Political Intelligence

Messin' With Texas Again


Harris’ Senate colleagues, uncomfortable with his apparent conflict of interest, shot down his pro-nursing home measure in 1999. And after The Observer story was published that April, Harris withdrew from the remaining cases and stopped representing nursing homes.

Now, Harris has waded back into the same ethical morass, simultaneously defending nursing homes at the Capitol and in civil court. Harris’ law firm is defense co-counsel—again with Gail Friend—for nursing homes in at least three civil suits, according to Tarrant County court records. At the same time, Harris is pushing legislation to limit the evidence nursing home victims can present in court and what the jury can award them. He’s filed SB 312 that, among other things, proposes to cap noneconomic damage awards against nonprofit nursing homes at $250,000. Under SB 312, inspections of nursing homes by the Department of Human Services would be inadmissible in civil cases involving nonprofit nursing homes. Plaintiffs won’t be able to offer as evidence any DHS reports of dangerous conditions that lead to injury or death. At press time, SB 312 has been referred to the State Affairs Committee, of which Harris is a member.

For his part, Harris claims not to know he’s involved in this mess, and his legislative director argues it isn’t a conflict. Asked about the propriety of legislating on behalf of business partners, Harris said, to his knowledge, he hadn’t represented nursing homes in years. “This is the first I’ve heard of it,” he said. “You hit me totally off guard.”

Michael Grimes, Harris’ legislative director, later clarified that Harris’ law firm had in fact helped defend a nursing home this year in one case that’s already settled. In a second case, Grimes said, Harris’ firm became defense co-counsel on March 21, unbeknownst to the senator. Grimes said he couldn’t account for the third civil case. He flatly dismisses the conflict of interest claim. Grimes argues that SB 312 applies to nonprofit nursing homes only, while the three civil cases in which Harris is listed as co-counsel all involve for-profit nursing homes. “It can only be a conflict of interest if the legislation directly affects those cases,” he says. “This legislation would in no way affect for-profit nursing homes. There is no conflict of interest.”

It’s a thin distinction, especially considering some nonprofit nursing homes are actually owned by for-profit corporations and management companies. There is something particularly unseemly about a state senator handling cases against nursing home victims as he files punitive bills against them in the Legislature. “He’s down there in Austin trying to strip people like my client of their rights while he’s on retainer,” says one plaintiff’s attorney in a Harris case who wished to remain unnamed.

Going with the Glow After failing in three previous sessions, it looks like Dallas billionaire Harold Simmons’ dream of personal enrichment by transforming Texas into a repository for federal radioactive waste may finally come to fruition. On March 31, HB 1567, sponsored by Rep. George “Buddy” West (R-Odessa) passed unanimously out of the House Committee on Environmental Regulation. The Senate companion authored by the powerful Finance Chair Sen. Teel Bivins (R-Amarillo) is pending in committee. At press time, both bills were expected to reach the floor of their respective chambers within days.

Simmons’ Waste Control Specialists will have their dump in western Andrews County. County officials from this area north of Midland appear thrilled that the legislation will open their area to not only waste from Vermont and Texas, but also 150 times that amount from federal and possibly state sites across the nation. To give a sense of what’s coming, the energy department estimates that this decade it will dispose of 249 million cubic feet, equal to a football field 433 stories tall. In an extraordinary rip-off of taxpayers, the state has agreed to assume all future liability for what will surely be a radioactive mess.

In back-to-back committee hearings in the house and the senate, WCS mounted a formidable team of lobbyists, front groups, and pseudo scientists to pitch the legislation. Top of the list was retired US Navy Admiral Bobby R. Inman, a former Director of the NSA and Deputy Director of the CIA. Inman cautioned that Al Qaeda operatives fanning out across Texas could use the small amounts of radioactive waste stored in medical and academic facilities throughout Texas to fashion dirty bombs. While not making a direct statement for or against a privatized nuclear waste dump, Inman’s testimony paved the way for subsequent witnesses to argue that in the name of homeland security, legislation consolidating waste into one site must be passed. Texas Tech Prof. Robert Baker, hired by the Andrews County Industrial Foundation for the occasion, helpfully minimized the health impacts from radiation. Baker made the claim that farming was 100 times riskier.

The company’s 13 lobbyists have cost WCS well over half a million dollars, which is a fraction of the potential billions Simmons and his partners might earn. Members of the team include ex-TNRCC Executive Director Jeff Saitas, former Texas House Speaker Billy Clayton, and ex-Bush aide Reggie Bashur. Also sitting in the pro-dump dugout were officials from nuclear power companies who hope that having a place to store waste will breathe new life into their struggling industry.

The highlight of the Senate hearing occurred during the testimony of Karen Hadden of the Sustainable Energy and Economic Development Coalition (SEED). Hadden noted that “half a million dollars was contributed to state officials (by WCS) in hopes of passing this bill.” This awoke Sen. Ken Armbrister (D-Victoria), who, while not specifically mentioned by Hadden, took offense. “If you are going to make some allegation, you are going to have to stand up and be responsible for what you said!” sputtered a red-faced Armbrister. “How did they know last session who was going to be on this committee? How did they know who was going to be elected lieutenant governor? You are making some wild, baseless claim Ma’am, and I take personal affront to that!”

But public records from the Texas Ethics Commission support Hadden’s “baseless claim.” Out of the 11 members of the Senate Committee on Natural Resources, six (including Armbrister) received campaign donations from Harold Simmons. On the House side, the Chair and Vice Chair of the Environmental Regulation Committee, Rep. Dennis Bonnen (R-Angleton) and Rep. Edmund Kuempel (R-Seguin), as well as Rep. West, all benefited from WCS’s largess. All told, owners and execs from WCS and it’s parent company, Valhi, spent $558,000 on political contributions in 2001 and 2002. The biggest beneficiaries were Gov. Rick Perry ($150,000), Lt. Gov. David Dewhurst ($48,000), Comptroller Carole Keeton Strayhorn ($40,000), and Attorney Gen. Greg Abbott ($35,000).

A Sorry Sideshow Texas ACLU Executive Director Will Harrell was eating lunch at the Capitol Grille when he learned that earlier that morning a volunteer ACLU attorney had participated in a press conference with the Texas Association of Business (TAB). At the March 24 press conference, David George, president of the Houston chapter of the ACLU, all but exonerated the TAB from an ongoing grand jury investigation and two civil suits.

The event was a public relations coup for TAB attorney Andy Taylor. In addition to the ACLU, Taylor had also obtained a favorable opinion piece by LULAC general counsel Luis Vera. A press release provided by Taylor read: ” Ronnie Earle’s politically motivated investigation of TAB is so outrageous that even the ACLU and LULAC have come to our defense for the good of all Texans.” No forewarning had been leaked to the media. The timing of the release—the day before the two sides were to present evidence in the case—meant that objections from within the ACLU and LULAC would not appear until after the hearing.

Harrell knew that George had planned to file an amicus brief with the TAB focusing on a simple point: The business group’s First Amendment rights allowed them to keep their donor list secret until Earle could show that a crime had been committed. But at the surprise press conference, George exceeded his mandate, comparing the powerful business group to the NAACP in 1950s Alabama. ” are to be applauded for fighting for their rights,” he told an assemblage of the state’s top reporters. “In my personal opinion, the ads would fall under the First Amendment.”

But despite Taylor’s insistence to the contrary, the TAB case is about much more than the First Amendment. What’s at stake is nothing less than whether corporations will be allowed to run unlimited ads bashing candidates without revealing who is behind them. Earle’s office ceased to ask for the names of TAB’s donor lists weeks ago. Instead, the grand jury investigation is focusing on serious allegations of election law violations involving the TAB, the Business and Commerce PAC, and Texans for a Republican Majority PAC.

If George had identified himself as president of the Houston chapter, the press would have likely asked why he was filing this brief. He did not. Today George admits that in retrospect he should not have given his personal opinion. Harrell describes the situation as a “genuine misunderstanding.” That evening, Harrell put out his own a press release. “Houston attorney David George gave many the impression that the ACLU supports the TAB claim that their ads are protected speech. This is incorrect.”

LULAC National President Hector Flores was particularly angry that Taylor used the LULAC name without the presence of an official representative. Vera at the time was in the hospital. Flores notes that Vera doesn’t set policy for the group anyway. “I think we’ve been had by the TAB,” he said. “It concerns me when an organization invokes our good name and appears to tarnish it in the process.”

In addition to Harrell’s press release, George also quietly filed new amicus briefs on April 1 that supplanted his first set. The new briefs, unlike their predecessors, focus tightly on the First Amendment issue, going as far as to say: “This brief does not detail the full extent of election law, and the ACLU takes no position on whether or not TAB may have violated any law.”

As a result of the TAB incident, Harrell and the Texas ACLU board have restructured their internal guidelines for taking on cases. In the future, no chapter legal panel can review, much less approve a case that originates from another chapter’s jurisdiction. Nobody can come to the Capitol to represent the ACLU at a press conference, a hearing, or meet with any legislative office without coordinating first with the chair of the legislative panel and the executive director. And contracts will be mandatory between cooperating attorneys and the state legal panel chairperson and executive director.

At press time, a ruling by Judge Mike Lynch on a TAB motion to curtail Earle’s investigation was pending.