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Rick Perry

Signs, signs, everywhere there’s Beto signs

And they’re breaking the minds of Ted Cruz supporters.

Rep. Beto O’Rourke

The conversation unfolding before a campaign event for U.S. Sen. Ted Cruz here last week echoed similar ones popping up among Republican groups around Texas. With a mixture of frustration and bewilderment, attendees were discussing the proliferation of black-and-white yard signs in their neighborhoods brandishing a single four-letter-word: BETO.

The signs have become a signature calling card of Democrat Beto O’Rourke’s bid to unseat Cruz. While Democrats posting yard signs for candidates is nothing new, even when it happens in some of Texas’ most conservative conclaves, what’s been different this summer is the extent to which O’Rourke’s signs have seemingly dominated the landscape in some neighborhoods.

Meanwhile, Cruz signs are far tougher to spot, and many Cruz supporters have become increasingly agitated at their inability to obtain signs to counter what they see on their daily drives.

[…]

The difference in tactics goes back to a 2006 political science experiment. At the time, former Gov. Rick Perry was running for his second full term and allowed for researchers to try different tactics in some communities to test which were most effective at motivating voters. Daron Shaw, a government professor at the University of Texas at Austin and co-director of the Texas Tribune/University of Texas Poll, worked on experiments involving yard signs in Perry’s race and saw little evidence that they moved Perry’s numbers.

Four years later, Perry’s team essentially abandoned the entire practice of distributing yard signs during his third re-election campaign. He soundly defeated now-former U.S. Sen. Kay Bailey Hutchison in the Republican primary and Democrat Bill White in the general election.

Since then, more academic research backed up Shaw’s findings, and yard signs have largely fallen out of vogue within the Texas GOP consultant class, at least among statewide candidates.

But that 2006 campaign marked Perry’s fifth statewide race — when he already had near-universal name identification in Texas, much like Cruz does now. As such, Shaw cautions not every campaign should follow Perry’s lead.

“It varies race by race and year by year,” he said. “So I wouldn’t claim that that study should be used as evidence that you ought not to be doing it this time around.”

For a candidate like O’Rourke, who began the race as a relative unknown, there is anecdotal evidence that the signs have helped him build his name identification.

Jo Johns is a retired physical education teacher who recently attended an organizing rally for O’Rourke in Weatherford.

She told the Tribune she first learned about O’Rourke by seeing his signs while driving to yoga class.

“I didn’t know who he was, and I wanted to know about him,” she added. “I saw Beto, Beto, Beto. I thought he must be a Republican because they’re everywhere.”

Shaw pointed back to the 2014 governor’s race, when Democrat Wendy Davis’ signs outnumbered her opponent, now-Gov. Greg Abbott, in some communities. Davis still lost by 20 points. But this time around, the political scientist suggests O’Rourke’s yard signs are possibly signaling momentum to voters, priming some who may have otherwise assumed Cruz was unbeatable that O’Rourke has a shot.

“In this race, it probably is more of a positive because it reinforces information you’re getting in public polls, stories you’re getting in the media and fundraising,” said Shaw.

My neighborhood is chock full of Beto signs. Literally, there’s multiple signs on every block. I do a lot of walking through the neighborhood with my dog, and not only are there tons of them, more keep popping up. Meanwhile, I have seen four Ted Cruz signs. Hilariously, three of them are accompanied by green signs with clovers on them that say “Make Beto Irish again”, to which the obvious riposte is “Sure, as soon as we make Ted Canadian again”.

Anyway, I think the Trib captures the dynamic of the sign skirmish well. Signs in and of themselves aren’t, well, signs of anything, but this year at least feels different. This year, the vast proliferation of Beto signs are both an indicator of enthusiasm and a means for expressing it. I do think it has helped to expand his name ID, and to signal to Democrats in red areas where they have felt isolated that they are not in fact alone. I don’t think it’s possible to isolate an effect related to this, and if we could it would probably be no more than a marginal one, but I do think this year that signs matter. I look forward to whatever research someone publishes about this after the election.

UT/Trib: Cruz 41, O’Rourke 36, part 2

We pick up where we left off.

Republican Ted Cruz leads Democrat Beto O’Rourke 41 percent to 36 percent in the general election race for a Texas seat in the U.S. Senate, according to the latest University of Texas/Texas Tribune Poll.

Neal Dikeman, the Libertarian Party nominee for U.S. Senate, garnered 2 percent, according to the survey. And 20 percent of registered voters said either that they would vote for someone else in an election held today (3 percent) or that they haven’t thought enough about the contest to have a preference (17 percent).

In the governor’s race, Republican incumbent Greg Abbott holds a comfortable 12-percentage-point lead over Democratic challenger Lupe Valdez — the exact same advantage he held over Democrat Wendy Davis in an early-summer poll in 2014. Abbott went on to win that race by 20 percentage points. In this survey, Abbott had the support of 44 percent to Valdez’s 32 percent. Libertarian Mark Tippetts had the support of 4 percent of registered voters, while 20 percent chose “someone else” or said they haven’t made a choice yet.

[…]

The June UT/TT Poll, conducted from June 8 to June 17, is an early look at the 2018 general election, a survey of registered voters — not of the “likely voters” whose intentions will become clearer in the weeks immediately preceding the election. If recent history is the guide, most registered voters won’t vote in November; according to the Texas Secretary of State, only 34 percent of registered voters turned out in 2014, the last gubernatorial election year.

The numbers also reflect, perhaps, the faint rumble of excitement from Democrats and wariness from Republicans who together are wondering what kind of midterm election President Donald Trump might inspire. The last gubernatorial election year in Texas, 2014, came at Barack Obama’s second midterm, and like his first midterm — the Tea Party explosion of 2010 — it was a rough year for Democrats in Texas and elsewhere. As the late social philosopher Yogi Berra once said, this year could be “Déjà vu all over again.”

Accordingly, voter uncertainty rises in down-ballot races where even previously elected officials are less well known. Republican incumbent Dan Patrick leads Democrat Mike Collier in the contest for lieutenant governor, 37 percent to 31 percent. Kerry McKennon, the Libertarian in that race, had the support of 4 percent of the registered voters surveyed, while the rest said they were undecided (23 percent) or would vote for someone other than the three named candidates (5 percent).

“As you move down to races that are just less well known, you see the numbers drop,” said Daron Shaw, a government professor at the University of Texas at Austin and co-director of the poll. “They drop more for the Republicans. Part of that reflects the visibility of those races, and of those candidates.”

Henson said Patrick and other down-ballot incumbents work in the shadow of the governor, especially when the Legislature is not in in session. “That said, he’s still solid with the Republican base, though he lags behind Abbott and Cruz in both prominence and popularity,” he said. “There’s nothing unusual about that.”

And indecision marks the race for Texas attorney general, where Republican incumbent Ken Paxton has 32 percent to Democrat Justin Nelson’s 31 percent and 6 percent for Libertarian Michael Ray Harris. Four percent of registered voters said they plan to vote for someone else in that race and a fourth — 26 percent — said they haven’t chosen a favorite.

Nelson and Harris are unknown to statewide general election voters. Paxton, first elected in 2014, is fighting felony indictments for securities fraud — allegations that arose from his work as a private attorney before he was AG. He has steadily maintained his innocence, but political adversaries are hoping his legal problems prompt the state’s persistently conservative electorate to consider turning out an incumbent Republican officeholder.

“If you’ve heard anything about Ken Paxton in the last four years, more than likely you’ve heard about his legal troubles,” said Josh Blank, manager of polling and research at UT’s Texas Politics Project. Henson added a note of caution to that: There’s also no erosion in Ken Paxton support by the Republican base. This reflects some stirrings amongst the Democrats and Paxton’s troubles. But it would premature to draw drastic conclusions for November based upon these numbers from June.”

Shaw noted that the support for the Democrats in the three state races is uniform: Each has 31 percent or 32 percent of the vote. “All the variability is on the Republican side, it seems to me,” he said. When those voters move away from the Republican side, Shaw said, “they move not to the Democrats but to the Libertarian or to undecided.”

Trump is still getting very strong job ratings from Republican voters — strong enough to make his overall numbers look balanced, according to the poll. Among all registered voters, 47 percent approve of the job the president is doing, while 44 percent disapprove. Only 8 percent had no opinion.

See here for yesterday’s discussion. Before we go any further, let me provide a bit of context here, since I seem to be the only person to have noticed that that Trib poll from June 2014 also inquired about other races. Here for your perusal is a comparison of then and now:


Year    Office  Republican  Democrat  R Pct  D Pct
==================================================
2014    Senate      Cornyn   Alameel     36     25
2018    Senate        Cruz  O'Rourke     41     36

2014  Governor      Abbott     Davis     44     32
2018  Governor      Abbott    Valdez     44     32

2014  Lite Guv     Patrick       VdP     41     26
2018  Lite Guv     Patrick   Collier     37     31

2014  Atty Gen      Paxton   Houston     40     27
2018  Atty Gen      Paxton    Nelson     32     31

So four years ago, Wendy Davis topped Dems with 32%, with the others ranging from 25 to 27. All Dems trailed by double digits (there were some closer races further down the ballot, but that was entirely due to lower scores for the Republicans in those mostly obscure contests). Republicans other than the oddly-underperforming John Cornyn were all at 40% or higher. The Governor’s race was the marquee event, with the largest share of respondents offering an opinion.

This year, Beto O’Rourke leads the way for Dems at 36%, with others at 31 or 32. Abbott and Ted Cruz top 40%, but Dan Patrick and Ken Paxton are both lower than they were in 2014, with Paxton barely ahead of Justin Nelson. Only Abbott has a double-digit lead, with the other three in front by six, five, and one (!) points.

And yet the one quote we get about the numbers suggests that 2018 could be like 2010 or 2014? I must be missing something. Hey, how about we add in some 2010 numbers from the May 2010 UT/Trib poll?


Year    Office  Republican  Democrat  R Pct  D Pct
==================================================
2014    Senate      Cornyn   Alameel     36     25
2018    Senate        Cruz  O'Rourke     41     36

2010  Governor       Perry     White     44     35
2014  Governor      Abbott     Davis     44     32
2018  Governor      Abbott    Valdez     44     32

2010  Lite Guv    Dewhurst       LCT     44     30
2014  Lite Guv     Patrick       VdP     41     26
2018  Lite Guv     Patrick   Collier     37     31

2010  Atty Gen      Abbott Radnofsky     47     28
2014  Atty Gen      Paxton   Houston     40     27
2018  Atty Gen      Paxton    Nelson     32     31

There was no Senate race in 2010. I dunno, maybe the fact that Republicans outside the Governor’s race are doing worse this year than they did in the last two cycles is worth noting? Especially since two of them were first-time statewide candidates in 2014 and are running for re-election this year? Or am I the only one who’s able to remember that we had polls back then?

Since this cycle began and everyone started talking about Democratic energy going into the midterms, I’ve been looking for evidence of said energy here in Texas. There are objective signs of it, from the vast number of candidates running, to the strong fundraising numbers at the Congressional level, to the higher primary turnout, and so on. I haven’t as yet seen much in the poll numbers to show a Democratic boost, though. As we’ve observed before, Beto O’Rourke’s numbers aren’t that different than Bill White or Wendy Davis’ were. A bit higher than Davis overall, but still mostly in that 35-42 range. However, I did find something in the poll data, which was not in the story, that does suggest more Dem enthusiasm. Again, a comparison to 2010 and 2014 is instructive. In each of these three polls, there’s at least one “generic ballot” question, relating to the US House and the Texas Legislature. Let’s take a look at them.

If the 2010 election for [Congress/Lege] in your district were held today, would you vote for the Democratic candidate, the Republican candidate, or haven’t you thought enough about it to have an opinion?

2010 Congress – GOP 46, Dem 34
2010 Lege – GOP 44, Dem 33

If the 2014 election for the Texas Legislature in your district were held today, would you vote for the Democratic candidate, the Republican candidate, or haven’t you thought about it enough to have an opinion?

2014 Lege – GOP 46, Dem 38

If the 2018 election for [Congress/Lege] in your district were held today, would you vote for [RANDOMIZE “the Democratic candidate” and “the Republican candidate”] the Democratic candidate, the Republican candidate, or haven’t you thought about it enough to have an opinion?

2018 Congress – GOP 43, Dem 41
2018 Lege – GOP 43, Dem 42

Annoyingly, in 2014 they only asked that question about the Lege, and not about Congress. Be that as it may, Dems are up in this measure as well. True, they were up in 2014 compared to 2010, and in the end that meant nothing. This may mean nothing too, but why not at least note it in passing? How is it that I often seem to know these poll numbers better than Jim Henson and Daron Shaw themselves do?

Now maybe the pollsters have changed their methodology since then. It’s been eight years, I’m sure there have been a few tweaks, and as such we may not be doing a true comparison across these years. Even if that were the case, I’d still find this particular number worthy of mention. Moe than two thirds of Texas’ Congressional delegation is Republican. Even accounting for unopposed incumbents, the Republican share of the Congressional vote ought to be well above fifty percent in a given year, yet this poll suggests a neck and neck comparison. If you can think of a better explanation for this than a higher level of engagement among Dems than we’re used to seeing, I’m open to hearing it. And if I hadn’t noticed that, I don’t know who else might have.

Looking back at 2010 and 2014

I’ve talked a lot about polls in the past week, so I thought I’d take a minute and look back at the polling data that we had as of this time in the 2010 and 2014 elections, to see if we can learn anything. The polls those years were about Governor’s races while this year is focused on the Senate race, but that’s all right. I’m not intending for this to be a straight apples-to-apples comparison, just more of a general feel. So with no further ado:

PPP, June 2010: Perry 43, White 43
UT/Trib, May 2010: Perry 44, White 35
Rasmussen, May 2010: Perry 51, White 38
Rasmussen, April 2010: Perry 48, White 44
UT/Trib, Feb 2010: Perry 44, White 35
PPP, Feb 2010: Perry 48, White 42

Avg: Perry 46.3, White 39.5

Boy, were we optimistic in the early days of 2010. Bill White was a top-notch candidate, coming off a successful tenure as Mayor of Houston with high popularity numbers and a strong fundraising apparatus. The polls supported that optimism, with that June result showing a tied race. Rick Perry, in the meantime, was coming off a 39% re-election in 2006 and a bruising primary win over then-Sen. Kay Bailey Hutchison. There were lots of reasons to think that people had gotten tired of Perry and his schtick after a decade in office, and the enthusiasm from the 2008 election was still felt and seen as a harbinger of things to come.

We know how this movie ended. The thing was, it wasn’t apparent that it was headed that way till the final days. Polls from September and early October continued to show a tight race. It wasn’t really until early voting had started and the last polls were published that we began to see the downward trends. It wasn’t a lack of Democratic enthusiasm that doomed White and the rest of the ticket – turnout was up from 2006, not that that was saying much – but Republican turnout was off the charts, swamping Democratic boats across the country and wiping out large swaths of the Democratic caucus in the Legislature. We didn’t know it in June, but there was a very ill wind about to blow.

UT/Trib, June 2014: Abbott 44, Davis 32
PPP, April 2014: Abbott 51, Davis 37
Rasmussen, March 2014: Abbott 53, Davis 41
ECPS, March 2014: Abbott 49, Davis 42
UT/Trib, Feb 2014: Abbott 47, Davis 36

Avg: Abbott 48.8, Davis 37.6

There are a lot of ways in which 2014 was like 2010 – initial excitement and optimism, high-profile candidate who drew national attention and had good fundraising chops, all ending in a gut-wrenching wipeout. One major way in which things were very different is that the early polls did not support that initial optimism in 2014. I distinctly remember writing a lot of words about why 2014 was going to be different and not at all like 2010. We were so young and innocent then. We also had a lot more warning about the impending doom we faced, as the next poll result after this one had Abbott up by 16, and in only two of the last seven polls was Davis within single digits. I was right about one thing – Republican turnout was in fact down from 2010. It’s just that Democratic turnout was as best flat from 2010, despite the endlessly-hyped presence of Battleground Texas, and that all added up to roughly a 2002-style outcome.

PPP, June 2018: Cruz 48, O’Rourke 42
Quinnipiac, May 2018: Cruz 50, O’Rourke 39
Quinnipiac, April 2018: Cruz 47, O’Rourke 44
PPP, Jan 2018: Cruz 45, O’Rourke 37

Avg: Cruz 47.5, O’Rourke 40.5

I discussed these last week, when that PPP poll hit. I’m dropping the Wilson Perkins result from this calculation, as it was done in the latter days of 2017, but if you insist on including it the averages change to Cruz 48.4, O’Rourke 39.2. That’s not as good as the 2010 average – if you just take these four polls, it’s basically even with 2010 – but it’s about two points better than 2014, three points better without the outlier. We don’t know how this one will end, of course, and it remains to be seen where the polls go from here. I just wanted to provide some context, so there you have it.

The case against expediting the CD27 special election

Erica Greider does not approve of Greg Abbott’s actions in CD27.

Blake Farenthold

All things considered, then, I find it hard to believe that Abbott’s decision was motivated by his altruistic concern for the Texans who live in this district.

What disturbs me, however, is that under the laws of Texas, the 27th Congressional District probably shouldn’t have a representative in Congress at all until January, when the candidate who wins the general election will be sworn into office.

I’ve always believed that the laws of Texas should not be dismissed as a technicality, or taken lightly, or suspended by the governor of Texas, whoever that might be.

Abbott has always cast himself as someone who believes in the rule of law. But in calling for this emergency special election, he has acted in a way that might — by his own account — exceed his constitutional authority.

“May I utilize my authority under section 418.016 of the Government Code to suspend relevant state election laws and order an emergency special election?” he asked Texas Attorney General Ken Paxton in a letter sent on Friday, April 19.

In Paxton’s opinion, Abbott may suspend state election laws. And in the opinion he issued on Monday, in response to the governor’s letter, he concluded that a court would likely agree.

Perhaps. But we don’t know that. And neither does Abbott, who responded to Paxton’s opinion by acting unilaterally on Tuesday.

See here for the background. I take her point, and Lord knows the rule of law could use all the support it can get these days. I just believe that the default preference in all cases should be to get these elections scheduled as soon as reasonably possible. Having this one in November is essentially pointless. Have it now, so that even a temporary representative will be able to, you know, represent the people of CD27. Remember when Rick Perry chose to keep a vacancy in HD143 through two special sessions he called? Greg Abbott and his lapdog Ken Paxton may have pushed the envelope here, but the urge to let the voters fill an empty seat is one I’ll defend.

Abbott v Davis

It’s getting real out there.

Rep. Sarah Davis

In what promises to deepen divisions in the Texas Republican Party, Gov. Greg Abbott on Monday endorsed a GOP challenger to incumbent state Rep. Sarah Davis of Houston.

Abbott gave his public thumbs-up to Susanna Dokupil, a more-conservative Republican like Abbott, who is running against the more moderate Davis, who also touts herself as “a conservative voice in Austin.”

The announcement was the first endorsement of a legislative challenger by Abbott, who had announced last summer that he would support legislative candidates who supported his positions on issues. In the past, it has been relatively rare for governors to get involved in legislative races so early — if at all.

[…]

Davis, an attorney, has challenged Abbott’s positions on a number of issues in the past year, including the bathroom bill. She has represented a district that includes West University Place for four terms in the Texas House.

“We need leaders in Austin who will join me to build a better future for Texas,” Abbott said in his endorsement statement. “I trust Susanna, and I know voters in House District 134 can trust her too to fight for their needs in Austin, Texas. Susanna is a principled conservative who will be a true champion for the people of House District 134, and I am proud to support her in the upcoming election.”

Dokupil, who is CEO of Paladin Strategies, a strategic communications firm based in Houston, worked for Abbott as assistant solicitor general while he was Texas attorney general, before becoming governor. There, she handled religious liberty issues, he said.

Abbott said he has known Dokupil for more than a decade.

Davis is a part of the House leadership team. She chairs the House General Investigating and Ethics, serves as chair for health and human services issues on the House Appropriations Committee and is a member of the influential Calendars Committee that sets the House schedule.

In a statement, Davis appeared to dismiss the Abbott endorsement of her challenger, who said she represents the views of her district.

“I have always voted my uniquely independent district, and when it comes to campaign season I have always stood on my own, which is why I outperformed Republicans up and down the ballot in the last mid-term election,” Davis said.

This ought to be fun. Davis has survived primary challenges before, though she hasn’t had to fight off the governor as well in those past battles. She is quite right that she generally outperforms the rest of her party in HD134. Not for nothing, but Hillary Clinton stomped Donald Trump in HD134, carrying the district by an even larger margin than Mitt Romney had against President Obama in 2012. If there’s one way to make HD134 a pickup opportunity for Dems in 2018, it’s by ousting Davis in favor of an Abbott/Patrick Trump-loving clone. Perhaps Greg Abbott is unaware that he himself only carried HD134 by two points in 2014, less than half the margin by which he carried Harris County. Bill White won HD134 by three points in 2010. HD134 is a Republican district, but the people there will vote for a Democrat if they sufficiently dislike the Republican in question. This could be the best thing Greg Abbott has ever done for us. The Trib and the Observer, which has more about Davis’ opponent, have more.

The Texas Infectious Disease Readiness Task Force

We have such a thing, and at a time like this that’s good to know.

Most Texans don’t regularly concern themselves with infectious diseases such as typhus, Ebola, Zika, or the plague. But in the aftermath of Hurricane Harvey, public health experts worry that tetanus and MRSA, an antibiotic-resistant skin infection, could become more prevalent.

Thanks to the establishment of the Texas Infectious Disease Readiness (TX IDR) task force, citizens now have access to online courses and other resources geared at increasing the public’s knowledge of a variety of infectious diseases.

The program was launched in late 2014 when then-Gov. Rick Perry signed an executive order establishing the Task Force on Infectious Disease Readiness and Response due to an increase in infectious disease cases in Texas.

Typhus, which is transmitted by fleas and potentially fatal, infected only 27 Texans in 2003. Centers for Disease Control and Prevention In 2016, the state saw 364 cases, according to the Texas Department of State Health Services. With so few cases in the past, typhus’ symptoms – chills, muscle aches, a rash, and vomiting – were likely mistaken for something else.

Described by some as a “Texas-specific CDC,” the task force gathers information from many sources and adapts it to Texas’ needs. In addition to sharing information on current cases, the TX IDR designs online courses specific to the diseases seen in Texas, explaining how the diseases are transmitted, who is at risk, and how to control their spread.

The need for such an initiative became evident after the first cases of Ebola were diagnosed in the United States.

[…]

In addition to educating traditional health care professionals, the program also targets first responders, who typically have limited access to resources about infectious diseases, [Dr. Jan E. Patterson, chair of TX IDR] said. With the establishment of the TX IDR website, they can now learn about infectious disease readiness and potentially avoid contracting a deadly virus.

We know about typhus. As one of those Texans that don’t regularly concern themselves with infectious diseases, I’m glad to know someone does.

No special session needed to address Harvey flooding

So says Greg Abbott.

Gov. Greg Abbott said Friday another special session of the Texas Legislature won’t be necessary to deal with the response to Hurricane Harvey.

“We won’t need a special session for this,” Abbott told reporters, noting that the state has enough resources to “address the needs between now and the next session.”

[…]

In recent days, some members of the Texas Legislature have speculated that a special session to address the recovery seemed likely. They included state Sen. Paul Bettencourt, R-Houston, an ally of Lt. Gov. Dan Patrick and the chairman of the Senate GOP caucus.

“My personal assumption right now is that we will probably be back in Austin at work no later than January,” Bettencourt told the Houston Chronicle on Thursday.

Here’s that Chron story. A few details from it to help clarify:

“My personal assumption right now is that we will probably be back in Austin at work no later than January,” said Senate Republican Caucus Chair Paul Bettencourt, R-Houston, echoing the sentiments of other House and Senate members.

“The governor and the Legislative Budget Board have the ability to move around quite a bit of money in current appropriations, but it probably won’t be enough when all the bills come in. This storm is going to cost more than (hurricanes) Katrina and Sandy put together, and I’m thinking we’ll be breaking the $200 billion mark before this over.”

While the state would be liable for only a fraction of that amount, after insurance and federal payments come in, but whatever that (remaining) amount is will be something the Legislature will probably have to address.”

That, say other lawmakers, will most likely involve a politically charged debate over tapping the state’s so-called Rainy Day Fund — a $10 billion account officially known as the Economic Stabilization Fund — to pay for some of the storm-damage tab.

[…]

In a Thursday letter to House members, House Speaker Joe Straus said he will be issuing selective interim charges — directives for legislative recommendations — “in the near future to address these challenges” resulting from the massive destruction caused by Harvey, especially to schools.

“The House Appropriations Committee will identify state resources that can be applied toward the recovery and relief efforts being incurred today, as well as long-term investments the state can make to minimize future storms,” the San Antonio Republican said in his letter. “When the appropriate time comes, other committees will review the state’s response and delivery of services.”

The Legislative Budget Board, jointly headed by Lt. Gov. Dan Patrick and Straus, can make key decisions on reallocating state funds to meet emergency needs — up to a point, officials said. Half of its members — three senators and two House members — represent areas devastated by Harvey.

My guess is that Abbott is probably right and the LBB can cover this for now. Tapping the Rainy Day Fund, which I will point out again was created for the purpose of helping to cover budget shortfalls in times of economic downturn before being bizarrely recast as in-case-of-disaster savings by Rick Perry in 2011, may require the Lege, but that may be done in a way as to defer that action until 2019. My wonk skillz are limited in this particular area. Point being, if Congress can manage to allocate relief funding without tripping over their ideologies, there shouldn’t be that much for the state to have to pick up. We’ll see.

Abbott signs texting while driving ban

That’s the good news. The bad news is that being Greg Abbott, he wants to make it worse.

Gov. Greg Abbott on Tuesday signed into law a bill that creates a statewide ban on texting while driving.

The measure, authored by state Rep. Tom Craddick, R-Midland, goes into effect Sept. 1. This is the fourth session in a row Craddick has tried to pass such a ban.

“By enacting this public safety legislation, the governor is saving lives by deterring this dangerous and deadly behavior,” Craddick said in a statement. “For a long time, Texas has needed this law to prevent the loss of life in unnecessary and preventable crashes and we finally have it.”

[…]

The governor announced that he had signed the bill at a press conference Tuesday, when he also announced a series of priorities for a special legislative session to start July 18. Among those priorities is further work on the ban, which Abbott said “did not fully achieve my goals.”

“I was not satisfied with the law as it was written,” Abbott said Tuesday. “Now that Texas does have a statewide ban on texting and driving, I am calling for legislation that fully pre-empts cities and counties from any regulation of mobile devices in vehicles. We don’t need a patchwork quilt of regulations that dictate driving practices in Texas.”

The law includes a provision to pre-empt local ordinances that govern a driver’s ability to “read, write, or send an electronic message.” But Abbott said Tuesday he hopes for broader legislation that fully pre-empts local governments from passing “any regulation of mobile devices in vehicles.” A broader pre-emption measure would impact dozens of cities — including Austin, San Antonio and El Paso — that currently operate under stricter mobile regulations.

And so the war on local control continues apace. Quite a few of the special session agenda items are about adding limits or requirements on what cities can and cannot do. As I saw noted on Facebook, Abbott doesn’t just want to be Governor of Texas, he wants to be Mayor of Texas as well. And you know what? I think we should embrace that and take him seriously. We should all call Greg Abbott’s office every time we see an unfilled pothole, an illegal trash dump, a stray animal, a blinking traffic light, a downed branch blocking a road…you get the idea. If Greg Abbott wants to run the cities’ businesses, then let him have all the responsibility for fixing the cities’ problems. This isn’t a joke, by the way. It’s resistance, and the more of it we can do, the better. Who’s with me on this? The Chron has more.

Texting while driving ban passes the Senate

We’ll see if this one gets signed into law.

Rep. Tom Craddick

Legislation that would create a statewide texting-while-driving ban overcame a last-ditch attempt in the Senate on Friday to gut the bill. The bill’s author, state Rep. Tom Craddick, R-Midland, said he will concur with the changes the Senate made. The measure will then head to Gov. Greg Abbott’s desk.

State Sen. Larry Taylor, R-Friendswood, filed an amendment that would’ve outlined an offense as both having been committed in the presence of an officer and having required evidence the driver was not paying attention. The current version of the bill requires either threshold rather than both.

In laying out his amendment, Taylor said that given the list of exceptions to the law that would permit drivers to use their phone — such as operating a navigational tool, reading what the driver believes to be an emergency message, and playing music — requiring more evidence is warranted.

Taylor held up his cell phone and asked his fellow members, “What am I doing? I’m actually looking at [navigational app] Waze, looking for the quickest way out of here,” he joked. “Now I’m searching the greatest hits of the 60’s. These are all things that are legal. So I have issue with that.”

Several Republican and Democratic members rose to say his change would make the law unenforceable.

“It won’t stop all behavior, but I believe when something is against the law, people will hesitate,” said state Sen. Joan Huffman, R-Houston. “And if this law saves one life, then we’ve accomplished what we set out to accomplish.”

The amendment ultimately failed with a 12-19 vote.

After amendments, state Sen. Judith Zaffirini, the bill’s Senate sponsor, took the floor.

“I have waited 10 years to make this motion: I move final passage of HB 62,” the Laredo Democrat said.

Without any further discussion, House Bill 62 passed the Senate on a 23-8 vote.

See here for the background. For what it’s worth, Sen. Huffman’s argument about the Taylor amendment – I can’t quite tell if she’s arguing for it or against it, not that it really matters – is my view of texting-while-driving bans as a whole. The act of making it illegal will almost certainly cause a significant number of people who are now texting and otherwise fooling around on their phones while driving – and in my observation there’s a lot of those people out there – to stop doing it, just because it is illegal. That to me makes it worthwhile. I strongly suspect that recent massive fatal crash that occurred while one driver was busy texting helped move a few votes. As the story notes, a Craddick texting ban bill was vetoed in 2011 by Rick Perry. Craddick says that Greg Abbott’s office has assured him this one will be signed. We’ll know within the next three weeks or so. The Chron has more.

The state’s voter ID failure is much bigger than you think

You really have to read this.

Still the only voter ID anyone should need

The confusion started in the first hour of the first day of early voting in San Antonio last October.

Signs in polling places about the state’s controversial voter ID law contained outdated rules. Poll workers gave voters incorrect information. Lines were long — full of people who were full of uncertainty.

The presidential election of 2016 was off to a sputtering start in Texas, where years of angry claims about illegal voting had led to a toughening of identification requirements for those going to the polls.

On that day last October, Nina Perales, vice president of litigation for the Mexican American Legal Defense and Education Fund, was met with a line out the door when she arrived at her San Antonio polling place.

“A poll worker stood in front of me where I was and said, ‘You are at the one-and-a-half-hour mark,'” Perales said. “And she insisted your ID needed to be out when you got to the front of the line.”

But that, in fact, wasn’t the law. A compromise a federal court had settled on months before allowed those without photo IDs to fill out an affidavit and show alternate ID.

“So, we filed suit against the county,” Perales said.

Days later, Bexar County, home to San Antonio, agreed to try and remedy its mistakes — poll workers would be retrained, signs would be corrected and voicemail instructions for voters would be updated.

But a ProPublica review of the 2016 vote in Texas shows that Bexar County’s problems were hardly isolated — and, in many cases, were beyond fixing.

Indeed, the state’s efforts to enact and enforce the strictest voter ID law in the nation were so plagued by delays, revisions, court interventions and inadequate education that the casting of ballots was inevitably troubled. Among the problems that surfaced:

  • The promised statewide effort to inform Texans about voter identification requirements failed terribly. ProPublica contacted hundreds of community organizations and local county party officials to see if they’d received a voting instruction manual the state said it had sent but could not find one who had used it. The largest voter education groups — League of Women Voters Texas, the Southwest Voter Registration Education Project, MALDEF and several disability rights groups — said they didn’t get copies at all.
  • The fiscal note attached to the 2011 bill indicated voter education would cost the state $2 million. That’s one-fifth what a similar bill in Missouri — a state with 21 million fewer people than Texas — allocated. While the Texas secretary of state’s office spent the majority of its voter education budget in 2016 to educate voters about the law, the money appears to have been wasted on an ineffective campaign.
  • The Texas Department of Public Safety, a law enforcement agency tasked with issuing free IDs for voting purposes, initially required those who applied for the ID to be fingerprinted, a decision many say scared off potential voters. DPS also didn’t have Spanish translators in all of its offices and didn’t initially provide applications or information about the free IDs in any language other than English.
  • Remarkably, the very aim of the legislation — to thwart people from voting illegally — was not fully addressed by the law, which allowed three versions of identification obtainable by non-citizens.

Jacquelyn Callanen, the election administrator for Bexar County, said she is still furious about the state’s performance in handling last November’s vote.

“I’ve been doing this for 22 years,” she said. “This was the most complicated and emotionally charged election I have ever seen.”

There’s a ton more, and you need to read the whole thing. It will piss you off, and it should. We know that the state’s so-called voter ID education effort last year was a boondoggle and a failure, but you can’t fully appreciate how big a failure it was without this. Among other things, the story recounts the history of voter ID legislation in Texas, how the Elections department at the Secretary of State’s office became politicized and denuded of competence, and more. As noted by the Brennan Center, there will be a status call on June 7 to sort out the issues in determining a remedy in the wake of the ruling last month that the voter ID law was passed with discriminatory intent. I say any such remedy needs to begin with a complete scrapping of the existing law and an eight-figure campaign to do real voter (and elections administrator) education, done by multiple firms that don’t make BS claims about “proprietary” information. Then maybe, just maybe, we can claim to have set things right. Read the story and see what I mean.

Bathroom bills and business interests

Texas Monthly’s Dave Mann reviews the Republican schism over the bathroom bill and comes to the same conclusion as I have.

At the moment, the Legislature—and the Republican party, for that matter—has settled into an uneasy stalemate between Patrick’s right-leaning Senate and Straus’s more moderate coalition in the House. But, as they say, stalemates are made to be broken, and right now, Patrick’s faction seems likely to prevail eventually. It has the support of the most-devoted Republican primary voters, many of whom view moderation or compromise as surrender.

So business leaders and their Republican allies are in a precarious position. They still have a power base in the House, because Straus and his leadership team have fended off several challenges from the right, but he won’t be speaker forever. This session is his fifth leading the House, tying the record for longest-serving speaker with Pete Laney and Gib Lewis. Whenever he departs, Straus could well be replaced by a more conservative figure. So the talk among business Republicans in Austin’s bars and restaurants these days is about how they can reverse their losses and reclaim their party.

Well, good luck with that. The Republican grass roots aren’t going to moderate themselves, and it seems likely that business-friendly Republicans will continue to lose primaries, especially in statewide races. As long as that dynamic remains, the Republican party won’t be tilting back toward the middle anytime soon.

But there is another political party. Remember that one? It’s been stripped down and left to rust for the past two decades. But the Texas Democratic party is still there, waiting for someone to gas it up and take it for a spin.

That’s just what big-business interests should do. The TAB and any number of influential corporations could easily take over the party by recruiting and funding candidates to run as Democrats. It would be a homecoming of sorts; after all, years ago, before the state flipped to the GOP, business-friendly Republicans were conservative Democrats.

The problem with this idea is that Democrats can’t win in Texas at the moment. Sure, big business could take over the Democratic party, but what good would it do? Except the goal here isn’t to suddenly flip the state back to the Democrats. No, the goal would simply be to make Democrats somewhat more competitive, especially in statewide races. They don’t necessarily have to win, just get close enough to scare Republicans and perhaps nudge the GOP back toward moderation.

Republican primaries might turn out differently if there was the threat of a tight race in the general election—and that threat could be more credible in 2018 than it has been in years, with many pundits expecting the national mood to favor Democrats by then. Would Abbott strike a more moderate tone if he knew a well-funded pro-business Democrat was waiting for him in the 2018 general? Part of the business lobby’s problem with Patrick is that it has no way to threaten him. He’s untouchable in a Republican primary, and his general election campaigns have been cakewalks. But if, say, a conservative Democrat, backed by big-business money, opposed him in 2018, that might lead Patrick to moderate just a bit. Similarly, if the GOP once again nominated social conservatives with questionable credentials—like Attorney General Ken Paxton, currently under indictment, or Sid Miller, the agriculture commissioner famous for traveling out of state for his “Jesus shot”—for statewide offices, they’d at least have a challenging race in the fall. And just maybe the specter of a formidable Democratic opponent would lead to a more robust debate within the Republican party, rather than simply a mass rush to the right.

While I agree with Mann in the aggregate, there are several places where I disagree. For one thing, I don’t know what he means by a “conservative” Democrat, but I do know that Democratic primary voters aren’t going to be interested in that. Discussions like this often get bogged down in semantics and everyone’s personal definitions of words like “liberal” and “conservative”, but I think we can all agree that a Democratic candidate who is “conservative” (or just relatively “conservative” for a Democrat) in the social issues sense is going to be extremely controversial. It’s not like Democrats haven’t tried the approach of soft-pedaling such items in recent elections – see, for example, Wendy Davis’ muteness on abortion and her flipflop on open carry in 2014 – it’s just that there’s little to no evidence that it has helped them any. Maybe nothing could have helped them in those elections, but in the Trump era where everyone is fired up with the spirit of resistance, it’s really hard to see how this approach would do anything but piss people off.

I also dispute the assertion that the threat of a close race will make Republicans more likely to choose the less-extreme, more “electable” candidate in their primaries. For Exhibit A, see Kay Bailey Hutchison in the 2010 gubernatorial primary. Surely Bill White was a credible threat to them that year, but Rick Perry’s successful strategy was the exact opposite of striking a more “moderate” tone. The only thing that might convince Republican primary voters to try something different will be sustained electoral failure. To say the least, we are not there yet.

What I would recommend for Democrats like Mike Collier and Beto O’Rourke and whoever might emerge to challenge Greg Abbott and Ken Paxton is to approach the business community by reminding them that we already broadly agree on a number of core matters – quality public and higher education, better infrastructure, sanity on immigration, non-discrimination – and where we may disagree on things like taxes and regulations, the Lege will still be Republican. What you get with, say, a Democratic Lt. Governor is a hedge against self-inflicted stupidity of the SB6 and “sanctuary cities” variety. You will get someone who will listen to reason and who will be persuaded by evidence. From the business community’s perspective, this is a better deal than what they have now, and a better deal than any they’re likely to get in the near future. For there to be a chance for that to happen, it will take Democratic candidates that a fired-up base can and will support, plus the willingness of the business community to recognize the hand they’ve been dealt. The ball is in their court.

This could be the session that a statewide texting-while-driving ban passes

I haven’t followed the progress of the filed-every-session statewide-band-on-texting-while-driving bill, but recent tragic events have put a spotlight on it and raised the probability of it actually becoming law.

Rep. Tom Craddick

Texas is one of four states that do not have a statewide ban on texting and driving. That distinction has drawn renewed attention in recent days following an accident in West Texas in which a truck driver who was texting and driving crashed into a church bus and killed 13 senior citizens.

State Rep. Tom Craddick, R-Midland, author of the texting ban bill that recently passed the House, said about the accident: “It’s a tragic situation. It’s a wasted situation.”

Craddick, who has pushed for the ban for four sessions in a row, offered condolences to the victims, their families and the church in a statement last week.

“No message or e-mail is important enough to risk injury or death while driving on our Texas roadways,” Craddick said.

If Texas had passed a texting-while-driving ban when Craddick first filed a bill creating one in 2011, Texas would have been the ninth state to pass such a law, he said. If House Bill 62 passes this session, it will be the 47th.

In 2015 and 2013, Craddick’s proposal passed the House but died in the Senate. In 2011, it traveled through both chambers only to be vetoed by Gov. Rick Perry, who said it would “micromanage the behavior of adults.”

In the 2015 session, a group of conservative senators helped kill the proposal, arguing that it could lead to unreasonable searches by police, among other concerns.

This year, both Craddick and the measure’s most vocal advocate in the Senate, Judith Zaffirini, are hopeful the measure will draw enough support in the upper chamber and Gov. Greg Abbott will sign it.

The fatal crash in question was horrible and the sort of thing that will make it difficult for someone who doesn’t like texting bans to stick to their principles. (Though some people still stand firm.) That said, the story notes that several former foes of this bill have changed their minds or at least softened their opposition over time, so perhaps Craddick’s bill had a better chance this session than I expected. I also have to think that with all of the anti-local control fervor swirling around the Capitol, the old argument that a statewide ban is a “nanny state” thing has perhaps lost some of its appeal. Funny how these things go.

One more point:

Craddick pointed to research from Alva Ferdinand, an associate professor in health policy and management at Texas A&M, who has said a statewide ban could prevent 90 deaths a year. The most effective way to curb deaths related to people texting-and-driving is to make it illegal, he said, comparing the move to the law that people in cars wear seat belts.

“No one ever thought seat belts would go into effect and now it’s just standard use to buckle up. Only once it became law did most people start to buckle up,” Craddick said.

As it happens, Texans are pretty good about buckling up, so there may be something to this. I have always believed that banning texting while driving will reduce the number of people who do it for the simple reason that a lot of us are rule-followers, and if something is illegal that’s a sufficient reason for us to not do it. Combine that with the relentless messaging campaign against texting while driving, and over time I think it will largely cease to be a problem. I’ll be very interested to see if there’s an immediate effect that can be detected if the Craddick/Zaffirini bill gets enacted.

“Fetal remains” rule blocked

Good.

U.S. District Court Judge Sam Sparks ruled Texas cannot require health providers to bury or cremate fetuses, delivering another blow to state leaders in the reproductive rights debate.

On Friday afternoon, Sparks wrote in his ruling that Texas Department of State Health Services’ fetal remains burial rule’s vagueness, undue burden and potential for irreparable harm were factors in his decision. He also wrote that the state had proposed the new rule “before the ink on the Supreme Court’s opinion in Whole Woman’s Health was dry.”

“The lack of clarity in the Amendments inviting such interpretation allows DSHS to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion and therefore sensitive and hotly contested,” Sparks said.

[…]

During two public hearings, department leaders heard stories of abortions, miscarriages, and general grief over losing a baby. While anti-abortion groups argued that the rule was a means to bring human dignity to the fetuses, reproductive rights advocates said the rule was another way for Texas to punish women who chose an abortion, saying the cost of the burials would be passed on to patients, making abortions harder to obtain for low-income Texans.

During multi-day court hearings earlier this month, state attorneys said the rule was designed to provide aborted or miscarried fetuses a better resting place than a landfill. They also argued that there would be no cost for patients to worry about and only miniscule costs for providers. The state also said that there were multiple groups willing to help with costs.

But Center for Reproductive Rights lawyers argued the rule had no public health merits and no clear directions on how it would work for providers. Providers who testified noted it was unclear if they would be on the hook for fines and disciplinary action from Texas if the nonprofit groups mishandled the fetuses. They also said separating fetuses away from other medical waste would likely mean an uptick in costs for transportation and new disposal procedures.

Sparks expressed frustration throughout the court proceedings that neither side could provide a firm estimate of the costs of implementing the rule. He also, one point, agreed with Center for Reproductive Rights attorneys’ argument that there would be no public health benefits.

In his ruling, Sparks wrote that the department’s estimates don’t know “the true impact” of the rule and that their “simple math” is “unsupported by research and relies heavily on assumptions.”

See here, here, and here for the background, and here for a copy of the order; the full order is here. Note that this is just an injunction pending the actual lawsuit to overturn the ruling. The injunction strongly suggests that Judge Sparks thinks the plaintiffs will prevail, but that matter has not been decided yet. Now a trial date will be set and we will proceed from there, while the state will pursue an appeal to rescind the injunction and allow the rule, which had been scheduled to take effect on Friday, to be put in place for the duration of the trial.

Republicans like Ken Paxton are predictably gnashing their teeth about this, but if this rule was so important for the sanctity of life and dignity of the mothers and whatever else, then why wasn’t it proposed earlier than last year in the immediate wake of the HB2 ruling? Rick Perry could have proposed this a decade or more ago. Greg Abbott could have proposed it in 2015. If it was so damn important, why did they wait so long? Who had even heard of such a thing before last year? The timing of the rule gives the show away. It deserves the fate it got from Judge Sparks. A press release from the Center for Reproductive Rights is here, and the Chron, the Statesman, the Current, and the Austin Chronicle have more.

Texting while driving ban bills filed again

We’ll see if this gets a different result.

Drivers know the risks, and in more than 95 Texas counties they live under local cell phone ordinances that ban texting while driving. But the Lone Star State remains one of four states in the country without a statewide ban on the practice.

Sen. Judith Zaffirini, D-Laredo, hopes to change that with Senate Bill 31, which would make it illegal to text unless the vehicle is stopped. Lawmakers have shot down similar attempts by Zaffirini for four sessions in a row, but she hopes the fifth time’s a charm as lawmakers head back to Austin in January.

“All we can do is try,” she said. “It’s so important because more and more Texans have become aware about the danger that’s posed by texting while driving.”

Zaffirini’s legislation mirrors efforts by Rep. Tom Craddick, the Republican former House speaker from Midland, who filed anti-texting legislation in the last three legislative sessions. He filed his fourth attempt on the first day of bill filing last week. Once again, Zaffirini and Craddick are naming their legislation after Alex Brown, a West Texas high school student who was killed in a crash while texting and driving in 2009.

It will be an uphill climb, however. The legislation was approved by the House in 2015 and 2013but halted by the Senate. Zaffirini was just one senator short of passing the bill through the Senate in 2015. It passed both chambers in 2011, but was vetoed by then-Gov. Rick Perry.

But that veto was unusual, Craddick said, because Perry was in the midst of his first presidential bid. Perry called the anti-texting bill “a government effort to micromanage the behavior of adults.”

Craddick is hopeful it won’t be vetoed by Gov. Greg Abbott if it passes both chambers during the 85th Legislature. He said he’s also heard positive remarks made by Abbott and Lt. Gov. Dan Patrick in Midland.

“(Abbott) has been pretty positive to people that have talked to him about it. I feel like he’ll sign it,” Craddick said. “(Patrick) said he thought the Senate would pass it, too.”

That would be a shift from earlier remarks made by Abbott, who said he opposed the legislationin 2014 and would veto any texting while driving legislation that made it to his desk. After the legislation made it through the House in 2015, Abbott promised to give it the “deep consideration it deserves.”

[…]

AT&T, which has been a big supporter of Craddick’s legislation, released a study that found that the four states without a statewide ban “have a roughly 17 percent higher rate of texting while driving than the 46 states with statewide bans.”

Texas A&M University’s Transportation Institute released similar studies on the state impact of texting while driving. College Station, where the university is located, recently passed its own ordinance that banned the use of a wireless device while driving.

Alva Ferdinand, a faculty member at Texas A&M’s school of public health, led a 2015 study that found a seven percent reduction in crash-related hospitalization in states that have enacted texting while driving bans. An earlier study by Ferdinand found that texting bans led to a 3 percent reduction in traffic fatalities among all age groups.

See here for a bit of background. On the one hand, Craddick’s optimism aside, Abbott has previously expressed opposition to a statewide ban, and I can’t imagine this will be any kind of priority for leadership. On the other hand, this did make it to the Governor’s desk once, and passed the House two other times, so the support is there, and if it does get to Abbott’s desk he may not feel compelled to veto it. I wouldn’t bet on this passing, but it has a chance, and that’s more than you can say for most bills.

Some officials take note of special education funding restrictions

It’s a start.

The vice chairman of the State Board of Education, a Houston school board member, a key state senator and scores of parents and disability advocates all expressed strong opposition on Monday to a Texas Education Agency performance-based monitoring system that has kept thousands of disabled children out of special education since 2004.

[…]

Thomas Ratliff, a Mount Pleasant Republican who is the second-highest-ranking member of the State Board of Education, expressed dismay at TEA’s 8.5 percent special education target.

“It looks awfully arbitrary and in no way mirrors reality,” he said. “The concentric circles of damage that this has done I think is immeasurable at this point.”

State Sen. Eddie Lucio, the vice chair of the Senate Education Committee, called the issue an “utmost priority.”

“We have a constitutional duty and a moral obligation to provide all Texas children with the services that are required to ensure that every student can thrive academically,” said Lucio, D-Brownsville, echoing statements made by several of his Democratic colleagues in the Legislature. “By urging schools to limit the number of students they enroll in special education services, our state is turning its back on students that need our help the most.”

[…]

Gene Acuña, a spokesman for the Texas Education Agency, declined further comment. Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Joe Straus also declined comment.

Previously, former Gov. Rick Perry, during whose administration the 8.5 percent enrollment target was first put in place, declined to discuss the monitoring system.

In Washington, a U.S. Department of Education spokeswoman confirmed that her office was ready to take action, if needed, to ensure that children with disabilities get services.

“We are looking into it,” she said.

See here for the background. The headline on the story is “Officials vow to end limits put on special ed”, but let’s be honest. Until at least two of Greg Abbott, Dan Patrick, and Joe Straus make that vow, nothing is going to happen. Those three, as well as Rick “Dancing Terribly With The Stars” Perry, should not be allowed to “no comment” their way out of this for more than a few days, too. I greatly admire what the Chron has done with this story, but they need to call those three’s offices every day until they have some answers. The other news outlets in this state are more than welcome to get in on that action as well. In the meantime, I hope there’s more to report on, and I definitely hope to hear of some followup from the US Department of Education soon.

“Denied”

This is worth your time to read.

During the first week of school at Shadow Forest Elementary, a frail kindergartner named Roanin Walker had a meltdown at recess. Overwhelmed by the shrieking and giggling, he hid by the swings and then tried to escape the playground, hitting a classmate and biting a teacher before being restrained.

The principal called Roanin’s mother.

“There’s been an incident.”

Heidi Walker was frightened, but as she hurried to the Humble school that day in 2014, she felt strangely relieved.

She had warned school administrators months earlier that her 5-year-old had been diagnosed with a disability similar to autism. Now they would understand, she thought. Surely they would give him the therapy and counseling he needed.

Walker knew the law was on her side. Since 1975, Congress has required public schools in the United States to provide specialized education services to all eligible children with any type of disability.

But what she didn’t know is that in Texas, unelected state officials have quietly devised a system that has kept thousands of disabled kids like Roanin out of special education.

Over a decade ago, the officials arbitrarily decided what percentage of students should get special education services — 8.5 percent — and since then they have forced school districts to comply by strictly auditing those serving too many kids.

Their efforts, which started in 2004 but have never been publicly announced or explained, have saved the Texas Education Agency billions of dollars but denied vital supports to children with autism, attention deficit hyperactivity disorder, dyslexia, epilepsy, mental illnesses, speech impediments, traumatic brain injuries, even blindness and deafness, a Houston Chronicle investigation has found.

More than a dozen teachers and administrators from across the state told the Chronicle they have delayed or denied special education to disabled students in order to stay below the 8.5 percent benchmark. They revealed a variety of methods, from putting kids into a cheaper alternative program known as “Section 504” to persuading parents to pull their children out of public school altogether.

“We were basically told in a staff meeting that we needed to lower the number of kids in special ed at all costs,” said Jamie Womack Williams, who taught in the Tyler Independent School District until 2010. “It was all a numbers game.”

Texas is the only state that has ever set a target for special education enrollment, records show.

It has been remarkably effective.

In the years since its implementation, the rate of Texas kids receiving special education has plummeted from near the national average of 13 percent to the lowest in the country — by far.

In 2015, for the first time, it fell to exactly 8.5 percent.

If Texas provided services at the same rate as the rest of the U.S., 250,000 more kids would be getting critical services such as therapy, counseling and one-on-one tutoring.

“It’s extremely disturbing,” said longtime education advocate Jonathan Kozol, who described the policy as a cap on special education meant to save money.

“It’s completely incompatible with federal law,” Kozol said. “It looks as if they’re actually punishing districts that meet the needs of kids.”

Heidi Walker hoped that Humble school officials would help her son Roanin adapt and cope when he entered kindergarten.

In a statement, Texas Education Agency officials denied they had kept disabled students out of special education and said their guideline calling for enrollments of 8.5 percent was not a cap or a target but an “indicator” of performance by school districts. They said state-by-state comparisons were inappropriate and attributed the state’s dramatic declines in special educations enrollments to new teaching techniques that have lowered the number of children with “learning disabilities,” such as dyslexia.

In fact, despite the number of children affected, no one has studied Texas’ 32 percent drop in special education enrollment.

The Chronicle investigation included a survey of all 50 states, a review of records obtained from the federal government, state governments and three dozen school districts, and interviews with more than 300 experts, educators and parents.

The investigation found that the Texas Education Agency’s 8.5 percent enrollment target has led to the systematic denial of services by school districts to tens of thousands of families of every race and class across the state.

Among the findings:

• The benchmark has limited access to special education for children with virtually every type of disability. Texas schools now serve fewer kids with learning disabilities (46 percent lower than in 2004), emotional and mental illnesses (42 percent), orthopedic impairments (39 percent), speech impediments (27 percent), brain injuries (20 percent), hearing defects (15 percent) and visual problems (8 percent).

• Special education rates have fallen to the lowest levels in big cities, where the needs are greatest. Houston ISD and Dallas ISD provide special ed services to just 7.4 percent and 6.9 percent of students, respectively. By comparison, about 19 percent of kids in New York City get services. In all, among the 100 largest school districts in the U.S., only 10 serve fewer than 8.5 percent of their students. All 10 are in Texas.

• Students who don’t speak English at home have been hurt the most. Those children currently make up 17.9 percent of all students in Texas but only 15.4 percent of those in special education. That 15 percent difference is triple the gap that existed when the monitoring system began.

See here for the unebeddable charts that accompany the story, and be sure to read the whole thing, as it is well-reported and deeply infuriating. I had no idea any of this had been happening, and that’s despite knowing a couple of families who were directly affected by it. Now that this is out in the light, the next step is to try to pin down some elected officials and get them on the record about it. What do Greg Abbott and Dan Patrick think about this, and more importantly what if anything do they think needs to be done about it? Perhaps Rick Perry could spare a few minutes from his cha-cha practice to answer how his happened on his watch. Regardless of what answers we get, I hope the federal government opens a big ol’ probe of this practice, and comes down like a ton of bricks as needed. I don’t know what else the Chron has in store on this issue, but whatever it is, I look forward to it. Well done.

Rick Perry will join “Dancing With The Stars”

Make your own Tom DeLay joke. Mine is in the embedded image.

Who are YOU to judge me?

Rick Perry’s spirit animal

Former Gov. Rick Perry is joining the new season of “Dancing With the Stars.”

Texas’ longest-serving governor will be a contestant in the 23rd season of the dance competition show, which premieres Sept. 12 on ABC. Perry will be paired with professional dancer Emma Slater, the network announced Tuesday morning.

Entertainment Tonight broke the news Monday, and in a round of media appearances shortly before the lineup announcement, Perry declined to comment on the rumors. But he did suggest that the show would help him with dancing at his daughter’s upcoming wedding and that it would be an “extraordinary platform” to draw attention to two issues he has long been passionate about: the military and veterans.

“I just hope I don’t forget my dance steps, were I to be on this program, after the third lesson,” Perry said on Fox Business News, riffing off his infamous failure to remember the third federal department he wanted to eliminate during his 2012 presidential campaign.

I will say that I think Perry is likely to be a better fit for this than Tom DeLay was, because DeLay never appeared to have any actual charm, while Perry, whatever else you may say about him (and Lord knows there’s plenty), does have some people skills as well as a discernable sense of humor. I’m just glad that my kids are into watching “American Ninja Warrior” and not DWTS, so I won’t have to watch any of it. Now if he were to become a contestant on “American Ninja Warrior”, that would impress me. Until that time, here are Perry’s competitors for this title.

Texas loses another voting rights lawsuit

Good.

A federal judge Friday blocked Texas from enforcing a state law that limits the availability of interpreters in polling places, ruling that it violates protections guaranteed by the U.S. Voting Rights Act.

The ruling by U.S. District Judge Robert Pitman of Austin came in a lawsuit filed on behalf of Mallika Das, who was born in India and who, in October 2014, brought her son into a Round Rock polling station to act as an interpreter because she had limited proficiency in English.

Officials at the Williamson County polling station, however, barred Saurabh Das from helping his mother, relying on a state election law that requires interpreters to be registered to vote in the same county as the person they intend to help.

Because Saurabh Das was registered in Travis County, his mother had to vote without his help.

In a summary judgment relying on briefs and a hearing held Monday, Pitman ruled that the residency requirement violated Section 208 of the Voting Rights Act, which guarantees voters the right to be helped by a person of their choice if they need assistance because of blindness, disability or inability to read or write.

To enjoy the same opportunity to vote as other citizens, Pitman wrote, limited-language voters must be able to navigate polling stations and communicate with election officers.

“They must be able to understand and fill out any required forms, and to understand and to answer any questions directed at them by election officers. And they must be able to do so with the assistance of a person whom they trust,” the judge added.

In addition to voiding the law on interpreters at the ballot box, Pitman gave state lawyers seven days to provide him with “additional remedies” needed to protect the rights of limited-language voters. Lawyers for Das will have another seven days to respond to the state’s suggestions.

See here for the background. I can’t find much coverage of this, nor even as much as a press release from the Organization of Chinese Americans-Greater Houston or Asian American Legal Defense and Education Fund, who filed the lawsuit. As such, I can’t tell you anything more than what this story says. We know that the Lege passed a bill in 2013 by wide margins that would have addressed this issue, but Rick Perry vetoed it. A bad decision on his part, one of many he made over his too-long career. I’ll keep my eyes open for more information about those “additional remedies” the state is on the hook to provide.

UPDATE: Here’s the AALDEF statement.

What next for voter ID?

Rick Hasen, writing in Slate:

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The trial court was ready to throw out the entire law, but the 5th Circuit said such a remedy went too far. The court held that when a trial court finds a law has a discriminatory effect under Section 2 of the Voting Rights Act, it has to keep as much of the law in place as it can while still fixing the illegal part. In this case, the appeals court told the trial court to keep the voter identification law in place but create an alternative means to vote for those who face a reasonable impediment in producing the right form of identification. For example, the trial court may order that a voter be able to vote after signing a form under penalty of perjury saying he faced a larger barrier to get an ID. The appeals court sent the case back to the trial court to figure out exactly how to soften the law.

This kind of remedy is a win for the plaintiffs, though it’s not as good as what the trial court proposed by throwing the entire law out. Other states, such as South Carolina, have softened their voter ID laws, but in practice this softening doesn’t always work well, in part because voters and poll workers aren’t aware voters can vote without the right ID if they have a reasonable impediment to getting one.

But that softening isn’t the biggest news to come out of the appeals court decision. To find it, you have to read all eight of the opinions together in light of the trial court’s finding that Texas not only violated the Voting Rights Act by passing a law with a racially discriminatory effect but that it also passed the law with a racially discriminatory intent. Upon finding a racially discriminatory intent, the trial court would be free to put Texas back under federal “preclearance” of its voting rules for up to 10 years, the kind of oversight the United States Supreme Court got rid of for a large number of states (including Texas) in the 2013 decision Shelby County v. Holder.

The appeals court divided badly in reviewing the trial court’s finding of racially discriminatory intent. Imagine that the trial court found bad intent from two baskets of evidence, Basket A and Basket B. Counting noses, a majority of 5th Circuit judges believed that the trial court’s analysis went too far in inferring discriminatory intent in considering what was in Basket A, such as statements by the law’s opponents in the state Legislature as to the intent of the legislators who passed the bills. But, again counting noses, a different majority of 5th Circuit judges believes that there is enough evidence in Basket B from which the trial court could indeed infer that Texas passed its law to discriminate against Texans who are Latino or black. It sent the case back for the trial court to reconsider the question looking just at Basket B, and a finding of racially discriminatory intent from the trial judge again seems likely.

The dissenters suggested that at worst the evidence showed an intention by the Republican-dominated state Legislature to discriminate against Democrats, not against blacks or Latinos. A majority of judges, noting an overlap among racial and partisan groups in Texas, didn’t buy it. In a place like Texas, it makes no sense to separate race and party. As the majority explained, “Intentions to achieve partisan gain and to racially discriminate are not mutually exclusive.” And as one of the judges who believed that evidence from both Baskets A and B proved Texas engaged in racial discrimination put it, if Republicans in the Texas Legislature, out of partisan motives, selected a course of action “at least in part because of, and not merely in spite of, its adverse effects on an identifiable group, that is enough” to show racial discrimination.

Zachary Roth notes that while this win wasn’t as big for the plaintiffs as it could have been, it was still pretty big.

Immediate consequences aside, Wednesday’s opinion was noteworthy for painting a picture of Texas’s Republican lawmakers as, at best, indifferent to the struggles of the state’s low-income and minority voters to get an ID. The ruling also offered firm rebuttals to many of the arguments made both by Texas in support of its law, known as SB 14, and by ID proponents more broadly. That it came from Judge Catharina Haynes, a staunch conservative — though one with a reputation for independence — writing for likely the most conservative federal appeals court in the nation, only bolstered its impact.

The appeals court affirmed Gonzales Ramos’s finding that the law’s drafters were aware that it would make it harder for minorities to vote, but they nonetheless rejected a slew of measures that would have softened its impact, largely refusing to explain why. The ruling also swiftly dispatched Texas’ claim that the plaintiffs hadn’t identified a single person who faces a substantial obstacle to voting thanks to the law, noting several people who the district court found were clearly disenfranchised by it. (News reports, including from MSNBC, have turned up many more.) And it slammed the state for devoting “little funding or attention to educating voters about the new voter ID requirements.”

Perhaps most forcefully, the opinion derisively rejected Texas’ claim that the law was needed to prevent voter fraud.

“Ballot integrity is undoubtedly a worthy goal,” Judge Haynes wrote. “But the evidence before the Legislature was that in-person voting, the only concern addressed by SB 14, yielded only two convictions for in-person voter impersonation fraud out of 20 million votes cast in the decade leading up to SB 14’s passage. The bill did nothing to combat mail-in ballot fraud, although record evidence shows that the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.”

Haynes also noted that preventing non-citizens from voting was offered as another rationale for the bill “even though two forms of identification approved under SB 14 are available to noncitizens.”

“The provisions of SB 14,” Haynes wrote, “fail to correspond in any meaningful way to the legitimate interests the State claims to have been advancing through SB 14.”

Instead, the court suggested, the law had a different purpose. “The extraordinary measures accompanying the passage of SB 14 occurred in the wake of a ‘seismic demographic shift,'” Haynes wrote, “as minority populations rapidly increased in Texas, such that the district court found that the party currently in power is ‘facing a declining voter base and can gain partisan advantage’ through a strict voter ID law.”

The opinion also took on an argument used more broadly in support of ID laws: That they must not keep people from voting, since turnout rates have increased, compared to previous years, in elections where they’ve been used. As Haynes noted — and as voting rights advocates challenging voting restrictions have been at pains to point out from Texas to North Carolina to Wisconsin — turnout fluctuates for all sorts of reasons. “That does not mean the voters kept away were any less disenfranchised,” Haynes wrote.

Perhaps most far-reachingly, the opinion in several places starkly rejects Texas’ effort throughout the case essentially to narrow Section 2 of the Voting Rights Act so that it would bar only intentional and blatant acts of racial discrimination in voting. That’s a crusade that for decades has been pursued by numerous leading conservative legal minds, as they’ve looked to further weaken the landmark civil rights law.

Instead, the court affirmed, the law must recognize that racial discrimination usually comes in subtler forms. “To require direct evidence of intent would essentially give legislatures free reign [sic] to racially discriminate so long as they do not overtly state discrimination as their purpose and so long as they proffer a seemingly neutral reason for their actions,” Haynes wrote, “This approach would ignore the reality that neutral reasons can and do mask racial intent, a fact we have recognized in other contexts that allow for circumstantial evidence.”

Texas’s interpretation of the law, Haynes added “effectively nullifies the protections of the Voting Rights Act by giving states a free pass to enact needlessly burdensome laws with impermissible racially discriminatory impacts. The Voting Rights Act was enacted to prevent just such invidious, subtle forms of discrimination.”

Reading Section 2 in the way Texas recommends, Haynes wrote, would “cripple” the Voting Rights Act, and “unmoor” it “from its history and decades of well-established interpretations about its protections.”

Stop for a moment and savor the irony here. Texas Republicans passed the odious and now-dead HB2 not just to effectively outlaw abortion in the state, but also as part of a national strategy to render null Roe v. Wade. Indeed, one of the judges at the same Fifth Circuit basically dared SCOTUS to overturn Roe in her opinion. Instead, the ruling by SCOTUS not only upheld Roe v. Wade (more accurately, it upheld Planned Parenthood v. Casey), it basically cut off at the knees the very strategy that anti-abortion forces had been using with HB2 and elsewhere in the country. Large swaths of anti-abortion legislation fell or are falling as a result. Now here with voter ID, the legal strategy in its defense was to gut Section 2 of the Voting Rights Act. Not only did that fail with a giant thud, Texas may wind up back under preclearance because of how voter ID was adopted. In both cases, the railroading of the opposition to these bills and the utter indifference to any and all objective facts surrounding their effect came back to bite the state and the Republicans responsible for these laws squarely on the ass, and may do more damage to their cause than anything the Democrats (who fought like hell against both bills despite being completely outgunned) could have done. Bravo, ladies and gentlemen. Bravo, Rick Perry and Greg Abbott and David Dewhurst and Dan Patrick and Ken Paxton. You all may wind up making a positive contribution to this state’s future after all.

Anyway. We now know what the “softening” of voter ID may look like. Hasen again:

It is further ORDERED that any plan for interim relief must include terms regarding the following:

  • All persons who have SB 14 ID or who have the means to get it in time for the November 8, 2016 election must display that ID in order to vote;
  • No ID that is easily counterfeited may be used in any ameliorative provision;
  • There must be an impediment or indigency exception, which may include reinstatement of the ability to use the voter registration card for such voters;
  • The State must educate the public in a meaningful way about the SB 14 ID requirements and all exceptions to those requirements that are set out in the original law and in the interim plan adopted by this Court;
  • The State must educate and train workers at polling places to fully implement the resulting plan; and
  • The plan shall address only the discriminatory effect holding of the Fifth Circuit’s opinion and shall not include relief that would be available only in the event that this Court finds, upon reweighing the evidence, that SB 14 was enacted with a discriminatory purpose.

Emphasis mine, and you can see the order here. I don’t have any faith in the state’s motivation to “educate the public”, but perhaps the threat of sanctions may light a fire or two. We’ll see how it goes. More from Hasen is here, and Texas Standard, Reuters, the Trib, the Chron, and the Current have more.

Rick Perry still toadying for Trump

Dude must really need a job.

Corndogs make bad news go down easier

Corndogs are always in demand

Former Gov. Rick Perry says he is open to serving in the administration of presumptive Republican presidential nominee Donald Trump, his former rival in the race for the White House.

“They know that I will come and help if the role is something I’m passionate about, that I’m knowledgeable about,” Perry told reporters Monday morning after addressing Texas delegates here at the Republican National Convention.

Perry, an Air Force veteran, went on to acknowledge that he is “pretty limited” in the expertise he believes he could lend.

“The place that I’m passionate about is our veterans and our military, so somewhere in that area is where I would be” helpful, he said.

[…]

On Monday morning, Perry told reporters that he made clear to the Trump campaign that he was not vice presidential material.

“I told them, ‘Listen, I’m not your guy to be vice president because I don’t know the Washington inside legislative game,'” Perry said.

See here for some background. Just curious here, but did anyone other than Rick Perry ever mention Rick Perry as a potential VP candidate? One also wonders if Perry is aware of how Trump treats the people who align with him, and if he considers it a bug or a feature. (Not to mention if Perry is aware of what his own website says about Trump, which strikes me as the equivalent of posting one’s Spring Break pictures to Facebook while interviewing for an accounting job.) But look, I blame this on the failure of the wingnut gravy train to find a nice little sinecure for Rick Perry. Surely he deserves better than this after all his years of loyal service to the cause.

From the “You can dish it out but you sure can’t take it” files

Poor baby.

RedEquality

After years of Texas trying to lure businesses away from other states, New York has struck back — with an ad that paints the Lone Star State as unwelcoming and discriminatory to the LGBT community.

The two-minute ad released by New York’s chief economic development agency highlights the Empire State’s principles of inclusion and equality, claiming these characteristics make it welcoming for all businesses.

Gov. Greg Abbott disputed the ad and pointed to New York’s taxes and regulations as a hostile business environment.

The ad begins against a backdrop of black-and-white video of the Statue of Liberty and immigrants at Ellis Island. A woman’s voice states, “For hundreds of years, New York state has stood as a beacon — a beacon that arose to welcome those unwelcome in other places.”

New York has opened its doors to the LGBT community when others have not, the ad continues. Headlines from newspapers around the country indicate Texas, North Carolina and Mississippi have pushed for discriminatory policies.

[…]

In 2013, former Gov. Rick Perry launched aggressive campaigns in New York, California and Illinois to attract businesses to Texas. In New York, he spent $1 million on TV advertisements that promoted the Lone Star State’s pro-business approach and strong economy.

Abbott has continued his predecessor’s work, even urging British businesses to declare independence on July 4 by moving to Texas.

You can see the video embedded at the Tribune link. First of all, if you’re going to aggressively market your own state as the best place ever for businesses to move to, then you have no grounds for complaint when another state does that to you. I mean, how wimpy is that? The proper response, if one is going to take this path, is to chuckle dismissively and pat New York on the head for being so adorable as to even try to keep up with us. This? It’s just weak. Or, as one of Greg Abbott’s favorite politicians (who, by the way, is from New York) would put it, SAD!

Also, too, and not to put too fine a point on it, but thanks to Greg Abbott and his Republican Party, there’s a whole lot of merit to this accusation, with more on the way next year. Abbott didn’t bother addressing the issue, because honestly what could he say? If we don’t want states like New York attacking us for being hostile to the LGBT community, then maybe we should try not being hostile to the LGBT community. It’s so crazy it just might work.

The Trump University origin story

From Ars Technica a few weeks ago, before the whole Trump University thing really blew up:

In 2005, both of us became fixated on a late-night infomercial that promised access to “hundreds of billions of dollars” in “free government money.” As journalism grad students at the time, our evenings often ended with a couple beers as we decompressed by watching whatever was on our tiny 13″ TV. And what was on at the time—repeatedly—was a half-hour advertisement for an outfit called “National Grants Conferences” (NGC).

Why did the NGC infomercial captivate us? It wasn’t the charisma of the commercial’s star, ex-football player and former Congressman J.C. Watts (R-Okla.), who was busy making a mockery of whatever credibility he once had. And it wasn’t the enthusiastic couple who founded NGC, Mike and Irene Milin, proclaiming that numerous government grants were there for the taking.

No, we couldn’t stop watching because NGC just felt so sleazy. Even in comparison with other get-rich-quick schemes competing for time in the twilight TV hours—the obnoxious guy with the question marks all over his suit, the insufferable smile factories bragging about their real estate conquests from tropical locales—this one seemed suspect.

Though neither of us were rich, we were both confident about one thing: real secrets to the easy life weren’t generally shared through free seminars given at local hotels. So how could a business like NGC persist, even thrive?

To find out, one Saturday afternoon we biked to a nondescript hotel near the Oakland airport for an NGC presentation. We sat among hundreds of other people packed into the ballroom as a speaker confirmed what the infomercial had promised: serious sums of government money could be ours. At the end of the session, dozens of attendees lined up to buy $999 NGC “memberships,” receiving two thick books full of government programs and the promise of ongoing coaching and support.

Intrigued, we spent the better part of a year researching NGC, its claims, and its founders’ pasts. We ultimately found that NGC—with several seminar teams circling the country and clearing tens of millions of dollars each year in sales—and its memberships produced no money for any of the customers we interviewed.

Arriving at that conclusion was no great surprise. Nor was it surprising that the NGC money train would continue running well after we wrote a piece about it, which was published on the front page of The Sacramento Bee on July 5, 2006. What was remarkable—and what still feels surreal more than a decade later—is what happened near the end of our reporting.

Donald Trump waltzed into our story.

Go read the rest, it’s well worth your time. This outfit was sued not once but twice by the state of Texas for being sleazeball scam artists. They’re also who Donald Trump turned to in order to get his Trump University off the ground. And that’s hardly the worst thing we know about Donald Trump. who of course has been endorsed for President by Greg Abbott, Dan Patrick, Rick Perry, and many other Texas Republicans. What else is there to say? Link via TPM.

Rick Perry must really need a job

That’s the most charitable explanation I can think of for this.

Corndogs make bad news go down easier

Corndogs and second bananas

Former Gov. Rick Perry, who had called Donald Trump a “cancer on conservatism,” is now endorsing the presumptive Republican presidential nominee.

Perry, a former candidate who had backed U.S. Sen. Ted Cruz of Texas until he dropped out Tuesday, gave Trump his endorsement in an interview Thursday with CNN.

“He is not a perfect man,” Perry told the network. “But what I do believe is that he loves this country and he will surround himself with capable, experienced people and he will listen to them.”

Perry also said he would consider serving as Trump’s running mate. “I am not going to say no,” he told CNN.

[…]

Endorsing Trump is a remarkable turnaround for Perry. The former governor was the first member of the GOP field to attack Trump, delivering a speech in July that labeled Trump anathema to the GOP.

“He offers a barking carnival act that can be best described as Trumpism: a toxic mix of demagoguery, mean-spiritedness and nonsense that will lead the Republican Party to perdition if pursued,” Perry said at the time.

He said more than that, but hey, it’s not like anyone was paying attention, am I right? I don’t care much for Erica Greider, but I agree with her on one thing, and all of these Texas Republicans who are endorsing Donald Trump, including Greg Abbott and Dan Patrick, have forfeited any right to talk about “principles”. I don’t know how much of a problem that will be in real life for them – reading Greider, one gets the impression it will be a bigger deal down the line – but I’m happy for it to be their problem and not ours. More from the Trib here.

Business as usual with the Texas Enterprise Fund

Raise your hand if this surprises you.

BagOfMoney

In July of 2013, Gov. Rick Perry announced that he had closed another deal. Chevron would build a 50-story tower in downtown Houston next to one of its existing office buildings. The $662 million capital investment was slated to create 1,752 high-paying jobs.

“The state is providing $12 million through the Texas Enterprise Fund to close the deal on this expansion and job creation,” Perry said in a press release at the time.

A Chevron executive added: “our new office building underscores Chevron’s long-term commitment to Houston and Texas.”

Nearly three years later, 1600 Louisiana Street, where the 1.7 million square foot building was supposed to rise in the Houston skyline, remains a grassy lot. The company, it turns out, was not actually required to build its new tower in exchange for drawing state funds.

What’s more, Chevron has announced layoffs of more than 1,500 workers in Houston over the past year, prompting questions about whether the petroleum giant employs fewer area workers than it did before Perry allowed it to tap taxpayer funds.

And yet Chevron remains in full compliance with its Enterprise Fund agreement with the state, according to Gov. Greg Abbott’s office. A close examination of the 14-page contract reveals language so vague that the company does not legally have to deliver on much of what it promised publicly.

Texas has doled out more than half a billion dollars through the Texas Enterprise Fund since 2003, with dozens of firms agreeing to create jobs in Texas in exchange for a subsidy. The fund has long been championed by Perry as a way to reel in businesses that might otherwise land elsewhere. It drew close scrutiny two years ago, in the Republican’s final days in office, after an audit found the fund riddled with weak oversight. Critics honed in on the news that grants were awarded to companies that didn’t formally apply and that state agencies repeatedly failed to check whether companies were adhering to their contracts.

There’s more, but you get the idea. I’ve written plenty about the Texas Enterprise Fund and its various cousins; go search the archives if you want a taste. I’m just going to say now what I said before about tax breaks that the city hands out: There’s a place for this kind of economic incentive, but there ought to be an annual review of each deal, with a public accounting of what was promised, what’s been done, what’s still left to do, and what the timeline is for doing them. For the TEF, there needs to be a better process for deciding how they are granted as well. I don’t think any of this is rocket science, or particularly controversial. Ultimately, it’s up to the voters to elect people who will make that a priority, and then to hold them to that promise. Until that happens, why should anything change?

Case against Rick Perry officially dismissed

So there you have it.

Corndogs make bad news go down easier

Justice for corndogs

The criminal case against former Gov. Rick Perry was officially dismissed on Wednesday, weeks after Texas’ highest criminal court ordered that it be dropped.

Judge Bert Richardson, who presided over the case in Travis County and now serves on the Texas Court of Criminal Appeals, signed an order dismissing the abuse of power indictment related to a 2013 veto threat.

[…]

Michael McCrum, the special prosecutor in the case, said he still believed that Perry committed a crime — and had drafted and printed copies of a motion for an amended indictment. But on Tuesday afternoon, he decided to halt the effort, saying the high court’s ruling had “muddied” the criminal statute at issue.

“It was our position, and our feeling that the law had been so muddied that it was not the just thing to do with any citizen,” he said.

See here and here for the background. The Express News adds on.

Perry’s lead lawyer, Anthony Buzbee, suggested he might take action to hold the appointed prosecutor, Michael McCrum, accountable for what he called an improper pursuit of the case. As he told the Express-News previously, Buzbee said Wednesday he would seek a transcript of grand jury proceedings.

“We feel like Mr. McCrum must have said some things that are probably actionable to that grand jury based on the people that we know testified and the facts as we know them and we’re going to explore that,” Buzbee told reporters after the hearing where Judge Bert Richardson signed the dismissal order.

Buzbee didn’t say exactly what action he’d seek but mentioned there are professional responsibility rules for lawyers.

McCrum said that the law doesn’t allow the release of grand jury transcripts because it’s important to protect the integrity of the process and ensure evidence is fairly reviewed. In the process, he took aim at Buzbee, a prominent Houston trial lawyer with a history of handing high-profile injury cases yielding big awards to clients.

“The law guards the confidentiality of those proceedings very, very much for good reason,” McCrum said.”Mr. Buzbee should know that. I don’t know – he handles snake bite and car wreck cases.”

McCrum said he didn’t decide against trying to resurrect the case until late Tuesday because he believes Perry committed a crime.

“We believe that he did. Strongly believe that,” McCrum said.

But the Texas Court of Criminal Appeals ordered the case dismissed in February and in doing so, McCrum said, “so muddied the law” that he didn’t think it would be the right thing to do.

Perry’s legal team defended his actions and Buzbee said took issue with “the stuff that came out of his (McCrum’s) mouth.”

“If the law doesn’t support a crime was committed, then you don’t prosecute, period. That’s how it works,” Buzbee sad. “This has all been a colossal waste of time.

The presiding judge in the case, Richardson, said the case “has not been a pleasant experience for me either.” He said he felt like a “punching bag.”

“I didn’t ask for this job and I didn’t want it,” he said, pointing out that he was running for the Texas Court of Criminal Appeals while presiding over the case.

I feel for Judge Richardson, who I thought did a fine job with this mess. I still think what Perry did was wrong and that he was handed a gift by the CCA, one that would not be available to other mortal defendants, but it is what it is at this point. I don’t really believe that Buzbee will pursue a complaint against McCrum, but at this point nothing would surprise me. Go ahead and start cashing in on that sweet wingnut gravy train, Rick Perry. It is your due.

If we really cared about improving mental health in Texas

We would have expanded Medicaid at our first opportunity.

It's constitutional - deal with it

It’s constitutional – deal with it

Federal health officials say people with mental illness and addictions are being left behind in Texas because the state hasn’t expanded Medicaid to more low-income adults.

The health care program for the poor is controversial for many Republicans. The U.S. Supreme Court ruled that expansion was a voluntary part of the Affordable Care Act, and 19 states have declined to expand it.

A new federal report estimates that expanding Medicaid in Texas could help 406,000 mentally ill and uninsured Texans get treatment, according to Richard Frank, an Assistant Secretary for Planning and Evaluation at the U.S. Department of Health and Human Services.

“If states are serious about addressing mental illnesses, opioids, and other substance use disorders, expanding Medicaid offers a unique opportunity to do so,” Frank said in a national conference call with reporters. “It will bring people into effective treatment and is fully paid for under the Affordable Care Act.”

The new federal report discusses how untreated mental illness affects homelessness, job productivity, and jails and prisons. The report says states that did expand Medicaid were able to save money on programs for mental health or the uninsured, or divert the money to other programs.

A copy of the report is embedded at the link above. This is the same song we’ve been singing since 2011, with this being roughly the 1000th verse. The positive effect of getting access to reliable mental health care for these people cannot be overstated – among many other things, it would keep a lot of so-called frequent flyers out of jail – but the state Republican leadership does not care and will not hear it. You know how whenever there’s another gun massacre, the only thing we’re all allowed to say is that we should do more to promote mental health as a way to maybe not have so many gun massacres? The part we’re not allowed to say is that the Republicans in this state won’t do a damn thing to actually promote mental health. It’s the same old story, and the only way it ends is with electing different leaders. The Statesman has more.

Paxton prosecutors file their response briefs at the 5th Court of Appeals

In sum: Don’t think about Rick Perry!

Best mugshot ever

Best mugshot ever

A Travis County court’s decision to throw out Rick Perry’s abuse-of-power indictments should have no bearing on Ken Paxton’s securities fraud case, the team prosecuting the first-term attorney general wrote in their latest brief filed Monday.

“Comparing Rick Perry’s case with Mr. Paxton’s is like comparing Citizen Kane with Showgirls,” special prosecutor Brian Wice said late last month after a Travis County appeals court threw out the former governor’s indictments. “The prosecution of Rick Perry, not to mention Tom DeLay, was about the criminalization of politics. Mr. Paxton’s case is about the criminalization of securities fraud.”

Wice, along with fellow special prosecutors Kent Schaffer and Nicole DeBorde, filed a brief Monday with a Dallas-based appeals court responding to Paxton’s latest attempt to have his three felony indictments thrown out. In December, the judge presiding over the attorney general’s securities fraud case decided against quashing the charges, prompting Paxton to appeal that decision to the higher court in Dallas.

In his appeal, Paxton contended the grand jury that indicted him was improperly impaneled and that the state law he’s been charged with violating is both unconstitutionally vague and trumped by a different federal law.

The special prosecutors denied all three claims in their Monday filing, saying a court could not come to these conclusions without first hearing all the evidence at trial. They repeated their arguments that the judge who impaneled the grand jury used the same method he and others employed for many other grand juries, that state law holds in this case and that the statute was clear in its meaning.

“Persons of ordinary intelligence would not have to guess at the plain and common meaning of the term ‘investment adviser representative’ or where to turn ‘to determine who is an [IAR] or who may be penalized for failing to register,’ ” the prosecutors wrote.

See here for the background. Wice’s defense attorney roots are showing here, as he has bought into the Perry defense team’s characterization of that case, which as you know is not mine. It is the CCA’s, however, and they’re the ones who count, so one hopes that Wice’s talent for turning a phrase will help here. Both prosecution and defense have asked for oral arguments, so expect that to be scheduled soon. As the story notes, there could then be a ruling by June or so, though things bog down considerably if an appeal to the CCA follows. For now, at least, things are moving along at a steady clip.

Is there anything more to the Rick Perry case?

I’m dubious.

Corndogs make bad news go down easier

Corndogs are not subject to double jeopardy

The special prosecutor in the abuse-of-power case against Rick Perry said Thursday he still hasn’t decided whether to drop the matter a week after the state’s highest criminal court ordered that the indictment against the former governor be dismissed.

Special prosecutor Michael McCrum of San Antonio said he and his co-counsel, David Gonzalez, “are looking into it, because we owe that to the people of this State, and because we just witnessed an activist court create new law for a public official indicted for public corruption. So, we must take time to carefully review this.

“As expressed by the judge’s dissent filed this week, however, the (high) court’s opinion offers little, if any, direction to the district court on how to react to this new law. So, we owe it to the people to be careful and prudent as to how we respond,” McCrum said.

The Texas Court of Criminal Appeals ordered the indictment to be dismissed last week in a decision by Presiding Judge Sharon Keller, who said the charge violated the constitutional separation of powers because it stemmed from a Perry veto — an executive power.

[…]

The state had said — and lower courts agreed — that it was too early in the case to address Perry’s arguments against another charge alleging abuse of official capacity, saying according to precedent, that only could occur after evidence was heard at a trial.

That’s because Perry’s arguments in general said the abuse-of-power law was unconstitutional as applied to his circumstances.

Keller’s opinion, however, put Perry’s separation-of-powers complaint in the same special category as claims against double jeopardy — being tried twice for the same crime.

Such claims are allowed to be raised before trial “because the rights underlying those claims would be effectively undermined if not vindicated before trial,” Keller wrote.

In Perry’s case, she wrote, “When the only act that is being prosecuted is a veto, then the prosecution itself violates separation of powers.”

Her opinion ordered the indictment dismissed, an outcome joined by five other justices on the nine-member court and opposed by two.

See here for the background. McCrum hasn’t said what his next step might be, and it’s not clear to me that there is one other than finishing up the paperwork. I’m not a lawyer, though, so maybe there is still a rabbit in the hat somewhere. I think the CCA got this decision wrong, but like it or not they are the end of the line. At some point we need to accept that and move on.

Paxton files his first indictment appeal

And on we go.

Best mugshot ever

Best mugshot ever

Texas Attorney General Ken Paxton continues to fight to get out from under three felony indictments, arguing anew before a Dallas appeals court that he is innocent of accusations he repeatedly violated state securities laws.

“We argue that the entirety of all three indictments should be dismissed,” Bill Mateja, one of Paxton’s attorneys, said Tuesday. “We feel confident that we’ll be able to prevail on appeal.”

[…]

In the 77-page brief filed with the court on Monday, Paxton’s lawyers argued state law is too vague for the indictments to hold water.

Specifically, they said the definition of “investment adviser representative” in the Texas Securities Act is vague and conflicts with federal law. The state law also “unconstitutionally regulates free commercial speech” also doesn’t define how such a person would “solicit” business, they argued.

Repeating the arguments they made before the district judge last year, Paxton’s team also accused the judge who empaneled the grand jury of improperly handling the process by asking for volunteers instead of picking the members at random. Paxton’s lawyers are asking for a hearing before the appeals court.

Paxton’s indictments were upheld by trial judge George Gallagher in December, and the 5th Court of Appeals called for briefs in January. Prosecutors have until March 14 to submit theirs. As noted in that last link, the appeals court could issue a ruling based on the briefs, or it could schedule and hear oral arguments, in which case we will all need to settle in and get comfortable, because we’ll be in for the long haul.

As for the merits of Paxton’s appeal, Texas Lawyer asked a bunch of experts and got some interesting answers:

“These are all interesting things—good legal questions—but on the whole, they are all post-trial questions and not pretrial issues,” said former CCA Judge Cathy Cochran. “It’s a hard row to hoe to bring them in the pretrial context, when there is just no evidence of anything yet.”

Criminal procedure expert John Schmolesky explained that courts will only grant pretrial habeas corpus relief when a defendant proves that a law is unconstitutional on its face rather than arguing it’s unconstitutional as applied to him.

“He has to be convicted and then he can raise his complaint about the statute,” said Schmolesky, a professor at St. Mary’s University School of Law. “The appellate court may very well say, ‘There might be merit to the claim, but we will wait.'”

Hilder & Associates principal Philip Hilder of Houston wrote in an email, “Mr. Paxton is entitled to relief because the statute under which he is charged does not regulate the conduct of representatives of federally filed investment advisers, which applied to Mr. Paxton. Further, we maintain that the statute is vague and unconditionally regulates conduct. Additionally, the indictments are void because they were returned by a grand jury of volunteers improperly selected.”

But attorney pro tem Brian Wice wrote in an email, “His arguments that these prosecutions should end before a jury can pass upon his guilt or innocence are creative. But Mr. Paxton’s appellate brief has provided the court of appeals with no additional argument or authorities that his creativity is a compelling, principled, or reasoned substitute for legal merit.”

[…]

One of Paxton’s claims applies to all three of his charges. He claimed that 416th District Judge Chris Oldner improperly impaneled the grand jury that indicted him. Oldner called a panel at random, but then he asked who was willing to serve. Paxton argued that “willingness to serve” isn’t a lawful qualification. He claimed that the U.S. Court of Appeals for the Fourth Circuit dismissed an indictment under identical circumstances.

Cochran, [former Third Court of Appeals Chief Justice Woodie] Jones and Schmolesky all said the argument is new and interesting.

Cochran said that the U.S. Supreme Court has held that if grand jury law is violated, a defendant must show the violation substantially influenced the grand jury’s decision to indict him. Paxton will have to prove that he wouldn’t have been indicted if the judge impaneled the grand jury correctly, she said.

Jones said, “I would be curious to know if federal grand jury law is the same as Texas grand jury law—there’s a very good chance it is not the same.”

Jones added that his 18 years as an appellate judge taught him never to judge a case based on one side’s briefs.

“I read this one and think to myself, ‘That’s a really interesting issue. I’m going to be curious to see what the state’s response is to the issue,’ or, ‘Once I dig deeper, I’m going to be curious to see what the law is,'” he said. “You really can’t take what is said in a brief at face value.”

So the general (though not unanimous) consensus is that Paxton will not succeed, though he will have some good arguments to make in the event he gets convicted. Team Paxton also thinks the Rick Perry ruling is good for them, though it was noted in that story that the ruling in the Perry case was pretty narrowly tailored. So who knows? In short, prepare for the long haul.

CCA dismisses remaining charge against Rick Perry

This would appear to be the end of the road.

Corndogs make bad news go down easier

Corndogs for everyone!

The state’s highest criminal court dismissed the remaining indictment against former Gov. Rick Perry on Wednesday morning, apparently ending the case that started with his threat to veto state funding for a local prosecutor if she refused to quit her office.

[…]

A ruling earlier in the year by a state appeals court dismissed one of the two felony charges against Perry: coercion of a public servant. Perry’s lawyers challenged that decision, arguing that the Austin-based 3rd Court of Appeals should have also dismissed the abuse-of-power charge.

And that’s what the Texas Court of Criminal Appeals did on Wednesday. Two of the court’s nine judges dissented in that one ruling, while one abstained.

Tony Buzbee, Perry’s attorney, called the ruling a “long time coming,” and said the case should have never been brought in the first place.

“I said all along this case was foolishness and would be dismissed.”

Michael McCrum, the special prosecutor in the case, called the ruling “horrendous.”

“This is a situation where the Republican court carved out a special ruling to get Perry off the hook. It changes law for past decades and offers no laws for future courts to follow,” he said. “This is, from what I understand, a special ruling tailor-made for Rick Perry.”

Craig McDonald, executive director of Texans for Public Justice, the liberal-leaning watchdog group behind a complaint that led to the indictment, largely echoed that notion.

“A highly partisan court has handed Rick Perry a gift,” he said. “This decision is based on who Perry is rather than what he did.”

You could sort of see this coming when the case was argued last November, but it’s still a bit of a surprise. Clearly, there are limits to how pro-prosecutor this court will be, and Rick Perry joins Tom DeLay in being beneficiaries of that. I don’t feel like spending too much time thinking about it, so I will point you to the Associated Press, the AusChron, Trail Blazers, the Current, and the Press for more.

Perry’s day at the CCA

Now we wait to see if he comes out of this a free man or a man still under one or more indictments.

Corndogs make bad news go down easier

Never mind the corndogs, here comes the CCA

Lawyers for former Gov. Rick Perry fought Wednesday before the highest criminal court in Texas to finish off the 15-month-old indictment against him, while prosecutors argued it was far too early to let Perry off the hook.

At a critical two-hour hearing before the Texas Court of Criminal Appeals, both sides fielded a slew of hypothetical scenarios and skeptical questions as they tackled a ruling by a lower court earlier this year that dismissed one of the two felony charges against Perry, coercion of a public servant.

[…]

Two issues were at play Wednesday. One was whether the remaining charge, abuse of power, should also be thrown out, effectively ending the 15-month-old case against Perry. The other issue was whether a statute should be reinstated that was struck down by the Austin-based 3rd Court of Appeals in July when it dismissed the coercion charge.

Eight judges listened as those issues were aired out in hour-long blocks split between David Botsford, the lead attorney on Perry’s appeal, and State Prosecuting Attorney Lisa McMinn. Judge Bert Richardson, who oversaw Perry’s case as a district judge and now sits on the Court of Criminal Appeals, did not take part in the Wednesday arguments.

As Perry’s legal team has done from the get-go, Botsford cast the case as having serious implications for First Amendment rights and a chilling effect on elected officials down the line. The indictment, he said, violates three principles to which Perry was entitled as Texas’ longest-serving governor: separation of powers, free speech and legislative immunity.

“The danger of allowing a prosecutor to do this is mind-boggling,” Botsford said as he sought to convince the eight judges present for the arguments that they should immediately end the indictment.

McMinn argued more than once that the defense was “getting ahead of ourselves” with its discussion of dispensing with the indictment before trial, insisting that not all the facts are out. Botsford later countered that such disclosure is not required for the court to dismiss the remaining charge. The questions before the judges, Botsford said, are “issues of law, not issues of fact.”

McMinn specifically sought to poke holes in Botsford’s argument that Perry had legislative immunity because vetoes are legislative acts, an argument she said “strains credibility” when one considers, for example, a member of the Legislature cannot take the same action. In his remarks, Botsford argued Perry was clearly “wearing his legislative hat” and thus protected from prosecution, regardless of any threats that may have accompanied his veto.

This hearing was originally scheduled for November 4, but you know how it goes. What happens next is we wait. The CCA justices (minus Bert Richardson, who is of course the judge in the actual criminal trial) asked more questions of McMinn than of Botsford, but who knows if that means anything. The trial is on hold pending a resolution of these issues by the CCA, so one hopes we won’t have to wait too long. See Trailblazers, the Express-News, and this Trib story for more from before the hearing.

Who can pay for Ken Paxton’s defense?

Paxton himself would like to know, though he doesn’t want you to know that he wants to know.

Best mugshot ever

In mid-July, a law firm representing an unnamed state official asked the Texas Ethics Commission whether it would be legal under state gift-giving laws for its client to receive a “benefit” from a donor if the official “has no reason to believe” the donor is subject to his agency’s oversight.

The firm’s name was redacted from the opinion request, and the anonymous official was described simply as “a public servant who works, in a leadership capacity, for an agency that performs regulatory functions, conducts inspections, and conducts investigations.”

According to the request, the donor has signed a written statement saying he is not subject to the agency’s oversight in any way.

“In addition, the public servant has no actual knowledge that the donor is subject to the regulation, inspection, or investigation by the public servant,” the request said.

Under state law, an official at a regulatory agency that conducts inspections and investigations is forbidden from asking for, accepting or agreeing to accept a benefit if the official knows the giver is subject to the agency’s authority.

Earlier this month, the eight-member ethics commission discussed, but did not adopt, a draft opinion in response to the request. Commissioners said they did not have enough information to determine exactly what the state official knows about the donor.

“This requestor just needs to do it again with more facts and circumstances,” Commission Chairman Paul Hobby said.

[…]

As it relates to Paxton’s specific case, ethics experts said how the commission will respond is complicated by the scope of the office of the attorney general, which handles everything from lawsuits defending the state, antitrust cases targeting illegal business practices and unpaid child support. In effect, virtually every Texan could be subject to the attorney general’s regulation or investigation at some point.

All of Paxton’s biggest donors are wealthy Texans with substantial business interests in the state.

Renea Hicks, an Austin-based lawyer who practices election and ethics law, and former assistant attorney general Fred Lewis, a state ethics expert, said the issue was problematic.

The commission could create a “huge loophole” if it allowed officials to accept donor money to pay for non-campaign related expenses like legal fees, Hicks said.

The attorney general, Lewis said, would need to be careful to show there is not even the appearance of a conflict of interest by refraining from taking money for his legal defense from people with pending or likely business before his office.

“An AG’s desire to collect private donations to pay legal bills and to hire good lawyers to avoid jail might tempt an AG to temper his judgment on his clients’ behalf,” Lewis said. “That is morally wrong, a violation of legal duties, and potentially bribery.”

Yes, please, Mister Anonymous Requester, ask again with some more information so we can better answer your question. The difference between Paxton and Rick Perry, in case you were wondering, is that Perry was indicted for acts that occurred in the course of his duties as Governor. As such, he is allowed by law to use campaign funds to pay his attorneys. Paxton allegedly did what he was indicted for as a private citizen, so pending a friendly TEC ruling he’s on his own. Not that there aren’t people who’d like to help him out, it’s just that right now they can’t. And honestly, I think it ought to stay that way, but we’ll see what the TEC says when and if that “anonymous requester” asks again. Trail Blazers has more.

Perry appeal briefs

The latest update on the appeals before the CCA in the Rick Perry matter.

Corndogs make bad news go down easier

Corndogs, nothing but corndogs

The 3rd Court of Appeals this summer tossed one of two counts against Perry, saying the coercion law underlying it violates the First Amendment. The 3rd Court agreed with Judge Bert Richardson, however, that Perry must face the charge of abuse of official capacity because it’s too early in the case to decide upon the issues he raised.

Perry’s legal team disagreed with the 3rd Court on the remaining charge, arguing in a brief filed with the Court of Criminal Appeals and released Thursday that the count could be thrown out under existing legal precedent before a trial.

And if that’s not so, said the team led by Houston lawyer Anthony Buzbee, the case should be tossed before trial anyway given the issues at stake and to prevent “the irremediable loss of constitutional rights.”

The briefs were filed as a precursor to oral arguments scheduled for Nov. 18 before the state’s highest criminal court.

Among its points, Perry’s defense team cited the separation of powers and argued that allowing “a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government.”

The prosecution disagreed, saying the issues raised by Perry can’t be decided at this point in the case.

The defense brief said that even assuming for the sake of argument that Perry’s claims “were not of the type that this Court has already recognized as cognizable, the Court should clarify the law to permit immediate resolution of the merits of his challenges.”

“Governor Perry’s constitutional claims pose fundamental questions about any governor’s authority to exercise one of that office’s core constitutional responsibilities—the review of legislative acts, including the possibility of veto,” said the defense brief.

[…]

State Prosecuting Attorney Lisa C. McMinn said it’s clear that the claims raised by Perry would properly be decided in a trial.

“Whether Appellant’s conduct satisfies the elements of a penal statute is a question of sufficiency of the evidence to be decided at trial, not a pretrial determination that this issue cannot be decided or that he is immune from prosecution because a political question might arise at trial,” she wrote.

“Neither the constitutional separation of powers doctrine nor the political question theory of nonjusticiability creates a right not to stand trial or shields a member of the executive or legislative branch from criminal prosecution,” McMinn wrote.

McMinn also filed a brief urging the state’s high criminal court to rescind the 3rd Court’s decision that the coercion law, at least as applied to public servants, violates First Amendment protections.

She said that “there is no evidence that in the years since the coercion statute was enacted, any public servant … has abstained from any of the valid speech the court of appeals maintains is covered by the statute.”

See here, here, and here for the background. Both sides’ briefs are embedded at the link above – the State Prosecuting Attorney’s brief follows the defense brief and begins on page 127 – so go read them if you are so inclined. I have no idea how the CCA will rule, but I feel pretty confident saying that we won’t get a ruling till some time next year.

What is coercion, anyway?

It could be the defining legacy of Rick Perry’s career, depending on how things go in the courts.

Corndogs make bad news go down easier

This corndog has not been coerced in any way

The coercion law has been used only sparingly in Texas, according to records for the past five years, and some legal experts call it problematic.

Others, however, say its absence will be felt if the Texas Court of Criminal Appeals agrees with the decision to toss the law.

“I see it not just as a numbers game,” said Melissa Hamilton, visiting criminal law scholar at the University of Houston Law Center.

“To the extent you are taking away tools from prosecutors to charge as well as to plea bargain, they are going to be potentially deterred from bringing more cases. And I don’t see how that’s helpful to the citizens,” Hamilton said.

[…]

The state is appealing the 3rd Court’s decision to throw out the coercion law, saying it should stay on the books to hold public officials accountable. Perry still faces a charge of abuse of official capacity, which he is appealing.

Some agree with Perry’s team and the 3rd Court that the coercion law has problems.

“When something that could fit that coercion of a public servant statute would come in, it was almost always a better fit for bribery or for obstruction or retaliation of a public servant,” said Bexar County Assistant District Attorney Patrick Ballantyne, whose job includes handling public integrity cases.

“I think that statute needs to be more narrowly tailored by the Legislature for a lot of the reasons that the 3rd Court cited,” Ballantyne said. “Basically it encompasses too much constitutionally protected speech. Stuff that may just be impassioned criticism of a public servant may technically fall under the letter of that statute. So it’s a statute that’s just too broad a sword given the constitutional issues that are at play.”

The Texas Department of Public Safety criminal history database shows 23 convictions statewide under the coercion law in the past five years. The database is dependent on reporting by local entities.

The number of cases involving public servants such as elected officials or government employees – the category of the law targeted by the 3rd Court decision – is much smaller.

DPS doesn’t capture information on whether those convicted were public officials, according to a spokesman. Ballantyne said of three Bexar County convictions, none were public servants.

[…]

Professor Geary Reamey of St. Mary’s University School of Law said effects of the 3rd Court’s ruling will be minimal, and that lawmakers can move to address problems if need be. The Legislature previously amended the law after an appellate court found constitutional problems.

“I don’t think it’s a terribly big deal. We’ll always have statutes that try to address corruption and malfeasance and misfeasance by public officials,” Reamey said. “It may very well be that the Legislature will decide that they want to come back and address the concerns.”

See here, here, and here for the background. With all due respect to Prof. Reamey, I think the odds of the Legislature acting to clarify or rewrite the existing coercion statue are slightly less than the odds are of Dan Patrick being the grand marshal at next year’s Pride parade. It would be nice if they attempted to fix it, because I do think that what Rick Perry did should fall afoul of a coercion law. It’s not the veto, it’s the threat against another elected official. If what Perry did is okay, then what’s to stop Greg Abbott from threatening to veto every bill John Whitmire authors or sponsors unless he steps down? Again, it is well within the Lege’s capacity to tailor such a law in whatever way they think is best and to aim it at whatever behavior they think should be prohibited, but given that there’s zero incentive for them to do so, and plenty of incentive for them to not do so, I hope the CCA reverses the Third Circuit and leaves the current law standing. Oral arguments are for November 4, so we’ll have some idea soon enough which way they wind is blowing.