Political Intelligence

Tort Deform Rises Again

In late March, the House passed a disastrous tort reform bill that capped jury awards in medical malpractice lawsuits and all but closed the courthouse door to many Texans (“Tort Deform,” April 25). Not to worry, said House Bill 4’s numerous critics at the time, the real fight would be in the Senate. They had good reason to hope. The battle in the House, where the powerful tort reform lobby had installed a Republican majority, was a lost cause from the start. But in the Senate, the thinking went, lawmakers would be less beholden to the monied interests, and State Affairs Committee Chairman Bill Ratliff (R-Mount Pleasant) would lop off the House version’s more ambitious sections. At first, their faith seemed well-placed. Ratliff held more than 60 hours of reasoned committee hearings on the bill and in mid April unveiled a rewritten and far-more sensible HB 4.

But to the horror of Democrats, trial lawyers, and consumer groups, the version of HB 4 the Senate passed on May 16 looked disturbingly similar to the House bill. In the weeks between Ratliff’s first rewrite and final Senate passage, groups like Texans for Lawsuit Reform stealthily stole the bill from Ratliff and eroded many of his initial improvements. As it turned out, the real fight certainly was in the Senate. And the tort reform lobby won, again.

As Senate sponsor of HB 4, Ratliff could steer the bill in the direction he thought was fair. His initial rewrite raised the caps on medical malpractice jury awards, and removed caps on damages in cases where the jury had reached a unanimous decision. It also dispatched with the section that required state agencies to first handle class action suits; balanced the provision in the House bill that punished only plaintiffs for not accepting settlement offers; and revised the article that capped companies’ asbestos liability.

While critics of HB 4 correctly predicted that the Senate would be less tethered to Texans for Lawsuit Reform’s campaign contributions than the House, they overlooked just how slanted the State Affairs Committee is. The panel includes at least three ardent tort reform defenders in Senators Todd Staples (R-Palestine), Troy Fraser (R-Horseshoe Bay), and Jane Nelson (R-Flower Mound). Tort reformers found three more allies on the committee in Ken Armbrister (D-Victoria), Robert Duncan (R-Lubbock), and Chris Harris (R-Arlington). Ratliff was outnumbered.

When State Affairs debated Ratliff’s final version of HB 4 on May 13, the committee members were armed with more than 20 amendments. Ratliff could do little to stop them. Several amendments that reconstituted long-dead sections of the House version were adopted over his objections. Armbrister exempted nonprofit hospitals from certain liability, and included under the damage caps any private contractors working at hospitals. Staples made the bill effective for all cases filed after May 30 (before the measure is even enacted). Duncan restored a provision that restricted the manufacturers’ liability for products that had been approved by a government agency.

Sensing that tort reformers were snatching the bill from Ratliff, Sen. Rodney Ellis (D-Houston) came to the chairman’s defense: “Governor, I was for your bill this morning, and I just want you to know I’ll still be for you this evening. I’m not sure I’ll be for your bill, though.” Ellis promised to filibuster HB 4 on the floor if Ratliff wasn’t happy with what the committee passed. But the savvy tort reformers reinserted provisions from the House version without completely alienating Ratliff. They left untouched the section Ratliff cares about most–caps on medical malpractice jury awards. The House bill capped noneconomic damages at $250,000 per suit. Ratliff changed that to $250,000 per defendant, with a max of $750,000 per suit. With Ratliff’s caps intact in the Senate version, HB 4 passed committee unanimously. The full Senate approved the bill by a 28-3 vote.

The end result is a Senate bill that’s only a slight improvement on the House version, the main difference being the Senate’s higher med-mal caps. Tort reformers figured they could lower the Senate’s caps in a conference committee. But Lt. Gov. David Dewhurst and Ratliff refused to appoint Senate conferees for HB 4. Ratliff reportedly told House leaders he wouldn’t hold a conference committee on HB 4, insisting that either the House concur with the Senate version, and its higher caps, or the bill would die. As the session stretched into its final week, neither side was backing down. Rep. Joe Nixon (R-Houston), who authored the House version of HB 4, tried to muscle Ratliff into acquiescing to a conference committee. He threatened to kill one of Ratliff’s regional bills by knocking it off the House’s local and uncontested calendar. This strong-arm tactic sent Rep. Barry Telford (D-DeKalb), who co-sponsored the local bill and whose district lies within Ratliff’s, cursing onto the House floor. He burst from his chair and had to be restrained from going after Nixon.

Ratliff kept his cool, even as the governor threatened to call a special session on tort reform if Ratliff didn’t back down. As the Observer went to press, Ratliff and Dewhurst named their conferees just four days before session’s end. But even if Ratliff prevails, it will be a minor victory. The only question is which incarnation of HB 4 will eventually reach the governor’s desk–the terrible version or the God-awful one.

See You in 2005

This session’s push to privatize state prisons, a bad idea that just wouldn’t go away, finally expired on May 27 at the hands of a technical amendment to an omnibus government reorganization bill. It was a refreshing moment in this lobby-dominated session that a group of riled prison guards and small-town residents actually sank the big-money private prison industry’s pet legislation.

Private prison companies such as Wackenhut and the Corrections Corporation of America (CCA) had lobbied all session for a proposal by Rep. Ray Allen (R-Grand Prairie) authorizing the privatization of up to half the state’s jails. The measure would have removed control and oversight of private prisons from the Texas Department of Criminal Justice in favor of a new board with the cryptic name Commission for Private Initiative that would have authority to privatize any state prison. The central argument for private prisons is that they save money. But there’s little proof that these companies can run prisons any cheaper than TDCJ. Of course, companies like Wackenhut and CCA stand to make a fortune on the deal, mostly by cutting corners, like, say paying prison guards as little as $9 an hour. Guards at newly privatized state jails could have faced as much as a 40 percent pay cut. Needless to say, this didn’t sit well with the prison guard unions. They began telling everyone who would listen that slashing their income wouldn’t just hurt them, but would wreck the many small-town economies built around penitentiaries.

Allen’s private prison initiative had already died twice only to be reborn. The bill failed to pass the Democrat-dominated House Corrections Committee despite the fact that Allen is the chairman. So Allen pinned the measure to House Bill 2, Rep. David Swinford’s (R-Dumas) massive government re-org measure that withered during the Democrats sojourn in Ardmore, Oklahoma. But late in the session, Swinford’s bill was reincarnated, along with its private prison section, as Senate Bill 1952.

By the time SB 1952 reached the House floor during the session’s frantic final week, private prison opponents had convinced members with public prisons in their districts that the proposal would be a disaster. Reps Lois Kolkhorst (R-Brenham) and former corrections committee chairman Pat Haggerty (R-El Paso) drafted an amendment that replaced the bill’s private prison section with a measure that established an interim study of the issue between legislative sessions–the political equivalent of “wait till next year.” A coalition of six House members recruited 73 co-signers for the amendment, an overwhelming show of support that forced Swinford to accept the rider. It was a tough defeat for the private prison industry, which poured hundreds of thousands of dollars in campaign contributions and lobbying fees into its efforts this session. But when the mere mention of potential privatization sends prison company stock up, there is little doubt this measure will resurface at some point in the future.

Perry’s Bad Hair Day

Perhaps no day better epitomized Gov. Rick Perry’s tenure this session than Tuesday, May 20. In the span of a few hours, the honorable Mr. Perry displayed an impressive trifecta of incompetence, hypocrisy, and bully tactics.

The governor was in a foul mood ever since he heard that the budget-writing conference committee was waffling on fully funding his coveted $250 million business enterprise fund. It seems that legislators were having second thoughts about kicking several hundred thousand children off Medicaid and the Children’s Health Insurance Program so that the governor could have a slush fund to bribe corporations into moving to Texas. Perry is all for tightening the belt on state spending–as long as it’s not his belt.

As for the kids losing health insurance, he adopted the let-them-eat-cake approach. At a press conference that morning, he told reporters that kids booted off CHIP “may be picked up in some other programs, whether it’s Medicaid or what have you.” That’s a head-scratcher. CHIP, after all, was created specifically for families who earn too much to qualify for Medicaid. Perry then said he didn’t buy the argument that uninsured children would overwhelm local hospitals. (Seems like only yesterday the governor had a different take on CHIP. On April 3, 2000, during a daylong barnstorming tour to promote the program, then-Lt. Gov. Perry told the Associated Press that CHIP was desperately needed because “there are some children in Texas who are forced to receive health care in expensive emergency room situations.” Oh, well. Never mind.)

Perry had called the press conference to back-pat Reps. Dianne Delisi (R-Temple) and Mike Krusee (R-Round Rock) for their transportation bill that would raise traffic fines on repeat bad drivers to supplement state funding for trauma care. It’s a nice idea. But then so is hiking the cigarette tax–an idea that Perry had dismissed, yet again, just the day before. Wasn’t it hypocritical, pesky reporters wanted to know, for the governor to support increased fines on dangerous drivers but to oppose a higher cigarette tax? Perry sidestepped that one, but couldn’t shake off the fact that Senate Republicans also weren’t cooperating. They planned to slice the bill’s percentage of trauma care funding in half, from 50 percent to 25.

By Tuesday afternoon, the governor’s frustration finally boiled over in the now-infamous rail-vaulting incident directed at Sen. Eddie Lucio (D-Brownsville). For most of the session, Lucio was content to roll over and do the governor’s bidding. But he balked at an asbestos bill by Sen. Kyle Janek (R-Houston). Another industry valentine in a session chock full of them, SB 496 would have further restricted companies’ asbestos liability. An enraged Perry charged into the Senate chamber, swung over the waist-high railing that encircles the Senate floor and publicly berated Lucio for actually opposing a business lobby handout. As Perry stormed off, his aides told Lucio’s staff that the senator had made a “fatal mistake.” Exactly what they meant became clear the next day when some of Lucio’s most cherished bills suddenly hit legislative snags. By week’s end, cooler heads had prevailed in the governor’s office, and some of Lucio’s bills were moving again.

But Perry and Chief of Staff Mike “The Knife” Toomey are no doubt keeping score. And payback, er, veto season is still to come.

Free at Last?

It’s not exactly due deliberate speed, but it was good news for the 13 Tulia residents who remain in prison following the controversial 1999 drug bust in the Panhandle town. The House unanimously passed a bill sponsored by Rep. Terry Keel (R-Austin) that allows for the release of the Tulia 13 on bond while the Texas Court of Criminal Appeals decides their cases. Earlier in the month, the Senate bill, sponsored by Sen. John Whitmire (D-Houston), also passed unanimously. The legislation now goes to Governor Perry, who recently asked the Texas Board of Pardons and Paroles to review all the Tulia convictions. Uncorroborated testimony from now discredited Drug Task Force undercover officer Tom Coleman resulted in 39 convictions, most of them from Tulia’s black community. In March, retired state judge Ron Chapman began holding evidentiary hearings in Tulia to determine if Coleman was a credible witness. Chapman adjourned the hearings early and on April 1 announced that he was recommending to the Court of Criminal Appeals that all of Coleman’s convictions in Swisher County be vacated. The prosecution has said that it would not seek to re-indict the Tulia defendants if the Court of Criminal Appeals granted new trials. On April 26, Coleman was indicted on three counts of aggravated perjury, all stemming from his testimony in the March evidentiary hearings.

Raymond Fights On

The Killer Ds are home but the fallout from their trip continues. Lost amid a growing scandal over the misuse of federal homeland security power and document shredding by state police is a pending federal lawsuit filed by Rep. Richard Raymond (D-Laredo). The suit is against the State of Texas and House Redistricting Committee Chair Joe Crabb (R-Atascocita) for alleged voting rights violations.

As a member of the Redistricting Committee, Raymond constantly challenged Republicans throughout the hearings about the propriety of U.S. House Majority Leader Tom DeLay fashioning a redistricting map in private that would eliminate as many as 10 Congressional Democrats. In a May 3 hearing, Raymond implored Crabb to hold a series of bilingual field hearings around the state, especially in South Texas, so non-English speakers could have input. To this, Crabb, in a now-famous flash of ignorance, replied, “Mr. Raymond, there are only two people on the committee that speak Spanish. The rest of us would have a very difficult time if we were out in an area other than Austin or other English-speaking areas to be able to have committee hearings or to be able to converse with people that did not speak English.” Raymond promptly put that quote into a formal complaint letter to the U.S. Department of Justice’s civil rights division.

He later learned that DeLay had pressured the Justice Department into stalling the complaint. So lawyers for Raymond filed his lawsuit in Federal District Court in Laredo on May 12, the day after he and fellow Democrats bolted for Ardmore, Oklahoma. The suit charges Crabb and the State of Texas with violating the bilingual election provisions of the federal Voting Rights Act. The redistricting plan is dead for the time being; Raymond intends to follow through on the suit. Stay tuned.