The Texas Observer

Early on the last day of the legislative session, Rep. Lon Burnam (D-Fort Worth) filed a resolution honoring the two former parliamentarians Denise Davis and Christopher Griesel, who resigned on what Burnam calls the Friday Night Massacre of the House Rules.

During the many lulls of today’s floor activity (while the chair and the new parliamentarians figured out how to overrule nearly all the points of order of the day), members offered resolutions recognizing their staffers, interns, spouses, kids and even their neighbor’s staffers. Burnam asked the chair when his resolution would come up.

Perhaps it was some of the text of Burnam’s resolution that made the chair more inclined to ignore it.

WHEREAS, Denise Davis and Chris Griesel stood up to autocratic control of a democratic institution by resigning their posts as parliamentarians; and

WHEREAS, Ms. Davis and Mr. Griesel could have given in to dictatorial pressure but instead stood firm and did what they knew was right, even though it cost them their jobs; and

WHEREAS, democratic institutions depend on respect for rules and precedents, Ms. Davis and Mr. Griesel took a stand for democracy on May 25, 2007, otherwise known as the Friday Night Massacre of the House Rules; and

WHEREAS, by resigning to protest a decision that threatened the integrity of the House, Ms. Davis and Mr. Griesel showed great respect for the Rules of the House, the Constitution of the State of Texas, and the institution of the Texas House of Representatives…

Burnam settled for a resolution honoring their hard work sans those four paragraphs, knowing Craddick loyalists were otherwise poised to object to the resolution’s adoption. In politics, you go for what you want and settle for what you can get, Burnam said.

As a final demonstration of the absolute power of the chair, Craddick pronounced Sine Die, the end of the session, by thanking his two new parliamentarians.

Part of the budget - which is currently being debated on the House floor - allocates $1.6 million to research the Zebra Chip Disease afflicting Texas potatoes. The disease isn’t harmful to human health, but affects the taste of potato chips.

Rep. Yvonne Davis (D-Dallas) questioned Pampa Republican Rep. Warren Chisum’s priorities in funding potato crop research, while neglecting to finance an HIV prevention media campaign, for example.

In an April interview with the Observer, Chisum listed supporting the economy as an essential government role. He mentioned the zebra chip research specifically:

Most people don’t think much about- I mean, a sack of potato chips is a sack of potato chips. But that’s a business for somebody out there. Many thousands of farmers across the state depend on us putting whatever assets we have to in order to stop this zebra chip from going through our potato crops and destroying that industry in the state of Texas. So the government has a role to play there. It’s not just a handout to potato growers, it’s a role that the government should play: to coordinate an investigation to see how to stop that.

Contrary to what was reported last night, the so-called “Religious Viewpoints Antidiscrimination Act” was really only mostly dead, and as we all know, there’s a big difference between mostly dead and all dead. So today Rep. Craig Eiland (D-Galveston) moved to reconsider last night’s vote to take up HB 3678. With a couple of extra supporting votes today, the bill squeezed through the two-thirds rule and got a vote. When it came to voting on the actual bill (rather than suspending the necessary rules to take it up), the support mushroomed from 94 to 108 votes. Members not wanting to be accused of voting against God, perhaps?

This time, the bill’s author Rep. Charlie Howard (R-Sugar Land) moved to concur with the Senate amendments, saying there was no time for a conference committee to work out the differences. It’s no secret that Howard liked the Senate version better, since it doesn’t have the amendment Rep. Yvonne Davis (D-Dallas) added on the House floor. The provision would have ensured that no student could use religious speech to discriminate on the basis of race, sex, religion or sexual orientation. Howard has made it clear that he thinks the amendment would make the bill unconstitutional.

Rep. Scott Hochberg (D-Houston) pointed out another change in the Senate version of the bill - more “may” turned “shall” language that would now require schools to allow students to speak at football games and morning announcements. The bill previously left the public forums to the school’s discretion.

Rep. Wayne Christian (R-Center) again said that not allowing for discrimination on the basis of sexual orientation would be discriminatory against the majority religion - Christianity.

The bill’s supporters referenced more affronts to children’s religious freedom at school - no candy canes or green and red napkins at Christmastime. Hochberg referenced the enforcement provision added by the bill’s authors - lawyers who profit from lawsuits - that would have made it easier for schools to get sued on this issue. “They saw a lot of opportunities for lawsuits,” Hochberg said. The provision was removed by the Senate sponsor and so isn’t in the final version, but speaks to the authors’ true intent. A student’s right to express religion, after all, is already protected by the First Amendment.

Rep. Lon Burnam (D-Fort Worth) said he would officially start a fundraiser for the ACLU - because this bill’s going to court.

Though the Innocence Commission died several times this session, things are looking up for the wrongly convicted. The Texas Forensic Science Commission, created in 2005 to investigate crime labs, was slow to start, with no budget and the governor and lieutenant governor dragging their feet in appointing the commissioners. After two years, it appears the commission will finally get the money it needs to ferret out wrongdoing or improper procedures in crime labs, which have been implicated in wrongful convictions.

The budget includes $500,000 over the next two years for the commission under the auspices of Sam Houston State University. Commissioner Samuel Bassett previously told the Observer that $500,000 would be sufficient for the commission to conduct its own investigations. Legislation that would have put the commission under DPS died in committee, keeping the body independent and free of conflicts of interest.

During the near meltdown of the House tonight, a very bad bill that previously had wide support managed to die. Because it was after midnight by the time the House got to HB 3678 by Rep. Charlie Howard (R-Sugar Land), a two-thirds vote was necessary to suspend the rules to take up the bill. The 93-50 vote to consider the bill wasn’t enough.

The only difference between the House and Senate versions of the bill was that the Senate had stripped an amendment added on the House floor by Rep. Yvonne Davis (D-Dallas). The amendment had ensured that the “limited public forums” required by the bill would not be used to discriminate on the basis of sex, race, religion or sexual orientation. Howard had opposed the amendment, and all other amendments, on the House floor, saying that it would open the door to litigation on the bill.

In moving to suspend the necessary rules to consider HB 3678 tonight, Howard said he would move not to accept the Senate changes, and to have a conference committee work out the differences. Davis asked whether Howard intended to put her amendment back in. Howard responded that he would work toward a bill that passed constitutional muster.

Rep. Scott Hochberg (D-Houston) spoke against the bill, saying that Howard’s idea of constitutional muster did not include the Davis amendment, though the House clearly voted in favor of the amendment on April 25, with a vote of 86-48.

The 93-50 vote in favor of the bill would have been enough to send it to conference committee, had the bill been considered when it was eligible before midnight. The speaker’s three-hour absence, the series of parliamentary inquiries and a general sense of turmoil in the House meant the death of this legislation. Don’t worry. Kids still have their First Amendment rights. Now they won’t be forced to listen to evangelizing during morning announcements.

Rep. Warren Chisum’s Bible class bill passed the Senate today with just two dissenting votes, and without any of the changes advocated by the religious right. The bill’s sponsor, Sen. Craig Estes, had offered a floor amendment, but retracted it in the name of time, facing a lengthy debate with Sen. Juan “Chuy” Hinojosa.

The amendment would have raised the number of students required for a school to offer an elective Bible class from 15 to 20, at the request of Texas Education Agency, Estes said. Oh and by the way, Estes added that it would have eliminated an inconsistency in the House version of the bill, which says schools “may” offer the course, then adds the course to a list of electives the schools “shall” offer. Estes’ amendment would have simply smoothed out that wrinkle by changing the first “may” to “shall” — in effect, requiring school districts to offer the course if enough students were interested.

Rep. Scott Hochberg – who amended Chisum’s bill in committee to make it more moderate – says there isn’t actually any conflict in the way the bill is written. Hochberg says the list of elective courses has been interpreted as what he calls a “restaurant menu” districts can choose from, not a list of strictly required courses. Because the bill says “school districts may” offer the Bible course, the intent of the law is clear, Hochberg says.

On the Senate floor, Hinojosa said he was uncomfortable with the mandatory nature and the Bible language of the legislation. “The bill singles out one religion over another,” he said. Later he said, “You’re not stating correctly what you’re doing here.”

Estes responded, “This bill has been carefully crafted to not be a religious bill. It’s an academic bill.”

Despite Christian right efforts, the Senate did not remove the safeguards added to the bill by the House Public Education committee, such as teacher training, a textbook other than the Bible, and attorney general-approved curriculum standards.

The euphemistically titled “Religious Viewpoints Antidiscrimination Act” is expected to be up on the Senate floor Wednesday – the deadline for House bills to pass the Senate. Sugar Land Republican Rep. Charlie Howard’s HB 3678 already exposed some hypocrisy on the House floor in April when some members, facing a long and possibly revealing debate on the bill, tried to curb the discussion – in other words, limit free speech on a so-called free speech bill.

The bill’s trip through the Senate Education committee last week added new layers of irony to the legislation.

Howard’s argument against all amendments offered on the House floor was that the bill was so carefully constructed by constitutional experts that any addition would open the legislation up to lawsuits. Though Howard cried unconstitutional on the House floor in the face of any proposed change to the bill, that didn’t stop supporters from changing the bill in the Senate.

The first Senate committee substitute boasted a new enforcement provision that would have allowed students suing schools for violating this law to recover attorney fees and other damages. A second clause would have given the attorney general the authority to enforce the law.

The clauses are interesting, to say the least, given Howard’s main argument for the bill – that it will prevent schools from going through costly lawsuits at the taxpayer’s expense. Even the bill’s Senate sponsor, Sen. Tommy Williams (R-The Woodlands), was uncomfortable with the enforcement language and removed it from the bill.

“Quite honestly I didn’t catch this provision,” Williams said in the May 17 Senate Education committee hearing, when committee members pointed out that the language may open the door to abusive lawsuits against schools.

“I’m reluctant to create a new cause of action,” Williams said in an interview. He said the language was written by Kelly Coghlan, chief counsel at Coghlan and Associates law firm. Coghlan is one of the bill’s main writers, along with Kelly Shackelford, president of the Free Market Foundation and chief counsel at Liberty Legal Institute. Both Coghlan and Shackelford have worked on lawsuits against schools for limiting students’ religious expression. Hmmm.

Shackelford also said in an interview that Coghlan had written the enforcement element of the bill, and that both had supported it.

“I don’t think [the enforcement provision] would increase litigation,” Shackelford said. “By allowing enforcement, the districts would train teachers. They would say, ‘Let’s make sure we understand this,’ and there would be less lawsuits.”

When the Observer asked Coghlan who had written the provision, he repeatedly said, “It’s irrelevant who wrote that,” because the language had been stripped. He then abruptly hung up the phone.

During the May 17 hearing, when Sen. Florence Shapiro asked a question about the bill, Shackelford pointed to Coghlan and said, “He could speak to that. He wrote the bill.”

Perhaps Coghlan’s reticence to talk about who authored the bill stems from a recognition that it might appear unseemly to some that lawyers who make money by suing school districts wrote complicated legislation that could leave Texas schools vulnerable to more lawsuits. We’ll never know, since he doesn’t want to talk about it.