How Deep is this Ditch?

Either Tony Sanchez is 25 points behind Rick Perry, as a recent third-party poll shows, or he's 12 points behind–the margin he and his aides say they see in their own polling.

What nobody seems to be disagreeing strongly with is the other part of that third-party poll. If Jeff Montgomery is anywhere near the neighborhood of Correct, the guy who is supposed to pull the Democrats to victory in November might instead be holding them back. Montgomery & Associates operates a phone center that does a mess of commercial work, but they squeezed in a political poll between jobs. By Montgomery's measure, two of the top three races on the ballot are dead heats, or close to it. But the big-bucks battle for the governor's post isn't even close. Montgomery has the incumbent 25 points ahead of his Democratic challenger.

Sanchez and his folks say their internal polls show Sanchez running 12 points behind Perry, which is better, but remains a serious deficit. Especially if you argue, as some of the Sanchez partisans argue, that Perry isn't really known as governor and if you believe, as some Perry partisans believe, that Sanchez should be showing a bigger bump now that he's approaching the $25 million spending mark. The Laredo businessman ran about two months of heavy television advertising on the way to his Democratic primary win, and has been on television since the second week of May.

The current volley is a heavy ad buy, and the balance of ads is decidedly negative. Sanchez might not agree with Montgomery's numbers, but he's running the kind of TV ad you run when your opponent is well ahead of you. It's a classic formula: You have to convince folks to quit their old toothpaste before they'll try yours. Sanchez has to give voters a reason to change governors before they'll get to the point of seriously considering him for the job.

Here are some details about the polling. The margin of error is 3 percent. The poll was done on the telephone during May 7-13, and 1,066 Texas residents who had voted in one or both of the last two general elections were questioned. People who didn't immediately have a preference were asked which way they leaned in the race; that accounts for the relatively low number of undecided voters, and Montgomery said the numbers of leaners in each total are quite small. Candidates were identified as they identify themselves, with party label attached. For instance: The pollsters asked people whether they would vote for Republican Gov. Rick Perry or Democratic businessman Tony Sanchez. One more thing: Montgomery is a Democratic consultant, which probably forced him into some interesting conversations when he started dripping out the results.

Perry had the support of 59.4 percent of the respondents; Sanchez got 34.3 percent. On either side of that canyon stand tight races. The contest for the U.S. Senate seat is within the margin of error. John Cornyn has 46.3 percent of the statewide vote to Ron Kirk's 43.7 percent. In the lieutenant governor's race, John Sharp took 46.4 percent of the vote to David Dewhurst's 42.4 percent.

Spins: Sanchez says he's not that far behind and his supporters say he's got enough money and time to power his way out of the ditch. Perry's gang says the numbers illustrate the reasons for the Democrat's early hard-hitting ad campaign. The Cornyn/Kirk numbers are weird: Cornyn is the attorney general, and the holder of that office gets his name in the paper almost as often as a governor. Kirk, on the other hand, is well known in the Dallas media market, which stretches (thanks to cable) across most of North Texas. Sharp, though he's been out of office for four years, kept up with Dewhurst in spite of the Republican's advertising over the last year.

Inside the Numbers

The good news for Sanchez is that he doesn't need to raise money. If you need to raise money, rotten poll numbers can distract givers and make them look elsewhere for people who might win. In the races where that's important (at least in the ones that were released to the public), the races are tight and the givers don't have anything to inflame their ulcers. All four candidates running for U.S. Senate and for Lite Guv can use the numbers, if they want to, to show they're still in the hunt and need only build up their war chests to prevail in November.

But they'll have to talk about other numbers, too. In the Senate race, Kirk is beating Cornyn with minority voters and losing to the Republican with Anglo voters. Cornyn leads in Houston, Kirk in South Texas, and the race is close in Dallas-Fort Worth. D-FW is usually good to Republicans, but it's been great for Kirk and it's surprising he's not further ahead where he's known best. The really odd thing in that race is that the two have about equal name identification with voters. The statewide official ought to be ahead of the mayor.

Perry leads Sanchez in every part of the state, according to Montgomery, including South Texas (where it's only 3 percentage points, but it's a lead). Perry's favorable/unfavorable ratio was 65.5 percent to 16 percent, which is healthy; Sanchez was 38.5 percent to 23.1 percent, which isn't great. And the ethnic breakdown mirrors the Senate race: Perry is winning among Anglos and Sanchez is winning among minorities. Sanchez has slightly more support than Kirk among Hispanics, but among African-Americans, Sanchez gets 59.3 percent support while Kirk gets 83.9 percent support.

Both candidates in the Lite Guv race had good favorable/unfavorable ratios, but Sharp is more well-known (Dewhurst has only been in office four years, but has done $7 million or so in TV advertising; Sharp hasn't done any ads and has been out of office since 1999, but was a statewide officeholder for 12 years before that).

Numbers That Actually Make a Difference

Comptroller Carole Keeton Rylander is sticking with her revenue estimate in spite of lower-than-expected sales taxes. Sales taxes brought in $14.7 billion last year–far and away the largest single source of state revenue–and they're below projected levels so far this year. Rylander's estimate, which is what the state relies on when writing its budgets, called for an increase in sales taxes: The number for this year is supposed to be $15 billion. But the monthly reports have been disappointing all year. Sales tax receipts haven't been far from the estimate on a percentage basis, but the numbers are so big that a little means a lot, and sales taxes are somewhere between $400 million and $500 million lower than the comptroller predicted.

Luckily for the comptroller, some other things appear to be making up the difference. Despite the chill in the economy, business franchise taxes are coming in about where they were projected. The state brought in $1.96 billion last year and Rylander had projected a decline to $1.87 billion. That's not a troublesome decline, since it was predicted, but some of the tax-watchers have been afraid that franchise tax receipts would fall faster than predicted. The tax, due on May 15 for most payers, is still coming in, but it appears to be hitting the target, Rylander says.

Motor vehicle taxes jumped at the beginning of the year–possibly because of zero-interest and low-interest incentives from manufacturers. That's offsetting some of the decline in the state's sales tax revenues. And keep an eye on insurance premium taxes. They're based on premiums, and premiums have been rising quickly enough to become a political issue. Rylander, a former state insurance commissioner, insists the tax receipts don't reflect those higher premiums, but rising insurance prices should boost those numbers. The state brought in $820 million last year from insurance taxes, and Rylander says it's on track to bring in $795 million this year, which is what she expected.

The Man Who Wears The Star

Rep. Rick Green, R-Dripping Springs, already got in trouble once for using the state seal in an advertisement in a profit-making venture. He did a commercial for an herbal concoction that's supposed to keep you peppy; in the ad, he appeared in his state office sitting in a chair with a state seal on it. He's still using the state seal, but now he's selling a program designed to get kids involved in politics. It's on the Internet at a site addressed www.PatriotAcademy.com. Green is standing in front of the state seal talking to a couple of students. Tuition is $1,000 and the 150 students who pay up will get to spend a week in a mock legislative session, staying in dorm rooms at the University of Texas and spending their days in the Texas Capitol. The program includes public speaking and mock press interviews. Prospective students are encouraged on the website to raise their tuition the same way politicos raise money, by hitting up friends, service clubs, veterans, local businesses, holding car washes and garage sales, you name it. The program is set for the second week of June.

Docs Stick with Cain

The Texas Medical Association's affiliated political action committee–TEXPAC–is endorsing Sen. David Cain, D-Mesquite, over Dr. Bob Deuell of Greenville in what will almost certainly be the hottest Texas Senate race on the ballot this year. That's the second time they've done that, choosing an incumbent who's been friendly over one of their own members. Deuell, a Republican who says (with some numbers to back him) that the district is more favorable to the GOP than the district in which he lost two years ago, has been preparing for the snub, putting together a group of doctors who'll say they're with him, regardless of what the trade group says. Deuell got 47 percent of the vote in that less-Republican district; he thinks the changes made in redistricting will be the charm. Cain, a Democrat who rented a place in Mesquite (his home is in Dallas) to make the race, has built a reputation for winning as a Democrat in increasingly Republican territory. He's been at or near the top of the trouble list for Democrats every year. But he continues to pull rabbits out of his top hat, and thinks he can do it again this time. Political hacks on both sides believe SD-2 will be the toughest race for any incumbent this year. The GOP, with a one-vote majority in the current Senate, needs to gain five seats before it will have full control of the Senate and its agenda. That's one reason the parties have been fighting so hard over Cain's seat. One more note, while we're here: This is one of the prime battlegrounds for the TMA vs. Business Lobby fight that's been bubbling in Austin. Deuell has had the backing of Texans for Lawsuit Reform and other tort groups. Those groups have been skirmishing with doctors over things like prompt payment of health care providers by insurance companies.

If Your Opponent is Wealthy, Press 1...

Hamburgers and pizza aren't the only things that taste the same everywhere. Gov. Rick Perry's political office is sending around copies of a press release from Gov. Gray Davis of California. Perry is a Republican. Davis is a Democrat. Both are running against very rich guys from the southern ends of their states. And both, it turns out, are making the same noises, as you can see by these headlines.

From Davis' press release on May 22, directed to Republican Bill Simon: "Davis Releases Tax Returns Back To 1990, Challenges GOP Challenger To Do Likewise. If You Have Nothing To Hide, You Have Nothing To Fear, He Writes Bill Simon."

From Perry's press release of March 29, aimed at Tony Sanchez: "Perry Releases 10 Years Of Tax Returns. Perry Campaign Challenges Sanchez To Release His Complete Returns For The Years He Has Served As A Gubernatorial Appointee."

That's not all of the interstate rhetoric: Davis' press release notes the 1994 race for Texas governor and says Simon should release his taxes now just like George W. Bush did then.

Sanchez let loose the tops of his tax returns, but not the schedules that show where the numbers came from and how he made his money. He has filed general finance statements required of appointees (he's on the University of Texas Board of Regents), but not the detailed returns.

Judges, Sued

The Justices of the Texas Supreme Court and some of their aides and staffers are being sued by some folks who want the court to open records of the votes justices cast when deciding whether to take cases or not. That's not a public record in Texas–the courts are exempt from the state's open records laws–but the groups who filed the federal lawsuit say the records should be open because they are decisions of the court. Their argument, in short, is that a case is effectively decided when the court refuses to hear it. That's the end of the appeals process, but the people on the losing side never know which judges turned them down and why.

That's the same way the U.S. Supreme Court does it. But the litigants say the Texas justices are elected and take money from people with business before the court. That's one of the reasons they say the justices should be held to account for which cases they hear and which ones they turn away.

The lawsuit was filed by several groups and individuals, including the Texas Observer, Texans for Public Justice, Common Cause, and LULAC (the League of United Latin American Citizens). They say 14 other states open their records. Tangent: Texas has two high courts instead of one. The Texas Court of Criminal Appeals, which hears criminal cases, doesn't open its voting records, either. In fact, that court's clerk says no such records are kept by the criminal court. The judges vote in private discussions and then come out with a list of who's in and who's out. No record is kept, and there's nothing for the public to see. The Supreme Court does keep records, but keeps them secret.

A Judge, Judged

The State Commission on Judicial Conduct called a public "fact-finding trial" to look into sexual harassment allegations against state District Judge Terry Canales. That trial, set for early August, will be followed by another public meeting where the commission will choose from options ranging from dismissing the case to removing the judge from his post and barring him from the bench for life. If they go the latter route, the issue moves to a tribunal named by the Texas Supreme Court. They'll make the final decision. Canales, whose court covers Jim Wells and Brooks counties, is accused of touching and making suggestive comments to two different women who were in his presence because of court business. The public hearings are a little unusual, but that's because of the possible penalties: When judges are up for reprimands or admonishments, the proceedings aren't so formal. In relatively rare cases, like this one, when judges are in danger of losing their jobs and their prospects for future court work, the public hearings and tribunals become the norm.

Quote of the Week, Writer's Division

From the pen of Texas Supreme Court Justice Nathan Hecht, dissenting from a ruling in a case that blamed the state's failure to maintain lighting on part of the Queen Isabella Causeway for a fatal accident there: "Assume for me, if you will, that all roadways that are dark at night are unreasonably dangerous. This is hard, I know, since almost all of the roadways in the world are dark at night, and for that reason most cars are equipped with headlamps. But assume that darkness at night is unreasonably dangerous so that we can take that issue off the table. (As an aside, I should point out that sunshine can also make a roadway unreasonably dangerous because it gets in your eyes; but that is not this case, and the Court wisely reserves that issue for, as it were, another day.) Before a governmental entity in Texas can be liable for an unreasonably dangerous condition in a roadway, there must be proof either that the condition was a 'special defect'–like an excavation or obstruction–or that the plaintiff did not know of the condition. Since nighttime darkness is nothing like an excavation or obstruction, Texas law leaves a plaintiff but one avenue (if you will) of recovery for damages caused by the relatively regular going down of the sun, and that is to prove that he could not see that it was dark. Now one might say: well, that's impossible; any fool driving along can tell by looking whether a roadway is light or dark. But the Supreme Court of Texas is not any fool... "

Flotsam & Jetsam

Former Comptroller John Sharp is still talking about things he wants to do if the state gets enough money, like free college for Texas high school grads who make good grades and so on. But that stuff's expensive and it doesn't look like the state is going to have any money (yup, we're aware that that's not news). So Sharp's got a new tack: The new line in his stump speech is that the 'priority of priorities' is to take care of the state's budget crisis. Sharp kicked out that line at about the same time Lt. Gov. Bill Ratliff was telling the Associated Press that the budget crisis now is worse than the one 12 years ago. The earlier budget crunch resulted in a special session and–depending on your counting method–a $3.7 billion to $4.1 billion tax bill, the second largest in state history. Interesting note in that AP interview: Ratliff, a Republican, wouldn't say whether he'll support Sharp or David Dewhurst in the contest for the seat Ratliff currently holds. Ratliff is running for reelection to the Senate instead of a term as lieutenant governor. He and Sharp are from different parties, but Ratliff and Dewhurst were at odds last year over redistricting. At the moment, Ratliff's staying out.

• The National Federation of Independent Business loosed some of its endorsements. They're supporting Greg Abbott, the Republican in the race for attorney general. And they endorsed a dozen Texas incumbents–all of them Republicans–for Congress. The business group previously endorsed John Cornyn in the U.S. Senate race.

• The Texas Council of Engineering Companies, the Austin trade group for those firms, endorsed John Sharp for lieutenant governor and David Bernsen for land commissioner. Both of those candidates are Democrats, but the group's earlier endorsements went the other way: They're backing Greg Abbott in the attorney general race and Carole Keeton Rylander for reelection as comptroller.

• The Texas Federation of Teachers made its endorsements in state races, and they're going with an almost straight Democratic Party ticket. The group went with Democrats in all but one of the top six ballot races, opting for Republican Carole Keeton Rylander in the comptroller's race. They're staying quiet, at least for now, in races for agriculture and railroad commissioners and judicial contests.

• George Will is the fundraising draw for the Texas Public Policy Foundation. That conservative think tank imported the columnist for a fundraiser in Houston this month and will have him back for another in Dallas in June. Tickets start at $500 and go up to $50,000. For just a little less, you can go to a Rick Perry fundraiser and get your picture taken with the President of the United States. Prices for that Houston event (on June 14) start at $1,000, which gets you admission to a general reception. The top prize/price is for raising $35,000 for Perry's campaign, which gets one couple dinner and a photo op with George W. Bush, a listing on the invitations and admission for 20 people to the general reception. All of that, with a lesser listing on the invitation, can be had for a $25,000 PAC contribution, or a $20,000 personal contribution. Bush will be at the reception, but not at the dinner.

• Gov. Rick Perry's new "anti-crime commission" was announced in an election year and all that, but has several Democrats on the letterhead. It includes former Attorney General and Texas Supreme Court Justice John Hill, who often crosses the line for Republicans. But it also includes Sen. Ken Armbrister of Victoria and Reps. Juan "Chuy" Hinojosa of McAllen and Joe Pickett of El Paso.

• Rumors of the demise of the Texas chapter of Common Cause were apparently premature. They're still alive. But they also still need money and the group–which champions open meetings and open records, among other things–is having a 30th birthday fundraiser Thursday (May 30) in Austin.

• A casket is, legally speaking, a piece of funeral merchandise. But you can sell caskets in Texas without actually doing anything that would be characterized, legally speaking, as an act of funeral directing. That opinion, from Attorney General John Cornyn, apparently means you can go into the box business without being regulated by the Texas Funeral Service Commission, even if you're selling caskets to families or friends of someone who is already dead (that's an important moment in the legality of these things). Cornyn's official opinion notes a couple of federal cases overturning other states' laws requiring caskets to be sold only by licensed funeral directors.

Political People and Their Moves

Rebecca Armendariz Klein will chair the Texas Public Utility Commission. Gov. Rick Perry elevated her to that post, but still hasn't filled the empty third chair on the PUC. Klein, a former policy advisor to then-Gov. George W. Bush, is the only recent commissioner without ties to Enron, the bankrupt and politically radioactive energy trader. She replaces Max Yzaguirre, who resigned after his previous job as an Enron executive became a political issue, and she serves with Bret Perlman, who once worked for a management-consulting firm that advised Enron... Gov. Perry appointed three new regents for Midwestern State University in Wichita Falls: Colleyville Mayor Donna Arp, who is an MSU alum; Patricia Haywood, a retired educator who, like Arp, got two degrees from MSU; and Don Ross Malone of Vernon, an attorney and University of Texas grad... Perry reappointed five members of the Texas Agricultural Finance Authority Board and appointed two new ones: Ruben Bosquez of McAllen, an executive at Frost National Bank; and Albert Lowry, an exec at Laredo National Bank (that's the one that's not owned by the Tony Sanchez family)... The U.S. Senate confirmed John Moore, who had been the deputy U.S. Marshal for the eastern district of the state, as the U.S. Marshal for that same turf. He previously worked as a police officer, a deputy sheriff and a DPS trooper in West Texas and the Panhandle... Major General Daniel James III, head of the Texas National Guard, got the U.S. Senate's nod to head the U.S. Air National Guard. Gov. Perry has not named a successor for the Texas job... Armando Diaz is moving from the University of Texas System to UT Health Science Center in San Antonio, where he'll head governmental affairs. The former Senate aide has been at UT since 1991... Darren Whitehurst, who's been at the Capitol for years–most recently working for Sen. Chris Harris, R-Arlington–is the new Veep of government relations at the Texas Hospital Association. He's replacing Marsha Jones, who left to start her own lobbying practice... Pete Havel moves from his post as the regional guy for the National Federation of Independent Business to a political consulting, fundraising and lobbying business. He's basing that new business in Dallas... This verges on old news, but it was left out due to accident, oversight and malfeasance on our part: Robert Jones, who had been lobbying for Novartis Pharmaceuticals since 1993, moved over to Pfizer. That's also a drug company, if you don't follow these things, and he remains a lobbyist... Prairie View A&M President Charles Hines says he'll step down at the first of September. Willie Tempton, the school's VP for finance, is acting as president, and the same A&M Board of Regents that is finishing a presidential search at Texas A&M will pick a successor to Hines.

Quotes of the Week

Lt. Gov. Bill Ratliff, in an interview with the Associated Press, appraising campaign promises from politicians who think they can find their way out of the current budget jam by cutting wasteful state spending: "Scrubbing the budget finds pennies."

Attorney General candidate Kirk Watson, quoted in the San Antonio Express-News on why his first run for statewide office is easier than running for mayor of Austin: "This is the first time I've run for office that I've not been running against some guy dressed up as a girl."

Frank White, who runs an irrigation district in Hidalgo and Cameron Counties, quoted in the Houston Chronicle on the drought that's affecting the area this year: "We never really believed it would get to this point. We thought at least Mother Nature would kick in one rain event. Unfortunately, the chips are falling in the very worst scenario."

Filiberto Reyna of the Texas Board of Pardons & Paroles, defending his vote against commuting the death sentence of Johnny Joe Martinez in spite of pleas from the mother of Martinez' victim, in the Dallas Morning News: "I think sometimes [that] people get the impression I'm sitting at home in my bathrobe drinking my breakfast coffee, [saying] 'Fax this down there.' That's not the case at all."

Paul Hulin, who raises fighting birds in Louisiana, defending himself against animal rights activists in an interview with the Associated Press: "They want to try to refine us, but America was built on coarseness. That's the glue that holds America together. I don't hunt and I don't fish, but if you want to, that's your right. I fight chickens. That's my right."

Texas Weekly: Volume 18, Issue 46, 27 May 2002. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2002 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 biz@ texasweekly.com. For news, email ramsey@ texasweekly.com, or call (512) 288-6598.