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A Biennial Power Surge

The powers of state officeholders ebb and flow with the calendar. The end of the legislative session is when the governor's powers peak, when the comptroller has one last moment of leverage, when budgeteers' prospects are in bloom and when the lieutenant governor and the speaker of the House bring their full powers over the legislative agenda to bear. If you see legislative supplicants standing in line to plead for something, chances are the line will lead to one of those people.

The powers of state officeholders ebb and flow with the calendar. The end of the legislative session is when the governor's powers peak, when the comptroller has one last moment of leverage, when budgeteers' prospects are in bloom and when the lieutenant governor and the speaker of the House bring their full powers over the legislative agenda to bear. If you see legislative supplicants standing in line to plead for something, chances are the line will lead to one of those people.

Gov. Rick Perry is about to get a flood of legislation that he can veto, sign, or let pass into law without his signature. Early in the session, lawmakers can override a veto they don't like, something that's rare but not unprecedented in state politics. Late in the session, he can simply hold onto legislation for a couple of days until lawmakers have finished up their work. Vetoes that come after the end of the session can't be challenged. That's the most obvious part of the rise in the governor's powers. Add his ability to appoint people to boards and commissions without the hindrance of immediate Senate advice and consent. And toss in his ability to haul lawmakers back to Austin for what could be a divisive special session on congressional redistricting.

Comptroller Carole Keeton Rylander is well-positioned for one more big deal, if she wants to trade a little wiggle room in her revenue estimate—something that's dear to the budgeteers—for something dear to her. Once that final estimate is gone, so is some of her power over lawmakers, until money matters loom large again.

The folks on the budget conference committee are putting the bows on all kinds of deals at the end of the session. If the House and Senate negotiators don't kill each other before this is over—something they've shown signs of doing a couple of times now—they're the biggest deal-makers in the Capitol from now until the end of the session. They'll have the final say over the three big-dollar issues of the session: state-supported health insurance for public school employees, pay raises for state employees, and increases in Medicaid spending to cover increased costs and to pay for the surge in clients that's expected if lawmakers remove burdens that keep eligible people from getting Medicaid benefits.

Lt. Gov. Bill Ratliff and House Speaker Pete Laney are similarly empowered at the moment. They control the flow of business from here on out, and with time running out, a decision not to deal with something right away can be the same as a decision not to deal with it for two years. Both do that as much through the rules they set as through the gavels they wield. You can see that in the whining and pleading that's accompanied the deadlines of the last several days (and of the next several).

House members started knocking Senate bills off of their calendar to save the House bills that were running into the deadlines. That came with the usual portion of bombast, but the effect on the Senate bills was minimal: They kept their place in the order of things in spite of the delays, and it'll be ten days before they hit similar deadlines on the House side. And the Senate made a special effort to get House bills out of committee in time for a deadline on that side of the rotunda.

Legislators on both sides got an adrenaline surge out of the collision, but it was hard for either side to blame the other for the rules that were printed and distributed back in February. Ratliff and Laney, to return to the point of this, built the rules and let off the steam when it built up last week. They'll be managing those kinds of messes on a daily basis from here on out.

The power curves for all but one officeholder on the list will subside at the end of the month, when the session ends. Then eyes will turn to Perry's vetoes, signings, and decisions about special sessions.

Close Enough to Call it a GOP Win

Give the House Republicans their due: They produced 71 votes against a plan backed by a five-term Speaker of the House and they kicked out a plan of their own that was reasonable and didn't over-reach. They almost lost a chance for a straight up-or-down vote on it when Rep. Tommy Merritt, a Republican who's become a thorn in the paw of Republican leaders and who was one of four in his party to vote with the Democrats. Merritt produced what he called the "rural Republican plan" and got a surprising 86 members to vote to keep it under consideration. He agreed to pull it down before it went to a vote, but it scared the devil out of some of the Republicans. Had it passed, GOP leaders wouldn't have been able to show a head-to-head vote comparing their plan with the one drawn by Rep. Delwin Jones, the Lubbock Republican and Pete Laney ally who headed the redistricting panel.

When Merritt decided to stand down, the Republicans got their vote, and it was close enough to buoy their spirits and boost their arguments when all of this goes to court in a few weeks.

Now the play moves to the Senate, where everything is stuck. We ran on about the Senate's rules last week, but they're still the problem: The Republicans have to stick together and win the support of five Democrats to get a plan up for consideration. The Democrats have to stick together and win support from six Republicans to bring a bill to the floor.

Neither coalition seems likely, but now there's a plan for each group. Sen. Jeff Wentworth, R-San Antonio, has a plan that he says would give Republicans at least the one-vote majority they have now, and might give them a seven-vote majority. Translated, he's got three Democrats—Ken Armbrister of Victoria, David Cain of Dallas and Mike Moncrief of Fort Worth—in marginally Republican districts that could probably be won by Democrats only if they're incumbents. Some Republicans say the Wentworth map is too favorable to Democrats in Sen. Bill Ratliff's northeast Texas district. If Ratliff runs for lieutenant governor and leaves that open, they fear the Democrats could gain a seat.

The alternative, at our deadline, was in the hands of Sen. David Sibley, R-Waco. He puts the same three Democrats in districts with stronger Republican tendencies and adds a fourth, John Whitmire of Houston. Cain would be paired if Sibley had his way, either with Royce West, an African-American Dallas Democrat, or with John Carona, an Anglo Dallas Republican. Either way, the districts would be unfavorable to Cain. Sibley's plan could produce 20 Republicans in the 31-member Senate.

Jammed Session

Both sides say they've got more than 11 votes, which means the whole thing is stuck until senators migrate to one of the poles. If the Senate plan remains stuck during the regular session, there's a good chance the Senate would never vote on the plan passed by the House. That would have the same effect as a veto, but with a crucial difference: Courts are likely to look more favorably on plans passed by both Houses—even if they were vetoed—than on plans that stalled in the Senate.

That leaves congressional plans, which will be drawn either by the courts starting from scratch or by lawmakers in a special legislative session. There are several ways for that to play out. Gov. Rick Perry could decide there's no reason to call a session if the Senate can't put together the votes it needs to bring a plan up for consideration. Or something could break and he could call a quick session, let legislators knock out a congressional plan and go home.

Some Republicans are advising Perry to wait until the Legislative Redistricting Board has convened. That panel could start talking about legislative maps at about the time Perry brings lawmakers to town to talk about congressional districts. If their efforts were coordinated, that would give Republicans some leverage with senators and representatives while the congressional maps were being drawn. It creates an opportunity for horse-trading where now there is none.

Taxes on Bottled Water: Conference Ahead

When Sen. J.E. "Buster" Brown, R-Lake Jackson, filed his water bill earlier in the session, it had something like $17 billion in new taxes and fees attached to it. That didn't prompt protests, because it was more or less understood that most of the gnarly stuff in that fiscal note would come out of the bill eventually. Still, the programs created in the bill would cost around $600 million annually.

As it came out of the Senate, Brown left only a nickel tax on every bottle of water sold in the state. The House version doesn't include even that, leaving open the question of how to fund the programs created in the legislation. But one issue that will surely arise when the two versions of the bill are reconciled is: How much would a bottle tax raise? Well, the state doesn't have a good bead on how much bottled water gets sold, and the water bill backers thus don't know exactly how much money would go to the Water Infrastructure Fund that would be created to help local governments with water projects. Rough estimates range from about $52 million to about $65 million.

The water bills coming out of the House and Senate are different enough to make advocates on both sides a little goosey about trying to negotiate with only two weeks left in the session. Money's not the only squabbling point. Some groups, like Environmental Defense, wonder whether the planning process will work; they say it doesn't set an economic standard that can be used to measure one project against another when two proposals compete. The Senate version required information about the impact of new projects on water quality, such as the effect of a reservoir on water quality further down a river. That's not in the House version. —Rachel Goggan

Taxes on Beds: A Shaky Nursing Home Compromise

The nursing home deal that's been in the works is in writing and off the floor of the Senate, but the fight's not over. Nursing homes agreed, more or less, to pay a bed tax of $5 per day per patient. That money can be used to draw in federal funding the state doesn't get now. The upside is that there's more money for Medicaid patients in nursing homes without state expense. The downside, which spurred a hot exchange in the Texas Senate—is that it's a tax. Sen. Jane Nelson, R-Flower Mound, said the companies wouldn't be able to pay the tax without charging their customers more. For patients in private nursing homes that won't get any of the Medicaid money, she said, that's not fair.

On the other side, Sens. Robert Duncan, R-Lubbock, and Mike Moncrief, D-Fort Worth, said the private homes liked the deal because it might result in more access to liability insurance and lower or more stable prices for that insurance. The lawyers—plaintiff types and defense types—agreed to some limits on how much some types of insurance policies have to pay in nursing home cases.

But the deal is tenuous, at best. House members have been involved in the negotiations, but the governor's office hasn't signed off on the plan. Gov. Perry said earlier this year that he didn't want to see any tax bills; he's arguably getting one in the nursing home patch. And some see tort reform possibilities in the nursing home issue. Some nursing home owners say they're having problems because liability insurance is so expensive and lawsuits are so plentiful. Others say their problems stem from the state's low funding for Medicaid patients. Meanwhile, groups ranging from trial lawyers to the AARP say the nursing homes should put the new money into better quality care so that the residents of the homes won't have complaints worth suing over.

Coulda Been Better, Coulda Been Worse

If that utility refund bill by Rep. Sylvester Turner, D-Houston, gets out of the Senate alive (it's possible, but the odds are long), Houston-based Reliant would have to send $212 million back to customers. Dallas-based TXU would send customers $146 million, and Ohio-based AEP, parent of Central Power & Light, would refund $8 million. Turner's bill originally would have forced up to $5.9 billion in refunds, the difference between what the companies are charging to recover the costs of their plants and the actual costs of those plants. Existing law calls for a settle-up of those "stranded costs" in three years; Turner's would do partial refunds this summer.

Secondhand Smoke

He's been sitting on the information for a while now, but Attorney General John Cornyn is poised to announce that his legal beagles have sniffed out another $100 million from the proceeds of the state's tobacco settlement. Details will be out any day, but the money is apparently uncommitted, meaning budget folks can use it for anything they deem important. That'll soften the blow if Comptroller Carole Keeton Rylander ends up withholding some or all of the $318 million she's threatened to take out of her official revenue estimate.

Rylander, taking a page from TV mobster Tony Soprano, said she'll leave that money in the pot if and only if lawmakers pass a couple of bills involving tax litigation against her office. Lawmakers aren't happy about the ultimatum; Republicans on the House Ways & Means panel grilled her staff about the lawsuits and the revenues because of it, suggesting she shouldn't have suggested filing a bill if failure to pass it would endanger state revenues.

Usually, the comptroller tells lawmakers she'll add to available revenues if certain bills pass. This time, Rylander's number-crunchers say they included the litigation money in the revenue estimate because not passing the legislation would be tantamount to a repeal of something they've been doing for a long time. Reps. Tom Craddick, R-Midland, and Talmadge Heflin, R-Houston, took issue with that. Rylander's crew told Craddick that failure to pass the bill might cost the state a win in the court case. Heflin, who is also a member of the budget conference committee, decried the " threats" from the comptroller. They left the bill, and Rylander, to stew over it.

Redistricting Notes

Republicans were quick to capitalize on Democratic Rep. Vilma Luna's vote against the redistricting plan that passed with all but five House Democrats on board. Luna said the map mangled Corpus Christi's representation in Austin, a point of view echoed by local interests and by the Republicans who fought against the plan on the House floor. Luna got shut down when she tried to fix the plan in committee, and then voted against it on the floor. That ticked off some Democrats, but it won her accolades in the editorial pages back home. And then the Corpus Christi City Council jumped on board, saying the plan "shockingly eviscerates the vital interests of the Coastal Bend" and urging Republican Gov. Rick Perry to veto it if it gets all the way to his desk.

• The Democrats' thin victory margin on House redistricting kicked up speculation of a speaker's race. Some Republicans have been pushing Rep. Tom Craddick, R-Midland, to run. Nobody else has surfaced, but there are a handful of House members who regularly get mentioned in speculation over who might be the speaker if Republicans are in charge. Democrat Pete Laney says he expects he'll run again: "I would hope I'll be speaker in two years regardless of what happens."

More Political People, More Moves

The new firm of Loeffler, Jonas & Tuggey, formed by lawyers leaving Arter Hadden Witts en masse, includes former U.S. Rep. Tom Loeffler and Austin lobbyist James Jonas. Sen. Jeff Wentworth, R-San Antonio, was of counsel to the old firm and will be to the new one... Appointments: Blair Calvert Fitzsimons of San Antonio will chair of the Telecommunications Infrastructure Fund. Unlike most appointments, that one's not subject to Senate confirmation. Gov. Perry named Fitzsimons to the board while he was Lite Guv, and she'll replace Thomas Powers of Houston at the head of the panel. He'll remain on the board, however... Perry named Joseph B.C. Fitzsimons, a partner in a San Antonio law and the husband of the new TIF chairman, to the Texas Parks & Wildlife Commission. He'll replace Nolan Ryan, who's leaving the post with more strikeouts than anyone in the history of state government. Perry also named real estate developer Phillip O'B. Montgomery III of Dallas to the commission replacing Richard Heath of Carrollton... Finally, he named Taylor County Judge K. Lee Hamilton and Evelyn "Kelly" McKay, public affairs director at Stephen F. Austin University, to the Texas Commission on Jail Standards. He'll replace Larry Craig of Tyler; she's a reappointee.

Pollution Controls and Property Taxes

Most elected positions have some characteristic that could douse an officeholder's plans. Tax collectors have to collect taxes from voters, for crying out loud. Legislators vote against something every time they vote in favor of its opposite. And attorneys general have to issue legal opinions on every cockamamie letter in the mailbox. Look at what John Cornyn has been up to lately. He recently ruled that school board members who want to spend a little time imparting their knowledge in the classroom are barred from doing so. You can't hold a policy job and also be one of the people subject to those policies, as it turns out. He's been working on a hot potato involving bad debts and veterinarians: Can they keep, or worse, dispose of Spot if the owner doesn't pay for the Parvo shots?

There are also episodes when timing saves the day, or the officeholder. Cornyn's office was asked late last year how to handle property tax exemptions on pollution control equipment. That issue had several Golden Triangle counties in the mood for court fights, after chemical plants there took advantage of tax breaks to keep their new stuff off of the property tax rolls. The Texas Natural Resource Conservation Commission, which asked for Cornyn's official position, got its answer at about the same time that the people involved in the fight agreed to terms, and to legislation.

That legislation, by Rep Allan Ritter, D-Nederland, and Sen. Ken Armbrister, D-Victoria, orders TNRCC to come up with specific rules that'll determine what does and doesn't get exempted, and allows either side—the company doing the building or the government entity losing the tax money—to appeal the TNRCC decision. That's out of the House and on the Senate's local and usually uncontested calendar. And it sort-of has a blessing from the AG. He said what the legislation said: You can get the tax break only on equipment that actually controls pollution. Before the deals were cut, local government folks complained that the TNRCC was exempting too much property and without tight enough standards. Property owners said the agency wasn't exempting everything that had been bought to control pollution.

Flotsam & Jetsam

Protocol generally makes politicos wait until the bodies are cold, but what the hey: Two potentials, one from Amarillo and one from Odessa, got into their hometown papers on the same day saying they sure would like to succeed Sen. Teel Bivins of Amarillo if and when he leaves the Senate. Bivins has been the subject of rumors to that effect ever since the last Election Day. Amarillo Mayor Kel Seliger, whose term ends somewhere between the publication date on this issue and the publication date on the next one, says he's interested, but only if Bivins isn't.

And Bob Barnes, former head of the Texas Restaurant Association, says much the same thing. Former Odessa Mayor Loraine Perryman told the Midland Reporter-Telegram that she hasn't decided whether she would be interested. Bivins responded to the sudden outbreak of chin-scratching with a written statement that started, "Now I know how Mark Twain felt when he heard about his premature obituary..." Midland and Odessa aren't in the same Senate district now, but several of the proposed redistricting maps join the two cities. That increased population on the southern end of the district could put what has been a safe seat for Amarillo into play.

• The Turnout Burnout bill—limiting the number of exemptions to uniform election dates each year—is moving. The House made minor changes to what the Senate had already done and the upshot is that it will be harder for local school districts and governments to hold elections outside of the four dates in February, May, September, and November that are spelled out in the bill.

• At least they didn't blame us: Texas Weekly escaped the wrath of the Chinese, as did most publications ranging from pipsqueaks to media giants here and throughout the United States. But the Austin-based Lone Star Report put out a press release saying their Internet site had been hacked, and implying Chinese hackers were to blame for the attack. The release said the hackers got the White House, the U.S. House of Representatives other several federal agencies. The swipe at LSR contained "anti-American sentiments," so there you have it. The publication reported the incident to the FBI.

Political People and Their Moves

Judy Walsh, who recently resigned as a Texas Public Utility Commissioner, will work for San Antonio-based SBC. That's the parent company of Southwestern Bell—one of the companies she used to regulate. Walsh will be VP of regulatory policy, but state law will keep her out of Texas' business for two years... Howard Baldwin, who had the job of rehabilitating the child support operations in the attorney general's office, is leaving that post to become the number two executive in that agency. He'll be AG John Cornyn's first assistant, filling the job that had been held by Andy Taylor. Taylor is leaving, partly, to go into private practice. The "partly" refers to this: He'll continue to work on redistricting with Cornyn, but as an outside counsel. Cynthia Bryant of the University of Texas Law School was named to Baldwin's old position. She worked in that division when Jim Mattox was attorney general. Steve Rosales, the longtime Bob Bullock aide hired by Cornyn right after the 1998 elections, left the agency after stints as head of administration and then of the legislative shop. Rosales left without another job lined up... Lobbyist-turned-behind-the-scenes-strategist Jack Gullahorn is leaving Public Strategies Inc. at the end of the legislative session. He wants to sit back and think about his next step and doesn't have his next gig lined up. That is, by all accounts, an amicable parting... Wendy Taylor, the press maven at the Texas office of the National Federation of Independent Business, is moving back to the Pink Building, where she'll be press secretary for First Lady Anita Perry and do other work in the governor's press office. That reunites her with Robert Howden, Perry's communications director, who was her boss at NFIB... Another one bites the dust: U.S. Attorney Mervyn Mosbacker, whose territory is the southern district of Texas, will quit at the end of May. He was appointed by then-President Bill Clinton in 1999. Mosbacker is the fourth of the state's four chief federal prosecutors to announce his resignation since the change in administrations in January; that'll let President George W. Bush put his own folks in place... Deaths: Former Sen. Raul Longoria of McAllen, one of the so-called Killer Bees who hid out for almost two weeks to stop a vote on an election bill they didn't like. He went on to be a state district judge. Longoria was 80.

Quotes of the Week

Dallas Mayor Ron Kirk, quoted in The Dallas Morning News after vandals painted swastikas on St. Luke Community United Methodist Church, an act that influenced the hate crimes debate in the Senate: "People say, 'It's not supposed to happen here.' I'm tempted to say, 'Where should it happen?'"

Gov. Rick Perry, paraphrasing from the movie Apocalypse Now while trying to steel Republican House members before a floor fight on redistricting (as related by several attendees): "I love the smell of fresh napalm in the morning... We've got it on fire now."

Rep. Dianne Delisi, R-Temple, saying women are underrepresented in the Texas Legislature and coining a couple of terms to describe what's happening and why she objected to redistricting plans penned by Rep. Delwin Jones, R-Lubbock: "Members, there is only one word for all of this. And that word is Bubba-ism... Currently, 18.7 percent of the Texas Legislature is female. Under the Jones proposal, I fear that those numbers may decline in the face of pressure from the Bubba Caucus."

Rep. Tommy Merritt, R-Longview, on where his redistricting plans originated: "We developed this single-handedly and with the help of others."

Rep. Harold Dutton, D-Houston, on Jones' redistricting plan, before voting in favor of it: "If I were drawing the plan, members, that's not the plan I would draw, quite frankly. I'd start with my seat first and then I'd draw the rest of you all. To me, that would be fair."

Rep. Fred Bosse, D-Houston, after Corpus Christi Rep. Gene Seaman donned a life vest to protest the fact that part of his district was separated from the rest of it by water in the redistricting plan that won House approval: "They've turned Seaman into a sea man."

Sen. David Sibley, R-Waco, balking at using Rainy Day money for a Border program he supports, in the San Antonio Express-News: "We're at the time in the session where you learn to live with a little bit of hypocrisy, and I'm learning to live with mine."

Texas Weekly: Volume 17, Issue 44, 14 May 2001. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2001 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 (800) 611-4980 or email For news, email, or call (512) 288-6598.

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