That’s our Lege

As Texans continue paying off the costs of the deadly 2021 winter storm, state lawmakers are considering a Republican-backed proposal that would allow for more frequent rate hikes and prevent cities from challenging the increases.

Supporters of Senate Bill 1015 say it would help bolster the power grid, making it easier for utilities to recover the costs of building poles and wires to transmit electricity across growing cities.

For years, cities have negotiated settlements with electric utilities over these proposed rate hikes, securing lower costs for residents and businesses if they can show the increase is excessive.

While electric utilities have to go before the Public Utility Commission every four years to justify what they charge overall, they have also been allowed since 2011 to periodically hike rates to cover new distribution lines and any related costs. As of now, companies can do a distribution-related increase only once a year, and only if an existing rate isn’t under review by the PUC.

SB1015 would let utilities seek two distribution rate hikes a year, including when they have a rate case pending. And it would make the PUC, not cities, responsible for reviewing and challenging the hikes.

Critics say the bill would cost ratepayers millions. It would amount to “utility self-regulation,” with “the potential of multiple, sizable increases to ratepayers over a very short period,” argued Tina Paez, director of Houston’s Administration and Regulatory Affairs Department.

“The current law strikes a good balance between the utility that makes the capital investment and the ratepayers that fund it,” Paez told a panel of Senate lawmakers this week. “But the proposed bill would eliminate that balance, tipping the scales entirely in the utilities’ favor.”

The bill’s author, state Sen. Phil King, said the measure “is about trying to bring consistency and efficiency” to the process of recouping costs.

Aside from distribution costs, utilities are allowed to seek rate hikes up to twice a year for work on transmission lines, which carry electricity from power stations to substations (as opposed to from substations to homes and businesses). King said his bill would apply the same standard to both transmission and distribution lines.

The Weatherford Republican also said he wants to reduce the legal fees that utilities pay when cities challenge their interim rate hikes. Utilities are entitled to pass those litigation costs on to ratepayers.

“At the end of the day, whatever we do to streamline the administrative process, the review process, theoretically reduces attorneys fees, reduces other costs involved, and that ultimately saves the person paying the bill a lot of money,” King said.

The proposal comes as CenterPoint Energy, the regulated utility that distributes most of the electricity in the Houston area, prepares to recoup $200 million it spent to lease mobile power generators during emergencies.

I don’t know enough about this to say with any confidence what the effect of SB1015 would be. But I do know that I don’t trust Phil King, I fear the Republican attacks on cities’ authority, and any bill involving regulation of utilities that doesn’t come with the support of stakeholders like cities and consumer groups is automatically suspicious to me. Your mileage may vary, but that’s my perception of this one.

We finally have a reason for the timid police response in Uvalde

Mar 21st, 2023

by Charles Kuffner.

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It was because the shooter was using an AR-15, and the cops didn’t want to get slaughtered.

Almost a year after Texas’ deadliest school shooting killed 19 children and two teachers, there is still confusion among investigators, law enforcement leaders and politicians over how nearly 400 law enforcement officers could have performed so poorly. People have blamed cowardice or poor leadership or a lack of sufficient training for why police waited more than an hour to breach the classroom and subdue an amateur 18-year-old adversary.

But in their own words, during and after their botched response, the officers pointed to another reason: They were unwilling to confront the rifle on the other side of the door.

A Texas Tribune investigation, based on police body cameras, emergency communications and interviews with investigators that have not been made public, found officers had concluded that immediately confronting the gunman would be too dangerous. Even though some officers were armed with the same rifle, they opted to wait for the arrival of a Border Patrol SWAT team, with more protective body armor, stronger shields and more tactical training — even though the unit was based more than 60 miles away.

“You knew that it was definitely an AR,” Uvalde Police Department Sgt. Donald Page said in an interview with investigators after the school shooting. “There was no way of going in. … We had no choice but to wait and try to get something that had better coverage where we could actually stand up to him.”

“We weren’t equipped to make entry into that room without several casualties,” Uvalde Police Department Detective Louis Landry said in a separate investigative interview. He added, “Once we found out it was a rifle he was using, it was a different game plan we would have had to come up with. It wasn’t just going in guns blazing, the Old West style, and take him out.”

Uvalde school district Police Chief Pete Arredondo, who was fired in August after state officials cast him as the incident commander and blamed him for the delay in confronting the gunman, told investigators the day after the shooting he chose to focus on evacuating the school over breaching the classroom because of the type of firearm the gunman used.

“We’re gonna get scrutinized (for) why we didn’t go in there,” Arredondo said. “I know the firepower he had, based on what shells I saw, the holes in the wall in the room next to his. … The preservation of life, everything around (the gunman), was a priority.”

None of the officers quoted in this story agreed to be interviewed by the Tribune.

That hesitation to confront the gun allowed the gunman to terrorize students and teachers in two classrooms for more than an hour without interference from police. It delayed medical care for more than two dozen gunshot victims, including three who were still alive when the Border Patrol team finally ended the shooting but who later died.

Mass shooting protocols adopted by law enforcement nationwide call on officers to stop the attacker as soon as possible. But police in other mass shootings — including at Stoneman Douglas High School in Parkland, Florida, and the Pulse nightclub in Orlando, Florida — also hesitated to confront gunmen armed with AR-15-style rifles.

Even if the law enforcement response had been flawless and police had immediately stopped the gunman, the death toll in Uvalde still would have been significant. Investigators concluded most victims were killed in the minutes before police arrived.

But in the aftermath of the shooting, there has been little grappling with the role the gun played. Texas Republicans, who control every lever of state government, have talked about school safety, mental health and police training — but not gun control.

There’s more, so go read the rest. That includes a note that the House committee report on the law enforcement response to the Uvalde massacre didn’t include any of these quotes from the officers present, and it also includes a deeply stupid and offensive quote from the deeply stupid and offensive Sen. Bob Hall. While the news of the cops’ hesitation to run into AR-15 fire is something we hadn’t heard before, the rest of this isn’t new at all. Mostly, we know what we’re not going to get from this Legislature and our state leaders. It’s just a matter of what we do about that.

Look, if we banned AR-15s and anything like them today and then began an aggressive program to buy them back and/or confiscate them, there would still be AR-15s and other guns like them out there. But there would be fewer of them, and that would lower the risk. If even the so-called “good guys with a gun” don’t want anything to do with a bad guy with an AR-15, then I don’t know what else we could do that might have the same effect. Like I said, it’s up to us. Daily Kos has more.

So now we start processing what happened and what will happen with the TEA takeover

Mar 17th, 2023

by Charles Kuffner.

2 comments

The Chron editorial board points to three key items.

Still, if this takeover must happen — and Texas Education Agency announced Wednesday that it is indeed happening — we want it to work. Houston’s schoolchildren don’t have time for another failure. There’s no re-do for high school; these are precious years that even the most cynical politician shouldn’t endeavor to squander. Hear us on that, Governor Abbott.

Our skepticism and worry for the schoolchildren in the path of this takeover are tempered by other things: curiosity about how this experiment will work and even a glimmer of hope about what it could accomplish if TEA’s commissioner, Mike Morath, keeps his word to put kids first.

It won’t stand a chance, though, if there’s not some measure of buy-in from kids, parents and the greater Houston community. Right now, there seems to be largely outrage and fear. Trust, if it comes at all, will require transparency and integrity from Morath and the district’s new leaders.

So, how will we know if this takeover is really about improving schools and the future of Houston’s schoolchildren? Three things:

Leadership: Who will lead the district?
Morath said the next superintendent to lead the 187,000-student district would be appointed in the summer but the name of the person is less important than his or her qualifications and character. Ideally the person would have knowledge of Houston or at least Texas. Most important, though, is experience running a large district and overseeing a successful turnaround. The next HISD leader should be reform-minded but not for reform’s sake. Morath has acknowledged that much is working well in the state’s largest district and many kids are “flourishing,” as he told The Houston Landing’s Jacob Carpenter. The next leader should build on that and endeavor to scale it up across the district so that more kids can know the rigor and high expectations of a Carnegie Vanguard High School, the expertise of a Michael E. DeBakey High School for Health Professions and the inspiration of a Kinder High School for the Performing and Visual Arts.

As for the board of managers expected to replace HISD’s elected board of trustees in June, we implore Abbott to keep the cronies to a minimum. The state should appoint a good mix of educators, parents, business leaders – all of them ideally from the Houston area. They should have a stake in the results but be free of conflicts that could compromise their judgement. We’re glad to see that Morath, in his interview with The Landing, encouraged “people of integrity and wisdom” who are “interested in supporting kids, who truly love kids” to apply “soon” at the TEA website for positions on the board. When this takeover was initially announced in 2019, a diverse group of nearly 250 people applied to serve on the board of mangers and some underwent training. In the three years since, the process was paused by lawsuits. TEA is beginning anew, but not from scratch, given the pool of volunteers who have raised their hands to help.

Strategy: Is the plan based on evidence or politics?
We know what works in education, and no, it’s not merely more money, smaller class sizes or even parental involvement. Those things can help but only in certain contexts, as Amanda Ripley wrote in her 2013 bestseller The Smartest Kids in the World: and how they got that way. Generally, the ingredients to quality public education, according to research, are higher standards, better trained, supported and paid teachers to implement the higher standards, plus accountability to ensure that they do. The state, via the new leaders chosen, will have the space to innovate and perhaps make bold decisions that would normally be politically unpopular if an elected board were still calling the shots. But the guiding star must be best practices. What has truly been proven to work, not just in this country, but in other nations where student performance far outpaces our own.

[…]

End game: This takeover should lead to reform, not purgatory.
There’s a reason “independent” appears in the names of districts across this state. We believe, as do many Texans, that local public school should be run locally, by elected leaders accountable to the public. The TEA must outline a clear plan of action and a timeline to get the work done promptly. Morath told The Landing that he doesn’t expect state control over HISD to last longer than the typical two to six years. But how will we know when the problems that triggered this takeover are solved? It should be clear to all based on clearly defined standards and benchmarks that TEA sets for gauging success. The state agency has already articulated some of these: no campus should receive a D or F state rating for multiple years, the district’s special education program must comply with federal and state requirements, and, more generally, more time during school board meetings should be devoted to discussing student outcomes versus discussing administrative factors, the Chronicle reported. More specificity is needed but these terms seem relatively modest and doable.

I think we’ll know a lot from the announcement of the Board of Managers, and from the naming of a Superintendent. As I noted yesterday, three current Board members, all elected since that initial round of recruitment, were on that list of 243 names. We could get some decent selections, or we could get a bunch of hacks and cronies. The same is true for the Superintendent, and while Mike Morath says he’s bound by the law to pick someone, I don’t see why he can’t name Superintendent House as his choice. We’re in uncharted territory, if you really want to do what’s best then do the obvious here.

The other two items will flow from the first. A decent Board will want to follow best practices and implement genuine improvements – and here I will say that I’d like to hear what that Board ought to do that wasn’t already at least being discussed by this Board – and want to get out in a timely fashion. The first of these should again be clear to us from the beginning, the second may take time to become clear, though having clear objectives and metrics to determine them up front will help a lot. The less we hear from Greg Abbott and the usual crowd of enablers the better. I do actually think Mike Morath wants this to work, if only for his own legacy, and the best way for that to happen is for him to be more or less left alone by Abbott. Like I said, go put your own name forward for this Board if you can. Let’s put that first principle to the test now.

And keep up the pressure wherever you can.

With the news today of the Texas Education Agency taking over Houston Independent School District, Democrats in the Texas House warned that Houston ISD was set up to fail through a lack of funding and state support and that it could be the precursor to other state takeover attempts of districts around the state for political reasons.

“When it comes to TEA, you can’t be the arsonist and the firefighter,” said Rep. Trey Martinez Fischer, a San Antonio Democrat and chair of the House Democratic Caucus.

Democrats argued during a Wednesday afternoon press conference that school funding in Texas has lagged behind inflation for years, that teachers are paid so poorly they’re leaving the profession in droves and that retired educators are languishing in poverty because of the lack of inflation adjustments to their benefits over the last several decades.

The underfunding has brought huge challenges for schools, especially those in large school districts like Houston ISD where there are many children from lower-income families, they said.

They pitched a plethora of fixes, including increasing the basic per-student funding number by far more than Republicans have proposed, shifting the funding model from one based on attendance to one based on enrollment and giving retired teachers significant benefit bumps.

Although Democrats are the minority party in both the House and the Senate, Martinez Fischer said he believes the House will need to vote on certain measures that require 100 votes to pass.

Since Republicans don’t have enough votes to do that on their own, he thinks he has leverage to press for some priorities — with investment in public education “at the top” of that list.

One bill they said they hoped to win bipartisan support for was brought by Rep. Alma Allen, a Houston Democrat and vice chair of the House Public Education Committee. It would give the TEA the option to decide against the takeover of school districts, as is happening now with Houston ISD. The agency says its hands are tied legally, and it must move forward with the takeover.

As we have discussed, there’s not much that can be done about the current situation other than holding Morath and the TEA and the future Board of Managers to the promises that have been made about what the goals are of this whole thing, but using whatever leverage Dems have to pass the takeover modification bills is a good use of their time. At least we can try to prevent this from happening again. The Trib and the Texas Signal have more, as do Stace, who fears that any good people on the Board of Managers will be tainted by the bad things it is likely to do, and Campos, who encourages “good, smart, and decent folks to sign up”, have more.

Founder of that voter roll maintenance program that election denialists hate has stepped down

Mar 15th, 2023

by Charles Kuffner.

1 comment

I’m sure this will calm everyone down and restore the faith everyone once had in this program. Right?

David Becker, an election law advocate who helped create the Electronic Registration Information Center (ERIC), is vacating his position on its board as a flurry of far-right conspiracy theories about the voter roll maintenance program prompted a handful of red states to withdraw from its services.

“Today, I informed [ERIC] that I will not accept renomination as a non-voting member of the board when my term expires this week,” he announced in a tweet on Tuesday. “I remain very proud of leading the effort to create ERIC, and supporting its expansion to over half the states in a decade.”

ERIC is a non-partisan program used by over 30 states to help clean up voter rolls since there is no national voter database. It’s recently become the target of election deniers and far-right conspiracy theorists who are pushing the false narrative that it’s run and funded by liberals—including Becker and, the far-right’s favorite bogeyman billionaire philanthropist, George Soros.

Becker said these right-wing attacks are the reason he’s decided to leave the board. “Unfortunately, attacks fueled by disinformation by those who want our democracy to fail, have led to some states, all R-led, to diminish their own ability to maintain election integrity,” he wrote.

See here for the background. I’m sure you all read my opening sentence with the proper tone of voice. I note that our Secretary of State has begun an effort to find a replacement for ERIC, which I’m sure will end well. We live in truly stupid times.

The latest obsession of election denialist crackpots

Mar 14th, 2023

by Charles Kuffner.

3 comments

You may want to sit down before you read this.

In virtual meetings taking place over a year, right-wing activists and Republican legislators have stoked concern over a multistate coalition that Texas and more than 30 other states use to help clean voter rolls. The majority of their grievances — that it is run by left-wing voter registration activists and funded by George Soros, among other things — were pulled straight from a far-right conspiracy website and are baseless.

Now, lawmakers who regularly attend those meetings have introduced legislation written by the group that would end Texas’s participation in the Electronic Registration Information Center, also known as ERIC.

The bills were introduced despite the efforts of Texas’s elections director, who attended a meeting and offered factual information related to their concerns last April, apparently without success.

Keith Ingram, the elections director for the secretary of state’s office, told the group the program was the only option available to ensure voters aren’t registered or voting in more than one state at the same time. Nonetheless, the activists moved forward with an effort that experts say is set to undermine one of the best election integrity tools available to Texas and other states to prevent election fraud.

“We want to be able to do something and we have a senator that’s willing to help change that or add language or improve or reform ERIC,” said Toni Anne Dashiell last August, referring to Sen. Bryan Hughes, R-Mineola. Dashiell, the Republican national committeewoman for Texas, organizes the meetings and refers to them as “TAD Talks.”

Shortly after, the group’s ERIC task force — led by Alan Vera, the current Harris County Republican Party ballot security chairman, and Dana Myers, the Texas Republican Party vice-chair — began drafting legislation. Myers declined to comment for this story. Dashiell and Vera did not respond to Votebeat’s requests for comment or to emailed questions about how the effort would improve elections in Texas.

Vera announced during a January meeting of the task force that they had submitted the draft of such a bill to Hughes’ staff for review. Hughes, who attended almost every single one of the virtual meetings, filed legislation with their suggestions as Senate Bill 1070 in February. Rep. Jacey Jetton, R-Richmond, also a regular speaker in the virtual calls, filed a companion bill in the House. Hughes and Jetton did not respond to multiple requests for comment.

“Now, there is no evidence that ERIC is doing anything to Texas voter rolls, I want to be clear about that,” Hughes said during a virtual meeting in October. “But we do know, again, that the people running ERIC don’t share our worldview.”

There’s a lot more, so read the rest and also read this TPM story from earlier in the week that was about other states doing similar stuff. The very short summary here is that bad people who lie a lot about “vote fraud” are baselessly attacking a bipartisan tool that actually helps identify people who are registered in multiple states and wanting to replace it with some unknown thing that they control. Nothing good can come of this, and unfortunately like most things there’s not much we can do if Republicans are determined to pass something. More from TPM here.

(There is one thing we can do, and that’s really try to take out Rep. Jetton in 2024. HD26 was moderately competitive in 2020, though less so last year. Still, this is a purple-ish district and he should be strongly challenged for facilitating such denialist bullshit. We’re never going to get anywhere until some Republicans start losing elections as a result of the extremist things they do. Jacey Jetton and HD26 is as good a place to start with this as any.)

The Lege still doesn’t want to pay for Paxton’s whistleblower sins

Mar 14th, 2023

by Charles Kuffner.

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Who can blame them?

A crook any way you look

Now midway through the legislative session, Paxton and state lawmakers are at a standstill, and taxpayers are caught in the middle.

Lawmakers have so far declined to include the settlement money in any budget bills, while Paxton argues that the agreement would ultimately save taxpayers from funding a lengthy court case that may end with a higher price tag.

The whistleblowers’ accusations have prompted an ongoing Department of Justice investigation of Paxton, who has denied any wrongdoing. Paxton’s office did not respond to a request for comment.

Political experts say the Legislature’s reluctance to embrace the agreement could be a tactic to pressure Paxton to either pay for the settlement himself or answer for the corruption allegations in court.

“It’s like the Legislature is telling Paxton that this is his problem to take care of,” said Brandon Rottinghaus, a political science professor at the University of Houston. “This is as close as Paxton will come to a political sanction from his party for his actions. … The party is not going to directly say that they think that he’s done wrong, but they certainly don’t want to be on the hook to foot the bill.”

Lawmakers suggested at a budget hearing last month that Paxton should use his own campaign funds to settle the case, as the state’s election laws allow. But a Paxton staffer interjected, noting that whistleblower laws hold the office accountable, not the officeholder.

[…]

As of January, Paxton had $2.3 million in his campaign war chest and $1.3 million in outstanding loans. He would have to fundraise to pay off the rest of the settlement — a “horrific” option for the attorney general, Rottinghaus said.

The whistleblowers on Wednesday requested that the Texas Supreme Court lift its temporary pause on the case. If Paxton and the whistleblowers remain at an impasse through the end of legislative session in May, they’ll all head back to court.

Chris Hilton, the general litigation division chief and a lawyer for Paxton, accused the whistleblowers on Thursday of trying to “undo the agreement by filing a misleading brief with the Texas Supreme Court, all the while coordinating with the media to create drama.”

“We’ll continue to seek a cost-efficient resolution, even while the plaintiffs needlessly drag this process out,” Hilton said.

Turner pushed back on that claim, pointing to a court filing by the attorney general’s office in which Paxton’s attorneys agreed that “should the parties prove unable to obtain funding,” they would jointly ask the Texas Supreme Court to resume the case.

“As we negotiated the formal agreement, the attorney general backtracked and would not agree to a deadline for legislative approval,” Turner said. “Anyone reading this can easily decide for themselves who is being misleading and who is dragging this process out.”

Cal Jillson, a political science professor at Southern Methodist University, said Paxton is essentially giving the Legislature an ultimatum: “‘Pay to clean up my mess, or as I stall on this set of corruption charges brought against me by my former employees, that could sum up to a great deal more than $3.3 million.’”

The only reason the attorney general’s staff knows the cost could be higher, Jillson said, “is because they intend to stretch this thing out as far as possible.”

With two months left in the legislative session, there’s still plenty of time for lawmakers to change their minds, but it’s a touchy subject.

See here for the background. I remain fine with the stance that the Lege has taken so far, however doubtful I am about their resolve. Put simply, don’t bail out Ken Paxton. I recognize that this puts a burden on the whistleblowers, who did us all a favor by coming forward like this, and I regret that they are caught in the middle. I also maintain that approving the settlement and cutting the AG’s budget by an equivalent (or greater!) amount would be fine, but I have yet to see any suggestion of that in any of these stories. Changing the law to allow Paxton to pay this with his campaign funds might be OK, and there are other ideas that could work. All I care is that no one takes Paxton off the hook. If that means the taxpayers face a bigger payout down the line, so be it. The point is that he should own it all. The Trib has more.

Chron story on the anti-Open Beaches bill

Mar 12th, 2023

by Charles Kuffner.

Comments are off for this post

Glad to see it.

A bill that would reshape future legal battles over Texas’ public beach boundaries is stirring backlash from advocates and former state leaders, who claim the proposal would give beachfront property owners the green light to vacuum up pieces of the state’s public beaches.

Senate Bill 434, filed last month by state Sen. Mayes Middleton of Galveston, would give private property owners the upper hand in legal disputes over public beach access between their residences and the Gulf of Mexico.

Such disputes are governed by Texas’ Open Beaches Act, which has long established the public’s right to use privately owned beach area extending from the vegetation line — the beach’s inland boundary, where sand gives way to foliage — to what’s known as the “mean high tide line” along the water.

Under current law, property owners can only scrap a public easement in front of their property — thus blocking the public from passing through it — if they offer legal proof that the area shouldn’t be covered by the easement.

Middleton’s bill would upend the law, shifting the legal “burden of proof” to the state or anyone looking to establish that a public easement exists on someone’s beachfront property. Critics say the change would embolden property owners to fence off beach area long accessed by the public — access that could only be regained through legal action.

Middleton did not respond to a request for comment. He defended his legislation in a statement to the Galveston County Daily News last month, arguing it would “not in any way take away our open beaches or limit them.”

“Right now, all over the state of Texas, if the state claims your land as theirs — then they have to prove it. But, sadly, on beachfront property, if Texas claims the property as theirs, it’s presumed to be the state’s — unless the landowner is able to refute the rebuttable presumption,” Middleton said. “My bill is a beachfront private property rights bill that makes beachfront land treated like land in the rest of the state and changes the presumption so that the state must prove it is state lands and the landowner no longer has the burden of proof.”

See here for the argument against, as presented by former Land Commissioners Dewhurst, Patterson, and Mauro. I have no reason to trust Sen. Middleton on this, and that’s even without me already being a steadfast Open Beaches Act supporter. I don’t know what the odds are of this bill passing, but I would take it seriously, as it’s the kind of thing that may get by because no one gives it all that much thought. To that end, the sunshine may help. Reform Austin has more.

“Shall” versus “may”

Mar 9th, 2023

by Charles Kuffner.

Comments are off for this post

Houston Landing touches on a subject I’ve mentioned before.

As concerns grow about the Texas Education Agency ousting the Houston Independent School District’s elected board, a question with major practical and political implications has emerged: Are state officials legally mandated to take over Texas’ largest school district?

Despite multiple years of legal and legislative battles, there’s still no definitive answer to this fundamental query – setting the stage for even more litigation that could delay or derail any state efforts to strip power from the district’s school board.

A strange confluence of recent events has left it unclear whether TEA officials must, or merely may, take drastic action against the state’s largest school district due to persistently poor academic performance at Wheatley High School, according to a Houston Landing review of state law and court rulings. While the uncertainty has lingered for the past several weeks, it’s taken on greater importance as the state nears a decision on whether to punish HISD for past failings.

The murkiness stems from state appellate rulings and legislative actions in the past several months that were supposed to clarify the state’s responsibility for punishing HISD, yet failed to plainly answer one key question: Did Wheatley trigger a state law requiring sanctions against the district when it received a seventh consecutive failing grade in 2019?

[…]

HISD finds itself in legal limbo largely due to a peculiar disconnect between Texas’ legislative and judicial branches.

The saga began in 2015, when Texas legislators passed a law that said the TEA must replace a district’s school board or close chronically low-performing campuses in any district with a single school that failed to meet state academic accountability standards for five consecutive years. The bill, championed by state Rep. Harold Dutton Jr., a Houston Democrat whose legislative district includes Wheatley, aimed to punish school boards for neglecting long-struggling campuses.

However, the law spelled out specific years – including 2018 – for which schools must fail to meet state standards to trigger sanctions. And as a result of Hurricane Harvey, Wheatley received a “not rated” designation in 2018, which didn’t count as a failing grade.

Still, state officials moved to oust HISD’s school board after Wheatley fell short of state standards in 2019, its seventh consecutive failing grade without a passing mark. (TEA leaders have said closing Wheatley would not remedy the root causes of the school’s poor results.)

Wheatley’s “not rated” mark in 2018 set off a legal skirmish over whether the school technically triggered the law with its seventh straight failing grade the following year.

A Travis County judge issued a temporary injunction in HISD’s favor in early 2020, halting the takeover, but she did not elaborate on the rationale for her decision. Then, in late 2020, the Texas Third Court of Appeals ruled that Wheatley did not violate the accountability law because the “plain language of the statute” required a failing grade in 2018. TEA officials subsequently appealed the decision to the Texas Supreme Court.

While the case was pending before the Texas Supreme Court, state legislators passed a bill in mid-2021 clarifying that a “not rated” grade doesn’t count as a passing score for the purposes of calculating whether a school scored five consecutive failing grades. If a school receives four straight failing grades, followed by a “not rated” mark, it must meet state standards the next school year to avoid triggering a state takeover or campus closure. Texas legislators, however, did not make the law retroactive to the Wheatley situation.

“It was our legislative intent not to include any language that would have done that,” Dan Huberty, a Republican former state representative who helped usher the bill to passage, said in an email last week. Huberty added that lawmakers wanted to leave Wheatley’s fate to the courts – a point echoed this week in a statement by another key figure in the law’s passage, state Sen. Paul Bettencourt, R-Houston.

Yet the Texas Supreme Court, when given the chance, didn’t clearly address the unanswered question about Wheatley.

In an October 2022 written opinion, the justices unanimously overturned the temporary injunction, finding the TEA has the legal right to install a replacement board on two unrelated matters: the lengthy presence of a state-appointed conservator in the district; and multiple findings of misconduct by some board members, including violations of the state’s open meetings laws and attempts to steer vendor contracts, following a TEA investigation in 2019. On both fronts, state law says Morath can appoint a new board, but he’s not required to.

But for reasons never made clear, the justices didn’t explicitly rule on whether Wheatley triggered mandatory sanctions. The justices seemed to defer in their opinion to the Texas Legislature’s new law, which could bolster the state’s case for mandatory sanctions, but they never issued an unequivocal directive.

I’ve noted the “shall” versus “may” distinction before. I see two ways of looking at this weaseling by the Lege and the courts. One is that this is all a very thin technical reed on which to hang an argument that the TEA doesn’t have to intervene. I wouldn’t want to have to defend that in court. The other is that despite it being very clear that the Lege wanted SCOTx to be the decider, they declined to say one way or the other if the TEA was required to act. Thin it may be, it’s an easy to grasp reason for the TEA to take more limited action, which is at least what the locals want, and probably what they would prefer given the scope of the issue.

Will they do it? Like I said, it can’t hurt to have people talking to Mike Morath to try to persuade him to back off. Maybe the bills filed to prevent the takeover, along with such lobbying efforts, are enough to push him to that way of thinking. Or maybe not. Campos is “hearing the HISD takeover will be announced on Friday”. Which, I guess, still comes down to the meaning of “takeover”. But if you phrase it that way, I know where my mind is going. We’ll maybe find out tomorrow.

The forced-birth zealots target the Internet

Mar 9th, 2023

by Charles Kuffner.

Comments are off for this post

I hate to be an alarmist, but we live in a time and a place where stuff like this has to be taken seriously.

A proposed state law in Texas would force Internet service providers to block websites containing information on how to obtain an abortion or abortion pill. Republican lawmaker Steve Toth, a member of the state House of Representatives, introduced the bill last week.

Texas already has several laws that heavily restrict access to abortion, but the new proposal is notable for its attempt to control how ISPs provide access to the Web. “Each Internet service provider that provides Internet services in this state shall make every reasonable and technologically feasible effort to block Internet access to information or material intended to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug,” the bill says.

The bill lists six websites that would have to be blocked: aidaccess.org, heyjane.co, plancpills.org, mychoix.co, justthepill.com, and carafem.org. ISPs would also have to block any website or online platform “operated by or on behalf of an abortion provider or abortion fund” and any website or platform used to download software “that is designed to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug.”

Finally, the bill would force ISPs to block any website or platform “that allows or enables those who provide or aid or abet elective abortions, or those who manufacture, mail, distribute, transport, or provide abortion-inducing drugs, to collect money, digital currency, resources, or any other thing of value.”

People who become aware of websites containing prohibited abortion information may notify an ISP “and request that the provider block access to the information or material in accordance with that section,” the bill says.

Toth’s proposal isn’t just aimed at ISPs. Individuals in Texas would be prohibited from making or hosting a website or platform “that assists or facilitates a person’s effort in obtaining an abortion-inducing drug,” for example.

More broadly, the bill would establish “civil liability for distribution of abortion-inducing drugs.” It attempts to extend the law’s reach outside the Texas borders, saying “the law of this state applies to the use of an abortion-inducing drug by a resident of this state, regardless of where the use of the drug occurs.” Women who get abortions would not be held liable, as the bill targets distribution instead.

The bill would create a private civil right of action that would let individuals sue people or organizations that violate the proposed law. The private right of action would include letting Texans sue any interactive computer service that provides “information or material that assists or facilitates efforts to obtain elective abortions or abortion-inducing drugs.”

While the bill would make it a criminal offense to pay for the costs of an elective abortion or to destroy evidence of an elective abortion, it mostly limits enforcement to civil lawsuits in other circumstances. It specifies that no state or municipal official can take action against ISPs, interactive computer services, or others who violate specific sections of the law.

It’s hard to know even where to begin with this kind of malevolence, but one must note the vigilante bounty hunter aspect of it, which thanks to the cowardly SCOTUS blessing of SB8 means it will be used as a get-out-of-being-sued card for this kind of legislation for the foreseeable future. As I said, I don’t want to be an alarmist, and at this time I don’t think this bill has any real chance of becoming law. That’s not the same as having zero chance, and if we’ve learned one thing over the past 20 or so years with the Legislature, it’s that what is now fringy whackjob stuff may tomorrow be one of Dan Patrick’s legislative priorities. The mark of a true zealot is that they never give up, and Steve Toth is a true zealot. The answer to this is the same answer I’ve been giving for every other piece of crap that has been thrown at us lately, which is that we need to elect more Democrats. I wish there were an easier way, but there isn’t. Add this to the ever-increasing list of reasons why.

And because I feel the need to clear some tabs, here’s some further reading on related matters, if you want to ruin your weekend:

One Florida Case Shows How the U.S. Became a Rogue State on Abortion

Abortion funds in Texas are unsure if they will resume supporting people after court ruling

Walgreens won’t distribute abortion pills in some states where they remain legal

We know that support for abortion rights is on the rise, but that only matters if people vote on it. It’s all of our job to make sure everyone knows how out of touch with public opinion he Republicans are and what they are trying to do. They’re not going to stop, so they have to be stopped.

One small gun loophole may get closed

Mar 9th, 2023

by Charles Kuffner.

Comments are off for this post

Take your wins where you can find them.

Texas lawmakers are working to plug a gap in a 2009 law that was meant to keep people with a history of serious mental health issues from legally acquiring firearms.

Bipartisan legislation has been filed in the state House and Senate that would explicitly require courts to report information on involuntary mental health hospitalizations of juveniles age 16 and older after a ProPublica and Texas Tribune investigation revealed that they were being excluded from the national firearms background check system.

Under the current law, county and district clerks across the state are required to send information on court-ordered mental health hospitalizations to the Department of Public Safety. The state’s top law enforcement agency is charged with forwarding those records to the FBI’s National Instant Criminal Background Check System, known as NICS. Federally licensed dealers are required to check the system before they sell someone a firearm.

Elliott Naishtat, a former state lawmaker from Austin who authored the 2009 law, told the news organizations that he intended for it to apply to all Texans no matter their age. But following the May 2022 school shooting in Uvalde, the outlets discovered that local court clerks were not sharing that information for juveniles, either as a matter of policy or because they didn’t believe that they had to.

A bill by state Sen. Joan Huffman, a Houston-area Republican, passed unanimously out of committee last week with bipartisan support.

The legislation aligns Texas with new federal reporting requirements and is “meant to make the background check more thorough and hence make our communities and schools safer,” Huffman at the committee hearing.

Congress passed gun reform legislation in June that includes a requirement that federal investigators check state databases for juvenile mental health records. But such checks would fail to reveal many court-ordered juvenile commitments in Texas because they are not currently being reported.

See here for the background. This is a small thing and it will have a small effect. It’s still better than not doing it, and as a proponent of the idea that effective gun control involves a lot of small, overlapping protections in order to be effective, I’m happy to see these small steps take place even as we pointedly ignore the larger ones. It’s still one piece we won’t have to fit in later, and it will do some good in the meantime. The story notes that Naishtat had been making some calls to his former colleagues urging them to close this loophole, and to whatever extent he had an effect I salute him, and Sen. Huffman as well.

UPDATE: The bill has now passed the Senate, the first bill to do so. It heads to the House next.

Bills filed to stop the TEA takeover of HISD

Mar 8th, 2023

by Charles Kuffner.

5 comments

Feels too late to me, but it can’t hurt to try.

State senators have filed the first bill to soften the law that triggers school district takeovers.

State Sens. Carol Alvarado, Borris Miles and John Whitmire filed Senate Bill 1662 in response to the threat of a possible takeover of Houston Independent School District by the Texas Education Agency. State Rep/ Alma Allen has filed companion legislation in the Texas House.

The bill modifies the current state law to provide TEA additional tools to address low performance ratings such as hearings before the commissioner, academic achievement plans, appointing agency to monitor, but not replace trustees, among other items. Under SB 1662, the TEA commissioner will have broader discretion to choose an alternative that does not require a school closure or the appointment of a board of managers.

Given Phyllis Wheatley High School improvement to a C and the district’s overall B rating, the TEA’s reason for initiating a takeover bid in 2019 is no longer valid, Alvarado said.

“It is unjust and unwarranted for TEA to move forward with a takeover,” Alvarado said in a statement. “S.B. 1662 offers the agency options to work collaboratively with HISD to address any current deficiencies instead of subjecting nearly 200,000 students and 27,000 teachers and employees to a takeover.”

Other leaders also made promises to get answers. NAACP president Bishop James Dixon said he plans to call a meeting with TEA commissioner Mike Morath. U.S. Rep. Sheila Jackson Lee said she intends to bring the issue to the Biden administration and the U.S. Department of Education.

HISD Trustee Patricia Allen said the trustees, administrators and other HISD representatives will let their grievances be known when they go to the legislator March 20.

“We have been in this fight before we even came in office,” Trustee Patricia Allen said at a community meeting at North Main Church of God in Christ in the Heights. “The board has been working since we were elected. We have a lone star governors coach, a TEA program — we have tried our best, hired the best superintendent.”

See here for the previous update, and here for my discussion of things that could be done to stave this off. As I said then, even if these bills have the support to pass and are allowed to come to the floor, it would be at least weeks and more likely months before they would take effect. Thus, unless Mike Morath is agreeable to wait it out, the legislative process is just too damn slow. I appreciate the effort, but let’s not put our hope in something that can’t work unless Morath and the TEA are willing to let it work.

Now having said that, it’s Tuesday afternoon and the TEA hasn’t taken over HISD yet, so maybe Morath is waiting until something happens to take him off the hook. Stranger things and all that. I would encourage Trustee Allen and Bishop Dixon and whoever else can get a meeting with Morath to ask him nicely if he’d at least talk to these legislators before he does anything. As with the bills themselves, it can’t hurt. Getting the feds involved has a chance of achieving something, and it could be done quickly, but it would also be super antagonistic, so let’s try the “ask very nicely for a delay” option first, since it surely won’t work if we do it the other way around. Throw everything at the wall, but do so in the proper order.

Oh, and why wasn’t a bill like this filed in the last Lege? Well, maybe there was one – I’d have to look, I don’t know offhand. That would have solved the timing issue, but only if it was allowed to pass, as with this one, and we didn’t know we’d need it because of the then-ongoing litigation. I think it’s at best a tossup whether these bills get even a committee hearing now, and I’d say that was never in the cards in 2021. That’s easy to say, and if we give credit for trying now we do have to ask what we tried then. We’re in this situation now regardless, so let’s not waste too much energy on what could have been. What it is now is what matters.

Former Land Commissioners oppose anti-Open Beaches bill

Mar 3rd, 2023

by Charles Kuffner.

2 comments

From the inbox:

Among coastal states Texas is unique. The 1959 Texas Open Beaches Act (TOBA), as well as time-honored common law and tradition in existence since long before 1959, provides that Texas beaches are open to the public. In 2009, Texans voted by a 77% to 23% margin to enshrine TOBA into the Texas Constitution.

Unfortunately, public access to Texas beaches may soon end if legislation filed in Austin passes into law.

Senate Bill 434, by Senator Mayes Middleton of Galveston, would strip the authority of the Texas General Land Office (GLO) to define the boundaries of the public beach and would allow the upland beachfront property owner to make that determination. The property owner could then deny access to the public beach easement that existed between the line of vegetation (LOV) and the mean high tide mark. That would then limit Texas beachgoer’s access to only what is known as the “wet beach” – the area between the low tide and the high tide lines. When that area is washed by waves during periods of high tide, SB 434 would result in there being no beach at all for Texans to use.

If SB 434 passes, don’t be surprised if you show up at your favorite beach spot and you’re confronted with a fenced off beach or no trespassing signs. The only remedy available to you then would be a suit against the adjacent upland landowner. Yes, on your next trip to the beach you should consider bringing along your lawyer. You should also be prepared to drag your kids, your cooler, and your beach gear through the shallow tidal waters in order to enjoy the beach.

Beachfront property owners can’t claim ignorance of the public beach easement. Since 1986 they have received notice of the public beach easement in the documents they signed at closing.

Ironically, SB 434 doesn’t just hurt Texas beachgoers, it hurts beachfront property owners as well. Public money must be spent for a public purpose. The GLO and local governments will be unable to spend money on improving property with no public access. There will be no beach renourishment projects, no beach cleanup, and no beach maintenance in areas where property owners claim the beach has no public access easement. There is currently an expansive beach renourishment project ready to go at Jamaica Beach on Galveston Island that will be cancelled. In addition, developers of coastal property will be handicapped if the GLO is no longer able to determine survey data needed to designate set back lines for coastal construction.

Please join us in opposing SB 434. Contact your State Senators and State Representatives. You can find their contact information at Texas Legislature Online at www.capitol.texas.gov.

God Bless Texas,
David Dewhurst, Garry Mauro and Jerry Patterson, Former Texas Land Commissioners

I get a lot of unsolicited requests to run op-eds here, the vast majority of which come from bots and SEO-addled PR flaks who wouldn’t know me from a Buzzfeed listicle. This one came from someone I do know, former Land Commissioner Jerry Patterson, who I spoke to several times during his tenure. We absolutely disagree on a lot of policy matters, but I always respected him as Land Commissioner, and he ran an open and transparent office. On the matter of the Texas Open Beaches Act, we are in firm agreement. I’ve blogged about it before, most recently after a couple of lousy SCOTx opinions that weakened the Open Beaches Act. I’m happy to cosign this.

Here’s SB434. I have not seen any public statements from the current Commissioner, Dawn Buckingham, about this bill, but all indications are that she opposes it and supports public beach access along with these three and unlike her immediate predecessor, George P. Bush. Hopefully that will carry some weight. In the meantime, it can’t hurt to tell your legislators that you also oppose this bill and hope that they will stand for keeping Texas’ beaches open, as they should be.

UPDATE: The op-ed is in the Chron as well. But you saw it here first.

Lege targets Harris County election administrator

Feb 28th, 2023

by Charles Kuffner.

Comments are off for this post

We knew something like this was coming.

House and Senate bills filed by Republican lawmakers in response to Harris County’s mismanagement of its recent elections could give the Texas secretary of state the authority to step in, suspend county election administrators when a complaint is filed and appoint a replacement administrator.

Election administration experts told Votebeat the legislation was an overreaction to the desire to hold Harris County accountable for years of election mismanagement, and would disrupt the state’s ability to help county election offices improve and address systemic problems.

If passed, the secretary of state’s office would change from being a guide and resource for election workers to being an auditor that can investigate and fire them. Some election officials are concerned this change could prevent local election workers from asking questions or seeking help from the office for fear of being reprimanded.

“Currently we work hand-in-hand. [The secretary of state’s staff] are our No. 1 resource, and that benefits all voters,” said Jennifer Doinoff, Hays County elections administrator. “Putting them in the position of oversight would definitely change the dynamic.”

Authored by state Rep. Tom Oliverson and state Sen. Paul Bettencourt, both Harris County Republicans, the bills are among several already filed this legislative session in reaction to the long lines, late openings and reports of shortages of ballot paper on Election Day in Harris County. More than 20 lawsuits from losing Republican candidates have also been filed against the county, citing those problems and seeking a redo of the election. Harris County Elections Administrator Cliff Tatum did not respond to Votebeat’s request for his comment about the legislation.

House Bill 2020 and Senate Bill 823 would allow the secretary of state’s office to take action in a county if a complaint is filed by one of several officials and organizations involved in elections, and if there’s “good cause to believe that a recurring pattern of problems with election administration exists.”

The bills list five causes for suspension of an elections administrator:

malfunction of voting equipment,

unfair distribution of election supplies,

errors in tabulation of results,

delays in reporting election returns,

discovery of voted ballots after the polls close.

Currently, any problems that arise in an election or with an elections administrator are handled by the county’s election commission. Those commissions are made up of the county judge, the tax assessor-collector, the county clerk and the chairs of local political parties. The commission’s oversight powers allow it to appoint, terminate or accept the resignation of the county’s election administrator.

Some Texas voting rights groups worry the Legislature will use the problems in Harris and those lawsuits as “an excuse” to advance bills such as these. The League of Women Voters of Texas in a statement last week said such legislation, if passed, “is fraught for potential abuse, infringes on the rights of county governments to select their own elections administrator, and demeans the meaning of local governance.”

Slightly more than half of Texas counties appoint nonpartisan election administrators to run their elections. This legislation would apply only in those counties and not in the 122 that elect county clerks or tax assessors tasked with running elections and handling voter registration.

“We are subject to the authorities of those that appointed us,” said Remi Garza, Cameron County elections administrator and the Texas Association of Elections Administrators legislative committee co-chair. “It does cause concern that somebody from outside that jurisdiction would be able to usurp the authority of the elections commission in dealing with their elections administrator.”

There’s more, but I don’t have the mental energy to continue, so go read the rest for yourself. This story came out the same day that a Senate committee approved a bill making “illegal” voting a felony with even harsher punishments and lower standards for “illegality” than before. So, you know, a banner Monday.

My first thought is that I’m not really clear what these guys are aiming at. I mean, Harris County could in effect call their bluff, restore election administration to the County Clerk, have Cliff Tatum move over and be the chief of elections under Teneshia Hudspeth, and this bill would no longer apply to us. Democrats would still be running the elections. Maybe they actually think Stan Stanart can win that ridiculous election contest, I don’t know. At this level, this is just weird.

Second, these bills – I assume they’re identical in each chamber – are just a mess. The story goes into detail about how absurdly vague the provisions are, which could put a whole lot of election administrators in solidly red counties in danger if something goes wrong, as things sometimes do. I obviously wouldn’t expect the Secretary of State to crack down on, say, Bell County as they’re slavering to do to Harris, but it could be that the first example to be made is in a red place. This is what happens when you let your rage control you.

(Of course, if we had managed to pass a federal voting rights law over the past two years, we wouldn’t be talking about any of this now. But hey, Joe Manchin and Kyrsten Sinema preserved the filibuster, so.)

Third, I kind of suspect that in the same way that the TEA probably doesn’t actually want to take over HISD, the SOS probably wants no part of administering Harris County elections. It’s big, it’s hard to do, and most importantly now everything that goes wrong is your fault. Who wants that? But the Republicans in the Lege don’t care about that. Slapping around Harris County is the point. If there’s collateral damage, so be it.

And finally, with a less-predatory state government, we could have a reasoned discussion and admit there are problems that could be fixed with some help from that state government and Lege find ways to do elections better that aren’t predicated on punishment and the exercise of raw power. And if I flap my arms and think happy thoughts, I could fly.

I’ve made the decision to pay less attention to the Lege than I have in the past because I don’t need the mental torment. The Republicans are gonna do what they’re gonna do, and we can’t stop them. One fine day we’ll win enough elections to make it stop, but until then this is what we’re gonna get. I don’t know what else to say.

Paxton makes his plea to the Lege

Feb 22nd, 2023

by Charles Kuffner.

Comments are off for this post

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.

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

Feb 21st, 2023

by Charles Kuffner.

2 comments

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.

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

Feb 19th, 2023

by Charles Kuffner.

2 comments

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.

Three stories on Uvalde and gun control

Feb 19th, 2023

by Charles Kuffner.

Comments are off for this post

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.

Where we are on the agenda

Feb 16th, 2023

by Charles Kuffner.

Comments are off for this post

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.

The last thing we need is more people in the jail

Feb 14th, 2023

by Charles Kuffner.

Comments are off for this post

This is a rare place where Democrats have leverage. Make good use of it.

With an eye on Harris County, Texas lawmakers are considering new measures aimed at keeping more defendants accused of violent and sexual crimes behind bars as they await trial, building off recent changes that clamped down on the use of cashless bail in state courts.

Republicans have made the issue a priority in recent campaigns and legislative sessions, arguing that stricter bail laws are needed to curtail a rise in the number of defendants, particularly in Harris County, charged with new crimes while out on bond. State GOP leaders have pinned most of the blame on local Democratic judges, who they accuse of setting overly lenient bail conditions.

Democrats and civil rights groups say the GOP’s 2021 bail overhaul, Senate Bill 6, has done little to address the problem because it sets limits only on no-cost and low-cost bonds — meaning those who can afford to post bail can still do so, while only those without enough cash are forced to stay behind bars.

Opponents of the GOP bail restrictions have pointed to a Chronicle analysis that found most people accused of murder while out on bond in Harris County had secured their release by paying bail.

Restricting the use of cash bail would require amending the Texas Constitution, a step proposed by Republican lawmakers in 2021 that failed to attract enough support from Democrats.

This session, state Sen. Joan Huffman — the Houston Republican who authored the GOP’s priority bail bill in 2021 — is planning to take a second crack at an amendment that would authorize judges to deny bail “under some circumstances to a person accused of a violent or sexual offense.”

For now, the Texas Constitution places firm restrictions on when judges can deny bail outright, generally guaranteeing defendants a right to pretrial release unless they are charged with capital murder or meet certain criteria for repeat violent offenses. Two years ago, Republicans sought to expand those conditions, but the measure died in the House over opposition from Democrats who said the proposed changes were too broad.

[…]

Huffman has said she also wants to expand the 2021 GOP bail bill to deny no-cost personal bonds to defendants charged with violating family violence protective orders and unlawfully possessing a weapon as a convicted felon. The bill already prohibits the use of personal bonds for some 20 violent and sexual crimes.

It also provides judges and magistrates with more information about a defendant’s criminal history and requires them to consider that factor, among others, when setting bail.

Local felony court judges, for their part, say they have set higher bail amounts for felony charges in recent years, but are still hamstrung in most cases by the bail guarantees in the state constitution.

State Rep. Ann Johnson, D-Houston, said she is “open” to a bail-related constitutional amendment, but only if Republicans also commit to changes aimed at tackling Harris County’s enormous backlog of cases and reducing mass incarceration.

“I think what we have to be mindful of is not overdoing it. We’re talking about changing the foundation of our constitutional requirements,” said Johnson, the former chief human trafficking prosecutor in Harris County. “If I thought that would make you safer, I’m open to those things. But that, in the absence of the investment in the infrastructure of the public safety system, the criminal justice system, is expedient. Yeah, it sounds good. But I don’t know that it has the effect that we all desperately want.”

To put it mildly, putting more people in jail so they can just wait there until their trial is a really bad idea right now. Ensuring that the only people who get stuck in jail are those who can’t afford to buy their way out is both a bad idea and almost certainly unconstitutional. The price of any cooperation from Democrats, who have to vote for this in at least some numbers to meet the two-thirds threshold, starts with adding more felony court judges – Harris County has received exactly one new district criminal court judge since 1984, when there were two million fewer people living here – and really needs to include a lot more funding for mental health services for the county jail. Really, that should read “expanding Medicaid”, because that would provide a ton of funding for mental health services and it would be mostly paid for by the feds, but we know that’s not going to happen. It would still be a good idea to make the point about it at every opportunity anyway.

This is one thing Republicans can’t do on their own. If they want our help, we need to have a list of things for them to agree to first. Don’t fumble the chance, y’all.

The big voter suppression law is even worse than you thought

Feb 12th, 2023

by Charles Kuffner.

Comments are off for this post

Such a lovely little surprise tucked in there.

When state lawmakers passed a sweeping and controversial new election law in 2021, they quietly included a provision that drew little notice or debate.

But election administration experts say the measure is unprecedented, it mandates the purchase of voting technology that doesn’t currently exist — and it’s on the verge of costing taxpayers more than $100 million.

Sponsors of the provision said they aimed to prevent cheating in elections by prohibiting the use of modern technology to count votes and store cast ballot data. It passed without debate on a voice vote, and goes into effect just before the November 2026 general election.

When it does, millions of dollars’ worth of voting equipment will immediately be prohibited by the new law, a situation that could force at least some counties to hand-count ballots for lack of a legal alternative. Election officials across the state are worried they’ll be left without the tools necessary to safely deliver accurate and timely election results.

“Humans make mistakes. I’m very worried about the accuracy of our elections if we have to rely on a hand tally of votes,” said Chambers County Clerk Heather Hawthorne. “The inaccuracies would be huge and our state would be in trouble.”

Election security experts are also concerned. “You may be able to conduct an election but it would not be accurate, it would not be secure, and would not be timely,” said Ryan Macias, an election administration, security, and technology expert and founder of the elections consulting company RSM Elections Solutions. “With how complicated U.S. elections are, this is inconceivable.”

Here’s how it works now: With permission from the Texas secretary of state, election officials use media storage devices such as USB flash drives — provided by state-certified voting machine vendors — to collect data from ballot scanners used at precincts and voting centers on Election Day. Those drives are how officials easily and safely take that data on cast ballots to a central counting station, where they’re inserted into a tabulating computer to quickly gather results. The equipment involved is expensive, and elections officials reuse it each time an election is held, writing over the previous data with the new election data.

But the provision — proposed by Sen. Bob Hall (R-Edgewood) and supported by the then-bill’s primary author, Sen. Bryan Hughes (R-Mineola) — prohibits the use of this exact kind of data storage device that can be reused, including the ballot scanners and the tabulating machines. Experts say that, in order to fully comply with the new law, counties would have to buy entirely new voting systems each election cycle.

Lawmakers knew that, or should have — the secretary of state’s office provided cost estimates before the bill passed.

According to those estimates, it will cost taxpayers more than $116 million to replace the eliminated equipment. Because any new machines cannot be reused — the data can only be “written once” — counties would be forced to continue buying new equipment. The secretary of state’s office estimates that this ongoing cost will be more than $37 million every two years.

And that’s if counties can even find compliant voting technology to buy. The Texas secretary of state’s office says the two Texas-certified voting machine vendors, Hart InterCivic and Election Systems & Software, also known as ES&S, do not currently build such machines. In fact, no machine matching the specifications has been invented by any company operating in the United States. Nonetheless, Hall’s provision requires states to have purchased and implemented the technology by Sept. 1, 2026.

Hall did not respond to multiple requests for an interview, nor did Hughes. In an emailed statement to Votebeat, Hall insisted his intention was “to provide an additional measure of security,” and that the technology would ensure that final counts represent voter intent. Asked how he’d achieve additional security by requiring counties to buy nonexistent machines, he did not respond. Asked to offer his thoughts on the total cost to taxpayers, he did not respond.

Hall said much the same when he offered the bill on the floor in 2021. The provision would, he said, prevent votes from being “manipulated” between the precincts or vote centers and the central counting station. Hall provided no evidence of any instances of manipulation at the time, nor did he do so for this story. He also did not respond to questions about the practical application of the law.

There’s more, so read the rest. Of interest is that the story quotes election clerks from two rural Republican counties complaining about the cost of this provision. If you think it takes Harris County too long to count ballots now, imagine how much time they’ll need to do it by hand.

Anyway, Bob Hall is both one of the dumbest and most conspiracy-addled Senators out there, but this provision was supported by SB1 author Bryan Hughes as well, and he’s supposed to have a few working brain cells. The good news, if you want to be optimistic, is that there’s two sessions in which to fix this travesty. At least now we know it’s there. Getting someone on the Republican side to admit to it and try to deal with it, that’s the bigger challenge. Time’s a-wasting, y’all.

Still more Uvalde bills from Sen. Gutierrez

Feb 10th, 2023

by Charles Kuffner.

Comments are off for this post

At least one of these might have a chance to pass.

Sen. Roland Gutierrez

State Sen. Roland Gutierrez wants the Texas Department of Public Safety to create robust mass shooting response training for all public safety entities after the chaotic response to the Uvalde school massacre delayed medical treatment of victims.

“Everybody in Texas needs to examine the complete and utter failure that happened on this day,” Gutierrez said at a news conference in Austin, joined by families of victims from last year’s Uvalde shooting and the 2018 Santa Fe High School shooting. “It must not ever happen again.”

The new slate of bills Gutierrez unveiled Tuesday came less than two months after an investigation by The Texas Tribune, ProPublica and The Washington Post found a faltered medical response undermined the chances that some Uvalde victims would survive the shooting.

[…]

On Tuesday, Gutierrez said the victims who had a pulse before later dying “might have lived” had the response been more in line with the average length of a mass shooting, which he said was about 12 to 14 minutes, compared to the 77 minutes children waited in Uvalde before the shooter was killed.

“We do not know how many of the other kids that didn’t have a pulse, at what time did they expire?” he said. “We do not know that.”

Gutierrez is a San Antonio Democrat whose Senate district includes Uvalde. His Senate Bill 738 calls for ensuring all public safety entities in certain counties have the radio infrastructure for communication between all public safety entities, including between different kinds of agencies.

Further, the bill would create a process to train public safety entities in responding to mass shootings. The training would be required to include protection of students at a school; emergency medical response training in minimizing casualties; tactics for denying an intruder entry into a school or classroom; and the chain of command during such an event.

Another legislative proposal outlined Tuesday would create a law enforcement unit tasked with having at least one officer present at each public school and higher education facility in the state. The unit, Texas School Patrol, would be expected to coordinate with local police officials about emergency responses to mass shooting events.

A third proposal, which Gutierrez called “a little bit more aspirational,” would replace a Confederate monument at the Capitol with a memorial to honor victims and survivors of mass gun violence.

“Each parent should be able to send their kids to school knowing that they’re going to be able to pick them up at the end of the day,” Gutierrez said. “We can afford to do this and we should do this and it will have the adequate training to make sure that they can handle this type of situation.”

Senate Bill 737, to create the new police unit, would require 10,000 additional officers in the state within the Texas Highway Patrol; it would cost about $750 million, Gutierrez said.

See here, here, and here for the background on Sen. Gutierrez’s efforts, and here for more on the failed medical response at Robb Elementary. I don’t want to predict success for any bill, especially a Democratic bill in Dan Patrick’s Senate, but SB738 strikes me as the kind of thing that probably won’t generate much ideological opposition. Spending money on enhanced security measures is one of the few acceptable-to-Republicans responses to mass shootings, so it has a chance. SB737 might have a chance as well, but it’s a lot more expensive and that might make people balk, even in a flush-budget biennium. I’m not saying these would be my top choices for bills to pass – I think SB738 has merit and hope it succeeds, while I’m far less enthusiastic about SB737 – but they are the sort of thing that could pass. This is the state government we have.

Now we have a gambling bill filed by a Republican Senator

Feb 7th, 2023

by Charles Kuffner.

1 comment

Maybe this is the gambling expansion bill that those who want gambling expansion have been waiting for.

Sen. Lois Kolkhorst

Advocates for legalizing online sports betting in Texas debuted new bills Monday that take a narrower approach than they did in 2021 — and feature a new author in the state Senate who is a Republican.

The involvement of Sen. Lois Kolkhorst, R-Brenham, who is carrying the legislation, is notable because she is an ally of Lt. Gov. Dan Patrick, who is seen as the biggest hurdle to expanding gambling in Texas. The previous sports-betting bill filed in the last legislative session was carried by Democrat and got virtually no traction in the GOP-led Senate.

Like it was in 2021, this year’s legislation is backed by the Texas Sports Betting Alliance, a coalition of pro sports teams in the state, racetracks and betting platforms. Members include heavy hitters such as the Dallas Cowboys, the Dallas Mavericks, the Houston Astros, the San Antonio Spurs, the PGA Tour and DraftKings. Former Gov. Rick Perry is also working with the alliance on the issue this year.

The legislation would ask voters to decide in a November election whether they want to legalize what the alliance calls “mobile sports betting,” or wagering on games online. That is most commonly done through phone applications like DraftKings.

The major difference from the 2021 bills is that the latest legislation does not legalize in-person sports betting, which would allow bets to be taken at the facility where a team plays. This change was largely expected as the alliance prepared for this session with branding that emphasized “mobile sports betting” and protecting Texans’ data.

“I introduced SB 715 and SJR 39 because Texas needs to bring security and safety into the world of mobile sports betting,” Kolkhorst said in a statement. “It makes sense to reign in all of the illegal offshore betting and keep sports wagering funds here in Texas.”

Like the 2021 legislation, the latest sports-betting bills would put a 10% tax on its revenue.

While Kolkhorst is carrying the legislation in the Senate, state Rep. Jeff Leach, R-Plano, is authoring it in the House. The 2021 House author, Rep. Dan Huberty, R-Houston, did not seek reelection. Leach joint-authored Huberty’s proposal.

State Sen. Juan “Chuy” Hinojosa, D-McAllen, carried the legislation in the Senate last time. He has signed on as a joint author to the most recent bill from Kolkhorst.

The Sports Betting Alliance is one of two major camps pushing to expanding gambling in Texas this session. The other is a group led by the gaming empire Las Vegas Sands, which wants to legalize casinos in addition to sports betting.

See here for the background. As I said then, if Sen. Kolkhorst is filing a bill like this she is almost certainly doing it with the consent of Dan Patrick. Doesn’t mean Patrick will support it himself, but it seems likely to me that he’ll let it proceed on its own, which is surely more than any previous attempt has gotten. Whether it makes it through or not, he can say it’s what his caucus wanted.

That other story came out over the weekend, and it’s about an alliance between casino interests and horserace tracks, which honestly feels like a throwback to the Joe Straus days to me. I didn’t write about it because I didn’t think it moved the needle at all, and I still don’t. If anything, it could be the death knell for the Kolkhorst bill, even though its bill (filed by Republican Rep. Charlie Geren in the House) makes mention of sports betting. My guess is that the casinos would like sports betting to take place at their house, preferably only at their house, and that will be the source of some (maybe lots of) friction. Until there’s a Republican Senate version of that bill, I don’t see Patrick backing off on his traditional opposition to that form of expanded gambling.

Of course on the other hand you have Greg Abbott and Dade Phelan expressing their interest in “destination-style” resort casinos. Which could coexist with sports betting as in the Kolkhorst bill, or it could become a huge obstacle if as mentioned the casinos insist that all sports betting should take place at casinos. Maybe everyone gets on the same page and it’s enough to even overcome Dan Patrick. Or maybe the casinos get into a cage match with DraftKings et al and in the end it’s the same bloody and expensive failure these efforts have always been. I will continue to lean towards failure until proven otherwise, but I will admit that’s a shakier proposition now than it has usually been.

Not quite the same old gambling story

Jan 29th, 2023

by Charles Kuffner.

2 comments

This Trib story about the state of gambling expansion in the Lege is not the usual formula. It has a lot of the usual elements, but for the first time there’s some hint of maybe something could happen. Maybe.

Photo by Joel Kramer via Flickr creative commons

Gambling legalization advocates in Texas are going all in again this legislative session, confident that they have built more support since their efforts came up far short in 2021.

The push is still an uphill battle, however, as Lt. Gov. Dan Patrick, who oversees the Senate, continues to pour cold water on the idea. But supporters have found promising signs elsewhere, and they have returned to the Capitol with an army of well-connected lobbyists after doling out millions of dollars in campaign contributions during the 2022 election.

There are two main camps pushing for expanded gambling in Texas — and right now, they appear to be operating on parallel tracks. The first is a continuation of a lavishly funded and high-profile effort initiated by the late Sheldon Adelson and his gaming empire Las Vegas Sands to legalize casinos, specifically high-quality “destination resorts” in the state’s largest cities. The other lane is the Texas Sports Betting Alliance, a coalition of professional sports teams in the state and betting platforms that is exclusively focused on legalizing mobile sports betting.

Gambling is largely illegal in Texas with exceptions including the lottery, horse and greyhound racing and bingo. Texas has three tribal casinos, which are allowed to operate under federal law.

The Sports Betting Alliance already made a splash in the lead-up to this session by hiring former Gov. Rick Perry as a spokesperson.

“What’s changed [since 2021], I think, is the continuing education of the general public that this is not an expansion of gambling,” Perry said in an interview, suggesting that Texans already participate in this sort of gambling in other states or illegally. “It’s going on, it’s gonna continue to go on and the state of Texas needs to regulate it and make sure that its citizens’ information is protected.”

[…]

Given the stiff headwinds to getting any expansion in gambling passed, sports betting and casino advocates may be competing against each other, rather than working in tandem.

The Sports Betting Alliance is officially neutral on legalizing casinos, but the Sands team has welcomed collaboration, noting its proposal would additionally legalize sports betting.

Advocates for sports betting see their cause as a standalone issue that is more palatable for lawmakers. Perry said there is a “clear delineation” between what the Sports Betting Alliance is pushing for compared with legalized casinos.

“The other issues that are out there, they’ll have to stand or fall on their own,” Perry said. “I don’t think these will be tied together in any point in time.”

It is unclear if Patrick, the highest-ranking hurdle to expanded gambling, sees a similar distinction between the causes and could be more amenable to sports betting. His top political strategist, Allen Blakemore, recently signed up to lobby for the Sports Betting Alliance through the end of the year. And Patrick is close with Perry, once calling him “one of my best friends in life.”

Neither Patrick’s office nor Blakemore responded to requests for comment.

In the December TV interview, Patrick said no one had mentioned expanded gambling to him and no Republicans had filed bills on it yet. But advocates are making the case to Senate Republicans, and at least one of them, Sen. Lois Kolkhorst of Brenham, is giving thought to the sports-betting push.

“It’s true that Senator Kolkhorst is studying legislation to regulate ongoing app-based sports betting in Texas but she doesn’t comment on pending legislation,” Kolkhorst’s chief of staff, Chris Steinbach, said in a text message. “She will have more to say once a bill were to be filed.”

Neither Perry nor Blakemore as lobbyists impresses me. If hiring the right lobbyists was the key, this would have happened a long time ago. If there’s one thing the gambling interests know how to do, it’s hire lobbyists.

What does make me raise my eyebrows and go “hmmm” is the possibility that Sen. Kolkhorst could file a pro-gambling bill. That would at least contradict Dan Patrick’s statement about there being no Republican-filed bills; note that for these purposes, what he really means is a Senate Republican-filed bill. He doesn’t really care if House GOPers file these bills. Kolkhorst is a big Patrick ally, and I just don’t think she’d waste her time on a bill that she knows going in won’t get a committee hearing. If she does file a bill, it will be after she’s had some conversations, and assurances, from Patrick about its future.

Now, note that we don’t actually have Kolkhorst saying she’ll file a bill, nor do we know what might be in that hypothetical bill. We have chatter from the lobbyists that she’s thinking about it. That doesn’t sound like much, but it’s more than we’ve seen before. I do think that whoever sourced that info to the Trib wouldn’t have done so without Kolkhorst knowing about it. It would be an extreme rookie mistake for a lobbyist to drop a name like that and have it vehemently denied and maybe get that legislator mad at you.

The dynamic of the two main interests competing against each other, and thus possibly decreasing the already slim chances that something could get voted on, is something we’ve seen before. Back when the discussion was about casinos and slot machines, we had the horse racing interests pushing for casinos at their racetracks, while the casinos were pushing for, you know, casinos. Here, the sports betting interests don’t need for there to be casinos for them to operate – as we know from those tedious Mattress Mack stories, where he drives to Louisiana to place one of his ridiculous bets on his phone, an app is all they need – but you can of course also bet on sporting events at casinos, and that’s what those folks would want. And “destination-style” casinos are what Abbott and Phelan have said they’d be interested in. You can have both but you don’t need both, and they’re both incentivized to say “hey, if you only want to support just one, support us!”

Two more points. One is that these interests have already spent a crap-ton of money, mostly on Republicans since that’s who they really need to convince, and will spend a lot more before all is said and done. I don’t know how much that has actually gotten them – the old adage about “if you can’t take their money and drink their liquor and screw their women and vote against ’em anyway you don’t belong in the Lege” still applies – but it’s what they do. You can feel however you want about expanded gambling – as you know, I’m adamantly ambivalent about it – but if you’re a Democrat and you support gambling, you should keep that in mind. And two, the usual opponents of expanded gambling are quoted at the end of the story like they’re not worried, they’ve seen this all before and they say they’re not seeing anything new. I tend to believe them – the “gambling expansion will fail” position has been correct for a long time – but to be fair, they could well want to project that same calm and confidence even if the tide was turning. So draw your own conclusions.

Sen. Gutierrez files more Uvalde bills

Jan 29th, 2023

by Charles Kuffner.

Comments are off for this post

Wish I could say any of these had a chance, but the work he’s doing is still vital and necessary regardless.

Sen. Roland Gutierrez

State Sen. Roland Gutierrez, who represents Uvalde, said Tuesday that he is leading legislation to make it easier for families of the Robb Elementary School shooting victims to sue the state and police officers over the botched law enforcement response.

The San Antonio Democrat and other Democratic senators are introducing four new pieces of legislation that seek to increase gun safety and law enforcement accountability. The news came during a press conference, where they were flanked by several of the victims’ families.

“We’re not asking for the moon and the stars. We’re asking for commonsense solutions,” Gutierrez said.

Gutierrez filed Senate Bill 575 to end qualified immunity for police officers, a judicial doctrine that shields government officials from liability for constitutional violations. The doctrine has been spotlighted nationally in recent years because it is routinely used to protect law enforcement officers from being sued in cases of excessive force. He said ending qualified immunity will make it easier for the families of the Uvalde shooting victims to seek damages after the flawed law enforcement response to the Uvalde school shooting, in which hundreds of officers descended on the school but did not confront the gunman for over an hour.

This bill is accompanied by Senate Concurrent Resolution 12, which he co-authored with other Democratic senators, that “empowers” families of the Uvalde shooting victims to sue the state and its agencies.

“I support law enforcement 100%, but under no circumstances should they have [allowed] what happened on that day,” Gutierrez said. “They failed these children for 77 minutes for a lack of leadership — under no circumstances should they be allowed to walk away and not compensate people. There’s no amount of money that’s going to bring back their children. But there should be justice, so today’s about justice.”

Gutierrez said he plans to file about 20 bills in total in response to the Uvalde shooting.

See here and here for the background. Like I said, I expect basically nothing from any of these bills. The Republicans have made their position clear, and they see no reason to budge. Their rabid voters wouldn’t let them anyway. The next best thing, which we need to do anyway, is make the case to the public. We know plenty of people support a lot of these ideas. Getting them to vote for politicians who support them, that’s the problem. Sen. Gutierrez almost certainly won’t get any of his bill passed this session, but he is – and should be – working for the next session, or the one after that. It’s good to start now.

More on the PUC’s attempt to fix the grid

Jan 28th, 2023

by Charles Kuffner.

1 comment

From TPR:

After the last big blackout, state lawmakers passed Senate Bill 3, telling the commission to improve grid reliability. So, commissioners have been working on changing the state’s electricity market. They want to reform how energy is bought and sold on the power grid to create a market that makes sure power is there when people need it.

To do that, the commission hired a consulting firm that came up with a plan called a Performance Credit Mechanism, PCM for short.

Basically, this plan would create reliability credits that electricity providers (the companies most Texans pay their power bills to) have to buy from power generators (the companies that own the power plants). The credits represent a commitment from those power generators to deliver electricity when the grid is most stressed.

“I believe that PCM is the right solution because it’s a comprehensive solution that sets a clear reliability standard as required by [Senate Bill] 3,” Peter Lake, chair of the Public Utility Commission, said earlier this month.

The consulting firm that came up with the plan says it will cost $5.7 billion more a year. Supporters say power generators will use that money to invest in new power plants and to keep the energy supply humming in extreme weather. They also argue that not all that extra money will be shouldered by consumers. But, in Texas, consumers typically end up eating extra costs.

The plan is supported by power plant owners, who stand to earn money from the credits. The Electric Reliability Council of Texas, the state’s grid operator, is in favor of it. Gov. Greg Abbott and Public Utility Commissioners, including Lake, who are appointed by Abbott, also support the PCM.

The list of opponents appears to be significantly longer.

The independent market monitor, a position that serves kind of as a third-party auditor for the Texas grid, does not think it is a good plan. Consumer and environmental groups oppose it or are skeptical. The Texas Association of Manufacturers, a group that represents big industrial energy users in the state, is against it. The oil and gas lobby is not convinced it will work, and many state politicians also oppose it.

This group of opponents represent diverse interests, so their reasons for opposing the PCM vary.

Environmentalists point out that the plan is designed to bring more natural gas power plants to Texas, which is bad for climate change and air pollution.

Others, who want more natural gas plants built, argue that the PCM may not accomplish that goal. Some would prefer more direct subsidizing of new plants instead of the addition of a new layer of rules into the already complex Texas energy market.

And others say a big overhaul of the energy market is not even necessary, and that the grid can be improved without investing billions in building more power plants.

“I think we have an operational flexibility problem,” Carrie Bivens, the PUC’s independent market monitor, told a state Senate Committee late last year. “I do not believe we have [an energy] capacity problem.”

One thing all opponents agree on is that the plan is untested. It will cost billions, but there’s no real-world example to show it will work.

See here for the background. At this point, it’s not about whether this plan works or not. The issue is with going forward with an untested plan when there was a lot of disagreement about what that plan was and even a lack of consensus that this was the right kind of plan. It’s also not clear to me what the definition of success is for this plan. If new plants are built, which is the goal of this plan, but big outages still occur, is that a “success” because the new plants were built? If the capacity issues that Carries Bivens identifies are fixed before any new plants get built and the outages go away, is that a success for the plan? This is a basic thing that happens in the business world. If we can’t be sure that the plan worked, how will we know if it’s a good idea to do again if the same problems arise later? We’re just rolling dice and hoping for the best here.

The next round of voter suppression bills are coming

Jan 27th, 2023

by Charles Kuffner.

4 comments

Brace yourselves.

Texas Republicans spent most of the 2021 legislative session focusing on election security — and this year, it’s a top priority for them again.

GOP leaders are discussing a range of election security measures, from higher penalties for voter fraud to broader power for the attorney general to prosecute election crimes. Many of them target Harris County, which Republicans have spent the past two years chastising for back-to-back elections blunders.

“Harris County is the big problem,” said state Sen. Paul Bettencourt, a Houston Republican who plans to file close to a dozen election bills this legislative session. “You’ve got the nation’s third-largest county that has had multiple problems with multiple election officers, to the point where one had to resign, and the problem is that it’s too big a piece of the electorate to ignore.”

Harris County Elections Administrator Clifford Tatum did not respond directly to the criticism, but said the office supports any legislation that increases voter registration and access to voting.

“Right now, we are focused on implementing new systems to promote the efficiency with which our office runs elections,” Tatum said in a statement.

[…]

Bettencourt said he’s considering a bill that would raise the charges for some voting-related misdemeanors, such as failing to provide election supplies.

He also questioned the existence of — and the accountability measures for — the election administrator position in Harris County. [Isabel] Longoria was the first, appointed under a newly created office in late 2020; Tatum was named as her replacement last July.

“That’s somebody that’s supposed to have better acumen and better results than elected officials, but the reverse has been proven to be true in Harris County,” Bettencourt said. “One of the things we’re going to have to explore is: Why aren’t the elected tax assessor-collector and the elected county clerk — which are, quite frankly, both Democrats — why are they not running the election, where there’s some public accountability?”

I’ve said this multiple times before, but as a reminder for the slow kids in the class, many counties have election administrators, including many Republican counties like Tarrant and Lubbock. Ed Emmett first proposed the idea for Harris County. There were problems with elections back when the County Clerk – specifically, Stan Stanart – was in charge of running them. This is nothing but a pretext.

Beyond Harris County, lawmakers are looking at a slate of statewide elections reforms, starting with returning the penalty for illegal voting to a felony instead of a misdemeanor. The Legislature lowered the punishment when it passed Senate Bill 1, but top Republicans — including Gov. Greg Abbott and Lt. Gov. Dan Patrick — have pushed to return it to the stiffer penalty.

Republican House Speaker Dade Phelan, whose chamber amended the bill to include the lower penalty, rejected the idea when it was first floated during a series of 2021 special sessions.

“This important legislation made its way through the House after several thoughtful amendments were adopted,” he said. “Now is not the time to re-litigate.”

[…]

State Rep. Jacey Jetton, a Richmond Republican, said he’s exploring legislation to facilitate [the mail ballot] process, such as enabling election officials to check all identification numbers associated with an individual at the Texas Department of Public Safety. He also wants to review the system’s new online mail ballot tracker and ensure it’s working properly.

Republicans have also introduced bills to further investigate election fraud, to limit the state’s early voting period from two weeks to one, and to set earlier deadlines for handing in mail ballots. And some of them are hoping to give Attorney General Ken Paxton stronger authority to prosecute election crimes, after the state’s highest criminal appeals court ruled in 2021 that he could not unilaterally take on such cases.

Currently, Paxton can only get involved if invited by a district or county attorney, according to the court’s ruling. The decision led to an outcry from top Republicans, including Abbott and Patrick, who called for the case to be reheared.

Paxton encouraged his supporters to launch a pressure campaign and flood the court with calls and emails demanding, unsuccessfully, that they reverse the decision. The move prompted a complaint to the State Bar accusing Paxton of professional misconduct for attempting to interfere in a pending case before the court.

Much of this is also covered in this Trib story. I don’t know if Speaker Phelan will be persuaded or arm-twisted into changing his mind about making whatever minor infractions into felonies, but I hope he holds out. I commend Rep. Jetton for his interest in reducing the number of mail ballot rejections, though I have a hard time believing anyone can get such a bill through the Lege. As for Paxton’s continued desire to be Supreme Prosecutor, the CCA’s ruling was made on constitutional grounds. I feel confident saying that a constitutional amendment to allow this will not pass.

Anything else, however, is fair game and just a matter of whether the Republicans want it to pass or not. They have the votes and they have the will, and there’s basically nothing Dems can do to stop them. They’ll fight and they’ll make noise and they’ll employ the rules and pick up the occasional small-bore victory, but in the end they have no power. You know the mantra: Nothing will change until that changes.

And yes, it really is all about voter suppression, even if Texas Republicans are better than their Wisconsin colleagues at keeping the quiet part to themselves. It’s certainly possible that these laws aren’t as good at actually suppressing the vote as they’re intended to, but that’s beside the point. If they keep making it harder to vote, and they keep making it costlier to make an honest mistake in voting, and that cost is almost entirely borne by Democratic-leaning voters of color, it’s suppressive. The debate is about the extent, not the existence.

Poncho Nevárez’s recovery

Jan 20th, 2023

by Charles Kuffner.

Comments are off for this post

Good story.

State Rep. Poncho Nevárez felt the sudden urge to fall back on old tendencies when the state’s top law enforcement officer gave him a call in the fall of 2019.

An envelope, with his official letterhead, containing about 2 grams of cocaine had been found by authorities on the floor of the Austin airport weeks earlier, Texas’ Department of Public Safety Director Steve McCraw told him.

Nevárez was tempted to cover it up with more of the lies, omissions and deceit that had marked the last several years of his life.

A personal injury lawyer who’d been representing his Eagle Pass district for about six years at the time, he now likens the addict’s mentality to that of a mouse constantly searching for a way to escape traps and still somehow keep the cheese.

It was the same way of thinking that led him to make a choice that any sober person would find superbly dense: taking drugs to a federally secured airport in a receptacle with his own name on it.

“It doesn’t even seem like a choice,” he recalls, adding he didn’t even realize at the time where he’d lost it. “There’s a part of you that’s dominated by the disease that tells you that whatever the risk is, it’s worth it.”

This time, though, there was no room for deception: Police had video of him dropping the drugs.

Weeks later, as a meeting with prosecutors approached, he drank and used again. The next morning, weary and hungover, as he dropped off his son, Ponchito, at school, the reality of how his actions had been affecting others stirred something in him.

“You look sad, papi,” his 9-year-old told him from the backseat, stretching his small arm toward his father, offering him a pouch of Welch’s fruit snacks. “I like these because they make me happy because they’re good.”

“It broke me,” Nevárez said. “I didn’t just need to change — now I wanted to… I just kind of intuitively felt that If I tried to defend it, or if I tried to make it go away, I wasn’t going to survive it, and I’m not talking about the fallout. I’m talking about living.”

At the meeting with law enforcement, he came clean and learned he was eligible for pretrial diversion, an alternative to prosecution for offenders who stay out of trouble and comply with other terms, such as mandated counseling or community service.

That was Oct. 14, 2019. Ever since, Nevárez says he has maintained not just abstinence, as he likes to stress, but the conscious everyday choice of sobriety.

See here for a bit of background. I hadn’t thought much of former Rep. Nevárez since then, though I’d occasionally see him on Twitter, often in the replies to political and Texas media types that I follow, usually making a wisecrack. He’s making music now, and seems to have had some success at it. The impression I came away with from this piece, which includes quotes from several of his former Lege colleagues, is that he is in a better place now, and I’m glad to see it. I hope that continues. Go read the rest and see what you think.

Uvalde parents will take their fight to the Lege

Jan 17th, 2023

by Charles Kuffner.

2 comments

They’re not going to get what they want and they know it, but they’re still going to fight. I have so much respect for them.

More than seven months after a teenage gunman killed 21 people at Robb Elementary School, the speaker of the Texas House was in Uvalde for a private meeting with relatives of the victims.

Dade Phelan had never met them. After the introductions in a room at the local community college, a family member started with the group’s main question: Will the Legislature raise the minimum age to purchase an assault-style weapon from 18 to 21?

Phelan was up front with them: No.

The House doesn’t have the votes, he said. And no, he doesn’t personally support it, either.

The tense discussion on Jan. 4 lasted just shy of an hour and a half, and Phelan spent most of it discussing potential mental health legislation, participants said. The families left discouraged, unsure of their next steps in a state where Republicans, most of whom oppose any firearm restrictions, control the Legislature.

It marked an awkward transition for the Uvalde activists, who have spent months advocating for gun control laws. They felt welcomed and heard on lobbying trips to Washington, D.C., and several of them campaigned heartily for Democratic gubernatorial candidate Beto O’Rourke, who lost his challenge to Gov. Greg Abbott on Nov. 8.

Phelan was one of the few lawmakers to address the Uvalde shooting when the legislative session began Tuesday, promising “sensible, meaningful change.” Republican leaders have focused on bolstering mental health resources and improving the physical defenses of schools — both of which have bipartisan support as the session starts.

But the prospects for any gun regulations in Texas are dim, leaving the Uvalde families convinced that the next mass shooting is only a question of time.

“I just feel like we’re in new territory,” said Kim Rubio, who lost her 10-year-old daughter, Lexi, at Robb Elementary School. “When this happened, there was a lot of talk at the federal level about making changes, so we really hit the ground running toward that. Now, we’re back at square one.”

It’s kind of painful, but you can read the rest. The best the Uvalde parents can hope for is a state ban on straw-person sales, which is already a federal crime. Beyond that, it’s the usual bunkum about guns not being the problem and there being nothing we could do to stop the next school shooter even if guns were the problem, some promises to increase security at schools, and some vague and meaningless words about mental health. The school security measures have some value, and I’d be all right with them for the most part if they were part of a larger deal that included real gun reform, but they’re not. As these parents know all too well, it’s just a matter of time before some other group of parents are in the same unfathomable position they’re in now. They’re trying to do something about that, but they really can’t, not right now. This isn’t a lobbying or legislating matter, it’s a political and electoral one. That’s a bigger and more long-term problem. I wish them all the best anyway.

Two out of three state leaders open to expanded gambling

Jan 13th, 2023

by Charles Kuffner.

1 comment

As we know, two out of three ain’t bad, but it also ain’t enough.

Photo by Joel Kramer via Flickr creative commons

House Speaker Dade Phelan on Thursday left the door open to legalizing sports betting and casino gambling in Texas, the latest sign that opposition may be softening among state Republican lawmakers, though the proposal still faces major hurdles in the Senate.

Phelan, the Beaumont Republican who leads the Texas House, told reporters in a roundtable interview he believes voters would approve a referendum on expanded gaming options. With limited exceptions, most forms of gambling are prohibited by the Texas Constitution, which can only be amended if two-thirds of lawmakers in both chambers agree to put the matter to a statewide vote.

Echoing Gov. Greg Abbott, who voiced support last fall for expanding gambling options, Phelan said he doesn’t want to “walk into every convenience store and see … slot machines.”

“I want to see destination-style casinos that are high-quality and that create jobs, and that improve the lifestyles of those communities,” Phelan said.

[…]

This session, the gambling industry has hired an army of lobbyists to push for casino and sports betting legalization. Last month, however, Lt. Gov. Dan Patrick said he isn’t expecting the issues to go anywhere.

“I don’t see any movement on that right now,” Patrick said in an interview with KXAN-TV in Austin.

Patrick, a Houston Republican who has overseen the Texas Senate since 2015, said that doesn’t mean things can’t change during the 140-day legislative session, which kicked off Tuesday.

He said there is “a lot of talk out there” about gambling, but he hasn’t seen any Senate Republicans file a bill on the issue yet. State Sen. Carol Alvarado, a Houston Democrat, has filed legislation to open the state to casinos and sports betting, however.

See here for some background. I’m not saying Dan Patrick can’t change his mind on this. I have no idea what Dan Patrick will do. I’m just saying that until he says he’s changed his mind, nothing has changed. That’s really all there is to it. Reform Austin has more.

It’s re-redistricting time

Jan 13th, 2023

by Charles Kuffner.

1 comment

More amusing than alarming, with a bit of annoying as well.

The Texas Senate voted unanimously on Wednesday to again take up the decennial process of redrawing the boundaries of the state’s political districts a year and a half after the Legislature completed the process and yielded new districts. Those newly drawn districts increased the Republican majorities in both the Senate and the House and reduced the voting strength of voters of color.

The redistricting process this year is mostly procedural and is not expected to produce very different results.

Sen. Joan Huffman, R-Houston, said she was taking the step “out of an abundance of caution” to ensure that Legislature had met its constitutional requirement to apportion districts in the first regular session after the federal census, which is done every 10 years. Because of the pandemic, census numbers were not released until after the end of the last regularly scheduled legislative session on May 31, 2021. Redistricted maps were passed in a subsequent special session that year.

Two Democratic lawmakers, Sens. Roland Gutierrez of Antonio and Sarah Eckhardt of Austin sued, saying that violated the Texas Constitution because the census numbers weren’t received until Aug. 12, 2021. That would make the current legislative session, which kicked off on Tuesday, the first regular session since the release of those numbers.

Eckhardt said the Senate’s decision to take up the issue again proves she and Gutierrez were right on the law, but she said she didn’t expect much change in the maps drawn by the state in 2021.

“I think this will be a check-the-box exercise,” she said. “I would have liked to have seen in the first go-around a substantive discussion and taking the input of constituencies into account.”

[…]

Huffman, who led the redistricting committee in the 2021 legislative session and will again lead its efforts this year, said the procedure would follow similar rules to those applied last session and would create an opportunity for “regional hearings” to be held in the Capitol that will be streamed on the internet for the public across the state. The public will also have an avenue to testify in those hearings virtually. Those hearings will be held between Jan. 25 and 28.

See here, here, and here for some background. While this resolution is only for the Senate, the same exercise will need to occur for the House and the SBOE as well; Congressional redistricting is exempt because the constitutional provision only applied to state offices. I think Sen. Eckhardt is correct in her assessment, and it’s a shame that the State Supreme Court did not see it the same way, but here we are. I presume the federal litigation over Texas’ maps and processes will be unaffected by this – the legal issue in question was one of state law. As noted I don’t expect much to change, but anytime there is redistricting there is the potential for shenanigans, so stay alert. Reform Austin.

The Lege does its housekeeping

Jan 12th, 2023

by Charles Kuffner.

1 comment

In the Senate, they drew their lots to see who would have to run again in 2024.

Sen. John Whitmire

It was the luck of the draw for Texas senators on Wednesday as they drew lots to decide which half of them would get two-year terms and which would get four-year terms.

The practice is outlined in Article 3, Section 3, of the Texas Constitution, which calls for “Senators elected after each apportionment [redistricting]” to be divided into two classes: one that will serve a four-year term and the other to serve a two-year term. That keeps Senate district elections staggered every two years. After that, senators serve four-year terms for the rest of the decade.

On Wednesday, each of the chamber’s 31 lawmakers walked to the front of the chamber and drew lots by picking an envelope that held a pill-shaped capsule. Inside the capsules were numbers: Even numbers meant two-year terms, and odd were for four-year terms.

“I’m sure each and every one of you are happy with what you drew, right?” Lt. Gov. Dan Patrick joked.

Sixteen senators had Lady Fortune on their side and drew four-year terms, and fifteen unlucky souls will have to run for reelection in two years.

[…]

All eyes were on Sen. John Whitmire, a longtime Democrat who has announced plans to leave the chamber to run for Houston mayor after the session, and Judith Zaffirini, a Laredo Democrat who is second in seniority to Whitmire.

Whitmire drew a two-year term, and Zaffirni drew a four-year term.

Three freshmen senators drew two-year terms, including Democrat Morgan LaMantia of South Padre Island, who was in the tightest race in the Senate last year. The two other freshmen, Republicans Kevin Sparks of Midland and Mayes Middleton of Galveston, both drew four-year terms.

After the 2012 election, the main question was whether then-Sen. Wendy Davis, who won a tough race in a district carried by Mitt Romney, would have to run again in 2014. She drew a short straw, and I think that contributed to her decision to run for Governor. Of course, we were in a time and of a political makeup in which Dems were getting creamed in non-Presidential years. That changed quite dramatically in 2018, when Dems won back Davis’ old seat and picked up another Senate seat as well. Sen. LaMantia had a tough race in 2022, and at this time I have no idea if it’s better for her to run in 2024 or not. We’ll just have to see.

As for Whitmire, what this means is that if he’s elected Mayor this year, things will be messy in SD15 the next year. There would be both a primary and a special election to replace and succeed him, much as there was in HD147 this past year. You could have the primary winner, who would get to serve a four-year term after winning in November of 2024, and the special election winner, who would serve out the remainder of 2024, be two different people. One person could face five elections total in 2024, if the primary and the special both go to runoffs; this would happen for someone who wins the primary in a runoff and makes it to the runoff (win or lose) in the special. Did I mention that the primary runoff and the special election would take both place in May, but on different dates, again as it was in HD147? Speaking as a resident of SD15, I’m already exhausted by this possibility, which may not even happen. May God have mercy on our souls.

Anyway. The Houston-area Senators who will be on the ballot in 2024 are Carol Alvarado (SD06), Paul Bettencourt (SD07), John Whitmire (SD15), and Joan Huffman (SD17). The ones who get to wait until 2026 are Brandon Creighton (SD04), Mayes Middleton (SD11), Borris Miles (SD13), and Lois Kolkhorst (SD18).

Meanwhile, over in the House…

Texas House leadership on Wednesday shut down a long-building push to ban Democratic committee chairs, deploying procedural legislative maneuvers to defeat multiple proposals on the issue.

The chamber also approved new punishments for members who break quorum, like most House Democrats did two years ago in protest of GOP-backed voting restrictions. Those members left for Washington, D.C., for weeks to stop the House from being able to do business in an effort to prevent passage of the bill. Under the new rules, quorum-breakers can now be subject to daily fines and even expulsion from the chamber.

The chamber passed the overall rules package by a vote of 123-19, with Democrats making up most of the opposition.

Going into the rules debate, most attention was on the subject of committee chairs, who have the power to advance legislation or block it from being taken up by the full House. For months, a small but vocal minority of House Republicans have been calling for the end of the chamber’s longtime tradition of having committee chairs from both parties. But Speaker Dade Phelan, R-Beaumont, and his allies moved successfully Wednesday to prevent the matter from even getting to a vote on the floor.

They did it by passing a “housekeeping resolution” earlier in the day that included a new section codifying a constitutional ban on using House resources for political purposes. That resolution passed overwhelmingly with little debate or fanfare. Rep. Charlie Geren, R-Fort Worth, then cited the new provision to call points of order — procedural challenges — on two amendments proposed by Rep. Bryan Slaton, R-Royse City, to restrict Democratic committee chairs. Phelan ruled in favor of Geren both times.

“The amendment would require the speaker to use public resources, including staff time and government facilities, on behalf of one political instrumentality,” Phelan said the first time. “This obviously would require the speaker to violate the Housekeeping Resolution.”

It was a relatively anticlimactic end to the fight over Democratic committee chairs, which were a major issue in House primaries earlier this year, a rallying cry for conservative activists and a recurring theme in speeches as the legislative session kicked off Tuesday. After the House reelected Phelan by a nearly unanimous vote, he cautioned freshmen to “please do not confuse this body with the one in Washington, D.C.”

“After watching Congress attempt to function last week, I cannot imagine why some want Texas to be like D.C,” Phelan said.

Committee appointments are expected to be made in the next couple of weeks. Phelan has said he will appoint roughly the same proportion of Democratic chairs as last session, but it remains to be seen whether they’ll be appointed to lead any powerful or coveted committees.

The amendment about sanctions for quorum-busting drew more No votes, almost entirely from Dems. Honestly, I have no problem with what was passed. It’s perfectly appropriate for the chamber to have sanctions for that kind of action, and it’s not that different, at least to my mind, than what was passed after the 2003 walkout. New rules get adopted each session, this can always be revisited in the future. TPR has more.

HD135 election contest dismissed

Jan 12th, 2023

by Charles Kuffner.

Comments are off for this post

From the inbox:

This week, Speaker of the Texas House Dade Phelan dismissed the election contest filed by Mike May, the candidate who lost to Representative Jon Rosenthal in the 2022 election for house district 135. The case was dismissed because May failed to timely pay the security of costs required by Texas law.

“This quick dismissal shows these election contests are largely about political posturing and undermining our democratic processes,” said Harris County Attorney Christian D. Menefee. “I thank Speaker Phelan and Representative Morgan Meyer for upholding the law and ensuring the will of the voters stands.”

Under Texas law, the Texas House of Representatives presided over this contest because it was filed by a candidate for that body. Unfortunately, more than 20 other election contests are still pending in Harris County—most of those races had greater vote margins than May’s. Those cases are expected to proceed over the next few months.

See here for the background. This one was particularly unserious, and the resolution shows how weak it was. Here’s County Attorney Menefee’s Twitter post, with a copy of the letter to May from Speaker Phelan:

NEW: Speaker Phelan dismissed losing House candidate Mike May’s election contest against @Jon_RosenthalTX because he didn’t pay the required fees.

This quick dismissal shows these election contests are largely about political posturing and undermining our democratic processes.

— Christian D. Menefee (@CDMenefee) 1:38 PM – 11 January 2023

My post about the HD135 election contest ran on December 3, so it was filed at least one day before then. The deadline for paying the required fee – I have no idea how much, but if there was even a sliver of a chance this was for real, this guy would have had no trouble getting some fat cat to pay for it as needed – was December 9. Maybe he could have gotten an extension if he’d asked and had some reason for it, but practically speaking this thing has been dead for a month.

This has no effect on the other challenges filed by other losing losers, as legislative contests are heard in the House while these others will be argued in a courtroom. They aren’t any more valid, they’re just in a different venue. From the County Attorney’s press release, they may take awhile to be resolved. I will of course keep an eye on them. The Trib, whose story published after I drafted this and which mostly recapitulates what I’ve got here, has more.

Is trap-neuter-return illegal?

Jan 11th, 2023

by Charles Kuffner.

1 comment

A question that could affect a lot of cities, including Houston.

Trap, neuter, return programs are popular across Texas as a way to control feral cat populations. But one local official is now posing a thorny question: Are they legal?

Brazoria County District Attorney Tom Selleck has asked the attorney general’s office to determine whether the initiatives run afoul of animal cruelty laws that criminalize abandonment.

Selleck insists he is not trying to put an end to the programs, but instead wants clarification as several cities in his area consider their use.

“We’re certainly not saying it’s a bad program, quite the contrary, I think it has some excellent benefits,” he said. “I just don’t want somebody getting arrested over it. I’d like to know what my parameters are as a prosecutor.”

Attorney General Ken Paxton has yet to issue the opinion that could have sweeping implications for animal control efforts in Dallas and other cities. In addition to managing stray cat populations, the programs are also credited with cutting back on nuisance mating behaviors like fighting, yowling and marking.

Generally the programs work like this: Stray cats are trapped, then sterilized and vaccinated by a veterinarian before being returned to where they were found. Animals that have been through the process are often marked with a clipped ear.

In his November letter, Selleck questioned whether the programs may conflict with a state law that makes it a crime to abandon “unreasonably an animal in the person’s custody.”

“Returning the animal into the wild, without making reasonable arrangements for another individual to take custody of said animal, operates as a form of abandonment, by letter of the law,” he wrote. “If the abandonment is made unreasonably, such as leaving the stray in an open and unsafe environment, then that may support a conviction.”

Danielle Bays, a senior analyst for cat protection and policy at the Humane Society of the United States, pushed back on that notion.

“It’s not as if these cats are being left to fend for themselves,” Bays said. The stray cats are returned to the same place they were trapped, she said, often where they’re being fed or cared for by people.

“I don’t know of anywhere where people have actually been charged with abandoning cats when they return them to where they were found,” she said. “If you’re taking those cats and releasing them somewhere else, if you were just dumping them somewhere, that’s not the same thing.”

I get where DA Selleck is coming from – certainly as an officer of the court he wants to make sure he’s in compliance with the law – but I dunno, if the issue has never come up before and so many cities have been doing this without any problems, maybe it’s not an issue? Houston is one of those cities, so we have some skin in this game. Selleck says that he hopes the AG’s office will return an opinion in time for the Lege to take action if needed, a sentiment with which I agree. That said, if there really is a concern, there’s no reason not to ask a legislator right now to craft and carry a bill that would clarify the law and remove the potential conflict. Why take the chance on the opinion landing after the bill filing date, or the Lege not having the time to move it after the opinion drops? If it’s an issue, take action now. That’s my opinion.

It’s going to be a brutal legislative session for LGBTQ folks in Texas

Jan 10th, 2023

by Charles Kuffner.

1 comment

I really wish this weren’t the case, but it is. It’s going to be bad.

Two bills that would ban classroom instruction about sexual orientation and gender identity in Texas public schools before certain grade levels are poised to receive top Republican backing in this year’s legislative session. But critics warn that the legislation could further marginalize LGBTQ students and families while exposing teachers to potential legal threats.

The two bills — authored by Reps. Steve Toth, R-The Woodlands, and Jared Patterson, R-Frisco — closely resemble legislation out of Florida that critics dubbed the “Don’t Say Gay” law. House Bill 631 and House Bill 1155 are among a flurry of anti-LGBTQ legislation awaiting lawmakers when they return to the Capitol on Tuesday.

Florida’s law prohibits schools from teaching about sexual orientation or gender identity from kindergarten through third grade. Both Texas bills mirror such a ban. Toth’s HB 631 would expand the restriction until fifth grade. Patterson’s HB 1155 would extend it to eighth grade.

Their proposals would also prohibit lessons on sexuality and gender identity at any grade level if they are “not age appropriate or developmentally appropriate.” Patterson’s bill doesn’t define what is appropriate for various age groups. Toth’s bill requires the lessons to align with state standards but doesn’t specify which standards.

Like Florida’s law, the two Texas bills don’t explicitly ban the use of the word “gay” in schools. The bills’ authors also maintain that the legislation would protect “parental rights” by allowing parents to more directly control what their children learn in school, including the existence of different sexual orientations and gender identities.

“Parental rights are paramount to the safety and well-being of a child,” Patterson said in a Jan. 3 tweet introducing his bill. “Therefore, I filed HB 1155 to ensure no school teaches radical gender ideology to any child from K-8th grade, and where parents must review and sign off on any health-related services.”

Lt. Gov. Dan Patrick has signaled that he would support passing a Texas version of the Florida law — even before these bills were filed.

“I will make this law a top priority in the next session,” he said in a campaign email last April.

Critics of the legislation argue that the bills’ vague nature would suppress discussion related to LGBTQ issues and representation.

“The reality is that everybody has a gender identity and sexual orientation; avoiding those conversations is incredibly difficult,” Adri Pérez, an organizing director with Texas Freedom Network, told The Texas Tribune. “What it becomes is a tool to be leveraged specifically against LGBTQIA+ people, because what stands out is not the people who fit in but the people who are being specifically targeted and attacked as being different.”

[…]

Chloe Kempf and Brian Klosterboer, attorneys with the American Civil Liberties Union of Texas, said the bills could pose explicit risks to teachers and school districts in the form of lawsuits from parents who believe they’re not following the law.

Toth’s bill outlines a mechanism for parents to sue school districts for violating his proposals, which includes the parental notification portion of that bill. Experts say that part of these bills could require teachers to potentially out their students, and parents could sue districts if teachers don’t comply. School districts would be saddled with the cost of those lawsuits, experts say.

More broadly, Kempf said, the bills would pose risks to schools and educators in the form of potential ultra vires claims, which enable citizens to sue public officials who violate state laws. Although it’s not clear if these types of lawsuits would be successful, Klosterboer said, the larger impact is more confusion and headaches for schools.

“When a law is vague, it allows for discriminatory and targeted enforcement. And it also creates a very hostile and chilling atmosphere where people … go out of their way to self-censor,” Kempf said.

The bills’ vague language could also present challenges for schools trying to protect teachers from potential lawsuits.

“[Schools] might not even know what to tell teachers and staff how to actually protect themselves and protect the school district,” Klosterboer said.

Klosterboer added that it seems “very likely” that if Gov. Greg Abbott signs one of the bills into law, it would invite legal challenges.

[…]

Ultimately, LGBTQ advocates argue that these legislative actions are just another attack on an already marginalized population. As of last week, Texas Republican lawmakers have already filed 35 anti-LGBTQ bills for the 2023 session, far outnumbering the number of such bills that were filed ahead of the 2021 session, according to [Ricardo Martinez, CEO of Equality Texas].

“The legislation is meant to stigmatize LGBTQ people, isolate LGBTQ kids, and make teachers fearful of providing safe and inclusive classrooms,” he said.

There is ongoing litigation over Florida’s “don’t say gay” law. It will eventually be decided by SCOTUS. So yeah, that’s going great, too.

I would like to say something encouraging here. For sure, plenty of smart and passionate and dedicated people will do everything they can to fight these terrible bills, and you should do everything you can to help them. But the reality is that the Republicans have the numbers. They can pass whatever bills they want. This is what they want to do, and they believe they have a mandate after the 2022 election. They’re not going to stop until they’re voted out. Again, I wish I could tell you something else, but I can’t. It’s going to be a very rough six months. The Observer has more.

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