We'll start this tale by saying that when the House is charged about two months from now in the death of legislation on third parties being sued in tort cases, the Senate will have to be charged with aiding and abetting the murder. Maybe they didn't mean to do it. But the Senate's lack of speed has made it easy for the House opponents to whack the bill without taking much heat for it.
That bill will probably be forgotten when this story is told later, but the story may have some staying power, because it's all about who holds the reins in Lt. Gov. Rick Perry's Senate.
Break it down: Sen. David Sibley, R-Waco, is the sponsor of the tort bill. He is the chairman of the Senate Committee on Economic Development. That seven-member committee has a five-member Subcommittee on Technology and Business Growth, which is chaired by Sen. Troy Fraser, R-Horseshoe Bay. Perry referred Sibley's bill directly to Fraser's subcommittee, where it has remained since a mid-March hearing, stuck with only two sure votes.
And that brings us to the point of disagreement. Some, Sibley among them, believe the rules allow a chairman to free a bill that's mired in subcommittee by simply pulling it up to the full committee and trying to vote it out at that level. That's only happened about a million times in the Legislature. But this is a new set of rules, and there are others, including the lieutenant governor's folks, who say that a bill directly referred by the Lite Guv can only go to the full committee after a vote from the subcommittee. Without such a subcommittee vote, the only way to move the bill is to get the full Senate to vote to re-refer it, moving it from the subcommittee to the parent committee or somewhere else. When Fraser stood up to defend that re-referral last week, the Senate shoved it down his throat.
This Ain't Really a Fight Over Tort Reform
What's really at stake in that argument is the power of the committee chairman, and by extension, of the lieutenant governor. From the start, the creation of Fraser's subcommittee was perceived as a whack at Sibley, but this is the first real measurement of the change.
The immediate loser was Fraser. His committee was created, in part, as a favorable climate for tort reform and other legislation backed by business groups, and he couldn't get the bill past the panel on schedule. (Texans for Lawsuit Reform and other groups have been boasting in mailers that the bill would be on the floor of the Senate by now.) And he was the senator who stood on the floor and took the heat when the Senate made an issue of the re-referral that was technically requested by Sibley.
The friction between Sibley and Fraser started well before the session, before Perry made committee assignments. It continued through Fraser's filing of telephone legislation on the eve of Sibley's press conference on the same subject, a breach of Senate etiquette on a couple of levels. The two had a public disagreement a few weeks ago when Fraser questioned Sibley's desire to hear witnesses in his committee on a bill that had already received a hearing from Fraser's subcommittee.
That's well documented. Less talked about is the tension over the rules. With only a couple of exceptions, the Sibley-Fraser scuffles have been over the committee structure and the flow of power in the Senate. On that level of the game, Fraser is the front man for Perry, whose actions are behind the shift in power away from Sibley. Put another way: The Sibley-Fraser dustups probably would not be happening without the change in committee rules, and if someone other than Fraser had been named as chair of the subcommittee, we'd probably be writing about Sibley and that other someone. When you take it all apart, this is more about Perry and Sibley than about Fraser and Sibley.
More From the Wide World of Torts
The bill at the bottom of that tort fight attempts to limit the liability of third parties in some lawsuits. Among the opponents are Texas cities. Their lawyers say the bill would actually cost the cities some money, since they would likely be held partially responsible in cases – like workers' compensation actions – where they are not held liable under current law. Cities, and some employers, often get money back when a case involving one of their employees is settled; the settlement often includes reimbursement for whatever the employer spent on the employee right after an accident or incident. The cities argue that this legislation would cut into their reimbursements, thus costing them and their taxpayers more money. That argument was part of the reason the Senate subcommittee paused before voting on what is alternately called the "submissions" or "third-party" bill.
The bill's friends are having a hard time with it, partly because of a relatively quiet full-court press from trial lawyers who oppose the bill.
The Texas Association of Business and Chambers of Commerce sent out a mailer asking members to call their legislators in support of the bill. That mailer uses two cases as examples. When lawmakers asked about the details of the cases, the TABCC cited a case that was lawyered by Rep. Harold Dutton, D-Houston, who is a member of the House Civil Practices committee that is hearing the legislation. It wasn't really pertinent to the issue at hand, so they apologized and sent over a citation for a different case. That only compounded the error. The mailer points to problems the tort laws cause businesses by forcing them to pay damages even in cases where they didn't directly do anything wrong. But in the second case cited by TABCC, no money was awarded to the family of the victim. Since more than half of the blame was assigned to the man who was killed, and only 12.5 percent of it was assigned to the business where the shooting occurred, the business didn't have to pay any money to anyone.
The biggest mistake by the business groups may have been an error of confidence. Both Texans for Lawsuit Reform and TABCC told their members to expect a floor vote soon in the Senate and to call their legislators and register support for the bill. But because the bill stalled in the Senate subcommittee, the timing of those calls was off by a week or better. At our deadline, the bill was finally voted out of the subcommittee, and the full committee will get its first look at the legislation sometime this week. It's still on its feet, but it's wobbly.
It Doesn't Always Pay to Advertise
AT&T started the session saying it would prefer no phone legislation at all. The company contends that the Public Utility Commission already has the power to force Southwestern Bell to lower access charges paid by long distance customers for calls made from one Texas city to another.
But the long distance company may have stepped on its own foot with its long-running series of ads on that subject. Lawmakers and their constituents have seen so much of that "lady in the clouds" talking about Marfa and Honolulu that they smell a problem they can solve. That increases (but doesn't guarantee) the odds of a phone bill passing this session.
Bell wants a bill that would "clarify" (or, if you speak English, would "limit") the PUC's authority over access charges and other rate issues. Some contend the PUC can force a rate case upon Bell after the first of September – a date spelled out in current law. Bell's folks disagree, and want that issue worked out by the Legislature. Regulators aren't taking sides, exactly, but have more or less admitted that PUC action under current law would lead to a long, long court fight and that legislative action might be the quickest way out of the box.
Texas access charges amount to over 11 cents per minute, and the Legislature aims to cut that by five to seven cents. For perspective, Tennessee lawmakers are considering a phone bill that would cut BellSouth access rates from 7.3 cents to 1.5 cents. The Texas rate is among the highest in the U.S.
Money, Money, Money
The only bill that's gotta go through – the state budget – hits the House floor on Tuesday. As we've noted, the most interesting feature is what's not in the bill, with $3 billion sent down the hall to the Public Education committee and another $500 million sent down the hall to Ways & Means. Those amounts will be used for whatever combination of spending and tax cuts finally escapes the building.
The budgeteers did chase after a couple of their pet peeves in the new spending plan, hoping to get a handle on the number of people working for the state, and hoping to gain control of out-of-state travel by state employees.
Two years ago, the Legislature imposed travel spending caps on all agencies. It might be too strong to say some agencies ignored the cap, but it's safe to say that, at some agencies, the result was the same as it would have been if they had ignored the cap. Several of them were dressed down for travel spending during their budget hearings. And the new budget includes a provision aimed at a subset of travel spending: Agency executives and board members who travel out of the state will have to file the details of their trips with the Ethics Commission. That will at least make the records easy to retrieve. Those high-level folks already have to file financial records with the state, and the new travel information would go into the files with it.
The budgeteers also make another attempt to get a fix on how many people work for the state. The number of people actually on the payroll is fairly easy to count, but a number of agencies hire contractors to do temporary, semi-permanent and permanent work for them. The new appropriations bill would require the agencies to include any contract employees who are on the job for more than six months in their counts of FTE (full-time equivalent) employees.
That could have some interesting fallout. Some legislators think it could increase the number of state FTEs by as much as 20 percent. And some of the agencies wonder how it will affect the state in employment law cases. It won't decide the issue, but if the state is counting a worker as a full-time employee, some lawyers say it could be difficult to argue that the person is, in fact, a contractor and not a state employee. The difference is more than academic, because it determines whether the state withholds taxes, pays benefits, incurs certain liabilities and so on.
This Pays Better Than That Passbook Savings Account
The Senate kicked out a bill touted by Comptroller Carole Keeton Rylander and sponsored by Senate Finance Chairman Bill Ratliff, R-Mount Pleasant, that would change the interest rate charged late taxpayers and would – here's the campaign promise – pay that same rate to taxpayers who overpay the state. So, the current 12 percent rate would drop (or rise, in bad times) to the prime rate plus one percentage point. That's what you'd pay the state, in addition to penalties, for paying your taxes late. It's also what the state would pay you (forget about penalties, friend) if you overpaid your taxes and were due a refund.
Most small taxpayers will never see this, but it could get interesting for big companies: Say the comptroller assesses a tax based on an estimate and the taxpayer puts the money in the state treasury pending an audit. If the audit shows the taxes assessed by the state were too high, the taxpayer gets the money back, plus interest. The main theory behind this is that the taxpayer ought to get the same deal the state gets; but some proponents hope the interest cost will make tax estimates like the one in the example a little more conservative. Oddly, the state's number-crunchers attached a positive fiscal note, saying increases in collections (mainly in the first two years) would outstrip the costs of paying interest on taxpayer refunds. This has wings: It's on the way to the House, where the sponsor is Rep. Rob Junell, D-San Angelo, chairman of appropriations.
A related bill of similar parentage would allow some companies to self-audit when it comes to state taxes. Instead of the comptroller's office sending in a team to check a company's books, the company would audit itself, paying delinquent taxes – without penalty and potentially without interest – if it discovered it had underpaid. Similarly, it would be allowed to collect interest on overpayments.
Don't Quit that Day Job
One of the cool things about being a governor (yup – we're jealous) is that you can get nice opening day tickets when the balls and bats come out in the springtime. Gov. George W. Bush also got some free airtime, calling a half-inning of the Texas Rangers' opener against Detroit on the far-flung Rangers baseball network. Bush knows his baseball, but when it comes to calling a game on the radio, he's no Ronald Reagan...
Elsewhere on the Bushwatch: Bush supporters bought an ad in the San Jose Mercury News touting his stands on tort reform, education and regulation as proof that he's in tune with Silicon Valley types. The timing corresponded with a fundraising visit to that area by Vice President Al Gore... Donald Evans, the governor's finance chairman, tells the Washington Post that the campaign aims to raise $32 million by the end of the year... He's not going to New Hampshire until after the session, but maybe it's not necessary yet. Bush snagged an endorsement from U.S. Sen. Judd Gregg, R-New Hampshire. The pitch to national reporters from our governor, just so you know what it is: "I must remain in Texas, where I am working to cut taxes and increase funding for public education..." Bush also picks up a couple of notable political types in that state, including Barbara Russell, who worked for Bob Dole in the last election cycle... Bush aides tell reporters that the governor will wait until the end of the session before he hits the national travel circuit, but will probably not wait until after the 20-day bill-signing period that follows the session. He'll be on the road in early June.
Pay no attention to all that noise about the particulars over the governor's tax package. As we wrote a week ago, the governor is telling Republican legislators that they can fiddle with the particulars as long as, at the end of the day, there's something he can call tax relief. There was a weird moment last week when it looked like legislative Democrats were the only people sticking to the governor's original proposal. House Republicans were tinkering with sales taxes in place of the property taxes originally proposed by Bush.
There's currently a little divide between the Rs and the Ds over how to cut sales taxes. Some Republicans have proposed a quarter-cent tax cut, while Democrats are pushing targeted cuts aimed at people who buy diapers and drugs for kids and things like that. The argument is of the Wide v. Deep variety: The cut in the sales tax rate affects more taxpayers, but only gives them a little money back. The directed cuts on specific items benefit fewer taxpayers, but the benefit is a bigger one.
The plot will quicken this week as the committees led by Reps. Paul Sadler, D-Henderson, and Rene Oliveira, D-Brownsville, start spending (in the form of education programs, teacher pay raises and tax cuts) the $3.5 billion left to them by the appropriations panel.
Voucher Vote Counters
Vote-counting in the Senate has been seriously flaky this session and most denizens of that chamber are cautious when they're seeing how votes will stack up. That's going to be our standard qualifier on pre-vote stories for a month. That said, Sen. Teel Bivins, R-Amarillo, has moved his voucher bill onto the Senate's intent calendar. But he still doesn't have the votes he needs to bring the bill up for consideration. He says he's working on it.
Opponents, meanwhile, say they have the signatures of 12 Democrats on paper who say they'll vote against bringing the bill up for consideration. The legislation would allow public school students to go to private schools and take 80 percent of their public school funding along with them in the form of vouchers. The Bivins version would be limited to students in six counties, and only ten percent of the eligible students would be allowed to participate. Even with those limits, opponents say the bill would cost school districts $1.6 billion in public funds over the next five years. That's down from the $2.8 billion they were estimating on an earlier version, but Bivins still disagrees. He contends that fewer students will take part in the program than voucher opponents fear.
Republicans Grab Campaign Finance
It might or might not be true that the campaign finance wagon gets its momentum this session from the political contributions of Dr. James Leininger of San Antonio, and from Democratic fury at the enormity of his interest in state races. It is true, however, that the Republicans are pulling up even and maybe even passing the Democrats in the race for reform of the current system.
The pivot point is electronic filing. Reformers want candidates to file their reports by phone line (on the Internet, for instance) or by diskette, thus making that information immediately available to the people who vote in elections. Several bills would do that, and they're sponsored and/or backed by politicos from both sides of the aisle. But they're getting opposition from party regulars on the Democratic side of the ledger, and Rep. Debra Danburg, D-Houston, who chairs the House Elections committee, has given the idea a chilly reception as well.
The folks at the Texas Ethics Commission, which would keep the records, say there would be a relatively small cost up front for electronic filing, but don't foresee much of a hassle. Several other states file campaign finance stuff electronically, and that makes the opposition here a head-scratcher. We've been talking to people about this one, and there is one critical piece of information that would be available about state politics under an electronic system that is not immediately available now: How much an individual contributor has given to all of the campaigns he or she is contributing to?
For instance, Leininger's political giving was tallied up by the Texas Freedom Network, a group that is fighting the school voucher program that he supports. During the last election cycle, he gave $549,000 and change directly to candidates, another $1.3 million to political action committees and $2 million in loans to campaigns, for a total of $3.86 million. Alternately, the Texas Citizens for a Sound Economy contends that trial lawyers accounted for 78 percent of the Democratic Party's funding in the last election cycle. The point here isn't that one person or group did that much, but that the information took both groups months to compile, and then only at considerable expense.
With an electronic filing law like what is being proposed, voters could find most of that information online before filling out their ballots, just as they can now in federal contests and in several state elections. It's not completely foolproof, but it's more information than is available now.
The GOP clearly wants to make a campaign issue of this. The Republican Caucus in the House is on board, as is the state party. Lt. Gov. Rick Perry, probably the most famous recipient of Leininger money, has said he'd favor instant access to campaign finance information on the Internet.
The head of the state Republican Party, Susan Weddington, sends an opinion piece to Texas papers on parental notification legislation, singling out House Speaker J.E. "Pete" Laney, D-Hale Center, and Rep. Steve Wolens, D-Dallas, for vilification. She says those two have prevented the bill, which passed in the Senate, from getting a hearing in Wolens' State Affairs committee in the House. She also takes a swing at efforts to create a bypass that would allow underage girls to talk to someone other than their parents or judges before obtaining abortions.
This isn't about automobile superstores, but the concept is not completely different: The House passed legislation barring equipment companies from forcing dealers to sell one brand and one brand only. That would prevent, say, John Deere from telling a dealer not to also sell International Harvester equipment. There are multiple versions of this bill floating around; some would include heavy construction equipment, in addition to farm, forestry, and industrial equipment.
We quoted Sen. David Sibley, R-Waco, a couple of weeks ago saying he had accumulated an unusual list of supporters and opponents for his bill limiting the power of cities in some property rights cases involving churches. Sibley had said the Texas Eagle Forum opposes that legislation, but that group's honcho, Cathie Adams, says they support it.
Political People and Their Moves
You no longer need a secret decoder ring to see the state's top lawyer. Attorney General John Cornyn hacked through some of the electronic mystique of the AG's office, and now you can walk in the building and go right to the eighth floor if you want to. Former AG Dan Morales installed an elaborate security system that required visitors to sign in with a first-floor guard who would then walk them to the elevator and punch in the secret code to get them to the executive level. Now it's self-service, just as it was before Morales took office... Donny Stevens, the legislative liaison for former Comptroller John Sharp and an aide to former Sen. O.H. "Ike" Harris, R-Dallas, joins Sen. Ken Armbrister, D-Victoria, as a legislative aide... Sen. Gregory Luna, D-San Antonio, went to the hospital for diabetes-related problems, spent three days in intensive care and might be out by the time you read this. He was moved to a private room late in the week, and could be back at work this week... Appointments: Gov. Bush names Levi Benton of Houston to a state district judgeship, pending the approval of the Senate. He would replace Judge Dwight Jefferson, who resigned... Last week, it was probable, and now it's official. Denton County Judge Jeff Moseley will leave that post to take over as executive director of the Texas Department of Economic Development. TDED's board voted unanimously to give him the job, and he'll take the reins as soon as the Commissioners Court back home names his replacement... New Title? Sen. Drew Nixon, R-Carthage, bills himself in press releases as "Dean of the Montgomery County legislative delegation". That group includes Nixon and three other lawmakers... Here's an oddment: the so-called "Veggie Libel" repealer sponsored in the House by Reps. Ruth Jones McClendon, D-San Antonio, and Harold Dutton, D-Houston, got a hearing in the House but still has no Senate sponsor. When the legislation first passed, it was backed by then Agriculture Commissioner Rick Perry, who's now presiding as lieutenant governor over all of those potential sponsors in the upper chamber.
Quotes of the Week
From Rob Hosford, spokesman for the Texas and Southwestern Cattle Raisers Association, on a new hotline set up to respond quickly to bad news about beef: "If we hear XYZ radio station carrying something about the beef industry, procedures and products that is derogatory, unfounded and untrue, with this task force we will send someone over there to reeducate, so the next time they talk they'll be talking from the right side of the ballpark."
Houston City Council member Rob Todd, on the council's decision to approve $550,000 in unauthorized spending on outside lawyers without a reprimand to City Attorney Anthony Hall: "It wouldn't bother me being toothless if we could at least gum somebody once in a while."
Sen. Teel Bivins, R-Amarillo, estimates from voucher opponents that the public money/private school program would cost schools $1.6 billion over five years: "If they're predicting that this is going to be the cost of the bill, they must believe that there is enormous dissatisfaction with the public schools, and I don't believe that is the case."
State Board of Education member Grace Shore, on why that panel voted against written notice to parents when schools hire uncertified teachers: "It might unduly upset parents thinking the teacher was not qualified. Many times, this is the best person the superintendent can find to hire."
Sen. David Sibley, R-Waco, after a failed attempt to move a tort reform bill he is sponsoring: "We are for forum shopping, if it's done right."
Dallas City Council member Laura Miller, who opposes the inclusion of Dallas in legislation that would have state taxpayers financially backing an Olympic bid, on claims from her city's leaders that Dallas doesn't need taxpayer money to win a bid: "Either they want the money or they don't want the money. And if they don't want the money, we shouldn't be in the bill."
Gary Curran of Dobbin, Texas (Montgomery County), a member of a group that is unhappy with the Texas Department of Transportation's proposal to fix a dangerous intersection without putting in a traffic light: "If B.S. was electricity, TxDOT could furnish the state."
Texas Weekly: Volume 15, Issue 39, 12 April 1999. Copyright 1999 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited.