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Political Intelligence

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dept. of elections

Politicians talk a lot, mainly about themselves and their opinions, and about how much better they are than their opponents. That makes David Porter, a Republican candidate for Texas Railroad Commission, a rare breed of political chameleon. His strategy: fade into the background and bank on GOP branding to carry him to victory on Election Day.

There’s little doubt that the Democrat in the race, Jeff Weems, is the more qualified candidate. Weems is a lawyer specializing in oil and gas, the industries the commission oversees. He has a long history in the field—and he’s the Democrats’ best hope for a statewide win outside the governor’s race. Weems has been endorsed by the Houston, Dallas and Austin dailies. “I need to continue garnering these endorsements,” he says. “The more attention that can be focused on this race, the better I do.” Weems has campaigned across the state, touting his qualifications and detailing the need for more inspectors to monitor industry.

His opponent didn’t return phone calls from the Morning News editorial board. (Porter didn’t return calls for this story, either.) He worked as a certified public accountant in Midland before he came out of nowhere to best sitting Commissioner Victor Carrillo in the March GOP primary—a victory that Carrillo and some pundits attributed to Republican primary voters’ aversion to a Latino name. The Railroad Commission “should and can and probably should control air emissions from production equipment,” Porter said in the The Texas Tribune’s online “face-off” between the two candidates. It was one of his most declarative statements, but it was an opinion he and Weems share—that the Railroad Commission, as opposed to the Texas Commission on Environmental Quality, should monitor emissions from oil and gas activity . When he offers opinions, Porter hardly ever disagrees with Weems. During the face-off, Porter was hesitant to say much, except that he has an open mind—and few clear opinions. “I don’t have any programs that I’m just opposed to,” he said.

Obscurity could be a winning strategy. If he’d been a visible force on the campaign trail, Porter might have gotten more attention, and his lack of credentials might have hurt his chances. While he doesn’t know a lot about the oil and gas industry, he does know something about politics in Texas.

—Abby Rapoport


The following information was updated on Friday, Oct. 22

*Gilbert was sued in December of 2009. The original article stated he was sued in the summer.

*Gilbert did not show up to a hearing case in January.  The original article stated he did not show up to a hearing case in August.

*Gilbert’s license was suspended, but has been reinstated with “moderate restrictions.” The original article stated his license has been suspended.



campaign confidential

Hammering Hank

Hank Gilbert isn’t the first politician to face a lawsuit or get arrested or be accused of taking a bribe. But he may be the first to accomplish all three in a single year—and still run for office.

Gilbert is the Democratic nominee for Texas agriculture commissioner. He was a long-shot candidate from the start. He lost the ag commissioner race to Republican Todd Staples in 2006, earning 42 percent of the vote. He returned for a rematch, and given that many pundits are predicting a Republican wave in 2010, Gilbert’s odds seem even longer this time, even before Staples’ opposition-research team went to work.

Among the revelations: Gilbert was sued December 2009 by a former campaign consultant seeking back pay. Gilbert didn’t show up for a January hearing in the case, so the judge ordered Gilbert to pay $40,000, according to Travis County court records. Gilbert’s campaign has said the lawsuit is baseless.  Gilbert is seeking to have the judgment thrown out.

Meanwhile, the Staples campaign revealed that Gilbert was arrested in September 2009 on outstanding warrants for unpaid traffic tickets. His driver’s license was suspended.  Gilbert’s license has been reinstated with “moderate restrictions,” according to Gilbert campaign manager Vince Leibowitz.

Then there was Gilbert’s controversial departure from the governor’s race last December. Gilbert had been part of a two-man Democratic primary with hair-product magnate Farouk Shami. When former Houston Mayor Bill White announced he would run for governor, Gilbert dropped out, declared his candidacy for ag commissioner and endorsed Shami. Four days later, Shami gave Gilbert a $100,000 campaign contribution (and later gave another $50,000), which critics said looked awfully suspicious. (Gilbert and Shami said the money had nothing to do with the endorsement).

But wait, there’s more: Gilbert also has had tax problems. Staples’ campaign released documents from the Internal Revenue Service showing that Gilbert faced two tax liens in the past 12 years and owed back taxes for a three-year stretch, from 2000 to 2002. Gilbert’s campaign has said the tax issues arose when he switched accountants. Besides, that was so eight years ago.

Gilbert has criticized Staples on policy. Gilbert is an East Texas rancher and knows the ag issues facing the state. He’s attacked Staples’ department for failing to inspect gas pumps and paying more attention to divisive social issues like gay marriage than to agriculture policy.

But it’s hard to talk policy when your campaign spokesperson has to make statements like this: “He was never put in handcuffs, never put in jail,” Gilbert spokesman Vince Leibowitz recently told the Houston Chronicle, responding to the Staples campaign. “These are Class C misdemeanor traffic citations, not murder.”

Indeed, Gilbert may have trouble paying taxes and traffic tickets, but, hey, he’s never killed anyone.

—Dave Mann


dept. of unintended consequences

Sloppy Wordplay

The Rev. Tom Brown simply wanted to deny health insurance and other benefits to the domestic partners of El Paso city employees. That, he says, is what his ballot measure would do if approved by voters on Nov. 2.

Unfortunately for the good reverend, the wording of his ballot measure reads a little differently. Taken literally, it would not only eliminate benefits for domestic partners, but would also eliminate benefits for anyone who isn’t currently a city employee, including all 1,300 retired city workers. That has members of the firefighter and police unions fighting back.

“We can’t take a chance on losing our insurance,” says Porfirio “Pilo” Tejeda, a retired firefighter. “We have to fight this.”

The ruckus began last year when the City Council voted 7-1 to extend benefits to domestic partners. Brown, the founder and pastor of Word of Life Church in El Paso and a group known as El Pasoans for Family Values, led a successful effort to qualify a ballot measure on the issue. There are now 19 domestic partners receiving benefits. City officials won’t say how many of them are in a same-sex relationship.

When it came time to write the measure, Brown and his supporters weren’t exactly precise. The proposition reads: “Shall the ordinance, endorsing traditional family values by making health benefits available only to city employees and their legal spouse and dependent children, be approved?”

The wording lacks the simplicity and clarity of, say, the Ten Commandments. What is meant by “endorsing”? What about elected officials? Would they lose health benefits, too?

At a meeting with firefighters and other retirees on Sept. 15, Brown said his intent is clear, and he would never leave retirees out in the cold. “I wrote it,” he said. “Don’t you think that matters more than what other people have to say?”

Well, no, actually, according to the El Paso city attorney’s office.

“You can’t say that people thought it would include this or that,” Senior Assistant City Attorney Elaine Hengen said at a council meeting on Sept. 14. “You have to look at the exact language.”

That may be a blessing in disguise for El Paso’s gay city workers. The inexact wording may undermine a discriminatory ballot measure that El Paso voters otherwise might have approved. As they say, the Lord works in mysterious ways.

—Timothy Roberts



dept. of big brother

Eye Spy


The militarization of the Texas-Mexico   border continues at a steady pace. In September, the Department of Homeland Security began Predator drone flights over the border. Now it’s testing iris-scanning technology used in Iraq and Afghanistan. If the tests succeed, the department hopes to track immigrants by scanning their eyes.

The two-to-eight week test begins in October at a Border Patrol station in McAllen, where agents will use off-the-shelf commercial scanners on undocumented immigrants. The U.S. military has used the technology overseas since 2007. It has amassed databases of biometric information on Iraqi and Afghan citizens.

Like fingerprints, the iris is unique to every person. The Department of Homeland Security plans to test three types of commercial cameras during the pilot project to determine whether iris-scanning technology is faster and easier to use than fingerprinting.

Newer models of the technology allow people to be scanned from distances of up to 30 feet. Individuals can also be scanned within a crowd. Privacy and civil rights advocacy groups, such as the ACLU, are wary of the biometric technology. “Iris scanning can be done without your permission and at a distance,” ACLU lawyer Christopher Calabrese says, “It allows anyone with an Internet connection and a camera to essentially identify and track you.”

The Department of Homeland Security released a “privacy impact” assessment in August to address such concerns. The agency says immigrants will have the right to refuse the scans during the trial period. The agency also plans to keep names and other identifying information separate from the scans. When the test period is over, the agency says it will destroy the iris scan information.

Calabrese doubts that any immigrants will refuse. “If you’re in detention and law enforcement tells you to do something, you’re going to do it,” he says.

Homeland Security said it won’t adopt the technology unless it’s more effective and faster than fingerprinting. The ACLU believes that if the agency adopts iris scanning technology at the border, it’s only a matter of time before it becomes commonplace in the rest of the United States. “We’ve seen time and time again, military applications like drones being used at the border first,” Calabrese says. “This helps soften the transition to the rest of the country.” Someday soon you, too, may have your movements tracked by government eye-scanners.

—Melissa del Bosque

The Perry Plan

photo by Miranda Grubbs/courtesy Lubbock Avalanche Journal
Rick Perry talks education at Monterey High School in Lubbock

Gov. Rick Perry didn’t exactly face a tough crowd at Lubbock’s Monterey High School on Aug. 31. Well before his arrival, 30 or so students had assembled in neat rows of small, wooden chairs in the school’s library while the adults—members of Lubbock’s elite—were finding their seats at the last minute.


Perry chose this friendly setting to unveil his education initiative. For months, Democrats have hammered Perry on education—the high dropout rate, the low SAT scores and the poor condition of Texas schools. Perry had come to West Texas to introduce a proposal to help schools operate more efficiently. It promised a rare moment of policy discussion in a superficial governor’s race.

But when Perry took the podium—stationed in front of a wall of books—he spent most of his time being charming. “It’s good to be in the home of the Plainsmen,” he said of the school’s unimposing mascot. He joked about graduating in his high school’s top-10 students—in a class of 13. He told the kids their football team would have “a big time Friday with Odessa.”

As for his proposal, it won’t remind anyone of No Child Left Behind. School districts that combine administrative costs, like bookkeeping and security, would get a little extra money from the state: 10 percent of whatever amount they saved.

Modest as it was, that was the only new proposal. Perry moved quickly through old ones, including virtual high schools and an iTunes station for the Texas Education Agency, then switched back to a more comfortable topic—the supposedly booming Texas economy. “A thousand plus people move to this state every day,” he said, dropping his voice to an awed whisper. “Every day!” Looking at the students, he said, “There’s freedoms here from overtaxation, overregulation.”

Perry then gave way to Robert Scott, the education commissioner, who explained the plan. It will presumably bring a little more money to small districts. But it seemed mostly for show. Many districts already partner on administrative costs, and school officials from Abilene told the Abilene Reporter News they didn’t think Perry’s plan would have much impact on their budget. The Texas Education Agency didn’t bother to mention the proposal on its home page.

When reporters asked about the proposal, Perry again deferred to Scott. The governor stuck to criticizing his opponent, former Houston Mayor Bill White. He remained insistent that he won’t debate White until the Democrat makes more tax returns public. “Just release your tax records, and we can have a debate, and everyone will figure out if a boy from Paint Creek can debate a boy from Harvard .”

Perry’s knock on White’s college education seemed an odd way to end an event promoting a school initiative. But the governor wasn’t sweating the details.

—Abby Rapoport



dept. of elections

Blocking the Vote

If Democrats hope to win a statewide race in Texas—they haven’t done so in 16 years—they will have to coax new voters to the polls. There are more votes to be had in Texas, especially in Houston, where about 60 percent of eligible voters are non-Anglo, and several hundred thousand potentially Democratic-leaning voters aren’t registered.

Republicans would like to see the electorate remain as it is—especially in Houston. Keeping people off the voting rolls benefits the GOP.

So when a nonprofit and nonpartisan group named Houston Votes began canvassing Harris County this summer, registering tens of thousands, Republicans saw a threat. Harris County Tax Assessor Leo Vasquez, who will leave office early next year after losing the GOP primary, went on the offensive. (The county tax assessor is also the voter registrar and maintains voter rolls.) On Aug. 24, Vasquez held one of the most bizarre press conferences you’ll ever see. He announced that Harris County voter rolls were under an “organized attack” and raised the specter of ACORN-like “voter fraud” (ACORN didn’t commit voter fraud, but that’s another story).

The press conference had the feel of a political rally. The room was packed with cheering Tea Party activists associated with King Street Patriots, a group taking credit for finding the flawed registration forms. Vasquez said his office had found thousands of faulty forms submitted by Houston Votes, including duplicate registrations and non-citizens trying to register. One person had tried to register six times. A spokesman for Vasquez’s office said the matter has been referred to the county prosecutor.

Houston Votes admitted some of its registrations shouldn’t have been submitted. They were honest mistakes, not fraud, said Fred Lewis, who heads Houston Votes. He said the problems have been rectified. “It’s not a pristine process, and everyone knows that,” Lewis said. “Common mistakes by canvassers aren’t fraud.”

Lewis said Vasquez’s press conference was politically motivated, a “gigantic ambush” designed to curtail the number of people registering to vote. While Houston Votes is still registering voters, the numbers are down since Vasquez’s news conference.

—Dave Mann



dept. of myth busting

No Sanctuary

Anti-immigration advocates often refer to Texas’ more liberal enclaves such as Austin and Houston as “sanctuary cities,” a buzzword implying that they are soft on illegal immigration. The numbers show otherwise. Austin and Houston are among the toughest cities for immigration enforcement in the United States, according to a recent study.

A coalition of nonprofits, including the New York-based Center for Constitutional Rights and the Benjamin N. Cardozo Law Center, recently released a report on the federal “Secure Communities” program, which allows Immigration and Customs Enforcement agents to operate in local jails, checking inmates’ citizenship.

The feds aim to have the program in every jail by 2013. The intent is to deport the most serious criminals, according to ICE. Civil-rights groups say undocumented people increasingly are being deported for minor traffic offenses and other misdemeanors.

“Liberal” Travis County has the nation’s highest rate of deporting people for misdemeanors. ICE has deported 724 people from the county since the Secure Communities program began in June 2009. Of that number, 594, or 84 percent, were deported for misdemeanors. The second-highest rate was 54 percent in Maricopa County, Ariz., where Sheriff Joe Arpaio has waged a controversial campaign against undocumented immigrants. The national average is 22 percent.

The findings stunned attorney Jim Harrington, director of the Austin-based Texas Civil Rights Project. “This damages community policing efforts because undocumented people will not report crimes for fear of deportation,” he says. Harrington and immigrants-rights groups have asked Travis County commissioners to review whether Secure Communities is hurting community policing.

The myth of the sanctuary city has cropped up in this year’s gubernatorial race. Gov. Rick Perry’s campaign has frequently accused Democrat and former Houston Mayor Bill White of running a sanctuary city during his tenure there. Turns out the opposite is true. Under White’s watch, Houston was the first city in Texas to adopt the Secure Communities program, in October 2008. Since then, Harris County has deported 6,627 people—the most in Texas and the second-highest in the nation, after the jails in Maricopa County run by Sheriff Joe.

—Melissa del Bosque

The Dead City

photo by Eugenio del Bosque
Saint Death

Death greets visitors to Reynosa these days. On the outskirts of this gritty industrial city across the Rio Grande from McAllen, a shining, white altar to the skeletal specter la Santa Muerte (Saint Death)—a favorite of the poor, the disenfranchised, and the criminal underclass—stands guard at her post, a smiling grim reaper, a fitting saint for these times.

My husband and I stop at la Santa Muerte on the edge of town. As my husband snaps photographs, a silver pickup truck careens down the highway at high speed with its hazard lights flashing. It weaves dangerously in and out of traffic. Moments later, a Mexican army convoy of several Humvees speeds down the highway in pursuit, the soldiers’ assault rifles glinting in the afternoon sun. Fear courses through me as I realize what’s happening. I’m standing at the side of the road, and a sliver of Mexico’s drug war is headed right for me. I pretend not to see them. As they pass, I think it would be fitting if I had to take shelter behind the altar to la Santa Muerte. It’s the only place where anyone in Reynosa seems to find comfort.

The altar wasn’t here a decade ago when I worked in Reynosa as a reporter. The city was different. It had a vibrant plaza and a healthy tourism trade. Families strolled downtown. Reynosa was never pretty, but it was alive. It had hope. Now the mood is fatalistic. The city itself has become a victim of the drug violence that has killed more than 28,000 people in Mexico since 2006. The restaurants and small businesses downtown are closed. The ice-cream store is gone. Shop owners can’t afford the extortion payments charged by organized crime. Weeds sprout from the fronts of boarded-up discos. Shuttered restaurants tagged with graffiti crumble under the August sun. Two weeks ago, someone threw a grenade at city hall. It stands deserted now. In the streets, no one smiles; no one makes eye contact.

It’s not only the narco-traficantes that residents have to worry about. The failure of the army to curtail the violence has emboldened other criminals—kidnappers, carjackers and anyone else with nothing to lose. The bullets could come anytime from anywhere. When people speak about the cartels or organized crime, they whisper, even sitting in their own living rooms. I hear again and again: “Don’t use my name,” and “You didn’t hear it from me.” A lawyer tells me he tried to file a lawsuit, but the courthouse no longer functions. Another resident tells me she can no longer visit friends in the neighboring city of Rio Bravo. The Gulf Cartel has checkpoints there, and you must pay to enter the city. They wear uniforms, she says, like an army.

Meanwhile, from her post at the edge of the city, la Santa Muerte smiles. This is her dominion now.

—Melissa del Bosque


dept. of Disputed Elections

Home Cooking

Texas’ 5th Court of Appeals turns out to be more sentimental than you might imagine. Home, the court recently ruled, really is where the heart is—at least in the case of Republican state Sen. Brian Birdwell.

Birdwell won a special election in June to replace the retiring Kip Averitt, a Waco Republican. Birdwell, a retired U.S. Army lieutenant colonel, is perhaps best known for his inspirational recovery following the 9/11 attack on the Pentagon. He sustained burns to 60 percent of his body and had 39 surgeries. He gradually recovered, founded a Christian ministry for burn victims, and even started fishing again.

Problem is, he did it all in Virginia. Even getting the fishing license.

Although he maintained property in Texas, Birdwell only moved back to the Lone Star State in 2007. In fact, Birdwell voted in Virginia elections in 2006, an act that requires voters to declare their residency there. You might assume that would make him ineligible for the Texas Senate, which requires five years of Texas residency.

But you would be mistaken. After winning the special election to serve the final months of Averitt’s term, Birdwell was nominated for the November ballot to serve a full four years. Sensing a chance to steal a Senate seat, Democrats filed a lawsuit seeking to boot Birdwell from the ballot. The case seemed straightforward: Birdwell, according to his voting records, hasn’t been a resident of Texas for five years.

The Democrats’ case fell victim to that tried-and-true legal device: the technical loophole. On Aug. 19, the 5th Court of Appeals in Dallas—comprised entirely of Republicans—ruled in Birdwell’s favor. The justices wrote that Democrats should have first asked the state Republican Party to remove Birdwell from the ballot before going to court. In its 12-page ruling, the court barely mentioned Birdwell’s residency.

In an odd twist, the name that did come off the ballot was the Democratic nominee, John Cullar, a Waco attorney and longtime activist. Cullar was never a serious candidate; Democrats had nominated him the day before filing suit.

So the case has been wrapped up neatly. Birdwell has no credible opponent and likely will continue to serve a state he’s resided in for only three years. But, hey, close enough.

—Abby Rapoport



dept. of injustice

Tim Cole’s Legacy

When the Tim Cole Advisory Panel on Wrongful Convictions gathered for the first time on Oct. 13, 2009, the first person the judges, prosecutors, innocence attorneys, reform advocates, and legislators on the panel heard from was Cole’s half-brother, Cory Session. “Tim died in prison while being oppressed,” he told them. “Let’s not let it happen again.”

They took Session’s plea to heart. Ten months later, on Aug. 25, the panel members finalized a report that recommends strong reforms to Texas’ criminal justice system. If the reforms are enacted, the number of wrongful convictions in Texas would decline immediately.

Cole is perhaps the most famous of the many Texans who have been wrongly convicted. The former Texas Tech student was imprisoned in 1986 for a rape he didn’t commit. For 13 years, Cole wasted away in prison, while the man who committed the crime tried to convince authorities Cole was innocent. Cole died in prison from asthma complications in 1999—a decade before DNA testing proved his innocence. Last year Gov. Rick Perry made Cole the first Texan to be exonerated posthumously. The Legislature created the advisory panel with one of two bills bearing Cole’s name in the 2009 session.

The causes of wrongful convictions are no secret. The No. 1 problem is witness misidentification, which has contributed to about 75 percent of flawed cases, according to the New York-based Innocence Project. Botched forensic evidence, made-up testimony from jailhouse snitches, and false confessions also are major factors.

The panel took on all these issues. It recommends that Texas require all law enforcement agencies to adopt standard procedures for police lineups. That would prevent coaching eyewitnesses to identify a suspect or stacking lineups so a suspect stands out.

The panel recommends that police officers record their interrogations to reduce false confessions. And it wants Texas courts to ban jailhouse informants from the witness stand unless their testimony can be verified.

These ideas aren’t new. Many have failed in the Legislature for years. The key question is, how much clout does Tim Cole’s name and story carry? Will the Legislature stash the report in a drawer? Or will lawmakers consider criminal justice reforms that would have saved Cole’s life? We’ll begin to find out when the Legislature convenes in January.

—Dave Mann


dept. of Literalism

PolitiFact’s Tough Crowd

There’s an old Texas proverb: One man’s joke is another man’s slander.

PolitiFact Texas doesn’t bother to distinguish. The collaborative  venture between the Austin American-Statesman and the national PolitiFact project at the St. Petersburg Times investigates political claims to see how accurate they are—what editor Gardner Selby calls “truthiness.” After examining a statement’s veracity, PolitiFact Texas slaps it with a rating on the Truth-o-meter: anything from “True” to “Pants on Fire” (which comes with a nifty graphic featuring animated flames).

It’s serious business—perhaps too serious.

For instance, state Democratic Party Chair Boyd Richie recently accused Gov. Rick Perry of “spending Texans’ hard-earned money to live like Louis XIV.” PolitiFact explained in more than 800 dour words why Perry’s rental house, while opulent, isn’t quite Versailles. In its piece, PolitiFact Texas acknowledged that “Democrats said Richie was joshing,” but that didn’t stop it from rating the statement “Pantalon en Feu.”

No good line goes unchecked. Jeff Weems, the Democratic candidate for Railroad Commission, observed in June that his reclusive Republican opponent “saw his shadow on the primary day and no one has seen him since.” PolitiFact noted dryly that “Democrat Jeff Weems says Republican foe has been an out-of-sight groundhog since March primaries.” After investigating, PolitiFact rated it “Barely True.”

Jokes are worth investigating, Selby says, because “you’re not guaranteed that a voter’s going to get your joke.” True, and the PolitiFact staff has shot down a variety of seriously false assertions, from Democratic gubernatorial candidate Bill White’s claim that Perry is the highest-paid state employee, to Perry’s statement that White helped the Obama administration on cap-and-trade legislation, to reminding U.S. Rep. Sheila Jackson Lee that there’s now only one Vietnam.

But Hector Uribe, a Democratic candidate for Land Commissioner, found his trousers alight for a bit of political satire. His campaign issued a tongue-in-cheek press release in January lauding the candidate’s role in No Country for Old Men. It mentioned that “Uribe’s Republican opponent [Land Commissioner and noted gun enthusiast Jerry Patterson] threatened to shoot him last week.” Given the tone, it was hard to take the release seriously. The statement still got a “Pants on Fire,” though readers who finished the article saw the label was granted for “making us laugh and for reminding us not to take this stuff too seriously.” They might need more reminding.

By the way, there’s no need to fact-check that proverb at the top. We made it up.

—Abby Rapoport

A Ruling for Capture

courtesy Wikimedia Commons

Soon the state Supreme Court will decide Edwards Aquifer Authority v. Day, a landmark case that could upend the state’s rickety system of groundwater regulation. At issue is whether landowners have an absolute, vested right to the groundwater beneath their property, as the 4th U.S. Circuit Court of Appeals found. “If this theory were to prevail in this Court, groundwater conservation in Texas would be finished,” warns an amicus brief filed by the Texas Association of Groundwater Conservation Districts.

A foreshadow of that scenario can be found in a little-noticed court decision in another case, Bragg v. Edwards Aquifer Authority. In May, now-retired District Judge Thomas Lee awarded compensation to landowners for the “taking” of the water beneath their property. The litigants in that case have been squared off since 1996, when the newly created Edwards Aquifer Authority prohibited Glenn and JoLynn Bragg, a Medina County couple, from pumping as much water as they wanted to irrigate two pecan orchards. “The Braggs invested their lives, labor and money in a good family farm that could be passed on to their heirs,” wrote Judge Lee. “That life plan has been undermined, and their investment severely devalued.” Lee calculated the Braggs’ loss at $867,000.

The authority says it had to follow its own rules, which are designed to conserve the aquifer, the sole source of drinking water for San Antonio. Opening the door to such “takings” claims could lay waste to the agency, said Darcy Frownfelter, general counsel for the authority. Thousands of people own land over the aquifer, and each could sue for more water. There’s no reason to think “takings” suits would be limited to the Edwards Aquifer Authority. There are 98 groundwater conservation districts in the state, and many are moving toward pumping caps. “Basically you’re hog-tying them,” said Amy Hardberger, a water expert and attorney with the Environmental Defense Fund of Texas.

In Edwards Aquifer Authority v. Day, South Texas farmers Burrell Day and Joel McDaniel are suing for the right to pump as much water as they say they need for irrigation. If the State Supreme Court decides the two unequivocally own the portion of the aquifer beneath their land, then the Bragg case can move forward. If not, Bragg is probably moot. The fate of Texas water hangs in the balance.

—Forrest Wilder



dept. of popular opinion

A Polling Paradox

When Gallup released its “State of the States” poll numbers, we can only imagine the jubilation that might have poured from Texas Democrats. The state’s long-suffering political losers surely found something to smile about when they saw that Texans are not “above average” in their identification with the GOP. Gallup says we have the “average” number of voters calling themselves Republican or “Lean Republican.” While Texas is “above average” in the number who say they’re conservative, that percentage is nowhere near that of states like Wyoming, Idaho and Oklahoma.

Does this mean Texas is poised to go blue in November? That’s still a long shot. Among the big states—California, New York, Florida—Texas is the most Republican and most conservative. The Republicans will fight like hell to keep it red.  “Sure, it’s not as solidly Republican as Wyoming, but Wyoming has three electoral votes,” says Alan Abramowitz, a political science professor at Emory University who specializes in polling and voting behavior.

“Texas is absolutely one of the toughest states for Democrats,” says Larry Sabato, a political science professor at the University of Virginia whose website, Sabato’s Crystal Ball, caters to political junkies and soothsayers. Sabato says the Gallup numbers don’t give the full picture. “It’s a Republican year,” he says, “and Texas is fundamentally conservative and Republican.”

Sabato doesn’t dismiss the Democrats’ chances. He has listed the Texas gubernatorial race under “leans R”—a much better prospect for Democratic candidate Bill White than, say, “likely R” or, worst of all, “safe R.” Sabato’s reasoning has more to do with Gov. Rick Perry’s seemingly endless tenure than with an ideological shift. Sabato says the Texas climate is actually worse for Democrats now than a few years ago. “If Bill White were running this race in 2006,” Sabato says, “and Perry at that time had already served 10 or 11 years, the results might be different than I think they’re going to be.”

For now, experts are telling Democrats it’s not time to pull out the party hats. Polling numbers are “the first word,” says Sabato. “Not the last word.”

—Abby Rapoport

photo courtesy istock

Dept. of Homophobia

It’s been just over a year since Fort Worth police, with Texas Alcohol and Beverage Control agents in tow, stormed into the Rainbow Lounge, a gay bar. They arrested seven patrons for public intoxication, sent one to the hospital with a head injury and caused a national firestorm. The timing couldn’t have been worse: The raid fell on the 40th anniversary of the anti-police harassment uprising at the Stonewall bar in New York, which touched off the modern gay-rights movement.

Late last month, the Rainbow Lounge commem-orated the event—and Fort Worth cops were there. This time they were invited. Instead of harassing people for dancing, uniformed officers were hanging around, chowing down on brisket and trying to heal the lingering wounds.

The get-together showed that at least some on both sides are trying to make the best out of a terrible situation. The raid touched a raw nerve and, initially, police made matters worse by implying patrons had brought the harassment on themselves by flirting with officers. Police Chief Jeffery Halstead piled on, saying he was “happy with the restraint used” by his officers.

Some in the gay community saw an opportunity and formed an organization called Fairness Fort Worth to press city officials for reform. Eventually, three police officers involved in the raid were suspended, and three TABC agents were fired. The city created tight standards for bar inspections, adopted a more inclusive anti-discrimination policy, and appointed a Diversity Task Force. “We had some pretty tough negotiations and discussions with these folks,” says Todd Camp, a founder of Fairness Fort Worth. “But I think the relationship has greatly improved.”

The question remains whether these efforts are enough to make things right. Some members of the gay community feel that glossing things over with a task force and a barbecue trivializes the situation.

“I just don’t think we’re to the point where we should be inviting Chief Halstead back to the Rainbow Lounge to have some drinks,” says Blake Wilkinson, founder of the Dallas LGBT activist group Queer LiberAction. “To me it seems as though we’re almost too eager to forget the treatment that the police department has given us.”

Wilkinson’s caution is not unfounded. The city attorney’s office still intends to prosecute two Rainbow Lounge patrons arrested for public intoxication in the infamous raid—including Chad Gibson, the man whose skull was fractured.

The police say the case is out of their hands. “We’re trying to be in a position to not be on one side or the other,” chief of staff Lt. Paul Henderson said.

Fairness Fort Worth President Thomas Anable says that if the trials go forward, it could destroy much of the goodwill the city has built up. “You want trials? Go ahead,” Anable says. “We’ll bring out 2,000 protesters for each trial. The only thing you could do to re-energize the LGBT community is to have those trials.”

—Ann Elise Taylor




campaign Trail

Weems The Watchdog?

When Jeff Weems took the stage in Corpus Christi at the Democratic Convention in June, the applause quickly turned thunderous. “I know the business, I know the industry,” boomed the brawny, mustachioed candidate for Railroad Commission. “But I’m not running for the business or the industry. I’m running for my family. I’m running for your families!”

As in every speech, the oil and gas lawyer paused to explain that the Railroad Commission—despite its misleading name—primarily regulates the oil and gas industries in the state. “We have to keep it strong,” Weems said. “It’s our biggest employer. It’s one of our biggest sources of revenue. But you gotta watch what they’re doing!”

Weems says his knowledge of the industry makes him the best watchdog in the race. Weems’ secret weapon is his Republican opponent. Weems looked like a sure loser against Victor Carrillo, the well-liked Republican incumbent and close ally of Gov. Rick Perry. But in March, Carrillo lost the GOP primary to David Porter, a relatively unknown certified public accountant. Carrillo did not go quietly, arguing publicly that his non-Anglo last name was to blame for the loss and pointing to Porter’s lack of experience.

Carrillo’s loss could be Weems’ gain. He says he is a proponent of increased regulation. ”You will not find a more vociferous fan of good, smart, responsible regulation,” he recently told the Observer. Weems has deep roots in the industries he’d be regulating. He’s had some unpopular clients—none more so than BP. Porter, inexperienced and untarnished, has tried to take advantage of such associations.

Weems views it differently. “Quite frankly I don’t think you can be a good regulator unless you’ve been out there, unless you’ve been involved with the oil and gas industry,” he says, a not-so-subtle nod to Porter’s lack of experience.

Despite Weems’ energetic speaking style—and a campaign that’s already taken him, he says, to 143 counties—he faces an uphill battle along with other Democrats running statewide. In the May UT/Texas Tribune Poll, Porter led Weems 39 percent to 27, with 29 percent of voters undecided. As he works to close the gap, Weems plans to unveil a “Republicans for Weems” site. He’s hoping some people will switch over to vote for him.

“The Railroad Commission is nowhere near as sexy as the governor’s race,” Weems says. This year, it may be just as competitive.

—Abby Rapoport




Dept. of mental health

Otty Sanchez Is Spared

It seemed clear from the start that Otty Sanchez—a 33-year-old mother in San Antonio—was temporarily insane when she murdered her three-week-old son and consumed parts of his body in the early morning hours of July 26, 2009. Sanchez is a diagnosed paranoid schizophrenic who was suffering from postpartum psychosis, a severe form of postpartum depression that often prods new mothers to violence. When police arrived, Sanchez was screaming that the devil had made her do it. Yet prosecutors in San Antonio charged Sanchez with murder and announced they would seek the death penalty.

In late June, after three psychologists evaluated her, Sanchez was ruled not guilty by reason of insanity. The charges against Sanchez were dropped, and she will remain in a maximum-security mental health facility, though a judge will review her case yearly.

Texas has one of the stingiest mental health systems in the nation. It took a horrifically violent act for Sanchez to receive the treatment she needed. As the Observer reported in January, Sanchez had been receiving free services from a public mental health clinic in San Antonio, but stopped attending when the clinic told her it could no longer afford to treat her.

Six days before the killing, Sanchez sought help, but was turned away from Metropolitan Methodist Hospital’s psychiatric unit. She was among hundreds of thousands of Texans with severe mental illness who go untreated every year.

—Dave Mann




tyrant’s foe

Eddie Aldrete, Banking on Reform

A 50-year-old bank vice president might strike you as an unlikely coalition-builder in the heated debate over immigration reform. If so, you haven’t met Eddie Aldrete, a senior vice president at IBC Bank in San Antonio, or heard his wonky, impassioned take on why America must overhaul its immigration system.

In 2007, Aldrete won kudos for forging an unlikely alliance between Democratic state Rep. Pete Gallego, the chair of the Mexican American Legislative Caucus, and Bill Hammond, a conservative Republican and chair of the Texas Association of Business, to defeat a slew of anti-immigration bills. The coalition Aldrete put together, which also included the ACLU, Mexican American Legal Defense and Education Fund, and League of United Latin American Citizens, staved off legislation such as a bill that would have prohibited young citizens from receiving health care or public education if their parents were undocumented.

“Everyone was focused on the same goal, but at the same time there were personality issues after years of butting heads,” Aldrete says. “But everyone was very professional and stood united on the cause for comprehensive immigration reform. We were successful in 2007, again in 2009, and we plan to be back next session.”

Aldrete comes from a family of Democrats. His father was assistant secretary of commerce for President Jimmy Carter, and his brother, James, is a well-known Democratic political consultant in Texas. Former Democratic gubernatorial candidate Tony Sanchez is a shareholder at IBC. Still, Aldrete doesn’t hesitate to reach out to Republicans on immigration reform.
Chad Foster, former mayor of Eagle Pass and a Republican, says Aldrete’s success comes from being well-liked and having an impressive list of contacts in both parties. “He’s able to work with both sides,” Foster says. “Eddie takes the spin out of immigration reform and relays the reality of the situation.”

Aldrete likens immigration reform to an iceberg: “The 15 percent that everyone is paying attention to is just the tip of that iceberg. It’s what’s down below that sunk the Titanic.” The part that could sink America’s future, according to Aldrete, is our declining fertility rate, our rapidly aging population, and close to 82 million baby boomers on the edge of retirement.

Aldrete went into action in 2006 as Congress considered penalizing people for handing out bottled water to immigrants in the desert—while failing to fix the immigration system. “Basically, we had a situation where a pipe had burst in the kitchen, and instead of fixing the pipe they were sending in more mops,” he says.

Four years later, the immigration debate has only grown shriller and less substantive. Aldrete expects to be busy this upcoming legislative session. He plans to counter the more politically divisive rhetoric with facts and statistics. “It’s easy to get sucked into the emotional side of the immigration debate,” he says. “But this is not a partisan issue, and the solutions are not partisan, either.”

—Melissa del Bosque

UT’s racism pressure valve

At UT, the fight against discrimination devolves into symbolism

If history is written by those who show up, then the question of renaming UT’s Simkins Hall dormitory—currently named for confederate officer, Florida Ku Klux Klan co-founder and UT law professor William Stewart Simkinsought to be an easy one. Simkins’ name was first applied to the law and engineering dormitory in 1955, in a move that was almost certainly calculated as symbolic defiance against university integration efforts, five years after Heman Sweatt enrolled in the law school in spite of a UT lawsuit, and five weeks after the U.S. Supreme Court’s Brown v. Board of Education ruling.

Since discussion of renaming the dormitory resurfaced in the wake of a paper by former UT law professor Thomas Russell last spring, the university administration’s stance has shifted from resistant to self-congratulatory open-mindedness (sample dialogue from UT’s website: “President Powers’ decision to have an advisory group study changing the name of Simkins Hall is an indication of how dedicated this university is to creating a welcoming climate of cultural and intellectual diversity.”) UT President William Powers dispatched Vice President of Diversity and Community Engagement Gregory Vincent to head up two public forums collecting public input about a name change. The results of the forums—a clear pro-name-change consensuswill be distilled into a recommendation delivered by an advisory study group to the Board of Regents, who will make the ultimate decision. The regents, however, are not bound by the recommendation.

In a regular address that Simkins, who taught at UT from 1899 to 1929, delivered to his law students, he described a number of attacks that he and others made against blacks during their Florida KKK ‘glory days’ in the late 1860s. One such story involves Simkins himself, brandishing a wooden club, chasing Florida state Senator Robert Meacham—a black manthrough a crowded street. None of the onlookers—black or white—stepped forward to defend Meacham, and authorities never investigated the attack. “The unseen power,” Simkins explained, “was behind me.”

Two public forums to inform an advisory committee to make a recommendation to the actual decision-makers might be the university’s version of expedient action, or they might be looking for some bureaucratic intestine where they can send this controversy to wither and die. Even at its very best, though, the dispute is still just a pressure valve, one that takes the pressure that has built up against prolonged, sustained injustice and channels it into purely symbolic measures. Even if the regents do the right thing, and strip Simkins’ name from the building, it won’t do a bit of good for the thousands of minority and low-income students who face actual, non-symbolic institutional discrimination at UT everyday. And if they don’t, we’ll discover that, eight decades after his death, William Simkins still has the unseen power behind him.

Mad Libs

Campaign Trail
photo by Robert Green
Kathie Glass's rubber stamps

Houston attorney Kathie Glass, the Libertarian Party candidate for Texas governor, had two rubber stamps displayed on her campaign table at the party’s recent state convention at a Holiday Inn in Austin behind the Greyhound bus station. One stamp read “VETOED!” The other, “NULLIFIED!”

“I am so fired up about veto and nullification that I had two stamps made up at Office Max. I was thinkin’: I’m gonna be doin’ this so much I might get carpal tunnel syndrome,” she said. “I got one that says ‘Veto,’ and I got one that says, ‘Nullified your ass!’”

For a bunch as reverent of the Constitution as the Libertarians, Glass’ preoccupation with nullification—the long-discredited notion that individual states can declare federal laws unconstitutional—is surprising.

Her nomination for governor—by a 3-1 margin, no less—shows the party’s new direction. Her opponent was Jeff Daiell, a longtime Libertarian Party fixture who was its candidate for governor in 1990 and 2002. His radical ideas—he opposes all taxation and advocates elimination of public education—are softened by his seriousness and thoughtfulness, and by his remarkable resemblance to Mr. Burns from The Simpsons.

Glass, by contrast, heads up a faction of Libertarians who identify with the Tea Party movement and who eschew thoughtfulness for sloganeering. “The end of the world as we know it is coming soon to a city near you,” Glass proclaimed during her opening remarks on the convention’s first night.

The Glass approach to closing Texas’ estimated $11-$18 billion budget deficit? “One-fourth of our state budget is spent on illegal immigrants,” she said. “That’s $45 billion! I just fixed the budget right there!”

I asked her about the provenance of those numbers, and she cited Dan Patrick, the Houston-based, right-wing Republican talk-radio host turned state senator in whose district Glass resides. “He’s a real policy wonk—he knows his numbers.”

Kinky Friedman fit right into the eclectic proceedings. The Republican-turned-Independent-turned-Democrat-turned-Libertarian set up a table at the convention to sell his two latest books, and delivered a brief reading from one. I asked him why he came.

“Why the hell not?” he said. “I think I’m a Libertarian in spirit,” he said.

Whatever that might mean.

—Robert Green



drill, baby, drill

Accidents Waiting

This has been the Year of Kaboom. Every major fossil fuel has had its own terrible explosion in 2010. In April, the Upper Big Branch coal mine exploded in West Virginia, killing 29 miners. In April, the collapsed Deepwater Horizon rig began spilling millions of gallons of oil into the Gulf. Now comes a turn for natural gas, which usually enjoys a cleaner reputation.

Over the past month, Texas saw two devastating blowups within 24 hours. On June 7, workers struck a 36-inch gas pipeline near Cleburne, causing a massive eruption of flames seen miles away. One worker was killed, and eight others were severely injured.  The next day, another pipeline explosion in the Panhandle killed two workers when their bulldozer punctured another gas pipeline.

Like the Massey coal disaster and the BP spill, the Texas pipeline explosions have focused attention on the dangers of innovative energy exploration. The more technology allows us to harness hard-to-reach reserves like those in urban areas or at the bottom of the ocean, the higher the risk that something will go wrong. In the past five years, 14,000 gas wells have been drilled in North Texas’ Barnett Shale, many in residential areas.

People in Fort Worth have long waited for the “big one,” a catastrophic pipeline explosion in a city or suburb that many believe is inevitable.

“What if that accident happened two blocks from an elementary school?” state Rep. Lon Burnam, a Fort Worth Democrat, asked the Fort Worth Star-Telegram. “I feel like what we’ve learned between the disaster in the Gulf and these two accidents in Texas … is that regulation has been entirely too lax.”

—Forrest Wilder



dept. of justice

Was Claude Jones Innocent?

It’s never been proven—without a doubt—that a state executed an innocent person.

DNA testing has exonerated nearly 20 death row inmates in the United States before they were executed. But there hasn’t yet been a case in which a person was put to death for a crime that DNA evidence would later prove conclusively that he or she didn’t commit.

That may soon change. On June 11, a state judge has ordered East Texas prosecutors to hand over key evidence from a 1989 murder case to the Innocence Project and The Texas Observer for DNA testing. The analysis may prove for the first time that Texas executed an innocent man.

The Innocence Project and the Observer filed suit in 2007 to obtain a strand of hair from the scene of a homicide at a liquor store in San Jacinto County.  The one-inch strand was key evidence that supposedly implicated Claude Howard Jones in the killing. Jones was put to death on Dec. 7, 2000—the final execution overseen by then-Gov. George W. Bush.

Judge Paul Murphy issued a one-page order commanding the San Jacinto district attorney’s office to turn over the hair for DNA testing. The Innocence Project and the Observer hope that DNA tests on the hair will confirm Jones’ guilt or prove he was innocent, as he always claimed. Prosecutors can appeal the ruling.

Questions linger about Jones’ guilt.

In late 1989, Jones had just been paroled and was hanging out with two other men, Kerry Dixon and Timothy Jordan. On Nov. 14, 1989, witnesses said that three men pulled into a liquor store in rural San Jacinto County, about 80 miles northeast of Houston. One man went inside and shot the owner, Allen Hilzendager, three times. Witnesses who were standing across the road couldn’t positively identify the killer.

The key question: Was the lone killer who entered the store Jones or Dixon?

Jones claimed he never entered the store, but Dixon and Jordan said he did. Both men were spared the death chamber for their testimony. (Jordan later recanted).

The only reliable evidence that linked Jones to the murder was the strand of hair found on the liquor store counter. At Jones’ 1990 trial, a forensic expert testified that the hair appeared to come from Jones.

Advanced DNA testing—which didn’t exist at the time of trial—could prove whether Dixon or Jones committed the shooting inside the store. After Judge Murphy’s recent ruling, we’re one step closer to finding out.

—Dave Mann



dept. of the disabled

Reform on Hold

Imagine working a demanding job for low pay, and if your replacement doesn’t show up, you can’t leave. You’re forced to work up to 16-hour days, unable to pick up the kids or care for elderly relatives. That’s what you deal with if you’re a direct-care worker at Texas institutions for the mentally disabled. Some employees say the policy is hurting attempts to improve care at the facilities.

The state operates 13 sprawling institutions—known as state-supported living centers (formerly called state schools)—that house about 4,000 Texans with mental retardation. The centers care for some of the most vulnerable Texans, many of whom need 24-hour care. The state has underfunded and understaffed these facilities for years. Several years ago chronic staff shortages led the agency that oversees state schools, the Department of Aging and Disability Services (DADS), to implement a policy known as “holdover.” The policy states that direct-care workers—those who watch over residents—can’t leave until a replacement arrives, for up to eight hours.

Direct-care workers who spoke anonymously with the Observer say facilities employ the holdover policy far too frequently—almost daily.  “I don’t know anyone who works any other job who would stay in a position where you … pretty much give up your life outside of work on a regular basis,” a worker wrote in an e-mail. About half the direct-care workers leave their jobs every year.

The turnover rate was one of the main causes of an abuse scandal that has embroiled Texas’ institutions for the disabled since 2005.

Last year, the Legislature—prodded by the federal government—instituted reforms that included a 12-percent funding increase and added staff. But the holdover policy remained.

State officials acknowledge the policy is tough on workers, but say it’s necessary to ensure continuous care for vulnerable residents. Allison Lowery, a DADS spokesperson, says the agency hopes holdover will be used less frequently as staffing levels increase.

It will be difficult to raise staff levels—or improve care—unless the turnover rate drops.

—Dave Mann


underwater texas

From the Depths

During last summer’s drought, Central Texas lakes Travis and Buchanan fell to their lowest levels in 30 years.

By August 2009, Lake Travis was more empty than full, having fallen 54 percent. As the water level fell, long-covered areas of lake bed were exposed—and with them, decades-dormant debris full of mysteries and secrets. Police recovered a motorcycle and two cars, one that had been missing since 1988. That was far from the strangest thing that has emerged from the lakes. In 2006, a boater on Lake Buchanan reported a 55-gallon barrel sticking out of the water. When the barrel was opened, police found the remains of a human body stuffed inside. They were eventually identified as those of 79-year-old Charles Maynard Wyatt, a colorful character who was convicted of being part of one of the largest marijuana smuggling operations in the U.S. before becoming a Florida real estate investor. He went missing in 1990, until being found in the submerged barrel, still wearing his familiar diamond ring.

There were more ancient finds. A boater on Lake Travis spotted parts of a human skeleton poking out of the mud along the water’s edge. The police passed the bones on to Lower Colorado River archaeologists, who determined that it was the remains of a male, middle-aged, arthritic hunter-gatherer who lived about 1,000 years ago.

In Lake Buchanan, the ruins of Bluffton, a 19th-century town that had been submerged since the completion of the Buchanan Dam in 1937, poked above the surface. Rains last fall have drowned these memories again, for now.

—Robert Green

The Wrong Texas?

Standards Dept.
Positive representation of Texas? A scene from Richard Linklater's Dazed and Confused.

In May 2009, Austin filmmaker Robert Rodriguez, creator of the blockbuster Spy Kids, hosted a celebratory press conference at his Troublemaker Studios. As state legislators and Gov. Rick Perry looked on, Rodriguez cheered a new, $62 million incentive program for movies made in Texas using Texas-based crews. The grants reimburse from 5 percent to 15 percent of production money spent in the state.

Now Rodriguez could lose an estimated $2 million in incentives for his latest project because of a 2007 law that denies state funding if films include “inappropriate content or content that portrays Texas or Texans in a negative fashion.”

The trouble started on Cinco de Mayo, when Rodriguez released a spoof theatrical trailer for his upcoming film, Machete. Rodriguez meant the gory, over-the-top trailer to satirize anti-immigrant legislation recently passed in Arizona. The trailer shows the titular character aiming a .50-caliber assault rifle at a senator (played by Robert De Niro) leading an anti-immigrant rally in front of the Texas Capitol. It ends with the words, “They just fucked with the wrong Mexican.”

The trailer drew return fire from conservative bloggers and Alex Jones, the conspiranoid, Austin-based radio talk show host. “We need to get the funding at the state level stripped out of the film commission if they do not stop this,” Jones said during a recent show.

Rodriguez did not return calls, but he told Ain’t It Cool News, where the trailer debuted, that he wasn’t trying to provoke a “race war,” as some critics had suggested. “It’s only because of what’s happened in Arizona that some scenes actually feel at all grounded in reality,” he said, “which is pretty nuts and says more about Arizona than any fictional movie.”

Bob Hudgins, director of the Texas Film Commission, reviews initial scripts, then signs off on the movie’s final cut before state funds are released. He says Rodriguez has assured him that the Machete trailer had nothing to do with the film set for release in September. “It’s hard to prejudge whether it’s offensive to Texas because I haven’t seen it yet,” Hudgins said. “I probably won’t see it until August.”

In May 2009, a company filming a movie based on the 1993 Branch Davidian raid in Waco accused the film commission of censorship after state aid was denied. Producers moved their $30 million project to another state.

Hudgins said the decision wasn’t censorship. He said he told the filmmakers their characters were factually inaccurate and that they chose not to apply for a grant. “The characters were based on real people in Texas who are still alive,” Hudgins said. “I showed them the script, and they said it was inaccurate.”

Problem is, lawmakers have forced Hudgins to make such judgments. The standard he’s working with is about as wide open as West Texas. “It’s a very difficult determination,” he said. “I won’t hedge on that. But I take it very seriously.”

—Melissa del Bosque




texas vs. epa

Permitted To Pollute

The faceoff between President Barack Obama’s EPA and Gov. Rick Perry’s Texas Commission on Environmental Quality (TCEQ) has escalated dramatically. On May 25, the EPA prohibited the commission from issuing a permit for a refinery in Corpus Christi, and promised to do the same for dozens of other industrial facilities if TCEQ doesn’t fix its flawed flexible-permit program. Such drastic action is unprecedented and signals that new EPA regional administrator Al Armendariz is not backing down from his promise to end business as usual in state environmental regulation.

“Flex” permits issued by TCEQ give polluters a pass on reducing emissions at individual sources such as smokestacks and storage tanks, instead placing a cap on entire facilities.  The EPA and environmental groups say such caps are too lenient and virtually unenforceable, in part because the program is riddled with secrecy.

The Texas attorney general’s office has ruled for years that emissions data must be made public under the Clean Air Act, but often defers to TCEQ to decide what emissions data are released. TCEQ has allowed companies to decide what’s confidential. For example, the flex-permit application for Exxon Mobil Corp.’s Baytown chemical plant lists as “confidential” an analysis of health effects from storage tanks. Exxon also refused to make public details on pollution released during startup, shutdown and maintenance. In 2006, President George W. Bush’s EPA wrote to the TCEQ that withholding such data was contrary to federal and state law. “All emissions data must be made public,” the letter stated.

Nonetheless, TCEQ permitted Exxon’s Baytown facility. Today no one knows what type of startup, shutdown and maintenance activities are authorized under the flex permit.

Ilan Levin, an Austin lawyer with the Environmental Integrity Project, says he recently raised the secrecy issue with EPA officials. “You should have seen their jaws drop,” he said. “For a regulator who deals in air pollution, this is unheard of.”

Perry responded to the EPA’s effort to fix the flex-permit program with typical bombast, calling the move part of Obama’s “campaign to harm our economy and impose federal control over Texas.”

Forrest Wilder




dept. of gentrification

East Austin Cleanup

On a recent Friday night in East Austin, seven Austin Police Department (APD) officers and I visited Clicks Billiards, a local bar, nightclub, and pool hall. I was riding along on an initiative to curb violent crime in what the officers call the “East Riverside Corridor”—a low-income area populated primarily by recent immigrants from Latin America. The city would like to see the area redeveloped from strip malls, seedy bars, and Mexican restaurants into mixed-use residences and retail businesses. Upscale apartments and condos are under construction.

At Clicks, the officers followed protocol. One carded the bouncer at the door, another went to the bathroom, and the others circulated through the crowd, shining their flashlights onto people’s drinks and peering through the dark, trying to spot anyone who looked underage. Satisfied nothing transparently illegal was going on, one beefy, mustachioed officer greeted two men leaning against a pool table. They shook hands; the officer bent over and took a shot (he missed).

“We’re looking at Friday and Saturday nights, from 8 p.m. to 4 a.m.,” said APD Lt. Paul Christ. “We have one sergeant and six officers, on overtime, working that area.”

The department says that by targeting bars and nightclubs in the area, it can reduce robberies, assaults and public intoxication. Statistics indicate the East Riverside corridor is a crime hotspot, and the officers I rode with were adamant that the initiative is the result of those numbers.

When I asked APD Commander John Hutto whether the anti-crime initiative is linked to city support of redevelopment in East Austin, he said, “Absolutely. We recognize that there’s quite a few bars and nightclubs along Riverside Drive, and what we’ve seen in the past is that more often than not, our late-night violent crimes—you know, the robberies and aggravated assaults—are in some ways fueled by alcohol.”

Erica Leak, a senior city planner who oversees the East Riverside Corridor Master Plan, said the area is already changing. “A number of older apartment complexes have been torn down,” she said. “With more private investment in the area, that often helps with crime rates. Throughout the master planning process, we have been contacting lots of different departments throughout the city in trying to coordinate their efforts with ours.” In effect, the police are helping clear the way for gentrification.

By the time the officers dropped me back at the station around 1 a.m., they had walked through seven bars and pool halls, stopped by a taco trailer for dinner, and intended to visit at least four more nightspots. The officers had issued a few jaywalking citations, made a cocaine arrest, and received a report of one UFO sighting. They still had three hours to go.

—Robert Green



State Board of excuses


The Texas State Board of Education’s three-day showdown in May over social studies standards attracted reporters from across the country, from The New York Times to Fox News. Accounts focused on the fiery, often entertaining back-and-forth over which historical figures to include: the Dolores Huertas or the Phyllis Schlaflys?

After the final votes on the new standards (Huerta and Schlafly both made it in), the cameras were packed up, onlookers drained from the room—and the board voted to postpone buying the new science textbooks it spent much of 2008 and 2009 debating.

The argument over science curriculum centered on whether to require that students learn the “strengths and weaknesses” of the theory of evolution. In the end, social conservatives lost that struggle; of the many changes made to the curriculum, one of their few successes requires biology teachers to explain “any data of sudden appearance” in the fossil record—proof, supposedly, of evolution’s fallibility. They also succeeded in requiring students to “distinguish between scientific hypotheses and scientific theories.”

Now it appears that Texas kids will have to glean those points from supplementary materials rather than new textbooks that were supposed to arrive in the fall. The state normally replaces textbooks on a rotating basis every 10 years. With Texas facing a budget shortfall of at least $11 billion in 2011, the money isn’t going to be there. Textbooks covering the new science standards would have cost $400 million, and the Legislature is already expecting a bill of $888 million for textbooks already ordered.

In the 2011-12 school year, the state will begin standardized, end-of-course exams for high-schoolers, and students will be expected to have mastered the new science standards. So board members crossed their collective fingers that the Legislature would approve money for an unorthodox plan: a supplement covering the new standards as a stopgap.

The Texas Education Agency had proposed to provide science supplements for high schools only at a cost of about $17 million. Instead, board members approved supplements for science classes from fifth grade through high school. They have no idea how much the supplements will cost.

It’ll be a couple of years before the state has to pay for new social studies textbooks, scheduled to arrive in fall 2013.

Abby Rapoport

The Midterm Surge

Border Madness

As the border wall went up in their communities, over their objections, elected officials along the Texas-Mexico border learned the hard way: Just because they’d been to Washington, D.C., to lobby repeatedly didn’t mean that legislators were going to listen to them.

Despite this lesson, Hidalgo Mayor John David Franz found himself in Washington the second week of May, lobbying the White House and legislators against sending National Guard troops or building more border fence through his community just south of McAllen. “We don’t need the National Guard,” he said. “We need resources at the ports of entry to facilitate legal trade and make it easier for legitimate businesspeople to cross back and forth.”

As midterm elections loom, that’s a tough message to peddle. Last month, 17 congressional Democrats and Republicans sent a letter pressing President Barack Obama to deploy National Guard troops. On June 1, an unmanned Predator drone will begin patrolling the border over El Paso. Texas legislators are lobbying the Federal Aviation Administration to extend the drones over the entire Texas-Mexico border. In the Senate, Republican Jim DeMint of South Carolina tried to amend the hulking finance-reform bill with legislation to build 700 more miles of double-layered fence. The amendment failed, but DeMint has pledged to try again.

Franz, the mayor of a town of 7,322 people that borders the Rio Grande, wanted to emphasize that his hometown is safe. “In Mexico there’s a drug war going on to decide who will supply drugs to the U.S.,” he said. “It’s of great concern, but we haven’t had a single murder for the past 20 years I’ve been mayor.”

Franz said his community had more Border Patrol and Immigration and Customs Enforcement agents than ever before. “They’re doing a great job,” he said. “But before Congress throws more money at the border, we’re asking them to take a step back and assess whether it’s working first.

“We want common sense to rule,” Franz said. “We don’t want wasteful spending, and we don’t need any more walls.”

Meanwhile, down the hall, Texas Republican Sen. John Cornyn was holding forth in a hearing, pushing Alan Bersin, the new commissioner of U.S. Customs and Border Protection, to spend more on border security.

“We need a price tag … because the American people simply aren’t going to be satisfied with flatline budgets, and no more Border Patrol agents because of budgetary concerns,” Cornyn was saying. “The American people are terribly upset, they’re scared, they’re mad, and they don’t understand why we aren’t doing more to secure our border.”

—Melissa del Bosque




tyrant’s Foe

The Play’s the Thing

John Jordan Otte loves theater. “You can get into people’s hearts in a very nonconfrontational way,” he says. “If they choose to get out of their homes and buy that ticket and go to the theater, they’re going to see something shared by another human being and not have to be beaten down with its message.”

Otte is a 27-year-old senior in the theater program at Tarleton State University in Stephenville, Texas. This spring he took an advanced directing class in which the professor asked each of the four students to select a play, cast it, direct it, publicize it, and stage an end-of-semester production in the school theater. Otte chose Terrence McNally’s Corpus Christi. The play portrays gay men living in 1950s Corpus Christi as Jesus Christ and the Apostles.

Otte knew it might be controversial in a conservative town like Stephenville, two hours southwest of Fort Worth. But he wanted to share with an audience not only the play’s portrayal of gay men’s lives, but also its insistence that homosexuality and Christianity aren’t mutually exclusive. “It just really spoke to me,” he says.

Otte grew up a devout Mormon in Granbury. After high school, he served as a Mormon missionary for more than two years in Italy. “I was very faithful in my church,” he says. “However, this was always a struggle and a battle for me because I’ve known this about me—that I was gay—since I was very, very young.”

After returning from his mission, at 22, Otte came out and left the church. His parents are still devoted followers. “That same divergent struggle that I had growing up is seen in the play,” he says. “I found it to be very beautiful and a story of acceptance and love, and not something blasphemous at all.”

Once word spread through the community, Otte got hate mail and death threats, and some alumni stopped donating to the school. The story rocketed from the Stephenville Empire-Tribune to the Fort Worth Star-Telegram to the Associated Press and CNN. At one point, Otte had to hide in the fine arts library to avoid more than a dozen camera crews stalking the campus.

On March 26, Lt. Gov. David Dewhurst weighed in, calling on school officials to cancel the play, which, he said, depicts acts that are “morally reprehensible to the vast majority of Americans.” Otte and the 13 cast members were determined to stage Corpus Christi. Now it was bigger than their own experiences; it had become a fight for gay rights and free expression.

A day before the performance in late March, the school created a protest zone by barricading a parking lot—some 800 demonstrators were expected. State troopers showed up, as did police in riot gear and snipers for the rooftops. But 12 hours before curtain, university officials canceled the production because, they contended, they feared for students’ safety.

A national theater group, 108 Productions, has stepped forward to stage the play in Dallas June 4-6, but not with the Tarleton State cast. Says Otte, “The show will go on, whether it’s mine or not, and people will be able to see the message.

“I don’t personally believe that Jesus Christ was gay, and that’s not what I was trying to say with the play. … That’s why I hope people go see the show in Dallas so that instead of believing everything [the media] said, they can get past the stigma of reading the title ‘gay Jesus play’ and see what it’s truly about. Which is what each of us in the LGBT community are fighting for too.”

—Dave Mann


dept. of the environment

Tar-Pipe Cinch?

With all eyes on the BP oil spill in the Gulf, little attention has been paid to another high-stakes oil drama.

TransCanada Corp., a Canadian energy company, is seeking permission to build a 2,000-mile, 36-inch pipeline from Alberta to the Texas Gulf Coast. If built, the high-pressure pipeline would move up to 900,000 barrels per day of oil from the vast tar sands of Alberta through five states, over the Ogallala Aquifer, across 32 streams in East Texas, and to refineries in Port Arthur and Houston, including BP’s Texas City facility (See “Covered Up in Plain Sight,” p. 21.) The pipeline could more than double the amount of tar-sand oil consumed in the United States.

While the Canadian government and energy companies tout the tar sands as a safe alternative to offshore drilling and a boost to American energy independence, some scientists and environmentalists draw a different conclusion. “Both deepwater offshore oil drilling and the tar sands are symptoms of how desperate we’ve gotten for oil,” says Susan Casey-Lefkowitz, director of the international program at the Natural Resources Defense Council.

Indeed, tar-sand oil is arguably the filthiest fossil fuel on the planet. Extracting bitumen, the sticky, tar-like gunk that is converted to oil, involves clear-cutting and strip-mining hundreds of thousands of acres of Alberta’s boreal forest. Then vast quantities of water and natural gas are required to upgrade bitumen into a more conventional crude. Compared to conventional drilling, the tar-sand extraction process produces three times as much greenhouse gas. The Lone Star Chapter of the Sierra Club estimates that the Keystone XL pipeline would result in about 38 million tons of additional greenhouse gasses, equivalent to 6 million new cars on the road.

As this issue went to press, public hearings on the pipeline’s potential environmental impact were under way in Beaumont, Liberty, Livingston and Tyler.

—Forrest Wilder



campaign trail

Three For Tea

The Austin Club isn’t the most obvious place to meet the tea party candidates for statehouse. It sits in an old opera house, complete with heavy, gold-leafed frames and polished wood banisters. Its clientele includes a high percentage of the carefully coiffed and well-dressed sort of lobbyist who can flex muscles at the Capitol a few blocks away. It’s not exactly tea party central.

But Monday, May 10, GOP royalty—from the governor to the head of the state party—filed into the club to meet the latest additions to their roster. Technically, the House candidates—the three biggest primary winners with ties to the tea party—were each holding separate fundraisers, but the visitors flitted from one room to another. It was a reception that many a longtime incumbent couldn’t dream of getting—and these three hadn’t even taken office yet.

Gov. Rick Perry beamed as he clapped the newly nominated Lubbock tea partier Charles Perry (no relation) on the back and shot the breeze with lobbyists and staffers. In this small room lit with chandeliers, the governor shed no tears for the GOP incumbents who lost their seats in this new wave. “These are not upset races,” he said. “They might have been [in the past]. None of these elections surprise me at all.”

In their primaries, Charles Perry and his compatriot David Simpson bested longtime incumbents Delwin Jones of Lubbock and Tommy Merritt of Longview, respectively. John Frullo, the third musketeer, is Republican Rep. Carl Isett’s chosen successor in Lubbock, and the only one with a Democratic opponent, though few predict serious competition.

Simpson ran on repealing the business tax and stopping illegal immigration without amnesty, but he says now his “greatest concern is that we see a majority of conservatives.” In terms of policy goals, “there’s only so much I can do as a freshman,” he shrugs.

Rep. Bryan Hughes, a Mineola Republican, noticed the sudden shift that led to Simpson’s victory. Of the new activists who cheer for a microscopic government and fewer social services, he says he’s “going to take them at their word.” But he’s not certain that everyone associated with the movement will be as happy when their own communities lose funding. “So many people don’t realize the benefits,” he says.

For the newly nominated tea partiers, Hughes says the challenge may become even greater: “It’s tough to run against the establishment, and then you become part of it.”

Abby Rapoport