Never Say Always

It's usually true that the Lege is a slow-moving machine, but not always. Look at the moves to jump around constitutional constraints on increased state spending: Mired two weeks ago, coupled with a tax break for elderly homeowners one week ago, and now out of the Senate, out of the House Appropriations Committee and on its way to a floor vote next week.

If the full House goes along and votes to increase the budget more than the constitution allows, then Ba-da-bing, ba-da-boom, the controversy — or at least this phase of it — will be in the rear-view mirror.

The House is set to vote on the tax cut for elderly homeowners at the first of the week; the vote required to ignore the cap on spending could come soon after, though it wasn't on the agenda for Monday.

The danger is that the delay leaves time for things to come apart. It wouldn't be the first fatal weekend in legislative history. But the spending measure is limited to school property taxes, and all but the most jittery lawmakers will be able to tell their voters that property tax cuts were the sole reason for the spending vote.

The interruption leaves the door open for the sort of debate that the legislature has avoided. Because it's a concurrent resolution, the matter doesn't have to be debated in committees. It doesn't require supermajorities at any stage (no two-thirds vote was required in the Senate, which was fortunate since it didn't have sufficient support at that level).

Democrats within the House and without disagreed with the spending cap move, because it limits the breach to money needed for the school property tax swap approved by lawmakers last spring. The rest of the budget isn't set, but will be effectively subject to a spending cap of its own. Put another way, the resolution on spending leaves the current limit in place for everything in the budget — except for the money needed for the property tax swap.

The Democrats — from House members to the state party — said that once legislative leaders decided not to seek a constitutional amendment on spending, they forfeited the need for speed. A constitutional amendment would have to pass now to get in front of voters in time. Without that in play, lawmakers could just as easily wait until, say, the month of May when they know what the rest of the budget looks like.

Waiting, however, would be hard on the budgeteers. It's always easier to nix new projects or proposals if you're out of cash. And with a spending limit effectively in place on everything outside of those property taxes, the budget folk will have something in common with Austin Powers. He got his Mojo back. They'll restore their No.

The other piece of this has been almost entirely without controversy, at least until it was stitched to the spending limit.

AARP has been lobbying for the tax cut for the elderly, but squawked about linking the issue to voter approval of a spending cap. The Senate bill initially linked the two, as did one of several bills in the House. But a couple of those House bills deal separately with the seniors, and that association prefers those. The Senate versions are moving, but they're now split: limits here, breaks there.

Tying the two issues together might have added the push from the state's elderly taxpayers to the spending cap issue. Viewed from the other end of the seesaw, however, it put the spending cap in danger of falling to voters who want more fiscal restraint from the state government.

Legislative leaders were trying to get constitutional amendments in front of voters before the session ends. That might not have worked out even if it had survived the Lege. If voters didn't approve the one-time violation of the spending cap, lawmakers would still have had time to do some damage control. But it would have been an ugly choice. On one hand, they could make cuts from a budget that already (by that time) would contain nearly fulfilled promises for various spending programs. On the other, they'd still have had the power to vote to spend more than the cap allows. But it would be risky to do that after their constituents had refused higher spending. It would be tough for lawmakers to go home and try to explain how they voted to bust a spending cap their voters had recently attempted to enforce.

One more matter made the spending cap a tough chew. In order to make the timing work, lawmakers have about a week to get the constitutional amendments out of the Legislature and into the hands of the Secretary of State, which runs elections. A delay here and a filibuster there could have pushed them to do what they're now doing — putting the spending limits out for an up or down vote in the both houses, and leaving voters out of the decision-making.

The Search for a (Political) Cure

As a political issue, Gov. Rick Perry's order for HPV vaccines has proven to be as persistent as the medical problem that inspired it.

He's still defending it, while the Legislature is working to either match his move or, from another viewpoint, to come up with something that doesn't go as far. A group of Democrats and Republicans have banded together to work on a watered-down version of Perry's order. And the request for a legal opinion on his executive powers is pending.

The Guv's executive order for 11- and 12-year-old girls to be inoculated against a disease solely transmitted through sexual conduct sent many of his fellow Republicans spinning. Medical experts agree that the human papilloma virus (HPV) can cause cervical cancer, and Merck has developed a vaccine called Gardasil that can prevent HPV.

Perry's order allowed lawmakers an out if they wanted it, but they apparently didn't want it. They've asked for legal opinions about his authority, and will hold hearings this week on two bills on the subject. One from Rep. Dennis Bonnen, R-Angleton, would bar making the vaccine a requirement for girls entering schools. Another, authored by Rep. Joe Deshotel, D-Beaumont, would require schools to educate kids about HPV without requiring any vaccinations.

Despite the outrage of mostly Republican lawmakers that Perry had bypassed the legislative process with an edict four days before his State of the State address, some (but not all) Democrats applauded his action. Rep. Jessica Farrar, D-Houston, and Sen. Leticia Van de Putte, D-San Antonio, had already introduced bills calling for the vaccinations, prior to Perry's executive order. Rep. Donna Howard, a nurse and an Austin Democrat, also endorsed Perry's unilateral move.

Farrar took things a step further by hosting a briefing by some doctors and a cancer survivor at the capitol for reporters and also for her legislative colleagues.

Dr. Janet Realini, a physician and public health expert with the San Antonio Metropolitan Health District, noted that over 70 percent of those who have had sex have or previously had had HPV. Realini, who rattled off numbers in a PowerPoint presentation heavy with statistics, said that 14 percent of females who've had just one lifetime partner have the virus.

Why give the shots to girls so young? Because four percent of girls are sexually active before age 13, while 62 percent of high school seniors have had sex. And Texas already requires schoolchildren of both sexes to be vaccinated against Hepatitis B and Tetanus. Cervical cancer is the second most common cause of cancer death in women, causing 288,000 deaths per year. The vaccine, if given before HPV is contracted, can protect a woman from that cancer. The vaccine offers no protection if given after exposure, Realini said.

Jacqueline Golson, a Houston teacher and cervical cancer survivor for 20 years, said she continues to suffer consequences despite being cancer free. She lost a kidney, requires monthly injections that cost  $5,000 each, and has had overall medical bills of more than $2 million.

Meanwhile, Perry's executive order has generated editorials around the state, some praising his action and others saying it should be sent through the legislative process. Former District Judge Scott McCown, who now heads up the Center for Public Policy Priorities and wrote an op-ed piece saying Perry's move was unconstitutional, has legally challenged Perry's action.

The governor has no more power to order a state agency to require vaccinations (that cost $360 for a series of three shots) than he has to order Texas A&M University regents to require every Aggie to be in the cadet corps — or to abolish the cadet corps, McCown said.

"It's just as wrong for the governor to say 'I'm not following the rule-making process; I'm just making a rule,' as it would be for a judge to say, 'I'm not holding a trial; I'm just finding you guilty.'" McCown said. "Because we have a whole process for making rules that includes public testimony, legislative input, and so on, and he's just skipping all that."

— Dave McNeely

Moving Targets and Big Deficits

Deregulated college tuition might have been good for the finances of the state's universities, but it froze the state's prepaid tuition program. State officials who want to get it started need a sack of money, and some certainty over where college tuitions are headed.

They're poking around for solutions, but need either a way to fix their targets — tuitions are changing at different rates at different institutions — or to make sure investments keep up with the rising tuition rates. And if it's opened, parents who get in now will pay more than their predecessors, since the costs of college have risen so quickly.

The board that oversees the state's prepaid college tuition plan — that's a program that hasn't sold new contracts since June 2003 — will meet sometime soon (no meeting is posted yet) to release an annual report and to talk about other business. For instance: The program's continued existence is the subject of a Sunset Advisory Commission review this year.

That annual report is where you get the number that tells you how much it'll cost taxpayers and colleges to educate the kids who got contracts before the door slammed shut. Voters put a state guarantee in the constitution before the Legislature deregulated tuition; the state's on the hook for the difference between what parents paid and what school will actually cost. Amend that: The state universities are on the hook. They eat the difference between what the fund pays them and what they're actually owed.

Last year's report said the state would have to put up $107.7 billion to cover that difference. The number changes some each year, when the number crunchers match their guesses against experience. The new number will come out when the board meets, and that'll happen, we're told, when members whose terms have expired are replaced. The timing is up to Comptroller Susan Combs, whose agency houses that board.

Voted Twice? No Dice

The Texas Democratic Party thinks the eSlate voting machines used in the November elections were tilted to punish people who voted straight tickets, regardless of which party. Their efforts could bring additional heft to calls for better paper trails in electronic voting.

The spark was a race for an open county judge seat in Madison County (county seat Madisonville, northeast of Bryan), in which the Democratic candidate lost by 35 votes out of almost 3,000 cast.

Turns out that the voting machines, which were used in at least 102 of Texas' 254 counties, had what the Democrats consider a huge programming flaw and what state election officials consider a feature. If you voted a straight ticket — Democratic or Republican — and then re-emphasized your vote by marking yet again your favorite candidate of your party for senator or governor — or county judge — that extra emphasis actually canceled your vote in that race.

Even though the eSlate machine, manufactured by Austin-based Hart InterCivic, would show you your ballot choices before you finally hit the big red button to finalize your vote, Texas Democratic Party Chairman Boyd Richie and Austin attorney Buck Wood say it fell short.

"It's a roadblock where you lose the vote for the person you most wanted to vote for," Wood said. He pointed out that people who voted absentee in advance, on paper ballots, would allow all the votes to be counted if someone voted a straight ticket and then happened to re-emphasize one's vote, for instance, for county judge. What worked on the absentee ballots didn't work on the machines.

Wood has filed suit in state district court on behalf of Wilburn Carlton Bullard III, the Democratic candidate for Madison County judge, who was beaten by 1,449 votes to 1,414 by Republican Arthur Henson.

Richie and the Democratic Party have filed suit in federal court against Texas Secretary of State Roger Williams, seeking a restraining order to keep the machines from being used again unless and until they are programmed so that straight-ticket voters, re-emphasizing their vote within their own party, won't have those votes canceled out.

He said elderly people and some others wound up, because of the eSlate system, canceling out their favorites by marking them in addition to casting the straight ticket vote.

"You lost your vote for the very person you most wanted to vote for," Wood said.

Scott Haywood, a spokesman for Williams, said the machines are doing what they're supposed to be doing.

"The eSlate machines are correctly reporting people's votes," Haywood insisted. "It's casting the ballot accurately according to how that person voted."

"I would argue that reading the summary screen and seeing who you voted for is not an issue of being technologically savvy," Haywood said. "It clearly says that there's no selection made. This office has more confidence in the Texas voters that when they see that, they didn't make a selection... There's no state law that requires an emphasis vote function."

— Dave McNeely

Flotsam & Jetsam

Appraisal cap or not, the Legislature has a chance to protect counties from unfunded state mandates. Rep. Wayne Smith, R-Baytown, proposed a constitutional amendment that would force the Lege and state agencies to pick up the tab for orders imposed on those local governments. Something like that is included in the recommendations from Gov. Rick Perry's task force on appraisal reform, but it's coupled with other things, like a cap on increases in county revenue from local property taxes.

• Coming up next week: House committee hearings on "Jessica's Law" legislation that would increase penalties for sexual assault of a child. It's a priority issue for a slew of mostly Republican lawmakers, from Lt. Gov. David Dewhurst on down. House Criminal Jurisprudence will hold hearings on that and related issues Tuesday.

• The "check register" for the Texas Education Agency is now online, showing what that agency has spent since the September 1 of last year. The comptroller was first, followed by the governor's office. If they post it, will Texans start digging through budgets? Gov. Rick Perry and other state officials want to push the "transparency" trend down to local school districts and other governments.

• Strange notes from the lobby: Lobbyists for the Texas Dental Association a "four-pound tub of candy" to legislative offices, and drew a response from the association for their aides. The Texas Dental Hygienists' Association delivered toothpaste, toothbrushes and floss. We await the return fire with fresh, but bated, breath.

• The first and (as far as we know) the only comprehensive look at this decade's redistricting wars in Texas is out from UT Press. Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom Delay was written by Steve Bickerstaff, an attorney and bona fide expert in the subject. And the UT law school, where Bickerstaff is an adjunct prof, is doing a symposium on the book featuring players in redistricting, in the election corruption court fights that stemmed from Republican efforts to win a legislative majority in 2002, and in the redistricting court fights that went to the U.S. Supreme Court.

Political People and Their Moves

As expected, Harris County Judge Robert Eckels announced his resignation from that job. County commissioners will appoint a replacement who'll serve until the next election. Eckels, a former state representative, is looking at private sector jobs. Speculation on his successor has centered on former state lawmaker Ed Emmett and on Harris County Clerk Charles Bacarisse.

Seen in the Legislative Reference Library this week: former Rep. Joe Nixon, R-Houston. Nixon found his up or out effort last year became out rather than up, when radio talk show host Dan Patrick won the GOP primary for a vacant Senate seat. Nixon said he wasn't lobbying, just doing some lawyering for friends.

Also back in the Capitol: Patricia Kilday Hart, longtime co-contributor to Texas Monthly's biennial Ten Best/Ten Worst legislative rankings. Hart had spent a few months working for Mary Scott Nabers'Strategic Partnerships, but found she missed real on-the-ground journalism too much. For what it's worth, she's already contributing some items to Paul Burka's Burkablog.

The Senate essentially shut down for a day for the funeral of Martin Donald, an 86-year-old Holocaust survivor and the father of Sen. Florence Shapiro, R-Plano.

Move Justin Keener back into the government, this time as an "external communications advisor" for House Speaker Tom Craddick. Keener was most recently with Weber Shandwick, a PR outfit. Word is that he'll be the contact for outside groups, will advise House members on outside communications and help with regular press work.

Phil Ricks, who worked for a long time for former U.S. Rep. Henry Bonilla, R-San Antonio, has joined U.S. Rep. Michael McCaul, R-Austin. He'll be McCaul's district director.

Appointments: Gov. Rick Perry named Michael Kent Burns of Mineral Wells to be District Attorney of the 29th Judicial District (that's Palo Pinto County). He's an attorney in private practice, and a former cop, and will serve until the general election in 2008. He'll replace Tim Ford, who resigned to return to private practice.

Perry appointed Dora Rivas of Dallas to the Texas Diabetes Council. She's a nutritionist with the Dallas ISD.

He named James Shoemake of Missouri City as judge of the 434th District Court in Fort Bend County. He's currently an associate judge in another district court, handling family law cases.

The Guv reappointed Conrith Davis of Sugar Land to the Texas Board of Pardons and Paroles. He's a retired U.S. Air Force officer.

Former U.S. Rep. Ken Bentsen Jr., D-Houston, is the new chairman of the board of Susan G. Komen for the Cure, the big anti-cancer foundation.

House Speaker Tom Craddick's newest appointee will replace her dad. Laurie McReynolds of Waco joins the Small Business Compliance Assistance Advisory Panel in place of Jack Godfrey, Sr. She's a dry cleaner franchisee.

And Craddick named Charles Butts to the executive committee of the Office of Rural Community Affairs. Butts is a hospital administrator in Lamesa.

Recovering: Republican Mike O'Day of Pearland — the newest member of the legislature after a special election earlier this year — from heart trouble. He's got a new stent and is doing nicely, according to aides

Quotes of the Week

Nazareth ISD superintendent Keith Langfitt, on the district's shrunken tax base and its deficit budget, in ESPN.com: "It terrifies me. School finance flat out terrifies me. How many bad years could we have? I'd say two right now. We don't have the fund balance to live off of."

Attorney Howard Wolf, a citizen member of the state's Sunset
Advisory Commission, writing about alcohol lobbyists at a commission hearing: "Poised like lions on a patch of high ground in the Serengeti, occasionally swishing their tails so their presence would be noted, the lions of the lobby watched at hearings to ensure that no Republican elephant or Democratic mule would dare stray from the prescribed path."

Former House Majority Leader Dick Armey, R-Lewisville, on former House Majority Leader Tom DeLay, R-Flower Mound, in an interview with the Fort Worth Star-Telegram: "I have my own understandings and feelings about Tom DeLay... I don't believe he's a good person, and I don't believe he... should have been in public office."

House Speaker Tom Craddick, in the Midland Reporter-Telegram, on the outlook for public funding of private school education: "The House has taken up vouchers several times and the Senate never has. The feeling here is that if the Senate passes a bill, we'll take a look at it."

Gov. Rick Perry, in an interview with The Dallas Morning News about his recent initiatives on the lottery and HPV vaccines: "These are good ideas and will stand the test of time. I don't spend a lot of time worried about whether someone is spending too much time gazing at their belly button wondering what I'm doing."

Rep. Rick Noriega, D-Houston, as the House Appropriations committee voted to ignore the constitutional cap on budget growth, quoted by the Austin American-Statesman: "What's the rush?" he said. We're painting ourselves into a corner. We're now going to have a lot of competing, important priorities for the state competing for the crumbs."

Special thanks this week to Dave McNeely, who got us out of a jam by scribbling a couple of articles this week. McNeely, a longtime reporter and columnist for various papers, is now allegedly retired. But he's like the Al Pacino character in the Godfather movies who complained, "They keep pulling me back!" His column appears in several newspapers around the state and he runs traps at the Capitol with a press pass from the Port Aransas South Jetty.

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Texas Weekly: Volume 23, Issue 33, 19 February 2007. Ross Ramsey, Editor. Copyright 2007 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 (512) 302-5703 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 288-6598.