Playing by the Rules

The real rule of the Texas Legislature is that there are no rules when the rules get in the way. If the Senate needs to pass a budget and can't get a two-thirds vote to do so, and if there's a way to squint at the rules and do it with a simple majority, then that's what they'll do.

The process is important while you're in it, but it's not important later, and it's only rarely important to people who aren't in the game. Regular Texans don't know the two-thirds rule from the infield fly rule. Most of them don't know whether you're supposed to put your hand over your heart or not when they play the Star Spangled Banner at a baseball game, or whether men should take their hats off when they go indoors.

What matters, if you're in this mode, is the result.

Republicans found a way to pass a budget without the ordinary support of two-thirds of the senators. Democrats wouldn't go along, so they voted the bill out on a day when the budget — a House bill — was at the front of the line of legislation with no need for a supermajority to take consider things out of the Regular Order of Business. That might have done violence to Senate tradition and ruffled some senatorial feathers, but it's within the rules. It also took the Democrats out of the game and also gave them the right to blame the final product entirely on the other party.

Republicans are intentionally or accidentally betting that voters will appreciate the cuts in the budget and that they won't bridle at what's missing as a result. Maybe they'll notice and maybe they won't, but the politicians are hoping that they'll be happy, or at least not mad enough to get out the pitchforks. It also put them in better position for the coming talks with the House.

The Senate's gyrations over the last week repositioned the upper chamber. They were in the somewhat odd position of cutting 5.9 percent from the budget and being called big liberal spenders for their trouble. Their $11 billion in cuts, after all, are less than half the $23 billion in cuts in the House budget. If the House plan is the baseline, the Senate looks wimpy. If the current budget is the baseline, they look okay. Better yet, they're now in a spot — since no Democrats are on the bus — to say they cut in a responsible way while the House went overboard. If they were big spenders, wouldn't the Democrats have come along?

There are still finance fights ahead, even though only one party is left in the game. The Senate essentially spent money the House didn't want to spend. They've used "non-tax revenue" the House didn't want to use. Finance Chairman Steve Ogden admitted two weeks ago that some money was being left in the Rainy Day Fund to cover $3 billion in Medicaid spending that was simply left out of the budget; in putting the deal together to get the bill out of the Senate, he added $1.25 billion to that scheme. They're underestimating the cost of the program and betting that the money won't be needed for one of two reasons — that cost-saving changes in the program will make the money unnecessary, or that the Texas economy will grow and produce enough money to cover the shortfall. And if neither of those things happens, there's always the RDF.

They removed the need for that money on the front end, where lawmakers won't support it, and moved it to the back end, where they'll support it — just like they're doing with the deficit in the current budget — because they won't have much choice.

Next up? Redistricting, which requires 21 votes — unless there's another way to do it.

Leaving Schools With the Bill?

As the session wraps up, the public education community will be waiting with bated breath to see what happens with two issues: mandate relief and school finance.

It's possible neither of them will get anywhere. Mandate-relief legislation in the House, HB 400, and in the Senate, SB 12, has hit major snags. During its first round on the House floor, Democrats made it clear they would deploy every parliamentary tactic they could think of to derail HB 400. That's likely to happen again when it hits the floor again Friday. In the upper chamber, Sen. Florence Shapiro lacks the votes to get a full Senate hearing on SB 12.

The flashpoint on mandate relief measures is whether the elimination of class-size ratios, minimum salary schedules and other contract provisions should be permanent. Administrators say yes; teachers say no. If they can negotiate a compromise — which could be difficult, because the legislation’s author on the House side, Rep. Rob Eissler, R-The Woodlands, has indicated that he’s not open to making the measures temporary — they might get through. But as they stand, teacher associations will fight ferociously to keep that from happening.

Legislation is also waning on the school finance front. Shapiro's school finance bill is struggling to muster enough support to make it to the floor, though that may change once her colleagues' bitter feelings from the budget debate fade. On the House side, Rep. Scott Hochberg's HB 2385 has emerged as the most definitive proposal — but because of the deep cuts it enacts, he’s less than enthusiastic about pushing it. A possible compromise: a Hochberg finance system that enacts the Senate, instead of House, cuts to public education.

Those bills are critical parts of the budget, by the way; without school finance changes, lawmakers might be back this summer even if the House and Senate find harmony on the spending plan.

While districts can likely use existing waivers and current reduction-in-force policies to get through the next biennium without mandate relief, the prospect of pushing through the coming two years without some kind of school finance reform is not appealing — but that may happen if lawmakers can’t come to a consensus.

That would plunge districts into unknown waters — and place a lot of power in the hands of Commissioner of Education Robert Scott.

The state would likely fund schools based on current formulas, borrowing money from the second year of the biennium to do so. If it ran out, the state would either have to make an emergency withdrawal from the Rainy Day Fund, lift the property tax compression rate (which Scott has the power to do, but likely won’t), or fund districts on a prorated basis with the expectation that during the next legislative session, the districts would get the money back. Of course, at that point, lawmakers could decide to change the law and leave schools with the bill.

Higher Ed Update

Legislation that creates a "priority model" for TEXAS Grants is proceeding through the Legislature, though some differences between the House and Senate versions will have to be hammered out in conference committee. And, of course, students will likely notice it more if the Legislature funds grants for incoming students, which it does not appear likely to do in the next biennium.

With weeks left in the session, questions about a number of other significant higher education bills remain.

This week, Senate Higher Education Chairwoman Judith Zaffirini's Senate Bill 5, which would save institutions a significant amount of money by eliminating unnecessary reports and paperwork, flamed out in dramatic fashion. Sen. Jeff Wentworth, R-San Antonio, successfully attached his embattled campus carry legislation onto Zaffirini’s bill, and she pulled it down in protest.

It appears that Wentworth is still one vote short of the 21 he needs to suspend the rules and get a floor debate on the standalone campus carry bill, which allows the carry of concealed weapons on college campuses.

Higher Education Chairman Dan Branch, R-Dallas, has said that he is holding up House Bill 9, which gives the Texas Higher Education Coordinating Board the go-ahead to base a portion of formula funding on outcomes like graduation rates. Even though the bill is in line with coordinating board recommendations, was given a low number and has the vocal support of Gov. Rick Perry, it hasn’t seen much action. Branch says that’s because of his reluctance to bring it up amid tense debate in the higher education community regarding the push to implement a specific set of reforms promoted by the Texas Public Policy Foundation.

Of the controversy, Branch says, “I’m concerned that thoughtful reforms will be hurt by some of this. It sort of sets back the whole reform movement.”

Meanwhile, a bill to further last session’s crowning achievement — the creation of a tier-one race for seven “emerging research universities” — by creating a way for those that reach the goal to get at the prize money appears to have hit an unexpected snag.

House Bill 1000 moved through the House without difficulty. It has twice been brought up in the Senate Higher Education Committee and twice was left pending. The holdup is the lack of consensus among the seven emerging research institutions on a preferred distribution method.

The University of Houston, which is expected to be the first institution to qualify for a payout, is seeking a model that yields a maximum amount. The remaining institutions have advocated for a system that puts money back in the fund so that it continues to grow.

UH President Renu Khator argues that money invested in higher ed does a better job of growing the economy, and subsequently the fund.

Three and One

Under a bill passed by the House and Senate, the Texas Railroad Commission would become the Texas Oil and Gas Commission and stay in existence until 2023. But hashing out the differences between the chambers’ bills in conference committee will likely be more complicated than agreeing to a simple name change.

The Senate version of the sunset bill, SB 655 by Sen. Glenn Hegar, R-Katy, would change the current three-member panel of statewide elected officials to a lone commissioner who serves a four-year term. The House version keeps the current composition of three members. Under that version, members would continue to be elected to staggered six-year terms.

Another major difference deals with what agency decides contested hearings. The Senate version moves that authority from the internal hearing examiners at the agency to the State Office of Administrative Hearings, while the House keeps the adjudication under the purview of the Oil and Gas Commission. Advocates for greater transparency favor the Senate version.

A floor amendment that would have allowed commissioners to meet in secret to discuss disputes brought before it passed the House on a voice vote during second reading. It was later pulled on third reading after the author, Rep. Phil King, R-Weatherford, said it met opposition.

Inside Intelligence: End of Days

It's May of an odd-numbered year, so we asked the insiders whether the big stuff will get finished during regulation time or whether there will be special sessions this summer, and about what issues won't get resolved.

The insiders tilt, slightly, toward a special session, with 51 percent saying lawmakers won't finish work on the budget by Memorial Day (when the session ends) and 47 percent saying they will.

The Texas House has already voted out its redistricting map and sent it to the Senate, and the State Board of Education maps have already been approved by both houses and sent to the governor. The Senate didn't start (in public) on its own map until after the budget was out. Even so, 69 percent of the insiders think senators will vote out a map before the end of the month.

Congressional redistricting is also coming in late, and the insiders are less optimistic here: 43 percent say the Legislature will produce new congressional maps, and 45 percent say they won't.

A copy of the full answers can be found here; a sampling follows:

Will the House and Senate agree on a budget or will that issue force one or more special sessions this summer?

• "Neither House nor Senate want to start the process all over again in the summer."

• "How can they agree on how much to spend when they don't even agree on how much we have in the bank to spend?"

• "They will get out of their jam by deferring over six billion into the next biennium, allowing the House to add only a few billion to their version and the Senate to say they are betting on the rebounding economy (or the Economic Stabilization Fund) to bail them out of having to implement severe cuts to public education and health and human services in 2013. Either way, I think they should halt their pursuit of a federal balanced budget resolution. Makes them look just a little hypocritical to be pointing their fingers while playing with their own balance sheet."

• "They'll agree, but without a single Democratic vote in either the House or the Senate. There will be no question who owns the budget - Republicans."

• "I thought they might finish on time. I still think there's a chance, but it is shrinking by the day. The gap is just too large."

• "The House and Senate may well see a draft conference committee report, perhaps an actual conference committee report, and they may even adopt a conference committee report. However, they will not agree on a school finance bill--a necessary accompaniment--leading us into one or more special sessions this summer."

Will the Senate vote out a redistricting map?

• "Easiest redistricting job of the whole bunch: just one big incumbent protection racket."

• "They have about 17 days to pass it out of the Senate, but the House will hold it hostage until the Senate conferees agree to more cuts in the budget."

• "The Dems will block with the Senate's two-thirds rule."

• "They don't want 4 or 5 people who have higher offices in mind drawing their future"

• "Although the Democrats would be better off with a Senate drawn map than one crafted by the LRB, it would seem they stick together. That along with a handful of unhappy Republicans will make it difficult to pass a map."

Will the House and Senate agree on a congressional redistricting map?

• "Not enough time. Three federal judges will get to decide how much work political consultants get for the next decade."

• "They don't want a court to do it. If they think they'll be in special on the budget anyway, they might not rush it."

• "Where is Tom DeLay when we need him?"

• "Sure--but maybe not during the regular session."

• "It will be difficult for the Senate to get a map voted out. If this one goes to special session, however, they do have a chance of getting it done."

What issues are most likely to be left unfinished at the end of the session?

• "Redistricting."

• "SUNSET"

• "Transportation, corporate practice of medicine"

• "Budget, Senate & House Redistricting"

• "How to fix the structural deficit, how to pay for highways, how to pay for water, how to pay for the last three months of the two-year state budget."

• "Congressional redistricting, any semblance of business tax reform, funding for the state water plan and probably at least one sunset bill will run out of gas."

• "Budget, redistricting and one or two other 'urgent' items like meddling with women's reproductive rights. 3 specials total - all summer."

• "The state's structural deficit and the related failure to implement a sustainable and stable revenue stream for K-12 education."

• "Health, education and many others, if your question goes to leadership. If it is only a question of crossing the t's and dotting i's, it will all get taken care of."

• "EVERYTHING. Despite a super-majority, the Republicans can't agree to pass anything because they are too spooked by the hard right. This will/should be known as the do-nothing legislature."

• "Are you kidding? They'll finish!"

• "I bet it will be gambling."

• "Guns on Campus"

• "TWIA funding reform. TDI and other agencies' sunset review."

The Week in the Rearview Mirror

Both the House and Senate passed a new version of the abortion sonogram bill and sent that piece of "emergency" legislation to the governor. The Senate passed the House’s bill with some revisions, and the House decided to go along.

The Texas Department of Transportation sunset is out of the House; the Senate passed its version early. Both bills require administrative changes, including the hiring of a chief financial officer and an inspector general to provide independent assessment of the agency. But the Sunset Advisory Commission's recommendation to replace the five-member Transportation Commission with a single appointed commissioner died in both houses.

Census analysis of the San Antonio area has led to an expansion of its metropolitan area to include the city of New Braunfels. The official name for the designation, a Metropolitan Statistical Area, is used by the Office of Management and Budget and the Census Bureau to collect and analyze data. As cities grow beyond a population of 50,000, they are defined as a principal city and can be grouped with other surrounding cities to become part of a larger MSA. That’s just what happened to New Braunfels as it passed the 50,000 mark in the 2010 census. The new MSA consists of eight counties, up from four, and encompasses 2.14 million people.

Convicted killer Cary Kerr’s last-minute appeal to the U.S. Supreme Court was denied, and his execution proceeded on schedule, with the state using its new drug of choice in Texas’ three-drug lethal injection cocktail for the first time. The previous drug Texas used, sodium thiopental, is no longer available and has been replaced by pentobarbital. Kerr’s appeal, though, wasn’t based on the drug used but rather a claim of poor legal representation.

Texas’ request for a declaration of major disaster has been turned down by the federal government. Gov. Rick Perry asked for the declaration, which would have provided the state with assistance in fighting the more than 9,000 fires it’s been combating since November. About 2 million acres have burned, and more than 400 homes have been destroyed. Perry said the state would continue to pursue all options, including an appeal of the denial, and he's getting an assist now from the state's two U.S. Senators.

An audit of the beleaguered Emerging Technology Fund recommended that the panel of advisers increase transparency in its dealings with grant applications. Gov. Perry was criticized for using the award process to benefit allies, and although the audit found no wrongdoing on the governor’s part, it proposed that the panel record its votes in public meetings where minutes would be taken and make them available to public scrutiny. Lt. Gov. David Dewhurst, who requested the audit, is asking legislators to act on the auditor’s suggestions.

Political People and Their Moves

Former state Rep. Jose Santiago "Jim" Solis, D-Harlingen, plead guilty to federal charges he paid a judge in return for favorable pre-trial rulings. He paid a $250,000 fine, according to the Department of Justice, and will be sentenced in August. He faces up to 20 years in prison. Solis served in the House from 1993 to 2007. Legislation has already been filed to take his name off of a state-owned health clinic in Harlingen.

Former Rep. David McQuade Leibowitz, D-San Antonio, got spanked by the State Bar of Texas for failing to keep a client's funds in a separate account; he paid a fine and got a two-year fully probated suspension, according to the State Bar Journal.

Gov. Rick Perry appointed Ravi Shah of The Colony and reappointed Lilian Norman-Keeney of Taylor Lake Village to the Texas Commission of Licensing and Regulation. Shah is a certified building official and director of Development Services for the City of Carrollton. Norman-Keeney is mayor pro tem of the City of Taylor Lake Village and retired owner of the Norman Insurance Agency.

The governor also appointed:

• Sandra “Sandy” Kibby of New Braunfels to the Lower Colorado River Authority Board of Directors for a term to expire Feb. 1, 2017. Kibby is vice president of Wright Distributing Company Inc.

• Leslie Greco-Pool of Euless and reappointed Robert Massengale of Lubbock to the State Pension Review Board. Greco-Pool is a regional executive at Deutsche Bank’s Private Wealth Management. Massengale is a self-employed small business owner.

• Three members to the Health and Human Services Council for terms to expire Feb. 1, 2017. Kathleen Angel of Austin is executive director of global benefits and mobility for Dell Inc. Maryann Choi of Georgetown is chief medical officer of Harden Healthcare and an assistant professor at the Texas A&M University Health Science Center. Karen Harris of Lakehills is founder and CEO of Medicine for the Heart Ministries Inc.

Perry also reappointed Kirk Aquilla Calhoun of Tyler and David Woolweaver of Harlingen to the State Health Services Council. Calhoun is president of the University of Texas Health Science Center at Tyler. Woolweaver is a periodontist practicing at Valley Periodontal Associates.

Quotes of the Week

Sen. Steve Ogden, R-Bryan, in his closing remarks on the budget: "Outside groups who have no interest in this body, but have political agendas all over the place, have been able in my opinion to penetrate this body and divide us, and we are a weaker body for it."

Sen. Leticia Van de Putte, D-San Antonio, on the 1.25 percent across-the-board cut in the Senate budget that will take place if revenues fall short: "The promise is that the money is going to be there, and frankly, I dated guys like that."

Sen. Florence Shapiro, R-Plano, on public education funding in the budget: "The idea that we're not fully funding public education is one that we're going to have to agree to. ... Is it enough? Probably not. Is it devastating? Absolutely not."

Lt. Gov. David Dewhurst on getting a budget passed out of the Senate:"Whether I'm standing on my head or I'm standing up straight, I will get a budget passed out of here."

KIPP Academy co-founder Mike Feinberg on the success of that charter school's students, and KIPP's relative size, in the Houston Chronicle: "We've become a really tall midget."

Gov. Rick Perry, to a Fort Worth Star-Telegram question about why he didn't mention either George W. Bush or Barack Obama in his official statement on the death of Osama bin Laden: "I think, appropriately, we said thank you. If I had listed everyone engaged in the process, we'd have run out of paper."

Sen. Jeff Wentworth, R-San Antonio, who is trying to enact a campus carry law, explaining why universities' insurance rates won't go up: "The risk doesn't increase with guns on campus."

Rep. Sylvester Turner, D-Houston, to Republican House members who repeatedly voted down amendments offered by Democrats during the floor debate on the Railroad Commission bill: "Some of us are a little outnumbered. Can you at least spot us 30 [votes]?"

Rep. Larry Phillips, R-Sherman, to Rep. Jessica Farrar, D-Houston, on his concerns that Texas' "Choose Life" license plate could invoke a lawsuit, during the floor debate on the bill to create the specialty plate: "I am not worried about Planned Parenthood. If they want to file a lawsuit, they can do that."

Rep. Mike Villarreal, D-San Antonio and vice chair of the House Redistricting Committee, talking about Republicans with The Economist: "The elections accomplished what we were afraid they were going to try to accomplish by gerrymandering."

Rep. Joe Deshotel, D-Port Arthur, on the House floor when an amendment to a bill was proposed that he believed was in violation of a previous agreement: "I got a root canal this morning. I don't want a colonoscopy tonight."

Contributors: Julián Aguilar, Reeve Hamilton, Ceryta Lockett, David Muto and Morgan Smith

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Texas Weekly: Volume 28, Issue 18, 9 May 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) 716-8600 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 716-8611.