Is There a Closer in the Bullpen?

Having a governor directly involved has made some difference in school finance, but the two halves of the Legislature are still locked up over some of the issues that doomed earlier compromises. They are closer than they were, particularly after the Senate fell on its sword on business taxes, but there's plenty left to fight over. 

A partial list of differences would include methods and amounts of compensation for teachers, caps on how much local money rich districts have to share, the percentage of school districts that have to get substantially the same amounts of money per student, whether kids should be tested at the end of each course, whether school board elections ought to be moved to November, and taxes.

In that last item — taxes — you'd have to have a separate list of differences between the upper and lower houses: increased homestead exemptions (yes, no, and how much), new property tax rates (somewhere between $1.23 and $1.30, down from $1.50), sales tax rates (up between 1/2 cent and one cent), increased alcohol taxes (yes or no), how to close business tax loopholes, and whether to raise license fees for professionals who don't pay the corporate franchise tax.

Lt. Gov. David Dewhurst says the Senate won't be considering anything coming out of conference committees until it's seen the reports on school finance and taxes. That means, with a few possible exceptions, that nothing would come out of the special session if school finance doesn't get done. "That's why we're here," he says. The asterisk is that either body of the Legislature could simply accept the work of the other body, sending it straight to the governor.

There's less than a week left in the special session. 

50% Turnout 

Lt. Gov. David Dewhurst ran into two lockups on the tax bill and cast a vote to settle one of them — his first vote ever — while letting the other die on a tie. The first killed a business tax disliked by the lobby and by Gov. Rick Perry and, probably, the House. Dewhurst's non-vote kept slot machines out of the tax bill.  

The first vote was weird for a couple of reasons. For one thing, Dewhurst cast the deciding vote on an amendment that killed the expanded business tax he himself has been promoting. And he had to go out of his way to do it, talking Sen. Mike Jackson, R-La Porte, into changing his position to turn a loss into a tie, and then casting the deciding vote. Dewhurst wasn't in the chair at that moment — Sen. Ken Armbrister, D-Victoria, had the gavel — but it turns out he can vote as long as he's in the room.

In fact, it appears at first look, that he has no choice. From the Senate Rules, we get this: Rule 6.18. If the Senate were equally divided on any question, the Lieutenant Governor, if present, shall give the casting vote. (Constitution, Article IV, Section 16).

That raises a question about the second big tie on the tax bill. Senators voted 14-14 on an amendment that would have added video lottery terminals to the bill. Dewhurst was there, but didn't vote, and the amendment died. It turns out that the state constitution trumps the Senate's rules. From the Texas Constitution: The Lieutenant Governor shall by virtue of his office be President of the Senate, and shall have, when in Committee of the Whole, a right to debate and vote on all questions; and when the Senate is equally divided to give the casting vote.

He can vote, but he doesn't have to. And when that vote took place between 3 and 4 a.m., nobody called him on it. 

Number Two, with a Bullet 

Gov. Rick Perry added limits on eminent domain to the agenda for the special legislative session, giving some oxygen to an issue that seems to have more Texans talking than the Number One issues: public education and property tax relief. The eminent domain legislation — which includes a proposed constitutional amendment along with the statutes that would implement it — is moving quickly in both houses, though each has added things that will require resolution from a conference committee.

This is a touchy subject. The current outcry stems from a U.S. Supreme Court ruling that says, in essence, that a government can use its powers of eminent domain on behalf of developers building a private project (a mall) that has a greater public value than whatever it's replacing (homes, for instance). We've talked with several legal wizards who say the ruling marks only a small change in the law; though it certainly caught the public's attention, the actual change from standing law was small. For instance, the UT Law School's Sanford Levinson says economic development has long been used to justify eminent domain seizures: "Earlier cases say the public interest is whatever the Legislature or the City Council says it is." He says the new case will probably make it easier to litigate takings of property, which will make it more expensive, which could serve as a brake on some seizures. But it's not really new law.

Nevertheless, legislatures here and elsewhere are narrowing the law. Texas already has bills in the mill that would add this to the November ballot: "The constitutional amendment to prohibit the state or a political subdivision from taking private property for the primary purpose of economic development or to benefit a particular class of identifiable individuals."

They took another step when the legislation got to the House: Texans forced out of their homes by governments looking to develop local economies would be compensated for their property, as the law allows now, but would also be entitled to the money needed to replace what they lost with a "comparable other property in the municipality." That idea was tacked on with a bipartisan but close vote; it's not in the Senate bill.

The federal court was agreeing with the Connecticut Supreme Court when it said the city had the right to condemn the properties for a redevelopment project over the objections of holdout property owners. Eminent domain has been around for a long, long time, but this case hit a nerve. On one end of this are people from across the political spectrum who think it's outrageous to let developers wreck neighborhoods to build shops, even if the shops will bring in scads of sales taxes and the developers have to pay the homeowners fair market value for their property. On the other, think of all those projects that get built by public/private partnerships in the name of economic development, like stadiums and arenas and airports and roads. Either way, it'll keep lawyers busy. If you're so inclined, you can look at the Supreme Court's opinion at Kelo v. City of New London.

While They're Here Anyway 

The special legislative session is starting to look like a regular session. Gov. Rick Perry expanded the Legislature's agenda a second time to add tuition revenue bonds and judicial pay raises to the things lawmakers can legally consider. Both issues almost made it during the regular session. Judicial pay raises — which are a key variable in figuring the retirement pay of Texas legislators — died in the crossfire of tempers between Rep. Terry Keel, R-Austin, and a couple of senators. And tuition revenue bonds — issued to build new facilities at state colleges and universities — were axed because House Speaker Tom Craddick and Lt. Gov. David Dewhurst didn't agree on how money set aside for the TRBs would be distributed.  

Perry didn't stop there. The Guv hit the reboot button to allow lawmakers to look at two more issues: Telecommunications and renewable energy.  Telecomm in particular locked up lawmakers during the session; the sponsors, Sen. Troy Fraser, R-Horseshoe Bay, and Rep. Phil King, R-Weatherford, couldn't come together on how to treat competition between phone companies and cable companies. The two industries are, respectively, sneaking into the other's camp — phones want TV, TV wants dial tones — and the Legislature is trying to regulate the fight. Cities are watching carefully to see whether statewide franchises for television erode local cable franchises and the perks that were included by the companies, like local programming and local access channels. The Texas Municipal League and the cable companies alike opposed the legislation that came out of the Senate. That's where they had their best luck during the regular session.

 Electric companies want a piece, too, as they perfect technologies that send Internet and television signals — broadband — over power lines. Houston-based CenterPoint, for example, just signed a deal with IBM to work on broadband over power line technology, called BPL for short, in a residential pilot project.

The renewable energy bill — already passed by both houses — pushes electric utilities to get a certain amount of their power from wind farms and other technologies and sets a goal for renewable energy for the whole state. It adds to local tax bases that need the money for school finance, and it's supposed to encourage companies to build enough transmission lines to get the power from the wind farms to the places where it's needed.

The Pay Scales of Justice 

The Senate sent judicial pay raise legislation — and its sidecar, an increase in legislative retirement pay — to the House less than a day after Gov. Rick Perry added the issue to the legislative agenda. A little while later, the House followed with a slightly different version. Of all the issues before the state Legislature during this special session, this was the first to pass both houses on its way to the governor's office for approval or veto.

Both versions would increase pay to $125,000 for district judges (from a base of $101,700 now), to $137,500 for appellate court judges, and to $150,000 for judges in the two statewide courts. Chief justices would get an extra $2,500. Local county officials can still supplement the state salaries, but pay for district court judges would be capped so that they'd always be at least $5,000 behind the judges on the higher courts. The state would do a report every year to show how the judges here are doing on their pay, as compared with judges in states of similar size and to lawyers in the state of Texas. That last bit means the State Bar of Texas will soon be doing a statewide survey of lawyer salaries for the report.

Sen. Robert Duncan, R-Lubbock, also folded in an amendment from Sen. Rodney Ellis, D-Houston, that adds money to the state's fund to pay attorneys for indigent criminal defendants. That, like the pay raises themselves, would be funded with increased fees paid by people going to court in Texas. That's not in the House's version, which includes some appropriations language that isn't in the Senate's. The 23 percent pay increase for judges is also a pay increase for retired legislators, and for those who, voting now, will retire later. Their retirement benefits are based on a formula: Judicial pay multiplied by .023, multiplied by the lawmaker's years of service. A legislator with 20 years on the job would get $125,000 X .023 X 20, or $57,500 per year, under the new formula. Under current law, that same lawmaker would get $46,782. Lawmakers have to serve at least eight years to qualify, and can start collecting benefits when they're 60. If they serve at least 12 years, they can draw the benefits after age 50. 

Hard Sell 

It's hard for cigarette companies to talk to lawmakers about sales they'll lose because of higher taxes, since that's one of the most popular arguments for raising the levies on smokes in the first place.  They do make the point, but move on quickly. To what? The companies are trying to slow down the tax hike by saying it's so big it will encourage smugglers to bring smokes to Texas from neighboring states with lower taxes. Phillip Morris USA says a $1 increase in the Texas tax would bring the price difference on a carton of cigarettes to between $8 and $16.50 when compared with neighboring states. And they hint that sales will drop faster than the state predicts, lowering expected state revenues.

Political Figures 

A couple of polls show Gov. Rick Perry with some weaknesses among general election and, to a much lesser extent, with primary voters. But he still looks formidable going into the March 2006 Republican primary against Comptroller Carole Keeton Strayhorn. 

SurveyUSA is tracking how voters rate the work of the governors of all the states, and you can look inside their results for any state you choose. The results are summarized on their website.

If you click on the name of a state, you'll see how voters there regard their governor's work. Perry, by SurveyUSA's numbers, was still underwater as of last week, with approval from 38 percent of those surveyed and disapproval from 53 percent (the question being answered: "Do you approve or disapprove of the job Rick Perry is doing as Governor?"). The pollsters talked to 600 people and say their margin of error is ± 4.1 percent.

Perry's numbers were slightly better with men than with women, best with Texans between 35 and 54 years of age, better with Republicans than Democrats, Independents and "not sures," and slightly better in West Texas than in other regions of the state. His numbers were a little worse in July than in June. June's numbers were down a bit from May's. The pollsters threw in one number that's interesting, if statistically wobbly: The average governor is getting the thumbs up from 50 percent of voters and a thumbs down from 41 percent.

Separately, Austin-based Montgomery & Associates did some polling and found Perry well ahead of his only announced GOP challenger, Comptroller Carole Keeton Strayhorn. By their reckoning, Perry has a two-to-one advantage in that contest. The firm — which works for Democrats when it's working on political stuff — polled 905 Republican primary voters during the five days ending July 1. Of that group, 54.8 percent said they'd vote for Perry in an election held now and 28.9 percent said they would prefer Strayhorn.

More than half of the voters — 50.9 percent — said they had a "generally favorable" impression of the governor; 20.8 percent gave him a "generally unfavorable" mark, and only 0.2 percent said they hadn't heard of him. Asked what they think about the job he's doing in office, the numbers tightened up: 51.9 said Perry was doing a good or excellent job and 45.8 percent said his work was "only fair" or poor.

Strayhorn left 34 percent of the voters with a favorable impression, and 20.2 percent had an unfavorable take on the comptroller; 8.5 percent said they hadn't heard of her. Her job rating was better than Perry's: 55.6 percent gave her excellent or good marks, while 22.4 percent graded her "only fair" or poor. 

Political Briefs 

Campaign finance reports have started trickling in (good results often get announced before the filing deadline, so as to avoid being obliterated by other news from other campaigns).  

Comptroller Carole Keeton Strayhorn says her reports will show she raised $1.5 million in the last ten days of June, bringing her cash on hand to $7 million. Details, like who gave and how much, won't be available until she has filed her full report. Meanwhile, Agriculture Commissioner Susan Combs, who's running for the spot currently occupied by Strayhorn, raised $838,421, bringing her piggy bank's balance to $2.4 million. She also offered no details. The reports — and the ones you'll see after the filing deadline passes — reflect fundraising between the end of the legislative fundraising blackout on June 19 and the end of the month. Federal candidates and state candidates who weren't in state office during the legislative session aren't subject to the blackout.

• Jimmy Evans, son of former state Rep. Charlie Evans of Fort Worth, says he'll run for the House. He's looking at an open seat in Austin, where Rep. Terry Keel, a Republican, is preparing a race for the Texas Court of Criminal Appeals. Evans, also a Republican, ran for the House in 1996 in his father's old district but lost to Todd Smith, R-Euless, who still holds that seat. Evans is one of several people talking about HD-47, but he'll be the first we know of to file his paperwork and actually get into the contest.

• Gina Benavides, a McAllen lawyer, says she'll run for the 13th Court of Appeals, a Corpus Christi-based appeals court that hears cases from 20 counties in that part of the state. Benavides will be running against an incumbent, Errlinda Castillo, in the Democratic primary.

• The first take on pay raises from Comptroller Carole Keeton Strayhorn — reportedhere a couple of issues ago — was that she'd take the extra $33,000 per year included in the budget by lawmakers and approved by Gov. Rick Perry. But Perry's political office was loudly critical, saying in essence that the governor's fellow Republican isn't worth the money. She decided not to take the money after all, but did thank the governor for signing the bill that would make it possible.

Non-judicial statewide officeholders other than the governor all got raises in the new state budget. So far, Strayhorn and Agriculture Commissioner Susan Combs have turned down the money. It's a nice raise, taking them to $125,000 annually from the current $92,000. That's $33,000 a year; the average starting school teacher in Texas gets a total annual salary of $32,894, according to the American Federation of Teachers.  

• Gov. Rick Perry went on The O'Reilly Factor to defend the state's laws on child abuse after the host of that show, on a crusade to make all 50 states bring their penalties for child abduction and battery to the level of the toughest states, said the Texas laws were on the weak side. In the midst of all the interruptions that pass for conversation on television, Perry said he'd encourage the Legislature to look into it when they're back in session. They're in session now and will be for another week, as Carole Keeton Strayhorn quickly pointed out. 'Tis the season.

• Department of Corrections: The chart on close races in our last edition originally referred to 2002 elections when it should have said 2004... In some editions last week, we mistakenly put Rep. Terry Keel and Judge Robert Francis into the race for 3rd Court of Appeals in Austin. The two are running for the Texas Court of Criminal Appeals. Sorry, sorry, sorry. 

Four in a Row 

Reagan Greer hung in for a week at the Texas Lottery Commission, but the agency's executive director resigned late on a Friday afternoon. Cause of death: The agency exaggerated the size of its jackpots at least four times in an attempt to boost sales. Winners on those occasions — had there been winners on those occasions — would have been entitled to lower-than-advertised winnings. Greer, a Republican who lost his bid for reelection as Bexar County's district clerk before joining the lottery, wasn't accused of making the decisions on the jackpots, but he's the head guy and took the fall for it.

The jackpot hyping was compounded by the agency's firing of its chief financial officer. Lee Deviney was let go for unspecified reasons, but the public facts lead to questions: He recently got a good job review, and he's also the guy who blew the whistle inside the agency on the jackpot inflation.

Gary Grief, the number two guy at the Texas Lottery, will be acting executive director while the search is on for that agency's fifth top boss. The agency's chairman, Tom Clowe, plans to put together a special board that will sort through resumes for a new director. And the commissioners have decided that one of them will have to sign off on prize estimates, expanding the board's role in setting policy to include some of the actual day-to-day operations of the lottery. 

Political People and Their Moves 

James Steinberg, the deputy national security adviser to then-President Bill Clinton, will be the new dean of the LBJ School of Public Affairs at the University of Texas. He's replacing Bobby Ray Inman, who's been the interim dean since Edwin Dorn left the job last year. Both Inman and Dorn remain on the school's faculty.

Charla Ann King is the new COO at the Texas Racing Commission. She's replacing Paula Flowerday, who's been at the agency for years and is leaving to move to North Texas, in the agency's words "due to family commitments." King had been an aide to Texas Workforce Commissioner Ron Lehman, and worked at the State Bar and the Texas Sunset Commission.

Robert Shepard is the new chairman of the Texas Higher Education Coordinating Board, replacing Jerry Farrington in the middle seat. Farrington will remain on the board. Shepard, a George W. Bush appointee who was reappointed by Rick Perry, had been vice chairman. 

Trey Trainor is leaving the House — he's the chief of staff to Rep. Phil King, R-Weatherford and clerk of King's Regulated Industries Committee — to become general counsel at the Secretary of State's office. SOS Roger Williams is also from Weatherford, so there are local ties all around (Trainor is from there, too). He'll replace Ben Hanson in Williams' office.

Press corps moves: This item is ridiculously late, but Brandi Grissom, who worked for the Associated Press in its Austin bureau during the legislative session, is the new Austin Bureau for the El Paso Times. Gary Scharrer, who held that job for years, moved earlier this year to the San Antonio Express-News.

Steve Taylor, who had been doing the "Border Buzz" section of the Quorum Report, has started his own electronic newsletter, focusing on government and politics from the perspective of Texans who live and work on the state's border with Mexico. The Rio Grande Guardian combines original reporting and newspaper clippings.

Quotes of the Week 

Lt. Gov. David Dewhurst on business groups pushing the House's tax plan over the Senate's: "Golly gee. It moves a billion dollars of taxes from business onto individuals and consumers. Duh. That's kinda easy. I'd be a little surprised if, given a choice as paid lobbyists, they wouldn't think it's a better plan."

Rep. Dan Branch, R-Dallas, quoted in The Dallas Morning News on the state Senate's regular practice of working on legislation in closed meetings: "If you're meeting in a 'caucus of the whole', you're avoiding all the sunlight."

Sen. Steve Ogden, R-Bryan, on the prospects for school finance: "If the House wants to negotiate, we'll reach an agreement."

House Speaker Tom Craddick, on a Senate proposal to use money in a tobacco lawsuit settlement account for school finance: "The House side, and I think I speak across the board, is not for using one-time funding mechanisms or smoke and mirrors to do property tax relief or education funding."

Lt. Gov. David Dewhurst, on the tax swap legislation: "The political reality is that we're not seeing the willingness on the part of our friends in the House to look at a serious overhaul of our tax system."

Sen. Kip Averitt, R-Waco, on expanding the state's business franchise tax to include partnerships: "Not one person is going to file a personal income tax return based on this legislation... to couch it as an income tax is not correct."

Sen. Steve Ogden, R-Bryan, on taking partnerships out of a tax bill he hoped would broaden the business tax base: "By voting on what we think is possible, we give up on what we think we should do... as the author, I am frankly disappointed."

Rep. Charles "Doc" Anderson, R-Waco, telling the Waco Herald-Tribune why he voted for a tax bill in spite of his opposition to a tax on bottled water: "It's not a cafeteria where you can eat what you want."

North East Superintendent Richard Middleton in the San Antonio Express-News: "In 1995, we tried to reform education. In 2005, the goal is to dismantle public education. This bill has nothing to do with adequately funding schools. It has to do with providing property tax relief."

Rep. Craig Eiland, D-Galveston, quoted in the Galveston County Daily News: "The last thing we need is another blue ribbon committee."

Sen. Kyle Janek, R-Houston, quoted by the Austin American-Statesman after voting against a judicial pay raise that triggers an increase in legislative retirement benefits: "I've got enough problems back home without voting for this." 

Texas Weekly: Volume 22, Issue 7, 18 July 2005. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2005 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 info@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 288-6598.