A Persistent and Spreading Affliction

The call for a mandated vaccine against HPV in pre-teen girls might get the opposite result. A House committee voted this week to make it against the law to mandate the shots. The only company with a government-approved vaccination said it'd stop its 50-state lobbying effort on the drug. The issue leapt from Texas to national news and talk shows and all that in a matter of days and — more importantly — stayed there. And Gov. Rick Perry's power to issue executive orders found a tall speed bump in an Austin courtroom, when a state district judge said —in an unrelated case — that a state agency isn't required to follow Perry's orders.

You might remember that the House can't consider anything but emergency legislation until March; it might not matter. The proposed vaccination for human papillomavirus and a battle over whether lawmakers should ignore the constitutional limit on state spending might have pushed everything aside anyhow.

In an odd way, the House Democrats making trouble for Speaker Tom Craddick might have helped with this. They tripped up a routine vote that would have made it possible to consider normal business in the House during the first 60 days of the session. That means, among other things, that the no-mandate bill sponsored by Rep. Dennis Bonnen, R-Angleton, can't come up for a vote before March 12. Things might not cool off by then, but it gives the Guv time to work. The vote counts will be important. If they're not overwhelming, Perry could veto the legislation and survive any attempt to override his veto.

The pop on executive orders came in a lawsuit about coal plants. Perry had ordered the Texas Commission on Environmental Quality to fast-track consideration of nearly a dozen new plants needed, according to the utility that wants to build them, because of rapid growth in the state. Environmental groups that want cleaner fuels and/or newer technologies to be used sued, saying Perry didn't have the authority to speed consideration. A state district judge agreed and hearings that were to have begun this month will start in late June instead.

And don't forget that pending request from Republican legislators who want Attorney General Greg Abbott's opinion on whether the executive orders are legal.

Cancer Patient: Okay the HPV Vaccine

Gov. Rick Perry set the tone for legislative hearings on HPV vaccines by introducing reporters to Heather Burcham, a 31-year-old Houston woman who's dying of cervical cancer and says an HPV vaccine — or an accurate diagnosis from any of four doctors — could have saved her life.

She said she went undiagnosed for four years by four different doctors who told her she had another, unrelated disease. By the time the physicians figured out what was going on, she had a stage four cancer than has spread into her lungs, one kidney and pancreas.

Burcham said doctors assumed she was too young to have cervical cancer and missed the cancer even after an operation. They didn't do a biopsy, thinking her age ruled out the cancer. They told her, she said, that she had endometriosis and needed a hysterectomy.

After four years of medical misreads, she was diagnosed with an "aggressive and rapid-moving" cancer last April, treated with radiation and chemotherapy after that, and is now in hospice care. She expects to live six months or less.

A mutual acquaintance — Welcome Wilson, a Perry appointee to the board of regents at the University of Houston — brought Burcham to the governor's attention after Perry issued an executive order requiring girls to have an HPV vaccine before entering sixth grade, starting with the 2008-09 school year. Burcham said she was embarrassed to have caught HPV and didn't realize until too late that it causes 70 percent of all cervical cancer cases.

Her mother, who was diagnosed with cervical cancer several years ago, caught it early enough that it could be cured. Had the younger Burcham's case been diagnosed early — when she first complained of problems — she said she'd probably be past the disease by now, too.

Perry's order has come under fire from legislators and others who variously think he overstepped his authority, that he went to far in making a vaccine a requirement for entering school, and that he is asking young girls to get a vaccine against a disease that is transmitted primarily by sexual contact. He's got plenty of supporters, too, but even some of those think the vaccine should have gone through the Legislature instead of the governor's office.

We had some world stats on the disease last week. Some U.S. data: Cervical cancer is the 14th most common form of cancer among U.S. women. There were 11,150 new cases in the U.S. last year, and 3,670 deaths from the disease.

Burcham said she agreed to speak out in hopes "that I have reached one person — that my life will not have been lived in vain." She testified before the House Public Health Committee, which later turned in that 6-3 vote for legislation that would overturn the governor's HPV vaccine order.

Burcham said she's not interested in suing any of the doctors, given the short time she has left. A spokesman for Perry — asked whether the state plans to investigate to see whether Burcham's doctors should be punished or have their licenses revoked, said they hadn't asked Burcham for the names of the physicians who misdiagnosed her. She said she wanted girls to get the vaccine, but said she hadn't thought about whether doctors should get more education about HPV.

The "Little" Budget Bill

Legislative budgeteers want to split the state budget into the regular ol' state budget and the school property tax cut budget. They want the constitutional spending cap to apply to the regular ol' budget, but they want a one-time pass to cover the $14.1 billion needed to cover the cost of local property tax cuts.

That's why the House came up with a second appropriations bill that only takes care of the school deal. In short, state spending on education is increasing by $14.1 billion, while local districts cut local property tax rates by the same amount. It's a local property tax cut made possible by the state's agreement to foot more of the bill. (If you're confused by all the talk about tax cuts being treated like spending increases, that's the answer: State spending is going up, and local property taxes can fall since the local school districts are picking up a smaller part of the tab. You're getting a local tax cut, while state government is growing by the same amount.)

HB 2 is the "little" appropriations bill. It's paired, more or less, with SCR 20, the Senate resolution that — if finally passed — will allow lawmakers to exceed the constitutional spending cap by enough to accommodate the school finance tax swap. That resolution is supposed to be considered by the House on Tuesday.

And after a long conversation about it, the House passed the little bill with only six nays. It's on its way to the Senate. They passed SCR 20, too, which had already won approval from the Senate. That's on its way to the middle office in the Pink Building.

• Compound interest: By voting to ignore the spending cap for the 2008-09 budget, the Legislature made it a little easier to spend more money two years from now. The money spent in the budget now being written will be the basis for what's spent in the next budget. The limit on that budget will be based on this budget, and since the base is bigger, by $14 billion, than it would have been without the spending limit vote, the next Legislature will have that much more money to spend.

• Department of Corrections: In some editions last week, we wrote that concurrent resolutions — like the one to ignore the constitutional spending limits for school property tax purposes — don't have to go through the governor's office for approval. We were wrong. Joint resolutions — the ones that create constitutional amendments — go around the Guv, but concurrent resolutions like this one go to the governor for signature. That means Rick Perry will have to sign off on ignoring the spending limit, too. As for the mistake, we are sorry, sorry, sorry.

Whoooosh!

The House wants elderly homeowners to get a tax break as badly as the Senate wants it; the lower chamber voted 146-0 for a constitutional amendment that would grant those homeowners a tax break. The Senate approved a similar measure — unanimously — last week. The House added an amendment and sent it back. Legislators want to get the constitutional amendment in front of voters on May 12. That's two weeks before the end of the regular legislative session that's now underway. The fiscal analysis on the bill doesn't say what it would cost to give the tax break to elders — the amendment wouldn't actually do anything more than authorize the break. But during the debate, Rep. Leo Berman, R-Tyler, acknowledged that it would cost $276 million to give elderly homeowners the same tax cuts everyone else is getting on property tax rates. With or without the proposed constitutional change, elderly homeowners still get their property values frozen for tax purposes.

How is Texas Like Iowa?

The Republican Party of Texas is pulling together a convention and straw poll for presidential candidates in August in Fort Worth.

GOP chairwoman Tina Benkiser said the gathering could attract up to 20,000 people. Republicans who were delegates to either of the last two national conventions or to any of the last four state conventions would be allowed to vote if they show up and register for the event.

Benkiser said the aim is to give grassroots Republicans a chance to see and meet the candidates, and to get the campaigns to stop treating the state as little more than "a giant ATM" for national politics.

"Texas should never be taken for granted or pigeon-holed or put into a particular category," she said. "... In a Republican primary, it's up for grabs in Texas right now."

That's not a regular state convention year for the GOP — the state party meets in June of even-numbered years — but Benkiser said the new convention will have a lot of the same features, like speeches, meetings, seminars on campaigning, and so on.

They've talked to some of the presidential campaigns, and have set dates: August 31-September 1 in Fort Worth.

Texas primaries are currently held in March, which is usually well after other states have decided who'll be on the presidential ballot for both parties. A late-summer straw poll — even in only one party — could make the state a more important place for the candidates. Along the same lines, the Legislature is considering new primary dates — in February – in an attempt to give Texas voters some say in what candidates their parties nominate for president.

Texas Democrats don't plan to join in with a parallel convention, and took the opportunity to dis the GOP. "Republicans are having to resort to gimmicks like straw polls to generate interest," said Amber Moon, a spokeswoman for the Texas Democratic Party. And she questioned whether the Republican delegates who show up for that kind of event are representative of the state, or even of mainstream Republicans. "They're trying to get the extreme right a bigger voice."

The Republicans say they're trying to get Texas a bigger voice in national politics, and to have some fun along the way.

Both parties support those legislative efforts to move up the primaries, and for the same reason: To get Texas voters more clout in the outcome of presidential primaries.

A Quiet Call for Reform

The state's top judge says the courts need an overhaul, the state needs an innocence commission to review possibly wrongful convictions, and said the trend toward private settlements of legal matters could undermine justice in Texas.

Texas Supreme Court Chief Justice Wallace Jefferson told lawmakers in his State of the Judiciary address that they ought to do a full review of the judiciary in Texas, looking at structure and funding and effectiveness.

Jefferson said the number of lawsuits has increased over the last few years, but said litigants are opting for private-sector solutions, like arbitration and mediation. Jury trials are less common than they used to be.

He said that comes at a cost. Outcomes don't have to be consistent. Big mistakes can't be corrected because there are no appeals. "Finally, a privately litigated matter may well affect public rights," he said. "Its resolution may ultimately harm the public good or, because the decision is secret, impede an innovation to a recurring problem, much to the detriment of Texas citizens."

He said the legislature should take up judicial redistricting and streamlining to get rid of overlapping regions and imbalances in where courts are placed and where they are needed. He said family courts are an example for specialized courts that would be helpful in other subject areas, such as business, or torts.

Jefferson said the state should start an innocence commission to review cases where potentially innocent people are convicted and imprisoned. And he said Texas needs to figure out how to manage inmates — about 15 percent of the total, he said — who suffer from mental illness. There's no system in place to make sure a convict's mental problems are brought to the attention of the courts.

Spitting Contest

Remember the fight over taxes on snuff?

Lobbyists can win in at least two ways when they need something from the Legislature. They can get what they want or they can almost get what they want on behalf of a client who's willing to keep paying for rematches.

Somewhere, someone's happy about a smokeless tobacco tax fight that's now entering its fourth session. Here's a quick and sloppy catch-up: Smokeless tobacco, or snuff, or "that filthy stuff" as grandmother called it, comes in premium and non-premium brands. The product is taxed on the basis of price, so the premium product — which is already more expensive — pays a higher tax and becomes more expensive still.

This sticks in their craws.

The company with two of the premium brands — U.S. Tobacco — has been trying since at least 2001 to get the state to switch to a weight-based tax, so that every tin of snuff would be taxed the same amount, regardless of price. (One lobbyist in the fight says it's ten years older than that.) That would have the effect of narrowing the price difference between their big brands — Skoal and Copenhagen — and cheaper products from them and from others, including their main rival in this deal, R.J. Reynolds (which also has a premium brand — Kodiak — as well as some cheaper ones).

It would also have the effect of turning a tax with built-in increases into a fixed-rate tax. When prices go up now, the tax goes up with them. Weights — the basis for the UST-proposed tax — don't often change. Price-based taxes, like the state's sales tax, rise with prices. The companies and consumers might not like that math, but lawmakers do, because it brings in more money as the years go by without any votes to raise taxes.

This tax was part of the fight last spring, when lawmakers were creating the business margins tax, raising cigarette taxes and taking other steps to raise money so the state could take on a greater share of the costs of public schools. But the proposed change to the smokeless tax — that version would have raised $32 million over what the state then collected — didn't make it into the final school finance package.

Former Comptroller Carole Keeton Strayhorn championed the new tax in 2001; when it failed to pass the Legislature, she lowered her revenue estimate by $18 million, saying the switch would have brought in that much in new taxes every two years. The advocates for change this time are House Appropriations Chairman Warren Chisum, R-Pampa, and Sen. John Carona, R-Dallas.

Assuming the Worst

A group of private financial advisors is telling Comptroller Susan Combs that the Texas Tomorrow Fund's problems are worse than they look. And they've looked bad since the Legislature deregulated college tuition.

The numbers get complicated, but the basic problem is simple: The prepaid college tuition program was set up when tuition was controlled by the state Legislature, which kept it artificially low. The state sold contracts to people, guaranteeing that no matter what happened, the state would cover tuition and required fees when the kids attached to those contracts hit college.

When tuition was deregulated and put in the hands of the universities, they immediately started making up ground lost when the Legislature was scrimping. Tuition went to market rates, and the tomorrow fund was stuck with a problem: Contracts were priced for the old, low tuition rates and the state is on the hook for the high rates.

There's a deficit. And now the questions focus on its size and what to do about it.

Now the numbers. The tomorrow fund's own report says it's got a $110 million deficit. That's the present value of the hole expected in the year 2029; the future value of that hole is $689 million. (Not a number jockey? That means that $110 million invested now would be worth $689 million in 2029, enough to cover the deficit.)

Combs' private advisors are telling her the future hole is bigger — somewhere between $1.74 billion and $3.31 billion. Guess which number got the headlines.

Those advisors said the board that runs the fund has been relying on rosy financial projections. "Our review found that the plan's current projected deficit of $689 million in 2029 understates the magnitude of the state's unfunded obligations and is based on overly optimistic and unsupportable assumptions," they wrote. They recommended keeping the program closed to new enrollments, as it has been since 2003.

In their optimistic scenario, the plan would run out of money from contract-buyers in 2018; everything after that would be picked up by taxpayers. That's the same year taxpayers take over in the pessimistic plan, but the hole they'd have to fill would be almost twice as big.

The advisors say proposals to reopen the plan don't address the current deficit — that's the $110 million — or the basic problem with trying to prepay unregulated tuition. "Because it is impossible to precisely predict how fast the cost of Texas college tuition will rise in the future, it is likewise impossible to correctly price the cost of entry to new participants. Consequently, reopening the plan increases the risk that its ultimate shortfall will mushroom in size."

One last warning from those folks: The problem will be worse if the Legislature waits to do something about the deficit than if it acts now.

Here's a correction for you: Never say Billion when you mean Million. We did it last week, when we mis-reported the tuition plan's deficit from its 2005 report. We should have said $107.7 million. A Billion apologies.

Political People and Their Moves

Harris County Judge and former Rep. Robert Eckels will join Fulbright & Jaworski now that he's given up his post at the head of Harris County government.

Mr. South Texas for 2007 is... drum roll... Lt. Gov. David Dewhurst. He was the honoree at the Washington's Birthday bash in Laredo.

Appointments: Gov. Rick Perry named Jacquelyn Hawkins of Austin to the Real Estate Research Advisory Committee, which oversees the Texas Real Estate Research Center at Texas A&M. She works for the USDA's Food and Nutrition Service.

Perry reappointed Maj. Gen. (ret.) Josue Robles Jr. to the Texas Military Preparedness Commission. He's an executive with USAA.

And he appointed former Mayor William Lindsay Jr. of Denison to the Small Business Industrial Development Corporation. Lindsay was the helicopter pilot for three U.S. presidents — Nixon, Ford, and Carter — before retiring and coming to Texas. The governor also designated A. Mario Castillo of San Angelo, who was already on that board, to chair it.

The Senate confirmed Julie Parsley's reappointment to the Public Utility Commission. She's been on the commission since 2002.

House Speaker Tom Craddick made three appointments, naming Reps. Ryan Guillen, D-Rio Grande City, and Tracy King, D-Batesville, to the Border Legislative Conference, and naming Rep. Harvey Hilderbran, R-Kerrville, an alternate to that group.

Deaths: Former Rep. John Gavin, D-Wichita Falls. Gavin, who was Wichita Falls' mayor, later served in the Legislature from 1981 to 1991. He was 86.

Quotes of the Week

Robert Morrow, an Austin man who testified in House hearings against Gov. Rick Perry's mandate of HPV vaccinations for girls entering the sixth grade, quoted by the Associated Press: "I do not think the state of Texas should be in the business of preventative health care for teenage sluts."

Rep. Leo Berman, R-Tyler, quoted in The Dallas Morning News after a business coalition came out against proposed state laws restricting immigration: "I'm a life member of the TAB and I am absolutely disappointed, and will probably drop my membership since they got involved in an issue of illegal aliens, which has nothing to do with business."

Appropriations Chairman Warren Chisum, in the Amarillo Globe-News: "When you take the job I have, you are like a duck — everybody wants to take a shot at you."

Bexar County Commissioner Lyle Larson, who's considering a run against U.S. Rep. Ciro Rodriguez, D-San Antonio, in 2008, in the San Antonio Express-News: "It looks like it's still a Republican district if you get the vote out. This is one that was lost that never should've been lost to the Democratic Party."

Sen. Troy Fraser, R-Horseshoe Bay, quoted by the Associated Press: "My concern is, is that this is opening the door to the mentality of slots in 7-Elevens. I don't want slot machines in 7-Elevens."

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Texas Weekly: Volume 23, Issue 34, 26 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.