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Floor Pass

Texas Family Values Rally
Kelsey Jukam
Jonathan Saenz of Texas Values, right, stares at a cardboard wedding cake celebrating Texas' ban on same-sex marriage in February.


There was a lot of posturing Friday about the death of House Bill 4105, a fairly bizarre anti-gay marriage bill from state Rep. Cecil Bell (R-Magnolia) that fell victim to a major House procedural deadline Thursday night.

Bell, who was one of the reps to cut that famous anti-gay wedding cake a couple months back, aimed to establish another last line of defense against the possibility that the U.S. Supreme Court would invalidate Texas’ constitutional ban on same-sex marriages. His bill, which was co-authored by so many GOP reps that they alone would have guaranteed passage, would have turned the current gay marriage ban to a super-duper superban.

It was a very dumb bill from the start, and mismanaged by its supporters even by the low standards of the Texas Legislature. It was filed very late—literally on the last day a bill could be filed, March 13—and then it sat around. By the time it was eligible to come to the House floor, it was so far back on the calendar that it became easy for Democrats to talk and talk and talk—a tactic known as “chubbing,” for some probably ungodly reason—until the midnight Thursday deadline for considering yet-unpassed House bills.

Immediately, the posturing began. Democrats celebrated the death of 4105 as a triumph of legislative cunning and tenacity. Conservatives bashed House leadership while simultaneously claiming the bill’s existence was evidence they were “#StillWinning,” even if the bill got hara-kiri’ed. On Friday, the overwhelming majority of the House GOP caucus pledged their undying support of traditional marriage in a flowery letter. They wanted the bill to have passed so bad, they said.

It makes perfect sense for the Democrats to claim total victory here, especially since they will have few other chances this session. Gay marriage and gay rights are a huge issue for the party, though it’s hard to predict the practical consequences of Bell’s bill given that the Supreme Court soon might effectively sweep away the relevant statutes. And Democrats certainly were a major reason why the bill died: Chubbing isn’t as tough as filibustering, but they did smart work over the last week to slow the process just enough.

But if they hit a home run here, it’s because they got an easy pitch. Most House GOPers, whatever their other faults, still know a stupid bill when they see one. There’s a general level of acknowledgement in many quarters—even among some social conservatives—that the increasingly Sisyphean struggle against gay marriage is a lost cause, and a distraction from causes the godly folk really care about, like abortion. (Importantly, the business lobby, the Legislature’s one true Almighty Power, is tired of these shenanigans.)

In other words, if House Republicans wanted this to pass, it would have. There’s so much House leadership can do to a bill when it really cares.

But conservatives who want to pin this on House Speaker Joe Straus are ignoring their own glaring failures here. The bill was filed when the session was nearly half-over. Bell’s original gay marriage bill, HB 623, went nowhere, then was dropped and re-emerged, weakened, as 4105.

If anti-gay ringleaders like Jonathan Saenz wanted to maximize their leverage over reluctant pols, there were many other things they could have done, starting by using the more sympathetic Senate. They could enlist Sen. Brian Birdwell or Sen. Donna Campbell to carry a companion to Bell’s bill. Now the framing is different, and you have a lifeboat if Bell’s bill tanks. Instead, they launched a hastily folded paper airplane into anti-aircraft fire. Well done, fellas.

Ah, but Saenz would tell you, we’re still winning. Look at all those names that signed up to coauthor the bill. Look at the letter today, signed by 93 of the House’s 98 Republicans. Does he believe it, or is he putting on a good face? Saenz is, for whatever else he is, not dumb. It would be wise to suspect the latter.

That letter, though. Here’s a sampling of the prose:

Traditional marriage is the bedrock institution of both our society and the success Texas has been blessed to experience since our admission as the 28th state within these United States of America.

We, therefore, affirm the preservation of the present definition of marriage as being the legal union of one man and one woman as husband and wife, and pledge to uphold and defend this principle that is so dearly held by Texans far and wide.

This is a bit like forgetting to water your friend’s plants when she’s out of town, only to send an essay upon her return emphasizing the importance that you place in the concept of plants, and the value of keeping them alive.

None of this is to say that other anti-gay amendments or bills won’t pass in the coming weeks, or that a majority of Republicans in the Legislature are secretly pro-gay marriage. Far from it. If a vote occurs on some of the provisions of HB 4105, offered as amendments to other bills, they could easily pass. But the events of the last few days are evidence of the writing on the wall for Saenz & company.

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Texas House of Representatives
The Texas House in session on April 4, 2013.


This has been a fairly demoralizing few weeks for even those with low expectations for state government. Events point to a significant way in which the polarization of Texas state government is making it more like its dread enemy, Congress.

In recent years across the political spectrum, in Texas and nationally, we’ve seen the time between the end of one election and the beginning of the next shorten—constant political agitation powered in part by the scrutiny brought by new media, and the increasing demand for ideological purity, have dissolved the distance between governing and campaigning.

The 84th Texas Legislature is best understood as one part of a never-ending, ouroboros-like primary. The 2014 election brought us statewide elected officials who don’t know how to stop campaigning: They’ve never been forced to do otherwise. That’s true up and down the statewide ticket, from Gov. Greg Abbott to Ag Commissioner Sid Miller, but it’s manifested itself particularly in the Legislature this year. As a result, and partially because of the role of a number of outside instigators, the political atmosphere around the Capitol this session has been less conducive to governing and more conducive to showmanship and brinksmanship.

Start with Abbott, who must rue the fact that the story of his Jade Helm 15 letter is now entering its third week, and seems to continue ricocheting around national and international media like a stray bullet. It is the most widely covered thing Abbott has done as governor, if not in his entire career as a public servant.

On one hand, some members of the media have made too much of Abbott’s letter. It has few, if any, practical negative consequences.

But the wording of the letter—and the failure of Abbott’s team to comprehend how it would read to outsiders—is small evidence that the governor’s office hasn’t fully adapted to governing. He amplified nutters when he easily could have ignored them. A major responsibility of the governor of any state, one would think, would be to avoid embarrassing his constituents. Are these mistakes because of inexperience, or because he fears a future primary challenge?

Whatever it is, there’s little room to credit him with good faith here: Abbott has a long history of these pontifications. He loves to position himself as the protector of the vulnerable and frightened. When international election observers came to the United States to observe the 2012 presidential election, he threatened them with arrest, cheering conservative groups and earning a similar kind of backlash as the Jade Helm letter. Three years later, he’s using the same playbook.

When it comes to governing, though, Abbott has been less sure of himself. He’s at least partially responsible for the logjam between the House and Senate, thanks to his failure to articulate his positions, a gap the lobby has been only too willing to fill. His failure to speak clearly isn’t about policy confusion—one assumes his team has a preference—but about an unwillingness to take political risks by alienating one chamber or another. But those moments are precisely what governing is about.

Then there’s Dan Patrick, Abbott’s 2014 classmate. One of his first acts with the gavel was to polarize the Senate by killing the two-thirds rule. No longer would Democrats have very much of a say in anything, a change they said would make the upper chamber more like D.C. Still, many of the biggest items on Patrick’s wish list are unattainable to him. Instead, Patrick has developed a novel style of governance, which one could describe as the Senate of Forms.

He pledged to deliver “next level” conservatism to the Lege, but his tenure as lite guv seems to have been consumed primarily by the promotion of bills and policies that are doomed to failure and were perhaps never really even intended to pass. Patrick spent the first two months of the session holding press conferences about his policy agenda, piling those on top of a mountain of promises he’d already made as a candidate, as if he were a newly elected president. It’s a strange way to run the Senate, one that seems tailored solely to help Patrick with his next primary.

Take the effort to repeal the Texas DREAM Act, which allows some of the state’s undocumented residents to pay in-state tuition at state colleges. This was one of the things that Patrick talked most about on the campaign trail: He vowed that its repeal would be one of his first, if not his first, acts. But it was dead from the very beginning of the session, mostly because of his fellow Republicans.

But the shadow puppetry Patrick requires to justify himself to his base demanded that his Senate allies drag the zombie bill through committee hearings. So state Sen. Donna Campbell (R-New Braunfels) terrified an uncountable number of people with the prospect that they, their friends or family, could one day soon no longer afford college. They came to Austin in great numbers to pour their hearts out to the Senate. They couldn’t know the bill was dead, a weird ploy in a long-running conservative shadow war.

When Patrick’s voucher bill, which we know now was also essentially dead from the start, was heard in committee, Patrick came down himself to testify for it—and take a selfie. This is not, traditionally, how the second-most powerful man in the state exercises his influence. It was a show, designed to demonstrate that he cared. People who know how to use power do not normally need to show their hand in this way.

But Patrick’s most important contribution this session has been a tax plan and associated budget gimmicks that make no sense and have almost no value. His proposed tax package gives little to taxpayers and hurts the state. When Patrick next runs for office, few voters will remember the small and temporary tax break he won them. The only importance it holds is that if it passes, Patrick can say that he cut property taxes, and if others oppose him in doing so, he can say that they kept property taxes high.

Greg Abbott and Dan Patrick
Kelsey Jukam
Gov. Greg Abbott and Lt. Gov. Dan Patrick at the State of the State Address.
In this, he’s fighting House Speaker Joe Straus and his allies. The campaign against Straus is one of the longest-running grudge matches in the state, and the lieutenant governor is its new champion. They don’t often talk about policy, and when they do, it doesn’t always go well. To be sure, Straus has found his own pugilists to return fire, state Rep. Dennis Bonnen (R-Angleton) chief among them. But if the two chambers fail to come to an agreement on important issues in the coming weeks, remember that it’s not about policy. It’s the campaign. And if they do come to an agreement, it will be an agreement shaped by dueling egos, not principle.

Finally, there are the legislators themselves. There’s been a general lack of communication between members of the two chambers all session. Budding primary challenges and attack sites began rolling on basically as soon as the Legislature convened. Pretty much everyone, no matter the party or chamber or faction, is unhappy with the way the session has gone so far. Some legislators and staffers say the feeling in the Lege is worse even than it was in 2011, when the Lege had to contend with an apocalyptic budget shortfall.

There could be no better symbol of the ways Austin’s political culture has deteriorated than the news that a sneak of weasels calling themselves the American Phoenix Foundation—conservative activists who at the very least, have a number of mutual friends with the consultants who back Senate right-wingers like Burton, Hall, and Huffines—have been going around the Texas Capitol making secret recordings of legislators as they go about their business.

They claim to have some 800 hours of recordings, excerpts of which Breitbart Texas says it will release after the session. They’ve been walking around the halls of the Capitol, and around Austin, with cameras, hoping to entrap legislators. They’ve harassed reporters. Once their cover was blown, they’ve taken to using their presence to intimidate capitol-goers, offering false bravado in verbal form. They seem to use fake names, and their website lists a fake address. They’re creeps.

It’s the ultimate manifestation of the permanent campaign. The recordings themselves, and the recorders themselves, are almost certainly less impressive than they let on. But even if they caught nothing important, their presence deteriorates relations and trust between legislators further.

The perception will be that one team—the team that the Senate’s right-wing is on—is spying on the other team. And as Ross Ramsey pointed out in the Texas Tribune, the decision to hold whatever the cameras caught until after the session will leave some legislators who might waver on key votes thinking, “What do they have on me?”

So with a few weeks to go in the session, we find ourselves with game-playing leaders, a carnival sideshow in the halls and unhappy legislators who, by and large, trust each other about as far as you can see in The Cloak Room. It’s possible that by Abbott and Patrick’s second session in 2017, all involved will have gained a little maturity and wisdom. But then, we’ll be even closer to the next statewide primary. It’s not an especially promising recipe for the future.

Texas House - House Bill 3994
Alexa Garcia-Ditta

In many ways, it felt like every other debate in recent memory over a major abortion bill: long and painful, laced with an air of inevitability.

After hours of deliberation, and more than a dozen unsuccessful amendments by House Democrats, the Texas House gave preliminary approval late Wednesday night to House Bill 3994, which makes a litany of changes to a legal process set up for minors seeking an abortion. The bill also requires every person seeking an abortion, regardless of age, to show government-issued identification—in effect, it’s voter ID for abortions.

A parental notification law requires that Texans under the age of 18 get their parents’ consent before having an abortion. However, minors can turn to the courts to seek a legal, confidential judicial bypass when they fear they’ll be abused at home because of their pregnancy, or don’t have a parent to consent.

HB 3994 by state Rep. Geanie Morrison (R-Victoria), among many things, increases the burden of proof on the minor from a “preponderance of evidence” to “clear and convincing” evidence, a change House Democrats took issue with early in the debate.

An amendment by state Rep. Roland Gutierrez (D-San Antonio) tried to strike that change from Morrison’s bill altogether, while state Rep. Donna Howard (D-Austin) attempted to add an exception for victims of rape, sexual assault or incest.

“What we put in place here is making a very traumatic situation even more traumatic,” Howard said while discussing her amendment. “She can’t just tell the judge that she’s been raped, that she’s had incest committed by a family member. … She has to be re-victimized and re-traumatized to repeat the circumstances in enough detail to obtain the court order that she seeks.”

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

Since the Legislature set up the bypass process in 1999, many right-to-life groups and legislators have worked to “reform” it. As state Rep. Phil King (R-Weatherford), one of the bill’s authors, put it during Wednesday’s debate, if “government is going to step in between a parent and a child, they need to have a very, very good reason.” However, state Rep. Sarah Davis (R-West University) reminded her colleagues that the original language was in fact set up by conservatives.

Judicial bypass “was created and championed and governed all by Republicans,” she said during the debate. “Are you as confused as I am?”

Currently, a bypass application can be filed in any county in Texas, but HB 3994 would require an application to be filed in a minor’s county of residence; a neighboring county, if her home county has a population of 10,000 people or fewer; or the county in which her abortion provider is located. The bill also requires county clerks to gather and make public data that names judges who grant bypasses.

“Family law is rife with violence, and it is not unusual for judges to be targeted,” state Rep. Mary Gonzalez (D-El Paso) said as she laid out an amendment to eliminate the data collection requirement.

Throughout the debate, Democrats made other fervent but unfruitful attempts to change Texas’ parental notification law, such as allowing a grandparent or older sibling to consent to a minor’s abortion in the absence of a parent, or exemptions for teenagers who are already mothers or who have graduated from high school or have their GED. As House Democrats tried to pepper Morrison with questions throughout the debate, she repeatedly declined to answer, or wasn’t in the chamber at all.

Another crop of amendments targeted the government-issued identification requirement, which many House Democrats see as a “de facto ban on abortion” for poor women or recent immigrants who may not have an ID. Democrats tried unsuccessfully to broaden the list of acceptable forms of identification to include student IDs or IDs issued by foreign countries, such as a birth certificate or passport.

An amendment by state Rep. Matt Krause (R-Fort Worth), which mirrors language from a bill he previously filed that imposes even greater restrictions, was the only one to make it onto HB 3994 before the debate came to a grinding halt, thanks to a point of order—an allegation that a procedural rule has not been followed—by state Rep. Trey Martinez Fischer (D-San Antonio) close to 11 p.m.

After deliberating, Martinez Fischer agreed to withdraw his point of order when Republicans also agreed to jettison their forthcoming amendments. Suddenly, it was a over in a snap—the House approved Krause’s amendment, and then ultimately passed HB 3994 with a 98 to 47 vote.

“In the end, there were probably several amendments that would have been controversial and very divisive [that] were avoided because of the point of order,” Martinez Fischer told reporters after the vote.

The House must give final approval on HB 3994 before midnight tonight; then the bill heads to the Senate.

video visitation

In 2013, the Federal Communications Commission announced that it was taking action to make long-distance prison phone calls much more affordable. Instead of $17 for a 15-minute call, the new cost would be no more than $4. The reform was a long overdue response to a petition that had been filed 10 years earlier by an elderly grandmother, Martha Wright, who fought for fair phone rates so she wouldn’t have to choose between buying her medicine and calling her grandson in prison. In the wake of FCC crackdowns, the industry, which generates $1.2 billion a year, went looking for a new revenue stream.

Prison phone service companies like Dallas-based Securus Technologies, Inc. have found a new way to profit from their captive audience: video visitation systems. In the last two years, at least 25 county jails in Texas have installed video terminals that allow inmates to chat with friends, family and others on the outside. Like the phone systems, the cost of using the service is steep: up to $1 per minute for a Skype-like chat, not including usage fees and taxes. But the real kicker is that in many cases the video systems are replacing in-person visits.

That trend is concerning to some lawmakers who are trying to pass legislation this session that would preserve in-person visits at county jails. A bill by Rep. Eric Johnson (D-Dallas) to do just that overwhelmingly passed in the House Monday, but only after an amendment was added that leaves a significant portion of the jail population out. The Senate is likely to hear the bill next week, and Johnson thinks that it has a good chance of passing there, too.

Since adopting the video technology, at least 14 counties in Texas have eliminated the ability of inmates to meet face-to-face with family and loved ones—a move that activists have called unconscionable. Some Securus contracts require jails to eliminate in-person visits. Until last week, that was a standard stipulation in Securus’ contracts. Other lock-ups, like the Travis County Jail, have independently decided to offer video visits only.

Rep. Eric Johnson authored a bill to preserve in-person visits at county jails.
Courtesy of
Rep. Eric Johnson

That means visitors have two options: travel to the jail to use the terminals—which have been described as low-quality, with glitches and lag time—for free, or pay the steep fees to chat remotely. Either way, visitors and inmates report having trouble maintaining eye contact with each other, since the systems have cameras that are set higher than the screen. Video chats are no replacement, they say, for human contact that can benefit both inmates and their families.

“New technology could be used in a really wonderful way that would enhance people’s abilities to see loved ones who are locked up,” says Quong Charles, who is the criminal justice programs director for the prison reform group Grassroots Leadership.

But she says the system doesn’t work well, and that seeing someone through a screen is a “disembodied experience.”

“In the free world we wouldn’t pay for this service,” she said.

Grassroots Leadership has been trying to get in-person visitations restored at the Travis County Jail for almost two years. The group was alerted to the situation there after the Texas Civil Rights Project filed a lawsuit against Securus and the Travis County Sheriff’s Office for allegedly unlawfully recording the video chats. Another lawsuit was filed in March on behalf of Derrick Matthew Rice, a 29-year-old inmate at the Denton County Jail, against Securus, the Denton County Sheriff’s Office, and the Texas Commission on Jail Standards. The suit claims that eliminating in-person visits is a violation of what’s already stipulated in jail standards.

Johnson’s bill won’t eliminate video visitation, but instead ensures that most county jails still offer in-person visits as an option. In a committee hearing in April, Johnson noted that more than half of county jail inmates haven’t been convicted of any crime. Most are in jail because they couldn’t afford to pay their bond. And with video-visitation systems, families who could be using money to pay to get their loved one out of jail end up spending money that money just to see him or her on a screen.

“Their family members aren’t guilty of anything,” Johnson said. “Unless you consider being poor a crime.”

But during Monday’s floor debate on HB 549, some lawmakers seemed more concerned with whether the bill would place an unacceptable financial burden on counties. Rep. John Frullo (R-Lubbock) said Lubbock County just spent $80 million dollars on a new jail, and that it would cost $8 million to adjust the facility to comply with the bill. He and 131 other legislators voted to add an amendment to the bill that essentially excludes those 14 counties that have already instituted video-only visitations.

Legislators supporting the amendment argued that some jails have been retrofitted for the video systems, or recently built without the facilities necessary for in-person visitations. Altering those facilities to comply with the in-person visit requirement would be too costly, they claim.

Quong Charles says it’s good that the bill would prohibit more than 200 Texas counties from eliminating in-person visitations in the future. But because many of the grandfathered jails are some of the biggest in the state, the current version of the legislation, she says, is “unfortunately not going to protect a large number of people.”

Those counties could choose to bring back in-person visitations, but they have little financial incentive to do so. Jails receive a commission from companies like Securus for every video call, and can save money in staffing costs by eliminating the need for visitation receptionists.

Mary King, jail programs and project coordinator for Bastrop County, spoke to the Observer last fall as that county’s jail was getting ready to eliminate in-person visits. She said Bastrop County has a powerful incentive to limit visits to the jail altogether.

“To be honest, yes, you really want to reduce the number of on-site visits because of the amount of staff time it’s still going to take,” she said.

More important, Bastrop County doesn’t a get commission for video chats made on-site. Furthermore, Bastrop County’s contract with Securus stipulates that the company will pay the jail a 20 percent commission only for months during which 534 or more remote calls have been made. If the facility fails to meet that quota, they don’t get paid at all.

She agreed with those who say that face-to-face visits are better than video conferencing.

“I’m not sure if I had a family member here and I lived here, that I’d like it either,” King said.

But she sees the other side of it, too: “Honestly, the jail is no different from any other business. The county is just a business.”

Additional reporting by Forrest Wilder

Too Young to Jail

Harris County Juvenile Justice Center
Harris County Juvenile Justice Center

Senate Committee on Criminal Justice Chairman John Whitmire has been on an eight-year march to clean up the Texas juvenile justice system, driving a messy process that has involved the closure of state-run lockups, the restructuring of two state agencies and a reduction in the state’s population of juvenile offenders to one-fifth of what it had been.

Not long ago, Texas was a cautionary tale of mismanagement and unchecked abuse; now it’s seen as a national leader in juvenile justice reform. But this year, the question of how that reform should proceed has split Whitmire from many of his usual allies.

His priority this session is to further reduce the number of youth in remote state lockups, placing more of them in probation and treatment programs near their homes and families. There’s widespread support for his bill that’s intended to accomplish that.

A coalition of child advocates and criminal justice reformers has argued for another big change this session: to raise the age of “criminal responsibility” from 17 to 18.

State Rep. Abel Herrero (D-Corpus Christi) has illustrated the law’s strange logic with a hypothetical: “A 17-year-old could go into a store and could not buy cigarettes,” he told the Associated Press in March, “but they could steal the cigarettes and be punished as an adult.”

In the House, there’s apparently plenty of support for changing the law, but Whitmire is against it in the Senate.

For one, he objects on philosophical grounds: The line between juvenile and adult must be drawn somewhere, and Whitmire likes it just where it is. “I personally, philosophically, believe that if a 17-year old commits a violent act, I see no reason to change that they wouldn’t be [treated] as an adult,” he told the Observer.

He’s also concerned that the juvenile system isn’t ready for an influx of new 17-year-olds. He worries the 13-and 14-year-olds could be put at even greater risk, and he questions whether Texas juvenile lockups, in their current states, are any safer than a segregated spot in an adult jail.

“Raise the age” advocates note that even after the change, violent 17-year-olds could still be certified as adults. In 2013, 96 percent of the 17-year-olds arrested in Texas were caught for drug possession and other nonviolent crimes—and in those cases, a treatment program and a sealed record could change their lives.

Recent research has noted that young people are more impulsive than adults, but they’re also more receptive to rehabilitation. Intervening early could keep many from re-offending—saving the state money in the long run.

Despite the added cost of treating 17-year-olds in the juvenile system, the conservative Texas Public Policy Foundation has signed on. TPPF analyst Derek Cohen told House members at a hearing in April that 17-year-olds simply don’t belong in the adult system. “It’s about using the best particular tool for the job,” he said.

House members at that hearing, Republican and Democrat alike, seemed receptive to the idea. Some probation officers said they needed more time to prepare for the change, and county officials pleaded for help covering the costs. But all seemed to agree on the premise. Elizabeth Henneke of the Texas Criminal Justice Coalition reflected at one point: “Not a single person has come up here and said 17-year-olds should not be treated as kids.” That may not be the case, though, if the bill comes up for debate in the Senate.

Richard Pena Raymond
Rep. Richard Raymond

After about half an hour of debate Friday, House lawmakers passed House Joint Resolution 79, by Rep. Paul Workman (R-Austin). The resolution requests that Congress convene a convention of states to consider amending the U.S. Constitution to require a balanced budget. Though little more than a huffy paper protest, the Legislature is fond of such exercises blasting the feds.

HJR 79 requests that Congress call a convention “for the limited purpose of proposing an amendment to the constitution to provide for a federal balanced budget.”

While mostly Republicans supported the resolution, which passed 100-40, Rep. Richard Raymond (D-Laredo) co-authored the legislation and more than a dozen Democrats voted for it.

“The deficit is bad for the economy, and it won’t get fixed without an amendment,” Raymond told the Observer. “I firmly believe this.”

Article V of the U.S. Constitution requires that Congress convene a national convention for the purpose of amending the Constitution if two-thirds of the states call for one. It’s never been done and no one really knows how it would work, but conservative groups are increasingly championing the idea.

Economists say that forcing a balanced budget during an economic turndown could cripple the national economy. In a January New York Times column, Nobel Prize-winning economist Paul Krugman called the “balanced-budget fetish” deeply irresponsible.

More than two dozen states have passed resolutions calling for a balanced budget amendment by way of Article V, though there is some debate about the validity of some of the requests.

San Antonio-based political scientist Jonathan Bernstein calls a balanced budget amendment via constitutional convention “the worst idea in American politics.”

Washington Monthly went a step further, calling it “the dumbest constitutional amendment of all time.”

And while it’s no surprise that GOP lawmakers support the measure—tweaking the Obama administration over deficits is de rigueur in Congress—some Texas Democrats have jumped on the bandwagon.

Balancing the federal budget would likely require large tax increases, spending cuts, or both. Supporters, including three Texas Democrats who voted for HJR 79, were loath to name specific tax increases or spending cuts they would support in order to balance the budget.

“I believe in a balanced budget,” said Rep. Sylvester Turner (D-Houston) after he voted for the resolution. When asked which programs he would cut or which taxes he would raise to accomplish that goal, Turner demurred.

“I’m not in D.C., I can’t tell you about the federal budget,” Turner said.

All states except Vermont require balanced state budgets, but unlike the federal government states don’t pay for wars or provide for Social Security.

This is not Texas’ first Article V gambit. Texas passed convention-of-states resolutions in 1973, to prevent school desegregation, and in 1977, to balance the federal budget. Both measures failed.

“I think a balanced budget is a good thing,” said Rep. Joe Deshotel (D-Beaumont). But Deshotel admits that it will likely be a long time before Congress calls a constitutional convention.

“It was just a philosophical vote. We know nothing is going to happen with this,” he said.

John Wright
Texas Values President Jonathan Saenz, clockwise from left, Rep. Cecil Bell, Texas Pastor Council Executive Director Dave Welch, Rep. Rick Miller and his wife, Babs Miller, confer after a committee hearing on House Bill 4105 last month.

The future of the battle over gay marriage in Texas—and possibly in other states—is likely to be determined by the House of Representatives in the next 72 hours, according to LGBT advocates.

House Bill 4105, by Rep. Cecil Bell (R-Magnolia), which is designed to undermine a U.S. Supreme Court ruling in favor of same-sex marriage, is scheduled for a floor vote Tuesday.

Kathy Miller, president of the Texas Freedom Network, said if HB 4105 passes the House, it’s very likely to clear the more conservative Senate before being signed by Republican Gov. Greg Abbott. There were 204 bills ahead of HB 4105 on the House calendar, and the deadline for it to pass the chamber is midnight Thursday.

“This House vote is a critical showdown. If the bill is delayed in coming up, if there are procedural issues with the bill, or if the leadership persuades the bill’s author to take the bill down, then it will not get passed and we will have dodged a bullet,” Miller told reporters during a phone conference Monday morning. “The ball game is really all being played in the Texas House of Representatives in the next 72 hours, and if I had to say, I don’t know what’s going to happen. It’s critical that people speak out.”

HB 4105 is one of more than 20 anti-LGBT bills introduced in the 84th Legislature, believed to be the most in the history of any state. However, with time running out in the session, only four have cleared committee, and of those LGBT advocates view HB 4105 as the most significant threat to equality.

The bill would bar state and local employees from issuing, enforcing or recognizing same-sex marriage licenses—and prohibit public monies from being used to do so—regardless of any court order.

LGBT advocates say if the high court rules in favor of same-sex marriage, HB 4105 would set up a showdown between state and federal law, costing Texas millions of dollars in litigation and potentially delaying the effectiveness of the decision by years. They say the bill would unleash chaos similar to what’s been seen in Alabama over same-sex marriage, and generate the type of business backlash associated with passage of an anti-LGBT religious freedom law in Indiana.

Unless it receives a two-thirds supermajority of 100 votes in the House and 21 in the Senate, HB 4015 wouldn’t take effect until Sept. 1, more than two months after the high court rules in same-sex marriage cases from four other states in late June.

In addition to Bell, HB 4105 is co-authored by 88 other House Republicans. Only nine Republicans hadn’t signed on as co-authors as of Monday morning: Rodney Anderson (Grand Prairie), Sarah Davis (Houston), Craig Goldman (Fort Worth), Todd Hunter (Corpus Christi), Linda Koop (Dallas), Morgan Meyer (Dallas), John Smithee (Amarillo), Speaker Joe Straus (San Antonio) and Jason Villalba (Dallas).

None of the chamber’s 52 Democrats were listed as co-authors.

“There’s a great deal of opposition to this bill too, primarily from Democrats,” Miller said. “I think there is a lot of quiet opposition from moderate Republicans, so I think the supermajority would be much more difficult to achieve.”

Rebecca Robertson, legal and policy director at the ACLU of Texas, said HB 4105 is designed to give Texas another legal basis for challenging same-sex marriage in court: state sovereignty. And she said it could be used as a model by other states for resisting the Supreme Court ruling.

“The last time that we saw similar efforts to undermine court rulings about what the Constitution requires was when Southern states attempted to use the power of the purse to avoid having to comply with federal court orders ordering school desegregation,” Robertson said. “Those tactics were rejected, but obviously it took years of litigation to get to that point. HB 4105 is trying to do the same kind of end run around the Constitution.”

If the bill passes, state and local officials likely would face lawsuits from either side depending on whether they choose to issue or recognize same-sex marriage licenses, Robertson said.

Under the bill, if a county clerk were to issue a marriage license to a same-sex couple, the state would retain $30 from the fee that’s normally returned to counties. The bill would also prohibit the state Vital Statics Unit from recording the license, and require that it be turned over to the attorney general’s office.

Travis County Clerk Dana DeBeauvoir estimated the bill would cost her county $40,000 annually in fees from same-sex marriage licenses. Nevertheless, if the high court rules in favor of marriage equality, her office likely would begin issuing licenses to gay couples shortly thereafter.

Other county clerks said they’re taking a wait-and-see approach but would be reluctant to alter the marriage license application forms.

Attorney General Ken Paxton, who staunchly opposes same-sex marriage, didn’t respond to a request for comment about HB 4105.

Gov. Greg Abbott, who vigorously defended the state’s marriage ban as Paxton’s predecessor, has not said whether he would sign HB 4105.

“Typically, we don’t comment until it’s either passed both chambers or on the way to his desk,” Abbott spokesman Sam Taylor said. “There are rare exceptions.”

One of those exceptions came last week, when Abbott announced support for Senate Bill 2065 and House Bill 3567, which are designed to prevent pastors and churches from being forced to participate in same-sex weddings. The Senate tentatively approved SB 2065 in a 21-10 vote Monday, and the House is scheduled to vote on HB 3567 Tuesday. 

LGBT advocates say they’d support SB 2065 and HB 3567 if the proposals are narrowed so they merely mirror existing protections, but the authors have refused to do so. 

pre-k funding


After about an hour of debate, the Senate passed legislation Thursday that would modestly increase funding for pre-K programs. House Bill 4, a priority of Gov. Greg Abbott, passed on a 25-6 vote, with a handful of GOP senators voting no.

That group included Konni Burton (R-Fort Worth), Troy Fraser (R-Horseshoe Bay), Bob Hall (R-Edgewood), Don Huffines (R-Dallas), Van Taylor (R-Plano) and Brandon Creighton (R-Conroe).

HB 4, by Rep. Dan Huberty (R-Houston), would provide $130 million in grants to school districts that adopt new standards for curriculum and teacher qualifications. The pre-K expansion, although well below funding levels as recently as 2011, had drawn the ire of tea party leaders appointed to a grassroots advisory board by Lt. Gov. Dan Patrick. In April, the activists branded pre-K “godless” and “socialistic” in an impassioned letter to the Senate.

On Thursday, Sen. Donna Campbell (R-New Braunfels), the bill’s Senate sponsor, took pains to frame the measure in terms of accountability rather than increased funding.

“I want to send a clear message that these dollars are for quality, not expansion,” Campbell said, an overture to conservative groups that have argued vehemently against bringing new students into the state’s limited pre-K program, which primarily serves low-income and at-risk students.

The Legislature cut nearly $300 million from pre-K programs in 2011 but restored $30 million two years later. HB 4 would increase funding for pre-K programs by about $130 million—still below 2011 levels.

During debate today, Sen. Judith Zaffirini (D-Laredo) referenced the 2011 cuts. “We had taken a giant step backward and this is a little step forward,” Zaffirini said. Pre-K advocates have lobbied for more ambitious pre-K improvements, such as funding full-day pre-K, limiting teacher-student ratios, or providing new money through the relatively stable funding formulas rather than grants.

Despite the relatively modest increase in HB 4, the bill has grown into a major point of contention during the legislative session.

Gov. Abbott named increased pre-K funding a legislative priority in January, and HB 4 passed the House on a 129-18 vote in April. But two weeks later, the tea party letter threatened to derail things.

“The early removal of children from parents’ care is historically promoted in socialistic countries,” Patrick’s advisory board wrote.

The letter contributed to tension between the state’s top three officials, and prompted newspaper stories with headlines fit for The Onion. In an editorial titled, “Texas View: Pre-K isn’t Satanic or Socialist,” the Corpus Christi Caller-Times wondered, “How can God be everywhere except pre-kindergarten?”

Some observers speculated that Patrick would try to advance his pet school voucher legislation with a Senate amendment to HB 4, but no such amendment was offered.

The Senate did pass several amendments to the bill, including one to prevent Common Core curriculum standards from being taught in pre-K programs (there are no Common Core standards for pre-K), and an amendment creating pre-K teacher guidelines.

If the House agrees on the Senate’s amendments to the bill, it will be sent to the governor for final approval.

voter id registration

Four years after Texas passed one of the strictest voter ID laws in the nation, lawmakers will debate another measure on Thursday that could make it even more difficult for Texans to vote.

House Bill 1096, by Rep. Jim Murphy (R-Houston), would require the address on a voter’s approved ID, such as a driver’s license, to match their voter registration address. Currently voter ID addresses and voter registration addresses do not have to match.

If a voter registrar believes a voter’s residence is different from that indicated on registration records, the registrar may send the voter a residence confirmation notice. Voters can respond by submitting a signed response confirming their residence.

Under HB 1096, voters would have to provide “evidence” that their residence address matches their voter ID.

Critics argue that requiring voters to have updated addresses on their IDs would be another burden on poor and minority voters, who move often and tend to vote for Democrats.

“Currently no one is being denied the right to vote because they just moved,” said Texas Democratic Party Executive Committee Member Glen Maxey. “This bill would change that. Despite the rhetoric about voter integrity, efforts like HB 1096 are simply an exercise in voter suppression. Some people are trying to kick certain people off voter rolls who don’t look like them.”

Laying out his bill in committee, Murphy said the intent of the measure is simply to ensure that voters will reside and vote in the same precinct.

Jim Murphy
Rep. Jim Murphy (R-Houston)

But in tea party circles the bill is all about saving democracy from fraudsters.

“The game to steal elections is always afoot,” Houston Tea Party activist Kelly Horsley wrote in a March blog post about the bill.

Such fears have led to a creeping phenomenon: tea party poll watchers.

Alan Vera, chairman of one such group—the Harris County Republican Party Ballot Security Committee—testified in favor of the bill in March. Vera said his five years reviewing and challenging voter registration have shown him just how bad Texas election law is.

With a healthy dose of indignation in his voice, Vera said when it comes to the election code “Texas is F Troop, and I’m tired of being F Troop.”

Although voter fraud is an infrequent problem, Republicans in the Legislature went to extraordinary lengths to pass Texas’ voter ID law in 2011. It requires voters to present an approved form of photo identification, such as a driver’s license or concealed handgun license, to vote. The name on the ID must exactly match the name on the list of registered voters. If the names are “substantially similar,” the person can still cast a ballot by signing an affidavit. Wendy Davis, Leticia Van de Putte and Greg Abbott all had to sign affidavits in 2013. If the names are not substantially similar, the voter may have to vote “provisionally” and go to the local voter registrar’s office within six days to present an approved photo ID. Simple!

HB 1096 could have repercussions for at least one member of the Elections Committee. Freshman Rep. Dade Phelan (R-Beaumont) says his wife voted in House District 21 last fall, but according to documents obtained by the Observer the address listed on her driver’s license is in the adjacent House District 22, represented by Democratic Rep. Joe Deshotel (R-Beaumont). An honest mistake perhaps, but indicative of where updating driver’s license addresses falls on many Texans’ priority list.

Phelan says he and his family moved into District 21 in October 2013. “I don’t know if my wife has updated her driver’s license. She should have changed it. I don’t know if she has or hasn’t.”

Maxey says that HB 1096, just like the 2011 voter ID law, targets poor, minority, elderly and disabled Texans.

“In America you think that every citizen would be eligible to vote, even people who move a lot,” Maxey said. “Texas is going the opposite way. If you’re not smart enough, or with it enough to know you need the right address on your driver’s license to vote, then fuck you.”

Corrected: The original version of this story stated that Ms. Phelan voted in House District 22 but her license indicates an address in House District 21. In fact, Ms. Phelan voted in House District 21, which Rep. Phelan represents, but her license indicates an address in House District 22. The story also stated that Rep. Phelan moved into House District 21 in August 2014, He says he moved into his district in October 2013. The Observer regrets the error.

Garnet Coleman
Kelsey Jukam
Rep. Garnet Coleman (D-Houston)

To explain why Texas should remove its unconstitutional sodomy ban from the books, Rep. Garnet Coleman (D-Houston) pointed to state budget advisers’ fiscal note for his proposal to repeal the law.

“It is currently a Class C misdemeanor to engage in same-sex sexual intercourse,” the fiscal note states. “A Class C misdemeanor is punishable by a fine of not more than $500. Lost revenue from reduced fines imposed and collected is not anticipated to have a significant fiscal impact.”

Texas’ “homosexual conduct” law was struck down as unconstitutional by the U.S. Supreme Court in 2003. But Coleman said the fiscal note for House Bill 2057, which would finally repeal the statute, illustrates the confusion that results from leaving it on the books.

“Our Legislative Budget Board wrote a fiscal note on a law that’s been overturned by the Supreme Court,” Coleman told the House Committee on Criminal Jurisprudence on Wednesday. “That shows you the problem. As long as it’s on the books, people will arrest someone for a law that’s not valid and will write a fiscal note based on a law that’s not valid.”

Rep. Joe Moody (D-El Paso), a member of the committee, said he was “baffled” by the fact that the sodomy ban is still on the books. And Rep. Terry Canales (D-Edinburg) called it “amazing.”

Douglas Alexander, a representative from the State Bar of Texas, testified in support of HB 2057 and noted that patrons of an El Paso restaurant were threatened with arrest under the sodomy ban in 2009. The men filed a federal lawsuit against the city that was settled three years later.

“It’s virtually guaranteed that as long as this law is on the books, other incidents of this type will occur in other municipalities, which will undoubtedly result in substantial expenses,” Alexander told the committee. “By failing to take the step of removing it, which now the Legislature has the option to do, it basically creates an unfunded liability.”

In addition to repealing the sodomy ban, Coleman’s bill would strike sections of the Health & Safety Code that reference it. Those sections require that “materials in the education programs intended for persons younger than 18 years of age must … state that homosexual conduct is not an acceptable lifestyle and is a criminal offense under Section 21.06,” as well as that “course materials and instruction relating to sexual education or sexually transmitted diseases should include … emphasis, provided in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under Section 21.06.”

Rep. Matt Shaheen (R-Plano), a member of the committee, suggested that the Legislature should replace that section.

“Does it make sense to add language here that talks about the fact that the ideal environment for a child is a mom and dad?” Shaheen said.

Coleman responded that his bill would not remove another paragraph stating that sexual abstinence before marriage and fidelity in marriage are the most effective ways to prevent HIV infection, sexually transmitted diseases and unwanted pregnancies. Coleman told Shaheen he wrote that language with former Rep. Warren Chisum (R-Pampa).

“I wouldn’t want to see anybody remove that language from that statute,” Coleman said. “It’s been there since 1995 and has served us very well.”

Despite being introduced in every session since 2005, proposals to repeal the sodomy law have never made it to the floor of the House or Senate. This year may not be any different. HB 2057 was left pending on Wednesday with less than a week for House bills to be voted out of committee.

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