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Houston pension reform bill passes

It’s done.

Mayor Sylvester Turner

The Texas House on Wednesday approved the controversial Senate version of a bill that aims to overhaul Houston’s failing pension funds — over the passionate objections of current and former firefighters.

Senate Bill 2190, which passed in a 103-43 vote, now heads to Gov. Greg Abbott’s desk. But the months of rancor between firefighters and Houston officials promise to linger long after the legislative session ends Monday.

[…]

The Houston bill passed Wednesday without two amendments the House had previously added in an apparent attempt to appease firefighters. One amendment would have prevented the bill from impacting current firefighter retirees. The other could have allowed the firefighter pension system to bear a smaller burden in paying down unfunded liabilities shoring up billions in shortfalls in three city employee retirement funds.

That drew the anger of firefighter pension members, dozens of whom sat in the House gallery Wednesday. Some shouted down to representatives as they walked out after the vote. One woman could be heard yelling, “Shameful!”

After the vote, Houston firefighter pension board chairman David Keller said he was disappointed in the vote. During the session, pension officials had suggested such legislation could be unconstitutional because it determines the financial boundaries the fund should stay within. Keller said the Constitution says that power is left solely to the pension board.

Keller said it was too soon to determine if the pension board will file a lawsuit.

“We will explore every option available to us,” he said.

But state Rep. Dan Flynn, who carried the bill in the House, said that killing the bill because firefighters remained unhappy would have exasperated the dire financial situation the city and the retirement funds are experiencing. The bill addresses pensions for firefighters, police and municipal employees.

“If we don’t pass it, there won’t be any pensions,” the Canton Republican told The Texas Tribune earlier this year.

Rep. Dan Huberty, R-Houston, authored the amendment that could have helped the firefighter pension fund bear less of the burden shoring up the city’s shortfalls. The amendment would have given pension officials more time to provide data showing that financial forecasts estimate the fund will be in better shape than Houston officials estimated.

But on Wednesday, he urged his colleagues to vote for the bill without the amendment.

“We’ve done everything we can to work hard in good faith,” Huberty said.

Keller, the pension chairman, said the pension board offered to provide the data under licensing agreements that included confidentiality provisions. He said the city never responded.

When asked if firefighters would campaign against any Houston-area state officials who backed the bill, Keller said “it’s hard to say.”

“But I know the firefighters are having a lot of emotions right now: loss, anger,” he said. “And they’ve been shown to be politically active.”

See here for the background. The firefighters are gonna do what the firefighters are gonna do. I get they’re unhappy and to an extent I don’t blame them, but this is where we are, and it took a lot of effort to get here. At this point, the main thing I’ll be looking for is who will be campaigning against the pension obligation bonds. It’s one thing to say we need to vote on those things (even if we hadn’t voted on them before), it’s another to say we should vote against them. Until then, kudos to all for getting this done, and congratulations to Mayor Turner for doing what once seemed to be impossible. The Mayor’s press release is here, and the Chron has more.

UPDATE: Here’s the longer Chron story.

House passes pension reform bill

One step closer, though there are still issues to be worked out.

Mayor Sylvester Turner

The Texas House gave early approval Monday to a bill that would reform Houston’s three problematic pension funds, which have caused financial woes and spurred political battles for years.

The 112-28 vote for Senate Bill 2190 came after lawmakers made some key changes to the bill, including a provision that could let the firefighter pension fund bear a smaller burden for shoring up billions in shortfalls.

But State Rep. Dan Flynn, R-Canton, who authored the House version of the bill, worried that the Senate may not like the changes.

“This is an amendment that could very well derail the bill,” Flynn said Monday from the House floor.

[…]

State Rep. Dan Huberty, R-Houston, successfully got his House colleagues to amend the bill so that the firefighter pension fund has an opportunity to lower what its members give up in order to help close a large funding gap.

For months, city and state leaders have accused the firefighter pension fund of withholding actuarial data that would prove it could shore up its shortfall with fewer cuts to members’ benefit features. In the absence of such data, city leaders and state lawmakers put together SB 2190 and a House companion — authored by Flynn — that the firefighters opposed.

Keller said the retirement system wants to protect individual members’ information and has offered the city data under licensing agreements that included confidentiality provisions. He said he was surprised that became an issue on the House floor considering all firefighter salary information goes through City Hall.

“They know what each of us makes,” he said. “There’s nothing surprising in our data we hold.”

Huberty’s amendment will give the firefighter fund a deadline to provide the data to the city. It passed 90-42 over the objections of Flynn, who said the firefighter fund had months to help reach a compromise and that such a change could sink the bill when it goes back to the Senate.

“At this point it’s really too late to change the critical aspects of this bill,” Flynn said.

Flynn could have brought his House bill to the floor but chose instead to have a vote on the Senate version. I’m guessing he thought it might be easier to get it through, as if it had been passed unamended that would have been it. It will now go through a conference committee, so we’ll see what the final version says. At this point, I’d say it’s looking pretty good for passage, though it remains to be seen who will wind up being less happy about it than they were going in. The city’s press release is here, and the preliminary Chron story is here. I’ll link to the full story in an update.

UPDATE: Here is the full Chron story.

Pension reform bill passes House committee

Two for two.

Mayor Sylvester Turner

Houston’s pension reform bill will now move to the floor of each legislative chamber after a Texas House committee joined its Senate counterparts in passing the measure 6-1 Wednesday.

With Rep. Roberto Alonzo, D-Dallas, opposed, the pensions committee adopted House Bill 43, which will now head to a scheduling committee to be set for its next hearing.

“I am thankful to the committee members and Chairman Dan Flynn,” Mayor Sylvester Turner said in a prepared statement, referencing the Dallas-area Republican who oversees pension discussions. “Our solution continues to make historic progress in Austin. I am happy to see that our state lawmakers understand how important this is to Houston’s future. We are going to keep up the pressure until our plan becomes law.”

Houston Republican Sen. Joan Huffman’s committee passed the bill last month by a similar margin of 7-1. The main difference between the bills is that Huffman’s version seeks a referendum on pension bonds such as the $1 billion in bonds that are a key part of the reform package; the House version does not include that language.

See here and here for the background. The easy passage in the House committee, coupled with the passage of the Huffman bill in the full Senate, bodes well for the reform effort despite the opposition from the firefighters. Assuming HB43 does pass the full House, either it will need to go through the Senate or Sen. Huffman’s SB2190 will have to pass the House. The matter of whether or not to require a vote on the pension obligation bonds will be worked out one way or the other, and then we’ll go from there.

House hearing for pension bill

Another step in the process.

Mayor Sylvester Turner

Houston’s pension reform plan got its first hearing Monday in the state House, where rows and rows of current and retired firefighters appeared to voice opposition to the plan.

Municipal and police leaders testified in support, however, as did representatives of the Greater Houston Partnership and, of course, Mayor Sylvester Turner, who spent most of his first year in office negotiating the package.

“It is not the perfect pension bill, because, quite frankly, I don’t know if you can get the perfect pension bill, but it is a very good bill for all parties concerned,” Turner said at the hearing.

Even the opposition of the firefighters was tempered somewhat by the testimony of their pension fund chairman, David Keller.

He said a series of talks since the bill cleared a Senate committee by a 7-1 vote last week have produced “great movement” in better aligning the current proposal to the general terms Keller’s board approved last October, before negotiations lagged and his group failed to reach agreement with the city on final legislative language. Disputes over sharing information led the city to propose deeper cuts than initially had been agreed to; Keller said those issues have been resolved in the last week.

Rep. Dan Huberty, a Houston Republican, said he had even heard Monday morning from some firefighters who seemed to be in support of the bill. Keller said that was not quite right, but he was “hopeful” his board might ultimately wind up in agreement.

“Firefighters are not immovable,” Keller said. “We heard loud and clear that we should not expect status quo, and we did not expect status quo.”

That’s decidedly less contentious than the firefighters’ previous statement, so that’s good. No one has to love this bill, but everyone has to be able to live with it. The House bill (HB43 by Rep. Dan Flynn, who is the Chair of the Pensions Committee) differs from the Senate bill in that it does not require a vote on the pension obligation bonds. Hard to say at this point which version will prevail, but I’d expect both will have some changes made before all is said and done. HB43 was left pending in committee, so it’s not ready to advance to the House floor just yet.

Pension reform bill passes Senate committee

A major step forward.

Mayor Sylvester Turner

Houston’s pension reform plan cleared a state Senate committee in its initial hearing at the Capitol on Monday, despite the fact that all those who testified – including Mayor Sylvester Turner – opposed at least some portion of the omnibus package.

Retirees were concerned about benefit cuts. Some conservatives said the only path to true reform wold be to move new hires into defined contribution plans similar to 401(k)s, which the bill does not do. Firefighters, who never agreed to final language with the city, are opposed in part because the legislation would cut their benefits by what the state Pension Review Board estimates to be $970 million, up from about $800 million the firefighters agreed to in approving initial reform terms last fall.

Turner says those deeper cuts are to ensure the city gets the savings it needs in spite of the fire pension not providing comprehensive data to predict future costs; fire leaders say an ongoing lawsuit prevents them from complying. For his part, Turner – along with the city’s police and municipal worker groups – opposes the bill as written because Sen. Joan Huffman, R-Houston, added a requirement that the public vote on pension bonds that are a key piece of the proposal; the mayor has called the clause a “poison pill.” Ultimately, city officials hope the provision could be excised at some point in the legislative process. Turner also listed seven technical changes he wants that he said appear to be drafting errors in the bill; Huffman took no issue with those, but defended her decision to call for a public vote on the pension bonds.

The provision is a pet project of another Houston Republican, Sen. Paul Bettencourt, whose standalone bill to require a vote on any Texas municipality’s pension bonds also passed the committee on Monday.

“It’s important that voters have input,” Huffman said, adding that she believes voters would approve, that she would campaign for the bonds’ passage, and that the underlying math of the proposal would work without the bonds.

See here for the background, and here for the Mayor’s press release. The Huffman bill is SB2190; the House companion bill, which will have its hearing next Monday, is HB43. You know I’m not philosophically opposed to voting on the pension bonds, but as I said before, elections have winners and losers. I’ll be very interested to see who joins Mayor Turner and Sen. Huffman in campaigning for that bond issue to win, and who will join with the sore losers in campaigning for it to fail.

Council ratifies Turner’s pension plan

From the inbox:

Mayor Sylvester Turner

Mayor Sylvester Turner

On a 16-1 vote, Houston City Council has endorsed Mayor Sylvester Turner’s historic package of pension reforms. The vote clears the way for the City to move forward in partnership with the pension systems to seek legislative approval of the reforms.

“I am bubbling over on the inside,” said Mayor Turner. “I am thankful to everyone who has helped get us to this point. That includes City Council, the pension systems, our City employees and many others. This plan is historic, transformative and budget neutral. We are solving our pension problem permanent and we are doing it without needed a tax rate increase. There is no other plan out there offering the same benefits. The Houston solution can be the model for other cities with similar challenges.”

The police, fire and municipal pension systems all signed off on the package of reforms prior to today’s City Council vote, marking the first time that the City and all of the pension groups have been united.

The plan immediately reduces the City’s nearly $8 billion pension debt by over 30 percent and then sets a 30-year fixed payoff schedule for the remaining $5.3 billion of debt. This immediate reduction is accomplished through a combination of benefits changes that include scaling back cost-of-living adjustments, higher employee payroll contributions and phasing out of the Deferred Retirement Option Program, known as DROP, which allows employees to accept retirement benefits while continuing to work for the City. In return for the concessions, the City has agreed to issue $1 billion in Pension Obligation Bonds to make up for years of prior underfunding of the pension systems.

“It is a big deal that employees have agreed to these benefit changes,” said Turner. “I know this has not been easy, and I thank each of them for their patience, understanding and service. This plan will provide stable and sustainable retirements at an affordable cost to the taxpayers who foot the bill. Retirees won’t have to worry if the check will be there.”

Moving forward, predictions about the anticipated performance of pension system investments will be based on a more conservative seven percent assumed rate of return. If there are market changes that cause costs to exceed pre-agreed limits, there is a mechanism to force additional changes in benefits to bring everything back in line. A requirement that both sides share information will ensure compliance with the required 30-year payoff schedule.

State Senator Joan Huffman and State Representative Dan Flynn are expected to carry the Houston pension legislation. Bill filing for the 2017 legislative session begins mid-November 2016.

See here and here for the background. CM Mike Knox was the lone No vote, saying he couldn’t support it without there already being a bill written. The Chron story fills in a few details.

Turner secured the political chip of a prompt and lopsided endorsement by using an impassioned speech to persuade Councilman Michael Kubosh to remove his “tag,” a parliamentary maneuver that would have delayed the vote. Kubosh had said he initially tagged the measure at the request state Sen. Paul Bettencourt, a Houston Republican who has called for a delay until more information was available on the reform plan.

“Either you all are going to represent the people of the city of Houston or – I’m going to borrow your term Councilmember Kubosh – are you going to represent political interests? I stand with the people of the city of Houston,” Turner said. “I was voted (in) to represent their interests, not some party affiliation or some political interest or somebody who wants to be mayor.”

Turner’s comments plainly were directed at Bill King, who was runner-up in last year’s mayoral race and who joined Bettencourt at his news conference. The duo said the detailed reform proposals were public for too short a time and too vague to be properly vetted, particularly a key “corridor” provision that would force benefit cuts in the future if a market downturn led the city’s payments to increase above a specified threshold.

King and Bettencourt say the city should switch new hires to retirement savings plans similar to 401(k)s, but acknowledged a well-written “corridor” provision could offer the same benefits to the city.

[…]

Most council members, however, referenced the briefings they had received on the plan and echoed Turner’s point that no public speaker in the six weeks since the reform outline was first announced had appeared before City Council to criticize it.

“I want to make sure the public understands we have been briefed, and it wasn’t a 24-hour-ago briefing,” Councilwoman Brenda Stardig said.

Councilman Dave Martin, like Stardig, a conservative, offered even stronger comments.

“I did not vote for you. I did not support you. I’m supporting you 100 percent on this,” Martin told Turner. “I think it’s ridiculous for people to criticize this plan. It’s been transparent; it’s been thorough. We’ve been diligent. We don’t need any more information. Maybe the state does, but do your homework.”

Yeah. Just as a reminder, the Kinder Institute has analyzed the plan, so we are not operating in an information vacuum here. I’m sure if Sen. Bettencourt had called the Mayor’s office and asked for a briefing, he’d have gotten it. But it’s easier to preen than it is to prep, so here we are. My guess is we’ll see bills get pre-filed for this, probably in November, so we’ll know soon enough what that will look like. The next question is who will support it and who will try to kill it. The games have just begun.

Pension progress report

Our favorite subject, back in the news.

Mayor Sylvester Turner

Mayor Sylvester Turner

Mayor Sylvester Turner and the leaders of the city’s three pension boards made clear to a visiting group of state lawmakers on Monday that they agree a fix to the city’s growing pension burden must be found, perhaps by the mayor’s deadline of year’s end.

The state House committee on pensions set up camp at City Hall Monday to hear testimony from the mayor, his rival in last fall’s mayoral contest, Bill King, city workers and various pension experts about the challenges presented by Houston’s retiree benefits.

[…]

The chairs of the municipal (Sherry Mose), police (Terry Bratton) and fire (Todd Clark) pension boards all stressed their commitments to continuing to work with Turner in the coming months.
Even Clark, who rarely missed an opportunity to accuse former mayor Annise Parker of “attacking firefighters,” struck a conciliatory tone.

“We will continue the dialogue going forward, and we do believe by the end of the year we will have an agreement,” Clark said. “We agree that the city should be healthy and we’re willing to do our part.”

Granted, the pensions’ leaders pushed back a bit. Municipal and police leaders stressed that the city must be forced to meet its obligations, since the city’s failure to make its full payments has helped create those plans’ poor funding levels.

Both also stressed that they already have sacrificed by cutting benefits for new hires, with Mose saying, “Reform plus time equals success.” Bratton, for his part, pointedly noted that firefighters have not been similarly accommodating. Clark declined comment on that.

Clark, for his part, noted that firefighter retirement costs amount to only a few percentage points of the $2.3 billion general fund budget.

In general, however, it was clear the pension boards planned, at least publicly, to embrace “change” at the hearing.

“We see this as an opportunity. We really don’t want to come back in 2019,” Bratton said. “Our members have worried too long about the most important benefit they have and it’s time to allow them peace of mind in knowing that their benefits are secure and the plan is sustainable.”

There are plenty of people of varying degrees of trustworthiness out there who are happy to get into the gory details of this and tell us all just how DOOMED, DOOMED we are, so I’ll leave that to them. What I know is that politically speaking, Mayor Turner has staked an awful lot on his ability to get the pension funds to agree to some fundamental changes to help ease Houston’s short-term fiscal problems while ensuring the long-term future of these funds that will then be ratified by the Legislature. This is obviously a very narrow and perilous path to walk, though just getting everyone to the table to talk was a big achievement. I don’t want to say that Mayor Turner’s term in office will be judged a success or failure depending on the outcome of all this, but I think it’s fair to say that a significant part of his grade is riding on it. We’ll see what we get later this year.

Time to kill Daylight Saving Time?

At least one member of the House would like to do so.

I got to the office this morning just before 6 a.m. Or, as I called it two days ago, 5 a.m.

Enough’s enough. Isn’t that right, state Rep. Dan Flynn, Republican from Canton? “It is something that was a good idea at one point, but it has kind of past.” Kind of? Haven’t you heard? Daylight saving time is killing us.

That was Flynn talking about daylight saving time back in November, when he first filed HB 150, which aims to adios the springing forward and the falling back. Flynn hopes to make that happen by Sept. 1.

Maybe it has a fighting chance: Last month the bill was sent to the House’s Government Transparency & Operation Committee, which has put it at the top of its to-discuss list this Wednesday. And thanks to this Facebook campaign, the comments are piling up. Shocking: There aren’t many in favor of keeping daylight saving time.

I guess I need to go register my feedback for today’s committee hearing, because I do like Daylight Saving Time. I like having more daytime during the after school/after work hours, when it’s actually useful. I’m not sure why anyone wants the sun to come up before 6 AM during the summer, but maybe that’s just me. I admit, I get a bit off kilter for the first few days after the changeover, and I admit that current research shows that DST does not deliver on its promised benefits. I still like it. Go ahead, sue me. Far as I can tell from my archives, this subject has not come up in previous Legislatures, at least not in a way that was notable enough for me to blog about it. We’ll see how far this effort gets. RG Ratcliffe, Trail Blazers, Unfair Park, and Texas Leftist have more.

More on the initial bill filings

From the Trib, a sampling:

As of Monday afternoon, a bill repealing the Texas Dream Act, which allows undocumented immigrant students to pay in-state college tuition rates, had yet to emerge. Lt. Gov.-elect Dan Patrick promised while campaigning that he would work to repeal the act. The bill could part of legislation that is reserved for priorities set by the lieutenant governor.

All bills can be seen on the Texas Legislature site. Here’s a list of other noteworthy legislation filed Monday: 

Guns

State Reps. Dan Flynn, R-Canton, and James White, R-Woodville, filed legislation, House Bill 106 and House Bill 164, respectively, that would allow Texans to openly carry handheld guns. 

House Bill 176, filed by Rep. Tim Kleinschmidt, R-Lexington, would create the “Second Amendment Preservation Act,” which would say a federal law “that infringes on a law-abiding citizen’s right to keep and bear arms under the Second Amendment to the United States Constitution or Section 23, Article I, Texas Constitution, is invalid and not enforceable in this state.” 

Transportation

Senate Joint Resolution 12 and Senate Bill 139, filed by Sen. Charles Perry, R-Lubbock, would eliminate diversions from the state highway fund to the Department of Public Safety to ensure those funds are only used on road construction. Currently, part of the state highway fund is paying for state highway police. 

Health

Senate Bill 66, filed by Sen. Juan “Chuy” Hinojosa, D-McAllen, would require schools to stock EpiPens, and that employees are trained in how to use the medical devices that combat serious allergic reactions.

Senate Bill 96 and Senate Bill 97, also filed by Hinojosa, would introduce regulations of vapor products, or  e-cigarettes, in Texas. SB 96 prohibits the use of vapor products on school property, while SB 97 would apply many of the regulations on cigarettes to vapor products.

House Bill 113, filed by Rep. Allen Fletcher, R-Cypress, would make it illegal to perform an abortion based on the sex of the child.

House Bill 116, filed by Rep. Trey Martinez Fischer, D-San Antonio, would expand Medicaid eligibility in the state. 

Education

Sen. Judith Zaffirini, D-Laredo, filed several higher education related bills. Senate Bill 24 would increase the orientation training for university system regents, while Senate Bill 42 would prevent the governor from appointing a student regent if that person did not submit an application to the university or its student government. Senate Bill 23, also filed by Zaffirini, would make pre-kindergarten available to all 4-year-olds in Texas and make half-day pre-K available to 3-year olds who meet certain at-risk measures.

Senate Bill 150, filed by Sen. Kel Seliger, R-Amarillo, would fund 64 construction and renovation projects at higher education institutions across the state. It would cost $2.86 billion.

House Bill 138, filed by Rep. Dan Flynn, R-Canton, would stop independent school districts from banning schools from posting the Ten Commandments in classrooms. 

Voting

House Bill 76, filed by Rep. Celia Israel, D-Austin, would allow citizens to register to vote online. 

Sen. Sylvia Garcia, D-Houston, filed three bills in an attempt to increase civic engagement in Texas. Senate Bill 141 would create a voter education program in Texas high schools, Senate Bill 142 would allow deputy registrars to receive their training online, and Senate Bill 143 would notify voters who were rejected while registering of what mistakes they made on their registration forms. 

House Bill 111, filed by Rep. Trey Martinez Fischer, D-San Antonio, would create same-day voter registration. 

Energy and Environment

Senate Bill 109, filed by Sen.-elect Van Taylor, R-Plano, establishes new deadlines for processing water rights permits in Texas. In a statement on Monday, Taylor said the bill was aimed at bureaucracy that is preventing parts of North Texas from accessing water.

House Bill 224, filed by Rep. Ryan Guillen, D-Rio Grande City, would change the name of the Railroad Commission of Texas to the “Texas Energy Resources Commission.” Similar legislation has failed in the past.

Other

House Bill 55, filed by Rep. Armando “Mando” Martinez, D-Weslaco, would allow money from the Texas Enterprise Fund to go to veterans hospitals in the state. The Texas Enterprise Fund became embroiled in controversy this past election season, when it was revealed that several recipients of the fund never formally submitted applications.

House Bill 92, filed by Rep. James White, R-Woodville, would change the legal definition of an “illegal knife.” 

House Bill 150, filed by Rep. Dan Flynn, R-Canton, would nix daylight savings time in Texas.

House Bill 161, filed by Rep. Lyle Larson, R-San Antonio, would allow counties to house prisoners in tents.  

There’s plenty more, some good, some bad, some bat$#!+ crazy, some blatantly unconstitutional, many with no hope of ever getting a committee hearing. As always, I’ll do what I can to keep track of ’em as we go. The Chron, Stace, Grits, Juanita, Newsdesk, and the Observer have more.

Abbott issues bag ban opinion

It’s complicated.

plastic-bag

Do plastic bag bans and restrictions in cities like Austin, Laredo, and Brownsville violate Texas law?

According to an opinion issued by Attorney General Greg Abbott’s office handed down on Friday afternoon, that depends on how you define two phrases: “container or package” and “solid waste management.”

Opinions on Texas law from the attorney general’s office are not binding, though they do carry weight statewide and could make other cities reconsider possible bans or restrictions on the use of single-use bags. Abbott said outright bans on single-use bags, which have been passed in in Austin and Laredo, are legal if they weren’t passed for the purpose of “solid waste management,” which isn’t clearly defined by state statute.

When it comes to restrictions on single-use bags, like Brownsville $1 fee-per-bag or Dallas’ recently passed nickel-per-bag fee, Abbott has a narrower view: He doesn’t think Texas law allows fees for bags at all, though it’s still not totally clear if single-use bags are indeed “containers or packages” in the law his office refers to.

The Texas law in question, from the state’s Solid Waste Disposal Act, was added to the Health and Safety Code in 1993. It says that cities can’t “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law … [or] assess a fee or deposit on the sale or use of a container or package.”

That raises two questions: What’s a “container or package?” And what does “solid waste management” mean?

For the purposes of plastic bag bans and fees, that isn’t clear. Brian Sledge, an environmental attorney and lobbyist in Austin, said the 1993 law stemmed from backlash against new packaging that food companies were using. The packaging mixed recyclable material, like aluminum, with nonrecyclables. Cities in states like California banned the packaging, causing the companies to head to states like Texas and ask for legislation that would avoid the same problem.

“Plastic bags weren’t really on the radar screen” in 1993, said Sledge. “It’s hard to think that a bag’s not a container. It holds stuff. But I don’t think that is the intent of the statute.”

See here for the background. My layman’s opinion is that Abbott quite reasonably concluded that the 1993 law really doesn’t speak to the municipal restrictions being placed on plastic bags these days. Either the Lege can address it with a newer law, or the courts can decide when the matter comes before them. The Texas Retailers Association, which asked Rep. Dan Flynn to request the opinion and which is suing Austin and may sure Dallas, has been pushing for a state law to prevent these municipal ordinances in addition to its legal actions, so they’re working both fronts. Expect this to come up again in the 2015 Lege.

Why would you want to regulate that?

I mean, what are a few fiery explosions among friends?

Members of the state House Homeland Security and Public Safety Committee have been struggling for several months over how to respond to last year’s massive explosion at the West Fertilizer Co. that killed 15 and devastated the nearby city of West.

On Tuesday, committee Chairman Joe Pickett, D-El Paso, unveiled a draft bill that would require businesses to store ammonium nitrate, a chemical compound used in fertilizer, in noncombustible buildings or in buildings equipped with a sprinkler system.

Affected businesses would have three years to comply, though new facilities would have to meet the heightened standard immediately, Pickett said.

The bill also would open the facilities to inspections by all certified firefighters to verify safe storage and to create a strategy on fighting potential fires. Pickett said the provision was in response to a state law that allows inspections only by paid firefighters.

“Over 70 percent of firefighters in Texas are volunteers … so 70 percent of our first responders do not have that authority,” he said.

Most controversially, Pickett’s proposal would require storage facilities to meet standards developed by the National Fire Protection Association, a nonprofit that develops research-based fire codes.

Rep. Tim Kleinschmidt, R-Lexington, said the bill includes fire standards that are too complex for small businesses to navigate.

“I count no less than 10 different state and federal codes, standards and regulations listed in this bill, some of which I have a problem with,” he said. “We may be making things a little too complex.”

Rep. George Lavender, R-Texarkana, said the proposal was overkill, and he recommended letting businesses opt out of bill’s provisions if they agree to store ammonium nitrate in a noncombustible building and allow fire inspectors to conduct periodic checks.

“I think the bill as written would put a lot of people out of business,” he said. “I recognize the tragedies that we’ve had, and we certainly need to avoid that in the future, but there is a lot of stuff in here that is bad for the industry.”

Rep. Dan Flynn, R-Canton, said he was concerned about shifting unaffordable costs onto an industry “that has operated safely for decades.”

“It seems like we’re out there with kind of a power grab,” Flynn said.

Pickett replied that he could not live with himself if he didn’t try to improve safety around the facilities.

“I think, Dan, that if we do nothing, we’ll have another West disaster,” Pickett said. “I’m not going to sugarcoat it. If I have an ammonium nitrate facility, with the possibility of a catastrophic situation, I am going to be asking them to spend some money.”

The Chron story has more of the same in this vein. I mean, come on, who in their right minds could possibly think that requiring highly combustible materials to be stored in non-combustible buildings is a good idea? How could these poor businesses possibly be expected to survive if we made them do that?

Well, at least we have the right to know where the hazardous material is, right? Surely the government will require that the places that could blow sky high any minute tell us about that possibility, right? Wrong.

You want to be the boss, you get to deal with boss problems

Republican Attorney General Greg Abbott, under fire for blocking public access to state records documenting the location of dangerous chemicals, said Texans still have a right to find out where the substances are stored — as long as they know which companies to ask.

“You know where they are if you drive around,” Abbott told reporters Tuesday. “You can ask every facility whether or not they have chemicals or not. You can ask them if they do, and they can tell you, well, we do have chemicals or we don’t have chemicals, and if they do, they tell which ones they have.”

In a recently released decision by his office, Abbott, the Republican candidate for governor, said government entities can withhold the state records — in so-called Tier II reports — of dangerous chemical locations. The reports contain an inventory of hazardous chemicals.

But Abbott said homeowners who think they might live near stores of dangerous chemicals could simply ask the companies near their homes what substances are kept on site.

Collected under the federal Community Right to Know Act, the information was made available upon request by the state for decades to homeowners, the media or anyone else who wanted to know where dangerous chemicals were stored. But, as WFAA-TV recently reported, the Texas Department of State Health Services will no longer release the information because of the attorney general’s ruling.

I don’t know about you, but I’ve got plenty of spare time in my day to drive around to every chemical facility in Houston and ask them about what hazardous and explosive materials they have, which I’m sure they’ll be delighted to tell me all about. Why, I’ve got so much free time I may just drive around to chemical plants that aren’t in my area and ask them about this. Thanks for the great suggestion for how to spend my time, Greg Abbott! I’m sure the terrorists that you’re hoping to hide this information from are thinking the same thing, too.

Of course, you know the real reason why Greg Abbott issued this opinion:

The story.

Five months after an ammonium nitrate explosion that killed 15 people in West, Attorney General Greg Abbott received a $25,000 contribution from a first-time donor to his political campaigns — the head of Koch Industries’ fertilizer division.

The donor, Chase Koch, is the son of one of the billionaire brothers atop Koch Industries’ politically influential business empire.

Abbott, who has since been criticized for allowing Texas chemical facilities to keep secret the contents of their plants, received more than $75,000 from Koch interests after the April 2013 explosion at the West Fertilizer Co. storage and distribution facility, campaign finance records filed with the state showed.

[…]

For decades, Texans wanting to know about companies keeping such chemicals could find out from the state.

But Abbott has said that those records are closed. And the state agency that collects and maintains information on large chemical supplies has stopped sharing it with the public.

Abbott contends his opinion, issued in May, strikes a balance. On Tuesday, he called it a “win-win” that keeps information about large chemical inventories off the website of the Department of State Health Services but doesn’t forbid homeowners from asking companies in their neighborhoods what they store.

He said companies should respond within 10 days, but it’s not clear what penalties, if any, private companies face if they decline to tell a member of the public what chemicals are on site.

In blocking public access to the information, Abbott cited a state security statute passed after the Sept. 11 terrorist attacks.

A Davis aide rebuked Abbott for the remarks.

“The only thing more outrageous than Greg Abbott keeping the location of chemical facilities secret is telling Texas parents they literally need to go door to door in order to find out if their child’s school is in the blast radius of dangerous explosives,” said spokesman Zac Petkanas. “Parents have a right to know whether their kids are playing hopscotch next door to the type of facility that exploded in West.”

[…]

Chase Koch donated $25,000 in September, shortly after his father, Koch board chairman Charles Koch, also gave $25,000. The Koch Industries political committee sent Abbott $25,000 in November.

In addition, the company flew Abbott on a company jet in August to an invitation-only gathering in New Mexico that offered wealthy donors an opportunity to meet and mingle with GOP elected officials and leaders of conservative groups supporting the Koch agenda of less government regulation and disclosure.

In the Texas Legislature, Koch lobbyists are on record advocating repeal of notification requirements regarding company pipeline construction and discontinuing the Texas Commission on Environmental Quality’s compliance history program.

Remember when Greg Abbott made ethics reform a key component of his campaign? Boy, those were the days. Burka has more.

UPDATE: Looks like Abbott realized he stepped in it.

Attorney General Greg Abbott this week said private companies must release information about their hazardous chemical stockpiles, weeks after his office ruled the same information no longer would be available from state agencies.

“Homeowners who think they might live near stores of dangerous chemicals would simply ask the companies what substances are kept on site,” Abbott told reporters Tuesday, adding, “And if they do, they tell which ones they have.”

Not everyone agrees with Abbott’s reading of the law, however.

Requests by the Houston Chronicle to 20 companies and local emergency response agencies last month produced mixed results: Half of the companies and agencies sent extensive data on the hazardous chemicals they held on site, known as Tier II reports; five sent basic chemical inventories that often did not include amounts or other details; one asked for more information; two refused to release any data; and two did not respond.

[…]

Tom “Smitty” Smith, the Texas head of consumer advocacy group Public Citizen, said “this is a huge campaign issue and should be.”

“Other former attorneys general would have stood up for the citizens,” Smith said. “The process Abbott has now created is almost impossible for the average citizen that doesn’t have the Houston Chronicle’s name to back them up.”

Abbott acknowledged to the Associated Press on Wednesday that the process may be more difficult than he originally had proposed, calling it “challenging” to get chemical facility information.

Abbott’s statements also could encounter opposition from the business community.

Attorney General spokesman Jerry Strickland said any private company that denied the Chronicle’s requests was providing the public with “misinformation” and could face unspecified “penalties.”

“Chemical companies have an obligation under the Community Right-to-Know Act to disclose that information to the general public within 10 days,” Strickland said in a statement to the Chronicle. “Private companies are required to provide the information. Any failure (to) do to so carries with it penalties to be assessed by the Department of State Health Services.”

Strickland said Abbott’s office was reaching out to the Texas Ag Industries Association, a trade group to which Orica does not belong, to ensure its members understand the law. TAIA President Donnie Dippel said he would urge his members to comply with the law.

Strickland reiterated that the refused information requests were not Abbott’s choice, but what was required under state law.”

Industry lawyer and lobbyist Pam Giblin said the issue was not that cut and dried.

“If the government doesn’t have to release it, how in the world does a private company get this disclosure obligation thrust on it?” Giblin asked, adding she sees possible litigation on the horizon. “There are a lot of homeland security issues. … I think you’re bound to see some court tests because this just doesn’t make sense.”

What would make sense would be for the state’s top law enforcement official to ensure that this information is made available to the public by the government. Too bad Greg Abbott is answering to a higher power than that.

Dallas adopts plastic bag fee

A fee, not a ban.

plastic-bag

Stores in Dallas will charge customers five cents for most kinds of plastic or paper carryout bags, under a measure approved Wednesday by the City Council.

At the urging of council member Dwaine Caraway, the council voted 8-6 to assess an “environmental fee” for single-use carryout bags. The five-cent charge takes effect Jan. 1.

Single-use bags will be banned entirely at retail outlets in city buildings and at city-sponsored events. The ban apparently would apply, for example, to gift shops at city-owned museums, American Airlines Center, even the Omni Dallas Hotel, which adjoins the Dallas convention center.

Caraway has complained for months that plastic bags, in particular, were creating litter problems throughout the city.

[…]

The Texas Retailers Association opposed the bag fee, even though stores will keep 10 percent of the money they collect, and even though the measure approved Wednesday is less stringent than the outright ban on single-use bags that Caraway originally sought.

Gary Huddleston, a member of the association’s executive committee, said the fee will be burdensome to stores and customers alike.

“We personally believe the solution to litter in the city of Dallas is a strong recycling program and also punishing the people that litter, and not punishing the retailer,” said Huddleston, director of consumer affairs for the Kroger Co.

Stores will have to devote administrative resources to tracking the fees, he said, and the nickel that customers must pay for each disposable bag is a nickel that otherwise might have been used “to buy more product in my store.”

City officials said the money collected from the bag fee will go toward enforcement and education efforts. Those efforts could cost $250,000 and require the hiring of 12 additional employees, said Jill Jordan, an assistant city manager.

After the council vote, Huddleston would not rule out a legal challenge by the retailers association. Texas Attorney General Greg Abbott has already been asked to weigh in on the legality of Texas cities’ banning of single-use bags. Council member Sheffie Kadane, who opposed the five-cent fee, said the city can almost count on being sued by retailers or plastic bag manufacturers or both.

See here for some background on the debate in Dallas. As you know, AG Greg Abbott has been asked for an opinion about the legality of municipal bag laws. This opinion was requested by State Rep. Dan Flynn, on behalf of the Texas Retailers Association and its CEO, Ronnie Volkenning. The Trib reports on environmental groups responding to this request.

Supporters of the ordinances say plastic bags harm the environment. The Texas Campaign for the Environment has been one of the most vocal supporters of the ordinances. “We want the attorney general to stay out of this issue altogether,” said Robin Schneider, the group’s executive director.

The Texas Municipal League was the first to submit a brief to the attorney general’s office. The brief included a statement from state Sen. Kel Seliger, R-Amarillo, from 2011 in which he argued for local control over the issue.

“For the state to determine what a city’s problems are or solutions that it may have or may not have is a little bit of an overextension of the Legislature,” Seliger said.

Because the cities are responsible for supplying plastic bags, they should be able to determine if they wish to ban them, he said in an interview.

“They spend much more time as garbage than they do as carriers of groceries anyway,” Seliger added.

The Texas Municipal League argued in its brief that a plastic bag should not be classified as a “container” or a package” — the two words specifically mentioned in the Heath and Safety Code.

“A plastic bag is not a container or a package, but merely the means by which a container or a package is transported,” the brief said.

Volkening said the most environmental position would be to encourage the recycling of plastic bags, not banning their use.

That may be Volkening’s opinion, but as you may recall from Tyson Sowell’s guest post here, groups like the Texas Campaign for the Environment think the ban is the way to go. In fact, they’d push for a ban on paper bags as well. Regardless, I like Seliger’s statement, which you would think would be appealing to conservatives. And it is for many, but there’s a significant number for whom local control is only for policies they like. We’ll see which group is happy with Abbott’s forthcoming opinion.

AG opinion sought on bag bans

Whatever.

plastic-bag

As proponents continue to tout the benefits of banning plastic bags, the debate over whether Texas cities like Austin actually have the ability to enact such ordinances has made its way to the attorney general’s office.

In a letter seeking an opinion from Attorney General Greg Abbott, state Rep. Dan Flynn, R-Canton, questioned whether the city bans are in compliance with the state’s health and safety laws.

“At least nine cities in Texas have enacted bans on plastic bags and adopted fees on replacement bags in recent years,” the letter stated. “This appears to be in contravention of state law.”

The letter, which was received last week by the attorney general’s office, asks the office to interpret a specific section of the Texas Health and Safety Code. The section states that a municipal district may not pass legislative restrictions or charge fees relating to the consumption of a “container or package” for waste management purposes.

“I can’t begin to tell you how many phone calls we received about the legality of the bans,” said Flynn, whose district does not have any communities that have imposed bag bans. Even though it doesn’t affect him directly, “there are a lot of people who are really inconvenienced by it,” he said.

One of the most vocal opponents of bag bans, the Texas Retailers Association, approached Flynn about writing the letter to the attorney general’s office.

“It sure looks to us that the plain meaning of the statute’s language is that the state meant to stop local governments from adopting ordinances that prohibit or restrict the use of these bags,” said Ronnie Volkening, the president and CEO of the retailers association. “If the state Legislature enacted that language, then the cities are in fact engaging in an activity that they should not.”

[…]

The push for an opinion from the attorney general’s office comes a year after the retailers group filed a lawsuit targeting Austin’s plastic bag ban last February. But the group dropped the lawsuit after Austin officials asked it to disclose information on the sales of plastic bags.

“They were asking for proprietary information that retailers will not disclose for sensitive reasons,” Volkening said, adding that it would be very expensive for the association to contest the request. “Rather than disclosing that information, we felt it was necessary to drop the suit.”

A copy of that now-dropped lawsuit is here. Rep. Flynn’s letter basically recapitulates its arguments. I assume that the cities that have adopted these bans have attorneys at their disposal who can interpret state law and advise their clients how likely they are to get their posteriors handed to them in court some day, so I presume there is a counterargument to be made here. If any lawyers would like to weigh in on that, I’d be delighted to hear it. Whether the timing of this request has anything to do with the developments in San Antonio or not I couldn’t say, but thanks to Rep. Flynn we can now say with confidence that it is possible to carry water in a plastic bag.

From the fish fraud files

My name’s Friday. I’m a fish fraud cop.

Eyebeam, by Sam Hurt

Game wardens inspecting the takes of the “Nice Tails” team at the annual Ladies Kingfish tournament last month knew something was up when they saw a trout with a mottled belly and a flounder whose appearance since the team’s last inspection was fishy at best.

The unlikely “catches” to them were another example of a sort of open secret: that cheaters were among the competitors for the thousands of dollars in prizes awarded during one of South Padre Island’s biggest events.

This time, the wardens were armed with a new law that allowed them to press the state’s first-ever felony charges of fraud in a saltwater fishing tournament. Seven people, including their fishing guide, now face up 10 years in prison and up to a $10,000 fine if convicted.

While the state’s Parks and Wildlife code already had a statute regarding freshwater competitions, it was not until last year that the Legislature added saltwater tournaments, which have become huge tourist draws for cities along the Texas coast.

In some tournaments, the total value of prizes tops $100,000, and local and corporate sponsors are eager to make their brands part of the mix. Competitors also can win boats with trailers and pickups.

“There’s a lot of money in fishing tournaments that is wagered, and it’s an incentive for people to cheat,” said Tony Reisinger, a marine biologist with Texas Sea Grant who has lent his scientist’s eye to fishing tournaments.

[…]

Violation of the law, a first-degree misdemeanor, becomes a third-degree felony when the tournament’s purse is more than $10,000.

I’ve blogged about the fish fraud law before. I don’t really have anything to add, I just like to stay on top of these things. Also, this was an excellent excuse to embed an Eyebeam comic, “Eyebeam” being my second-favorite surrealist strip to come out of the 80s; like the one ahead of it, both cartoonists got their start at the Daily Texan. So there you have it. Grits has more.

Why the budget almost didn’t pass in the special session

You may recall that just before the House passed SB1, which was a must-pass bill for the special session and whose failure would have necessitated a second special session, the House voted it down before reconsidering and passing it on a second attempt. The reason for the near-failure weren’t deeply explored at the time, but this Statesman article sheds a little light on it.

Harmony Public Schools, a high-performing charter school network that focuses on math and science, has been the target of activists concerned that its leaders are non-U.S. citizens with ties to Turkey.

Led by the Texas Eagle Forum, a conservative pro-family organization, Harmony’s critics have issued a flurry of legislative alerts in recent weeks that said the state’s $25 billion endowment for “our children’s textbooks” was imperiled by “Turkish men, of whom we know very little other than most are not American citizens.”

They gathered enough momentum that earlier this week some conservative legislators cited the concerns when they voted against a key budget bill — and almost killed it.

But one conservative protector of the endowment, the Permanent School Fund, says the criticism of Harmony is unfounded.

“There is a lot of misinformation, a certain level of fear and a small helping of bigotry that needs to go away,” said State Board of Education member David Bradley, R-Beaumont.

Bradley said he would be the “first to sound the alarm” if there were anything to be alarmed about. But the board has not received substantive complaints from parents of the 16,000 children that attend any of the 33 Harmony campuses across the state, he said.

“The only thing these guys are guilty of are high scores and being Turkish,” Bradley said.

When David Bradley is acting as a voice of reason, you can insert your own cliche about how we’ve gone around the bend, down the rabbit hole, and through the looking glass. The legislators who were cowed by the Eagle Forum will get their investigation, which will likely lead to nothing of substance, not that that’s any guarantee against a subsequent flare-up. Just file this away as another reason why this was the worst Legislature we’ve seen since the Sharpstown days.

Outdoors legislative update

This is about the time of year when Shannon Thompkins, the Chron’s outdoor sports writer, devotes a column to what’s going on in the Legislature with bills that are about outdoor activities. I always look for them because he writes about bills that I may not have heard about. Here’s this year’s effort, which not surprisingly spends some time on the feral hogs and helicopters issue. One other item caught my eye:

Texas law makes perpetrating fraud in a freshwater fishing tournament offering any kind of prize punishable by as much as a $5,000 fine and a year in jail. If the prize is worth $10,000 or more, it is a felony.

Saltwater fishing tournaments are not covered under the statute.

But twin pieces of legislation — HB 1806 by Rep. Dan Flynn, R-Canton, and SB 897 by Sen. Glenn Hegar, R-Katy — would change the law to apply to all fishing tournaments and add altering the length or weight of a fish or entering a fish taken in violation of a regulation to the list of fraudulent actions.

Both bills easily cleared their respective committees, have little or no opposition, and appear very likely to pass.

Fishing fraud! Does Greg Abbott know about this? I sense a publicity opportunity for him, or at least a show to pitch for Animal Planet. In any event, it’s good to know the Lege is on the case. Read the column for more.

Is this finally the end of steroid testing?

I hope so, but the fight is far from over.

In 2008, Texas became the third state to begin steroid testing, setting up a massive $6 million program. Every one of the state’s 700,000-plus public school athletes — from freshmen female tennis players to senior offensive linemen in football — were eligible to be randomly selected, pulled from class and required to submit a urine sample.

But after the first 50,000 tests produced fewer than two dozen confirmed cases, critics derided the effort as a waste of money. This month, with the state facing a projected $15 billion budget shortfall, the House’s first draft budget eliminated the program’s money. A Senate draft still includes funding.

Even some one-time supporters of screening are wavering. “We accomplished our goal,” said state Rep. Dan Flynn, “and that was to educate and create a deterrent.”

[…]

Texas has been scaling down the program almost since it began. The original $6 million budget was slashed to $2 million in 2009.

Lt. Gov. David Dewhurst, an early supporter, intends to fight to preserve the tests as “an important deterrent,” said his spokesman, Mike Walz. When put up against proposed budget cuts for teachers and pre-kindergarten programs, health care for the poor and myriad other budget issues, said Flynn, “What’s more important? We didn’t catch a lot of kids, but we were hoping we wouldn’t have to. I can’t fight to get $1.8 million.”

I just can’t understand the mindset that says this is the line in the sand to draw. Why is this so much more important than all those other things that are being gutted? I get that people think it has value, even though I disagree with them. But look, we’re on the Titanic and there’s not enough lifeboats to save everybody. The question is not whether something has value, it’s whether it has enough value to put it ahead of everything else in line. I don’t see how this can be justified in that context.

Scaling back steroid testing in the schools

Yes, yes, yes.

House and Senate budget negotiators will decide in the coming weeks whether the [$3 million a year program to test high school student athletes for steroids] continues — and its scope and pace.

“It’s not needed. House members think that we should not do the test at all,” said House Appropriations Chairman Jim Pitts, R-Waxahachie. Pitts will lead House members in their negotiations with Senate counterparts.

A scaled-down program is possible, Pitts said. And that would satisfy Rep. Dan Flynn, R-Van, who sponsored the steroid-testing legislation two years ago.

He prefers a scaled-down program where random tests for steroid use are given to students who participate in football, track, weight lifting and wrestling, sports in which steroid abuse is most prevalent, as opposed to volleyball, for example.

“No, we don’t have a whole lot of people that we caught, but the whole idea was for them not to use it,” Flynn said. “It was a fairness and health issue, and we think we raised that level of awareness to a bar where it’s been successful.”

As noted, in the story, a grand total of 11 athletes, out of 29,000 tested, came up positive. Both Rep. Flynn and Lt. Gov. Dewhurst, who was also quoted in support of this foolishness, have given all kinds of silly justifications for this in the past as well. Even Governor Perry supports scaling this back. Now three million bucks is chump change in the context of the budget. Killing this program isn’t going to achieve any real savings. That’s not the point. Steroid testing was done for a reason, whether you believe it was deterrence or fact-finding or something else, and the results have shown that it’s not needed. We should pay heed to those results and take the next logical step.

Steroid madness

Can we please declare victory in the war on steroids in Texas high schools and move on to something more productive?

Only 11 Texas high school students proved positive for steroid use among nearly 29,000 students tested in the last year, leading some lawmakers and others to suggest a downsizing of the $3-million-a-year program.

Nearly all of the students who tested positive during the yearlong program were football players or wrestlers and all were male. Those tested were randomly selected from an estimated 740,000 student athletes.

[…]

Allison Castle, a spokeswoman for Gov. Rick Perry, said the governor “would be open” to a scaled down steroid testing program.

Many Texas athletic coaches have said they believe education works better than an expensive testing and continue to question the merit of testing for steroids but not for recreational drugs.

Lt. Gov. David Dewhurst, a main backer of the steroid-testing program approved by lawmakers two years ago, wants to continue the project but is receptive to changes.

“It is too early to determine what, if any, adjustments should be made to the program, but as with any important initiative like this, I am always looking for ways to make improvements,” Dewhurst said.

Some high school coaches believe the money could be better spent.

[…]

The test results, showing a positive steroid result of only .03 percent indicates, “it’s not quite the epidemic that a lot of people feared it was,” said D.W. Rutledge, executive director of the Texas High School Coaches Association.

“There are a lot of concerns we have that this money could be used on, one being childhood obesity, another being recreational drugs,” Rutledge said.

The first round of testing, done in the spring, netted three violators. Would someone please explain to me how this is a good use of our financial resources? I didn’t see how it was then, and I don’t see it now. I think we’ve clearly demonstrated that steroids are not a problem in Texas’ high schools, at least not a $3 million one. Surely this money can be put to better use.