Tenacious C

A lawyer we know was out drinking with a lobster the other night and saw a group of the House's anti-Tom Craddick rebels sitting at a big table having a good time. Nothing wrong with that, he said, except that he was guessing Craddick was sitting next to a telephone somewhere, writing notes in his tiny scrawl on a legal pad, talking to people, working.

This guy's harder to kill than Bugs Bunny.

If you give someone like the current speaker of the Texas House time to work, you greatly decrease your odds of toppling him. And the Republicans trying to put together a coup have given Craddick almost two weeks since they began talking openly about moving to vacate the chair he occupies. They might still try it (they're still trying hard to put it together), and they might still prevail, but they've given him time to counter, and he's taken advantage of it.

He's given the gavel to others in the House, so they could run the proceedings while he works the floor and pulls members into his office for private chats. He's allegedly offered plums to friendlies and stones to foes, dealing local appropriations in some cases and election troubles in others (his aides say he's never offered anything for a vote for speaker, and has never worked against incumbents seeking reelection).

He's lost a few, won a few, and created new ways to win the contest with the time they've given him, and he's remained in his increasingly hot seat for longer than some of his enemies thought possible. Somebody even told us this week they think he'll hang on until 2011, when the Legislature takes up redistricting. Just the idea of that shows you how the odds have moved in the last week or so.

Seven Days in May

The week started with the House in a state of suspense — like the moment between the squeal of brakes and the crunch of metal. When the first crash finally came, it was just a fender-bender.

Rep. Byron Cook, R-Corsicana gave an impassioned speech to a hushed House. (There's an audio copy of his speech in our Files section; a text version is in our Soapbox section.) When he finished with quotes from one of the all-time pep talks — the St. Crispin's Day bit from Shakespeare's Henry V — there was moment of quiet and then... nothing. Cook walked back to his desk and House Speaker Tom Craddick called up the next bill.

"These guys could fuck up a rock fight," said Rep. Trey Martinez Fischer, D-San Antonio.

It's possible to watch these things too closely, to get caught up in the minute-to-minute stuff and miss the story. It's fun to watch, and to talk about, but the story, so far, is that the opposition to Craddick can't put together a coup.

Rep. Jim Keffer, R-Eastland, officially threw his name into the race last week. Rep. Jim Pitts, R-Waxahachie, lost a challenge to Craddick in January, stayed almost invisible for the rest of the session, and has filed for a rematch now at the end. The front-runner at this point, other than Craddick himself, appears to be Rep. Brian McCall, R-Plano, the fourth official candidate. His challenge earlier this year gave way to Pitts, but his is the name we hear most from members looking for an alternative to the current management. On Tuesday, Rep. Fred Hill, R-Richardson, joined the contest by filing with the Texas Ethics Commission. He's been mentioned as both an interim-only candidate and as someone who wants the job during the next regular session.

Craddick's task now is to survive the rest of the week. A challenge would come, if it comes, with a call to "vacate the chair" which would force two and maybe three votes. First is a vote on whether to keep Craddick in place. If the House decided to do that, they'd next have to decide who should be speaker for the months leading into the next regular session in January 2007.

The third vote, if needed, would be one of those procedurals that are dramatic inside the Pink Building and hard to translate outside. One reading of the rules is that Craddick could delay a motion to vacate the chair by up to a day, so long as he honors it. But challengers might not want to give him that time. They could challenge any delay, and a vote on that challenge could be the first vote in this sequence. And the first vote — whether it's on that or a motion to vacate — is where you'd get a look at the split in the House.

Craddick's opponents are circulating a list of $168.6 million in appropriations items they say he's using to firm up his votes in the race for speaker, and say the reason the state budget has been delayed is that he's holding it to make such deals. His aides say the budget is in about the same spot, time-wise, that it was in two years ago, and two years before that.

Both sides were working the floor closely as the last week of the session began. Craddick spent much of his time working the floor while other House members took his place on the dais.

There's a biennial ritual where members get large lithographs or pictures of the Capitol building and troll the floor getting all of their colleagues to sign them. It's like passing around the high school annual at the end of the school year. And it gives legislators a chance to talk to their friends and, importantly, to people they don't normally talk to. It's an opener for a conversation — "Hey, would you sign this?" — that can then turn to other things, like who's backing which candidate. Some are just getting signatures; some are also counting noses.

If there's a vote on the speaker, it could be secret, either forever or for the duration of the balloting. Rep. Todd Smith, R-Euless, filed a couple of resolutions spelling out the procedure for a vote on the speaker (HR 2669 and HR 2671). One would make the ballots secret and impossible to trace to one member or another. The other would allow members to cast ballots secretly, but would reveal how everyone voted when the race was over.

The first votes — if this thing goes down between now and the end of the session — will be public. The House would have to vote openly on a motion to vacate the chair and then on one or both of the secret ballot resolutions before moving into the shadows.

Closer Than You Think

Look at the newly declared candidacies as votes against House Speaker Tom Craddick, toss in a few changed minds, and you can see why the tension's so thick in the House. The outcome of the challenge to Craddick could hinge on a group small enough to fit in a booth at The Cloak Room near the Capitol.

Here's how they're counting on the floor.

The critical vote back there on January 9 was 80-68, with one member absent (Fred Brown, R-Bryan) and one seat vacant (since filled by Mike O'Day, R-Pearland). Give both votes to Craddick, just for sport. That makes the start 82-68; you can't knock him down unless you move eight votes from his column to the opposition.

Assuming (always dangerous) that none of the people who voted to overthrow Craddick in January have changed their minds, the rebellion is within striking range, depending on how the arm-twisting proceeds. You can read that the other way, too, if you want: Craddick's within striking range of another win.

Craddick's January support included two Republicans who say they want to run against him: Jim Keffer of Eastland and Fred Hill of Richardson. Rep. Byron Cook, R-Corsicana, gave a little speech Monday night calling on Craddick to give up the high chair. They make it 79-71.

Two Democrats who supported Craddick — Eddie Lucio III of Brownsville and Patrick Rose of Dripping Springs — are off the team. That's 77-73.

We know of three or four more Republicans who are working against Craddick but haven't stuck their heads up publicly. If they turn out to be turncoats, that puts it within a couple of votes (it's math, sure, but you have to allow for liars, so it's not exact). That's where the real power in the House is, for just this moment: In the two or three members who put one side or the other over the top.

Add another variable that could help Craddick. There's a third group (isn't there always?) that wants to replace the speaker but doesn't want to do it by vacating the chair. The argument is that the procedure is too violent, even for the House, and that the precedent would leave future leaders vulnerable to Instant Karma whether it's in the interest of the state or not. One of the speaker wannabes estimates the size of that group at 25 members. Even if it's much smaller, it could be big enough to undermine the mutineers. 

Here's the scorecard from January (this is the vote on the so-called Geren amendment that would have made the vote on Craddick and Jim Pitts a secret one; after it failed, Pitts dropped out and Craddick won reelection to a third term):

AYES - 80 (65 Republicans, 15 Democrats)

Democrats: Bailey, Chavez, Deshotel, Dukes, Dutton, Flores, Giddings, Guillen, T. King, Lucio, McClendon, Peña, Puente, Rose, Turner.

Republicans: Anderson, Aycock, Berman, Bohac, Bonnen, Branch, B. Brown, Callegari, Chisum, Christian, B. Cook, Corte, Crabb, Craddick, Creighton, Crownover, Darby, J. Davis, Delisi, Driver, Eissler, England, Flynn, Gattis, Goolsby, Hamilton, Hancock, Hardcastle, Harless, Harper-Brown, Hartnett, Hilderbran, Hill, C. Howard, Isett, Jackson, Keffer, P. King, S. King, Kolkhorst, Krusee, Laubenberg, Macias, Madden, Miller, Morrison, Mowery, Murphy, Orr, Otto, Parker, Patrick, Paxton, Phillips, Riddle, W. Smith, Smithee, Solomons, Swinford, Taylor, Truitt, Van Arsdale, Woolley, Zedler, Zerwas.

NAYS - 68 (54 Democrats, 14 Republicans)

Democrats: A. Allen, Alonzo, Anchia, Bolton, Burnam, Caraway, Castro, Cohen, Coleman, R. Cook, Y. Davis, Dunnam, Eiland, Escobar, Farabee, Farias, Farrar, Frost, Gallego, Garcia, Gonzales, Gonzalez Toureilles, Heflin, Hernandez, Herrero, Hightower-Pierson, Hochberg, Hodge, Homer, Hopson, D. Howard, Leibowitz, Martinez, Martinez Fischer, McReynolds, Menendez, Miles, Moreno, Naishtat, Noriega, Oliveira, Olivo, Ortiz, Pickett, Quintanilla, Raymond, Ritter, Rodriguez, Strama, Thompson, Vaught, Veasey, Villarreal, Vo.

Republicans: Elkins, Geren, Haggerty, Hughes, D. Jones, Kuempel, Latham, McCall, Merritt, Pitts, T. Smith, Straus, Talton, West.

The Outside Game

Four House members who are running for speaker have joined together to form the 3 R PAC (short for "Ronald Reagan Republicans for Local Community Control and Speaker Term Limits" political action committee). The object, they say, is to promote a three-term limit (six years) for speakers and to "protect Republican legislative incumbents and candidates from attack in the upcoming 2008 primary."

Reps. Fred Hill of Richardson, Jim Keffer of Eastland, Brian McCall of Plano, and Jim Pitts of Waxahachie will be on the board. Rep. Byron Cook of Corsicana will be the treasurer. All five oppose Tom Craddick's effort to win a fourth term as speaker, and the PAC, they say, is to defend members who oppose Craddick from retaliation.

Some Republicans outside the Capitol made a big deal of the fact that the press release announcing the PAC was written by Fort Worth political consultant Bryan Eppstein. It wasn't sent from one of his firm's email addresses, but his name and The Eppstein Group show up in the author box on the electronic document sent to reporters. Only one of the five guys mentioned in the press release — Pitts — has never been an Eppstein client. And Eppstein, asked if he's running the revolution against Craddick, says he wrote the press release at the request of his clients and pointed out that "about half" of the Republicans who still support Craddick also employ Eppstein as a consultant.

House Republicans already have one PAC, called Stars Over Texas, which is run by the speaker's daughter, Christi Craddick. She was on the floor of the House this week talking to members while the House was in session.

Obstacle Course

The Legislature is putting another private toll road moratorium on Rick Perry's plate, and if he doesn't find SB 792 palatable, they're ready to force-feed him a bill he pooh-poohed last week.

Perry vetoed the first moratorium, HB 1892, as part of a trade; lawmakers won't override that veto if he'll sign this second moratorium bill, SB 792. That was supposed to all happen a week ago, but the new bill got bogged down by House amendments the governor didn't like. Now it's prepared the way he'd eat it: Excised is an unlucky House amendment, Number 13, which Perry's Legislative Director Ken Armbrister said would lead to a second veto.

The second bill would prevent, for two years, government contracts with the private sector to build and maintain roads, sometimes in exchange for control of the road and its toll receipts for several decades.

Rep. Wayne Smith, R-Baytown, said the amendment by Rep. Lois Kolkhorst, R-Brenham, "reaches inside" existing CDAs (Comprehensive Development Agreements), effectively halting construction on segments of the Trans-Texas Corridor.

It wouldn't have had much of a practical effect on road projects, he said, likening it to a pair of "suspenders" for the moratorium. "If environmental assessments are not complete in the next two years, and they're not projected to be, then no work would be done anyway," he said.

Smith said the amendment is out of the conference committee report. But he said the legislature still has leverage with the governor (who would rather have no bill at all). If Perry does not sign within a certain time frame, the House will override his veto of HB 1892, Smith said, putting the original bill into law. A two-thirds majority in each chamber is needed to overturn the veto; if the initial votes stick, both chambers have more than enough votes to do it. There's some resistance to the idea, though; the Lege hasn't overridden a veto since 1979.

A veto override could lead to the special session threatened earlier by the Governor. But Armbrister said that the only way a special session is a definite is if the Legislature fails to pass the budget.

Senate Transportation Chair John Carona, R-Dallas is trying to keep things cool: "My advice to my colleagues is to negotiate in goodwill on SB 792, to not focus and concentrate on a veto override." Carona said the worst-case scenario would be for no moratorium bill to be passed at all and for the "status quo" to remain. Almost all current toll projects in major cities and in highly populated border counties would be exempt from the moratorium. Carona said the three goals of SB 792 are to impose the moratorium, to reform future CDAs and to allow local authorities to continue building in their regions.

SB 792 addresses how TxDOT can turn over its right-of-ways to local authorities, how public agencies can build competing roads near CDA roads, and how an agency can "buy back" a CDA road if it wishes to renege on a long-term lease. Once the moratorium ends, the bill also authorizes local agencies to entertain CDA proposals with terms in 10-year increments, up to a max of 50 years.

— by Patrick Brendel

Going With The Flow

Omnibus water legislation streamed past both the House and the Senate, picking up an amendment that won't beach the bill but may land the state in court again. Even with that, SB 3 by Sen. Kip Averitt, R-Waco, is headed to conference committee.

Two hotly contested reservoir sites — Marvin Nichols and Fastrill in Northeast Texas — were stripped from his bill in the House. Similar water legislation, sans reservoirs, has also passed each chamber. Rep. Robert Puente, D-San Antonio, was still considering whether or not to request conference committees for HB 3 and HB 4 when we went to press.

HB 3 has language to protect environmental flows. HB 4 pertains to water conservation. The two are duplicated in Averitt's bill, and the Senate fixed the House bills so they won't take effect unless Averitt's bill also passes.

Rep. Charlie Geren, R-Fort Worth, said last week that the two reservoirs were vital to the Dallas-Fort Worth Metroplex. However, Geren then voted in favor of SB 3 without the reservoirs. His reason? Geren says Averitt promised him he would try to re-add the two reservoirs in conference committee; Averitt says he'd like to add those and two other reservoirs trimmed from his bill by the House.

That seems likelier if the makeup of the conference committees is more urban than rural, because it's the cities that want the water and the rural areas that don't want the new lakes.

Ken Kramer, director of the Texas Chapter of the Sierra Club, is wholeheartedly backing the House bills, but has reservations about the reservoirs in the Senate legislation. He says the designation of reservoir sites would do little, in practical terms, for the actual construction of reservoirs, and would succeed only in reducing the value of property within the sites.

Kramer says Fastrill's designation as a reservoir site is especially iffy, since it's already been designated as a federal wildlife refuge, and federal law trumps state law. Texas is battling in court, but Kramer thinks that's a fight the state can't win.

Rep. Larry Phillips, R-Sherman, added an amendment to SB 3 that made two reservoir sites in his district subject to the approval of the Fannin County Commissioners Court. Other amendments placed restrictions on reservoir building, basically making it so that a city has to demonstrate a commitment to water conservation before it can build a reservoir. That's aimed directly at the Metroplex, which has been accused of being a water hog by reservoir opponents.

Kramer says he can live with the House version of SB 3, but not with an Edwards Aquifer Authority amendment by Glenn Hegar, R-Katy. He predicts that could lead to a court fight. Puente, however, isn't impressed with the possibility of being sued by the Sierra Club.

"Tell me when they haven't said that. Tell me when they haven't threatened that, to go to court," he says. Hegar's amendment — added to two of the three bills — involves "shared sacrifice" and "shared benefit," he says.

Kramer says Hegar's amendment does four things: 1) increases the amount of water that can be pumped from the aquifer; 2) creates restrictions on the amount that can be pumped during times of drought or when the aquifer is low; 3) allows the EAA to raise money to build and operate recharge facilities to put more rainwater into the aquifer; 4) spells out the procedure for a federally-mandated Recovery Implementation Process (RIP), where aquifer stakeholders get together and try to reconcile their concerns.

Kramer's main objection is with that pumping provision, which he says would choke off springs and threaten endangered species. That's the same reason the Sierra Club took the state to court a decade-and-a-half ago, leading to a federal judge's 1993 decision that prompted the legislature to create the EAA in the first place. He says the fourth provision — the RIP — isn't needed and is tilted to favor pumpers over environmentalists.

Hegar says he'd be "really disappointed" if the Sierra Club takes the state to court over his amendment. The state guidelines for the RIP are meant to speed up negotiations, which under ideal circumstances may take 15 to 20 years. The purpose of the steering committee is to designate a RIP leader, whose job would simply be to keep the negotiations swimming along, he says. The RIP will ensure that future Edwards Aquifer decisions are "truly science driven – not driven by a person's or group's different agendas," Hegar says.

• Averitt's omnibus air bill — SB 12, is headed to conference, too. Among other things, the bill encourages reducing vehicle emissions and increasing energy efficiency. It attracted a bunch of amendments and Averitt said some pruning is needed in conference. One apparently doomed amendment, by Rep. David Leibowitz, D-San Antonio, would change the utility code to prevent homeowner's associations from banning solar energy. Perry's pushing for the bill, according to Armbrister, who says Texas needs this legislation in place when the feds change the way they monitor air quality in 2008. Right now, it's measured in 8-hour increments; that's changing to every 12 hours. Armbrister likens it to standing in the rain; the longer you stand, the wetter you get. This may bode ill for near-non-attainment areas, which are already on the cusp of not complying with federal air standards, and Averitt's bill could help.

— by Patrick Brendel

Flotsam & Jetsam

The tire patch for the new business tax approved last year has morphed again. It still includes the three things that prompted lawmakers to do anything at all, fixing errors in the tax on partnerships that own and lease property, tax apportionment on securities held by banks and brokerages, and accounting details like how to handle loss carry-forwards.

It no longer includes a provision that would leave a gross receipts tax in place if a court declares the new margins tax illegal. That "poison pill" came out so the sponsor, Sen. Steve Ogden, R-Bryan, could get the votes he needed. A controversial change over the in-state taxability of out-of-state companies was another wedge; the change is out in favor of reports: Companies have to tell the state how their taxes would have come out using both calculations.

The version of the moment — tentatively approved by the full Senate — lowers the maximum tax rate on small businesses to 0.575 percent from 0.7 percent. It phases in the tax, so that smaller businesses pay lower rates, like so: Under $300,000 in gross receipts, no tax; $300,000 to $400,000, 20 percent of the tax; $400,000 to $500,000, 40 percent of the tax; $500,000 to $700,000, 60 percent; $700,000 to $900,000, 80 percent; and over $900,000, 100 percent.

It still has what's known as "the cliff feature." That means that a company that goes $1 over the limit for a particular bracket puts all of its business into the next bracket. For instance, a firm with sales of $299,999, would pay no taxes. A firm with sales of $300,001, would pay taxes on all of its receipts and not just the sales that were north of the limit.

Companies with gross receipts of over $10 million would pay a maximum tax rate of 0.7 percent; those under that amount would pay a maximum tax of 0.575 percent of gross receipts. And anyone whose total tax bill fell under $1,000 would pay the state nothing.

The legislation still needs final Senate approval and a look from the House.

• Legislators who don't like the state budget are S.O.L. unless they want a special session. The plan as we put this issue to bed was to vote on the budget on Sunday, about 24 hours before Sine Die. It's a rare thing for either House to reject a conference committee report on the budget, but it's theoretically possible. And it is, as they say every time it comes up, the only bill that has to pass. Late changes focused on higher education. The folks in charge of the appropriations bill had hoped to get it out of conference committee at least a week earlier than they did.

• One of the state's big teacher groups says the raise proposed by the budget conferees would give educators a net monthly raise of only $25, or "just enough to buy a cheeseburger, fries and a drink each week." the Texas State Teachers Association also complains that the budget requires teachers to pay more for retirement benefits, a reference to a one-time increase designed to make the Teacher Retirement System solvent.

• A news-making loophole in state campaign finance laws has gone to Gov. Rick Perry. It would require state officials to disclose the amounts of monetary gifts they receive. Under current law, they can legally leave off the amount, reporting they got a "check" or a "dumpster" without stating the amount on the check or the fact that the dumpster was full of doubloons. The issue came to light when builder Bob Perry gave two checks to Bill Ceverha while Ceverha was on the board at the Employee Retirement System of Texas. Ceverha voluntarily reported the amounts — a total of $100,000 — after the story made the papers.

While we're on the subject, HB 647, died waiting for attention from the Senate State Affairs Committee. State legislators and other officials can't take contributions while they're in regular session; the bill would have extended the ban to include special sessions, like the one last year where lawmakers wrote a new business tax. While accepting contributions.

The Senate also spiked — by inaction — a bill that would have clarified the allowable administrative expenses for political action committees. That fuzzy area of the law was a big factor in investigations of Republican spending in the 2002 elections.

• The House and Senate worked out their differences on child rape legislation known as Jessica's Law and that's on its way to the governor. It increases the length of minimum sentences in certain sexual assault cases, adds life imprisonment and death to the list of penalties for repeat child sexual assailants, doubles the statute of limitations in some cases and eliminates it altogether in others. And it's also a top item on many lawmakers' political agendas, including Lt. Gov. David Dewhurst's. Houston Democrat Rodney Ellis, a death penalty opponent, was the only senator who voted against the bill.

Political People and Their Moves

Joe Heflin, D-Crosbyton, and Nathan Macias, R-Bulverde, won the session-end popularity contest for Freshmen of the Year in the Texas House.

Former U.S. Rep. Pete Geren of Fort Worth is President George W. Bush's choice for Secretary of the Army. He's been the undersecretary there and is current the acting secretary. His brother is state Rep. Charlie Geren, R-Fort Worth.

Gov. Rick Perry named Ed Miles Jr. of San Antonio to the Texas County and District Retirement System Board of Trustees. Miles is the director of community projects for the Bexar County District Attorney.

The Guv appointed Terrence O’Mahoney of Dallas and Brig. Gen. Ezell Ware Jr. of Austin to the Texas Veterans’ Commission.

Quotes of the Week

Rep. Byron Cook, R-Corsicana, calling on House Speaker Tom Craddick to give up: "Mr. Speaker, please consider stepping down. Please don't put this body through 18 months of hell."

Rep. Fred Hill, R-Richardson, on what would happen if Craddick remains in office: "One of the things that he is very good at is raising money and campaigning against members that don't agree with him. If we don't do something while this body is in session... we are going to see 18 months of some very aggressive campaigning and a lot of — I'm just going to call it pure hell."

Former Rep. Terry Keel of Austin, on Craddick's long experience in the state Legislature, in the Austin American-Statesman: "He was doing this when the Beatles were recording Abbey Road."

Sen. Mario Gallegos, D-Houston, telling the Dallas Morning News he had to stay in Austin — despite a recent liver transplant and doctors telling him to go home and rest — to keep Republicans from consideration of a voter ID bill: "They would bring it up in a New York second if I were not here. If I were [David] Dewhurst, I would do the same thing."

Tom Pauken, on the defeat of property tax reform and other items on the GOP agenda, quoted by the Houston Chronicle: "The Republicans have squandered a majority. We could have gotten a lot more done if we'd had strong Republican leadership. We've got to quit simply saluting because they are Republicans."

Rep. Rob Eissler, R-The Woodlands, quoted by the Austin American-Statesman as time expired on a bill deadline night: "Well, as they say at the dice table — crap."

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Texas Weekly: Volume 23, Issue 47, 28 May 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 biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 288-6598.