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A Three-Alarm Mess

A Harris County grand jury indicted Texas Supreme Court Justice David Medina and his wife, Francisca Medina, on charges related to a fire at their home.

A Harris County grand jury indicted Texas Supreme Court Justice David Medina and his wife, Francisca Medina, on charges related to a fire at their home.

According to Terry Yates, the attorney representing Justice Medina, Mrs. Medina was charged with arson and Justice Medina was charged with tampering with evidence.

Officials have been investigating a June fire at the family's home in Spring, and fire investigators said early on that the origin of the fire had aroused their suspicions.

A copy of the indictment wasn't available from the Harris County District Clerk's office when the courthouse closed on Thursday. And District Attorney Chuck Rosenthal was quoted by KHOU saying he will ask a judge to dismiss the charges.

Yates said the case was presented to the grand jury by the district attorney's office, which is now apparently trying to reverse the panel's decision. "I've been doing this for 18 years and I've never seen anything like it," Yates said. "We were just shocked."

Medina's office referred calls to the court's public information office, which responded with a statement from Chief Justice Wallace Jefferson: "The Court is dismayed by news that Justice Medina may have been indicted. Obviously the Court cannot comment on pending litigation more than to express our confidence that the justice system will sort this out. As for Justice Medina and his wife, Francisca, and the entire Medina family, they remain in our prayers."

If the indictment stands, the State Commission on Judicial Conduct would decide whether to temporarily suspend Medina from the state's highest civil court and whether to continue his pay during such a suspension. But officials there say they won't do anything until they have an actual copy of the indictment. And if Rosenthal is successful in asking a judge to drop the charges, the commission would stand down.

A Qualifying Round, in Court

A Fort Worth Appeals court will decide whether Democrat Wendy Davis is eligible to run for Texas Senate against Sen. Kim Brimer, R-Fort Worth.

The three citizens who sued are all firefighters, Democrats, and residents of the Senate district in question (SD-10). They're also members of a group that was on the prevailing side of a November ballot initiative, and the consultant that helped get that done — Fort Worth-based Eppstein & Associates — is also Brimer's political consultant. Officials at that firm say they're not directing this particular movie.

The three say in their lawsuit (here's a copy of it) that Davis' resignation from the Fort Worth City Council wasn't completed before she filed for the Senate seat, negating her filing. Her successor hadn't even been chosen when she filed. But the replacement — the partner of one of Davis' campaign workers — was sworn in before the filing deadline. That was enough to convince local party officials that Davis was eligible. They tossed out the complaint.

The firefighters then asked the Texas Supreme Court to have a look, contending she should be knocked off the ballot so that the Democratic Party can replace her with an eligible candidate before the November election. That court rejected it and said the suit belonged in a lower court. The firefighters sued locally, and now the Second Court of Appeals in Fort Worth agreed to hear the case next Wednesday. Davis wasn't immediately available for comment.

Another ballot challenge — in Houston — got the same treatment. LaRhona Torry, who wants to run against Rep. Garnet Coleman, D-Houston, was knocked out for failing to designate a campaign treasurer before paying her filing fee. Her lawyer is former Rep. Ron Wilson, D-Houston, whose defeat a couple of years back was assisted by Coleman. The Supremes sent that case back to Houston.

Just Can't Quit Her

He announced he won't run, but San Antonio lawyer Rene Barrientos didn't say it in time to get off the ballot. He won't campaign against Sen. Judith Zaffirini, D-Laredo, but he'll be on the ballot and voters will have a choice. Elsewhere, Texas Democrats are in court to keep one candidate off the ballot and another one on it.

Barrientos, a Democrat, dropped out right after the filing deadline, saying he'd decided he wasn't willing to run the mean-and-nasty campaign his consultants outlined as the only way to beat the incumbent. But there's a state law that says candidates can't get off the ballot in the 62 days before an election. The primary's relatively early this year — March 4 — and that deadline coincided with the filing date. After that date, a filed candidate stays on, whether he's alive, convicted, eligible, or unwilling.

Something like this happened two years ago when Dr. Henry Boehm Jr. decided too late to take his name off the Democratic ballot in another Senate race. He didn't campaign, but beat the Democrat who wanted the job (by about 1.5 percentage points). After the primary, Boehm took his name off the ballot. The Democrats weren't allowed to replace him, and Glenn Hegar Jr., a Republican, went on to beat the Libertarian in the race and become a new state senator.

Barrientos wasn't available for comment. Zaffirini says she'll just do what she was going to do anyway: "As far as I'm concerned, his name is on the ballot, and my campaign will continue. Our advertising is produced, our team is in place, and we're conducting business as usual."

• Texas Democrats won one lawsuit keeping a candidate off the ballot and are involved in another legal action to keep a candidate on board. Presidential contender Dennis Kucinich went to court over an oath the state's Democrats require of their presidential candidates; they have to agree to support the party nominee even if they lose. Kucinich wouldn't sign that "loyalty oath," but a federal judge in Austin says it's legal. The 5th U.S. Circuit Court of Appeals declined to take the case, so the Ohio Democrat has asked the U.S. Supreme Court to have a look.

Meanwhile, the Texas Democratic Party is asking a Midland judge to affirm Midland Democrat Bill Dingus' right to run against House Speaker Tom Craddick, R-Midland. Republicans in West Texas have raised questions about whether Dingus resigned from the Midland City Council in a way that allows him to run. The Democrats say he did and want a court to put the Good Housekeeping Seal on their version.

Campaign Notes

Included in a list of 13 questions posed by challenger Jonathan Sibley to Rep. Charles "Doc" Anderson, R-Waco, is this one: "Do you feel Gov. Perry should let another Republican run for governor in 2010?" That's an indicator of Perry's popularity in Waco, where Trans-Texas Corridor is still a dirty word. That geography turned up in the governor's race last year, too: While the Republicans around him did better in McLennan County than statewide, Perry's numbers there were lower than his statewide totals. Kay Bailey Hutchison, David Dewhurst, and Greg Abbott all got better results in Waco than average; Perry was the opposite. Sibley's onto it.

Jon Cole, a Republican challenging Rep. Jerry Madden, R-Richardson, in HD-67, picked up endorsements from three prosecutors. The three — former Dallas County District Attorney Bill Hill, Tarrant County DA Tim Curry and Williamson County DA John Bradley — opposed Madden's efforts to ease prison overcrowding by releasing some non-violent offenders. In a letter from the "Republican Prosecutors for Jon Cole," the three rail against Madden's "liberal agenda" and specifically, against his criminal justice work. One of Madden's bills has some other members on the ropes; the legislative effort to take pressure off prison inventories translates, during the political season into a soft-on-crime issue. One of the questions in that Sibley whack at Anderson, for instance, asks whether he voted to "support decriminalizing marijuana crimes last session."

• Rep. Juan Garcia, D-Corpus Christi, took a hit for fines levied by the Texas Ethics Commission because of errors in his campaign finance reports. TEC's write-up includes some technical violations, but also says Garcia's campaign failed to report $42,500 in contributions from a political action committee that was helping his campaign in 2006 and didn't report some direct expenditures made by that PAC on his behalf. Garcia paid $1,800 in penalties.

Now that he's got an opponent for his reelection campaign, the Nueces County GOP is banging the drum to draw attention. Garcia says the mistakes were made in the frenzy at the end of the 2006 campaign. They are corrected, the fines paid. And he blames "small group of bitterly partisan Republicans" for stirring up the attention.

Former Reps. Hugo Berlanga of Corpus Christi and Judy Hawley of Portland will co-chair the campaign of former Rep. Todd Hunter of Corpus. All three served as Democrats. But Hunter is running as a Republican this time, challenging freshman Rep. Garcia. Berlanga is a lobbyist now, and Hawley is a commissioner for the Port of Corpus Christi.

• Rep. Aaron Peña is the latest incumbent to attract an anti-vanity website. The Edinburg Democrat is in a rematch with Eddie Saenz, and Saenz started an Internet site to taunt his foe. He calls the incumbent "Aaron 'Burr' Peña." Rep. Betty Brown, R-Terrell, is the target of a similar website. That's a new trick this election cycle.

Saenz picked up some local endorsements in that challenge, but not as many as he thought. La Joya Mayor Billy Leo and Sullivan City Mayor Gumaro "Maro" Flores signed on, according to the Saenz campaign. Flores is the father of another House Democrat who's under fire in the primaries: Kino Flores, D-Palmview. But the elder Flores told the Rio Grande Guardian that there'd been some kind of miscommunication. He's for Peña, as is his son. A spokesman for Saenz says Mayor Flores agreed to endorse his guy but was talked out of it by Rep. Flores.

Peña, meanwhile, won an endorsement from former Texas Democratic Party Chairman Charles Soechting. Soechting did that when still chairman the first time Peña and Saenz clashed.

• It's too early to know what this is worth to a candidate, but a band of liberal Texas bloggers endorsed seven candidates and say they'll encourage their readers to contribute through the Act Blue website. The list from the Texas Progressive Alliance: Rick Noriega, running for U.S. Senate; Joe Jaworski in SD-11; and five House candidates including Garnet Coleman, Jessica Farrar, and Armando Walle of Houston, Paul Moreno of El Paso, and Brian Thompson of Austin. Coleman, Farrar and Moreno are the only incumbents in the bunch.

• Are voters distracting? The Texas Education Agency fiddled with its testing schedules to make sure none of The Little Darlings will be taking the Texas Assessment of Knowledge and Skills on Primary Election Day. The powers that be don't want the disruption of voters (many schools are also polling places) while kids are taking the dreaded TAKS test. About 2.6 million kids around the state will be tested during that first full week of March.

The Road Fight Goes On Forever

The release of a national transportation commission report has Gov. Rick Perry crying foul over proposed gas tax increases and federal encroachment upon what he sees as states' business.

While some are siding with Perry in his argument in favor of state control of roads, folks from the agribusiness industry, an environmental watchdog group and the legislature say raising gas taxes might be the most practical way to help pay for future transportation needs. And one legislator poses a $3 billion question for the Texas Department of Transportation (TxDOT).

The 258-page (full-color glossy) report from the National Surface Transportation Policy and Revenue Study Commission, available here, contains a grocery list of problems, a buffet of recommended solutions and a smorgasbord of payment options, most of which have shown up from time to time on state lawmakers' menus.

Two years in the making, it represents the first major development in roadway politics since the death of Texas Transportation Commission Chair Ric Williamson. (Like the ghost in Hamlet, though, Williamson's voice echoes from the Undiscovered Country, in the form of a quotation — critical of how transportation projects are prioritized — from the commission's field hearing in Dallas: "Our revenue expenditure system is focused on road construction, which is a process, as opposed to reducing congestion, improving air quality, or transferring the movement of hazardous materials away from our urban center.")

The country's population will increase by 50 percent in the next 50 years, the report says, and transportation needs will grow even faster. The commission wants more federal support of road and highway projects and a greater focus on alternative modes of transportation, such as railroads and waterways. To pay for it all, the commission advocates hiking the federal fuel tax by 25- to 40-cents-per-gallon over the next five years and afterward tying the tax rate to inflation. The commission says that states should follow the feds' lead and raise state fuel taxes as well. Currently, the federal gas tax rate is 18.2 cents per gallon. Texas' is 20 cents per gallon.

The commission also recommends increasing taxes on heavy trucks, levying a "federal ticket tax" (like the tax you pay on an airline ticket) on all sorts of trips, instituting federal fees for freight shipping and taxing or capping greenhouse gas emissions. The commission also proposes allowing transportation entities to toll existing interstate highways and to institute congestion pricing on interstates in cities with a million or more people. It encourages public entities to enter into partnerships with the private sector to build highways.

Predicting technological advances (i.e., the development of alternative fuels) will render gas taxes inadequate by 2025, the commission recommends researching other ways to tax road users, such as making drivers pay taxes based on miles driven, rather than on gasoline burned. The commission also says that the existing 108 federal surface transportation programs should be combined and streamlined into 10 independent programs.

As for Texas, the commission proposes improvements to the existing Amtrak line connecting San Antonio to Dallas (and then to Oklahoma and beyond) and creating a new intercity passenger rail service between Dallas and Houston. The proposed railway would have trains speeding along on separate tracks at between 79 and 110 miles per hour.

"That's a great idea. I'm really glad to hear that because those are the things we've been advocating for years," says Dick Kallerman, Transportation Issues Chair for the Lone Star Chapter of the Sierra Club. "Texas has been talking about that for a long time... talking about that. We borrow millions of dollars for highways; we do a lot of talking about rail."

Augmentation of public and private investment in freight rail is absolutely necessary for farming and ranching in Texas, says Steve Pringle, Legislative Director for the Texas Farm Bureau. "We have got to have an adequate rail system," he says. "I've seen a decline in the quality of rail service in recent years. It's been hard for the railroads to raise money."

The commission recommends the creation of an independent National Surface Transportation Commission to act as master architect — a reversion to centralized federal oversight of transportation policy and what the report describes as an "era of renewed Federal purpose." According to the report, this new independent commission would submit legislation to Congress for a straight "yea or nay" vote, with amendments prohibited in an effort to combat pork.

Perry's response highlights his displeasure with the proposed fuel tax increases, perhaps a reflection of Texas' status as a net exporter of federal tax dollars. "For every dollar sent to Washington, Texas receives back only 8 cents in federal transit program funds and only 70 cents in federal highway program funds," according to his op-ed.

That, coupled with a distaste for federal control over state projects, forms the meat of Perry's argument: "Tripling the federal gas tax while stifling states' ability to fund improvements by engaging the private sector could be a crippling blow to our economic future and disastrous for fast-growing states like Texas... Washington clearly can't meet today's transportation demands, so why should anyone believe they can handle tomorrow's?"

"The Governor's absolutely right," says Rep. Joe Pickett, D-El Paso. "He's absolutely right on that second point: We can do a better job than the feds."

Federal money comes with so many strings attached that it's usually not worth playing the puppet, says Pickett, who's also a member of El Paso's Municipal Planning Organization.

Texans for Safe Reliable Transportation Chairman Joe Krier echoed that: "... calling for federal gasoline tax increases of up to 40 cents per gallon is politically unrealistic and unfair to Texas drivers as long as roughly 30 percent of gas tax revenue we send to Washington is diverted to other states. Until the federal government starts treating Texas fairly and stops siphoning off the gasoline taxes we pay to Washington, it make no sense to Texans to support federal tax increases."

However, Pickett says it's "hypocritical" to rail against raising gas taxes while mortgaging roads for quick cash. "We're borrowing too much money. We try to hurry up and build stuff, and we forget the future," he says. "Well, someone's got to pay the piper. We can't keep borrowing our way out of trouble."

Furthermore, Pickett won't be convinced by TxDOT's Chicken Little act until he can see where the agency's money is going now. In each of the past five years or so, the agency has taken in an extra $500 to 600 million above its estimated budget, Pickett says, daring, "Try to find it."

Pickett also wonders why private companies can turn profits on toll roads while the state agency claims it can't do the same thing at no cost. "We can't live without them, but we sure could use some cooperation and understanding of the bigger picture," Pickett says.

The national Sierra Club officially supports increasing gas taxes, Kallerman says. (It's a win-win situation for the environmentalists, as a high enough tax would both raise money and reduce fuel consumption.)

Pringle says the Farm Bureau favors increasing the gas tax, so long as revenues are "dedicated to rural roads within the state." As for tolls, private-public partnerships and, specifically, the Trans-Texas Corridor, "We're just not excited about that right now," Pringle says.

About a quarter or more of annual agricultural production — both from Texas and the United States as a whole — is exported to foreign countries, he says, underscoring how vital it is to agribusiness to have decent, interconnected railways, highways and waterways. For Texas, all exports must make their way to the Ports of Beaumont, Houston or Corpus Christi.

"We would like to preserve the partnership between the federal and state governments," Pringle says. "We don't need one or the other to take over the transportation system."

Red carpet watchers might also be interested to note that one of the commission's "Blue Ribbon Panel of Transportation Experts" is Steven Simmons, deputy executive director at TxDOT.

—by Patrick Brendel

Combs: Breath, Exhale, Relax

The state's tax collector is erasing a rule in the state's new business tax that was causing hyperventilation among businesses with large inventories.

Comptroller Susan Combs said the rule on the new margins tax was added for fear that, without it, the state would get sued for unequal treatment of certain types of businesses when she starts collecting the tax for the first time this year. But after a parade of businesses and tax consultants and trade groups said otherwise, she's convinced there's no legal risk.

It's an arcane rule about what part of a business inventory can be applied to that business' cost of goods sold under the state's new margins tax. As written, it was particularly hard on builders, car dealers, retailers and others with big inventories. The new version — no rule — puts the state's tax in line with federal taxes the businesses already pay.

And Combs says in her letter (attached) that the change won't cost the state any money, and won't affect her estimates of what the new tax will bring in.

That tax is due for the first time in May, based on business activity during 2007. But the comptroller has posted the rules and is putting together tax notices and instructions that'll go out this month (one very nervous group, as you might expect, is made up of people who voted for the tax and whose names are on the March ballot). Those new instructions will include this new version of the rule — the version businesses like.

Snake Eyes, Twice in a Row

The Texas Lottery can display results of a bingo game electronically without engaging in electronic bingo, according to Attorney General Greg Abbott.

The AG says showing the results isn't the same as having an automated or online — and illegal — bingo game. In those games, he wrote, "The player would have very little to do, aside from occasionally touching a computer screen or swiping his card at a terminal. Such games would be a kind of gambling far different from the social bingo contemplated by the Legislature and voters who approved the bingo amendment."

What he's talking about is a video lottery, which is prohibited. Sen. Jane Nelson, R-Lewisville, asked for the opinion to see whether displaying the results on an electronic board amounts to the same thing. In Abbott's view, as long as the results of the game are determined outside the machine — on paper, for example — it's not illegal.

The Lottery can't start a raffle-like game, according to Abbott. In an opinion requested by lottery officials, he says voters didn't specifically authorize raffles when they okayed lotteries, and that other pre-existing laws prohibit raffles in all but a few circumstances. Lottery officials had asked him about a game with limited numbers of tickets and no shared prizes. Not at this time, if they follow Abbott's advice.

Mr. Smith Returns to the Pink Building

Former Rep. Terral Smith will be House Speaker Tom Craddick's new chief of staff, starting March 1. He'll replace Nancy Fisher, who resigned after five years.

Fisher, a legislative aide turned lobbyist, became Craddick's legislative director when he became Speaker in 2003 and was eventually named chief of staff (he initially went without someone in that position). There have been rumors of her departure — most of them wrong or at best premature — for more than a year. Smith gave up his House seat to become a federal judge, but the gig didn't materialize. Then-President George H. W. Bush appointed him but lost his reelection bid and Congress didn't confirm Smith. He returned to government as the legislative liaison for then-Gov. George W. Bush, and has been lobbying since then.

Smith has a lighter touch than Fisher. But that's an office that can make a beast of the occupant; the rule is that good news comes from Speaker when possible, and bad news comes from the chief of staff.

Political People and Their Moves

Mark Brown, the director of the legal division at the Texas Legislative Council, is retiring at the end of February. TLC's the Legislature's in-house law firm, and he's one of the most respected folks over there, leading a staff of 46 attorneys. He also served as the agency's interim director before the current director, Milton Rister, was hired. Brown's replacement hasn't been named.

Former Rep. Wilhelmina Delco, D-Austin, is House Speaker Tom Craddick's newest appointee to the Texas Ethics Commission. She served 20 years in the House — more than half of them as head of the Higher Education Committee — and was also a Speaker Pro Tempore.

Former Rep. Joe Nixon signed on as a senior fellow in the Center for Economic Freedom at the Austin-based Texas Public Policy Foundation. That's an addition to — not a replacement of — his Houston law practice.

TPPF also started a new Center for Natural Resources. It'll be directed by Kathleen Hartnett White, late of the Texas Commission on Environmental Quality, who'll join the foundation's staff.

Kinnan Golemon is opening his own environmental law and regulation practice after 34 years at Austin-based Brown McCarroll. But he'll keep his offices there and continue to work for some of the same clients he's been working for.

Terri Burke, the former editor of the Abilene Reporter-News and a reporter and/or editor at a number of other papers, is the new executive director of the ACLU of Texas. she's succeeding Will Harrell, who left last year to become the ombudsman at the Texas Youth Commission.

The Texas Council of Community MHMR Centers named Danette Castle of Lubbock their executive director. She was CEO of the Lubbock Regional MHMR Center.

Mike Grable is ERCOT's new vice president, general counsel, and corporate secretary. He's been the assistant general counsel there and worked at the state's Public Utility Commission before that.

Deaths: Betty Bivins Lovell, mother of former Sen. Teel Bivins, R-Amarillo. She was 88.

Quotes of the Week

Federal Judge Lee Yeakel of Austin, quoted by the Austin American-Statesman after he ruled against Dennis Kucinich's challenge to a loyalty oath required of Democratic Party presidential candidates in Texas: "It seems to me courts should intervene in the affairs of political parties sparingly. I don’t think courts should go out of their ways to inject themselves."

Bexar County DA Susan Reed, quoted in a Houston Chronicle story on revelations about Harris County DA Chuck Rosenthal's email messages: "All of us will make a mistake once in a while and do something stupid. But this was consistent."

Rep. Ismael "Kino" Flores, D-Palmview, in the Fort Worth Star-Telegram, on whether he'd vote again for House Speaker Tom Craddick, R-Midland: "If we can elect a Democrat for speaker, I'll vote for him. I'm not sure we'll get there. But if we do, I'll be voting for the Democrat."

Houston Mayor Bill White, quoted in the Houston Chronicle on funding for a new professional soccer stadium: "It's not going to be done the way it was done with other stadiums, where the taxpayers picked up the tab. We're not going to do some special deal of giving a lot of money that could go to police or fire to a sports owner."

Rep. Pat Haggerty, R-El Paso, on his reelection race, in the El Paso Times: "I think it's going to be very ugly and very nasty. I've already warned my mother."

Harry Pachon, head of the Tomas Rivera Policy Institute at the University of Southern California, talking to the Los Angeles Times: "That's been a traditional way to approach the Latino vote in the Southwest. The candidate would come into town, say a couple of words in mangled Spanish, eat a taco, wear a sombrero. Times have changed."

Victor Bushell of Bushell, Sovak, Ozer & Gulmi LLP, in an article on worry in The Wall Street Journal: "I spend all day thinking of ways to gain an advantage over my adversaries, and I assume they're doing the same thing. If that was your job description, wouldn't you be worried?"

Smith County Sheriff J.B. Smith, telling the Tyler Morning Telegraph how he responded when People for the Ethical Treatment of Animals asked him to put a jailed man accused of cannibalism on a vegetarian diet: "I kind've said 'pfft' in a very nice way."

Texas Weekly: Volume 25, Issue 3, 21 January 2008. Ross Ramsey, Editor. Copyright 2008 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 For news, email, or call (512) 288-6598.

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