Living Up To The Name
It seems Rep. Joe Nixon (R-Houston) considers himself a victim. The way Nixon sees it, he had the guts to stand up to the all-powerful trial lawyer lobby by shepherding House Bill 4, a massive tort reform package, through the 78th Legislature. He also authored a constitutional amendment that codifies caps on jury awards for medical malpractice and allows the Legislature to impose future caps without a public vote.
Currently the subject of a series of scandals, Nixon sees trial lawyer revenge behind the flurry of bad press. The media attention may even be connected to the looming vote on Proposition 12, the tort reform constitutional amendment the lawyer-legislator sponsored. And indeed, there are efforts by opponents of Prop 12 to use Nixon as a compelling reason why voters should defeat it.
In the end, playing the victim may be a good defense for Nixon. His alleged misdeeds are so brazen that it strains credulity that anybody could be such a robust combination of stupid and greedy.
The latest Nixon disclosure came out in the Houston Chronicle. The paper reported on an e-mail written by lawyer Hartley Hampton detailing a meeting he had with Nixon on December 11 of last year. In the meeting, Hampton claims Nixon complained that in order to get a chairmanship from Speaker Tom Craddick–who wouldn’t officially be elected speaker until the following month–he had to be personally vetted by Dick Weekley of Texans for Lawsuit Reform (TLR). Nixon and Weekley deny the substance of the allegation while admitting to conversations during that time. In the end, Nixon got the chairmanship of the Civil Practices Committee and pushed through the laws TLR wanted. These revelations followed on the heels of an excellent article written by Tim Fleck in the alternative weekly Houston Press. The story brings together two separate Nixon scandals. The first involves an insurance claim the Nixon family made over mold damage to their house. The problem forced Nixon, his wife, and three teenage sons to decamp from their Briargrove Park home in West Houston to a small two-bedroom apartment for a year while mold was removed from the house.
Nixon received a $300,000 settlement of his claim by Farmers Insurance Group. The settlement paid for the complete restoration of his 35-year-old home, including new floors, a new driveway, and landscaping. It was the driveway that prompted Isabelle Arnold, the Farmers Insurance national mold manager at the time, to complain in a recently published e-mail that Nixon received preferential treatment on an unjustified claim. Arnold says that high-level Farmers officials ordered Nixon be paid at least $13,000 for parts of his claim that weren’t covered by his policy to ensure that the chairman remained “a friend of Farmers.”
Coincidentally, the payout occurred during the legislative session in which Nixon played a key role in insurance regulation. The allegations have spawned a Travis County grand jury investigation. Nixon denies wrongdoing in the matter. He is shocked, simply shocked, that anyone would suggest he could be unduly influenced.
The second part of the story involves the Oak Ridge Baptist Church in Spring, Texas. It too had a mold problem. The church was forced to move out of its mold-infested building on I-45 in 2000. Since then it has resided at four different temporary locations in almost as many years. The stress from the moves has whittled the congregation down by half.
In order to get its claim filled, the church was forced to sue several insurance companies. The trial was scheduled for last February 2003, in Montgomery County. By that time, the lawsuit was already 10 months old. In November 2002, the insurance company defendants added Joe Nixon to their legal team. This allowed them to partake of a legislative continuance that permits trial postponements so lawmaker-lawyers can concentrate on the legislative session that begins in January. The continuance is good for 30 days before a session and 30 days after. Add two special sessions on redistricting, and today the Baptists are still waiting for their day in court. Their lawyers charge that Nixon was only added to allow for more delays. The Houston state representative has refused to discuss the case with the media.
But there is a good chance more of the public will become aware of the actions of Rep. Nixon. As of this writing, Prop 12 opponents are planning a campaign of both television and mail pieces rumored to prominently feature his recent entanglements.
Despite their straight-faced denials to the contrary, Republican leaders in the House and Senate chose September to hold a vote on Proposition 12 in the hope that the fewest number of voters would go to the polls. If legislators had wanted a larger turnout, they would have scheduled the vote for November. Now the improbable election of September 13 is upon us.
For those not keeping score (See “Tort Reform: How Big Business Is Pulling the Strings,” TO, April 25, 2003), during the 78th Legislature, a select group of Republican businessmen allied with a malleable doctor’s lobby spurred lawmakers to pass House Bill 4, a radical rewrite of the state’s civil justice system. Chief among its many components was a cap on how much money a jury can award for non-economic damages such as pain, suffering, or disfigurement. The Lege decided that when it comes to medical malpractice cases, the sum should be a maximum of $750,000 per family. During the session, a pre-walkout House Democratic Caucus caved and also allowed Republicans to pass a constitutional amendment codifying both the med mal cap and the Lege’s ability to impose new caps in the future. Now their constitutional amendment has come to the public for approval as Prop 12.
Stripping juries of their power is an incursion on a right so basic it dates to the Magna Carta. Critics as diverse as the American Association of Retired People and the Eagle Forum believe that defanging juries will remove a vital check on doctors and corporations that helps ensure consumer safety. They question claims by backers of the measure that high insurance rates for doctors are the result of too many malpractice suits.
Can a one-size-fits-all judgment be truly fair? For example, try telling a woman who shared an elevator with a piece of a partially decapitated doctor what her pain and suffering is worth. Last month, Karin Steinau watched in horror as the elevator in a downtown Houston hospital closed on Dr. Hitoshi Nikaidoh’s head and started going up leaving his body behind. Lawyers for Nikaidoh’s family made sure to file their lawsuit before HB 4 went into effect in September. They say there is evidence the elevator was poorly maintained at the time of the accident. Emergency sensors apparently malfunctioned. In other words, this was no act of God. Someone is to blame. Do we let Joe Nixon and his ilk decide what 20 minutes in an enclosed elevator with a bloody severed head is worth? How about the effect it has on the family of the victim?
For the males amongst us still debating whether to invest the time to vote, we offer a cautionary tale by way of the Associated Press. When Hurshell Ralls, a mechanic from Wichita Falls, went under the surgeon’s knife in 1999, he was hopeful doctors would remove the cancer in his bladder. Unbeknownst to the anesthetized Ralls, the two surgeons decided that the cancer had spread to his penis. The offending member had to go. According to the complaint, the surgeons opted not to wait the 30 minutes to an hour it would take for a laboratory test to confirm their diagnosis. So one snip and it was gone. It’s no doubt a small consolation to Ralls that a doctor looking at cell slides later determined the penis was cancer free.
This past August, Ralls reached an undisclosed out-of-court settlement after little more than a day of testimony. That’s what happens when the uncertainty of a verdict by an impartial jury of your peers looms in a defendant’s future. Or then again, you could just let someone like Joe Nixon determine how much your penis is worth.
Eating their Own As a freshman House member in the minority party, Rio Grande Valley attorney Aaron Peña had a noteworthy session last spring. He repeatedly attacked the Republican leadership, and even a few Democrats. He bolted to Ardmore, Oklahoma, with 50 of his colleagues, and he never split with the caucus on a key vote. With that record, Peña’s seat, in a solidly Democratic district, would seemingly be safe.
But while state party leaders may have liked Peña’s performance, not everyone in his district was so thrilled. On Aug. 28, well-known businessman Eddie Saenz made official what had been rumored for months–that he will challenge Peña for the Edinburg-based District 40 seat in the Democratic primary next March. Since no Republican can win the district–Peña ran unopposed in the 2002 general election–the victor of what promises to be a costly race will head to Austin.
That Peña need worry about a possible primary defeat speaks volumes about the state of the Democratic Party. A Republican freshman in good standing with GOP leaders can likely expect huge backing from his or her own party.
Still, Peña will not be easy to beat. His vocal, unequivocal stance on key Democratic issues has won him strong grassroots support in the district. Like most Dems, Peña saw many of his bills crushed by a hard-right Republican majority. Peña will portray himself as fighting the good fight. During the session, he even publicly lambasted Rep. Kino Flores (D-Mission) for working closely with Republicans. Flores, chairman of the Licensing and Administrative Procedures Committee, was one of 14 House Dems who broke ranks to cast decisive votes for the tort reform constitutional amendment known on the Sept. 13 ballot as Prop. 12.
Backed by chamber of commerce connections, Saenz has money to burn. His engineering company, J.E. Saenz & Associates, has been a key player in the Valley’s recent construction boom. As an Edinburg Chamber board member, Saenz can expect substantial support from the business community and some local officials who feel Peña didn’t work hard enough to funnel legislative pork to the district. Saenz is painting himself as the pro-business, consensus-building moderate who, following a Flores-like approach, says he will work with the leadership to bring money to the district. “There needs to be more than just filing legislation and letting it sit there,” Saenz said by phone from Edinburg. “I’m going to work with all the personalities that are up there.” Saenz, like Flores, has come out in favor of Prop. 12.
Peña will try to label Saenz as a closet Republican who will work too closely with the leadership to the detriment of South Texas. “The people for Prop. 12 and the medical lobby and the insurance lobby support my opponent and are taking, in my opinion, anti-Democratic positions,” Peña said.
The race is shaping up as a proxy fight between Flores and Peña.
It’s the kind of tussle that will shape the personality of the House Democratic Caucus. With right-wing Republicans likely running the Lege for several more sessions, races like this one will help determine whether we’ll see more Flores-style bargainers or Peña-like grenade-throwers.
Freedom And Folly
This has been a good summer for justice in Tulia, Texas. It began in Austin on June 2 when Gov. Rick Perry signed into law a bill to release 12 remaining prisoners wrongfully busted by the Panhandle Regional Narcotics Task Force. Observer readers know the Tulia story well thanks to former editor Nate Blakeslee (See “The Color of Justice,” June 23, 2000) who first broke it three years ago. Now nearly the entire world has learned the sordid tale of freelance narc Tom Coleman and his 18-month undercover operation that led to the arrest of 46 people in Tulia, 39 of whom were black. Task force officials and prosecutors knew that Coleman was a liar and a racist. But despite Coleman’s personal unreliability and uncorroborated testimony, at least nine ended up serving four years in prison before their release this summer.
Two months prior to the law’s passage, Coleman testified during an evidentiary hearing ordered by the Texas Court of Criminal Appeals. In his ruling after the hearing, a visiting magistrate from Dallas, Judge Ron Chapman, urged the Court of Criminal Appeals to grant new trials to those convicted in Coleman’s sting. Chapman has characterized elements of Coleman’s testimony as “blatant perjury.” The itinerant lawman was indicted for perjury in April. He pled not guilty. The first hearing in that case will be this September 25.
Within a couple weeks of the June bill signing, the 12 were officially free. After that, pressure grew on Perry to pardon all of Coleman’s Tulia victims. Even the typically tight-fisted Texas Board of Pardons and Paroles unanimously recommended the pardons.
Then on Friday, August 22, Perry granted full pardons for 35 of those caught in the Tulia sting. It was a joyous day, a long time coming for the Tulia victims. But the story is not over. That same day attorney Jeff Blackburn filed a federal lawsuit on behalf of two Tulia victims, naming Coleman, District Attorney Terry McEachern, and Swisher County Sheriff Larry Stewart as defendants. The Amarillo-based Blackburn also cited a total of 29 cities and counties in the region that participate in the regional narcotics task force. It remains to be seen how many others will sue.
But mixed in with the glad tidings of freedom are the seeds of future problems. Two weeks before the pardon, on August 14th, the local media reported that the Panhandle Narcotics Task Force, for whom Coleman worked, has received $800,000 in federal money distributed through Governor Perry’s office. While the money can be used for a variety of different purposes–from domestic violence prevention to homeland security–the bulk of it was granted for drug enforcement. (Perry included a paltry $70,000 for domestic violence.)
Texas ACLU Executive Director Will Harrell thinks the task force grant signals a failure by Perry to grasp what is really to blame for the Tulia mess. “While clearly acknowledging the wrongdoing in Tulia, [Perry] doesn’t have the vision to recognize that this is the result of structural problems with the task forces,” concludes Harrell. “Until he does, it’s only a matter of time before this happens again.”
Spared From The Knife
For the time being there is one less rip in the social safety net Republicans are bent on dismantling. On September 1, thanks to budget cleaving by the 78th Legislature, hundreds of thousands of Texans awoke without the health benefits on which they previously had relied. Thanks to a last minute legal action, thousands of recipients receiving unemployment benefits fared a little better.
About 25,000 welfare recipients stood to lose their Medicaid under a mean-spirited little provision of House Bill 2292 that passed last spring. The bill tightened welfare guidelines (known in policy parlance as personal responsibility agreements) and tethered them to Medicaid. Under the provision that was supposed to take effect this September, if welfare recipients don’t live up to the new standards, they will not only lose welfare, but also Medicaid benefits. It’s the kind of short-sighted policy that will save the state a few bucks next year, but will likely sock municipalities with higher health care costs when these people seek treatment in public emergency rooms. At an Aug. 5 meeting, the Texas Workforce Commission tried to slip the new policy into its rules through an “emergency order,” without public notice. The progressive folks at the A
stin-based Center for Public Policy Priorities (CPPP) ca
ght the bureaucratic sleight of hand and filed suit, claiming the commission violated the open meetings act. On August 29, state district Judge Darlene Byrne issued a temporary injunction preventing the commission from implementing the new policy. A hearing has been set for October 27. The reprieve, it appears, may be short-lived.