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January 12th, 2012:

Abercia arrested

Well, this explains a lot.

Longtime Harris County Precinct One Constable Jack Abercia and two of his staffers were arrested Thursday morning on suspicion of violating several federal laws, including conspiring to accept bribes and using the county office for private gain.

Federal agents arrested Abercia, 78, Chief Lieutenant Weldon Kenneth Wiener, 72, and Office Chief Michael Butler, 56. The trio is scheduled to appear in Houston federal court within about an hour.

A 13-count federal indictment returned on Tuesday and unsealed after the arrests accuses Abercia and Wiener of soliciting and accepting money from companies interested in running background checks on prospective employees through the National Crime Information Center (NCIC) database, which is restricted to law enforcement use.

The indictment charges 11 specific acts of misuse of NCIC in November, but it also alleges the practice had been going on in the constable’s office for a longer period of time.

Abercia and Butler are also charged with bribery in connection with the hiring of an otherwise unqualified deputy constable in return for a $5,000 bribe in July 2010.

We first heard about the FBI looking into Abercia and his office in mid-December. Just before the end of the year, Abercia announced he would not run for re-election, though he had previously filed to do so, citing his health and denying that the investigation had anything to do with it. This week he submitted his resignation, which was to take effect on January 31. I daresay today’s events have cast all of these prior ones in a different light. You can see a copy of the indictment here. It’s not as sexy as some of the other crimes committed by elected officials around here lately, but if true they’re every bit as tawdry and disgraceful. For shame, shame on all three of them. Hair Balls has more.

Sylvia Garcia’s impressions of the SCOTUS oral arguments on redistricting

Former County Commissioner Sylvia Garcia was in Washington, DC to attend the Supreme Court hearing on the Texas redistricting case. I asked her before she left if she would be interested in writing about her impressions of the case for publication here. This is what she sent me:

Sylvia Garcia’s Impressions on Supreme Court arguments in Texas Redistricting Case

Sylvia Garcia

With only a few sentences into his argument, the State’s lawyer was interrupted by Justice Sotomayor (one Wise Latina) with a pointed question “does that not turn Section 5 of the Voting Rights Act (Act) on its head?” And, from there it was about an hour and half of lively and engaging oral arguments before the Supreme Court of the United States.

It was a “bucket list” item for me as a lawyer and former Judge but for all of us in Texas, it was a monumental hearing which will set the political stage for the next decade in Texas and could well have repercussions for decades to come.

I won’t dwell on how we got here except to remind us that there are many things at play. There is the Justice Department who enforces the Act and there was a lawyer there making arguments in behalf of the government. Then there is the San Antonio federal court that ordered the interim maps which are subject of this appeal by the State of Texas. The “State’s” lawyer was there and by State’s lawyer I don’t mean our Attorney General. He was there too, but not to argue though he did sit at the counsel’s table. Our State’s lawyer was a hired gun. Then there is the D.C. District Court who has jurisdiction of the redistricting case itself and has in fact scheduled a trial to begin in a couple of weeks. Now, if that is not confusing, let me make a few points about the Voting Rights Act (Act) itself.

The Act was designed to provide the opportunity for minorities to elect a candidate of their choice and to ensure the constitutional principle of “one person/one vote”. Early on it was about African American voting rights and recently, it’s about the growing Latino population. In Texas, it is about both. There are two sections of the Act which come into play: Section 2 which protects minority voters from changes that would deprive them of an effective vote for a candidate of their choice. That means no dilution of minority voting. Section 5 which prohibits changes that worsen the position of minority voters with a discriminatory purpose. That means that there can be no changes with a discriminatory purpose. I won’t pretend to try to unravel it all. I simply want to give a backdrop to what is at stake and provide a few personal impressions.

First, I was impressed that all the Justices except Justice Thomas who traditionally never asks questions, asked many questions. I didn’t expect it to be so lively, so engaging and almost to the point where Chief Justice Roberts couldn’t get a question in and at times had to sort through who was asking what as some Justices were gently interrupted. It was like watching big leagues point counterpoint.

Secondly, I was impressed that the Justices quoted transcript page numbers, talked specifically about maps, and genuinely appeared to know the case. Justice Sotomayor described the El Paso District as “antler-type district, a head and two unconnected antlers on top, nothing tying them together“. Justice Breyer quoted from transcripts to make several points. Justice Kagen quoted from the record below. I was impressed. If interested, the full transcript of the hearing is on line on the Supreme Court web page at My impressions however are taken from my notes during the arguments. A side note, we had to check in all our electronics which meant no photos, no text, no tweets and no recordings. Nada.

Third, and what you probably are most interested in. What may or may not happen? I was relieved when Chief Justice Roberts noted “the Voting Rights Act is not at issue here”. Frankly, many of us feared the Court would use this case to hold the Act itself unconstitutional, another “Gore-ing”. Hearing the Chief Justice say that was good news. However, the same cannot be said with regard to Section 5 of the Act. Many of the Justices, clearly more than five and that’s all they need, had questions that would lead one to infer that they are prepared to end it, change it or set new legal standards for its application. Or, as Justice Sotomayor said, “turn it on its head”. Not good news.

Also, the Chief Justice was overly concerned about “coalition districts” and questioned whether the Act should even apply to them as the Act’s intent was to protect minority rights. As he put it, “It’s one thing under the Voting Rights Act to say that this group votes as a bloc and has been discriminated against in its ability to elect representatives of its choice. It’s another thing to say that two different minority groups are put together because they share some particular view so that one candidate is going to be each of theirs candidates of choice. That goes quite a step further from what we have upheld under the Voting Rights Act”. Clearly, coalition districts will get a hard look and may not receive any deference and may be eliminated when new maps are drawn. That could also be bad news.

Questions also seemed to suggest that the Justices are not overly concerned by Texas’ primary timeline. Justice Sotomayor pointedly asked, “… what’s the real drop-dead date? It’s not November 6th, because that’s the date of the general election. What’s the latest election — primary election that any State has? June 26th? What is our drop dead deadline?” With that and rather quickly other Justices pointed out Utah’s late primary, other states’ primaries and it was obvious that their only concern was the big deadline- November 6. 2012. Garza (challenging maps) pointed out that “The — the critical date is 45 days from the election in order to ensure — sending out a ballot to overseas voters, including the military. So if — if you go back 45 days and then you give the jurisdiction sufficient time to develop a ballot, because you need a ballot to send to the — to the soldiers, then that’s about — what they — what the testimony was is that takes about — 90 days, I believe is what they testified. So 45 days plus 90 days, and that’s the drop-dead deadline. That would put us at about June 26.”

It definitely appeared to me that the Court was more focused on what the D.C. Court will do in a few weeks than worrying about the primary time line in Texas.

Of note is that Garza (challenging maps) pointed out that “there are section 5 claims with regard to Harris County”. If the Court listened or if the San Antonio gets a remand for further review, Harris County lines may be looked at again. That could be good news.

The options then appeared to be (1) remand and ask the San Antonio Court to give deference to the Legislatively approved map and put burden on State to show it is not discriminating or (2) delay till the D.C. Court has its trial due to begin in a few weeks or worse (3) do nothing.

That is not good news. It could cause even more delays to the Primary schedule or ultimately could cause us to have two primaries- one as set in April for all but offices directly impacted by the maps-congress, Legislature and then a second probably in June for those races. Then everything gets on ballot on November 6. While the Court was reminded by all sides that the San Antonio Court’s order on the primary schedule was based on agreement by all parties, the Justices did not seem fazed by it. Justice Ginsburg said more than once it was a “complicated case” before the D.C. Court and no one can assume what they would or would not do. And, she cautioned that they may not act as swiftly as the lawyers think to keep the April primary schedule.

We will all now wait and see.

Finally, we should celebrate the whole notion of our three branches of government. The check and balance system was hard at play yesterday in that court room. As I sat with one branch of the government – members of Congress – I thought of how happy I was to be a lawyer, to be an American and to be able to say that no matter what happens “we had our opportunity to be heard”. But, as is always in politics “it is not over till it’s over’ and we shall see. As a side note, I still don’t understand why the Court does not allow everyone to see what I saw on TV. Surely, CSPAN would not have interfered.

For those interested, I was not the only Texan there and while I’m sure I missed seeing someone, I was sitting in the front row with Members of Congress thanks to a reserved seat secured for me as NALEO President by Senator Leahy (D-Vermont). Others I spotted were Congresswomen Eddie Bernice Johnson and Sheila Jackson-Lee; Congressmen Al & Gene Green, John Culberson, Lamar Smith, Lloyd Doggett, Ruben Hinojosa. State Senators Wendy Davis, Rodney Ellis and Tommie Williams. State Representatives Jessica Farrar, Trey Fisher Martinez, Marc Veasey and Gary Elkins. Also, a number of lawyers from all the cases and their plaintiffs including Chad Dunn, lawyer on our Harris County redistricting case and lots of LULAC folks who also braved the cold and snow at a rally in front of the Supreme Court building.

My sincere thanks to Sylvia Garcia for sending this to me. Now I’ve got “attending oral arguments for a case I care about at the Supreme Court” on my bucket list as well. Two more impressions from after my initial roundup of them come from Michael Li and Greg Wythe, while the Trib reminds us of the deep logistical doo-doo we’re now in. Anyone want to take a guess as to when the primaries will ultimately be?

Thinking long term about the city’s finances

If you didn’t have to worry about practicality or implementation issues, what ideas would you have about improving the city’s long term financial health? That in a nutshell is the mission of the Long-Range Financial Management Task Force that was created last year when the budget was adopted, and they’re starting to generate those ideas. I fear they may be missing something, however.

Unconstrained by the political reality that makes some of the more audacious suggestions highly unlikely, a 16-member task force has brainstormed 229 ways to save or raise hundreds of millions of dollars for Houston city government.

The city does not even have the power to implement many of the ideas on its own. The draft list, however, may foretell debates to come if the mayor and City Council seek to act on its more politically sensitive ideas.

For example, dozens of items offer ways to reduce future pension benefits, including ending pensions altogether and borrowing money to cover the current $5 billion in future pension bills for which the city has not set aside money. The list also includes changing from traditional guaranteed pensions to 401(k)-type savings plans, reducing survivor benefits, requiring employees to contribute more and raising the retirement age.


Raising taxes likely also would meet stiff resistance. The mayor and council closed a $100 million budget gap in June without even discussing a tax increase. But two members of the task force put a property tax increase of 1 cent per $100 of assessed value on the list, which would raise an additional $13 million a year for the city. To implement a suggestion of a one-cent sales tax increase, which would raise more than $500 million a year, the city would need state authorization. To avoid political infighting on the task force, members could submit ideas anonymously with a slip of paper in a cardboard suggestion box at all meetings.

There’s a bunch of presentations on the Financial Management Task Force webpage, if you’re into that sort of thing. I will defer for now on discussing the merits or demerits of any particular idea. I will just note that the ideas all seem to fall into one of three broad categories: Sticking it to city employees, privatizing various functions (where the definition of “privatizing” also includes “handing stuff off to Harris County”), and raising taxes or fees. What’s oddly missing from this is any discussion of policies that would encourage growth within the city. I say this is odd because nearly every candidate I’ve ever interviewed for city office has touted the idea of promoting growth in Houston as something he or she wants to do, though they generally don’t have much in the way of specifics. Seems to me this task force is the perfect opportunity to blue-sky a bunch of schemes for growing the city and its tax base. I don’t know if the lack of such ideas (which admittedly may just not have been mentioned by the story) are because there aren’t enough politicians on the task force or if the recent relentless national focus on debt and deficit has stunted everyone’s imagination on this subject. I think it’s critical that we pay more attention to this, because as Peter Brown points out in a letter to the editor, while the greater Houston area had dramatic growth over the past decade, the city itself has not. This has a number of consequences, including some you might not think about, and it really deserves more attention. There’s still a lot of underutilized space in the city. I urge the Task Force to spend some time thinking about how we can change that for the better.

Abercia resigns, replacement named

Jack Abercia

As we know, longtime Precinct 1 Constable Jack Abercia announced that he would not be running for re-election. On Monday, he announced that he would resign, effective January 31. On Tuesday, Commissioners Court named a replacement for him to fill out his term.

Harris County Commissioners Court on Tuesday appointed Ken Berry, a retired major who served 35 years with the Harris County Sheriff’s Office, to fill the seat of Precinct 1 Constable Jack Abercia, who has announced he will resign at the end of the month.

Commissioner El Franco Lee, whose Precinct 1 largely overlaps with Abercia’s, said he recommended Berry, 63, for the role because of his reputation and management experience at the Sheriff’s Office.

“It’s not often that you have to suddenly make an interim change like this,” Lee said. “Under the circumstances, you try to get the strongest, most mature person you can find who can jump in and run it and anchor it down and carry on business as normal as possible.”


Berry, who retired in 2008, said he will serve as a caretaker and has “no interest at all” in running for the seat in this year’s elections.

Of his appointment, Berry said, “Obviously I’m excited about it, but I haven’t really had time to give it any thought.”

There are currently four candidates for Constable in Precinct 1 – you can see them all on my 2012 Primary Election – Harris County page – all of whom as far as I know filed before Constable Abercia announced that he was withdrawing from the race. Given that there will be a second filing period later this month, Interim Constable Berry or anyone else could then decide to jump in. However, I take Berry at his word that he will not. Congrats to new Constable Berry on the appointment, and best of luck to him in the job and to outgoing Constable Abercia in his retirement.

Texas blog roundup for the week of January 9

The Texas Progressive Alliance thinks watching football was a much better use of your time than watching the 389th Repubican Presidential debate as it brings you this week’s roundup.