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Counting Noses

When San Antonio Sen. Gregory Luna, a Democrat, was dying in 1999, he got the lieutenant governor at the time — Rick Perry — to agree to give him 24 hours notice before any Senate vote on a public school voucher bill Luna opposed. He would get to Austin, he said then, to be the deciding vote against that legislation.

When San Antonio Sen. Gregory Luna, a Democrat, was dying in 1999, he got the lieutenant governor at the time — Rick Perry — to agree to give him 24 hours notice before any Senate vote on a public school voucher bill Luna opposed. He would get to Austin, he said then, to be the deciding vote against that legislation.

This absent senator thing came up again in 2007, when Sen. Mario Gallegos, D-Houston, tried to get the same deal from Lt. Gov. David Dewhurst. Gallegos was recovering from a liver transplant and was in position to be the deciding vote against that session's photo voter ID bill. Dewhurst said he'd do it, but only once, writing Gallegos a letter at the time that said he would be "happy to provide you with 24 hours notice one time for a vote on a single piece of legislation you designate in writing."

Gallegos ended up spending part of the session in a hospital bed in a room connected to the Senate chamber so he'd be on hand if the vote came up.

Those war stories came back after the Senate's initial approval of the voter ID bill this week. Sen. Glenn Hegar, R-Katy, has the flu and wasn't in the room when the votes were cast by the Senate's Committee of the Whole. But his vote in favor of the bill was counted anyway, by what Dewhurst said was mutual agreement of the senators.

Hegar's wasn't the deciding vote by a long shot, but it's not every day that a voter fraud bill advances in the Legislature with the vote of a senator who's not even on the premises. The ironic artistry aside, it sets a precedent that, like the Luna thing and the Gallego thing, will come up again when the Senate majority finds itself stuck between something it wants and its own two-thirds rule.

Requiring Texans to prove they are who they say they are before voting is still a controversial issue, but it's got an easy flight path in the current Legislature. It stalled in the House two years ago, when Democrats stretched out the arguments on a pile of unrelated bills at the end of the legislative session to delay consideration of the voter bill until time was up. That's called "chubbing" in legislative parlance — the House's equivalent of a Senate filibuster — and it was the end of voter ID in 2009. In 2007, the legislation narrowly passed in the House on a party-line vote and died in the Senate, when Gallegos et al blocked it from consideration.

Now, it's zipping through. The Senate Democrats weren't much of a roadblock. It takes two-thirds of the senators to bring up a piece of legislation in most cases, but this was engineered to require only a simple majority, and the Republicans have more than enough votes to cover that. In the House, there are 101 Republicans to 49 Democrats. It could take some time getting through, since Speaker Joe Straus hasn't named committees yet and this has to go through two committees to get to the full House, but there's not much doubt about the outcome.

Democrats are left to build a legal record, getting expert and non-expert witnesses to testify (Republicans are doing the same) for the inevitable court fight ahead.

Other Voter ID legislation has already gone through the courts. The law Texas tried to pass two years ago, modeled on Georgia's law, would have allowed alternative forms of identification. Georgia's law got through the Justice Department — which has to sign off on election law changes in states that (like Texas and Georgia) are covered by the federal Voting Rights Act, and is currently being challenged in the courts. The Lege's current proposal is closer to Indiana's voter ID law, which survived legal challenges all the way up to the U.S. Supreme Court. As filed (proposed amendments are piling up), this one requires a photo ID, period. No light bills or paycheck stubs as alternatives: A specified photo ID and a voter registration card. The Texas proposal isn't identical to either law, but Sen. Troy Fraser, R-Horseshoe Bay, says it was drafted with the court rulings in mind.

Both sides cite stats and research papers to support their positions, with Democrats saying the photo ID law will suppress minority voting, and Republicans saying it won't do anything but stop fraud. Texas has yet to see a real scandal involving identity fraud at the voting booth, and the vote suppression argument is difficult to substantiate. Maybe the best evidence is the tenacity of the politicians fighting about it. Both sides are dug in, and dug in on partisan lines. And the issue is arguably more about politics than about policy, anyway, a proxy for other wars about party politics, about immigration and minorities, about security and freedom.

Whatever it is, it's on its way into the law books.

Why is it an emergency? “I think it’s a very important issue,” Perry told reporters this week. “It’s one that certainly is getting a lot of ink. You all seem to think it’s a pretty important issue, too. You’re writing about it a lot. I think it’s an important issue, it was one that had a lot of focus, a lot of energy, a lot of time was spent on it, last session of the Legislature. As a matter of fact, there were some people that thought it was so important that they were willing to kill a substantial number of bills over it last time. So one of the ways you cure that is get it out early, get it on the table where you can’t have that kind of shenanigans again.”

Members Only

It could have been lonely for Rep. Aaron Peña, R-Edinburg, had the veteran lawmaker switched parties after the 2008 elections, when Hispanic Republicans didn’t exist in the lower chamber. So high are their numbers now, however, that Peña, who switched last month after serving four terms as a Democrat, was named chairman of the newly formed Hispanic Republican Conference.

Peña said he and the five other Hispanic GOP House members, Reps. Jose Aliseda, R-Beeville; Larry Gonzales, R-Round Rock; John Garza, R-San Antonio; Raul Torres, R-Corpus Christi; and Dee Margo, R-El Paso, have automatic membership due to their Hispanic heritage. (There is some speculation in El Paso that Margo is not Hispanic, though he claims his grandfather was.)

The conference will also allow Republicans whose districts are at least 40 percent Hispanic — as of the 2000 census — to join and become voting members. (The 2010 census results should yield more potential members, Peña said.) Associate members who don’t fit the initial criteria will also be allowed to join but will not have voting powers. The group will take a position as a whole if it musters a two-thirds vote for or against an issue.

The conference should get into the throes of debate soon, as Peña said it would likely take a stand for or against the 40-plus immigration-related bills already filed this session.

Inside Intelligence: Voter ID and Other Emergencies

This week, we asked the insiders about voter fraud — which was simultaneously being cussed and discussed in the Texas Senate debate over photo voter ID — to see whether they think that's a real problem (14 percent) or more of a political issue (71 percent) or both (16 percent).

Next, we let them play consigliere to Gov. Rick Perry, choosing the items they'd recommend for the "emergency" designation that he has already used for voter ID, sanctuary cities, a call for a balanced federal budget, eminent domain, and audio and visual sonograms of fetuses to be seen and heard when their mothers seek abortions. Those five items got between 13 percent and 27 percent support (the insiders were allowed to choose more than one issue). The state budget was the runaway, with 73 percent saying they'd put that on the emergency list. In an open-ended question about what else should be added to the issues up for early consideration by lawmakers, answers included school finance, public education, water, government efficiency, transportation and health care reform.

And we then asked a question about the whole process, about how emergency items should be used and whether the Legislature should need the governor's designation to consider issues during the session's first 60 days. You can get the full set of answers in our Files section, but here's a sampling:

• "Legislative emergencies should be used for true emergencies, not the issues the Governor's pollster deems red meat. Also, answers to your first question will skew the voter ID debate - many believe voter fraud is real, but the only kind of fraud voter ID legislation addresses is voter impersonation at Election Day polling places. That type of fraud has not been shown to be a real issue, despite the AG's best efforts."

• "Like most of the powers granted the Governor, adding emergency items relies on a responsible and ethical leader. Draw your own conclusions in this case. But this doesn't really call out for a change — it does, however, call out on the press to highlight the non-literal use of 'emergency' by the governor."

• "Yes, the Governor should set an agenda for the state. Doesn't mean he will, but he should."

• "As it is, is a good constitutional balance. Just because a governor gives emergency status, the Lege is not compelled to act."

• "An 'emergency' in the technical sense is just a rule; it is nothing more than a procedure. Any Lege procedure can be used for a political purpose. The Governor has figured out this strategy of using the emergency procedure as a way to make sure his key support groups know that he is delivering on specific campaign promises. Pretty clever of him."

• "The slow walk at the beginning of the session is totally unnecessary and is one of the cause's of the traffic jam in the Last Days. Change it."

• "They should actually be used for state emergencies, but using them to calm the masses and show what the administration sees as a priority is what usually happens. Right now the wrath of the masses is more a political emergency than a state emergency."

• "We have enough laws, why make it easier to pass more?"

• "Should be used to focus legislative attention on a few critical or political issues before the calendar gets crowded. Emergency tags help highlight campaign pledges or respond to bona fide crises. The budget doesn't need to be tagged because it gets legislative attention and will not be completed until session's end anyway."

• "Yes, but not for the Governor to use as a political grandstand. His soap box is tall enough."

The Lesser of Two Evils

The Senate's version of a starting state budget is, at $158.7 billion, $2.3 billion bigger than the House's, but still would chop overall state spending by $28.8 billion, or 15.4 percent, from current levels.

The upper chamber's initial budget proposal includes a total of $69.8 billion for public and higher education; the House version provides $67.7 billion for education. Their overall spending on health and human services is about the same (though some details differ). If you're looking only at state money — general revenue funding — the Senate would spend $79.7 billion, compared to the $79.3 billion in the House plan presented last week.

The big difference in state spending, as with the overall budget, is in education. The Senate would leave public schools $9.3 billion short of what they're due under current education funding formulas, about $500 million better off than the schools would do under the House plan. In either case, the Legislature would have to change its school funding formulas, and until they do that, there's no way to know which school districts lose how much money. Technology allotment and pre-kindergarten early start grants aren't funded. In addition, the Senate would spend about $400 million more on various education programs than the House.

Like the House, the Senate would cut more than $254 million from special item funding for state colleges and universities and $431 million from student financial aid programs (if the money becomes available, they'd add back $50 million of that financial aid, for a total cut of $381 million). Four community colleges that would lose their funding in the House bill remain in place in the Senate plan.

They do similar things in health and human services, cutting provider reimbursement rates by another 10 percent on top of cuts already made and without taking into account federal stimulus funds used in the current budget that won't be available for the next budget. But the Senate made different assumptions about federal matching funds for those programs; they think the state will get $1 billion more in so-called FMAP funds than the House assumed.

They'd cut the state's contributions to state employee and teacher pension programs, and like the House, they don't tap into the state's $9.4 billion Rainy Day fund. But the Senate included $140 million more for higher education health insurance premiums, and about $300 more for the Texas Higher Education Coordinating Board than the House did.

The Senate would cut 8,167 state employees from the budget, where the House cut 9,610. Finally, the House left about $169 million in the Public Utility Commission's System Benefit Fund; the Senate used most of that money elsewhere, and would leave a balance of $4.4 million in the fund.

The budget is in three documents, available on the Legislative Budget Board's website: the budget bill itself, the LBB's Summary of Legislative Budget Estimates, and the LBB's full Legislative Budget Estimates.

The Week in the Rearview Mirror

Criticized for failing to collect fines under the Driver Responsibility Program, the Department of Public Safety announced an amnesty program to help offenders get their licenses back. Drivers in the program were assessed not only fines for their violations, but extra surcharges for three years, which many of them didn’t pay. They can now apply to pay a reduced charge, get legal with the state and get their licenses back if they’ve been suspended. The program runs until April 17.

Texas officials were surprised to learn that one of the drugs they have been using in their three-drug cocktail for execution will no longer be available through the supplier, Hospira. The company announced that its plans to produce the drug, sodium thiopental, were stopped by Italian authorities who insist that the drug, if manufactured in Italy, can not be used for executions. The company decided to discontinue production, which sent Texas on the hunt for alternative suppliers or alternative drugs. If the state were to switch to another drug for executions, it could require a months-long approval process and has the potential to spark new lawsuits.

Wind power could become an even bigger player in Texas if it can overcome objections to the construction of transmission lines. West Texas has so many turbines that many have had to be turned off because there are not enough lines to carry the power they generate. State regulators hope to change that by green-lighting a $5 billion project to build transmission lines connecting power to the cities that need it, starting with a 140-mile line through the Hill Country, which has stirred ire among landowners. The Public Utility Commission chose to locate the route largely parallel to Interstate 10, diffusing many objections.

A military panel has determined that Major Nidal Hasan is sane and can stand trial. Military authorities can now schedule a trial for Hasan on the 13 counts of premeditated murder and 32 counts of attempted premeditated murder he’s been charged with. That is expected to be a capital murder trial but isn't likely to begin soon. Hasan’s sanity could still be an issue at trial if the defense chooses to dispute the panel’s report.

Over the objections of the Environmental Protection Agency, environmental groups, two judges and one of its own panels of attorneys, the Texas Commission on Environmental Quality approved an air permit for a new power plant in Corpus Christi. The permit was originally applied for in 2008, and the Las Brisas Energy Center still has permits to collect for wastewater and greenhouse gas emissions. Those won’t be easy to come by as opponents vow to fight the petroleum coke-fired plant on the Inner Harbor. The EPA has continued to voice concerns about the health and environmental impact of the project, and the TCEQ’s own Office of the Public Interest Counsel objected to the permit in its role as protector of the public interest.

Political People and Their Committees

Lt. Gov. David Dewhurst announced he will name the Senate's committees on Thursday or Friday of this week, with one exception. He wants the Senate Finance Committee to get going right away, and named that panel this afternoon. All but two of the members were on the panel named at this time two years ago (we're ignoring interim changes for the moment).

The list: Steve Ogden, R-Bryan, chairman; Juan "Chuy" Hinojosa, D-McAllen, vice chairman; Robert Deuell, R-Greenville; Robert Duncan, R-Lubbock; Kevin Eltife, R-Tyler; Craig Estes, R-Wichita Falls; Eddie Lucio Jr., D-Brownsville; Jane Nelson, R-Lewisville; Dan Patrick, R-Houston; Kel Seliger, R-Amarillo; Florence Shapiro, R-Plano; Royce West, D-Dallas; John Whitmire, D-Houston; Tommy Williams, R-The Woodlands; and Judith Zaffirini, D-Laredo.

Estes and Patrick weren't on the committee two years ago. Sen. Kip Averitt, R-Waco, didn't seek re-election, and Chris Harris, R-Arlington, wasn't reappointed to the panel.

And since you're reading this on Friday morning, you know the rest of the committees weren't announced on Thursday. Any time now.

House members turned in their preference cards before going home for the week, indicating what committees they hope Speaker Joe Straus will put them on. Now comes the putting. Standard procedure is to name names as lawmakers are on their way out of town at the end of the week. That would argue for a week from now, or two.

Political People and Their Moves

Amadeo Saenz Jr., executive director of the Texas Department of Transportation, will leave at the end of the fiscal year. He's eligible to retire and to get a state pension. Jobs outside pay more than the one he's got. And it gives the agency, the Legislature, and the transportation board a chance to reboot the state's highway program. Insiders say Saenz's departure isn't linked directly to a recent report that recommended soup-to-nuts renovation of that agency, but the timing certainly makes it look that way. Saenz joined the agency in 1978 and took over the top job in October 2007.

Michael Williams, shocking nobody at all, announced he's running for U.S. Senate in 2012. He says he would have run whether Kay Bailey Hutchison, the incumbent, was in the race or not (she announced she won't seek reelection) and ducked questions from The Texas Tribune's Evan Smith over Hutchison's conservative bona fides and about how Williams would size up Lt. Gov. David Dewhurst, who's expressed interest in the race.

Elizabeth Ames Jones, like Williams a Republican railroad commissioner, did a fly-around reasserting her candidacy for U.S. Senate in 2012. She was here in the first round, waiting for Hutchison, and said when Hutchison stayed in that she'd be in the hunt for the long haul. The Republican primary in that race is in 13 months.

San Antonio Mayor Julián Castro, an ascending star in the Texas Democratic Party, isn't looking to rise any higher just yet. Some have tossed Castro's name about as a potential Democratic contender in the race to replace retiring U.S. Sen. Kay Bailey Hutchison, R-Dallas. It looks like that's a no-go, though. He posted a flyer on Facebook inviting supporters to the Feb. 13 kick-off event for his re-election campaign. "Representing the city is why I got interested in politics in the first place," Castro said. "I haven’t even finished my first time, so it would be a little premature to look beyond that." He said that in his second term, should he win re-election, he intends to focus on improving education, economic development and quality of life in the Alamo City.

Gov. Rick Perry named Stephanie Simmons of Missouri City chairwoman of the Risk Management Board, which reduces and controls risk by ensuring state agencies’ ability to protect their employees, the public and the state’s physical and financial assets. Simmons is an attorney, owner of Simmons Legal Consultants and a certified mediator.

Perry appointed Highland Village resident Jonathan Bailey, an attorney at Kuzmich Law Firm PC, as judge of the 431st Judicial District Court in Denton County. The governor also appointed attorney Trey Loftin of Aledo as judge of the 43rd Judicial District Court in Parker County.

Press corps moves: R.G. Ratcliffe closed his computer and pushed his chair away from the Senate's press table for the last time. The long-time Houston Chronicle (and before that, Fort Worth Star-Telegram) reporter says he wants to write a book while the material is fresh and can be called current events, and before it's history (that might be disconcerting to those of you who are current events). "And if that works," he says, "then I may use my history degree to write about the pivotal year of 1821."

Quotes of the Week

Gov. Rick Perry, speaking at the Lubbock Day Legislative Luncheon, on lawmakers who think they should only be focusing on the budget, as reported by the Houston Chronicle: “I guess we need to introduce 'em to some of you ladies, who certainly know how to multitask."

Tom DeLay, in an interview with the National Journal, following his money-laundering conviction: "I don't have any regrets except — and I work on this every day — that maybe I didn't need to be so arrogant."

Former Lt. Gov. Bill Hobby on the state’s current budget predicament as reported by The Dallas Morning News: "I assume they’ll use the Rainy Day Fund. I can’t conceive of not using it. That would be insanity."

Rep. Leo Berman, R-Tyler, on what motivated him to file House Bill 294, which would prevent undocumented immigrants from filing suit against citizens, to The Texas Tribune: "If you have an accident with a car driven by an illegal alien, you are going to pay for your own car. But if you hit them, they are going to get an attorney, an abogado, and they are going to try and sue you for everything you’re worth."

U.S. Rep. Ron Paul, R-Surfside, quoted in The Dallas Morning News on whether he'll run for the Senate seat now held by Kay Bailey Hutchison: "I’m just waiting and seeing what comes about, who files and what they do."

Rep. John Zerwas, R-Simonton, on the feds taking control of the health care industry in Texas, to The Texas Tribune: "It is a frightening thought to me that the federal government could come in and regulate a portion of our health insurance industry. In the spirit of our 10th Amendment rights, I don’t want to cede anything to the federal government."

Railroad Commissioner Elizabeth Ames Jones, quoted in the San Antonio Express-News during her U.S. Senate campaign announcement tour: "We have had bad things done to us for too long and people have asked me, ‘Elizabeth, what are you going to do for us?' That's not a conservative question. In fact, the answer is, I'm going to un-do for you. I want you all to let me go to Washington, D.C., to be Elizabeth the person you know — Elizabeth the un-doer."

Contributors: Julian Aguilar, Reeve Hamilton, Ceryta Lockett and David Muto

Texas Weekly: Volume 28, Issue 4, 31 January 2011. Ross Ramsey, Editor. Copyright 2011 by The Texas Tribune. 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) 716-8605 or email For news, email, or call (512) 716-8611.

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