When this last break of the legislative session is over next week, there will be seven weeks left in the 80th regular session of the Texas Legislature. And you know, even if you're new to this, that the rules start killing things before the last day.
The first paper deadlines are in May, but the traffic jam will start sooner than that. The House will print its last calendar with House bills and joint resolutions on May 8, a Tuesday, and those measures will be dead if the House does not pass them that same week. Local bills will live for a week after that, and Senate bills have until the 22nd to win tentative approval in the lower chamber. That means they'll have to pass their own chamber a good while before that. The last big thing that can get through — conference committee reports reconciling House and Senate differences — have until Sunday, May 27, the penultimate day of the session.
Legislative time is short. When the government's version of Spring Break is over, deadlines will be only a month away. Look at the official unofficial calendar for May — there's a copy here — spelling out the deadlines for bills in the House and Senate. April will be difficult, May cruel.
In practical terms, that means most committees have only a handful of meetings left. Big issues — defined here as the things with legislators' attention — will crowd out little ones. And the people who specialize in killing things — lobbyists and some lawmakers working with them or against them — will find the climate more and more beneficial. There are, however, some high profile things left to do, and a couple of them are on the radar screen for next week.
The Senate Finance Committee's version of the state budget will be back from the printer and ready for a vote next week. With an almost perfunctory stop before the full Senate (the state budget hasn't been in serious trouble on the floor of either house in years and years), it'll go to the conference committee that negotiates the final bill. Superficially, the Senate's bill is roughly $1 billion bigger than the House version. Inside, the differences are bigger, in everything from teacher pay to Medicaid and other health and human service programs to criminal justice. A side-by-side comparing the two should be available in a week or so.
The human papillomavirus was out of the news almost long enough for us to forget how to spell it — HPV is easier — but the Senate will start work next week at several bills on that subject. The House already voted to ban any state mandates for sixth-grade girls to get those shots. A Senate committee will look at that ban, at legislation that would do the opposite and require the shots, and at a halfway measure aimed at educating people about the virus. Short form, which will illuminate the controversy: It's transmitted sexually and/or by genital contact, it's the most common disease of that kind, it's the leading cause of cervical cancer, and the vaccines are intended for pre-teen girls (a shot for boys hasn't been approved).
Gov. Rick Perry attempted to order a mandate that sixth-graders get the shots before getting into school and giving an "opt out" provision for parents opposed to getting that shot for their daughters. The Lege and a good portion of the public squawked. And now, after letting things cool for a few weeks, the Senate is ready to look at it.
Sidebar: New Mexico Gov. Bill Richardson, one of the Democrats who's exploring a presidential run, has reportedly promised to veto an HPV mandate approved by his state's Legislature. He'd earlier said he'd sign it, but said conversations with parents and doctors had persuaded him that now isn't the time.
Lawyers who sued the state on behalf of children seeking government health benefits have reached an agreement in principal with state officials that could add up to $900 million in state spending on those programs.
The "Frew v. Hawkins" suit was filed years ago to force the state to provide better care for children in Texas Health Steps, a federally backed program that used to be known as Early and Periodic Screening, Diagnostic, and Treatment (EPSDT). The state agreed to terms once, in 1996, then reneged on that deal and took the case through the courts, which consistently and, finally, told the state to honor its deal. With a federal judge ready to begin a "conference" to order remedies, the parties have worked out a deal.
Details aren't out, but the most expensive piece is likely to be higher rates for doctors and dentists who treat the 1.5 million kids on Medicaid, and for other providers whose compensation rates are linked to the first two. The price tag? It's not firm yet, pending the judge's approval, but state budget-writers say it would be in the range of $500 million to $900 million in general revenue every two years. That's higher than some expected, but it's far lower than the worst case scenario of $5 billion that a few lawmakers predicted.
The negotiating ended as the Easter break began. Lawyers for the state and the lawyers who sued the state will meet next week with U.S. District Judge William Wayne Justice, who'll have final say over what should be included in the remedy. He makes the state's lawyers particularly nervous; Justice oversaw the long-running Texas prison lawsuit and suits against the state's treatment of its mentally ill and mentally retarded citizens before that. Those cases drove the state budget in their time, and some lawmakers feared the Frew case could do the same thing.
When Justice is done — with his own terms or with those worked out by the lawyers — there's a budget fight ahead, basically over where the Frew money should come from. The biggest discretionary program in the health and human services budget is the Children's Health Insurance Program. If the money comes from somewhere in the budget (and not from the money available but unspent), CHIP could be a target.
The state's lawyers told legislative leaders to announce an agreement, but none of the details. Lt. Gov. David Dewhurst and House Speaker Tom Craddick issued a joint statement: "With this agreement, dental and medical access will dramatically improve for our neediest children, those on Medicaid. We look forward to working with our colleagues in the House and Senate to identify the sources of these new funds. Because of the sensitive nature of these negotiations, we are unable to make any further comment."
The House voted this week to spend around $78 million more on CHIP — deleting a 90-day waiting period for uninsured new entrants and doubling the coverage period to 12 months — that could add more than 100,000 kids to the rolls. That's short of the number cut from CHIP in 2003. And it could be in trouble, if lawmakers are looking for money to pay for a Frew settlement with money that's already in the budget.
It's politically risky: Some lawmakers got beat, in part, on the campaign attacks that followed the CHIP cuts. The Senate wants the money for Frew to come from within the budget, but they're nervous. After voting to hold the bottom line on the budget a week ago, they came back three days later to say they wouldn't cut CHIP in the process. Some members of the Senate Finance Committee think the program remains in harm's way, but the second vote underscored the political fears around the program.
That committee voted last week to take any money required by the Frew v. Hawkins lawsuit out of other health and human services programs. Over the weekend, they thought better of it and came back and exempted CHIP from the cuts. That wasn't enough, however, to unite the budget panel, which voted 9-6 to add the new provision.
Senate budgeteers wanted to set up a way to deal with the order, especially if it lands after the legislative session (the Lege has a deadline, but the judge doesn't). So they added a provision saying any money required by Frew would come out of the rest of the health and human services section of the budget. The new rider, according to Sen. Robert Duncan, R-Lubbock, who authored it, would be the same but would keep CHIP off the list of programs that could be cut.
Several senators spoke against it; Judith Zaffirini, D-Laredo, said it could provoke Justice by saying what he orders will be used to cut other health and human services programs. Finance Chairman Steve Ogden, R-Bryan, pointed to $3.35 billion in increased spending on health and human services already proposed in the budget that he said should be taken into consideration.
And Sen. Kyle Janek, R-Houston, summed up the problem: "We are forced to react to something that hasn't happened yet."
Popular, Except with the Experts
The governor's HPV vaccine isn't the only leader's pet languishing in committee. Lt. Gov. David Dewhurst made so-called Jessica's Law a priority on the campaign trail and his inaugural speech, even appearing in public with Mark Lunsford, the father of the murdered 9-year-old Florida girl for whom the sex offender legislation is named.
And if Dewhurst gets his way, Texas will have laws in place by the end of this session that would prescribe 25-year minimum sentences and possibly the death penalty for certain non-homicidal sex offenders. It started as a wildly popular idea. It polls well, TV conservatives like it, and legislators raced to file bills on the subject as the session began. Gov. Rick Perry declared it an emergency, so lawmakers could get to it early in the session.
But it got stuck after prosecutors and victims' groups balked. They feared the tough-on-crime penalties would make the law unworkable in the real world.
Three related bills have passed muster in Senate committee, and now Dewhurst is working with a group of senators, including SB 5 author Bob Deuell, R-Greenville, to get a passable version of Jessica's Law to the Senate floor within the next couple of weeks.
The House did its bit in early March, passing HB 8 by Debbie Riddle, R-Tomball. The breakdown: It creates a new offense called continuous sexual abuse of a child, basically meaning that the offender committed more than one serious sexual offense, over a period of a month or more, against a child 13 or younger. The penalty for a first offender would be 25 years to life. A second conviction could get the death penalty. It extends or does away with statutes of limitation for various sex offenses, and it would allow GPS tracking of sex offenders.
Deuell's version, SB 5, was okayed by the Senate Criminal Justice Committee on March 19. It doesn't include anything about "continuous sexual abuse of a child" or GPS tracking. Under SB 5, a second conviction of any sexually violent offense against a child younger than 13 would carry the death penalty.
And there's a third version, SB 78 from Florence Shapiro, R-Plano, approved by that same Senate panel, that creates and defines the new offense of continuous sexual abuse of a child.
Riddle's bill used to look like Deuell's and then morphed into its current form, with elements of the Deuell bill and the Shapiro bill. It won 119 votes in the House. Deuell got his version out of committee after telling members he'd work on it before seeking a floor vote (Sen. Juan Hinojosa, D-Mission, voted present, and Rodney Ellis, D-Houston, voted no, saying capital punishment for a non-homicidal offense is unconstitutional). There's a conversation about folding in the continuous assault language, and another about setting intermediate penalties — stricter than current law — for instances where prosecutors don't think the death penalty is warranted.
The portions of Jessica's Law legislation that have been most warmly received by prosecutors and victims groups have not involved the death penalty or the mandatory 25-year sentences.
Robert Kepple, executive director of the Texas District and County Attorneys Association, said the message he's hearing from prosecutors is "the punishment is plenty tough. Help us find ways to get convictions."
Torie Camp from Texas Association Against Sexual Assault said long mandatory sentences could lead to fewer victims reporting crimes, because most child abusers are family members or close family friends. Camp said the reporting rate of sexual assault currently is less than 20 percent, and that the prospect of the death penalty could lower it. Also, long mandatory sentences may lead to fewer convictions, Camp said, because juries might not want to sentence first-time offenders to so much jail time.
Her group does approve highly of the elimination or extension of statutes of limitation (something included in SB 5) and the new charge of continuous sexual assault (something not in SB 5). She said the new definition would help the testimony of young victims, who may not be able to pinpoint exactly what day or days an alleged abuse or abuses took place, and "allows the charge to fit with the offense, which is a pattern of abuse over time."
They also support GPS tracking of sex offenders in civil commitment as long as it's a supplement to the current supervision system.
Some Texas cops are in full support of Jessica's Laws provisions, including 25-year sentences and death penalty options. Charley Wilkison with Combined Law Enforcement Associations of Texas, said, "I think the relationship between Texas peace officers and protecting children is pretty obvious. They obviously feel a heavy burden when it comes to protecting children."
A poll done for his group last month showed 90 percent of registered voters in favor of the 25-to-life penalty, and around two-thirds favor the death penalty for the second violent offense.
The last time a person was executed in the U.S. for rape was in 1964, and only one person is on death row right now who didn't kill anyone. That case is in Louisiana and involved a man raping his 8-year-old female relative. It's currently being hashed out in the Bayou State's Supreme Court. If the case reaches the U.S. Supreme Court, it could become a legal precedent for death penalty provisions in any Jessica's Law passed by the Texas Legislature this session.
— by Patrick Brendel
TYC's To-Do List
The legislative committee that's been poking and prodding the Texas Youth Commission has its preliminary report ready, and it calls for more vigorous training of TYC workers and guards, a trimmed inmate population, and reviews of everyone's files on both sides of the bars.
The agency is now in the hands of a conservator after a sex abuse scandal that began to unwind when Texas Rangers started investigating two years ago.
Legislative leaders appointed a joint Senate-House committee headed by Sen. John Whitmire, D-Houston, and Rep. Jerry Madden, R-Garland, to make recommendations, and the report is the result. Some of their advice: reduce the TYC population; set proper staff-to-inmate ratios; get security and surveillance equipment for youth prisons; review overtime pay policy for guards; do criminal history checks on contract workers; review staff qualifications; review records of inmates who imprisoned longer than their "minimum length of stay" assignments; create a "grievance coordinator" in each prison; and retain all TYC employees in discipline, grievance, rape prevention, restraint, use of force, surveillance and "other urgent youth issues."
They included a chart that listed complaints received on a new hotline from March 6-30. They got 1,557 complaints, broken down like this: assault, staff on offender, 339; attempted suicide, 5; cell phone, 6; civil rights, 31; contraband, 6; drugs, 11; escape, 1; general complaint, 300; inappropriate relationship staff and offender, 15; information only, 12; medical/MHMR, 42; misuse of state funds, 3; offender on offender assault, 87; offender on staff assault, 21; ombudsman, 30; retaliation, 30; sexual misconduct, offender and offender, 38; sexual misconduct, staff and offender, 242; staff complaint, 66; staff misconduct, 230; suicide, 3; tampering with evidence, 5; theft, 5; threats, 26; unknown, 3.
The report enumerates some of what's happened in the last few weeks, with five TYC employees arrested, one fired, and five suspended (there's some overlap there). The Department of Public Safety ran criminal history checks on TYC employees and found 135 felony charges or arrests in the backgrounds of 102 workers, and another 437 misdemeanor charges or arrests.
More firings were in progress as the week came to an end, as were efforts to release inmates who've been held longer than the courts ordered them held.
On the Other Hand...
The Texas Tomorrow Fund is in good shape and ought to be reopened, according to economist Ray Perryman, who says he did a report after he was "asked by a group of concerned parents to delve into this issue."
Perryman, in a letter to Gov. Rick Perry that also found its way to the media, noted the recent noise around the prepaid tuition fund, including "useful reforms to allow the program to be reopened" while others — like one done by an informal group advising Comptroller Susan Combs — "have maintained that it should be permanently closed."
He acknowledges that his is not an actuarial analysis but says it supports reopening the plan (an actuarial analysis done for the plan's board and another, more pessimistic one done for Combs, both said the fund's liabilities are greater than its assets over time). That said, he contends keeping the fund closed is one of the problems with the fund's assets; it forces TTF to change its investment strategy in a way that diminishes its investment returns. Combs' advisors didn't look at options that included opening the plan for business, and Perryman says that colored their conclusions.
Robert Wood, director of government assistance and economic development at the comptroller's office, said they're happy to see the study and hope it and the stuff they and others have done will "create a dialogue" about the future of the fund. "We need to have a discussion of how to educate low income and middle-income kids," he said.
Perryman's report says the tuition plan should revise its pricing policies, make it less lucrative for people to withdraw money from the plan when they cancel contracts, allow real estate, hedge fund and other investments, stop making public universities pay the difference between their tuitions and what the fund provides for contract students, and move the program out of the comptroller's office and into the Texas Higher Education Coordinating Board or another agency.
Sen. John Carona, R-Dallas, has said he's against the two-year moratorium on toll roads that's making its way through the Legislature, but he doesn't like tolls. Put him down as an advocate of gasoline taxes indexed to a highway cost index that reflects rising prices of building roads. That, he says, would pay for roads without so many tolls. Gov. Rick Perry, talking a day later on the other side of town, hiked his leg on that idea, saying the Legislature won't support increased gasoline taxes. Carona himself noted that tax bills have to start in the House, and that he was standing alone: "It's something the public at least needs to be talking about."
• Perry signed a bill that gets county clerks off the hook by saying Social Security numbers in public documents don't have to be kept secret. An opinion letter from Attorney General Greg Abbott caused a panic of sorts; though it carries no legal weight, Abbott's letter said state law prohibited the clerks from making the numbers public. The problem? Those numbers are all over public real estate and other documents that are regularly used by businesses and the public.
• A fresh Abbott opinion says that school boards have to change their election dates and possibly the terms of trustees to comply with election laws. State law lets school board members serve terms of three or four years, at local option. But a new law says their elections have to be held in conjunction with municipal, county and state elections. State and county elections are held in even-numbered years. If the local cities hold their elections in even-numbered years, three-year school board terms aren't legal, according to the AG. For the United ISD in Laredo, Abbott says the trustees have the right to change their three-year terms to four-year terms as a result.
• The Texas House Republican Caucus joins the world of blogs. You'll find them at www.txcaucus.blogspot.com.
• Former U.S. Rep. and gubernatorial candidate Chris Bell endorsed John Edwards in the Democratic presidential primary.
• A sharp-eyed bill reader found this gem in legislation intended to cut the children of illegal immigrants out of any rights in the state. Rep. Leo Berman, R-Tyler, filed HB 28 to prevent the children of illegal aliens from receiving state benefits or licenses or permits. But it wouldn't punish any U.S.-born children of illegal immigrants unless those kids were born in Texas. Read it: "... This chapter applies only to an individual: (1) who is born in this state on or after the effective date of this chapter; and (2) whose parents are illegal aliens at the time the individual is born."
Political People and Their Moves
Austin lawyer Sandy Kress will head a 21-member Commission for a College Ready Texas named by Gov. Rick Perry. They'll hold public meetings between now and September and then recommend rules and rule changes to the State Board of Education, which oversees public schools.
Perry named Glenda Rubin Kane of Corpus Christi the chairman of the State Health Services Council (the advisory panel for the Texas Department of State Health Services) in place of Rudy Arredondo, who'll remain on the board. He also reappointed Beverly Barron of Odessa and two new members: Jacinto Juarez, a prof and the dean emeritus of computer technology at Laredo Community College, and Dr. Jeffrey Ross, a foot doctor from Bellaire with practice and teaching ties to Ben Taub Hospital and Baylor College of Medicine.
Rep. Veronica Gonzales, D-McAllen, is the new secretary of the Mexican-American Legislative Caucus, replacing Jessica Farrar, D-Houston.
The University of Texas put its director of student financial aide, Lawrence Burt, on administrative leave after reports of a New York state investigation of alleged conflicts of interest. New York's attorney general is investigating investments in financial aid lenders by Burt and his counterparts at Columbia University and the University of Southern California.
Quotes of the Week
Jay Kimbrough, conservator of the Texas Youth Commission, quoted by The Dallas Morning News on plans to release more than 500 inmates right away: "Scores of them were already approved, and I just said, 'Hurry up.' I'm not going to hold somebody behind a 12-foot barbed wire fence if they're eligible to be out."
U.S. Rep. Joe Barton, R-Ennis, quoted in The Hill on the number of lobbyists hired to promote the buyout of Dallas-based TXU in Washington, D.C.: “A dozen lobbyists for a Texas congressman? That seems a fair ratio. I sure hope they got their pay in cash.”
Matthew Dowd, a former Democratic consultant turned George W. Bush advisor, telling The New York Times why he lost faith in Bush: “When you fall in love like that, and then you notice some things that don’t exactly go the way you thought, what do you do? Like in a relationship, you say ‘No no, no, it’ll be different...' I had finally come to the conclusion that maybe all these things along do add up. That it’s not the same, it’s not the person I thought.”
Midland County GOP Chairman Sue Brannon, talking to the Midland Reporter-Telegram about the presidential candidates: "I would like to see [former U.S. Speaker of the House Newt] Gingrich run because he has more answers than anybody. He is not blameless or spotless, but then nobody is and at least he's being honest about it."
Jonathan Paul of Austin, testifying in the House Transportation Committee: "I'm a good Republican; I like my taxes low and my terrorists dead."
Rep. Warren Chisum, R-Pampa, quoted by the Associated Press on his legislation requiring Bible study as a public school elective: "We're not going to preach the Bible, we're going to teach the Bible and how it affects all of our writings, documents and the formation of our government. We're taking it as a document that has historical value. It's the most widely distributed book in the world."
Sen. Troy Fraser, R-Horseshoe Bay, while questioning an insurance lobbyist during a committee hearing: "Every bill that comes up, the insurance industry on the whole is always opposed to it, because they want the right to be free to do whatever they damn well please."
Attorney Chip Babcock, in a Fort Worth Star-Telegram story about whether his $100,000 discount on a legal bill for Texas Supreme Court Justice Nathan Hecht violated a law against contributions over $5,000: "I've said all along that I want to do the right thing, and if the right thing is that I've got to be paid more money, then so be it."
Texas Weekly: Volume 23, Issue 40, 9 April 2007. Ross Ramsey, Editor. Copyright 2007 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (512) 302-5703 or email firstname.lastname@example.org. For news, email email@example.com, or call (512) 288-6598.