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Floor Pass

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
NASA
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?

Monday.

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.

Fracking equipment near homes in Denton.
Fracking near homes in Denton.

The House moved to limit local control over oil and gas activities Friday, raising the ire of environmentalists and cities across the state.

House Bill 40 by Rep. Drew Darby (R-San Angelo) is widely seen as a response to a fracking ban passed by Denton voters last November. The bill preempts regulation of oil and gas operations by municipalities, allowing only “commercially reasonable” rules for aboveground activity. The bill will overturn Denton’s fracking ban, Dallas’ drilling ordinance and is expected to plunge other cities’ ordinances into legal jeopardy.

It passed on a 122-18 bipartisan vote. Thirty of the 52 Democrats in the House voted for HB 40. (Update: After the vote, three Democrats said they were recorded voting “yes” but had intended to vote “no”: Rep. Roberto Alonzo of Dallas, Dawnna Dukes of Austin and Jessica Farrar of Houston. Rep. Ramon Romero, Jr. of Fort Worth was absent but said he would’ve voted for the bill.) The only Republican to vote against the bill was Rep. Tam Parker (R-Flower Mound), whose suburban district has struggled with intense fracking activity.

Environmental groups reacted with disgust.

“This is a dangerous power grab by Big Oil to stomp out the rights of communities to protect themselves from the worst impacts of dirty drilling,” said Luke Metzger, director of Environment Texas. “They won’t settle for just overturning the Denton ban but are taking aim at ordinances across the state that limit drilling near homes, schools and parks as well as many other health and safety standards.”

Local control has long been a Texas tradition but is often a casualty of other imperatives.

At the Texas Capitol, little is more sacrosanct than money, and the oil and gas industry has lots of it. The industry donated more than $5 million to legislators during 2013 and 2014, according to a Texans for Public Justice report. The average House member pocketed more than $25,000.

Debate on Friday was mostly perfunctory. The details of the bill had been negotiated largely without input from rank-and-file lawmakers. Amendment after amendment was tanked on lopsided votes. The current bill was fragile, the work of the Texas Municipal League, the Texas Oil and Gas Association and other unnamed “stakeholders,” Darby said.

“The language of the bill has been painfully crafted,” Darby said.

Rep. Sylvester Turner (D-Houston) bristled at the notion that it was all a done deal. “I didn’t give up my seat to [Texas Municipal League],” he said.

But it was clear that Turner’s plea would make no difference. “I hope that this bill doesn’t come back to haunt us,” he said.

During the debate, Turner said he would vote against HB 40 if it wasn’t amended to include a guarantee that cities could write ordinances protecting city-owned land. However, he was among a number of Democrats who complained about the legislation but ended up voting for it.

“I was surprised,” said Rep. Rafael Anchia (D-Dallas), who voted against the bill, of how lopsided the vote was. Anchia’s district includes some of the few proposed gas wells in the city of Dallas.

Turner said the bill’s passage was all but assured.

State Rep. Drew Darby (R-San Angelo)
State Rep. Drew Darby (R-San Angelo)

“We all came in knowing there was enough power behind the bill to get it passed,” he said. “This train has left the station. I gave it everything I could, I recognized what the end result was going to be, so I put myself in a position to be able to continue working with the authors as this bill moves forward.”

Anchia said the legislation will scrap Dallas’ carefully-crafted ordinance.

“I’m not comfortable with the Legislature supplanting its judgement for that of the local authorities,” he told the Observer. He said the industry will almost certainly challenge Dallas’ drilling ordinance and that even the city’s 1,500-foot setback requirement—the distance between oil-and-gas infrastructure and protected places like homes and businesses—could be in trouble. (The bill allows only “reasonable setback requirements.”)

Many communities, especially in the urban and suburban Barnett Shale, complain that the state has done little to deal with negative environmental effects from oil and gas activities, such as groundwater pollution and earthquakes most likely caused by fracking.

In defense of the bill, Darby said that oil is vital to the Texas economy.

“Texas needs to protect the oil and gas industry,” he said.

The bill now moves on to the Senate for consideration.

State Rep. Celia Israel (D-Austin)
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Rep. Celia Israel (D-Austin)

Every month, the number of pregnant women incarcerated in Texas county jails hovers between 300 and 500, according to monthly jail population reports collected by the Texas Commission on Jail Standards. But we know little else about how pregnant women are treated behind bars.

Criminal justice, mental health and civil rights groups have long fought for more information on the care and treatment available to pregnant inmates.

A law passed in 2009 requires that each jail have a health services plan in place, but doesn’t specify the kind of services that must be provided to pregnant women. Another 2009 law bans the use of restraints on pregnant inmates during labor, delivery and recovery unless correctional officers determine there’s a security or flight risk. But counties are not required to report to the state when, and why, restraints are used.

Two bills by state Rep. Celia Israel (D-Austin) aim to illuminate how pregnant women are treated in jail. House Bill 1140, was approved by the House County Affairs Committee last week. It would require county jails to provide the state with more data on the health care provided to pregnant inmates, as well as specific policies like prenatal vitamins regimens, nutrition plans and calorie counts of food for expectant mothers. Under House Bill 1141, considered by the House Corrections Committee Thursday, county jails would submit a yearly report to the Legislature tracking every instance when restraints are used on pregnant inmates.

The use-of-restraints ban “has been interpreted very differently across the state,” Israel said as she laid out HB 1141 Thursday. “This practice is dangerous to women and their children and it is completely unacceptable. … The state needs access to an official record, and this bill puts a system in place to do that.”

“The range of care between facilities is grossly inconsistent,” Alexandra Chirico, policy associate with the Texas Criminal Justice Coalition, said at the HB 1140 hearing. The bills “provide us the information to understand where problems exist and give us the impetus to fix them.”

In recent years, Diana Claitor of the Texas Jail Project and other advocates have heard from incarcerated women and their families about the often sub-standard conditions behind bars. Women report inadequate health care services, lack of mental health treatment, limited access to food and vitamins, as well as the use of restraints during labor, despite the 2009 law, Claitor said at Thursday’s HB 1141 hearing.

“It’s become obvious to me that our jails don’t have clear policies, it’s also become obvious how little information there is about how pregnant women are cared for,” she said. “Without information on all the jails’ practices and policies, we are operating in the dark.”

Brandon Wood, executive director of the Texas Commission on Jail Standards, told legislators at both hearings that the commission approves each county jail’s health services plan every five years. The OB/GYN care provided to pregnant inmates is left up to individual counties and medical professionals working in the jails, though resources vary from county to county, Wood said.

County jails can and do restrain pregnant inmates when they transfer them between units, Wood said. When correctional officers deem it necessary to use restraints on pregnant inmates during labor, delivery or recovery, the commission only finds out if an inmate files a formal complaint.

“We do not receive any monthly reporting regarding the use of restraints on pregnant inmates,” Wood told legislators. “Counties are required to keep the documentation so that if the commission receives a complaint, we can request it.”

So far, lawmakers have expressed wide support for collecting more information on what jails are providing, or not providing, for pregnant inmates. The House County Affairs committee voted 7-1 in favor of HB 1140 last week. In the last few days, six more legislators, Democrats and Republicans, have signed on to Israel’s bills.

The Sheriffs Association of Texas, however, is opposed to both of Israel’s bills, arguing that providing more data to the commission and the Legislature would be redundant and time-consuming for staff. Sheriff A.J. Louderback, president of the association and Jackson County sheriff, called Israel’s use-of-restraint reporting bill “unnecessary.”

“If in fact we’re required to [file a report] every time a pregnant female is in a county jail and a restraint is applied, we would have to send in a report to [Texas Commission on Jail Standards], where does it stop?” Louderback said to House Corrections committee members.

State Rep. Alma Allen (D-Houston) pressed Louderback, questioning whether county jails should be restraining pregnant women at all.

“If we operated on the premise that we should not do this, we would have fewer incidents so it wouldn’t be a big burden on you to get that information,” Allen said.

West, Texas Blues

Two years after the West fertilizer plant disaster, few ammonium nitrate facilities have made critical changes.
West, Texas tragedy
AP Photo/Tony Gutierrez
A cross with messages to one of the victims of the fertilizer plant explosion sits planted in an open field across the street from the site of the explosion.

 

On March 17, 2014, an inspector from the State Fire Marshal’s Office arrived in Athens, Texas, to take a look at East Texas Ag Supply, a fertilizer storage facility located just a few blocks from the historic Henderson County Courthouse.

The visit was part of a second round of voluntary inspections of ammonium nitrate facilities conducted by the state fire marshal in the wake of the West disaster on April 17, 2013. Like his counterparts across the state, the inspector had been dispatched to assess whether the dozens of ammonium nitrate plants in Texas had made progress in fixing some of the problems that contributed to the West fire and explosion that leveled parts of the town and killed 15 people.

But it appeared that little had changed. In his report, the inspector noted that 135 tons of bulk ammonium nitrate was stored in a wood-frame building and in a bay constructed of wood, considered to be a serious fire risk by experts. The fire at the West Fertilizer Company plant began in a wooden warehouse, and ignited ammonium nitrate stored in wooden bins. The only fire protection at the Athens plant was two portable fire extinguishers. Like the West plant, it had no sprinkler system, a hazard noted in a 2013 inspection, too.

Six weeks later, the facility erupted in flames, necessitating an evacuation of part of the town. The cause of the fire was never determined; luckily, the ammonium nitrate didn’t ignite.

In 2004, an ammonium nitrate facility owned by the El Dorado Chemical Company  burned down in Greenville. In 2009, another El Dorado plant burned to the ground in Bryan. The company rebuilt the Bryan facility, opting for a non-combustible concrete structure. After the West explosion, John Carver, an El Dorado vice president, told the Dallas Morning News it had hired an engineering firm to assess risks at its facilities. Around the same time, a company spokesperson assured a North Texas news channel that its materials were “housed in a way that does not pose a threat to the public.” But as inspection reports from 2014 show, the company hadn’t fixed many of the major issues with its facilities, including the housing of ammonium nitrate in wooden structures.

In the tiny town of Whitewright in North Texas, an El Dorado fertilizer plant is located less than a quarter-mile from the town’s high school. According to a May inspection, ammonium nitrate is housed there in damaged wooden structure that lacks a sprinkler system. Although the West disaster had focused attention on the potential for ammonium nitrate plants to be a deadly threat, and the state fire marshal discovered plenty of problems at El Dorado’s facilities, not much had evidently changed.

In the two years since the explosion in West, the state fire marshal has inspected every ammonium nitrate facility in Texas twice, identifying recurring problems at dozens of fertilizer dealers and plants similar to the one in West. But an Observer review of partially redacted fire safety inspection reports obtained through open records law has found that few facilities have made basic changes recommended by the fire marshal. And lawmakers haven’t made a single change to the oversight system.

Of the 92 facilities in operation in 2014, only one-fifth had a sprinkler system. Fifty-two facilities had no means of fire protection other than portable fire extinguishers, while 22 were described as having no fire protection features at all. Fire extinguishers and sprinkler systems are important features, said State Fire Marshal Chris Connealy, in order to put out incipient fires, before they become unmanageable. Today there are 83 ammonium nitrate facilities operating in Texas, many located in populated areas. Buddy’s Plant Plus in Ballinger is located across the highway from Ballinger High School. Lawrence Farm and Ranch Supply in Cross Plains is situated nears homes and businesses.

Texas Fire Marshal Chris Connealy
Texas Fire Marshal Chris Connealy

Connealy says he wasn’t surprised when his inspectors found several potential fire hazards at facilities during his first round of inspections in 2013, because so many of them have been around for years and have had little incentive to improve standards. And when he found several potential fire hazards the next year, well, he still wasn’t surprised. The State Fire Marshal’s Office has no enforcement authority over ammonium nitrate facilities, so operators are under no legal obligation to address any hazards found during the voluntary inspections. The reports are essentially just suggestions, and facility managers are often resistant to address them. Moreover, the information in the inspection reports isn’t readily available to the public. The Observer had to file an open records request, wait months, and pay $119 to access documents that are heavily redacted.

Connealy says that ammonium nitrate should ideally be stored in a non-combustible structures—like concrete—and that the storage bins should be changed out when they show signs of the fertilizer lodging in the wood. According to inspection reports, 31 facilities showed signs of product impregnation in 2014.

Rep. Joe Pickett (D-El Paso) has been leading efforts in the Legislature to prevent another West. What has changed since? “Nothing,” he said. Pickett said the fire marshal’s inspections led to some small fixes early on, but that as memory of the West tragedy fades, inaction will set likely set in if a new oversight system isn’t devised.

The cause of the fire that triggered the explosion in West is still unknown, but we do know what was detonated: ammonium nitrate. The West Fertilizer Company was storing up to 540,000 pounds, or 270 tons, of the substance. It isn’t inherently explosive, but when exposed to fire it can be deadly.

In the days and weeks following the explosion in West, investigations revealed that the West Fertilizer Plant didn’t have a security plan or an up-to-date risk management plan. The facility had also filed a report with the Texas Department of State Health Services claiming that it hadn’t stored ammonium nitrate since 2012. The U.S. Department of Homeland Security didn’t even know the facility existed. In short, no one was keeping tabs on the plant.

Since 2007, the obscure Office of the Texas State Chemist has regulated the sale of ammonium nitrate. After the West explosion, the Office of the State Chemist created a few new rules that ammonium nitrate facilities must follow. The rules are pretty limited, pertaining to providing evidence of compliance with reporting procedures, and displaying warning placards. There’s only one new rule that directly removes a fire hazard, one that Connealy says is a “major improvement”: facilities now have to keep ammonium nitrate at least 30 feet away from combustible or flammable material, such as feed, batteries and fuel.

Facilities are required to perform daily inspections to ensure that those rules are being followed. The Office of the State Chemist has 15 investigators who inspect each facility annually, and any facility found to be in violation of the rules will have its registration suspended.

But Pickett isn’t satisfied with the changes.

“Who’s going to go in from the state chemist to make sure there’s no bare electrical wires, and that you’ve got the right kind of fire extinguisher?” Pickett said. “Well, they’re not. Why don’t we have first responders in there?”

That’s why he’s proposed legislation this session that would give the State Fire Marshal’s Office inspection authority and require facilities to address violations within 10 days of their identification. Pickett’s bill would also allow the Fire Marshal’s Office to create more rules for ammonium nitrate facilities.

Another bill, proposed by Rep. Kyle Kacal (R-College Station) would also give the fire marshal the authority to inspect facilities, but wouldn’t allow him to write rules for ammonium nitrate.

Many ammonium nitrate operators are OK with giving the fire marshal inspection authority, but don’t think that the office should be allowed to write new rules.

During a public hearing at the Capitol in April, Farley Farm Supply owner Jim Farley testified in favor of Kacal’s bill and against Pickett’s. He said that he’s made more changes since the West disaster to his feed and supply store, which sells ammonium nitrate fertilizer, “than in the previous 36 years combined.” He said part of his facility, located in the center of De Leon, a town 100 miles southwest of Fort Worth, had been “completely gutted” so that it would be in compliance with the 30-feet rule.

The 2014 inspection report for the facility found that the wooden ceiling showed signs of product impregnation, and that the only fire protection features were portable fire extinguishers. Farley testified that addressing those issues would be cost-prohibitive.

Raymond Helberg, coordinator of the Comanche County Emergency Management department, which oversees De Leon, says he’s not “overly concerned” about the dangers posed by the facility, and believes that current safety measures are sufficient. After the explosion in West, officials met with Farley and created an emergency plan that primarily focuses on evacuation. Helberg doesn’t think new legislation would help much.

“I don’t think you can get any safer,” Helberg said.

Connealy said his office is waiting to see what changes the Legislature makes, if any, before moving forward with another round of inspections.

Pickett said he doesn’t care which of the bills moves forward this session, only that some kind of action is taken. Kacal’s bill was unanimously voted out of committee on Tuesday, but the prospect of legislation passing dwindles as the session approaches its June 1 end date.

“It will be a matter of time,” Pickett said. “If we don’t do something, we’ll have another West explosion.”

Sen. John Whitmire (D-Houston) advocating for school truancy decriminalization.
John Savage
Sen. John Whitmire (D-Houston) advocating for school truancy decriminalization.

After almost two hours of debate, a several-hour postponement and some backroom deal-making, the Senate passed a bill designed to decriminalize school truancy. Senate Bill 106 by Sen. John Whitmire (D-Houston) passed on a 26-5 vote.

Whitmire said current state truancy law unfairly punishes poor children and criminalizes hardship.

“No school should make a criminal charge out of a hardship of somebody that’s going through a divorce, or a 14-year-old that has no maternity clothes so she can’t go to school,” Whitmire said.

Under his legislation, Whitmire said school administrators and judges would have all the same tools they have now to try to ensure kids are not skipping school. The difference, he argued, is there would be no criminal charge to follow a young person around for the rest of their life.

Texas is one of only two states—the other is Wyoming—that employ the criminal justice system to punish truancy. The Texas Education Code, the body of law that regulates the activity of all educational institutions in the state, empowers schools districts to file a criminal complaint against a child as young as 12 who has missed three days of school in four weeks without an excuse or has accumulated 10 unexcused absences in six months.

The charge is known as “Failure to Attend School,” a Class C misdemeanor that can carry up to $500 in fines and leave an indelible mark on the child’s record.

In 2013, Texas prosecuted more than twice as many school truancy cases as all the other states combined, according to a report from Texas Appleseed. Truancy laws disproportionately affect minority children, disabled students and the economically disadvantaged and advocates say the laws contribute to the so-called school-to-prison pipeline.

Morgan Craven, a staff attorney for Texas Appleseed’s School-to-Prison Pipeline Project, told the Observer that punitive truancy laws aren’t useful in solving the problem.

“Research and data show that these so-called hammers are not effective,” Craven said. “I’ll give you a few examples of what I can imagine these judges are talking about when they say, ‘Don’t take the hammer away from us.’ They are talking about the ability to saddle a kid with a criminal record. The ability to charge kids and parents with up to $500 in fines. The ability to arrest and jail a kid for three days if they are unable to pay those fines, and they can be held in contempt, arrested and jailed.”

Sen. Van Taylor (R-Plano) and Sen. Larry Taylor (R-Friendswood) offered the most vociferous objections to Whitmire’s bill.

“The superintendents in my district have contacted me and expressed concerns that this bill not only removes a tool for a school to compel attendance and avoid truant behavior, but also imposes additional steps and requirements,” Taylor said.

According to an exposé published by The Atlantic, school truancy is big business in Texas. Each year Texas truancy courts collect millions of dollars in fines. Truancy fines in Dallas County alone totaled almost $3 million in 2012.

Whitmire vehemently disagreed with his bill’s opponents.

“I can’t overemphasize what a big problem this is,” Whitmire said. “There is no reason to write children a ticket for missing school and make them a criminal.”

In the House, several truancy bills were heard last month in the juvenile justice committee but none have been voted out.

Rep. James White (R-Hillister) said House members are still in discussions.

“There are different scenarios of how this could play out,” said White. “There could be a scenario where we all get together and there is one big bill per se or it could be a number of bills that will come forward.”

SB 106 bill now moves to the House for consideration.

 

Rep. Pat Fallon (R-Frisco) and Rep. Tan Parker (R-Flower Mound)
Patrick Michels
Rep. Pat Fallon (R-Frisco) and Rep. Tan Parker (R-Flower Mound) enjoy a light moment on the House floor, with a "Protect Religious Freedom" sign.

Rep. Scott Sanford (R-McKinney) says he wants to make sure faith-based adoption agencies that receive state funding aren’t forced to close their doors if they refuse to place children with same-sex couples.

But opponents of Sanford’s House Bill 3864 say it could have unintended consequences, such as allowing foster homes to force gay youth to undergo conversion therapy or require Christian youth to attend Muslim schools.

On Wednesday, Sanford told a House committee that in some states where same-sex marriage is legal, organizations such as Catholic Charities have shut down rather than comply with laws barring discrimination against gay couples.

“Faith-based organizations have played a vital role in serving our nation’s orphan and needy children since America’s founding, and this legislation protects their operations,” Sanford said. “States without these protective measures have had organizations cease to operate, placing more demand on government.”

HB 3864, which Sanford is calling the “Hope for Orphans and Minors Expansion Act,” or HOME, would prohibit the state from taking “adverse action” against child welfare providers that receive taxpayer dollars and act based on “sincerely held religious beliefs.” It would also protect the rights of state-funded agencies to provide religious education to children and to deny them access to abortions or birth control.

During the hearing on Wednesday, opponents said Sanford’s bill would allow the religious convictions of providers to trump the best interests of children. They also said the rights of faith-based providers are already protected under the state’s 1999 Religious Freedom Restoration Act.

Sarah Crockett, public policy coordinator for Texas CASA, said the organization is neutral on the bill. Crockett acknowledged that faith-based organizations account for the majority of child-placing agencies in the state, calling them “essential” to the system.

State Rep. Scott Sanford (R-McKinney)
State Rep. Scott Sanford (R-McKinney)

But Crockett said she fears HB 3864 would infringe on the rights of children in foster care, as laid out by the Department of Family and Protective Services. Those rights currently include protections against discrimination based on sexual orientation and gender identity, as well as the right to receive a religious education of their choosing.

Under the bill, if officials determined a child’s rights were violated and recommended removal from an agency, the provider could sue the state.

“The rights and best interests of children, especially the vulnerable and traumatized children at the center of this bill, should be considered paramount,” Crockett said. “We feel like this is a solution for something that’s not a problem.”

Those who testified in support of the bill included several women who became pregnant as teenagers and put their children up for adoption. They said if faith-based adoption agencies shut down, it would be harder for teen mothers to ensure their children are placed in Christian homes.

Also testifying in support of the bill were representatives from social conservative groups Concerned Women for America and the Liberty Institute, as well as a high-ranking official from the Texas attorney general’s office.

Brantley Starr, deputy attorney general for legal counsel, said the AG’s office is officially neutral on the bill. But Republican Attorney General Ken Paxton has championed so-called religious liberty, and Starr offered supportive testimony.

Starr said a substitute version of the bill makes clear that providers couldn’t “decline intake” of a child based on religious beliefs.

“This bill doesn’t give the providers the license to discriminate on the front end of which child they would take,” he said.

Starr said the bill is needed because the Religious Freedom Restoration Act provides too much latitude to judges, who could determine that protecting the rights of same-sex couples constitutes a compelling state interest that outweighs the religious beliefs of state-funded child welfare providers.

“With more government regulation, judges can view compelling interest as anything,” Starr said. “My cell phone, I used to be able to use it in my car in Austin, I can’t now. It may be a compelling governmental interest in the minds of some judges to actually do that. As time passes on, judges can view more and more things as a compelling interest, so there’s a greater need for the Legislature to clarify which areas it believes religious rights of conscience should be protected, so the courts don’t have to wade into the issue.”

Members of the committee, which is stacked with social conservatives, appeared supportive of the bill. Rep. Debbie Riddle (R-Spring) called HB 3864 “fabulous” and repeatedly told supportive witnesses from Christian groups they were “doing the Lord’s work.”

Rep. Bryan Hughes (R-Mineola) pressed opponents of the bill about whether they think faith-based adoption agencies should be allowed to refuse to place children with gay parents.

“I think that’s OK if the alternative is not having them participate at all,” Hughes said.

Kathy Miller, president of the Texas Freedom Network, testified against the bill. She acknowledged that while faith-based child welfare providers can currently discriminate against same-sex couples, it’s likely that will be challenged in the future.

“It does seem that this bill is designed to ensure that religious providers can use that faith to discriminate against LGBT families and children,” Miller said. “Just as in Indiana, when this kind of issue arose to allow religion to be used to discriminate against LGBT families, I think it would be wrong for this state to move in that direction.”

The bill was left pending in the committee.

 

Erick Muñoz, husband of Marlise Muñoz, addresses reporters at the Texas Capitol in March.
Erick Muñoz, husband of Marlise Muñoz, addresses reporters at the Texas Capitol in March.

The House State Affairs Committee heard a bill Wednesday that would allow pregnant women and their families to make their own end-of-life decisions.  Currently, under Texas’ advance directive law, doctors “may not withdraw or withhold life-sustaining treatment … from a pregnant patient,” a little-known clause that drew national attention when a pregnant woman in Fort Worth was declared brain dead in 2013.

House Bill 3183 by state Rep. Elliott Naishtat (D-Austin) would eliminate this so-called “pregnancy exclusion” provision.

“Anybody can fill out an advance directive, but only women who are pregnant can have that advance directive voided by a hospital or by the state,” he told committee members. “That’s not fair, that hurts families very much, and this is a simple fix.”

Naishtat’s bill is inspired by the story of Marlise Muñoz, a 33-year-old mother and paramedic from North Texas who collapsed at her home and suffered a pulmonary embolism in November 2013. At 14 weeks pregnant, Marlise was declared brain dead after she was hospitalized in Fort Worth. Citing the state’s advance directive law, doctors refused to remove her from life support, despite the fact that she made it clear to her family years prior that she wouldn’t want to continue treatment in such a situation. Muñoz’s husband Erick and her parents Lynne and Ernie Machado sued the hospital and ultimately won their case, and the right to bury Marlise.

“For two months we watched our daughter’s body decompose,” Lynne told legislators Wednesday. “We knew the end-of-life wishes Marlise wanted. … Our hands were tied by the government. We felt the government had overstepped [its] boundaries.”

Rebecca Robertson with the ACLU of Texas, and Susan Hays, representing a coalition of reproductive health and advocacy groups, supported Naishtat’s measure. Hays said that the law treats pregnant women as “second-class citizens” by taking away their right to make end-of-life decisions.

“The case of Marlise Muñoz vividly illustrates why this law needs to change,” Hays said. “State law should never prevent medical professionals from providing medical care that is consistent with their ethical and professional obligations.”

Amid the emotional testimony from Marlise’s family, a handful of witnesses spoke against Naishtat’s bill, arguing that the life of Marlise’s fetus should have remained the priority in the case.

Cecilia Wood, an Austin-based attorney representing the Texas chapter of the conservative Concerned Women for America, opened her testimony by ensuring that she meant “no disrespect” for Marlise’s family. Wood went on to say that in no situation should Texas’ end-of-life law apply to a pregnant woman. Wood said that any pregnant woman should be kept alive “until the baby can be delivered.”

“I would say it would never be OK to abide by the wishes of the family, if it means taking the life of the child,” she said. “We need to realize that this is the life of a pre-born child.”

State Rep. Matt Krause (R-Fort Worth) has filed a bill that echoes Wood’s sentiment, though it has yet to be scheduled for a hearing. Krause’s House Bill 1901 would require a hospital to keep a pregnant woman on life support “regardless of whether there is irreversible cessation of all spontaneous brain function of the pregnant patient … and if the life-sustaining treatment is enabling the unborn child to mature.” It would also require the attorney general to appoint a lawyer for the fetus.

Jeremy Newman with the Texas Home School Coalition also testified against removing the pregnancy exclusion provision, arguing that a pregnant person may not fully understand the advance directive law, or that she is “potentially signing a death warrant for her child without knowing what’s happening,” he said.

“You’ve made a decision over which life is more important. … You’ve made an assumption that women don’t contemplate these situations,” state Rep. Jessica Farrar (D-Houston) told Newman. “I find that demeaning as a woman.”

For last 18 months, Erick Muñoz and Marlise’s parents have vowed to work to change state law so that a similar situation doesn’t happen again.

“Please give families the opportunity to avoid the pain and suffering my family had to face,” Erick pleaded with committee members.

The House State Affairs Committee left the bill pending.