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November 14th, 2021:

Weekend link dump for November 14

Tis the season for misdirected package phishing scams, often sent as text messages. Don’t fall for them!

“The Man Who Called Bullshit on Uber”.

Have you been longing to have movie theater popcorn to eat while watching movies at home? Well, now you can get it.

RIP, JoAnna Cameron, actor best known for The Secrets of Isis, the first woman to star in a live-action TV superhero show.

“The loss of child care drove out college-educated moms who were in jobs where telework was an option.”

Oh, just R2D2 and C3PO encouraging kids to get vaccinated back in 1978.

“There’s an underlying assumption in burnout discussions: that it can always be remedied with some notion of self-care. What’s never spoken is that burnout is the remnant of a fire. I’ve never seen a piece of charred wood and thought that some time by itself and some water will restore it to its former state. Burning can cause irreparable damage, and I haven’t heard anyone admit that about becoming burned out.”

“One key to arguing that the Critical Race Theory discussion is on the level is pretending these tweets never happened”.

“Firearms make every call to the police more risky, but also make officers and the public perceive every situation as inherently more risky. This helps explain not just how cops themselves behave but why police are involved in so many different calls to begin with, from murders to wellness checks. Armed officials ended up in charge of so many areas of society in part because the US has more guns and sees more deadly violence than its peers.”

RIP, Dean Stockwell, Oscar- and Emmy-nominated actor known for “Married to the Mob”, “Quantum Leap”, and lots more.

Four words: Stranger Things breakfast cereal. You’re welcome.

“So is there really a shortage of truckers? Maybe, but I trust wage data a whole lot more than I trust either anecdotes or claims from industry associations. If real wages are going down, both in absolute and relative terms, there’s no shortage. It’s all but impossible.”

“Palm facing outward, other fingers curled around the thumb. This simple gesture — resembling a closed fist — led to the recent rescue of a 16-year-old girl who had been reported missing from North Carolina days before.”

RIP, Max Cleland, former US Senator, Veterans Administration leader, and war hero.

RIP, Richard Kyanka, founder of Internet forum Something Awful.

RIP, Graeme Edge, drummer and co-founder of The Moody Blues.

Lock him up.

“Just a few weeks before advising the White House on Donald Trump’s efforts to steal a second term as president, conservative lawyer John Eastman took part in an election simulation that imagined it would be left-wingers, not Trump supporters, attempting to destabilize the country through violence.”

RIP, Gavan O’Herlihy, actor best known for playing Chuck Cunningham on Happy Days.

Fifth Circuit extends hold on Biden employer vaccine mandate

The worst court in America keeps on keeping on.

A federal appeals court kept its block on the implementation on the Biden administration rule that requires large companies to mandate COVID-19 vaccines for employees or carry out weekly testing starting in January. The rule, which the court characterized as a “mandate,” goes “staggeringly overboard” and “grossly exceeds [the Occupational Safety and Health Administration’s] statutory authority,” Judge Kurt Engelhardt wrote in the 22-page ruling that was joined by Judges Edith H. Jones and Stuart Kyle Duncan.

The three-judge panel on the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, issued the ruling saying that the challenges to the rule were likely to be successful so it further prevented the government form moving forward with its implementation. The Fifth Circuit is largely considered one of the country’s most conservative appeals courts and the panel is made up of one judge appointed by President Ronald Reagan and two others appointed by President Donald Trump.

Dozens of lawsuits have been filed in numerous appeals courts against the rule by businesses, religious organizations, and states. Engelhardt said those who opposed the measure, including Texas, Louisiana, Mississippi, and South Carolina, had standing to sue in the Fifth Circuit. “Rather than a delicately handled scalpel, the mandate is a one-size fits-all sledgehammer,” reads the ruling. The judges said the rule imposes a financial burden and could amount to a violation of the Constitution’s commerce clause. “The Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” the judge wrote.

See here and here for the background. The Fifth Circuit never disappoints, do they? Completely predictable, regardless of the facts.

One small bit of potentially good news.

The ruling by the panel of the Fifth Circuit is unlikely to be the final word. Some challenges to the mandate are in other circuits, and the cases will be consolidated before a randomly chosen one of those jurisdictions. The Supreme Court is expected to eventually decide the matter.

Dena Iverson, a Justice Department spokeswoman, said the Biden administration would defend the mandate through that process.

Maybe we can hope for a better outcome from a less corrupted court. In the meantime, I’ll leave you with this:

Further developments soon, we hope. CNBC and Reuters have more.

Bexar mask mandate back on

Abbott and Paxton take another L.

A temporary order that allows the City of San Antonio and Bexar County to require masks in their buildings will stay in place until a lawsuit challenging an executive order goes to trial in December, the 4th Court of Appeals ruled Wednesday.

In another blow to Gov. Greg Abbott’s executive order, U.S. District Judge Lee Yeakel ruled Wednesday in Austin that the ban on mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules, according to The Texas Tribune.

After San Antonio and Bexar County sued Abbott over his July executive order that prohibited local governments from issuing mask mandates, a Bexar County district judge issued a temporary injunction in August. That temporary injunction gave the city and county the ability to require masks inside city- and county-owned facilities as well as in public schools that teach pre-kindergarten through 12th grade.

The 4th Court of Appeals had already upheld the temporary injunction after Texas Attorney General Ken Paxton appealed the trial court’s decision and argued that his appeal automatically blocked the city and county’s mask mandate. That decision made in August was temporary until the appellate court could take up the matter and issue a more final decision, which occurred Wednesday, said Larry Roberson, civil division chief of the Bexar County District Attorney’s office.

“This is the opinion on the temporary injunction,” he said. “The earlier issues were just procedural.”

The city and county argued that the governor’s executive order exceeded his scope of authority by blocking local governments from creating public health prevention measures. They also argued that by not having the ability to enforce their own public health measures, coronavirus transmission would be more widespread without masks and cause irreparable harm.

Their arguments were enough to validate the need for a temporary injunction, three judges on the 4th Court of Appeals found.

“We conclude that the City and County have pled sufficient facts to establish that their injuries are ‘likely to be redressed by the requested relief,’” Chief Justice Rebeca C. Martinez wrote in the appellate court’s opinion issued Wednesday.

See here for the previous update and here for the court’s opinion. I will note that this is still a temporary restraining order and that the merits of the case will be heard at trial on December 13. That said, I will also note these sentences from the opinion, which addresses the question of whether Abbott had the power to forbid local governments from issuing mask mandates with the emergency powers granted to him under the Texas Disaster Act of 1975:

We hold Section 418.016(a) does not provide the Governor with the authority he claims to suspend statutes that concern local control over public health matters or to prohibit local restrictions on face coverings.

[…]

Applying the plain language of the Act, we conclude the City and County demonstrated a probable right to relief that the Governor’s power to suspend laws, orders, and rules under section 418.016(a) does not include the power to prohibit face-covering mandates that local governments may adopt to respond to public-health conditions or the power to suspend public-health statutes authorizing local governments to act for the benefit of public health.

[…]

Because the Governor possesses no inherent authority to suspend statutes under the Texas Constitution and he exceeded the scope of statutory authority granted to him by the Legislature, his actions in issuing Executive Order GA-38 were done without authority.

In between is a bunch of technical legal stuff that will make your eyes glaze over, but the bottom line is that this directly addresses the claim that the Governor’s emergency powers allow for him to suspend local orders that are intended to mitigate the disaster in question, an authority that would seem to contradict the whole purpose of a “Disaster Act”. We’ve discussed that several times here, and while that question will surely come up again in the trial court hearing and later on appeal, it’s good to see this basic idea affirmed here by the appellate court. May such common sense continue to prevail as this moves on to the trial stage. The Current has more.

Ten years after the Bastrop fire

The headline on this story asks whether Texas is ready for the next big fire. I think we know the answer to that.

Photo by Chase A. Fountain/TPWD

Ten years ago, Texas experienced it’s worst wildfire disaster in the state’s history. Over 31 thousand fires burned more than 4 million acres of land in the state. This unprecedented fire season included the most destructive fire ever in Texas.

The Bastrop complex fire in September of 2011 was the most destructive wildfire in Texas history. Over thirty two thousand acres of forest burnt, 6500 homes destroyed, thousands evacuated. Several factors came together to cause the massive blaze, including the worst drought in Texas on record since the 1950s Dust Bowl era and high winds caused by Tropical Storm Lee, which made landfall on the Gulf Coast.

[…]

Brad Smith is a meteorologist with the Texas A&M Forest Service. He says unlike other areas of the country, Texas has wildfire seasons almost year-round.

“We can be in a fire season any time that we see three to four weeks of extended drying” said Smith.

Smith stops short of admitting climate change will drive more wildfires in the future. But Texas state climatologist John Nielsen-Gammon said increased drought will definitely have an effect.

“We’re definitely going to have hotter droughts when they occur, which means things dry out faster and that by itself increases the risk of wildfire,” said Nielson-Gammon

The Texas State Climatologist’s Office recently released its report on future trends and extreme weather in Texas. The report says that the eastern area of Texas will be prone to more drought and wildfire, and the change could come on quickly as the climate gets drier from west to east.

“The way that plays out is trees die and they don’t get replaced, and the way large expanses of the trees get wiped out is through wildfire”, he said. “So that overall landscape transition that we expect to see happening over the next hundred years isn’t going to be the gradual transition. We might hope it will probably take place through wildfires from which the ecosystem doesn’t recover in the same way that it would have when the climate was cooler and wetter,” he added.

Back at Camp Swift, Kari Hines is worried that Texas residents may not be ready for the next major fire event in Texas.

“We have so many other disasters, whether it’s floods or ice storms or hurricanes that that get our interest, just getting people to realize that wildfires are something that happen and that they absolutely can do something to prepare for to decrease their chances of their home being lost or losing their lives. It worries me. I talk to a lot of people who don’t think wildfire is an issue,” said Hines.

See here and here for some background. The irony is that we had a wildfire protection plan in place, but it was a victim of the budget cuts from the previous legislative session, because that’s how we roll in this state. We did pass a constitutional amendment in 2013 to fund a water infrastructure fund as a drought mitigation effort. That was good and necessary (and I’d really like to see some reporting about how that is going), but it’s not about wildfires.

I think it’s fair to say that the professionals whose job it is to deal with wildfires are as ready as they can be, but our state leadership cannot bother their pretty little heads about it, and that’s even after taking concern about climate change out of the picture. We’ve obviously had our hands full dealing with flooding, and there was that little ol’ freeze last year that exposed all kinds of problems with our power grid. Why would be any better prepared for wildfires? The bottom line is that we’re lousy at investing in our infrastructure. The rest follows from there.

Filing season is officially open

We wait all year for this.

This Saturday marks the start of the battle for control in Texas politics, a key landmark for the upcoming 2022 elections. Democratic and Republican candidates will start filing for their candidacies for the March 1st party primaries.

A number of state seats have been opened since their current occupants have decided to retire or move on to a different seat, such as George P. Bush who’s leaving the Land Commissioner post to run for Paxton’s Attorney General seat. The Texas Legislature also passed new redistricting maps for themselves, which has already led to over a dozen retirements in both chambers and rumors of more to come.

Reform Austin is currently tracking which politicians are retiring, seeking other offices, running for re-election, and those who are happily lining up to contend for the open seats. Check out our spreadsheet here.

Candidates have until Dec. 13 at 6 pm to file, which means those potential candidates like Beto O’Rourke or Mathew McConaughey better make up their minds fast if they wish to be contenders in the race.

As per tradition, Patrick Svitek also has a spreadsheet. If you want more information about how to file for office as a Democrat, Rose Clouston has you covered. For Harris County, your best bet is to search campaign finance reports – you can find campaign treasurer appointments and other indicators of candidacy as well. I will of course be keeping an eye on all of this. Feel free to add whatever you know here.