Feeding the Bears

And now, a non-surprise: If you keep doing things that are interesting to prosecutors, prosecutors will stick around. If prosecutors are hanging around, people will begin to talk about it, and start noticing things that might be interesting to prosecutors. The same dynamics drive good soap operas. You soon have an environment where everything looks like it might be a piece of the puzzle and where everybody is lurking about, talking to each other, trying to fit pieces together.

That describes the current atmosphere at the Texas Capitol, particularly on the House side.

Travis County District Attorney Ronnie Earle, whose office is partly funded by the state government and charged with watching over matters of "public integrity" in state politics, has been poking around in election issues for several months. A short version: The Texas Association of Business and some affiliated outfits are alleged to have improperly used corporate money and/or coordinated efforts in almost two dozen House races during the last election cycle.

Since this is the quick-and-dirty version, TAB's lawyers say they did nothing illegal and that the investigators are trampling their First Amendment rights of free association by trying to flesh out allegations that corporate money was illegally used to get candidates elected. They even got a volunteer lawyer for the ACLU to join their side of the fight, up to a point: He said they shouldn't have to show their lists unless prosecutors could show some really fine reasons for a peek. District judge and former prosecutor Mike Lynch is deciding that issue, and could stop the grand jury's line of questioning or cut it off; he'll hold more hearings next Thursday.

Earle, meanwhile, laid out the central over-arching question of the prosecutors at the most recent hearing in Lynch's courtroom, saying he wanted to know "whether the votes being cast over there [at the Capitol] are in the interest of voters or in the interest of the Texas Association of Business."

The other side, in a media scrum in the hallway after the hearing, derided the prosecution as political and partisan in nature. But Earle is the guy with a grand jury, and he's looking at a bunch of stuff that seems to fall under the umbrella of his question. Some current examples:

• The House got stuck considering tort reform legislation when members learned of a secret meeting of the committee that considered the bill. They sent it back to the committee, after sweating a bit over whether they would have to vote on a choice between tort reform and opening meetings, got the bill back out and got back to work. Earle told reporters he was looking at that.

• According to the El Paso Times, Appropriations Chairman Talmadge Heflin, R-Houston, told members of the El Paso delegation that he'd put $5 million into the budget for a medical school if they would vote with the leadership on tort reform. There are questions what was said and about whether regular horse-trading ran amuck, but Earle says he's "gathering information" about the incident.

• The Dallas Morning News reported that a quorum of the members of that tort bill committee met in a private lawyer's office to work on their strategy for floor debate on the bill. That apparently happened after the bill was out of committee, and some of the participants told the paper they weren't sure that a quorum ever appeared in the room all at once (others said it did).

The Pink Building is preoccupied. The tort reform bill and the upcoming budget would have been big debates anyway, but the lingering post-election partisanship has made it more personal than usual and prompted lawmakers to wave dirty laundry in the open in a way they haven't done for years—since the last time the prosecutors took a deep interest in their business 12 years ago

School Finance: Not Ready for Prime Time

In a twist on modern history, Texas legislators might do serious work on the school finance system without the Texas Supreme Court forcing the issue. The court is fiddling with the fuse, but even a fast ruling from the nine justices wouldn't immediately upset the funding formulas now in place. If the justices side against the state this time, they'd send the case back to the lowest court in this food chain for a full trial on the merits. The Legislature won't see the results for months and months.

According to the folks who sued, school districts in Texas are virtually forced to raise their tax rates to (or near to) $1.50 for every $100 in property value to provide the level of education required by state law. That is also the highest rate they're allowed to charge under current state law. And because what they can spend and what they must spend are one and the same, they contend the state has a statewide property tax in violation of the Texas constitution.

A trial court ruled that not enough school districts are stuck at $1.50 to make the argument stick, and pointed out that some of the things the schools pay for, like football and band, aren't included in the state's definition of a minimum public school education. Also, some of the districts that charge that top tax rate or something close to it offer local-option property tax exemptions for homeowners. The state's lawyers say the districts can't cry about the caps on taxes until they have reached the cap and also have done away with exemptions for some property owners.

As long as they have the exemptions in place, they still have some local discretion. With local discretion, it's not a statewide tax. That prompted Justice Nathan Hecht to switch from theory to practice: "What you're arguing is that, if they'll just commit political suicide, they can win this case." Jeff Boyd, arguing for the state, said only 27 percent of the school districts are at the $1.50 cap with no property tax exemptions. Nina Cortell, a lawyer for the plaintiffs, had said 40 percent of the districts are at the cap, including those with and without exemptions in place.

The Supremes asked a lot of questions about what constitutes the required level of education. Cortell encouraged that, arguing that the state's standards cost more than the state allows districts to raise. The state's lawyers admitted it's an interesting question, but contend it doesn't have anything to do with this case, which is mainly about whether the cap constitutes a statewide tax.

If the Supreme Court goes with the state, it'll end there (clearing the way for another challenge to the school finance system. If they go with the plaintiffs, the matter would go back to the lower courts for a full trial. The result of that, if it happens and if this unfolds the way it has always unfolded, would be a set of appeals that would eventually bring it all back to the Texas Supreme Court.

In practical terms, none of this will affect what legislators are doing right now and none of them should really fell any pressure from the courts, for now. The regular legislative session will be long gone before the case gets back to the Supreme Court. Legislative leaders like Rep. Kent Grusendorf, R-Arlington, think a little pressure would generate a solution—he's still pushing his idea of an expiration date on the current system that would force lawmakers to replace it by 2005.

Meanwhile, Gov. Rick Perry has said the state will "address" school finance during the current election/officeholder cycle. State leaders have talked about having a special session early next year, after candidates have filed for election (and are thus out of danger of new competition resulting from tough votes). If that timeline holds, it would probably keep lawmakers safely away from new pressures from the courts.

Move to Texas—Save the Legal Fees

Texas doesn't recognize same-sex marriages and so shouldn't recognize same-sex divorces, according to Attorney General Greg Abbott. Two men married in Vermont asked a Beaumont judge for a divorce and got it. Abbott weighed in with a legal brief calling on the judge to overturn his decision. Vermont allows civil unions. Abbott says Texas doesn't allow them or recognize them. Even so, there is legislation pending in Texas that would explicitly say the state doesn't recognize same-sex unions granted by other states.

Load 'em Up, Move 'em Out

House Speaker Tom Craddick told committee chairs to get hopping on a five-page list of bills or risk losing them to the crush of legislation coming between now and the end of the session on June 2.

For an idea of what the debate over tort reform is doing, consider this: The last day the House can vote on House bills is May 15. At this writing, that's seven weeks left for all of the legislation that hasn't been heard, and most legislation hasn't been heard. Anything that's not directly attached to one of the major issues—budget, torts, insurance—could already be in trouble.

It's normal to worry over the calendar at the end of a legislative session, but this one is back-loaded, and the partisan fighting that has marked this session so far is slowing things considerably. House committees don't meet while the House is debating major issues; they could allow the meetings, but members can't afford to miss votes on the big stuff.

The committees on the House end of the building don't even have their full loads—some 700 bills were still waiting to be referred while the tort debate was raging. The experienced members who've had bills die at the end of a session are already talking about the clock. Experience, in this case, is anyone who's been here at least one session.

That's one reason Craddick alerted the committee chairs about the money bills. If they don't get moving, they won't get moving. In the case of revenue-producing legislation, that could be disastrous.

Craddick said later he's not necessarily supporting each of the three-dozen bills on his list. But each has something to do with the budget or with revenue. He wants the House to get its hands on some numbers in time for the debate on the budget, and he's telling members to get fiscal notes from the comptroller and to get the bills moving in order to line up the ducks.

The list starts with the appropriations bill. It includes bills reorganizing Medicaid and vendor drugs, killing the Texas Department of Economic Development and the Aircraft Pooling Board, refunding taxes, changing formula funding for higher education, changing tuition rebates for students, and reworking the financing of the state's health and human services programs. They haven't got the numbers from the comptroller in hand yet, but hope to have them soon.

All of the bills on the list are House bills. At the time the list was printed, not all of them had been referred to committees yet. Only three had been voted on in committees, and the rest were still awaiting their first hearings. Thus, the warning from the trail boss.

Grabbing the Reins, Alone

Attorney General Greg Abbott has not rendered an opinion on whether the legislature can declare an emergency and toss out the comptroller's official estimate of how much money the state will bring in. But he set a deadline for anyone who wanted to contribute their views and got no takers before the deadline passed. Sen. Steve Ogden, R-Bryan, wants an official opinion on whether lawmakers can override Carole Keeton Strayhorn's revenue estimate.

He and others have raised questions about her low estimate of the state's financial prospects, though none of his chums made their arguments in official written form to the AG. Lawmakers would like to have more money, easing the choices between cuts and new taxes and other revenues. The comptroller hasn't said much about it, publicly.

Strayhorn's estimate for what would come in during the current budget period fell short of the mark. That kind of goof makes the estimators more cautious. And it made the Senate budgeteers suspicious of her abilities. They want more money and say they think her current guess is wrong, on the low side. She's sticking with it, and has also pointed out continuing problems in the economy that could later form the basis for a new and even gloomier set of numbers from her.

The constitution gives the Lege the right to spend more than she says will be available, but only if four-fifths of the members are willing to buck her. And if the Legislature's number crunchers get the wrong readings from their crystal balls, they won't have the comptroller to blame for the mess.

Self-Regulation

The electronic filing bill passed by the House started with a requirement that all candidates file their campaign finance reports with the Texas Ethics Commission in electronic form.

But Rep. Talmadge Heflin, R-Houston, added an amendment that excuses current officeholders from that requirement. If it becomes law in its current form, an incumbent running for reelection wouldn't automatically be required to file electronically, but his or her opponent would have to file that way. Incumbents would follow current law (instead of the new law); it requires them to file unless they swear they're not using computers to track finance, or unless their campaigns raise or spend less than $20,000 in the 12 months before the filing (Amendments that would have raised the trigger amount to $100,000 were pulled down before the House voted).

Heflin had a fighting interest in the change. According to report generated earlier this year by Texans for Public Justice, he raised more money in the last election cycle—$310,641—than anyone else who didn't file electronically. They did not accuse him of breaking the law, lest you get the wrong impression. The electronic filing bill, HB 999, would require the state to convert paper reports from Heflin and others like him into electronic form for posting on the Internet—it even lets the ethics commission collect a fee for that conversion—but doesn't give the state any deadlines for completing that work. It could happen in time for voters to get a pre-election look, or not.

The House took Heflin's amendment without a record vote, but a dozen-and-a-half members—13 Republicans and five Democrats—asked the clerk to make sure their names were listed in the Nay column. The tentative approval vote wasn't recorded, but it followed a record vote to table the legislation. Rep. Delwin Jones, R-Lubbock, got only 15 members to agree with him on that, against 126 who voted for the amended electronic filing bill. And one of the 15—Rep. Mike "Tuffy" Hamilton, R-Mauriceville—went up and switched his vote to a Yes after the tally. Here's an odd bit: Only Dennis Bonnen, R-Angleton, voted against the amendment (on the record, anyway) and the bill. Everybody else who voted against the amendment, including Hamilton, voted to keep the bill rolling.

Ready, Set, Vote!

Gov. Rick Perry decided to have a quick election to get somebody to Austin to finish the term of the late Irma Rangel, D-Kingsville. Candidates have to file by the of the day on Monday, March 31, and the election will be held on tax day, Tuesday, April 15. If there isn't a runoff, that would give Rangel's successor about six weeks on the job during the regular session.

Perry could have waited two weeks and held the special election on the next regular election date, May 3. This puts a replacement on the job earlier, but voters will have to show up to vote one day before early voting begins in the general election for mayors and bond issues and such. It also puts some potential candidates in a box. At least one potential candidate was talking to lawyers about whether he would have to get out of a race set for May 3 in order to run for the House, or whether he could run in both, or whether the timing took the option of a House run away altogether.

The first candidate to jump in was Juan Escobar of Kingsville, a Democrat who lists his occupation as "retired." Put Richard Valdez, a Harlingen attorney, into the race, though he hadn't officially filed when we went to press. He's never held office, but his brother, Roy Valdez, is chief justice of the state's 13th Court of Appeals and is a former county judge. Montgomery & Associates has been hired as a general a media consultant for that campaign. He's a Democrat.

On the Republican side, they're talking about Ed Cyganiewicz, who is best known as the South Padre Island mayor who got the bridge there rebuilt after it was knocked down. He lost to Rangel in November, getting only 38 percent of the vote in what is, on paper, a Democratic district. In a quick race like this one, though, Republicans think they have a fighting chance.

Money, Real and Otherwise

Budget numbers are coming into focus, and even though it looks like the debate over sweeping revisions to the state's tort laws could take the Texas House into April, the management in the lower chamber expects to have a budget bill before the full House on April 9.

Within the week, Comptroller Carole Keeton Strayhorn will present another set of "e-Texas" suggestions designed to cut costs and raise revenues. Lawmakers are hoping she'll come up with ideas that are politically gentler than raising taxes or cutting popular programs. Strayhorn already presented one such list; the hints from her office are that the second dose will have some money in it, but will be tougher to swallow than the first dose. That earlier book of proposals came out before budgeteers were this desperate, though, and they might be willing to consider things now that were unpalatable before they got a full look at what a $10 billion shortfall would do to state government.

Get Your Boots Off My Desk

Believe it or not, Texas and Texans can be unpopular in other parts of the country. But the latest ad from opponents of SBC, the San Antonio-based phone company, has riled up some Texas chambers of commerce. With some help backstage from SBC, they wrote a letter to Gov. Rick Perry blasting an ad done for a group that includes some of the same phone companies that fight SBC in the Texas Legislature. The ad has a Texan—with a cowboy hat and boots, just like the people in the Pink Building—smoking a stogie and putting on a stage robber's bandana. One line: "And guess who'll take those millions [of dollars] back to Texas unless we stop them? Together, we can stop SBC and send their bad ideas back to Texas instead." The heads of those chambers want the Guv to "take action." One more nice little detail that's not mentioned in the chambers' letter: The ad, according to the copy that was sent to us, was not produced in Illinois. It was produced in Austin, Texas.

Flotsam & Jetsam

The Senate is working—privately, as usual—to try to bring in at least one of the eleven Democrats who peeled away from the majority on the session's major insurance legislation. The Democrats—just enough to block consideration of the bill—said they don't see real insurance reform in SB 14 and can't bring themselves to support it. Lt. Gov. David Dewhurst is on the case and hopes to bring the measure to the floor, with enough votes, early next week.

• The prompt-pay bill that two years ago led to a nasty separation between the governor and the Texas Medical Association got out of the Senate on a unanimous vote and is on the way to the House, but in a form that has doctors holding their noses. It doesn't cover all of the insurance plans they were hoping to cover and they'll try to do surgery in the lower chamber. The governor surprised the Legislature and TMA two years ago by vetoing the bill. He said it would create new ways for doctors to sue insurers who don't pay them and he didn't want to generate more lawsuits. The provision he didn't like isn't in the Senate version, but what's left isn't exactly what he saw two years ago, either.

• Teacher salaries in Texas rose 5.94 percent over the last four years, while pay for principals increased 8.35 percent and superintendents got an average boost of 12.42 percent, according to an annual survey from the Texas State Teachers Association.

• Attorney General Greg Abbott hasn't opined on whether the Legislature has to address congressional redistricting, but he's collected briefs from several groups and some legislators say they want to take up the issue. That last bit prompted a letter from to House Speaker Tom Craddick from the Mexican American Legislative Caucus. They're not against the idea, but say they'll fight anything that reduces Latino representation in Congress or in the Legislature.

• Geek alert for Democrats: The Texas Democratic Party has posted its Delegate Selection Plan for the 2004 national convention. That only matters to the people to whom it matters, and it matters to them a lot. The rules are online at www.txdemocrats.org.

Political People and Their Moves

Priscilla Owen's nomination to the 5th U.S. Circuit Court of Appeals is past the Senate nominations committee where it died last year, and the full Senate is expected to apply a rubber stamp to that deal. Owens, a justice on the Texas Supreme Court, was chosen for the appellate court by President George W. Bush. The first time, opposition from the left got traction in a committee then controlled by Democrats. When the Republicans won in November, Bush went back for seconds and got what he wanted. When that's all done, Gov. Rick Perry will get to appoint a replacement for her on the Texas panel... Three dudes who've been helping Republicans get elected in Texas are banding together into a new political consulting firm. Reggie Bashur, David Carney and Ray Sullivan named their outfit BCS and have started rooting around for clients. Bashur has been around Texas politics the longest, working for Govs. Bill Clements and George W. Bush before becoming a lobbyist. Sullivan, a California transplant, most recently worked for Perry, but worked for Bush and for U.S. Rep. Sam Johnson, R-Plano, before that. Carney is from New Hampshire and worked on Perry's last two campaigns before moving to Texas to set up shop... John Hatch of Austin and Sissy Day of Arlington have started a new firm—Texas Petition Strategies—to work on local option wet-dry elections around the state... Appointments: Gov. Perry named Houston attorney Kent Sullivan judge of the 80th Judicial District Court, and tapped Randall Wilson to be judge of the 157th District Court. Sullivan is replacing Scott Link, a judge who decided to go back to lawyering, and Wilson replaces George Hanks Jr., put on an appellate court by Perry earlier on... Perry reappointed Lydia Rangel Saenz of Carrizo Springs to the board of the Office of Rural and Community Affairs... The Guv named Dr. Rudy Arredondo of Lubbock, already a member of the Texas Board of Mental Health and Mental Retardation, to be chairman of that panel... He put Bill Simmons of Sunrise Beach (it's in Llano County) to the board of the Texas Infrastructure Fund. He's a former state trooper and co-owner of a business in Midland... Perry reappointed Tegwin Ann Pulley of Dallas and appointed Harry Crumpacker of Plano as regents of Texas Woman's University in Denton. She's a vice president at Texas Instruments. He's the CEO of Morrison Milling Co., and he's on the president's council at the University of North Texas, right across town... The Texas Commission on Jail Standards is getting three new members. They are Lubbock County Sheriff David Gutierrez; Gonzalo Gallegos of San Antonio, who retired from the U.S. Army and then worked as a security officer at Fort Sam Houston; and Moore County Sheriff Horace Theodore Montgomery, who was first appointed to the commission in 2000... Deaths: Lucien Flournoy, an oilman, philanthropist, Democratic contributor and former Alice mayor, of a heart attack. He was 83.

Quotes of the Week

Truck driver Frank Miller, quoted by the Washington Post: "I think I'm your typical American. All we talk about is the war. But all I think about is my paycheck."

Comptroller Carole Keeton Strayhorn, on gimmicks being discussed by lawmakers as alternatives to tax bills: "I have expressed publicly — and privately with the leadership — deep-seated reservations about using one-time funding sources, delaying payments and raiding the rainy day fund. I am hopeful that the Senate will pass a budget that I can certify."

Gov. Rick Perry, speaking to the Texas Daily Newspaper Association about the state budget: " If you remember the cartoon Popeye, then surely you will understand what I mean when I say using budgetary sleights of hand is something like ol' Wimpy would have done. It's the same as saying, 'I will gladly pay you Tuesday for a hamburger today.'"

Waco Mayo Linda Ethridge, telling the Waco Restaurant Association that the city's water quality problems result from "too much cow crap in the water for Mother Nature to handle," suggested putting a card on restaurant table for diners, as reported by the Waco Tribune Herald: "It could say 'We are sorry about the water. Here is the problem, here is what we are doing about it' and maybe give them a piece of peppermint or something to take the bad taste out of their mouth."

Texas Weekly, Volume 19, Issue 38, 31 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.