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John Whitmire
Sen. John Whitmire (D- Houston)

On Thursday, the Texas Senate overwhelmingly voted to roll back zero-tolerance discipline policies that disproportionately affect poor and minority students. Senate Bill 107 by Sen. John Whitmire (D- Houston) would give administrators more flexibility to deal with unruly students and require that public schools designate behavior coordinators to handle misbehavior. It passed 29-1.

“The bill allows administrators and teachers to work with youth, to hold them accountable and not criminalize them,” Whitmire told the Observer.

Texas’ Safe Schools Act of 1995 requires school administrators to expel students, or place them in a disciplinary alternative education program, for certain types of severe misconduct, such as possession of alcohol or weapons and public lewdness.

“The main objective is to stop mandatory expulsions for the unintentional behavior such as forgetting a small pocketknife, or a shotgun shell,” Whitmire said.

Whitmire laid out his bill on the Senate floor in a little more than a minute, and the Senate passed it in three minutes, about as fast as possible. The speedy passage, however, belies its potential impact.

Mary Mergler, director of Texas Appleseed’s School-to-Prison Pipeline Project, says reforming “zero tolerance” could greatly benefit Texas children, especially poor kids.

“We know from existing research that exclusionary discipline is associated with increased likelihood that students will drop out or end up in the criminal justice system,” Mergler said.

Research has shown that children growing up in poverty experience higher levels of traumatic stress than their more affluent peers. This stress can result in smaller brains, higher cortisol levels and overly reactive amygdalas. In other words, these students are at a physiological disadvantage when it comes to navigating the middle-class behavioral standards of public schools.

Whitmire’s bill also states that campus behavior coordinators “shall employ alternative discipline management techniques, including any progressive interventions.”

Mergler says that alternative discipline management techniques, such as restorative discipline and positive behavioral intervention and supports, are better for all students, and help them stay in school.

“The goal should be to keep students in school and in class,” Mergler said.

The bill now moves to the House for consideration.

Prison takeover - Reeves County Detention Center


The world’s largest for-profit prison has minimal oversight, overcharged the federal government by $2.1 million, arbitrarily punishes protesting inmates and suffers from severe understaffing, according to a report released Thursday morning by the U.S. Department of Justice’s Office of Inspector General.

Run by private prison company GEO Group, the Reeves County Detention Complex in Pecos houses nearly 4,000 federal prisoners, mostly undocumented immigrants serving sentences for drugs and immigration-related offenses. Over the last decade, Reeves has been rocked by riots, persistent complaints about inadequate medical care and allegations that prison officials use solitary confinement to punish inmates who complain. In 2009, Reeves was the site of two back-to-back prisoner uprisings after an epileptic inmate, Jesus Manuel Galindo, was found dead in his isolation cell. Galindo, his family and other inmates had repeatedly pleaded with GEO officials for better medical care.

The Reeves complex consists of three compounds. The Department of Justice investigated two of the three sub-complexes, which together hold about 2,400 low-security immigrant inmates.

Perhaps the most alarming finding is that the federal Bureau of Prisons (BOP) asked GEO Group to eliminate minimum staffing requirements for correctional officers, medical care providers and other personnel in its original bid for the facility. Not surprisingly, the prison was almost continuously understaffed from 2007 to March 2009, following two riots in late 2008 and early 2009 that did more than $1 million worth of damage. “BOP officials told us they removed these staffing requirements to achieve cost savings and grant the contractor flexibility and discretion to manage the staffing of the facility,” the report states.

“This audit confirms what we’ve suspected about the BOP’s contracts for private prisons for immigrants for many years,” said Bob Libal, executive director of Grassroots Leadership, a Texas-based group that opposes private prisons. “An extreme lack of accountability has created an unsafe and inhumane system of incarcerating immigrants in substandard private prisons. While immigrants suffer, unaccountable prison corporations are making big bucks off these contracts paid for by taxpayers.”

The private contractor providing health services at Reeves, Tennessee-based Correct Care Solutions LLC, also has persistently understaffed the prison, despite a requirement imposed by BOP in December 2010 that contractors maintain staffing levels of at least 85 percent of the contract requirement. Nonetheless, for three years, Correct Care failed to meet the 85 percent threshold more than 90 percent of the time. The report also found that the company has a “potential financial incentive” to maintain vacancies rather than fill positions at market rates, based on the BOP’s accounting methods.

A staff shortage in the Special Housing Unit—the solitary confinement unit where Galindo was found dead—was so severe that the BOP issued an emergency “cure notice” to GEO Group in September 2012, the report found. The BOP reviewed a video feed from July and August of that year and found that 47 of 70 required inmate counts were simply not conducted, that 30-minute irregular rounds were not consistently or completely conducted and that orderlies weren’t properly supervised.

The BOP saved an estimated $10 million by keeping staffing levels low.

The report states that correctional staff levels were boosted after the riots and that medical personnel have been added because of concerns raised by the Office of Inspector General during its investigation.

The audit also criticized GEO Group for arbitrarily sending inmates to an isolation unit called the “J-Unit.” Created in the wake of inmate protests in October 2013, the J-Unit is intended to isolate prison leaders who have been “found to be coercing other inmates to join demonstrations,” according to the report. (In a footnote, the authors state that they did not investigate the inmates’ demands for things like better pay and additional movement in the recreation yard.) After the demonstrations, prison authorities sent 364 inmates it considered ringleaders to Reeves’ Special Housing Unit (SHU), or solitary confinement unit, which is designed for only 210 people. To deal with the overcrowding, the prison converted a general housing unit into a kind of SHU-lite. Investigators found that in 9 of the 10 cases they looked into, the prisoners didn’t belong in the J-Unit by the prison’s own criteria.

In early 2015, the BOP renewed GEO’s contract for the third time.

State Rep. Geanie Morrison (R-Victoria)
State Rep. Geanie Morrison (R-Victoria)

The House State Affairs Committee considered legislation Wednesday night that would make sweeping changes to a legal process allowing minors to seek an abortion without their parents’ permission. Abortion rights advocates and legal experts warned the changes could endanger vulnerable young women.

Currently, if a woman under 18 can’t get permission from a parent for an abortion—often because of abuse or because her parents aren’t in the picture—she can seek a legal, confidential bypass from a judge. House Bill 3994 by state Rep. Geanie Morrison (R-Victoria) includes a menu of what she and supporters of the bill call “necessary reforms” to the bypass process, including increasing the burden of proof and limiting the counties in which cases can be heard. HB 3994 would also require every person seeking an abortion, regardless of age, to present a government-issued form of identification. Call it voter ID for abortion.

“The intent is improve the protection of the minor girl and ensure that parental rights are protected,” Morrison told the committee as she laid out her bill Wednesday.

Family lawyers who represent minors in bypass cases, however, told committee members that just the opposite would happen. They argued that Morrison’s bill would ultimately destroy the judicial bypass process set up by the Legislature in 1999.

“Even minors have a right to decide what they do with unintended pregnancies,” said Susan Hays, an Austin-based family lawyer and co-founder of Jane’s Due Process, which provides free legal services to pregnant minors. “The state can’t have an absolute veto over [judges’] decisions on these cases.”

Currently, a bypass application can be filed in any county in Texas, but Morrison’s measure would require the application be filed in a minor’s county of residence; a neighboring county, if her home county has a population of 10,000 people or fewer; or the county in which her abortion provider is located. While anti-abortion groups testified that current law essentially amounts to venue-shopping, opponents said it protects confidentiality, especially in rural communities.

“These young women need confidentiality,” Tom Ausley, a family lawyer based in Austin, told the committee. “They do not need to necessarily be in a situation where when they walk in a courtroom, the clerk knows who they are or the judge knows who they are,” Tom Ausley, a family lawyer based in Austin, told the committee.

Current law also requires judges to rule on bypass cases within 48 hours, or the bypass is automatically granted. HB 3994 would expand that period to five days. The legislation also increases the burden of proof from a “preponderance of evidence” to “clear and convincing” evidence—a standard used by 13 other states, Morrison said.

Finally, the minor seeking a bypass must appear in court under Morrison’s bill.

“We’re talking about ending a life, it’s a decision that cannot be reversed,” Greg Terra, president and lawyer with the Texas Center for the Defense of Life, told committee members Wednesday. “We’re talking about taking away the ability of parents to influence that decision. That ought to be a very high burden.”

When minors seek a judicial bypass, the reasons are often complex. Jane’s Due Process reports that in 2013, 321 pregnant teens reached out to the organization for legal help, information on the bypass process, or pregnancy options. Of those, 17 percent of teens who sought help through Jane’s Due Process reported that they had experienced sexual or physical abuse by a parent at home, and 37 percent feared being kicked out or disowned for being pregnant. Sixteen percent were orphans or had no way to contact a parent for consent to an abortion.

“When you deny vulnerable young women access to abortion, you’re forcing them into teen motherhood,” said Amanda Stevenson, demographer and researcher at the University of Texas’ Policy Evaluation Project.

HB 3994 also requires county clerks to report the location and outcome of each bypass case. Ausley and others raised concerns that doing so would jeopardize the safety of judges.

“I’m terribly worried that if this information is disseminated that judges would be in physical danger,” said Rita Lucido, a Harris County-based lawyer who has represented minors in bypass cases for 15 years.

The committee left the bill pending.

Dave Welch
John Wright
Dave Welch, executive director of the U.S. Pastor Council, addresses a group of pastors on the north steps of the Capitol Wednesday.

Gay rights advocates began sounding the alarm Wednesday after two anti-LGBT bills cleared House committees and another received a favorable hearing.

Kathy Miller, president of the Texas Freedom Network, said if LGBT groups and their corporate allies don’t work quickly to generate the type of backlash seen over a religious freedom bill in Indiana last month, it could soon be too late.

Miller made the statement on a day when separate House panels advanced bills that would bar county clerks from issuing same-sex marriage licenses and allow state-funded adoption agencies to turn away gay couples based on religious beliefs. The two bills, which breached a dam that had kept a record number of anti-LGBT measures at bay for the first 100 days of the session, now head to the Calendars Committee.

“My fear is that if the Indiana-style outrage doesn’t happen now, before these bills make it to the floor of the House, it will be too late, because the membership of the House will pass these bills, and then the Senate will fly them through, and Gov. [Greg] Abbott will have no choice but to sign them in his mind,” Miller said.

Miller and others said with the U.S. Supreme Court set to hear oral arguments on same-sex marriage Tuesday, moderate Republicans in the Legislature are feeling the heat from social conservatives.

“I feel like the Republican base is desperately afraid of the Supreme Court’s ruling on marriage this summer,” Miller said. “I think there’s a tremendous amount of pressure on the leadership in the House to pass anti-LGBT legislation. I think some of Speaker [Joe] Straus’ lieutenants are more likely to cave in to that pressure than others.”

The pressure from the right was palpable at the Capitol on Wednesday as scores of evangelical pastors from across the state gathered to lobby in support of anti-LGBT legislation. Republican Attorney General Ken Paxton addressed the pastors in a closed-door meeting, before dozens testified in favor of a religious freedom bill.

Dave Welch, executive director of the Houston-based U.S. Pastor Council, told the group they’re in a “tug of war” against business interests that oppose anti-LGBT legislation due to potential negative economic impacts.

Speaking on the north steps of the Capitol, Welch accused legislative committee chairs of “bottling up” anti-LGBT legislation, which he called “a hot potato that everybody’s terrified of … because of the massive amount of national counterpressure” in places like Indiana.

“Unfortunately, that’s what’s speaking right now,” Welch told the pastors.

Asked later whether his side can win the tug of war, Welch said, “Ask Goliath.”

“We’re not going to let the Texas Association of Business and [Executive Director] Bill Hammond or any other group sell their soul—they’re welcome to do that, we can’t stop them—but we’re not going to let them steal our freedom, and that’s what this is all about,” Welch told the Observer. “When big corporations … declare war on the church and war on religious freedom, we’re going to answer the call.”

Moments before the pastors gathered, the House Committee on State Affairs voted 7-3 along party lines to advance House Bill 4105, by Rep. Cecil Bell (R-Magnolia), which would prohibit state or local funds from being used to license or recognize same-sex marriages.

Among those voting in favor of the bill was Rep. Byron Cook (R-Corsicana), a moderate who chairs the committee and has come out in support of one pro-LGBT bill.

“For me, I believe in the sanctity of marriage between one man and one woman, so that’s why I voted for it,” Cook said.

Rep. Cecil Bell
Rep. Cecil Bell

Bell compared the Supreme Court’s impending decision on same-sex marriage to Roe v. Wade and said Texas doesn’t have to spend tax dollars to support it. He also suggested the state could choose not to heed the ruling because the court is not considering a Texas case.

“Unless it’s on a Texas case, states have a level of autonomy,” he said.

Asked about potential backlash from the business community over anti-LGBT legislation, Bell called it a “non-issue.”

“I think the vast majority of Texans and Texas businesses will continue to function exactly like they function today,” Bell said. “We produce the vast majority of the gasoline across the country. I don’t see folks not using gasoline.”

The Texas Association of Business, the state’s powerful chamber of commerce, has come out against two proposed religious freedom amendments that critics say would enshrine a “license to discriminate” against LGBT people in the Texas Constitution. But the TAB has remained silent on the bills that cleared committee Wednesday.

“We have not taken a position and doubtful (with timing of the session) that we will be able to,” TAB President Chris Wallace said in an email. “We will continue to monitor the business-related implications.”

Late Wednesday, the House Committee on Juvenile Justice and Family Affairs voted 6-1 to advance House Bill 3864, by Rep. Scott Sanford (R-McKinney), which would allow state-funded child welfare providers to discriminate based on sincerely held religious beliefs.

Meanwhile, dozens of pastors gave hours of testimony in support of House Bill 3567, also by Sanford, which he said is designed to prevent clergy from being forced to perform same-sex marriages. Critics of HB 3567 say it’s so broadly written that it could allow any religiously affiliated organization—from hospitals to universities and homeless shelters—to discriminate against LGBT people.

Chuck Smith, executive director of Equality Texas, said he believes Wednesday was a coordinated day of anti-LGBT legislative activity in advance of marriage arguments at the high court. Equality Texas representatives have consistently expressed confidence they can kill all of the more than 20 anti-LGBT bills introduced in the 84th Texas Legislature.

“That was never prefaced with the belief that we could stop every bill from getting out of committee,” Smith said. “I still think that’s achievable, but to do that is a day-to-day battle that sometimes involves changing strategy from day to day.”

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payday loan
Courtesy of Taber Andrew Bain via Flickr


A year and a half after the Observer documented hundreds of examples of payday loan companies using the criminal justice system to pursue unpaid loans, state regulators have taken action against one company. In December, the Office of Consumer Credit Commissioner ordered Ohio-based Cash Biz to pay a $10,000 fine and provide more than $16,000 restitution to 51 customers the company filed criminal complaints against. In a legal filing obtained by the Observer, Cash Biz, which has 16 Texas locations, agreed that it had “referred its customers for prosecution based on an erroneous belief that a person commits a crime by issuing a check that is later dishonored.”

State law prohibits payday and title loan businesses from even threatening borrowers with criminal action, except in unusual circumstances. And the Texas Constitution states plainly that “no person shall ever be imprisoned for debt.” Nonetheless, many local DAs and justices of the peace serve as de facto debt collectors for the industry, and some people with small payday debts have ended up in jail. Payday and title lenders in Texas can effectively charge unlimited fees for loans, which often carry APRs of 500 percent or more. In December, Texas Appleseed released a report documenting more than 1,500 criminal complaints filed by 13 different payday loan companies since 2012. Many resulted in fines, arrest warrants and even jail time.

Eamon Briggs, assistant general counsel with the Office of Consumer Credit Commissioner, said this was the first time the agency had penalized a company for the practice.

“This certainly appears to be a growing trend and we’re working to make sure our licensees know they can’t be making these referrals unless they have specific concrete evidence of fraud, forgery or other criminal conduct,” Briggs said. “It’s simply not permissible or within the intent of this prohibition to allow [payday and title lenders] to make referrals and simply rely on the DA to decide whether or not there are merits to the claim. We’re working to make sure everyone knows that this is not an acceptable practice.”

Briggs said OCCC asks lenders during an examination process whether they rely on the criminal justice system to collect on bad debt. But “people don’t always answer that question during the examination process truthfully.” The agency relies largely on consumer complaints and information supplied by consumer advocacy groups like Texas Appleseed to catch violations.

Ann Baddour, of Texas Appleseed, said she was pleased that OCCC had taken action against Cash Biz but said the punishment fell short.

“It’s not sufficient because it doesn’t address any of the detrimental impacts it had on these individuals,” she said. “It doesn’t expunge that charge from their record” or fix damaged credit scores. “It’s basically a refund at value, there’s no additional penalty.” It also doesn’t consider how much Cash Biz might have gained financially from threatening customers who made payments directly to the company but not a DA’s office.

“It does seem like me that it’s not a sufficient penalty to create a disincentive for this behavior,” Baddour said.

OCCC says it’s looking into 13 other payday companies documented by Texas Appleseed as filing criminal complaints against customers. But despite the attention by regulators—not to mention the fact that the practice is illegal—it continues.

The agency and consumer advocates want the Legislature to clarify, again, that criminalizing payday debt is not allowed. Several bills would do that but only one—Senate Bill 1650 by Sen. Kevin Eltife (R-Tyler), considered the weakest—has even gotten a hearing. House Bill 3058, by Rep. Helen Giddings (D-Dallas), would put the prohibition in the Penal Code and allow both consumers and the Texas attorney general to sue a wayward lender.

Giddings says her measure is needed to “protect citizens that are being taken advantage of by these predatory lenders.”

But even something that simple, and relatively uncontroversial, is difficult to move through the Legislature. The Giddings bill is not among a handful of consumer loan bills being heard by the House Investments & Financial Services Committee on Wednesday. Lawmakers seem loath to touch anything that has to do with payday lending after back-to-back sessions that featured nasty, and ultimately unsuccessful, efforts to bring any regulation to the $5 billion industry.

“There’s not a desire to pass any meaningful payday bills” this session, said Baddour.

84th Texas legislative session
Cesar Garza via Flickr

We have under six weeks to go in the 84th Legislature, and the House and Senate haven’t really started to grapple with the most substantial areas of disagreement between them.

For a special session to be avoided, the two chambers must quickly reconcile their differences over the budget and pass enough of Gov. Greg Abbott’s priorities for the guv to feel like he won. In case you forgot, Abbott has tasked the Lege with approving ethics reform, tax relief, university research funding, pre-K and transportation funding, all of which are in varying states of trouble.

So, how are things going, anyway?

1) The Senate has been slow to pass bills, but it has been especially slow to pass House bills. State Rep. Dennis Bonnen (R-Angleton), who effectively speaks for Speaker Joe Straus, has certainly noticed this. And, boy, is he pissed.

On Monday, the Senate passed a big border security package, Senate Bill 3. Lt. Gov. Dan Patrick and his leadership team chose to pass the Senate bill instead of picking up a similar measure from the lower chamber, House Bill 11, which passed the House all the way back on March 19. If the Senate had taken HB 11 and altered it, the two bodies could have worked out a compromise in conference and been done with it. For whatever reason, Patrick wanted to pass his bill first. Bonnen let loose to the San Antonio Express-News:

“It’s surprising and disappointing that the lieutenant governor wants to play political games with the No. 1 issue in the state of Texas, which is securing the border,” Bonnen said in an interview Tuesday. “It shows the lieutenant governor plays politics with anything and everything.”

Then he did the same to the Texas Tribune. “For some reason, Dan Patrick, the lieutenant governor, wants to bring the same bad Washington, always-politically gaming concepts to Austin instead of solving problems,” Bonnen said. “[Patrick] sat and stared at House Bill 11 for 32 days.”

Patrick’s office declined to give a statement to the press. House and Senate leadership frequently take shots at each other—but as the remarks sharpen and the brawl moves into the public eye, it’s something to watch.

2) The Senate is not getting along with the House. How is the Senate getting along with the governor? For months, Patrick has been hugging Abbott with all the force he can muster, in the way you’d only do to your worst enemy. They’re friends, right?

Early in the session, Patrick appointed a grassroots advisory board to help him keep in touch with his base—the Republican primary voters who made him lite guv. Great idea! This motley collection of tea party leaders—JoAnn Fleming, Julie McCarty and Katrina Pierson among them—would chill out to the side and occasionally let Dan know how they felt about big bills. Harmless fun, really.

On Tuesday, they began circulating a letter announcing that they “stand united in strong opposition” to major pre-K bills—House Bill 4 and Senate Bill 801, specifically. (HB 4 passed the House, but the Senate as a whole has taken no action on pre-K yet.) The bills, which contain policy proposals wholeheartedly endorsed by Abbott, were godless monstrosities that had to be killed at any cost, Patrick’s best friends said.

Texas already has plenty of challenges with education (K-12) because of weakened familial bonds in society without the State of Texas encouraging parents to turn their young children over to pre-schools. […] We are experimenting at great cost to taxpayers with a program that removes our young children from homes and half-day religious preschools and mothers’ day out programs to a Godless environment with only evidence showing absolutely NO LONG-TERM BENEFITS beyond the 1st grade.

The letter continues:

The early removal of children from parents’ care is historically promoted in socialistic countries, not free societies which respect parental rights. The Welfare State has resulted in the breakdown of the American family. We need to encourage the formation of strong families, not remove the children from their homes and parents’ care at ever earlier ages.

Patrick’s office told the press he had no idea the letter was coming out. Nonetheless, the advisory board announced itself as representing the lieutenant governor: The tea party activists even mocked up a letterhead with an icon reminiscent of the state seal at the top.

So Patrick’s people are telling him that one of the governor’s top priorities for the session is strictly verboten. If you’re Patrick, what do you do? If you’re the governor, how do you act now to bolster the chances of it passing?

3) What’s our governor up to, anyway? By now, Perry would have locked these guys in a duck blind and passed the bills himself.

Ah, the magic of representative government.

E.V. Spence
Jen Reel
E.V. Spence Reservoir in West Texas nearly empty in 2011

I think I know why Rep. Rafael Anchia (D-Dallas) chose to hold his second climate change hearing on 4/20 instead of Earth Day, which is on Wednesday: You’d have to be high to think this Legislature is going to do anything about climate change, no matter how measly the proposal.

On Monday morning, Anchia’s committee, International Trade and Intergovernmental Affairs, spent a few hours discussing a trio of climate-related bills. Democrats in the Lege have for the past few sessions pretty much given up trying to get anything passed directly tackling carbon emissions, much less debating climate science. Instead, they’ve shifted focus to adaptation, planning and Texas-based solutions to federal efforts to cut greenhouse gases.

State Rep. Rafael Anchia
Beth Cortez-Naveal
State Rep. Rafael Anchia (D-Dallas)

It used to be that Republicans in the Legislature would offer limp attacks on climate science. Now, they sit and listen politely as a parade of scientists, environmentalists, energy experts and ordinary citizens urge the Lege to do something, anything. Then they say little, and do even less.

Anchia opened the hearing with invited testimony from Baroness Bryony Worthington, who Skyped in from the U.K. A member of the House of Lords, Worthington spent a half-hour explaining the European Union’s carbon market, noting that the European cap-and-trade system had been devised in part on successful American pollution trading systems of the type roundly rejected by Congress in 2009.

Anchia, at least, seemed engaged.

The committee then turned to the legislation. A bill by Rep. Eric Johnson (D-Dallas) would direct certain state agencies to consider water availability, weather variability and climate change in their planning. The Texas Water Development Board might, for example, want to grapple with the likelihood of worsening droughts. The Texas Department of Agriculture might want to know if citrus production could be viable in San Antonio some day. The legislation, Johnson said, is “agnostic” about causes. “It just flat-out doesn’t matter what you really believe about the causes of the changes in our water availability, the changes in our weather, the changes in the climate.”

The five Republicans on the committee had virtually nothing to say about the bill, one way or the other.

Most attention focused on Anchia’s proposals to get Texas to at least acknowledge that greenhouse gas cuts are coming, whether we like it or not.

“The Pentagon is modeling for climate change,” Anchia said. “The oil and gas industry is modeling for climate change; the insurance industry is modeling for climate change; the federal government is modeling for climate change; NASA is modeling for climate change. And Texas is out of the loop.”

Anchia’s HB 2080 would direct the Texas Public Utility Commission to come up with a plan to meet the EPA’s Clean Power Plan, the major carbon-cutting rules announced last year by the Obama administration. Under the Clean Power Plan, Texas would likely have to shutter old coal-fired power plants while expanding renewable power and energy efficiency programs. The fossil fuel industry and GOP leaders hate the thing and have launched an aggressive legal effort to strangle the plan in its cradle. If the rules do go into effect, states would have broad latitude in the way they could achieve the greenhouse gas reductions, but failure to act would likely result in the feds taking over.

“The question that HB 2080 discusses is, ‘Who do we want to write the plan?’” Anchia said. “Do we want Texas to write our own customized plan that takes into account details of Texas’ competitive energy market, Texas being a global leader in energy? Or do we want the federal government to apply a one-size-fits-all for Texas?”

An interesting question but not one that the Republicans on the committee engaged with. That was left to Mike Nasi, an attorney with Balanced Energy for Texas, an industry group representing fossil fuel interests. Nasi seemed prepared to litigate the whole matter in front of the committee, calling the plan unprecedented, illegal and highly unlikely to stand judicial scrutiny.

March 2015 temperature anomalies
March 2015 was the third-hottest March on record

A tag team from the corporate-funded Texas Public Policy Foundation went even further. The Clean Power Plan is “breathtakingly unconstitutional” said Leigh Thompson, an energy analyst with the foundation. It “reduces states to nothing more than a marionette on federal strings.” And “the likelihood of statewide brownouts becomes all but certain.”

But lest you think the conservative plan for climate change is do-nothing, Thompson’s tag-team partner, Bill Peacock, had an answer.

“If people are really concerned about global warming, history has proven that the marketplace, the free market is the best way to achieve that, not government action.”

Meanwhile, back on Planet Earth, NASA reported last week that this was the third-hottest March on record, the hottest January-to-March of any year on record, and 2015 is on pace to be the hottest year on record.

State Rep Phil King
State Rep. Phil King (R-Weatherford)

The Legislature took another step closer to emasculating the Public Integrity Unit and devolving its responsibilities to the Texas Rangers and local district attorneys this week. On Tuesday, House Bill 1690, authored by state Rep. Phil King (R-Weatherford), passed the lower chamber 95 to 49, on a nearly party-line vote.

similar Senate bill has already passed, making it likely that legislation will reach Gov. Greg Abbott’s desk. It’s the latest installment in a long effort by Republicans to weaken the PIU, which operates out of the district attorney’s office in deep-blue Travis County.

Until Gov. Rick Perry defunded the PIU in 2013, precipitating both this debate and his own indictment at the hands of a special prosecutor, the way to go after members of state government accused of ethical violations was imperfect, but pretty simple. If a servant of the people was up to something shady, you could take it up with the PIU. They could investigate, and sometimes prosecute.

The PIU is perhaps best-known for the Tom DeLay case, which garnered a tremendous amount of ire from Texas Republicans. But most cases of corruption are not especially partisan in nature. For example, when officials in charge of the Cancer Prevention Research Institute of Texas (CPRIT) got caught improperly awarding grants, it was the PIU that took the lead, and secured the only conviction to come out of the fiasco.

But now the House and Senate are set to gut the PIU, and substitute a procedure of their own design. The plan legislators are generating is no less imperfect, but it has the additional vice of being a great deal more complicated. King’s bill and its Senate counterpart create a number of variegated pathways for the prosecution of state officials—allowing some state officials to be tried in their home counties, and shunting responsibility for investigating ethical lapses to the Texas Rangers, a law enforcement agency overseen by appointees of the governor.

The complication is part of the design, King told the House in a floor debate on Monday. In the Public Integrity Unit, King said, “we’ve concentrated too much power in one person.” To fix that, “you diffuse that power to as many people as possible.”

But sharing responsibility for prosecutions among several different counter-parties means that there’s also more opportunity to kill or bury a case. For one example of how that might work, Ken Paxton’s admitted violations of state securities law—a potential felony charge—were almost buried by his hometown prosecutor, Collin County DA Greg Willis. A close friend and former business partner of Paxton’s, Willis was apparently ready to sit on Paxton’s case file until the statute of limitations expired this summer, at least until a local grand jury asked for the case file the PIU sent Willis.

King’s plan is better in this regard than the plan adopted by the Senate. King adopted an amendment by state Rep. Chris Turner (D-Ft. Worth) that attempts to force DAs with prior relationships to recuse themselves from ethics cases, and a number of other amendments from Democrats that sought to defend against conflict of interest. The Senate’s plan doesn’t do any of that. But the House version still effectively creates a special new class of defendants, which includes legislators. For them, the law applies differently than it would anyone else.

State officials who break the law have, in the past, been charged in the county where they committed a crime, or in Travis County, which contains the seat of state government. In the future, a first-term governor or state official who breaks the law could find himself charged (or not) by a prosecutor in the county where they last filed to run for office. (After they’ve served one term, they’d presumably live in Travis County and so be tried there—though state Sen. Donna Campbell has proposed a constitutional amendment to allow some state officeholders to live wherever they want.)

Imagine, for the sake of argument, Agriculture Commissioner Rick Perry taking a big, fat bribe in 1992 and being charged by a high-powered legal team in… Haskell County, population ~6,000. It doesn’t seem optimal.

And though ethics cases could hypothetically could be ignored or weakly prosecuted by political allies of legislators and state officials, the opposite could be true, too, as some Democrats pointed out in Monday’s debate. They could also be over-prosecuted by a hometown DA who is a political rival of a legislator. What happens if the Texas Rangers drop a weak criminal case in the lap of a DA whose friend is about to challenge the defendant in a primary or general election?

These questions might never come up. The DAs might prove themselves faultlessly scrupulous defenders of the public interest. But in designing a system to hold elected officials accountable, it makes sense to consider the extreme cases and structural weaknesses that could manifest themselves over time: In rushing to replace the PIU, legislators don’t appear to have given these questions a lot of thought.

When a defendant or plaintiff moves a case to get a friendlier judge or jury hearing it, it’s derisively referred to as “venue shopping.” Right now, a whole system of government is engaging in pre-preemptive venue shopping, and it’s more or less bidness as usual.

What do you call it when the Texas Legislature scraps a decades-old system that aimed to keep crooked pols accountable with a minimum of conflict of interest and replaces it with one that seems to be have been done-up on a dry erase board about an hour beforehand?


Mary Gonzalez
Rep. Mary Gonzalez (D-El Paso)

It’s illegal in Texas to have sexual contact with a person under 17.

However, if two consenting teens are within three years of age and of the opposite sex, state law provides an “out” for the older party—an affirmative defense to the charge of indecency with a child, otherwise a second-degree felony.

The same affirmative defense is not offered to teens of the same sex, meaning LGBT youth can face prison time for consensual sexual contact, including heavy petting.

It’s unclear whether an LGBT teen has ever been charged under the statute, but House Bill 71, by Rep. Mary Gonzalez (D-El Paso), aims to prevent it from happening in the future. The bill would remove five words—”and of the opposite sex”—from the affirmative defense provision.

“We are trying to make sure all teenagers are treated equally,” Gonzalez told the House Committee on Criminal Jurisprudence during a Monday hearing on HB 71. “This is about policy and not politics, and I know sometimes in this state we struggle to be supportive of LGBT issues, but this isn’t about LGBT issues. This legislation cleans up inconsistencies in statutes that impact teens in some very devastating ways.”

Will Francis, government relations director for the National Association of Social Workers, testified in support of the bill. Francis said currently, a social worker who learns of an intimate same-sex relationship between teens could be required to report it to authorities.

“We believe that’s a discussion that should happen between parents and their children,” Francis said.

Rep. Joe Moody (D-El Paso), a committee member and co-author of HB 71, said he believes if a teen were charged under the current statute, it would be struck down as unconstitutional.

“Why don’t we just save ourselves the trouble? Let’s fix it,” Moody said. “This isn’t a a political deal. This is just a fairness and policy issue.”

The bill cleared the same committee two years ago but never made it to the House floor. Sen. John Whitmire (D-Houston) has introduced a companion this year in the Senate.

Dan Patrick
Lt. Gov. Dan Patrick

Lt. Gov. Dan Patrick has championed school voucher legislation since he entered the Senate in 2007, comparing the effort to the civil rights struggle. After numerous defeats during past sessions, Patrick’s voucher crusade came a step closer to reality Monday as the Senate passed Senate Bill 4, by Sen. Larry Taylor (R-Friendswood).

The bill passed 18-12 on mostly partisan lines. Only one Democrat voted for the bill, Sen. Eddie Lucio (R-Brownsville), while two Republicans voted against it, Sen. Konni Burton (R-Colleyville) and Sen. Robert Nichols (R-Jacksonville).

Taylor’s bill would create scholarships for mostly low-income students to attend private and religious schools. Under the measure, private businesses would receive a tax credit for funding the scholarships. The bill is similar to one proposed by Patrick in 2013, which died in committee.

“This is not a voucher bill,” Taylor said during the debate.

Critics of the proposal, though, say tax credit scholarships are simply vouchers by a different name. Sen. Jose Rodriguez (D-El Paso) and Sen. Jose Menendez (D-San Antonio) voiced concerns that tax credit scholarships would funnel money from public schools to private and religious schools, which are not required to administer state tests or meet state accountability standards.

Rodriguez offered an amendment that would hold voucher-funded private schools to the same accountability standards as public schools. Menendez offered another measure that would prohibit private schools from discriminating on the basis of race or sexual orientation. Both amendments were defeated.

Taylor and Patrick have framed the voucher debate in terms of giving low-income children a chance to escape failing public schools. School choice, they say, will lead to competition between schools and better educational quality across the board.

“If you are the working poor, and you’re in the inner city, and you take a bus to work, you can’t live in the suburbs, and you don’t have money for private school, why are you denied an opportunity for your child?” Patrick said in a January Texas Tribune interview.

Rev. Charles Johnson, director of Pastors for Texas Children, a public school advocacy group, said the push for vouchers is more a fight for money than improving educational opportunity for poor students.

“If this were about kids, we’d target those 70 or 80 struggling schools out of 8,500 public schools and we would give them the resources they need to succeed,” he said. “The Legislature consistently refuses to do that.”

Despite making progress in the Senate, critics say vouchers will face an uphill battle in the House.

During the House budget debate three weeks ago, Rep. Abel Herrero (D-Corpus Christi) withdrew an amendment that would have banned spending public money on private school vouchers. Herrero said the measure was unnecessary because vouchers would not pass in the House.

“For all intents and purposes vouchers are dead in the House,” Herrero said.

Patrick proved Monday he could guide vouchers through the Senate. It remains to be seen if the House can do what has proved impossible for decades: Get a voucher bill to the governor’s desk.

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