INEXPERIENCE AS A VIRTUE?
As far back as 1891, Texas voters and legislators thought it would be a good idea for their Supreme Court justices to have some hands-on legal experience, either as a practicing judge or as a practicing lawyer, before they joined the state’s highest court. At first, the amount of experience was set at seven years. In 1945, voters approved a constitutional amendment to increase it to a decade. But what exactly constitutes “practicing” is worth parsing when it comes to Governor Rick Perry’s new appointee, Don Willett.
It appears Willett’s main qualification for the court is his service as a loyal apparatchik. He has risen quickly in the Republican ranks since graduating from Duke University Law School in 1992. Four years out of school, he won a job as Special Projects Director for then-Governor George W. Bush. That position morphed into Domestic Policy and Special Projects Advisor to the Bush-Cheney campaign and transition team. He then became Director of Law and Policy in the White House Office of Faith Based and Community Initiatives. From there he moved to Deputy Assistant Attorney General in the U.S. Department of Justice, and has most recently served as Deputy Assistant Attorney General for Texas Attorney General Greg Abbott. According to Willett’s resume, during his entire career, it appears he practiced law, as an employment lawyer, for a grand total of three years.
The governor, perhaps recognizing the lack of experience of this, his fifth appointee to the nine-member court, tried to put a positive spin on an obvious negative. “[Willett’s] appointment will allow the court to benefit not only from his unique combination of skills and expertise but also a more diverse array of professional backgrounds,” a Perry press release proclaimed on August 24.
In Perry’s statement, the governor noted that both Texas Supreme Court Chief Justice Wallace Jefferson and U.S. Supreme Court Chief Justice William Rehnquist had not served as judges prior to their appointments to the bench as well. The difference between these two men and Willett is that they each had considerable experience practicing the law. In Jefferson’s case, he was board certified in Civil Appellate law, not an easy test to pass. During 16 years in practice, Jefferson wrote, researched, and argued appellate cases, making him quite qualified for his new position. In the case of Rehnquist, he served as a Supreme Court clerk and practiced law for 16 years before joining the court. For the other current Texas Supreme Court justices, the average amount of prior judicial experience is seven years.
Like Rehnquist, Willett also served as a clerk for a year, in his case to a judge on the Fifth Circuit Court of Appeals. Today, the 39-year-old newly minted associate justice says that his experience reviewing hundreds of cases and memos for Abbott and the DOJ qualifies him for his new job. Texans will just have to take that on faith—that’s something in which Willett does have experience.
THE POWER OF THE PEN
You’ve probably never heard of the State Power Program. Unless you live in Galveston, that is. For more than a year now, the local newspaper, The Galveston County Daily News, has been investigating the General Land Office’s electricity-generation program. Begun in 2001, the State Power Program was conceived by then-Land Commissioner David Dewhurst (he’s now the Lite Gov) as a way for Texas to profit from its natural gas holdings. It works this way: The land office sells natural gas to a private power company (Reliant Energy), which uses the gas to generate electricity. Reliant then sells the resulting electricity, tax-free, to various local entities such as school districts, hospitals, and cities. Because the state agrees not to impose taxes on the power, the school districts or hospitals, in theory, should get a cheaper price on their electricity. Reliant takes a healthy slice of the earnings and sends the rest back to the General Land Office, which deposits the resulting profit into the state’s Permanent School Fund. In the end, Reliant should clear a profit, schools and hospitals save on their energy bills, and the proceeds go to the school kids of Texas. Perfect, right?
Not according to the Daily News’ reporting. In a long series of investigative stories, the newspaper has raised questions about how beneficial the State Power Program really is for the state. The paper reported that the program earns the school fund about $6 million a year. That’s not near the $150 million a year Dewhurst predicted when the program started. Reliant, the newspaper reported, has pocketed quite a bit more—$877 million during the past three years from selling state-fueled power. Meanwhile, some local entities, such as the Galveston Independent School District, claim the program’s electricity isn’t all that cheap. All this raises the question of whether the program is simply a boondoggle for Reliant.
If the program is a bust for the state, it wasn’t for lack of know-how on the part of its progenitor. David Dewhurst made his personal fortune in 1996 when CalEnergy Company bought three gas-fired power plants his company, Falcon Seaboard, had built. After his 2002 election to the Lite Gov position, Dewhurst named former Reliant lobbyist Bruce Gibson as his chief of staff.
Land Office officials vehemently defend the program. They point out that the $6 million a year that the gas-to-electricity arrangement earns for the school fund is $6 million more than the state would make if it simply sold its natural gas on the open market. “It’s free money,” says Jim Suydam, a spokesman for the General Land Office.
The argument has gone way beyond disputes over electricity prices. In March, Jerry Patterson, the sometimes hot-tempered Land Commissioner, responded to the Daily News series by buying a full-page ad in the paper. (Patterson used campaign funds for the ad; it cost $2,212.85, according to campaign finance records.) The ad accused the paper of “fuzzy math and other shoddy journalism,” and compared the Daily News’ reporting to Vladimir Lenin’s propaganda. Suydam concedes that the dispute got a little personal after that.
The Daily News refused to be intimidated. It kept on requesting documents under the Texas Public Information Act. In June, the paper filed suit against the Land Office for withholding public documents. Editors at the paper say the agency has complied with only a few of their more than 20 records requests in the past year. Agency officials say they’ve followed the law.
One of the sparring sides may soon receive some outside corroboration. The House General Investigating and Ethics Committee will begin hearings this fall on the State Power Program.
As of August 1, Texas prisons were at 99.67 percent capacity. City and county jails are not faring much better. In Harris County, jails are so full prisoners have been forced to sleep in the bathrooms. This bulge in prison capacity is not due to a surge in crime but rather represents a grotesque and avoidable political failure.
There are many terrible consequences of prison overcrowding. In order to deal with the crisis, prison officials often resort to lockdown. Prisoners sometimes are allowed out of their cells for only one or two hours a day. Family visits are curtailed, as are work programs. There are currently units in Texas prisons that have been under lockdown for more than 400 days, according to the ACLU. Not surprisingly, overcrowding also leads to an increase in prison violence, particularly rape. The number of reported prison rapes in Texas has increased 160 percent since 2000, according to the trade publication Corrections Professional. There are allegations that prison guards sanction rape as a way to control prisoners—a task that increases in difficulty with overcrowding. (Current staffing in Texas prisons is at less than 90 percent of what is should be, the ACLU estimates.) Finally, Texas prisons have become a breeding ground for dangerous communicable diseases like Hepatitis C, HIV, staph, and tuberculosis. Cases number in the tens of thousands. The estimate for the number of Hepatitis C cases in Texas prisons alone is 20,000. Prisoners are released back into their communities as walking public health threats. Opportunities to properly isolate and treat these illnesses decrease in situations of overcrowding.
If there is one place in the state that can be singled out as the most dysfunctional in its treatment of offenders, it’s Harris County, home to Houston, the fourth-largest city in the nation. “Harris County is the epicenter of all that is wrong with the Texas criminal justice system,” says Will Harrell, executive director for the Texas ACLU.
According to the Texas Commission on Jail Standards, overcrowding this summer at the Harris County Jail resulted in as many as 1,900 inmates being forced to sleep on the floor. Harris County provides 65 percent of state jail felons sentenced to county jails in Texas, according to the ACLU. No other county in Texas locks away as many felons who could otherwise be put in treatment programs. It’s a problem legislators thought they had solved both at the local and state level until they ran into activist judges and Governor Rick Perry.
In 2003, the Lege passed House Bill 2668, which requires that those without prior felonies who are convicted of a state jail felony—the lowest level of felony in Texas—for a nonviolent offense of possession of a small amount of drugs be placed into a community supervision and treatment program. But loopholes in the law allow judges to circumvent this directive and sentence such offenders to a Class A misdemeanor, thereby sending them to county jail for up to one year. Another way to avoid releasing drug offenders is to set high bonds that they cannot afford to meet. A Houston Chronicle editorial recently called criminal judges in the county who liberally employ both loopholes “activist judges” for not following the legislative intent of the law. Since September 1, 2003, the number of state jail felons sentenced to county jail in Harris County has grown by 188 percent.
The lock-’em-up philosophy of Gov. Perry has guaranteed that either a widespread prison crisis or an expensive prison construction boom is in the state’s immediate future. During the regular legislative session that concluded in May, both chambers passed House Bill 2193, a bipartisan probation reform measure that would have lessened overcrowding in prisons by reducing the recidivism that results from minor technical parole violations. Facing vociferous opposition from county prosecutors and a tough primary challenge, Gov. Perry vetoed the measure.
On August 9, President George W. Bush asked for the resignation of Arturo Duran, head of the International Boundary and Water Commission (IBWC). By the end of the month, Duran—recommended to the post by Laura Bush’s college roommate—was gone, the final chapter of a remarkable employee insurrection at the IBWC that could raise the hopes of government whistleblowers everywhere.
Nominally an agency of the State Department, the IBWC is not well-known to the public but performs essential services along the 2,000-mile U.S.-Mexico boundary, including the maintenance of levees and dams on the Rio Grande that protect communities from flooding in South Texas and Mexico. The agency’s mission was being jeopardized by the actions of Duran, IBWC dissidents said. When they failed to interest Duran’s superiors in their allegations, a core group of three individuals, buttressed by “many, many, many” supporters within the IBWC and calling themselves the “Freelance Troublemakers,” took action.
Two organizers of the campaign, a professor and an IBWC employee, both of whom requested anonymity, described to the Observer how they and other agency employees set out to save their commission by ousting Duran. In August 2004, they wrote an unsigned letter to the State Department’s Inspector General detailing allegations of misconduct and abuse of power. With the help of U.S. Rep. Silvestre Reyes (D-El Paso), the whistleblowers convinced the inspector general to launch an extensive investigation. In a scathing report released in March, the investigators found that Duran had “little apparent interest in the realities of his own agency” and had instilled “a climate of fear and disaffection” among his personnel. As a result, critical maintenance of levees and dams fell behind, worrying farmers and residents from El Paso to the lower Rio Grande Valley. Despite the inspector general’s findings, Congress and the White House failed to act.
Frustrated, the whistleblowers turned to the Internet. On July 4th they launched a slick and very entertaining website, www.ibwcanonymous.org, as a means of publicizing and ridiculing Duran’s shenanigans. As documents poured in from IBWC employees, they were vetted and put up on the site, usually accompanied by the Freelance Troublemakers’ acerbic commentary. People took notice. The Congressional Border Caucus held hearings and powerful senators such as Kay Bailey Hutchison started talking to the White House. Within a month of the site’s launch, President Bush asked Duran to resign. “By putting everything in front of people—not just the allegations, but the documents that support the allegations,” the whistleblowers’ cause became impossible to ignore, contends one IBWC employee.
The whistleblowers’ website is a veritable rap sheet of Duran transgressions. It documents, for instance, the commissioner’s gutting of experienced staff, hiring of personal friends, use of agency funds for personal trips to Washington, D.C., mistreatment of the IBWC’s Mexican counterparts, and even includes Duran’s attempt to lease a Cadillac Escalade with “raven black, shale nuance leather seating surfaces” and a load of custom features for almost $12,000 annually. The documents were given to the website operators by “dozens of people within IBWC,” many of whom risked their jobs to do so, said one of the ringleaders.
“I think what is so beautiful is that a website was instrumental in bringing down the head of an agency. And it was all done with reverse secrecy. In this case secrecy was used as a means of exposing abuse,” said
the source. “The
e was a way to have this information accrete anonymously in a single source that was available to anyone with a computer—a place where this stuff just stacked up… The grassroots nature of it is just astonishing.”