Henry Ford once said that history is “more or less bunk.” He must have had Texas in mind. Neither the stalwarts at the Texas Capitol nor the Governor’s Mansion seem too interested in history, particularly when it comes to property rights issues here in the Lone Star State.
That was apparent in Waco on October 24, when Gov. Rick Perry signed into law Senate Bill 7, which limits cities’ ability to use eminent domain. Perry’s signing ceremony took place just 100 miles south of the spot where one of the biggest land scandals in the state’s history took place. It was the scandal that helped propel George W. Bush into the White House and Perry into the Governor’s Mansion. That same land deal put nearly $15 million into Bush’s pocket just weeks before he declared his plan to run for president. Of course, we’re talking about the Texas Rangers-Ballpark in Arlington land grab that Bush and his cronies engineered in the early 1990s. Bush’s cronies pushed a bill through the Texas Legislature—their main lawyer-lobbyist was Ray Hutchison, husband of U.S. Senator Kay Bailey Hutchison (R-Texas)—that gave eminent domain powers to a quasi-governmental entity in Arlington. They then used that power to seize land—including a 10-acre horse farm owned by the Fanning family—in order to build the new stadium. The Bush cronies offered the Fannings just $1 million for their home and the 10 acres around it. Later, after protracted litigation, the Fannings were awarded an additional $4 million, none of which was paid by Bush or his partners.
Land rights came to the fore here in Texas after a U.S. Supreme Court ruling in June, which decreed that cities may seize private land and turn it over to land speculators for new developments. The case involved the city of New London, Connecticut, which took property from a group of families and gave it to drug giant Pfizer for its new $270 million research center. The decision outraged conservatives and liberals alike. The libertarians at the Cato Institute said the ruling means “no one’s property is safe.”
Almost immediately after the ruling, states around the country began scrambling for laws limiting eminent domain. Texas was among the first. In signing the bill, Perry said it ensures that “a developer’s dreams for a new strip mall or skyscraper do not take precedence over your dream of keeping your own home.” Bush’s successor added that eminent domain “for private use is a great threat to Texans’ rights.”
Funny, he didn’t mention the words “baseball” or “stadium.” Nor did Governor Goodhair mention “Dallas Cowboys” or “Jerry Jones.” And yet, the Cowboys have convinced the city of Arlington to use its power of eminent domain to clear huge swaths of land—the list includes dozens of homes and numerous small businesses—in order to make way for Jones’ new $650 million stadium. By mid-September, some 88 properties were facing condemnation proceedings. And yet none of our brave legislators nor the governor appear interested in discussing property rights when football is involved.
The hypocrisy infuriates Jim Runzheimer, an Arlington lawyer and accountant who has been fighting the city’s stadium-building plans since Bush’s stint with the Texas Rangers. “Protecting property rights in Texas only happens in an ethereal sense,” Runzheimer said. “When it comes to real people, it doesn’t matter. It’s part of a fraud on the taxpayers of Texas.”
The governor’s press office didn’t respond to repeated requests for a statement.
“I hate politics.” So says the man who investigated Karl Rove. No, not Patrick Fitzgerald, the special prosecutor in the CIA leak case, but rather that other, less-celebrated Rovian inquisitor—Rusty Hierholzer, sheriff of Kerr County. Hierholzer is sitting in his Kerrville office on a Friday afternoon in early November surrounded by wall-mounted antique pistols and rifles. In front of him on his wooden desk lie two large, paper-filled white binders. They’re the product of his just-completed three-week inquiry into whether Rove, the powerful White House advisor, is legally a resident of Kerr County, Texas, and if Rove committed a Class B misdemeanor by registering to vote (and then voting) in a county he doesn’t live in. “Yeah, I’m a Republican,” says Hierholzer. “You have to be a Republican if you want to get elected here.” He’s not political, though. He’s spent his entire career in law enforcement, the past 25 years in the Kerr County sheriff’s department.
The genesis of Hierholzer’s politically charged investigation was a September 3 Washington Post story reporting that Rove had received a homestead exemption from property taxes on his million-dollar Washington, D.C. home. Rove shouldn’t have been getting the tax break because he’s registered to vote—and legally resides—in Kerr County. That was news to many in Kerrville who had never seen the man around town. On October 3, Frances Lovett, a registered nurse in Kerr County, filed a criminal complaint with the district attorney’s office in Kerrville, challenging Rove’s Texas residency.
Rove and his wife Darby have never lived in Kerr County, but have owned land there since 1997. They bought, and later sold, the River Oaks Lodge outside of Kerrville. The Roves still own two small houses, behind the main lodge that are valued at $25,000, according to county land records. (“They call them cottages, but they’re bigger than a lot of places I’ve lived,” Hierholzer says.) When Rove sold his Austin home in 2003, he changed his voter registration to Kerr County, the only place in Texas he still had property. The Roves reportedly spend the occasional weekend in one of the cottages. Does that qualify Rove to vote in Kerr County? Hierholzer was dispatched to investigate.
“What you and I think of as residence is not what the courts have deemed a residence,” the sheriff says. Under Texas court rulings, your residence is basically wherever you decide it is, so long as you plan to eventually live there. “You have to know, what was their intention when they signed [the voter registration card],” Hierholzer says. “I had to prove that [Rove] made a false statement in putting down his address as here. If they didn’t intend to return, then it’s voter fraud.”
Hierholzer combed through records for all the Roves’ land holdings, including their vacation house in Key West, and their voting records going back 20 years. He questioned Texas Secretary of State and Rove pal Roger Williams. Hierholzer said he was surprised to learn that the secretary of state, who oversees elections, is appointed by the governor (who’s running for reelection himself) and that Williams, who owns car dealerships outside Fort Worth, has little experience with elections. Hierholzer then talked on the phone with Rove, who said he intends to live in Kerr County when his work in Washington ends. Ultimately, the sheriff found no evidence to contradict what Rove said. After reading the sheriff’s report, the county attorney announced that he wouldn’t file charges and that Rove was free to vote in Kerr County. As far as his mansion in Washington, Rove was forced to pay an estimated $3,400 in back taxes covering the years 2002 and 2003, according to the Post.
CirKKKus in Austin
Protesting the Ku Klux Klan is a bit like denouncing cockroaches—understandable but not exactly pertinent or much in dispute. While recent protests in Austin against the death penalty and the war in Iraq drew only a few hundred people, an estimated 3,000 protesters showed up on November 5 at Austin City Hall to yell, chant, wave signs, and gawk at the dozen members and supporters of the San Angelo-based American White Knights of the Ku Klux Klan (AWKKKK), who were holding a “Texas Rally Against Legal Fag Marriages.” In other words, AWKKKK was there in support of Proposition 2, the November 8 ballot measure to amend the Texas Constitution to ban gay marriage.
To protect the dozen Klan members, the Austin Police Department sealed off several blocks around the city hall and deployed 200 cops, many in full riot gear, as well as a helicopter, and four patrol boats in nearby Town Lake. Of a dozen protesters interviewed by the Observer, not a single person reported actually seeing a Klansman and most were shocked to learn that the police force present guarded just a handful of people. One cop conceded that the whole operation was “a big waste.”
The Klansmen and Klanswomen present didn’t sport the usual white robes (it’s after Labor Day, after all), but instead wore black military-style garb, and some covered their faces with Confederate-flag bandanas. “We’re asking Texas to support Proposition 2 because God supports it, not because the KKK supports it,” said Grand Dragon Steven Edwards in front of city hall. Edwards tried to present the AWKKKK as a reasonable—one might say, politically correct—Klan outfit. “We are not a hate group,” he explained. “We hate the lifestyle, not the person.” That’s a line often employed by many Christian conservatives who oppose homosexuality. It’s never good to have the Klan echoing your talking points. And many conservative organizations supporting Proposition 2 were distressed that the Klan came out in favor of the ban on gay marriage. Kelly Shackelford with Texans for Marriage, a main group backing Prop 2, acknowledged that the Klan’s Austin rally was bad PR, but speculated that, “the other side had something to do with these guys showing up.”
That other side, meanwhile, couldn’t agree on what to do about the Klan rally. Some, including Austin Mayor Will Wynn, called on Austinites to ignore the event, while radical groups such as Anti-Racist Action planned direct action to shut the Klan down. No Nonsense in November, the anti-Prop 2 campaign led by former state Rep. Glen Maxey, held a 2,000-person-strong march on the south First Street bridge in front of city hall. No Nonsense decided to make the day about gay rights and Proposition 2 and not the small band of racists holding court in front of bored reporters. “I come to this place standing with my back to those who hate me, looking literally and figuratively into the eyes of thousands of Texans who have stepped out of their fear,” Maxey told the crowd.
Many Texas media outlets had been hyping the Klan rally for almost two weeks. On the day of the event, though, several reporters expressed remorse for turning the AWKKKK’s lackluster event into a spectacle. Said one reporter, who asked not to be named, “If they called themselves the San Angelo Club of White Dorks no one would have shown up.”
Clean Air Victory?
On October 27, two administrative law judges ruled that the copper smelting facility in El Paso run by ASARCO should not be granted a renewal of its air permit. The facility halted its smelting operation in 1999. ASARCO officials have said they have no immediate plans to reopen the facility but need the permit renewal for an ongoing maintenance program at the facility.
Over the course of a two-week hearing held in El Paso last July, judges William Newchurch and Veronica Najera from the State Office of Administrative Hearings listened to testimony on whether the proposed permit would “cause or contribute to a condition of air pollution in El Paso.” If ASARCO is allowed to resume operation, it could emit as much as 7,000 tons per year of new pollutants, including a total of 6,673 tons of sulfur dioxide per year, more than 12 times more SO2 than all other sources emitted in El Paso County in 2002. ASARCO would also be allowed to emit 7.6 tons of lead per year. Currently, the Environmental Protection Agency is trying to clean up widespread lead contamination in El Paso that many blame on almost a century of the smelter’s operation (See “Clean Up or Cover Up?” October 8, 2004).
The ruling by the two judges is not the last word on the issue. ASARCO has until November 28 to file objections. Then, sometime early next year, commissioners with the Texas Commission on Environmental Quality will take up the recommendation. They can do anything from accept to reject to modify the judges’ ruling. “The commissioners have a wide latitude when they get a proposal for a decision,” says Terry Clawson, a TCEQ spokesman.
Environmentalists have charged that ASARCO wants the air permit renewal as a way to forestall what they say will be a costly cleanup of the facility. As part of the hearing process, members of the Sierra Club, which obtained standing in the proceeding to object to the permit, toured the El Paso smelter. Neil Carman, who directs the Clean Air Program of the Lone Star Chapter of the Sierra Club, testified that the facility is in an advanced state of decay and disrepair, with gaping holes, missing equipment, and inches of potentially toxic dust on the floor. “It’s the worst thing that I’ve seen in my 25 years of doing air pollution work,” he said. “To me it’s evidence that they don’t ever plan to operate again.”