Legislative Terror

The homeland security and border funding legislation passed during the regular session will rank among the most important state policy changes never publicly debated. Don’t get us wrong. There was plenty of debate. Unfortunately, little of it focused on what was actually at stake. Instead the Lege-reversing more than 130 years of tradition-helped abet a power grab, allowing themselves to be bullied and frightened into relinquishing constitutional power to a governor who won re-election with 39 percent of the vote.

Going into the session, the legal basis for the governor’s authority on homeland security was tenuous at best. In 2003, the Lege passed House Bill 9 mandating that the governor “direct homeland security in this state.” It did not create a homeland security office, instead instructing the governor to develop a “strategy.” The bill conflated two distinct responsibilities: emergency preparedness (including disaster response) and terrorism prevention. The first is undeniably the governor’s responsibility. The other arguably is a law enforcement task that should be partitioned from political considerations. Any concerns that the governor might misuse law enforcement responsibilities were only heightened when his acting director of homeland security in 2003, Jay Kimbrough, contacted the FBI in Oklahoma trying to track down Democratic legislators who fled the state in an effort to halt mid-decade congressional redistricting.

In November 2005, the governor released the Texas Homeland Security Strategic Plan. It, and a few executive orders of questionable authority, seemed to provide the basis for Perry’s new homeland security director, former FBI official Steve McCraw, to anoint himself Texas’ top cop. The plan featured two particularly troubling elements. Guarding the border-historically a federal responsibility-became a key state concern. “Border security is fundamental to the prevention of terrorism,” the report alleged. “Al Qaeda plans to use alien smuggling organizations to infiltrate terrorists across the Texas-Mexico border.” Perry used this new focus to launch several multimillion-dollar initiatives, passing out money to border sheriffs, with most going to those who endorsed his re-election and embraced his plans. There was little accountability for how the funds were spent.

The plan also mentioned, obliquely, a new database called TDEx [see “The Governor’s Database,” April 20, 2007]. It was to be “a pointer index capability for all law enforcement agencies in Texas, so that the law enforcement community can quickly locate the law enforcement data they need.” In fact, McCraw hoped the database would include every Texan’s interaction with the criminal justice system from traffic stops to open police investigations. All of this would be accessible by the governor. It was a political opposition researcher’s dream.

This session, McCraw and Perry hoped to legalize retroactively the steps taken since release of the strategic plan. Their vehicle to do so, House Bill 13 carried by State Affairs Chairman Rep. David Swinford, a Dumas Republican, created a state office of homeland security in the governor’s office. It gave the governor broad authority over intelligence collection, made local officials responsible for enforcing immigration law, and created a formal mechanism to funnel money to border sheriffs. In the budget, Perry pushed a $100 million slush fund he could use for “border security.”

The legislation ran into trouble almost immediately. The Observer published its expose on TDEx in April, and legislators responded by forcing language into the bill moving the database to the Department of Public Safety. Houston Democratic Rep. Rick Noriega and others began questioning how Perry was spending border security money and who-McCraw or DPS-had command and control. The homeland security director didn’t do himself any favors when, on Perry’s stationery, he sent out a letter belittling Noriega. McCraw wrote: “Since it is your position that our border does not pose a terrorist threat, and because of that position you believe it is unnecessary to expand resources in protecting our border, I will make myself available to you or your staff immediately to provide a detailed briefing on why this mistaken position can cost lives.” Noriega happens to be a lieutenant colonel in the Texas Army National Guard who has served in Afghanistan and on the border.

Swinford found himself fighting to keep his legislation alive while apologizing for McCraw “[He’s] not a good people person,” Swinford said. “[The letter] was a huge error, and I have talked to him about that.” Swinford’s rhetoric and histrionics-at several key moments he broke into tears when he didn’t get his way-grew more heated as his bill faltered. By the end, Swinford was accusing those who disagreed with him of favoring drug traffickers.

The rhetoric obscured the real issues. In response to abuses by a governor, the Texas Constitution of 1876 created a weak executive without law enforcement responsibilities. Swinford didn’t want to talk about that. After his bill died on a point of order, he seethed at a press conference. “I am upset because the time we spent on the border, and seeing that they are winning and we are losing,” Swinford said. “The crime and the drugs are moving, looks like, about 50 to 100 miles inland every year. So two years from now, if this bill doesn’t come about, you can expect them to be taking over a lot more communities.”

In the senate, The Woodlands Republican Sen. Tommy Williams rejected Perry’s request for the $100 million border security slush fund. Instead, Williams and his budget subcommittee came back with $274 million for homeland security-most of it going through DPS. “They are our chief statewide law enforcement agency,” Williams said. The governor invited Williams, Republican Sen. Steve Ogden of Bryan and Democratic Sen. Juan Hinojosa of McAllen to his office and demanded that he be given the money to spend as he liked. (In addition to Perry’s personal demands, his staff urged local officials to lobby their legislators on his behalf, and activated his campaign organization, the Perry Alliance Network, to demand the governor get his way.) The senators held their ground.

In the final budget, Perry received $43 million for local law enforcement on the border, with tight restrictions on how it is spent, including monitoring by the Legislative Budget Board. The governor’s office had one last gambit. In the session’s final days, another homeland security bill, Senate Bill 11, by San Antonio Republican Rep. Frank Corte, was still alive. Corte shoveled parts of HB 13 into his bill in conference committee. With Dallas Republican Sen. John Carona as his cosponsor, the two convinced Valley Democrats Hinojosa and Rep. Juan Escobar of Kingsville to sign the conference committee report. The bill contained useful legislation on mutual aid and disaster preparedness in addition to expanded wiretapping, a border security council run by the governor, and an intelligence data center controlled by the governor. The language moving TDEx to DPS was gone.

Corte, the Republican House Caucus chair, ratcheted up the pressure with e-mail blasts accusing bill opponents of fighting legislation “that is quite literally a life and death issue for many Texans.” Asked about the politicization of the issue, Corte shrugged and said unapologetically, “There is a partisan aspect to this environment.”

The scaremongering helped. Noriega publicly supported SB 11, explaining later that it had improved and that the “implication was that we were being unpatriotic and against border security. … We wanted to question the process without putting members into harm’s way.”

After its passage, Corte was jubilant about formalizing Perry’s control over the law enforcement and intelligence aspects of homeland security. “The governor is responsible for public safety,” Corte said. “TDEx is going to be a great tool to look at pending cases.”

Noriega said the Mexican American Legislative Caucus will hold hearings in the interim on border and homeland security. Next session, DPS is up for sunset review, and many expect a more thorough discussion about the role of intelligence and homeland security. But as long as there is still crime on the border and the possibility of another terrorist attack, chances are that discussion will be a muted one.