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

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

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

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

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

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

Anchia, at least, seemed engaged.

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

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

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

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

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

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

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

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

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

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

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

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

State Rep Phil King
State Rep. Phil King (R-Weatherford)

The Legislature took another step closer to emasculating the Public Integrity Unit and devolving its responsibilities to the Texas Rangers and local district attorneys this week. On Tuesday, House Bill 1690, authored by state Rep. Phil King (R-Weatherford), passed the lower chamber 95 to 49, on a nearly party-line vote.

similar Senate bill has already passed, making it likely that legislation will reach Gov. Greg Abbott’s desk. It’s the latest installment in a long effort by Republicans to weaken the PIU, which operates out of the district attorney’s office in deep-blue Travis County.

Until Gov. Rick Perry defunded the PIU in 2013, precipitating both this debate and his own indictment at the hands of a special prosecutor, the way to go after members of state government accused of ethical violations was imperfect, but pretty simple. If a servant of the people was up to something shady, you could take it up with the PIU. They could investigate, and sometimes prosecute.

The PIU is perhaps best-known for the Tom DeLay case, which garnered a tremendous amount of ire from Texas Republicans. But most cases of corruption are not especially partisan in nature. For example, when officials in charge of the Cancer Prevention Research Institute of Texas (CPRIT) got caught improperly awarding grants, it was the PIU that took the lead, and secured the only conviction to come out of the fiasco.

But now the House and Senate are set to gut the PIU, and substitute a procedure of their own design. The plan legislators are generating is no less imperfect, but it has the additional vice of being a great deal more complicated. King’s bill and its Senate counterpart create a number of variegated pathways for the prosecution of state officials—allowing some state officials to be tried in their home counties, and shunting responsibility for investigating ethical lapses to the Texas Rangers, a law enforcement agency overseen by appointees of the governor.

The complication is part of the design, King told the House in a floor debate on Monday. In the Public Integrity Unit, King said, “we’ve concentrated too much power in one person.” To fix that, “you diffuse that power to as many people as possible.”

But sharing responsibility for prosecutions among several different counter-parties means that there’s also more opportunity to kill or bury a case. For one example of how that might work, Ken Paxton’s admitted violations of state securities law—a potential felony charge—were almost buried by his hometown prosecutor, Collin County DA Greg Willis. A close friend and former business partner of Paxton’s, Willis was apparently ready to sit on Paxton’s case file until the statute of limitations expired this summer, at least until a local grand jury asked for the case file the PIU sent Willis.

King’s plan is better in this regard than the plan adopted by the Senate. King adopted an amendment by state Rep. Chris Turner (D-Ft. Worth) that attempts to force DAs with prior relationships to recuse themselves from ethics cases, and a number of other amendments from Democrats that sought to defend against conflict of interest. The Senate’s plan doesn’t do any of that. But the House version still effectively creates a special new class of defendants, which includes legislators. For them, the law applies differently than it would anyone else.

State officials who break the law have, in the past, been charged in the county where they committed a crime, or in Travis County, which contains the seat of state government. In the future, a first-term governor or state official who breaks the law could find himself charged (or not) by a prosecutor in the county where they last filed to run for office. (After they’ve served one term, they’d presumably live in Travis County and so be tried there—though state Sen. Donna Campbell has proposed a constitutional amendment to allow some state officeholders to live wherever they want.)

Imagine, for the sake of argument, Agriculture Commissioner Rick Perry taking a big, fat bribe in 1992 and being charged by a high-powered legal team in… Haskell County, population ~6,000. It doesn’t seem optimal.

And though ethics cases could hypothetically could be ignored or weakly prosecuted by political allies of legislators and state officials, the opposite could be true, too, as some Democrats pointed out in Monday’s debate. They could also be over-prosecuted by a hometown DA who is a political rival of a legislator. What happens if the Texas Rangers drop a weak criminal case in the lap of a DA whose friend is about to challenge the defendant in a primary or general election?

These questions might never come up. The DAs might prove themselves faultlessly scrupulous defenders of the public interest. But in designing a system to hold elected officials accountable, it makes sense to consider the extreme cases and structural weaknesses that could manifest themselves over time: In rushing to replace the PIU, legislators don’t appear to have given these questions a lot of thought.

When a defendant or plaintiff moves a case to get a friendlier judge or jury hearing it, it’s derisively referred to as “venue shopping.” Right now, a whole system of government is engaging in pre-preemptive venue shopping, and it’s more or less bidness as usual.

What do you call it when the Texas Legislature scraps a decades-old system that aimed to keep crooked pols accountable with a minimum of conflict of interest and replaces it with one that seems to be have been done-up on a dry erase board about an hour beforehand?

Monday.

Mary Gonzalez
Rep. Mary Gonzalez (D-El Paso)

It’s illegal in Texas to have sexual contact with a person under 17.

However, if two consenting teens are within three years of age and of the opposite sex, state law provides an “out” for the older party—an affirmative defense to the charge of indecency with a child, otherwise a second-degree felony.

The same affirmative defense is not offered to teens of the same sex, meaning LGBT youth can face prison time for consensual sexual contact, including heavy petting.

It’s unclear whether an LGBT teen has ever been charged under the statute, but House Bill 71, by Rep. Mary Gonzalez (D-El Paso), aims to prevent it from happening in the future. The bill would remove five words—”and of the opposite sex”—from the affirmative defense provision.

“We are trying to make sure all teenagers are treated equally,” Gonzalez told the House Committee on Criminal Jurisprudence during a Monday hearing on HB 71. “This is about policy and not politics, and I know sometimes in this state we struggle to be supportive of LGBT issues, but this isn’t about LGBT issues. This legislation cleans up inconsistencies in statutes that impact teens in some very devastating ways.”

Will Francis, government relations director for the National Association of Social Workers, testified in support of the bill. Francis said currently, a social worker who learns of an intimate same-sex relationship between teens could be required to report it to authorities.

“We believe that’s a discussion that should happen between parents and their children,” Francis said.

Rep. Joe Moody (D-El Paso), a committee member and co-author of HB 71, said he believes if a teen were charged under the current statute, it would be struck down as unconstitutional.

“Why don’t we just save ourselves the trouble? Let’s fix it,” Moody said. “This isn’t a a political deal. This is just a fairness and policy issue.”

The bill cleared the same committee two years ago but never made it to the House floor. Sen. John Whitmire (D-Houston) has introduced a companion this year in the Senate.

Dan Patrick
Lt. Gov. Dan Patrick

Lt. Gov. Dan Patrick has championed school voucher legislation since he entered the Senate in 2007, comparing the effort to the civil rights struggle. After numerous defeats during past sessions, Patrick’s voucher crusade came a step closer to reality Monday as the Senate passed Senate Bill 4, by Sen. Larry Taylor (R-Friendswood).

The bill passed 18-12 on mostly partisan lines. Only one Democrat voted for the bill, Sen. Eddie Lucio (R-Brownsville), while two Republicans voted against it, Sen. Konni Burton (R-Colleyville) and Sen. Robert Nichols (R-Jacksonville).

Taylor’s bill would create scholarships for mostly low-income students to attend private and religious schools. Under the measure, private businesses would receive a tax credit for funding the scholarships. The bill is similar to one proposed by Patrick in 2013, which died in committee.

“This is not a voucher bill,” Taylor said during the debate.

Critics of the proposal, though, say tax credit scholarships are simply vouchers by a different name. Sen. Jose Rodriguez (D-El Paso) and Sen. Jose Menendez (D-San Antonio) voiced concerns that tax credit scholarships would funnel money from public schools to private and religious schools, which are not required to administer state tests or meet state accountability standards.

Rodriguez offered an amendment that would hold voucher-funded private schools to the same accountability standards as public schools. Menendez offered another measure that would prohibit private schools from discriminating on the basis of race or sexual orientation. Both amendments were defeated.

Taylor and Patrick have framed the voucher debate in terms of giving low-income children a chance to escape failing public schools. School choice, they say, will lead to competition between schools and better educational quality across the board.

“If you are the working poor, and you’re in the inner city, and you take a bus to work, you can’t live in the suburbs, and you don’t have money for private school, why are you denied an opportunity for your child?” Patrick said in a January Texas Tribune interview.

Rev. Charles Johnson, director of Pastors for Texas Children, a public school advocacy group, said the push for vouchers is more a fight for money than improving educational opportunity for poor students.

“If this were about kids, we’d target those 70 or 80 struggling schools out of 8,500 public schools and we would give them the resources they need to succeed,” he said. “The Legislature consistently refuses to do that.”

Despite making progress in the Senate, critics say vouchers will face an uphill battle in the House.

During the House budget debate three weeks ago, Rep. Abel Herrero (D-Corpus Christi) withdrew an amendment that would have banned spending public money on private school vouchers. Herrero said the measure was unnecessary because vouchers would not pass in the House.

“For all intents and purposes vouchers are dead in the House,” Herrero said.

Patrick proved Monday he could guide vouchers through the Senate. It remains to be seen if the House can do what has proved impossible for decades: Get a voucher bill to the governor’s desk.

U.S. Rep. John Culberson in Appropriations Committee
U.S. Rep. John Culberson (R-Houston)

In 2009, Congress passed a statutory quota requiring Immigration and Customs Enforcement to keep 34,000 immigrants in jail on a daily basis. But immigration patterns are cyclical, and apprehensions—with the exception of an influx of Central Americans in the Rio Grande Valley—are at a 40-year low. Nevertheless, congressmen like John Culberson (R-Houston) want ICE to keep the detention facilities at capacity at all times. Apparently, Culberson wants immigrants locked up even if there’s no legal reason to do so.

Culberson got into a heated debate last week with Sarah Saldaña, the new director of ICE, during an appropriations hearing, over locking up more immigrants in the country’s growing patchwork of private for-profit prisons.  Culberson sits on the subcommittee that oversees funding for ICE and Saldaña to her credit pushed back.

In Congress, Geo Group, Corrections Corporation of America and other private prison companies spend millions on lobbying. Much of that lobbying is focused on powerful members of the appropriations committee like Culberson, who received campaign contributions from CCA, which runs detention facilities including Dilley’s controversial South Texas Residential Center, which detains women and children.

A new study by the nonprofit Grassroots Leadership finds that the private prison industry has increased its share of immigrant detention beds by 13 percent since the 2009 quota was passed. For-profit corporations now operate sixty-two percent of ICE immigration detention beds.

At one point during the U.S. House Appropriations Committee hearing last week, Saldaña tries to explain to the tea-partier Culberson that she can’t put people in detention “just for the heck of it.”

 

Culberson: What is ambiguous?—I don’t see that it’s ambiguous—the requirement that you use not less than 34,000 detention beds. That’s statutory in the Homeland Security bill.

Saldaña: Yes, I have it right here—it says, “provided further that funding made available under this heading…”

Culberson: Is there anything about that that’s discretionary or optional?

Saldaña: No, we have maintained that capacity.

Culberson: Right, But you’re not using it. Right now you’re at about 26,000.

Saldaña: Well, that’s dictated sir by the flow of immigrants. As you know Customs and Border—

Culberson: There’s no shortage of folks coming over the border illegally.

Saldaña: Right, and we need to apprehend them and find them. But as you know at the border, apprehensions are down—the first line of defense is CBP—is down about 24 percent. So that’s going to obviously affect—since we get 60 percent of beds—or apprehensions—from CBP, that’s going to affect that. Plus, it’s seasonal. This is a seasonal flow and we’re just getting to the warmer months where the migration patterns in the past have shown us there might be an increase in migration.

Culberson: So is it optional for you to use those 34,000 beds in your opinion?

Saldaña: Optional? It’s not optional to have them available.

Culberson: But it’s optional whether or not you use them?

Saldaña: It’s not optional, sir. We have those and we will use those to the extent that we make decisions that someone needs to be detained. If you’re asking me whether it is more important to fill a bed than it is to do it right, then I’m going to have to go with doing it right. And that is make our decisions on the basis of—just like the federal courts do—

Culberson: But if it’s not clear I mean, whereas, policy makers and statute drafters wrote this so it is not ambiguous, it’s not discretionary, it’s not optional. We want you to use 34,000 beds.

Saldaña: That’s absolutely clear to me.

Culberson: You’ve got plenty of demand. You’ve got plenty of demand—

Saldaña: But sir, we don’t detain people just for the heck of it.

Culberson: I know that, but—

Saldaña: We detain people based on what the law tells us, and that is: Is this person a flight risk? And is this person a threat to public safety? Those are the decisions that our very seasoned officers are out there making every day. And from what I have seen and observed, they are making the right decisions.

Culberson: I feel very confident you could find an extra 9,000 criminal aliens that needed to be detained to fill those beds in a heartbeat.

Saldaña: We’re working on that. That’s part of what Operation Cross Check was.

Culberson: But you feel like this is not a requirement to use the beds. So perhaps the language might need a little tweaking.

Saldaña: That’s not what I intended, I said it is capacity in my view—

Culberson: Well the president thinks statutes are optional and subject to his discretion. He’s obligated by the constitution to take care the laws are faithfully executed. He’s clearly in violation of that. You’ve told us that you don’t think this policy the president has issued is contrary to the law. We as policy makers and legislators are here—the law enacted by Congress that the president and agencies are to follow. Not a policy directive or memorandum sent out by the head of an agency. It is the law enacted by Congress that you and the president are obligated to follow. And there’s just a fundamental disagreement here. I think it’s at the root of what’s outraged the country, quite frankly, from coast to coast. The president systematically and repeatedly refuses to enforce the law as written and you just confirmed that for us today. It’s upsetting and concerning because we in Texas feel the brunt of this with the number of criminal aliens crossing border, drug runners, killers, sex traffickers. It’s appalling and outrageous and no one is more concerned about it than the communities—for example our good friend U.S. Rep. Cuellar represents along the Rio Grande river. Laredo is a ghost town as you know; it’s a terrible situation. We expect you to follow the law as written and when something says “shall. “Shall” is not optional.

Saldaña: I didn’t say that, sir. I really said—

Culberson: But you don’t feel like you need to use them.

Saldaña: No, sir. We are working to use them. Every day people are out there trying to find—particularly with respect to people with criminal records and those who meet our priorities. We are trying to find those folks if CBP doesn’t hand them to us. To me the important thing is to make the right decisions as required by law as to whether we can detain someone or not. It’s not the sole purpose and goal to fill a bed; it’s to fill it in the right way. That’s my view.

A House Divided

A generation after Texas legalized home schooling, a new crop of leaders fights for the booming education movement's future.
home schooling
Patrick Michels
Amy Ott, left, and Jill McKeever supervise Fallon Stanislawski during a computer lesson at the Austin Area Home-schoolers Friday Co-op.

 

Until late September, James and Lisa Pennington lived with all nine of their children, ages 6 to 24, in a charming country house outside Kerrville. James ran an accounting practice in town and managed the books for religious and home-school organizations. Lisa handled the children’s education and decorated the house in a modern homespun fashion, with reclaimed wood and glass, freshly painted antiques and inspirational messages—“relax,” “laugh,” “discover & explore”—scattered around the walls. Her blog, “The Pennington Point,” turned a godly, pastel-tinted lens on the lovable chaos of their life. When the chickens started pooping on the Penningtons’ new front deck, Lisa wrote about covering the wood with a new rug, which she then hand-painted with a tiny houndstooth pattern. In a how-to post, she demonstrated how to stencil a wall with quotes from Chapter One of the Book of James. She and her daughters dressed with stylish modesty: high necklines, long skirts, and many-layered sleeves that projected a coffee-shop artsiness. It was the sort of home and family that could inspire other Christian families, which was partially the point; from their home, the Penningtons ran a ministry dedicated to fostering what they called “home-oriented relationships.” Lisa once explained their approach: “It is a little like the desert island challenge. If you were stranded on a desert island with nothing but the Bible as your guide, how different would your life look?” Five years ago, the Texas Home School Coalition named Jim and Lisa “Leaders of the Year.”

Unlike many home-schooling families, their practice is quite public. James once ran as a Constitution Party candidate for state comptroller. Lisa speaks at home-school conferences around the country, giving advice on parenting, education and blogging. Her posts often veer into the personal, covering weight loss and health, and the right way to spank a child—in a since-deleted post, she describes a 30-minute bout with “a little back scratcher that barely stings, but it’s great for babies”—and the relief she finds in the Young Living brand of essential oils she endorses on her site. So last fall, Lisa began writing frankly about her recent pain and struggle, how the family was still reeling from what happened on Sept. 24, when her 18-year-old daughter Alecia Faith ran away from home.

“She gave us no warning, no signs that it was coming. She didn’t try to talk to us about it or work with us. She, with the help of my parents, just left. And with her she took pieces of my heart that had been torn to shreds,” Lisa wrote. “We have been making an effort to find our new normal without her. It has been really hard and we all miss her terribly, but I have learned a lot about how to deal with grief throughout the past month.” She got through it all, she says, with prayer, the love of her children and essential oils.

Lisa’s confessional posts drew hundreds of supportive comments. But the story is better known from Alecia’s perspective, because of a video the runaway daughter recorded in February. In front of a white door and a plain white wall, Alecia, who was by then 19, faces the camera and explains that she can’t get a job, fly on a plane or get a driver’s license because she has no proof of her own identity and her parents won’t help. From someone at the Texas Vital Statistics department, she says, she’s learned there’s no record of her birth. The midwife who delivered her at home apparently never filed a birth certificate. Alecia had no Social Security number. She had no school records, either. “I didn’t pick this situation for myself,” she says in the video. “I just have to deal with the consequences, and I don’t know how to fix it. I don’t know how to get out of this.”

Her video spread fast: Within days, it was the top video on Reddit, drawing a massive online community that tended to treat her case as a mystery with her parents as the suspects. As of the date of this posting the video has been played on YouTube nearly 1.4 million times, and as her story spread this spring, Alecia did find herself with a new identity. Back home, she’d been Faith, alongside her sisters Grace and Hope, one of nine kids gathered around the table. But her video introduced her to the world with her full name, and as Alecia Faith Pennington—or often just Alecia—she’s found a place alongside Tim Tebow and the Duggar children of 19 Kids and Counting fame as a public face of home schooling.

It’s been 100 years since Texas, following the lead of all but two other states, made public school compulsory and banned children under 14 from working. The law included exceptions for private and parochial schools, but not home education, so it was as outlaws and radicals that 1970s progressive activists first began home schooling, beginning a grand experiment in American education that has quietly exploded over the last generation. Child-centered “un-schoolers” fleeing the factory of public school bureaucracy were followed shortly by a movement in the Christian right that popularized home schooling as an escape from secular influences. Home schooling is, by nature, difficult to generalize about or quantify; even the count of home-schoolers in the country varies wildly depending on your source. The most recent federal estimates say between 3 and 4 percent of students—about 1.77 million children—were home-schooled in 2012. More than 300,000 kids are home-schooled in Texas, according to home-school advocates, which is even more than attend private schools.

Texas is one of 11 states that doesn’t require parents to register as home-schoolers. Home-school regulations here are some of the weakest in the nation: Unlike their peers in public schools, home-school students don’t have to take standardized tests or submit any proof of their work. Parents aren’t bound by state standards; they can use any curriculum they like, and anyone can be a home-school teacher. This freedom is the result of hard-fought court battles in the 1980s that spawned groups such as the national Home School Legal Defense Association and the Texas Home School Coalition, which work to prevent new home-school regulation.

Today, the first large generation reared in this well-organized and often rigidly patriarchal system is graduating into adulthood, and for the first time, a significant number of home-school alumni are taking on leadership roles in the movement, with differing ideas about where to lead it. Some are fulfilling the dreams of its founders, defending the movement that raised them to fight for parents’ rights above all. Others, such as Alecia Faith Pennington, are calling for change on behalf of the next generation.

 

The origin story for Texas home-schoolers begins in 1981, when a lawyer at the Texas Education Agency looked over the state education code and determined that home education wasn’t legally allowed. Since 1916, Texas has required children to attend public school unless they are disabled, severely ill, or at private school instead. The law said nothing about home schooling, and in 1982 a higher-up TEA lawyer told prospective home-school parents that “all of our legal research concludes that a person may not teach their children at home simply by calling their home a private school.” From 1981 to 1985, local districts charged 150 home-schoolers with truancy violations, taking about 80 of them to trial. When the State Board of Education finally held hearings in 1986 to define qualified home schools, thousands of parents swarmed the hearings in Austin, rallying for what they called the “Austin T.E.A. Party.” Home-schoolers fought back against the state’s attempted regulation with a class-action suit led by Arlington parents Cheryl and Gary Leeper. The court heard testimony from, among others, Rousas Rushdoony, godfather of the Christian Reconstructionist movement, who favored strict biblical justice and trusted in, as he once said, “dedicated minorities who stand unconditionally on their faith” to recover a Christian past. Home schooling was integral to his vision. Rushdoony reminded the state’s lawyers that American education had only recently become a centralized bureaucracy. “Attempts to define a school too precisely are always dangerous because you can define a school and you wind up with a shell, with a building, with so many teachers, with so many hours of instruction, and there is no guarantee that all of these things will provide learning,” Rushdoony explained. “This is the problem of our time.”

The Texas Supreme Court ruled in 1994 that any home-school setting with a curriculum that teaches reading, spelling, grammar, mathematics and good citizenship could qualify as a private school. (By then, the state had long since scrapped its anti-home-schooling policy.) Home-schoolers hailed it as a great victory, and still do today. The Texas Home School Coalition’s recent animated history of the Leeper case is called “The Legacy of Freedom.” Many other states require home-schoolers to register, to take tests or submit work portfolios at the end of the year. Some have proposed periodic mental health check-ups for home-school students. Not in Texas. Here, home schools are regulated like private schools—which is to say, not at all.

Former Texas Education Agency General Counsel David Anderson joined the agency just months before the Leeper decision, and here’s how little oversight of private and home schools he had: “If I decide tomorrow morning that I want to be a private school,” Anderson says, “and I just hung up a sign outside my house, I would have some issues with zoning, I think, with the city of Austin, and the health department would probably say my sinks aren’t big enough if I’m serving food to the public. But I would not have to get permission from anybody. A private school can just do that.”

A vision of what the original home-schoolers intended plays out every Friday morning in Austin’s Hyde Park neighborhood, as about 100 home-school children arrive for class at the Trinity United Methodist Church. For three class periods, in a dozen classrooms, they’ll learn in groups from one another’s parents, as part of one of the many home-school co-ops in town. Almost 3,000 families stay connected on an email list for Austin-area home-schoolers, and co-ops such as this one take place every day of the week.

I visit on a Friday in February, when small children are singing and running in circles with a giant parachute in a small gym, while in another room, older girls with hair dyed in various combinations of pink, purple and blue sit around tables learning to make comic strips on iPads. High-schoolers in the world history class upstairs had just taken a long memorial diversion into Star Trek memories after getting the news of Leonard Nimoy’s death before moving on to the business of the day: presentations on the battles of World War II. Sitting on couches or stretched out on the floor around a giant world map, the five teenagers take turns reading their reports aloud. Shannon Rizzo, the mother of a girl in the class, explains that she’s more facilitator than teacher in this “flipped” classroom. Students handle the lesson prep—in fact, the course offerings each semester are determined by a student vote—and the punishment for showing up to class unprepared is, in the words of one student, “looking like a fool.”

home school
Patrick Michels
Home-school co-op parents lead children in nursery rhymes and parachute games.

“I don’t think we think in terms of consequences,” Rizzo tells me. She says she began home schooling because she didn’t believe 5- and 6-year-olds should be sitting behind desks all day. As they grew, her children enjoyed this informal approach, full of educational road trips and projects built around their evolving interests. “They’ve had the freedom to pursue their own curiosity, and they’re never burnt out on learning,” she tells me.

This 25-year-old home-school co-op is a throwback to the first days of secular home schooling. Students can learn about the Renaissance, parkour, geopolitics and wizardry. A parent here—well, in the parking lot across the street—once taught a class on playing with fire. There are more young children here than high-school-age kids because many enroll in public schools in later grades. Though they recognize their debt to organizations that fought to protect their rights, and still beat back regulation attempts, most parents here seem uninterested in the politics of the home-schooling movement.

That’s left the legal crusades, the seminars and the leadership mostly up to religious home-schoolers, who populate a parallel world of co-ops and sports leagues. (Surveys suggest that well over half, even up to three-quarters, of home-school parents are driven by religious conviction.) To the biggest home-school advocacy groups, home schooling is less about pedagogy than personal rights and freedom from government nannying. The Leeper case allowed for the possibility of regulating home schools—even using test scores to assess students’ learning—but it would be up to the Legislature to create the system. Thanks to home-school defense groups, it’s hard to imagine that happening.

Nicholas Maddox, who was home-schooled in Conroe for his entire childhood, thinks that ought to change. In South Texas Law Review last year, Maddox argued that because education is a right guaranteed by the Texas Constitution, the state is “duty-bound” to ensure that students get at least a basic education. “Currently in Texas,” he writes, “an individual who is a recently convicted felon or partially mentally incapacitated is not allowed to own firearms or even vote, but is allowed to home-school his children for their entire childhood.” Maddox, who now works at the Houston law firm Thompson & Horton, tells the Observer he doesn’t want the state to stand in the way of unconventional home-school learning, but that the state needs to set some basic learning requirement and enforce them. “I think there’s kind of two classes of home-schoolers,” Maddox says. “One is home education, and the other is non-education—the parent who calls up the district one day and says, ‘My child’s being home-schooled, leave me alone.’ Because the state sees these two groups of home-schoolers as one and the same, no one looks into the genuine intent to educate by the parents. … These children are just existing and time is passing.”

“We say that home-schooling parents should have the right to choose how to educate their children, but not the right to choose whether to educate their children,” says Rachel Coleman, who directs the Coalition for Responsible Home Education, a new network of home-school alumni. Coleman was home-schooled as a child as well. Now she works to put more legal safeguards in place to prevent abuse in home schools—physical abuse, but also behavior that’s sometimes sanctioned by religious groups, such as wielding overbearing control of grown children or raising young women only for lives as subservient helpmeets to their future husbands. That puts Coleman’s group in direct opposition to the biggest home-schooling groups, which answer to parents, not children. “Home-school children don’t really have a voice. They can’t really step forward and say, ‘Hey, I’m 14 and I can’t read,’” she says. “What’s in the best interests of the parents is not necessarily in the best interests of the kids.”

  • Jennifer Stahl Home school alumni speaking out

    Jennifer Stahl grew up in a military family, and began home-schooling in Europe before her family moved to Ingleside. It was there, in their home near Corpus Christi Bay, that she says her education took a sharp turn, swayed by the newsletters and teaching resources her mother acquired in her home-schooling co-op. Stahl, like many home-school alumni, says the home-schooling culture her family joined was built on control of children and wariness of the outside world. In eighth grade, she asked to enroll in public school, but says her mother refused. She says her parents took the door off her bedroom and controlled her food to encourage obedience. Her father would discipline her with his leather belt until she was 17. She never dated outside of one carefully supervised courtship, a practice many Christian home-schooling leaders embrace as an acceptable prelude to marriage.

    She was 26 when she left home, married a man she met online, and moved to his home country of Germany. Only then, looking back on her childhood, did she realize how different her upbringing had been. “The first year here was really weird,” she says. “I felt like I had to keep telling my husband what I was doing or where I was going.” In the last year, she began looking for stories like her own and found Homeschoolers Anonymous. “The first thing I said was, ‘Oh my God, I’m not crazy!’” Stahl says. “I’m not the only one who did this, and I’m not the only person who kept questioning it.”

  • Eleanor Skelton Home school alumni speaking out

    Eleanor Skelton grew up in Texas and Colorado, and says her parents began home-schooling her because they worried public school was a dangerous environment. From there, her education followed a path that’s common among home-school alumni who are now calling for reform. Home-schooling support groups and newsletters instilled conservative Christian values in her mother, and religion became central to Skelton’s education. As a teenager, she lived near Dallas and attended Rockwall Bible Church, where the pastor decried rock and any other music with chaotic syncopated beats. She learned from her church, and from the popular A Beka home-school curriculum her parents used, that any sin, even wearing a too-tight sweater in public, carried heavy consequences. “I felt very, very personally responsible for the crucifixion. We were told things in bible classes in A Beka that if you even sin a little bit, you're driving nails into Jesus' hands,” she says. In college, her parents tracked her movements with her cell phone’s GPS, and held her to a 7:30 p.m. curfew.

    When she decided to move out at age 22, she says, her parents emptied her savings account and took away her car keys. She only gradually adjusted to life outside. Now she helps other women make the painful split from constrictive families, covertly helping pack their belongings, letting them live for a while in her apartment and staying with them when they’re overwhelmed by the change, in what she describes as a sort of “underground railroad” for former home schoolers.

 

 

The Watchmen are waiting for me underground, one floor below the Capitol rotunda. I’m late, but if they’re upset about it, they’re too polite to say so. Six of them in dark suits, hair all neatly trimmed and styled, they look a bit like one of the a cappella singing groups that sometimes perform here. Friendly, professional and eager, in a rush they extend their hands in greeting, and reaching to shake one hand, I repeatedly bump into another. These are the Texas Home School Coalition’s foot soldiers at the Legislature, all recent home-school graduates, ages 18 to 22, who’ve risen to defend the rights their parents’ generation secured—not only for minimal home-school regulation, but for parental freedom more generally.

At 22, the coalition’s policy director, Jeremy Newman, is the oldest and the only paid Watchman. He embraces the group’s parents-first approach. “You have to be willing to protect the right of the parent to parent,” he tells me. That’s the core of the coalition’s mission, and with the right to home-school secured by Leeper, the Watchmen are on the lookout for other attempts to wedge the state into the family’s business. That’s at the heart of a bill they’re pushing this session, a “Parental Rights Act” to make it harder for other family members to gain custody of children whose home schooling they disapprove of. But it’s also why the coalition opposes mandatory vaccinations and daytime curfews. “Sometimes we get questions or complaints about using resources on [Child Protective Services] issues,” Newman says. “Our response has always been, ‘Your right to home-school only exists because we have the presumption that parental rights exist.’”

home school
Patrick Michels
State Rep. James Frank (R-Wichita Falls) talks legislative strategy with Texas Home School Coalition lobbyists, from left, Ryan Parke, Stephen Howsley and Jeremy Newman.

Newman recognizes that some parents make bad decisions about their children’s education, but says the answer isn’t tighter policing by the state: “You cannot fix relationships between people with legislation.” Newman says his group prevents educational malpractice by providing curriculum resources and a community for new home-school parents.

Collectively, the Watchmen seem to comfortably embody what I’d imagined to be an uneasy balance: the precociousness encouraged by a home-school education and the conservative values of home-school politics. One Watchman, 18-year-old Greg Guggenmos, says he first learned to read upside-down. He believes he’s the youngest registered lobbyist ever in Texas, and is now fact-checking his claim with the state. Another, Josh Newman (Jeremy’s brother), tells me he was in eighth grade when he first became concerned about America’s future. They are living together for the session in a house in North Austin. The six seem reasoned and sharp in conversation, confident as any of the power brokers wandering past us. When I ask about their own home-school upbringings, the six laud the power of self-driven education to spark critical thinking and thwart conformity— though they seem to fit in well enough at the Capitol, preaching the gospel of limited government in signet rings and expensive-looking watches.

I follow at their brisk pace through the Capitol’s underground extension, down to the office of sophomore state Rep. James Frank (R-Wichita Falls), so I can see the crew in action. Frank is one of a few home-school parents in the Legislature today, and, together with a growing number of home-schooled staffers, he represents an unprecedented network of home-school sympathizers. But as much as conservative candidates prize a Texas Home School Coalition endorsement, the group still must fight for attention among the competing interests at the Capitol. A serious attempt to regulate home schooling surely would draw an army of home-school parents. (Home-schoolers overloaded the U.S. Capitol’s switchboard in 1994 to beat back a bill that could have threatened home schooling nationwide.) But there’s no such threat in Austin this year. For the second session in a row, the group is trying to give home-schoolers access to public school athletics through a “Tim Tebow bill,” named in honor of the college football star who was home-schooled in Florida by his conservative Christian family but played football with the local public school. More than two dozen states have adopted Tebow bills in recent years, but the measure was never brought up for debate in the last legislative session here.

Frank is working with the Texas Home School Coalition to gather support, and Tim Lambert, the coalition’s president, is down from Lubbock to help. The two are chatting in Frank’s office when I arrive with the Watchmen. Three of them wait in the hall as the rest of us find seats in Frank’s office, a sparsely decorated white room with a big family portrait on one wall and a white board on the other. Frank has good news: He’s heard the Tebow bill is almost certain to get a hearing with the House Public Education Committee—which is just a first step, but more than it got last session. (As of mid-April, no hearing on the bill was yet scheduled.) Frank is rallying support for the bill, and the Watchmen are drafting a set of bullet points to help him, including the high cost of youth sports and the fast growth of Texas’ home-school community. Frank hopes to convince a majority of the education committee to pledge support in writing, which, in turn, could help him convince committee Chairman Jimmie Don Aycock to get behind the bill. Aycock is a rural Republican and a former Killeen school board member who generally is more interested in traditional public schools. Folks like that—Frank, of course, doesn’t mention Aycock specifically—aren’t usually sympathetic to home-schoolers.

“What’s funny is they’re very concerned with the 5 million kids who are [each] costing $11,000 a year. But the 300,000 kids that are costing the state nothing are not our issue at all,” Frank wonders aloud, perhaps for my benefit. Even worse are the folks who’ve worked in the public school system and see the dropouts and miscreants whose parents only claim to be home schooling. “They’re seeing a very small fraction of home schooling but it’s a very—it’s not indicative of the rest of home schooling,” Frank says. “Most of the ones that are quote ‘good home-schoolers,’ there’s very little engagement between us and the public schools. So they never hear about ’em.”

 

 

Amateur sleuths on Reddit and Facebook trying to make sense of Alecia Pennington’s case—the runaway Texas woman who can’t prove she exists—were surprised to discover that the Penningtons aren’t recluses holed up in some remote bunker, but public figures active in the home-school community. In his only comment to the press, James Pennington told The Daily Beast he had avoided registering with Social Security for political reasons, but would help his daughter get what she needed. James and Lisa each posted videos on YouTube—since made private—denying they ever tried to hurt or control their daughter. State Rep. Marsha Farney (R-Georgetown) has filed a bill that would help people in situations like Alecia’s get copies of their birth certificates. Buoyed by the attention, Alecia recently announced she’d secured pro bono legal help and was close to getting her documentation.

But the more surprising revelation in Alecia’s story, to many, is that she’s not an anomaly—it’s just that few in her situation are lucky enough to get such attention. Until a few years ago, their stories might have never been heard. In 2013, four home-school alumni who’d met one another on the Christian debate circuit, including two Texans, organized as Homeschool Alumni Reaching Out (HARO) to give voice to abused and neglected home-schoolers. HARO began publishing stories, including Alecia’s, in which parents maintain control of their grown children by withholding government and school records. The phenomenon is called “identification abuse,” and a survey the group took in February netted many alumni who said their parents did the same thing. “I left due to physical abuse and they refused to give me any documents as punishment,” one respondent wrote. “Withheld Social Security card to control relationships and keep me from getting a job,” wrote another.

Reading stories from other home-schoolers, many alumni are shocked to recognize familiar behaviors, things they thought were quirks of their own upbringing. Texas-raised home-school alumni contacted for this story recalled parents removing the door from their bedroom, controlling their food portions or tracking them outside the house. Seeking reform, these home-school alumni are sharing their stories of abuse, control and neglect in the hopes that leaders in the home-school movement will accept that they allowed these crimes because they defended near-limitless parental rights. There are troubled families at any sort of school, of course, but the reformers point to particular aspects of the home-schooling community today. Home-schooled children may not have anyone outside the home, such as a teacher, to check on their well-being. Some leaders in the Christian patriarchy movement encourage parents to build isolated family empires, require strict obedience from all children, and raise girls to be submissive and not necessarily well-educated wives.

The home-schooling movement began as a celebration of the empowerment of parents, many of whom dreamed of raising an army to fight for America’s Christian future. Michael Farris, a key leader in the movement since the early ’80s, has called these now-grown children the “Joshua Generation.” “Just as Joshua completed Moses’s mission by slaughtering the inhabitants of the Promised Land, ‘GenJ’ would carry the fundamentalist banner forward and redeem America as a Christian nation,” Kathryn Joyce wrote in a 2013 American Prospect story on the “homeschool apostates” who have broken that “GenJ” mold. In the wave of home-schooled children coming of age today, many are less concerned with carrying their parents’ torch than with speaking up on behalf of kids like themselves. Their stories, publicized by HARO and a few other groups, have illuminated patterns of harmful behavior that would otherwise have remained locked away at home. Some old-guard home-school leaders have bristled at the criticism. Kevin Swanson, a leader in the movement’s most conservative wing who was home-schooled in the ’60s and ’70s, has called them “homeschool whiners” and “traitors” to “the cause of freedom.” As founder of the Colorado ministry Generations with Vision, Swanson has built a speaking and writing career on the promise of a Christian awakening that will return America to its Puritan days.

home school
Patrick Michels
Andrew Roblyer, home-schooling accountability activist

Andrew Roblyer, who cofounded HARO with three other former home-schoolers, says Swanson’s unwillingness to engage the new generation’s concerns is a dangerous, but common, approach. “It’s such a core part of the identity that when you challenge home schooling, I think a lot of parents feel like you are accusing them, each individual parent, like everyone is equally part of the problem,” says Roblyer.

Roblyer grew up in a military family, moving often until they reached College Station, where he finished high school and still lives. He was glad to take schoolwork at his own pace, and to avoid the social uprooting he would have faced switching from school to school. Like HARO’s other founders, Roblyer was a devoted competitor on the national Christian debate circuit. Farris encouraged debate as a way to prepare the Joshua Generation for its future in politics. Roblyer’s family weren’t devoted home-schoolers or even conservative Christians; debate was a hobby, not a solemn vocation. But he  debated religion and public policy with students from more fundamentalist backgrounds—a common policy proposal on the circuit was defunding the Department of Education—and he says his debate training taught him to think critically about the institution of home schooling.

“Our parents’ generation really had to fight for the right to home-school, but I think that fight has made them very defensive,” Roblyer says. “What HARO is saying is, we can address these problems without advocating for some widespread policy change. … We sidestep that entire conversation and say, ‘OK, let’s remove the government from the picture and look at what we can do to make the community better.’”

The group is building a set of lessons on LGBT acceptance, recognizing learning disabilities, and how to speak out when parents encounter a child suffering neglect or abuse. HARO repeatedly applies for, and is often denied, space at home-school conferences, including a Great Homeschool Conventions seminar in California last year. Roblyer says the home-school establishment is skeptical of anything that could crowd out a parent’s rights—especially if it involves reporting another parent to the state.

“There have been cases, regardless of how few and far between, where home-schoolers have been discriminated against,” Roblyer says. “And when that happens once, it becomes the rallying cry. So, there’s a lot of fear that if they give any ground, they’re going to end up giving a lot more.”

 

There are signs that home-school leaders are paying attention to concerns about hidden neglect, as Joyce noted in The American Prospect. While the Home School Legal Defense Association may not be interested in touching issues rooted in religion—“Some of the grievances I am reading now against home schooling seem to be merely differences of philosophy in child-rearing,” HSLDA attorney Darren Jones told Joyce—the group has created an online guide to recognizing evidence of abuse and intervening. (Joyce points out that the guide still suggests confronting the parents before alerting Child Protective Services.) Meanwhile, some old gatekeepers of the far-right home-school movement are dying off. The San Antonio-based Vision Forum, which for years propagated the dream of a patriarchal fiefdom in every home, collapsed in 2013 under the weight of founder Doug Phillips’ sex scandal. No comparable organization has stepped in to take its place.

Research on contemporary home-schoolers suggests that growth in the movement isn’t being driven by the Joshua Generation of large Christian families, but by a new group that embraces home schooling as just one option in the broad menu of school-choice possibilities. Historian Milton Gaither describes a shift from “homeschooling” to “home schooling,” where learning happens to take place in the home, perhaps online, or in a community college, a weekly co-op or a seminar on pyrotechnics in an adjacent parking lot. All these options leave parents and students less dependent on the institutions that first secured home-schoolers’ rights.

The Texas Home School Coalition’s Watchmen agree that there’s a growing diversity of thought in the home-school community. Jeremy Newman recalls a phrase Tim Lambert uses to describe parents who want to avoid any engagement with state regulation—he refers to their “free-floating anxiety.” Newman says home-school parents are getting bolder, empowered by their growing numbers and less rooted in a Leeper-era fear of the state. As his brother Josh says, the shift of opinion reflects a recognition that home schooling today, complex, big and diverse, can’t survive on ignorance. “Being forgotten by the government,” Josh says, “doesn’t get you freedom.”

 

Correction: Mental health checks for home-school students have been proposed, but are not currently in place, in states outside Texas.

Fracking equipment near homes in Denton.
Fracking near homes in Denton.

The House moved to limit local control over oil and gas activities Friday, raising the ire of environmentalists and cities across the state.

House Bill 40 by Rep. Drew Darby (R-San Angelo) is widely seen as a response to a fracking ban passed by Denton voters last November. The bill preempts regulation of oil and gas operations by municipalities, allowing only “commercially reasonable” rules for aboveground activity. The bill will overturn Denton’s fracking ban, Dallas’ drilling ordinance and is expected to plunge other cities’ ordinances into legal jeopardy.

It passed on a 122-18 bipartisan vote. Thirty of the 52 Democrats in the House voted for HB 40. (Update: After the vote, three Democrats said they were recorded voting “yes” but had intended to vote “no”: Rep. Roberto Alonzo of Dallas, Dawnna Dukes of Austin and Jessica Farrar of Houston. Rep. Ramon Romero, Jr. of Fort Worth was absent but said he would’ve voted for the bill.) The only Republican to vote against the bill was Rep. Tam Parker (R-Flower Mound), whose suburban district has struggled with intense fracking activity.

Environmental groups reacted with disgust.

“This is a dangerous power grab by Big Oil to stomp out the rights of communities to protect themselves from the worst impacts of dirty drilling,” said Luke Metzger, director of Environment Texas. “They won’t settle for just overturning the Denton ban but are taking aim at ordinances across the state that limit drilling near homes, schools and parks as well as many other health and safety standards.”

Local control has long been a Texas tradition but is often a casualty of other imperatives.

At the Texas Capitol, little is more sacrosanct than money, and the oil and gas industry has lots of it. The industry donated more than $5 million to legislators during 2013 and 2014, according to a Texans for Public Justice report. The average House member pocketed more than $25,000.

Debate on Friday was mostly perfunctory. The details of the bill had been negotiated largely without input from rank-and-file lawmakers. Amendment after amendment was tanked on lopsided votes. The current bill was fragile, the work of the Texas Municipal League, the Texas Oil and Gas Association and other unnamed “stakeholders,” Darby said.

“The language of the bill has been painfully crafted,” Darby said.

Rep. Sylvester Turner (D-Houston) bristled at the notion that it was all a done deal. “I didn’t give up my seat to [Texas Municipal League],” he said.

But it was clear that Turner’s plea would make no difference. “I hope that this bill doesn’t come back to haunt us,” he said.

During the debate, Turner said he would vote against HB 40 if it wasn’t amended to include a guarantee that cities could write ordinances protecting city-owned land. However, he was among a number of Democrats who complained about the legislation but ended up voting for it.

“I was surprised,” said Rep. Rafael Anchia (D-Dallas), who voted against the bill, of how lopsided the vote was. Anchia’s district includes some of the few proposed gas wells in the city of Dallas.

Turner said the bill’s passage was all but assured.

State Rep. Drew Darby (R-San Angelo)
State Rep. Drew Darby (R-San Angelo)

“We all came in knowing there was enough power behind the bill to get it passed,” he said. “This train has left the station. I gave it everything I could, I recognized what the end result was going to be, so I put myself in a position to be able to continue working with the authors as this bill moves forward.”

Anchia said the legislation will scrap Dallas’ carefully-crafted ordinance.

“I’m not comfortable with the Legislature supplanting its judgement for that of the local authorities,” he told the Observer. He said the industry will almost certainly challenge Dallas’ drilling ordinance and that even the city’s 1,500-foot setback requirement—the distance between oil-and-gas infrastructure and protected places like homes and businesses—could be in trouble. (The bill allows only “reasonable setback requirements.”)

Many communities, especially in the urban and suburban Barnett Shale, complain that the state has done little to deal with negative environmental effects from oil and gas activities, such as groundwater pollution and earthquakes most likely caused by fracking.

In defense of the bill, Darby said that oil is vital to the Texas economy.

“Texas needs to protect the oil and gas industry,” he said.

The bill now moves on to the Senate for consideration.

State Rep. Celia Israel (D-Austin)
Facebook
Rep. Celia Israel (D-Austin)

Every month, the number of pregnant women incarcerated in Texas county jails hovers between 300 and 500, according to monthly jail population reports collected by the Texas Commission on Jail Standards. But we know little else about how pregnant women are treated behind bars.

Criminal justice, mental health and civil rights groups have long fought for more information on the care and treatment available to pregnant inmates.

A law passed in 2009 requires that each jail have a health services plan in place, but doesn’t specify the kind of services that must be provided to pregnant women. Another 2009 law bans the use of restraints on pregnant inmates during labor, delivery and recovery unless correctional officers determine there’s a security or flight risk. But counties are not required to report to the state when, and why, restraints are used.

Two bills by state Rep. Celia Israel (D-Austin) aim to illuminate how pregnant women are treated in jail. House Bill 1140, was approved by the House County Affairs Committee last week. It would require county jails to provide the state with more data on the health care provided to pregnant inmates, as well as specific policies like prenatal vitamins regimens, nutrition plans and calorie counts of food for expectant mothers. Under House Bill 1141, considered by the House Corrections Committee Thursday, county jails would submit a yearly report to the Legislature tracking every instance when restraints are used on pregnant inmates.

The use-of-restraints ban “has been interpreted very differently across the state,” Israel said as she laid out HB 1141 Thursday. “This practice is dangerous to women and their children and it is completely unacceptable. … The state needs access to an official record, and this bill puts a system in place to do that.”

“The range of care between facilities is grossly inconsistent,” Alexandra Chirico, policy associate with the Texas Criminal Justice Coalition, said at the HB 1140 hearing. The bills “provide us the information to understand where problems exist and give us the impetus to fix them.”

In recent years, Diana Claitor of the Texas Jail Project and other advocates have heard from incarcerated women and their families about the often sub-standard conditions behind bars. Women report inadequate health care services, lack of mental health treatment, limited access to food and vitamins, as well as the use of restraints during labor, despite the 2009 law, Claitor said at Thursday’s HB 1141 hearing.

“It’s become obvious to me that our jails don’t have clear policies, it’s also become obvious how little information there is about how pregnant women are cared for,” she said. “Without information on all the jails’ practices and policies, we are operating in the dark.”

Brandon Wood, executive director of the Texas Commission on Jail Standards, told legislators at both hearings that the commission approves each county jail’s health services plan every five years. The OB/GYN care provided to pregnant inmates is left up to individual counties and medical professionals working in the jails, though resources vary from county to county, Wood said.

County jails can and do restrain pregnant inmates when they transfer them between units, Wood said. When correctional officers deem it necessary to use restraints on pregnant inmates during labor, delivery or recovery, the commission only finds out if an inmate files a formal complaint.

“We do not receive any monthly reporting regarding the use of restraints on pregnant inmates,” Wood told legislators. “Counties are required to keep the documentation so that if the commission receives a complaint, we can request it.”

So far, lawmakers have expressed wide support for collecting more information on what jails are providing, or not providing, for pregnant inmates. The House County Affairs committee voted 7-1 in favor of HB 1140 last week. In the last few days, six more legislators, Democrats and Republicans, have signed on to Israel’s bills.

The Sheriffs Association of Texas, however, is opposed to both of Israel’s bills, arguing that providing more data to the commission and the Legislature would be redundant and time-consuming for staff. Sheriff A.J. Louderback, president of the association and Jackson County sheriff, called Israel’s use-of-restraint reporting bill “unnecessary.”

“If in fact we’re required to [file a report] every time a pregnant female is in a county jail and a restraint is applied, we would have to send in a report to [Texas Commission on Jail Standards], where does it stop?” Louderback said to House Corrections committee members.

State Rep. Alma Allen (D-Houston) pressed Louderback, questioning whether county jails should be restraining pregnant women at all.

“If we operated on the premise that we should not do this, we would have fewer incidents so it wouldn’t be a big burden on you to get that information,” Allen said.

West, Texas Blues

Two years after the West fertilizer plant disaster, few ammonium nitrate facilities have made critical changes.
West, Texas tragedy
AP Photo/Tony Gutierrez
A cross with messages to one of the victims of the fertilizer plant explosion sits planted in an open field across the street from the site of the explosion.

 

On March 17, 2014, an inspector from the State Fire Marshal’s Office arrived in Athens, Texas, to take a look at East Texas Ag Supply, a fertilizer storage facility located just a few blocks from the historic Henderson County Courthouse.

The visit was part of a second round of voluntary inspections of ammonium nitrate facilities conducted by the state fire marshal in the wake of the West disaster on April 17, 2013. Like his counterparts across the state, the inspector had been dispatched to assess whether the dozens of ammonium nitrate plants in Texas had made progress in fixing some of the problems that contributed to the West fire and explosion that leveled parts of the town and killed 15 people.

But it appeared that little had changed. In his report, the inspector noted that 135 tons of bulk ammonium nitrate was stored in a wood-frame building and in a bay constructed of wood, considered to be a serious fire risk by experts. The fire at the West Fertilizer Company plant began in a wooden warehouse, and ignited ammonium nitrate stored in wooden bins. The only fire protection at the Athens plant was two portable fire extinguishers. Like the West plant, it had no sprinkler system, a hazard noted in a 2013 inspection, too.

Six weeks later, the facility erupted in flames, necessitating an evacuation of part of the town. The cause of the fire was never determined; luckily, the ammonium nitrate didn’t ignite.

In 2004, an ammonium nitrate facility owned by the El Dorado Chemical Company  burned down in Greenville. In 2009, another El Dorado plant burned to the ground in Bryan. The company rebuilt the Bryan facility, opting for a non-combustible concrete structure. After the West explosion, John Carver, an El Dorado vice president, told the Dallas Morning News it had hired an engineering firm to assess risks at its facilities. Around the same time, a company spokesperson assured a North Texas news channel that its materials were “housed in a way that does not pose a threat to the public.” But as inspection reports from 2014 show, the company hadn’t fixed many of the major issues with its facilities, including the housing of ammonium nitrate in wooden structures.

In the tiny town of Whitewright in North Texas, an El Dorado fertilizer plant is located less than a quarter-mile from the town’s high school. According to a May inspection, ammonium nitrate is housed there in damaged wooden structure that lacks a sprinkler system. Although the West disaster had focused attention on the potential for ammonium nitrate plants to be a deadly threat, and the state fire marshal discovered plenty of problems at El Dorado’s facilities, not much had evidently changed.

In the two years since the explosion in West, the state fire marshal has inspected every ammonium nitrate facility in Texas twice, identifying recurring problems at dozens of fertilizer dealers and plants similar to the one in West. But an Observer review of partially redacted fire safety inspection reports obtained through open records law has found that few facilities have made basic changes recommended by the fire marshal. And lawmakers haven’t made a single change to the oversight system.

Of the 92 facilities in operation in 2014, only one-fifth had a sprinkler system. Fifty-two facilities had no means of fire protection other than portable fire extinguishers, while 22 were described as having no fire protection features at all. Fire extinguishers and sprinkler systems are important features, said State Fire Marshal Chris Connealy, in order to put out incipient fires, before they become unmanageable. Today there are 83 ammonium nitrate facilities operating in Texas, many located in populated areas. Buddy’s Plant Plus in Ballinger is located across the highway from Ballinger High School. Lawrence Farm and Ranch Supply in Cross Plains is situated nears homes and businesses.

Texas Fire Marshal Chris Connealy
Texas Fire Marshal Chris Connealy

Connealy says he wasn’t surprised when his inspectors found several potential fire hazards at facilities during his first round of inspections in 2013, because so many of them have been around for years and have had little incentive to improve standards. And when he found several potential fire hazards the next year, well, he still wasn’t surprised. The State Fire Marshal’s Office has no enforcement authority over ammonium nitrate facilities, so operators are under no legal obligation to address any hazards found during the voluntary inspections. The reports are essentially just suggestions, and facility managers are often resistant to address them. Moreover, the information in the inspection reports isn’t readily available to the public. The Observer had to file an open records request, wait months, and pay $119 to access documents that are heavily redacted.

Connealy says that ammonium nitrate should ideally be stored in a non-combustible structures—like concrete—and that the storage bins should be changed out when they show signs of the fertilizer lodging in the wood. According to inspection reports, 31 facilities showed signs of product impregnation in 2014.

Rep. Joe Pickett (D-El Paso) has been leading efforts in the Legislature to prevent another West. What has changed since? “Nothing,” he said. Pickett said the fire marshal’s inspections led to some small fixes early on, but that as memory of the West tragedy fades, inaction will set likely set in if a new oversight system isn’t devised.

The cause of the fire that triggered the explosion in West is still unknown, but we do know what was detonated: ammonium nitrate. The West Fertilizer Company was storing up to 540,000 pounds, or 270 tons, of the substance. It isn’t inherently explosive, but when exposed to fire it can be deadly.

In the days and weeks following the explosion in West, investigations revealed that the West Fertilizer Plant didn’t have a security plan or an up-to-date risk management plan. The facility had also filed a report with the Texas Department of State Health Services claiming that it hadn’t stored ammonium nitrate since 2012. The U.S. Department of Homeland Security didn’t even know the facility existed. In short, no one was keeping tabs on the plant.

Since 2007, the obscure Office of the Texas State Chemist has regulated the sale of ammonium nitrate. After the West explosion, the Office of the State Chemist created a few new rules that ammonium nitrate facilities must follow. The rules are pretty limited, pertaining to providing evidence of compliance with reporting procedures, and displaying warning placards. There’s only one new rule that directly removes a fire hazard, one that Connealy says is a “major improvement”: facilities now have to keep ammonium nitrate at least 30 feet away from combustible or flammable material, such as feed, batteries and fuel.

Facilities are required to perform daily inspections to ensure that those rules are being followed. The Office of the State Chemist has 15 investigators who inspect each facility annually, and any facility found to be in violation of the rules will have its registration suspended.

But Pickett isn’t satisfied with the changes.

“Who’s going to go in from the state chemist to make sure there’s no bare electrical wires, and that you’ve got the right kind of fire extinguisher?” Pickett said. “Well, they’re not. Why don’t we have first responders in there?”

That’s why he’s proposed legislation this session that would give the State Fire Marshal’s Office inspection authority and require facilities to address violations within 10 days of their identification. Pickett’s bill would also allow the Fire Marshal’s Office to create more rules for ammonium nitrate facilities.

Another bill, proposed by Rep. Kyle Kacal (R-College Station) would also give the fire marshal the authority to inspect facilities, but wouldn’t allow him to write rules for ammonium nitrate.

Many ammonium nitrate operators are OK with giving the fire marshal inspection authority, but don’t think that the office should be allowed to write new rules.

During a public hearing at the Capitol in April, Farley Farm Supply owner Jim Farley testified in favor of Kacal’s bill and against Pickett’s. He said that he’s made more changes since the West disaster to his feed and supply store, which sells ammonium nitrate fertilizer, “than in the previous 36 years combined.” He said part of his facility, located in the center of De Leon, a town 100 miles southwest of Fort Worth, had been “completely gutted” so that it would be in compliance with the 30-feet rule.

The 2014 inspection report for the facility found that the wooden ceiling showed signs of product impregnation, and that the only fire protection features were portable fire extinguishers. Farley testified that addressing those issues would be cost-prohibitive.

Raymond Helberg, coordinator of the Comanche County Emergency Management department, which oversees De Leon, says he’s not “overly concerned” about the dangers posed by the facility, and believes that current safety measures are sufficient. After the explosion in West, officials met with Farley and created an emergency plan that primarily focuses on evacuation. Helberg doesn’t think new legislation would help much.

“I don’t think you can get any safer,” Helberg said.

Connealy said his office is waiting to see what changes the Legislature makes, if any, before moving forward with another round of inspections.

Pickett said he doesn’t care which of the bills moves forward this session, only that some kind of action is taken. Kacal’s bill was unanimously voted out of committee on Tuesday, but the prospect of legislation passing dwindles as the session approaches its June 1 end date.

“It will be a matter of time,” Pickett said. “If we don’t do something, we’ll have another West explosion.”

Sen. John Whitmire (D-Houston) advocating for school truancy decriminalization.
John Savage
Sen. John Whitmire (D-Houston) advocating for school truancy decriminalization.

After almost two hours of debate, a several-hour postponement and some backroom deal-making, the Senate passed a bill designed to decriminalize school truancy. Senate Bill 106 by Sen. John Whitmire (D-Houston) passed on a 26-5 vote.

Whitmire said current state truancy law unfairly punishes poor children and criminalizes hardship.

“No school should make a criminal charge out of a hardship of somebody that’s going through a divorce, or a 14-year-old that has no maternity clothes so she can’t go to school,” Whitmire said.

Under his legislation, Whitmire said school administrators and judges would have all the same tools they have now to try to ensure kids are not skipping school. The difference, he argued, is there would be no criminal charge to follow a young person around for the rest of their life.

Texas is one of only two states—the other is Wyoming—that employ the criminal justice system to punish truancy. The Texas Education Code, the body of law that regulates the activity of all educational institutions in the state, empowers schools districts to file a criminal complaint against a child as young as 12 who has missed three days of school in four weeks without an excuse or has accumulated 10 unexcused absences in six months.

The charge is known as “Failure to Attend School,” a Class C misdemeanor that can carry up to $500 in fines and leave an indelible mark on the child’s record.

In 2013, Texas prosecuted more than twice as many school truancy cases as all the other states combined, according to a report from Texas Appleseed. Truancy laws disproportionately affect minority children, disabled students and the economically disadvantaged and advocates say the laws contribute to the so-called school-to-prison pipeline.

Morgan Craven, a staff attorney for Texas Appleseed’s School-to-Prison Pipeline Project, told the Observer that punitive truancy laws aren’t useful in solving the problem.

“Research and data show that these so-called hammers are not effective,” Craven said. “I’ll give you a few examples of what I can imagine these judges are talking about when they say, ‘Don’t take the hammer away from us.’ They are talking about the ability to saddle a kid with a criminal record. The ability to charge kids and parents with up to $500 in fines. The ability to arrest and jail a kid for three days if they are unable to pay those fines, and they can be held in contempt, arrested and jailed.”

Sen. Van Taylor (R-Plano) and Sen. Larry Taylor (R-Friendswood) offered the most vociferous objections to Whitmire’s bill.

“The superintendents in my district have contacted me and expressed concerns that this bill not only removes a tool for a school to compel attendance and avoid truant behavior, but also imposes additional steps and requirements,” Taylor said.

According to an exposé published by The Atlantic, school truancy is big business in Texas. Each year Texas truancy courts collect millions of dollars in fines. Truancy fines in Dallas County alone totaled almost $3 million in 2012.

Whitmire vehemently disagreed with his bill’s opponents.

“I can’t overemphasize what a big problem this is,” Whitmire said. “There is no reason to write children a ticket for missing school and make them a criminal.”

In the House, several truancy bills were heard last month in the juvenile justice committee but none have been voted out.

Rep. James White (R-Hillister) said House members are still in discussions.

“There are different scenarios of how this could play out,” said White. “There could be a scenario where we all get together and there is one big bill per se or it could be a number of bills that will come forward.”

SB 106 bill now moves to the House for consideration.

 

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