The Texas Observer

Texas senators Kay Bailey Hutchison and John Cornyn successfully tacked an amendment onto the transportation and housing funding bill Wednesday. The senators, both Republicans, say the amendment would place a one-year moratorium on tolling current federal highways in Texas.

It must survive a reconciliation with the house version and a threatened veto by President Bush, but the bill passed the senate 88-7. So, there’s a chance that anti-toll activists might win one for change. There’s also a chance that this bill might be the first successful override of President Bush’s scarcely-used veto.

But what does the amendment say? I read it and I’m not so sure. It seems to allow exactly what it promises to prohibit, and it is written in the deliberately confusing, dependent-clause-rich prose of lawmaking. But, hey, we’ll have to trust our senators on this one.

The move comes in the wake of a mini-scandal over the Texas Department of Transportation hiring its own federal lobbyists to push legislation enabling the Trans-Texas Corridor — along with lobbying to allow tolling existing interstates.

Hutchison says she is firmly against tolling interstates, and she has filed legislation that would prohibit it. Cornyn is certainly interested in the anti-toll vote, but his office seemed a little late in trumpeting his involvement in the amendment (so Hutchison had the lead to herself).

Perhaps Cornyn is hesitant to embrace the anti-toll constituency because of its distrust of government and its dislike of the current GOP leadership in Texas, which seems bent on privatizing public roads willy-nilly. Or maybe it’s because the big money in GOP politics in Texas favors toll roads (and the TTC). A cursory search of the Federal Election Commission website found contributions for Cornyn in the last year of more than $10,000 from Williams Brothers Construction, $7,000 from Dannebaum Engineering, and $15,000 from people associated with Zachry Construction. We are sure that’s just a drop in the bucket.

Looks like the Texas Department of Transportation has its own agenda in Washington, D.C. Last week, several Texas newspapers reported that TXDOT is lobbying Congress to convert your favorite freeway into a tollway. Texas Legislators are aghast at the department’s plan, euphemistically called ‘Forward Momentum’ — that would change federal law to allow the use of equity capital to toll such oft-used roadways as existing interstates.

Rick Perry’s spokesman Robert Black says it’s all okay, since free highways cannot be converted to tollways without the approval of local voters. But it’s hard to nail down what is crazier here. I mean, is it easier to imagine tolls on I-35 or a state agency with its own paid federal lobbyists trying to circumvent the stated goals of almost every lawmaker in Texas?

To make matters worse, in February members of the Texas Senate specifically chided TXDOT for this kind of behavior. You can watch video of it here (the relevant part of the February 5 Senate Finance meeting starts 1:59:00). But, in case watching Senate hearings is not your thing, let me just summarize.

The executive director of TXDOT and a commissioner from the Texas Transportation Commission were asked by senators about $1 million spent on lobbying contracts for an outfit called the Rodman Company. Senator Royce West (D-Dallas) managed to confirm that upwards of $500,000 was being spent by the agency to lobby D.C. on efforts relating to the Trans-Texas Corridor. Despite the fact that TTC has been sold to voters as a project that would require zero taxpayer dollars, TXDOT had apparently been paying private lobbyists to pave the way for federal legislation that would allow the department to move forward on all things TTC. Needless to say, the senators were not pleased.

In the dry language of the Senate Research Center summary:

Senator Shapiro, Senator Ogden, and Senator Whitmire questioned whether these efforts were necessary or effective and stated that the issue should be pursued through Texas’ Congressional delegation rather than private lobbyists. Senator Eltife stated that the expenditure was “wasteful, unnecessary, and disgraceful.”

State Rep. Wayne Smith, a Baytown Republican, said this afternoon that a House and Senate conference committee has come to an agreement on a complex transportation bill, SB 792, that will slow down TxDot’s rush to turn highways into tollways and put a two-year moratorium on certain road projects.

The House and Senate must both approve the measure and then the bill goes to Gov. Rick Perry. Ricky said a couple of days ago that he would sign the bill, despite the fact that he’s unhappy with certain portions of the measure, including provisions that deal with right-of-way issues.

The bill does have a section requiring TxDot to provide right-of-way to local toll entities. Those entities, in turn, will then be required to reimburse TxDot for the actual costs.

Rep. Smith said he hoped the governor will sign the bill “with great dispatch.” Otherwise, he added, there will be movement in the Legislature to override HB 1892, an earlier bill that Perry vetoed, which contains much of the language in the current bill.

That would undoubtedly lead to a special session, which no one in the House or Senate seems to want. But if nothing gets done during this session, legislators know they’ll be the first to feel voter wrath.

(It’s instructive at this point to remember state Sen. Steve Ogden’s lament early in the session when he told TxDot officials that there wasn’t one legislator who hadn’t experienced voter backlash as a result of the department’s headlong rush to turn over the state’s infrastructure to multinational corporations.)

Smith said he and fellow legislators were acutely aware of voters’ concerns and tried to address them. “This is probably the first bill that the Legislature has ever done which has said to a state agency, ‘We see what you’re doing and we want to be part of the direction in which you’re going.’”

Smith emphasized the bill is just a first step in an ongoing evaluation of how roads are financed and built. Under the measure, a nine-member committee will continue to study and monitor the issue during the two-year period when the Legislature is not in session.

Smith said Amendment 13, an item sponsored by state Rep. Lois Kolkhorst, is no longer in the bill. Amendment 13 would have specifically included facility agreements in the moratorium. These agreements are basically sub-agreements to comprehensive development agreements. CDAs are the over-arching contracts that lay out the terms for how the toll roads are financed and constructed.

Numerous grassroots groups have said the Kolkhorst’s amendment was essential because it closed a loophole that would have allowed the Trans Texas Corridor to proceed.

But Smith and Rep. Larry Phillips emphasized that portions of the TTC that are not already under construction or in the planning phase are definitely part of the moratorium.

(TxDot has not officially stated what roads will be part of the TTC-35, but it’s clear that State Highway 130, as well as a loop road planned in the Dallas-Fort Worth area will be part of the mega-project.)

Disagreements over how roads are built in El Paso were also sticking points in the negotiations. Joe Pickett, a state representative from El Paso, tacked on a handful of amendments that reportedly displeased his counterpart in the Senate, Eliot Shapleigh.

Pickett, for example, wanted to put all road projects in excess of $200 million to voters. But Shapleigh, who is gung-ho over toll roads, didn’t like that amendment at all.

We’re hearing conflicting rumors at the Legislature about SB 792, the toll-road measure that’s supposed to provide some oversight over private development deals with multinational corporations, such as Cintra Concesiones.

A source in the House told us this morning that Governor Ricky has succeeded in getting an amendment by state Rep. Lois Kolkhorst stripped from the bill. Amendment 13, as you will recall, would close a loophole that would allow the Trans-Texas Corridor to proceed.

But that doesn’t mean the hated network of super-corridors will actually be allowed to go forward. John Carona, the Dallas Republican who chairs the Senate Transportation and Homeland Security Committee and has played a major role in drafting the toll-road legislation, said he’s confident that language in the bill will make it clear that TTC cannot proceed while the two-year moratorium is in effect.

“The negotiations are still going on,” said Carona. “I remain optimistic that we will reach an agreement in the next 24 hours.”

Carona said that he saw no support for a movement to override Ricky’s veto of HB 1892, which is very similar to the measure that’s still in play. Any over-ride effort, Carona cautioned, would almost certainly lead to a special session and no one wants that.

When all’s said and done, the bill’s so loaded with “carve-outs,” or road projects that are exempt from the two-year moratorium, that it seems like a shell. But a few good provisions remain. The non-compete clauses have been scaled back, the contract lengths curtailed to 50 years or less, and buy-back provisions have been added that will protect the state from paying gazillions for roads.

In the process, TxDot and its imperious chairman, Ric Williamson, have been badly mauled. Hopefully the department and its high-level operatives have learned some humility and will go out of their way to be more cooperative with the public and with local officials. And the bill itself cedes a lot of authority to local governments to decide what roads will be built.

That said, the Lege did nothing to solve the underlying problem, which is traffic congestion. So it might be worthwhile to think about that the next time you’re sitting in your car, alone, in traffic.

Sources tell us this evening that Tricky Ricky is displeased with an amendment put up by state Rep. Lois Kolkhorst, which closed a loophole in SB 792, the transportation legislation designed to temporarily halt the rush to privatize the state’s roads.

The loophole was big enough to drive, well, the the Trans-Texas Corridor through. And, of course, that’s exactly what Tricky Ricky wanted.

For five years, Ricky has been pushing his futuristic plan to pave the state with super-highways the width of several football fields. The corridors will eat up hundreds of thousands of acres of prime farmland and facilitate global trade, but they won’t reduce congestion at all, records and testimony show.

SB 792, which has passed the House and Senate, is now supposedly going to a conference committee made up of House and Senate members. The bill sponsor, State Rep. Wayne Smith, a Baytown Republican, said tonight that the conferees have been trying to come to agreement on the nearly two dozen amendments tacked on by various legislators. He declined to say what amendments, if any, are causing problems.

The loophole that Lois Kolkhorst fixed was spotted by the grassroots organization, Corridor Watch, and dealt with something called a facility agreement, which is a sub-agreement to a comprehensive development agreement.

The eager beavers over at TxDot have already entered into a comprehensive development agreement with Cintra to develop the Trans-Texas Corridor, but the legislation didn’t specificially address these facility agreements. Watchdogs fear that without the amendment, TxDot would continue full steam ahead on the TTC.

Ricky’s been threatening to hold a special session. And that might not be a bad idea, given that billions of dollars are at stake and these toll roads will affect commuters for the next 50 years.

If legislators don’t deal honestly with this hot-button issue now, they may find themselves on the griddle during the next election cycle. Various citizens’ groups are promising a jihad if the legislators don’t reign in these private toll-road deals. “We’re not going to walk away. We’re going to keep the grassroots fire burning,” says Terri Hall of the San Antonio Toll Party.

With only a couple of weeks left in the session, lawmakers are rushing to put through legislation that eventually could cost taxpayers billions of dollars. One bill that passed the House and is pending in the Senate Transportation and Homeland Security committee is a very brief piece of legislation, HB 3747, that would allow TxDot to use money from the general fund for the Texas Rail Relocation and Improvement Fund.

The rail relocation effort is part of TxDot’s grand scheme to build the Trans-Texas Corridor, which is actually a network of super-highways that will have lanes for cars, trucks, trains, pipelines, and other infrastructure. The Legislature has not yet capitalized the rail relocation fund, which was approved by voters in 2005.

The current House appropriations bill contains a one-time payment of $150 million to TxDot, which will allow the agency to begin laying the groundwork for public-private partnerships with railroad companies and other corporations. But that’s just the beginning of what could be a flood of money from state coffers.

TxDot has identified $17.4 billion in needed rail projects across Texas. Even industry insiders have described some of these rail projects as “pure pork,” which will require huge amounts of debt and taxpayer-funded subsidies. In its analysis, the House Research Organization quoted opponents as saying,”At a time when the Legislature has expressed concerns about TxDot’s decisions and funding priorities, especially those involving participation in partnerships with private enterprise, it would be unwise to allow TxDot to create its own rules for spending money and deeming eligibility of projects. The state should not spend public dollars on projects that benefit private companies, and this bill would provide no safeguard against that possibility.”

Mike Krusee, the chairman of the House Transportation Committee, said this afternoon that talks aimed at developing a compromise between the Governor’s Office and the Legislature over the toll-road legislation are going well.

“We’re making progress,” said Krusee, who two years ago brokered the massive toll-road bill that slipped through the Legislature without much notice. Krusee declined to provide any details on the negotiations. “We’re just trying to find common ground.”

The House and Senate have approved by a veto-proof margin HB 1892, which would put a two-year moratorium on toll roads governed by contracts called comprehensive development agreements. Several toll projects in Dallas have been exempted from the moratorium, as has all of El Paso county.

The bill, which Gov. Perry has until midnight on Thursday to veto, would do much more than just temporarily halt toll-road construction. It would also reduce the length of the contracts with private developers, enumerate buy-back provisions, rein in the non-compete clauses, and return control of road-building to local governments, such as counties and municipalities.

Perry doesn’t like the bill and has threatened to call a special session to resolve the issue. “The measure kills jobs, fractures the state’s transportation system, puts Texas at risk for losing federal money and, quite frankly, creates an environment that’s ripe for political corruption. You’re going to have county officials who are able to take donations from individuals who want to build roads rather than work through the state contractual system,” said Krista Moody, deputy press secretary.

(That comment is a little hard to take with a straight face, especially given the fact that Austin lobbyist Dan Shelley once worked for both Perry and Cintra, the Spanish firm that’s on the fast track to getting billions frm TxDot.)

Sources say that Tricky Ricky, as the folks back home in Haskell County call him, would like to avoid a potentially embarrassing show-down with the Lege by signing SB 1267, a no-frills moratorium bill introduced by Sen. Robert Nichols that has been bottled up in committee.

Nichols is not particularly enamored of that idea. “I think the governor’s got a good bill sitting on his desk.”