The Moment We've All Been Waiting For

Three weeks from the date at the top of this edition, the Legislature will gavel to a close and go home. That'll be a relief, to be sure, but the 21 days that lead up to Sine Die will be hectic and the issues that have dominated the conversations in the Pink Building since January are finally coming to a head.

The rules tourniquet we warned about is tightening. The redistricting fights are moving out of the shadows and into the sunlight. And the state budget is coming down to the wire, partly because of some brinkmanship from Comptroller Carole Keeton Rylander and partly because budgeteers are reaching the end game when they have to decide, once and for all, who wins and who loses.

Redistricting should be on the floor of the House on Monday, May 7. It'll be on the floor of the Senate, sort of, at some point shortly after that. If the Senate gets the bill out of the Redistricting Committee, it'll go to the Committee of the Whole, known in these parts as the COW. That's a committee that has all of the members of the Senate in it, and the main feature is that its actions are not bound by the normal Senate rules, such as one that requires two-thirds of the members to agree before anything can happen. The COW will look over all of the amendments; in fact, senators are talking about a temporary rule that would bar any floor amendments that were not first considered in the COW. That would prevent surprises (of that sort, anyway) if and when the redistricting bill gets to the floor of the full Senate for final approval.

Why all the ifs? Because this is redistricting and it's a dangerous time to be predicting the future. The Texas Senate has unique problems that, because of the faster play in the House, haven't gotten the attention they're due. Republicans outside of the Legislature think their party should have 19 of the 31 members in the Senate. That's their version of how the state is split on a partisan basis. But there are currently 16 Republicans in the Senate. There is a rule that requires two-thirds of the senators to approve before a bill can come up for consideration. And that means that at least five Democrats have to go along with a GOP redistricting bill before it can come up for a vote.

Republicans probably can't get five Democrats to go along with a plan that would cut Democratic ranks in the Senate by three members. It's just a hunch on our part, but there you go.

That's why Sen. Jeff Wentworth, R-San Antonio, is carting around a plan that gives Republicans the 16 seats they have now, and gives the Democrats the 15 seats they have now. But three of those Democratic seats aren't particularly warm. Wentworth wants to give Sens. Ken Armbrister, D-Victoria, David Cain, D-Dallas, and Mike Moncrief, D-Fort Worth, districts that are only barely winnable. In the closest statewide race in 1998—the contest pitting Republican Rylander against Democrat Paul Hobby—Rylander narrowly won each of those three proposed Senate districts. She got less than 51 percent in each of them (and less than that on a statewide basis), but she won. Wentworth contends the three incumbent Democrats would have a chance at returning, but not a lock on it.

Democrats don't like it, because it increases the prospects of thinning their ranks. And most of the Republicans don't like it, either, for a variety of reasons. They aren't signed off on the districts Wentworth has drawn for them. For instance, Sens. Florence Shapiro, R-Plano, and John Carona, R-Dallas, have at various times in this process shared or owned the Park Cities, one of the wealthiest areas in the country. Shapiro has them in her district now, but Wentworth would give her all of Collin County, where she lives, and take the Park Cities away. That makes her a "No" vote. Repeat that sort of thing over and over and his map has a hard time with his fellow Republicans.

Chewing Cud

The Senate's COW can't actually do anything but talk and listen. But it'll give senators a forum for cutting deals and for taking the maps into their own hands. Democrats have to try to cut a better deal than Wentworth is giving them, while holding together enough Republicans to get to 21 votes. One dramatic point will come when the amendments are offered. Since the Senate wants to ban new amendments on the floor, they'll show their hands in the COW. The map being worked on by Sen. David Sibley, R-Waco, will finally be public, as will maps drawn by and for various members.

Wentworth says not a single senator has come to him and volunteered plans to leave in the future. Nevertheless, about a third of the senators are possible candidates for greener pastures, for reasons ranging from ambition to health to political vulnerability to Adult Onset Sanity. Some of the people on this list will surely stay, and someone not on it will surely go. With that caveat, the list includes Sens. Teel Bivins, R-Amarillo; J.E. "Buster" Brown, R-Lake Jackson; Mario Gallegos Jr., D-Houston; Chris Harris, R-Arlington; Tom Haywood, R-Wichita Falls; Mike Jackson, R-Pasadena; Eddie Lucio, D-Brownsville; Frank Madla, D-San Antonio; Jane Nelson, R-Flower Mound; Steve Ogden, R-Bryan; Bill Ratliff, R-Mount Pleasant; Florence Shapiro, R-Plano; and David Sibley, R-Waco.

Why mention the speculation? Because departures can free up holes in the maps and make deals easier, and we're getting to that point in the session where senators (and House members, too) can quietly make their intentions known to their fellow cartographers. At our deadline, it appeared that the COW would convene at the beginning of the week and the Senate could get maps to the floor for consideration as early as Thursday or Friday. But this is a rough guide: The deals aren't cut, and the dates could slide.

A House with a Wall Full of Termites; Notes

The redistricting intrigues have been darker and more active in the House. Republicans have gathered in small groups in Midland Rep. Tom Craddick's office and elsewhere, drawing a map that would give them 85 to 90 seats while assuming they'll get no more than 60 or 65 votes for it on the floor. About that many Republicans have pledged to support that GOP map, while a small group of holdouts have either hung onto their independence or said they'll vote with Rep. Delwin Jones, R-Lubbock. Jones got his map out of committee at the beginning of the week, and amendments are due in the clerk's offices by midday Saturday. That'll be the first certain unveiling of whatever the Republicans have been working on. There's a smaller Republican group headed by Rep. Tommy Merritt of Longview that's working on a GOP map that's more favorable to rural lawmakers. That'll be in the stack. And on Monday, they'll vote.

• Republicans can't put a win together without minority votes, and they've been working Black and Hispanic members harder in the last few days to try to gain support for their plan. Like the Democrats, they're doing that both directly and through surrogates, having prominent citizens and money folk call and talk to legislators about redistricting issues and future elections.

Their pitch is that the numbers are going to go Republican, either in the Legislature or later in the courts. Minorities haven't got a great deal from the current regime, they argue, and would do as well or better with the GOP in control. Besides, if they don't sign up, they'll be shut out when the Republicans take the castle. That's lately taken the form of talk about future leadership positions for Democrats who defect; those conversations are legal so long as nobody's promising anything. And they're dangerous from another standpoint: The Republicans, if they win a convincing majority in the House, have a race for Speaker in front of them. Everybody in the room is watching everybody else, and if one candidate makes promises now, the others will use it against him or her later.

• There's a legislative pairing that has gone unreported in stories about Jones' map. Rep. Dennis Bonnen, R-Angleton, is building a house in that town. It's his hometown, he says, and the new house isn't far from the old one. But in the Jones map, the new house would be in the district drawn for Rep. Craig Eiland, D-Galveston.

And Then They'll Chop Off a Finger

Comptroller Carole Keeton Rylander says she won't give budgeteers the final numbers they need until there's only one week left in the legislative session, and says she's not sure whether those numbers will be larger, smaller, or just as they are now. And, she adds, she'll cut $318 million out of her revenue estimate unless lawmakers pass two bills she wants passed, each of them dealing with litigation against her agency on the subject of tax refunds.

Some of this is normal, and some of it's new.

Here's the long way around. Franchise taxes are due on May 15 every year. That's when businesses flood the state comptroller's office with checks and returns on the tax that brings in about $2 billion a year. But it's the date, and not the money, that's significant in odd-numbered years. The Legislature always wraps up its regular session near the end of May. This year, the last day falls on May 28.

Budget writers, no matter who's in charge in a given year, want to know as early as possible how much money the comptroller will certify as available for spending during the next two years. The comptroller, no matter who it is at the time, always wants to wait until the last possible second to minimize mistakes and to maximize clout.

And the first week of May is when they usually collide. That's the part that's normal. Sen. Rodney Ellis, D-Houston, and Rep. Rob Junell, D-San Angelo, are demanding final numbers from the comptroller, saying they can't finish the budget or make some of their critical decisions without the official guesstimate on how much money will come in during the next two years.

Rylander says the numbers aren't ready yet. The built-in excuse, provided by the Legislature in statute, is that franchise tax deadline. The comptroller says she can't nail down the numbers until she's looked through a reasonable number of the franchise tax returns. Only then will the high priests of state finance be able to conjure their final estimate. That's bunk, but it's historically established bunk.

In the meantime, she's got a couple of things she thinks the Legislature should look at. One is the tobacco bill we've written about; it would tax smokeless tobacco on the basis of weight instead of price. It's worth about $18 million in budget terms. That would increase revenues to the state over the short run, but would cost the state the built-in tax increases that come when the companies increase their prices. Tax revenues would go up only if the companies sell more chewing tobacco or if they increase the weight of their products. Rylander contends the legislation would get her agency out of a litigation mess with distributors, says it would make the tax easier to administer, and says it would put Texas in line with the way the feds do things.

Among the beneficiaries, critics say, is the company owned by her campaign finance chairman, Drayton McLane Jr. Their main objection, however, is that the initial burdens of the legislation would fall heavier on smaller (but still large) companies in that business. And Rylander says House Calendars Chairman Barry Telford, D-DeKalb has told her staff, that the bill is dead, dead, dead.

The other bill aims to close a tax loophole that lets a profitable company merge with an unprofitable company and use its past losses against the profitable company's income for tax purposes. That's called a loss carry-forward. Under current state law, some lawyers and accountants think those carry-forwards can be used by the acquiring company. The argument is that they buy the assets of the companies they acquire, and the tax benefits are one of those assets. Rylander wants lawmakers to cut off that practice. She says it's worth $300 million, and says she'll chop that much out of her revenue estimate if lawmakers don't pass the legislation.

A point: Lawmakers balked just a couple of weeks ago when asked to pass a bill that would cut off pending litigation. That would have benefited the Dallas Cowboys, but it got shot down after several lawmakers said the Legislature shouldn't meddle in pending court cases. But Rylander's folks say this is different. They say it would simply (always wash your hands when you hear the word 'simply' in a legislative context) codify existing law and practice and make the original legislative intent clear. And they say the Legislature should be free to patch pending litigation that involves the state itself.

One Vote Short of a Hate Crimes Bill

It's hard to find a benefit to Republicans in state government if the Legislature can't vote out a hate crimes bill. Conversely, a failure doesn't hurt Democrats. In fact, the Democrats were the beneficiaries, politically, when a hate crimes bill was passed by the Democratic House and died in the Republican Senate two years ago.

That's the problem with the recent legislative maneuvers on this: The Democrats have no political reasons to compromise. They've successfully framed the issue in a way that makes compromises look like backsliding. They've passed the bill again in the House, with nearly a dozen Republicans on board for good measure. And the legislation is once again stuck in the Republican Senate, partly because of intervention last month by Republican Gov. Rick Perry. That puts the sponsors—Sen. Rodney Ellis, and Rep. Senfronia Thompson, both D-Houston—in relatively strong positions.

The Democrats will either get the hate crimes bill they want or they'll skewer the Republicans by painting them as servants to bigots and/or homophobes. The Republicans have the worst possible mess on their hands. They're stuck on an issue about which many of them don't have strong opinions, and they'll either have to vote for a bill that explicitly protects gays and lesbians—that's not a great issue in a Republican primary—or give the Democrats a win and an opportunity to come back again two years from now and do it all over again. And now that the governor has stuck his hands into the pie, a stuck hate crimes bill will be blamed more on him than on the Senate.

The Senate now has two versions of the bill available for consideration—the one approved by the House and a Senate version that's been approved by committee. Both bills list the categories of victims that could trigger enhanced penalties. Both would raise the stakes when victims are singled out because of race, color, disability, religion, national origin or ancestry, or sexual orientation.

There are at least two Republican alternatives floating—offered by Republican Sens. Florence Shapiro of Plano and Todd Staples of Palestine. Both drop the lists in favor of language that would cover crimes committed because the victim was a member of any particular group. On the policy level, the Democrats say the list of characteristics is needed to keep the law specific. The Republicans say their version would pass constitutional muster and say the Democrats who argue otherwise favor rhetoric over reality. Ellis, meanwhile, hasn't assembled the 20 votes he needs to bring the measure to the floor of the Senate. He needs one more.

Check the Expiration Dates

While we're talking about Ellis, he's been hitting bills with an eponymous amendment that kills the bills in a couple of years. That frees future legislators to recreate the laws they want without forcing them to vote against things that pass in this session that might not be desirable later. And they can do it without having to vote against something that's popular.

For instance, had the Ellis amendment been attached to the Bush tax cuts passed two years ago, lawmakers would now be talking about whether to reenact those cuts or to spend that money on other things. As it stands, they would have to vote down the popular tax cuts—undoing their own votes of two years ago—to get that money back. That's not likely.

That's just an example, and we should hasten to add that we didn't get it from Ellis himself. So far, that's been added to a number of bills that would otherwise have fiscal implications in the 2004-05 biennium. That's not this budget, but the next one. If you're one of those folks who's been worrying over the idea that this session's budget could be next session's tax bill, the Ellis idea could give you some comfort. But hide and watch: It's not on the teacher health insurance bills at this point, and hasn't been added to measures on Medicaid spending or state employee pay raises. Those three items carry the hefty price tags that have prompted most of the talk about tax hikes in 2003.

Rules for Train Wrecks

With so little time left in the session, and with the consternation over redistricting at a pitch, there is more talk than ever about how the Legislative Redistricting Board works. It has five members—the lieutenant governor, the speaker of the House, the attorney general, the comptroller, and the land commissioner. They never get to see plans for congressional districts, or State Board of Education districts. And they only get to see plans for Texas House and Senate districts if the Legislature fails to produce plans that the governor will sign.

The Legislature can draw its own plans, but has a constitutional deadline—the task must be completed during the regular session or the matter goes to the LRB. Lawmakers do not have the option of working on redistricting plans for themselves in a special session; only congressional and SBOE plans can be considered by lawmakers outside of the regular session. If the session ends without redistricting plans for legislators, the LRB has 90 days to convene, and then 60 days to complete its maps. (That means the outside deadline for an LRB map is around Halloween, in late October.)

What's in a Name?

A rose is a rose, but a chip is no airplane. That property tax break for big capital projects has been renamed. After being tagged for at least two sessions as the "Intel bill," the legislation by Rep. Kim Brimer, R-Arlington, is now wearing a nametag that says "Boeing" on it. The bill would let local school districts grant tax breaks—without suffering the normal state penalties—to companies that build very large plants in their districts. The theory is that the jobs and the eventual additions to the tax base make up for the exemptions in the early years. When tech was hot, the bill was named for the chipmaker that was building a huge factory in Fort Worth. That project is on ice (as is an Intel office building that's under construction in downtown Austin), but the effort to attract Boeing to Texas is hot. Thus, the name change. Boeing, by the way, probably wouldn't benefit from the bill as much as the bill is benefiting from its name change: The company isn't talking about the kind of big plant that would qualify for the tax break.

Flotsam & Jetsam

• A small company called TextOrder.com is suing the Texas Education Agency over a 1999 contract award that went to a competitor. The company, whose CEO is Ann Utley, contends the contents of its bid were illegally revealed to the competitors. The other firm's initial bid was nearly twice as expensive as TextOrder.com, but the lawsuit says TEA officials asked the firms to redo their bids and that that resulted in a much higher bid from TextOrder and a much lower one from Cooper Consulting, the company that ultimately prevailed.

The amounts involved are relatively small: The final contract came in at about $825,000. But TextOrder says that was $400,000 more than they originally bid. Officials at TEA say they're still reviewing the lawsuit, but think they'll prevail. Utley says she inherited the lawsuit when she took the reins at the textbook procurement company, but says the episode raises questions about handling of other bids at the agency. Utley could someday be talking about this in a different context: She's considering a bid for land commissioner on the Democratic ticket.

• Truce! The Republicans and the Democrats completely agree on two urban counties, saying the El Paso and Tarrant delegations drew maps that can't be topped. It's kind of a standoff: The GOP can't figure a way to get more seats in El Paso, and the Democrats can't increase their seats in Tarrant.

• In case you missed it, the governor's office recently awarded the International Bancshares Corporation of Laredo for its volunteer efforts, noting the 20,000 person-hours of community service from bank employees and officers in South Texas. The primary owner of that bank is one Tony Sanchez Jr., the likely Democratic candidate against Gov. Rick Perry, who was giving the award.

• The Department of Public Safety sent out a press release on its dive team that makes note of the one thing that appears no matter where the divers search: Beer cans.

Political People and Their Moves

Former legislator and Texas Secretary of State Elton Bomer is coming back in a new guise, this time as a third-party consultant to the Texas Department of Health. That's a follow-up to a critical report on the agency by the State Auditor's Office... Heather Browne, a former Capitol reporter who worked on former Gov. George W. Bush's presidential campaign and then for Attorney General John Cornyn, will be the chief spokesbot for the Houston ISD. There's something of a trend going on here: The last guy who had the HISD job previously worked for a governor in Alabama... Appointments, Texas Division: Gov. Rick Perry named Michael Giles Rutherford, a Houston rancher and oilman, to the Texas Racing Commission. He replaces Larry Christopher of Crockett, whose term expired. The Guv put M.S. "Mike" Ussery of Amarillo on the Veterans Land Board, replacing Neal Thomas of San Antonio, whose term is up. Ussery is a real estate broker and management consultant... Appointments, Texas on the Potomac Division: Corpus Christi lawyer Tony Armendariz, appointed in the other Bush Administration to the board of the Federal Labor Relations Authority, is being appointed by the current Bush Administration to that same post. He's a former lawyer at the U.S. Equal Employment Opportunity Commission and also worked as an assistant Texas attorney general... Robert Pitman, a Fort Worth native who's been working in the U.S. Attorney's office in Austin, is in line to be the new U.S. attorney for the state's western district. He'll replace Bill Blagg, who resigned... Dallasite Nancy Brinker is being tapped as President Bush's ambassador to Hungary. She's best known as the chief fundraiser and activist behind the Susan G. Komen Breast Cancer Foundation, and she was one of Bush's fundraising Pioneers... Judicial spankings: The Texas Commission on Judicial Conduct sent a public admonishment in the direction of Rodolfo Delgado, a former county court at law judge in Edinburg, for talking with a defense lawyer about a case outside the presence of the prosecutors and for then taking a guilty plea from the defendant when his lawyer was late to court... The commission also admonished District Judge Frederick Edwards of Montgomery County for trying to get out of a drunk driving arrest by saying he was a judge. He failed two field sobriety tests, but was within legal limits when given a breath test at the police station... And a Public Reprimand went to Justice of the Peace Randy Ellisor of Cold Spring for working as a JP and as a deputy sheriff, albeit in a different counties, at the same time... Injured reserves: Sen. Chris Harris, R-Arlington, fell and broke a rib just days before his Governor for a Day fete. Nothing serious, we're told. And former Rep. Bill Siebert, now a lobbyist, suffered a heart attack that was first diagnosed by doctors as bad indigestion. He should be back on his feet before our next issue.

Quotes of the Week

Gov. Rick Perry, asked by a reporter why he won't automatically accept a redistricting plan drawn by legislators: "That’s not how it works. You’ve read the civics books. That’s the reason we have a governor, is to make final decisions on pieces of legislation."

Lt. Gov. Bill Ratliff, after breaking up a developing ruckus between Sens. John Carona and Royce West, both of Dallas: "I think it's much like teenagers—you have to make sure that they know if it happens, I will only tolerate it so far."

Comptroller Carole Keeton Rylander, telling reporters about her plans to pull $318 million from the state's revenue estimate unless lawmakers pass two pieces of legislation that settle legal issues in her shop: "I'm not giving any ultimatum—I'm just telling it like it is."

George Burgess, an opponent of shark-feeding excursions, quoted in The New York Times: "You wouldn't go to Africa and throw raw meat at a lion, then wander up and try to take a picture without expecting some problems. What we're seeing is humans violating common sense."

Texas Weekly: Volume 17, Issue 43, 7 May 2001. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2001 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (800) 611-4980 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 288-6598.