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Political Intelligence

Bernie Sanders
Vermont Sen. Bernie Sanders, photographed at Serranos restaurant in Austin after a Q&A luncheon with potential donors and supporters of his possible presidential primary run.

 

There’s one question Democrats face as they head into the 2016 presidential election. How should they feel about Hillary Clinton? The coalition Barack Obama built happily came out to vote in his two presidential elections, but turnout was pathetic in 2010 and 2014 when he wasn’t on the ticket. Clinton’s ability to inherit that coalition is debatable.

Some of the party’s faithful just want to maximize their chances of taking a third consecutive term, and they think the Clintons’ careful and calculated brand of center-left politics is the thing to do it. Others are antsy. They’ve seen the GOP’s far right drag their party to them with great success, and they want someone to subject Clinton to the same type of pressures. But they need a candidate. Elizabeth Warren has declined to run, and Martin O’Malley is a ball of ambition.

Enter U.S. Sen. Bernie Sanders (I-Vermont), Congress’ sole self-avowed socialist, who came through Texas at the beginning of April in the middle of a cross-country trip whose purpose, he said, was to judge the energies of the left and to raise money in anticipation of a possible primary run against Clinton. Sanders would be as unusual a candidate as we’ve seen in America for quite some time. He’s not quite a Dennis Kucinich or a Mike Gravel, but it’s not that he’s setting out to win either. His self-proclaimed models are people such as Jesse Jackson and Howard Dean, who ran and lost, but inspired future political activists.

Obama’s 2008 campaign, Sanders told the Observer at an Austin Tex-Mex restaurant, “will go down in history as one of the great campaigns ever run.” But, he continued, “the day after the election, he said, ‘Thank you for electing me, but I think I can go on from here without you. I do not need the millions of people who were actively involved in my campaign.’” The kind of change the left wants, he said, is not possible without “mass organized activity” of the kind that has not existed in the country in some five decades—the kind Sanders experienced as a young man in the civil rights, anti-war and kibbutz movements.

As he talks, he has the feel of a radical giving it one last college try. But his reception in Austin was decidedly warm. In addition to small venues—he spoke to a union hall—he gave the keynote at one of the Travis County Democratic Party’s main annual fundraisers. Outside, his communications director, a silver-haired former Chicago newspaperman who dimly recalls his last trip to Texas some decades ago, marvels at the previous day’s turnout: He calls it a “field of dreams” moment.

Inside, Sanders, with a mishmash accent that’s part Brooklyn and part New England, speaks in front of a giant Texas flag. “The biggest problem this country faces,” he tells the crowd, “is that we don’t talk about our serious problems.” He gives a 20-minute lecture on rising economic inequality, student debt, Wall Street and America’s diminishing middle class. He’s treated to an unusual number of standing ovations for a speech so filled with numbers. It’s not exactly Ronald Reagan’s “morning in America,” but it’s a tune a lot of Democrats will feel pulled to sing along to.

Leticia Van De Putte
Courtesy of leticiaformayor.com

When Leticia Van De Putte ran for Lieutenant Governor, she was beloved by the Texas Democrats. She was a long shot, with a fraction of the resources allocated to her ticket mate Wendy Davis and to her opponent, Dan Patrick. A better retail candidate than either, Van de Putte was forced to rely on free media and a statewide bus tour that never gained much traction. But to her supporters, she furthered her mythic status.

Now, the tables are turned. Shortly after losing the election, Van de Putte dropped off of her longtime perch in the Senate to run for mayor of San Antonio. She’s no longer a fearless underdog: At the beginning of the race, her name recognition and ability to raise money seemed to make her a formidable challenger for the city’s top job—perhaps, for her three opponents, prohibitively so. And yet Van de Putte has struggled mightily, partly because of that dominance.

In the run-up to the May 9 election, likely to result in a runoff, the former state senator fired virtually her entire campaign staff, something campaigns usually avoid at all costs to avoid the perception of panic. But it’s her attempt to play her biggest trump card—using her state campaign account, flush with money from the lieutenant governor race—that’s caused the most consternation in San Antonio.

The Alamo City has fairly strict campaign finance laws for municipal races, including a $1,000 limit on donations from individuals. That’s decidedly unlike laws for statewide races, in which pretty much anything goes. Van de Putte’s opponents—former state Rep. Mike Villarreal, current mayor Ivy Taylor, and county commissioner Tommy Adkisson—have always had to raise money with these restrictions. Villarreal transferred a small amount of money from his statewide account, but took special steps outlined in the law to ensure that the contribution limit was not violated, including sending money past the limit back to his donors.

So when Van de Putte announced in the last week of March that she would be rolling over roughly $300,000 from her statewide account to her municipal campaign, heads turned. That’s a hugely consequential amount of money in the context of a mayoral race, and Van de Putte’s campaign initially declared that it would take none of the steps Villarreal did to ensure strict compliance with San Antonio law. That provoked a lot of bluster from her opponents. Adkisson and Villarreal, generally presumed to be in third and fourth place as the campaign rolls on, held a joint press conference in which an Adkisson strategist called the plan a “money laundering scheme.” Villarreal later filed an ethics complaint.

The bid to drown her opponents in statewide money absolutely violated the spirit, if not the letter, of San Antonio’s campaign finance law, and it became a story in itself. Like many Democrats who were desperate to beat Patrick, Villarreal gave $25,000 to Van de Putte’s lieutenant governor campaign. Was Van de Putte raising money for her statewide account in the closing weeks of her race, when victory was clearly out of her grasp, knowing that she’d use it to run for mayor?

Eventually, Van de Putte retreated under pressure. She would apply the same strict scrutiny Villarreal had used to her own funds. She’ll only be able to use about half of the $300,000 now—still a consequential amount. But the strangely ill-considered attempt poses a question: Is Van de Putte acting from a position of strength, or weakness?

Bad Bill: Forever Agenda 21

Molly White
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State Rep. Molly White (R-Belton)

In 1992, the United Nations adopted a nonbinding sustainable development plan called Agenda 21. Then-President George H.W. Bush, along with several dozen other heads of state, signed the plan.

In addition to promoting environmental conservation, Agenda 21 aims to combat poverty and promote public health. Like many U.N. initiatives, it contains lots of high-minded ideas, but not much in the way of an enforceable plan of action.

But according to a growing number of Texans, Agenda 21 represents something more sinister: a plan for U.N. global domination via a Soviet-style world government.

State Sen. Bob Hall (R-Edgewood) and state Rep. Molly White (R-Belton) have filed identical bills that take aim at the program. Their efforts suggest that outrageous anti-Agenda 21 conspiracy theories aren’t confined to the lunatic fringe. (Or perhaps that the far-right wing of the Texas GOP may actually be the lunatic fringe.)

The bills would forbid any government entity from accepting money from, giving money to, or entering into a contract with any organization implementing Agenda 21 programs. The effect of the legislation remains unclear.

Michael Barkun, a Syracuse University political science professor and author of several books about conspiracy theories, says that Agenda 21 is simply an innocuous, nonbinding declaration of environmental principles.

“People imbue to this program a degree of power that it simply doesn’t have,” Barkun says.

White disagrees. “Agenda 21 is an overreaching, anti-American, anti-individual-rights plan to globalize the world using the fictitious global warming theory,” she wrote in a February Facebook post.

Conspiracy theories often offer a very simple solution to a broad range of problems, Barkun says. There’s something comforting in the belief that a secretive organization is responsible for all the world’s ills, he said.

Hall’s office didn’t respond to multiple interview requests, but the Observer did speak with John Marler, a former Georgetown mayoral candidate who says he has had numerous discussions with Hall and has given him “tremendous input” regarding Agenda 21.

Marler described himself as one of the five leading national experts on the U.N. program.

“[Agenda 21] is developing a Soviet-style über-government,” he said. “If you take Russia for a perfect example … the government appoints panels that regulate all the way down to whether or not the toilets should flush.”

Of course, some have been trying to save Texas, and the nation, from the specter of U.N.-controlled, Soviet-style toilet-flushing panels since long before Texans elected White and Hall. Texans famously attacked U.N. Ambassador Adlai Stevenson on a 1963 visit to Dallas. And in the 1950s, Barkun said, popular Texas urban legend held that U.N. troops were amassed in Mexico preparing to invade.

“This fear of imminent occupation by the U.N. has been around virtually since the organization began,” he said, “but obviously Texas is not occupied by U.N. forces.”

covenant marriage
Flickr/Juan Antonio Capó Alonso

Wedding vows not good enough for you? State Rep. James White (R-Woodville) has filed legislation that would allow some brides and grooms to one-up regular marriages by choosing to enter into a “covenant marriage.” House Bill 547 isn’t meant to disparage non-covenant marriages, White says.

“A covenant is an agreement not only between two mortal beings, a man and a woman, but it’s also a covenant between a man and a woman and God,” White said. (No same-sex marriages allowed, but throuples are apparently OK as long as they include a higher power.)

A couple who wants to enter a covenant with God will have to participate in premarital counseling, read a pamphlet and swear in an affidavit that they will take “all reasonable efforts to preserve” their marriage. That includes more counseling and a two-year period of legal separation before filing for divorce.

It’s not impossible to get divorced if you’re covenant-married; it’s just really, really difficult. The affidavit warns the couple:  “We understand that we can get divorced or separated only for a reason stated in the pamphlet on covenant marriage.”

Adultery, abandonment and abuse are get-out-of-marriage-free cards. So are felony charges.

(You can’t incriminate your spouse just to get a divorce. The bill stipulates that courts cannot order a legal separation if a spouse is convicted of a felony “solely on the testimony of the other spouse.”)

The bill would require only Hardin County to grant covenant marriages. It would allow other counties to offer covenant marriages if they choose. In previous sessions, covenant marriage bills have died in committee.

State Rep. James White
via Facebook
State Rep. James White

White says business leaders and clergy in Hardin County have lobbied for the covenant marriage option in the hope that “stronger families” will improve the community’s quality of life by averting many of the problems that weak families supposedly present to schoolteachers and police officers. Two parents, theoretically, are better at watching out for school-skippers (or meth-lab builders) than one.

“Families who are intact tend to weather economic challenges better than other scenarios,” White said.

Will contractual obligations save Texas families and cure society’s ills? Those who opt for a covenant marriage are likely to be members of religious groups that strongly discourage divorce, and already take the idea of marriage seriously. Most of the churches in Hardin County are Southern Baptist or evangelical denominations.

Louisiana was the first state to establish covenant marriage in 1997, expecting that it would lower the state’s divorce rate. But covenant marriages made up only 1 percent of all marriages that first year. Ten years later, that figure rose to nearly 2 percent. Louisiana has one of the higher divorce rates in the country, as does Texas.

But covenant marriages aren’t just ineffectual; they’re also potentially harmful to vulnerable populations. The stipulations for claiming abuse as a reason for divorce, as outlined in the bill, are particularly problematic. A spouse must report the domestic abuse to a law enforcement agency and file for a protective order.

It seems likely that lawmakers, many of whom are working on second and third marriages, may have a simple response to this bill: “I don’t.”

Kory Watkins open carry
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Kory Watkins

When the NRA shifted its focus from supporting hobbyists to political action in the late 1970s, the gun-rights cause fit neatly within a new Republican ethos. The gun came to symbolize something greater than itself; it became the nucleus of a complete worldview. NRA members styled themselves as self-sufficient, tough on crime, pro-police, hawkish on foreign policy, and the keepers of family traditions. By closely associating themselves with the Republican Party, they’ve found great success.

The same cannot be said for the marauding gun activists that have besieged the Texas Capitol in recent weeks. Seeking the right to carry guns openly in public, without a license, they’ve taken a Legislature that’s pretty sympathetic to their cause and pushed it to the breaking point. Before the session started, it seemed certain that open-carry legislation would pass in some form, but as time goes on, the chances seem increasingly slight.

One reason for that is the tactics employed by the gun-rights crew. C.J. Grisham, who leads Open Carry Texas, has sought to win support the right way: building public pressure, then establishing relationships with legislators. But Kory Watkins, the head of the splinter group Open Carry Tarrant County, has soiled Grisham’s nest. State Rep. Poncho Nevárez (D-Eagle Pass) had to accept a Department of Public Safety security detail after Watkins and friends refused to leave his office following a verbal confrontation on the first day of the session. Lately, Watkins has been keen to warn lawmakers that they’re disregarding the Constitution, and to remind them that the “punishment for treason is death.” But the reason open carry isn’t gaining as much traction as it should goes beyond Watkins’ well-publicized screw-ups. The open-carry guys speak a slightly different language than the last generation of gun nuts, and it’s a language that sounds pretty foreign in the halls of the Capitol. Watkins and many of the open-carry activists are fed not by talk radio but by the conspiracy-libertarian wing typified by Alex Jones, who’s spoken at open-carry rallies in the past. Most of them are young, white and male, and you’d be more likely to see them on Reddit than at a hunting lease.

Some have criminal backgrounds, but many of them just seem like frustrated young men who see the ownership and display of firearms as a kind of empowerment they’re not getting elsewhere. Watkins, who’s almost never seen without a men’s rights-style fedora, is anti-war and anti-police; he got arrested in Fort Worth last year for hassling cops. None of that plays well at the Capitol. Politics is tribal, and many of the open-carry guys are members of the wrong tribe. So it seems increasingly unlikely they’ll get what they most want: unlicensed open carry. Even some of the most conservative new legislators are admitting it’s DOA, as is Joan Huffman, who leads the Senate committee considering the bills. Will the alienated libertarians learn to play with others in time to get a juicy consolation prize?

Jani Maselli Wood court fees
Harris County Public Defender's Office
Jani Maselli Wood, assistant public defender in Harris County

In Houston, one attorney is making real change by quibbling over loose change.

Jani Maselli Wood, an assistant public defender in Harris County, is waging a one-woman war against the way Texas uses the hundreds of different fees it collects from people involved in the criminal justice system. Most recently, Texas’ 1st Court of Appeals agreed with Wood that the $250 “DNA record fee” charged to her client was unconstitutional because the state splits that money between the highway fund and the general fund for criminal justice planning. Neither pot pays directly for the expense of trying a criminal case—ostensibly the purpose of court costs. Wood successfully argued that the $250 constitutes an unlawful tax.

That’s no small potatoes for an individual—especially for the indigent clients Wood represents, since $250 is almost a full week’s pay at minimum wage. But Wood has also gone to bat over 34 cents. “Obviously, it’s 34 cents for [my client], but how much is it across the state?” she says. “It’s just not right, so I keep chipping away.”

Those chips add up. Court costs and fees contribute hundreds of millions of dollars a year that lawmakers rely on to accomplish the one task they’re constitutionally obligated to complete during their brief biennial parley: passing a budget. A 2014 study by the Office of Court Administration identified 143 distinct criminal court costs and 211 different civil fees on the books that funneled more than $350 million into the state kitty, more than a quarter of which went to the general fund—which is to say, not to courts. In fact, some mandated expenses, such as providing support for county indigent defense programs, are paid entirely out of fees rather than the general revenue fund. That’s one way legislators keep from raising taxes. The poor, who are disproportionately affected by the criminal justice system, end up footing the bill.

Case law requires that court fees be used for their stated purpose, but the Office of Court Administration review found that 14 fees didn’t even have a named purpose. Many more fees were imposed by statutes that suggested a purpose but didn’t restrict the money’s use to it. In other words, court costs are a ripe area for constitutional challenge.

So why is Wood’s crusade, so far, so lonely? Because court cost constitutionality is not a very lucrative area of law. “I could not do this sort of litigation if I was in private practice,” Wood says. “No client would pay me to do it. And no judge would pay me to do it if I was court appointed.” But her employer, the Harris County public defender, is on board. “My boss is very supportive of impact litigation and systemic change.”

Before Wood’s efforts, many courts wouldn’t even provide an itemized bill of what citizens were being charged. Now, every case she wins builds legal precedent for improved honesty in budgeting.

The state, as it usually does when it loses, appealed the 1st Court ruling to the Court of Criminal Appeals, Texas’ highest court for criminal cases. Their ruling is likely months away. But Wood isn’t slowing down. She says, “I told my husband, it’s probably going to be a decade before I’m done.”

cupcake amnesty
Reshma Kirpalani / Austin American-Statesman
Texas Agriculture Commissioner Sid Miller bites into a cupcake during a January press conference in Austin.

In his first big act as Texas agriculture commissioner, with reporters gathered ’round to record the moment, former state Rep. Sid Miller pardoned, and then ate, a pink-frosted cupcake.

Miller’s lighthearted “cupcake amnesty” press conference, a folksy affair with beloved Austin food trailer Hey Cupcake! as a backdrop, was a big hit on the evening news. The story spread fast that, thanks to the intervention of Miller’s nanny-state-bustin’ agriculture department, Texas parents were free at last to send their kids to school with birthday cake for the class. Miller also promised to repeal state bans on deep fryers in cafeteria kitchens and on soda sales at public schools.

“We’ve been raising big, strapping, healthy young kids here in Texas for 200 years,” Miller said, “and we don’t need Washington, D.C., telling us how to do it.”

The whole spectacle was typical Miller. Before losing his state House seat in the 2012 GOP primary, the Stephenville rancher and tree farmer was best known as the author of red-meat fare like Texas’ pre-abortion sonogram law and a bill sanctioning the sporting practice known as “pork-chopping” (shooting feral hogs from a helicopter). Rather than dwell too much on agriculture in his latest campaign, Miller reminded voters of his work defunding the “abortion industry,” named Ted Nugent his campaign treasurer, and even managed to call the Civil War “the War of Northern Aggression.”

The cupcake decree was a fitting reminder that Miller—white hat, gleaming grin and all—has returned to taunt Texas liberals again. But as reporters quickly realized, there was little of substance in his announcement. Texas had not, in fact, ever banned cupcakes brought from home to school. And the rule change behind Miller’s announcement took place April 2014, months before Miller was even elected. Last year, under former commissioner Todd Staples, the department repealed the 10-year-old Texas Public School Nutrition Policy because new federal rules for school lunch and food sold at fundraisers had made the state’s policies redundant.

“In other words,” as Houston child nutrition advocate Bettina Elias Siegel wrote in January, “the ‘repeal’ characterized by Mr. Miller as somehow courageously bucking restrictive regulations was actually a show of appropriate deference by our state to the federal government.”

On her blog, “The Lunch Tray,” Siegel struggled to make sense of Miller’s announcement—not only his taking credit for a change he had nothing to do with, but worse, his plans to further peel back nutrition safeguards in the name of local control. “To encourage deep-fat frying and soda and cupcakes is so shockingly backward thinking,” Siegel tells the Observer.

What’s most troubling about Miller’s announcement, Siegel says, is that his department is the one tasked with enforcing those federal regulations he deems so unnecessary. On Miller’s watch, the ag department “could essentially gut [the federal rules] through failure to enforce. And that’s really worrisome to me.”

Spokesman Bryan Black told the Observer that won’t happen; the department, he says, is still “required to comply with all federal regulations.”

But Miller sounds committed to getting around as much of that regulation as possible. Even though 16 percent of Texas’ “big, strapping” high schoolers are obese—a rate that’s higher than the national average, and even worse for low-income, Hispanic and African-American children—Miller takes Texas’ persistent childhood obesity as a sign of government ineptitude.

“These rules were put in 10 years ago, and those figures haven’t gotten any better,” he explained to Tucker Carlson of Fox and Friends. “Government intervention hasn’t worked. But individual responsibility, local control, is what works.”

Families in the hall at the notorious T. Don Hutto family detention center
Department of Homeland Security
Families in the hall at the notorious T. Don Hutto family detention center

Ever since thousands of Central Americans sought asylum in Texas last summer, the White House has been trying to stop other families from doing the same. One of its most controversial tactics is to lock up asylum-seeking women and children in detention facilities and charge such high immigration bonds that they can’t get out. Eventually, the mothers become desperate, give up their asylum claims and agree to be deported.

The United States has recognized valid asylum claims under international conventions and treaties since World War II. But the government’s treatment of the families currently detained in Texas defies basic U.S. asylum law, says Jonathan Ryan, executive director of the Refugee and Immigrant Center for Education and Legal Services, or RAICES, a San Antonio nonprofit assisting women and children in detention facilities in Karnes City and Dilley in South Texas.

“This is about politics, not about the law,” Ryan says. “I’ve never seen them apply such high bonds. It’s not only unusual, it’s extraordinary.”

It’s also inconsistent, says Ryan: “Single men who were taken into detention are given bonds of $1,500 but the women are being given bonds as high as $5,000 up to $15,000.”

Faced with impossibly high bonds, most women have no choice but to remain locked up with their children for several months, waiting for their court date with the asylum judge. Faced with this grim scenario many accept deportation instead.

RAICES is trying to change that. In October, it started a fund to raise money from individuals and from religious and other groups to help women and children get out of detention on bond. So far, the organization has collected $82,000 and helped 21 families. Bond money goes to the U.S. Treasury, where it collects interest. If the family doesn’t report to immigration court, the money is forfeited, but otherwise, it returns to the person or group that donated it once the case resolves.

The important thing, Ryan says, is to give the families a chance to start their lives over without the fear of persecution or death that caused them to flee their countries. “These women and children are being treated as if they are a national security threat,” he says. “You have these private companies that are making a profit from keeping women and children in a box against their will until they can pay enough money to get out.”

The two detention facilities in South Texas are capable of holding up to 3,000 women and children. Ryan says RAICES has nearly depleted its bond funds and is trying to raise additional money to free more families. “You want to cry tears of joy every time a woman and her child is released,” he says. “What we are doing is just a drop in a bucket. There’s still so much more to be done.”

State Rep. Eric Johnson, D-Dallas
State Rep. Eric Johnson (D-Dallas) has filed a bill that would require licensing groups to tell applicants—specifically and in writing—what parts of their records prompted rejection. It would also give applicants a chance to petition their deniers in person.

A mere decade and a half into the new millennium, state lawmakers appear to be grasping a basic tenet of facilitating employment: If you want all your citizens to have jobs, maybe don’t prevent them from getting jobs.

Texas law requires occupational licenses for more than 500 trades ranging from athletic trainer to funeral director, a sprawling bureaucracy that affects almost one-third of the state workforce. While merely a hassle for some, licensing regulations can pose an insurmountable barrier to employment for the 4.7 million Texans who have criminal records. People convicted of any felony or of a misdemeanor involving “moral turpitude”—a scary-sounding category that encompasses crimes as minor as writing a bad check—are statutorily barred by many licensing bodies, usually without regard for how long ago the offense happened or whether it was related to the job in question. (Naturally there are a few weird exceptions. If convicted of an asbestos-related crime, you’re banned from asbestos work… for three years. That’ll teach you.) In addition to these explicit bans, many licensing groups have implicit policies of rejecting any applicant with a criminal record.

That hurts citizens who’ve done their time, but it also hurts the state. People who find stable work within the first year after incarceration are the least likely to re-offend, saving taxpayer money and preventing crime. They’re also less likely to need state assistance programs for their families’ survival.

State researchers have been pointing out the problems with occupational licensing systems since at least 2008, but now a bipartisan coalition of reformers looks poised to make real progress. With support from the conservative Smart on Crime coalition, state Rep. Eric Johnson (D-Dallas) has filed a bill that would require licensing groups to tell applicants—specifically and in writing—what parts of their records prompted rejection. It would also give applicants a chance to petition their deniers in person.

Johnson’s clever bill walks a fine line. While careful not to deprive the various governing bodies of their power or discretion, it inserts a couple of humanizing steps, making it harder to rubber-stamp the “NO” that ends the ambitions of so many Texans trying to rebuild their lives.

“We train people in prison with job skills to help them get on the right track and not get re-arrested,” Johnson said. “But if they are arbitrarily denied professional licenses then all of us—taxpayers, ex-offenders and communities—lose.”

“We know that every single year, 70,000 [Texans] leave prisons, and there’s no way that they’re going to be able to do everything that society expects them to do if they don’t have jobs,” says Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition. Licensing reform is “a win-win situation,” she says, “both for the economy but also for the families that they have to support, as well as for public safety outcomes. If they have jobs, they have hope. And if they have hope, they’re more likely to live like law-abiding citizens.”

Purple Zone merchandise on the shelves.
Tom Cochran
Merchandise on the shelves at the Purple Zone in Alpine, Texas, the subject of repeated raids by police looking for synthetic drugs.

From the spice-ravaged wilds of East Texas to the incense-dusted Panhandle plains, lawmakers headed to Austin this year vowing to snuff out synthetic drug sales once and for all. Stories about horrific overdoses, particularly among children, are common today in the small-town papers; in early January the Beaumont Enterprise reported that “a particularly vile batch” of synthetic drugs sent 50 people to the hospital over one week, suffering from hallucinations, extreme paranoia, violent outbursts and seizures. As state Sen. Kevin Eltife (R-Tyler) told the Longview News-Journal, “We need to do whatever it takes this legislative session to solve the problem.”

But what, exactly, will it take? Lawmakers thought they’d outlawed synthetic marijuana back in 2011, creating a new class of banned substances, and even banning chemical “analogs” similar to those listed in the law. But walk into the right gas station or head shop today, and you’ll still find foil pouches of “incense” with the same winking warnings that their contents are “not for human consumption.”

That’s partly a marketing issue; synthetic cannabinoids were unregulated for years, advertised as a legal high before the first federal and state bans took effect, and some shop owners may still think they’re legal. But it’s also a problem with the law—first because manufacturers can invent new chemical compounds faster than Texas’ biennial Legislature can add them to the banned list, and second, because the 2011 law only bans chemicals that “mimic the pharmacological effect” of natural marijuana.

That’s a judgment call that no lab chemist can make in court, says Texas District and County Attorneys Association spokesman Shannon Edmonds. “The lab folks say, ‘We can diagram this chemical compound for you, but we can’t tell you whether the effect was similar,’” Edmonds says.

Sen. Joan Huffman (R-Houston) proposed a fix in 2013, but her bill fell victim to a brutal sort of Capitol justice, killed by Democratic Rep. Ruth Jones McClendon because Huffman torpedoed an important bill of hers. This session, Huffman has filed new proposals to clean up the language and ban a few new chemicals. Lubbock Republican Sen. Charles Perry has a similar bill.

But for now, Texas has a 4-year-old ban on synthetic drugs that simply can’t hold up in court. “Although the laws on the books are in place, we have not been able to prosecute those cases,” says Harris County Assistant District Attorney Justin Wood, “because of the wording of the statute.”

Despite being worthless at trial, the ban has been invoked to justify raids on smoke shops, including Glass Dragon shops in Longview and the Purple Zone in Alpine (see our story “The Thin Purple Line” from July 2014), letting police confiscate merchandise from the shelves. Prosecutors can either drop the case or bluff their way to a guilty plea.

Other officials have gotten more creative. Houston and Lubbock have city ordinances restricting synthetic drug sales. In the Lubbock County District Attorney’s Office, chief investigator Todd Smith says they focus on enforcing labeling requirements—like the contents’ weight and a list of ingredients—that most spice packets don’t meet. But if manufacturers start labeling their packets properly, Smith wonders how else he could stop them.

“I don’t know if you can ever beat it,” Smith says. “You have a group of people that are always going to be in the market for something like this, and … I’ve never underestimated somebody willing to make a dollar.”