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Buffalo Bayou Brouhaha

Harris County Flood Control District Map showing showing the spanof Buffalo Bayou slated for the district's proposed "demonstration project."
Courtesy Harris County Flood Control District
Harris County Flood Control District map showing showing the span of Buffalo Bayou slated for the district's proposed "demonstration project."

 

To those unfamiliar with the mysteries of Houston, a visit to Hogg Bird Sanctuary yields surprising results. When you turn at the traffic-choked intersection of Memorial Drive and Westcott, then park in the lot across from Bayou Bend, the Museum of Fine Arts Houston satellite location that was once home to Ima Hogg, you don’t expect that you’re about to enter a wooded wonderland. But once you’ve stepped out of the parking lot and into the sanctuary, carved out of forest and terrain that’s downright hilly by Houston standards, you feel almost completely removed from the roaring city just a few yards away.

With a few more steps you’re at the edge of a steep and unexpectedly tall cliff overlooking an oxbow bend in the bayou below, its graceful arc framed by trees. You’re standing in one of the most dramatic spots, natural or man-made, the city has to offer. Given Houston’s when-in-doubt-pave-it ethos, the thought that you’re on the edge of a highly developed and well-monied neighborhood just minutes from downtown produces a touch of vertigo.

This stretch of Buffalo Bayou might be beautiful, but it is not altogether healthy. Decades of intense development, along with the construction of two rather fragile and frequently flushed upstream dams, have constrained the bayou’s floodplain while increasing the volume it’s expected to carry. As a result, erosion has become a sizeable problem—one that the Harris County Flood Control District is attempting to address with a highly contentious “stream restoration” known as the Memorial Park Demonstration Project.

According to the HCFCD website, “Erosion in the project area has caused bank failures, loss of public and private land, and a reduction in ecological functions, such as water quality and habitat.” The sheer cliff at the Hogg Bird Sanctuary is, in part, a result of this erosion.

The problem became severe enough that the Bayou Preservation Association, founded in the 1960s by environmental activist Terry Hershey, among others, to protect Buffalo Bayou from the brutal concrete channelizations that other Houston-area bayous suffered at the hands of the HCFCD and the Army Corps of Engineers, undertook a study of how to deal with erosion in 2010.

According to the HCFCD website, “experts in the fields of fluvial geomorphology and natural channel design” were brought in to perform studies and make recommendations. Based in part on the Bayou Preservation Association’s study, the HCFCD is seeking a permit from the Army Corps of Engineers to implement its recommendations.

In the HCFCD’s demonstration project, 5,800 feet of the bayou winding through the Hogg Bird Sanctuary and Houston’s River Oaks neighborhood will have its vegetation, including its riparian forest, scraped bare. Then the banks will be graded to a gentle slope, among other steps, to “restore Buffalo Bayou to a natural, stable condition.”

Despite its origins in the Bayou Preservation Association, the plan has provoked a thunderous backlash from environmental and community activists, who say it’s far too drastic. Led by environmental attorney Jim Blackburn, activist Frank Salzhandler, writer Olive Hershey and others, opponents claim that the project will destroy the bayou in its attempt to save it. They point out that even if vegetation eventually grows back on the bayou’s razed banks, hundreds of species of birds and animals now living there will be forced from their habitat. The bayou itself, opponents say, will be transformed into “a drainage ditch,” like Houston’s other channelized bayous, albeit without their concrete lining. They argue that erosion can be addressed through less destructive measures, and that in any event the HCFCD proposal is “not real science,” as more than one activist argued at a recent community meeting.

Crying “follow the money,” some attendees at that meeting expressed outrage that their beloved bayou would be reshaped in part to benefit the River Oaks Country Club, whose golf course has suffered erosion at its riverine edges. (River Oaks Country Club has agreed to pay one-third of the $6 million project’s costs, with the City of Houston and the Harris County Flood Control District paying the rest). Carlos Calbillo, a community activist from the heavily Latino Second Ward, suggested that the project could be a stalking horse for further development of a San Antonio Riverwalk-type development to the stretch of the bayou that runs through the eastside ward.

Proponents, on the other hand, say the plan is necessary, if regrettable. “Our board voted to support the project only after much careful deliberation,” says Shellye Arnold, executive director of the Memorial Park Conservancy (Buffalo Bayou runs through Memorial Park). She says that if erosion is not addressed, “the bayou is going to fall in on itself.”

Due to the intensity of public response, the Army Corps of Engineers recently extended the comment period regarding the HCFCD proposal until June 30. The Corps can ultimately approve the proposal, or reject it based on a number of criteria, including its potential impact on water quality and its cumulative—as opposed to localized—effect on the waterway. Public comments serve as the equivalent of a public hearing in the Corps’ permitting process, and both sides are urging their supporters to weigh in.

Click here for more information on how to make a comment.

Direct Energy
Direct Energy

In Texas’ free-for-all deregulated electricity market, all plans aren’t created equal. There are fixed-rate plans, plans that fluctuate from day to day, 100-percent renewable energy plans, and plans that are sold through multi-level marketing methods. And then there are pre-paid electricity plans, which charge high rates and can frequently fluctuate in price. Consumer group Texas ROSE has been investigating one prepaid product, Direct Energy’s “Power-To-Go.” In a petition to the Texas Public Utility Commission, the advocacy group argues the plan leaves customers at risk of sudden electricity shutoffs during extreme weather events. Texas ROSE, relying in part on a whistleblower account, also accuses Direct Energy of targeting low-income minority customers through deceptive marketing tactics and potentially violating PUC rules protecting consumers.

David Korn, a former Direct Energy employee who worked in an Arizona call center that handled customer service for Power-To-Go, contacted Carol Biedrzycki of Texas ROSE after noticing a pattern of complaints from customers.

“I had been working about a month or so and during my employment I noticed a lot of activities that were questionable and I took notes,” Korn told the Observer.

For Korn, much of his concern has to do with critical care patients, children and families enrolled in the Power-To-Go option. Unlike monthly billing plans, prepaid accounts can be shut off the moment the account balance reaches zero. There are no limits on the number of disconnections. Customers often complain that they didn’t know their balance was approaching zero, the Texas ROSE complaint states.

Because power can be shut off suddenly, the prepaid plans could put people in danger who rely on medical devices and be a health risk, he says. For that reason, PUC rules say that critical-care patients shouldn’t be on prepaid energy plans.

Direct Energy considers its online monitoring feature an advantage that lets customers “see how much energy they’re using on a daily basis, take control of their energy use and potentially save money,” according to a 2012 press release. But Korn states in an affidavit filed with the PUC that many customers don’t have access to a computer or don’t know how to monitor their energy usage. Other customers complained to Korn that they didn’t receive notice before service was cut—a problem that Korn blames on the company’s shoddy messaging system. “Message notification fails on a regular basis,” he said.

In his affidavit, Korn says “on days when below-freezing overnight temperatures were forecasted, I regularly handled calls from panicked mothers who had lost power, sometimes without warning due to messaging failures.”

Korn claims he’d ask his supervisors why the accounts weren’t protected from shutoffs during extreme weather, as required by PUC rules, only to be told “that any account that had already dropped below zero and lost power was simply out of luck.”

The Texas ROSE petition also claims that Direct Energy uses “deceptive marketing tactics” to sign up people for the prepaid plan. The company tells customers that the prepaid plan is “like putting gas in a car,” where you know how long you have between “fill-ups.”

But in reality there’s a one or two-day lag between posting usage amounts, and the company refuses to offer any payment extensions. And the “pay as you go” feature can lead to paying more for electricity. Instead of a monthly bill, people typically end up making several smaller payments each month that end up being more expensive.

“This is a big problem because the price can change daily,” Biedrzycki says. “I like to give the analogy of a prepaid phone card. You can put 20 minutes worth of phone time on your account, but you don’t know how many kilowatt- hours you’re getting for a certain amount.”

Korn stated in his affidavit that some customers had been convinced by collection agents to switch to the prepaid option so they could “pay as often and as much as they’d like.”

Biedrzycki also said that other jurisdictions and states handle prepaid energy plans differently. In Pennsylvania, low-income customers cannot sign up for prepaid accounts. One company in Arizona charges prepaid accounts a tariffed, regulated rate that’s barred from fluctuating.

The complaint alleges that Direct Energy targets low-income, minority and undocumented people with promises of no credit checks, no deposit and no monthly billing.

In a statement, a Direct Energy spokesperson said the company “takes these allegations very seriously” but noted that the company “serve tens of thousands of satisfied Texans on our prepaid Power To Go plan with more customers signing up daily.”

When Texas deregulated more than a decade ago, customers were expected to have more flexibility in choosing their electricity provider, which, proponents argued, would lead to lower costs.

According to several zip code checks on the PUC site PowerToChoose.org, Power-To-Go’s rate of 14.4 cents per kilowatt-hour was the third-most expensive out of 196 plans, just slightly cheaper than two renewable energy plans.

The Texas ROSE petition was filed nearly a month ago, but so far the PUC has taken no action on Direct Energy’s Power-To-Go plan.

“The entire idea of prepaid electricity service is problematic,” Korn says. “It opens the door for discriminatory marketing and subpar service for low-income customers.”

Millennial Hispanics Are Losing Their Religion

A Pew study showing large shifts in Hispanic religious identity could have major implications for Texas politics.
Rally at the Capital marking anniversary of Roe v. Wade, January 25, 2014
Carl Lindemann
Rally at the Capital marking anniversary of Roe v. Wade, January 25, 2014

 

By 2020 or so Texas will become a predominantly Hispanic state. The political implications of this demographic transformation have been widely discussed. Democrats hope to capitalize on the growing clout of Hispanics to reverse the party’s dismal performance of the last two decades. Republicans, at least the smart ones, are banking on appeals to socially conservative Hispanics to hold onto power.

But the Pew Research Center’s new study “The Shifting Religious Identity of Latinos in the United States” shows that the future isn’t simply one where Hispanics will replace Anglos as the demographically-dominant ethnic group. Rather, it’s about a rising generation of young Latinos who are redefining what it means to be “Hispanic.” Born between 1982 and 2004, these millennials—like their white, black and Asian counterparts—look to be an even tougher sell for the GOP than their elders. Still, it’s unclear whether they will show up for Democrats either.

Pew’s survey of more that 5,000 Hispanics nationwide shows that an increasing number of Latinos are leaving Catholicism, their childhood faith. Just 55 percent of those surveyed identify themselves as Catholic, down from 67 percent in the previous comprehensive study in 2006. Now, nearly a quarter of all Hispanics say they are former Catholics. Overall, non-Catholics are nearly evenly divided between evangelical Protestants (16 percent) and those who profess no religious affiliation (18 percent). Mainline Protestants and other Christians round out the remaining 8 percent.

The conversion of some Catholics to evangelicals holds out hope for the GOP. Consider the study’s findings on abortion. Overall, Hispanics tend to be conservative on this issue. Fifty-three percent say that abortion should be completely or mostly illegal, with just 40 percent in favor of abortion rights—a flip of the 40/54 percent split among Americans generally. With Hispanic evangelicals, 70 percent are in favor of making abortion illegal. That’s even more than white (non-Hispanic) evangelicals. Even so, these evangelical Hispanics still mostly identify as Democrats (48 percent vs. 30 percent support for the GOP). That’s progress for Republicans since, overall, Hispanics identify as Democrats 56/21 percent.

But this is little more than a consolation prize when contrasted with how religiously unaffiliated Hispanics are changing the landscape. The unaffiliated, also known as “nones,” include those who think of themselves as “spiritual, but not religious” and those who are neither spiritual nor religious. They are far more pro-choice than Hispanics overall, even more so than the general public. They are also staunchly Democratic, overwhelming Republicans by 4-to-1.

According to the study, the bulk of the “nones” are young. What’s going on with the under-30 crowd? These are millennials, a generation significantly detached from institutions, making its presence felt. In 2010, unaffiliated Hispanics made up 14 percent of the 18-29 category. In 2013, as millennials rapidly came to dominate and define that age group, the unaffiliated more than doubled, rising to 31 percent of the cohort.

Hispanic millennials are a demographic tidal wave, the dominant ethnicity among millennials. Some 800,000 underage Hispanics turn voting age every year. They are the first generation that is mostly U.S.-born and identify closely with their non-Hispanic contemporaries. Their turn toward being “nones” closely matches the national trend, according to a separate Pew study. As the remaining millennial Hispanics come of age over the next decade, “nones” could wipe out whatever modest gains the GOP now enjoys with evangelical Hispanics.

In Texas, this doesn’t portend well for Republicans. As Sen. Ted Cruz prophesied in The New Yorker in 2012,

“If Republicans do not do better in the Hispanic community, in a few short years Republicans will no longer be the majority party in our state….If that happens, no Republican will ever again win the White House….the Electoral College math is simple….you can’t get to two-seventy electoral votes. The Republican Party would cease to exist.

Still, Democrats should pause before counting on votes from a group partially defined as “unaffiliated.” Most Hispanic evangelicals, as the Pew study reveals, reliably turn out for church services, bible study and “say churches should express their views on political and social issues.” Churches have long been a locus for both social and political change on the right.

Their unaffiliated millennial counterparts are largely disengaged from organizations and institutions that traditionally facilitate civic participation. Will they find a vehicle for social change and political participation? Most importantly, will they connect at the ballot box?

What would it take to make these unaffiliated put their faith in politics? Perhaps seeing their progressive proclivities as an opportunity for Democrats is to get it backwards. Here, what may move Hispanic millennials is the opportunity to take ownership of political institutions like the Democratic Party or to find new ones.

Fire at the Citgo Refinery in Corpus Christi on July 19, 2009.
Fire at the Citgo Refinery in Corpus Christi on July 19, 2009.

After seven years of waiting, Corpus Christi pollution victims finally learned what restitution they’ll be receiving from Citgo Petroleum Corp.: nothing. Last week, a federal district judge determined that residents of a neighborhood exposed to toxic chemicals from Citgo’s Corpus refinery weren’t due any compensation, including medical expenses or relocation costs.

In 2007, a jury convicted Citgo of violating the Clean Air Act, a first for a major oil company. The company had illegally stored oil in two uncovered tanks, exposing nearby residents to toxic chemicals including the carcinogen benzene. It took seven years for U.S. District Judge John D. Rainey to sentence the company, finally ruling in February that Citgo owed $2 million—a paltry sum next to the $1 billion prosecutors argued the company had earned from its illegal operation. Still, victims held out hope for some restitution.

On Wednesday, Rainey denied victims any restitution, including funding to pay for annual cancer screenings and other diseases that could be linked to chemical exposures. The Justice Department had requested that Citgo set up a fund to cover relocation costs, and another for victims’ future medical expenses, plus attorney’s fees and administrative costs for a total of $55 million in restitution.

Ironically, Rainey wrote that determining how much victims are really owed would “unduly delay the sentencing process” and “outweighs the need to provide restitution to any victims.”

The Citgo case is also the first in which victims of air pollution are recognized as victims of crime under the Crime Victims Rights Act and allowed to present oral testimony in court. Rainey had originally rejected 20 victims’ request for that status, but the Fifth Circuit Court of Appeals ordered Rainey to reconsider. He eventually did grant more than 800 residents the status, but in his latest ruling Rainey says the operation of the tanks only caused short-term health effects on “at least two specific days.” He writes that there’s no evidence emissions could have caused long-term effects.

Paul Cassell, a University of Utah law professor and former federal judge who is representing 20 of the victims in the case pro bono, says he is appealing the ruling.

“We intend to argue to the Fifth Circuit [Court of Appeals] that Judge Rainey required indigent victims to come forward with expensive expert testimony that simply isn’t realistic in these kinds of cases,” Cassell says.

“In this situation when you have a wealthy company and many indigent victims, we think in some ways the order was backwards, focusing too much on the defendant’s interests and not giving enough attention to the victims’ interests,” Cassell says.

The restitution ruling was the prosecution’s last hope that Citgo would be made to pay more than the minimum fine of $2 million the judge set months ago. The Department of Justice calculates that Citgo made $1 billion in profit as a result of illegally operating two uncovered oil tanks. In February, Rainey ruled that empaneling a jury to determine exactly how much money Citgo made—and therefore what the appropriate fine would be—would “unduly” prolong the sentencing process that had already lasted seven years. He applied the same logic to determining restitution: Though in this case he wouldn’t have to empanel a jury, it would take the court too long to determine what each victim is owed.

“Had he come to that conclusion [seven] years ago, he might have something there. But after you’ve unduly prolonged it for [seven] years, spending a little bit more time making a determination is not going to unduly prolong it,” says Bill Miller, a former EPA attorney who worked on the Citgo conviction but has since retired. “I think he’s completely ignored the word ‘unduly.’”

The Observer contacted the Department of Justice for comment and received this statement: “We are disappointed in the court’s decision, especially for the residents of the community surrounding the refinery who suffered as a result of Citgo’s crimes.”

The Justice Department wouldn’t comment on whether or not it intends to appeal. It has until the end of the month to do so, and Miller isn’t optimistic.

“It doesn’t look like Department of Justice has any intention of appealing the sentencing of Citgo, which is a crime in itself in my opinion,” Miller says. “It basically emasculates environmental crime prosecution in the United States completely.”

Miller says if Citgo’s sentence goes unchallenged, it will send the message that some corporations are too big to punish simply because it’s too hard to determine how much they profited from committing environmental crimes. Environmental crimes cases rarely go to trial, as corporations prefer to settle out of court. When the government succeeds in taking corporations to court—and, even more seldom, secures a conviction—it should take that opportunity to show that it will aggressively prosecute environmental crimes, Miller says.

“If you’re not going to do anything about it then it behooves every large corporation who gets caught violating a complex statute like Clean Air Act to go to trial and hide behind the complexity of it.”

Clayton Lockett
Oklahoma Department of Corrections
Clayton Lockett

It was perhaps only a matter of time before untested protocols in lethal injections led to an episode like the botched execution in Oklahoma on Tuesday night, in which convicted murderer Clayton Lockett struggled for 43 minutes before suffering a heart attack.

The incident is testament to a much broader trend in the administration of the death penalty. States, including Texas, that execute inmates with lethal injection no longer have the secure sources of drugs they once relied on, and that means the risk of something going wrong has mounted.

Texas’ most recent execution featured a man—Tommy Lynn Sells—who argued that he had a legal right to know the origin of the drugs that would be used to kill him. In a last-minute appeal, Sells’ attorneys asked the U.S. Supreme Court to rule on the issue. The nation’s highest court denied the petition, but not before a lower court judge temporarily halted the execution, arguing that Sells was entitled to know where the state had obtained the deadly dose of pentobarbital.

On April 3rd, Sells was executed in Huntsville with little fanfare. The whole procedure lasted 13 minutes. Pentobarbital is a widely-used sedative that is lethal in high dosages and has been used to euthanize animals. The drug used in the botched Oklahoma execution was midazolam, which caused an Ohio man to gasp for air during his execution in January. Though it hasn’t been used in Texas, Terri Langford at the Texas Tribune has reported that the Texas Department of Criminal Justice is keeping midazolam on hand and could use it any time.

We don’t know for sure whether it was midozolam or something else that caused Lockett’s agonizing death in Oklahoma. The Oklahoma Department of Corrections said that the problem was a blown vein, leading The New Republic’s Ben Crair to argue that the issue was one of administration, not of chemistry.

But the larger question here is one of reliability and consistency. In 2011, the U.S. pharmaceutical company Hospira stopped providing sodium thiopental for executions because the drug was produced at an Italian plant and the Italian government expressed opposition. Death penalty states have had to scramble for drugs, looking to compounding pharmacies to provide these chemicals, including the pentobarbital used in Sells’ execution. Such pharmacies exist throughout the country, and often make cheaper versions of prescription drugs to order for patients. They are licensed, but accreditation is optional and inspections for compliance only happen every three years.

Though David Miller, CEO of the International Academy of Compounding Pharmacists, recently told NPR that providing lethal injection drugs is “actually contrary to what we do as a profession,” any pharmacist can contract with the prison system to provide those drugs. They can specify a protocol—how to administer the drug and how much to use—but there’s no guarantee that the executioners will follow their directions. “We should not, certainly as pharmacists, be put in the position of having to prepare those medications,” Miller told NPR, “without having direct input into what that protocol looks like.”

One provider recently demanded that the Texas prison system return the drugs when his name came out in the press and he received harassing phone calls, but that controversy dissipated quickly. So far the courts have allowed Texas prison officials to remain secretive about where they have turned for new drugs. Texas Monthly’s Erica Grieder noted recently that “such secrecy may not be prudent for Texans who support capital punishment, who should hope for executions to proceed as smoothly as possible.” Now, defense attorneys will likely challenge this secrecy for every execution, making each one into its own legal battle.

Texas has used the same drug, pentobarbital, since 2012 and officials have said there are no plans to change the protocol. But the state is using up its store of drugs faster than any other, so eventually we will have to turn to new suppliers. At that point, the risks will only grow.

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University of Texas police lead a protester away from a demonstration outside UT-Austin President Bill Powers' office Wednesday afternoon.
Mikaela Rodriguez
University of Texas police lead a protester away from a demonstration outside UT-Austin President Bill Powers' office Wednesday afternoon.

Update at 7:18 p.m.: Leading the students out three-by-three, University of Texas Police arrested the eighteen students this evening, ending their sit-in. UT spokesman Gary Susswein said students would be charged with criminal trespass, a class B misdemeanor.

Update at 5:54 p.m.:

Update at 5:31 p.m.: 

Published 5:23 p.m.: Eighteen students at the University of Texas at Austin staged a sit-in Wednesday in the foyer outside President Bill Powers’ office, demanding the university cut ties with the consulting and outsourcing firm Accenture and halt a proposed “shared services” plan that puts 500 staff jobs on the chopping block over the next several years.

Members of many different student organizations orchestrated a “takeover” of UT’s iconic tower—the administrative nerve center of campus—late in the afternoon, chanting against the “corporate attack.” The students said they were prepared for the possibility of arrests.

“Despite them [the university] closing every door, we’re committed to our faculty,” said Bianca Hinz-Foley, president of United Students Against Sweatshops said. Students said they were concerned the university has already begun and will continue to lay off staff members as a part of the proposed streamlining of the university’s operations.

In an email to an internal listserv yesterday, Kevin Hegarty, UT’s chief financial officer, wrote that reports of layoffs were incorrect. It “remains our goal to have no layoffs as a result of the transition of services during the pilot phase,” Hegarty wrote.

The staff consolidation plan, devised by a committee that includes several Accenture executives, purports to save the university $490 million within 10 years. President Bill Powers endorsed the plan in late March.

Although the Tower—the term used to describe the university’s top administrators—is enthusiastic about the plan, more than 100 faculty members sent Powers a letter on April 8, expressing dismay that the university would seek a corporate interest to help cut costs, particularly when the $4 million already paid out to Accenture “could have been used to meet our core missions and enhance staff services and staff support.”

Accenture has a checkered past in Texas. The company was put in charge of administering the Texas’ Childrens Health Insurance Plan (CHIP) in 2005—to disastrous results. The company’s bungling of the system caused delays in applications and the state terminated its contract with the company in 2007, losing about $100 million as a result.

“I see the university as having a choice,” Hinz-Foley said. “We hope Powers will do the right thing.”

Stay tuned for updates from the sit-in.

UT-Austin students stage a sit-in to protest a job-elimination plan.
Mikaela Rodriguez
UT-Austin students stage a sit-in to protest a job-elimination plan.
F. Scott McCown
Steph Swope/www.utexas.edu/law
F. Scott McCown

Depending on whom you ask, the state of Texas is either rushing to implement potentially disastrous changes to its foster care system or taking bold action to fix serious problems.

On Tuesday, the House Human Services Committee heard testimony on so-called foster care redesign, a suite of changes meant to keep foster kids closer to home and provide them and their families more services. Under the redesign, the state is split into eleven regions and a private contractor is designated to oversee each, developing local resources and reporting to the Department of Family and Protective Services (DFPS) on metrics like how many kids find placement in their original communities.

Texas rolled out the new system in a West Texas region about eight months ago. Another launch, for a region around Dallas, is scheduled for July. At the hearing, which was crowded, emotional and eight hours long, several child welfare advocates begged lawmakers not to proceed until they saw results from the first two regions. There’s little preliminary data, they said, and warning signs already, such as reports that the first region’s contractor, the Austin-based Providence Services Corporation, is already $2 million in the hole.

“First, we don’t have any outcome data to know whether this effort is improving things for kids so we don’t know if we’re going in the right direction,” said stakeholder Scott McCown, director of the Children’s Rights Clinic at the University of Texas School of Law. “To go forward and further dismantle the [old] system before we find out if this is feasible in any way? We just wind up with a disaster.”

But DFPS Commissioner John Specia said more regional rollouts would allow for more data collection and help determine whether the redesign is going to work. Asked by state Rep. Elliott Naishtat (D-Austin) to grade the progress of the redesign, Specia said he’d give it an “incomplete.”

“There’s not enough data,” Specia said, “but we have to change the system. The current system is not working.”

Nobody disputes that. The changes, passed by the Texas Legislature in 2011, are the latest of several fixes proposed since 2005, when a rash of child deaths demanded action. Tragically, the past here seems prologue. Ten children in state custody died of abuse and neglect in the last fiscal year, up from two in 2012. Caseworker loads remain far higher than federal recommendations and contribute to massive turnover, meaning fewer and less experienced eyes on kids in care. Several young adults who aged out of the system described horrible abuses at the hands of their foster parents and being disbelieved by their caseworkers. Several child welfare advocates say these problems won’t be addressed by foster care redesign, even if it succeeds at the metrics to be studied.

“The [performance indicators] do not meaningfully measure a child’s well-being,” said Ashley Harris of the nonprofit Texans Care for Children. “Nor do they measure progress toward safety and stable and permanent placements.”

El Paso Abortion Clinic Remains Shut After Judge Withholds Relief

Judge Lee Yeakel said the legal fight over Texas’ new anti-abortion law would be resolved at the Supreme Court.
Access to Planned Parenthood

An El Paso abortion clinic will remain shuttered after a federal judge declined yesterday to issue a temporary restraining order that would suspend a provision of the new anti-abortion law requiring abortion clinics to obtain admitting privileges at nearby hospitals. Since filing suit against the state two weeks ago, Reproductive Services in El Paso learned that it had lost temporary admitting privileges. As a result, abortion services at the clinic have been illegal since Friday. Yesterday, the El Paso abortion provider asked District Judge Lee Yeakel to put a temporary hold on the admitting privileges rule so they could legally continue operations until the full case can be heard. While Yeakel said he believed the clinic was harmed by the admitting privileges requirement, he didn’t see the point in litigating the law piecemeal when it was destined ultimately for the U.S. Supreme Court.

Since Monday, the El Paso clinic has cancelled 34 patient appointments. As a result of Judge Yeakel’s ruling, patients will continue to be turned away.

The El Paso closure is more fallout from Texas’ new anti-abortion bill. The admitting privileges requirement is part of House Bill 2, the omnibus anti-abortion legislation that imposes stricter regulations on abortion providers and bans abortions after 20 weeks. Since HB 2 went into effect last fall, approximately one-third of abortion clinics in Texas have closed down because of an inability to obtain admitting privileges at nearby hospitals.

Like anything to do with House Bill 2, the backstory is somewhat convoluted. Earlier this year Reproductive Services gained temporary admitting privileges at nearby Foundation Surgical Hospital of El Paso in compliance. The privileges were set to expire on May 13. On April 2, Reproductive Services and Whole Woman’s Health abortion clinic in McAllen, filed a motion to permanently protect both clinics from HB 2’s admitting privileges provision, pointing to the scarcity of abortion providers in those parts of the state. But the day after the clinics filed the motion, the state health department informed the El Paso abortion clinic that they were already out of compliance with HB 2. The clinic then learned via a voicemail message from Foundation Surgical Hospital that their privileges were no longer valid, even though they still had four weeks to run on their permit. The hospital gave no explanation for the withdrawal.

Reproductive Services immediately filed a request for a temporary restraining order, asking for permission to legally continue operations until the court ruled on the full case.

Yeakel said that the clinic had met three of the four legal tests: that irreparable harm is imminent if temporary relief isn’t granted; that the benefit to the plaintiff outweighs injury to the defendant; and that the order serves the public interest.

Judge Yeakel ruled that the first three prongs had been met but that the final prong—that it wouldn’t be overturned by appeal—didn’t hold water.

“All challenges must be viewed through the prism of the Fifth Circuit as held in its March 28 opinion [that the admitting privileges provision is constitutional],” he said. “That is the law at this time. We can slice it and dice it … but it’s hard to see how there is a significant likelihood of success on the merits. I believe the Fifth Circuit will apply existing law.”

On the courtroom machinations surrounding HB 2, Judge Yeakel was fatalistic about his own place in the legal firmament.

“Everybody thinks it’s really important what the District Court does, and it is for a brief starburst of activity,” said Yeakel, likening court rulings to a train that starts in Austin, where he’s based, goes on to New Orleans, home of the Fifth Circuit, and then whistles on to its final stop in Washington, D.C.

“Nobody will talk about how the District Court dealt with HB 2 or even how New Orleans dealt with it,” he said. “It’s pretty clear to me that admitting privileges is going to the Supreme Court.”

The constitutionality of the fourth provision of HB 2—that abortions clinics upgrade their facilities in line with ambulatory surgical care requirements—is due to return to Judge Yeakel’s court in the next few weeks. Meanwhile the El Paso abortion clinic continues to turn patients away and the McAllen clinic, closed since March, has put its building up for sale.

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