally. "I do have some concerns with that, I always have," Attorney General Shurtleff said. "I would rather avoid all the challenges, but I think it is defensible. It is all up in the air now, obviously."

The Utah Sentencing Commission, one of the major proponents of adopting the Texas hate-crimes model, might go back to the drawing board, given the developments in Austin.

"We need to rethink what we want to do, because you now have the Texas Legislature saying we want to get rid of this and go back to the old model," said Ed McConkie, commission director.

McConkie said the Texas reversal was driven by politicians and civil-rights activists, not prosecutors, many of whom say the old statute could be wielded effectively. Tom Krampitz, director of the Texas District and County Attorneys Association, agrees with that assessment.

"I have never had anybody who said, 'I want to prosecute, but I am afraid to because this statute is too vague,'" Krampitz said. He said the "broadly described conduct" in the old law is actually preferred by many prosecutors.

McConkie acknowledges that the Texas approach of protecting members of any general group, rather than specific classifications, is "not a mainstream way of doing hate crimes." But it recognizes the political realities that many in Utah's conservative Legislature will oppose any measure granting legal recognition based on sexual orientation.

"It is politically impossible in Utah as far as I know," said Paul Boyden, director of the Utah Statewide Association of Public Attorneys. He characterizes the Legislature's attitude this way: "We don't want to put the state imprimatur on homosexuality, but we should prosecute gay bashing."

Proponents of the new Texas hate-crimes legislation made one concession to conservatives, changing the phrase "sexual orientation" to "sexual preference."

"That is a fine line, I don't think it would make a difference here," Boyden said.

David Nelson of the Utah Gay and Lesbian Democratic Caucus agrees a hate-crimes law including protection based on sexual orientation is unlikely to clear the Legislature any time soon.

"But we ought to do it right," Nelson said. "If we do this half-step measure, how likely is it ever to add sexual orientation?"

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