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June 13th, 2014:

Friday random ten: Dave’s not here, man

Four or five songs into the D list, I said to myself “You know, I can probably do this entirely with singers named Dave or David”. And lo, so it was.

1. Three To Get Ready – Dave Brubeck Quartet
2. I Knew The Bride – Dave Edmunds
3. Garden State Stomp – Dave Van Ronk
4. Space Oddity – David Bowie
5. Like Humans Do – David Byrne
6. My Country Tis Of Thee – David Crosby and Graham Nash
7. Girls And Boys – David Garza
8. Until We Sleep – David Gilmour
9. Babylon – David Gray
10. Just A Gigolo/I Ain’t Got Nobody – David Lee Roth

I don’t even remember who I overlooked once I realized this. I was just swept up in the Dave-ness of it all.

UT/Trib poll: Abbott 44, Davis 32


Republican Greg Abbott leads Democrat Wendy Davis by 12 percentage points in the race for governor, according to a new University of Texas/Texas Tribune Poll.

That result is close to the 11-point spread, also in Abbott’s favor, in the February UT/TT Poll. In this most recent survey, he maintained a 14-point lead among male voters and a 10-percentage point lead among female voters.

“Abbott remains strong and this, in a lot of ways, confirms the strategy that we’ve seen from his camp: Leave well enough alone,” said Jim Henson, director of the Texas Politics Project at the University of Texas at Austin and co-director of the UT/TT Poll. “The Davis campaign seems to be not able to reverse the trend.”

Abbott has the support of 44 percent of the voters surveyed. Davis had 32 percent, Libertarian Kathie Glass had 3 percent, the Green Party’s Brandon Parmer had 1 percent. Another 3 percent chose “someone else,” and 17 percent said they had not formed an opinion.

The poll summary is here. The last UT/TT poll had Abbott up 47-36 in February, so according to these guys both candidates have lost some support to the great “undecided” crowd. Of course, that last poll was a two-candidate choice, unlike the November poll, so once again direct comparisons are a bit dicey. Maybe they will be consistent about that from here on. I sure hope so.

I’m not going to spend much time on this. For one thing, the UT/Trib pollsters haven’t earned my trust back since their debacle in the primaries. Yes, I know, a general election is different, but still. I don’t plan to put any faith in their results until I see how they fare in this election. I’ll track these and put them on the sidebar like all others that I see, but they’re just another set of numbers until they prove they’re more than that.

Beyond that, I have two complaints about the UT/Trib polls that have yet to be acknowledged, much less addressed. For one, Henson and Shaw have a bizarre tendency to ignore their own past data in their discussions of the poll du jour. How can you claim that Greg Abbott is killing it among Anglo voters when your own data shows that he’s not doing as well as either Mitt Romney or Rick Perry? It’s like each result exists in a vacuum, and it gets fit into whatever the narrative for that election happens to be. You’ve got all this data – use it, for crying out loud.

Two, they really need to explain their turnout assumptions and why they think the electorate will look like it does. This is especially the case given the not-really-random nature of their own polls, but it’s true for any pollster out there, including reputable firms and various hapless hacks: What do you think the 2014 electorate will look like, and why? If your polls are based on the assumption that 2014 will resemble 2010, well, it’s not surprising that you’d show Abbott with a double-digit lead. Maybe that will turn out to be a correct assumption, but don’t just make it without explaining why you’re making it. Everybody knows that Democrats, both nationally and in Texas, are working to change the turnout model for this year, and hopefully for non-Presidential years going forward. What I don’t know – what I don’t think anybody knows right now – is how successful they may be. Pollsters need to make a guess about that, and they need to explain the guess they make. Otherwise, they’re just polling the last election. That’s often a sound strategy – it’s what I recommended they consider doing for polling primaries – but it’s not the be-all and end-all, especially when you know there are other factors in play. Tell me what you think the electorate will look like, and why. I don’t think I’m asking for too much here.

More plaintiffs respond to Abbott’s recusal motion

I think it’s fair to say that the plaintiffs are strongly opposed to Greg Abbott’s attempt to get Judge Dietz recused in the school finance trial.

Lawyers representing hundreds of school districts pushed back Thursday against Texas Attorney General Greg Abbott’s effort to remove a judge who is weighing the constitutionality of the school finance system.

The attorney general accused District Judge John Dietz of “coaching the plaintiffs’ counsel in order to improve their case,” and cited a series of emails this year among the judge, his staff and plaintiff’s lawyers from mid-March to mid-May. Those emails have not been publicly released.

Plaintiff’s lawyers responded Thursday with a 49-page motion that says state attorneys have failed to prove that Dietz showed partiality.

“One would think that, under the circumstances, the state would have taken great pains to provide a full and accurate account of the relevant facts, in fairness to the trial judge accused of partiality,” the motion states. “But the state did not do so.”


School district lawyers disputed the state’s allegation that Dietz coached them on how to present their findings, arguing that Dietz’s communications were “nothing more than the judge giving guidance as to how he wants the findings revised to reflect his view of the law and the evidence.”

They also refuted the notion posed by the state that Dietz should not have a stance on the issue.

“Having heard all the evidence, and having already announced his oral ruling from the bench in the first phase of the case, it is not only unsurprising but expected that Judge Dietz would have developed opinions about the facts and the parties’ claims,” the motion says.

See here and here for the background. The plaintiffs that filed this particular motion are the Texas Taxpayer & Student Fairness Coalition, and yesterday their attorney Mark Trachtenberg sent me a (slightly redacted) copy of the motion, which you can see here. You don’t need to read the whole thing, but the brief introduction is well worth your time. Here’s a bit from the end of it:

Another glaring omission in the motion is the State’s failure to acknowledge that it has participated in numerous hearings when exactly these same topics were discussed, in much the same way they are discussed in the communications the State challenges. All parties took part in hearings in which Judge Dietz provided instructions on how he wanted the findings to be revised, making clear that he was asking the ISD Plaintiffs to modify them in certain ways to better conform to his views of the law and the evidence, as considered and weighed by the judge during sixteen weeks of trial. (See generally, e.g., Ex. 26, 8/20/13 Tr.; Ex. 34, 3/19/14 Tr.; Ex. 36, 5/14/14 Tr.) Not once did the State or Intervenors ever object to the guidance provided during these hearings. In addition, the State and Intervenors have had—and continue to have—every opportunity to be heard on all of the factual and legal issues in this case.


Finally, the State’s motion does not account for the unique challenges posed by this case which made the agreed-upon submissions of proposed findings not only appropriate but necessary. This case involves six sets of parties bringing seven different affirmative constitutional claims, as well as the State, which is defending against these claims. These parties collectively submitted seven different sets of proposed findings to the Court without service to the other parties, pursuant to the scheduling orders agreed to by all parties at the beginning of the case. Some of these submissions were hundreds of pages long. The parties agreed to this procedure to facilitate the judge’s review of the findings and to contextualize the evidence presented at trial, without having to disclose their internal work product and trial strategy. All were fully aware that the judge would need to direct counsel for the prevailing parties to integrate the separate submissions into one document (which now runs hundreds of single-spaced pages), and to modify the proposed findings to his liking, a task that his staff did not have the capacity or technical capability to accomplish alone. Understanding these challenges, neither the State nor the Intervenors ever raised an objection to these procedures. The State’s untimely and improperly verified recusal motion—which noticeably was not signed or verified by any of the State’s primary attorneys who appeared at trial—should be promptly rejected.

Emphasis in the original. If there’s an equivalent to bench-slapping by opposing counsel, this motion is a pretty good example of it. If you do continue reading all the way through the document, you will notice how some variation of “neither the State nor the Intervenors ever raised an objection” is repeated over and over and over again. Those of you that read the recusal motion as a delaying tactic, such as the Wendy Davis campaign, these plaintiffs at least would appear to agree with you. Bexar County District Judge David Peeples will hear the arguments on June 20, and will hopefully rule in short order to dismiss the state’s motion. Stay tuned.

City reaches contract agreement with firefighters

Give a little, get a little.

Mayor Annise Parker

Mayor Annise Parker

Houston firefighters would give up some of their ability to schedule time off in return for a pay hike under a tentative new labor contract that city officials hope will enable them to rein in overtime costs that threatened to bust the fire department’s budget this year.

The City Council and the membership of Houston Professional Fire Fighters Association Local 341 must ratify the agreement for it to take effect as planned on July 1.

The agreement, which includes a 4 percent raise, comes on the heels of a budget crisis that has seen the department, on some days, pull ambulances and fire trucks from the streets in recent months to control a spike in overtime costs.


Firefighters would get the 4 percent raise beginning Jan. 1, 2015, along with new terms encouraging them not to miss work, which often creates the need for shifts to be filled on short notice by replacements on overtime pay.

“Neither of us is really excited about what’s in the contract, but it moves us forward,” Mayor Annise Parker said. “It’s a workable arrangement. Neither side got everything they wanted.”

The deal would run through the end of 2016, though negotiations could reopen in February 2016 on pay and some scheduling items. The idea behind that option, City Attorney David Feldman said, is to see whether voters amend a decade-old cap on city revenue that Parker has said will force layoffs next year if left unaltered. The deal would last only 30 months because of these uncertainties, Parker said.

Fire union President Bryan Sky-Eagle said the raise is not what firefighters deserve, but he said the union acknowledges a need to work with the city given its revenue limitations.

The contract, Sky-Eagle added, also allows for more flexible scheduling, improves a voucher program by which firefighters buy uniforms and equipment, and secures city promises not to hand its emergency medical service over to private firms or to replace the firefighters running it with civilians.

“Am I going to say it’s the best deal for firemen? No. But am I going to say it’s the best deal we can get under this mayor, this administration? It’s about as fair as you can get,” Sky-Eagle said. “The incentive programs we have in place, we think they will work. We wouldn’t have signed off on this contract if we didn’t want to give them a shot because there’s some tangible benefits for the firefighters.”

The Mayor’s press release on this is here. Seems like a reasonable deal to me, and if it avoids all the overtime problems, so much the better.

Todd Clark, chairman of the Houston fire pension board, opposes the deal. The board and the union are separate, but historically, the union contract has allowed the Houston Firefighters’ Relief and Retirement Fund chairman to be assigned full time to the pension office while drawing a city salary via the fire department.

That “special assignment” – at Parker’s insistence, Sky-Eagle and Clark said – has been dropped in the proposal. Deluca said the change means Clark would report to work at a fire station. Clark said he will do so, while doing pension work on his days off – if the agreement passes.

“By removing me, it gives the pension enemies – for instance Mayor Parker – an advantage on making changes to our plan,” Clark said. “She doesn’t want me here because I’ve worked the last two legislative sessions and defended and protected the fund from her attacks. What this is, is retaliatory in nature.”

Whether one sees this as a brilliant piece of political strategy by the Mayor or a total jerk move likely depends on one’s opinion about the pension issue. The calculation is left as an exercise for the reader.

Good times for the craft brewers

There’s a lot more growth to come for the craft brewing industry.


Texas’ smaller craft breweries increased production last year by nearly half and made deeper gains in the overall beer market, suggesting the industry’s growth spurt will continue.

“Yes, this is a long-term trend,” said Charles Vallhonrat, executive director of the Texas Craft Brewers Guild. “Do I think we’re approaching a saturation point? No.”

The guild on Tuesday is releasing figures showing Texas craft breweries made 833,191 barrels of beer in 2013, an increase of 17.6 percent. When the Spoetzel Brewery in Shiner, maker of Shiner Bock and other widely distributed beers, is excluded from the list, the remaining crafts saw their production mushroom by 44.3 percent, to a combined 265,958 barrels.

Biggest among this group of 98 breweries is Houston’s Saint Arnold Brewing Co., which expects to brew at least 65,000 barrels as it commemorates its 20th anniversary this year.

A barrel of beer would fill 55 six-packs of 12-ounce cans or bottles.

“That’s what people think of beer now,” Saint Arnold founder Brock Wagner said of the public’s evolving attitude. “It’s not just mass-produced light lager.”


As a percentage of the total beer market, the craft numbers seem tiny. Last year, the 98 smaller crafts that reported to the Brewers Association trade group produced 1.36 percent of the beer sold in Texas.

But that is up from 0.93 percent a year earlier. Vallhonrat said the rapid increase proves demand is growing, while the small market share indicates there is plenty of room for growth. Even including the much larger Spoetzel brewery, Texas craft beer accounted for less than 5 percent of the beer consumed in Texas.

“Texas is just a really big, big beer market,” he said. “There’s tremendous opportunity for growth in Texas.”

The Brewers Association reports that U.S. craft production rose 18 percent last year, to 15.6 million barrels. The Texas guild notes that means Texas produced 5.3 percent of the total.

The guild hopes to mirror the Brewers Association’s goal of doubling U.S. market share by 2020. On a national level, bolstered by record numbers of new breweries and the emergence of several very large players in the craft segment, that would mean increasing market share to 20 percent by that year.

“As the BA doubles, we’d expect this number (in Texas) to double as well,” Vallhonrat said.

The fact that the craft brewers’ overall share of the market is still in the one percent range shows the potential for more growth. There are still tons of beer drinkers out there that haven’t really given the non-major alternatives a try. I don’t know what the saturation point is, but I feel confident as well that it’s a fair bit higher than this.

The big dog of craft brewers in Houston, Saint Arnold, is celebrating its 20th anniversary this month, and they get a feature story on their history and outlook to help celebrate it.

As Wagner likes to joke, in 1994 he had a great idea for a business in 2006. Except for a hard-core group of enthusiasts, many of them homebrewers, most of them male, college-educated and in their 30s or 40s, consumers were initially reluctant to part with their light, familiar beers in large numbers.

“It took 20 years to teach everybody who had forgotten what beer was like,” Wagner said.

In 1996, Wagner and original business partner Kevin Bartol, both former investment bankers, predicted in the Houston Chronicle that they would be making 100,000 barrels within a decade. In reality, sales flattened at just over the 5,000-barrel mark for the next few years.

Twelve years later, production exceeded 20,000 barrels for the first time.

Wagner stuck it out, buying out Bartol, repurchasing shares from initial investors and building Saint Arnold into an iconic local brand through its Saturday tours, pub crawls and an array of community fundraising projects. His and Bartol’s goal from the beginning, he says, was to make the best beer possible and to build a company that Houston and the state of Texas would be proud of.

By late 2009, business was booming and Saint Arnold was constrained only by physical space. That’s when Wagner moved his brewery into a renovated warehouse overlooking downtown, even though it would’ve been cheaper to buy a custom-built building outside the city center. But again, he said he wanted to create a community gathering point. Again, his decision paid off.

Wagner took on investors to raise enough capital to convert the century-old warehouse into a modern brewing facility with a huge beer hall that serves lunch daily, packs in crowds during tours and special events and is rented out for private parties. The brewery attracts an estimated 100,000 visitors annually.

The new digs also significantly increased capacity. Production is expected in the range of 65,000 to 70,000 barrels this year, boosted not only by consumer demand but also by changes in state law last year that Wagner had pushed for over several legislative sessions. Those production numbers are expected to continue to grow.

Read the whole thing, it’s a nice story about a great local business. I don’t remember exactly when I first discovered Saint Arnold beers, but it was back when their Saturday tours were free and a lot smaller than they are now. I never liked the taste of the big mass-produced beers, and after coming to Houston and becoming acquainted with Shiner while I was at Rice, I never looked back. I’ve been delighted by the success of the small brewers, and as you know I was extremely pleased by the long-awaited passage last year of legislation to help free up their operations. There’s still work to be done in that regard – one item on their wish list is being able to sell bottled beer to customers on their premises – but we’re making progress. This KUHF story on Saint Arnold’s 20th anniversary sums it up in a pithy little way:

A 2012 study prepared by the Texas Craft Brewers Guild puts the industry’s economic impact on the state at more than $600 million per year. The trade group says that’s likely to increase nearly tenfold by 2020. That’s thanks in part to reforms passed by the Texas legislature last year, loosening the state’s restrictions on marketing and distribution for small brewers.

Scott Metzger, founder of San Antonio-based Freetail Brewing, recently addressed the House Economic & Small Business Development Committee on behalf of the Brewers Guild. He says more reforms are needed to help Texas brewers to compete with those in other states.

“Just to make it clear, if the breweries of Texas were regulated by the laws of California, we would be worth more,” Metzger testified.

Take that, Rick Perry.