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Floor Pass

Greg Abbott and Dan Patrick
Kelsey Jukam
Gov. Greg Abbott and Lt. Gov. Dan Patrick at the State of the State Address.

There are only 52 days until the 84th legislative session, in all its 140-day glory, bids us farewell. That’s less time than it sounds. In a little over a month, the final set of bill deadlines will begin to set in, choking any bills that haven’t already gathered momentum.

So how have the two chambers of the Legislature been performing so far? According to an analysis of the Lege through the 83rd day of session conducted by the Professional Advocacy Association of Texas, an association of lobbyists, the Senate has been unusually unproductive these last few months.

PAAT tallied up the bills that have made it past certain benchmarks in the legislative process—voted out of committee, for example—and compared the results to the same point in the last legislative session. It turns out that the House is working at about the same pace as it always has. In 2013, 364 House bills had been voted out of their committees by the 83rd day. This year, 362 had.

But Dan Patrick’s Senate, meanwhile, is moving as slow as molasses. In 2013, the upper chamber had moved 432 bills from committees to the floor. This year, only 229 bills have made the jump, a 47 percent decrease.

The House only passed eight bills by the 83rd day this session, as opposed to 10 in 2013. But the Senate had passed 276 by that point last session—whereas only 98 passed this year, a whopping 64 percent decrease.

Both chambers have plenty of time to advance their agendas over the next month, so why is this significant? It quantifies something notable about the Senate, which is that its performance hasn’t lived up to the expectations Patrick set for it. He barreled into office with a tremendous amount of energy. He’d bring next-generation super-duper conservatism to the masses in short order. During his inauguration, he patted his predecessors on the back for the many fine things they’d done “over the last 12 years since taking the majority. But it’s time to take it to the next level.” He told reporters and the public that the slow pace set by David Dewhurst was a thing of the past.

He trumpeted his rapid appointment of committee chairs as evidence he was getting the ball rolling quickly. Here’s what the Texas Tribune’s Ross Ramsey wrote about Patrick’s attempt to quicken the chamber’s pace at the time:

Naming committees quickly would give the Senate a head start on the House, perhaps setting up a flow of Senate bills to the lower chamber before the House is ready to send anything back.

It’s inside baseball, but it’s important: Legislators actually care whether a law resulted from a Senate bill or a House bill, even if hardly anyone else notices. More importantly, in the back-and-forth interplay of the two legislative chambers, an early start on the Senate side could pressure the House to get going on the upper chamber’s legislation — a subtle way of positioning the Senate’s agenda in front of the House’s own plans.

This was doubtless what Patrick intended, but roughly the opposite has happened. Patrick’s demolition of the two-thirds rule means that Democrats have no incentive to play along, so they’ve been dragging their feet and using delaying tactics. The Senate Republican caucus has been unsteady, with divisions between fire-starting freshmen and the few remaining senior statesmen. The House, by and large, has set the agenda. Patrick is making David Dewhurst look like Bob Bullock.

One easy rejoinder to this would be that the number of bills passed doesn’t reflect how much Patrick has actually advanced his agenda, but he doesn’t have much to show on that front either. The items he set out during his election campaign as his top priorities—he used to say eliminating in-state college tuition for undocumented Texans would be the first thing he’d do, for example—have mostly fallen by the wayside. (Yes, the bid to repeal in-state tuition got a hearing, but faced with strong opposition and little time left in the session, it’s almost certainly dead.)

Speaker Joe Straus’ House is a particularly unreceptive place for the policies Patrick most favors, and there’s not much he can do about it. To take another example: He’s put a great deal of emphasis on school choice in his years of public service, but vouchers are probably dead this session, too, and furthermore he seems to know it.

Instead, Patrick has spent a lot of energy on an incomprehensible tax cut plan, which faces an uncertain future and derision from both Democrats and Republicans. He’s been forced to push for bills, like open and campus carry, that he doesn’t seem to care much about personally.

There’s also the budget, the most important product of any legislative session. Last session, the Senate budget, skillfully shepherded by former state Sen. Tommy Williams (R-The Woodlands), passed out of the Senate Finance Committee by March 13 and was passed by the full Senate on March 20. This session’s Senate budget is… Well, where is it?

State Sen. Jane Nelson, the finance chair, last aired the Senate’s budget proposal (Senate Bill 2) on March 26. On Wednesday, she sent a budget proposal to the Senate floor by altering the House budget proposal (House Bill 1), which arrived in her committee after the lower chamber passed it last week. Next week, probably on Tuesday, April 14, the full Senate will consider the budget for the first time, almost a month behind last session’s pace.

All this is hardly fatal, and the Senate’s say in the budget process isn’t really affected by whether the House or the Senate’s budget bill is used. But it’s a sign that Patrick is letting happen exactly the thing he swore he’d prevent—he said he never understood why the Legislature let the calendar get so heavy on the back end. Now, presumably, he does.

There’s another possible consequence of the slow pace: the dreaded special session. The 83rd Legislature had three special sessions, at a time when everything was working pretty smoothly. Granted, the special sessions were in part caused by Gov. Perry’s desire to fight about social issues; Gov. Abbott doesn’t seem similarly inclined. It’s entirely possible Patrick and Straus tie up their differences with a neat bow by June 1. But what might the Legislature not get done by sine die?

State Rep. Matt Shaheen
City of Plano
State Rep. Matt Shaheen (R-Plano) speaks against the city's Equal Rights Ordinance before it passed on Dec. 8.

A spectre is haunting the Capitol—the spectre of taxpayer-funded lobbyists.

They sound awful, don’t they? Lobbyists are unpopular, often justifiably so, and taxes are even more unpopular. Lobbyists who represent governmental entities have increasingly become pariahs at the Capitol. Vilified in the last election cycle, some lawmakers, like state Sen. Konni Burton (R-Ft. Worth), have refused to let them in their office, no matter who they represent—even though she was happy to take their campaign contributions during her race.

Now, that derision may turn into law. On Thursday, the House Committee on General Investigating and Ethics heard two bills from state Rep. Matt Shaheen (R-Plano) that would prohibit lobbyists from being hired by certain entities with public funding. House Bill 1257 would prevent any political unit that collects taxes, like cities and counties, from hiring lobbyists. House Bill 3219 would do the same for school districts—and Shaheen, a freshman, can count Gov. Greg Abbott among the backers of the bill.

How could anyone object to that?

“The best lobbying is between legislators and elected officials,” Shaheen told the committee. Lobbyists were superfluous in Austin, he said, and served no real use. Peggy Venable, the policy director for Americans For Prosperity, agreed. She told the committee that money spent on lobbyists was a shameful waste. Full of concern for the sanctity of public education, she felt that school districts should be spending that money on kids. (Venable’s group has been one of the most vociferous proponents of state money for private schools.)

But Venable was a lone voice in support of the bills. Most witnesses, including representatives of school districts and cities, spoke against them. Why?

Hiring lobbyists, they said, was a time-saving measure that allowed entities far from Austin to keep meticulous track of bills that affect them, and have a say at the table when the rubber meets the road. The alternative is simply not realistic. It makes no sense, they said, to force volunteer school board trustees and city councilmen, who are not well paid, if it all, to trek to Austin and learn the ins and outs of the session.

The crusade against taxpayer-funded lobbyists is a great source of red meat for the Republican primary, but it ignores some fundamental things about how the Legislature works. For one, it’s extremely difficult to understand how the Legislature works, when it’s working at all. Capitol insiders speak their own language, and it takes a while to learn. Much happens behind the scenes, and the session moves so fast that it’s difficult for even well-informed observers to keep track of things. Legislators routinely work in 16-hour blocks and meet at unpredictable hours.

If you’re a county commissioner up in Amarillo, or a trustee of a school district in Houston, you can call up your legislators, sure. But you have better things to do than haul yourself to Austin and learn the intricacies of the legislative process so you can have a say on the hundreds of bills that could mean hard or flush times for the people you represent.

And if you’re representing a city that has a misfortune to be at odds with a powerful lobbying interest, like AT&T or the oil & gas industry, you can bet that they’ll have their own army of lobbyists in Austin’s back-rooms trying to cut you down. Without your own to match them, you’re at significant disadvantage.

Ideally, of course, legislators themselves would be aggressive advocates for their own constituents. But the quality of legislators varies widely. If you’re a local official, your state representative may be ideologically opposed to public education. Or he or she may want to help, but be powerless. Or they might be totally disconnected from their local governments—last year, former New Braunfels Mayor Gale Pospisil told me she’d never met the state senator who represents New Braunfels, Donna Campbell, even though Campbell lived in the city.

After local officials pleaded their case, the committee seemed skeptical of Shaheen’s bill. State Rep. Lyle Larson, once a San Antonio city councilman, noted that he only got paid $20 per city council meeting. He didn’t think his former colleagues could justify traveling to Austin much on that salary. Larson and state Rep. Sarah Davis (R-Houston) posed a question to Shaheen: The state of Texas had its own taxpayer-funded “government relations” team in Washington, D.C. Should that be undone?

“To be transparent, I didn’t know we had that until I was sitting here today,” said Shaheen. His quickly-generated rejoinder was that the Texas congressional delegation should advocate for Texas, not taxpayer-funded lobbyists. “Our congressmen are full-time congressmen,” said Shaheen. To which Larson replied: “Well, sort of.”

Davis continued the line of questioning. If the Lubbock City Council should be responsible for advocating for bills in Austin, shouldn’t Austin legislators live by the same principle? “I would assume that you would believe that we as state representatives should be responsible for going to Washington, D.C. to talk to congressmen,” said Davis. “If so, how many trips do you have lined up?”

Shaheen laughed. His bills were left pending in committee.

Marsha Farney FB
State Rep. Marsha Farney (R-Georgetown)

The House State Affairs Committee considered a bill late Wednesday night that would ban coverage for abortion in health plans offered through the Affordable Care Act’s health insurance exchange.

State Rep. Marsha Farney (R-Georgetown) said her bill “will ensure that insurance plans offered in Texas under the health benefit exchange would not cover elective abortions.”

Opponents, however, argued that Farney’s House Bill 3130 would create yet another hurdle for women.

HB 3130 “is effectively a ban on abortion for anyone purchasing insurance through the Affordable Care Act exchange,” said Heather Busby, executive director of NARAL Pro-Choice Texas. “If you ban insurance coverage for abortion from the exchange, a pregnant person may not be able to access a licensed, quality health provider in a timely manner.”

The Affordable Care Act allows states to enact policies that specifically ban abortion coverage in health plans offered through the health insurance exchange. According to the Guttmacher Institute, a national research organization that tracks abortion and reproductive health policies, 25 states already prohibit abortion coverage in their exchanges. Some policies, including the Texas legislation considered by the House committee, include an exemption for life-endangering situations and when a “serious risk of substantial and irreversible physical impairment of a major bodily function.”

State Rep. Jessica Farrar (D-Houston) took issue with the bill’s lack of exceptions for cases of rape, incest, fetal anomalies and ectopic pregnancies. Under Farney’s plan, if a woman purchasing insurance in the exchange wants abortion coverage, she would be required to buy a supplemental plan, a provision that also concerned Farrar.

“I don’t see the purpose of the bill, and I understand that you have a philosophical purpose, but I’m just being pragmatic,” Farrar told Farney during many exchanges between the two during the hearing. “No one anticipates having to have an abortion. … Unsuspecting women are not going to know to get that extra policy.”

Supporters of the bill, including Texas Alliance for Life, Texans for Life Coalition and the Texas Catholic Conference of Bishops, argued that allowing insurers to include abortion coverage in the exchange’s health plans is equivalent to taxpayer-subsidized abortions.

“It forces taxpayers to contribute to ending unborn life,” said Jennifer Allmon with the Texas Catholic Conference of Bishops. “This bill protects the conscience of individuals who do not wish to contribute to premiums that cover abortion.”

Farrar pointed out multiples times during the discussion that the federal health law already addresses this concern. According to health care research group Kaiser Family Foundation, the Affordable Care Act requires insurance companies that offer abortion coverage to “segregate funds, assuring that no federal funds are used for abortion coverage.” Allmon said clarity is needed on the separation of funds.

Abortion rights organizations nationwide argue that bans on insurance coverage for abortion disproportionately affect poor women, who are five times more likely to have an unintended pregnancy. Poor women on Medicaid must pay out-of-pocket for their abortions. In 1976, Congress passed the Hyde Amendment, which bars the public health insurance program from covering abortion. The Guttmacher Institute estimates that one in four women on Medicaid who want an abortion can’t get one.

Amanda Jean Stevenson, researcher with the University of Texas at Austin’s Texas Policy Evaluation Project, told the committee that a study her group conducted in 2013 found that 40 percent of women seeking abortions in Texas live at or below the federal poverty line, and women purchasing insurance in the health insurance exchange have lower median income than the rest of the population. Stevenson warned that Farney’s ban may force women to wait to have their abortions until later in their  pregnancies, or keep them from getting the procedure at all.

Discussion of Farney’s bill Wednesday night also illuminated a divide between Texas Right to Life and Texas Alliance for Life, two major statewide pro-life groups. Texas Alliance for Life backs Farney’s legislation. John Seago with Texas Right to Life, however, told the committee that he agrees with the goal of the bill, but suggested it doesn’t go far enough.

“This bill only provides protections for those who do end up going to (the Affordable Care Act exchange)” for insurance plans, Seago said. “Our position is we need to cover the rest of the market.”

Texas Right to Life is supporting another bill by state Rep. John Smithee (R-Amarillo), but it hasn’t been scheduled for a hearing.

The committee left Farney’s proposal pending, though she told committee members to expect another version of the bill soon. She also said she’d be willing to consider expanding the ban to include all private insurance plans offered in Texas, as well as language that includes exceptions for rape, incest and ectopic pregnancies.

Ken Paxton, after being sworn in, stands among Texas GOP VIP's: From left to right, Governor-elect Greg Abbott, Senator Ted Cruz, Lt. Gov. David Dewhurst, Justice Don Willett, and Governor Rick Perry.
Christopher Hooks
Ken Paxton, after being sworn in, stands among Texas GOP VIPs: From left to right, Gov.-elect Greg Abbott, Sen. Ted Cruz, Lt. Gov. David Dewhurst, Justice Don Willett, and Gov. Rick Perry.

On Wednesday night, news broke that a Collin County grand jury is exploring anew Attorney General Ken Paxton’s potential legal improprieties—another milestone in his declining fortunes. For the last few months, Paxton had seemed to have gotten away with it.

First, he had managed the spectacular task of getting elected to the top law enforcement job just months after admitting to violating securities law by shunting his legal clients into shady financial deals, then getting a kickback, without telling them about it. That was the easy part. (He’s a Republican; it’s Texas.)

But if someone were to simply indict him for the crime that he had apparently admitted to committing, he would likely be charged with a felony. No sweat, right? Paxton is not even a ham sandwich—he’s the lowest of low-hanging fruit. A prosecutor would just have to reach out and pluck him. But in late January, Paxton got an even bigger break. The Travis County District Attorney’s Public Integrity Unit—the ethics watchdog that Republicans are convinced is out to get them at all costs—politely declined the case.

The PIU prosecutor said that only the district attorneys in Collin and Dallas counties, where Paxton was active at the time he allegedly violated the law, had the jurisdiction to charge him. Both Republicans, the DAs seem exceptionally unlikely to go after Paxton. Dallas DA Susan Hawk’s office has been barely functional amid a series of weird personal dramas, and Collin DA Greg Willis is a long-time best friend of Paxton’s—they’re former business partners, and supported each other’s election bids. If you go to Willis’ website, Paxton is still listed as heading up the host committee to one of Willis’ last big fundraisers.

So like the ill-fated villain of a noir, Paxton had arrived at the moment of false confidence that bad guys always reach right before the hammer comes down. After an election season in which his spokespeople were literally manhandling reporters to keep them from asking questions—any questions at all—of the big man, Paxton had something of a coming-out party. He was feted by GOP royalty, without reservations, at his inauguration. In February, he appeared with Gov. Greg Abbott, Lt. Gov. Dan Patrick, and U.S. Senator Ted Cruz at a high-profile Obama bashfest. He even wrote a column for Bill Buckley’s old rag.

If everyone on the GOP team just kept quiet, Paxton would be fine, and in four to eight years he’d move on to higher office. And it seemed initially like that’s how it would play out. When Craig McDonald, the head of the left-leaning accountability group Texans for Public Justice, tried to follow up with Willis’ office on the information on Paxton sent by the PIU, he says he “got the clear sense from Willis’ spokesman that our stuff was going straight into the paper shredder.” (Willis’ office didn’t respond to a request for comment.)

Which is why three events in the last week have come as such a surprise. The first came last Thursday, when the editorial board of the Dallas Morning News called for Willis to seek the appointment of a special prosecutor to look into Paxton’s history. “The state’s top law enforcer, Attorney General Ken Paxton, also happens to be an admitted law breaker,” the editorial began. It continued:

These are not nitpicky issues. State securities law imposes registration requirements to protect the public from victimization by investment frauds and scams.

The fact that Paxton violated the law repeatedly over several years suggests a troubling pattern unbecoming of the esteemed office he now holds. That’s why an independent prosecutor needs to assume control of this case.

Then, on Friday, state Sen. Kel Seliger (R-Amarillo) told the Houston Chronicle that he thought the case warranted more attention:

“How is going back to your home county and having a friend and business associate handling your prosecution better?” Sen. Kel Seliger, R-Amarillo, said. “I think it’s a clear case for a special prosecutor.”

Republicans are generally very good at tribal loyalty, but many serious GOPers can’t be happy with the fact that one of their most important statewide elected officials is so ethically challenged. (Though amid the ensuing firestorm, Seliger told one Lubbock radio station he’d been talking in hypotheticals.)

Seliger was also talking about Senate Bill 10, an attempt by state Sen. Joan Huffman (R-Houston) to gut the PIU by routing ethics investigations through the Texas Rangers—run by an appointee of the governor—and ultimately to the hometown prosecutors of elected officials. It would be a grotesque way to do business, because many legislators have friendly relationships with their county DAs, just like Paxton does. SB 10 would take the most bizarre and screwed-up part of the Paxton saga so far and replicate it all over the state.

Seliger and state Sen. Kevin Eltife (R-Tyler) held up the bill over a proposal that the AG’s office play a role in ethics investigations—letting Paxton guard the henhouse. But once that was stripped, the two dropped their objections. On Wednesday, SB 10 passed the Senate along party lines, 21 to 10.

During the debate, state Sen. Kirk Watson (D-Austin) outlined a hypothetical scenario that mirrored the case of Paxton and Willis. Would Huffman, who used to work in the office of the Harris County DA, think it appropriate for the Willis-like figure to step aside and urge the appointment of a special prosecutor? Huffman answered that if she were the DA, “I would recuse myself.” But her bill would force more and more local DAs into that position, where not all might have Huffman’s sense of ethical responsibility.

But just a few hours after the Senate debate concluded, the Houston Chronicle broke word that Willis might not have to ask for a special prosecutor after all. A Collin County grand jury had gone rogue, in part, perhaps, because of the public attention conjured by the Dallas Morning News and others. The grand jury appeared to be circumventing Willis. They requested the information forwarded to his office by the PIU—the information Willis seemed intent to ignore.

“Collin County appears to be the venue where this evidence needs to be heard,” says the letter from the grand jury vice foreman. “Therefore, we are requesting the documents be sent to us as soon as possible.”

Once the grand jury hears the evidence in Paxton’s case, an indictment seems more likely than not.

“This case is absurd because Paxton has already admitted to a crime with Texas regulators,” says McDonald. His admission of guilt, passed off by his consultants during the election as the end of the matter, “in no way adjudicates his potential felony criminal behavior.” As a reminder of the surreal nature of the fact that he may not be prosecuted for a crime which he has apparently admitted to committing, McDonald says, he keeps Paxton’s “signed confession” on his desk.

Editor’s note: This story has been edited to remove a questionable historical reference in the original version. 

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 Wednesday's committee hearing.

If this was their last meaningful opportunity to put on a show for state legislators, opponents of same-sex marriage made the most of it.

Fifteen witnesses, including a who’s who of anti-LGBT activists in Texas, testified Wednesday in support of a proposal to bar state or local funds from being used “for an activity that includes the licensing or support of same-sex marriage.”

They invoked Nazi Germany and the Civil War, warned of the imminent demise of American civilization, compared gays to murderers and advocated defiance of a likely U.S. Supreme Court ruling in favor of same-sex marriage in June.

“It’s not marriage—it’s a mirage, it’s a counterfeit, it’s a lie,” said Dr. Steve Hotze, president of the Conservative Republicans of Texas. “It will never be a marriage no matter what they say, because it violates God’s standards, and he sets the standards.”

Rep. Sylvester Turner (D-Houston), a member of the House Committee on State Affairs, grilled Hotze about whether he wants Texas to ignore “the law of the land” if the high court rules in favor of marriage equality.

“If you passed a law that we’re going to go and round up people of an ethnic group and put them into jail and exterminate them, would you abide by that law?” Hotze responded. “What did they do in Nazi Germany? It was legal to round up Jews and put them in the chambers and kill them. And the defense they said is, that was the law.”

After Turner suggested all people should be treated equally regardless of ethnicity or sexual orientation, Hotze said there’s a difference because being gay is a choice.

“If people are involved in an activity that’s immoral and wrong, you can love them but you don’t respect what they do, and you try to help them find a way out,” Hotze said. “Whether they’re alcoholics, whether they’re murderers, whether they’re adulterers, whether they’re perverts or pornographers or whatever, you want to help them out—or homosexuals, you want to help them out.”

Nine people testified against the bill during a two-hour hearing that ran past 10 p.m., including Guadalupe County Clerk Teresa Kiel, who serves as legislative chair for the County and District Clerks’ Association of Texas.

Under House Bill 4105, by Reps. Cecil Bell (R-Magnolia) and Drew Springer (R-Muenster), county clerks would send fees collected for marriage licenses to the state comptroller’s office, along with documentation of the couple’s identity. The comptroller would remand $30 from each license to the county clerk, unless it was issued to a same-sex couple, in which case the money would be deposited in the state’s general revenue fund.

Kiel said she was “confused” and “troubled” by the bill, noting it’s already illegal for clerks to issue marriage licenses to same-sex couples.

“As an elected official, I took an oath to uphold the laws of the state of Texas,” Kiel told the committee. “If the law is already in existence, what are we trying to do?”

Daniel Williams, legislative director for Equality Texas, said HB 4105 is a “nifty” way to increase state revenue. He said if a federal court declares the state’s marriage ban unconstitutional, many of the bill’s provisions would be struck down, too.

“So when I look at the bill, my question becomes what does it actually wind up doing, and the answer is it adds another level of bureaucracy in Austin … and I have trouble believing there’s any Texan who believes that’s a good idea,” Williams said.

Bell maintained HB 4105, which replaces a similar bill derailed amid budgetary concerns two weeks ago, would have no fiscal impact. And he said it would not adversely affect county clerks as long as they don’t issue marriage licenses to same-sex couples.

“I just want to be clear that I do respect people and I do love people, but that doesn’t negate law,” Bell told the committee in closing. “HB 4105 simply asserts the sovereign rights of Texas, using the legislative process, to codify marriage in Texas as one man and one woman, and to make certain that our dollars are used the way Texans want them to be.”

Rep. Byron Cook (R-Corsicana), chair of the committee, left the bill pending. Earlier, Cook told the Observer he was unsure whether he’ll call it back up for a vote.

“What we try to do in State Affairs is give folks an opportunity to weigh in on the issues that are important to them,” Cook said. “We hear a lot of bills that need a lot of thought, and this is one of them.”

At least 12 anti-LGBT bills have been referred to Cook’s committee, more than half the record number introduced in the 84th Legislature. Cook made headlines recently when he came out in support of same-sex couples’ right to have both names on the birth certificates of adopted children.

Asked about backlash from major corporations over an anti-LGBT religious freedom law in Indiana, Cook noted that a similar proposal died in State Affairs two years ago.

“I think we’ve done a good job of being measured,” he said.

HB 4105 has 37 co-authors, all Republicans.

Dan Huberty
Rep. Dan Huberty (R-Houston)

Update: House Bill 4 got final approval in the House on Thursday, 128-17-2, and is headed to the Senate.

Original: Debate over funding for pre-K programs heated up the House today as legislators preliminarily passed House Bill 4 by Rep. Dan Huberty (R-Houston).

Huberty’s bill would provide additional funding to school districts that choose to offer high-quality pre-K programs. Texas currently requires districts to offer half-day pre-K to English-language learners as well as homeless, foster and low-income students—about 225,000 students at a cost of $800 million.

The Legislature cut nearly $300 million from pre-K programs in 2011, but restored $30 million of that in 2013. Huberty’s bill would increase pre-K funding by an estimated $130 million—still well below 2011 funding levels.

State funding of pre-K programs has not polled well with conservative GOP voters, and Huberty tried to assuage criticism from tea party-affiliated representatives.

“This bill does not expand pre-K. This is not universal pre-K. This is creating a high quality gold star standard program for educating our most vulnerable children,” Huberty said.

House tea party caucus member Rep. Jonathan Stickland (R-Bedford) tried to kill the bill by calling points of order, a legislative tactic. Stickland called three consecutive points of order before Huberty could finish introducing his bill.

Other tea party Republicans, including freshman Rep. Tony Tinderholt (R-Arlington), voiced concerns that Huberty’s bill would further expand an already too-large state government.

“I don’t agree that government should always come forward and take responsibility, especially when it comes to children,” Tinderholt said.

“Parents should parent,” he said later.

Some Democratic critics, in contrast, argued that that Huberty’s bill doesn’t go far enough.

Rep. Eric Johnson (D-Dallas) pleaded with lawmakers to provide enough funding for school districts to offer full-day pre-K programs.

“I’ve got reams of paper from stakeholders that tell us that full-day pre-K is better than half-day pre-K,” Johnson said.

During several impassioned exchanges Huberty defended his bill.

“We should not be beholden to a conservative group, or some group, or any outside interest group. We should make these decisions,” Huberty said. Dozens of representatives cheered his comments.

In January Gov. Greg Abbott named expanding pre-K funding an emergency legislative item. “I applaud the Texas House of Representatives for recognizing the critical importance of providing high-quality pre-k,” Abbott said in a press release today.

HB 4 bill passed on second reading on a 129-18 vote. It will have to pass one more House vote before moving to the Senate.


Sen. Larry Taylor (R-Friendswood)
John Savage
Sen. Larry Taylor (R-Friendswood)

Lawmakers heard testimony today on bills designed to create a new school district, a so-called Opportunity School District, for struggling public schools.

Senate Bill 895 by Sen. Larry Taylor (R-Friendswood) would allow the state to take over schools from locally elected school boards if they have low state performance ratings for two consecutive years.

Mike Feinberg, CEO of the KIPP charter school chain testified in support of Taylor’s bill.

“We have a collective statewide responsibility to figure out how we turn around the cycle of despair in schools that have been failing year after year after year,” Feinberg said. “We need to give those schools to a superintendent who focuses on nothing but turnaround.”

The Opportunity School District would be comprised of failing schools from across the state.

Taylor’s bill would allow, but not require, schools in the district to be turned over to privately run charter operators. In the states where similar initiatives have been tried, Tennessee and Louisiana for example, that is precisely what has happened. The Recovery School District in Louisiana became the first all-charter district in the nation this school year.

Several witnesses criticized the measure that Texas uses to rate schools: the STAAR test.

“The only measure we’re using to make the judgment that these schools are failing and need to be turned over to state control is a test that you yourselves have called into question,” said Jim Nelson of the Texas Association of School Boards.

In Texas, school ratings rely mostly on test scores that closely track family income. Low-performing schools are more likely to have high rates of poverty, racial segregation and English language learners.

Several proponents of Taylor’s bill invoked Louisiana’s Recovery School District. Education reformers across the nation have called the Recovery School District an education miracle that has led to increased student achievement. But students in the school experiment have some of the lowest ACT scores in the nation, almost a decade after it began.

“The Opportunity School District is basically a business opportunity and that’s it,” said Patty Quinzi of the Texas chapter of the American Federation of Teachers. “This was a bill that was designed by the American Legislative Exchange Council [ALEC], which is co-chaired by private charter school managers.”

ALEC is a deep-pocketed organization of state legislators and corporate leaders that promotes free-market legislation across the country.

The committee also heard testimony on Senate Bill 669 by Royce West (D-Dallas). West’s bill would create an Opportunity School District similar to Taylor’s bill, but with several differences. For one, West’s bill would require teachers in the district to be certified. Taylor’s bill would not.

Several other education reform bills, including hot-button voucher and parent trigger bills championed by Lt. Gov. Dan Patrick, were voted out of the Senate Education Committee.

“These bills will provide much deserved ‘parental choice’ so students are not forced to go to a failing school or trapped in an undesirable educational geographic area because of their zip code,” Patrick said in a press release.

Both Opportunity School District bills were left pending in the committee.


West fertilizer plant disaster
Jonathan McNamara
A house destroyed by the West fertilizer plant explosion in the northern part of town.

As the second anniversary of the West, Texas fertilizer plant disaster approaches, lawmakers are running out of time to pass legislation addressing the catastrophe’s underlying causes. In the two years since the explosion in West, which killed 15 and injured more than 300, virtually nothing has been done to fix the patchwork regulations and lax system of oversight of ammonium nitrate facilities like the West Fertilizer Company.

With just 55 days left in the 140-day legislative session, a handful of legislators are trying to get something, anything done. On Tuesday, the House Committee on Environmental Regulation took less than an hour to discuss three bills filed in response to the West disaster.

But the legislation that received the most attention, HB 942 by Rep. Kyle Kacal (R-College Station), falls short of the most substantial proposal, drafted by Rep. Joe Pickett (D-El Paso). When the West disaster unfolded on April 17, 2013, Pickett was chairman of the House Homeland Security Committee, which was tasked with examining ammonium nitrate regulations. Pickett said he didn’t want to act hastily last legislative session and promised to craft a balanced approach during the interim that gave the State Fire Marshal’s Office more authority.

In the aftermath of West, State Fire Marshal Chris Connealy said voluntary inspections had identified widespread fire-safety problems in the state’s 90-something ammonium nitrate facilities, but that he was powerless to compel any changes.

While nearly identical to Kacal’s bill in other respects, Pickett’s HB 417 would give the state fire marshal the power to write his own fire-safety rules. Currently, the fire marshal must ask permission to inspect fertilizer plants and can only offer recommendations to facility owners.

Pickett said that ammonium nitrate businesses are “extremely important” but that people who get into the business need to take on more responsibility. When asked about the chances the Legislature would take steps to prevent another fertilizer disaster, he was fatalistic.

“We reflect on the loss of life and then that goes away and everyone starts looking at their special interests,” Pickett said. He added that the industry shouldn’t be afraid of additional regulations. “There’s nothing in this that will put anyone out of business.”

Kacal’s approach would allow the state fire marshal to inspect ammonium nitrate facilities but limits enforcement to four specific rules described in the bill. Facilities would be required to provide evidence of compliance with right-to-know laws, post warning placards and store ammonium nitrate away from combustible materials. They’d also be be required to keep ammonium nitrate in a separate structure from, say, an office or shop.

Some in the fertilizer business have resisted giving a state agency more power. Jim Farley owns a farm supply company in DeLeon, Texas, that sells ammonium nitrate-based fertilizers. He was one of five people to testify in favor of Kacal’s bill, and the only person to testify against Pickett’s. Farley said he was “devastated” when he heard the news about West and that he’s made many changes to his business since the West explosion to improve safety. But he argued that new rules, which could be drafted by the state fire marshal under Pickett’s plan, might cost him too much money. As a small business owner, he says, he couldn’t afford to change his wood roof, or put in an automatic sprinkler system that might corrode.

Kyle Kacal
Kyle Kacal

Both bills also strengthen hazardous-chemical reporting. Companies would have to submit information about the chemicals they hold, via Tier II reports, to the Texas Commission on Environmental Quality (TCEQ) instead of the Department of State Health Services, an agency that’s always been an awkward fit. TCEQ would then share the reports with local first responders and the state fire marshal. One of the problems that emerged from the West disaster was that local first responders often lack the critical information about hazardous chemicals, or don’t have the proper training to know what to do in the event of a fire.

HB 2470, filed by Rep. Eddie Rodriguez (D-Austin), was the final ammonium nitrate-related bill heard by the committee on Tuesday. It would require ammonium nitrate operations to have liability insurance, which they are not currently required to have. The West Fertilizer Company carried just a $1 million policy. Property losses from the West explosion are now estimated to be as much as $230 million.

Cyrus Reed, representing the Lone Star Chapter of the Sierra Club, told the committee that it makes sense to require insurance, “because it will create market pressure to be safe.”

“Sometimes bills that require rulemaking leads to delay and poor rules, or the agency doesn’t actually enforce the rules,” Reed said.

“This is a very balanced attempt to make sure communities don’t suffer another explosion like this and if they do they will have the resources to rebuild,” said Ware Wendell, deputy director of the consumer group Texas Watch.

HB 417, HB 942, and HB 2470 were left pending in committee.

House Public Education Committee Chairman Jimmie Don Aycock (R-Killeen)
Patrick Michels
House Public Education Committee Chairman Jimmie Don Aycock (R-Killeen) with House members last month.

Two weeks after announcing that he’d try to fix the school finance system in the current legislative session, House Public Education Chairman Jimmie Don Ayocck (R-Killeen) unveiled his plan in a committee hearing this afternoon. Aycock had already announced his plan would come with $800 million in new money; today he explained how it would work.

Like most things in school finance, it’s complicated stuff. You can read the details of his plan, and its projected effects on your favorite school district, here.

Generally speaking, Aycock’s proposal involves scrapping a number of outdated or impractical funding tools—the “Cost of Education Index,” for instance, is 24 years old and has never been updated—and putting all of that money into the basic per-student allotment.

“Part of my objective when I began this was to simplify this system that we’re in,” Aycock said as he explained his bill, later adding, “I wish I could make it simpler. It’s not a simple deal.”

Any tweaks to the school finance system would ripple out across Texas’ thousand-plus school districts in different ways. (Aycock said that modeling his possible fixes “literally crashed” a state computer.) To minimize the number of districts losing money under the proposal, the House has passed a budget with $3 billion in new spending for public schools—including $2.2 billion that budget writers agreed upon early in the session, and $800 million more announced as part of Aycock’s plan.

The Senate draft budget includes much less for schools, and Aycock has said his counterparts in the upper chamber haven’t been a part of the House school finance talks. If the Senate doesn’t sign to match the House’s proposal, Aycock said his restructuring must be scuttled too.

Without new money, he said, “the pain of making these changes would be insurmountable.”

But there are new and different sorts of pain in store if the Legislature does nothing.

For one, under the current system, Houston ISD will soon owe the state around $100 million in “Robing Hood” funding—money that wealthy districts pay the state to cover poorer ones. Aycock has mentioned this point repeatedly, saying Houston ISD would either have to cut its services or raise taxes to cover the cost—or both—and get its voters to agree to foot the bill.

For another, many school districts are about to get a whole lot less from the state after September 2017. That’s when a relic of the last school finance “fix” in 2006 will expire, and a whole bunch of districts whose funding has been artificially inflated, by a tool known as ASATR, will watch their funding deflate in a hurry. Aycock conveyed the point with a different image today: “We’re going to hit a cliff at that point, and we’re going to hit it at 100 miles per hour,” he said.

His bill would move all but 2 percent of school districts off that artificial funding mechanism and onto formula funding, which is generally more stable. “Those that do fall in ’18 fall a lot less,” he said. “When they fall off that cliff, they don’t fall as far.”

Since 2006, as Abby Rapoport explained in the Observer a few years back, ASATR has been a finger on the scales that has persistently privileged some districts over others in some weird and unfair ways. Moving all but 2 percent of districts onto formula funding instead makes the system more fair.

That question of equity isn’t just important for students in those districts. It’s a central issue in the ongoing school finance case that the Texas Supreme Court is set to take up months from now. Rep. Donna Howard (D-Austin) has said that Aycock’s proposal would mean new money for schools, but she doubts it would do enough for poor students or English-language learners to make the system truly equitable.

That was a major issue in District Judge John Dietz’s ruling against the state last year, and Aycock said this afternoon that his bill didn’t touch the funding weights that provide money for those students. But he did call his plan “the most equitable statistical sample that’s been proposed for many years,” and said, “I honestly move it helps the state’s position, moves the ball in the right direction.”

He went even further with reporters after the hearing:

The committee will hear public testimony on the bill next Tuesday.

Bill Hammond, Texas Association of Business
John Wright
Bill Hammond, CEO of the Texas Association of Business, speaks during Tuesday's press conference at the Capitol.

The Texas Association of Business forcefully reiterated its opposition Tuesday to two proposed “religious freedom” amendments that critics say would enshrine a license to discriminate against LGBT people in the Texas Constitution.

But the powerful, conservative state chamber of commerce stopped short of coming out against several other anti-LGBT proposals.

At an unprecedented news conference in the speaker’s room outside the House chamber, Bill Hammond, CEO of the TAB, joined Democratic lawmakers and LGBT advocates in denouncing Senate Joint Resolution 10 and House Joint Resolution 125, by Sen. Donna Campbell (R-New Braunfels) and Rep. Matt Krause (R-Fort Worth), respectively.

Hammond and others—including Sen. Rodney Ellis (D-Houston) and Rep. Rafael Anchia (D-Dallas)—referenced business backlash over similar laws in Indiana and Arkansas. And they pointed to large Texas employers, such as American Airlines and Apple, that have joined the chorus against them.

“These amendments are bad for business,” Hammond said. “They would devastate economic development, tourism and the convention business. One has to look no further than Indiana to realize what a detriment this would be, and how hard it would be to sell Texas to the rest of the country. The Super Bowl, the Final Four, all those things would be at risk in Texas if this were to become part of our Constitution.”

The two amendments are among more than 20 anti-LGBT proposals in the 84th Legislature, including statutory bills that would similarly allow businesses to discriminate based on religious beliefs. But Hammond said the TAB board hasn’t voted whether to come out against those measures.

TAB President Chris Wallace told the Observer on Monday that he and Hammond plan to recommend that the board oppose bills making it illegal for transgender people to use restrooms according to how they identify.

“Business owners are going to have to be enforcers of this legislation, and we certainly do not want to place any more burdens on business than there already are,” Wallace said.

Wallace said other proposals to bar cities from enforcing LGBT-inclusive nondiscrimination ordinances may present a quandary for TAB. At least one of the bills, Senate Bill 343 by Sen. Don Huffines (R-Dallas), would also bar cities from regulating fracking, plastic bags and ride-sharing—a concept TAB supports.

Hammond said TAB likely will wait until other anti-LGBT legislation is scheduled for committee hearings to take an official position. None of the so-called religious freedom measures or bills targeting local LGBT protections has been scheduled for hearings as the session approaches its final 45 days.

“I think what happened in Indiana is hopefully a turning point,” said Chuck Smith, executive director of Equality Texas. “Every day that goes by without a negative bill having a hearing is a good thing.”

In others states, lawmakers have seized upon the controversy in Indiana and Arkansas to push for laws banning discrimination against LGBT people. But Smith acknowledged that’s unlikely in Texas, where anti-LGBT discrimination remains perfectly legal outside the handful of cities that have banned it.

“I don’t think it creates an opening necessarily in this session to be able to pass a statewide nondiscrimination law,” Smith said.

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