The Whole Star

Priscila Mosqueda

Greg Casar of Workers Defense Project urges reform of Austin's incentive-giving system in front of the JW Marriott construction site in downtown Austin.

In recent years, Austin has become a generous incentive-giver to corporations – but not all companies keep up their end of the deal. On Wednesday the labor advocacy group Workers Defense Project released documents it says prove that an Indiana-based hotel developer violated a $3.8 million incentive deal with the city by failing to pay workers a prevailing wage during construction of a 34-story Marriott hotel in downtown Austin.

In 2009 the city gave White Lodging $3.8 million in tax incentives. In early fall of 2012, the Electrical Workers Union tipped off the city about White Lodging’s noncompliance. Workers Defense, which represents workers in wage theft cases, also got involved.

During a press conference Wednesday, across from the Marriott construction site, Workers Defense highlighted an email in which one of the hotel’s two general contractors, Hardin Construction, tells a subcontractor “…there is no prevailing wage scale for this project.” The organization released the email along with the city’s June 2009 agreement, which grants White Lodging the incentives, but stipulates that the company must pay a prevailing wage to claim the waivers.

Workers Defense also released an affidavit signed by a carpenter who said he was paid $12 per hour instead of the prevailing wage of $13.25 per hour at the work site.

The organization said the time is ripe for reforming the city’s incentive-giving system. Labor advocates don’t just want the Marriott to make good, they also want the city to write stricter enforcement policies and consequences into its active and future contracts with companies receiving any public money or waivers.

Susan Moffat of Liveable City, who also participated in the press conference, said it shouldn’t be up to the workers to monitor the city’s deals with companies, but that city staff should be proactive in enforcing contracts. “Liveable City is deeply troubled by the apparent lack of supervision for a contract involving nearly $4 million in public revenue,” she said. “If we as a city continue to forgo substantial amounts of public revenue to benefit private corporations as in this case, the least we can do is ensure the other party is living up to its end of the contract.”

Since 2007, Austin has offered 11 companies incentive deals, which will total $73 million, according to Austin’s 2012 annual report on economic growth incentives.

In a memo on Jan. 11 the city announced it plans to audit the company’s downtown Marriott project. White Lodging’s noncompliance with the tax incentive conditions would result in the company having to reimburse the city for any waived fees it’s already claimed, according to the memo, and forfeit the rest of the incentive money. The memo also says the city will continue to monitor the site to ensure compliance as the project progresses.

White Lodging released a statement saying it is committed to its contract with the city and is working “to comply with the conditions of the fee waivers.”

“We are also committed to achieving the goals related to the prevailing wage issue,” the statement says. “Not only are we adhering to the agreement, we are exceeding the prevailing wage targets average by at least 15%.”

Gregorio Casar, business liaison for Workers Defense, said it’s important that companies honor their agreements with city officials. “If we’re going to be giving millions and millions out in tax breaks to companies it better be for a good reason that brings exceptional community benefits to Austinites.”

Staci Semrad

A Chesapeake Energy contractor drills for natural gas northeast of Cleburne.

After years of opponents and industry arguing, waiting and waiting some more, Dallas’ fracking future might finally come to a vote. In early February a city commission is expected to vote, yet again, on whether to grant Fort Worth-based Trinity East Energy permits to drill on city-owned land. It would be the first gas well sunk within city limits and would affirm Dallas’ stance on the controversial practice of fracking.

Trinity signed a $19 million lease with the city in 2008 and applied to use the land to drill in early 2011. The city of Dallas has been reluctant to issue any drilling permits without first updating its gas drilling ordinance like other nearby cities have done, to accommodate public concerns over noise, air pollution and property setbacks. As a result, Trinity’s permits have been on hold and the issue has been languishing for what all sides agree is far too long.

On Feb. 7, the City Plan Commission is scheduled to vote on permits that would allow Trinity to drill on two city-owned sites and one private tract.

Another company, XTO Energy, has withdrawn its application. The industry says the city will be sending an anti-business message if it rejects Trinity’s applications after taking its money. Activists and some residents maintain that the potential economic benefits of fracking aren’t worth the air and noise pollution that accompany it. They point to reports from citizens in the Barnett Shale that carcinogenic chemicals, such as benzene, are making them sick. Activists have held out hope that Dallas might take a high-profile stand against urban drilling in a state that has a notoriously laissez-faire attitude toward oil and gas production. The February vote could decide whether Dallas remains frack-free or finally welcomes the fracking frenzy.

So far city government has been putting the decision off, much to the dismay of both industry and environmental activists. In 2011 the city created a gas drilling task force to study natural gas drilling issues and make recommendations on revising the ordinance. The task force handed in its recommendations last March, yet the City Council has remained mute on the matter. The City Plan Commission, a zoning board twice tasked with making a decision on the permits, has twice rejected them, largely on the premise that it has no ordinance to guide it.

“I think the process has been so lengthy and time-consuming and expensive that likely operators have gotten the message that they’re not welcome and they’ll probably go to other places that welcome it,” says Dallas Cothrum, a consultant who is representing Trinity in zoning matters. Dallas, Cothrum says, should be open for drilling, especially in remote locations. Trinity’s sites are sandwiched between a golf course and a landfill-turned-athletic-complex in North Dallas.

But Trinity’s sites present a problem: the land the company intends to drill on is in the Trinity River floodplain and is considered city parkland. The current gas drilling ordinance in Dallas prohibits drilling in both floodplains and city parks. So it seems the city is in a bit of a pickle – either grant Trinity the permits, then rewrite the ordinance to allow drilling in floodplains and city parkland, or reject the permits and possibly invite legal action. Dallas Mayor Mike Rawlings says the city wants to avoid a lawsuit.

Trinity’s opponents also claim the city was deceptive about the extent of the company’s plans. They say they were surprised to learn, late in the process, that Trinity had applied to build an on-site natural gas processing facility in addition to the gas wells. The company had filed for a separate permit for the processing plant, but fracking activists say that the facility was never discussed at public hearings.

Cothrum says the company wasn’t trying to pull one over on the city.

“If it’s a trick, this is the slowest-moving trick play ever,” he says.

One thing the opposing sides agree on: City Council needs to stop dragging its feet.

“The City Council is going out of its way to avoid making a tough decision and they’re making the Plan Commission have to bite the bullet,” says Jim Schermbeck, executive director of Downwinders at Risk, a North Texas environmental group. “It’s a serious lack of leadership on their part not to have already dealt with this.”

Alex Hannaford

On December 13th, an email popped into my inbox from Wiebke Swearingen, a German woman living in Texas. She wrote: “We expect a new date to be set for the very beginning of February. Court ruling is attached.”

The date she was referring to was for her husband’s execution, later set by a judge for February 27th.

I met Larry Swearingen one morning in early November at the Polunsky Unit in the east Texas town of Livingston. He had been on death row since 2000, convicted of the 1998 murder of a 19-year-old woman called Melissa Trotter. But the subsequent story I wrote for The Texas Observer described how a number of forensic experts took the stand at a hearing to explain how forensic evidence showed it was impossible for Swearingen to have been her killer.

In a fascinating development, these scientists claimed that judging by the lack of decomposition Melissa Trotter’s body had suffered when it was discovered in the Sam Houston National Forest in January 1999, they were certain that Swearingen was in fact already in jail on outstanding traffic warrants at the time of her death.

I wrote then that Swearingen would remain on death row until the Court of Criminal Appeals made its decision. In a follow-up email that his wife, Wiebke, sent me in January, she wrote: “As you most likely know, Larry has been given a new execution date for February 27, 2013.”

His case has been taken on by the Innocence Project, a national litigation and public policy organization dedicated to exonerating wrongfully convicted people. And in a motion filed today, the group’s lawyers have asked District Judge Kelly Case to allow post-conviction DNA testing in order to prove Swearingen’s innocence.

The motion says that evidence likely to contain biological material collected during the police investigation into the murder includes fingernail scrapings from Trotter’s hands, items of her torn clothing, a ligature used to strangle her and torn pantyhose found near Swearingen’s house. Before the trial, the motion states, the state tested the fingernail scrapings, which yielded male DNA that did not match Swearingen’s. “The rest of the evidence … has never been subjected to DNA testing despite Mr. Swearingen’s repeated requests, but it is still in the State’s possession,” papers submitted to the court note. DNA testing of this evidence, it says, “can both exonerate Mr. Swearingen and identify the actual murderer of Ms. Trotter.”

The Innocence Project wants to run the DNA through the national CODIS database, a repository of DNA profiles from convicted offenders and unsolved crime scene evidence.

February 27th is Swearingen’s fourth execution date. Three times before he has received stays after his attorneys asked the courts to hear evidence that they said pointed to his innocence.

The Innocence Project says that 18 people have been exonerated by DNA testing in the U.S. after serving time on death row. If his lawyers are successful, Swearingen could become the 19th.