The Briar Patch

It's hard to explain just how things in the Senate got the way they are, but you can mark the beginning. Last Spring, senators figured out how to maneuver around Lt. Gov. David Dewhurst while they were passing a new business tax bill and approving legislation to replace local property tax money in public schools with state money.

They haven't taken over, exactly, and no particular senator is accumulating power at the Lite Guv's expense. But Dewhurst and the 31 senators are picking their way through a political rat's nest that has intertwined the conference committee on the state budget and his pet project — legislation increasing the penalties for sexual predators of children.

Dewhurst's version of the so-called Jessica's Law was expected this week, but doesn't have the votes it needs on the Senate floor, where members are nervous about objections from some prosecutors and victims' groups. Sen. Robert Deuell, R-Greenville, says the bill needs some "small changes" before it comes up for a vote as early as next week. Several senators we talked with said they were willing to go along with a version passed by the House, but that's apparently not on the program right now.

Simultaneously, Dewhurst is sitting on his announcement of which senators will be sent to settle differences between the House and Senate versions of the state budget. That'll certainly include Sen. Steve Ogden, R-Bryan, since it's his bill and he's the chairman of the Senate Finance Committee. It'll probably include the vice chairman, Judith Zaffirini, D-Laredo. But what is ordinarily an important and even tricky bit of business has become a matter of negotiation between Dewhurst and the Senate. Senators are bargaining with him over what is supposed to be one of his powers as presiding officer.

Republican senators objected privately to members of their own party they think are less conservative being on the conference panel — they singled out Sens. Kip Averitt of Waco and Robert Duncan of Lubbock — and at one point threatened to withhold their support for the budget bill. Dewhurst, they say now, told them that at least two of the conferees would be rock-solid conservatives.

He sent emissaries to the House to see if they'd consider a bigger conference committee. House rules limit the number of negotiators to five, but they told the Senate to "send over as many senators as they think they need." Dewhurst, asked by reporters if he wanted seven conferees, as was reported elsewhere, said simply, "No."

But he hasn't named his five, and the version of Jessica's Law that he favors hasn't come up for a vote on the floor. The five from the House, named by House Speaker Tom Craddick: Reps. Warren Chisum, R-Pampa, chairman of the Appropriations Committee; Dan Gattis, R-Georgetown; Ryan Guillen, D-Rio Grande City, vice chairman of appropriations; Lois Kolkhorst, R-Brenham; and Sylvester Turner, D-Houston.

House Democrats tried to "instruct" the conferees to hold four specific positions during the negotiations, but couldn't muster support from almost two-thirds of the House. They wanted to force the House negotiators to hold firm on funding for parks, for across-the-board teacher pay raises, against funding for publicly funded private-school vouchers, and for the House's more generous provisions on the Children's Health Insurance Program.

One for the Little Guys

Legislation that would clear up some pimples in the state's business tax would also free some 60,000 small businesses from paying that tax next year. That's out of committee now and on its way to the full House for a vote as early as next week.

The Legislature made some mistakes putting together the new gross margins tax last spring. That's the tax that's supposed to pay for part of the state's cuts in local school property taxes.

They're trying to patch three of the larger holes in HB 3928. The patches will add $100 million or so to the state's revenue from the tax. But lawmakers don't want to raise taxes, so they're including a break for small businesses to bring the total financial effect of the repairs to zero.

The tax is supposed to apply to almost all businesses that make $300,000 or more each year (sole proprietors and some other businesses are exempt). To even out the math, they're talking about raising that to $600,000 in sales, a change that would free roughly 60,000 businesses from paying the tax. That's the number of businesses, by one estimate, that make more than $300,000 and less than $600,000 each year.

House Ways & Means Committee Chairman Jim Keffer, R-Eastland, hopes to get the bill to the floor next week, and hopes it'll come with a "calendar rule" that prevents anyone from making changes that throw the bill out of balance. Anything that spends money would have to raise money; anything that raises money would have to spend it.

It's safe to say there are some lobbyists circling, hoping to make changes to the overall business tax that might help their clients.

One more thing: The legislation will probably include a provision that would require approval from three-fourths of the House before the rate on the business tax could be changed. Rep. Dan Branch, R-Dallas, has a separate bill that would put that into the constitution (if voters approve).

The new business tax isn't due until next May — that's May 2008 — but it'll be based on business activity in this fiscal year.

Tears for Tiers

In the wake of a critical report on the system that was supposed to handle eligibility for all of the state's health and human service programs, legislative leaders want the State Auditor to speed up a planned look at that system.

That system — called TIERS (Texas Integrated Eligibility Redesign System) — is all fouled up. The inspector general for HHSC — Brian Flood — says so in a report circulating around the Capitol (and contested by Health and Human Services Commission itself).

House Speaker Tom Craddick and Lt. Gov. David Dewhurst want State Auditor John Keel to tell them what's wrong by the end of June. And the HHSC response to Flood's report asks for the same thing.

Flood's report says there should be one person in charge of TIERS, that an "expert consultant" should be hired to look at alternatives, that the program's expansion should be frozen for now, that the State Auditor should look at the program, that a quality assurance team — something spelled out in state law — should be dispatched, and that the agency should "stabilize the current workforce environment."

The response from HHSC starts with a cutting remark: "We recognize that the Office of Inspector General was given a challenging task to complete a review within about a month of an eight-year-old technology project and a procurement process that spanned more than a year." That five-page report goes on to say flatly that "the new system works." But they acknowledge they've got troubles.

They got bad grades on tests when the new system was handling Food Stamp benefits. TIERS is slower than the system it is supposed to replace, but they contend that's because it does more. And they say they're working with federal officials to fix problems before they expand use of the new system.

HHSC disputes the OIG claim that TIERS could produce billions of dollars in "questioned costs." OIG contested the decision to award an integrated eligibility contract to Accenture (that's in the process of being canceled), but HHSC said that was the cheaper bid and said the losing bidder challenged the decision in the courts and lost.

And with that back-and-forth, state leaders want the State Auditor to go have a close look. The Dewhurst/Craddick letter and the HHSC response to the OIG report are both available in our Files section. The OIG report isn't available (that we know of) in electronic form.

Traffic Advisory: Expect Delays

The Senate put the brakes on private toll road projects for two years, echoing a House decision made last week.

SB 1267 by Robert Nichols, R-Jacksonville, would prohibit TxDOT and anyone else down to the local level from taking cash up front from private companies in exchange for the right to operate roads and collect tolls. Even if Gov. Rick Perry vetoes the moratorium bill that comes out of conference committee, each chamber has well over the two-thirds majority required to override a veto. That makes it a matter of timing, and whether the Lege will still be in session when a veto comes down.

The message sent by senators against how TxDOT has been handling private contracts may be a precursor to Senate reception of a much larger bill (novella-sized) by Transportation Chair John Carona, R-Dallas. A response to public complaints about transportation policy, SB 1929 tweaks non-compete clauses in road contracts and requires transparency in bidding. Carona's bill also gives local authorities more power to control road projects and creates rural planning authorities — counterparts to metropolitan planning authorities. An aide to Carona said the bill would include indexed gasoline taxes that rise with inflation, but for the law that requires tax bills to start in the House and not the Senate. If a gas tax increase is going to happen, it'll have to be included in HB 3783 from House Transportation Chair Mike Krusee, R-Round Rock.

Carona's bill is ready for a committee hearing next week; he, Krusee, and others are working on the particulars in the meantime, Carona's aide said.

That bill includes the two-year moratorium prescribed by Nichols' bill. Senators made three changes to Nichols' bill on the floor: One that keeps U.S. Highway 281 in San Antonio from becoming a private toll road, and two that exempt from the moratorium some projects in the Dallas-Fort Worth Metroplex.

Other moratorium exemptions include managed lane facilities (think tolled HOV lanes) and roads located in non-attainment or near non-attainment air quality areas. Also exempt are the Trinity Parkway in Dallas and projects in the most populous counties on the U.S.-Mexico border. That said, local county commissioners would have to approve before TxDOT could take advantage of the exemptions.

Nichols' bill also would create a nine-member legislative study committee, with three appointees each by the Governor, Lieutenant Governor and Speaker of the House. The commission would present its report on private toll roads by December 2008 — in time for the next legislative session, and after the next elections.

—by Patrick Brendel

Pest Control

It's difficult for the Senate to throw out a gubernatorial appointee they've already approved, even if that person's term is over. But that could change.

A constitutional amendment proposed by Sen. Mike Jackson, R-La Porte, and approved by the Senate, would let senators knock some commissioners and board members out of office. That's a watered-down version; the original would have tossed them out, automatically, 60 days after their terms ended.

Under current law, appointees whose term are up can serve until their replacements are named by the governor. If someone is appointed during a regular legislative session, they have to be approved by the Senate during that session or they're out. People appointed between sessions can serve until the end of the next session.

Take, just for conversation, the case of Texas Transportation Commissioner Ric Williamson, a former House member and the real force behind the toll road movement that's got so many people riled up around the state. His term is up. If Gov. Rick Perry, a good friend who served in the House with Williamson, wants to reappoint him without giving the Senate a swing of the bat, all he has to do is wait until the session is over and the Senate's gone. Williamson would keep the job without becoming a tackling dummy for an angry pack of senators from both parties.

Jackson's amendment would make it possible for senators to remove appointees whose terms are up, with a two-thirds vote. If that becomes part of the constitution, people removed that way would be barred from reappointment when the session is over.

Picture This

Technical problems forced contentious voter identification legislation off the House floor and back into Elections Committee, but HB 626 by Rep. Phil King, R-Weatherford, and HB 218 by Rep. Betty Brown, R-Terrell, could be back before the House early next week.

Voters would have to provide proof of citizenship when they register to vote under King's measure. Brown's says voters must present — in addition to a voter registration card — a photo ID (or two forms of other identification) before they're allowed to cast ballots.

The Elections Committee held a quick floor meeting — Democrats on the panel declined to attend — and sent the bills back to the full House with four Republican votes each.

Opponents say the bills are an attempt to disenfranchise voters who may not have driver's licenses or birth certificates. They also expressed concerns about people who lose their identification in natural disasters like tornados or hurricanes.

Proponents — Harris County Tax Assessor-Collector Paul Bettencourt is one — say the legislation will help prevent voter fraud and will prepare Texas to conform with the federal Real ID Act that takes effect at the end of 2009.

Bettencourt said the way to prevent disenfranchisement is to have enough people on hand at election call centers. "One of the faults that government has done is to not put enough effort into taking all calls on Election Day," he said.

Harris County call centers are equipped to handle more than 50,000 calls on Election Day. So long as a person can get through to a well-trained voter registrar, he said, they will find out if they are eligible to vote. "Then there is no voter disenfranchisement," he said.

In attempts to increase voter turnout, Rep. Rafael Anchia, R-Dallas, filed HB 266, which would designate election days as holidays. Sen. Rodney Ellis, D-Houston, filed identical legislation in SB 695. Both bills have been in committee since February.

—by Patrick Brendel

Shrinking the Smoking Section

The anti-smoking movement has swept through the state's biggest cities is a step closer to being a statewide thing in Texas and elsewhere.

A House committee advanced a statewide ban on "workplace smoking" — a definition that would include all but a handful of bars and restaurants along with everything you generally think of as a workplace. HB 9 by Rep. Myra Crownover, R-Denton, exempts only tobacco shops and cigar bars, and then only the ones that are open on May 15 of this year.

Dallas was one of the first big cities in the U.S. to regulate tobacco in the workplace. That movement has spread to bars and restaurants and — if you look at this map from Crownover's office — from municipal laws to state bans.

Smoke-Free Texas, a coalition that's promoting the ban, says polling shows about two-thirds of Texas voters are on their side.

And they have some powerful allies. Sen. Rodney Ellis, D-Houston, presented an identical bill at a committee hearing this week, and his star witness was Lt. Gov. David Dewhurst, who's appearance on behalf of the bill surprised the committee members (excepting Ellis) and a lot of people who've been involved in the issue.

"I just feel very strongly that second-hand smoke kills people," Dewhurst told the committee, saying it played a part in killing both of his parents. He endorsed the ban: "It'll save lives, it'll save money, it'll make for a healthier Texas."

Accountability, Sort of

The House unanimously (142 votes, with eight folks missing) approved a constitutional amendment that would require record votes on final passage of bills. That's an answer to pressure — starting with The Dallas Morning News — on lawmakers to show how they voted on this measure or that one.

The legislation by Rep. Dan Branch, R-Dallas, would require a record to be kept of all votes on final passage of all legislation. Note the phrase "final passage."

Bills that die wouldn't have to be recorded. Amendments and procedural votes — where the real nut-cutting is done — wouldn't have to be recorded. Committee votes aren't included.

House rules require a record vote at any point in the process if at least three members ask for one. As long as there are three people for or against a measure who want everyone to vote with the lights on, they have to vote with the lights on.

And requiring a record vote on final passage has one very weird effect. Members know after their tentative vote — the second reading of a bill — how things are going. So they can vote against legislation they don't like and then vote Yes on third reading and final passage. That's what happens now, and it means most bills pass unanimously.

That's where you get the weird effect: Legislation that passes with at least two-thirds of the chamber in favor takes immediate effect. If the legislation says something will take effect, say, in January, a super-majority vote moves up the effective date to the day the governor signs it or allows it to become law without a signature. Most of the time, that's no big deal. But think of a tax bill that changes a rate now instead of later. Or a future ban on smoking. Or a regulation.

Flotsam & Jetsam

The Texas Senate isn't ready to offer legal protection to journalists who are protecting their sources from police and the courts. Sen. Rodney Ellis, D-Houston, couldn't get two-thirds of his colleagues to go along with his latest attempt at a Shield Law for reporters. And truth be told, it's no slam dunk among working reporters, either.

• End of course testing for public school students is moving. The Senate approved legislation by Sen. Florence Shapiro, R-Plano, (SB 1031) that would replace the high school TAKS test with 12 tests at the end of various courses in English, math, science and social studies. High school students would have to average scores of 70 percent to graduate. A similar bill (HB 2236) by Rep. Rob Eissler, R-The Woodlands, was voted out of House committee and is on its way to the floor.

• You can do bingo in Texas, but you can't play the version known in the law as "electronic pull-tab bingo." That's the opinion of Attorney General Greg Abbott, who says it would take a change to the state constitution to allow that. Pull tab bingo is legal, but only if it's a physical card with pull tabs. Electronic pull tabs are a hybrid that falls somewhere between bingo, which is legal, and video lottery terminals, or slot machines. Those aren't legal. Abbott pointed to legislation that failed two years ago that would have allowed electronic pull tabs, saying that legislation would have been unconstitutional. The timing was interesting. Sen. John Carona, R-Dallas, had a bill that would have allowed a "card-minding device" in charitable bingo games. That's another description of electronic pull tabs. Carona's bill was up for a committee hearing this week.

• Sick of the Capitol? Try this out: Texas Democrats looking for a candidate to challenge U.S. Sen. John Cornyn, R-San Antonio, will meet in his hometown over the weekend to talk about polls and money and candidates. They'll look at a poll that we're told describes an ideal candidate and they'll kick names around. That's a  Democratic Senatorial Campaign Committee event at the home of attorney Mikal Watts. His is one name getting mentions as a possible Cornyn challenger. Others — and these are names being mentioned and not necessarily names of people who've said they're interested — include U.S. Rep. Nick Lampson, D-Stafford; former Texas Tech Chancellor and state Sen. John Montford, who represented Lubbock but now lives in San Antonio; state Reps. Pete Gallego, D-Alpine, and Rick Noriega, D-Houston; Houston Mayor Bill White, and former state Comptroller John Sharp.

• Or try this one: Candidates and political action committees raised $52 million from 140 "mega-donors" listed in a report from Texans for Public Justice. That outfit's report lists individuals and couples who gave $100,000 or more in the 2006 election cycle. They accounted for 27 percent of the money in Texas races in those elections. Nearly a third of that money came from two mostly Republican donors: Houston homebuilder Bob Perry and San Antonio's Dr. James Leininger, the group said. And seven of the newbies in the mega-donor ranks were alcohol distributors. Several bills in the Legislature this session are focused on that industry.

• Special Session, a weekly public television look at state government and politics, is featuring freshmen Dan Patrick, R-Houston, and Rep. Juan Garcia, D-Corpus Christi, this week. It airs on Sunday in most places, but you'll have to check your listings. You can also watch past shows on the Internet.

Political People and Their Moves

Coming soon, to a conference room near you: A portrait of retired and beloved Senate Secretary Betty King. The painting will hang — after its unveiling next week — in the Betty King Conference Room behind the Senate Chamber. And the artist has some history in the building, too. Mary Jane Manford is a former aide to Gov. Rick Perry who turned her part-time occupation into a full-time occupation. She now lives and works in New Mexico.

Former White House Counsel and one-time U.S. Supreme Court nominee Harriet Miers is returning to the law firm she left when she joined her client, George W. Bush, in the government. She'll be a partner with Locke Liddell & Sapp with offices in Dallas, Austin, and Washington, D.C. Miers will be in the firm's public policy group — that's the lobsters — as well as their litigation group. Miers was Bush's lawyer when he was elected governor, and left her post as co-managing partner of the firm to join his White House staff.

Kurt Purdom is the new director of bank and trust supervision at the Texas Banking Commission. That's a promotion; he's been at the agency for the last 25 years.

Land Commissioner Jerry Patterson and Railroad Commissioners Victor Carrillo and Michael Williams, venturing where state officials rarely tread, endorsed Republican Gary Griffith in the upcoming race for mayor of Dallas. So did some Dallas congressmen of the GOP persuasion: Jeb Hensarling and Pete Sessions. He also picked up a nod from Denise McNamara, the national Republican committeewoman from Texas. That's a nonpartisan post.

Deece Eckstein, the founding director of the Texas office of People for the American Way, has parted ways with that national group. He's hanging out a lobby shingle and plans to do some teaching after two years with PFAW. The advocacy group hasn't named a replacement.

Former WFAA-TV reporter Shelley Kofler joins the Texas State Teachers Association as a public affairs specialist. She was most recently with Tate Austin, a public relations firm.

Rep. Allen Vaught, D-Dallas, has two new roommates: Hussein Hamed and his wife, Raghad Ali. Hussein was a translator in Iraq who worked with Vaught during his 2003-04 tour there. Now he's got a permanent workers' visa and, for now, a place to stay in Dallas.

Gov. Rick Perry named Trisha Pollard, an attorney and an executive with Pollard Development of Bellaire, to the Texas State University System's board of regents. She's an alumna of Sam Houston State University and she got her law degree at South Texas College of Law.

Geoffrey Barr of New Braunfels will be the next Comal County district attorney. He's an assistant DA there and is the governor's choice for the top job opened by the resignation of Dib Waldrip, appointed by the governor to a judgeship last month. Barr will serve until the next general election.

John Broaddus of El Paso will head the Camino Real Regional Mobility Authority for the next two years. He's a CPA, named to that post by Gov. Perry.

Quotes of the Week

Sen. John Whitmire, D-Houston, hollering at freshman Sen. Dan Patrick, R-Houston, about Patrick's $3 billion in proposed budget cuts: "It's your time that you show this body that you know what you're talking about. And take your time."

Attorney Howard Wolf, talking to the Austin American-Statesman about how legislators halted publication of a Sunset Advisory Commission report on alcohol regulation because of his written remarks: "The whole purpose of citizen members is to counter the views of elected officials. If comments like these can be suppressed, it undermines the whole Sunset process, a system that is valued for keeping government on the right track."

Rep. David Swinford, R-Dumas, on where he wants to put a huge crime database: "There are two people that I trust — God and the Texas Rangers. And God was busy."

Rebecca Bernhardt of the Texas branch of the ACLU, saying the database would still be under the control of the governor's office, as it is now: "The concern we have is that the governor's office is a political office... and this should be operating at an arm's distance from a political office."

Austin City Councilman Lee Leffingwell, quoted by the Austin American-Statesman on the city's plan to limit plastic grocery bags in favor of paper ones: "We got the idea from San Francisco, but that's going to look bad in print."

Rep. Garnet Coleman, D-Houston, on Gov. Rick Perry's request to let the state take over the troubled Texas Southern University, in the Houston Chronicle: "This could be the end of the university as we know it. Who would want to go to a university under conservatorship?"

House Speaker Tom Craddick, asked about the status of a bill on the far side of the Rotunda: "I have no idea what the Senate's doing. Ah — that's probably going to be a quote of the week."

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Texas Weekly: Volume 23, Issue 42, 23 April 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.