Off the Kuff Rotating Header Image

Jim Keffer

Patrick versus the House

The Texas House isn’t all onboard with Dan Patrick’s agenda, and our Lite Guv has his shorts in a bunch about it.

Lt. Gov. Dan Patrick celebrated a milestone Wednesday: His Senate had acted on all four of Gov. Greg Abbott’s emergency items with many more days to go in the 85th legislative session.

“It’s the earliest ever that anyone knows of that either body… has already passed all the emergency items,” Patrick said in a radio interview. Abbott’s top priorities are “out and done” in the Senate, Patrick boasted — a not-so-subtle contrast with the Texas House, which tackled its first emergency item this week.

It’s not the only bone Patrick has to pick with the House these days. As its resistance to some of his top priorities has come into focus in recent weeks, the lieutenant governor has become increasingly vocal about the tension between the two chambers.

“The brow-beating — I think the volume’s up a lot higher than we’ve seen in the past,” said state Rep. Lyle Larson, an ally of House Speaker Joe Straus, a fellow San Antonio Republican. “Using a brow-beating approach in governing never bodes well for anybody.

In recent media appearances, Patrick has stopped short of directly criticizing the House. But he has hardly concealed his irritation with a chamber that has shown little appetite for some of the issues he cares most about. The latest exhibit came Tuesday, when state Rep. Dan Huberty, the Houston Republican who chairs the House Public Education Committee, bluntly stated that Patrick’s school voucher bill will be dead on arrival in the lower chamber.

“They’ve said they’re against school choice, which is a high priority,” Patrick said in a radio interview on Monday. “We’re going to pass the Texas Privacy Act, which keeps men out of bathrooms and stops boys and girls from showering together in high schools. The House has said they’re not interested in that bill. I don’t know where they are on property tax relief, but… conservatives in the Senate have made a pledge that we’re going to get our job done.”

“What I always ask for is just bring a bill to the floor,” Patrick added. “We have 94 out of 150… House members [who] are Republicans. You need 76 to pass a bill. I believe there will be 76 out of 94 Republicans, if given a vote, on the House floor to pass all the legislation that we’re going to pass.”

The House has not responded in kind to most of Patrick’s public volleys, which date back to his panning of the lower chamber’s budget proposal in January — “I can’t explain the House budget” — and demand on the Capitol steps that same month that the House give school choice a vote this session. “It’s easy to kill a bill when no one gets to vote on it,” he said, joining Abbott at a school choice rally.

Then there is Patrick’s highest-profile priority, the so-called “bathroom bill” that would require transgender people to use the bathroom that corresponds with their “biological sex” in public schools, government buildings and public universities. Straus made clear early in the session that he has serious concerns with the legislation, which is set for a committee hearing Tuesday amid mounting opposition from the business community.

[…]

Those familiar with House leadership say Patrick’s recent comments probably aren’t helping him make his case across the hall. If anything, they’re solidifying the House’s resolve to chart its own path this session.

“With all due respect, I think they could care less,” said former state Rep. Jim Keffer, an Eastland Republican close to Straus. “Sitting there pounding your chest and pointing your fingers and trying to kick sand in someone’s face — that’s pretty childish to me.”

That’s one word for it. It’s also basically how Patrick came into the Senate ten years ago, full of bluster and glory-hounding and expecting everyone to do what he says because he’s Dan Patrick. After realizing the limits of that approach, he spent the next couple of sessions being more of a work horse and getting some stuff done. Then after most of the conventional Republicans in the Senate got replaced by people more like him and the upper chamber became the place where the crazy happened, he got a promotion and reverted to form. While it’s never comfortable depending on the House for sanity – Speaker Straus aside, the lower chamber has more than its fair share of lunatics and bad actors – it still remains true that people who think they’re important really don’t like other people who think they’re even more important. So keep raging against the machine, Dan. I’m sure that will be very effective.

David Porter not running for re-election to RRC

Another open seat.

David Porter

Texas Railroad Commission Chairman David Porter will not be running for re-election after all.

Thursday’s surprise announcement from Porter, who was first elected in 2010, unleashed a flood of interest from Republicans pondering bids for his seat.

Former Texas Land Commissioner Jerry Patterson, state Rep. Jim Keffer, R-Eastland, and former state Rep. Wayne Christian, R-Center, all confirmed they are weighing their options. And rumors were swirling around Austin that others might jump in.

[…]

Porter, who formerly ran a Midland accounting firm that catered to oil and gas companies, was elected to the three-member commission in 2010. And he took over as chairman in June.

At the agency (which also regulates mining, pipeline safety and natural gas utilities, but not railroads), Porter launched the Eagle Ford Shale Task Force, a collection of public officials, industry leaders, landowners and environmentalists who discussed issues surrounding oil and gas development in Texas’ drilling country. He also pushed Texas to find new uses for natural gas — particularly as a fuel for automobiles.

Last year, as Denton was preparing to vote on a hydraulic fracturing ban that the Legislature has since outlawed, Porter drew mocking from activists after he and another commissioner claimed — without evidence — that Russians were trying to shape the anti-fracking message in the North Texas town.

In recent weeks, Porter appeared to be gearing up for a major primary battle, sending out press releases blasting “radical environmentalist ideology” related to climate change and speaking of terror threats to power plants and pipelines posed by The Islamic State, or ISIS.

Porter is kind of an accidental Commissioner – he came out of nowhere to knock off then-Commissioner Victor Carrillo in the 2010 GOP primary, which no one saw coming. No great loss when he leaves, though as always the next person in line could be worse. Patterson or Keffer would be okay, the rest probably not. I figure this nomination will be decided in the runoff. It would of course be much better to have a good Democrat in the race, and as of Sunday, we have one:

Former state Rep. Lon Burnam, a Fort Worth Democrat, said Sunday that he has filed to run for a seat on the Texas Railroad Commission, the state agency that regulates oil and gas development.

“I think it’s really important that we have a progressive voice in this Railroad Commission race, and I think it’s very important we end one party rule in this state,” Burnam said.

Burnam represented House District 90 beginning in 1997; he ran for reelection in 2014 but was defeated in the Democratic primary by the current occupant of the seat, state Rep. Ramon Romero, D-Fort Worth.

Burnam would certainly be a fresh voice on the RRC, which isn’t used to having non-industry shills. He’s clearly a longshot to win, but given how crazy things are in the GOP Presidential primary, who knows what could happen. This is the only non-judicial statewide office on the ballot, and according to the Star-Telegram, Burnam will face 2014 Senate candidate Grady Yarbrough in the primary. We know what kind of random results we can get in these low-profile races, so I hope Burnam can raise a few bucks and get his name out. FuelFix has more.

Keffer to retire

The original Straus gang shrinks again.

Rep. Jim Keffer

State Rep. Jim Keffer, an Eastland Republican who was one of the earliest supporters of House Speaker Joe Straus, has decided not to seek reelection next year, according to a statement he prepared for the Hood County News that was widely posted on social media Tuesday evening.

Sources familiar with his plans confirmed the news; Keffer could not immediately be reached for comment.

First elected in 1996, Keffer is finishing his tenth term in the Texas House. He chairs the Natural Resources Committee and previously led the committees on Energy Resources, Ways & Means, Property Tax Relief and Economic Development.

His departure leaves only three members of the original Polo Road Gang — the eleven Republicans who met privately at state Rep. Byron Cook’s house on Polo Road in Austin before the 2009 legislative session to decide who they would unite behind in the race for speaker of the House. The 2008 elections left the House split almost evenly between Republicans and Democrats, destabilizing then-Speaker Tom Craddick’s coalition and setting the stage for a change in leadership. The eleven Republicans chose Straus, picked up some other Republicans and a majority of Democrats, and elected him that January.

Now, only Straus, Charlie Geren, R-Fort Worth, and Cook remain in office.

Keffer’s HD60 is ridiculously red (Romney 83.0% in 2012), so it’s all a matter of who survives the primary next year. Keffer is as conservative as anyone, but as a Straus backer and someone who’s more interested in governing than in burning crap down, he’s been a wingnut target for awhile and his seat will be high on their list. So, you know, same as it ever was. I wish Rep. Keffer the best in the next phase of his life, and I will hope that his successor isn’t a typical zombie robot idiot. It is what it is. PDiddie and Greg have more.

Beer legislation 2.0

Just because craft brewers succeeded in passing a bill allowing them to sell beer for consumption on their premises last session doesn’t mean there isn’t more that can be done to advance the cause of beer freedom.

TexasCraftBrewersGuild

Twinned bills introduced this week would extend direct sales for breweries. The proposals by state Sen. Kevin Eltife, R-Tyler, and state Rep. Jim Keffer, R-Eastland, would let customers buy beer that they could take away and drink later.

“This gives Texas breweries the same rights already enjoyed by wineries, distilleries and many of their out-of-state competitors,” Keffer said in a written statement distributed by the Texas Craft Brewers Guild.

Under the bill, consumers would be restricted to a single purchase of no more than the equivalent of two cases of beer each month at a brewery. Advocates say this type of “souvenir” beer, often sold following tours or special events, can be an effective marketing tool.

“This legislation is designed to finish what we started last session and bring people from around the country to this state which is rapidly becoming the epicenter of craft brewing quality,” Eltife said in the statement from the Brewers Guild.

[Rick] Donley said the Beer Alliance [of Texas] is still digesting the details of this and other legislation affecting alcohol sales in Texas, but he sounded skeptical.

The Beer Alliance and major wholesalers have contributed many hundreds of thousands of dollars to numerous political campaigns in Texas since the beginning of 2013. Major recipients include Gov. Greg Abbott and Lt. Gov. Dan Patrick, but the Beer Alliance of Texas PAC also gave a total of $5,000 to Eltife in June 2013, Texas Ethics Commission reports show.

Donley said it has been only a year and a half since the most recent law changes went into effect, and his organization would like more time to see how that plays out in the marketplace.

He also said he thinks the two-case-per-month limit is too high and he would want an annual cutoff on how much breweries could sell this way. The exemptions approved in 2013 limited breweries to selling no more than 5,000 barrels of beer on site. While the bill currently does not specify an annual limit, a spokesman in Eltife’s office said the 5,000-barrel limit would still apply to all beer sold on site, whether it was sold for on- or off-premise consumption.

Donley said the ongoing success of Texas craft brewing further suggests the industry does not need additional help.

[…]

Brock Wagner, owner and founder of Houston’s Saint Arnold Brewing Co., insisted the craft brewers are not seeking to replace traditional retailers. Rather, he said, this legislation would address the most common question from tour and special events visitors – why they are not allowed to buy beer to take home – and boost awareness of the brands.

Wagner also said lawmakers are probably more inclined to view craft brewers as important small businesses that deserve the state’s support.

See here and here for some background. As noted by the Texas Craft Brewers Guild, the bills in question are Senate Bill 1386 and House Bill 3086. I understand the Beer Alliance’s hesitation – and it should be noted that they were among the good guys in 2013 – but it’s still crazy when you think about it that brewers can’t sell a six pack or two to the people that come to visit their facilities. It would be one thing if there were a blanket prohibition on all forms of booze, but that’s not the case – Texas’ wineries and distilleries can sell bottles on site. So can microbreweries in other states. What Texas does makes no sense, and it’s all about what the big brewers and distributors want. The difference between the faith in free markets that people constantly proclaim in this state and the actual freedom of some specific markets never fails to boggle my mind.

Anyway. As those links above point out, there were other issues that the 2013 legislation did not address that remain untouched by these bills. Licensing fees remain high, and microbrewers were forced by another bill from 2013 to give away their territorial distribution rights instead of being allowed to sell them. Again – crazy, right? A lawsuit was filed last December to overturn that law. I don’t know where that stands now, but there’s apparently no legislative fix for it. So, while this has been a lot more low-key this session, there’s still a lot to be done to make the beer market in Texas what it should be.

House passes redistricting bills

They accepted a couple of amendments but otherwise the process wasn’t much different from the Senate or the House committee.

A daylong debate on redistricting maps in the Texas House drew frustration from Democrats and growing concern from Republicans on Thursday as House leaders agreed to some amendments to one of the maps.

Gov. Rick Perry called the 83rd Legislature into special session in hopes it would ratify — without changes — the interim redistricting maps that a panel of federal judges drew for use in the 2012 elections. The Texas Senate did that earlier this month. But the House deviated, adopting three amendments on the state House district map moments after gaveling in.

The chairman of the House Select Committee on Redistricting, Drew Darby, R-San Angelo, told members from the start that he would be accepting “small, necessary tweaks” to the maps providing they meet specific criteria — unite communities of interest, are agreeable to members of neighboring districts and are in accordance with the Voting Rights Act and the U.S. Constitution.

In a matter of minutes, Darby approved, and the House adopted three such amendments. Two would swap out precincts between members of neighboring House districts. A third, by state Rep. Richard Peña Raymond, D-Laredo, brings all of Texas A&M International into his district.

Beyond that, state Rep. Jim Keffer, R-Eastland, was among a handful of members who began questioning Darby, puzzled as to why amendments were being accepted when, he said, members had been told “any change made would open the door for other problems.” He also cited the fact that the amendments hadn’t come through committee.

Darby restated his criteria, adding that the amendments he’s accepting don’t impact geography or the demographic makeup of districts. With that, more members began filing amendments. Two more, which also swap out precincts between neighboring districts, were adopted.

Those were the only three that were accepted. I commend you to read Greg and Texas Redistricting for the full blow-by-blow; see also this post for the map that was planned.

Three points of interest. One, not all redistricting fights fall along party lines.

“You’re a liar,” state Rep. Pat Fallon of Frisco yelled at his colleague, state Rep. Bennett Ratliff of Coppell.

Other House Republicans tried to hush Fallon, but his fury wouldn’t ebb.

“Touch your buddy Gene because you’re in the same party as him,” a red-faced Fallon loudly continued, as Ratliff walked away and placed a hand on state Rep. Gene Wu, D-Houston, as he passed by.

Asked a few moments later what the dust-up was all about, Fallon said simply, “Forgot.”

The hollering could have stemmed from a quiet dispute brewing during the redistricting debate. On Thursday afternoon, some tea party-affiliated members of the House had been upset about an amendment that removed one of Ratliff’s primary opponents from his district. The amendment, which passed earlier in the day without much trouble, put tea party favorite Matt Rinaldi into the safely Democratic district of state Rep. Rafael Anchia, D-Dallas.

Temper, temper. And I must say, I too would buy a Touch Me, I’m Gene Wu’s Buddy t-shirt, too. Someone get on Cafepress.com and make this happen, OK? Oh, and as Greg says, I’d take Bennett Ratliff for my team if the Rs don’t want him, too.

Two, the ball is now in the Senate’s court.

The Senate, which is scheduled to meet Friday, still has to sign off on changes made Thursday by the House to its maps before sending the bills to Perry for his signature. Sen. Kel Seliger, the upper chamber’s redistricting chief during the special session, has said he plans to accept changes the House makes to their political boundaries.

I guess it wouldn’t have killed them to accept some cleanup amendments after all.

And three, the missing man makes an appearance:

MALC chair State Rep. Trey Martinez Fischer and African-American and Hispanic members asked the AG to have someone testify at redistricting hearings. But the AG’s office ignored those requests and redistricting committee chair, State Rep. Drew Darby, said that he would not use subpoena power to require attendance.

In fact, Darby said today in response to questioning that he never even asked the AG’s office to come testify voluntarily.

All that might be logical if the AG’s office took that position that it was the office’s job to defend whatever maps emerged, not to give advice on them.

But that doesn’t appear to be the case. Instead, Abbott’s office appears to have met with the House Republican caucus on at least two occasions, including today during an early afternoon break in floor action.

And after emerging from today’s meeting – reportedly with Abbott’s chief deputy – House Republicans seem to have experienced a major sea change in their willingness to accept even minor agreed amendments, such as one offered by State Rep. Joe Moody (D-El Paso) to adjust for the fact that a mountain runs oddly through HD 77 in El Paso. Whereas before the break, redistricting chair Darby had agree to five relatively minor amendments (one of which was proposed to unite a parking lot at Texas A&M International with the school itself), afterwards he would take none.

Now, since what was said in the meeting isn’t known, it’s not clear that advice from the AG’s office caused the change. But it’s at least a little awkward – both legally and optically – that the AG’s office seems to be acting as counsel for the Republican caucus rather than the Legislature or the state as a whole.

It also seems to have left the Legislature in a precarious position legally.

Too chicken to talk to non-Republicans, I guess. Or maybe he’s just forgotten how. But at least he’s consistent. Go read the rest of that post, it’s all good.

And again, now that redistricting is done for the day, the House can be like the Senate and get to what really animates them, which is making life miserable for women.

House Bill 60 would ban abortions after 20 weeks of pregnancy, require doctors providing abortions to have admitting privileges at hospitals within 30 miles, require abortion clinics to meet the same standards as ambulatory surgical clinics, and regulate how doctors administer pills for medical abortions.

HB 60 would originally have required women receiving medical abortions to take the Food and Drug Administration’s recommended dosage, which physicians have said is dangerously high. The committee substitute introduced in the hearing reduced the dosage to that recommended in obstetrician-gynecologist guidelines.

The bill’s Senate version, Senate Bill 5, passed Tuesday night after an amendment removed the 20-week ban. State Rep. Jodie Laubenberg, R-Parker, who sponsored the House legislation, has said she hopes to revive the ban in the Senate by passing HB 60.

State Rep. Jessica Farrar, D-Houston, questioned Laubenberg about the justifications for the 20-week ban, which is premised upon research that suggests fetuses at 20 weeks of gestation can feel pain. Though research indicates fetuses respond to stimuli at that point of pregnancy, there is no consensus on whether they feel pain.

Farrar also asked whether HB 60 would deprive women of choice, to which Laubenberg responded, “The Legislature should err on the side of life, not death.”

[…]

Rep. Rene Oliveira, D-Brownsville, asked why the legislation included no exception for cases of rape or incest.

Rape is “a horrible violation to a woman,” Laubenberg said, adding that the state should focus on punishing the perpetrator but still not allow abortion if the fetus is past 20 weeks.

[…]

Matthew Braunberg, an ob-gyn from Dallas, said the legislation would needlessly limit women’s access to abortions despite what he said were decreased medical risks, compared to carrying a pregnancy to term.

“The last thing we want is for them to go to Doctor Google to figure out how to do this,” he said.

Carol Everett, an anti-abortion advocate, said the bill would help women by raising standards for abortions.

“This is a health protection for her,” she said.

I think David Dewhurst let the cat out of the bag on that, Carol. Kudos for sticking to the script regardless. Maybe someone should tell Rep. Laubenberg that if this bill passes and a bunch of clinics close because they can’t meet the needlessly onerous requirements that HB60 would impose, then an awful lot more women are going be be horribly violated, since there wouldn’t be any place for them to get an abortion before 20 weeks anyway. But hey, it’s all about protecting women, since they obviously don’t know what’s best for themselves. Besides, rape victims don’t get pregnant anyway, am I right? Pro-choice advocates are hoping to run out the clock, which has as much hope as any other strategy. Good luck gumming up the works, y’all.

We still have the Railroad Commission to kick around

State Impact Texas tells us that there will be no sunset bill, and thus no reforms, for the Texas Railroad Commission this session.

The name and the logo remain

After a lengthy review of the agency, required by state law under the Sunset review process, the Railroad Commission will continue instead with the same name and without any reforms. So what happened?

For one, there were conflicting ideas on how to reform the commission. A more industry-friendly plan in the House, HB 2166 by state Rep. Dennis Bonnen, R-Angleton, which ended up being stripped of many of its reforms (and ultimately a name change) didn’t ever make it out of the House.

But a stronger Senate bill, SB 212 by state Sen. Robert Nichols, R-Jacksonville, had better luck, until [Tuesday].

It would have made Railroad commissioners resign if they were going to run for another office. Commissioners would not have been allowed to accept contributions from parties with contested cases before the commission. And campaign contributions to run for re-election to the commission would only have been allowed in the 17 months before an election. It would have also renamed the commission the Texas Energy Resources Commission, a much more apt title. (The Railroad Commission no longer has anything to do with railroads.)

Despite the fact that those reforms sailed through the Senate, they died today in the House Committee on Energy Resources. The office of Committee Chairman Rep. Jim Keffer, R-Eastland, told StateImpact Texas that the committee couldn’t agree on the bill, so they opted not to vote it out.

[…]

So what’s next? The sunset review process says an agency under review must have its Sunset bill pass, or it essentially gets shut down. That is unlikely to happen with the Railroad Commission, however, as lawmakers hope the agency is spared in what’s called a “schedule bill,” legislation that essentially kicks the can on a review of the agency to a legislative session further down the road. The Railroad Commission could be added to a basic schedule bill already in the Senate, HB 1675, also by Rep. Bonnen, which could give it several more years without reform. A similar move was used in the 2011 legislative session when lawmakers couldn’t agree how to reform the Railroad Commission.

See here and here for the background. I’ve lost track of how many times the Lege has tried and failed to update the Commission’s name. That’s fairly small potatoes compared to changing how the Commission does its business, but we shouldn’t be surprised by that failure. Wait till next session, I guess.

Point of disorder

New House, new rule.

"Objection Overruled", by Charles Bragg

The Texas House’s Democratic minority was dealt a blow Monday when the House passed an amendment to the chamber’s rules to limit legislators’ ability to derail a bill based on clerical errors. Calling “points of order” on such errors is a strategy lawmakers have often used to block measures they oppose.

State Rep. Phil King, R-Weatherford, authored the amendment to the House rules to limit abuse of typographical mistakes to kill legislation. Points of order on those types of mistakes send bills back to committee to be corrected before they can return to the floor to be voted on.

“The practice has been to allow bill after bill after bill to be defeated because a clerk at midnight, a sleepy and tired 25-year-old, made a typographical error,” King said. “That’s just not appropriate.”

Several Democrats and one Republican spoke against the provision, arguing that it weakens minority power. Rep. Armando Walle, D-Houston, said the amendment takes “tools out of the toolbox” for the minority party.

Since Republicans became the House majority in 2002, Democrats have often called points of order on the paperwork, including committee minutes and reports, that accompanies legislation. Under the new rule, a point of order may be overruled if it is “substantially fulfilled and the violation does not deceive or mislead.”

You can see the amended rule here. This is potentially a big deal, because Democrats have indeed been very adept at using points of order, known colloquially and amusingly as POOs, to stymie, delay, and sometimes kill outright bills they don’t like. Not just Democrats, of course, as anyone familiar with the oeuvres of Robert Talton and Arlene Wohlgemuth can attest, but it’s certainly been the main arrow in their quiver these past few sessions. Limiting their ability to wield this weapon will limit their ability to influence the outcomes. Having said that, I do have some sympathy for what Phil King says. There’s not really a principle behind POOs, and as they say about holding in the NFL, you could probably find such errors on every bill if you wanted to. It’s a matter of how much sway the minority is allowed, and how much authority the majority thinks it ought to have to enact its agenda. How you feel about these things is almost certainly directly proportional to your feelings about the majority and minority parties in the legislative body in question.

It occurs to me that this is also a potential trap for Speaker Straus. If he takes this rule to heart and regularly slaps down POOs he deems to be non-worthwhile, that could galvanize Democrats to abandon him and coalesce around a future challenger like David Simpson, who by the way was one of three Republicans (Jim Keffer and Gary Elkins were the other two) to vote against this amendment. If he continues to let Democrats knock bills down – and note that as a general rule, POOs only delay bills by a few days, so except in deadline situations they can be fixed and re-introduced; this happened several times last session – he’s unlikely to endear himself to his Republican critics. I think Straus is smart and slick enough to walk the tightrope, but it will be a challenge. BOR, Rep. Mike Villarreal, Trail Blazers and Texas Politics have more.

UPDATE: More from the Observer.

Lawsuit filed against business margins tax

Allstate Claims Service, L.P., which is based in Boerne, has filed a lawsuit alleging that the business margins tax is an illegally-passed income tax in Texas. Oh, boy.

Nikki Laing, a CPA and third-year Baylor law student, studied the structure of the tax for a Baylor Law Review article titled “An Income Tax By Any Other Name is Still an Income Tax.” She believes it’s just what the plaintiffs say it is: an income tax.

“Despite the name being a margins tax, if you look at it closely, it is in effect an income tax. You start with your gross revenue and you deduct certain statutory deductions,” Laing said. “It fits the comprehensive definition of an income tax, which is revenue less expenses.”

Rep. Jim Keffer, R-Eastland, said it’s not an income tax because businesses can get hit with it even in years when they don’t have net income (one of the chief complaints critics leveled at the tax when it was created).

“This is not an income tax per se; this is a gross receipts with deduction capabilities,” Keffer said. “And you’re taxed whether you have income or not, or profits so to speak.”

It’s not an academic proposition. Under a provision in the Texas Constitution, known as the “Bullock Amendment” because it was championed by the legendary former Lt. Gov. Bob Bullock, no income tax can be passed in Texas without voter approval. The 2006 overhaul was not submitted for approval by Texas voters.

That’s the basic contention in the lawsuit — that the Legislature passed an income tax without getting the necessary voter approval. The lawsuit asks that the state stop all “attempts to enforce, collect, and assess this unconstitutional tax.”

[…]

What surprises some tax experts is that it has taken so long for someone to sue on the ground that it’s an income tax. Perry angered many fellow conservatives when he signed the “margins tax” into law, but he fought for exemptions in the law and resisted all attempts to raise taxes to deal with a huge budget shortfall earlier this year.

“I think all the tax practitioners in the state have been waiting for this shoe to drop,” said tax attorney William Grimsinger, who blogged about the lawsuit in a recent column. “The ability [to sue] has has been out there for a while. This is really the first time anybody has done it.”

Osler McCarthy, a spokesman for the Texas Supreme Court, said that under special provisions in the 2006 law, any challenge of its constitutionality goes straight to the high court. He said the court will be required to render a ruling by late November, almost six years to the day after the court ruled that the current school finance system was unconstitutional.

“The filing is direct in the Supreme Court, so you bypass the trial court and the courts of appeal,” McCarthy said. “That makes this one different.”

Here’s Grimsinger’s blog post, which mostly recaps the story of the margins tax and the timeline for the Supreme Court; he thinks they’ll rule before Thanksgiving. As we know, the margins tax has helped create a structural deficit in the state’s budget, since it doesn’t collect enough to pay for the 2006 property tax cut. If it gets thrown out, then as was the case with the West Orange-Cove lawsuit that led to its creation, the Court will presumably give the Lege a deadline for addressing the problems of the margins tax, or to come up with some alternate source of revenue to replace it since the budget would then be out of balance. Can you imagine how much fun that will be?

Hochberg’s plan for less testing

A new bill filed by State Rep. Scott Hochberg that would exempt students who easily passed standardized tests one year from taking them the next, makes all kinds of sense.

The bill, co-authored by Hochberg and freshman Rep. Dan Huberty, R-Humble, would exempt fourth graders from taking the state’s standardized tests if they passed their third grade tests by a large margin. Similarly, students in sixth and seventh grade wouldn’t have to take the tests if they passed by a healthy margin in fifth grade. While the measure wouldn’t save the state much money, it would save local districts a lot in test preparation, while putting a larger focus on those students who barely passed or failed their exams. Using giant posters of data, Hochberg pointed out that students who do well on the tests one year will very likely pass the following year.

“If we know these kids are going to pass, why are we giving them the test?” asked Hochberg, the House guru of all things education and data-related. Currently, he says, school districts can rely on their high achievers to boost test scores and inflate a school’s ratings. That allows the struggling kids to fall between the cracks. This bill would shift that emphasis, as schools would be judged based more heavily on how they equipped their low performers.

“It shines a laser beam on those kids who are below grade level,” Hochberg said.

Huberty, a conservative Republican who just left the Humble school board to come to the House, concurred. He argued the districts currently spend too much time and money on testing, particulary when those children who already did well one year will almost undoubtedly will pass again.

For proof, Hochberg—by far the nerdiest House member—turned to the numbers. Of those students who passed their reading and math assessments by a large margin in fourth grade, over 97 percent passed again in fifth grade. The numbers were even more compelling among middle schoolers. Over 98 percent of seventh graders who passed their assessments by a large margin in math and reading passed again in eighth grade. Meanwhile of those fourth graders who failed their tests, less than 40 percent passed the following year.

“It really sheds the light on this group of kids who are the ones who are likely to become dropouts as things go on,” Hochberg said told the handful of reporters.

The bill is HB233, and you can read about it in Hochberg’s own words here. There are two other Republicans signed onto the bill – Rick Hardcastle and Jim Keffer – which one hopes bodes well for its chances. I’ll be interested to see if there’s any real opposition to this, because offhand I can’t think of a reason why you’d oppose it/ We’ll see what happens.

LSG on the budget

The Legislative Study Group, chaired by Rep. Garnet Coleman, now has an analysis of the Pitts budget outline, which you can read here. The main point to remember:

How We Got Here: Built-In Budget Shortfall Comes from the 2006 Tax Package

The current $26.8 billion budget shortfall is partly the result of a built-in budget hole created in the 3rd Called Special Session of the 79th Texas Legislature, which has now created a structural shortfall in three successive legislative sessions. Unless the tax structure is changed, Texas lawmakers will begin every legislative session with the built-in budget shortfall.

In 2006, Governor Perry signed into law a tax package that changed the state’s business tax structure, redirecting billions each year away from public schools and into a newly created Property Tax Relief Fund. The tax package consisted of four major pieces of legislation:

  • House Bill 2 (3rd Called Special Session of the 79th Texas Legislature), creating the “Property Tax Relief Fund” which collected money from the other three tax bills in the tax package
  • House Bill 3 (3rd Called Special Session of the 79th Texas Legislature), the franchise tax or “margins tax” bill
  • House Bill 4 (3rd Called Special Session of the 79th Texas Legislature), the motor vehicle sales and use tax
  • House Bill 5 (3rd Called Special Session of the 79th Texas Legislature), the $1 cigarette tax

At the time the tax package was presented to the Legislature and signed into law by Governor Perry, the Comptroller estimated that the revenues generated from the new tax package would fall $14 billion short of the cost of the legislation in the first five years. The predicted shortfall has come true, leaving the state billions short of necessary funds to maintain basic state services.

They have charts to go along with the words for all you visual learners. No matter what we do this session, we will continue to have shortfalls until we plug this hole.

From the department of That Didn’t Take Long, we have our first Republican complaints about the budget.

“Why would we ever have a staff recommendation as a starting point that creates a headline that says Brazosport College would be closed?” Rep. Dennis Bonnen, R-Angleton, said during an explanation of the budget on the House floor.

Rep. Jim Pitts, R-Waxahachie, the House’s chief budget writer, said enrollment in the four districts had declined over the past decade.

But Bonnen and other Republicans questioned the legislative budget staff’s analysis. Bonnen said that even if supporters can stave off closure of Brazosport College, the cloud over its future could hurt enrollment.

Other targeted campuses include Ranger College, 85 miles west of Fort Worth, and community colleges in Borger and Odessa.

Rep. Jim Keffer, R-Eastland, whose district includes Ranger College, called the closure recommendations “the height of irresponsibility.”

Rep. Tryon Lewis, R-Odessa, said he doubts there will be savings because most of Odessa College’s students would simply transfer to another state-supported school.

Bonnen’s diatribe sure got attention. Look at what the Trib says:

Bonnen describes Brazosport College as “the hub and center” of his district — one that local industry relies on for job training and that community members go to for education and cultural pursuits. “The thought of losing an institution like that is kind of debilitating,” he says. Though he recognizes that the base budget is “nowhere near” how the final budget will look, Bonnen says that even suggesting a college might be closed is “significant” and even “disastrous.” Students will begin looking to transfer, and others might decide to not bother enrolling.

“It creates a high degree of uncertainty,” he says. “As policymakers, we’d better be damned sure it’s something we’re going to do if we create that uncertainty.” And Bonnen feels strongly that the school will, ultimately get that funding once his arguments have been made.

So…you’re saying that the no-new-revenue, no-rainy-day-fund, cuts-only approach that Perry and Dewhurst and the rest of the GOP have been espousing would kill jobs? I’ll make a note of that. Hey, it’s all fun and games until your own ox gets gored. Look, “cutting waste” and “tightening the belt” and “finding efficiencies” and “shrinking government” and all that other hooey will always be more popular than identifying specific programs, all of which have their own constituencies, for reduction or elimination. Now at least Reps. Bonnen, Keffer, and Lewis know what that means, and perhaps have a better understanding of why we have a Rainy Day Fund, and why that cut-only approach is a lousy idea.

Of course, one can always take the “Don’t cut me, cut that other guy” approach in response:

Bonnen says the realization that the solution to the state’s budgeting woes could include eliminating his local community college does not cause him to look upon revenue-increasing options like tax hikes any more favorably. He says it’s his job to make the case that no responsible budget eliminates Brazosport College, and he hopes that even the architects of HB 1 will come around. Similarly, Lewis is confident that all four colleges will ultimately receive funding.

“There’s no joy in this budget for anybody,” Bonnen says. “As frustrated and unhappy as I may be to see Brazosport College not funded, I can assure you Chairman Pitts and others involved in this baseline budget are as troubled as I am.”

My priorities are worthy. Yours are not. Easy, no? Kilday Hart and Abby Rapoport has more on this.

Finally, here’s a look at how the budget affects TxDOT, and a second glance at the budget and its effects on criminal justice from Grits. Clearly, the lessons learned in 2003 about how cuts in some programs wind up costing you a lot more later have not been retained.

UPDATE: Be sure to read Terry Grier’s memo about what the Pitts budget would mean to HISD:

Our analysis of the House appropriations bill reveals that the proposed $5 billion cut to public education would mean an annual loss of $202 million to $348 million per year for HISD. This represents 15 percent to 20 percent of HISD’s budget. Theoretically speaking, HISD could wipe out all of central administration and would still have to severely cut school budgets to compensate for this large of a reduction in state funding. Put another way, $202 million–the low-end projected revenue loss–is enough to pay the salaries of 3,825 teachers with an average salary of $52,800.

As you can see, there is no way for Houston schools to absorb a blow such as this without causing serious harm to classrooms.

Boy, this sure is going to be Texas’ century, isn’t it?

House adopts rules

Once again, not much drama in the lower chamber.

After an all-day debate, the House approved its rules for the 2009 legislative session in a relaxed atmosphere overseen by new Speaker Joe Straus.

The most intense squabble came when the chamber overrode the wishes of the speaker’s point man on rules, Rep. Burt Solomons, over the assignment of bills relating to the telecommunications and electric industries.

Solomons, with Straus’ approval, had first suggested eliminating the Regulated Industries Committee and spreading those issues over several committees.

However, the chamber ultimately moved the telecommunications and electrical industries into the State Affairs Committee in an 82-65 vote.

You can read the details on that debate here. The main event was over the procedure to remove the Speaker, which was the fulcrum that ultimately led to the successful overthrow of Tom Craddick before this session began.

[I]n response to attempts in 2007 to remove Craddick as speaker, the House passed a rule saying a majority — 76 members — can remove a speaker.

Rep. Phil King, R-Weatherford, urged members to raise that number to 90, saying removing the speaker is an emotional vote that could jeopardize legislation. (Craddick himself supported that higher bar Wednesday.)

But Rep. Jim Keffer, an Eastland Republican and one of the leaders in the revolt against Craddick, disagreed.

“It’s a problem to build a firewall around a speaker who’s not doing his job,” he said.

In the end, the House voted 87-60 to allow a majority to remove a speaker.

Rep. Larry Taylor of Friendswood made a similar objection, also to no avail.

There was a move by the Democrats to pass a rule saying the House would not vote on any bill that cleared the Senate without a two-thirds procedural vote until the appropriations conference committee report is done. You know what that was in response to. The votes for it were not there, and it didn’t make it to the floor. In the end, the rules were adopted by a 147-1 vote, with Speaker Straus casting a Yes and Houston Rep. Harold Dutton being the only No. There will be 34 committees instead of 40, with some committees having more members on them. Committee assignments are still a week or more away, though the Senate should get theirs today.