Here come the new floodplain maps

Coming soon to tell you if you are now in the floodplain.

When Harris County debuts a massive overhaul of its floodplain maps later this year, the Houston area will be the first in the country to rely on a more accurate assessment of homes and businesses at risk. The update is a direct response to Hurricane Harvey, a storm so ferocious it forced the region to change its understanding of how much rainfall to plan for and which neighborhoods could flood.

Harvey — the third 500-year storm in three years — overwhelmed Harris County with up to 47 inches of rain, exposing serious flaws in communicating flood risk. A county analysis found half of the 204,000 homes and apartments that flooded were outside the boundaries of the official flood risk zones mapped by the Federal Emergency Management Agency.

More than half of the damaged homes in the Tax Day storm in 2016 were outside the mapped floodplains, as were more than one-third of those during the Memorial Day flood in 2015.

On the new maps, most of Harris County’s floodplains will expand, reflecting a major effort to capture a more comprehensive understanding of flood risk.

FEMA’s existing floodplain maps show communities their risk of fluvial, or river flooding, when a bayou, creek or lake overflows its banks and floods nearby structures. What they do not show is the risk of urban flooding, when intense rainfall overwhelms stormwater systems regardless of proximity to a bayou or other channel.

The new floodplain maps for Harris County — originally set to be released in late 2022, but now expected in late this summer at the earliest — will be FEMA’s first maps to depict urban flooding. They also will reflect updated rainfall estimates from the National Oceanic and Atmospheric Administration that better reflect the reality that storms have intensified in recent decades, data that had not been updated since the 1960s.

“This update is really a transformational way of thinking about floodplains,” said Tina Petersen, executive director at the Harris County Flood Control District. “This is the first program that FEMA has done with a partner like Harris County Flood Control District that’s really looking at innovative mapping tools trying to develop what is a much more comprehensive understanding of flood risk, beyond what has been done in the past.”

Communities across the United States are going through the process of updating their floodplain maps to align with NOAA’s higher rainfall estimates.

Harris County’s effort to map urban flood risk is its own innovation in response to Harvey, which demonstrated the limitations of the existing models, said Ataul Hannan, planning division director at the Harris County Flood Control District.

“That is a new approach,” Hannan said. “They have never done it anywhere in the United States.”

There’s a lot more to the story so go read the rest, or read the companion story that summarizes the main points. Lots of things change – the amount of rainfall needed to be called a 100-year or 500-year flood, changes to individual watersheds, future updates to include new flood mitigation projects – with a big one being that inclusion of urban flooding risk. Some number of people who are not now in a defined floodplain will be in the new maps, and some of them will not be happy about it. There will be a lot of discussion to be had afterwards.

On a related note.

Harris County Commissioners Court is expected next week to consider a plan for spending $750 million in flood mitigation funds, all or part of which could be earmarked for closing a funding gap in the county’s flood bond program.

A year after a calamitous 2017 storm inundated more than 200,000 homes and businesses, voters approved a $2.5 billion bond proposal to tackle more than 180 flood control projects across the county.

County officials expected to receive additional billions of dollars from state and federal governments to undertake those projects, but the money failed to materialize. The county two years ago said that had resulted in a $1.4 billion shortfall in the flood bond program.

The Harris County Flood Control District said it has been able to keep the flood bond projects on schedule thanks to the Flood Resilience Trust the county created in June 2021 to address the funding gap. The county budget office estimated that if no other federal or state aid comes through, the trust would be able to make up bond project shortfalls until about 2026.

The trust is funded by Harris County Toll Road Authority revenues.

Now, county officials could spend part of the $750 million allotment to close what remains of that funding gap.

That’s from last week, I was waiting to see what the post-approval story looked like but then decided to add this in to this post. You know the background here, if I start thinking about it too much my head will explode, so I’ll just leave this here. The county is allowed to do this as long as the projects in question are HUD-compliant since this is HUD money, and there seems to be unanimous support for it.

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The Houston coyotes

No, not another sports team. A bit of wildlife that has found a home in the big city.

As the Houston region continues to develop over the next few years, wildlife removal experts say that interactions between coyotes and humans will steadily increase until their encounters are a more common occurrence.

Coyote sightings in Houston used to be rare and could be the subject of viral moments, like the video last year of a coyote scaling a fence and roof in a Richmond backyard.

Mark Browning from Houston’s Elite Wildlife Services said that years ago coyotes would normally only be seen on the outskirts of undeveloped properties. But as more areas get developed, there has been an uptick in calls for coyote removal services in more urbanized zones.

For instance, a few weeks ago Browning said that his company received a call about a coyote on the top floor of a downtown parking garage, calling the ordeal a “spectacle” with people afraid the coyote was going to bite someone. There were also recent reports of coyote sightings near Memorial Park in Houston.

“They are absolutely increasing, and they’ve become very urbanized,” Browning said. “They learn our habits, like when we take our trash out. And they really don’t have any natural enemies so there’s really nothing to control the population.”

Brad Gurrerra from Quality Pest & Wildlife also says he’s been hearing a lot more concerns from residents living in the Heights and the Woodlands about coyote sightings.

“Even myself, I’ve had two outdoor cats that have been killed by a coyote,” Gurrerra said. “And we live in a suburban neighborhood. They’re pretty much everywhere.”

[…]

The Humane Society recommends hazing to attempt to change coyote behavior, such as yelling and waving your arms while approaching coyotes and using noisemakers, projectiles and other repellents to attempt to keep coyotes afraid of humans. TPW also urges people to not feed coyotes, keep pet food and water inside, secure garbage and compost piles, keep fruit trees fenced or pick up fallen fruit and not feed feral cats that coyotes can prey upon.

You can click on the embedded image to go to the Texas Parks and Wildlife page on coyotes. While your odds of encountering one of these critters has increased as the urban landscape has overtaken their original habitat, they’re not likely to be much bother. As a smug urban elitist I would of course prefer to not have to think about wildlife at all, but this is the world we live in now. Learn to cohabitate, our space is going to get more crowded as we go forward.

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The Denton experience with marijuana decriminalization

It’s been a challenge.

Four months after a majority of voters approved Proposition B, Denton’s misdemeanor marijuana decriminalization ordinance continues to be a difficult issue for city staff to implement completely, according to City Manager Sara Hensley on Tuesday.

Hensley, who gave a presentation to the Denton City Council, said that since Nov. 1 — about a week before Denton voters passed Prop B — 52 citations and/or arrests were made by Denton police for misdemeanor marijuana possession or paraphernalia related to marijuana.

Of those 52 cases, Hensley pointed out that 23 arrests were for primary violations other than marijuana possession. Those violations include issues such as warrants, criminal trespass or public intoxication.

Hensley said that certain parts of the ordinance simply couldn’t be implemented because it violates state and federal law.

“I recognize the voters have spoken,” Hensley told council members Tuesday afternoon. “I understand that, but we don’t have the authority.”

Nick Stevens, a board member of the advocacy group Decriminalize Denton, said later Tuesday evening at the City Council meeting that what some council members and city staff are saying publicly is different than what they claimed privately.

Stevens also said the ordinance has become a political issue instead of a nonpartisan one, as indicated by the overwhelming majority of voters who approved the measure in November. He wondered why the city didn’t provide the demographic breakdown of those citations during Hensley’s presentation because historically, minorities have been unfairly targeted by law enforcement.

“The disappointing part — outside of the breaking local law — is not giving the demographics,” Stevens told the Denton Record-Chronicle.

The Record-Chronicle requested demographic information on the citations from the Denton police Tuesday afternoon.

“All of the information the City has to provide will be included in the City Manager’s presentation today to City Council,” the Denton Police Department media relations team said in an email Tuesday. “We do not have any additional information prior to them receiving that work session report.”

[…]

At Tuesday’s Denton City Council work session, Police Chief Doug Shoemaker was also on hand during Hensley’s presentation to answer questions and reassured council members that misdemeanor amounts of marijuana would continue to be a low priority for police. He also reaffirmed that the odor of marijuana wasn’t initiating probable cause and search and seizure issues, though it was part of the process in some cases.

Denton Municipal Judge Tyler Atkinson discussed the deferred adjudication process that is available to people who receive misdemeanor marijuana charges and how the municipal court does its best to work with offenders by lowering fines, offering community service and other opportunities.

Atkinson also mentioned that the court sends text messages to people to let them know about the process and how to expunge their records. The videos are also posted on YouTube.

“We’re the only city in the whole state that sends them out and [posts them] online,” Atkinson said.

After Hensley’s presentation, council member Jesse Davis mentioned that it has been an all-or-nothing-type situation with the decriminalization issue and suggested finding a “middle ground” by implementing parts of the ordinance that doesn’t violate state law.

In Hensley’s presentation, she pointed out that the City Council does have the discretion to amend the budget in regards to how city funds are spent.

For example, the Proposition B ordinance states no city funds will be used for THC testing of misdemeanor amounts of marijuana. But, it requires a council approval and not a voter one under the city charter, as Mayor Pro Tem Brian Beck pointed out in early December when he tried to get his fellow council members to pass a duplicate ordinance of Proposition B to give it the budgetary teeth it needed.

“I’m willing to talk about what we have in our authority to do,” Davis said regarding the budget and which part of the ordinance can be implemented. “It is fair. It is not fair for the voters to tell us to break the law. That is nonsense and not our job.”

Beck and fellow council members Vicki Byrd and Brandon Chase McGee encouraged city staff and other council members to follow the will of the voters and allow the courts to decide what can and can’t be implemented.

“I think we need to fully implement it and if the state slaps our hands back, we know where we are,” McGee said. “We’re answerable to the people. None of us got 70% of the votes. None of us. How often do we see that 70% pass anywhere? There is no reason not to do it, so let’s do it.”

A video of how to expunge one’s record in Denton is embedded in the story. I found this to be fascinating, and quite different from the experiences in Bell County and Hays County, not to mention the pre-vote conflicts in San Antonio. All of that was discussed in the story as well, so go read the rest. There is a legitimate question about what a City Council is supposed to do with a voter-passed ordinance that one can reasonably read to be in violation of state law, at least in part. The bigger issue here remains the fact that state and federal law are much stricter about marijuana than the public wants them to be. Cities can only nibble around the edges of that, and at their own peril in a state like Texas. The problem needs to be resolved at a higher level, and that’s a much more difficult thing to do.

Posted in The great state of Texas | Tagged , , , , , , , , , , , , , , | 1 Comment

ShotSpotter

I’m more skeptical than not, but there is a way to make me less so.

Two years in, Houston’s ShotSpotter program has resulted in 5,450 alerts, 99 arrests and the seizure of 107 guns, but no real consensus on its value as a crime-fighting tool or even how to measure its success.

Critics say the numbers — just 19 percent of the gunfire alerts in the last 25 months even led to an offense report — do not justify the $3.5 million cost of the controversial tool. In the remaining cases, officers were dispatched based on the alerts but did not find any evidence, such as shell casings.

Authorities filed 126 charges related to ShotSpotter alerts, including one capital murder charge, according to Houston Police Department Assistant Chief Milton Martin, who presented an update to a City Council committee last week. Half of those charges involved misdemeanor offenses, most commonly the illegal discharge of a firearm in the city.

Not directly reflected in those statistics, Martin said, is the intelligence that HPD was able to gather from ShotSpotter data. Because residents do not always call 911 to report every gunshot they hear, the tool has allowed officers to map out areas where gunfire problems are the most severe and deploy its resources accordingly, he said.

“Just in the first year of operation, over 200 shell casings that we collected were linked to firearms that were used in other crimes in other parts of the city,” Martin said. “While that’s not an automatic ‘Oh, now we know who to arrest,’ it’s information that investigators did not have before.”

Some advocates, however, say the numbers do not justify the cost of the program: $3.5 million for a five-year contract from 2022 to 2027 at an annual price of approximately $74,000 per square mile.

“Only 20 percent of alerts result in an offense support, meaning that 80 percent of responses are a waste of public resources,” Christopher Rivera, outreach coordinator at the Texas Civil Rights Project, said. “I believe that we can use the $3.5 million…and put it into programs that actually reduce gun violence, like housing and health care and debt relief.”

[…]

Meanwhile, critics and studies of the system in other cities raise questions about the accuracy and efficacy of the gunfire detection tool.

Little consensus exists even among officials who have adopted the technology. In Texas, San Antonio canceled its contract in 2017, after just one year of operation, saying that ShotSpotter simply was not worth the money. Harris County officials, however, have called ShotSpotter a “godsend” for the Aldine area.

Chicago’s former Inspector General Joe Ferguson said Houston’s statistics so far are “in the same universe” as those in other parts of the country that have been subjected to criticism by experts.

The author of a 2021 report by Chicago’s Office of Inspector General, Ferguson found that ShotSpotter alerts rarely led to evidence of a gun-related crime and could result in biased policing behaviors. He cautioned Houston officials against making premature conclusions based on ShotSpotter data during an interview with the Chronicle.

“What was found in Chicago and has been found in other places is the false positive rate is over 50 percent,” Ferguson said. “And people don’t understand that. People assume things are worse than they are. That spawns fear, and fear spawns overreaction, both as a political matter and in terms of response in the field and on the street.”

At the same time, Ferguson applauded Houston’s incremental approach to implementing the program.

“The way that Houston is going about it is the way that these things should be approached. It started with a pilot program, it is focused, it generates the data, and the data is subjected to analysis and made publicly available,” he said. “But the results that they’ve gotten so far aren’t significantly better than what has been reported nationally.”

I thought I had written about ShotSpotter before, but my archives say otherwise. This article does a pretty good job of telling you what you need to know, and there was a CityCast Houston podcast episode from last January that also discussed it, if you want to know more. My sense about this is similar to how I feel about security cameras, which is that it sounds like it could be beneficial, and may have value in certain specific circumstances, but we need to be very rigorous about the data that we have for it and make decisions based on that data. Basically, does the data say this thing works as its proponents claim it does, which is to say that it reduces or helps solve crime at a certain level, or does it not? What even is a reasonable expectation given our investment, the context in which we are using it (e.g, in a high-crime area or just someplace where the locals are loudly clamoring for it regardless of need), and the experiences of other cities? We need to know that going in, and we need to be willing to turn it off if it’s not working as hoped. If we have all that in place, then I’m willing to give it a try. If not, then surely there are better uses of the money.

Posted in Crime and Punishment, Local politics | Tagged , , , , , , , , | 2 Comments

Dispatches from Dallas, February 24 edition

This is a weekly feature produced by my friend Ginger. Let us know what you think.

This week in Dallas area news, we now know the candidates for various races in the May elections in the Metroplex; staffing and evidence issues in the Dallas Police Department; and news from Dallas Museums. Also, from the border by way of the BBC, a fascinating short film about a Texas town that is now part of Mexico.

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Harris County settles Juul lawsuit

From the inbox:

Christian Menefee

Harris County Attorney Christian D. Menefee announced a settlement of the county’s lawsuit against e-cigarette company JUUL Labs, Inc. over claims that JUUL deceptively marketed its products to children. The county received the second largest settlement for a local government in the nation.

“I’m proud of this outcome settling our lawsuit against JUUL. We’re bringing real money to the county to ensure we’re protecting our youth from e-cigarette use,” said Harris County Attorney Christian D. Menefee. “This case was always about reducing youth nicotine addiction in our communities. I want kids across Harris County to go on to live long, healthy lives. That’s one of many reasons why I plan to do everything I can to protect public health.”

In 2021, Harris County became the first governmental entity in Texas to file suit against JUUL. Harris County’s settlement is part of a global settlement with JUUL Labs, Inc resolving numerous cases brought by government entity plaintiffs, including school districts, cities, and counties. The distribution of Harris County’s settlement funds will be decided by Commissioners Court.

See here for the background. Googling around, I saw a news item from September about Juul settling with the state of Texas, which was part of a larger class action settlement, and a news item from December about a $1.7 billion settlement of over 5000 lawsuits nationwide. This was separate from all of those, which I confirmed with the County Attorney Office. I was also told that the settlement amount was $20 million, which was discussed at this week’s Commissioners Court meeting. And now you know what I know.

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In support of Crystal Mason

Hoping for the best.

The same month Tarrant County officials announced the creation of an election integrity task force, a group of 14 bipartisan prosecutors threw their weight behind an effort to acquit the woman at the center of a high-profile voting fraud conviction in the county.

Crystal Mason, a Tarrant County resident, was sentenced to five years in prison for casting a provisional ballot in the 2016 election. Mason, who was on supervised release for a federal felony, was ineligible to vote, and while her ballot was never counted, Tarrant County prosecutors charged her with illegal voting. Mason has maintained that she did not know she was ineligible and her case has gained national attention among the media and civil liberty advocates.

Now, Mason is appealing her conviction for a second time in front of the Second Court of Appeals in Fort Worth, after the state’s highest appeals court told those judges to reconsider their previous decision.

Their decision did not take into account whether Mason knew she was ineligible.

A bipartisan group of former state and federal prosecutors, organized by the States United Democracy Center, filed an amicus brief Feb. 14 in support of Mason’s appeal. Among the signees is Sarah Saldaña, former U.S. attorney for the Northern District of Texas and former director of U.S. Immigration and Customs Enforcement.

“I had this visceral reaction to the injustice manifested in the decision, No. 1, to prosecute, but also the ultimate conviction,” Saldaña said. “It’s obvious that this whole issue of intent was not charged in the jury charge. … That to me was very offensive, particularly as a former prosecutor, and particularly as the principal decision maker in North Texas, at the time when I was U.S. attorney.”

Mason’s intent is a key aspect of the amicus brief’s argument. The signees call her prosecution “outside the bounds of any reasonable exercise of prosecutorial power,” and point to wording in Texas’ illegal voting statute that requires voters have “actual knowledge” that they were committing a crime by voting.

Without enforcing the actual knowledge requirement, the signees argue Texas voters will be afraid to vote at all for fear of accidentally running afoul of voting laws.

“Ms. Mason’s prosecution sends the troubling message that casting a provisional ballot carries a serious risk, with a consequent chilling effect on the use of provisional ballots,” the prosecutors wrote. “This chill would likely disproportionately impact minority voters, who tend to cast more provisional ballots.”

See here and here for some background. There’s hope after that CCA ruling, but even if her conviction is overturned, Tarrant County could choose to try her again. And then there’s this:

Statewide, efforts by Republican lawmakers to make illegal voting a felony again are gaining steam. It’s currently a misdemeanor, after lawmakers passed Senate Bill 1 in 2021; the bill, among other things, lowered the penalty for illegal voting conduct.

Rep. Craig Goldman, R-Fort Worth, filed House Bill 397 to reverse that change. Sen. Bryan Hughes, who represents East Texas, filed a companion bill in the Senate, which was referred to the state affairs committee for review Feb. 15.

One of the Republican legislative goals for this session is to ensure there is a steady stream of Crystal Masons in the future. Overturning this conviction can’t do anything about that. Oh, and this is what actual voter suppression looks like. There are other ways to do it as well, but when it happens it’s very clear what it is.

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Tell me you have no evidence of voter suppression without telling me you have no evidence of voter suppression

Hilarious.

Houston furniture magnate Jim “Mattress Mack” McIngvale has launched a website in hopes of gathering evidence of voter disenfranchisement in Harris County’s November 2022 election.

The initiative follows the Gallery Furniture owner’s lawsuit filed last week accusing the Harris County Elections Administrator’s Office of refusing to turn over public records related to the election.

GOP lawmakers including Gov. Greg Abbott and Lt. Gov. Dan Patrick have called for Harris County to redo its November election based on claims of ballot paper shortages, though they have not provided any evidence or estimate of disenfranchised voters. McIngvale, who was a major donor supporting Republican candidates, including County Judge Lina Hidalgo’s opponent Alexandra del Moral Mealer, now appears to be searching for just that.

The website, called Hard to Vote, leads with a recorded message from McIngvale: “Do you believe you were denied the opportunity to vote in the November 2022 election? I’ve heard reports of machines that didn’t work, ballot shortages, voting locations suddenly closing. If you experienced difficulties or felt unjustly treated, we want to hear your story.”

Voters can fill out a form to share their voting experiences, upload evidence and agree to be filmed for “upcoming social media or commercial purposes.”

McIngvale said Tuesday he believes Harris County voters were disenfranchised based on reports of paper shortages, machine malfunctions and polling locations that did not open or close on time. He has spoken with plenty of those disenfranchised voters himself, he said.

“Customers come in and tell me that all the time,” McIngvale said. “They were turned away at one polling place and they gave up. A lot of them just went to another polling place. But a lot of them were disenfranchised by not having the first place open and ready to go like it should have been. It’s not that hard.”

I’m sure they all have tears in their eyes and call him “sir”, too. Not to be needlessly pedantic here – believe me, this is extremely needed pedanticism – but if they went to another location then by definition their vote wasn’t suppressed because they did in fact vote. This is why we have so many voting locations on Election Day, precisely because stuff sometimes happens. I’m sure all the lawyers for those whiny crybaby loser candidates will be thrilled to hear all this, as well as whatever other fanciful stories people contribute to your new fanfic site. You can see here for some background and here for Judge Hidalgo’s latest response to “the mattress guy” if you want. But really, a good horse laugh is all you need.

(Is it possible there are a few people who actually didn’t vote because of the paper-outage delays? Sure, maybe a couple. Anything is possible. It would be a shame if that happened, though I’d still want to know how long they waited before they gave up and why they didn’t or couldn’t go to one of the 750 other locations to vote, but it could have happened and it would be unfortunate and we would need to do better next time. It would also be nowhere close to “voter suppression”, especially on a scale that could have affected even the closest race. And the fact that the furniture dealer is openly looking for any such example, especially those that include people who did actually vote, shows just how desperate and ridiculous and baseless these Republican charges have been all along.)

Posted in Legal matters, Local politics | Tagged , , , , , , , , | 7 Comments

Texas blog roundup for the week of February 20

The Texas Progressive Alliance is recovering from the Presidents Day sales madness as it brings you this week’s roundup.

Continue reading

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It’s definitely Colin Allred Speculation Season

Keep the articles coming.

Rep. Colin Allred

In 2018, Colin Allred beat Republican Pete Sessions to flip a Dallas congressional district from red to blue.

Now the former NFL player and Hillcrest High School standout is considering challenging incumbent Ted Cruz for Senate in 2024, according to 11 Democrats and activists contacted by The Dallas Morning News. The move would put him in line to make history, or become the next candidate in a long string of Democratic Party disappointments.

Allred has been talking to strategists, donors and supporters across the state to determine if running against Cruz makes sense. At the same time, his media office has been in overdrive, distributing updates about his congressional work and stressing his bipartisan approach to problem-solving.

[…]

Other potential Democratic contenders include former San Antonio Mayor and former U.S. Housing and Urban Development Secretary Julian Castro and former state Rep. and Houston Mayor Sylvester Turner.

Allred worked under Castro at the Housing Department.

Already campaigning is businessman and former Midland City Council member John Love.

On the GOP side, Cruz told The Dallas Morning News last week that he would focus on running for reelection instead of another campaign for president.

See here and here for some background. I generally assume that these candidate speculation stories don’t happen without the potential candidate’s knowledge and blessing, if not actual participation. I don’t mean the “other potential candidates include” stuff, for which I’ll get to in a minute, but the “Person X is considering a run for Y office” stories, where there’s a main character and everyone but that main character talks about their political standing and potential future. Rep. Allred declined to comment for the story, as per the accepted norms and practices for this kind of thing (boilerplate statements about focusing on their job at hand, not thinking about next year, keeping all options open, etc etc etc, are within the bounds of allowed responses), but I feel confident saying he knew about it before he was contacted. He or someone employed by him is likely to have been the original source for the story. Doesn’t mean he will eventually run, just that this is what laying the groundwork for such a run often looks like.

As for the “other potential candidates” section, we know about Julian Castro, who among other things serves as the clear “just because you’re the one spotlighted in this kind of story doesn’t mean you’ll actually run” counterexample. I’ll need to see at least two more of those stories about Julian Castro before I’ll take them seriously. John Love announced his candidacy for Senate in 2020 but dropped out without filing. He has a campaign website this time, so if nothing else he should be mentioned in these stories going forward. I’ll need to check the Q1 campaign finance reports to see if he’s begun to raise money. As for Mayor Turner, that’s the first time I’ve seen his name mentioned in this context. I have heard that he was considering a run for SD15 in the event John Whitmire is elected Mayor, so maybe this is some confusion over that? I can’t see him doing this – he won’t have any time to campaign or fundraise before the end of the year, and especially if an Allred or a Castro is running that would be a huge disadvantage. I’ll be surprised if I continue to see his name connected to this race. But maybe I’m wrong, so leave a comment or send me an email if you know better.

One more thing:

Former Dallas County Republican Party Chairman Jonathan Neerman said Cruz would beat Allred. He said that Allred is largely unknown to most Texans and that Democrats aren’t in a position to boost his candidacy.

More Republicans vote in Texas statewide elections than Democrats, and the GOP is said by many consultants to have an advantage of over a million votes.

“If Colin were to call me and ask for my advice, I would say, ‘You’re in a safe seat. Build up seniority, and if the Democrats take back control, try to become a chairman,’” Neerman said. “I don’t think he has the ability to beat Ted Cruz on a statewide basis.”

I doubt Mr. Neerman reads this blog, and I would not take the word of a professional adversary in these matters, but that advice he’d give to Rep. Allred is basically identical to the case against his candidacy that I laid out in that Castro post above. If he were to ask me for my advice, I would never tell him not to run, but I would spell it out that way as the choice he has to make. We’ll see what he chooses.

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Paxton makes his plea to the Lege

It’s more accurate to say that one of his assistants pleaded for him while he mostly sat silent, but whatever.

The only criminal involved

Days after the Texas house speaker openly opposed using taxpayer dollars to settle a whistleblower suit against Attorney General Ken Paxton’s office, a top agency lawyer said avoiding the payout would only end up costing the state more.

“It’s ultimately in the interest of the state from a financial perspective” to pay the settlement now, Assistant Attorney General Chris Hilton told a panel of House budget writers. “Financially speaking, there is no upside for the state to this case; even total vindication at trial results in a significant expenditure.”

Hilton said the agency has already racked up $600,000 in legal fees fighting the lawsuit. The agency is required to use outside lawyers in the case because of the conflict of interest, which has driven up the cost, Hilton said.

[…]

Paxton, a Republican, was present Tuesday but deferred to his team for most answers.

State Rep. Jarvis Johnson, D-Houston, asked Paxton directly whether he would use his own campaign dollars. Hilton interjected, noting that the lawsuit is against the agency, not Paxton personally.

“There is no whistleblower case where any individual has paid anything because the individual is not liable under the terms of the statute,” Hilton said. He added, “Under the terms of the settlement, there is no admission of fault or liability or wrongdoing by any party.”

Under the state’s election code, Paxton is allowed to use campaign funds to cover his legal defense. Since he was sued in his official capacity, those costs are not considered a “personal use.”

It’s a different scenario than in 2016 when Paxton wanted to use out-of-state gifts to cover his legal defense in the ongoing securities fraud case against him. The Texas Ethics Commission at the time warned Paxton he would violate the law if he used those funds because the accusations in that case did not stem from his officeholder duties.

On Thursday, state prosecutors said the Department of Justice had transferred the most recent corruption case out of the hands of federal attorneys in Texas and into the Washington-based Public Integrity Section. The reason for the shift was unclear, though Paxton’s attorneys had requested it.

Tuesday’s budget hearing was the first time Paxton has faced lawmakers since the settlement was announced. Some House members seemed resigned about their options.

Texas Rep. David Spiller, R-Jacksboro, and Rep. Steve Allison, R-San Antonio, said the state seems to lose no matter if they pay now or after a hypothetical trial concludes.

“Even if you win, there is no ‘win,’” Spiller said, referring to how the state would still owe outside lawyers.

“We’re kind of in the proverbial rock and a hard place,” Allison said.”Either we pay $3.3 million now or pay far more than that either in additional legal expenses or (because of) an unfortunate result.”

State Rep. Mary González, an El Paso Democrat who chairs the subcommittee, questioned whether Paxton is acting in the public’s interest.

She noted Paxton has declined to represent some state agencies, a key duty of his office, leaving them to pay for outside legal counsel out of their own budgets and at an additional cost for taxpayers. An ongoing case by a conservative activist against the Texas Ethics Commission, for instance, has cost the state more than $1 million.

Hilton said that occurs only in a “tiny percentage” of cases, about 60 in the last year, most of which he said were because the agencies had asked for their own counsel. Others were because the statute did not allow the office to represent an agency, Hilton said, and a smaller amount were because a case conflicted with the state’s obligation to “uphold the Constitution.”

A lot of similarity to what the whistleblowrs’s attorneys were saying, though without any reference to their quest for justice against a crook, as that would have been super awkward. I’m beginning to wonder if any member of the Legislature is going to arrive at my proposal to pay off the settlement and then cut Paxton’s budget by a commensurate amount or if I’m going to need to hire a lobbyist to explain it to them. It’s not that hard, y’all! You can do it.

The Statesman adds a few extra bits.

Hilton argued the cost to taxpayers could exceed $3.3 million if the lawsuit were to continue, in part because the case is procedurally in the early stages, although “it has been pending for a while.” He said the discovery process has yet to begin and that undertaking is lengthy, intensive and costly.

“It strikes me that we’re kind of between the proverbial rock and a hard place in that we either pay the $3.3 million now, or pay far more than that, either in additional legal expenses or an unfortunate result,” said subcommittee member Rep. David Spiller, R-Jacksboro.

[…]

When asked by lawmakers Tuesday what would happen if the Legislature does not approve the settlement payment, Hilton said it’s “difficult to predict” exactly what the next steps would be.

“Because it’s pending litigation, I don’t want to get into too many details,” Hilton said. “Under the terms of the settlement, it is contingent upon all necessary approvals.”

[…]

On Tuesday, Paxton also asked House lawmakers for additional money in the next biennium to hire more staff and to offer competitive pay.

Paxton said in recent years the agency has faced increasing turnover due to staff leaving for other state jobs that in some cases can nearly double their salaries at the attorney general’s office.

Maybe part of the problem is that Paxton is a terrible manager in addition to being the kind of corrupt boss that eight of his trusted lieutenants felt the need to sue, I dunno. My advice to the Lege for how to handle this stands. At the very least please don’t give him any more money. Surely by now we have all the evidence we need that he can’t be trusted with it.

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The fentanyl vaccine

This is not actually new, but this story just came out and I hadn’t noticed the coverage before, so I’m catching up.

To combat the fentanyl epidemic in the United States, researchers at the University of Houston have created a fentanyl vaccine that could help prevent overdoses. They aim to test the vaccine in a human trial within the next year.

Fentanyl is a synthetic opioid drug that kills hundreds of Texans every year, according to the Texas Health and Human Services Commission.

The vaccine will need FDA approval before people can use it. According to Johns Hopkins University, that process can take five to 15 years, and sometimes longer. The process can be sped up during a public health emergency where no alternate treatments exist. The first COVID-19 vaccines were created, tested and given emergency use authorization by the FDA in under a year.

In a study published last year in the journal Pharmaceutics, the Houston researchers reported that their vaccine triggered production of antibodies against fentanyl in rats and decreased the amount of fentanyl in rats’ brains. The researchers’ vaccine received praise from Governor Greg Abbott, who visited the University of Houston last year to congratulate the team.

[…]

Doctors can prescribe maintenance medications like methadone and buprenorphine for those recovering from opioid addiction. These drugs are opioids, but they can reduce opioid cravings and withdrawal symptoms.

The effectiveness of these medications depends on how they’re made, the opioid being misused and access to the medications. Recovering patients can relapse after they leave treatment and are especially vulnerable to overdose deaths, said Colin Haile, a research associate professor at the University of Houston.

“Clearly, the medications that we have to address opioid use disorder and overdose are not working,” said Haile, who led the team that created the vaccine.

Haile’s team created a vaccine that could tell the human body to produce antibodies against fentanyl. If a vaccinated person consumes fentanyl, the antibodies could attach to the drug, preventing it from getting to the brain and inducing a “high” or potential overdose. The fentanyl would remain in the blood, eventually passing through the kidneys and out the body.

In the published study, Haile’s team said the vaccine successfully produced antibodies against fentanyl in rats. The vaccine also blocked one of the effects of fentanyl: pain relief. Compared to unvaccinated rats, vaccinated rats also had decreased fentanyl levels in their brains when fentanyl was administered 20 weeks after their first vaccination.

“The effect was pretty incredible,” Haile said. “I’ve never seen anything like this, ever.”

The vaccine produced antibodies that attached to fentanyl but not to methadone or buprenorphine, meaning that vaccinated people could potentially still take those medications to treat opioid addiction. The antibodies also did not bind to morphine or oxycodone, two other opioids.

Like I said, this isn’t new – UH put out a press release last November to tout the accomplishment. There are other vaccines in the research pipeline – this one wasn’t the first to be discovered, but it has some differences from the others out there. Researchers are going to put it into phase 1 human trials soon, with the goal of making the vaccine available to the public in the hopefully not-too-distant future. It sure has the potential to do a lot of good when it’s ready. Kudos to all for the work.

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What will it take to keep those ten appellate court benches we won in 2018?

As you may recall, Democrats won a ton of Appellate Court races in 2018. Ten of them, in fact, five each on the First and Fourteenth Courts of Appeals, the first such victories since winning a lone bench in 2008. These victories gave Dems a 5-4 majority on each court, and it seemed there would be more to come. We did (barely) win two of the four races in 2020, with one exceedingly close loss and one less close loss, but we went 0 for 4 this year. In 2024, all ten of those benches we won will be on the ballot again. As the title says, what do we need to do to hold onto them?

The appellate courts cover multiple counties. For the First and Fourteenth, those counties are Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington. I’m sure you can guess which of those favor Democrats and are needed for Team Blue to win. I’m going to look back at the four most recent elections to see if we can put some numbers on that.

I put all the county numbers for these races into a spreadsheet, which is my default starting move for a post like this, especially when I’m not exactly sure where I’m going with it. After a minute, I decided to go with the obvious, which was to separate the counties into those that are good for the Dems and those that are not, and see what that told me. We start with 2016. I think the methodology will be clear.

2016 bad counties – 105K to 112K
2016 Harris + FB – 22K to 67K

The “bad counties” are the eight red ones. What I did was add up the Republican and Democratic votes for each candidate in those races – there were four that year, as there were this year – and then took the difference. What you see above is the range for each, so the vote deficit for these counties goes from 105K to 112K. I’m just eyeballing everything and not being too particular about it, this is close enough for these purposes. I then did the same thing for Harris and Fort Bend counties, to see how big the Democratic surplus was in each race. Again, you can see the result.

Obviously, the Democratic candidates lost the four races. The closest they got was trailing by about 39K votes, and the farthest apart was about 89K votes. No big mystery here. The same is true for 2018, except with the exact opposite result:

2018 bad counties – 83K to 90K
2018 Harris + FB – 121K to 174K

Two things are different in 2018. One is that every Democratic candidate won Fort Bend County in 2018, by over 12K votes in each case. While Hillary Clinton carried Fort Bend County by 17K votes, downballot candidates didn’t do as well, and all four Dems trailed there by a little bit. The other difference is that the surplus in Harris and Fort Bend far exceeded the deficit from the eight “bad” counties, and all ten candidates won.

You might notice at this point that the range of outcomes in Harris plus Fort Bend is quite wide in both years, much wider than the range for the red counties. You may also recall the vast hand-wringing campaign about the scurrilous effects of straight-ticket voting in those years, in which Democrats swept Harris County. How awful it was for democracy that these swarms of Democratic voters were mindlessly hitting one button and putting all these non-judges onto our benches. If you don’t know or don’t remember all of the things I had to say about this line of thinking back then, you can probably surmise it from what I’ve just said here. The numbers tell the tale. ‘Nuff said.

2020 bad counties – 122K to 127K
2020 Harris + FB – 108K to 156K

You might have thought in looking at the numbers for 2016 and 2018 that a split result could occur, given the wide ranges. That’s exactly what happened in 2020, as noted above. I spent a lot of time obsessing over these four super-close races two years ago, and don’t have anything new to say. Go read those posts if you haven’t or if you don’t remember them.

2022 bad counties – 100K to 102K
2022 Harris + FB – 9K to 38K

And here we are for this year. You may note that now two elections into the no-straight-ticket-voting era, the range of outcomes in both sets of these counties is the smallest. Indeed, three of the four races were actually in the Dem +34K to +38K range, with one outlier. For whatever the reason fewer people split their tickets, even though they had no choice but to vote (or not) in every single race. Please take a moment to imagine me with a very smug look on my face.

Okay, we can move on now. The lesson we can learn from all this is that we need to maximize the Democratic vote in Harris County if we want to win these races. Not exactly rocket science, but the data is as clear as it could be. The cumulative deficit from the “bad” counties has been edging upward, but the Democratic potential in Harris County – even all by itself, though Fort Bend should be an asset as well – is more than enough to overcome it. Look, Biden won Harris County by 218K in 2020. MJ Hegar, who didn’t do nearly as well, still won Harris by 136K. Even in 2020, the two losing candidates would have won with Hegar’s margin.

Which brings me to the second point of interest, which is really hammering the message home about voting all the way down the ballot. I will show in another post that the undervote rate doesn’t correlate with partisan performance, at least in county judicial races, but with the appellate courts including all those Republican counties, it’s imperative to maximize those margins.

Again, that’s the case now as well. Beto won Harris County by 105K in 2022. With that margin, three of the four Dem candidates would have won by a couple thousand votes. It would have been a tossup for William Demond, I didn’t do the math more rigorously than what you see here, but he might have won. The potential was there.

Now, given the vast sum of money spent by wingnut richies to smear Democratic judges, it may be that was at least as big a challenge as undervoting was. I don’t have the data to make a judgment about that, but the possibility certainly exists. All we can do about that is fight fire with fire. I don’t think we’ll face that kind of concentrated spending in 2024, but it will be a Presidential year, so anything goes.

Two other things can make a difference as well. One is Fort Bend, which was positive for Dems in 2018 and 2020, but not in other years. Dems were down 2K to 7K in 2016, and down 2K to plus less than 1K in 2022. In the two good years, Dems carried Fort Bend by over 10K votes in each race. That helps, and I have hope it can be better than that in 2024.

Of the bright red counties, six of them are small, and while they have steadily become redder over the years, the net effect is fairly small. The two big red counties are Brazoria and Galveston, and they have acted distinctly differently over the last few elections:

Brazoria:

32K to 36K in 2012
33K to 35K in 2016
33K to 35K in 2020

23K to 26K in 2018
25K to 26K in 2022

I went back to 2012 to add in another Presidential year data point. We have held our ground in Brazoria, which is educated and suburban enough to show a few tiny signs of moving a bit blue recently, at least at the top. I would suggest that it’s worth the effort to put some money into the Dem-friendly areas of Brazoria in 2024, for the purpose of squeezing out as many Dem votes as possible. If we can at least keep the deficit here from growing – or better yet, if we can shrink it be a couple thousand votes – we can take a bit of pressure off of Harris and Fort Bend.

At the other end of the scale is the problem known as Galveston:

23K to 27K in 2012
33K to 36K in 2016
41K to 42K in 2020

25K to 28K in 2018
32K to 34K in 2022

Galveston keeps on getting redder, and it’s big enough and growing enough for that to have an effect. I don’t have any great insight here, nor do I have much confidence that Dems could take action to mitigate against this. Maybe I’m wrong about that, I don’t know. I just want to point out the problem, so we know what we’re up against.

So there you have it. The path to retaining these judges is there. We know what to do, and we know where the opportunities and dangers are. It’s a matter of execution from here.

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Why should Ken Paxton’s whistleblowers suffer for his sins?

That’s the question their lawyers ask in a DMN op-ed.

The only criminal involved

The whistleblower suit is currently pending at the Texas Supreme Court on appeal of an esoteric argument made by the attorney general. Recently, the Office of the Attorney General and the whistleblowers reached a settlement where the whistleblowers would receive $3.3 million to compensate them for lost wages, compensatory damages and attorneys’ fees incurred in the 2-year-old court battle.

The Texas Legislature must now decide whether to approve payment of the settlement. If the Legislature does not approve payment, the case will return to court, taxpayers will pay millions more in attorneys’ fees and even more for damages and plaintiffs’ attorneys’ fees if, as expected, the whistleblowers win a jury verdict. The attorney general’s office has already paid its private lawyers approximately $500,000 in attorneys’ fees and the parties have yet to even conduct discovery because of the appeal.

Some have criticized the settlement as “hush money” or argued that it would prevent the public from learning the details related to the accusations. This is incorrect. The whistleblowers have already provided tremendous detail in their 129-page lawsuit, which is a public document. Also, the settlement does not prohibit the whistleblowers from discussing the case or cooperating with law enforcement.

The suggestion that the whistleblowers should be forced to continue their lawsuit so discovery in the suit can be used to investigate the attorney general’s conduct is also unfair. The whistleblowers did their part. They reported illegal conduct to law enforcement and, in return, lost their careers. It is law enforcement’s job to investigate these allegations, which it appears they continue to do. Likewise, the Legislature has tremendous authority to demand documents and testimony from Paxton and those in his office, but it has not.

Why should the whistleblowers, who have already sacrificed their employment and already spent more than two years in court, be asked to spend even more resources and time to investigate the alleged conduct, when the FBI and the Texas Legislature have a mandate and countless resources available to do so?

See here and here for some background. The assertion about the Lege holding Paxton accountable aside – you probably heard my guffaw from the comfort of your home – they do made a decent point. That said, it is well within the Lege’s purview to approve the settlement and then cut the AG’s budget by an equal amount, which is what I would argue. We’ve heard some tough talk from some legislators and from Speaker Phelan. It’s all talk for now, and their track record isn’t too encouraging. But there is a clear path that does honor what the whistleblowers did – and by the way, y’all should keep on talking about it, in lots of detail and in front of crowds, as often as you can – while still exerting a modicum official disapproval on the waste of space known as Ken Paxton. It’s on the Republicans in the Lege to take it.

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Some rocky times for Texas’ cryptocurrency miners

Their boundless optimism never wavers, however.

Cryptocurrency miners began flocking to Texas in the past five years, drawn by the state’s low energy costs and relaxed regulations. As they began setting up shop, lawmakers and local officials were touting the boom as an economic lifeline for the state’s struggling rural communities where many landed.

Nearly 30 crypto mines set up shop in Texas, big data centers that consume tremendous amounts of energy to run banks of computers humming away to mine new bitcoins.

But now, many — if not most — are struggling to stay afloat amid the plummeting value of the commodity they create and soaring electricity costs.

“Bitcoin miners are operating under the very slimmest of margins right now,” said Lee Bratcher — president of the nonprofit Texas Blockchain Council. “There are not many bitcoin miners that are making profits similar to what we would have seen. The bitcoin mining industry, as a whole, is tightening the belt.”

That’s a big turnaround from 2021, when bitcoin’s value peaked at $68,000 and miners collectively earned more than $60 million a day, according to data from Blockchain.com. By the end of 2022, the value had plummeted to less than $17,000 — and miners’ take was $10 million a day. As a result, mining companies that borrowed millions to set up during the bull run now are facing uncertain futures. Several have gone bankrupt. Others are trying to sell off assets. Some have started returning equipment to bankers who financed it.

Shares in Riot Platforms Inc., which operates the state’s largest bitcoin mine northeast of Austin, are down about 60 percent from this time last year. They closed Thursday at $6.13.

Still, many in the crypto mining industry and those who support it remain optimistic it can weather the downturn, saying that it provides a side benefit for Texas as a means of managing the state’s electrical grid, which can also be an occasional source of substantial revenue for the mining companies.

[…]

[Bratcher] estimated that bitcoin mining created about 2,000 direct and 20,000 indirect jobs statewide.

“It’s still contributing to the Texas economy at a pretty significant clip,” he said. “The miners are still following through on their aspirations to be good citizens and good corporate citizens.”

Opponents, though, have decried crypto miners as profiteering on the state’s electrical grid while generating a dubious product.

Ed Hirs, an energy fellow and economics lecturer at the University of Houston, said crypto enables bad actors to avoid local and state taxes and hide activities when engaging in criminal activities. And bitcoin miners, he said, have been striking moneymaking deals with the state’s struggling power grid to buy energy at low rates to make bitcoins.

“They remind me of used car salesmen,” he said during a recent interview.

[…]

Murtuza Jadliwala, an associate professor who taught an undergraduate class on cryptocurrency at the University of Texas at San Antonio, said he supports research into the “groundbreaking” blockchain technology — a digital ledger that enables bitcoin by recording the history of transactions. But he’s not a fan of bitcoin itself.

“Do we need cryptocurrencies in our life? I don’t think so,” he said. “There are already good forms of currencies that humans have gotten used to.”

As part of his academic research, Jadiwala has interviewed state comptrollers around the nation to assess economic arguments for bitcoin mining.

“From the states’ perspective, I presume bitcoin mining can be profitable as a business,” he said. “In Texas, we already have pollution and a climate crisis, and on top of it you’re creating this additional pressure on a delicate energy ecosystem. Is it worth it? It might have been worth it if it’s basically doing something good for humanity. I personally don’t see that.”

The Texas cryptominers’ problems mirror those elsewhere, which I hope isn’t too much of a surprise to anyone. But the fall of FTX a few months ago, which is one cause of the current woes but by no means all of them, didn’t dampen anyone’s enthusiasm, so there’s no reason to believe that the “we just have to ride this out” mentality is going anywhere. Much of the growth of cryptomining in Texas has been in rural areas, and I continue to wonder what will happen if the gravy train derails. Maybe if things slow down that will answer some of the questions about electricity use that have been raised. Until then, I’m just going to keep an eye on this. I remain highly skeptical but oddly fascinated by the whole thing.

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Fifth Circuit again takes Paxton off the hook for testifying in abortion funds’ lawsuit

It’s like deja vu all over again.

The only criminal involved

Texas Attorney General Ken Paxton will not have to testify in court as part of a lawsuit over whether abortion funds can help people access the procedure in states where it’s still legal.

A three-judge panel of the Fifth Circuit Court of Appeals on Tuesday overruled an order from U.S. District Judge Robert Pitman for Paxton to appear, finding that he should have first ruled on Paxton’s motion to dismiss and that plaintiffs had not proven “exceptional circumstances” existed that would require his testimony. Paxton has argued the court should toss the suit because he has sovereign immunity, a legal principle that protects state officers and agencies from lawsuits.

[…]

Attorneys general rarely testify, as their office’s lawyers are typically able to explain the high-ranking official’s viewpoint and legal argument.

In its ruling Tuesday, the panel of Republican-appointed judges sided with Paxton, who had argued that it would be unduly burdensome for him to testify and that he did not have any unique knowledge of his office’s enforcement policies.

“The fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions,” the panel wrote in its ruling Tuesday, referencing Paxton’s public statements. “It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.”

If this sounds familiar, it’s because the Fifth Circuit made a basically identical ruling in September. I was puzzled about the reason why this was litigated again, but a link in this story tells me that the district court judge had ordered Paxton to testify a second time, a couple of weeks after the Fifth Circuit ruled initially. I had just missed that story.

My reaction this time is the same as last time, which is that this doesn’t sound unreasonable, but as there’s every reason to be deeply suspicious of the Fifth Circuit I’d like to see an actual lawyer tell me that it’s reasonable, so that I don’t feel like a chump. Anyway, I guess the bottom line is that nothing much new has happened with this lawsuit.

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HISD facing budget cuts

Gonna be a rough couple of years.

Amid declining enrollment and a looming $215 million deficit, the Houston ISD is eyeing budget cuts that would slash funding to the central administration and cut campus budgets, especially at high schools.

The initial cuts would cover about $60 million of the deficit in the proposed $2.28 billion budget. School closures may also be on the table in the long term — not in the upcoming school year — to make ends meet, according to discussion at a budget workshop this week and district documents. Thursday’s meeting was the first in a series to be held before the budget is adopted in June.

For years, the district has relied on its savings, which currently stand at $660 million, to cover deficits. But that won’t work going forward, officials say.

School districts’ funding is allotted from the state based on enrollment and attendance rates, both of which have been drastically dropping in HISD amid the pandemic. The district started this year with roughly 186,000 students, an 11 percent decrease from its pre-pandemic 209,309, according to Texas Education Agency data.

The district can’t continue with the status quo and needs to move with a sense of urgency, Superintendent Millard House II told the board.

“We’ve heard it before: There was a loss of 13,000 students in one year, the first year since COVID,” House said. “That’s a major piece of why this deficit has continued to grow. We’re here to address it.”

Improving attendance is one way HISD can increase revenue, but that wouldn’t have a major impact on the budget until fiscal year 2025, House said.

The HISD board also has the option to ask voters to approve a 3-cent property tax rate increase, which would generate about $65 million in additional revenue. However, it’s unlikely they would be able to hold an election in time for budget approval, House said. The district has also had pause in asking for a bond, out of fear a possible state takeover would erode support.

One option that has been top of mind for many parents during budget talks is whether there were be school closures, something the superintendent has hinted at in the past. There are no school closures or consolidations planned for the next academic year, but it is a tool that could be used in the future, HISD officials said.

Let’s be clear about two things. One is that nobody is going to like this, for the excellent reason that it sucks. None of the solutions, no matter how sensible and reasoned, will be well-received. Trustees may lose election over it, and Superintendent House may have a hard time holding onto his job, assuming he’ll want to stick it out till the end of his contract. I can’t stress enough how much this is going to suck.

And two, if HISD is now permanently at a lower level of enrollment, then the truth is that we almost certainly need to close and consolidate some campuses. We don’t have to rush into that – by all means, do everything possible to get students back and market to new students – but if the district really now has ten percent fewer students, then we have too much capacity and we need to scale back. Again, this sucks and everyone will hate it. No one wants their school to go away. I sure wouldn’t. Whatever we can do to minimize this reality, we should. But numbers don’t lie. And these numbers are telling us things we don’t want to hear. Let’s say it one more time: This sucks.

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City donates to Winter Street relief

Good to see.

Nearly two months after dozens of artists saw their work and gallery spaces burnt away, the city of Houston offered a step toward recovery.

Mayor Sylvester Turner on Thursday announced that the city would donate $250,000 toward recovery efforts at the Winter Street Studios, which in December was destroyed, allegedly by an arsonist targeting one of the artists who worked there.

“I am so, so sorry for what happened.” Turner said. “To lose a lifetime’s worth of your artistry, hard work and livelihood is a hard pill to swallow, and the community and I will continue to rally around you as you move forward.”

The money was donated to the Houston Arts Alliance’s disaster recovery fund. While giving the check, Turner challenged other Houstonians to donate to recovery efforts and match the city’s donation.

“When we have faced tragedies in all different walks in our lives, this city has always responded,” Turner said. “These artists are Houstonians, and they are valued members of our city and our community. We want their work to be demonstrated and shown and showcased.”

See here and here for the background. Good for the Mayor and good for the city. I too would encourage you to make a contribution to the Houston Arts Alliance relief fund if you can. Every little bit helps.

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Weekend link dump for February 19

“A new study examines the huge amount of misinformation being disseminated by a small but popular group of political podcasts. In particular, researchers found that claims of election fraud rose by over 600% in the days leading up to the Capitol insurrection, with the increase concentrated, unsurprisingly, among conservative media.”

“A document the NSF released in late August [detailed] a decades-long history of pervasive sexual harassment and assault at Antarctic research stations.”

“I just bought a house just past Girard in Brewerytown, and I took a walk around the street and I ran smack into Taney Street. I was just like, ‘There’s no way that this is named after who I think it’s named after.’”

“The designs for the 2024 American Women Quarters will be released in mid-2023.”

“Where did Superb Owl come from?”

“The Twilight of the Deficit Hawks”. Good riddance.”

“Taken aback by Florida’s attacks against its new AP African American studies course, the College Board late Saturday denounced the state Department of Education, saying it used the course to advance a politically motivated agenda.”

RIP, David Jolicoeur, a.k.a. Trugoy The Dove, member of De La Soul.

“And the weekend shootdowns coming so soon after The Balloon risks giving rise to assumptions about the new objects—that they are foreign; that they are a threat—that news coverage can easily amplify (even implicitly) if we’re not careful. The shootdowns are clearly a news story because, well, the things got shot down. And we’re right to request more certainty from officials. Until we get it, though, the story can’t be bigger than one of uncertainty.”

“A [judge’s] ruling citing [Oklahoma’s] parentage act could have substantial implications for marriage equality and LGBTQ+ parental rights nationwide, legal experts warn.”

RIP, Jesus Campos “Jesse” Treviño, renowned San Antonio painter and muralist.

RIP, Ann Hodges, journalist who established the Houston Chronicle’s TV beat and a founding member and two-time President of the Television Critics Association.

“There was a time when shame was a powerful force in American politics. That time is not now.”

“Although the shadow of a major cyberattack with international consequences has loomed over Europe since [Russia invaded Ukraine], a week before the first anniversary of the Kremlin’s assault, cyberwarfare still has not played a significant role in the conflict.”

“A group of more than 170 trans, nonbinary, and cisgender contributors to the New York Times published an open letter on Wednesday, condemning the paper’s coverage of trans issues — particularly its reporting around trans youth and gender-affirming healthcare.”

RIP, Raquel Welch, movie star and iconic sex symbol. These celebrity tributes to her are lovely.

Lock them up.

“Tesla recalls 362,758 vehicles, says Full Self-Driving Beta software may cause crashes”.

RIP, Tim McCarver, longtime MLB catcher and Hall of Fame broadcaster.

“Huge day in the Dominion Voting Systems v. Fox News defamation case, with both sides filing summary-judgment motions. Dominion’s version is a nearly 200-page document bursting with text messages from network talent in the tense days following the 2020 presidential election.” You should read the Introduction section of their filing, it’s 14 pages, easy to read, and incredibly damning.

RIP, Stella Stevens, actor best known for Girls! Girls! Girls! and The Nutty Professor. A rough week for classic Hollywood glamour, this was. Mark Evanier adds a few words about Ms. Stevens.

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So will the Lege pay off Paxton’s whistleblowers or not?

It’s maybe a bit more complicated than I thought at first.

Always a crook

Texas House Speaker Dade Phelan says he is against using taxpayer money to pay Attorney General Ken Paxton’s $3.3 million settlement agreement in a whistleblower lawsuit filed by four former employees.

In an interview with CBS DFW on Wednesday, Phelan said it would not be “a proper use of taxpayer dollars” and that he does not anticipate that the $3.3 million cost will be included in the House budget.

“Mr. Paxton is going to have to come to the Texas House,” Phelan said. “He’s going to have to appear before the appropriations committee and make a case to that committee as to why that is a proper use of taxpayer dollars, and then he’s going to have to sell it to 76 members of the Texas House. That is his job, not mine.”

Lt. Gov. Dan Patrick, who presides over the Texas Senate, has so far remained silent on the issue. Patrick’s office did not respond to an American-Statesman request for comment Thursday.

[…]

In a statement released Friday, Paxton said he agreed to the settlement to limit the cost of continuing the litigation.

“After over two years of litigating with four ex-staffers who accused me in October 2020 of ‘potential’ wrongdoing, I have reached a settlement agreement to put this issue to rest,” Paxton wrote. “I have chosen this path to save taxpayer dollars and ensure my third term as Attorney General is unburdened by unnecessary distractions. This settlement achieves these goals. I look forward to serving the people of Texas for the next four years free from this unfortunate sideshow.”

The whistleblowers filed the lawsuit against the Office of the Attorney General, not Paxton personally, so the Legislature will have to decide whether or not to appropriate public money to pay the bill.

See here for the background and my well-earned skepticism that the Republican legislature would ever hold Ken Paxton accountable for anything, and here for the original story. Before we get into the details, there’s this to consider.

Attorneys for four former employees who accused Attorney General Ken Paxton of corruption urged lawmakers on Friday not to oppose their $3.3 million settlement — which must be approved by the Legislature because it’s being paid out with taxpayer money.

The attorneys for Blake Brickman, David Maxwell, Mark Penley and Ryan Vassar — all former top deputies to Paxton in the attorney general’s office — said their clients “courageously reported what they believed to be corruption and put the investigation in the hands of law enforcement where it belongs” and were now asking lawmakers to back their efforts to report wrongdoing.

Rejecting the settlement could discourage others from coming forth to report wrongdoing in state agencies in the future, they said.

“No Texas legislator should oppose these whistleblowers’ hard-fought claim for compensation to which they are entitled under the Texas Whistleblower Act,” the attorneys wrote. “State employees cannot be expected to report government corruption in the future if they know the Legislature won’t back their rights under the statute it passed for the very purpose of protecting them.”

[…]

The settlement agreement was announced last Friday and would include the $3.3 million payments to the four employees who were fired and lost wages after reporting what they believed to be Paxton’s crimes. It would also include an apology from Paxton, the retraction of a news release that called the former deputies “rogue employees” and a statement that neither side admits fault in the case.

But the proposed settlement has garnered some opposition from the public and lawmakers because it would be paid out of state funds. Budget writers in the Senate, like Dallas Democrat Royce West, have also expressed skepticism about the agreement.

Under the Texas Whistleblower Act, plaintiffs are allowed to sue the employing agency where the retaliation happened, but not a specific employee in their personal capacity. That is why the payment would be paid out of state funds and not Paxton’s personal funds.

In their statement, the attorneys told lawmakers that the former employees had unfairly lost their jobs and been smeared by Paxton in news stories for reporting what they believed to be serious crimes.

On Thursday, the Supreme Court of Texas, which had been considering a Paxton appeal to the whistleblower suit, put the case on hold to give the parties time to finalize the agreement. The parties have until April 3 to figure out whether lawmakers will agree to the settlement and must notify the court about any changes in the proceedings.

While I could be persuaded that some number of Republican legislators might be a bit low on patience with Paxton, the four whistleblowers will be much more compelling to them. They were all conservative Republicans in good standing themselves, and agreeing to a settlement does sweep this contentious and embarrassing matter under the rug. If they have to take it to court and eventually win, the price tag will be much higher, and as before the state would be on the hook for it. As far as that goes, from a risk management perspective, approving the settlement makes sense.

That said, I don’t see why the Lege has to appropriate an extra $3.3 million to the AG’s office to pay it off. I do think they are well within bounds to appropriate whatever they would have without this, and tell Paxton to figure out his budget on his own. If that means he has to make some uncomfortable choices, that’s his problem and the consequences of his own actions. I think Speaker Phelan has the right idea here, but it wouldn’t hurt to spell it out to the members who might think that they have to explicitly cover this cost. The budget for the AG’s office will have more than enough funds to cover this check. Ken Paxton can do the work to make it happen. That’s the best way forwawrd.

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Three stories on Uvalde and gun control

First, a story about locks and why an obsession with locking school doors is not really going to improve safety.

In the aftermath of school shootings like the one in Uvalde, what can get overlooked is basic: Schools need doors that work and don’t require special knowledge or keys to secure; they need locks that can be accessed from inside classrooms; and a system for accessing master keys swiftly when minutes matter.

The day of the Robb Elementary School shooting, a teacher had propped open the west exterior door of the school’s west building—added to the school campus 23 years ago—to get food from a colleague, when she saw the shooter heading toward the building. She slammed the door shut, according to the teacher’s attorney, Don Flanary. The door should have kept the shooter out—or at least delayed his entry. It didn’t. Contrary to school policy, all three of the west building’s exterior doors were unlocked that day.

The west building’s exterior doors weren’t the only problem on May 24. Several of the classroom doors had problems latching, including room 111—the classroom through which the shooter “most likely” entered, per the Texas House of Representatives investigation report. KENS5 further reported that the door’s bolt didn’t fit its frame. In addition, Texas Department of Public Safety Director Steven McCraw said that the strike plate that allows the door to latch was damaged.

Whatever the cause, securing the door required extra effort to ensure the latch engaged. Room 111 was not the only classroom whose door had problems. The fourth-grade teacher in room 109 testified in the Texas House report that she also “slammed [her] door shut because otherwise the lock would not [otherwise] latch.”

According to the Texas House report, Arnulfo Reyes, the teacher in Room 111, had alerted school administrators multiple times about the issue with the door prior to May 24. Yet a work order was never issued nor was there documentation of Reyes’ complaint in Robb Elementary maintenance records.

[…]

Part of the reason doors were propped open or left unlocked was because of a key shortage. The manufacturer had discontinued production of the door locks used at Robb; the school district had acquired a supply of key blanks, but those were gone by May 2022, Uvalde CISD Maintenance & Operations Director Rodney Harrison said in the Texas House report. Because of the key shortage, substitute teachers were told to use magnets and other methods to get around the locks in violation of school district policy.

Reading this story, and because I have a cybersecurity mindset, reminded me of two things. One is that there’s always a tradeoff between security and ease of use. Think about passwords. People use simple passwords and reuse the same password on multiple systems and fail to enable two-factor authentication because it’s easier that way, and because there’s a big price to pay for forgetting a password and getting locked out of an account or application that you really need. Finding shortcuts and conveniences and workarounds is human nature. You can spend a ton of money on fancy security systems – the story talks about how much money school districts have had to spend, usually via bond issuances that can be hard to convince voters to support, to meet new state requirements for physical security in schools. But if these systems don’t take the human factor into account, a lot of that money is wasted.

And two, no single security measure is ever sufficient on its own. This is why effective cybersecurity for an enterprise network is all about multiple layered, redundant, overlapping defense mechanisms. We expect there to be gaps and failures and weaknesses, which is why there are backups in place. You can “harden” schools all you want, but you can’t make them safe until you address the gun problem, and that’s something our Legislature just won’t do as things stand now.

It has become a mournful pattern. Following mass shootings, lawmakers in many states have taken stock of what happened and voted to approve gun control legislation to try to prevent additional bloodshed.

In Colorado, the Legislature passed universal background checks in 2013 after a shooter at an Aurora movie theater killed 12 people. After 58 people were shot dead during a 2017 concert in Las Vegas, the Nevada Legislature passed a red flag law that allows a judge to order that weapons be taken from people who are deemed a threat. And in Florida in 2018, then-Gov. Rick Scott signed a bill that raised the minimum age to buy a firearm to 21 after a teenager with a semi-automatic rifle opened fire at a Parkland high school, killing 17 people.

But not in Texas.

In the past six decades, the state has experienced at least 19 mass shootings that have killed a total of nearly 200 people and wounded more than 230 others. Yet state leaders have repeatedly batted away measures that would limit access to guns, opting instead to ease restrictions on publicly carrying them while making it harder for local governments to regulate them.

As the state Legislature convenes for the first time since the Uvalde school shooting last May, lawmakers have once again filed a slate of gun control bills. If history is an indicator, and top legislative leaders predict it will be, they are unlikely to pass.

An analysis by ProPublica and The Texas Tribune of hundreds of bills filed in the Texas Legislature over nearly the past six decades found that at least two dozen measures would have prevented people from legally obtaining the weapons, including assault rifles and large-capacity magazines, used in seven of the state’s mass shootings.

At least five bills would have required that people seeking to obtain a gun undergo a background check. Such a check would have kept the man involved in a 2019 shooting spree in Midland and Odessa from legally purchasing the weapon because he had been deemed to have a mental illness.

Seven bills would have banned the sale or possession of the semi-automatic rifle that a shooter used to kill dozens of people at an El Paso Walmart in 2019.

And at least two bills would have raised the legal age to own or purchase an assault weapon from 18 to 21 years old, which would have made it illegal for the Uvalde shooter to buy the semi-automatic assault rifles.

A state House committee that investigated the Uvalde massacre found that the shooter had tried to get at least two people to buy a gun for him before he turned 18 but was unsuccessful. Immediately after his birthday, he purchased two AR-15-style rifles and thousands of rounds of ammunition, which he used to kill 19 students and two teachers at Robb Elementary School.

“If that law had been 21, I guarantee you he would have continued to be frustrated and not be able to obtain that weapon,” said state Rep. Joe Moody, a Democrat from El Paso who served as vice chair of the House committee.

It’s funny, in a bitterly ironic and painful way, that the first line of argument advanced by the legislative gun-huggers and the paid shills they listen to is that this one specific gun control law would not have stopped that one particular mass shooter, so therefore all gun control laws are useless. Yet there they are in the Lege going back to the same “harden the schools” well, time and time again. It takes a comprehensive approach, but the Republicans just won’t allow it.

Despite that, the work continues.

As a new legislative session kicks into gear, [Rep. Tracy] King is working on a bill that would increase the age limit to buy semi-automatic rifles from 18 to 21. The Uvalde gunman had tried to get at least two people to buy him firearms before he turned 18. Days after his 18th birthday, he purchased two AR-15-style rifles before invading the school and targeting students and teachers. In August, Uvalde residents and relatives of the shooting victims protested at the Capitol, calling on lawmakers to raise the age limit to buy the kind of firearms the Robb Elementary gunman used.

“In this particular case, that guy had tried to buy a gun,” said King, who previously wouldn’t support the legislation he plans to champion for his constituents. “It sure might have made a difference.”

Still, King’s legislation is a bold proposal in the state that leads the nation in gun sales and whose lawmakers have steadily loosened firearm restrictions amid eight mass shootings in 13 years. And it’s coming from a Democrat who previously voted to allow people to carry a handgun without training or a license. King hasn’t yet filed his bill, though other lawmakers have filed similar pieces of legislation this year.

Gov. Greg Abbott has dismissed the idea of raising the age limit as unconstitutional. In December, Texas dropped a fight to protect an existing state law that required people who carry handguns without licenses to be 21 or older after a federal district judge said it violates people’s Second Amendment rights. And Texas House Speaker Dade Phelan has said a proposal such as King’s lacks the votes to pass the lower chamber. But Phelan also said that “will not prevent a bill from being discussed and being debated.”

King knows he faces an uphill battle. But he’s also committed to trying, after spending nearly eight months helping folks — some of whom he knew before the tragedy — grapple with a staggering amount of loss.

“We have to go in it with our eyes open,” he said during a recent interview in his Texas Capitol office. “It’ll be a challenge. It’ll be a difficult conversation for a lot of people.”

King isn’t the only lawmaker who represents Uvalde and is pushing to limit access to semi-automatic rifles. State Sen. Roland Gutierre, a San Antonio Democrat whose district includes Uvalde, has already filed a bill in the Senate that would address the same issue.

Gutierrez has publicly criticized the law enforcement response, Texas’ loose gun laws and officials who have withheld information about the investigations into the shooting. Gutierrez has also filed legislation that would create robust mass shooting response training for all public safety entities and improve radio communication between certain agencies.

“I’m for Tracy’s bill, I’m for my bill, I’m for anybody’s bill if a Republican wants to come up and have a bill that raises the age limit on long guns right now to 21,” Gutierrez said. “We’re not taking anybody’s guns away. We’re regulating guns for what I would argue are minors, just like we do alcohol, just like we do cigarettes in Texas.”

I greatly respect what Sen. Gutierrez has been doing, and I’m glad to have Rep. King on board. I’ve also seen this movie before and I know how it ends. You know what my prescription for this problem is. If Gutierrez and King can change a few minds along the way, that will help. We have a long way to go.

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The Evergreen Negro Cemetery

Wow.

City and METRO officials have discovered 33 burial sites, including three that appear fully intact, near a historic Black cemetery on Lockwood Drive, which the city apparently missed when it tore through the site to expand the street in the 1940s and ’60s, Mayor Sylvester Turner said Monday.

The remains were discovered in the esplanade that was installed between the lanes during the Lockwood expansion, which split the Evergreen Negro Cemetery in two and caused it to languish until a nonprofit restored it in the 1990s. The Fifth Ward cemetery includes remains of Buffalo Soldiers, the first Black police officer killed in the line of duty, and World War I veterans.

Turner said it was a “concerning and disappointing” discovery. It was one thing, he said, for the city to desecrate the cemetery in the first place by running infrastructure directly through it in the mid-20th century, but it appears Houston officials and contractors also failed to account for all of the bodies that lay there. Now, he said, it is up to the city to right that wrong.

“We owe it to those who were buried here and, quite frankly, to those who have yet to come, to remember these families and give them a final resting place with dignity and respect,” Turner said. “It is unfortunate we are having to address this in 2023.”

[…]

The city initially expanded Lockwood Drive in the 1940s, bisecting the cemetery. In the 1960s, it widened it further to include a median between the lanes at Market Street, Turner said. That work included moving hundreds of bodies and burial sites, and the city promised descendants it would move all of the bodies to the cemetery’s remaining sites.

Workers from the city and the Metropolitan Transit Authority of Harris County found the remains as they prepared for work on the University Line, a new bus rapid transit route that will follow along much of Lockwood. The beginning stages of that work included an archaeological investigation, which led to the discovery.

Thirty of the 33 sites have what officials called “burial remnants” — coffin bottoms and other hardware, tiny fragments of bones — that indicate they were exhumed during the original work in the mid-20th century, said Mindy Bonine, a consultant from AmaTerra Environmental, who was the lead archaeological investigator on the project.

Three had “significant” remains, indicating they had been missed altogether and never exhumed or properly moved. Workers protected and reburied them until they could plan how to move them respectfully, Bonine said.

Turner said officials now will work with Project RESPECT, a nonprofit group that has worked since the 1990s to rehabilitate and maintain the historic cemetery, to do so. Metro Chairman Sanjay Ramabhadran said the transit agency would halt all work in the area, ensure the remains are respectfully moved and reinterred, and place a monument in the esplanade to recognize the significance of the site.

I’m glad that these remains were discovered before more damage could be done to them, and I’m glad they will be handled with care. May they rest in peace. Go read the rest, and read the earlier story about the origins of Project RESPECT. And maybe tell a Republican legislator that this history is worth teaching in our schools.

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Paxton federal corruption probe moved to DOJ

This is a little confusing at first, but it has some good news in there.

The only criminal involved

Justice Department officials in Washington have taken over the corruption investigation into Texas Attorney General Ken Paxton, removing the case from the hands of the federal prosecutors in Texas who’d long been leading the probe.

The move was disclosed in a statement by state prosecutors handling their own case against Paxton. It’s the latest development in the federal investigation into the attorney general, who came under FBI scrutiny in 2020 after his own top deputies accused him of bribery and abusing his office to help one of his campaign contributors, who also employed a woman with whom Paxton acknowledged having had an extramarital affair.

The investigation of the three-term Republican is now being led by the Justice Department’s Public Integrity Section, which prosecutes allegations of official misconduct against elected leaders at the local, state and federal level. The U.S. attorney’s office in Texas was recently recused from the complex case after working on it for years — an abrupt change that came within days of Paxton agreeing to apologize and pay $3.3 million in taxpayer money to four of the former staffers who reported him to the FBI.

State prosecutors working on a separate securities fraud case against Paxton — Brian Wice and Kent Schaffer — said in a statement to The Associated Press on Thursday that they were notified of the move. They referred all questions to the Justice Department, which declined to comment.

It’s not known whether Paxton will face charges, although federal investigators in Texas who had worked the case believed there was sufficient evidence for an indictment, according to two people familiar with the matter who spoke to the AP on condition of anonymity because they were not authorized to discuss the ongoing probe.

It was not immediately clear what prompted top Justice Department officials to recuse the federal prosecutors in West Texas but the move was pushed for by Paxton’s attorneys. One of his defense lawyers, Dan Cogdell, said Thursday that he’d previously appealed to agency officials to take the case out of the hands of the local U.S. attorney’s office, which he said had “an obvious conflict” because of the overlapping allegations and investigations that led to the probe of Paxton.

Eight of Paxton’s senior staff accused him of crimes in 2020 after the attorney general hired an outside lawyer to look into an Austin real-estate developer’s claims of wrongdoing by FBI agents and federal prosecutors who were separately investigating the developer. Those agents and lawyers are part of the same federal prosecutorial district as the ones who came to investigate Paxton.

“It was the right thing to do,” said Cogdell. He said federal officials had not informed him of the move and declined to comment further.

The overlap was known to officials within the Justice Department and publicly reported on by the AP within weeks of Paxton’s staff going to the FBI. Nonetheless, the agency left the investigation to be led by a career federal prosecutor based in San Antonio, who was previously best known for winning a money laundering and fraud case against a Democratic state senator.

It’s good and more than a little interesting to get an update on this story, especially given that I was despairing about the lack of information just a few days ago. I was a bit puzzled by this at first because I have thought about the probe into Paxton’s dealings with Nate Paul – which among other things led to the whole whistleblower saga and the settlement of same that just happened – as an “FBI investigation”. For sure, the FBI is a key player, but of course there is a prosecutor associated with it as well. Someone – several someones, really – has to believe that there may be a viable prosecution at the end of this, or it would be terminated, as there are other fish to be fried. The original someone was in the San Antonio office of the US Attorney, but as noted that office is also investigating Nate Paul, and since Paxton is an elected official there could be a conflict of interest there. To be honest, I’m unclear what that might be – either there’s evidence of a crime or there’s not – but if it’s the norm for these matters to be overseen in Washington by the Justice Department instead of by the local USA, then fine.

Two points to mention here. One is that this is evidence that the investigation in question is still active, and if the unnamed sources are to be believed, there is a future in which Paxton faces federal indictment, which should be a lot harder for him to stonewall and weasel out of, at least without an ally in the White House who can put a thumb on the scale for him. When that might be, God and maybe Merrick Garland only know. But at least it’s still out there. The fear was that the investigation had come to an end, as these things sometimes do, with nothing to show for it and no reason to make a news story of it.

And two, one way of reading this story is that it’s a story in the first place because the long-stonewalled prosecutors of the state case against Paxton mentioned it to a reporter. Maybe the AP heard about this transfer of the investigation on their own and reached out to Brian Wice and Kent Schaffer for a comment even though they don’t have anything to do with the federal case. It’s a plausible interpretation, they’d surely say something if they had something to say, and everyone knows about the state case that has dragged on since approximately the second Reagan administration. I just find it curious enough to wonder. For sure, getting this out there now, right after the whistleblower case was settled and Paxton got to do a bit of a victory dance, was a way to remind everyone that he still faces a lot of potential trouble, and maybe dampens his mood a little. I am 100% speculating here, I could be completely off base. I’m just saying this is what came to mind when I read that paragraph.

Anyway, whatever came to your mind, there’s more at Daily Kos, the Trib, and the Chron. If we do hear more about this case going forward, that would be nice.

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Wendy Davis’ lawsuit against SB8 dismissed

Alas.

Wendy Davis

A federal judge has dismissed a narrow challenge to Texas’ ban on abortions after about six weeks of pregnancy. The lawsuit was brought by former State Sen. Wendy Davis, best known for her 13-hour filibuster of a 2013 abortion bill.

The lawsuit, filed in April, challenges the 2021 Texas law known as Senate Bill 8, which allows private citizens to sue anyone who “aids or abets” in an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is “blatantly unconstitutional” and “make[s] a mockery of the federal courts,” Davis’ lawsuit alleged.

The law was designed to be difficult to challenge in court, since no government entities are involved in enforcement. Abortion advocates have struggled to find a way to block the law that doesn’t require them to first violate it and risk a costly civil lawsuit.

In this case, Davis and others sued a handful of anti-abortion activists who have threatened to bring civil lawsuits against abortion funds that help Texans access abortion out-of-state. These threats contributed to a “chilling effect” on the funds’ operations, and individuals have lost their ability to freely associate with like-minded individuals, the suit said.

The original complaint also named state Rep. Briscoe Cain, R-Deer Park, who sent cease-and-desist letters to abortion funds, threatening criminal prosecution under the state’s abortion ban. An amended complaint, filed in August, removed Cain from the list of defendants.

U.S. District Judge Robert Pitman dismissed the suit Wednesday, finding that Davis and the other plaintiffs “have not articulated a credible, imminent threat that can be attributed to Defendants.”

The defendants have filed court petitions seeking to depose leaders from two other abortion funds to learn about possible prohibited abortions. But as part of this lawsuit, the defendants signed sworn declarations saying they did not intend to sue Davis or the other plaintiffs.

“If anything, the specificity of these petitions lessens the threats’ immediacy,” Pitman wrote. “In short, Plaintiffs have not sufficiently distinguished these threats and the sworn statements disavowing them to show an injury.”

See here for the background and here for a copy of the order. It seems that the original SCOTUS ruling on SB8 means that there’s not a clear avenue for being proactive against the possibility of being sued under that cursed law. To quote from the ruling, “S.B. 8 was designed to evade judicial review so that a plaintiff likely could only challenge the law by subjecting themselves to liability.” Because these defendants have made sworn statements that they won’t sue these specific plaintiffs, there’s nothing to adjudicate and thus the suit is dismissed for lack of standing. Note, as Judge Pitman does, that this remains the case even though two of the named defendants have taken legal action against other abortion funds. You can’t prevent someone from suing you under this law, you can only react if they do. What a world we live in now.

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Tesla autopilot crash mystery solved

It wasn’t on autopilot after all.

Investigators from the National Transportation Safety Board apparently have solved the mystery of why no one was found behind the steering wheel of a Tesla that crashed near The Woodlands two years ago, killing two men.

The agency said in an investigative report released Wednesday on the fiery April 17, 2021 crash that Dr. William Varner, who was driving a Tesla 2019 Model S, apparently moved to the back seat after slamming into the car’s front air bag, deforming the steering wheel in the crash.

The crash occurred less than 600 feet from where Varner, 59, and Everette Talbot, 69, began their trip in Varner’s driveway along Hammock Dunes Place in Carlton Woods Creekside, a private gated community. Both men were killed in the crash and related fire that significantly damaged the car.

Although the crash raised questions about whether the car was operating on Tesla’s “Autopilot” partially automated driving system, the NTSB determined that the system could not have been used on the street where the crash happened due to lack of lane lines. Testing showed the car’s “Traffic Aware Cruise Control” system could have been used, although it would only work up to the maximum speed on the road, 30 mph, the report said.

The 2019 Tesla reached 67 mph two seconds before hitting the second of two trees at 57 mph before being consumed by flames as the lithium-ion battery caught fire.

The Tesla’s event data recorder showed that the accelerator moved “consistent with driver activity” in the five seconds before the crash, and that the driver’s seat belt was connected when the crash happened.

“Although the driver’s seat was found vacant and the driver was found in the left rear seat, the available evidence suggests that the driver was seated in the driver’s seat at the time of the crash and moved into the rear seat postcrash,” the report said.

The agency found that excessive speed and failure to control the car due to alcohol impairment caused the crash. The report says testing by a Federal Aviation Administration lab found that Varner had a blood-alcohol level of 0.151 grams per deciliter, almost twice the Texas legal limit of 0.08. Two over-the-counter sedating antihistamine medications also were found in the Varner’s blood, according to the report.

See here, here, and here for the background. In the end, it was a run-of-the-mill DUI with some weird effects. There are reasons to be concerned about Tesla’s autopilot feature – especially this week – and indeed of autonomous vehicles in general, but this is not evidence of such concerns. At least now we know.

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Last chance to file Winter Storm Uri lawsuits

The two year anniversary of the big freeze of 2021 is upon us, and the statute of limitations for civil actions in this sort of thing is two years, so you know what that means.

When Cherrilyn Nedd left her uncomfortably cold Summerwood home during the February 2021 winter storm to stay with her in-laws — who had a generator — she never expected that she would return to find the house ruined. She left the faucets dripping and her cabinets open. Hurricanes worried her, not freezes.

But a hissing noise greeted Nedd, 53, when she and her husband came back the next day to check on their house. Water spewed from a broken pipe in the collapsed ceiling, flooding every room on the first floor — their bedroom, the kitchen, the dining room and the living room.

“What is going on?” Nedd asked herself, in shock, stepping through the water.

The couple shut off the water to the house and swept out as much as they could. They would spend nearly a year and some $90,000 fixing the home, but they would never get back the ruined photos of a family cruise and their nephew as a baby; the computer equipment Nedd used for her consulting work was destroyed.

Lawyers representing storm victims like Nedd are working to file the final lawsuits related to the disaster as its two-year anniversary arrives this week — and the two-year statute of limitations for filing suit begins to expire. Thousands are accusing power companies, distribution companies, electric grid operators and others of failing to prepare properly for it, creating a catastrophe that caused property damage, countless injuries and hundreds of deaths. One expert estimated the cost of the freeze was as high as $300 billion.

[…]

Nedd and others see the lawsuits as another way to force change. The defendants would likely need to see that it costs more to fail than to do what’s needed to keep the power on, said Greg Cox, a plaintiffs’ liaison counsel. The various lawsuits are being directed to one judge in Harris County who will handle all of them.

The plaintiffs include a person whose house caught fire when power was restored, another who had both feet amputated after getting frostbite and a disabled person whose ceiling collapsed on him while he was in bed, Cox said.

“This catastrophe was not caused by an act of God, but instead was caused by intentional decisions by individual Defendants made both before and during Winter Storm Uri that were known to other Defendants and caused multiple operational failures which combined to cause the failure of the ERCOT grid,” one lawsuit states.

The story notes the so-far feeble efforts to enact reform and the big legal question of whether ERCOT can be sued. Some number of lawsuits will not survive if the answer to that is no. More from the Chron:

This week’s anniversary of the crippling storm — blamed in the deaths of more than 200 and which left millions of Texans without power, heat and in some cases water — means that the two-year legal deadline for filing related lawsuits is about to take effect.

The result is that lawyers representing more than 1,500 Texans and businesses have filed more than 80 wrongful death, personal injury and property damage lawsuits against more than 360 energy companies, insurance companies and the Electric Reliability Council of Texas, the state’s grid manager, since Thursday. Dozens more lawsuits are expected to be filed in Texas courts this week. The deadline depends on the date of the injury to the plaintiff.

The new lawsuits will be combined with the 230 cases lodged in 20 counties across Texas. Those cases, which include more than 1,500 individuals and businesses, have been consolidated into one multidistrict litigation docket in Harris County for the purpose of case management. The plaintiffs seek billions of dollars in damages.

[…]

But the individual cases represent just a slice of the legal disputes involving Texas energy companies. A couple dozen power companies have sued ERCOT and the Texas Public Utility Commission challenging their decision to increase the wholesale price of electricity by 650 percent to $9,000 per megawatt-hour. A decision could come this week.

Two other cases pending before the Texas Supreme Court challenge ERCOT’s claim that it is immune from civil lawsuits. A decision on that point is expected this spring.

Meanwhile, three energy companies — Brazos Electric Coop, Just Energy and Griddy — filed for corporate bankruptcy and restructuring.

“This litigation is massive, unlike anything we have ever experienced in Texas,” CenterPoint Energy Executive Vice President Jason Ryan said. CenterPoint is one of the companies being sued.

“What happened during those four to five days in February 2021 was the largest transfer of wealth in Texas energy history,” Ryan said. “The legal issues surrounding Winter Storm Uri are incredibly complex. Billions and billions of dollars are at stake.”

Scores of Texas electric companies asked a Houston appeals court Friday to dismiss the cases against them, saying the claims against them are without legal merit, would “upend the state’s electricity markets” and would “allow for ‘ruinous’ liability for entities that don’t contract with or deliver electricity to consumers.”

“This litigation is as unprecedented as the 2021 winter storm that spawned it,” lawyers for the power generators, such as Dallas-based Luminant and Houston-based NRG, argued in legal documents filed last week. “The stakes are exceedingly high. If permitted to proceed, this litigation will upend the state’s electricity markets, stretch Texas negligence and nuisance law beyond recognition, and make the state a national outlier.”

See here, here, and here for some background on the bankruptcies and the lawsuits related to them. The expectation is that the cases before the appeals court will be allowed to proceed, according to the story. We’re going to have this litigation for a long time. I don’t know how much of that wealth will be transferred back, but it sure needs to be a lot.

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Harris County votes to sue Hegar again

Phony Defunding Claims II: Electric Boogaloo.

Harris County Commissioners Court on Thursday voted to sue Texas Comptroller Glenn Hegar‘s office in response to his comments accusing the county of defunding law enforcement.

Hegar’s claim is a repeat of a fight that already played out between the comptroller and Harris County last August.

“They were wrong back when they tried this the first time — the comptroller and his allies — and they’re wrong again now,” County Judge Lina Hidalgo said before the court met in executive session Thursday.

Commissioners Court convened the special meeting to decide on a response to Hegar’s claim. In a 4-1 vote, the court authorized County Attorney Christian Menefee to pursue a lawsuit against the comptroller’s office. Precinct 3 Commissioner Tom Ramsey, the lone Republican on the court, voted against the measure.

In a statement, Menefee confirmed his office will file a lawsuit against Hegar.

“Once again, Comptroller Hegar has abused his authority,” the county attorney said. “His math is wrong. His application of state law is wrong. There’s no explanation for it — he’s just flat wrong. If Hegar’s goal was to make headlines while insulting the basic intelligence of Harris County residents, I guess he achieved that. But we don’t plan to let him abuse his power. We’ll see him in court.”

[…]

The debate over law-enforcement funding in Harris County stems from the county’s decision to shift its fiscal year and budgeting schedule to start in October instead of March.

In 2022, the county passed a shortened seven-month budget that was in effect until the new schedule began in October. That short fiscal year has made it difficult to make year-to-year funding comparisons, and has resulted in the county and the comptroller’s office using different methods to analyze whether the constable’s funding has increased or decreased.

Under Hegar’s calculations, Heap’s “annualized” budget would have been about $48.9 million over 12 months — nearly $2.3 million more than the $46.7 million figure calculated by the county.

Hidalgo said Hegar came to an incorrect conclusion by dividing Harris County’s 2022 short fiscal year budget by seven months and multiplying that number by 12 to get the annualized budget. Instead, Hidalgo said, the comptroller should have calculated on the basis of pay periods rather than the number of months. That would require dividing the short fiscal year by 16 pay periods and multiplying that by 26 to cover the whole year, she said.

“We have 26-pay-period accounting and Comptroller Hegar should know that,” the judge said.

See here for the background. If the facts as stated above are accurate, then this really is another case of political math being used in place of, well, math. Which is what the Chron editorial board concluded a few days ago. No matter how you get there, bullshit still walks. The Press has more.

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AG argues for separating that San Antonio criminal justice reform proposition into multiple questions

Not a surprise, but an aggressive position to take.

Attorney General Ken Paxton’s office is urging the Texas Supreme Court to side with opponents of a proposed charter amendment that seeks to decriminalize marijuana and abortion, as well as enact a host of other police reforms.

Solicitor General Judd Stone submitted a letter to the court Wednesday calling the proposal a “grab-bag of provisions” that “flagrantly violates” a state law prohibiting multi-subject charter amendments.

Stone urged the court to grant a petition filed by the anti-abortion group Texas Alliance for Life Inc. (TAL) requesting that the city reject the proposed ballot language, and instead require a vote on each provision individually.

“While the substance of this proposed charter amendment conflicts with multiple substantive provisions of state law, this mandamus proceeding concerns a procedural problem: the charter amendment plainly violates Texas law’s longstanding prohibition on municipal charter amendments that ‘contain more than one subject,’” Stone wrote.

[…]

City Attorney Andy Segovia told reporters last week he believed most of the charter amendments’ provisions were at odds with state law and therefore unenforceable by the city even if they’re approved by voters.

Stone’s letter agreed with that assessment and accused San Antonio officials of “abuse[ing] their discretion by certifying and including this charter amendment on the ballot.”

In a written response to TAL’s petition Tuesday, Segovia defended his decision to place the amendment on the ballot as written because city officials “plausibly read the proposed charter amendment language to encompass only ‘one subject’ as required by statute.”

Segovia added that opponents should challenge the validity of the amendment after the election, not before.

Stone’s letter disagreed, and asked the Texas Supreme Court to take swift action against the proposal in its entirety. He suggesting the court has long favored stopping such charter amendments before they’re voted on, something that’s still possible if it can prevent San Antonio from including it on the ballot this week.

“When there is an opportunity to correct a ballot before the election, waiting to address the issue through a post-election contest and, potentially another election, is not an adequate remedy,” Stone wrote. “Because respondents can correct the ballot now, [TAL’s] mandamus is appropriate.”

See here for the background. I still think, based on past history, that SCOTx would prefer to not get involved at this time, but I’m somewhat less confident of that now. Both sides of this argument are defensible, so it really is a question of whether SCOTx wants to step in now or just wait for the inevitable lawsuit later. For sure, if this passes it will be a quick matter before they have to rule on a temporary restraining order one way or the other about enforcement. Breaking it up into its components means there will be multiple lawsuits instead of one. I don’t know what they’ll do, but as I said before, we’ll surely find out quickly. San Antonio City Council approved it for the ballot as is, which was also as expected. Now we wait to see what if anything SCOTx does. The Current has more.

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Dispatches from Dallas, February 17 edition

Note: this is the second edition of the Dallas-area news roundup conducted by my friend Ginger. Issue 1 was last Friday. We got a lot of positive response to that and I definitely like it, so on we go. The title is taken from the email Ginger sent me, so we’ll give that a try as the feature name. Let us know what you think. Thanks!

This week’s DFW news is mostly about the suburbs: Southlake, Carrolton & Farmer’s Branch, and Arlington are featured trouble spots. Also, I’ve found Archive.ph, which archives web pages and may be useful for reviewing articles on the Dallas Morning News or the Fort Worth Star-Telegram. If you can’t get through to an article I’ve linked, I may have archived it for you.

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Where we are on the agenda

Greg Abbott targets transgender college sports ban.

Gov. Greg Abbott wants to ban transgender college students from competing on sports teams that align with their gender identity, adding momentum to a Republican proposal that’s condemned by LGBTQ advocates and progressive groups.

“This next session, we will pass a law prohibiting biological men to compete against women in college sports,” Abbott said in a Saturday interview at the Young America’s Foundation “Freedom Conference” in Dallas.

The Republican governor said he believes “women, and only women, should be competing [against each other] in college or high school sports.”

Transgender K-12 student athletes are already prohibited from competing on teams that don’t associate with their sex at birth, under a measure passed by Republican lawmakers in 2021. The author of that bill, state Rep. Valoree Swanson of Spring, is proposing extending the restriction this session to the college level.

State Sen. Mayes Middleton, R-Galveston, has introduced a similar measure in the upper chamber.

Republican Lt. Gov. Dan Patrick has already said he supports the college ban in the Texas Senate, which he oversees. On Monday, he listed it among his 30 top priorities for the session.

I’ll get back to this in a minute, but just as a reminder, there are very few transgender women who compete in NCAA athletics and fewer of them have actually won anything, this would force transgender men who are taking testosterone and thus would have a real competitive advantage over assigned-female-at-birth athletes (go google Mack Beggs to see what I mean), and it would put Texas in conflict with the NCAA. But first, the Dan Patrick agenda.

Lt. Gov. Dan Patrick announced a list Monday of 30 wide-ranging bills that he has designated his legislative priorities, including providing property tax relief and increasing natural gas plants to improve the reliability of the state’s power grid. He also detailed more specifically his plans to push a socially conservative agenda that would ban certain books in schools, restrict transgender student athlete participation in collegiate sports and end gender-transition treatment for young people.

In a statement announcing his priority bills, Patrick said he believed Texans largely supported his proposals because they “largely reflect the policies supported by the conservative majority of Texans.”

You can read on, but basically this session will be a nightmare for the LGBTQ community.

“I think most Texans want to live in a free and fair state, where the government is not attacking us, our families or our kids,” said Brian Klosterboer, an attorney with the American Civil Liberties Union of Texas. “The Texas Senate in recent years has been obsessed with bullying LGBTQ youth, especially those who are transgender. In the last couple of years, transgender youth in Texas have been under constant attack from the government.”

Texas lawmakers proposed dozens of LGBTQ restrictions in the 2021 legislative session, and this year’s tally has already reached 72, according to a bill tracker put together by the advocacy group Equality Texas.

Klosterboer said the proposals are not only harmful but unconstitutional — and the ACLU and other civil rights groups would stop them from taking effect if they advanced.

[…]

Johnathan Gooch, spokesman for Equality Texas, said lawmakers should pay attention to how even just debating these bills can have a grave impact on LGBTQ youths’ mental health.

A 2022 Trevor Project study found that 47 percent of LGBTQ youth considered suicide that year and 16 percent had attempted it.

“If our lawmakers were truly interested in protecting youth, then they need to find ways to protect LGBTQ young people because the campaigns they’ve been running against them have been really harmful and really painful for everyone,” he said.

They’re not interested, and I don’t have much faith that the courts will stop them. I wish I felt differently. I keep saying it, nothing is going to change until we change who we elect to state office.

Speaking of the NCAA:

The Texas NAACP is calling on professional sports and the National Collegiate Athletic Association to boycott Texas over Gov. Greg Abbott’s attempt to end diversity hiring programs on college campuses and in state government.

“The governor’s initiative will do enormous harm and take the state backwards,” NAACP president Gary Bledsoe said Tuesday.

Bledsoe and Black leaders in the Texas Legislature said they are sending letters to the NCAA, as well as the NBA, NFL and MLB, to request their help. More specifically, Bledsoe called for not awarding any additional all-star games, Super Bowls or other championship events in Texas.

The NCAA in particular has several major events planned in Texas, including the men’s basketball Final Four in Houston in April and the women’s basketball Final Four in Dallas. In 2024, Houston is scheduled to host the College Football Playoff championship and San Antonio is the host city for the 2025 NCAA men’s basketball Final Four. The MLB All-Star Game in 2024 is scheduled for Globe Life Field in Arlington.

The financial hit from losing those events could be massive — a 2017 report, for instance, showed that when San Antonio hosted the NCAA Final Four in 2018, it was set to generate $234 million in total economic impact because of the tens of thousands of visitors.

See here for the background. There was a brief moment, mostly in 2017, when the NCAA and some sports leagues attempted to stand up for LGBTQ rights and voting rights by moving certain events out of certain states. That moment didn’t last, and I’m not optimistic about it coming back. When the national attention is focused elsewhere, it’s really hard to get it to turn your direction. But at least this is a pressure point that can be acted on right now. It’s worth the effort, but it’s going to take some big numbers.

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Fairfield Lake State Park is officially closing

At the end of the month.

A popular state park southeast of Dallas is poised to become an exclusive community with multimillion-dollar homes and a private golf course.

Fairfield Lake State Park will close Feb. 28 after months of negotiations between private companies and the state failed to secure a deal.

The landowner of Fairfield Lake State Park is selling the property to a Dallas developer, who plans to build the high-end gated community. On Monday, Texas Parks and Wildlife received a notice to vacate the 50-year-old lease within 120 days.

Although the park has been open to the public since 1976, the property is owned by Vistra Energy, which has leased the land to the state at no cost.

Vistra is selling to Todd Interests, the developer responsible for high-end projects in downtown Dallas, including The National and East Quarter. The developer, Shawn Todd, has indicated he will no longer lease the land to the state.

[…]

The park’s closure comes at a critical time: Texas is growing fast, with the population soon expected to hit 30 million. Park visitation skyrocketed during the COVID-19 pandemic and shows no signs of slowing, park officials have said.

In 2021, Texas state parks had a record 9.94 million visitors. Last year, Fairfield welcomed 82,000 visitors, more than during any year in its history

On average, parks are seeing a 2% to 5% jump in visitors each year. This year, the number is expected to top 10 million for the first time.

Texas, however, lags behind other states in public parkland, according to a report by the nonprofit Environment Texas Research and Policy Center. The state ranks 35th in the nation for state park acreage per capita. Texas has 8 million more people than Florida, but 86,000 fewer acres of state parkland, the report says.

“Texas really doesn’t have enough state park land,” said Janice Bezanson, senior policy director for the Texas Conservation Alliance. “It’s particularly sad to see a popular park shut down at a time when we should be celebrating our state parks.”

This year marks the 100th anniversary of the state’s parks system, with numerous celebrations planned across the state. Later this year, Palo Pinto Mountains State Park is scheduled to open about 75 miles west of Fort Worth. It will be the region’s first new state park in 25 years.

Elected leaders on Tuesday bemoaned the park’s closure and urged the companies to continue to work with the state for a solution.

“Texas cannot lose a state park to development,” state Sen. Charles Perry, a Lubbock Republican and chairman of the state’s water, agriculture and rural affairs committee, said in a written statement. “Some 80,000 hardworking Texans will lose a place of solitude, sport fishing and priceless memory making if the park is closed.”

See here for the background. It’s a shame, but it’s not unexpected at this point. The real question is what if anything the Lege will do about it. I don’t see them taking action about this deal, though as we well know by now the current Lege has no problems with barging into situations it had previously left alone. As the story notes, more than a dozen other state parks are on leased land, meaning that someday this could be their fate as well. The Lege would be well within their normal parameters to do something there, and with a ginormous surplus the funds are there to just buy up all that land, which the TPWD didn’t have the money to do for Fairfield. So what’s it gonna be, Sen. Perry? You’ve done the talk. Got any action in there? The Chron has more.

UPDATE: A potential course of action, from the Trib:

State Rep. Angelia Orr, R-Itasca, whose district includes the park, filed a bill Tuesday that, if passed by the Legislature and signed by the governor, would allow Texas Parks and Wildlife to use eminent domain to seize the park’s land.

Orr said lawmakers also are working on a bill to prevent more state parks from being closed.

“This treasured piece of Texas has blessed our local families and countless visitors for generations, and losing it is hard to comprehend,” she said. “I join park lovers in Freestone County and across the state in expressing my sincere disappointment in hearing this news. As a result, we are now working on legislation to prevent this from ever occurring in any of our other beautiful state parks going forward.”

That us a clear path forward. Less clear that Republicans will take it, given how upset some of them are about eminent domain in other contexts, but ideological consistency is not the point here. I would classify this bill as an underdog, if only because most bills are, but if enough Republicans are upset about this, it will have a chance.

State Sen. Charles Schwertner, R-Georgetown, Chairman of the Business and Commerce, Finance and State Affairs Committee voiced his displeasure on Tuesday.

“Today’s heartbreaking announcement of the closing of Fairfield Lake State Park is a tremendous loss for Freestone County and all Texans who enjoy our state’s unique parklands,” he said. “It is unfortunate that Vistra and this private developer were unable to come to an agreement that would have allowed the state of Texas to purchase the park from Vistra to maintain it for future generations of Texans.”

There’s a bill that’s just been filed that may be of interest to you, Senator. Go talk to your colleague in the House about it.

Posted in The great state of Texas | Tagged , , , , , , , , , , , | 2 Comments

Judge in True the Vote lawsuit recuses himself

This is a surprise.

A Reagan-appointed federal judge on Monday recused himself from a case involving a Houston-based conservative group that promotes election conspiracy theories after the group’s lawyers accused him of failing to be impartial.

Election management software company Konnech filed the suit in September, alleging that the nonprofit group, True the Vote, defamed the company by making false or reckless statements in social media posts and podcast interviews, damaged the company’s business relationships and accessed data from its computers without authorization.

U.S. District Judge Kenneth Hoyt in October held the leaders of True the Vote in contempt of court and ordered them to jail until they complied with a temporary restraining order. The two spent nearly a week in jail before a federal appellate court overturned the order and let them go.

Hoyt was nominated by President Ronald Reagan in 1987 and took the bench the following year.

Michael Wynne, a Houston lawyer who represents True the Vote, directed Hearst Newspapers to a statement by the group on Twitter.

“True the Vote respects Judge Hoyt’s recusal,” the group wrote. “We credit Judge Hoyt for critically examining his ability to be objective in a politically-charged case like this and then acting in accordance with the law. That is a hard thing for a jurist to do.”

Lawyers for True the Vote argued in a motion to recuse that Hoyt had been unduly influenced by the plaintiff’s “disparaging” and “irrelevant” statements, including citing a Texas Monthly characterization of the group’s leaders as “the Bonnie and Clyde of election denial.”

They wrote that Hoyt exhibited a bias against the group that could affect, or at least appear to affect, his decisions.

They also noted that a three-judge panel of the strongly conservative Fifth Circuit Court of Appeals struck down Hoyt’s contempt order and made the unusual statement that Hoyt’s rulings against True the Vote were made “to litigate the case on Konnech’s behalf,” implying the judge favored the plaintiff.

“It is an unavoidable fact that in this case, a case far more politically charged than we see in the great majority of recusal motions found in the case law, a reasonable observer would expect a higher-than-usual standard of judicial evenhandedness and temperance,” True the Vote’s motion read. “Such expectations were challenged once this court inherited plaintiff’s misrepresentations.”

Hoyt did not offer an explanation for granting the motion to recuse. The regional presiding judge will now have to transfer the case to another court or assign another judge to the case.

[…]

True the Vote also claimed Hoyt made comments that displayed his bias. At an Oct. 6 hearing when a lawyer for True the Vote expressed he feared Hoyt thought he was “trying to play a game,” Hoyt responded: “Not you. I’m thinking you may be played.”

“I think I’m a better judge of character than that,” said the group’s former counsel Brock Akers.

“You would have thought that of the president or a lot of lawyers who have been disbarred or who are being now sanctioned,” Hoyt said. “I have no reason to believe those weren’t good lawyers, but they were played.”

Later, Akers said: “I’m confident that I have not been played and that the work that they have done is worthy.”

“The work that who has done?” Hoyt asked.

“The work that my client True the Vote (did) in order to accomplish election integrity overall …” Akers started to say.

“I don’t really have any confidence in any of these folk who claim they are doing that,” Hoyt said. “We did pretty good until about three or four years ago, five or six years ago. The only people that I know of who have done something wrong are people who have been either caught or who have been charged and mistreated. Do errors get made? Yeah. Do people cheat? Perhaps. But all of this fuss and hustle and bustle about the integrity of a process and the way you fix that process is you tear it apart? That’s not integrity. That’s destruction.”

The archives are here. I dunno, man. I obviously have strong opinions about True the Vote, but their actions speak for themselves. This last exchange here sounds more to me like the judge saying that True the Vote’s words and actions don’t match up. Is it bias if your own actions have earned you a certain level of disrespect? Again, I dunno. The main thing I do know is that this is going to set the timetable for this lawsuit back by months. I can’t imagine the plaintiffs are too happy about that.

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Texas blog roundup for the week of February 13

The Texas Progressive Alliance extends their sympathy to everyone who made ill-advised prop bets during the Super Bowl as it brings you this week’s roundup.

Continue reading

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The furniture guy files a lawsuit

Spare me.

Houston furniture magnate Jim “Mattress Mack” McIngvale has filed a lawsuit against the Harris County Elections Administrator’s office accusing it of refusing to turn over public records related to the November 2022 election, adding to an array of GOP litigation aimed at the county’s elections process.

According to the petition filed Monday night, Wayne Dolcefino, a media consultant and former TV journalist, submitted multiple requests for public information on behalf of the Gallery Furniture owner, who was a major donor supporting Republican candidates including County Judge Lina Hidalgo’s opponent Alexandra del Moral Mealer.

In response to each of the requests for public information, the elections office responded by seeking an opinion from the Texas Attorney General’s office allowing it to withhold the information due to ongoing litigation, the lawsuit states.

The petition also acknowledges the county has provided some of the requested documents.

In a statement Tuesday, Harris County Attorney Christian Menefee’s office said: “The requests for these documents were handled the same as any other requests for documents related to ongoing litigation against the county. We’re evaluating the lawsuit and will let the courts sort it out.”

The Harris County Elections Administrator’s Office also issued a statement, saying it readily has responded to requests that do not require documents subject to the litigation, and has sought an opinion from the attorney general’s office on those that do.

“According to the Public Information Act, the attorney general’s office has 45 working days from the day after the request to respond. As of today, the office has not received an opinion on how to proceed with these particular public information requests. Any suggestion that the Harris County Elections Administrator’s Office lacks transparency is false,” it said.

The lawsuit is an example of why the Texas Legislature should repeal the “litigation exception” provision in state law that offers public offices an option to withhold records during litigation, said Bill Aleshire, an Austin attorney who works with the Freedom of Information Foundation of Texas.

“There is no justification for denying the public information about a controversy just because it involves litigation,” Aleshire said. “In fact, when something controversial enough happens to be the subject of a lawsuit, that is exactly when the public most needs to know what the record shows. Yet, the way the (Texas Public Information Act) is written, no one — except those involved in the underlying lawsuit — can get access to the public information.”

The “litigation exception” typically is upheld by courts, so McIngvale’s lawsuit is unlikely to produce the requested records, he said.

However, state law does not prevent the county from providing the records, but rather gives the county discretion to decide.

“It does not make the records ‘confidential’ (where it would be illegal to disclose the information); it just means the government is not required to disclose the information,” Aleshire said. “But they could if they are willing to do so.”

So if I understand this correctly, the Elections Office could provide these documents on demand, but legally they don’t have to until they get an opinion on it from the AG’s office. That may be a bad feature of the law as it now exists, but it is the law and a district court is highly unlikely to deviate from the normal course of behavior. Which makes this entire spectacle little more than a plea for attention and a waste of everyone’s time. Have I got that right? The Press has more.

Posted in Election 2022, Legal matters | Tagged , , , , , , , , | 6 Comments