Sinking the Titanic

A rules-breaking private meeting upended a massive rewrite of Texas' tort laws, leaving supporters of the effort scrambling to get back on schedule. The bill was well on its way to passage in the House. But after two days of debate, Rep. Jim Dunnam, D-Waco, called a point of order to say that bill was fatally flawed by a secret meeting after a committee hearing. The bill was discussed out of public hearing by more than half of the committee. After two hours of private consultation, House Speaker Tom Craddick announced he would leave the decision to a vote of the House. But after more confused consultation and some speechifying by members, he decided to sustain Dunnam's objection.

Until that point, there was little doubt that Rep. Joe Nixon, R-Houston, would prevail. He had the full backing of management, both in his chamber and from the governor's office, and the opposition lost every round of the fight. There were a few small leaks before the boat sank: Craddick weighed in on Day One to cast a relatively rare vote from the dais, only to find himself on the losing side on a change that would force a losing plaintiff in some suits to pay for the winner's lawyers. That was patched—ten members (eight Republicans, two Democrats) flipped from the prevailing side to the speaker's side—before it got into the bill, thanks to some quick arm-twisting, and it was one of the few moments of sunshine for members who were fighting the tort changes.

Voting broke mostly along party lines. There were variations: Some Democrats stuck with the Republican majority on most votes, and a few Republicans stayed with the bill opponents.

The Republicans were paranoid that the Democrats would stage a walkout. A week earlier, the Democrats caught the management off-guard by leaving in twos and threes until the House's quorum was gone. That messed up a procedural step on the tort bill. Nothing lasting came of it, but the stunt made Craddick, Nixon and others nervous about holding the House together while the bill was being debated. At one point on the first evening of the debate, Democrats called a caucus meeting—they said it was to detail the funeral plans for Rep. Irma Rangel, D-Kingsville—and Nixon requested a "call on the House" to haul everyone back in. that wasn't granted, but it showed what he was worried about.

The Democrats came back after they were finished with the short meeting. Later, some of them asked if the House could recess to watch President George W. Bush announce the U.S. invasion of Iraq. Craddick let them loose, but only after extracting promises that they would come back a half-hour after the beginning of Bush's speech.

Though the session was a few days shy of the halfway point, Craddick told members he would keep them through the weekend if they didn't finish the two major tort bills during the week (the other was an accompanying constitutional amendment). Groups promoting the legislation had hoped to stay on the fast track in the Senate and to get their business done before more urgent issues, like the state budget and school finance, begin to dominate the Legislature's time and energy.

They originally hoped to go even faster. Gov. Rick Perry, who campaigned in support of some of the tort changes, made medical malpractice law reform a part of his campaign for reelection. He declared that issue an "emergency"—a designation that made it eligible for legislative action during the first 60 days of the session. When that and the rest of the major tort changes were wrapped into one big package, that package was eligible for early action. But it didn't get to the floor until after the 60 days were up. Nixon & Co. can probably find another way to bring it up—they still have plenty of time—but the longer they wait, the more noise they'll contend with from other important bills.

Death of a Thousand (Spending) Cuts

House Republicans have begged their leaders not to make them vote on the kinds of spending cuts that have been dominating newspaper headlines lately, and they have found sympathetic ears.

Their fears match their districts. Over here, it might be okay to cut health care, but a vote to cut prison funding is harmful if not fatal. Over there, a vote to chop teacher benefits and take other money out of the classrooms is a fantastically stupid idea. In a district with a fair number of Medicaid recipients, or hospitals and doctors who actually get the money from health care programs, a vote to chop CHIP and Medicaid would make trouble, but a prison cut might sell.

Those are just the political reasons. From a policy standpoint, deep cuts in any of those three areas potentially expose the state to higher costs or court fights later. The health care wonks, if they are forced to cut, have said they will focus on treatment of existing problems and not on prevention of developing or future problems. In the short run, that's cheaper. In the long run, it's more expensive.

Criminal justice experts say it's cheaper in the short run to put state prisoners in rented county jails (if there is room), but in the long run, it's cheaper to build new prisons and hire more guards.

Cutting education is a no-no for politicos of every stripe, but the skin-and-bones budget under development in the House would take well over $2 billion out of the state's public school system. It also increases the pressure on the legally precarious school finance system, which comes with another set of policy and political baggage.

Some or all of those things are dangerous to House Republicans. Now, it's possible to find people who want to see the new majority bring a Draconian budget to a vote. With a promise to stay Off the Record, we can find support among some House Democrats and a few Republicans who aren't in the House now but would like to be. That's another way of saying such a vote could be useful to opponents of the current incumbents.

Pain Relief?

At this point in the session, it's hard to find a reason for the bloodshed. The House has voted out tight budgets before only to see the Senate get credit for saving the day. Why vote against things that are going to be in the budget at the end of the process anyhow, especially if those largely symbolic votes could cost so much in next year's primary and general elections? House members might be willing to vote on hard cuts in spending, but why do that now if the actual budget passed later might be kinder and gentler and easier to defend at home?

They're holding out hope, and here is why they think that might be worthwhile:

• Comptroller Carole Keeton Strayhorn, with some encouragement from the people with big offices in the Pink Building, is putting together a second round of proposals to save money, increase revenue, and pull financial rabbits out of the state's hat. Anything she comes up with could help balance the budget without huge political risks to lawmakers. Strayhorn made a set of recommendations before the session began, and those are still under consideration. But with the budget in such lousy shape, lawmakers seem willing to consider some measures they probably wouldn't consider in normal times.

• New revenue, not from taxes—clearly a no-no this session—but from "non-tax revenues" that are being discussed in both the House and the Senate. That latter category includes some things that you might normally put in the first category, but it's only a tax if voters agree it's a tax.

• Gambling money. This is an uphill fight, but Texas got a lottery the last time the budget was a mess, and there are proposals to introduce casinos and other new and potentially lucrative kinds of gambling to the state. Most legislators don't love it, but it's not a tax and it produces a lot of revenue and if they get desperate enough, gaming interests might have a shot.

The Senate's Fundraiser

Sen. Teel Bivins, R-Amarillo, is surveying fellow senators to gauge support for "non-tax revenue enhancements" that could increase the amount of money available in the next budget. The budget that would fit inside current revenues is just too painful, he says: "A budget of $54.1 billion is a pretty tough sell." That's a lot of money, but as you've read before, it comes in about $10 billion short of what it would cost to keep doing the things the state does now.

Word of his spadework has reached some in the House, feeding the notion that the House shouldn't vote on cuts without some idea of what the Senate will do. It puts the Senate in the drivers' seat, but if they can drive out of the ditch, the House won't make much noise about it. When the House sends the Senate a tight budget, it gives the upper chamber the chance to add favorite things that the House had to cut. When they settle up at the end, the Senate will be in a dominant position, because the groups that lobbied for the add-ons take the Senate's side in the negotiations. The House's lever—the ability to propose tax bills—has already been dismantled this year.

Bivins' list of non-taxes includes delaying payments from one budget cycle to the next, lowering—for accounting purposes, anyhow—the amount of money that is spent in the budget (and raising the amount that would be needed to cover the budget that follows that one). It includes some items from Strayhorn's first e-Texas report that would bring in extra state money, like her proposal to increase the number of enforcement officers and auditors in her office to increase the amount of revenue they can bring in. That one, according to the comptroller, would bring in a lot more money than it would cost, and if she says that would happen, that would happen. They want the money, so they'll do that.

Bivins also asked senators about taking money out of the Rainy Day fund, staggering textbook purchases to save money, and using some of the capital gains from the Permanent School Fund to finance public education (current law prohibits using anything but actual earnings).

Squeeze hard and about $6 billion can be raised that way. Bivins says some options are decidedly unpopular; he's not offering a number, but doesn't think the Senate would come up with that much.

Walks Like a Tax, Quacks Like a Tax

Tax bills have to start in the Texas House, so new money isn't under consideration in the Senate. That gets senators off the hook on questions like extending the state's corporate franchise tax to include certain types of partnerships. Gov. Rick Perry has said several times that he wouldn't consider that a new tax, and if the votes are available, it would raise money without arousing most taxpayers.

Other proposals would extend sales taxes to things that aren't taxed now. Those exemptions are worth a total of about $24 billion a year. Nobody's suggested doing away with all of them, but picking a couple of items off that list could help balance the books, if the votes are there. (The list actually exists in a book published by the comptroller's office, Tax Exemptions and Tax Incidence.)

Members of both houses seem to have concluded that there won't be any new taxes during the session—the governor has said it umpteen times and it's beginning to sink in. Now they're exploring the semantics, trying to figure out ways to bring in more money without breaking that promise. The franchise tax "fix" is okay with the governor, but some legislators don't like the idea. A proposal to securitize the state's tobacco settlement—converting future payments into a lump sum—isn't gaining enough traction with lawmakers. The money is already committed, for one thing, and the process yields well under fifty cents on the dollar, for another. Bivins says the Senate isn't wild about that.

• Texas lawmakers might actually welcome one new tax, if it's legal. Rep. Wayne Christian, R-Center, was first out of the chute with legislation that would triple the tax on imported wines that start in France on their way to Texas. The tax wouldn't apply to German wines, apparently, or to those from Spain or elsewhere. Christian put out a press release when he filed the bill saying the bill might hit a wall made of federal laws on international commerce. But he added that he was doing the French-bashing to show his support for President George W. Bush.

Irma Rangel, 1931-2003

One of the sweetest and toughest politicians in the state of Texas, Rep. Irma Rangel, D-Kingsville, died of complications from brain cancer. She was 71. A former teacher, Rangel went back to college and got a law degree in her late 30s and then became the first Hispanic woman in the history of the Texas Legislature when she took the oath in 1977. She staked out higher education as her turf, bargaining for huge amounts of money for South Texas colleges and putting the state's 10 percent rule on the books, ensuring a spot in public college in Texas for any student finishing in the top 10 percent of their high school class. She got a pharmacy school established at Texas A&M-Kingsville. A few days after her death, the A&M regents and the Legislature began to move, with Gov. Rick Perry's encouragement, to name that college for her.

Rangel, fifth on the House's seniority chart, was a product of South Texas whose accent had an inexplicable New York sound. Smart and funny, she mentored countless legislators, punctured inflated egos with great humor and kindness, and was fast with a "Hey, baby," or "Sweetie" or "Honey" for members, staffers and journalists who walked by her desk in the House.

Rangel's death leaves an empty seat in the Texas House, and because the Legislature is in session, that falls into a category called an "expedited election." Gov. Perry can call an election any time between now and the second week of April. And he would have to call a special election to replace Rangel within 21 to 45 days after that. Under normal circumstances, the election would probably be on May 3, but because this is an expedited situation, Perry isn't bound to that date. He can call the election for that day, or for any Tuesday or Saturday within the dates above. Speaker Craddick announced members could take over Rangel's bills so that her legislation can keep moving forward.

Speaking for Management

Lobbyist Neal "Buddy" Jones invoked the "leadership" in a note asking a lawmaker to pull his name off of a proposed piece of legislation. Jones, representing AT&T, sent a note to Rep. Bob Hunter, R-Abilene, and to others asking them not to co-sponsor HB 1658, which is supported by SBC, AT&T's primary rival in the legislative arena. And he added a personal note on the memo to Hunter, writing, "Bob—This is a real shot at the leadership. Would you mind withdrawing your name?"

Hunter wasn't available for comment, but Jones said he was talking about the leadership of the committee and not the leadership of the House when he wrote the note. He contends the bill is stuck in committee and that SBC is trying to get the House to pull it out for a vote (that's possible, but pretty rare). That scheme would be an affront to the committee process, he says, and that's the reason he scribbled the note on the memo to Hunter.

One of Jones' business partners, lobbyist/media consultant Bill Miller, was on House Speaker Tom Craddick's transition team after November's elections, raising some question as to which "leadership" Hunter might be taking a shot at by sponsoring the bill. But Jones says he wasn't referring to Craddick. Jones said he was careful not to use Craddick's name. He also didn't use the name of Regulated Industries Committee Chairman Phil King, R-Weatherford, but says that's who he meant.

Legislation That Draws a Crowd

Hearings on the "Defense of Marriage Act"—a proposal that would prevent the state of Texas from recognizing same-sex marriages granted under other states' laws—drew a crowd. The House State Affairs Committee collected witness affirmation forms from 1,734 people, most of whom wanted to register their opinions on the bill but didn't want to testify before the committee. Rep. Kenny Marchant, R-Carrollton, says the pros outnumbered the cons by about a two-to-one margin. That bill isn't expected to hit any major hurdles on its way through the House, and the opponents are hanging their hopes on the Senate. Proponents, meanwhile, contend that they'll prevail in the Senate as long as they can get the senators to vote on the legislation.

Legal Department

The best sidebar in the tort law fight came from Rep. Steve Wolens, D-Dallas, who offered the theory—backed by a court decision and a couple of lawyer briefs—that legislator-lawyers who vote on bills that hurt their clients are open to legal malpractice claims. In the context of legislation limiting the rights of people in courtrooms, that could take out a bunch of legislators real quick. It got the attention of Rep. Joe Nixon, R-Houston. The author of the omnibus tort bill wrote up an amendment that would protect lawyers voting on the bill from such claims. But that provision wouldn't take effect until September and they were voting in March. Wolens pointed out that the vote to protect the lawyers would be a conflict, too, since it would be a vote against the interest of a client who might want to go after a lawyer for malpractice. One of the briefs was written a year ago by Steve Collins, now the House Parliamentarian. Nixon ended it by withdrawing his amendment, and the bill, as we pointed out earlier, died on a point of order after two days of amending and arguing.

• The Texas Ethics Commission can question people without violating the confidentiality of people who file sworn complaints, according to Attorney General Greg Abbott. The commission has pulled up short in the past, afraid that bringing in third parties would break a law protecting the confidentiality of people who officially complain about violations. The commission has always ducked that, fearing that the questions would reveal the existence of a complaint and that the revelation would break the law. Abbott says it ain't necessarily so. If the commission is careful with its questions, it can ask them.

• Here's another one from the ethics commission. When the commission is doing an investigation, it might have to provide information to the person being investigated that was generated in a previous investigation of the same kind. They wanted to know if that blows the confidentiality law. Not necessarily. If they're investigating one person and another is implicated as a result, they have to notify the second one. And that's not a breach of the confidentiality law, Abbott says. But they shouldn't tell the second person about the complaint against the first one.

• On deck: The University Interscholastic League oversees a lot of the competition among public schools in everything from football games to track meets to band contests. Rep. Nixon has officially asked Abbott for his "official opinion as to the legality" of the UIL. He's asking whether it's a state agency, whether it's legally constituted, and whether it has the legal authority to institute rules.

• Rep. Kent Grusendorf, R-Arlington, wants Abbott's opinion on charter schools run by cities. He wrote the law and says his intent was to let cities open the schools and to sell bonds to build school buildings. But the AG's office turned down a bond issuance from the Town of Westlake, citing the law's "alleged lack of clarity." He wants Abbott's opinion while there is still time to pass a law that would correct the problem. If there is one.

Flotsam & Jetsam

Health care cuts proposed in the House and Senate would cost Texas counties $9.34 billion, according to a study by the Center for Public Policy Priorities and picked up by the Texas Association of Counties. The biggest hit would be in the biggest county by their estimates: $1.1 billion. The whole analysis is online at www.cppp.org.

• The Texas governor's race accounted for one-eighth of the spending in all of the governor's races in the US last year, according to a study done at the University of North Carolina. The candidates in those 36 races spent $833.2 million. In the eight races in the south (including Texas) candidates spent $229.5 million. Rick Perry and Tony Sanchez spent $105.6 million. But on the basis of cost per vote, the Texas contest wasn't even in the top five. The Texans spent $23.18 per vote, more than the national average of $13.68, but well below the leaders. Candidates in New Hampshire ($42.77), New York ($31.28), South Dakota ($29.01), South Carolina ($26.92), and Hawaii ($24.76) all spent more.

• Monday, March 24, is the 70th day of the legislative session. They're halfway done.

Political People and Their Moves

Richard Greene, the former Arlington mayor, will be the new regional administrator for the U.S. Environmental Protection Agency. Greene is replacing Gregg Cooke, a Bill Clinton Administration appointee who stayed on for a couple of years at the request of the George W. Bush Administration. Greene was Arlington's mayor at the same time that Bush's main interest was running the Texas Rangers baseball team...

The State Preservation Board, taken to court after it botched the firing of executive director Rick Crawford earlier this year, met again and held an open meeting to fire him again. Crawford, an ally of former House Speaker Pete Laney, wasn't given a reason for the firing. Gov. Rick Perry said on several occasions that Crawford was an "at-will" employee and that no reason was required. The first firing was done after a secret session and Crawford challenged that in court...

Mike Moncrief, a former Tarrant County Judge and a former member of both the Texas House and the Texas Senate, is now running for Mayor of Fort Worth. His Senate district was redrawn last session, and he decided not to move into another district to hang onto the seat, saying he didn't want to leave his home...

Once upon a time, Candace Windel was the director of the Texas Poll, but she got a law degree and now has started a law firm with Linda Haston Frazer. Windel will do some administrative law, some open records and some information law...

Appointments: Gov. Rick Perry chose state District Judge Phylis Speedlin of San Antonio for an open seat on the Fourth Court of Appeals. Perry appointed San Antonio attorney Allan Polunsky to the Finance Commission of Texas. He's the former chairman of the state's prison board. Perry also tapped Vernon Bryant of Aledo to chair that commission.

Judicial spankings: Billy Ray Chisum, a justice of the peace in Leakey (in Real County) agreed to quit office instead of being disciplined by the State Commission on Judicial Conduct. He agreed to never serve or act as a judge again. That came in answer to official complaints of alcohol abuse...

Joe Greenhill is the correct name for the former Chief Justice of the Texas Supreme Court whose name we squib-kicked last week. Sorry, sorry, sorry.

Quotes of the Week

Natalie Maines, lead singer for the Dixie Chicks, at a concert in England before the U.S. attacked Iraq: "Just so you know, we're ashamed the president of the United States is from Texas." Later, after the first wave of furor: "My comments were made in frustration, and one of the privileges of being an American is you are free to voice your own point of view." And then, when the furor continued: "I apologize to president Bush because my remark was disrespectful."

Charles Butt, honcho of the H. E. Butt grocery chain, quoted in the San Antonio Express-News: "I think being a good teacher is a good bit harder than running H-E-B."

U.S. Rep. (and former judge) John Carter, R-Georgetown, proposing jail terms for college students who trade music on the Internet, quoted by Wired News: "What these kids don't realize is that every time they pull up music and movies and make a copy, they're committing a felony under the United States code. If you were to prosecute someone and give them three years, I think this would act as a deterrent... Sometimes it takes the shock value of someone actually being punished."

Reggie James of Consumers Union, forecasting the effect of information indicating there is no crisis in medical malpractice awards, in the Austin American-Statesman: "If they have the political power to move this, logic isn't going to stop them."

The headline on a press release from the Texas Railroad Commission, a state agency that, regardless of who is in charge or what party they're from, makes a lot of news because of the infighting among commissioners: "3—0 Railroad Commission Vote!!!!!!!"

Texas Weekly: Volume 19, Issue 37, 24 March 2003. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2003 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.