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.
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.”
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
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.
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.
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
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 Simkins—ought 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 consensus—will 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 man—through 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.
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.
drill, baby, drill
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.”
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.
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.
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.
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.”
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.”
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.
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.
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
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.”
dept. of the environment
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.
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.”
Can something as constitutionally challenged as Arizona’s “papers, please” law pass in Texas? Not likely—but get ready for heated rhetoric and a new round of immigrant bashing at next year’s Legislature.
The Arizona law requires police to demand proof of citizenship from anyone they “reasonably suspect” is in the country illegally. This doesn’t please law-enforcement types like Sheriff Clarence Dupnik of Arizona’s Pima County, which shares 123 miles of border with Mexico. He’s called it “the worst piece of legislation I’ve seen in 50 years,” pointing out that the law forces his deputies to adopt racial profiling. Worse, the law allows any Arizona citizen to sue for non-enforcement. “We’re damned if we do and damned if we don’t,” Dupnik told an Arizona TV station.
And damned if right-wing legislators in Texas haven’t leapt on the bandwagon. State Rep. Debbie Riddle, a Tomball Republican, has pledged to introduce similar legislation. Leo Berman, her Republican colleague from Tyler, is also itching to file an Arizona-style bill.
The fact that Texas is not Arizona will block the effort, says Richard Murray, a political scientist at the University of Houston. “The business leadership in Texas is very cool, to say the least, toward any kind of Arizona-type immigration legislation,” he says.
Some Republican Party leaders, including Gov. Rick Perry, agree. The political calculations are clear: Texas has a larger Latino population and a higher percentage of registered Latino voters than Arizona. By 2040, the Latino population in Texas metropolitan areas is expected to rise from 5.9 to 17.2 million; in rural areas, it is projected to double, from 777,000 to 1.6 million. Many of the additions will be young voters, which the GOP sorely lacks.
The Texas GOP walks a political tightrope trying not to alienate Latino voters. Take Perry. Shortly after Arizona Gov. Jan Brewer (who’s also running for re-election) signed the law there, Texas’ outspoken “border security” advocate said he had “concerns with portions of the law passed in Arizona” and that “it would not be the right direction for Texas.”
No matter how moderate Republican leaders try to sound, it might be too late for them to replicate the inroads the party made with Tejanos in the 1990s and early 2000s, says Jerry Polinard, a political science professor at the University of Texas-Pan American. “Gov. Bush deliberately avoided immigrant-bashing,” Polinard says. “But the Republican emphasis now on border security instead of comprehensive immigration reform is viewed by many Latinos as anti-immigrant.”
Republicans hold a slim majority in the Texas Legislature. If Democrats can avoid losing too many seats in November, an Arizona-type bill would probably not pass next session.
“The likelihood of it passing is slim in the current context,” Polinard says. “I think there are enough moderate Republicans left in the Legislature to let Berman and Riddle’s legislation die a quiet death.”
—Melissa del Bosque
Like Father, Like Son
First, state Rep. Eddie Lucio III followed his dad, state Sen. Eddie Lucio Jr., into politics. Now the Brownsville Democrat has taken over one of his father’s business ventures: consulting for a sketchy private-prison developer.
The younger Lucio is consulting for Argyle, Texas-based Corplan Corrections Ltd., which has become notorious for selling struggling communities on risky, government-financed prisons with rosy promises of new jobs and economic riches—then leaving communities to figure out how to keep the facilities open. Corplan was part of a consortium behind a now-infamous $27-million jail in Hardin, Montana—it has never housed a prisoner.
The elder Lucio consulted for Corplan and other private-prison outfits from 1999 until 2005. Sen. Lucio helped convince local officials in Willacy County, north of Brownsville, to build a $60 million, 2,000-bed federal immigration detention center. In 2005, he suspended his lucrative consulting in the wake of a federal investigation that led to the conviction of two Willacy County commissioners for accepting bribes to support the project. Who supplied the bribes is a mystery; the investigation led to no further charges.
The stench of scandal has not deterred “Little Lucio” from consulting for Corplan. Recently the company has approached towns in Arizona, New Mexico, and Texas with plans to build a detention facility for undocumented immigrant families. The company tapped Lucio to help in Weslaco, just outside his Rio Grande Valley district. In February, Lucio and Corplan CEO James Parkey urged Weslaco commissioners to pass a resolution supporting Corplan’s effort.
It could be a lousy deal for Weslaco.
“I think they’re being duped, frankly,” says Michelle Brané, director of detention and asylum programs with the Women’s Refugee Commission. The Obama administration has pledged to build no new facilities for undocumented children and their parents. According to an e-mail obtained by the Observer, the Weslaco city attorney learned in July 2009 that federal solicitation for new family detention facilities had been canceled.
Weslaco Mayor Buddy de la Rosa says he didn’t know about the policy shift. Lucio and Corplan didn’t mention it. Neither did the city attorney. De la Rosa wonders if it explains why he hasn’t heard from Parkey or Lucio recently. “They have been remarkably quiet for the past several weeks,” he told the Observer in late April.
dept. of injustice
After nearly seven months’ delay, the Texas Forensic Science Commission turned its attention back to the disputed case of Cameron Todd Willingham on April 23—for all of 10 minutes.
The upshot: more stalling of its inquiry into whether discredited forensic evidence led to Willingham’s conviction for the 1991 fire that killed his three daughters. Nine fire scientists have examined the case and concluded that Willingham was likely innocent when Texas executed him in 2004. The commission’s investigation halted last September, when Gov. Rick Perry replaced three members of the panel and installed hard-line Williamson County D.A. John Bradley as chair. Bradley kept the politically dangerous Willingham affair out of public view during the GOP gubernatorial primary—a political boon for Perry, who allowed the execution to go forward despite questions about the evidence.
On April 23, the commissioners met for more than six hours in a cramped room packed with reporters and activists in the upscale Omni Mandalay Hotel in Irving. For most of that time, they avoided any talk of cases marred by disproved forensics—the agency’s primary mission—in favor of more mundane topics: backlogs at crime labs, whether to hire a general counsel, and maintenance of the agency’s website.
They finally raised the Willingham issue four hours into the meeting and spent 10 minutes explaining they had a lot of work left on the case and that the inquiry is in its “infancy.” Four members were named to a panel that will continue the Willingham investigation—out of public view.
Bradley made that clear when he talked—and we’re using the term loosely—with reporters after the meeting. Asked about a timeline for the investigation, he said, in perhaps the quote of the year: “However long it takes, that’s however long it takes.”
Asked how he would describe the meeting, Bradley responded, “Well, you were here. You heard it. You can report it.”
Why would the Willingham panel meet behind closed doors? “Because the ability to resolve and discuss these issues requires that we have those discussions in private.” Asked when the panel would meet, Bradley said he didn’t know. Then he excused himself to catch a plane.
The commission won’t be seen again in public until its next official meeting in July. (Bradley has changed the meeting schedule from monthly to quarterly.)
It’s too late for Willingham. But the commission’s continued delay tactics could be denying justice to hundreds of wrongly convicted Texans. As the Observer reported last year, more than 700 people remain in Texas prisons on arson convictions—perhaps one-half of them convicted by discredited forensic evidence.
Dept. of corrections
In 2005, J.C. Moore was incarcerated at the West Texas State School, a juvenile correctional facility in Pyote. Moore remembers Assistant Superintendent Ray Brookins as an intimidating figure. “If he asked you to jump, you better ask how high, or else you’d be locked up,” Moore says.
At night, Brookins played favorites, taking kids out of their dorm rooms for “cleaning.” Moore knew something wasn’t right. But, he says, “whenever we would bring it up with staff, we would get blown off. We were told, ‘It will be looked into.’”
It never was, at least not by the Texas Youth Commission (TYC), the state juvenile corrections agency. The message that staff members were sexually abusing boys reached as far as Austin, but it wasn’t until a math tutor got word out to the Texas Rangers that an investigation was launched and evidence collected.
Then the case was brushed under the rug. The men quietly resigned from their jobs. Brookins went to work at a hotel, while John Paul Hernandez, the principal also implicated, was hired by a Midland school.
In 2007, the Texas Ranger report was leaked to the Observer and The Dallas Morning News.
A scandal exploded, bringing TYC to its knees. Legislators demanded changes. Sweeping reforms passed. Yet Brookins’ and Hernandez’s cases languished in the Ward County D.A.’s office.
Brookins finally went to trial on April 20. After 11 witnesses testified—one victim stated he was abused as far back as 1994—Brookins was sentenced to 10 years. (Hernandez’s trial date has not been set yet.)
TYC’s incarcerated population has shrunk in the meantime. The Pyote school where the abuse occurred is set to close May 28. The executive director of TYC, Cherie Townsend, denies the closure is related to the scandal, but many interpret the decision differently.
“They wanted a trophy, and the West Texas State School was it,” says Suzanne Smith, a former administrator at the school.
One former employee wrote on Facebook, “IT WAS GREAT AND WONDERFUL WHILE IT LASTED!!! … WE JUST MIGHT HAVE TO DO IT ALL OVER AGAIN!!! I WOULD!!! WOULDN’T YOU???”
J.C. Moore would not.
“I feel relieved that it’s closing,” he says. “The facility should have been closed a long time ago.”
— Laura Burke
At a tea party rally in Austin on Tax Day 2009, Gov. Rick Perry tacitly endorsed the notion that Texas could secede from the Union. It caused a bit of a stir. In the year since, the tea party movement has only grown. So the 2010 anti-tax protests figured to be a must-see. Or so we thought. The various, sparsely attended rallies—four in Austin—showcased traits that might be the movement’s undoing.
Gov. Perry skipped the festivities. Steady rain no doubt chased away some people, and other Texans were attending the Washington, D.C., rally. Still, it was surprising that the Tax Day protests couldn’t attract more than a few hundred stragglers.
The day’s first scheduled event, in front of Austin City Hall—where Perry spoke last year—never even happened. When this reporter arrived, he found three members of the press outnumbering two lonely activists. There were the trappings of a protest—a podium, a microphone, a tent—but the activists had apparently not shown up.
The final rally, sponsored by Texans for Accountable Government, got going around 6 p.m. About 150 people huddled in a downpour under the Capitol entranceway to hear a series of speakers shout indictments of the Internal Revenue Service, the Federal Reserve and one-world government through a hand-held bullhorn. As the proceedings wore on, members of the small crowd began to steal the show, interrupting with outbursts: “Jefferson was a terrorist!” screamed one man. “So was Washington.”
“What did he say?” one woman asked standing in the back. Her friend answered in a dejected tone, “People are just shouting random stuff.”
Dept. of energy
Coal, Coal Heart
Ultimate insider Bobby Ray Inman—retired admiral, former CIA deputy director, former NSA director, Austin venture capitalist, failed nominee for defense secretary, professor at the University of Texas’ LBJ School of Public Affairs—got so steamed in the aftermath of April’s coal-mining disaster in West Virginia that he threatened to take up the tea party cause.
Since 1985, Inman has served on the board of Massey Energy, the company under fire after 29 workers died in a preventable disaster at its Upper Big Branch mine, which had some 3,000 safety violations since 1995. It’s been a nice side gig: Between 2006 and 2008, Inman collected $1 million as Massey’s lead independent director. He showed little patience with bad press of the company’s dismal safety record, or with calls from unions and others for the resignation of controversial CEO Don Blankenship.
“My anger level is pretty high for the disinformation pushed by unions,” Inman told the Austin American-Statesman after the disaster. “I’m a political independent, but this is enough to make a tea-partier out of me,”
Blankenship joined up already. Last year he lavished more than $1 million on “Friends of America,” a tea party rally in West Virginia featuring Ted Nugent and Fox News host Sean Hannity. Blankenship mocked the government’s mining regulations as being “as silly as global warming.”
Inman is standing by his man. Blankenship, he told the Statesman, is “without question the best coal miner in the business.”
Bushies in Exile
Rove in Clover
A few minutes before Karl Rove took the stage at the University of Texas’ Texas Union Ballroom on April 19, three protesters with posterboard signs—”Arrest Rove,” “Guilty of Crimes Against Humanity”—trooped in and planted themselves opposite the lectern so that Rove would have a clear view of them during his presentation. The restless audience was grateful, having waited for 30 minutes with little to do but peruse the pocket constitutions handed out at the door.
It was the beginning of a smashingly successful evening for Rove, who gave a half-hour, on-message address about the evils of the stimulus, health-care reform and the Obama administration. He laced his outrage with folksy humor and, in a show of magnanimity, offered to answer a question from one of the “lunatics” at the back of the room after he had disposed of the pre-submitted questions. (Rove cut the protester short when he began to ramble about a secret cult of pederasty in the Republican Party.)
The evening was a smash, too, for Ryan Ellis, the president of UT’s chapter of College Republicans. Ellis had hoped for hecklers. He’d included a distorted, sinister-looking picture of Rove on the College Republicans’ flyers: “Come See ‘the Architect’ of the Bush administration!”
It was a display of political symbiosis. Rove plugged his book (Courage and Consequence: My Life as a Conservative in the Fight). College Republicans generated media coverage that might attract some new members. The protesters went away with the satisfaction of having taken a stand. But the human collateral of the policies that Rove’s clients have brought into being—foreign and domestic—were nowhere to be seen, and nowhere to be heard.
Revolving Door Dept.
The Budget Fixer
Last year, Albert Hawkins, commissioner of the Texas Health and Human Services Commission, retired from state service. This year, he started his own private consulting firm. And he’s landed a plum client already: the state of Texas.
Republican House Speaker Joe Straus has hired Hawkins to consult on the state’s budget. His $5,000-a-month salary will be paid by the speaker’s campaign PAC, Texans for Joe Straus. What he advises Straus to cut or save will be important as legislators grapple next year with an $11 billion to $20 billion budget shortfall.
Straus said in a press statement that Hawkins will use his expertise to scrutinize health and human-service spending: “Albert has given many years of public service to state and federal government, and his guidance and knowledge on budget and health care issues will be key as we deal with the budget shortfall and the added burden of a federal health care mandate.”
Hawkins did not return the Observer’s calls requesting an interview.
Some question the need for a private consultant, since Straus co-chairs the Legislative Budget Board, which is filled with state budget analysts. The question also begs: Why does a state official need to pay a private consultant (who shares an office with a lobby group) with money from his political committee (partially funded by lobbyists)?
—Melissa del Bosque
Dept. of Elections
Unless you’ve been walking the Earth like Kane in Kung Fu, you don’t need any reminding of what an embarrassment the Texas State Board of Education has been lately. But those days may well have ended after the runoff elections on April 13.
Social conservatives, controlling seven of the State Board’s 15 seats, have consistently voted in a bloc to infuse their Christian worldviews into the social studies and science curriculums. But in the March primary, Christian conservatives lost two State Board races—including the defeat of their standard-bearer, Don McLeroy. And they suffered another setback in April when Marsha Farney, a self-described “common sense conservative,” easily defeated her right-wing opponent in a runoff for an open seat on the State Board.
Farney faces a Democrat in the general election, but is the favorite to replace right-wing member Cynthia Dunbar, who’s leaving the board. Dunbar had hand-picked an Austin attorney named Brian Russell as her successor. “I believe in a rigorous, knowledge-based education that teaches: an unashamedly patriotic view of American history, emphasizing the God-given individual rights and limited government enshrined in the Constitution,” Russell had written on his Web site.
The Christian conservative faction of the State Board has now shrunk to five seats on a 15-member board. For at least two years, the State Board might take a break from the culture wars and go back to simply debating education policy.
Heck of a Party, George
On the shiny, fragrant Tuesday morning after Tax Day, white folks angry about health reform waited on the state Capitol steps to hear from the four leading Republican coveters of Kay Bailey Hutchison’s U.S. Senate seat. They’d also be getting a gander at a low-grade presidential aspirant, former New York Gov. George Pataki. Upon the news of Obamacare’s passage, it seems, Pataki had leapt upon his metaphorical horse, Paul Revere-style, to “awaken American patriots to the knowledge that our freedom is in danger today.” He calls his anti-health care effort RevereAmerica, and this was its Texas debut.
Since the Senate hopefuls—Lt. Gov. David Dewhurst, Attorney Gen. Greg Abbott, Railroad Commissioner Michael L. Williams, state Sen. Dan Patrick—had all come to cheer on Pataki’s “repeal and replace” agenda, you might have expected at some point to hear that agenda spelled out. But the closest anybody got was Abbott, who said: “We’ve got to repeal and replace everyone who voted for Obamacare.”
The four Republican leaders were there, it seemed, mainly to plug into an easy outlet for appearing to stand strong against Obamacare. Dewhurst tried out a campaign line about there now being “one nation under government,” rather than God. Abbott boasted about his health-reform lawsuit and commended the sacredness of the Tenth Amendment and the Commerce Clause. “I filed a lawsuit sending a message to Washington, D.C.: Don’t mess with Texas!” he said. Williams, the rare non-Caucasian at many a tea-party gathering, won over the crowd by radiating positive energy and serving up a soothing message of opposition, contending that health reform “perpetuates a culture of dependence—a culture that has been destructive to the black community.”
“Way to go Senator! Senator Williams!” scattered voices shouted after the railroad commissioner finished.
The size of the crowd wasn’t embarrassing, but it wasn’t large. One hundred would be a generous estimate. Just as on Tax Day, the fizzle appeared to have gone out of the tea party. Maybe that’s just temporary. Or maybe it’s inevitable.
From a cramped office in their Edinburg home, Nadezhda Garza and her older sister, Anayanse, publicize the plight of an almost invisible population—thousands of undocumented and legal immigrants held in immigration detention for months or even years while their immigration cases are decided.
In 2009, more than 379,000 people were detained by the Immigration and Customs Enforcement agency. That makes ICE the nation’s largest jailer. A recent agency memo revealed that ICE has set a quota of 400,000 detainees for 2010. Increasing numbers of detainees are being shuttled to Texas from places that have a shortage of detention beds. These transplants are thousands of miles from their families and need help getting their grievances heard.
Last year, Anayanse, 32, who works for the nonprofit Southwest Workers Union, started receiving calls from families in New York. Their loved ones had begun a hunger strike at the Port Isabel Detention Facility, north of Brownsville, to protest the lack of due process.
“At the time, no one was talking about the hunger strike or other problems going on inside Port Isabel,” Anayanse says. “People are in mandatory detention who shouldn’t be. They have no lawyers and are isolated—everything is working against them.”
She and her sister, who’s 27, contacted local news media, which started covering the story. They started lobbying elected officials.
In February, the sisters had one of their biggest successes when U.S. Congressman Solomon Ortiz, a Democrat from Corpus Christi, visited the Port Isabel facility. The previous day, the sisters had brought Zoila Molina, mother of a detainee at Port Isabel, to Ortiz’s office. Zoila told the congressman she was on a hunger strike in solidarity with her 24-year-old son, Ronald, a legal resident. He had been picked up on a minor drug possession charge and held for four months without a hearing.
After Ortiz’s visit, his office looked into Ronald Molina’s case. Ronald was transferred back to Florida and eventually released. Ortiz promised that when Congress takes on immigration reform, he would address some of the sisters grievances in legislation.
Bob Libal, with the nonprofit Grassroots Leadership in Austin, often works with the Garza sisters. “They’ve had a tremendous impact on publicizing the plight of immigrants in detention,” he says. “When you are locked up and far away from home, it’s an amazing thing to have allies in solidarity with you.”
—Melissa del Bosque
Dept. of justice
Judge Debates the Death Penalty
Death penalty opponents have found a hero in State District Judge Kevin Fine. The Houston jurist will hold a hearing on April 27 in the capital murder case of John Green, who is accused of killing a woman while attempting to rob her. Fine has asked both sides to present evidence on whether the death penalty can be constitutional if it has killed innocent people.
The arguments follow a pre-trial hearing on March 4, in which Fine initially declared the death penalty unconstitutional for that reason. According to Fine’s first ruling, the death penalty violates a defendant’s right to due process. Death penalty opponents argue that exculpatory evidence developed using new technologies, such as DNA testing, can’t help wrongfully-convicted persons if the state has already executed them.
But Fine rescinded his order a week later and scheduled the April 27 hearing.
“The implications are more political than legal, because I don’t think that his ruling would ultimately be upheld,” says Robert Owen, a clinical professor at the University of Texas School of Law and co-director of UT’s Capital Punishment Clinic.
“There’s really two separate questions: One is how likely is it that we’re going to execute somebody who’s innocent, and the other question is whether that likelihood is large enough to trigger any legal consequences,” Owen says. “If it went to the Court of Criminal Appeals for their review, based on what they’ve decided in other cases, they would conclude that even if there is some risk that an innocent person will be executed, it’s not a very large risk.”
Owen says that if Fine declares the death penalty unconstitutional and a higher-level court overturns him, he will have still highlighted the risk of executing innocent people.
“By furthering and inspiring a public discussion on those subjects, Judge Fine is doing a great service,” Owen says.
If Fine declares the death penalty unconstitutional, and the Texas Court of Criminal Appeals reinstates it, the case could end up before the U.S. Supreme Court. Even then, Owens says it is unlikely that the current members of the Supreme Court would rule against the death penalty.
lesson in zero Sense
The School-to-Prison Pipeline
Mindless “git-tough” policies are depriving Texas schoolchildren of education and introducing them to the criminal–justice system. Since 2006, researchers with the Austin-based nonprofit Texas Appleseed have been documenting the school-to-prison pipeline. The group’s research, based on state data and interviews with school officials, shows that in an overwhelming majority of instances, schools are severely punishing students—through suspensions, referrals to academically inferior “alternative” campuses and expulsions—for relatively minor infractions like using profanity in class.
In its study of expulsions, Texas Appleseed found that during the 2008-09 school year, 5,806 of the 8,202 expulsions, or 71 percent, were discretionary and typically involved nonviolent, noncriminal misbehavior.
Of the discretionary cases, half involved students expelled for “serious and persistent misbehavior” in “alternative education programs.” Critics say these “classes” are more like warehouses, with little educational programming. African-American children are nearly twice as likely to be expelled for subjective reasons.
Many of the students expelled from alternative programs are sent to “juvenile justice alternative programs,” boot camp-like schools run by local juvenile justice boards. Some districts are even referring the kids for prosecution, though no crime has taken place.
“This is the point at which you often see the student for maybe the first time coming into contact with the juvenile justice system,” says Deborah Fowler, lead author of the report. “It can have a devastating impact on a student.”
Incredibly, teens forced into juvenil justice programs for low-level misbehavior are more likely to return to the programs than those sent for serious criminal offenses.
Eventually, most kids do return to regular schools, then find they’re way behind their peers. “We hear from parents and students that it’s at that point that they begin to lose hope and consider dropping out,” says Fowler. For plenty, jail or prison is the next step.
Dept. of Disabled Policy
The Neglect Goes On
Despite reforms by state lawmakers, abuse and neglect of Texans with mental retardation in state-run institutions has increased the past three years, according to an Observer analysis of state data. Reforms enacted in response to abuse scandals have left the facilities with fewer residents and more staff, yet confirmed allegations of abuse rose 57 percent from 458 incidents in 2007 to 719 last year. The number of abuse cases has dropped slightly so far in 2010, indicating that perhaps the latest reforms are having some effect.
Texas’ 13 sprawling institutions for the mentally retarded—formerly known as State Schools and now called State Supported Living Centers—have been sources of horrific tales of abuse. Since 2005, investigations by the U.S. Department of Justice and numerous media outlets, including the Observer (“Systemic Neglect,” May 1, 2008), have documented hundreds of instances in which Texans with mental retardation were beaten, neglected and, in some cases, killed by staff charged with caring for them.
Despite reforms passed in the past two legislative sessions—including a 12-percent funding increase and nearly 3,000 additional caregivers—the number of abuse and neglect cases remains high.
The facilities are now closely monitored by Justice Department inspectors, and some reforms have already had an effect. In just six months, State Supported Living Centers have added more than 1,000 full-time employees, according to state records. And the facilities house fewer residents as state officials transfer more disabled Texans into small, community group homes. The centers now employ nearly 13,000 workers to care for 4,000 residents.
In the first six months of fiscal year 2010, which began in September, confirmed cases of abuse and neglect have dipped by 19 percent. While lower than 2007’s peak, the 2010 numbers are still historically high.
However, the Legislature’s refusal to give State Living Center employees a pay increase may hamper reform. Direct care workers earn a starting salary of roughly $8 an hour, according to the Texas State Employees Union. Families of residents have often blamed abuse and neglect partly on low pay.
It’s worth noting that confirmed cases of severe physical and sexual abuse have remained fairly constant the past three years, according to state data. But there’s been a sharp increase in confirmed incidents of “neglect,” which usually consist of incompetent oversight: allowing residents to fall from a gurney or leave the facility or harm themselves and others. In other words, the kinds of incidents you might expect from a staff that’s largely earning fast-food wages.
Without a pay increase for direct care workers, it’s questionable whether Texas’ institutions for the mentally disabled can be adequately reformed.