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August 17th, 2013:

Saturday video break: Nothing Compares 2 U

Song #6 on the Popdose Top 100 Covers list is “Nothing Compares 2 U”, originally by The Family and covered by Sinead O’Connor. Here’s the original:

Say it with me now: I’ve never heard this version, or of this group, which the Popdose writer says “was a group formed from the ashes of The Time”, not that that helps me. It’s a bit on the cheesy side, but I was totally digging that sax player’s glasses. Here’s Sinead:

A huge hit for a mostly non-commercial artist. But more important than anything I can say about the song or her (far superior) version of it is that Sinead O’Connor was absolutely, positively, 100% right, and we really should have listened to her.

Time for more information about Early To Rise

What Lisa Falkenberg says.

They’ve turned over more than 150,000 signatures in favor of putting an early education tax on the Harris County ballot in November. Now the folks behind the Early to Rise campaign need to turn over the details.

Actually, they should have turned them over a while ago. The well-meaning folks who signed the petition did so with only the vaguest notion that, somehow, they’d be helping kids, and our community. But some of us need a little more information.

The petition said only that it was authorizing the Harris County Department of Education to levy a tax of one penny per $100 of assessed home value “for early childhood education purposes to improve success of children in kindergarten and beyond.”

A fact sheet called the effort a “public/private partnership” that will provide training, assistance and equipment to preschool programs and parents. Clicking on “take a deeper look at the Early to Rise Plan” on the group’s website won’t get you any deeper. It gives the basics and a list of board members who would lead a newly formed nonprofit to administer the tax funds.

Those board members include respected community leaders such as James Calaway of the Center for Houston’s Future, former Houston first lady Andrea White and the Rev. Kirbyjon Caldwell. But their good names aren’t enough. We need a detailed proposal, in writing, that spells out how money will be distributed, to what kinds of operations, under what criteria? How many families will be helped? How many children? At what age?

Not to mention how will the board members be chosen, what kind of oversight will they be subject to, what kind of disclosures will they have to make to ensure that any conflicts of interest can come to light, what is the process to remove a board member that needs to be removed, etc etc etc. We know these answers for elected officials, and we know these answers for boards and whatnot that are appointed by elected officials. We know none of that for Early To Rise and the Harris County School Readiness Corporation. The American Prospect, which has a nice overview of Early To Rise and the story so far, suggests that they don’t really have a good answer to these questions.

The obvious concerns over handing the revenues to an unelected nonprofit board are not lost on the leaders of Early to Rise. However Jonathan Day, a former city councilman and one of the Early to Rise board members, argues this is much better than the alternative of letting the Harris County Department of Education administer the program, which would politicize the process. The Department of Education has had its share of political drama, including hiring a former county commissioner and convicted felon as its lobbyist. Day worries that by giving the Department of Education control over the process, childcare centers would get selected for the program based on political advantage rather than need. He says that’s already become a problem with charter schools. “We have some bad charter schools. Are we able to close ‘em down?” he says. “Every one of those charter schools has a bunch of defenders, [including] the state representative.” By putting the money in the hands of an unelected body, Day believes the program will avoid many of the same political problems. “You can to a very significant extent, avoid those kinds of results which are very damaging,” he says, and notes that the Department of Education would still have oversight.

Day was a City Attorney, not a City Council member, but never mind that. I don’t get making HCDE out to be nefarious, especially since this proposal isn’t going to go anywhere without HCDE’s support. I agree that the hiring of Jerry Eversole was a forehead-slapping move, but he was hired for the purpose of lobbying Commissioners Court to back off its efforts to get a bill passed to kill the HCDE. I personally wouldn’t touch Eversole with a ten-foot pole, but that is a role for which he is qualified. Most of the actual political drama on HCDE had to do with a faction that never numbered more than one or two that was on board with the kill-HCDE agenda. The biggest, and possibly sole, protagonist of this was Michael Wolfe, who was defeated in 2012. Outside of Wolfe, the drama level at HCDE has been remarkably low. Bringing up charter schools is a distraction, since they have nothing to do with any of this, and besides, the Lege passed a bill this past session that among other things will – in theory, at least – make it easier to shut down substandard charters. Finally, I can’t believe that Jonathan Day is naive enough to think that an unelected and not-selected-by-electeds board would be less subject to political pressure or less tempted by favoritism than any other board. This goes right back to the question of oversight and what the consequences are for misbehavior. We need to have some assurances that our tax dollars are being used appropriately. That is not too much to ask.

Back to Falkenberg:

Bob Sanborn, CEO of the nonprofit watchdog organization Children at Risk, says he shares many of [County Judge Ed] Emmett’s worries: “I don’t really trust the governing structure. I don’t trust the taxing entity it’s going through, and that becomes a little problematic. This whole idea of unelected boards – what happens when they change membership?”

At the same time, he said he told Emmett in a conversation a while back, “you know, in the end, if this is on the ballot, it’s pro-children and I have to support it.”

I think that’s where many of our hearts are. Now the folks at Early to Rise just have to persuade our minds.

Yeah, that’s where I am, too. But it’s a huge leap of faith, and it’s one none of us should have to make. We’ll know on Tuesday what the plan is for HCDE. I sure hope these concerns get addressed.

Special prosecutor to be appointed in Perry/Lehmberg veto case

Moving forward.

Rosemary Lehmberg

A San Antonio senior state district judge confirmed Thursday that he will name a special prosecutor to investigate possible charges of coercion and abuse of official capacity against Gov. Rick Perry.

Judge Robert “Bert” Richardson said he expected to name someone early next week, at which time “an order will be prepared and filed with the court.”

The investigation stems from the governor’s veto of $3.7 million annual funding of Travis County’s Public Integrity Unit.

Perry acknowledged that he let it be known that if Travis County District Attorney Rosemary Lehmberg, a Democrat, did not resign her office following a DWI conviction, that he would cut off funding for the integrity unity.

Perry, a Republican, would name Lehmberg’s replacement.

Lehmberg did not resign and Perry subsequently vetoed funding for the unit, which prosecutes corruption and public malefeasance. Among other cases, the unit has been investigating the Cancer Prevention and Research Institute of Texas — one of Perry’s landmark accomplishments. CPRIT is facing allegations of favoritism and mismanagement of public funding.

After the Austin American-Statesman reported Perry’s challenge to Lehmberg, Texans for Public Justice filed a criminal complaint against Perry. The complaint cited state laws that prohibit public officials from abusing their office in coercing or bribing others.

See here, here, and here for the background, and here for a copy of the complaint. Note that the issue is not the actual veto, but the demand Perry made for Lehmberg to resign under the threat of his veto, that is the basis of the complaint. It’s the “resign or else” statement that the TPJ alleges is coercion. Had Perry simply issued the veto, there’d be no allegation of wrongdoing. It’s certainly open to debate whether Perry’s actions really did rise to the level of lawbreaking – that will be a question for the special prosecutor, and possibly a judge and jury, to decide – but let’s be clear that it was the demand for Lehmberg to resign and not the veto itself that is at issue. Texas Politics, Juanita, and Texpatriate have more.

More on Abbott and his lawsuit settlement

I have three things to say about this.

Still not Greg Abbott

When Greg Abbott’s spine was crushed by a falling oak tree in 1984 he had no health insurance, no paycheck and no feeling in his legs.

But he had a good lawyer and, back then, access to a civil justice system that was generally hospitable toward plaintiffs. So Abbott did what many people would do in his situation: he sued.

Nearly 30 years later, as Texas attorney general and the leading candidate for governor, Abbott is facing new questions about the multimillion-dollar settlement he was awarded and about his advocacy of laws that critics say have tilted the judicial scales toward civil defendants.

Those critics, generally Democrats who oppose the Republican-backed lawsuit curbs, say the policies Abbott has fiercely promoted over his career as a judge and elected official make it virtually impossible for a plaintiff to win the kind of award he got.

“You would think that a young man, at the start of his career, crippled by an injury, would want to make sure that others that may have the misfortune to follow in his footsteps would ensure that those people had the opportunity to be compensated for their injuries in the same way he was,” said Tommy Fibich, a Democratic donor and personal injury lawyer. “He instead closed the door because that would help him get re-elected.”

Abbott said the reforms he had backed and helped cement in court rulings had been necessary to curb a rash of frivolous lawsuits. But he said the changes would not affect people like him.

“If there were someone jogging today, got hit by a tree today, suffered the same kind of accident today, they would have access to the very same remedies I had access to,” he said.

“Our legal system was abused in this state,” he continued. “There were many invalid claims that were filed in court, that clogged up the courts, that either denied or delayed access for people who had valid claims.”

Tort laws have changed drastically since Abbott’s accident, adding hurdles for people who sue for personal injuries and making it harder for them to win large sums. But there is disagreement about whether Abbott could receive a similar settlement today.

[…]

Charles M. Silver, a professor at the University of Texas at Austin School of Law and co-author of the study that disputed claims made by proponents of medical malpractice caps, said changes in personal injury law and a “pro-defendant” posture in the judicial branch made such a large financial settlement substantially less likely.

“Today that would be an extraordinarily high recovery,” Silver said. “It would be harder to get that type of award today.”

1. I had previously suggested that Abbott must have had health insurance when he suffered his injury. Apparently I was wrong about that. But I was still right that he never faced any dire financial problems as a result of his injury.

2. Be that as it may, the main point is still that Abbott utterly lacks empathy for anyone unfortunate enough to be in similar circumstances today, or anytime in at least the past two decades. He has done nothing to make the circumstances of anyone in need of access to health care better, and through his repeated lawsuits against the Affordable Care Act has actively sought to prevent anyone else from making their circumstances better.

3. Abbott’s claim that anyone who suffered a similar injury today “would have access to the very same remedies I had access to” strikes me as unlikely in the extreme. It also strikes me as a fact that might be checkable, at least to some extent, though I don’t expect any journalist to try to follow up on that. But seriously, does anyone think in the legal climate we have in Texas today, one that Greg Abbott helped shape as a Supreme Court justice in the 90s, that such an outcome is even remotely likely, especially for someone who isn’t already in a position of influence or with access to ample resources? Attorney Wade Barrow doesn’t think so.

Since Abbott’s settlement, Texans for Lawsuit Reform, one of his most loyal and robust contributors, has been on a perpetual mission to eliminate the rights of catastrophically injured Texans.

The list of limitations that Texans for Lawsuit Reform has passed since 1986, with the help of politicians like Abbott, that would directly limit his claim if he were to make it today include limitations on medical care in the past, lost wages and punitive damages. Abbott’s settlement document specifically references punitive damages.

However, the much graver threat to Abbott’s case today is the Texas Supreme Court’s continued insistence on substituting its judgment for that of juries. In fact, since Abbott’s settlement, the Texas Supreme Court has repeatedly held that “naturally occurring conditions” do not create an unreasonable risk of harm.

Based on this legal precedent, cases similar to Abbott’s are thrown out of court without a jury hearing them. While it is only known generally that a tree fell on Abbott, it is likely that the Texas Supreme Court would dismiss such a case.

If the Court ruled in that manner, Abbott or anyone with the same type of case would collect nothing today.

Catastrophically injured Texans now often find themselves without the legal remedies Abbott had at the time of his settlement, and they are forced to go on government assistance at taxpayer expense because the liable party cannot be held accountable for negligent acts.

It is impossible to reconcile Abbott’s longstanding relationship with Texans for Lawsuit Reform and his own personal experience. Either Abbott made what he would now have to concede are likely “frivolous” claims for his personal injury settlement, or he is complicit in supporting legislation and court opinions that he knows to be unjust based on his own life experience.

Texas Watch recently documented just how much the tort “reform” amendment of 2003 has limited access to the courts, and before that documented how often the Supreme Court throws out jury awards. Even without detailed fact checking, Abbott’s claim is farfetched on its face at best. More from Texas Watch here.

Meet your Constitutional amendments

The Trib runs down the nine proposed constitutional amendments that will be on the ballot this November.

First on the ballot will be HJR 62, by state Rep. Chris Turner, D-Grand Prairie, which would authorize the Legislature to provide a property tax exemption for the spouses of veterans. This amendment specifically authorizes a tax exemption for all or part of the market value of the residences of spouses of military members who are killed in action.

Second will be HJR 79, by state Rep. Dan Branch, R-Dallas, which would eliminate a requirement for a State Medical Education Board and a State Medical Education Fund. Neither is in operation, with the State Medical Education Board having been defunct for more than a quarter-century.

HJR 133, by state Rep. Linda Harper-Brown, R-Irving, will appear third on the ballot. The amendment would extend the tax exemption period on storing aircraft parts in the state and would provide more tax relief to aerospace manufacturers, which often hold such parts in inventory for an extended period of time.

HJR 24, by state Rep. Charles Perry, R-Lubbock, will follow and authorize the Legislature to give a partial property tax exemption on charity-donated residences to disabled veterans or their surviving spouses. The amendment would strike the current requirement that qualifying residents be “100 percent” disabled.

SJR 18, by state Sen. John Carona, R-Dallas, will appear fifth on the ballot and would allow homeowners age 62 or older to use reverse mortgages to purchase residences. The current law only expressly allows traditional mortgages, which lets such homeowners borrow against the equity of their homes. The amendment would allow the prospective borrower to use a Federal Housing Administration-insured home equity conversion mortgage to help buy a new home.

Next will be SJR 1, also known as the Rainy Day Fund Amendment. The amendment would create two funds to help finance key projects in the state water plan by pulling about $2 billion from the Texas Economic Stabilization Fund. Authored by state Sen. Tommy Williams, R-The Woodlands, the amendment has been opposed by conservatives who have argued that pulling money from the Rainy Day Fund would endanger Texas’ economic health.

HJR 87, by state Rep. Sergio Munoz, Jr., D-Palmview, will appear seventh on the ballot. It would authorize home-rule municipalities to choose how to fill city council vacancies if the positions have less than 12 months remaining in a three- or four-year term. The amendment would remove the requirement to hold a mandatory special election for those positions.

HJR 147, by state Rep. Bobby Guerra, D-Mission, will come next on the ballot. It would repeal a constitutional provision authorizing the creation of a hospital district in Hidalgo County.

Last on the ballot will be SJR 42, by state Sen. Joan Huffman, R-Houston. It would authorize the State Commission on Judicial Conduct to use additional disciplinary actions — including public admonition, warning, reprimand, or required additional training or education — against judges or justices after a hearing. The current law allows the SCJC to issue a public censure or recommend a judge’s removal or retirement.

SJR1 is the water infrastructure fund. The road building fund item that finally passed in Special Session 3 won’t grace the ballot until 2014 by agreement, so as not to have two referenda that tap the Rainy Day Fund on the same ballot. The rest of them, I gotta say, I know little to nothing about. Most of them are probably no big deal, and most of them will likely have little to no campaigning done for or against them, so we’ll have to see what the usual suspects have to say about them going forward. If you have an opinion about any of them, please speak up in the comments. Stace has more.