The Texas Observer

 The Texas primary runoff elections were a hiccup compared to the March 4 presidential primary. Turnout reverted to its normal dismal lows. Statewide, according to the secretary of state, it was just 1.55 percent. But history was made nonetheless.

In the closely watched race for Travis County District Attorney, Rosemary Lehmberg, Ronnie Earle’s hand-picked (some would say anointed) successor, won handily, slamming challenger Mindy Montford 64.5 percent to 35.5. Lehmberg has served under Earle as First Assistant, and now, she will be Travis County’s first female DA — taking the reins of the Public Integrity Unit along with the other powers of the office.

Montford, who took a leave of absence from the Travis DA’s office (all of the candidates worked under Earle in some fashion), will presumably head back to work Wednesday — and that will certainly be an interesting conversation, given how heated the campaign had become between the two during the runoff.

The final numbers for the DA’s race came in just before 10 p.m. They show Lehmberg with 65.21 percent, or 19,197 votes, to Montford’s 34.79 percent, or 10,243.

Out in the Panhandle, Tryon Lewis beat incumbent state Rep. Buddy West of Odessa. This race was all about the power of West’s Midland rival Speaker Tom Craddick. The speaker’s money helped knock out West who only got 23.97 percent of the vote.

In the statewide contest, Texas Democrats continued to support a political newcomer. Voters favored Mark Thompson over Dale Henry 59 percent to 40 percent. Thompson is a therapist for blind children and former Austin Capitol and Park Police officer — who had spent (as of April 4) only $200 on his entire campaign.

I wrote about Thompson’s inexplicable Mar. 4 victory and have spoken with him on several occasions. He says he is running a campaign on issues and he says he will not take any money from oil and gas interests.

Thompson told me Tuesday that he intends to court those voters who supported his opponents and to raise money for the general campaign. He has consistently refused to “go negative.” He even neglected to mount a campaign to debunk the allegation that he hadn’t voted since 1996 (a charge floated by the Henry campaign). In fact, he did vote in Austin in 2005 and 2006.

Thompson’s victory shows Texas Democrats don’t always follow the leads of bloggers — since most of the progressive blogging community had piled on Henry’s bandwagon. Thompson even beat Henry in Travis County, 51-49.

Thompson will face Railroad Commission Chair Michael Williams in November. Expect Williams to raise a ton of money from the Oil & Gas industry and anyone else who will fork it over.

You know these are heady days for Texas Democrats when there’s a heated primary fight to serve on the Texas Railroad Commission. In recent years, Democrats were lucky if they fielded even one candidate for down-ballot statewide races such as Texas Supreme Court and Railroad Commission.

This year there were three candidates. The two top finishers will compete in a runoff on April 8 for the right to face GOP incumbent Michael Williams in the fall.

The unusually crowded Democratic field wasn’t the only peculiar aspect of this race. Democratic voters eschewed the (relatively) bigger names and backed the low-budget, populist candidate: Mark Thompson, a former Austin cop who works as a disabilities rights advocate and therapist for blind children. In a distant second was Dale Henry, who has a wealth of industry savvy and campaign experience. Art Hall’s slew of big-name endorsements led to a third-place finish.

Hall, an investment banker and a former San Antonio city council member, gathered the endorsements of Henry Cisneros, Dolph Briscoe, and several daily newspapers, but still came in third, with 466,758, or 24 percent of the vote. Henry, a former Republican and industry professional, placed second with 539,300 votes — nearly 28 percent.

But it was Thompson, whose ethics commission filings show he only spent all of $150 on his entire campaign (through Feb. 24, anyway), drew 940,722 votes statewide — just over 48 percent and a mere two percent shy of winning the nomination outright. Henry and Thompson will face each other in the runoff.

So what happened?

Maybe it was the the heavy turnout or the Obama/Hillary dynamic. Or maybe it was simply voter ignorance. Most people just don’t know and don’t give much of a damn what the Railroad Commission does (hint: it ain’t trains).

But Observer readers know that the three-member commission has a hold on several important levers of power and responsibility, including regulation — and we use that term loosely — of the oil and gas industry in Texas. Commissioners enjoy a six-year term and occupy an office that even the late, great Bob Bullock once craved, at least according to biographers Dave McNeely and Jim Henderson.

Thompson says that voters responded to his message. “What happened was I was talking about the issues,” he said. “Art Hall and Mr. Henry just talked about themselves.”

Thompson said before the election he did some amateur polling and was told by voters that they were supporting him because of his call for reform — and, he added, because they didn’t want an investment banker (Hall) and they feared Henry was too close to the industry. There’s also the fact, which Thompson didn’t mention, that Henry first ran for the commission in the Republican primary in 2004.

“None of these candidates are right on the issues,” Thompson said. “Those guys… They forgot one thing. They forgot the people… I supposedly had no knowledge, but what did I do? I fought for the people.”

Henry proudly talks about his campaign to unseat GOP Commissioner Elizabeth Ames Jones in 2006 (as a Democrat). Jones beat Henry by 12 percentage points.

“It just thrills me to death that Mark has done as well as he has,” Henry said. But he said that he stopped in Thompson’s hometown of Hamilton, Texas, on a recent campaign swing and noted that nobody he talked to seemed to know who Thompson is. “This is back to the Obama phenomenon,” Henry said, suggesting that the huge turnout among “young folks” helped Thompson.

Henry is 76, but, he notes, “I look about 55.” He said his age should not be a concern to voters and added he could see himself serving two terms. Thompson is 48.

Thompson said what matters about Henry is not his age necessarily, but the fact that in two previous elections he has failed to win the office.

“He’s already been beat twice,” Thompson told me.

The one thing both candidates agree on? They both think GOP incumbent Williams is vulnerable.

“Williams has sold out to the industry,” Thompson said.

“He’s vulnerable,” Henry says, “because Democrats are coming out to vote.”

Maybe so — but first they’ll have to make up their minds in this curious statewide runoff.

Regular Observer readers will remember Dennis Bonnen (R-Angleton). Bonnen chairs the Texas House Committee on Environmental Regulation.

He now is also chairman of the Select Committee on Electric Generation Capacity and Environmental Effects. Speaker Tom Craddick has charged the new committee with preparing a long-term energy and environmental impact plan to be submitted to the next Legislature.

At its recent first hearing, Bonnen managed to make some news by boldly declaring that Texas has done a great job on the environment when compared to other states — something he says people just don’t recognize.

The Dallas Morning News reported last week that Bonnen said, “We’re probably one of the best environmental states in the country. Now there are those that would like to argue that, but the facts won’t allow it.”

The article notes: “The standing-room-only audience was largely power industry managers, lawyers and lobbyists.”

This is how “Dennis the Menace” operates. He claims to be an effective environmental steward, all the while killing bills in his committee that would reduce toxic emissions, toughen clean air standards, and give the Texas Commission on Environmental Quality the regulatory power to make a dent in Texas’ staggering pollution problems.

And then, as Bonnen likes to do, he adds a smidgen of insult and blatant fact manipulation to his sad, false argument about the state’s leadership on the environment.

Observer writers Forrest Wilder and Patrick Michels have written about Bonnen’s confrontational chairmanship style. In a post called The House Comedy on Environmental Deregulation, Wilder noted Bonnen’s response to the testimony of Environmental Defense’s Jim Marston (who is on the Observer board):

If you want to watch a YouTube video of Bonnen berating Marston, it’s posted on the Texas League of Conservation Voters site.

The Austin Chronicle also chimed in on the absurdity of a different meeting in a post called “What did Austin do to Dennis?”

At the meeting of the select committee, moreover, the defenders of the carbon dioxide-emitting, air-polluting, and all-around environmental nightmare fossil fuel coal waded up to the trough to push for more coal-fired power plants. As Dallasnews.com reported, our PUC chair brought it up:

“If we want to fix the environment, if we want to deal with climate change, then we have to do it in the context of: We are going to burn more coal,” [Public Utility Commission Chair Barry] Smitherman said, citing government projections that the country will rely more heavily on coal in the future.

Apparently, TXU’s failure to get all 11 of its coal-fired plants was the genesis for the committee. The Morning-News:

The idea for the committee came up when TXU Corp., now called Energy Future Holdings, proposed building 11 coal-fired power plants two years ago. Public protest about the pollution the plants would emit prompted the company to scale back plans to only three plants.

Here you can find a list of bills Bonnen opposed during the last session along with a list of the bills he supported — all of which either went too far in terms of sensibly protecting Texas’ environment or went just far enough on behalf of industry in order to gain Bonnen’s approval.

We’ve avidly followed the work of software tester John Washburn of Milwaukee, Wisconsin, who programmed his computer to start asking for all emails to and from staffers in Gov. Rick Perry’s office in early November of last year. Washburn’s efforts have yielded some juicy tidbits.

It’s also revealed a troubling loophole in Texas’ open records law.

Here’s a little background: Perry’s office sent Washburn a bill of $568 for staff time and compliance costs for each three-to-four-day batch of emails. Washburn has managed to pay for only one batch so far. He quickly posted them on the Internet.

Washburn said he received an estimated 1,900 documents out of a total of 5-6,000 — meaning that Perry’s office has asked that roughly 4,000 documents/emails be ruled exempt from open records requirements. The AG’s office now has 45 business days to rule.

Problem is, the governor’s office seemingly contacted the AG’s office too late. According to Texas’ open records law, state agencies have 10 business days after they receive a request for documents to ask the AG for a ruling.

Section 552.301(b) reads:

(b) The governmental body must ask for the attorney general’s decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request.

Washburn made his request on Nov. 6, 2007. But the governor’s office didn’t contact the AG’s office to withhold documents until Jan. 14, 2008, according to letters from the governor’s office obtained by the Observer.

Our admittedly simple math says that’s a lot more than the 10-day limit. That would certainly suggest that Perry’s office waited too long to ask the attorney general for an opinion on whether the emails should be deemed exempt to Washburn’s request.

However, Perry ’s office is taking advantage of another, little-used section of open records law that monkeys with the definition of “received.”

Under a rarely used provision, Perry’s office asserts that it can consider the request “received” upon receipt of payment.

Perry’s office received payment for the first batch on Jan. 2.

A spokesperson for Perry explains:

As for the time between Nov. 6 and Jan. 14, our office was waiting for payment from Washburn. Under §552.263(e), we may consider the request “received” upon payment. We sent Washburn an estimate of charges, explaining this procedure on November 20, 2007. Once payment was received, documents were provided within 10 business days. We of course preserved documents during this time.

The Texas Attorney General said Friday that the invoking of §552.263(e) is rare, but is used in certain cases, particularly when the open records request is very large.

A reference to the clause is even on the Texas AG’s web site:

For purposes of the governmental body’s obligations under subchapter E of the Act to make requested public information timely available to the requestor, a request for which a deposit or bond has been required under section 552.263 is considered to have been received by the governmental body on the date the governmental body receives the deposit or bond.

It seems peculiar, even to open records veterans, chiefly because this caveat guts the 10-business-day rule. What governs the governor’s initial response? It appears, at least in cases where fees are assessed, the clock can be stopped indefinitely.

Washburn puts it this way:

In the make-it-up-as-you-go-along world of the Governor, The Governor’s office is under no obligation to provide an itemization of charges in 10 days, 11 days, one month, one year. There is no time limit as long as the Governor thinks the response is “Prompt”.

Perry’s spokesperson responded:

Our internal policy is to provide a requestor with those documents not believed to be confidential within at least 10 days – even though statute simply requires our office to be “prompt.” (Government Code § 552.221)

We expect a more detailed explanation from the attorney general early next week on just how often Section 552.263(e) is invoked and exactly what its ramifications are for open records requests in Texas.

At this moment, though, it appears Perry’s office has opened a severe loophole in one of Texas’ most important open government laws.

Those who caught Jesse Bogan’s story in the Observer, Slow Death, Slower Justice, know the sad story of the old pesticide manufacturing plant in South Mission that contaminated an entire neighborhood over a period of decades. The folks in the houses around the old warehouse have been riddled with cancer and disease from the DDT and other poisons that saturated the neighborhood.

From the Observer story:

The plant exhaled pesticide dust like a vacuum cleaner with a full bag. The fan sucked poisonous dust and fumes from the factory, sending them into the neighborhood. Families left their windows open most of the year because they didn’t have air conditioners. Strong Gulf winds moved the dust around so much that residents said they could taste it. The poison blew off of trucks, open-top kettles, and piles of residue left outside, which neighborhood kids used like a community sandbox, according to former workers, locals and court records. Rainbow colored storm water frequently flooded unpaved streets, at times muddying dirt kitchen floors.

Now comes news from the Rio Grande Guardian that the factory building, once owned by the Helena Chemical Company will finally be dismantled by the Environmental Protection Agency “in early to mid-February.”

Unfortunately, it is never easy for the folks in Mission. Taking down the old warehouse has the potential to expose residents to more deadly chemicals stored in the soil, wood, and concrete in and around the old plant.

The EPA sent a fact sheet to residents detailing a plan for the dismantling of the airport-hangar-like monument to environmental degradation — a plan that, it says, will protect residents from dust and water laced with pesticides.

From the Guardian:

“Dismantling will proceed slowly and cautiously to minimize offsite migration of possibly harmful dust,” the Fact Sheet states. “The mixing plant will be dismantled in small, manageable sections, without the use of steel wrecking balls or implosion techniques.” The EPA says it will control any dust or air emissions that occur during dismantling and soil excavation by watering the ground, maintaining the windscreen and by washing vehicle tires before any dump trucks leave the site.

It’s still unclear exactly where all the contaminated refuse, building materials, and soil will end up.

Even with the building gone, the South Mission community’s ‘mass toxic tort’ lawsuit to provide some kind of relief for residents and former employees stricken with a wide variety of cancers, organ failures, and incidences of birth defects will continue.

We may be close to knowing the fate of the Christmas Mountains, a near-10,000-acre tract of sensitive wilderness in that fearsome, beautiful part of Texas just north of Big Bend National Park.

The School Land Board meets February 5 to consider whether or not to accept one of two active bids from private parties. The board has waited 90 days to allow a proposal to be put forward by the National Park Service to either buy the land or engineer some other way to take over the property — as many are urging.

For people who don’t want the land developed, or parceled, there is a strong desire to see the range folded into the National Park Service’s domain. Once it becomes a national park, the idea goes, either in conjunction with Big Bend, or on its own, it will have secured permanence — lasting boundaries, rules, and caretakers.

The fact is, most of the people that care think they can trust the National Park Service to keep the Christmas Mountains in as close to a pristine state as possible — as well as accessible.

The problem with that argument is that, because of the permanent encumbrances put on the land by its donor, the Conservation Fund, in private hands the land would also remain undeveloped — and according to Land Commissioner Jerry Patterson, at least one of his private bidders promises to allow public access and, perhaps more importantly, to facilitate access to a mountain range which all parties agree has no easy access.

Patterson says the tract is surrounded by private property on all sides except one southern edge, where it abuts Big Bend. He took two reporters to the site two weeks ago, he said, just to demonstrate how one would have to hike to get into the mountains from the national park. He said it took him, a Texas Monthly reporter, and a reporter for the Big Bend Gazette four-and-a-half hours to trek from Big Bend to the edge of the Christmas Mountains — and at that point, he said, the terrain is impassable.

“I’m looking for the best public access,” Patterson says.

The problem for Patterson — government watchdogs, environmentalists, and much of the press find it hard to believe that the land would be better maintained and preserved under private ownership than as a park. Apparently the Conservation Fund felt the same way. The organization stipulated in the deed that they must approve any transfer of the property to a private owner. Patterson has said he won’t abide by that provision because in his estimation it wouldn’t stand in a court of law, an assertion that has been met with strong disagreement.

One of Patterson’s most able critics is my colleague Forrest Wilder, who wrote first for the Observer about the proposed sale, and who has pointed out the weaknesses in Patterson’s argument that difficult access is a problem.

Wilder wrote: Anyone who has ever been to Big Bend, like any other park, will tell you that you can’t really understand the majesty of the place until you actually explore on foot. It’s called hiking. And the last thing anyone wants to see while hiking is some gun-slinging yahoo on a four-wheeler.

Wilder failed to convince Patterson, of course. I think Patterson really believes a private steward and allowing hunting would be better for the mountains. As far as I know he has not suggested allowing four-wheelers as yet — but guns? Hell yes.

He says it’s a mistake to assume this mountain range is a park waiting to be certified. And he says the lack of access matters.

“This perception is out there that this is public land or park land — and that’s just bogus,” Patterson told me. “The bottom line is this is not public land, but if it were public land, nobody could get there.”

He says one of his bidders has suggested he would buy adjacent property in Terlingua Estates, build a road up to the border of the tract, facilitate habitat for game therein, and allow public access — including hunting. And, by God, Patterson thinks that is the brightest future for the land. The problem is he has to convince another land board member to go along with him — depending, of course on what the National Park Service ultimately offers.

Patterson did say the board decided that there will be access from Big Bend into the Christmas Mountains. “No matter what happens, we’re going to implement a perpetual, irrevocable easement to allow access from Big Bend National Park,” he said. “This is never going to be a park, but it is a wilderness area.”

Patterson bristles when he is reminded that many feel he is making a point about guns at the expense of the public’s right to enjoy a pristine patch of Texas. But, he insists, this is not about public lands.

“You know what?” he says. “I am making a point about guns… If I thought it was about public lands, I wouldn’t be making a point on this one.”

At bottom, this one is about trusting a private landowner to provide access and preserve the land. Patterson says, regardless, the land will be protected. In a way, one’s position on the sale of the Christmas Mountains may come down to whether or not you trust Jerry Patterson.

It looks like Conservator Richard Nedelkoff is ready to name an executive director over at the Texas Youth Commission. The state’s juvenile justice department posted the job on its web site on Thursday, Jan. 24. Only GritsforBreakfast noted the posting, pointing to a Dallas Morning News editorial criticizing the agency’s diversion of funds for correctional officers to office renovation.

On Sunday, however, Austin civil rights watchdog Jim Harrington took issue with the job posting — noting that applications are only being taken for five business days and alleging that the commission had “buried” the posting on its site.

The job posting is not prominently displayed on the TYC site. You have to search the jobs alphabetically to find it. And the window from job posting to closing is, clearly, small. The job pays up to $160,000 per year and suggests applicants have the “ability to maintain high tolerance to mental stress.”

Nedelkoff was appointed in December by Gov. Rick Perry. He replaced former TYC Conservator Jay Kimbrough. The conservatorship was put in place by legislation passed in 2007 after Nate Blakeslee broke the story in the Observer of alleged abuse at the Pyote TYC facility — a story that moved a shocked Texas legislature into action. Blakeslee writes about three legislative staffers that shaped the reform legislation here.

“The posting is actually unnecessary,” said TYC spokesman Jim Hurley. He said the conservatorship statute directs Nedelkoff to hire an executive director, and he said Nedelkoff’s reputation has attracted the attention of professionals in the juvenile justice field. “Mr. Nedelkoff is a national figure. He knows national figures.”

Hurley said the fact that Nedelkoff will be hiring is and has been obvious. “It’s not like we haven’t been in the news,” he said.

Another point to consider, Hurley noted, is the fact that once the conservatorship ends, the executive director will be in charge, and needs to be in place. Until recently, Demetria Pope has been acting as executive director but doesn’t seem to be in the running for the permanent job.
“When the governor’s ready to move this thing out of conservatorship, the conservator goes away,” Hurley said.

Still, as Harrington says on the Texas Civil Rights Project web site, “When a job opening like this is only posted for 5 workdays — and not even prominently displayed, but buried deep in general employment listings — one smells duplicity and that a ‘fix is in’ for a particular candidate.”