The Texas Observer

Kudos to Col. Thomas Davis, director of the Texas Department of Public Safety, that he didn’t insult our intelligence with the old I’m-retiring-to-be-with-my-family line. Instead the statement that went out this afternoon simply said:

“After 43 years and 9 months with the Texas Department of Public Safety, I am retiring on Aug. 31, 2008.”

Davis became director of the DPS in 2000. The resignation won’t become official until the DPS Commission meets on Thursday. Nor will we likely have an inkling until then who might replace him.

Those in the media will probably blame fallout from the fire at the governor’s mansion and the browbeating Davis received from legislators at a June 24 public hearing of the Sunset Advisory Commission as reasons why he stepped down.

I have my doubts.

If the mansion fire was a DPS error, the fault likely did not reside with Davis. Yes the DPS did not have sufficient staff at the mansion. But one has to wonder if troopers were pulled off the mansion detail to accompany the governor as he gallivanted around Europe on the taxpayer’s dime. We will never know since DPS does not comment on the governor’s security. Another, perhaps more likely, reason why there was only one trooper at the mansion has to do with Operation Border Star, Perry’s get-tough on the border initiative. It is now apparently standard practice to send troopers down in squads to patrol the border area, stretching an already undermanned agency.

The Sunset Review found all manner of problems at the DPS, including the aforementioned shortage of officers. This is less Davis’ fault than the demographics of an aging population and a very young one without much in between. It also doesn’t help that there is fierce competition for officers from the border patrol and the military. The feds pay more. The review also found fault with DPS’ handling of driver’s licenses. The logical solution to this would be to spin off this non-law enforcement responsibility as a stand alone or move it to another agency, say TXDOT. DPS Commission Chairman Alan Polunsky made it clear that he would never agree to such a move.

Polunsky is not waiting for the Sunset review process to play itself out over the next legislative session. In this way, the reforms underway will not be widely disseminated and publicly debated before implementation. Instead there appears to be a still-largely secret plan for DPS. This plan may have played a role in Davis’ departure.

To begin to understand what is underway, read Perry’s 2005 homeland security plan authored by Steve McCraw. The plan calls for a statewide intelligence service. This state intelligence service is to focus on intelligence gathering and counter-terrorism investigations. TDEX, the governor’s database, was a piece of this plan.

Polunsky referred to this obliquely at the Sunset hearing, when he said that the commission will “be directing the department to extend into other areas as we go forward.”

I called the chairman the following day and invited him to expand on his remarks. While insisting that “nothing has been decided,” he admitted that “there is probably going to be some movement in that [intelligence] direction.”

A consultant will look at the agency from top to bottom before changes are instituted.

Then there is the cauldron of personalities that can be DPS.

There has long been a rumor of tension between the graduates of the so-called class of ‘77. That class included Kent Mawyer, chief of DPS’ criminal law enforcement division, current DPS Assistant Director David McEathron, and Perry’s Homeland Security Director McCraw. While Mawyer and McEathron scaled the hierarchy at DPS, McCraw, an El Paso native, left the agency in 1983 to join the FBI as a special agent. We’ve heard McCraw and his former DPS colleagues don’t always get along.

Does McCraw hope to head this new intelligence service/state police? Are his former classmates troubled by the changes under discussion? Did Davis’ efforts to mediate the potential conflict fall flat? We don’t know. Was the rush to make changes to DPS before the Legislature convenes in January a factor? Hard to say.

We will try to get some answers to these questions in the days ahead. In the meantime, Davis had a very tough job that he did quite well. It’s a shame for Texas that he is stepping down.

The Texas Public Policy Foundation hosted the “Mission Redefinition at the Youth Commission” policy primer, June 25, to discuss past legislative reforms, outline priority issues facing the ’09 legislature, and determine the best future role for the TYC.

The juvenile justice experts, officials and advocates who spoke at the primer shared a common belief that, in order to reduce the more than 50 percent recidivism rate of Texas youth offenders, there must be a move to smaller, regionalized TYC facilities, an increase in community-based programs, and expansion of state mental health services.

“While we’ve made improvements, we have a whole long way to go,” said Richard Nedelkoff, TYC conservator. “The TYC population needs to decrease, but the more important thing is, we have to build up the other end, reintegration and community-based programs.”

The capacity crowd ranged from conservative to liberal organizations. The fact that the conservative TPPF hosted the meeting may indicate that this path forward for juvenile justice reform has bipartisan support.

Rep. Jerry Madden, House Committee on Corrections chairman, kicked off the discussion by evaluating the SB 103 reforms. Madden said that, while the bill resulted in some significant achievements, such as increases in TYC oversight, there were also significant failures. The most notable, he said, was the inability to reduce the state’s high recidivism rate.

There was much talk of transitioning from large, rural TYC detention centers to smaller, urban facilities, which would keep youth offenders closer to their families, increase community involvement and allow for specialized treatment.

Mike Griffiths, executive director of Dallas County Juvenile Probation, presented a model outlining these costs, and though it may pay off in the long run, this change would be a big expense for urban counties to absorb. According to Griffiths’ model, a 20-month rehabilitation cycle of 216 juvenile offenders would cost a county $11 million.

Along with the regionalization of facilities, more community-based programs are needed to keep youth integrated in society. Joella Brooks, deputy executive director of Southwest Key Programs, said that keeping youth in the community and including the families of offenders in treatment programs are the key components of successful rehabilitation.

Nedelkoff said the lack of community-based programs, like halfway houses, makes it difficult to reintegrate youth into the community and increases the length of offender stays at TYC.

Fundamental to improving the juvenile justice system are broader state mental health reforms, which could reduce the number of youth entering TYC facilities. Because Texas mental health services are unable to keep up with the state’s growing population, many youth in need are turned away for lack of available beds. As a result, they often end up at TYC instead.

Griffiths said he hears families say they were told to “get their child arrested so they can get mental health treatment.”

“I was not trained as a mental health counselor, but that is what we’ve become,” he said.

Nedelkoff said meeting the needs of youth with mental health issues is a nationwide problem that has haunted him in every state he has worked in throughout his career 29-year criminal justice career.

Hamlin attorney Isaac Castro, the Republican running against state Rep. Joe Heflin (D-Crosbyton) in House District 85, has been accused of fraud, breach of fiduciary duty, and negligence in a complex lawsuit in Stonewall County, the Observer has learned. The litigation centers around two brothers, John and Bob Denison, who have been fighting for a decade over their mother’s estate, which includes a 6,200-acre West Texas ranch, oil and gas royalties, and an historical courthouse in the ghost town of Rayner. As probate matters often do, things have gotten nasty between the Brothers Denison. (Read the suit. Warning: large .pdf file.)

Bob accuses John of driving the estate into insolvency and profiting off illegal transactions, including the secretive sale of the ranch to T. Boone Pickens, the legendary Texas oilman-turned-water-baron. Castro, who served as John’s attorney, was added as a third party defendant to the suit in December 2006.

The suit claims that Castro “unlawfully aided” Brother John in exploiting the estate for personal gain. For example, Castro allegedly helped John obtain a loan from the Hamlin National Bank (Castro was also acting as an agent for the bank) backed by Bob’s half interest in the estate. At the time, the estate owed delinquent property and federal taxes and was subject to a federal lien. Castro “facilitated [John Denison’s] fraud and breach of fiduciary duties” and “collected attorney fees, or benefited in some other disguised manner, such as commission or property,” the suit states.

In a statement to the Observer, Castro said: “It is unfortunate that in Texas today people can still file frivolous lawsuits with no legal justification. The fact that I represent my client vigorously and with due diligence should never mean I should be party to this frivolous lawsuit. This is yet another reason why I am running for state representative, because we need thoughtful legislators who will work to bring additional lawsuit reform to our state’s honorable legal system.”

In a court filing, Castro argues the claims against him are “without merit” and “brought for the purpose of harassment.” Specifically, Castro complains in the filing that the “allegations are so general” that he does not have “fair notice of the claim.” He asks the judge to throw the suit out.

(Note: a second suit -titled 4848 Aspermont LTD v. Alamo Title Company, et al - in which Castro is also named as a defendant was filed in Dallas County in May. The Observer has not been able to obtain a copy of the suit but sources say it is related to the Denison case.)

The outcome of the Castro-Heflin match-up will be pivotal for control of the House. Reached by phone today, Rep. Heflin - an attorney himself - said he had no plans to make the lawsuit an issue in the race at this point.

Question: What all do we know about these 16 propositions on the ballot Nov. 6?

Answer: the big bond props (4,12, 15) are unusually expensive; Prop 4 is a little too prison-friendly; and Prop 11 would make certain votes in the Texas legislature a matter of public record.

We have also established that most of the time whole slates of these amendments to the Texas Constitution pass. Every once in a while, a proposition pisses off enough people that it manages to fail, but it doesn’t happen often.

Question: Since damn near all of these will pass, what do their proponents say they will do?

Answer: There are a few slam-dunks left on the table. There’s Prop 2, which provides bonds for ‘college access’ loans — loans that are usually repaid, and which otherwise wouldn’t be available, particularly since they are not reserved for need-based aid.

Propositions 5, 6, and 8 fit into this ’slam-dunk’ category. Five will allow small towns to use tax breaks to grow their own downtown districts. Six exempts cars from the property tax if they are also used personally. And Eight would make sure homeowners get a paper copy of a home equity loan agreement before borrowing. Like I said, these are pretty simple.

Prop 9, I think, is also a likely yes. Nine will give 100 percent disabled veterans a 100 percent exemption on their property tax. This one is going to pass like crazy.

Proposition 16 has just as much merit, but it may fall victim to its price tag. On the ballot, it will read:

The constitutional amendment providing for the issuance of additional general obligation bonds by the Texas Water Development Board in an amount not to exceed $250 million to provide assistance to economically distressed areas.

The prop allegedly helps Texans in rural and poor areas get modern water and sewer infrastructure. It’s hard to argue against that. But the big figure could pose problems.

Question: What about the props you haven’t mentioned?

Answer: ah, yes, you mean Props 7, 13, & 14. Well, hell. You never know when to expect the next prop pop quiz.

Question: What proposition on the November ballot will most affect the Texas Legislature?

Answer: That would be Proposition 11, authored by Rep. Dan Branch (R-Highland Park). This is how it will appear on the ballot:

The constitutional amendment to require that a record vote be taken by a house of the legislature on final passage of any bill, other than certain local bills, of a resolution proposing or ratifying a constitutional amendment, or of any other nonceremonial resolution, and to provide for public access on the Internet to those record votes.

This amendment has ‘open government’ written all over it, and as Branch says, “open government is akin to motherhood and apple pie.”

Currently, what votes are recorded in either body of the Texas legislature are governed by the rules of that body. In effect, there’s no guarantee that the public has a right to know how members vote. Although in the House any member can call for a record vote. Prop 11 would write it into the Texas Constitution.

There is some consternation over the fact that these record votes will be mandated — that is, the big board in the House will have to light up, the Senate’s scribes will have to count heads a lot more — but only on final passage. Anybody who has examined a full session’s journals knows that most final passage votes (on third reading) are non-controversial and lopsided. The real horse-trading is done on the first two votes. Lawmakers have as of yet balked at mandating that the all-important second reading vote be public.

Some have raised the issue of the cost of every record vote, but Branch says that argument does not hold water.

“I found the dollar amount to be one of the weakest arguments,” Branch said. The cost is minimal, but it will cause a lot more late hours in the proofreading rooms of the journals.

Branch said the Texas Legislative Council has estimated that the average time between the Texas Speaker’s call for a record vote and the coming down of the gavel is 20-45 seconds — a far cry from D.C.’s 20-minute window.

“At some point it gets back to the larger issue,” he said. “The benefit of having an engaged citizenry… outweighs (the cost issue) by a country mile.”

Branch says the point of Prop 11 is to get a record vote on all successful bills.

“I just didn’t want anything to ever leave a chamber without a record,” he said. He also noted that all bills require a record vote to get out of committee. And, Branch says, one can always go farther in pressing for open government. He says the ‘final passage’ approach is reasonable and won’t unduly change the amount of time taken up by voting.

“The time argument has some meaning if you materially increase the time taken up,” Branch said, by holding more record votes. But, he said, he intends to sit down with Parliamentarian Terry Keel and discuss ways to facilitate voting by members — through technology and process.

Branch said he did not want to speak for the Texas Senate, but Prop 11 would have a binding effect on both houses.

My opinion? The journals, vote-counters and webmasters better get ready, because this baby is likely to pass.

One of the key battlegrounds in the fight to see who will be the next speaker of the Texas House is in the districts of the ‘Craddick D’s‘ — that’s shorthand for the dozen or so Democrats that openly supported Tom Craddick (R-Midland) in his struggles to hold onto the speaker’s chair in the last regular session. Democratic activists have had quite a bit of success deposing Craddick D’s in the past. Think Ron Wilson, Al Edwards, Glenn Lewis, and Jaime Capelo.

One locus of the action this primary cycle will be the South Texas border county of Hidalgo, where two Hispanic Craddick D’s have strong challengers. The county is split in two: District 36, that hugs the border with Mexico and incorporates the Valley cities of Hidalgo, Mission, McAllen, and Pharr — and District 40, which contains the northern, more rural half of the county and the smaller border communities to the west such as La Joya and Sullivan City.

Rep. Aaron Peña (D-Edinburg) represents District 40. Rep. Kino Flores (D-Hidalgo) represents District 36. Both have been repeatedly rewarded by Craddick for their loyalty. Flores chairs the Licensing and Administrative Procedures Committee, while Peña chairs the Criminal Jurisprudence Committee.

Peña is facing a rematch against Eddie Saenz. Saenz is an engineer that ran against Peña in 2004 in a race that featured plenty of mud, money, and bad blood. Peña trounced Saenz in that race, winning 63.45 percent of the vote. At the time, Saenz ran at Peña from the right. This time, Peña has a record that can be attacked from the left. It remains to be seen whether Saenz can make the transition and do the shoeleather campaigning necessary to win. Saenz has already garnered the endorsement of the mayor of Edinburg, according to his blog. Peña also has a blog. This one will be fun to follow. Watch as both candidates blog maddeningly right up until the Texas Democratic primary on March 4.

Former teacher and probation officer Sandra Rodriguez has announced her intent to challenge Kino Flores. Rodriguez has the benefit of being endorsed by the well-funded Annie’s List. Her husband, Fernando Macias, is a former state district judge. Here’s a good preview of the race from the McAllen Monitor. Rodriguez’ best asset is her opponent. Flores has made plenty of enemies in his solidly Democratic district with his heavy handed approach, including a public feud with local power broker Billy Leo. Rodriguez has already attacked Flores for skipping votes on important Democratic issues such as voter ID and helping to enable a leadership that has actively tried to kick children off of CHIP.

In both contests, the issue of the Craddick D’s crucial votes to keep Craddick in power are figuring prominently. Flores and Peña are arguing that their devotion to the speaker has benefited their impoverished communities. Their opponents are questioning the incumbents’ Democratic credentials and their support for the Democrat’s agenda.

Stay tuned.

Looks like the Texas Department of Transportation has its own agenda in Washington, D.C. Last week, several Texas newspapers reported that TXDOT is lobbying Congress to convert your favorite freeway into a tollway. Texas Legislators are aghast at the department’s plan, euphemistically called ‘Forward Momentum’ — that would change federal law to allow the use of equity capital to toll such oft-used roadways as existing interstates.

Rick Perry’s spokesman Robert Black says it’s all okay, since free highways cannot be converted to tollways without the approval of local voters. But it’s hard to nail down what is crazier here. I mean, is it easier to imagine tolls on I-35 or a state agency with its own paid federal lobbyists trying to circumvent the stated goals of almost every lawmaker in Texas?

To make matters worse, in February members of the Texas Senate specifically chided TXDOT for this kind of behavior. You can watch video of it here (the relevant part of the February 5 Senate Finance meeting starts 1:59:00). But, in case watching Senate hearings is not your thing, let me just summarize.

The executive director of TXDOT and a commissioner from the Texas Transportation Commission were asked by senators about $1 million spent on lobbying contracts for an outfit called the Rodman Company. Senator Royce West (D-Dallas) managed to confirm that upwards of $500,000 was being spent by the agency to lobby D.C. on efforts relating to the Trans-Texas Corridor. Despite the fact that TTC has been sold to voters as a project that would require zero taxpayer dollars, TXDOT had apparently been paying private lobbyists to pave the way for federal legislation that would allow the department to move forward on all things TTC. Needless to say, the senators were not pleased.

In the dry language of the Senate Research Center summary:

Senator Shapiro, Senator Ogden, and Senator Whitmire questioned whether these efforts were necessary or effective and stated that the issue should be pursued through Texas’ Congressional delegation rather than private lobbyists. Senator Eltife stated that the expenditure was “wasteful, unnecessary, and disgraceful.”