Everybody in the Pink Building is being sued for stuff they thought they were allowed to do.
State leaders have asked the Texas Supreme Court to order eleven Senate Democrats to come back to Austin, so that a quorum will be formed and the Senate can proceed with efforts to redo the state's congressional districts and to tend to other business further down the agenda. That suit, filed by Gov. Rick Perry and Lt. Gov. David Dewhurst, names all of the senators who went to New Mexico.
They asked the Supremes to meet on Monday (August 11) because of the "urgency and statewide importance." That won't happen: The court gave the Democrats until that day to reply to the lawsuit.
They went straight to the Supremes instead of a lower court, they write, because time is short. They also filed with a district court, just in case the high court turns them away.
Here's their argument, in a nutshell: "Over the past hundred days, representative government in Texas has ground to a halt. Twice, elected legislators have fled the state en masse in a deliberate attempt to defeat a quorum of their respective houses and close down the Texas Legislature. These representatives and senators, frustrated by the will of the majority, have decided to circumvent the legislative process altogether. Believing they lack the votes to prevail on the merits, they have opted to flee the state instead. The Texas constitution does not allow this option."
Perry and Dewhurst say the senators have a "non-discretionary" duty to show up, and cite a constitutional clause that says the Lege will meet when the governor calls, and a Senate rule that says members can't be absent without leave unless they're sick or unable to attend. Members' attendance at a legislative session, according to the suit, is mandatory.
The call on the Senate, which went into place just as soon as it was apparent the Democrats were in flight, doesn't apply across state lines — no crime has been committed. An order from the Texas Supreme Court demanding their presence, however, would be enforceable across state lines.
Those same Senate Democrats filed suit in state district court to prevent anybody from forcing them to come back to Texas. They named Dewhurst, Senate Sergeant-at-Arms Carleton Turner and Department of Public Safety Director Thomas Davis.
Citing the state constitution, they contend lawmakers can't be arrested during a session except for certain crimes, and note that an arrest now wouldn't be on a criminal charge.
The constitution allows the governor to declare a special session to deal with "extraordinary occasions," and the Democrats say a session on congressional redistricting in a year when a new map is not required fails to qualify as that kind of occasion. The governor, according to that argument, doesn't have the right to call a special session on congressional redistricting under these circumstances (the Democrats say Perry "specifically refused" to call a session two years ago, when the Legislature failed to draw new maps and left an illegal plan in place; the courts stepped in and drew the map that's now in use). If it's an illegally called session, then the senators can't be compelled to attend, they argue.
Finally, they cite a fresh district court ruling (from earlier in the week) that says the DPS can't bring in the senators because they're part of the executive branch and it would violate the separation of powers provisions in the constitution. They end by asking the court to bar anybody from forcing the senators to attend the session. Renea Hicks, the lawyer who filed the suit for the Democrats, said he wasn't aware of any similar challenges to a governor's ability to call special sessions. Republicans were dismissive, and said they'll respond quickly with a countersuit.
The game of legal chicken ate up more than a week before the Democrats and the Republicans finally tossed the issue to the courts. Lt. Gov. David Dewhurst held virtually the same press conference every day, saying a continued holdout would force him to consider legal remedies. He said each day that there's no such thing as a two-thirds rule in the Senate, that that's a tradition and that the tradition doesn't historically extend to special sessions on redistricting. Meanwhile, the senators in New Mexico stuck to their demands: Reinstate the two-thirds rule or drop congressional redistricting.
While that dragged on, legislative war-gamers were at work trying to figure out how various strategies would play out. Some Republicans in the Senate — they hold 19 of the 31 seats — talked about doing away with the two-thirds rule altogether. A simple majority would run the show. That's got opponents on both sides. Democrats obviously like the current rule because they have more than one-third of the votes and can block most strongly partisan bills when they want. But some in the majority like the rule, too, because it protects them from having to cast votes on ideas that don't have strong support. And it could undermine the Senate's power, which comes in part from the requirement that the sharp edges be honed off of legislation so that two-thirds of the senators will go along. The House, and sometimes, the governor, has to wait for senators to work things out.
Hide and Seek, With Limits
Texas legislators who leave the state would be treated just like the state's highest official under legislation filed this week in the Texas House — they'd run out of juice at the border. When a Texas governor crosses the state line, the powers of the office stay behind, in the hands of the lieutenant governor. And if the lieutenant governor is gone, the president pro tempore of the Senate is in charge.
But when plain old lawmakers leave the state for, say, Oklahoma or New Mexico, they can force legislative stalemates like the one in progress. Quorum-busting would still be legal under legislation filed by Rep. Dan Branch, R-Dallas, but runaway lawmakers would have to remain in Texas — within reach of Senate or House arrest warrants — to have any effect on state business.
Under current law, the House and Senate can't meet without at least two-thirds of their members present. In the House, that's 100 people. In the Senate, that's 21. Branch's proposed constitutional amendment would let the House or Senate do business with two-thirds of members who are in the state at a given time (as determined, respectively, by the speaker and the lieutenant governor).
With 11 Democrats in New Mexico, there are only 20 senators in Texas right now. The proposed change would allow the Senate to meet if at least two-thirds of the senators still in Texas — or 14 of them — were on the floor. That's less than half the Senate, but the idea is that the game should continue even if some players decide to go home. Likewise, if 51 House members holed up at the Holiday Inn in Ardmore, Oklahoma, there'd be 99 reps left in Texas. Two-thirds of those on state soil would be 66, and that, under this plan, would be enough to conduct legislative business.
The proposed change wouldn't apply if a group of legislators denied a quorum by ditching the Capitol but remaining in Texas. When the Killer Bees left the Texas Senate in the lurch in 1979, they hid out in a garage apartment in Austin. State police couldn't find them to haul them in for a vote, and they didn't return until then-Lt. Gov. Bill Hobby pulled down the legislation the senators opposed. That sort of skullduggery would still be legal under Branch's plan.
The purpose? Lawmakers who remain in Texas remain inside the jurisdiction of the Legislature. The law apparently allows Lt. Gov. Dewhurst to send state employees — or their hired security goons, or whatever — to nab lawmakers hiding in Texas. But since no criminal laws have been broken, and no court orders violated, that enforcement authority doesn't cross state lines. If the Branch deal went through (a long-shot, seeing as a constitutional amendment requires a two-thirds vote from each chamber), lawmakers could leave the state and not be counted for purposes of doing business, or hide in Texas somewhere and block legislative action while trying to avoid the people sent to bring them back to Austin. They could still run, but without the benefit of safe harbor.
Other People's Money
Gov. Rick Perry insists there's no "fight" regarding the budget tussle that's been going on between Comptroller Carole Keeton Strayhorn and the residents of the Pink Building. Whatever you want to call that seven-month series of public disagreements, it's still raging.
The latest dust-up, in approximately chronological order:
• Texas Democrats, alerted to the possibility that the special session would end unexpectedly early, so that another session could be called without anything between the Democrats and a new congressional redistricting bill, left for New Mexico.
• The session, sure enough, ended. And it ended before the bills that were on the verge of passing could be finally dotted, crossed, and sent to the governor for his signature.
• Republicans in the leadership blamed the Democrats for the dead bills, which included some fiscal patches designed to end disagreements over $800 million to $1 billion in state money.
• Gov. Perry, standing between the speaker and the lieutenant governor, announced they've "agreed" to spend $167 million in federal money, restoring some of the cuts made earlier in the year to Medicaid reimbursements for doctors and hospitals and for community care services for the elderly. Their aides say the comptroller and others had raised questions — knocked down later by the attorney general — about whether legislative action was needed before that money could be spent. It's also money the Republicans had originally said was endangered by the Democratic walkout. The comptroller said later she hadn't raised questions about spending out of that account and said she didn't object. There's another $200 million or so in that particular moneybag, and the Guv and others say they're holding onto it so it'll be available for the second year of the two-year budget cycle.
• A day later, Perry issue a proclamation intended to fix a mistake in the budget that moved $800 million of public school money in the correct month, but in the wrong year, causing a cash-flow problem for school districts and potentially forcing some of them to do some short-term borrowing.
Perry's proclamation says, essentially, that the Legislature didn't mean to make the mistake and that they tried to fix it (this was one of the victims of the legislative fender-bender at the end of the first special session). Perry directed the Texas Education Agency to make the payments as if the law had been written correctly.
Strayhorn, who first raised the flag on this problem on June 30, thought it required a legislative fix. She's not directly disagreeing with the governor's proclamation, but she fired off a letter to Attorney General Greg Abbott asking for his "direction as to the legal authority to proceed in making these payments that are so necessary to the school districts of Texas." In an interview, she says she wants the school districts to get the money, but wants to make sure the AG has signed off on the method.
In his announcement, the governor said "budget execution authority" gave him the power to change the dates on the payments and help the school districts. That authority generally belongs to the Legislative Budget Board, and the LBB can only meet when the full Legislature is not in session. One question for the lawyers is whether the money can be moved while the special session is on, and if the Senate Democrats won't come back, whether the session would have to be stopped in order to take care of the school districts' immediate problem.
Abbott hadn't answered the comptroller's letter as we went to press.
Other Funds Remain Snagged
The federal money tapped by state leaders for health care totals about $372 million, and they agreed to spend less than half of that, squirreling the rest away for later. Other bills that died at the end of the first special session would have freed other money for the Legislature or the LBB to spend, including $231 million trapped by an incorrect date in a transportation bill. A fix to that would free the money. Another piece of corrective surgery would free about $99 million generated by court costs for general spending. And finally, there's about $100 million in spending approved by lawmakers but vetoed by Perry. If lawmakers assign that money to a fund, the LBB can spend it later if it needs to.
Carrots and Sticks, and Stones
The political world is seriously stirred up by all this legislative constipation. Gov. Rick Perry's announcements about freed-up money are being issued simultaneously by both his state and his political office (that's not necessarily an infraction, but is an indication that he wants supporters to know what's up without going through media filters for all their news). The families of Sens. Royce West, D-Dallas, and Gonzalo Barrientos, D-Austin, and others, held press conferences to gain sympathy for the holdouts. The political parties are stirring supporters with email campaigns and rallies either in support of, or in opposition to, congressional redistricting.
And you've got ad campaigns. State Sen. Juan "Chuy" Hinojosa, D-McAllen, is running $10,000 in radio spots that swat Perry while presenting Hinojosa's case for opposing congressional redistricting. The ad features Hinojosa himself, saying the Senate passed a bipartisan school finance plan that would cut property taxes during the regular session. "Unfortunately, Gov. Rick Perry said there wasn't time. Instead of tax relief, he wanted to redraw congressional maps," he says in the ad. "And when he couldn't get his way, Rick Perry called a special session, not for schools, but for maps." Hinojosa ends by blaming the governor for the current impasse and then gives out Perry's state phone number. The commercials are running in the Valley and in Corpus Christi.
The Senate pressure has been calmer, with both sides saying harsh things in the nicest possible way, so as to avoid a huge breach in decorum. There's also some longer-term interest there. In about six months, lawmakers are expected to come back to Austin to work on school finance. If you're even a little familiar with school finance, you know that a serious reform will require a tax bill, and a tax bill will require some harmony. If Democrats and Republicans are badly split over redistricting, they might carry their anger on to the next issue. For now, they're playing nice, at least in the Senate.
But in the House, tempers raised during the last election cycle remain pretty raw. An example: Rep. Pete Gallego, D-Alpine, fired off a letter to House Speaker Tom Craddick, R-Midland, complaining about press conferences that had been put together with the help of Craddick's staff. The press conferences featured Republican members in various cities gathering to illustrate what was being left undone because the Democratic senators had fled the state. Craddick answered right away, saying the press conferences were probably out of line, that he hadn't known about them, that he'd correct the problem, and that Gallego was overreacting to the whole thing. That exchange is a pretty decent peek into the tensions that pervade the Texas House right now. We can't find any evidence of a serious effort to try to patch things up again, either. Get used to it.
Shut Up and Eat Your Vegetables
The reason Texas Agriculture Commissioner Susan Combs didn't go after soda pop in Texas high schools is that it's not yet clear how much money the schools are making from vending machines and selling rights. Combs' agency put a ban on soda pop, hard candy, bubble gum and other such goodies in grade schools, and during meal times in middle schools. High schools will remain an open field until she gets some more information from school districts about how much money (and other swag, like football field scoreboards and band uniforms) they're getting from bottlers and others who pay for the right to sell fizzy water to public school students.
The middle-school thing is aimed at "competitive foods," which is what they call it when a seventh grader looks at an ice-cold soda and a glass of milk and chooses the soda. The middle-school policy is aimed at steering kids away from the pop. The high school policy won't change until there's more information. You might remember that the ag commissioner asked for all that info — sending open records requests to all of the state's school districts to find out just what deals they'd signed. Not all of that information is in her mitts. When it is, she'll compile it and let it loose. One change at high schools is in the works: Machines at schools will be limited to selling 12-ounce pops instead of 20-ounce pops some sell now. The theory, apparently, is that kids will get fat more slowly if the portions are smaller.
In the meantime, she says the mail and email and phone calls on the anti-sweets policy have been "overwhelmingly positive." Combs said she had only two nasty calls out of about 100 total.
Some of what a kid would probably consider the good stuff is still legal — the state is following federal guidelines on "food of minimal nutritional value." Candy bars, cupcakes, cookies, for instance, are still allowed. The banned items, on the other hand, are banned all the time. There shall be no soda pop at elementary school carnivals, for instance, but it's okay at middle and high school carnivals.
Grand Juries and Other Gambles
A Travis County grand jury is investigating mold claims paid by Farmers Insurance to Rep. Joe Nixon, R-Houston, after internal company emails raising questions about those payments surfaced. A former employee of the company says Nixon, the House point man on tort reform issues that are dear to insurance companies, got favorable treatment. He told the Houston Chronicle that the whole thing is an attempt to smear him, but Travis County prosecutors have a grand jury asking questions about it.
• The National Association of Manufacturers and the U.S. Chamber of Commerce filed amicus briefs on behalf of the Texas Association of Business. TAB is trying to fight off a grand jury investigation of the trade group's advertising on behalf of House candidates during the last election cycle. The grand jury wants to know if corporate money was used in an illegal way; TAB — now with new friends — argues the investigation itself is a violation of the group's right to free speech.
• Texas is joining several other states in the Mega Millions game, designed to pull in loads of money and run up huge jackpots. That puts Texans in the way of four jackpot drawings every week — two from the multi-state lottery and two from the Texas Lottery. State officials hope the new game will add about $100 million to the state budget every two years. The other states in Mega Millions include New York, Michigan, Illinois, Georgia, New Jersey, Ohio, Massachusetts, Maryland, Virginia and Washington. Without Texas in the group, the game once had a $363 million jackpot.
No Heavy Lifting and the Pay's Not Bad
• You've heard the standard estimate that a special session costs $1.7 million. And you've probably heard a lawmaker talking about whether that's a waste of money or not, for any number of reasons. But they aren't all griping about it. Look here: Lawmakers get $125 a day for every day of the special session, whether they're here or not. The tab for the Senate is $3,875 a day, or $116,250 for a thirty-day run. The tab in the House, where there are 150 members, is $18,750 a day, or $562,500 for the whole session. For the whole bunch, it's $22,625 a day and $678,750 for the whole session. The Senate Democrats have said they'll turn down their per diem for the days they spend in New Mexico, but lawmakers from both chambers who went to San Francisco, or to Washington, or to Fort Worth for legislative conferences in the last three weeks all were eligible to collect daily pay from the state.
• To find out more about the fund gathering donations for the Sam Attlesey scholarship at the University of Texas, go to www.friendsofsam.org. The scholarships will go to journalism students who, like the late Dallas Morning News reporter, want to cover politics and government.
DEPARTMENT OF CORRECTIONS: Rep. Mary Denny, R-Aubrey, was recorded as absent and excused on the last day of the first special session and on the first day of the second one, contrary to what we wrote last week. We had the wrong House Journal in front of us when we goofed. A staffer says Denny was out of town and took the key to her voting machine with her. It is true that while she and her key were gone, she introduced and passed a bill, but she wasn't here to vote on it. There's more: Before writing last week's story on this subject, we called Denny's office and asked an aide whether the boss was still on her honeymoon — as we'd heard on the floor from several other House members — and got an ambiguous answer. We filled in the blank and dubbed her a newlywed. While Rep. Denny is engaged to be married, she didn't get married on this trip, as it turns out, and wasn't on a honeymoon. Gulp. Sorry, sorry, sorry.
Political People and Their Moves
Robert Howden, who got sideswiped by the board of the Texas Automobile Dealers Association a couple of weeks ago, has resigned from that group. And lobbyists Randy Erben and Billy Phenix, who'd been working on contract with TADA, have also jumped. The car dealers' group hired Howden away from Gov. Rick Perry earlier this year (Phenix is also a former Perrynaut), in part to start patching a rocky relationship with the governor. But when it came time to name a new executive director to replace the retiring Gene Fondren, the group stuck with an insider, Bill Wolters, instead of promoting Howden, which is what outsiders thought they'd do. Now they're back to square one...
Two more Texas judges won U.S. Senate approval to join the federal judiciary: Former Texas Supreme Court Justice Xavier Rodriguez and state District Judge Frank Montalvo, both from San Antonio, are getting federal jobs. Rodriguez is taking over a San Antonio court; Montalvo won Senate consent to take over a court that's in El Paso.
Quotes of the Week
Lt. Gov. David Dewhurst, asked what he's willing to concede to bring the Senate Democrats back: "I don't think our eleven colleagues are in a position to ask for anything. They have broken the Texas Constitution. They were elected for a job. They need to come back to do it."
Political scientist Cal Jillson of Southern Methodist University, telling the San Antonio Express-News how he thinks the New Mexico holdout will play out: "I think that most voters are sufficiently familiar with political spin to tune it out. I think at this point ... the Republicans will believe Perry and the Democrats will believe the people in Albuquerque. I think the independents and thoughtful observers are bemused at this point, with a tendency to become disgusted."
Clay Louder, an Albuquerque man quoted in a Houston Chronicle report on the Senate Democrats from Texas: "It's a strange way to do business, that you have to leave your own state."
Amy Walter of the Cook Political Report, quoted by the Austin American-Statesman on whether new congressional redistricting maps in Texas would change the national political outlook: "There are these funny things called elections and campaigns and you still have to win them. Certainly, adding six seats would be helpful [to the Republicans], but it doesn't guarantee anything forever. That's why we all like politics, because things happen that we never thought would happen."
Sen. Leticia Van de Putte, D-San Antonio, after saying Gov. Rick Perry is "not the brightest porch light on the block," in an interview with the Associated Press: "He really looks good in jeans."
Stan Oftelie, executive director of the Orange County Business Council, giving the Los Angeles Times his take on the horde of gubernatorial candidates in that state: "This is the political equivalent of streaking: You show up, you run across the room naked and you get attention."
David Beckwith, spokesman for Lt. Gov. Dewhurst, in the McAllen Monitor: "I have no comment. You can say that I have too much respect for the truth than to talk to the Valley paper. OK?"
Texas prison system spokesman Larry Todd, quoted in the Austin American-Statesman regarding the system's admission that 15 percent of the state's prison parolees can't be accounted for: "Should the public be worried? Most of these absconders don't wish to be found and therefore want to avoid any trouble with the law."
Tommy Whaley Sr., a member of the State Republican Executive Committee under fire from his own party, which is accusing him of leaking secret stuff — telephone conversations among party activists — to newspaper reporters, quoted in the Longview News-Journal: "The long and short of it is, they want to try and make me mad to get me to resign. And I'm not going to resign."
Morgan ISD Superintendent Charles McGehee, quoted in an Associated Press story about school districts having to borrow money because of an error by state budget-writers: "They mess with us every two years. Every time the legislature meets, we’re kind of gritting our teeth the whole time... wondering what’s gonna happen this time."
Sen. Ken Armbrister, D-Victoria, on how this will end: "Somebody's got to blink."
Texas Weekly: Volume 20, Issue 9, 11 August 2003. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2003 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.
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