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.
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.
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.
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.
Rep. Pat Fallon (R-Frisco) and Rep. Tan Parker (R-Flower Mound) enjoy a light moment on the House floor, with a "Protect Religious Freedom" sign.
Rep. Scott Sanford (R-McKinney) says he wants to make sure faith-based adoption agencies that receive state funding aren’t forced to close their doors if they refuse to place children with same-sex couples.
But opponents of Sanford’s House Bill 3864 say it could have unintended consequences, such as allowing foster homes to force gay youth to undergo conversion therapy or require Christian youth to attend Muslim schools.
On Wednesday, Sanford told a House committee that in some states where same-sex marriage is legal, organizations such as Catholic Charities have shut down rather than comply with laws barring discrimination against gay couples.
“Faith-based organizations have played a vital role in serving our nation’s orphan and needy children since America’s founding, and this legislation protects their operations,” Sanford said. “States without these protective measures have had organizations cease to operate, placing more demand on government.”
HB 3864, which Sanford is calling the “Hope for Orphans and Minors Expansion Act,” or HOME, would prohibit the state from taking “adverse action” against child welfare providers that receive taxpayer dollars and act based on “sincerely held religious beliefs.” It would also protect the rights of state-funded agencies to provide religious education to children and to deny them access to abortions or birth control.
During the hearing on Wednesday, opponents said Sanford’s bill would allow the religious convictions of providers to trump the best interests of children. They also said the rights of faith-based providers are already protected under the state’s 1999 Religious Freedom Restoration Act.
Sarah Crockett, public policy coordinator for Texas CASA, said the organization is neutral on the bill. Crockett acknowledged that faith-based organizations account for the majority of child-placing agencies in the state, calling them “essential” to the system.
But Crockett said she fears HB 3864 would infringe on the rights of children in foster care, as laid out by the Department of Family and Protective Services. Those rights currently include protections against discrimination based on sexual orientation and gender identity, as well as the right to receive a religious education of their choosing.
Under the bill, if officials determined a child’s rights were violated and recommended removal from an agency, the provider could sue the state.
“The rights and best interests of children, especially the vulnerable and traumatized children at the center of this bill, should be considered paramount,” Crockett said. “We feel like this is a solution for something that’s not a problem.”
Those who testified in support of the bill included several women who became pregnant as teenagers and put their children up for adoption. They said if faith-based adoption agencies shut down, it would be harder for teen mothers to ensure their children are placed in Christian homes.
Also testifying in support of the bill were representatives from social conservative groups Concerned Women for America and the Liberty Institute, as well as a high-ranking official from the Texas attorney general’s office.
Brantley Starr, deputy attorney general for legal counsel, said the AG’s office is officially neutral on the bill. But Republican Attorney General Ken Paxton has championed so-called religious liberty, and Starr offered supportive testimony.
Starr said a substitute version of the bill makes clear that providers couldn’t “decline intake” of a child based on religious beliefs.
“This bill doesn’t give the providers the license to discriminate on the front end of which child they would take,” he said.
Starr said the bill is needed because the Religious Freedom Restoration Act provides too much latitude to judges, who could determine that protecting the rights of same-sex couples constitutes a compelling state interest that outweighs the religious beliefs of state-funded child welfare providers.
“With more government regulation, judges can view compelling interest as anything,” Starr said. “My cell phone, I used to be able to use it in my car in Austin, I can’t now. It may be a compelling governmental interest in the minds of some judges to actually do that. As time passes on, judges can view more and more things as a compelling interest, so there’s a greater need for the Legislature to clarify which areas it believes religious rights of conscience should be protected, so the courts don’t have to wade into the issue.”
Members of the committee, which is stacked with social conservatives, appeared supportive of the bill. Rep. Debbie Riddle (R-Spring) called HB 3864 “fabulous” and repeatedly told supportive witnesses from Christian groups they were “doing the Lord’s work.”
Rep. Bryan Hughes (R-Mineola) pressed opponents of the bill about whether they think faith-based adoption agencies should be allowed to refuse to place children with gay parents.
“I think that’s OK if the alternative is not having them participate at all,” Hughes said.
Kathy Miller, president of the Texas Freedom Network, testified against the bill. She acknowledged that while faith-based child welfare providers can currently discriminate against same-sex couples, it’s likely that will be challenged in the future.
“It does seem that this bill is designed to ensure that religious providers can use that faith to discriminate against LGBT families and children,” Miller said. “Just as in Indiana, when this kind of issue arose to allow religion to be used to discriminate against LGBT families, I think it would be wrong for this state to move in that direction.”
Erick Muñoz, husband of Marlise Muñoz, addresses reporters at the Texas Capitol in March.
The House State Affairs Committee heard a bill Wednesday that would allow pregnant women and their families to make their own end-of-life decisions. Currently, under Texas’ advance directive law, doctors “may not withdraw or withhold life-sustaining treatment … from a pregnant patient,” a little-known clause that drew national attention when a pregnant woman in Fort Worth was declared brain dead in 2013.
House Bill 3183 by state Rep. Elliott Naishtat (D-Austin) would eliminate this so-called “pregnancy exclusion” provision.
“Anybody can fill out an advance directive, but only women who are pregnant can have that advance directive voided by a hospital or by the state,” he told committee members. “That’s not fair, that hurts families very much, and this is a simple fix.”
Naishtat’s bill is inspired by the story of Marlise Muñoz, a 33-year-old mother and paramedic from North Texas who collapsed at her home and suffered a pulmonary embolism in November 2013. At 14 weeks pregnant, Marlise was declared brain dead after she was hospitalized in Fort Worth. Citing the state’s advance directive law, doctors refused to remove her from life support, despite the fact that she made it clear to her family years prior that she wouldn’t want to continue treatment in such a situation. Muñoz’s husband Erick and her parents Lynne and Ernie Machado sued the hospital and ultimately won their case, and the right to bury Marlise.
“For two months we watched our daughter’s body decompose,” Lynne told legislators Wednesday. “We knew the end-of-life wishes Marlise wanted. … Our hands were tied by the government. We felt the government had overstepped [its] boundaries.”
Rebecca Robertson with the ACLU of Texas, and Susan Hays, representing a coalition of reproductive health and advocacy groups, supported Naishtat’s measure. Hays said that the law treats pregnant women as “second-class citizens” by taking away their right to make end-of-life decisions.
“The case of Marlise Muñoz vividly illustrates why this law needs to change,” Hays said. “State law should never prevent medical professionals from providing medical care that is consistent with their ethical and professional obligations.”
Amid the emotional testimony from Marlise’s family, a handful of witnesses spoke against Naishtat’s bill, arguing that the life of Marlise’s fetus should have remained the priority in the case.
Cecilia Wood, an Austin-based attorney representing the Texas chapter of the conservative Concerned Women for America, opened her testimony by ensuring that she meant “no disrespect” for Marlise’s family. Wood went on to say that in no situation should Texas’ end-of-life law apply to a pregnant woman. Wood said that any pregnant woman should be kept alive “until the baby can be delivered.”
“I would say it would never be OK to abide by the wishes of the family, if it means taking the life of the child,” she said. “We need to realize that this is the life of a pre-born child.”
State Rep. Matt Krause (R-Fort Worth) has filed a bill that echoes Wood’s sentiment, though it has yet to be scheduled for a hearing. Krause’s House Bill 1901 would require a hospital to keep a pregnant woman on life support “regardless of whether there is irreversible cessation of all spontaneous brain function of the pregnant patient … and if the life-sustaining treatment is enabling the unborn child to mature.” It would also require the attorney general to appoint a lawyer for the fetus.
Jeremy Newman with the Texas Home School Coalition also testified against removing the pregnancy exclusion provision, arguing that a pregnant person may not fully understand the advance directive law, or that she is “potentially signing a death warrant for her child without knowing what’s happening,” he said.
“You’ve made a decision over which life is more important. … You’ve made an assumption that women don’t contemplate these situations,” state Rep. Jessica Farrar (D-Houston) told Newman. “I find that demeaning as a woman.”
For last 18 months, Erick Muñoz and Marlise’s parents have vowed to work to change state law so that a similar situation doesn’t happen again.
“Please give families the opportunity to avoid the pain and suffering my family had to face,” Erick pleaded with committee members.
The House State Affairs Committee left the bill pending.
Anchia’s House Bill 537 was heard by the State Affairs Committee last month but remains stalled there due to a lack of support among members. On Wednesday, Anchia used a rare point of privilege, which he said was his first in six terms in the Legislature, to address the bill on the floor.
Anchia said the bill, which he’s carried four times, is always well-received in committee, and the author of the law the measure seeks to overturn, former state Rep. Will Hartnett (R-Dallas), has acknowledged it should be changed.
“Yet year after year these bills languish because of outside pressure from groups that lie to you and tell you the bill does something it doesn’t do,” Anchia said, referring to opposition to HB 537 from the anti-LGBT group Texas Values. “Regardless of how you feel about a kid’s parents, you’re always good to the kid. They didn’t pick their parents, but those are the parents they have, and you know, those are the parents they love, and they deserve accurate birth certificates. We can do better than this. Texas is better than this.”
Rep. Byron Cook (R-Corsicana) then requested that Anchia’s remarks be recorded in the House Journal.
Cook, who chairs State Affairs, made headlines when he smacked down a witness from Texas Values during a hearing on the bill.
“I just want everybody to know that I support what we’re trying to do here for these kids,” Cook said on the floor Wednesday.
Meanwhile, the House Committee on Juvenile Justice and Family Issues was set to consider HB 3864, by Rep. Scott Sanford (R-McKinney), which would allow child welfare agencies that contract with the state to discriminate based on sincerely held religious beliefs.
Another anti-LGBT measure, HB 2801, by Rep. Gilbert Peña (R-Pasadena), was temporarily pulled from consideration in State Affairs on Wednesday. The Associated Press reported that Cook told Peña the committee wouldn’t consider the bill until it’s “toned down.”
Also on Wednesday, a bill calling for a study on homeless youth, up to 40 percent of whom are believed to be LGBT, passed the House on second reading. HB 679, by Rep. Sylvester Turner (D-Houston), is supported by Equality Texas.
School district officials, researchers and education advocates had a week to study the school finance reforms proposed by House Public Education Chairman Jimmie Don Aycock before bringing their opinions to his committee on Tuesday night.
Most began the way Drew Scheberle, an Austin Chamber of Commerce official, did: “Thank you.” Thanks for the $3 billion more for public schools, they told Aycock, and thanks for tackling the messy school finance system at all. In the past, lawmakers have rarely done so without a court ruling forcing their hands.
Houston ISD trustee Rhonda Skillern-Jones appreciated that House Bill 1759 would save her district from a looming $200 million tab owed under the current “Robin Hood” recapture law. Others appreciated that it would begin funding career and technical education sooner, beginning in the eighth grade.
But the biggest change Aycock proposes is the elimination of the Cost of Education Index (CEI), which steers more funding to urban and high-poverty districts to pay for higher teacher salaries. In the last few weeks, Aycock has stressed that the index is hopelessly outdated—it was created in 1991 and hasn’t been updated since—and nobody argued that point Tuesday night. But many weren’t willing to simply let it go.
“The underlying premise of the CEI is undeniably sound,” said Lori Taylor of the Bush School of Government and Public Service at Texas A&M University, who has conducted a series of studies since 2000 on how the Legislature could update the index to reflect current costs.
Former state Rep. Paul Colbert (D-Houston), a school finance leader in the ‘80s and ‘90s, agreed that while the index is flawed, its purpose—steering more money to urban and high-poverty districts that must pay higher salaries—is still vital. “You can’t just do away with it and pretend the problem doesn’t exist. You’re merely not addressing an uncontrollable cost,” Colbert said. “And that’s not equitable.”
Aycock agreed the change would affect districts unevenly; changing any piece of the school finance system creates winners and losers. Aycock has said he’s trying to minimize the pain of simplifying the system. “The party that gets hit the worst removing the CEI is the Valley area,” he noted at one point last night.
“How do we fix that?” wondered Rep. Alma Allen (D-Houston).
“I don’t know that I can,” Aycock told her. “I’ve done everything I think I can to fix that.”
Any talk about making the system more or less equitable conjures the specter of the school finance lawsuit that’s now before the Texas Supreme Court. Should Aycock’s proposal pass, nobody knows how it might affect the case, which hinged on, among other questions, whether the funding system is fair and adequate.
Aycock has suggested his bill would improve equity by moving more districts closer to the state average of per-student funding. But it would also enrich wealthy districts more than poor districts, which some analysts last night noted was basically the opposite of equity. San Antonio’s Edgewood ISD, with 96 percent students are from low-income families, would gain $171 per student under Aycock’s bill, while nearby Alamo Heights—with 22 percent low-income students—would gain $469. In South Texas, Los Fresnos CISD would gain $54 per student while the wealthier Point Isabel ISD. which includes South Padre Island, would gain $289.
Analysts outside the Capitol realm have noted these disparities too. Bellwether Education Partners analyst Jennifer Schiess recently told Education Week that Aycock’s bill “isn’t negative on equity. It just doesn’t move very far.” Schiess wonders whether such modest improvement is truly worth the fight.
Representatives from the Mexican American Legal Defense and Educational Fund, the Center for Public Policy Priorities and the Intercultural Development Research Association urged the committee to focus on steering money to students who need it most, and to follow Travis County District Judge John Dietz’s suggestion last year by updating the adjustments for poor students and those with limited English. Like the CEI, those weights have been untouched for decades.
Rep. Mary Gonzalez (D-El Paso), who has co-authored a bill that would require a “comprehensive review” of those expenses, asked Aycock to run cost estimates of an updated CEI and an increased weight for bilingual education, and how they might fit within his plan. “I do think we want to talk about, in what ways does this bill increase or decrease equity?” she said.
Aycock has described his bill as part of a broad, ongoing conversation about reforming school finance in Texas. But last night, Aycock said he was interested only in how to partition the $3 billion already on the table, without spending any more. As the night went on, lawmakers seemed less interested in a comprehensive school finance debate. Rep. Dan Huberty (R-Houston) cut off CPPP analyst Chandra Villanueva after she raised concerns about the equity issues the bill left unresolved.
She pointed out that the bill’s elimination of the CEI could also have unintended effects on poor and urban districts. Because CEI is also used to calculate a district’s weighted attendance, eliminating CEI would hit some schools twice: once in their per-student allotment, and again in the number of students the state funds.
When lawmakers sounded unswayed, she offered, “I have a chart.”
“Everybody has a chart,” replied Rep. Ken King (R-Canadian). “One thing I know is that whoever wrote it, you can make it say whatever.”
Mike Baldree, superintendent of Leon ISD, a property-rich East Texas district, reflected the ambivalence—if not the mood, exactly—of much of the public testimony. Baldree wasn’t thrilled about everything the bill would do to the system, but he was grateful to have some relief from an old funding mechanism set to expire in 2018 that would cut 34 percent of his district’s funding without some action by the Legislature.
“For me, it’s kinda like kissing my sister,” Baldree said. “It’s wet and it don’t have a whole lot of kick, but it’s good for me.”
As laughter spread through the room, King thanked Baldree: “I want to say I appreciate your comments, because I am not the biggest redneck here.”
I have a friend who would happily watch a two-hour industrial film about warehouse safety if Wes Anderson directed it. That’s how deeply he’s convinced that the director’s vocabulary was created to speak to him especially. Every slow-motion scene set to a song from the ’60s, every fussy bit of dollhouse set design, every delicately composed static shot, every whooshing horizontal tracking shot, every deadpan exchange: My friend believes it’s his language Anderson is speaking. Even regarding the films he can admit are misfires, his devotion remains intact. His love is unconditional. It transcends petty distinctions between good and bad.
There may be fewer of us who see and hear in Bob Byington’s cinematic language that same sort of very personal familiarity, that sense of connectedness, but we exist. We’re a small cult, but an avid one.
Over the last decade, as Robert Rodriguez, Richard Linklater and the Duplass brothers have risen to Hollywood’s heights, their fellow Austinite Byington has remained just to the side of success, quietly shooting four features over the last seven years. He’s a marginal figure revered by those who’ve discovered him, but not quite able or willing to break into the mainstream. To fans, this obscurity is part of Byington’s appeal. We feel like we’re in on a secret.
Considering how compelling a filmmaker Byington is, his relegation to cult status must be due to the attitudes of his heroes, who are sarcastic, acerbic and contemptuous of just about everything. The title character, “RSO,” in Registered Sex Offender; Harmony in Harmony and Me; Max in Somebody Up There Likes Me—they all use sarcasm to keep the world at arm’s length and mockery as a tool of self-defense, lashing out and blowing off. Byington’s white, male, shaggy-headed hipsters live to provoke.
Larry, the hero of Byington’s latest feature, 7 Chinese Brothers, which had its world premiere last month at South by Southwest, is no different. Larry, played by Jason Schwartzman, is the perfect embodiment of the Byington protagonist: mocking, mordant and full of biting contempt for the world. Fired from his job at a chain Italian restaurant for stealing and boozing, Larry starts working at a nearby lube shop, where he shows his affection for his new boss the only way he knows how: by ceaselessly antagonizing her. He’s the same with his best friend, his co-workers, even his grandmother.
Arguably the most cynical of Byington’s films, 7 Chinese Brothers is a character study of a young man in a slow collapse of his own making. To Larry, social conventions are lies best lampooned or ignored—so what if they lead to compassion or intimacy or human connection? He dismisses everything that everyone else holds dear: work, sex, money, family, tradition. But his attacks are just masks for depression, a thousand and one mirrors deflecting light and love.
Somehow, despite Larry’s faults, we keep rooting for him. Much of the credit for this goes to Schwartzman, who proves once and for all that he’s incapable of being unlikable (though he’s trying his best). But making unsympathetic characters relatable is a skill Byington has been cultivating since 2008’s Registered Sex Offender, which dared viewers to not hate an unrepentant pedophile. What redeems Byington and his heroes is his idiosyncratically deadpan sense of humor and elliptical, episodic approach to storytelling—in other words, his singular voice. Byington defies any number of filmmaking conventions, such as, say, narrative arc. His movies are more like collections of ironic koans than stories, inscrutable shrugs that, taken together, add up to something meaningful, even if it’s hard to put your finger on just what the meaning might be.
It takes a particular talent and a special aesthetic conviction to devise your own language as a filmmaker and to call on that language in every one of your films, so that each is unmistakably yours. As a movie fan, there’s nothing quite as rewarding as entering the world of an artist who has accomplished this, who owns a distinctive voice that gets richer and more varied with each film. Bob Byington, quietly, and mostly under Hollywood’s radar, has spent the last decade constructing a universe of comic misanthropy that could be mistaken for no one else’s.
Lela Lofton, right, and Amanda Renfro in an overnight protest against attempts to curtail local control of fracking.
Despite vociferous opposition from local elected officials, environmentalists and citizens, many Democrats in the Texas Legislature are supporting controversial legislation that would strip local governments of the power to regulate or ban fracking.
House Bill 40, by Rep. Drew Darby (R-San Angelo), is one of 11 measures in the Legislature filed in response to a fracking ban approved by Denton voters in November. Darby’s bill, which was temporarily delayed on Tuesday, would overturn Denton’s fracking ban, Dallas’ de facto prohibition on drilling and other cities’ oil and gas regulations, possibly even rules about the distance between rigs and homes not deemed “reasonable.”
Rep. Senfronia Thompson, a progressive Democrat and the longest-serving woman legislator in the House, is one of eight Democrats sponsoring the legislation.
“I think that fracking is a safe mechanism, which they can use to be able to extract oil,” she said. Asked about the practical impact of the bill and whether it would allow oil and gas companies to challenge ordinances they don’t deem “reasonable,” Thompson said, “You’re asking me a legal question, and I haven’t had oil and gas law since I was in law school.”
Most of the Democrats who signed onto HB 40 are from areas that don’t contend with the hazards of urban drilling: earthquakes, noise, pipelines through yards and air and water pollution. None are from North Texas, where drilling rigs and other oil-and-gas infrastructure often sits uncomfortably close to homes, churches and businesses.
“The cities are the ones who are truly affected, and we’re taking that out of their hands and saying that we’re going to be the ones doing it?” said Rep. Nicole Collier, a Democrat from Fort Worth who plans to vote against HB 40. “They’re the ones who have to answer every day, and we’re taking that out of their hands.”
On Monday night, activists set up a 15-foot mock drilling rig outside the Capitol and staged an all-night vigil in preparation for the vote that was expected to happen Tuesday. A technical error forced legislators to postpone HB 40, which likely will be back on the floor as soon as Friday.
Collier said she hopes to add a provision to the bill that would reimburse cities for costs associated with accidents, such as the leaking gas well that led to an evacuation of hundreds of Arlington residents over the weekend. But the Texas Municipal League, the Texas Oil and Gas Association and Darby have pledged to support the current version of the bill and oppose any changes. The municipal league, which represents local government, wrote on its website that “it’s nearly certain that further amendments to the bill would make it worse instead of better.”
In the Senate, a similar bill was unanimously voted out of committee in March. Two Democrats, Sen. Judith Zaffirini (D-Laredo) and Sen. Carlos Uresti (D-San Antonio) voted for SB 1165. Zaffirini represents a portion of the Eagle Ford Shale, one of the most active shale plays in the world. She chairs the booster-ish Eagle Ford Shale Legislative Caucus.
Why would Democrats, who’ve complained all session that Republicans are eroding the long Texas tradition of local control, support HB 40?
“Because they can and not have any harm,” Collier said, referring to blowback from constituents.
Former Fort Worth state Rep. Lon Burnam, now a volunteer lobbyist with Public Citizen, had some tough words for his former colleagues. “These people have been here too long and have become jaded,” he said.
He said Democratic support for overturning fracking regulations is testament to the financial power of the oil and gas industry. Oil and gas interests donated $5.5 million to legislators in the 2014 cycle, according to a recent Texans for Public Justice report, about 17 cents of every dollar contributed during that period.
Environmentalists complain that banning fracking bans not only endangers the health and safety of citizens but also constitutes an assault on local democracy. If passed, HB 40 would overturn the Denton and Dallas measures that ban fracking. It’s also expected to invalidate many other municipalities’ ordinances governing fracking.
Supporters of the bill, backed by the power and money of the Texas oil and gas industry, argue that the Railroad Commission’s authority to regulate oil and gas operations preempts local governments from being able to ban or otherwise impede the practice.
The bill uses broad and convoluted language to describe allowable city ordinances. Only “commercially reasonable” laws pass muster. Cities also could only set rules for activities “at or above the surface of the ground”—the bill specifically mentions noise, lights, traffic and fire and emergency response—and the rules couldn’t prohibit a “reasonably prudent operator” from extracting oil or gas. Ordinances that have been in effect for five years and have allowed “oil and gas operations … to continue during that period” would generally be considered “commercially reasonable.” Got all that?
Opponents argue that industry attorneys will use the language to topple any rule they don’t like and take down established ordinances wherever they like.
Andrew Dobbs, who organized the Monday night vigil for Texas Campaign for the Environment, said he was frustrated to see Democrats playing along.
“I hear Democrats in this state say all the time, ‘If only we could get people to go out and vote for us, if only people didn’t stay home on Election Day,’ and then they go and do stuff like this and they wonder why people don’t want to vote for them,” he said.
Rep. Ron Reynolds speaks during Freedom Advocacy Day on the north steps of the Capitol on Monday.
Monday’s Freedom Advocacy Day at the Texas Capitol couldn’t have come at a more critical time.
With two anti-LGBT bills scheduled for hearings this week, hundreds of gay-rights supporters rallied on the north steps before fanning out to lawmakers’ offices during the lobby day organized by Equality Texas.
Rep. Ron Reynolds (D-Missouri City), who spoke at the rally, drew parallels to the civil rights movement, saying that just like racial bias, discrimination based on sexual orientation and gender identity is “dead wrong.”
“We must have that same commitment, that same fire and determination, that those civil rights workers had,” Reynolds said. “They were willing to do anything, no matter what it took, to make sure they eradicated those discriminatory laws.”
With several attendees holding signs saying, “Don’t Indiana My Texas,” Reynolds also referenced backlash from major corporations over an anti-LGBT religious freedom law in the Hoosier State.
“People came forward from all over America to stand up against bigotry, and we have to do that same thing in Texas,” he said.
Republican lawmakers have introduced a record 22 anti-LGBT bills in the 84th Texas Legislature, but thus far only two dealing with same-sex marriage, an issue likely to be settled by the U.S. Supreme Court, have had hearings. And with fewer than 50 days remaining before sine die, time may be running out.
“Once you’re a couple of weeks past Easter, you’re in danger of not passing your bill,” said Rep. Celia Israel (D-Austin). “This week, maybe next week, if you haven’t at least had a hearing, then you’re in trouble.”
House Bill 2801, by Rep. Gilbert Peña (R-Pasadena), which would prohibit schools from allowing students to use restrooms and similar facilities according to their gender identity, will be heard Wednesday by the House Committee on State Affairs. House Bill 3864, by Rep. Scott Sanford (R-McKinney), which would allow child welfare providers that contract with the state to discriminate based on sincerely held religious beliefs, will be heard Wednesday by the House Committee on Juvenile Justice & Family Issues.
Peña, who previously said the goal of HB 2801 is protecting students’ privacy, refused to further discuss the bill this week. Sanford didn’t respond to messages seeking comment about HB 3864.
Chuck Smith, executive director of Equality Texas, said he believes HB 3864 is designed to allow faith-based adoption and foster care agencies to refuse to place children with gay parents. But he said the bill is written so broadly that it would sanction discrimination based on a variety of factors, including minority religious beliefs, and even against children themselves.
“I think it points to the level of extremes that we’re reaching if in fact, in the interests of so-called religious freedom, we’re actually targeting children and youth in our state, and that I think is despicable and not a place where we want to go,” Smith said.
Smith said HB 2801 would take decisions about restroom use by transgender students out of the hands of educators, who are currently addressing it on a school-by-school and district-by-district basis. Under the bill, schools would be liable for damages if they allow transgender students to use restrooms according to how they identify.
“This legislation amounts to bullying and harassment of transgender students to the point of placing a bounty on their heads for them to be turned in for using a restroom,” Smith said.
Kenneth D. Upton Jr., senior counsel at the LGBT civil rights group Lambda Legal, said HB 2801 would run afoul of Title IX, which the U.S. Department of Education has said prohibits discrimination based on gender identity in schools.
Israel noted that even if the bills clear committee, she helped derail two anti-LGBT budget amendments on the House floor two weeks ago.
“If the budget night was any indicator, some of my colleagues who identity themselves as Republican don’t want to have these kinds of battles any more than we do,” Israel said.
Watch speeches from Monday’s rally by Reynolds and openly LGBT Rep. Mary Gonzalez (D-El Paso) below.