Out With a Bang

The legislative session ended like a bad marriage, with the House walking out before the argument was over and the Senate, in a sulk, staying behind to break all the plates.

It started five months ago with the overthrow of a speaker in the House and the overthrow of the rules in the Senate. Tom Craddick lost his job to fellow Republican Joe Straus. The Senate slipped around its two-thirds rule to get Voter ID legislation going.

Tension over a tight budget evaporated when the federal government offered $17 billion in stimulus money. And what's been called a "Seinfeld Session" — a legislative session about nothing — was underway (by the way, credit for that widely adopted coinage goes to Christy Hoppe of The Dallas Morning News).

The last bumpy week started with the partisan standoff over Voter ID in the House, the Senate's attempted rescue of 500 bills hidden safely from that House melee, and an increasingly tense final weekend that saw hundreds of measures die (not an unusual scene, at the end of a session). On the penultimate day of the session, a battle between two senators over a local option gasoline tax ruined chances for an overhaul of the state's transportation agency. Everything seemed to slide from that point on.

But when it was done, Straus and Gov. Rick Perry called the 140-day regular session, on balance, a success. Lt. Gov. David Dewhurst immediately went on vacation without offering his assessment.

Start with the Road Warriors.

Promising a filibuster to kill a transportation overhaul he worked on for two years, Sen. John Carona, R-Dallas, said the legislation was undone by dirty deals and bad leadership in state government.

Carona was especially hard on Sen. Glenn Hegar, R-Katy, accusing him of "working a side deal" with House negotiators that undercut the Senate's negotiating position. And he accused the state's top three leaders of running a rudderless session that made bills like the TXDOT legislation difficult to pass.

That prompted Sen. Juan "Chuy" Hinojosa, D-McAllen, to send Carona (and the press) a letter replying to those criticisms of special deals in the legislation.

And then Hegar weighed in, saying lawmakers were deciding whether "it's better to have a sunset bill than to play Russian Roulette with a fully loaded gun." He responded to Carona by saying he spent several days trying to work things out.

Hegar went through a timeline of the negotiations on the bill, and said it finally came down to differences over red light cameras, billboard regulation, and the local option tax pushed, primarily, by leaders in the Dallas-Fort Worth area.

Carona implied he didn't know the tax provision was being stripped from the negotiated bill; Hegar says that became clear in early conversations with House negotiators.

And as a safeguard, Hegar made sure TXDOT was added to a list of agencies in a "safety net" bill meant to rescue departments that would go out of business if their reviews aren't passed.

That safety net was being debated when time ran out on the Texas House that evening — the last Sunday night of the session.

Rep. David Leibowitz, D-San Antonio, asked questions for the last ten minutes before midnight, then moved to adjourn, citing a rule that the House had to stop considering bills at the stroke of twelve.

The House voted against him, but not by enough: They needed two-thirds of the members to stay in session, and didn't have that many votes.

* * *

The next day, with a quick legislative patch, the House voted to keep several expiring agencies alive for another two years, trying to avoid a special session — but the method they chose killed the last chance for an expansion of the Children's Health Insurance Program.

That list of agencies in the safety net bill includes the Texas Department of Insurance, Texas Department of Transportation, and the Texas Racing Commission. All of them were scheduled to go out of business on September 1, 2010, unless the Legislature passed legislation extending their lives.

Lawmakers found a couple of ways to change those expiration dates. The first is to suspend the House's deadline rules and to reopen the legislation. The second, which the House used, was to include the changes in a technical bill — which requires no suspension of the rules. In practical terms, that's a difference between getting 100 votes for approval, or 76. And the House's leaders couldn't find 100 votes.

House leaders also couldn't put the votes together to rescue the CHIP expansion, which would have made health coverage available to children whose parents were willing to pay part of the premiums for that government-funded insurance. Republicans in the chamber refused to support efforts to suspend the deadline rules for that, for the sunset bill, or for anything else. Had that been possible, the House could have voted for any piece of legislation that expired on Sunday, so long as two-thirds of the House would agree.

CHIP never had 100 votes and suspension on that issue appeared unlikely. Sunset legislation on TXDOT ran into a multitude of problems over the weekend in both legislative chambers. It was included in the sunset safety net at the end, but the expiration was moved to 2013 instead of 2011. There were questions about whether that could get 100 votes.

So the House ended up including the changed sunset dates in a "technical corrections" bill that had been set aside for the last day of the session. That fixed the sunset problem and ended any immediate threat of a special session. But it lit up some lawmakers who argued that the House was bending its rules to allow statutory law changes in a type of legislation where those changes aren't allowed.

Democratic Reps. Yvonne Davis of Dallas and Sylvester Turner of Houston challenged the technical resolutions bill, saying it's against House rules to change law in a corrections resolution. House Speaker Joe Straus overruled them, and the House then voted 111-29 to approve the changes.

A little while later, the House adjourned Sine Die, ending the session for the lower chamber.

* * *

The House left without voting on a provision that would authorize the sale of $2 billion in highway bonds within the next two years. That legislation had been approved by the Senate about 40 minutes before the House adjourned, and House leaders said later they no longer had enough members on hand to vote for it.

Once the House disbanded, there was no way to take care of the bond issue.

Senators were incensed and held a series of private meetings to decide what to do. They decided to call it quits without approving the sunset safety net approved earlier by the House.

Senate Finance Chairman Steve Ogden, R-Bryan, said the House's "hokey" method for dealing with the safety net is "preposterous on its face," and questioned its legality.

"By adjourning Sine Die, the House basically wrecked, underline wrecked, the TXDOT budget, and it would have put billions of dollars of highway projects in jeopardy, and tens of thousands of jobs of Texans are depending on to get us through this recession," he said.

Rather than leave the question to Perry, the Senate voted 17-11 to force his hand by not voting on the safety net legislation.

"We want a special session," Ogden said. "We want the TXDOT budget fixed."

The idea was to force Perry to use that opportunity to also bring up the bond legislation. Sen. Troy Fraser, R-Horseshoe Bay, said the bond money, which would be levered to raise up to $5 billion more for road projects, is important enough to several senators to force the issue. During the debate on whether to quit with unfinished business, he and others blamed the House for the brinksmanship. "We allowed them plenty of time," he said. "They had weeks to take care of it."

The Senate's action doesn't force the governor to include the bond question in the agenda for a special session. He'll have to deal with the sunset issues, and can include any other issues he pleases. That could include the bonds. Democrats fear he'd include Voter ID legislation. Republican senators said that was never part of their discussions on whether to force a special session.

"Voter ID is out there, but that wasn't part of my motive," Ogden said.

* * *

A day after the Senate put several state agencies in danger of going out of business, both the governor and the speaker of the House counseled calm and said there's no immediate need for a special session of the Legislature.

"I thought I was watching an episode of 'Lost'," Perry said when asked about the Senate's action the next day. But he said there's no need to hurry into a special session and said he and his staff are spending their time combing 1,400 bills that did pass for trouble spots. The governor can veto legislation until Father's Day, June 21. What's not vetoed or signed by then becomes law without his signature.

"I think it's way too early to be making any calls on special sessions," Perry said.

Straus downplayed the drama as well, telling reporters, "I don't consider this a crisis in government by any measure." Like Perry, he said there's no immediate need to call lawmakers back to Austin.

They'll probably have to do it eventually. One claim made during Senate debate was that the governor could keep the agencies open with an executive order. That's not true, according to the governor, the director of the Sunset Advisory Commission, and several lawyers we asked. Without legislative action, the agencies are set to go out of business at the end of August 2010. If Perry calls a special session, he could call it after next year's political primaries and still have plenty of time to keep the doors open at transportation, racing, and insurance.

Both Straus and Perry seemed surprised the Senate quit without changing the sunset dates on those agencies.

"We came up with a solution to saving the sunset process for several agencies that unfortunately weren’t passed," Straus said. "Eighty percent of the House agreed with this approach to save the agencies. Unfortunately the Senate adjourned without seeing it our way."

Another Chance for TRCC?

For Sunset, the session ended with one intentional killing (the Texas Residential Construction Commission) in addition to the five accidental ones (transportation, insurance, housing, racing, and the Office of Public Insurance Counsel).

The accidents will get cleaned up later — before they go out of business for good on September 1, 2010 — in a special session to be called later. Lawmakers weren't planning to rescue TRCC, but it can still be saved if they change their minds.

"We're going to keep building roads and maintaining the highways for Texans," Gov. Rick Perry said. "We're going to have an insurance industry that is regulated. The idea that someone or another these agencies are going to go away is, that's not gonna happen. The Legislature didn't get their work done, but we're gonna make sure that Texans are taken care of, and those employees in those agencies are gonna continue to go to work every day."

• The eight-year (or longer) dispute over how the state taxes smokeless tobacco is over for now, assuming Gov. Perry signs off as expected. The state will tax on the basis of weight instead of price — that's a boon to the more expensive brands and it's competitively punitive to lower-priced brands. And the bill wasn't tax-neutral, raising $104 million over the next two years. But that's not why it passed. Two tricks. First, part of the money was dedicated to paying off student loans for doctors who agree to work for a few years in under-served parts of the state. Second — and this is why the Guv's expected to go along — somebody thought to tie the tax increase on snuff to the cut in the corporate franchise tax. Veto this one and the tax cut shrinks.

• If you were curious, the Senate's local-option gasoline tax — part of the now-dead transportation overhaul — was probably on its way to the Great Mixmaster in the Sky even if it had made its way out of the Legislature. In his post-mortem press conference, Perry said publicly what he'd been saying privately to Sen. John Carona, R-Dallas, and other supporters of the tax. Huh-uh. "He shared that as being a North Texas solution," Perry said. "That's not what this was. It ended up being a statewide tax that had huge implications."

• A last-day, last-minute bill that had the support of 24 of the 31 senators died because Lt. Gov. David Dewhurst wouldn't bring it up. The state's junior colleges wanted the "proportional funding" bill to parcel out their state money on the basis of enrollment at each campus. But some Republicans feared it the language would automatically escalate the state's payments to those schools, and they apparently had the Lite Guv's ear. Sen. Judith Zaffirini, D-Laredo, said she had 23 co-signers. And Dewhurst indicated he'd bring the bill up for debate. A few minutes later, he recognized another senator to adjourn the Senate for this legislative session, leaving Zaffirini's bill on his desk to die.

• There was a rescue at the end. The Senate attached an expansion of the Children's Health Insurance Program to child abuse legislation, where it didn't really fit. The House wouldn't accept that graft and it appeared both bills were doomed. In the last minutes of the session, the Senate brought up the bill, stripped off the CHIP legislation, and approved the original bill, as the House had done earlier. CHIP died, but the other legislation survived and is now on the governor's desk.

A Correction, Mostly

We recently repeated a bit of folk law about vetoes and special sessions that's probably incorrect.

As it turns out, it's probably illegal for lawmakers in a special session to override a governor's veto of a law passed in another session. It's never been tested in court — in Texas, anyhow — but a number of lawyers and parliamentary wizards tell us that it's an established idea elsewhere. A Legislature that's gone Sine Die (as ours has) has no power to override or act on any legislation from the session that's ended.

Gov. Rick Perry can veto (or sign) legislation for another 20 days after the regular legislative session comes to a close. And in conversations about when he might call a special session, the conventional wisdom is that he'd wait until after Father's Day in order to avoid possible legislative overrides of any vetoes he might make. It doesn't look like it will be tested this year, but the overrides aren't part of the (legal) calculations. They are part of the political calculations, though. Nobody really wants to go through a court test on this one.

Checking the Mood Out There

Rick Perry has about the same job approval ratings in Texas as Barack Obama, according to a poll done in late April for the Texas Credit Union League.

About 40 percent of the state's registered voters disapprove of the governor and of the president. Perry got positive ratings from 52 percent; Obama from 49 percent.

U.S. Sen. Kay Bailey Hutchison — who's planning to challenge Perry in next year's GOP gubernatorial primary — got good marks from 66 percent of those voters and bad marks from 18 percent. U.S. Sen. John Cornyn, who won't be on the ballot next year, got good marks from 47 percent of those registered voters and bad marks from 22 percent. They also asked about Comptroller Susan Combs (44 percent approve, 9 percent disapprove), Attorney General Greg Abbott (44/11), and Lt. Gov. David Dewhurst (37/18).

They didn't do a horserace poll on the governor's race.

Asked to rank major issues, the respondents came up with this order: economy and jobs, illegal immigration, education, health care, moral values, property taxes, state spending, growth and congestion, and political scandals.

The survey was done for TCUL by Public Opinion Strategies and Hamilton Campaigns. They interviewed 800 people by phone on April 23, 25, and 26. And their margin of error is +/-3.5 percent.

Combs Wants Another One

Comptroller Susan Combs announced she'll run for a second term in that office. She said she'll continue her work on government accountability and transparency, and wants to get all of the state's agencies on the same accounting system. She's also been put in charge of financial reviews of school districts — that function was once in the agency and was taken away by lawmakers upset with Combs' predecessor.

A Challenger for McLeroy

Thomas Ratliff, a lobbyist and the son of former Lt. Gov. Bill Ratliff, says he'll run against State Board of Education member Don McLeroy in next year's Republican primary.

That announcement follows McLeroy's bust in the Texas Senate. Gov. Rick Perry nominated him to chair the SBOE, but the state Senate — which has to confirm these things — wouldn't go along.

Ratliff, who lives in Mt. Pleasant (McLeroy lives in Bryan), says it's time for a change on the education board. "The SBOE has become a distraction to our neighborhood schools and a liability to the Republican Party under the leadership of Dr. McLeroy," he says.

He filed his election papers this week.

Running Shoes

Add another name to the list of potential candidates in HD-105, where Rep. Linda Harper-Brown, R-Irving, is the incumbent. Irving City Council member Beth Van Duyne, a Republican, says she'll "definitely run" if Harper-Brown doesn't seek reelection.

If the incumbent wants another term, she's less emphatic: "I really have no desire to run against Linda." The Democrats already have a candidate: Loretta Haldenwang, a former aide to Rep. Joaquin Castro, D-San Antonio, who's now an exec with the Greater Dallas Hispanic Chamber of Commerce. What's the commotion all about? Harper-Brown won reelection (to a fourth term) by less than two-dozen votes (out of more than 40,000) over a relatively weak Democratic candidate. The Democrats smell blood; Republicans plan a vigorous defense of the seat. Both parties are especially attuned to the numbers, since the 2011 legislative session will take up redistricting, and the House currently has 76 Republicans and 74 Democrats. "I just want to do everything I can to keep this seat in Republican hands," says Van Duyne.

Milton Rister Resigns

The head of the Texas Legislative Council — a former aide to former Speaker Tom Craddick — told legislative leaders he'll resign from that post.

Rister took the job in 2006, and his ties to Craddick were an issue at the time (also look here, under "Party Animal No More". Among other things, he helped the former speaker run several political campaigns aimed at giving the GOP control of the Texas House. Democrats in the Legislature didn't like it and have been taking potshots at Rister since the session began.

Rister said he met with House Speaker Joe Straus this morning and tendered his resignation (Here's his letter). "I told him I think the right thing to do is to allow him and the lieutenant governor to have someone of their own choosing," Rister said. He was chosen for the job three years ago at the urging of Craddick and Lt. Gov. David Dewhurst. Rister didn't give the two leaders an effective date, leaving that to them. And he said he hasn't lined up a new job.

TLC is the Legislature's in-house law firm and tech department, drafting bills and working on legislation on one hand, and running the Legislature's computer systems and networks on the other.

Session Posters

Mark Loeffler is back at it (for the seventh time!), with "movie" posters inspired by the legislative session. He spoofs John Carona, the Texas House, Gov. Rick Perry and Lt. Gov. David Dewhurst, Kay Bailey Hutchison, House Speaker Joe Straus, Rep. Lon Burnam and Sen. Troy Fraser. His work is at this site, and you can get the posters printed on t-shirts at this site.

Political People and Their Moves

Norma Torres-Martinez is the new deputy associate commissioner for standards and alignment at the Texas Education Agency. (That's curriculum, textbooks and education technology, in English.) She started as a math teacher and has been at TEA for five years.

Lynna "Jan" Ferrari is the new director of state and local records at the Texas State Library and Archives Commission. She was previously at the Lower Colorado River Authority.

Troy Fraser, R-Horseshoe Bay, was elected president pro tempore of the Senate at the end of the session.

Rep. Kristi Thibaut, D-Houston, got Freshman of the Year honors from the House. Tim Kleinschmidt, R-Lexington, got that award from the House Republican Caucus. And Robert Miklos, D-Mesquite, got it from the Democratic Caucus. The Veterans Caucus named Chris Turner the Freshman of the Year. Those awards nearly always go to new members who have to run for reelection in tough districts. So it is this year.

Houston attorney Sean Roberts, a 37-year-old Democrat, is considering a run against U.S. Rep. Sheila Jackson-Lee, D-Houston. He's formed a committee, and he's got a web page and a fundraising operation for that exploratory campaign.

Gov. Rick Perry appointed:

• Dan Allen Hughes Jr. of Beeville to the Texas Parks & Wildlife Commission. He owns a business that has the same name he has.

• Patricia Dickey to the Angelina and Neches River Authority's board. She owns Coldwell Banker agencies in Crockett and Nacogdoches.

• Kirby Hollingsworth of Mount Vernon to the Sulphur River Basin Authority's board. Hollingsworth, who has made three unsuccessful runs for the Texas House, owns Liberty Mobile Home Services.

• Trent McKnight of Throckmorton to the Brazos River Authority's board. He's a rancher and director of Olney Bancshares of Texas.

• Ramon Baez of Southlake and Robert Pickering of Houston to the Department of Information Resources. Pickering is being reappointed. Baez is chief information officer for Kimberly-Clark Corp.

• Victor Leal of Canyon to the Texas Economic Development Corp. He's a former mayor of Muleshoe and owns Leal's Mexican Restaurants.

• Kathy Leader-Horn, a school nurse in Granbury, Josefina Lujan, regional dean of the Texas Tech nursing school in El Paso, and Tamara Cowen, an exec with Valley Baptist Health System in Harlingen, to the Texas Board of Nursing. Perry also reappointed Sheri Crosby of Mesquite and Mary Jane Salgado of Eagle Pass to that board.

• Ashley Givens of Dallas, director of special events for the Texas Scottish Rite Hospital for Children, to the Executive Committee for the Office for the Prevention of Developmental Disabilities.

• Elaine "Anne" Boatright of Smithville to the Private Sector Prison Industry Oversight Authority. She's president and CEO of Capitol Credit Union. Two people won reappointments: Burnis Brazil of Richmond and Roxanne Carter of Canyon.

• Valerie Foreman of Frisco, Dr. John Leahy of Austin and Dr. Pamela Otto of San Antonio to the Texas Board of Licensure for Professional Medical Physicists. Former is a medical physicist with Baylor University Medical Center. Leahy is a radiologist, and Otto is a radiologist and a professor at the UT Health Sciences Center.

• Michelle Diggs of Cedar Park and Travis Morris of Austin to the Texas Human Rights Commission. Perry reappointed Veronica Stidvent of Austin to that board. Diggs is an exec at 3M Co. Morris is founder and pastor of Empowerment Temple. Stidvent heads the Center for Politics and Governance at the LBJ School at UT Austin.

• Dr. Rey Ximenes, owner of Pain and Stress Management Center in Austin, to the Texas State Board of Acupuncture Examiners.

• Wylie Mayor Eric Hogue and Susan Ridley of Sugar Land to the board of the Texas School for the Deaf. Hogue is an exec at EDS. Ridley is a financial analyst with the FBI. Perry reappointed Beatrice Burke of Temple, Walt Camenish III of Austin, Nancy Carrizales of Katy, and Angela Wolf of Austin to that board. Camenish will continue as chairman.

Deaths: Retired Judge Tom Davis, who was Wilbarger County Attorney and a state district judge before rising to the Texas Court of Criminal Appeals, where he worked from 1971 until 1986. He worked another four years as an assistant Texas attorney general. Davis was 87.

Quotes of the Week

Gov. Rick Perry, when it was all over: "I never rule out the option of a special session... It's there. It's a tool, and I don't think anybody is just dying to come back into Austin and do the work that should have been done during a 140-day session. But it's an option, and it's there."

Sen. Steve Ogden, R-Bryan, after the Senate adjourned on the last day of the session: "We've got to take more pride in our work. We're looking pretty ridiculous over here, making stuff up, throwing things around, drawing plays in the dirt. I'm tired of it."

Sen. Glenn Hegar, R-Katy, asked how the House and Senate fumbled a deal on highway bonds and agency sunsets on the last day of the legislative session: "They left."

House Speaker Joe Straus, on Senate criticism that the House wouldn't suspend its rules to move agency sunset and bond legislation: "I don't think they understand us very well sometimes... Once you start making exceptions, then no one knows what the rules are."

Sen. John Carona, R-Dallas, as his efforts to create a local option gasoline tax fell short: "There is no agenda for this legislative session. It's like a Seinfeld episode. It's the session without a purpose. We need elected officials all the way to the top — and I'm speaking of Gov. Perry and our top three leaders — who will come here and not only set an agenda, but also work to help us pass it."

Rep. Joe Pickett, D-El Paso, on Carona's proposal and Perry's opposition to the gasoline tax: "There’s a lot of members in here who don't want to vote if there isn't the will to do it, because they'll get beat up on the vote one way or the other. And Carona knows that. Everybody in politics knows that."

Land Commissioner Jerry Patterson, telling the Houston Chronicle what he'll do if the governor doesn't veto legislation that would allow beachfront residents on the Bolivar Peninsula — including a state legislator — to rebuild homes on public beaches: "My option is just to say, 'Screw you, Wayne Christian,' because the Legislature didn't pass this, one guy passed this."

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Texas Weekly: Volume 26, Issue 22, 8 June 2009. Ross Ramsey, Editor. Copyright 2009 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.