Google+ Back to mobile

Forrest for the Trees

State Rep. Geanie Morrison (R-Victoria)
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.

A portion of the San Jacinto River Waste Pits site, near the Interstate 10 bridge in Harris County, remains visible as the sandy area in the center left of this photograph.
Photo courtesy Gulf Restoration Network/
A portion of the San Jacinto River Waste Pits site, near the Interstate 10 bridge in Harris County, remains visible as the sandy area in the center left of this photograph.

In another fight over local control this session, state Rep. Charlie Geren (R-Fort Worth), one of the more powerful lawmakers in the House, is pushing a bill that would erode the ability of cities and counties to collect civil penalties from polluters. This morning, Geren described the latest version of his House Bill 1794 to the House Environmental Regulation Committee as a way to curb “lawsuit abuse” by capping the maximum penalties that can be assessed on environmental violators at $4.3 million and imposing a five-year statute of limitations on the filing of lawsuits.

The legislation appears to be a response to high-profile litigation between Harris County and three companies considered liable for the San Jacinto River waste pits, an EPA Superfund site that has been leaking dioxins into the San Jacinto River and Galveston Bay for decades.

While Geren jettisoned some of the most far-reaching parts of the original version of HB 1794—a requirement for local governments to prove that a company “knowingly or intentionally” violated the law, for example—local authorities and environmentalists said they were still opposed.

Tom “Smitty” Smith, the veteran head of Public Citizen’s Texas office, said cities and counties need the ability to force polluters to pay civil penalties because state enforcement of environmental laws is so weak.

“We think the [Texas Commission on Environmental Quality] is a toothless tiger,” he said. The agency doesn’t have the resources or “the guts to go after biggest polluters.”

First dug next to the river in 1965, the pits were only determined in 2005 to be the primary source of dioxins in upper Galveston Bay, which has been under a fish consumption advisory for two decades.

Local authorities, environmentalists and citizens of nearby neighborhoods contend that the waste pits have caused incalculable harm to the ecosystem and are responsible for a cluster of cancers and other diseases in Highlands and Channelview. In 2011, Harris County Attorney Vince Ryan sued the three companies he claims are liable for the damage caused by the dioxins in public waterways: International Paper, Waste Management of Texas and McGinnes Industrial Maintenance Corporation. The county asked for an eye-popping $1 billion.

Last year, as the lawsuit barreled toward a jury trial, two of the companies—Waste Management and McGinnis—settled for $29.2 million. International Paper was found not-guilty by a jury on a 10-2 vote.

Jackie Young, a 28-year-old Houston woman and Miss Houston Rodeo 2013 who grew up in Highlands, a community near the waste pits, told the committee that dioxins from the waste pits poisoned her family and neighbors. Young’s father suffers from multiple myeloma, a rare bone marrow cancer that she says is shockingly common among citizens in the area around the pits. Young has had two surgeries on her reproductive organs since 2013 and has experienced seizures, fatigue and other symptoms she associates with exposure to dioxins.

“There’s no cap on our medical expenses,” she told the committee today, “and there’s no cap on the medical expenses that many of our residents have incurred.”

Cost estimates for remediating the waste pits range from $100 million to $600 million.

“My father may never walk me down the aisle and I may never have kids, but that is my reality, I believe, like many other families in Channelview and Highlands, because companies dumped in our environment. To think that legislation is seriously being considered to limit and minimize penalties … is ludicrous.”

State Rep. Charlie Geren
State Rep. Charlie Geren

The Geren bill requires local government lawsuits against water polluters to be filed no later than five years after the company reports a violation or receives an enforcement notice. But Highlands and Channelview residents knew little to nothing about the waste pits for decades, in part because the successor companies didn’t bother to make the issue known to the community or regulators.

Young said her organization, the San Jacinto River Coalition, recently completed testing of the soil in 15 yards along the San Jacinto River in Highlands and Channelview. All 15 tested positive for the specific kind of dioxin leaching from the waste pits. The Harris County lawsuit, she said, was the first time many in the community were even aware of the waste pits—a popular spot for fishing, crabbing and, as one older man testified today, water-skiing in his youth.

County- or city-led lawsuits seeking penalties from water polluters are relatively rare, but Harris County, with its vast petrochemical facilities, 20 known Superfund sites and loose rules that allow homes next to industry, is probably the most litigious. In the last 19 years, the county has issued 18,000 violation notices to companies and filed 205 civil actions, said Cathy Sisk, a retired environmental attorney with Harris County. She said the county only resorted to the lawsuit because the three successor companies hadn’t done anything to clean up the site, even going so far as to defy EPA’s orders.

“We feel like in those cases we need a hammer,” she said.

Harris County Commissioner Jack Cagle, a Republican, made a pitch for keeping local control. “Government is best when it’s closest to the people,” he said. Sometimes, state officials are “removed from the passion of the folks who actually live in the neighborhoods, where we work, where we breathe, where we play and live.”

HB 1794 was left pending. A companion bill in the Senate, SB 1509, by Sen. Kelly Hancock (R-North Richland Hills) has yet to be assigned a committee.

Hill Country Water Torture

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

[Ed. note: The original version of this story ran in the March issue of the Observer.]

Coming into Wimberley from Kyle, the suburban plains subtly give way to the Hill Country. The homes grow fewer, the land begins to ripple, the soil thins and the limestone starts outcropping. For me, the Hill Country begins somewhere around the Hays City Store, near the precinct line, the last stop for a six-pack before you enter the dry part of Hays County.

By the time you pass St. Stephen’s Church and drop down into the little valley that holds spring-fed Lone Man Creek, where, in the fall, the red oaks look like ripe pimento in the green cedar canopy, you’ve reached the Hill Country. It’s in this liminal zone, 10 miles or so west of the roar of I-35, where many people have discovered recently that they reside in what water experts call a “white zone”—a part of the state that has no local groundwater district and therefore no pumping regulation. In the third of the state that lies in a white zone, the 110-year-old Rule of Capture is in full effect.

Blanco River
aheatwole via
Cypress roots along the Blanco River

The Rule of Capture is, in legal terms, a law of non-liability: It holds that you can pump as much groundwater from beneath your land as you want, and there’s not a thing anyone else can do about it. It’s a downright unneighborly law, but it can make for good profit. A private company, Electro Purification, recently moved into the Hays County white zone to take advantage. It plans to pump up to 5.3 million gallons per day from the stressed Trinity Aquifer to supply water to the I-35 boomtown of Buda and two large master-planned communities. That’s enough water for at least 30,000 people.

I’ve seen my share of water fights in Wimberley, where I went to high school and where my parents still live, but the Electro Purification deal has inflamed people unlike any other. There’s the way the company slunk into the area like a thief in the night. There’s the Byzantine nexus of local politicos, engineering firms and wheeler-dealers. But mostly there’s the sense that something precious is being stolen.

“It’s Trinity water, not ‘infinity’ water” is the rallying cry that has brought together a mix of retirees, cedar choppers, Austin expats and various all-purpose weirdos who call Wimberley home. The Trinity is indeed finite—and declining. Like many Texas aquifers, it’s being relentlessly mined. That’s the inevitable result of a growth-at-any-cost, anti-regulatory mentality that, left unchecked, will eventually sap Texas of vitality—first ecologically, and then economically. Overpumping, compounded by drought, is draining our springs, creeks and rivers, and straining private wells. Water marketers such as Electro Purification threaten to hasten the process on an industrial scale.

In early February I attended a Wimberley town hall meeting hosted by state Rep. Jason Isaac (R-Dripping Springs). One Facebook wag had a perfect description of the scene: “It was [a] rollicking good Texas time, complete with traffic jam, packed hall, TV cameras, signs galore, good guys, bad guys, fat cat lawyers, tanned developers, tears, confrontations, and best of all, a couple pissed-off politicians.”

An engineer hired by the city of Buda told the crowd that preliminary modeling showed that at least 30 to 40 private water wells near the Electro Purification pumps would experience a “significant” reduction. “Your well will appear to have gone dry,” he said. But don’t worry, you can just lower your pump, he told the crowd. A presentation by one of the developers focused on amenities at his master-planned community, as if we’d all been lured to a timeshare presentation. The Republican county commissioner called Electro Purification’s CEO a liar and a fraud and said, “We don’t want you here.”

It’s unclear what can be done. Isaac has filed bills that would allow nearby groundwater districts to annex the white zone, but no one knows if that would stop, or even limit, the Electro Purification project. And Isaac and state Sen. Donna Campbell, both tea party types, have in the past shown little appetite for giving local groundwater regulators the funding and tools they need. Isaac has said he’s absolutely against any new property tax, though that’s how almost every groundwater district in the state is funded.

But if any community can beat the odds it’s Wimberley. My hometown has an extraordinary amount of civic engagement on environmental issues, with more than its fair share of affluent retirees who love a good fight. It doesn’t hurt that the natural beauty of the area is known far beyond that corner of the Hill Country.

Citizens have formed the non-profit Trinity Edwards Springs Protection Association and are working with Jim Blackburn, a veteran Houston environmental attorney who owns a home on Lone Man Creek, to prepare legal action. One option is to pressure the Edwards Aquifer Authority, the grandaddy of state groundwater entities, to administer the Electro Purification project. Although the Edwards Aquifer Authority’s jurisdiction only extends to the aquifer of that name. The Edwards, which is the primary source of drinking water for San Antonio, is a big aquifer, but it’s also highly sensitive to drought and pumping.

Blackburn claims that the Edwards and the Trinity—both are karsty, “leaky” aquifers—are interconnected enough that what happens in one can impact the other. Blackburn says he’s preparing a letter to the authority outlining a case for regulating the portion of the Trinity in western Hays County not covered by a local groundwater district.

Meanwhile, Blackburn is preparing a lawsuit against Electro Purification that will seek to overturn the Rule of Capture. Blackburn said the Texas Supreme Court’s 2012 decision in Day vs. Edwards Aquifer Authority—the last big landmark groundwater case—is at conflict with the way the Rule of Capture works. In Day, the court established an absolute private property right to groundwater “in place” beneath the land but the Rule of Capture permits groundwater to be drained by a neighbor.

Groundwater district map
Texas Water Development Board
Roughly one-third of Texas lacks a groundwater district. The white areas on the map lack a district.

“The regulation is piecemeal and the rules are unfair—they allow private property to be taken,” Blackburn said. “If it was a government entity that did that you could sue them for inverse condemnation.”

Overturning, or significantly modifying, the Rule of Capture is a hugely ambitious goal, but Blackburn is no stranger to tough environmental fights. He represented the nonprofit Aransas Project in a federal lawsuit that challenged Texas’ management of water rights in the Guadalupe and San Antonio rivers. In 2013, a federal judge agreed with the Aransas Project that the state had violated the Endangered Species Act by failing to ensure enough freshwater reached the winter habitat of the endangered whooping crane along the coast. (The environmentalists lost at the Fifth Circuit but are appealing that decision to the U.S. Supreme Court.)

Wimberley and Texas need a system—and a mindset—that makes conservation the rule, not a luxury. Some water-stressed areas may have to discourage growth and require rainwater catchment and graywater reuse systems on new homes. I know that sounds crazy in this political climate, but it’s not as nuts as flushing an aquifer away. You don’t miss your water till the well runs dry.

A family looks on as a world  devoid of plastic bags and full of gay marriages is consumed by flames.
A family looks on as a world devoid of plastic bags and full of gay marriages is consumed by flames.

Like Lt. Gov. Patrick Dan, I don’t know if the end days are today or a thousand years from now.

But it sure as hell feels like they may already be here.

Moms pulling guns on 14-year-old rivals of their daughters. Firefighters shooting dogs and posting photos of the deed on Facebook. Llamas willfully disobeying traffic laws. Rick Perry, foreign policy expert.

While we wait for the seven-headed, 10-horned red dragon to appear, there’s plenty of bidness to get done. Let’s get to it.

1) Sen. Donna Campbell (R-New Braunfels) is growing into a RINO right before our eyes. Tea partiers, they grow up so fast. Earlier this week, Campbell presented her bill to keep the United Nations from Boutros Boutros Ghali-ing the Alamo. Senate Bill 191, Campbell explained, would “prevent vesting any ownership, control, or management of the Alamo to a foreign company or any entity formed under the laws of another country.”

Now, it just so happens that UNESCO is considering the Alamo as a World Heritage Site. This would put the Alamo in the company of the Statue of Liberty, the Taj Mahal and the Great Wall of China. Kind of a big deal—and one supported by almost every San Antonio civic leader and Alamo booster.

At the committee hearing on Tuesday, Campbell insisted her bill had nothing to do with UNESCO, but also warned her peers that “anything that starts with the ‘UN’ gives me cause for concern.” (Take that UNited States!)

Campbell seemed to think that Antonio López de Santa Anna had been reincarnated as a blue-helmeted UN-ista eager to reclaim the Alamo. As the San Antonio Current Express-News delicately put it, “Donna Campbell’s plan to protect the Alamo from the U.N. isn’t going well.”

But on Wednesday, Campbell was waving the white flag: In a statement to Fox 29, she said, “I’m comfortable with the U.N. recognizing the Alamo as a World Heritage Site so long as Texans continue to own, control, and manage the official Shrine of Texas Liberty.”

One way to describe this is as a flip-flop. Another way is to say Donna Campbell was against U.N. control of the Alamo before she was against it. Still another is that she’s becoming the statesman we always knew she was.

All’s I know is, there may not be a basement at the Alamo, but there’s an attic, where we keep our politicians.


2) Meanwhile, some of our legislators are tackling our thorniest problems. No, not the threat of a super-mega-drought in the Southwest unlike anything modern civilization has ever survived. No, not the thousands of people literally dying from lack of health care. No, not the state’s crumbling infrastructure. No, not the fact that the rich are seceding from the rest of us. Our Leaders For Liberty™  have bigger things to worry about. Like: plastic bags. More specifically, liberating plastic bags from local government overreach.

Imagine: a world in which city councils pass ordinances strongly disincentivizing the use of plastic bags in an effort to reduce the incidence of said bags littering the local byways, parks and Big Lots! parking lots. A world where one is forced to bring one’s own tote bag (everyone’s an NPR liberal now) to the H-E-B. A world where businesses no longer have the right to provide a single-use plastic bag to a customer (or, bags, since those damn things always seem to rip unless the clerk double-bags one’s milk and one’s Hungry Man frozen dinner.)

Imagine: Austin, Brownsville, Dallas, Laredo.

State Rep. Matt Rinaldi (R-Irving) doesn’t want to live in that world. There’s no bag ban in his district… yet. But it’s right at the doorstep. Look it up: Domino Theory.

Others have come before in this fight. But now it’s Rinaldi’s turn. He has responded with House Bill 1939, which would establish a “RIGHT OF BUSINESS TO PROVIDE BAG TO CUSTOMER” and repeal all existing plastic-bag regulations in Texas. Call it the Freedom Bags Restoration Act of 2015.

Are the bag bans a silly effort for local elected officials to look like they’re doing something bold for the environment? Maybe. Are state GOP leaders, including Greg Abbott, weirdly obsessed with the decisions of every level of government but their own. You decide.

3) Finally, the gays. How far they’ve come! How upset that makes some people!  Almost 10 years ago, 13 percent of Texas voters voted for a constitutional amendment banning same-sex marriage. Now that ban looks more fragile with every day as public opinion continues to shift in favor of marriage equality, the courts mow down same-sex marriage bans and two women got married in Travis County in a bit of a fluke.

In short, it’s the End Times. What to do?

One: Have a pity party with a cake celebrating a law that has been declared unconstitutional in 37 states and counting.

Two: Hand-write a complaint to the State Commission on Judicial Conduct about that Travis County judge that married those ladies. Bonus: Be so pro-straight marriage that you’ve gotten married five times.

Three: Do nothing. Wait for the end of days. They’ll be here soon.

Right (and Wrong) on Crime

For all the praise heaped on Texas for criminal justice reform, we’ve barely even begun the thaw.
Dawson State Jail
Patrick Michels
Tall and imposing, the now-shuttered Dawson State Jail offers an ominous greeting into downtown Dallas.

In January 2014, Rick Perry flew to Davos, Switzerland, to participate in the World Economic Forum—just the kind of cerebral gathering of global Thought Leaders that Perry has favored after his disastrous presidential run. Maybe it was the thin Alpine air, but Perry made international news when he expressed some tentative interest in decriminalizing marijuana. Sharing a stage with former U.N. Secretary-General Kofi Annan and Colombian president Juan Manuel Santos, Perry said he thought states should be able to experiment with drug policies (10th Amendment rah! rah! rah!) and held Texas up as a model for relaxing marijuana laws.

“[A]fter 40 years of the war on drugs, I can’t change what happened in the past,” he said. “What I can do as the governor of the second-largest state in the nation is to implement policies that start us toward a decriminalization and keeps people from going to prison and destroying their lives, and that’s what we’ve done over the last decade.”

Lost in the gee-whiz coverage of Perry’s remarks was the niggling fact that the Legislature wouldn’t meet again during his tenure as governor, and that over his four terms, he’s done very little to reform Texas’ draconian drug laws. During America’s 40-year drug war, he’s been governor for 14. Plenty of time to “keep people from going to prison and destroying their lives.” Yet, I’m hard-pressed to think of a single policy he’s responsible for that has moved us closer to decriminalization. (He gets some credit for not standing in the way of legislative efforts to create drug courts.)  Kudos to the Mexican reporter moderating the Davos panel who pointed out that Texas still has one of the highest incarceration rates in the world. (According to the Prison Policy Initiative, only four other U.S. states are worse. Texas’ rate actually went up slightly between 2012 and 2013. And if we were a country, our nearest competitor would be Cuba, with just half our incarceration rate.)

“I haven’t been governor of Texas forever,” said Perry.

“Well, 13 years is a pretty long time,” the reporter replied.

You don’t even know.

Why bring this up now? While Perry’s apparent change of heart is a welcome departure from the usual Tuff on Crime talk that’s dominated Texas for decades, he’s said little about it since, even as his Perry 2.0 tour (Smarter! Humbler! Seriouser!) continues. Perry wants to take credit for a tiny softening in his rhetoric just in time for another presidential run, after 14 years of enthusiastic prison-building, border militarization, executions and wildly disparate treatment of black, brown and poor folks. Gimme a break.

But I don’t just want to pick on Perry. For all the praise heaped on Texas for criminal justice reform, we’ve barely even begun the thaw. True, there have been a handful of prison closures and our incarceration rate has dropped 18 percent from 2000 to 2013 (though the total number of prisoners has climbed).

Incarceration rate, Texas and U.S.
Bureau of Justice Statistics
Texas’ incarceration rate has dropped but is still well above the national average.
Texas prison population, 1978-2013
Bureau of Justice Statistics
Texas’ prison population remains stubbornly high, one of the largest ones in the world.
Incarceration rate (multi-state)
Bureau of Justice Statistics
While Texas’ incarceration rate has fallen steeply since 2000, we still lag other big states like California and much less punitive places such as Minnesota. Thank God for Louisiana.

We’ve also made some truly meaningful progress on exonerating the wrongfully convicted and establishing drug courts that emphasize treatment over imprisonment—a point that Perry underscored in his farewell speech at the Legislature last month. The conversation has inarguably shifted, with conservatives—under the Right on Crime banner—now applying some fiscal discipline to the out-of-control prison budget.

That will only get us so far though. One of the inconvenient facts about our vast criminal justice machine, our archipelago of hellish prisons with their solitary confinement units and sweltering summer heat, not to mention our militarized police units and $86 million border “surge,” is that we can afford them. Only 10 percent of the state’s discretionary spending goes to public safety and criminal justice. The border operation is being paid for, in part, out of unspent disaster funds. Worse, many courts, cops and DAs are addicted to the revenue streams generated from discredited facets of the drug war such as Texas’ ludicrously unfair civil asset forfeiture laws. There are just not that many financial incentives to dismantle the prison-industrial complex.

The vision of the budget hawks extends not far beyond the balance sheet. These are the same folks who also zealously pursue prison privatization and often support draconian border enforcement policies that are driving a massive expansion of for-profit immigrant detention centers, many of them in Texas.

The moral arc of the universe is long but it bends toward justice—not lower spending.

We should acknowledge that deep, abiding reform must be based on fundamental notions of racial and economic justice.

Texas’ brutal and punitive criminal justice system is rooted in slavery and economic exploitation of the most vulgar kind. Our prisons are built on the back of Jim Crow. Plantations are not dismantled by cost savings or pilot programs. They’re toppled by rejecting the base impulses that have created a state in which progress seems forever in the distance.

Students from Houston Quran Academy.
Kelsey Jukam
Students from Houston Quran Academy sing the national anthem at the Texas Capitol.

Condemnation of the anti-Muslim rage at the Capitol on Thursday was fairly widespread among the media, elected officials and other members of the political mainstream. House Speaker Joe Straus put out a statement saying, in part, “legislators have a responsibility to treat all visitors just as we expect to be treated—with dignity and respect.” The Dallas Morning News editorialized that the “disgusting spectacle at the state Capitol and Rep. Molly White’s ignorant Facebook babble make you embarrassed to be Texan.”

Even Rep. Jeff Leach (R-Plano), a Christian right pol who’s sponsoring an anti-Sharia bill, tried to elevate the day out of the muck.

It was a rare moment of unity among an increasingly bitter and partisan—and dare I say, extreme—environment at the Capitol.

Some were eager to paint the two dozen or so Islamophobic protesters as a marginal group unrepresentative of Texas. The Dallas Morning News, in a tone uncharacteristic of staid editorial pages, put forth a #NotAllTexans argument: “Tell your in-laws in New York that we’re not all hateful, hayseed, redneck, ignorant Bubbas. Yes, we do have hateful, hayseed, redneck ignorant Bubbas in Texas.”

And that’s true as far as it goes: Most Texans don’t spend their days screaming at middle- and high-school students and dragging their knuckles around in public. Explaining how a state rep came to believe that the way to greet her constituents was to taunt them with the flag of a foreign nation and demand they take a loyalty oath is a harder task, though. Still, some tried. Erica Grieder of Texas Monthly pointed out that Rep. Molly White is a true freshman (no redshirts in the Lege) and probably has a bit of “a learning curve” to deal with. And this is true in its way too.

Surely Rep. White will think twice before she lets loose with full-throated bigotry again. Someone will show her how to use a dog-whistle instead.

But Rep. White and the anti-Muslim protesters did not appear out of nowhere. What happened last week is merely an extreme manifestation of deep-seated Islamophobia in Texas. If you care to scratch beneath the surface, the hatred of Muslims in tea party circles is palpable. White, for example, has spoken at least three times in the past few months on Raging Elephants Radio—a tea party radio program run by Apostle Claver, a black tea partier from Beaumont. On one recent show, the host, Doc Greene praised mosque burnings in Sweden, said Islam should be made illegal in Texas and told his listeners, “We need to make Muslims in Texas feel unsafe.”

This is not conservatism. This is crypto-fascism, the kind of jackbooted thuggery that is on the march in Europe today. Is Rep. White aware of Greene’s views? Does she share them?

Granted, Greene and White are outliers on the political spectrum. But virulently racist and paranoid rhetoric directed at Muslims is far from unusual. The Oak Initiative, a religious right organization active in Texas, has been beating the drum about an Islamic takeover of America for years. Here’s an example from a recent email to supporters:

Islam is one of the biggest threats in the world.  It is the anti-Christ system that is rising and Christians are called to confront it head on.  In order to do so you must be informed.

As Christians, we do not hate muslim people, but we do stand against the spirit of Islam that has millions in bondage and is seeking to bring the United States under its subjection through the implementation of Sharia Law (Islamic Law).

In 2011, the Oak Initiative leadership, based in Kerrville, claimed to have helped former state Rep. Harvey Hilderbran (R-Kerrville) write an anti-Sharia bill. The legislation didn’t go anywhere, but the notion that Sharia is somehow taking over courts in Texas, where judges are elected, just won’t die. The whole interplay of Sharia and American law has been wildly distorted and exaggerated. And not just by obscure radio programs. Ted Cruz has been on the Sharia bandwagon for years, calling it an “enormous problem” in 2012. Breitbart Texas has moved from beating up on Central American child refugees to hyperventilating over a non-story about Sharia courts in North Texas, which was then picked up by Fox News.

Anti-Muslim protesters.
Kelsey Jukam
A small group of anti-Muslim protesters disrupted speakers.

And let’s not forget one of the opening acts of Lt. Gov. Dan Patrick’s career. In 2007, as a freshman senator, he refused to stay in the Senate chamber while a Muslim imam gave the traditional opening prayer for the day. Later, he said, “I think that it’s important that we are tolerant as a people of all faiths, but that doesn’t mean we have to endorse all faiths, and that was my decision.”

In Patrick’s mind, listening to a prayer is to “endorse” it—a problematic standard given that there are several Jewish legislators, including House Speaker Joe Straus. Imagine if a Muslim served in the Legislature.

Earlier in the 2007 session, Patrick had gotten the Senate to agree to put “In God We Trust” at the front of the Senate. I guess we knew which God he had in mind: His.

It is in this context of powerful politicians and media demagogues that Islamophobia is on the rise. Consider the experience of Heba Said, the Muslim UT-Arlington student who attended the Texas Republican Party Convention as a reporter for The Shorthorn. Said wears hijab—an article of clothing that was apparently a provocation to some of the GOP attendees. Said described “a cult-like hatred that is simply disgusting.” She was harangued about being Muslim, treated like an unwelcome visitor and even watched by police.

A couple months ago we profiled Mohamed Elibiary, a Plano Republican who happens to be Muslim and helps law enforcement combat extremism. Despite having a government security clearance, Elibiary has become a target of right-wing activists, who believe he is in cahoots with the Muslim Brotherhood and, predictably, part of some Obama-led fifth column to destroy America.

A couple weeks ago, a conference in Garland dedicated in part to fighting Islamic extremism was swarmed by protesters carrying signs bearing messages such as “Stand for the Savior Jesus Christ” and “Insult Those Who Behead Others.” Similar protests erupted in Houston the next day.

This is the lizard brain at work: My religion leaves no room for your religion.

The Capitol can seem like a rarefied place, but it’s not immune from the free-floating bigotry that’s roiling outside those heavy oak doors. Sometimes it finds a home inside.

Updated: The original version of the story misquoted House Speaker Joe Straus’ statement. The post has been corrected. We regret the error.

The Things We Feared, 2014

"A Clockwork Orange"
"A Clockwork Orange"

As the year 20 and 14 draws, blessedly, to a close, let us reflect on that one thing that brought us together: fear. This was a year that saw a succession of freak-outs, each one eclipsing the next in apocalyptic panic. Texas seemed to be under constant siege: from children, from prayer-rug-wielding terrorists, from invisible (and possibly airborne!) West African diseases, from liberals. Just as one crisis was fading, another one roared to life. The fear was free-form, uncontained, whipping from one target to the next—and, then, like a flash mob with a short attention span, dispersing. Quickly, the old crises—the ones that just months before were supposed to cripple our way of life, rob us of our sovereignty, destroy our communities—were discarded, forgotten, as if they’d never mattered.

Imagine a thousand Alamos—and then forget almost all of them. But should auld crises be forgot, and never brought to mind?

In the interest of remembering, in the spirit of the new year, and perhaps in the hope of learning something (I’m an optimist) from them, here are the leading Everyone Freak Out, We’re All Gonna Die events of 2014:


Central American Refugees

For a time earlier this year, it seemed like all any Texas politician and tea party activist wanted to talk about was the Invasion of the Kiddos.

The phenomenon of children and teens traveling to the U.S. by themselves is not a new one. Immigration authorities and child welfare advocates have been grappling with the extremely delicate problem of what to do with unaccompanied minors apprehended at the border for many years. And the numbers of children from Central America began ticking upward, and then surging, several years ago. However, anti-immigrant groups and Texas politicians hardly took notice until this year when the system became overwhelmed by record numbers of children and families fleeing violence, insecurity and poverty in Guatemala, El Salvador and Honduras.

And then the reaction was furious. Anti-immigrant activists created elaborate alternative theories about the children. They weren’t actually kids. They weren’t fleeing violence. They were coming to the U.S. because of “the magnets” of free stuff and the promise of one day being able to vote for Malia Obama. Best not to even call them children, or refugees. The kids had leprosy, they had polio, they had Ebola.

Breitbart Texas deployed its crack team to South Texas to snap photos of scenes like “ANIMALS FEAST ON DEAD MIGRANT” and whip its audience into a frenzy with the usual Breitbart-ian admixture of shrieking headlines, seething rage and nonexistent editing.

State Rep.-elect Tony Tinderholt toyed with the idea of invading Mexico. State Rep. David Simpson was nearly pilloried for suggesting a modicum of compassion. Lt. Gov. David Dewhurst accused Mexico of ushering the kids into the U.S. Rick Perry and Sean Hannity rushed to the border to pose on armored gunboats. For a mere $86 million, Perry deployed the National Guard and state police to the border for, as he explained to Fox, “the visual.” Politicians, including Democratic border Cnongressman Henry Cuellar, fell all over each other to see who could stand up to these underage alien invaders the most aggressively.

And then, in early fall, interest just flickered out. Oh, the children and families were still coming—albeit in smaller numbers—and the feds were busy in South Texas building giant no-bid for-profit “family detention centers,” and reports continued of deported youth being murdered back in their home countries, but then it just suddenly—around the time of an election, no less—seemed as if the fire had gone out on the issue.

Where are they now?

Reports suggest that many children and their parents have been deported to their deaths. Others are forced through for-profit prisons where attorneys and activists have reported detainees are poorly treated, sometimes sexually assaulted, and denied due process for their asylum claims. Recent data also indicates an uptick again in the numbers of people turning themselves in at the border, suggesting that the U.S. government’s response to the influx may not be enough to overcome the factors driving people out of Central America.


ISIS at the Border

The borderlands, it seemed, had all the fun this year. When it wasn’t the Central Americans, it was the Islamic State expanding the borders of the caliphate to Rio Grande City. As an actual crisis gripped the Middle East, with the fate of entire nation-states and the lives of millions in the balance, with the Islamic State actually (sometimes literally) threatening the borders of American allies, GOP leaders in Texas worried that the Islamic terror group was coming to Texas do the jihad. Evidence: “Quran books.” And an apparent Adidas soccer jersey that the crack team at Breitbart believed was a Muslim prayer rug. And California Congressman Duncan Hunter’s beautiful mind.

Meanwhile, not a single credible authority could be found that found such a theory plausible.

In late October, Lt. Gov.-elect Dan Patrick warned in a TV ad that “ISIS terrorists threaten to cross our border and kill Americans.”

(Ah, but he just said “threaten,” and surely somewhere some jihadi with a Twitter account had threatened to come blow America up. Could be, could be.)

The “ISIS at the border” crisis seems to have cooled considerably, probably because it was so wildly unsupported that it was bound to die off once the politicians and propagandists wrapped up election season. Still, the ISIS claims, coupled with the hysteria over the Central Americans, certainly helped justify the ongoing border “surge.”

Where are they now?

Still in Syria, still in Iraq.


For a little minute there, it seemed like we were all going to die. But in the end, just one person in Texas did: Thomas Eric Duncan, a Liberian man who contracted Ebola in Liberia, was diagnosed on Sept. 30 in Dallas and died in a Dallas hospital on October 8. Two of the nurses who treated Duncan were treated and released, disease-free, within weeks. Texas was declared Ebola-free on Nov. 7.

During that month and change, Ted Cruz proposed banning travel from affected West African nations, despite widespread concern from the medical community that such a draconian measure would make the disease outbreak worse. Rick Perry ordered mandatory quarantines for returning aid workers, although the risks of Ebola spreading from doctors and nurses is “near zero” and needlessly isolating people tends to discourage them from rendering aid. Schools closed. Parents kept their kids inside. Breitbart accused Dallas County Judge Clay Jenkins, who showed considerable compassion toward the Duncan family, of being a “NAIVE LIBERAL” and doggedly spread the lie that Ebola is an airborne disease.

To recap: We were all going to die, then we didn’t. Huh, guess we got lucky.

Where are they now?

In West Africa, 7,800 have died and the disease has “roared back” after recent gains.

vote here

It’s another election season in Texas. Another year that we’re on track to maintain the nation’s most dismal voter turnout.

One difference this year is that voters are now required to present photo ID at the polls, the result of Republican-authored legislation ostensibly to deal with the diminishingly small number of voter fraud cases. It’s difficult to say what effect the voter ID requirement is having, though even some Republican state officials apparently knew that more than half a million registered Texas voters—disproportionately Hispanic and African American—lacked the credentials to cast ballots but didn’t bother to tell lawmakers.

One thing is certain: Very, very few Texans have gotten election identification certificates (EIC), the new state-issued form of photo ID for those who don’t have it—340 Texans, to be precise.

That’s less than two thousandths of a percent of Texas’ voting age population. That’s only a little more than one EIC for each of Texas’ 254 counties. And many counties haven’t had a single citizen obtain an EIC. Another way to slice the numbers: There are more licensed auctioneers (2,454) in Texas than there are people with EICs—more than seven times as many in fact. In Harris County, with more than 4.3 million people, a poverty rate of 18 percent and 70 percent people of color, there are 186 licensed auctioneers but just 21 EICs. There are more licenses for boxing judges in Lubbock County (4) than there are voters with EICs (3). There are more licensed elevator inspectors in Dallas County (35) than voters with EICs (28). And so on….

“It’s heartbreaking,” said Myrna Perez, deputy director of the voting rights project at the Brennan Center for Justice. “The information about the EIC has been dreadful. Nobody knows about it.”

There’s also the issue of cost and convenience. An estimated 400,000 eligible voters face round trips of three hours or more to get a photo ID from a Texas Department of Public Safety office, a fact noted by Supreme Court Justice Ruth Bader Ginsburg in her stern dissent from a recent ruling leaving Texas’ ID requirement in place for this election. Most people will need a birth certificate to get an EIC, which can be costly and time-consuming to obtain. And an EIC really comes into use a few times a year at most.

“You can’t use the EIC for anything other than voting,” Perez said. “It’s a pain in the neck to get and then you can’t use it for anything else.”

It’s possible that folks were able to obtain another of the seven approved forms of photo ID. DPS reports that it has received 1,850 inquiries about voter ID and “many of the individuals” already had the photo ID they needed to vote. But it seems much more likely that the paltry number of EICs so far means that significant numbers of people who would otherwise be voting, simply aren’t.

With so few EICs issued it’s hard to see any particular patterns in this geographic breakdown. Hidalgo County, one of the poorest and most Hispanic-heavy parts of the state, leads with a whopping 41 EICs. The other big urban counties share double-digit numbers of EICs, whereas rural counties show just a handful apiece—or none. According to DPS’ data, three quarters of all Texas counties—190—didn’t report a single EIC.

Texas Attorney General Greg Abbott
Patrick Michels
Texas Attorney General Greg Abbott announces his run for governor in San Antonio, July 14, 2013.

Of all the ways politicians can abuse their power, none is as serious as messing with voting rights. Corruption is troubling and can become endemic if left unchecked. Lying, especially under oath, weakens the bonds of trust in a democracy. Cronyism violates basic rules of fairness and leads to inefficiency in core government services. But tampering with the franchise is an offense against democracy itself. That’s why Greg Abbott’s successful efforts to shut down a voter registration campaign in Harris County are so troubling. Although the saga started unfolding four years ago, it only came to light in August, when The Dallas Morning News reported details of the criminal investigation and raid. I recently spoke with Fred Lewis, the man who headed up the voter registration drive and who is now accusing Abbott of a serious abuse of power. The effect, he said, has been to “criminalize” voter registration in order to “rally up the base.”

To briefly recap: In the run-up to the 2010 election, the tea party poll-watching group King Street Patriots began complaining about a voter-fraud conspiracy in Houston, linking ACORN, the New Black Panther Party and a new voter registration drive by Houston Votes, an offshoot of Lewis’ community organizing group Texans Together. In more innocent times, registering people to vote was seen as a dull but laudatory civic activity. But King Street Patriots saw a conspiracy, a threat. And, more importantly, so did Leo Vasquez, the Republican elected official in Harris County who oversaw the voter rolls at the time.

At a very unusual press conference in August 2010, Vasquez announced—alongside representatives from the King Street Patriots—that Houston Votes was behind an “organized and systematic attack” on the integrity of the voter rolls. Vasquez complained that many of the voter applications submitted by Houston Votes were duplicates or for people who had already registered—an almost universal feature of paid registration drives that rarely results in voter fraud. In any case, it turned out that Vasquez’s claim of 5,000 bogus applications was fancifully high. Nonetheless, Vasquez referred the case to the Texas attorney general’s office for an investigation.

Three months later, armed law enforcement officers dispatched by the AG’s office raided the Houston Votes office in Houston, and, two weeks later, hit Fred Lewis’ office at the Baptist Christian Life Commission headquarters in Austin, seizing computers and records. The raids were overseen by a 27-year-old investigator who developed a novel legal theory that Houston Votes had possibly committed felony identity theft by storing information collected from individuals in the course of registering them to vote. In October 2011, the investigation fizzled when the Harris County DA rejected the AG’s case for lack of evidence. Two years later, the AG’s office destroyed Texans Together’s computers and records, using a statute that deals with contraband. Lewis said he was never even notified. Though no charges were ever filed, Houston Votes’ database of new voters, its financial records, including a donor list, and Lewis’ personal files were destroyed.

Lewis, a veteran campaign finance attorney in Texas who founded Texans Together in 2006, said he didn’t even know the AG’s investigation had ended until he was contacted this past August by The Dallas Morning News—two years after the case had collapsed.

Though the case stalled, the armed raid and criminal investigation had an impact: Houston Votes lost its paid organizers, saw its funding crippled and its voter-registration efforts dwindle. Houston Votes had been on track to register 70,000 new voters in 2010, Lewis says. Because of the raid, it registered only about 25,000. Instead of bringing disenfranchised people into the system, the group was lawyering up.

Lewis, who worked as a lawyer at the attorney general’s office from 1989 to 1995, said he has warned colleagues to not even think about trying paid voter registration in Harris County. “They’ve criminalized voter registration in my view,” Lewis said.

Abbott has defended the investigation but also said he “didn’t know about it at the time it was going on.” The attorney general also strongly insinuated—despite the dead-end investigation—that Houston Votes had engaged in “some wrongdoing that was akin to ACORN-type political operations.”

Lewis said the episode suggests that either people at the top of the AG’s office wanted to shut down a voter registration drive or that the people running the investigation were zealots operating without supervision. “The problem was nobody was a professional, nobody was supervised, nobody said, ‘This is ridiculous, this is overkill, this is abuse, this is a bad precedent, this is not what we want to do in a democracy.’”

Texas has the lowest voter turnout in the nation. Is it any wonder why?

Support the Texas Observer

Wendy Davis speaking
Patrick Michels
Wendy Davis speaks at her gubernatorial campaign announcement October 3 in Haltom City.

If Wendy Davis and the rest of the Democratic slate of statewide candidates have any chance of defying the polls, or even doing better than the disastrous (for Dems) year of 2010, they’ll probably need a large number of voters to turn out to the polls. We’ve written this story many, many times: The Achilles’ heel for Texas Democrats is that their voters don’t show up. Texas has some of the worst voter turnout numbers in the nation and that abounds perpetually to the Republicans’ advantage. This election cycle was supposed to start changing that. A year and a half ago, Battleground Texas—the hyped Obama-style grassroots machine—came here promising to launch a multi-year effort at rebuilding the Democratic apparatus largely by expanding the electorate and deepening engagement with neglected communities and constituencies, especially with Latinos.

Well, we’re more than a week into early voting. How are Davis and Battleground Texas doing? It’s probably still too early to reach any definitive conclusions but the tentative answer so far is that turnout does not look all that different from 2010, the last mid-term election and a horrible year for Texas Democrats, when Bill White lost by 13 points to Rick Perry and Republicans won so many seats that they secured a super-majority in the Texas House.

The total number of people voting early barely tops 2010. Despite a bump in registered voters and significant population growth, only about 16,000 more people have voted in the first nine days of early voting this year compared to the last mid-term in 2010.

Voter turnout in Texas, 2006-2014
Stefan Haag
Voter turnout in Texas, 2006-2014

The conventional wisdom is that’s bad for Democrats, though the Davis campaign says there’s reason for “cautious optimism.”

“Of course higher turnout is generally better,” said Jeff Rotkoff, a Democratic operative who advises Steve and Amber Mostyn, the Houston couple who are among the biggest donors to Texas Democrats. “But counties don’t vote. People do. In Harris County we’re not focused on the overall percentage turnout, but rather on who is voting. And that while it looks like Republicans carried the first week of early voting in person, that we carried the weekend and Monday.”

Battleground Texas says its volunteers knocked on the doors of 300,000 people over the weekend alone. “We’re encouraged by the support we’ve seen to date, and we expect our voters to increasingly make their voices heard at the ballot box as they continue to hear from our 33,000 grassroots supporters on the phones and at the doors,” said Jenn Brown, executive director for Battleground.

In Texas’ 15 most populous counties, voter turnout (the percentage of registered voters making it to the polls) so far is actually down by almost 6 percent, compared to 2010. And that gap has been growing with every day. A number of big urban counties are posting anemic numbers: Dallas, Bexar, Travis and El Paso all have lower voter turnout than four years ago. Perhaps most ominously, 5,000 to 8,000 fewer voters are showing up to the polls every day in Harris County, the state’s biggest county and a natural target for progressives looking to establish an anchor for statewide candidates.

In 2010, 13.5 percent of registered voters had cast a vote at this point; this year, it’s about 12.7 percent. Democrats are quick to point out that the number of registered voters has increased, but even by raw vote totals Harris County, which is now 70 percent minority, is in a sad way. In 2010, a little under 295,000 people had voted in the first eight days of early voting; in 2014, it’s dropped 15 percent, to 252,000.

Democrats say just focusing on turnout is simplistic. “In Harris County we’re not focused on the overall percentage turnout, but rather on who is voting,” Rotkoff said.

Battleground Texas says its internal analysis shows that the electorate consists of more Democratic-leaning voters. Through Monday, African-Americans made up .8 percent more of the early vote electorate compared to 2010. Hispanics made up 2.2 percent more.

Meanwhile, there are major parts of the state where voter turnout is looking good: Tarrant (Fort Worth), Collin, Denton and Hidalgo (Rio Grande Valley) are all posting double-digit gains, which may have a lot to do with local dynamics. In Fort Worth, the only truly competitive state Senate seat—Wendy Davis’ district—is up for grabs. Denton voters are deciding whether to ban fracking. And Hidalgo County voters are considering a hospital district. Collin County, which has seen a 22 percent increase in the number of voters, is one of the most hardcore suburban GOP counties in the state. On the other hand, turnout is down in the heavily GOP suburban counties of Williamson and Montgomery.

“The data isn’t 100 percent clear, but it is clear that turnout seems to be lagging,” said Karl-Thomas Musselman, an Austin-based Democratic political consultant, “and I think it’s helping Rs more than Ds.”

There are three more days of early voting left, including today, as well as Election Day. Perhaps turnout could surge. Perhaps the GOTV efforts we’ve heard so much about are paying dividends that are hard to discern in the public data. But at this point, statewide Democrats will probably need a turnout miracle to keep the dream alive.