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West, Texas Blues

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

 

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

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

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

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

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

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

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

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

Texas Fire Marshal Chris Connealy
Texas Fire Marshal Chris Connealy

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

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

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

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

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

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

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

But Pickett isn’t satisfied with the changes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whitmire vehemently disagreed with his bill’s opponents.

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

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

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

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

SB 106 bill now moves to the House for consideration.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The bill was left pending in the committee.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The House State Affairs Committee left the bill pending.

 

State Rep. Rafael Anchia
Rep. Rafael Anchia (D-Dallas) delivered an impassioned speech in support of a pro-LGBT birth certificate bill on the House floor Wednesday.

Gay adoption took center stage at the Texas Legislature on Wednesday.

Prior to a hearing on a bill that would permit faith-based adoption agencies to discriminate against LGBT people, Rep. Rafael Anchia (D-Dallas) delivered an impassioned speech on the House floor in support of a proposal to allow the adopted children of same-sex couples to have accurate birth certificates.

Anchia’s House Bill 537 was heard by the State Affairs Committee last month but remains stalled there due to a lack of support among members. On Wednesday, Anchia used a rare point of privilege, which he said was his first in six terms in the Legislature, to address the bill on the floor.

Anchia said the bill, which he’s carried four times, is always well-received in committee, and the author of the law the measure seeks to overturn, former state Rep. Will Hartnett (R-Dallas), has acknowledged it should be changed.

“Yet year after year these bills languish because of outside pressure from groups that lie to you and tell you the bill does something it doesn’t do,” Anchia said, referring to opposition to HB 537 from the anti-LGBT group Texas Values. “Regardless of how you feel about a kid’s parents, you’re always good to the kid. They didn’t pick their parents, but those are the parents they have, and you know, those are the parents they love, and they deserve accurate birth certificates. We can do better than this. Texas is better than this.”

Rep. Byron Cook (R-Corsicana) then requested that Anchia’s remarks be recorded in the House Journal.

Cook, who chairs State Affairs, made headlines when he smacked down a witness from Texas Values during a hearing on the bill.

“I just want everybody to know that I support what we’re trying to do here for these kids,” Cook said on the floor Wednesday.

Meanwhile, the House Committee on Juvenile Justice and Family Issues was set to consider HB 3864, by Rep. Scott Sanford (R-McKinney), which would allow child welfare agencies that contract with the state to discriminate based on sincerely held religious beliefs.

Another anti-LGBT measure, HB 2801, by Rep. Gilbert Peña (R-Pasadena), was temporarily pulled from consideration in State Affairs on Wednesday. The Associated Press reported that Cook told Peña the committee wouldn’t consider the bill until it’s “toned down.”

Also on Wednesday, a bill calling for a study on homeless youth, up to 40 percent of whom are believed to be LGBT, passed the House on second reading. HB 679, by Rep. Sylvester Turner (D-Houston), is supported by Equality Texas.

Watch video of Anchia’s speech below.

Fracking protesters outside the Capitol
Patrick Michels
Lela Lofton, right, and Amanda Renfro in an overnight protest against attempts to curtail local control of fracking.

 

Despite vociferous opposition from local elected officials, environmentalists and citizens, many Democrats in the Texas Legislature are supporting controversial legislation that would strip local governments of the power to regulate or ban fracking.

House Bill 40, by Rep. Drew Darby (R-San Angelo), is one of 11 measures in the Legislature filed in response to a fracking ban approved by Denton voters in November. Darby’s bill, which was temporarily delayed on Tuesday, would overturn Denton’s fracking ban, Dallas’ de facto prohibition on drilling and other cities’ oil and gas regulations, possibly even rules about the distance between rigs and homes not deemed “reasonable.”

Rep. Senfronia Thompson, a progressive Democrat and the longest-serving woman legislator in the House, is one of eight Democrats sponsoring the legislation.

“I think that fracking is a safe mechanism, which they can use to be able to extract oil,” she said. Asked about the practical impact of the bill and whether it would allow oil and gas companies to challenge ordinances they don’t deem “reasonable,” Thompson said, “You’re asking me a legal question, and I haven’t had oil and gas law since I was in law school.”

Most of the Democrats who signed onto HB 40 are from areas that don’t contend with the hazards of urban drilling: earthquakes, noise, pipelines through yards and air and water pollution. None are from North Texas, where drilling rigs and other oil-and-gas infrastructure often sits uncomfortably close to homes, churches and businesses.

“The cities are the ones who are truly affected, and we’re taking that out of their hands and saying that we’re going to be the ones doing it?” said Rep. Nicole Collier, a Democrat from Fort Worth who plans to vote against HB 40. “They’re the ones who have to answer every day, and we’re taking that out of their hands.”

On Monday night, activists set up a 15-foot mock drilling rig outside the Capitol and staged an all-night vigil in preparation for the vote that was expected to happen Tuesday. A technical error forced legislators to postpone HB 40, which likely will be back on the floor as soon as Friday.

Rep. Senfronia Thompson displays a hanger during a contentious abortion debate on the House floor in early July.
Patrick Michels
Rep. Senfronia Thompson displays a hanger during a contentious abortion debate on the House floor in early July.

Collier said she hopes to add a provision to the bill that would reimburse cities for costs associated with accidents, such as the leaking gas well that led to an evacuation of hundreds of Arlington residents over the weekend. But the Texas Municipal League, the Texas Oil and Gas Association and Darby have pledged to support the current version of the bill and oppose any changes. The municipal league, which represents local government, wrote on its website that “it’s nearly certain that further amendments to the bill would make it worse instead of better.”

In the Senate, a similar bill was unanimously voted out of committee in March. Two Democrats, Sen. Judith Zaffirini (D-Laredo) and Sen. Carlos Uresti (D-San Antonio) voted for SB 1165. Zaffirini represents a portion of the Eagle Ford Shale, one of the most active shale plays in the world. She chairs the booster-ish Eagle Ford Shale Legislative Caucus.

Why would Democrats, who’ve complained all session that Republicans are eroding the long Texas tradition of local control, support HB 40?

“Because they can and not have any harm,” Collier said, referring to blowback from constituents.

Former Fort Worth state Rep. Lon Burnam, now a volunteer lobbyist with Public Citizen, had some tough words for his former colleagues. “These people have been here too long and have become jaded,” he said.

He said Democratic support for overturning fracking regulations is testament to the financial power of the oil and gas industry. Oil and gas interests donated $5.5 million to legislators in the 2014 cycle, according to a recent Texans for Public Justice report, about 17 cents of every dollar contributed during that period.

Environmentalists complain that banning fracking bans not only endangers the health and safety of citizens but also constitutes an assault on local democracy. If passed, HB 40 would overturn the Denton and Dallas measures that ban fracking. It’s also expected to invalidate many other municipalities’ ordinances governing fracking.

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

Supporters of the bill, backed by the power and money of the Texas oil and gas industry, argue that the Railroad Commission’s authority to regulate oil and gas operations preempts local governments from being able to ban or otherwise impede the practice.

The bill uses broad and convoluted language to describe allowable city ordinances. Only “commercially reasonable” laws pass muster. Cities also could only set rules for activities “at or above the surface of the ground”—the bill specifically mentions noise, lights, traffic and fire and emergency response—and the rules couldn’t prohibit a “reasonably prudent operator” from extracting oil or gas. Ordinances that have been in effect for five years and have allowed “oil and gas operations … to continue during that period” would generally be considered “commercially reasonable.” Got all that?

Opponents argue that industry attorneys will use the language to topple any rule they don’t like and take down established ordinances wherever they like.

Andrew Dobbs, who organized the Monday night vigil for Texas Campaign for the Environment, said he was frustrated to see Democrats playing along.

“I hear Democrats in this state say all the time, ‘If only we could get people to go out and vote for us, if only people didn’t stay home on Election Day,’ and then they go and do stuff like this and they wonder why people don’t want to vote for them,” he said.

Reynold.Ron
John Wright
Rep. Ron Reynolds speaks during Freedom Advocacy Day on the north steps of the Capitol on Monday.

Monday’s Freedom Advocacy Day at the Texas Capitol couldn’t have come at a more critical time.

With two anti-LGBT bills scheduled for hearings this week, hundreds of gay-rights supporters rallied on the north steps before fanning out to lawmakers’ offices during the lobby day organized by Equality Texas.

Rep. Ron Reynolds (D-Missouri City), who spoke at the rally, drew parallels to the civil rights movement, saying that just like racial bias, discrimination based on sexual orientation and gender identity is “dead wrong.”

“We must have that same commitment, that same fire and determination, that those civil rights workers had,” Reynolds said. “They were willing to do anything, no matter what it took, to make sure they eradicated those discriminatory laws.”

With several attendees holding signs saying, “Don’t Indiana My Texas,” Reynolds also referenced backlash from major corporations over an anti-LGBT religious freedom law in the Hoosier State.

“People came forward from all over America to stand up against bigotry, and we have to do that same thing in Texas,” he said.

Republican lawmakers have introduced a record 22 anti-LGBT bills in the 84th Texas Legislature, but thus far only two dealing with same-sex marriage, an issue likely to be settled by the U.S. Supreme Court, have had hearings. And with fewer than 50 days remaining before sine die, time may be running out.

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

“Once you’re a couple of weeks past Easter, you’re in danger of not passing your bill,” said Rep. Celia Israel (D-Austin). “This week, maybe next week, if you haven’t at least had a hearing, then you’re in trouble.”

House Bill 2801, by Rep. Gilbert Peña (R-Pasadena), which would prohibit schools from allowing students to use restrooms and similar facilities according to their gender identity, will be heard Wednesday by the House Committee on State Affairs. House Bill 3864, by Rep. Scott Sanford (R-McKinney), which would allow child welfare providers that contract with the state to discriminate based on sincerely held religious beliefs, will be heard Wednesday by the House Committee on Juvenile Justice & Family Issues.

Peña, who previously said the goal of HB 2801 is protecting students’ privacy, refused to further discuss the bill this week. Sanford didn’t respond to messages seeking comment about HB 3864.

Chuck Smith, executive director of Equality Texas, said he believes HB 3864 is designed to allow faith-based adoption and foster care agencies to refuse to place children with gay parents. But he said the bill is written so broadly that it would sanction discrimination based on a variety of factors, including minority religious beliefs, and even against children themselves.

“I think it points to the level of extremes that we’re reaching if in fact, in the interests of so-called religious freedom, we’re actually targeting children and youth in our state, and that I think is despicable and not a place where we want to go,” Smith said.

Smith said HB 2801 would take decisions about restroom use by transgender students out of the hands of educators, who are currently addressing it on a school-by-school and district-by-district basis. Under the bill, schools would be liable for damages if they allow transgender students to use restrooms according to how they identify.

“This legislation amounts to bullying and harassment of transgender students to the point of placing a bounty on their heads for them to be turned in for using a restroom,” Smith said.

Kenneth D. Upton Jr., senior counsel at the LGBT civil rights group Lambda Legal, said HB 2801 would run afoul of Title IX, which the U.S. Department of Education has said prohibits discrimination based on gender identity in schools.

Israel noted that even if the bills clear committee, she helped derail two anti-LGBT budget amendments on the House floor two weeks ago.

“If the budget night was any indicator, some of my colleagues who identity themselves as Republican don’t want to have these kinds of battles any more than we do,” Israel said.

Watch speeches from Monday’s rally by Reynolds and openly LGBT Rep. Mary Gonzalez (D-El Paso) below.

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

After passing one of the most extreme anti-abortion laws in the country in 2013, conservative lawmakers have filed at least four bills this session targeting a legal process that allows minors seeking an abortion to do so without their parents’ consent.

Under current law, if a woman under 18 can’t get permission from a parent for an abortion—often because of abuse or repercussions from her family—she can seek a legal, confidential bypass from a judge. However, proposed laws would make the bypass process harder, longer and more cumbersome, abortion rights advocates warn.

In applying for a bypass, a minor must prove to a judge one of three reasons: that she is mature and well-informed enough to have an abortion without her parents’ consent; that notifying her parents is not in her best interest; or that notifying her parents would lead to physical, sexual or emotional abuse.

A bill by state Rep. Phil King (R-Weatherford), scheduled for a hearing in the House Judiciary and Civil Jurisprudence Committee today, would require that a minor prove all three grounds rather than just one, creating a threshold that could be impossible to overcome for many pregnant teens.

“Together, if the standard were changed, Texas would have one of the most, if not the most, restrictive judicial bypass laws in the country,” said Heather Busby, executive director of NARAL Pro-Choice Texas. “It’s essentially a ban on abortion for anyone under the age of 18 unable to involve a parent.”

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

“My older sister got pregnant when she was 17,” according to one of more than a dozen stories of anonymous pregnant teens posted on the Jane’s Due Process website. “I was in the kitchen when she told my mother. My mother pushed her against the wall, slapped her across the face, and then grabbed her by the hair, pulled her through the living room out the front door and threw her off the porch. I don’t know where my sister is now. I’m considered the good daughter. But I know what my mother is capable of.”

Two additional pieces of legislation that have yet to be scheduled for a hearing—House Bill 3994 by state Rep. Geanie Morrison (R-Victoria) and House Bill 2531 by state Rep. Matt Krause (R-Fort Worth)—are billed as “reform” legislation by anti-abortion groups, but abortion rights leaders see the bills as destroying the bypass process, which was first set up by the Texas Legislature in 1999.

“Minors who seek a judicial bypass don’t do it for frivolous reasons,” said Tina Hester, executive director of Jane’s Due Process. “They know what’s happened to their older sister or older cousins, and they have a real threat. The majority of young women in Texas do involve a parent; this is a safety net that they’re trying to dismantle.”

The two bills would require that a woman seeking an abortion provide her physician with a government-issued identification document to ensure that she is not younger than 18 years old. Morrison’s bill even requires that a physician “presume that a pregnant woman is a minor” unless she presents a government-issued ID.

Morrison’s and Krause’s bills also limit which courts a judicial bypass case can be heard. Currently, an attorney can file a bypass application on behalf of a minor in any county in Texas. Krause’s bill would mandate attorneys file in the minor’s county of residence, while Morrison’s would require the application be filed in a minor’s county of residence; a neighboring county, if her home county has a population of 10,000 people or fewer; or the county in which her abortion provider is located.

Limiting the venue may compromise confidentiality and privacy, especially in small, rural parts of the state, said Susan Hays, an Austin-based family law attorney who works with Jane’s Due Process.

HB 3994 and HB 2531 both increase the burden of proof from a “preponderance of evidence” to “clear and convincing” evidence and require that the minor seeking a bypass appear in court in person.

“The bills have nothing to do with helping pregnant girls,” Hays said. “[They have) everything to do with punishing them and exposing them, and therefore endangering them.”

Dennis Bonnen
State Rep. Dennis Bonnen (R-Angleton)

Who would have thought the biggest fight of the 84th Legislature would be over cutting taxes, an act normally beloved in the halls of the Capitol? Most of the headlines we’ve seen this session have been over guns, gay rights, the border and vouchers, but as the session comes to a close over the next month and a half, it seems likely that the headlining bout will be over two competing tax cut plans. It’s a showdown that is hugely consequential for the future of the state. And the plans offered by the two chambers seem, for now, irreconcilable.

There was some strangeness around the matter of tax cuts early on, as Lt. Gov. Dan Patrick and Gov. Greg Abbott seemed to compete over who would call for the biggest, boldest proposal. Dan Patrick asked for $4 billion initially, so Abbott called for $4.4 billion. The Senate answered with a proposal for $4.6 billion in cuts. All the while, the House budget writers kept mum, leaving room in their early budget proposals for tax cuts, but not producing a detailed plan at first.

The Senate proposal is strangely nonsensical. It chops the franchise tax, which is acceptable to almost all parties at the Lege, even Democrats. But the rest of Patrick’s proposal seems less than ideal. He aims to cut Texans’ property taxes. But the state doesn’t administer property taxes; local jurisdictions do. Patrick’s proposals would reimburse local jurisdictions to some degree, but other Senate proposals would greatly restrict the ability of cities and counties to take in revenue.

So Patrick would get to take credit for cutting taxes now, even though local governments around Texas, which are already swimming in debt and face uncertain fiscal futures, would pay the price. There’s also the fact that to make the math work on his proposal, Patrick wants to allow legislators to circumvent the constitutionally enshrined spending cap to pay for tax cuts, now and in the future…. while also tightening the spending cap to ensure that the state has less money to spend. If that doesn’t make sense to you, that’s because it doesn’t make sense.

The House took its time to respond. But last Wednesday, a top lieutenant of House Speaker Joe Straus, state Rep. Dennis Bonnen (R-Angleton), released the House tax plan. The lower chamber would cut franchise taxes too, but property tax relief is nowhere to be found. Instead, the House would lower the state sales tax rate from 6.25 percent to 5.95 percent.

Sales taxes are paid by everyone, not just property owners. And cutting the state sales tax doesn’t hurt local jurisdictions in the same way. What’s more, Bonnen and the House gave themselves a trump card—their tax plan totals $4.87 billion, allowing them to cutely claim that Patrick wants “smaller tax cuts.” Bonnen’s plan will have public testimony on Tuesday morning at the House Committee on Ways and Means meeting.

Neither tax cut package will mean much to the average Texan—certainly not compared to the size of the hole it blows in the state budget. The property tax cuts might mean about $200 a year for the average homeowner. But if you don’t pay property taxes—if you live in an apartment, for example—you get nothing.

Bonnen, meanwhile, boasts that the sales tax cut could mean $172 a year for “a family of four.” If that savings comes only from the reduced sales tax the family pays at stores, it assumes that the family of four is spending $57,000 on taxed goods every year, which is just a little bit less than the median total income of a four-person family in Texas.

To be fair, Bonnen’s analysis probably also assumes the family will save money from cheaper goods and services as a result of the business-side implications of the tax. Big businesses are the main beneficiaries of a sales tax cut, though its advocates would say the savings will get passed on to you.

To put it a different way, under the House plan, you’ll save 30 cents with each purchase of $100 of taxable goods. For every $1,000 of stuff you buy, then, you’ll be able to afford three hours of parking in downtown Austin. Oh happy day!

But the efficacy of these plans is beside the point—the fight has become a measuring contest of the virility of each chamber. Patrick slammed Bonnen’s plan, which he said in an unusually cutting statement was “out of step with Texans, my office, the Senate and the Governor.” He noted that Abbott had called for property tax relief in his State of the State speech and implied Abbott was on his side in this dispute, continuing his habit of putting words in the governor’s mouth, which is surely appreciated by Abbott’s team. (On Thursday, Abbott spoke briefly about tax cuts in Houston but said nothing specific on the issue of property vs. sales tax cuts.)

During a TV interview, Bonnen punched back. “It’s not my role to say what the governor thinks about tax cuts. Respectfully, it’s not the lieutenant governor’s either,” he said. Why was Patrick so focused on property taxes? “I think he’s just concerned about campaign promises he’s made,” said Bonnen.

How does this get resolved? Big business is steadfastly behind the House plan, while Patrick’s base loathes property taxes. Patrick and state Sen. Jane Nelson (R-Flower Mound), who runs the Senate Finance Committee, show no sign of backing down. “I have never had a constituent tell me they want a cut in sales tax—ever,” Nelson told reporters. “I’ve had lots of constituents come and complain about property taxes.”

Patrick can’t retreat completely from his property tax plan—he’s too far in. And, moreover, he needs a big and flashy signature accomplishment for his first session. He came in with too much bluster, and with too many promises made to the people who elected him, to leave the session with a few smaller education bills, and some money for border security wrestled from the House. This was a man who, in his inaugural address, promised to “secure the border in this session” and invoked the memory of Martin Luther King, Jr. to sell the changes he wants to make to state government. One imagines him staring intently at a full bathtub, attempting to part the waters with his mind.

Whatever his future plans are, he needs a trophy come June. And at this point, the best candidate for that trophy is a tax plan that doesn’t do much for most Texans, blows a giant hole in the budget of state and local governments, and requires trick budget math to pull off. Go figure, right? And the House is doubling down in its efforts to keep it from him with bad policy of its own.

TexasCompetes

With more than 20 anti-LGBT bills pending in the Texas Legislature, a coalition of major employers in the state — including Dell, Samsung and Southwest Airlines — is making the business case for fair treatment of gay, bisexual and transgender people.

More than 50 businesses have joined the coalition, called Texas Competes, by signing a pledge saying LGBT inclusion is essential to maintaining the Texas brand, attracting top talent and new companies to the state, and supporting a healthy tourism industry.

The full list of businesses, which includes 13 from the Fortune 500, will be unveiled Tuesday at a press conference in Austin featuring representatives from the Texas Association of Business, South By Southwest and the Greater Austin Chamber of Commerce.

Texas Competes spokesman James Shackelford said the coalition won’t take positions on specific legislation and that the effort has been in the works for months, long before anti-LGBT religious freedom laws in Indiana and Arkansas sparked historic backlash from the corporate sector.

“But obviously the timing, when it’s launching and when we’re going public with it, is important,” Shackelford told the Observer.

The Texas Association of Business, the state’s powerful chamber of commerce, has come out against two religious freedom amendments that critics say would enshrine a license to discriminate against LGBT people in the constitution. However, dozens of other measures also target LGBT rights, from statutory religious exemption bills to proposals that would ban local nondiscrimination protections and transgender restroom use.

“Texas is an economic powerhouse because it’s a place where talented people, entrepreneurs and companies want to call home. But our competitiveness is in jeopardy if Texas does not become a place that is welcoming to LGBT workers and families,” Texas Competes advisory board member and former Dell CFO Tom Meredith said in a statement. “Businesses that embrace diversity are doing both the right thing and the economically smart thing.”

UPDATE, 4/14: Below is an update list of those who’ve signed the Texas Competes pledge:

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