All Fall Down

He's still the lead gorilla, but House Speaker Tom Craddick is no longer a 900-pounder. More like 300. And the adage about 900-pound gorillas sleeping "wherever they want to" applies here, too. A 300-pounder has to pick his way through the band, lest one of his 250-pound colleagues turn into an open rival.

Just now, there is no clear rival. Craddick's predecessor, Pete Laney, used to say that a speaker is every member's second choice for the job, right behind that member. So far, nobody's making his or her second choices (openly) apparent.

The chatter about a new speaker is back — not quite as loud as in December, when actual challengers surfaced — but louder than it's been since January, when Craddick held onto the post by a seven-vote margin.

Members are talking about it amongst themselves, with lobbyists and others, wondering who — if anyone — will challenge Craddick. Whether a challenge makes more sense now or at the beginning of the next regular session. Whether Craddick will seek another two years in the corner office. And whether all of this is nonsense fired by a session that isn't focused on a particular big issue or fight.

Craddick has kept a relatively light hand on the wheel since that January election, and that's part of what got him this week. (Relative is the key word: He hasn't enforced floor votes the way he did two years ago or in last year's special session on taxes. He doesn't vote as often as he did in past sessions.) Craddick's ruling on a point of order was challenged from the floor. If you're in the high chair and you play that wrong, it turns into a referendum on your leadership. Craddick and his supporters fumbled the play.

That's the second rule mess in as many weeks and these things have a way of encouraging a speaker's detractors. And you'll find a strange twist if you look: Craddick, trying out that lighter touch this session, isn't using his clout to protect his lieutenants.

So you start with a complaint from his opponents that he's using too heavy a hand. When he lightens up and lets the House vote as it will, his enemies take the opportunity to go after his friends. It's a tricky patch of road.

What happened, in brief: Ryan Guillen, a Democrat from Rio Grande City, a Craddick ally and the vice chairman of the Appropriations Committee, managed to get a local bill on the major state calendar, which is supposed to be reserved for legislation of general statewide interest or impact. It's not the first time something like that's happened in the House, but it's not a foul if nobody calls a foul. In this case, Rep. Senfronia Thompson, D-Houston, a Craddick rival and the first candidate to enter the speaker race against him last year, called the foul, or point of order.

Craddick overruled it.

Two Republicans who've been pestering Craddick all session — Charlie Geren of Fort Worth and Robert Talton of Pasadena — challenged that ruling and forced Craddick to choose between one sort of loss and another.

He could ask the House to back him up, which would work if 1) he was right, or 2) he was too scary to oppose. Or he could fold, asking Guillen to ditch the bill, or telling members to overrule him. When it quickly became clear the vote would either be close or would go against the speaker, Craddick should have folded in a way that didn't leave any members behind. Best of all would be a unanimous vote against him, costing him the ruling and the moment, but without illustrating for everyone just how divided the House really is.

And as it turned out, he got an 87-to-51 vote to overturn his ruling. And he added more fuel to conversations about whether he'll be the speaker after this session.

Taxing Matters

The Senate wants to put a parachute on the state's new business tax, and has different ideas about how it ought to be tweaked.

Finance Chairman Steve Ogden, R-Bryan, wants to add a gross receipts tax that would take effect if the new margins tax gets disallowed by the courts. The new margins tax is figured by subtracting either cost of goods sold or payroll from a company's gross receipts and paying a 1 percent tax on what's left. If someone sues and gets a court to agree that that's not constitutional, Ogden wants the law to switch, automatically, to a 0.63 percent tax on gross receipts.

That would bring in more money, by some estimates, than the tax it would replace. That makes it a disincentive to sue the state over the new margins tax; the cure might be worse than the ailment.

And where the House voted to exempt businesses making less than $600,000 a year, Ogden would insert a scale. Companies would get a discount on the tax depending on how much they make. Those making $900,000 or more annually would pay the full tax. Taxpayers with annual revenues of $700,000 to $900,000 would get a 20 percent discount; $500,000 to $700,000 would get a 40 percent discount, and so on. The 100 percent discount would be for businesses making $300,000 or less a year; that's the same floor lawmakers put in place when they created the tax a year ago.

The Senate proposal also makes a change in how in-state business by out-of-state companies is taxed — a potentially huge difference for some taxpayers (and non-taxpayers, depending on how this is done). And it also lowers the maximum tax a company would have to pay, from 0.7 percent of gross receipts to 0.63 percent of gross receipts.

• The House flipped a property tax relief bill into a teacher pay raise bill that gives the Senate an easy out. Lt. Gov. David Dewhurst, in particular, got his wish and then some. The House bill, by Rep. Ken Paxton, R-McKinney, would have changed school finance formulas to lower local property taxes by $2.5 billion. But 81 members liked an amendment by Rep. Jim Dunnam, D-Waco, that says property taxes can go down as soon as teacher pay in Texas rises by $6,000 annually, enough to bring it to the national average. His logic: Property taxpayers already are in line for a 50-cent cut in school taxes, and pay for teachers, counselors and librarians, he argued, hasn't kept up with inflation.

Dewhurst was balking at the idea of more property tax relief. He's in the camp that wants to store state surpluses until next session when the state is paying the full price of earlier school tax cuts. He didn't want to spend more until it's clear the first cuts will balance. And Dunnam gives him a win there and something to rail against the Democrats (and 16 House Republicans) about.

• A constitutional amendment that would have required a three-quarters supermajority of each house to raise the state's business tax rate failed in the House by seven votes. Rep. Dan Branch, R-Dallas, got 93 members to vote with him but needed 100.

Another one, by Rep. Tan Parker, R-Flower Mound, would have required a two-thirds vote before lawmakers could ask voters whether they want a personal income tax. That got whacked on a point of order and never came to a vote.

• The House went for a three-month holiday from state gasoline taxes, a populist notion that's likely to die in the Senate. The state's levy is 20-cents per gallon. You'll hear more about it; it's on a Senate bill that's on its way back to that chamber. Oh, the price tag: $500 million to $700 million, according to the author, Rep. Trey Martinez Fischer, D-San Antonio.

• Remember the stripper tax the governor once proposed to fund part of public education? That measure, razzed at the time as the "Tassel Tax" and "Tits for Tots," failed. But another form of it got through the House this year; freshman Rep. Ellen Cohen, D-Houston, wants a $5 cover charge at strip joints and other sexually oriented businesses, with the $18 million in proceeds going to rape crisis centers and to programs aimed at sexual assault. The House went along on HB 1751, overwhelmingly, and it's on its way to the Senate.

Have I Tolled You Lately?

Will a private toll road moratorium, by another name and possibly with a few more exemptions, smell as sweet to legislators? Looks like we're going to find out.

Senate Transportation Chair John Carona, R-Dallas, and others (including House Transportation Chair Mike Krusee, R-Round Rock) have been working with Gov. Rick Perry on a compromise bill for HB 1892 — a two-year private toll road moratorium that's cruising toward a veto.

Perry told reporters he'll sign a two-year moratorium if the Legislature will send him a "clean" one, but said other provisions in the bill make it a stinker. He'll veto it with that stuff on board, and has told Lt. Gov. David Dewhurst and House Speaker Tom Craddick he'll call a special session on transportation if the Legislature leaves those provisions in law. Bottom line: He'll veto HB 1892 in present form, and a veto override will prompt a special session. There's another way out, though, and that's where SB 792 comes in (Everyone seen Invasion of the Body Snatchers?).

Carona thinks he and others can get that bill — the companion to the legislation the Guv doesn't like — through both chambers and to the governor by next week. Perry's legislative director, former Sen. Ken Armbrister of Victoria, confirmed that play.

They'll get the new bill to Perry in time for him to sign it while simultaneously recalling the version he doesn't like. The theory is that'll satisfy enough lawmakers to avoid an override of Perry's veto. Assuming SB 792 is agreeable, Carona said, HB 1892 will be recalled before the Governor's hand is forced late next week.

The House bill, by Wayne Smith, R-Baytown, passed each chamber with well over the two-thirds majority needed to override a veto. The final vote in the House was 138 to one, the lone dissenter being Krusee.

But that's an easier vote than the next one might be, Krusee said. "There's a difference between voting to pass a bill and voting to override a veto," Krusee said. "We haven't overridden a veto since I've been here." (For those keeping score, that's since 1992; for historians, it hasn't been done since 1979).

Carona said the compromise will change moratorium language regarding Houston and Dallas-Fort Worth road projects and will address the role and authority of Harris County Commissioners Court.

Krusee said it's "too early in the process" to talk to the press about specifics of negotiations, but that his goal is to "preserve the ability for local groups to solve their congestion and air quality problems."

Rep. Joe Pickett, D-El Paso, said he's not been involved in negotiations, but guessed the new version will include more exemptions to the moratorium: "Who's in, who's out."

Neither bill would do away with toll roads, Pickett said, only "Comprehensive Development Agreements," where a government agency contracts with a private company to build and maintain a road, sometimes in exchange for control of the road and its toll receipts for several decades.

Pickett, a former House Transportation chairman who heads the Metropolitan Planning Organization in his district, said new exemptions would not change his vote in favor of the moratorium, and that it's the prerogative of each legislator to decide if his/her district wants private toll roads or not.

He said toll projects used to be generated by demands from the public. Now he fears the projects come from the top, and are being forced upon people who don't want them and in areas that don't necessarily need them, Pickett said.

The road compromise — if it comes off — constitutes a change in tactics from the last time Perry had in his hands a popular bill he didn't like — this week, with the repudiation of his HPV mandate — which he allowed to become law without his signature, not giving the Legislature the opportunity to reverse a veto.

—by Patrick Brendel

Advertising Closes a Deal

Sen. Kevin Eltife won't be joining the folks pushing legislation that makes teachers accountable for student test scores, and that's probably enough to block the measure this year.

He says he's been negotiating with them, but now that they're running radio commercials and robo-calling and emailing in his district, accusing him of selling out to teacher unions, he says he's gone from a soft No to a hard one.

"I'm a No," he said the day the ads started. "What they're doing is really wrong."

The Tyler Republican says he's been negotiating with Senate Education Chair Florence Shapiro, R-Plano, Lt. Gov. David Dewhurst, and Austin attorney Sandy Kress, a longtime education activist who's now fronting for a group called Texans for Excellence in the Classroom. And he says they had agreed on changes to Shapiro's bill that would have brought him on board just a day before the commercials began running.

Kress says the deal Eltife's referring to was the third one, and they kept falling apart. "Suffice to say our folks have thought they had a deal three times in the last week... and we've learned that there never was one," he says. He said all three deals came undone and the end of the session loomed. "Now we're into critical time and maybe even too late time," he says.

Kress says he didn't make the decision about whether and when the campaign against Eltife should start. It appears the education group had the ads ready to go before the last round of negotiations ended. Their attack on Eltife started, in email form, while the four officials were still negotiating. It includes an email campaign, auto-dialed calls to people in his northeast Texas district, and commercials running on radio stations in Tyler/Longview, Texarkana, and Mt. Pleasant/Paris.

The message is that Eltife's stifling debate: "That's right — Sen. Eltife, a Republican, is marching in lock-step with the teachers' unions that are more interested in self-preservation and saving jobs than improving the quality of education in Texas. Eltife, a Republican, is wearing the teachers' unions' colors and doing their bidding by blocking this bill because the teachers' unions do not want evaluations that consider classroom results." The ads go on to give his phone number and urge listeners and readers to contact him.

Eltife doesn't plan to buy ads to counter what the education group is running, and he said the voters in the district who've contacted him have been positive. He admits he was never thrilled with Shapiro's legislation, but says he was willing to consider it if she would let local districts use their own model for appraising teachers and if the tests to be used to measure student achievement were in place.

Among other things, Shapiro's SB 1643 would make student performance on standardized test a part of teacher and school administrator evaluations. Educators found lacking who didn't improve within a certain amount of time could lose their jobs.

At least 25 percent of an educator's grade would be based on student performances on standardized tests. Right now, that's the TAKS test, though it would presumably change when and if the state decides other tests are better.

Teachers who don't measure up would take courses to help with deficiencies, measured for improvement or the lack of it and fired if they don't make the required improvements by a specified deadline.

Principals and assistant principals would be measured by similar standards, though they'd also be graded on safety of the school, parental involvement, and management.

There's no House version of the legislation and little time for the Senate to act and still have any hope the bill could get to the full House in time to become law this year. It's not clear that getting Eltife's vote would give Shapiro the numbers she needs to bring the legislation to the full Senate for consideration.

And it's also not clear what effect the ads will have, other than to make Kress' group feel better. It's probably too late in the session to get the new program approved in the Senate and then in the House.

Perry Stands Down

Gov. Rick Perry, after one of the best speeches we've heard him make, said he won't veto the Legislature's ban on government-ordered vaccines against human papillomavirus, or HPV.

Right up to the end of his statement, Perry looked like a governor ready to do battle with legislators. He had a signing folder with a couple of pens ready on the ceremonial desk in the governor's ornate reception room at the Capitol. He was joined by several women who have battled cervical cancer. And he made an emotionally compelling argument in favor of the vaccinations, decrying the politics that he said changed the focus of the debate away from public health and toward the relative powers of the governor and the Lege.

"This legislature has not only overturned an order that could save women's lives, but they put rider language in the budget that prevents the state from funding vaccines for low-income women if it is mandated by the commission," he said. "This is shameful."

But he closed by saying he wouldn't pick up the pens or continue the fight, but would instead let the Legislature's ban go into effect without his signature.

"I want to thank those legislators who voted against this bill. They will never have to think twice about whether they did the right thing. No lost lives will occupy the confines of their conscience, sacrificed on the altar of political expediency," Perry said.

"I have wrestled for a few days with whether to veto this bill, or let it become law without my signature. But the fact of the matter is, it will become law no matter what because the voice of the Legislature is clear. And rather than allowing this issue to be held captive one more day by legislative politics and the inevitable posturing that will ensue during a veto override debate, I have decided to let it become law without my signature."

The HPV issue surfaced earlier in the session. A few days before he was due to give his biennial State of the State speech, Perry announced an executive order, mandating HPV shots for all girls entering sixth grade in Texas public schools. Parents could opt out for any reason, but the girls otherwise had to take the shots.

The announcement, made on a Friday afternoon, swamped the rest of the governor's agenda. Other issues on his agenda that might have grabbed public attention got lost on the outskirts of the HPV spotlight — a $3 billion cancer research effort, a $2.5 billion tax cut, budget reform, selling the state lottery to private investors, health care for the working poor, and property tax reform, to name some.

And the subject change Perry complained about happened early: Lawmakers didn't like being surprised, didn't like the idea of an executive order on a controversial issue when they were in town to consider such things, and didn't like the idea of a governor stretching his powers to demand a controversial vaccine against a sexually transmitted disease for 11- and 12-year-olds.

Both the House and Senate voted in sufficient numbers — more than the two-thirds majorities needed to override a gubernatorial veto — to stop Perry's mandate. (They've done it on a toll-road moratorium, too, which the governor has about a week to consider). Rather than veto the bill and risk an override, Perry said he'll fold.

• After the governor folded his hand on HPV, he sent emails to his supporters that included his speech on that issue and a video of Heather Burcham, a young woman with cervical cancer who came to the Capitol early in the session to help Perry argue for vaccines. At the press conference where the governor gave up the legislative fight, he let the video serve as the final word. It's available on YouTube.

An Imperfect 10

The top 10 percent law that gives automatic admission to Texas high school students graduating in the top decile of their class has survived legislative challenges through two regular sessions.

But this time, one of the key opponents of change — Sen. Royce West, D-Dallas — is on board. That's the same senator who in 2003 resorted to a 15-hour-long Mr. Smith impersonation in order to kill the bill.

Sen. Florence Shapiro, R-Plano, wants to cap automatic admissions at 60 percent, meaning a school would have to give up to that many of their freshman openings to top 10 kids before filling the rest of the class with students chosen by other criteria. Right now, the University of Texas at Austin is filling about 70 percent of the each freshman class with top 10 students. Her bill would apply first to the high school Class of '08.

West added a 2015 sunset provision to Shapiro's SB 101, moving back to current law in eight years unless lawmakers decide to stick with the change. It passed the full Senate and is scheduled Monday for the House Higher Education Committee, chaired by Geanie Morrison, R-Victoria, and the House sponsor of the bill. Morrison doesn't care for West's expiration date but says she's confident time will prove they were right to change the law. West says one of the main factors in his decision to go along with the change is his respect for UT President William Powers and Powers' commitment to diversity.

Morrison got a similar bill out of her committee late last month, but it's not all sugar cookies and milk in the House; as 41 members of the Mexican American Legislative Caucus resolved in writing a couple of weeks ago to "oppose any and all attempts to eliminate, cap or curtail the current" law.

Rep. Roberto Alonzo, D-Dallas, voted against the earlier bill in committee and says the Top 10 percent law has done a good job increasing diversity — both ethnic and "geographic" — in Texas colleges, and doesn't need to be changed. Morrison disagrees, saying the current University demographics are unacceptable. Numbers from the Texas Higher Education Coordinating Board show the state's biggest university is more diverse now than it was ten years ago:

• In 1996, the year before the Top 10 law was in effect, the demographics of enrolled, first-time freshmen at UT were 65 percent Anglo, 4 percent African-American, 15-percent Asian-American and 14 percent Hispanic.

• ln 2006, the numbers were 54 percent Anglo, 5 percent African-American, 18 percent Asian-American and 19 percent Hispanic.

• The general population in Texas in 2005, according to the Texas Data Center, was 49.1 percent Anglo, 11.4 percent African-American, 3.9 percent "other," and 35.6 percent Hispanic.

There's another potential spoiler in the form an provision added by Senate Finance Chair Steve Ogden, R-Bryan, that would pay tuition (about $1,500 per year) for each Top 10 percent graduate. Shapiro called it an 11th-hour amendment but voted for it, saying, "I'm glad we put it in there... Now the House needs to evaluate it." Morrison says her committee will be looking carefully at the estimated cost of that amendment.

The third stop, if the bill gets there, ought to be easy. A spokeswoman for Gov. Rick Perry says he is in favor of changing the law. "Top 10 Percent is causing some of our brightest students to leave the state to attend college..." says Krista Moody. "While it was a good effort when it was first implemented, there are a lot of negative repercussions stemming from the rule."

— by Patrick Brendel

Flotsam & Jetsam

Early voting on the constitutional amendment and scattered local elections was anemic, with 3.4 percent of the voters in the state's top 15 counties showing up for that round. Bexar County, with 5.9 percent voting early, led the pack. The state's biggest county — Harris — was the weakest, with 1.7 percent turnout. The election is on Saturday.

• It turns out that the House has voted to suspend its rules to ignore a valid point of order. One of the old hands around the capitol called to say a Texas Education Agency sunset bill was threatened with a point of order at the end of the session and that the House voted, in his words, to suspend "the Magna Carta" to get the bill passed (former Rep Bruce Gibson, D-Godley, made the motion to suspend the rules). That would be under House Speaker Gib Lewis. The House started to do it a couple of weeks ago on HB 13, but pulled up short. That legislation, authored by Rep. David Swinford, R-Dumas, passed handily several days later. The 1989 crisis was a little different — it happened on the last day of session and a delay would have killed the bill.

• Rep. Bill Zedler's HB 159, a closely watched bill that would have denied in-state tuition to Texas high school grads who aren't U.S. citizens, didn't make it off the floor. That one fell to a point of order.

• The bonds to fund a $3 billion cancer research program will go on the November ballot if the Senate goes along with the House (and if companion legislation gets through). That'd fund annual $300 million research grants for ten years.

• Cal Ripkin's a piker compared to Judith Zaffirini. The Laredo Democrat has now cast 35,000 votes without missing one since she came to the Senate in January 1987. She's at the 20-year mark, but there was a break in the streak, when she and 10 other Democratic senators moved to Albuquerque to break a quorum on redistricting. (For the record, the Orioles shortstop known as the Iron Man played in 2,632 consecutive games from 1982 to 1998.)

• Special Session — the public television program on state government and politics that we've pimped here before — has a show on the late Molly Ivins this week, leading into a conversation about the state of journalism and politics in Texas. It airs around the state starting this weekend; check local listings or look at the KLRU website for more information.

Political People and Their Moves

Gov. Rick Perry appointed new trustees to try to fix the problems at Texas Southern University in Houston. The old board resigned, and legislation designed to right things at the school is moving rapidly. The new trustees: Austin attorney Gary Bledsoe, president of the Texas chapter of the National Association for the Advancement of Colored People (NAACP); Richard Holland of Plano, president and founder of Holland Advisors, a management consulting firm; Former state Rep. Glenn Lewis, D-Fort Worth, an attorney and a trustee at Texas Wesleyan University; Enrique Javier Loya, chairman and CEO of CHOICE Energy of Houston and a director of the University of Houston Center for Mexican American Studies; former Dell Inc. executive Richard Salwen of Austin, also an attorney, who's on the advisory council for St. Edward’s University School of Management and Business; and Larry Taylor, a student at TSU's Thurgood Marshall School of Law, who'll be a non-voting trustee.

Sentenced: Gerald Wiggins, former CFO at Texas Southern University, to 10 years in prison for misapplication of school funds. The former president, Priscilla Slade, faces trial on related charges later this year.

Will Harrell, the executive director of the Texas chapter of the American Civil Liberties Union, will be the new ombudsman at the Texas Youth Commission. That's a new position in that troubled agency, designed for an independent whistle-blower who'll catch new problems before they blossom into scandals like the one the agency now faces. He's been at the ACLU for seven years, and that organization will start a search for a replacement.

Gene Richards is the new assistant commissioner for marketing and promotion for the Texas Department of Agriculture. He's been at that agency since 2003 and has been the number two in that division.

The Texas Medical Association has new honchos. Dr. William Hinchey of San Antonio is the group's new president, and Dr. Josie Williams of Bryan is the new president elect.

Quotes of the Week

Gov. Rick Perry, announcing his decision not to fight the Legislature's decision to undo his mandate for HPV vaccines: "I have never seen so much misinformation spread about a vital public health issue — whether it is the effectiveness of the vaccine, the impact of the order on parents' decision-making authority, or the impact this will have on the behavior of young women. But the fact remains — my order always has been and always will be about protecting women's health."

Rep. Dennis Bonnen, R-Angleton, after Perry's announcement, quoted by The Dallas Morning News: "I think it's offensive that the governor wants to use cancer victims as his backdrop for an issue that he has grossly mismanaged."

Rep. Dan Gattis, R-Georgetown, during a debate before House overturned a ruling by House Speaker Tom Craddick: "I think what got us here tonight is not a speaker not willing to follow the rules but how to deal with members who are at one another's throats. We're worn out. This has not been a fun session for me, and as I talk to other members, they say the same thing."

Sen. Juan "Chuy" Hinojosa, D-McAllen, in the Austin American-Statesman on local resistance to changes in youth prisons around the state: "I don't think we should use the incarceration of young people as a tool for economic development."

Robert Black, a spokesman for Gov. Rick Perry, quoted in the San Antonio Express-News: "The governor believes if a Texan is properly licensed and permitted they should have the ability to exercise their second amendment rights in their state Capitol. Remember, the reason we only have a legislative session once every two years is not because legislators should fear the people, but because people should fear the Legislature."

Rep. Harold Dutton, D-Houston, pushing for fewer restrictions on smoking during a debate on an anti-smoking bill: "The only ones with cigar bars are the people who have power and influence and money. If you want to vote for all the mom and pop bars in your neighborhood, you ought to vote for me."

Rep. Myra Crownover, R-Denton, ending the long debate on that same bill, which she authored: "I don't want any more cheese. I just want out of the trap."

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Texas Weekly: Volume 23, Issue 45, 14 May 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.