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Floor Pass

Kel Seliger
Sen. Kel Seliger (R-Amarillo)

The high-stakes battle over high-stakes testing returned to the Capitol today as the Senate Committee on Education heard testimony on Senate Bill 149, which would allow students to graduate high school without passing state tests.

Without action from the Legislature, as many as 28,000 students will not graduate this year because they haven’t passed state tests, said the bill’s author, Sen. Kel Seliger (R-Amarillo).

Seliger’s bill would allow students who fail State of Texas Assessments of Academic Readiness (STAAR) exams to graduate if they pass all classes required for graduation, maintain a 2.0 GPA and meet other conditions outlined by an individual graduation committee.

According to Seliger’s proposal, the individual graduation committee—consisting of the student’s principal, teacher, school counselor and parent—would have to vote unanimously for a student to graduate.

Arguing in favor of the bill, committee chair Sen. Larry Taylor (R-Friendswood) said there is a big disconnect between student achievement and test scores.

“It’s insanity when you see the level of achievement some of these kids are doing and they can’t pass the test,” Taylor said.

Testing is big business in Texas. The state currently pays the testing company Pearson almost half a billion dollars under a five-year contract to develop, distribute and score STAAR tests.

Aldine ISD superintendent Wanda Bamberg testified that she doesn’t trust Pearson.

“Every year we pay Pearson to have our [scored] papers returned to us … and we found a paper that was mis-scored,” Bamburg said. “We’re holding children accountable for graduation based on that type of scoring error.”

Seliger’s bill comes amid a broader movement to diminish the importance of high-stakes tests. During the 2013 legislative session almost 90 percent of Texas school boards signed an anti-testing resolution, and the Legislature reduced the number of tests required for graduation from 15 to five.

Texas started requiring that students pass standardized tests to graduate in the 1980s, and was one of the first states to do so. After the state implemented the tests, the graduation rate for Latinos and African Americans dropped significantly. In 1997 the Mexican American Legal Defense and Educational Fund sued the Texas Education Agency, arguing the test was racially discriminatory.

Courts ruled in favor of the agency, and the anti-testing movement didn’t reach critical mass until a few years ago when a coalition of advocacy groups started agitating. One much-publicized group, dubbed Moms Against Drunk Testing, testified at today’s hearing in favor of Seliger’s bill.

Clay Robison, spokesman for the Texas State Teachers Association, said his organization hopes the work of advocacy groups will prod the Legislature to take a closer look at who benefits from the state’s testing requirement.

“The current testing regime enriches companies and transfers accountability from a Legislature that has historically underfunded education,” Robison told the Observer.

Senate Bill 149 did receive some pushback, primarily from Sen. Donna Campbell (R-New Braunfels) and Sen. Lois Kolkhorst (R-Brenham).

Kolkhorst said she was concerned the bill would create a disincentive for students to pass tests and questioned why the state should spend so much money on exams if students can graduate high school without passing them.

“Maybe we should just throw those out [the tests] and save the money,” Kolkhorst said.

“That’s a whole ‘nother discussion,” Taylor responded.

Access to Planned Parenthood

Another legislative session, another attempt to strip Planned Parenthood of funding.

This time, the proposed Texas Senate budget jeopardizes a screening program that serves Texas women who are at greatest risk for developing breast and cervical cancer. Some senators want to resurrect a strategy that would put Planned Parenthood and other specialty health clinics at the bottom of a list to receive funding for breast and cervical cancer services.

Administered by the Texas Department of State Health Services, the program provides a plethora of services for uninsured, poor women, including Pap smears and mammograms, diagnostic services such as biopsies and ultrasounds, as well as expedited assistance for Medicaid coverage for cancer patients.

“We’ve already reduced access to women with the greatest need,” said Ana Rodriguez Defrates, Texas policy director with the National Latina Institute for Reproductive Health. “We’re talking about reducing access for women who haven’t had a Pap smear in years. To do anything other than increase the number of providers when we know this to be true is a travesty.”

The Senate proposed budget includes a provision that would create a three-tiered system for program providers, putting Planned Parenthood last in line. Money would flow first to the top tier—public entities like state, county and community clinics. “Non-public” entities or clinics that offer cancer screenings as part of a broader “comprehensive primary and preventative care” package would be next in line. Finally, the third tier would consist of specialty providers, including Planned Parenthood.

The goal, as lead budget writer Sen. Jane Nelson (R-Flower Mound) and Health and Human Services Committee Chairman Sen. Charles Schwertner (R-Georgetown) have acknowledged in recent weeks, is to keep state money away from health care providers that also perform abortions, even though no public dollars fund the procedure and Planned Parenthood clinics that offer such services are completely independent from its health centers. Sen. Kirk Watson (D-Austin) said he’s concerned about the proposal and the consequences it will likely have on access.

“This so-called three-tiered approach has the very intended consequence of wiping out at least a provider that is integral in making sure that women that don’t otherwise have access to care,” he said. “There’s collateral damage to that as well; there are providers that aren’t the targeted provider that also get hurt.”

In 2014, with $2.4 million in state funding and $7.8 million in federal funding, 41 providers offered services at 196 clinics statewide, according to the Department of State Health Services. Of the 34,000 women served, about 10 percent received cancer screenings and diagnostic services at a Planned Parenthood clinic, said Sarah Wheat of Planned Parenthood of Greater Texas. She sees the tiered funding strategy as a political move.

“What we know from experience is that when the Texas Legislature sets up a political goal for women’s health funding, uninsured women lose access to these essential services,” she said.

It’s a strategy Republican lawmakers have tried before. In 2011, on top of a two-thirds funding cut to the state’s family planning program aimed largely at defunding Planned Parenthood, lawmakers passed a budget that tiered funding for family planning providers. Planned Parenthood’s health centers and other specialty family planning clinics were bled even more by the tiered system. The fallout was catastrophic: More than 50 family planning clinics, largely non-Planned Parenthood clinics, closed and nearly 150,000 women lost services. While the Legislature did restore some of the funding in 2013, the programs are still only serving about 32 percent of the women in need. The state also lost federal money when it wrote Planned Parenthood out of the Medicaid Women’s Health Program, which provided birth control to poor, Medicaid-eligible women who weren’t pregnant. The state-funded program the Legislature has created since hasn’t quite kept up. Before losing the federal funding, the program served approximately 127,000 women, according to the Health and Human Services Commission. The state program now serves approximately 115,000.

Texas is likely to lose more providers if the Senate budget proposal goes through, advocates and providers fear. The regional impact and the number of other specialty, non-Planned Parenthood clinics that may fall into the third category are unclear.

Of the approximately 34,000 uninsured women served in the program, the majority are women of color. According to the Kaiser Family Foundation, the incidence rate of cervical cancer among Texas women is 17 percent higher than the national rate, and Hispanic women in Texas are more likely to be diagnosed with cervical cancer than African-American or white women every year. Hispanic women along the Texas-Mexico border are 31 percent more likely to die from cervical cancer compared to their peers living in non-border counties, said Rodriguez Defrates.

In his State of the State speech this week, Gov. Greg Abbott called for an additional $50 million for women’s health services, including life-saving breast and cervical cancer screenings. The governor’s office told the Observer further details on the budget, including how the women’s health funding would be allocated, aren’t available yet.

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Americans For Prosperity stands strong for new state Sen. José Menéndez

How did Republican mega-donors end up winning a race in which only Democrats were running?

This week’s sad installment in an ongoing saga—the Travails of Texas Democrats—involves a runoff in Senate District 26, which covers much of San Antonio, between two Democratic state reps, José Menéndez and Trey Martinez Fischer. Last night, Menéndez won Leticia Van de Putte’s former seat in the Senate after a bitter and partisan campaign in which much of his support against the liberal Martinez Fischer came from Republicans. It wasn’t exactly an upset, but it ran contrary to the expectations of some statewide observers. (Yours truly included.)

As political scientist Mark P. Jones outlines here, Menéndez was one of the most conservative Democrats in the House last session, and Martinez Fischer was one of the most liberal. Martinez Fischer, or TMF as he’s colloquially known, won almost 44 percent in a special election in early January. Menéndez took 25 percent.

From one angle, it looked like Menéndez had a path to victory. Two other Republican candidates in the five-way race together took almost 28 percent of the vote. If Menéndez could keep his voting base intact and add all of the Republican voters from the first round, he’d win.

But TMF was a formidable opponent. He was a rising star in the party—or at least, he’d appointed himself one. He’d become known in the House for his skill in using the lower chamber’s rules to kill bills. He’s vocal, tough and smart, and he has the ambition to match. He’s the chairman of the Mexican-American Legislative Caucus. He’s won plaudits and attention from the media.

TMF poured money into the Texas Democratic Party convention last summer, where he had an unusually high profile for a lowly state representative. His party, featuring the Austin-based Spazmatics, was one of the convention’s headlining events. He gave away loteria cards emblazoned with the faces of Texas politicos, which became popular items—the Abbott card depicted the governor with devil horns. And his speech to the convention was full of the kind of fire that makes Democrats feel competitive again, even if his more pointed barbs—he joked that “GOP” stood for gringos y otros pendejos—drew stern disapproval from some more polite observers, and later became a big focus of anti-TMF attack ads.

In his race, he was supported by all kinds of Democratic heavies. He had the financial support of Houston mega-donor Steve Mostyn’s network, the strong backing of San Antonio bigwigs like the Castro family, and the endorsement of his hometown paper, the San Antonio Express-News.

Menéndez, meanwhile, was a fine rep, but quiet. He served in the House for 14 years. He was on the corporate-minded, conservative wing of his party. He won a committee chairmanship from House Speaker Joe Straus. Last session, he authored bills to raise criminal penalties for petty crimes like graffiti, even though his colleagues, even some Republicans, were generally trying to do the opposite.

Leticia Van de Putte, who held the seat before she resigned to run for mayor of San Antonio, was no great liberal herself, but she regularly ran unopposed. This was a pretty Democratic district, so TMF, with his profile and money and support, would clench it, right? Austin journalists of all stripes were salivating at the notion of Martinez Fischer butting heads with Dan Patrick in the once-comatose Senate.

As it turns out, gringos y otros pendejos vote, and the Democratic base does not. TMF lost the early vote by 20 points, and stayed down all night, ultimately winning just under 41 percent of the vote. A whopping 6 percent of voters made it to the polls. Remarkably, not only did Menéndez expand his vote share to include (presumably) Republican voters, but TMF lost ground, slipping from 44 percent to 41 percent of the vote. In short, it was a drubbing.

Menéndez will probably be a fine senator, and his campaign team did a great job here. But it’s still a missed opportunity for Democrats. The tea party relentlessly primaries GOP senators in safe districts until they get the guys they want; they’ve succeeded in changing the face of the Legislature. Democrats have sometimes been successful at this. In 2013, Democrat Sylvia Garcia, backed by the same people who backed TMF, beat Carol Alvarado, a more conservative candidate who was backed by the same people who backed Menéndez, including Texans for Lawsuit Reform.

It’s probably safe to say to say that Menéndez won’t be the kind of fighter in the Senate that Democratic die-hards were hoping for. Menendez’s biggest donors include William Greehey, the CEO of Valero Energy, the irascible billionaire Red McCombs, and beer distributor John L. Nau. All have donated oceans of money to Republican candidates at the state and federal level. He was even effectively endorsed by the Texas branch of the Koch-funded Americans For Prosperity.

Meanwhile, Democratic base voters can’t seem to get out to the polls in non-presidential years unless someone is standing behind them with a cattle prod. Maybe they’ll try that next.

On Tuesday night, the state Democratic Party—and Battleground Texas—found themselves celebrating the election of a senator whose campaign was funded by Republicans and cheered by the political machine of the Koch brothers. Blue Texas is coming any day now.

Greg Abbott and Dan Patrick
Kelsey Jukam
Gov. Greg Abbott and Lt. Gov. Dan Patrick at the State of the State Address, February 17, 2015.

What kind of governor will Greg Abbott be? He ran a mostly policy-free campaign, save for an ad about how bad traffic is—though to be fair, his Democratic opponent was even worse on this front—and his inaugural speech was overwhelmed by both the pomp and circumstance of the occasion and the pomp and circumstance of Lt. Gov. Dan Patrick.

Abbott’s State of the State speech, delivered today before a joint session of the Legislature, was his first real chance to establish the tone of his tenure in office. He positioned himself, generally, as a somewhat cautious moderate. He outlined a few broadly acceptable policy priorities, such as expanding early education programs and ethics reform. Otherwise, he mostly followed the path set by the Legislature.

“I’m proud to report that as the sun arises on 2015, the state of Texas is strong, and together we’re about to make it stronger,” Abbott told the Legislature. (Combine Abbott’s flourish with Patrick’s inaugural declaration, and we have a motto for the 84th Legislature: The sun arises on a new day in Texas.)

As with any governor, Abbott’s emergency items—he laid out five today—probably tell us a lot about his priorities. Legislation pertaining to emergency items can be considered early and generally receive special consideration by the Lege. Rick Perry—remember him?—frequently used these emergency item declarations as a way to throw red meat to the base.

But four of Abbott’s items are relatively bread-and-butter issues—Abbott calls for expanding pre-K, boosting funding for university research programs, raising transportation funding and strengthening state ethics laws.

The fifth is border security, the closest Abbott gets to a red-meat issue. But his budget anticipates an end to the National Guard mission to the border as soon as the Department of Public Safety can reasonably replace them. Patrick wants funding for the National Guard deployment to be continued through the next biennium, and strongly implied the governor agreed with him. Abbott does not, apparently, but he did call for border security funding to be doubled for the next biennium, for a total of $735 million—putting himself closer to the Senate budget than the House budget.

On school choice, another of Patrick’s core issues, Abbott didn’t have much to say. He called for the state to work toward becoming “No. 1 in education”—a line he’s used repeatedly that has all the substance of a boat made from cotton candy—and said he’d like to give school districts the right to exempt themselves from certain parts of the state’s education code. But while he advocated for more “choice”—”real local control rests with parents,” he said—there was no mention of vouchers or much else Patrick would like to see passed.

That didn’t stop Patrick from giving his blessing. In a statement, Patrick said Abbott’s speech contained “everything I wanted to hear in the State of the State address,” and underlined Abbott’s call for “additional border security” and “school choice.” Patrick’s strategy for dealing with Abbott appears to be to hug him to death and hope compliance follows—we’ll see how well that works.

There was plenty else in the speech besides the emergency items. Many of Abbott’s proposals include additional spending, but he also called for $4.2 billion in tax cuts. The two just might be able to coexist this year, with a healthy budget surplus, but Abbott says he’d like to make the tax cuts permanent. He also called for a constitutional amendment to limit spending increases to population growth plus inflation, a measure long touted by the Texas Public Policy Foundation that’s never gained much traction. On some of these budget issues, he’s closer to the right wing of his party than the middle—so far, the House hasn’t seemed especially excited about sweeping tax cuts.

He’s pushing for more support of the state’s community college system, and wants more funding to support the state’s veterans. He told the Legislature that it was “time to put school finance litigation behind us”—the same litigation he was aggressively prosecuting as attorney general—but he didn’t say much about how the state should do that.

He didn’t have much to say about guns, one of the hot issues at the Capitol right now, except for a line that pledged he would “expand liberty in Texas by signing a law that makes Texas the 45th state to allow open carry” of handguns. That wasn’t enough for one of the Legislature’s biggest proponents of open carry, state Rep. Jonathan Stickland (R-Bedford), who told the Observer after the speech that open carry “should have been an emergency item,” and that he was skeptical of all the spending proposals in Abbott’s speech.

Greg Abbott
Kelsey Jukam
Greg Abbott at the State of the State Address.

We learned a bit more about the personal style of a governor who still, despite all of the theatrics last year, remains a bit cryptic. Twice, he deployed anecdotes about young girls to pull at legislators’ paternalistic heart strings: While talking about border security, he talked about meeting a “young Latina” in the Rio Grande Valley who “pleaded with me to keep my promise to secure the border.” She knew the children of cartel members, Abbott said, and they frightened her. And then there was Keisha Riley of Houston, whose young daughter wiped tears from her cheek as she asked Abbott for better schools.”

Abbott positioned himself today as a pragmatic and thoughtful problem-solver.

“Our fellow Texans face so many challenges: the need for better schools, more roads, border security, better healthcare, more jobs. They want more liberty and less government, and they deserve ethics reform,” Abbott said. “We can’t let their future be defined by these challenges.”

But the as-yet unwritten history of the 84th and 85th Legislatures, over which Abbott will preside, will be determined by factors and circumstances largely outside of his control. For a reminder of how that can manifest itself, look no further than Rick Perry’s first State of the State address, from January 2001.

Back then, with a handsome young face and an even more magnificent head of hair, Perry sounded almost like a Democrat. The state needed to make changes, Perry said: better schools, more roads, better health care, more jobs, better government. The poor residents of the border colonias, he said, needed better access to health care and the state needed to do more to eradicate infectious diseases among border communities. These challenges, Perry told the Legislature at the dawn of a bright new era, are “all worthy of our ever-vigilant effort.”

But for the next 14 years, the Legislature lurched from strained budget to strained budget. Perry found it more beneficial to move to the right, and an increasingly fractious Legislature started to look to the right too. The center couldn’t hold. Fourteen years after that speech, the problems Texas face are still more or less the same.

So although observers are going to point to Abbott staking out ground in the middle—and he is, on some issues—be careful of drawing too many conclusions about what that will ultimately mean. And enjoy the new day’s new dawn while it lasts.

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robertnicholsrecord.com

State Sen. Robert Nichols (R-Jacksonville) isn’t exactly a communist. Taciturn and serious, he’s represented his East Texas district since 2007. As head of the Senate Committee on Transportation, he’s pursued modest policy proposals and generally eschewed five-year plans. An analysis by Mark P. Jones of Rice University pegged Nichols as the sixth most conservative senator of the 83rd legislative session, with only tea partiers like Dan Patrick and Donna Campbell to his right. So, naturally, some people think he’s a pinko.

In the last few weeks, an attack site surfaced targeting Nichols. The senator, it turns out, is “one of the more liberal Republicans in Texas,” a tyrant’s friend who “has overseen unprecedented growth in government” and “has opposed conservatives for many years.” He’s empowered government bureaucrats and zealously protected shady slush funds.

It looks like the kind of site that’s employed in campaigns, but the campaign season is over. Nichols was unopposed in his primary race, and effectively unopposed in the general election, where he won more than 90 percent of the vote. The domain name—robertnicholsrecord.com—was bought on January 21, more than a week after the start of the session.

There’s nothing on the site to identify its author, and the information that might normally be used to identify the domain name’s owner has been scrubbed, leaving the site effectively anonymous. Nichols’ office says they don’t know for sure who is responsible.

But it seems likely that the site comes from the Tim Dunn/Michael Quinn Sullivan messaging network. There’s the emphasis on higher education policy. But more tellingly, there’s the invocation of a 2013 Wall Street Journal op-ed, “Texas Goes Sacramento,” which Dunn’s groups love.

And they have a motive to attack Nichols—he co-authored Senate Bill 346 last session, a bill that would require disclosure of so-called “dark money” expenditures. The bill, which easily passed both chambers but was vetoed by Gov. Perry, was widely understood to be targeting Michael Quinn Sullivan’s groups in particular.

Still, why? What use is the site to anyone?

That’s harder to determine, and it seems like a pretty poor use of Dunn’s money. It’s probably best understood as a shot across Nichols’ bow, coming as it does at the start of a session in which Nichols, through his leadership of Senate Transportation, will have an outsized footprint on policy. But hardly anyone has seen it. It stayed off social media altogether until it was tweeted out by Dwayne Stovall, last year’s hapless primary challenger to John Cornyn, last weekend.

Movement conservatives had an amazing amount of success at launching primary challengers to Senate Republicans they deemed too moderate last cycle. For one, they knocked off incumbent Bob Deuell and replaced him with Bob Hall, a guy with a troubled past who’s been wandering around the Capitol the last few weeks talking about the United Nations, EMPs, and “the War of Northern Aggression.” But the campaign to subvert Nichols is another thing altogether—it’s actually kind of surreal. If he’s a liberal, who’s left?

“If the person or organization that created this website would like to identify themselves, we would be happy to sit down and discuss the issues and concerns they have,” Nichols told the Observer in a statement. “I stand by my record of representing East Texas values and do not hide from it. That’s unlike the people or organization who created this website, who can’t even put their name on it, because they know they are distorting the truth and trying to mislead my constituents.”

If creating anonymous attack sites to bully legislators who are your allies on most issues and hiding your identity while doing it sounds like a slightly seedy way to do politics, remember that Sullivan’s Empower Texans decided to use a song about a stalker and sexual predator to characterize their legislative agenda this cycle:

Judas thought he'd won. He was wrong. Jesus
Judas thought he'd won. He was wrong.

There’s a steep learning curve for a rookie reporter covering the Texas Legislature.

During my brief reportorial tenure, I’ve sat in the wrong committee meeting for an hour without realizing I was in the wrong room, conversed with a senator while thinking she was a reporter and lost my way numerous times in the Capitol.

Fortunately, my personal journalistic mishaps pale in comparison to other WTF moments that transpired under the pink dome this week.

1) Perhaps most notably, I learned that packing heat is an inalienable right bestowed by God (or at least one of his more bad-ass henchmen) who evidently speaks a heavenly dialect of Texan.

Yesterday, at a meeting of the Senate Committee on State Affairs, state Sen. Brian Birdwell (R-Granbury) sought to establish himself as the shooting man’s Joel Osteen. During yesterday’s nine-hour committee meeting, where Birdwell’s campus carry bill was debated, Birdwell shot from the hip, telling Austin police chief Art Acevedo that he’d rather be “tried by 12 than carried by six,” inadvertently revealing himself to be a closeted fan of New York gangster rap from the ’90s.

But he went further. Ready access to guns were among those “rights that are granted by God that are ours to protect.”

jesus-gun

Biblically piqued, the Observer’s skilled team of fact-checkers—self-aware 1999-model turquoise iMacs that we treat as unpaid interns, in contravention of moral, ethical and union codes, as well as the laws of nature—scoured the Good Book, or at least word-searched the thing, for gun talk. They have yet to find any, but they did find a great deal of corroborating evidence:


2)
Returning to the 21st century, we turn our attention to the University of Texas, a hallowed place of learning.

On Monday, The Daily Texan reported that guests at a “Border Patrol” themed frat party partied sartorially by donning sombreros, ponchos and construction worker uniforms with Hispanic names written on them.

Did we mention that lawmakers are working feverishly to get guns into the hands of college students?

3) With fancy Yankee magazines such as the The New Yorker disparaging the Lone Star State at every opportunity, Texans can get a bit prickly about how we’re perceived.

Sen. Bob Hall (R-Edgewood), though, doesn’t seem to give a damn.

During a meeting of the Senate Committee on Veteran Affairs, Hall channeled his inner greycoat, telling the audience that he was particularly honored to sit on the committee in part because his ancestors fought in the “War of Northern Aggression.”

Hall is a new member and we’re just learning about his legislative priorities. So far, he’s mentioned the EMP threat, Agenda 21 and now defending the honor of those men who waged war against aggression.

(Incidentally, it was soldiers from Bob Hall’s alma mater, The Citadel in South Carolina, who fired the first shots of Abraham Lincoln’s folly.)

SNAKEWATCH 2015: California has earthquakes and fires, Hawaii has volcanos and tsunamis, Washington state has Killer BOB, Florida has the Florida Man, New York has Wall Street. Texas has something far worse.

There’s only one reason they would want to take down our radar systems: They’re coming in by air. Birdwell was right: I’d rather be tried by 12 than buried by snakes. Lock. Load. Goodnight and good luck.

State Rep. David Simpson speaks to the Texas House.
Patrick Michels
State Rep. David Simpson (R-Longview) wants to curb synthetic drug sales without expanding the failed war on drugs.

Almost as soon as synthetic marijuana started appearing at smoke shops and gas stations—promising a legal alternative to more conventional, and more obviously illegal, highs—lawmakers have been trying to ban it.

But even with a statewide ban in place for the last four years, local cops have struggled to shut down the sale of “spice” and “incense” because—as we reported last week—the ban is effectively unenforceable in court. Synthetics are also expensive to test, and manufacturers are constantly re-engineering the drugs to steer clear of new chemical bans.

Shoehorning synthetics into our existing anti-drug framework has been maddening for prosecutors, too. In Lubbock, the DA’s office has hand-delivered letters pleading businesses not to sell the drugs. In Alpine, local police backed by the Brewster County DA’s office raided the same smoke shop four times in two years without finding any substances that were illegal at the time of the raids.

Horror stories keep cropping up around the state, and especially in rural Texas, of “bad batches” of spice hospitalizing people who don’t know what it is they’re smoking, or how much they can safely smoke. Decades of marijuana scaremongering have inured most of us to overblown claims about the drug’s dangers. Though the dangers vary from pouch to pouch, early research suggests synthetic marijuana has serious risks, much more so than marijuana.

So lawmakers face the challenge of cracking down on a dangerous new drug at a time of waning support for punitive drug-war policies, when the mood is swinging more toward legalization. Longview Republican Rep. David Simpson is suggesting a different approach, one he says could protect people without giving the state another excuse to lock them up.

“I don’t like the course of violence that is so often pursued on this so-called war on drugs,” Simpson says. “I think the better way to handle it is let the people who’ve been harmed have recourse to justice.”

To that end, one of Simpson’s bills would create a civil penalty for selling or giving synthetic drugs to a minor. Another would make the sale and manufacture of synthetic drugs a violation of Texas’ Deceptive Trade Practices-Consumer Protection Act.

“On the flip side, I think there’s good uses for natural drugs such as marijuana,” Simpson says. “It’s really helping people in the district that I serve, but they’re having to go to Colorado because they’re felons if they bring it back.”

His bills would, in effect, give overdose victims recourse to sue their dealers, a novel anti-drug approach that’s only even possible because synthetics have proven so resistant to traditional criminal penalties.

“We’re hoping that the manufacturers say, ‘It’s better to take care of our clientele than to get sued by them,'” Simpson says. Today, someone buying a packet of spice can’t know much at all about what chemicals they’re about to inhale, or how their body will respond. Lighting up synthetic marijuana may seem like a familiar experience, Simpson says, but what’s actually happening to a person is less clear.

“They don’t realize this roller coaster, though it has a steel monorail, it’s connected to a rotten wooden structure that’s destined for derailment,” Simpson says. “Kids may expect to have some ‘ooh’ and ‘ahh,’ but they don’t expect the train on this fast woopty-doopty monorail to go off the tracks.”

In an op-ed published in the Longview News-Journal this week, Simpson presents another analogy:

Imagine having a beer with friends. You know your tolerance for alcohol will allow you to have one beer and drive home without impairment. Now imagine trying a “synthetic beer” and enjoying it. The next time, though, instead of being able to drive, you find yourself suffering from severe anxiety, nausea, an elevated heart rate, tremors, seizures, hallucinations or temporary blindness.

With no clear idea what’s in that foil pouch, Simpson says, and especially when the product is marketed as “potpourri” or “incense,” the sale is deceptive on its face. “It should be an honest transaction,” he says. “Most people know they’re not really getting potpourri, but they don’t know what they’re getting either.”

Another new bill, filed in the Senate, focuses on how spice packets are labeled. Lubbock Republican Sen. Charles Perry’s proposal creates a broad new legal definition of synthetic drugs, and requires sellers to include labels with the product’s weight and ingredients even if—as many synthetics are today—they’re branded “not for human consumption.”

Like Simpson’s proposals, Perry’s would target the people selling synthetic drugs, not the users.

One more proposal, filed Monday by Amarillo Republican Rep. Four Price, would let the commissioner of the Texas Health and Human Services Commission classify new synthetics as controlled substances on a temporary basis, until the Legislature reconvenes. His bill also provides some protection for consumers, who would be safe from prosecution for taking synthetics if they’d requested emergency medical help.

Simpson and Perry’s bills focus even more on the supply chain, and allow for enforcement in civil, not criminal, courts. Texas District and County Attorneys Association spokesman Shannon Edmonds says that’s an important distinction because the burden of proof is lower in civil cases, making it easier to prove a product meets Texas’ definition of a synthetic drug.

“The goal,” Edmonds explains, “is that you’re going after these businesses that are selling this stuff, and hitting them in the pocket book is the best way to stop them from putting deceptive products on the market.”

Texas Log Cabin Republicans
John Wright
Log Cabin Republicans discuss their legislative agenda prior to the group's lobby day at the Texas Capitol on Thursday.

The Log Cabin Republicans are an LGBT group, but one might not have guessed it based on the legislative agenda for their lobby day at the Texas Capitol on Thursday.

Although Log Cabin’s 11-item agenda included some LGBT issues, it was also plump with conservative red meat, including support for open carry, tax cuts and border security.

Jeff Davis, president of Log Cabin’s nascent Texas chapter, provided a two-fold explanation.

“I’m gay, but I don’t define myself just based on my sexuality, so my politics aren’t defined by that either,” Davis said. “I think it’s also important for us to keep saying to the Republican Party: ‘We’re Republicans. We’re not Democrats. Just because we’re gay doesn’t make us Democrats. We are conservative.’ … We need to show commonality.”

Eight Log Cabin members from across the state attended lobby day, splitting up into two-person teams that were scheduled to meet with legislators or staffers from more than 50 offices. Davis said that’s a significant increase from two years ago and a sign Log Cabin is making inroads in the party, even though the group was denied a booth at last year’s state convention, where delegates added a plank to the GOP platform endorsing “ex-gay” therapy.

“At least with voters, there’s been an outcry against what happened at the state convention,” Davis said. “We’ve gotten a lot of calls, letters and emails from people all around the state saying, ‘I’m a very conservative Republican, but the way you guys have been treated has not been right, I don’t stand for that.'”

According to a recent poll, 42 percent of Texas voters—but only 20 percent of Republicans—support same-sex marriage. However, Davis said most young Republicans back LGBT rights and if the “big tent” party continues to oppose equality, it risks shooting itself in the foot in 2016 nationally, if not in Texas.

Log Cabin’s second-ever Texas lobby day came at a critical juncture for the state’s LGBT community, which faces a slew of attacks in the GOP-dominated Legislature fueled by backlash against the spread of same-sex marriage.

Log Cabin members were scheduled to visit offices belonging to authors of some of the anti-LGBT legislation, and Davis said the meetings themselves were a sign of progress.

“I don’t expect every person that we meet with to—if they are homophobic—to completely turn around,” he said. “That doesn’t happen overnight, but it’s building those relationships and continuing to talk about these issues that’s going to make a difference.”

Two lawmakers with anti-LGBT records downplayed the significance of scheduled meetings between their staffers and Log Cabin members.

“I think it speaks to the fact that we’re always willing to listen,” said Rep. Matt Krause (R-Fort Worth), who was named the most anti-LGBT member of the House by Equality Texas in 2013.

Krause said he’d be unable attend a meeting between his staff and Log Cabin members. He also confirmed his support for a religious freedom amendment that could create a “license to discriminate” against LGBT people. Asked about the effort to remove Texas’ unconstitutional sodomy law from the books—another item on Log Cabin’s agenda—Krause said, “I don’t see myself voting to repeal that at this point.”

Rep. Cecil Bell (R-Magnolia), the author of House Bill 623, which would revoke the salaries of county clerks who issue same-sex marriage licenses, said he wasn’t aware of the scheduled meeting between his staff and Log Cabin members.

“I don’t think I would jump to any conclusions other than the fact that we’re not trying to not hear what people have to say,” Bell said.

Although Krause acknowledged HB 623 may become “moot” if the U.S. Supreme Court strikes down Texas’ marriage ban, Bell disagreed, suggesting he’ll attempt an Alabama Chief Justice Roy Moore-style stand.

“I will still continue with [HB] 623 and with any other efforts that I can put in place to make sure we affirm the power of Texas and of the citizens of Texas to regulate and define marriage,” he said.

Asked about the sodomy ban, Bell indicated he disagrees with the premise of the law—”What happens inside one’s house is one’s personal business,” he said—but wouldn’t commit to voting to repeal it.

Also scheduled to meet with Log Cabin were staffers from the offices of Republican Lt. Gov. Dan Patrick and Sen. Donna Campbell, R-New Braunfels, the author of one of the proposed “license to discriminate” amendments.

“Every constituent is welcome to come by Senator Campbell’s office at any time to discuss issues important to them,” Campbell spokesman Jon Oliver said in a statement. “It was a general meeting with staff simply listening to their legislative priorities.”

Representatives from Patrick’s office didn’t return a phone call seeking comment. On Feb. 24, Patrick is scheduled to be a featured speaker at Texas Faith and Family Day, hosted by Texas Values, the Eagle Forum and other anti-LGBT groups.

Rep. Mary Gonzalez, an openly LGBT Democrat from El Paso whose staff was scheduled to meet with Log Cabin members, said any substantive change will require bipartisan support.

“At least there’s somebody in the Republican Party who’s having those conversations,” Gonzalez said. “I’ve been trying to have some of those conversations on the floor, and I’ll be honest, this session it’s been harder. … I think Log Cabin Republicans’ work is necessary, especially considering the climate of this legislative session.”

Gun-rights advocates rally at the Alamo.
Jen Reel
Gun-rights advocates rally at the Alamo.

Two major gun bills got their first real test today, as a Senate committee heard testimony from more than 100 people on the wisdom of Senate Bill 11, which would allow holders of concealed handgun licenses to pack heat on college campuses, and Senate Bill 17, which would allow CHL holders to carry handguns openly in public. The bills passed out of the committee on a 7-2 vote, along party lines.

Gun rights legislation has been at the center of one of the weirdest circuses of the session so far. Bad behavior on the part of open carry advocates and a misstep by Lt. Gov. Dan Patrick put the future of open carry in doubt, but the Senate set the legislation on a fast path to passage, hoping to reassure angry activists that have demanded nothing less than unconditional surrender from anyone who deviates from the party line. A significant portion of today’s debate focused on campus carry, even though it’s open carry that has seized most of the headlines recently. Both seem assured to eventually pass the Senate.

The chair of the Senate Committee on State Affairs, state Sen. Joan Huffman (R-Houston), seemed eager to get the two bills out of her committee—it’s unusual to vote on a bill on the day of its first hearing, but that’s what happened.

Was that because Huffman loved the bills, or because she wanted to wash her hands of them? Either way, the bills can’t be considered on the floor until the 60th day of the session—which falls on March 13—unless Gov. Greg Abbott declares the gun bills an emergency priority. So there’s not a clear reason for the rush.

Introducing his bill, state Sen. Brian Birdwell (R-Granbury) concentrated his fire on critics of campus carry. Adopting a blustery style that one observer compared to a Cormac McCarthy character, Birdwell was a font of quotes: “I’d rather be tried by 12 than carried by six,” he told Austin Police Chief Art Acevedo, who was against Birdwell’s bill. When UT System Chancellor William H. McRaven’s position on campus carry was mentioned—he’s a former special operations commander who has strongly opposed guns on UT campuses—Birdwell said that once McRaven was given his marching orders from the Lege, “I expect the chancellor to salute and move out.”

When state Sen. Judith Zaffirini (D-San Antonio), one of only two Democrats on the nine-member committee, spoke about the risk of having loaded guns on college campuses, Birdwell tersely replied: “I’ve found unloaded weapons very un-useful, ma’am.” When Zaffirini asked why Birdwell’s bill wouldn’t let universities opt out of the gun law, Birdwell responded that college administrators didn’t have the right to meddle in the “rights that are granted from God,” which fall to the Legislature to protect.

Anti-gun groups, according to emails they released on social media, were told by Birdwell’s staff that there would be no invited testimony at the hearing. But there was, and it came exclusively from pro-gun groups (most notably from the NRA’s top regional lobbyist). That’s happened before—groups that don’t support expanding gun rights are almost never given equal footing with those that do at the Lege.

University chancellors like former state Sen. Robert Duncan, now the chancellor of the Texas Tech System, were allotted only brief comment periods, or had their comments read aloud. Duncan, in his characteristic style, stayed neutral on the bill, but suggested a few amendments for safety’s sake, like banning guns in medical clinics.

A letter from McRaven, read aloud, stressed that many mental health officials who work with college students are very uneasy about the prospect of more guns on campus: Suicide is the second-leading cause of death for college students, and easier access to guns on campus might make suicide even more common. John Sharp, Texas A&M’s chancellor, said he could not “speak to the effect that campus carry will have on other institutions, but it does not raise safety concerns for me.” But he emphasized that campus carry wasn’t an A&M priority.

Many came to spoke against campus carry, including a survivor of the Virginia Tech massacre, Colin Goddard, who asked legislators not to use the incident to justify the bill. And there were several survivors of the 1966 UT Tower shooting, including Ruth Heide Claire James, formerly Claire Wilson, who began her testimony with a jarring declaration: “I was the first one shot in the Whitman massacre.”

Wilson was 18 when the shooting happened, and pregnant, and Whitman killed her unborn child and 18-year-old boyfriend. She lay bleeding in view of the Tower for some 90 minutes until she was rescued. Today, she said that gunfire from well-meaning civilians, causing confusion, was one of the reasons she wasn’t rescued earlier.

State Sen. Charles Schwertner (R-Georgetown), also had a connection to the shooting—his father, he said, had been carrying a scoped rifle that day, and police had instructed him to fire at Whitman.

Today’s hearing also covered what state Sen. Craig Estes jokingly called “a less controversial bill,” SB 17. Estes, the bill’s author, called on Texas “to boldly go where 46 other states have already gone” and pass a law authorizing the open carry of handguns.

But he didn’t say all that much about the bill, leaving it to the public to argue for and against it. Open carry activists want what they call “constitutional carry,” meaning that any member of the public could carry a gun in public without a license. Estes’ bill falls short of that, and they don’t like it.

Angela Rabke of Moms Demand Action, a gun-control group founded after the Sandy Hook massacre, talked about the harassment her group has received from open carry activists; in the overflow room, some of the activists laughed at her. Shortly after she began discussing the “near-constant threats of sexual violence” she’d had to contend with, her time ran out.

Next to her sat Kory Watkins, the leader of Open Carry Tarrant County, who has gotten into his fair share of trouble lately. If he failed to win the right to carry a handgun, and if the Legislature chose “to go against my God-given rights,” he said, “I will continue to walk around with an AK-47.” And he would “walk around until my feet bleed to make sure you’re never an elected official again,” he told the panel.

There were quite a few other sideshow moments. One man compared gun licenses to the yellow stars Jews had to wear in Nazi Germany.

But most witnesses on both sides were respectful and earnest. In the past, gun hearings like this have been overwhelmingly populated by gun rights activists. This time, the balance was closer to even. Those who oppose expanding gun rights are starting to turn out in more serious numbers.

Will that matter at the Lege? Probably not for now: The bills discussed today are on a trajectory to easy passage, at least in the Senate, even if they may have to wait over a month. But public pressure could be meaningful as the weeks go on and the rest of the Legislature considers making changes.

Michael Morton and Rodney Ellis Aim to Improve DNA Testing Law
Kelsey Jukam
Michael Morton speaks in favor of DNA testing legislation filed by Sen. Rodney Ellis.

Michael Morton served 25 years in prison before DNA testing proved that he didn’t kill his wife. Post-conviction DNA testing has led to the exoneration of 52 Texans since 1989 and helped to identify the real perpetrators of the crime in 21 of those cases, including Morton’s. But because of some ambiguous language in current law, access to DNA evidence that could prove innocence is sometimes impeded.

“As it stands now, we have something of a catch-22 in Texas,” Morton said Monday at a press conference, where he spoke in support of new DNA testing legislation filed by Sen. Rodney Ellis (D-Houston).

Morton, who was released from prison in 2011, said he may never have been able to prove his innocence under the current law, which went into effect in September 2011. In January 2010, Morton successfully convinced a court of appeals to test a bloody bandana that had been discovered behind his house. DNA testing found invisible cells on the bandana that excluded Morton and pointed to his wife’s real killer, Mark Norwood, whose profile was in the FBI’s Combined DNA Index System (CODIS).

The Texas Criminal Court of Appeals ruled last year that current law requires those seeking DNA testing to prove the existence of microscopic material on the evidence before testing when there are no obvious indications of DNA evidence—like blood-stains. Often there’s DNA on evidence that’s invisible to the naked eye from saliva, sweat or skin cells.

Last week, Ellis filed legislation—Senate Bill 487—that would clarify the language of the current law in an effort to ensure that courts allow testing of evidence that could prove innocence. The bill also would enhance the use of CODIS to compare evidence to DNA records already on file.

“These changes are simple and would provide the courts with the clear guidance that they requested,” Ellis said at the press conference. “This is about making sure that the right person is convicted and making sure that communities are safe. This is a law-and-order bill.”

Innocence Project attorney Nina Morrison, who represented Morton, said that the bill “strikes the right balance” by giving judges the appropriate amount of discretion to order testing without turning the courts into DNA testing mills.

In Morton’s case, it took a court five years to grant permission to run a DNA test on relevant evidence.

“For somebody to be in a court battle about whether there is evidence for testing when the labs can just tell us—it just seems like a real waste of everybody’s time,” Morrison said.

Ellis was also joined at the press conference by Cory Session, a policy advisor for the Innocence Project of Texas, who said that the bill will keep Texas on the forefront of criminal justice reform.

“We are still our brother’s keeper, whether they are here in the air-conditioned comfort of the statehouse or whether they are still languishing in the un-air-conditioned heat of the big house,” Session said.

Ellis expects bipartisan support for the bill but cautioned that it was still in the early stages and said that he did not have a House sponsor for the bill yet.