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Forrest for the Trees

The Fischer Store Bridge
Courtesy of Forrest Wilder
The Fischer Store Bridge near Wimberley was toppled by the Blanco River floodwaters.

 

About a week after Memorial Day flooding devastated my hometown of Wimberley, I went to help some friends clean up their dad’s place on a creek that feeds the Blanco River. The neighborhood looked like a yard sale from hell.

Pat had been rescued at 4 a.m. by neighbors. He was up to his neck in nasty water, his possessions bobbing around him like sentimental flotsam and jetsam, his three daughters conferencing on his cellphone about what to do. Most of his possessions were reduced to junk, but he salvaged his father’s World War II journals, his Vietnam War army shirt, a campaign poster from his run for state representative.

The skies were soggy that day and I spent only an hour or so in rubber boots and a dust mask before a sheriff’s deputy came around to warn us out of the river bottom. Nobody was taking any chances.

After the flood came the stories. The one that haunts me the most is about the Corpus Christi families who rode the river on the roof of their vacation home until it was smashed on the Ranch Road 12 bridge. Eight of the nine people in the home died. They had enough time for Laura McComb, whose two small children were with her, to call and say goodbye to her sister. Can you imagine?

Some family friends who live on the river describe watching, in the middle of the night, a car float downstream with its headlights on. They heard neighbors screaming for help, only to see in the light of day that some of the houses were gone, scoured off their slabs.

You have to understand, the Blanco River in its usual mood is a placid, peaceful brook, barely a river at all. Only ankle-deep in many places, the gin-clear water moves briskly over fluted, whalebone-white limestone. Under normal conditions, flowing at 100 cubic feet per second or less, it’s a glorified trickle. On its best days, the Blanco is an edenic ribbon of rope swings, seeping cliffs and magnificent cypress trees, some more than 500 years old, that line the river like sentinels. But the river has another side. Central Texas is Flash Flood Alley, home of sudden, awe-inspiring deluges.

Even so, the Memorial Day flooding is unlike anything anyone has ever seen. The river crested at 40 feet before the gauge broke—7 feet higher than the record set in 1929. Though no official report has been made, some have estimated the flow peaked at 223,000 cubic feet per second, enough to fill 150 Olympic swimming pools every minute. Imagine an ocean in a ditch.

To know the river is to be staggered by what it did. A couple of weeks after the flood, a co-worker and I kayaked 14 miles of the Blanco, a stretch I know well, to get a better look at the damage. We unloaded at a private community park where we were greeted by Mitchell, who allowed us to launch our boats but complained of con-artist “sharks” and “lookie-loos” gawking in the disaster zone. He warned that some of his neighbors were ready to “go Cliven Bundy” if FEMA tried to tell them how to deal with the mess. Mitchell said he’d been doing cleanup work 22 hours a day since the flood. He seemed on edge.

How do you describe a landscape so changed? It looked like a raw wound, violently scrubbed, unhealed. Canoes wrapped around trees. Forlorn orange life jackets twisting in the trees 30 feet above the waterline. The high bridge at Fischer Store Road reduced to rubble. The few people we saw at the river’s edge spoke the same refrain: “We were lucky. Our neighbors had it worse.”

Blanco River cypress tree
Courtesy of Forrest Wilder
A large cypress tree toppled over after the Memorial Day flooding on the Blanco River

The force of the water snapped enormous, centuries-old cypress trees in half. It torqued others over, toppling them like saplings before a bulldozer. The few that still stand have been skinned alive. Imagine Northern California without redwoods, or Vermont without maples. That’s the Blanco without the cypress. It won’t be the same for generations, if ever.

One of the remarkable things about the May flooding across Texas was how quickly the state went from extreme drought to extreme flood. Yes, Texas’ climate is best summed as perennial drought occasionally punctuated by flooding. Yes, we’re in an El Niño cycle. But our climatic twins—drought and flood—have sprouted devil horns thanks to climate change. Extreme rainfall events are becoming more common; as the planet heats, the amount of water vapor in the atmosphere increases, priming the pump for catastrophic rainfall.

Today, climate-related disaster visits Wimberley. Tomorrow, maybe it’s your town.

Big Bend National Park
Big Bend National Park

There may be no better tonic for the clanging nonsense of Texas politics than a week spent in the West Texas wilderness. Free of headlines, tweets, the 8 a.m.-to-2 a.m. air-conditioned bubble of the Capitol, one can get some perspective, or at least some distance.

In late April, I left the legislative session to retreat to a remote stretch of the Rio Grande for seven days blessedly void of Dan Patrick, Greg Abbott and whatever tea party yahoo happened to be making news that week. Watching a momma black bear and her two cubs scramble up a rocky slope colored with blooming ocotillo and prickly pear has a way of focusing the mind. It’s important to remember that the world is made up of more than gay-bashing politicos and gun-toting activists.

(On the other hand, that other world always intrudes. We saw a Border Patrol plane on at least two occasions, and the only other humans our group encountered were five men on the Mexican side who appeared to be preparing to cross the river in a very remote place.)

Our first stop after leaving the river was to get coffee and gas. I bought a copy of the San Angelo paper and my bliss disappeared: Gov. Greg Abbott had ordered the Texas State Guard to “monitor” Jade Helm 15, a multistate military exercise taking place on public and private land in the southwestern United States, including locations in Texas. The conspiracy-minded—fanned by the king of high-decibel libertarian ranting, Austin’s Alex Jones—have theorized that Jade Helm is an Obama plot to invade America using America’s own military forces. “Feds Preparing To Invade Texas, List State As ‘Hostile’” was the headline at Jones’ disturbingly popular Infowars site. Oh, and some Walmarts closed around the same time the military exercises were announced, so you see how it all fits together, right?

A late April community meeting in Bastrop was packed with 150 people, many of whom had come to accuse an army lieutenant colonel of various treasonous acts. This would all be dismissible as the usual fringe lunacy from the usual suspects—who seem not in the least perturbed by the actual militarization of the Texas-Mexico border—but thanks to Abbott’s letter, the fringe instantly became mainstream. Suddenly all anyone was talking about was Jade Helm. The San Angelo paper ran a 1,110-word story dissecting the beliefs of the suddenly empowered Jade Helm theorists.

“I may be paranoid, but just because you’re paranoid doesn’t mean people are not out to get you,” a local tea party leader was quoted as saying. Abbott’s reaction, when confronted by reporters, was not much different. The governor said he should be “applauded” for putting the State Guard in the role of “gathering and disseminating information.” As if his strategy had been to bring clarity to the situation.

The word to describe Abbott’s stoking of this panic is “pathetic.” It has the feel of a governor trying too hard, of a leader being led by his worst impulses. But Jade Helm will quickly be forgotten. The larger problem with Abbott is that, so far, he seems to be a dud of a governor—Rick Perry without the charisma, George Bush without the impulse toward bipartisanship.

His gubernatorial campaign was fairly middle-of-the-road by modern Texas Republican standards, and many citizens and political observers had hopes he’d leave behind the craven politics of Perry and govern with substance, despite his stridently partisan record as attorney general. Many political types believe he will serve only one term—either because of whispered-about health problems related to his disability or because Lt. Gov. Dan Patrick will primary him from the right. Under this theory, Abbott can afford to stay above the fray, focused on his legacy and doing right by Texas. If that’s the case, there’s little evidence of it.

His State of the State address was the most soporific I’ve seen, and his agenda for the legislative session is not exactly inspired. His much-talked-about pre-K expansion, for example, turns out to be not even a half-measure; the proposed $130 million increase doesn’t even return Texas to pre-2011 funding levels. In the standoff—at least at press time—between the House and Senate over which massive tax cut to undertake, Abbott has been conspicuously absent. Is he shrewdly not showing his hand, or does he not have one? Abbott has been generally AWOL during the session, prompting the routine question: Where’s the governor? Occasionally he’s found on Twitter, retweeting half-literate border fearmongering from Breitbart, or hustling into a Capitol elevator.

Perhaps he will prove his critics wrong. But so far it seems that Abbott is out of the main current, rudderless, just floating aimlessly downstream.

wimberley flood damage

 

A Hays County groundwater protection bill that’s had a tumultuous ride through the Legislature has been dramatically revived in the session’s final days, and sources says Lt. Gov. Dan Patrick’s recent tour of the Wimberley flood damage is what resurrected the legislation.

After Patrick visited the flood zone in Hays County on Thursday he asked local officials if there was anything he could do to help. They told him that House Bill 3405, which would extend the Barton Springs/Edwards Aquifer Conservation District to western Hays County, could use a little help from on high.

“County officials were able to talk to the lieutenant governor and leadership of the House yesterday with the encouragement of our own state official,” said Hays County Commissioner Will Conley, a Republican who represents Wimberley and met with Patrick. “We were just able to draw attention to the legislation and how important it is to our community, and the most powerful men in Texas made some agreements and moved it forward.”

For much of Thursday the legislation looked dead, after a technical objection raised by Rep. Mary Gonzalez (D-El Paso) prevailed. Rep. Jason Isaac (R-Dripping Springs) looked defeated after he learned of the news, while citizens in Wimberley, who’ve fought for months to bring groundwater regulation to an unregulated “white zone” of the county targeted by a for-profit aquifer-mining company, reacted with disgust. But as the House was wrapping up for the day, the House parliamentarian suddenly reversed his decision—an extreme rarity in the Legislature. Other legislators gathered around a tearful Isaac as he expressed shock.

Isaac said he had suggested Conley talk to Patrick on the lieutenant governor’s tour of flood-ravaged Wimberley, but he told the Observer he didn’t think Patrick had anything to do with the parliamentarian’s sudden change of heart. “I’m just pleased that I was on the winning end of a mistake,” Isaac said.

Regardless, Conley said his conversation got the job done.

“Those two gentlemen took action on behalf of Hays County,” Conley said, referring to Straus and Patrick.

In a statement, Patrick said he was “grateful that the House reversed the P.O.O. because it is the number one legislative issue for Hays County. After visiting Wimberley to survey the flood damage, I believe this bill is even more critical.”

Dan Patrick
Texas Senate
Lt. Gov. Dan Patrick

House Bill 3405 is still not a done deal. For the bill to pass, both chambers must appoint a conference committee to work out details in the bill and bring a corrected version of the bill to a vote in the House and Senate.

“There are a lot of unseen forces who seem to have had their hands in this,” said Isaac. “We just hope that they’ll keep their hands out of it at this time.”

For a local groundwater bill, usually a matter of only passing concern outside a legislative district, HB 3405 has been buffeted by powerful forces, many of them hidden from public debate on the legislation. One is Electro Purification, which wants to pump 5 million gallons per day from the Trinity Aquifer and sell it to customers in the I-35 corridor.

Another may be Greg LaMantia, a wealthy wholesale Budweiser distributor from McAllen and a major Democratic donor. LaMantia shares a lobbyist with Electro Purification, Ed McCarthy, a skilled legislative hand on water matters. LaMantia owns a 5,000-acre ranch near Wimberley that’s located partially in the “white zone.” Last session Isaac passed a bill creating a municipal utility district, or MUD, on LaMantia’s Needmore Ranch. MUDs are often used by developers to provide water and wastewater services for dense subdivisions. Because of tremendous pressure from Hays County citizens worried about a large residential development in a water-scarce and environmentally-sensitive area, Isaac included a provision in last session’s legislation prohibiting the Needmore Ranch MUD from pumping groundwater for new homes.

But under a separate bill carried by Isaac and Sen. Donna Campbell (R-New Braunfels) this session, that provision banning the use of local water would be eliminated if HB 3405 passes.

“Now that we will potentially have a groundwater district in place, we don’t necessarily need those provisions in the MUD,” Isaac said. Allowing LaMantia to pump groundwater at Needmore, Isaac said, is “a way to get additional outside support in passing our 3405.”

Wimberley town hall on water
Steve Wood
Wimberley citizens express concerns over the Electro Purification project at Rep. Jason Isaac's town hall meeting in Wimberley.

Update:  The House parliamentarian sustained Rep. Mary Gonzalez’s points of order on House Bill 3405 late today, setting back the critical groundwater legislation with just four days left in the session. Rep. Isaac said the plan is to return the bill to the Senate, where Sen. Donna Campbell will likely pass the identical version that cleared the House in early May. That must happen by Friday.

“It’s an absolute slap in the face, while we’re sitting there having to dig out from the destruction we’ve seen over the last several days, that people behind the scenes are fighting our bill that don’t want to protect our groundwater,” said Isaac. “It’s appalling, it’s disgusting.”

Gonzalez was nowhere to be seen on the House floor while the parliamentarian handed down his ruling. The El Paso Democrat has said she’s upset with Isaac because he placed an unsuccessful point of order on her “revenge porn” bill, which passed the House 143-0. Today, the Texas Democratic Party issued a statement calling Isaac’s act “disgusting” and said it was an example of the tea party reaching “new lows trying to please their radical base.”

 

Original: While the citizens of Wimberley pick through the awesome damage wrought by the Memorial Day flooding, a different sort of water fight is reaching a climax at the Capitol.

In a last-minute surprise, an El Paso Democrat is holding up a bill that would bring groundwater regulation to the “white zone” of Hays County, an area without a groundwater district and potentially unlimited pumping. A private company plans to pump 5 million gallons of water a day from the stressed Trinity Aquifer and nearby residents worry the water mining will deplete their wells as well as springs and streams.

House Bill 3405 by state Rep. Jason Isaac (R-Dripping Springs) has passed both the House and Senate and has one final hurdle before it goes to the governor. The bill would extend the jurisdiction of the nearby Barton Springs/Edwards Aquifer Conservation District to the unregulated part of Hays County—the type of local issue that usually attracts little attention from other lawmakers.

But state Rep. Mary Gonzalez, a progressive Democrat who represents a district more than 500 miles away, is threatening to tank the bill with technical points of order. In a statement she said that HB 3405 is “a bad bill for rural Texans that sets a dangerous precedent, does not protect private property rights, and retroactively imposes regulation over certain legal contracts.”

Isaac said he was “furious” about Gonzalez’s gambit, especially because emotions are so raw in Wimberley where people are still missing from the floods. “This is just out of the blue,” he said. “She’s someone else’s pawn.”

Isaac blamed the tactic on a furious lobbying effort by Electro Purification, the company that plans to pump Trinity Aquifer water and sell it to the city of Buda and booming developments in the I-35 corridor.

“The lobby has done a pretty effective job to undermine his bill, to go behind the scenes to do anything and everything to kill it,” Isaac said.

Mary Gonzalez
Courtesy of Mary Gonzalez
Mary Gonzalez

HB 3405 is apparently part of a more wide-ranging legislative tit-for-tat. Gonzalez said an unsuccessful attempt by Isaac earlier on Tuesday to tank a bill she’s carrying that cracks down on revenge porn ”reflects poorly on him and is very disrespectful to numerous Texas victims.”

Sen. Donna Campbell (R-New Braunfels) is threatening to scotch Gonzalez’s legislation in the Senate if she doesn’t relent.

In Wimberley, folks are hoping for a breakthrough.

“We’re flooding her office with calls,” said Louie Bond, a long-time Wimberley resident who lives near the Electro Purification project. “We’ve been searching for missing flood victims and helping our neighbors and friends shovel what’s left of their homes into their dumpsters. … To stand in the way, particularly as we try to cope with this tragedy in our home, is outrageous.”

A discarded backpack found on the Cage Ranch in Brooks County.
Jen Reel
A discarded backpack found on the Cage Ranch in Brooks County.

As early spring in Texas brings the return of bluebonnets, as August marks the beginning of high school football, early summer ushers in the dying season in Brooks County. In the last decade, hundreds of migrants have perished in the unforgiving ranchland of Brooks County, cut down by heat and exhaustion while trying to circumvent a Border Patrol checkpoint on U.S. 281, 70 miles north of the border. By the thousands they slog—old, young, Mexican, Central American—across the sizzling sand, often equipped with little more than a bottle of water and a snack, lied to by their coyotes, pursued by vigilantes with dogs and ATVs. Dehydration can do crazy things to a person: Some strip naked and then roast in the sun. Others lose all sense of thirst and die with a water jug next to them.

Often, the bodies aren’t found for weeks, or months, or years. Some are presumably never found. Unidentified bodies recovered by the perpetually broke Brooks County Sheriff’s Office are sent to a cold-storage facility at Texas State University. In 2012, the most fatal year on record, the sheriff’s department recovered 129 bodies. In 2013, the death toll was 87. Last year, the figure was 61, but by mid-April of this year, authorities had already recovered 23 bodies, putting 2015 on pace to exceed 2013.

The causes of this humanitarian crisis—and that’s precisely what it is—are fairly well studied and understood: Ever-increasing border militarization has funneled migrants into narrower, more remote and more dangerous routes into the U.S. interior. Drug cartels have consolidated control of human smuggling and turned it into a ruthless business. Finally, in the case of Brooks County, the location of the Border Patrol checkpoint near Falfurrias forces migrants into el monte, the wilderness. Deaths began increasing in the mid-’90s, when the checkpoint expanded and border policies became stricter. The checkpoint—or more precisely its location—is the proximate cause of the crisis. Without the checkpoint, many more migrants would survive.

Solving the border security puzzle—if it can be solved—is a momentous task. But moving or abandoning the checkpoint is within the realm of possibility. It is strange that such a proposal is rarely contemplated. Everyone laments the senseless loss of life and yet there is a solution, albeit an imperfect one, within reach. Scrap the checkpoint; save lives.

“It’s not a crazy idea,” says Eddie Canales, a longtime human rights organizer from Corpus Christi who has set up water stations on ranches in Brooks County. “There’s always been rumbling about moving it to San Manuel,” just north of Edinburg. Border Patrol could still do its job at a checkpoint closer to the border, checking travelers for guns, drugs and legal status. The difference is that migrants would face less perilous, more populated terrain; they’d have an easier time finding help when facing a life-threatening situation.

But Canales told me that moving the checkpoint is just tinkering with a complicated situation. Canales lives this crisis. He’s eyeball-deep in the quicksand of South Texas politics. He’s found bodies in the brush and he chats with immigrants in Spanish. But his thinking is global in scope:

“It comes down to the deliberate policy to have undocumented labor with no rights or privileges,” he says. “Immediately, how do you mitigate and prevent people from dying? I don’t know. Within this political climate, it’s all about enforcement. People are going to find a way to get through.”

This is all true, but it’s also the case that migrants and their coyotes adapt to the obstacles—walls, agents, checkpoints—put in their way. If we’re reasonably certain that removing the checkpoint can save lives, then there is no excuse for not considering it. To choose the status quo is to tacitly accept a border enforcement policy that is driving human beings—most of whom come to the U.S. to reunite with family or to seek employment—to take extreme risks.

Border Patrol and local authorities, in consultation with landowners and human rights activists such as Canales, should at least study the issue. Instead, Border Patrol is planning to expand the Falfurrias checkpoint, doubling the number of lanes and adding personnel. In the Valley, the border “surge” of state cops and Texas Guardsmen continues with no end in sight and with uncertain effects on migration patterns. We’ve come to call the ever expanding border operation a “war”—though most of the casualties will be counted many miles north of the border in Brooks County.

Prison takeover - Reeves County Detention Center

 

The world’s largest for-profit prison has minimal oversight, overcharged the federal government by $2.1 million, arbitrarily punishes protesting inmates and suffers from severe understaffing, according to a report released Thursday morning by the U.S. Department of Justice’s Office of Inspector General.

Run by private prison company GEO Group, the Reeves County Detention Complex in Pecos houses nearly 4,000 federal prisoners, mostly undocumented immigrants serving sentences for drugs and immigration-related offenses. Over the last decade, Reeves has been rocked by riots, persistent complaints about inadequate medical care and allegations that prison officials use solitary confinement to punish inmates who complain. In 2009, Reeves was the site of two back-to-back prisoner uprisings after an epileptic inmate, Jesus Manuel Galindo, was found dead in his isolation cell. Galindo, his family and other inmates had repeatedly pleaded with GEO officials for better medical care.

The Reeves complex consists of three compounds. The Department of Justice investigated two of the three sub-complexes, which together hold about 2,400 low-security immigrant inmates.

Perhaps the most alarming finding is that the federal Bureau of Prisons (BOP) asked GEO Group to eliminate minimum staffing requirements for correctional officers, medical care providers and other personnel in its original bid for the facility. Not surprisingly, the prison was almost continuously understaffed from 2007 to March 2009, following two riots in late 2008 and early 2009 that did more than $1 million worth of damage. “BOP officials told us they removed these staffing requirements to achieve cost savings and grant the contractor flexibility and discretion to manage the staffing of the facility,” the report states.

“This audit confirms what we’ve suspected about the BOP’s contracts for private prisons for immigrants for many years,” said Bob Libal, executive director of Grassroots Leadership, a Texas-based group that opposes private prisons. “An extreme lack of accountability has created an unsafe and inhumane system of incarcerating immigrants in substandard private prisons. While immigrants suffer, unaccountable prison corporations are making big bucks off these contracts paid for by taxpayers.”

The private contractor providing health services at Reeves, Tennessee-based Correct Care Solutions LLC, also has persistently understaffed the prison, despite a requirement imposed by BOP in December 2010 that contractors maintain staffing levels of at least 85 percent of the contract requirement. Nonetheless, for three years, Correct Care failed to meet the 85 percent threshold more than 90 percent of the time. The report also found that the company has a “potential financial incentive” to maintain vacancies rather than fill positions at market rates, based on the BOP’s accounting methods.

A staff shortage in the Special Housing Unit—the solitary confinement unit where Galindo was found dead—was so severe that the BOP issued an emergency “cure notice” to GEO Group in September 2012, the report found. The BOP reviewed a video feed from July and August of that year and found that 47 of 70 required inmate counts were simply not conducted, that 30-minute irregular rounds were not consistently or completely conducted and that orderlies weren’t properly supervised.

The BOP saved an estimated $10 million by keeping staffing levels low.

The report states that correctional staff levels were boosted after the riots and that medical personnel have been added because of concerns raised by the Office of Inspector General during its investigation.

The audit also criticized GEO Group for arbitrarily sending inmates to an isolation unit called the “J-Unit.” Created in the wake of inmate protests in October 2013, the J-Unit is intended to isolate prison leaders who have been “found to be coercing other inmates to join demonstrations,” according to the report. (In a footnote, the authors state that they did not investigate the inmates’ demands for things like better pay and additional movement in the recreation yard.) After the demonstrations, prison authorities sent 364 inmates it considered ringleaders to Reeves’ Special Housing Unit (SHU), or solitary confinement unit, which is designed for only 210 people. To deal with the overcrowding, the prison converted a general housing unit into a kind of SHU-lite. Investigators found that in 9 of the 10 cases they looked into, the prisoners didn’t belong in the J-Unit by the prison’s own criteria.

In early 2015, the BOP renewed GEO’s contract for the third time.

payday loan
Courtesy of Taber Andrew Bain via Flickr

 

A year and a half after the Observer documented hundreds of examples of payday loan companies using the criminal justice system to pursue unpaid loans, state regulators have taken action against one company. In December, the Office of Consumer Credit Commissioner ordered Ohio-based Cash Biz to pay a $10,000 fine and provide more than $16,000 restitution to 51 customers the company filed criminal complaints against. In a legal filing obtained by the Observer, Cash Biz, which has 16 Texas locations, agreed that it had “referred its customers for prosecution based on an erroneous belief that a person commits a crime by issuing a check that is later dishonored.”

State law prohibits payday and title loan businesses from even threatening borrowers with criminal action, except in unusual circumstances. And the Texas Constitution states plainly that “no person shall ever be imprisoned for debt.” Nonetheless, many local DAs and justices of the peace serve as de facto debt collectors for the industry, and some people with small payday debts have ended up in jail. Payday and title lenders in Texas can effectively charge unlimited fees for loans, which often carry APRs of 500 percent or more. In December, Texas Appleseed released a report documenting more than 1,500 criminal complaints filed by 13 different payday loan companies since 2012. Many resulted in fines, arrest warrants and even jail time.

Eamon Briggs, assistant general counsel with the Office of Consumer Credit Commissioner, said this was the first time the agency had penalized a company for the practice.

“This certainly appears to be a growing trend and we’re working to make sure our licensees know they can’t be making these referrals unless they have specific concrete evidence of fraud, forgery or other criminal conduct,” Briggs said. “It’s simply not permissible or within the intent of this prohibition to allow [payday and title lenders] to make referrals and simply rely on the DA to decide whether or not there are merits to the claim. We’re working to make sure everyone knows that this is not an acceptable practice.”

Briggs said OCCC asks lenders during an examination process whether they rely on the criminal justice system to collect on bad debt. But “people don’t always answer that question during the examination process truthfully.” The agency relies largely on consumer complaints and information supplied by consumer advocacy groups like Texas Appleseed to catch violations.

Ann Baddour, of Texas Appleseed, said she was pleased that OCCC had taken action against Cash Biz but said the punishment fell short.

“It’s not sufficient because it doesn’t address any of the detrimental impacts it had on these individuals,” she said. “It doesn’t expunge that charge from their record” or fix damaged credit scores. “It’s basically a refund at value, there’s no additional penalty.” It also doesn’t consider how much Cash Biz might have gained financially from threatening customers who made payments directly to the company but not a DA’s office.

“It does seem like me that it’s not a sufficient penalty to create a disincentive for this behavior,” Baddour said.

OCCC says it’s looking into 13 other payday companies documented by Texas Appleseed as filing criminal complaints against customers. But despite the attention by regulators—not to mention the fact that the practice is illegal—it continues.

The agency and consumer advocates want the Legislature to clarify, again, that criminalizing payday debt is not allowed. Several bills would do that but only one—Senate Bill 1650 by Sen. Kevin Eltife (R-Tyler), considered the weakest—has even gotten a hearing. House Bill 3058, by Rep. Helen Giddings (D-Dallas), would put the prohibition in the Penal Code and allow both consumers and the Texas attorney general to sue a wayward lender.

Giddings says her measure is needed to “protect citizens that are being taken advantage of by these predatory lenders.”

But even something that simple, and relatively uncontroversial, is difficult to move through the Legislature. The Giddings bill is not among a handful of consumer loan bills being heard by the House Investments & Financial Services Committee on Wednesday. Lawmakers seem loath to touch anything that has to do with payday lending after back-to-back sessions that featured nasty, and ultimately unsuccessful, efforts to bring any regulation to the $5 billion industry.

“There’s not a desire to pass any meaningful payday bills” this session, said Baddour.

E.V. Spence
Jen Reel
E.V. Spence Reservoir in West Texas nearly empty in 2011

I think I know why Rep. Rafael Anchia (D-Dallas) chose to hold his second climate change hearing on 4/20 instead of Earth Day, which is on Wednesday: You’d have to be high to think this Legislature is going to do anything about climate change, no matter how measly the proposal.

On Monday morning, Anchia’s committee, International Trade and Intergovernmental Affairs, spent a few hours discussing a trio of climate-related bills. Democrats in the Lege have for the past few sessions pretty much given up trying to get anything passed directly tackling carbon emissions, much less debating climate science. Instead, they’ve shifted focus to adaptation, planning and Texas-based solutions to federal efforts to cut greenhouse gases.

State Rep. Rafael Anchia
Beth Cortez-Naveal
State Rep. Rafael Anchia (D-Dallas)

It used to be that Republicans in the Legislature would offer limp attacks on climate science. Now, they sit and listen politely as a parade of scientists, environmentalists, energy experts and ordinary citizens urge the Lege to do something, anything. Then they say little, and do even less.

Anchia opened the hearing with invited testimony from Baroness Bryony Worthington, who Skyped in from the U.K. A member of the House of Lords, Worthington spent a half-hour explaining the European Union’s carbon market, noting that the European cap-and-trade system had been devised in part on successful American pollution trading systems of the type roundly rejected by Congress in 2009.

Anchia, at least, seemed engaged.

The committee then turned to the legislation. A bill by Rep. Eric Johnson (D-Dallas) would direct certain state agencies to consider water availability, weather variability and climate change in their planning. The Texas Water Development Board might, for example, want to grapple with the likelihood of worsening droughts. The Texas Department of Agriculture might want to know if citrus production could be viable in San Antonio some day. The legislation, Johnson said, is “agnostic” about causes. “It just flat-out doesn’t matter what you really believe about the causes of the changes in our water availability, the changes in our weather, the changes in the climate.”

The five Republicans on the committee had virtually nothing to say about the bill, one way or the other.

Most attention focused on Anchia’s proposals to get Texas to at least acknowledge that greenhouse gas cuts are coming, whether we like it or not.

“The Pentagon is modeling for climate change,” Anchia said. “The oil and gas industry is modeling for climate change; the insurance industry is modeling for climate change; the federal government is modeling for climate change; NASA is modeling for climate change. And Texas is out of the loop.”

Anchia’s HB 2080 would direct the Texas Public Utility Commission to come up with a plan to meet the EPA’s Clean Power Plan, the major carbon-cutting rules announced last year by the Obama administration. Under the Clean Power Plan, Texas would likely have to shutter old coal-fired power plants while expanding renewable power and energy efficiency programs. The fossil fuel industry and GOP leaders hate the thing and have launched an aggressive legal effort to strangle the plan in its cradle. If the rules do go into effect, states would have broad latitude in the way they could achieve the greenhouse gas reductions, but failure to act would likely result in the feds taking over.

“The question that HB 2080 discusses is, ‘Who do we want to write the plan?’” Anchia said. “Do we want Texas to write our own customized plan that takes into account details of Texas’ competitive energy market, Texas being a global leader in energy? Or do we want the federal government to apply a one-size-fits-all for Texas?”

An interesting question but not one that the Republicans on the committee engaged with. That was left to Mike Nasi, an attorney with Balanced Energy for Texas, an industry group representing fossil fuel interests. Nasi seemed prepared to litigate the whole matter in front of the committee, calling the plan unprecedented, illegal and highly unlikely to stand judicial scrutiny.

March 2015 temperature anomalies
NASA
March 2015 was the third-hottest March on record

A tag team from the corporate-funded Texas Public Policy Foundation went even further. The Clean Power Plan is “breathtakingly unconstitutional” said Leigh Thompson, an energy analyst with the foundation. It “reduces states to nothing more than a marionette on federal strings.” And “the likelihood of statewide brownouts becomes all but certain.”

But lest you think the conservative plan for climate change is do-nothing, Thompson’s tag-team partner, Bill Peacock, had an answer.

“If people are really concerned about global warming, history has proven that the marketplace, the free market is the best way to achieve that, not government action.”

Meanwhile, back on Planet Earth, NASA reported last week that this was the third-hottest March on record, the hottest January-to-March of any year on record, and 2015 is on pace to be the hottest year on record.

Arresting Development

A settlement for my illegal arrest at the 2004 Republican National Convention means the case is finished—but it doesn't feel like closure.
Republican National Convention 2004
AP Photo/Mary Altaffer
This Aug. 31, 2004 file photo shows a protester being arrested by New York City Police officers during the Republican National Convention in New York. New York City agreed Jan. 15, 2014, to pay $18 million to settle dozens of lawsuits filed by protesters, journalists and bystanders who said they were wrongly arrested at the 2004 Republican National Convention.

In August 2004, I went to New York City to protest the Republican National Convention. I’d wanted to go as a journalist, but no publication was interested in paying a fresh-out-of-college newbie with a handful of clips. In any case, I was an activist and I believed—as do many young people, naively and blessedly—that change could come from the sustained application of raw people power. It was just a matter of mobilizing enough voices with enough energy for enough time. In other words, I was kind of a hippie. I’m still a believer, but my democratic faith has been tempered by a decade of watching Texas descend into a mean-spirited pissing contest between right and far right, in the face of which one teeters between tears and laughter.

On campus, I’d thrown myself with almost reckless zeal into organizing against the wars in Iraq and Afghanistan. We organized god knows how many teach-ins, die-ins, rallies and public forums. The high-water mark was a campus-wide walk-out in February 2003. Thousands of students left their classes and gathered on UT’s East Mall at noon. We spontaneously decided to march around campus and then proceed to an interminably long rally on the steps in front of The Tower. Two days later, Hans Blix told the U.N. Security Council that no weapons of mass destruction had been found. A month after the rally, I was sitting in a dining room in the student union watching the Iraq invasion on television.

What’s the point of protesting, some of my friends wondered. I didn’t have an answer.

Yet there I was in New York a year and a half later. This was after Mission Accomplished, after Abu Ghraib, long after it was apparent there were no WMDs in Iraq. Hadn’t we, the anti-war protesters, been proven right? Half the country didn’t seem to think so, still stuck in a post-9/11 boot-and-rally mode of almost hedonistic overreaction that the Bush administration was adept at stoking.

The scene in New York was shocking. Manhattan had basically been turned into a police state, and I do not use that term lightly or casually. Undercover NYPD officers infiltrated peaceful protest groups, surreptitiously recorded law-abiding activists, and acted as agents provocateur during the protests. Worse, cops illegally arrested and detained 1,800 people in the days leading up to Bush’s speech at the RNC, including legal observers, journalists and people who had nothing to do with the protests. I was arrested on Aug. 31, 2004, while walking with a small band of protesters on Broadway. Plainclothes police on scooters drove up on the sidewalk in front of us while uniformed cops in a van jumped out and surrounded us from behind. My friends ran but I hesitated and was thrown to the ground. I didn’t resist arrest but I hollered about my rights, as people do when they’re being unjustly arrested. While I was in handcuffs, a commanding officer put his fist near my face and threatened to punch me, calling me “punk scum.” (An odd thing to call a Texas boy wearing a pearl-snap western shirt, but that’s New York for you.) I was hauled off to Pier 57, a grimy old bus depot that came to be known as Guantanamo on the Hudson. About 18 hours later, I learned that I had been charged with multiple counts of disorderly conduct and parading without a permit. I was held for about 24 hours before being released. Some of my friends were illegally detained for almost 50 hours without ever being charged. For me, it was a formative experience: It reaffirmed my notion that military marauding abroad has corrosive effects on dissent at home. It solidified my sense that the police state was not an abstraction but a reality, comprised of hardware, tactics and ideology, that presents itself whenever power feels threatened. A few weeks later, still reeling, I wrote, “What I actually witnessed and experienced was the intolerance of dissent and the wholesale discarding of our constitutional rights to free speech.”

Almost a decade later, a federal judge agreed, ruling that those New York City arrests were illegal. Last year, the city finally agreed to an $18 million settlement with the arrested protesters. Last month, I received my part: a check for $1,000. I haven’t cashed it yet because I don’t know what to do with the money. Part of me wants to donate it to a police accountability project or a civil liberties group. Another part of me wants to blow it all on a trip to Mexico.

Legally, the case is closed, but this check doesn’t feel like closure. Today there is no anti-war movement in the U.S. to speak of, and other promising social movements—Occupy, Ferguson—have been throttled by police power. Which makes protesting seem futile. And that’s what they want, right?

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

Terrell Graham, a mechanical engineer who lives near Goliad, says now that he was naive. Naive to ever think that he and his wife, Patricia, had a slam-dunk case against a developer that wanted to discharge 350,000 gallons of wastewater into a dry creek on their 112-year-old ranch in Bulverde. The drainage—the Grahams dispute the term “creek”—rarely holds any water, and calling it a public watercourse that the developer could use to convey the effluent seemed like a wild stretch.

“We thought this was a mistake, and if we simply explained the situation it to the Texas Commission on Environmental Quality [the developer] would simply go away,” Terrell told a legislative committee this morning.

Instead, TCEQ tentatively approved the wastewater permit.

Graham and family members who own adjacent parcels of the ranch looked into their options. To challenge the wastewater permit, the family would need to go through what’s called a contested case hearing, a sort of mini-trial overseen by an administrative law judge. The Grahams were willing to spend the money to hire attorneys and experts and take on the developer. But they didn’t expect to find that the government would be a bigger adversary than the developer, DHJB Development LLC.

“Throughout this entire case they went overboard in protecting the developer,” Graham said. “Had we just been fighting with the developer, this would have ended by now.”

Graham said DHJB had indicated on its application to TCEQ that the drainage lacked “perennial pools”—a key factor in determining whether a watercourse is public for the purposes of wastewater discharge. But TCEQ insisted to the judge that the unnamed tributary did have perennial pools. “They were fitting the circumstances to the case law.”

During discovery, Graham says, he discovered that DHJB’s attorneys had extensive contact with TCEQ throughout the permitting process, though he’d never been able to get anyone at the agency on the phone. “The developer is wishing the staff attorney a Merry Christmas,” he said.

Nonetheless, Graham convinced the administrative judge on almost every issue. In early March the judge recommended that the permit be rejected, writing that the wastewater “would adversely impact protestants’ use and enjoyment of their property and might adversely affect the cattle that graze there.”

Now, it’s up the three TCEQ commissioners, who’ve been extraordinarily favorable to business interests on issues small and large, to decide whether to follow the judge’s recommendation.

Graham said he feels vindicated that the judge affirmed his issues but described the contested case process as a “fire drill” that few citizens have the patience or resources to deal with.

Even so, several lawmakers, including the chairwoman of the House Committee on Environmental Regulation, are proposing changes that would make it even more difficult for people like the Grahams to prevail.

The lawmakers are reviving efforts to expedite the contested case process, arguing that it’s too burdensome on businesses. While the House geared up today to for a marathon debate on the budget, the House Environmental Regulation Committee heard hours of testimony on House Bill 1865, introduced by Rep. Geanie Morrison (R-Victoria), that would overhaul the way citizens can challenge permits. Supported by heavy hitters like the Texas Chemical Council, the legislation would require judges to issue a decision within six months; subtly shift the burden of proof to the protestant; and presume that the issuance of a draft permit by TCEQ, a routine matter, is “prima facie demonstration” that the permit meets all state and federal law.

“We are at a serious disadvantage because of the length of time it takes” to get permitted, Morrison said today, comparing Texas to other states competing for major industries.

Citizens and environmental groups today described the legislation as a gift to polluters.

The “proposed legislation will limit rights of citizens to participate,” said Carol Birch, a former administrative law judge. It “fundamentally alters the nature of the process and greatly increases the burden on protestants.”

Environmentalists have used the contested case process to slow, kill or improve permits for cement kilns, coal-fired power plants, landfills, refineries, quarries and other industrial facilities.

Out of some 1,900 environmental permit applications last year, only 10 were contested, according to Alliance for a Clean Texas.

Tom “Smitty” Smith of Public Citizen of Texas said similar legislation has been proposed half a dozen times in the last 20 years, but usually has been blocked in the Senate. This time, without the two-thirds rule, he expects it to pass both the House and Senate.

Graham said he and his family are “blessed” to have the resources to fight to the end. (He plans to appeal to district court if the TCEQ commissioners ignore the administrative judge’s findings.)

“But what about the average family that’s living paycheck to paycheck? What chance do they have?”

Morrison said the committee could return today to hear two more bills related to contested case hearings, HB 1113 by Rep. Travis Clardy (R-Nacogdoches) and HB 1247 by Rep. Wayne Smith (R-Baytown), depending on the course of the budget debate.

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