Let's Make a Deal

Anything could go wrong or go unexpectedly well at this point in a legislative session. It could have been the budget, or insurance, clean air, or a government reorganization bill. The first mess involved the tort reformers, who went down to the wire with their impasse showing.

Start with the point of contention. The Senate didn't include "hard" caps on damages for people who win lawsuits, as the House did. In the House version, non-economic damages in medical malpractice cases would be capped at $250,000. In the Senate version, they'd be capped at $750,000, but no one doctor would be on the hook for more than $250,000. A proposed compromise – more about this in a moment – would put a $500,000 cap on hospitals and a $250,000 cap on all of the doctors in a given case. That wouldn't affect insurance premiums for hospitals significantly, according to the Texas Department of Insurance, and it would give doctors the same break they'd get in the House version. That might be what the players finally agree on, but it was a bloody mess with four days to go.

The caps would apply to awards given to people who win medical malpractice cases against doctors and hospitals. It's one of the governor's two emergency issues (the other is homeowners insurance reform, also still pending at the end of the session). And it was originally in its own bill. Rep. Joe Nixon, R-Houston, rolled it and almost all other tort legislation into one bill to bring the lobbying strength of the medical folks to lower-profile and less-popular changes to the state's civil laws.

Sen. Bill Ratliff, R-Mount Pleasant, took Nixon's work and slowed down. He had long hearings on every piece of the bill, then worked the Senate and got a completely reworked version out.

Then the trouble started. Nixon asked the House for a conference committee, blundering slightly by announcing that he would negotiate with the Senate and would take the Senate's version if they couldn't reach a compromise. That's what he said in the heat of that moment, but it's not what he meant: By the end of the week, he and the tort reformers outside who've been pushing this stuff for the last decade were saying a special session of the Legislature would ensue if the Senate didn't take the House's version on caps. Ratliff told everyone he'd name a conference committee only after he knew what the House wanted to negotiate.

At the end, the House and Senate bills were different but the only really heavy disagreement was over the med mal caps; instead of helping get everything through, it was the element that endangered the whole deal. That said, it's probably also the reason half of the other tort law changes got as far as they did. Medical malpractice is the only part of the bill that seems to matter politically to both Democrats and Republicans who are looking at it in the context of past and future elections. Some of the other provisions of the legislation are important to this lawmaker or that one, but med mal is the only part of the bill that seems to have broad implications to the political set.

After about a week of staring contests between the House and Senate and governor's office, Ratliff and Lt. Gov. David Dewhurst got the compromise proposal together – they say it was offered up by the doctors and hospitals and others who've been pushing med mal limits all session. Word got out that they had a deal. But the governor and House Speaker Tom Craddick weren't in on it. Craddick apparently wanted to stick with the House version. The Senate folks thought they had a deal with the medical lobby; the medical lobby people say they never signed off on a deal (but they were careful to say they weren't opposed to it). After an afternoon of drama and finger pointing, the three bosses of the Pink Building were talking again. What looked like a crash might turn into just a rough landing.

Or Else What?

The blow-up at the end was preceded by threats that wouldn't make it into a script for a drive-in movie. Special session threats don't work particularly well at the ends of legislative sessions unless they come straight from governors, and even then, they're not terrific negotiating tools.

A case in point: Rep. Joe Nixon, R-Houston, was repeating a threat made by Gov. Rick Perry on tort reform, saying there would be a special session if the Senate didn't adopt the House's version of the limits on payments to winners in medical malpractice lawsuits. Look at that from the position of the people on the working end of the gun barrel: There's no guarantee of safety if give in. The tort bill wasn't the only thing in the air and nobody in the middle office was saying torts were the only thing that could bring lawmakers back. The threat reduced to this: There will be a special session if the House version isn't passed, and if it is, there might be a special session.

It's got an extra twang this session anyhow, with all the talk of special sessions for congressional redistricting, and for all those reasons, the threat didn't have much effect on the debate. The redistricting possibility is clouding end-game negotiations on a number of deals because of a persistent suspicion that some of the people in the Pink Building want to come back in a week or a month to draw congressional lines. If the bill is important and in some kind of trouble, there are two questions: How can we fix the problem?, and Is this problem for real or are you just trying to bring us back?

By the end of the day on Thursday, the Senate had appointed its conferees: Ratliff; Ken Armbrister, D-Victoria; Chris Harris, R-Arlington; Robert Duncan, R-Lubbock; and Jane Nelson, R-Flower Mound.  They'll join the House conferees to hash out the problems and duck a special session.

Coalition-Building

While the tort bill was being cussed and discussed, Gov. Perry loaned his press conference room – a large room that's also used for meetings – to the honchos from Texans for Lawsuit Reform. They used it to talk to House members about supporting the Senate's version of the tort package. That group isn't in the conversation about damage caps in medical malpractice suits, and they wanted to know whether House members would vote for the bill even if the Senate prevailed on med mal. That looked to some like an end run around House Speaker Tom Craddick and Perry, both of whom took a hard-line stand for the House's more stringent damage limits. Even so, the House members they interviewed didn't seem upset about the Senate version. For TLR, this is a tough moment: They like the Senate version and don't want it to fall because of someone else's objections.

An Unexpectedly Smooth Ride

It's still possible to drive a car into a ditch if you're well rested, on a wide road and driving on a sunny day, but you have to work at it. That appears to describe the conditions for the homeowners' insurance bill. The House and Senate bosses on that piece of legislation both said late in the week that their differences weren't great and that they didn't think they'd be the reason for a special session.

That, in spite of some differences. The House outlawed credit scoring altogether; the Senate limited it, but allowed it. Several companies use credit ratings and performance to help set rates now, and say if it's outlawed they'll reassess whether to do business in Texas. Another rift is over how companies raise rates. The House went for a plain vanilla file and use rating system – companies file the rates and start billing customers with no approval from regulators. The Senate said the companies have to wait a couple of months before putting proposed rates into effect, but also didn't require oversight. Either system allows regulators to haul the companies in for challenges to rates, essentially leaving the system in the hands of a powerful insurance commissioner instead of spelling it out in the law books.

Both Sen. Troy Fraser, R-Horseshoe Bay, and Rep. John Smithee, R-Amarillo, said they don't expect that issue to push the Legislature into overtime.

The Last Word on Money, for Now

Comptroller Carole Keeton Strayhorn, with a coincidental assist from President George W. Bush, says the state government will have $709 million more to spend than she previously said. She took away $105 million she thinks the state will lose in franchise taxes, leaving $604 million for general spending. With an accounting sleight of hand, she's taking away $100 million that the budget folks thought they would be getting. But the numbers are close enough to work if various pieces of legislation fall into place by the end of the session on Monday.

The feds are sending Texas $1.26 billion. The $709 million can be used for general spending; the remaining $553 million has to be used for Medicaid. That new Medicaid money from the feds will, in turn, free up some money the state had planned to spend on that program, so budgeteers will have that much more for general spending. Strayhorn wants a letter from lawmakers spelling out their spending plan for that money so she can use it in her budget-balancing certification later this summer.

Strayhorn said her estimate is the last one she intends to make during the regular session of the legislative session. There were only four-and-a-half days left when she said it – milk lasts longer in the carton – but she said it with a straight face. And the number-crunchers in the Legislature were expecting more than she came up with; some of them said the new estimate added money from the federal government but doesn't fully account for better-than-expected results from some taxes.

Earlier in the week, House and Senate conferees had signed off on a budget that spends between $58 billion and $59 billion. That was still at the printers when Strayhorn announced the revenue numbers, so she didn't include any of the Legislature's finances in her estimate.

Additions and Subtractions, Already in Progress

But both she and the budgeteers think their numbers are close enough and the attention moves from there to a number of bills still in play that have fiscal implications. Roughly $1 billion of the difference between what Strayhorn counts and what budgeteers plan to spend is still uncertain. If the bills all pass unscarred, the budget will probably balance. Every revenue bill that dies will force a cut of the same size. Those bills are scattered enough that Strayhorn couldn't tell reporters the status of her own e-Texas suggestions. Several of those were still in uncertain territory as she spoke.

Strayhorn wanted lawmakers to "fix" the corporate franchise tax, to stop companies from reorganizing, on paper, to legally avoid taxes. She also wanted to corporations that have already done that – many of the state's major newspapers are among the biggest reorganized taxpayers – to regain collections already lost. But the Legislature couldn't find a fix that didn't force loud noises out of the business lobby. They surrendered over $200 million in new taxes that the governor had said he would approve. And because of the signal that sends to other businesses – the gates are open – Strayhorn lowered her estimate of what the tax will bring in for the next two years by $106 million.

Another tax deal is in trouble. Legislation patching up the "liar's affidavit" died convincingly in the House and will cost the budget about $171 million if it's not revived. People who sell cars file paperwork listing the sales price and the sales tax paid. One-on-one deals aren't checked out carefully, and state tax experts say an honest system would raise a pile of money. It would also mess up a lot of brother-in-law deals and the House voted strenuously against it. The patch is still alive in another bill, but the odds of getting it into law are long.

• Tuition deregulation got House Speaker Tom Craddick an unusual bit of hate mail – from the Young Conservatives of Texas. That staunchly Republican group is made up of college students. And they don't want the Legislature to give tuition-setting powers to college boards of regents. But the best line on the subject goes to Sen. Teel Bivins, R-Amarillo, defending a Senate agreement to back the House on dereg: "We're not talking about an evil monster that just came out of the Black Lagoon."

Meanwhile, Back in Nottingham...

The Texas Supreme Court sent the latest challenge to the state's school finance system back to the lower courts, instructing the judges there to decide whether the state has imposed an unconstitutional state property tax to fund the public schools.

Several school districts filed the suit, contending that the state's requirement for a certain level of education has coupled with its limit on property tax rates to form a state-set tax rate. If enough school districts can't charge less than the $1.50 per $100 valuation and still do the job, then the state has effectively set their tax rate at $1.50, they argue. The lower courts said not enough districts were at that point. It noted that local property tax exemptions and school spending on things like football and band and other non-essentials were included in the $1.50, even though those things are not required by the state, and indicated that they shouldn't be counted.

The Supremes, in an 8-1 decision, said the state has to prove that districts aren't forced to tax at the maximum rate to do the job the state requires of them. And the state has to prove that the local property tax exemptions ought to be kept out of the equation. The locals have to prove they don't have "meaningful discretion" in setting property tax rates.

While that's wending its way through the courts, lawmakers say they're on the case. Gov. Rick Perry has already promised a special legislative session within the year to tackle the so-called Robin Hood system of school finance. If they succeed and if they outrun the courts, the Legislature could have a new system in place before the old one is torn down.

All for All but One

Not that they don't care about each and every threatened Democrat in the Texas congressional delegation, but a new website designed to fight new redistricting maps leaves out U.S. Rep. Ralph Hall, D-Rockwall. The map that riled legislative Democrats all the way to Ardmore would knock off ten incumbent Democrats in the congressional delegation, at least on paper. It would replace three of them with new Democrats. It would replace seven of them with new Republicans. Now, Campaign Momentum, a Democratic consulting outfit in Austin, has cranked up www.SaveTexasReps.com to argue for the congressional Democrats, to collect news stories helpful to their side, and to try to gin up or assist a grassroots campaign on the subject. The website lists endangered Democrats in a couple of places. Hall, a Democrat who votes consistently with the Republicans in the Texas delegation, isn't among the endangered Democrats (the map puts him in a GOP district) listed as endangered.

The Rose Garden Bill

Special sessions can have blocker bills just like regular sessions do. We looked it up in response to a recurring rumor. To wit: It would only take 16 votes in the Senate during a special session to bring up and pass [fill in name of pet issue here]. The rumormongers will tell you that partisan bills, or bills with thinner margins of support, could pass more easily during a special session than during a regular one. But that's a bet against Senate tradition.

The blocker is the bill that goes first on the calendar (usually a dummy bill relating to beautification of the Capitol grounds, or to the maintenance of the Rose Gardens). To vote out of order requires a two-thirds vote of the Senate, and that's traditionally the rule used to empower minority blocs in that chamber. During a regular session, you'd eventually get a blocker in place just because there are so many bills handled out of sequence. In a special session, it's an honor thing.

They don't have to have a blocker bill – either in a regular session or a special one – and they don't have to vote out of order. Without a blocker, the current makeup of the Texas Senate would give Republicans a clear majority. With one, the Republicans are two votes short of the two-thirds they'd need to rule the roost without paying attention to the other side. It's one reason the House is more partisan than the Senate; House Republicans don't have to build coalitions to control the agenda and the debate. Senate Republicans can't do anything without a couple of Democrats in the deal.

Flotsam & Jetsam

The Texas House wants to do a study on higher education finance, and they're asking the Senate to take part. But they're stacking the votes: The House proposal would create an 18-member committee with eight House members, six senators and four public members. Among other things, the committee would look at how much leeway to give colleges and universities over their tuition rates and other kinds of income. That was last seen going back to the Senate for approval, disapproval, or for a little time in conference committee.

• The latest flier from ADAPT – an advocacy group for disabled Texans – skips the persuasion part and goes straight to the invective. It's a Wanted poster with pictures of the governor, the lieutenant governor and the speaker that reads: "Wanted: for crimes against people with disabilities, older Texans and children; danger to others when passing state budget; ignore public input; corrupted by power; supports ideology over people's needs. Do not try to apprehend on your own; may become vicious if cornered." The group says the budget agreed to by the House and the Senate includes "cuts in community-based services [that] will dump elderly and disabled Texans off Medicaid services." They want the Legislature to raise revenues instead of making those cuts.

• Conference committees generally have to cut their deals before midnight Saturday. That's the deadline for distributing conference committee reports to the House. The House has to accept the reports by midnight Sunday, and so does the Senate, but the Senate can also vote to accept the House version of bills on Sunday. Condense that: The Senate can approve House versions through Sunday but has to cut its deals on Saturday if it wants the final bill to include Senate provisions. Monday, the last day of the legislative session, is for corrections to bills only.

• Texas primary elections would come a week earlier under a bill on its way to Gov. Rick Perry. Supporters said it would remove interference between elections and spring break at some schools. It might also make Texas relevant in national primary elections, which are often decided by the time the state votes. Candidates look at the results in earlier races in other states and all but abandon their efforts by the time they get here. The bill would move the primaries to the first Tuesday in March; it's now on the second Tuesday.

• Wannabe lawyers, part 1: The House spiked legislation offered up by Rep. Fred Hill, R-Richardson, that would have let legislators take the bar exam and become lawyers (if they pass) without first going to law school. They used to have a law like that, but the Legislature killed it more than a decade ago. They still don't think it's a good idea.

• Wannabe lawyers, part 2: Rep. Charlie Howard, R-Sugar Land, wanted to let correspondence course law school grads to sit for the bar. Those lawyer-in-the-postbox deals aren't currently allowed, and they won't be. Howard admitted he was trying to get the bill passed so his daughter could get a law license (if she passed the bar exam), but the Legislature said huh-uh.

• Legislation expanding private prisons in Texas appears to be dead, replaced in government reorganization bills by a study. Supporters said they were looking for efficiencies and ways to save money; opponents – many of them from areas where state prisons are big employers – said there wasn't enough state oversight in the proposals and that only one or two companies would benefit.

• An attempt to limit property appraisal increases to five percent per year was killed by a Senate deadline. It had a noisy life and it's having a noisy death. The current cap is 10 percent and there's a move in Houston to get it lowered, led in part by a couple of radio talk show hosts who've made a season of the bill's swim through the legislative swamps. It was widely expected to sail out of the Senate, too, but was one of the bills that died when time ran out on the Senate's last day to consider such legislation. It's apparently still a good radio topic. At our last check, the talk shows in Houston were drilling lawmakers for failing to get the deal done.

• A funny thing to do in the closet: Gov. Perry signed the Defense of Marriage Act, which prohibits state recognition of same-sex unions, in a private ceremony, barring the public and press.

Political People and Their Moves

The House picked Democrat John Mabry of Waco and Republican Carter Casteel of New Braunfels as the freshmen of the year. The two winners are from one of the biggest freshmen classes in years – 37 members of the 150-member House have been in office for less than six months...

Schlotzsky's, the sandwich chain, is putting three Texas Democrats on its board of directors: Sarah Weddington, the former House member and abortion rights lawyer who argued Roe v. Wade before the U.S. Supreme Court; John Sharp, the former legislator, railroad commissioner and state comptroller who said he was giving up electoral politics after losing the last two races for lieutenant governor; and Pike Powers, an Austin lawyer and former aide to Gov. Mark White. Powers is still a practicing attorney. Sharp is a tax consultant. Weddington teaches at the University of Texas law school. The company's shareholders will vote in about three weeks...

Gov. Rick Perry named R. Dyke Rogers, a George W. Bush appointee, the presiding officer of the Texas Racing Commission... Along those lines, the Guv's aides say all of their appointees have cleared the Senate, which means none of them will be automatically busted for failure to win the Senate's consent. People appointed during a session have to be confirmed during that same session; those appointed after the Legislature leaves town will be able to serve until lawmakers come back...

Wendy Bengal is leaving the governor's press office for Fort Wachuka, Arizona, where her husband will be stationed for military intelligence training. The former Ms. Taylor worked for then-Sen. J.E. "Buster" Brown, R-Lake Jackson, before working for Perry...

Judicial spankings: Thurman Bill Bartie, a Justice of the Peace in Port Arthur suspended last year by the Texas Supreme Court, got scorched in a report from a special master to the State Commission on Judicial Conduct. That commission hasn't acted on the report's allegations that Bartie handcuffed, struck, and/or berated and cussed several people who appeared in his court (including some truants and a local reporter/photographer), interfered with a police investigation, and broke several laws and judicial canons along the way. That's the third set of complaints against the JP – and the most serious – since he took office in 1995.

Quotes of the Week

U.S. Rep. Tom DeLay, R-Sugar Land, quoted by the Austin American-Statesman on Democrats' success in killing congressional redistricting this session: "I am not giving up, and I will not be intimidated, and this is not over yet."

GOP anti-tax activist Grover Norquist, quoted in the Denver Post on the exportation of Washington's political niceties to state legislatures: "We are trying to change the tones in the state capitals – and turn them toward bitter nastiness and partisanship. Bipartisanship is another name for date rape." Later in the same article, Norquist said redistricting efforts are aimed at conservative Democrats like U.S. Rep. Charlie Stenholm of Abilene: "They will go so that no Texan need grow up thinking that being a Democrat is acceptable behavior."

Houston Democrat Ron Wilson, who is black, telling the Dallas Morning News he favors the GOP's congressional redistricting plan in spite of his party affiliation: "What the Republicans want in their districts are more white people, because in Texas they know that they are Republican. I don't have a problem with that because it leaves us with more districts of our own."

Rep. Talmadge Heflin, R-Houston, talking to the Houston Chronicle after the House got the Senate to agree to college tuition deregulation during budget parlays: "All the senators weren't in there. Their boss (Lt. Gov. David Dewhurst) was, and if he can't hold them in line, that's his problem."

Rep. John Smithee, R-Amarillo, during a floor debate on sending notices to uninsured Texas motorists to get them to buy coverage: "I've heard of proposals all the way from shooting people without insurance to doing away with liability insurance altogether."

Elizabeth Graham with Texas Right to Life, quoted in a Dallas Morning News story on the success of pro-life legislation during this session: "I don't want to perpetuate the myth that we're a bunch of fat white guys working out of a church basement."

Texas Weekly: Volume 19, Issue 47, 2 June 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.