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Constitution

You really have to plan for every election

Whether or not they actually happen.

Judge Michael Keasler

For months, Democrats Mark Watson and Mike Snipes have been running 2020 campaigns for Texas Court of Criminal Appeals Place 6. They’ve raised money, filed official paperwork, gathered signatures, traveled to far corners of the state, devoured East Texas delicacies, created Facebook pages, won endorsements, launched websites and given interviews with journalists.

There’s just one problem: There is probably not going to be an election.

The current occupant of that seat, Republican Judge Michael Keasler, is 77, and according to the state’s mandatory retirement law for judges, he must finish his decades of service on the state’s highest criminal court by the end of next year at the latest. State law permits him to finish four years of the six-year term he was elected to in 2016.

According to the Texas Constitution, Keasler’s seat will become vacant at the end of next December, and Gov. Greg Abbott is empowered to fill judicial vacancies. But the little-known and rarely relevant law seems to have led to some confusion: Would Keasler’s seat be filled in 2021 by the governor, or in 2020 by the voters?

If the Democrats were confused, they certainly weren’t the only ones.

In August, when an official from the state Democratic Party emailed state elections administrators to ask whether there would be a race, a lawyer for the secretary of state’s office reported that there would.

“I figured it out,” wrote Christina Adkins in an Aug. 15 email obtained by The Texas Tribune. “Judge Keasler is subject to mandatory retirement so his position is on the ballot in 2020.”

The race was included on the state’s list of offices up for election in 2020, posted earlier this year, and remained there as recently as Wednesday morning. Later that day, a Texas Tribune journalist emailed the agency to ask whether the seat would be up in 2020. As of Thursday, it was no longer listed on the state’s website.

A spokesman for the agency said Friday that “there is no vacancy until December 31, 2020, and the office is not already on the ballot.”

The story includes a before-and-after screenshot from the SOS website, which one day did list CCA6 as a 2020 race and then the next day did not. At this point, I’d have to say that barring anything unexpected this race will next be on the 2022 ballot as currently scheduled. At least Watson and Snipes will be ready to hit the ground running when that time comes around.

2019 election results: State

Nine out of ten Constitutional amendments are on their way to passing.

Amendments to the state constitution that would make it harder to enact a state income tax, stabilize funding for state parks and allow retired law enforcement animals to be adopted by their handlers received wide support from voters Tuesday.

Supporters of one of the most contentious issues on the ballot — Proposition 4 — proclaimed victory within hours of the polls closing, with about three fourths of voters supporting the proposal in early voting returns.

[…]

The only item on the ballot that looked as though it might not pass was Proposition 1, which would permit elected municipal court judges to serve multiple municipalities at the same times. With votes still being counted late Tuesday, returns indicated that it had received just over one-third of the vote.

The other propositions were poised to pass easily. Proposition 5 would stabilize funding for state parks and received overwhelming support. The proposition allows money accumulated from existing sales tax on sporting goods to be used for the Texas Parks and Wildlife Department and the Texas Historical Commission. Current law allows the Legislature to allocate that money however they see fit.

Proposition 10, which had the highest level of support, amends the state constitution to allow retired service animals, such as dogs or horses, to be adopted by their handlers or other qualified caretakers. These animals are currently classified as surplus property or salvage and can be “auctioned, donated or destroyed.”

Prop 4 is terrible, but that usually doesn’t stop us. I just hope it’s not as bad as I fear it may be.

Meanwhile, in Fort Bend:

Eliz Markowitz

A Democrat and a Republican were leading in unofficial returns Tuesday night in a nationally targeted special election for a historically Republican Texas House seat.

Democrat Eliz Markowitz — the only Democrat in the race — was in first place, while Republican Gary Gates was in second, according to unofficial returns. The race will head to a runoff if no candidate gets over 50%.

Gates was one of three serious GOP candidates out of six total. The two other viable Republicans in the race, Tricia Krenek and Anna Allred, were third and fourth, respectively. Allred appeared to concede at about 10:30 p.m., saying she was “disappointed with the results” but “pleased with our campaign.”

The race for House District 28 — where former state Rep. John Zerwas, R-Richmond, stepped down at the end of September — was one of three contests Tuesday to fill state House seats. The two others happened in solidly Democratic districts where runoffs were also looking likely, based on the early vote and initial Election Day results.

In House District 100, where former Rep. Eric Johnson, D-Dallas, vacated his seat earlier this year after becoming Dallas mayor, Democrat Lorraine Birabil had a wide lead over three Democratic rivals but had not clinched more than half the vote. James Armstrong III, Daniel Davis Clayton and Sandra Crenshaw were in a close race for second place and a spot in an expected runoff.

Here are the results from Fort Bend County for HD28, and Dallas County for HD100. The SOS election night results webpage is bizarre and not up to date, so skip it for now.

Markowitz got 39.1% of the vote, with Gates getting 28.5%, Tricia Krenek 18.1%, and Anna Allred 9.3%. While I expect Republicans to unite for the runoff, I can’t help but feel that Gates was their third best choice in this race. His main asset is that he’s loaded and willing to spend on himself, which I figure helped him in this race. How much he’ll excite voters as that kind of candidate in December is the question. I feel very certain he won’t have a clear path to the GOP nomination in the March primary. Here’s the Chron story on this race.

I’m saving the HD148 race for last, because of the delay in Harris County results (see here for why that happened.) As of 5 AM, we still didn’t have full results. The best I can tell you at this time is this:


Eastman     1,870  17.87%
La Rotta    1,818  17.37%
McConnico   1,266  12.10%
Garcia      1,261  12.05%
Leal          904   8.64%
Shaw          853   8.15%
Watt          667   6.37%
Camarena      473   4.52%
Carmona       433   4.14%
Block         311   2.97%
Nunez         185   1.77%
Denson        165   1.58%
Trevino       140   1.34%
Mundy          71   0.68%
Isaacson       49   0.47%

There’s still a lot of votes out as of this post, so things can change quite a bit. My initial speculation that some people may vote for Adrian Garcia based on the belief that he’s the County Commissioner appears to have had some validity. Beyond that, we’re just going to need to wait and see what the final tally says. Note that the total Republican vote is 34% – Ryan McConnico got 32% against Jessica Farrar a year ago. Put a pin in this one, we’ll come back to it. Oh, and as with the Republicans in HD28, I don’t think Anna Eastman (assuming nothing weird happens between now and the final count) will have a clear path in March, either.

2019 election results: Elsewhere

I think we can all agree that this was the most important race on anyone’s ballot.

Shelley Sekula-Gibbs

One of the most contested elections in the brief history of The Woodlands Township Board of Directors came to a close Tuesday night, as Shelley Sekula-Gibbs, Ann Snyder and Bob Milner claimed unofficial victories over challengers for the three open seats on the seven-member board.

[…]

The battle for the Position 5 seat to replace retiring director John McMullan featured the most money raised by candidates of any of the three seat races in 2019, with both Shelley Sekula-Gibbs and Rashmi Gupta spending more than $20,000 each on the race while Walter Cooke spent more than $11,000 on his campaign.

At the end of early voting, Sekula-Gibbs has a sizable lead over both Gupta and Cooke with more than 1,600 vote lead over both before Tuesday’s ballots were counted.

With the results from Tuesday counted, Sekula-Gibbs easily nabbed an unofficial victory despite having only resided in the township for less than 20 months compared to her opponents, who combined have lived in The Woodlands more than 53 years.

A former three-term member of the Houston City Council, Sekula-Gibbs also holds the dubious distinction of being a member of the U.S. House of Representatives for one of the shortest time periods in U.S. History, serving about seven weeks but having only less than 10 days of duty in office. Her term in Congress was result of being elected in a special election in late 2006 to replace outgoing former Speaker of the House Tom Delay. Sekula-Gibbs is listed as having served seven weeks in the House of Representatives.

sniff The great ones always have one more run in them. We missed you, Shelley. I know we can expect big things from you.

In all seriousness, the big news nationally were the Democratic sweeps of the Virginia legislature, a result that may ultimately mean new life for the long-dormant Equal Rights Amendment, and the amazing victory in the Kentucky Governor’s race by Andy Beshear over extreme Trumpite Matt Bevin. Other results of interest came from Tucson, AZ, which just elected its first female and first Latinx Mayor, Regina Romero, Plymouth, NC, which just elected its first black Mayor, and Delaware County, PA, a suburb of Philadelphia, which elected a Democratic county government for the first time before the Civil War. And last but not least, there’s this:

Juli Briskman, who famously flipped off President Donald Trump’s motorcade in a viral 2017 photo, won her race Tuesday night for a seat on the Loudoun County Board of Supervisors in Virginia.

God bless America.

Endorsement watch: Constitutional amendments

As you know, there are ten constitutional amendments up for a vote on the November ballot. They will be on everyone’s ballot, and depending where you are may be the only things on your ballot. The Chron makes their recommendations on them. I’ll highlight three of the ten:

Vote no on Proposition 1. To allow certain municipal judges to be elected to more than one office at the same time. We urge voters to reject the amendment. Even in small communities, candidates running for local office ought to be local residents. Existing law already allows for elected municipal judges to be appointed to serve in another court, but expanding that laxity to elected positions as well is unnecessary and unwise.

Vote no on Proposition 4. To ban outright an income tax for Texas.

There’s a big difference between mostly dead and all dead, as any fan of the cult classic Princess Bride knows well. If you’re mostly dead, Miracle Max the Wizard can work up a chocolate-covered pill to bring you back to life. If a person is all dead, the wizard says there’s only one thing to do: “Go through his pockets and look for loose change.”

Proposition 4 was designed to make sure that the wildly unpopular notion of a statewide personal income tax in Texas is not just mostly dead but all dead.

Voters already approved a constitutional amendment in 1993 that prevents lawmakers from enacting an income tax unless voters agree to it.

Proposition 4 would ban an income tax outright.

Yet, while that sounds awfully final, Miracle Max could still find a way around it. Say Prop 4 passes and becomes part of the Constitution. Any constitutional provision can be changed by a two-thirds vote in the Legislature and a popular vote.

In the end, though, it’s unclear why a change is needed. What’s more, some argue Prop 4’s wording of “individual income tax” is vague enough to draw a court challenge that could extend the ban to businesses, which could cost the state billions in revenue. Why take that risk?

We say vote “Against” and leave dead enough alone.

Vote yes on Proposition 9. To create a tax exemption for precious metal stored in the Texas Bullion Depository. Texas is the only state with a state-run metal depository, but some legislators thought allowing property taxes on precious metals puts the state at a competitive disadvantage. In one way, the amendment is superfluous, in that counties already don’t enforce property tax on precious metals. But by putting that exemption in law, it could boost the chance of the Texas depository joining COMEX, the leading marketplace for precious metals exchange. That’s a good thing and we urge voters to support this proposition.

See here for further discussion of the amendments. The Chron recommended a Yes for the rest; I agree with that, and with the No on Prop 4. I lean towards a Yes on Prop 1, and I’m a definite No on Prop 9. The whole Texas Bullion Depository thing is ridiculous, and I refuse to legitimize it in any way. The vast majority of these pass, usually with a strong majority, so to some extent this is just an expression of one’s feelings more than an exercise in democracy. But you never know, and some of these really do matter. Read up and do your duty.

More on the Constitutional amendments

I found this while answering a question from a reader, and figured it was worth publicizing to a wider audience.

Ten proposed constitutional amendments will be on the November ballot. The Texas League of Women Voters has compiled a nice list of the amendments along with important voting deadlines. Compare the pros and cons of each proposed amendment, and prepare to cast your vote on Election Day, November 5, 2019.

Proposed Constitutional Amendments

  1. Municipal Judges

  2. Assistance for Water Projects in Distressed Areas

  3. Tax Relief for Disaster Areas

  4. Personal Income Tax

  5. Sporting Goods Tax to Support State Parks

  6. Cancer Prevention & Research

  7. Funding Public Education

  8. Flood Control

  9. Tax Exemption of Precious Metals

  10. Law Enforcement Animals

See here for previous blogging on the topic. The links above go to League of Women Voters of Texas pages, each with For and Against arguments for each item, and a video explaining it. I’d have gone deeper on the reasons to vote against Prop 4, and I’d definitely have mentioned the “individual” versus “natural person” loophole that may make this thing a whole lot more expensive than it looks, but overall the LWV did a good job. In the meantime, the Trib and the Chron have written about the proposed amendments, Prop 5 is being pushed by environmentalists, and the latest edition of the H-Town Progressive podcast features Andrea Greer and host Rob Icsezen discussing them. Read – or listen – up and know what you’re voting on.

A look at the Constitutional amendments we will see this November

There are ten of them, including a couple I will vote against as hard as I can.

House Joint Resolution 4 would let the Texas Water Development dole out dollars from a flood infrastructure fund — created by Senate Bill 7, which would spend $1.7 billion from the rainy day fund — to be used for planning, seeking permits for or constructing flood-related projects. SB 7 is awaiting Gov. Greg Abbott’s signature.

If approved by voters, the flood infrastructure fund would be created at the start of next year.

HJR 34 would let the Legislature temporarily lower tax rates on property damaged during a disaster declared by the governor. House Bill 492 would set the initial tax exemption rates, up to a full exemption, according to the extent of the damage.

HJR 38 would ban the creation of a state income tax, doubling down on a constitutional amendment approved by voters in 1993 that requires voters’ permission for the Legislature to create a state income tax.

[…]

HJR 95 creates a tax exemption for precious metals held in the Texas Bullion Depository, which opened in North Austin in June 2018 with its permanent location in Leander expected to open in December.

While that depository made Texas the only state to have a state-operated depository, HJR 95 author Rep. Giovanni Capriglione, R-Southlake, said it is at a competitive disadvantage because it is also the only state allowing local property taxes on precious metals.

HJR 72 intends to ease the pressure put on smaller communities to find municipal judges by allowing one person to be elected to multiple cities’ judgeships. Currently a person can only hold multiple municipal judgeships by being appointed to each one.

Senate Joint Resolution 32 would let police dogs and other law enforcement animals retire in their old age to live with their handler or other caretaker. The state constitution currently prevents law enforcement from transferring valuable property to a private person or organization for free.

The other four are HJR12, HJR151, SJR24, and SJR79, all of which are financial in nature. As you know, I’m going to cast an enthusiastic but almost certainly futile vote against HJ38, the double secret illegal anti-income tax proposition. HJR95 also looks ridiculous to me – the whole Texas Bullion Depository thing is ridiculous, so it comes with the territory, while HJR72 and SJR32 seem reasonable. The rest I’ll figure out later. The ballot wording should be set in August. What do you think about these?

We’re going to vote on making an income tax double secret illegal

It’s definitely time for sine die.

Sen. Pat Fallon

Texas voters will decide in November if they want to bar the imposition of an income tax, following approval of the constitutional amendment by the state Senate on Monday.

The Texas House had approved House Joint Resolution 38, which prohibits the imposition of an individual income tax, earlier this month.

The seemingly anodyne proposal ran into pushback Monday from some Senate Democrats who suggested the bill could cut business taxes, a major source of state money.

There appears to be no threat of an income tax currently — no such bill appears to have been filed, let alone have reached the floor of either chamber, where it would be political kryptonite. And a 1993 constitutional amendment already holds that Texas can adopt a state income tax only if voters approve and that the money would go for the “support of education.”

But Senate Democrats on Monday sparred with Republicans over a seemingly arcane bit of language that could carry big budget implications.

The resolution says that the Legislature may not impose a net income tax on “individuals.”

Democrats, pointing to an analysis by the state’s nonpartisan Legislative Budget Board, said that could be interpreted by courts to apply to businesses, especially because the measure’s language uses that term rather than “natural persons,” which is often used in statutes.

The business levy, long a target of Republicans eager to shave taxes, brings in about $8 billion per biennium, helping to fund public schools.

“The term ‘individuals’ is not defined and could be interpreted to include entities that are currently subject to the state’s franchise tax,” the Legislative Budget Board analysis reads. “To the extent the joint resolution might exempt some entities from the franchise tax, there could be a loss to state revenue.”

[…]

Earlier during the debate, [author Sen. Pat] Fallon said the constitutional amendment would firm up the state’s opposition to income tax.

“I’m always in fear of an income tax,” he said. “Every day I wake up, the thought of Texas having an income tax makes me shudder. Physically shudder, not metaphorically.”

Seriously? Mere words cannot adequately express my reaction to Sen. Fallon’s delicate sensibilities, so mark me down as being somewhere between here and here. I do hope you sleep better tonight, Senator, and if not I recommend warm milk and a bedtime story, preferably one with a happy ending. As for my reaction, here it is:

“Why would pesky LBB fiscal facts be any help when discussing a major source of state revenue for schools?” Eva DeLuna Castro, a budget analyst with the left-leaning Center for Public Policy Priorities, wrote on Twitter. “I mean, it’s not as if major business conglomerates have highly paid tax lawyers waiting in the wings to explain why they are ‘individuals’ too.”

What could possibly go wrong? The Trib and the DMN have more.

McLeod wants back on the bench

That’s fine. He’s got ten months to make his case to Democratic primary voters.

Judge William McLeod

The Harris County Civil Court At Law judge who inadvertently resigned his post in March, and unsuccessfully lobbied Commissioners Court to allow him to remain on the bench, said he plans to run for his former seat in 2020.

Judge Bill McLeod also blasted the three Democratic members who decided to replace him, whom he says had already made their decision before McLeod pleaded for a reprieve at the April 9 Commissioners Court meeting.

“The manner in which commissioners handled it was really a disservice to Harris County voters,” McLeod said Sunday. “I want to take my bench back.”

[…]

McLeod’s resignation spurred a special election in March 2020 to fill the remainder of his term, which runs through 2022. McLeod told Commissioners Court he abandoned his plans to run for the state Supreme Court, and instead wishes to regain his old seat.

Briones said she will campaign next year to remain in the post. Her first day on the bench is Monday.

McLeod said he will make a formal announcement May 15, and plans to return to private practice as a civil litigator until the election.

See here and here for the background. I said my piece in those two posts and don’t have anything to add to that. I have no preference at this time for who should sit on that particular bench. Briones and McLeod will make their cases for themselves, but with all due respect there are other races higher on my mind right now.

Looks like we’re headed for a vote on Daylight Saving Time

Ugh.

Rep. Lyle Larson

On Tuesday, The Texas House passed the first proposal in a two-part legislative plan that would kill twice-a-year time changes and let voters decide in November on Texas’ permanent time. The measure passed on a 133-9 vote.

Proposals to end the back-and-forth time changes have often failed because Texas lawmakers can’t agree on what the state’s permanent time should be: year-round daylight saving time or year-round standard time. Daylight saving time would provide an extra hour of sunlight in the evening whereas standard time would offer an extra hour of sunlight in the morning.

“We shouldn’t be subject to our own prejudice or preference on this. We should allow voters to make the decision,” said San Antonio state Rep. Lyle Larson, the author of the resolution. “I think it’s time to allow the voters to make the decision on whether they want standard time or daylight saving time.”

If both parts of the legislative package are approved by the Legislature, then Texans will see two propositions on their ballots this November.

The first proposition — which would be added by House Joint Resolution 117 — would ask whether a referendum on daylight saving time may take place. The Texas Constitution does not permit a statewide referendum on the issue, so this first question would be necessary for voters to weigh in on the second proposition.

The House will debate the second part of the legislative package on Wednesday, which would prompt the second ballot question: voters’ preference between year-round daylight saving time or year-round standard time.

No matter what Texans pick, the legislative package would nix the current twice-a-year time changes.

While voters would get to weigh in and decide the future of Texas time, there’s a key caveat. If they chose year-round daylight saving time, the state of Texas would need federal approval for this decision — but pending legislation in Congress could squash the need for that approval.

See here for the background. I’m a little confused here – if the first proposition fails, what exactly happens? Does the vote on the second proposition matter in that event, and what if anything changes? I mean, I fully expect that first proposition to pass – lots of people have an irrational hatred of the system, and I can’t envision a pro-DST group springing up to urge its retention – but a clearer explanation would have been nice. Whatever does happen, I wonder how long it will take before people start complaining about whichever system we do adopt. One way or the other, I hate this already.

UPDATE: For clarity, the status quo is not an option.

The ballot language on whether Texas should go year-round to either Daylight Saving Time or Standard Time won tentative approval from the House Wednesday — but not before a vigorous tussle between two experienced and influential Republicans.

If Rep. Lyle Larson’s proposed referendum on time wins a final House nod and then the Senate’s blessing, state voters on Nov. 5 would face this question on the ballot:

“Which of the following do you prefer? Observing standard time year-round. Observing daylight saving time year-round.”

On Wednesday, veteran GOP Rep. John Smithee of Amarillo tried to amend Larson’s enabling bill that would spell out the fine points of how the referendum would be conducted.

Under Smithee’s proposal, voters would be given a third option — as he said, “Leave things as they are, where we switch.”

[…]

On an unrecorded “division vote,” the House shot down Smithee’s attempt to give voters the option of keeping the status quo, 72-70.

Terrible, just terrible. It will be up to the Senate once this gets final approval on Thursday. Call your Senator and demand that if we must vote on this stupid thing, we be given the option of keeping things as they are. As it is, this isn’t a choice at all.

Commissioners Court replaces Judge McLeod

Unfortunate, but understandable.

Judge William McLeod

A divided Harris County Commissioners Court declined to give County Court At Law Judge Bill McLeod a reprieve Tuesday after he inadvertently resigned last week, opting instead to appoint a replacement.

Harris County Judge Lina Hidalgo said letting McLeod remain as a holdover judge until a special election for the seat in 2020 was too risky, since he almost would certainly have to recuse himself from cases to which the county was a party, as Commissioners Court would have the power to remove him at any time.

Instead, the court voted 3 to 2 to appoint Houston lawyer Lesley Briones to hold the seat through next year, on the recommendation of Precinct 2 Commissioner Adrian Garcia.

“I think voters deserve a judge who can be absolutely independent, as he was elected to be,” Hidalgo said. “This would put us in the untenable position that he would no longer be an unbiased person, because he would be beholden to Commissioners Court.”

Precinct 3 Commissioner Steve Radack and Precinct 4’s Jack Cagle voted against the appointment. Cagle told Briones he could not support her since the nomination was made just minutes earlier and he did not have a chance to review her qualifications.

Briones, a Yale Law School graduate and general counsel to the Laura and John Arnold Foundation until December, accepted the appointment on the spot.

“I have deep respect for the law and I respect that you made a hard decision, and I respect the consternation in this room,” Briones said. “But know that I will work extremely hard for everyone.”

See here and here for the background. There were some good legal arguments in favor of retaining Judge McLeod, while Judge Hidalgo’s point is worth taking seriously as well. In the end, I didn’t have a strong opinion one way or the other; I think either decision was defensible. JUst a couple of thoughts to keep in mind as we go forward:

– McLeod’s point that the state constitution is incredibly long and arcane is unquestionably true. It’s also kind of disingenuous coming from a judge. More to the point, this is why potential candidates should talk to a political professional or two before making any public statements about running for office, because there are various weird rules related to candidacy that are easy to stumble over if you don’t know what you’re doing. I can think of a dozen people off the top of my head who could have pointed this out to McLeod before he filed his designation of treasurer. You gotta do your due diligence.

– Not to belabor the point, but there’s a reason why basically nobody had been felled by this problem before. As I said in my first post, nearly every story about then-Sheriff Adrian Garcia’s rumored candidacy for Mayor was accompanied by a discussion of how he couldn’t say anything without triggering the resign-to-run provision. Sheriff isn’t judge, but in this case they’re both county positions. One might well wonder if that provision applied to one job, would it apply to another?

– All that said, let’s not get too high and mighty at Bill McLeod’s expense. Yes, this was a dumb and avoidable mistake, but it’s not like this particular cul-de-sac of our word salad that is the state constitution was a cornerstone of our inviolable values as a state. County court judges have to resign to run for another office, but district court judges and appeals court judges don’t. All five Democrats who ran for statewide judicial positions last year were sitting on a bench while running for something else, and last I checked our state didn’t collapse. The fact that Bill McLeod had to resign is a quirk and not a principle, and it’s at least as dumb as McLeod’s unfortunate action. I’m sorry this happened to him. I’m sure we’ll all take the lesson to check and doublecheck whether “resign to run” applies to whatever office one holds before stating an intention to seek another, but maybe we should also take the lesson that these same rules are arbitrary and ought to be reviewed to see if they still make sense. Campos has more.

They’re coming for Daylight Saving Time

Mark me down as opposed.

Rep. Lyle Larson

A powerful House committee chief on Monday said he’s building support for a constitutional amendment that would stop twice-yearly clock changes.

Rep. Lyle Larson laid out his legislation that would commit the state to following Daylight Saving Time year-round or exempting the state from it, which would make Standard Time the year-round practice.

On Nov. 5, Texans would choose between the two options. The measure would be on the ballot in an off-year, low-turnout constitutional amendment election.

Larson said in an interview he expects the tourism industry, which mostly supports Daylight Saving Time, “might spend some money to educate folks.” Potential opponents include parent and teacher groups, which are concerned that Daylight Saving endangers children by making them wait in the dark for school buses, he said.

Larson’s constitutional amendment and enabling legislation received a hearing before the House State Affairs Committee. The panel didn’t take a vote. Larson, a San Antonio Republican who is head of the House Natural Resources Committee, said he will press for one next week.

“I haven’t heard of any opposition in [State Affairs] committee,” he said.

Martha S. Habluetzel of Ingleside, with the Campaign to Opt Out of Daylight Saving Time in Texas, testified the bill has a least two big defects.

“Congress hasn’t passed a bill to allow year-round Daylight Saving Time,” she noted. Under current federal law, a state only may opt for year-round Standard Time, she said.

Potentially, Larson’s amendment could lead to a bad outcome, Habluetzel said. On Monday, the sun rose at 7:25 a.m., she noted. On Christmas Day, if Texas somehow managed to get itself on year-round Daylight Saving Time, sunrise would be at 8:25 a.m., she said.

“I don’t want the sun coming up at 8:25,” she said.

There is also a joint resolution in the Senate to abolish Daylight Saving Time, which would also require a public vote to be enacted. I’m one of those people who goes to work at a stupidly early hour. It might be daylight when I arrive in the middle of summer, especially if we abandon DST, but otherwise it’s always dark for me in the morning. As such, I appreciate having as much daytime as possible when I get home, which is when it is best experienced. I hope this effort fails, but I fear that sooner or later someone is going to succeed at killing off the late summer sunsets that I so enjoy. Whatever you think, please note that it’s really not DST that you hate, it’s standard time. Please let us not attempt to fix that which is not broken.

More on McLeod

Here’s the Chron story on the bizarre accidental judicial resignation.

Judge William McLeod

The Harris County attorney’s office was notified in March that Judge Bill McLeod, a Democrat presiding over Harris County Court at Law No. 4, had filed a transfer of campaign treasurer appointment with the Texas Ethics Commission stating he was seeking the office of chief justice of the Texas Supreme Court.

Unbeknownst to McLeod, this filing triggered Article 16, Section 65 of the Texas Constitution which considers such an announcement by anyone holding a county judicial post an automatic resignation.

“This is insane,” McLeod said Wednesday. “All of the judges are going, ‘You did what? How? We didn’t even know (the constitutional provision) existed.’”

McLeod, who was elected in November, hopes that a different provision of the constitution will help rectify his mistake. Article 16, Section 17 states that a county Commissioners Court is not required to appoint a successor after a county officer resigns, and “may allow the officeholder who resigned…to remain in office” as a holdover. If this happens, McLeod would have to run again in 2020 even though he was elected to a four-year term.

[…]

McLeod is not the first judicial officer to fall victim to this provision. In 2013, Irene Rios, then a Bexar County (San Antonio) court-at-law judge, told county commissioners she intended to run for chief justice of the 4th Court of Appeals, triggering her automatic resignation. Rios remained in her seat for four weeks after her announcement before tendering her letter of resignation, and she continued to make legal rulings during that time.

A 1999 amendment to the Texas Supreme Court judicial code of conduct further affirms that judges can continue to hold judicial office while being a candidate for another judicial office.

[…]

Rodney Ellis, a Democratic commissioner, was noncommittal on McLeod’s future, stating: “I firmly believe that any action taken by Commissioners Court on this matter must uphold the Texas Constitution above all else and that principle is what will ultimately guide my decision on Tuesday.”

Commissioner Adrian Garcia and a spokeswoman for County Judge Lina Hidalgo, the two other Democrats on the court, did not respond to requests for comment.

Republican Commissioner Steve Radack said he would not be receptive to appointing a holdover for a judicial post.

“If he’s resigned then how can you justify having him as a holdover?” Radack said. “That’s certainly not the spirit of the law.”

See here for the background. As the story notes, the judicial code of conduct doesn’t override the Constitution, it just allows judges that aren’t subject to that Constitutional provision to run for other office while remaining on the bench. If you look at Chapter 16, Section 65, all the offices in question are county offices except for District Attorney. It’s a quirk of the code that’s surely a holdover from an earlier time (note the inclusion of public weighers), and when you think about it there’s no real logic to limiting that restriction to just those offices. But that’s the Constitution we have, so here we are.

As to what happens, who knows? Either three Commissioners agree with the argument that it doesn’t make sense to kick McLeod off the bench, thus allowing him to hold over till the 2020 election, or they don’t. Note that if McLeod has his sights on the Supreme Court, he would have to step down after 2020 anyway, as he wouldn’t be able to run to fill the remainder of his term. It’s a coin toss either way, and I don’t envy any member of Commissioners Court the decision.

UPDATE: The Washington Post covers the story, reprinted by the Trib.

UPDATE: Here’s a detailed legal argument in favor of retaining Judge McLeod, sent to me by Adam Milasincic. It’s pretty persuasive.

Please delete April Fools Day from your calendar

I just can’t.

Judge William McLeod

An April Fools’ Day resignation prank? One Texas civil court judge wishes it were so.

A newly elected judge in Houston accidentally resigned on Monday, according to local media and a county official, after he shared plans online to run for the state supreme court, apparently unaware that the Texas constitution considers such an announcement an automatic resignation.

The Harris County Civil Court judge, Bill McLeod, did not immediately respond to a request for comment on Tuesday. Local TV station KHOU 11 News on Monday reported that McLeod declined to comment on the move.

Article 16, Section 65, of the state’s constitution says that a judge’s announcement of candidacy for another office “shall constitute an automatic resignation of the office then held.”

The county attorney’s office will present the matter to county commissioners next Tuesday, First Assistant County Attorney Robert Soard said in a phone interview on Tuesday. County commissioners, who can appoint replacements, may decide to keep McLeod in office until there is a special election, KHOU 11 reported.

The judge’s supporters have organized on social media using the hashtag #IStandWithMcLeod. They plan to attend the commissioners’ Tuesday meeting and express their wish that the judge retain his office despite his blunder.

Here’s Judge McLeod’s Facebook page, where I assume this accidental resignation happened. I tried looking for that post, but there were too many posts in support of him to scroll past, so I gave up. Judge McLeod was one of the more energetic campaigners, both in real life and on social media, in 2018 and I’m not at all surprised that people are rallying to his defense. Commissioners Court has the discretion of allowing him to stay in place until the next election, essentially serving as his own appointed interim successor. If he’s lucky, he’ll just have to run again in 2020 – he should have no trouble winning if that happens – and then can run for re-election as usual in 2022. This KHOU story doesn’t mention the April Fool angle, so I’m not really sure if this was a joke that didn’t land or just a foolishly early announcement with unexpected consequences. Either way, it wasn’t the best idea anyone ever had.

(Just so we’re all clear, the Constitutional provision cited in the story applies to the following offices: District Clerks; County Clerks; County Judges; Judges of the County Courts at Law, County Criminal Courts, County Probate Courts and County Domestic Relations Courts; County Treasurers; Criminal District Attorneys; County Surveyors; County Commissioners; Justices of the Peace; Sheriffs; Assessors and Collectors of Taxes; District Attorneys; County Attorneys; Public Weighers; and Constables. That means that among other things, it does not apply to District Court judges or appeals court judges, which is why the Democratic candidates for Supreme Court and the Court of Criminal Appeals in 2018, all of whom were sitting District Court judges in Harris County, did not have to resign. Remember how long there was speculation about Adrian Garcia running for Mayor in 2015 before he ever said anything? That was because he had to resign as soon as he did say it. Let’s all be aware of these things going forward, OK? Thanks.)

UPDATE: Here’s a legal defense of Judge McLeod’s actions. It’s more complicated than it first appears.

It’s bill-filing season

Here are some highlights from Day One:

  • House Bill 49, by Rep. Lyle Larson, R-San Antonio, would get rid of daylight saving time in Texas. Some lawmakers have tried to do this in past sessions.
  • House Bill 63, by Rep. Joe Moody, D-El Paso, would make it a civil offense — not a crime — to be caught with less than one ounce of marijuana. Moody’s bill was one of several filed Monday aiming to loosen marijuana laws in Texas.
  • House Bill 84, also by Moody, would repeal the section of the Texas penal code that lists “homosexual conduct” as a crime. The U.S. Supreme Court has already ruled that the section is unenforceable, but it remains on the books.
  • House Bill 222, by Rep. Matt Krause, R-Fort Worth, would prohibit Texas cities from adopting or enforcing ordinances that would require employers to offer their employees paid sick leave. San Antonio and Austin have passed paid sick leave ordinances this year. Soon after Austin passed its ordinance, state Rep. Paul Workman, R-Austin, announced that he would file legislation banning the ordinances, but Workman was defeated in Tuesday’s election.
  • House Joint Resolution 24, by Rep. Charlie Geren, R-Fort Worth, would propose a constitutional amendment requiring the state to fund at least half of the cost of funding public schools. If the amendment were approved by voters, local property tax collections would not apply to the state’s share.
  • Senate Bill 66, by Sen. Jane Nelson, R-Flower Mound, would reduce and eventually eliminate the state’s franchise tax.

My reaction, in order: Oppose, favor, favor, oppose, favor, neutral. It makes me happy that the pro-sick employees faction had to find a new lackey after their original sponsor got tossed. I’ll be following this stuff as usual as we morph into the legislative season.

How many police forces do we need?

It’s an age-old question.

Harris County could save millions of dollars a year by consolidating overlapping law enforcement agencies, from sharing technological resources to reallocating duties from constables to the sheriff’s department, according to a report by the Kinder Institute for Urban Research at Rice University.

The report, which was released Thursday, revives several decades-old ideas to combine resources between law enforcement agencies in Harris County, despite likely opposition from the agencies and county government, which would have the ultimate authority in enacting many of the proposed changes.

[…]

Kinder studied the 60 law enforcement agencies that form a patchwork of separate but sometimes overlapping patrols within Harris County, including the sheriff’s office, the Houston Police Department, constables’ offices, school district police departments and smaller municipal police departments. Those agencies spend a combined $1.6 billion per year on law enforcement, according to the report.

“We do have a system that, for all intents and purposes, is working fairly well,” Kinder researcher Kyle Shelton said. “But there are clearly places where there are overlaps and places where we could see what efficiencies would work.”

Among ideas included in the report are a merger of the Metropolitan Transportation Authority’s police department with the Houston Police Department, and the consolidation of smaller municipal police departments into a larger network.

One of the report’s most aggressive ideas to consolidate would be to move patrol duties from the eight Harris County constables’ offices to the Harris County Sheriff’s Office.

Political opposition to that idea would be too difficult to overcome because agencies would have to cede governing power, [County Commissioner Steve] Radack said.

“People can study it and study it and study it, but I can assure you … the people that are really familiar with this are all going to say, no” said Radack, who was formerly the Precinct 5 constable.

You can see the report here. Two points I would add: One, this is not limited to Harris County. Two, the list above leaves out police departments associated with universities, community colleges, and medical schools. There’s a lot of law enforcement agencies out there.

I find it interesting that the main argument against any sort of consolidation is that there would be political opposition to it, as Commissioner Radack notes. I don’t doubt that he’s right, but it’s not a reason, it’s a justification. Some reforms would require legislative assistance – Constables are constitutional offices, after all – while others shouldn’t need anything more than various entities working together. I’m pretty sure that there’s a dollar figure that could be attached to each recommendation in that report. Maybe if we start talking about it, we can decide what if any of these ideas are really worth pursuing, even in the face of political opposition.

Stanart responds to Garcia

From the inbox:

Sen. Sylvia Garcia

Harris County Clerk Stan Stanart issued the following statement in regards to the letter received from Texas State Senator Sylvia Garcia, by way of social media and her attorney, that asserts a County Clerk has the power to order an election:

“I’m flattered that Senator Garcia and her attorney want to bestow upon me the power to order an election; but, frankly everyone from the Secretary of State’s Texas Election Division to the Harris County Attorney’s Office do not believe that I have any such authority.”

“I have been advised by the Secretary of State’s Office and Harris County legal counsel that the responsibility for calling an election to fill a State Senate vacancy lies with other public officials and that this authority has not been granted to a County Clerk under statute or the Texas Constitution.”

“I also understand that in this political season your attorney who sent your demand letter, is engaged to the Harris County Democratic Party Chair, and would like to make some political points by dragging me into this issue. I also understand that the likely reason you want to delay your resignation until after Jan 1, 2019, is to increase your state pension.”

“I won’t get into the legality of your resignation letter, but it seems that rephrasing it to make it clear that you are resigning on a specific date would save everyone a lot of time, money and drama.”

See here for the background. Can’t say this is a surprise, it seemed like a longshot based on an interesting reading of a particular clause in the Constitution. Maybe the argument would work better in a courtroom, but I wouldn’t want to bet my own money on that.

I’ve been reluctant to criticize Sen. Garcia over this because I do think Greg Abbott is being a jackass and the precedent Garcia cites of Leticia Van de Putte’s resignation letter is on point, but we’re past the point of academic debate, and this is not a suitable place for drawing a principled line in the sand. The downside far outweighs any benefit I can think of for winning this contest of wills. Suck it up and submit another letter with the language Greg Abbott is demanding. It’s stupid, but it’s not as stupid as delaying the election. The Chron has more.

If Greg Abbott won’t call a special election in SD06, maybe Stan Stanart will

From the inbox:

Sen. Sylvia Garcia

Dear Mr. Stanart,

My firm and I, together with Robert Icesezen, Esq., have been engaged to represent Sen. Sylvia R. Garcia, individually and as the elected representative of the citizens of Texas Senate District 6. Governor Abbott has wrongly refused to order a special election to replace Senator Garcia, who recently served the Governor with a letter of resignation. Under the Texas Constitution, when the Governor won’t do the right thing, you must do it for him.

[…]

According to the Election Code, “an unexpired term in office” – like that of Senator Garcia – “may be filled only by a special election…” See Election Code 203.002. And, “[i]f a vacancy in office is to be filled by special election, the election shall be ordered as soon as practicable after the vacancy occurs…” Id 201.051(a) (emphasis added). This, someone must order a special election to fill the seat being vacated by Senator Garcia.

Under Section 13 of Article 3 of the Texas Constitution, that obligation falls first to the Governor. The Texas Constitution provides that “[w]hen vacancies occur in either House [of the Legislature], the Governor shall issue writs of election to fill such vacancies…” Importantly, under that same section of our Constitution, “should the Governor fail to issue a writ of election to fill any such vacancy within twenty days after it occurs, the returning officer of the district in which such vacancy may have happened, shall be authorized to order an election for that purpose.”

Governor Abbott should have ordered a special election for Senate District 6 by August 20, 2018. He has refused to do so. As the returning officer for Senate District 6 [1], it is your constitutional duty to do it for him. Only you can fulfill the Election Code’s mandate that a special election must be ordered under these circumstances.

See here for the background, and here for the Chron story. The letter is signed by Brian Trachtenberg, and it’s cc’ed to Abbott, County Judge Ed Emmett, and County Attorney Vince Ryan. My extremely-not-a-lawyer’s take on this is that the stated authority for Stanart to call the election seems to hang on the definition of “returning officer”, for which we have this footnote:

[1] – See Election Code 67.007 (a) (“For each election for a statewide or district office, a statewide measure, or president and vice-president of the United States, the county clerk of each county in the territory covered by the election shall prepare county election returns.”)

Someone more lawyerly than me will need to evaluate that. Assuming it is valid, then it becomes a question of whether Stanart will be any more inclined to take action than Abbott has been, and whether a judge would force the issue when the motion is filed. I have no idea what would happen next. And as entertaining as it is to speculate about obscure corners of the state constitution, the situation here is serious, and easily avoidable if Greg Abbott weren’t being such a jackass. Whether Sen. Garcia prevails via this legal gambit or sucks it up and writes another resignation letter, she needs to do whatever it takes to get that election scheduled.

From the “Nothin’ but good times ahead” department

Given the good economic conditions in Texas right now, you’d think the budget outlook would be better than it is.

The Texas economy is growing healthily, but that doesn’t mean state budget writers will have more money at their disposal next year, state officials said Tuesday.

In fact, though unemployment is low and tax revenue is on the rise, big bills coming due for the state’s highways and health care programs are giving Texas lawmakers reason for concern.

“I would like to offer a few words of caution for reading too much into the positive recent economic numbers,” Texas Comptroller Glenn Hegar told lawmakers at a Senate Finance Committee hearing.

As they often do, state budget writers last year underfunded Medicaid, the federal-state insurance program for the poor and disabled, which, alongside public education, makes up one of the largest shares of the state’s $217 billion two-year budget.

Then, during a special session called by Gov. Greg Abbott over the summer, state lawmakers shifted another $500 million away from the Texas Health and Human Services Commission to pay for public education programs.

As a result, lawmakers could face a $2.5 billion Medicaid bill shortly after they reconvene in Austin in 2019. Then there are the additional drains on Texas coffers from Hurricane Harvey recovery efforts, Hegar said.

That’s bad news for lawmakers given the comptroller’s prediction that the state will only have a $94 million “beginning balance” when lawmakers convene in 2019. By comparison, lawmakers had an $880 million beginning balance in 2017, which was ultimately a tight year for the state budget. Two years before that, lawmakers enjoyed a $7.3 billion beginning balance.

[…]

Another source of heartburn for budget writers is the ravenous state highway fund. In 2015, amid complaints of a highway system in disrepair, Texans voted to amend the state Constitution to require that up to $2.5 billion in sales tax revenue be dedicated to the highway fund.

That means that even as Texas collects more money from sales taxes — Hegar testified that sales tax revenue grew by an average of 10.3 percent over the last three months — the rest of the state budget will not benefit from that revenue since it is earmarked for the highway fund.

That was also an issue for budget writers in 2017. Last year, in order to free up some of that money for other purposes, Senate lawmakers pushed for an accounting trick that delayed a payment to the state highway fund into the next two-year budget cycle. That freed up about $1.6 billion for lawmakers last year, but it means there will be another bill to pay in 2019.

“In short, despite a strong economy and positive outlook for revenue growth in this biennium, it seems likely the next budget will be much like the one crafted in 2017, having to contend with restricted revenue relative to the spending trends of the state,” Hegar said.

Just a reminder: Underfunding Medicaid was a choice. Shifting money away from HHSC was a choice. The amendment to require all that highway spending was ratified by the voters, but it was there to be ratified because the Lege chose to put it there. Deferring that payment to the highway fund was a choice. And though the story doesn’t include it in its litany, spending nearly a billion dollars on boondoggle “border security” stunts was a choice, too.

We’ll probably be fine in the 2019 session, though the potential for shenanigans is always high. But remember, winter is coming, because it always does. When it does, we’re going to have a mess to clean up, one that was caused by the Republicans in charge of our state, one that could have been mitigated in many ways. I hope we’re ready for it.

(Note: This is the inspiration for the post title.)

Endorsement watch: More state propositions

The rest of the constitutional amendments, from the Chron.

State of Texas, Proposition 4: For

Everyone deserves to know if they’re being sued – even the state of Texas. The Legislature passed a bill in 2011 that would have required courts to provide notice to the attorney general if the constitutionality of a state statute was being challenged, and requiring a short waiting period before striking down a law.

[…]

State of Texas, Proposition 5: For

Fans of the Rockets, Astros or Texans are probably familiar with the charity raffles that have become a staple of gametime entertainment. Right now the state Constitution restricts these sorts of lotteries, which have routinely raised thousands for worthy causes, to the state’s 10 major league sports franchises. Voters should approve this amendment to expand the opportunities for charity to all the minor and major league teams in Texas.

[…]

State of Texas, Proposition 6: For

First responders put themselves at risk to keep the rest of us safe from criminals, fires and everything else that goes bump in the night. When one of Texas’ finest falls in the line of duty, we all have a responsibility to keep his or her family safe in return. This means guaranteeing that surviving spouses don’t have to worry about rising property taxes after losing not just a loved one, but also a breadwinner.

[…]

State of Texas, Proposition 7: For

Banks used to hand out toasters to lure first-time depositors. Maybe it’s time to bring that back. More than one-third of the state doesn’t have a simple savings account. About half lack an emergency fund that could last three months.

At this point, we’ll support almost anything that encourages people to open up a basic account and take the first steps to financial responsibility. That includes allowing credit unions and other financial institutions to entice savers with promotional raffles or lotteries.

See here for the first three. I’ve seen some differing opinions on these items, but for the most part I don’t think any of them amounts to much. Take whatever action you deem appropriate.

Endorsement watch: State propositions and Katy bonds

Hey, did you know that there are constitutional amendments on the ballot? It’s true! (Spoiler alert: There are constitutional amendments on the ballot every odd-numbered year.) The Chron has some recommendations for how to vote on them.

State of Texas, Proposition 1: For

This amendment would allow the Legislature to exempt partially disabled veterans and surviving spouses from paying property taxes on a home received from a charity at less than the market value. An exemption has already been granted when homes are given for free, and this opens the door to some cost sharing.

[…]

State of Texas, Proposition 2: Against

Consider it a form of post-traumatic stress. Any time banks ask for looser rules, we get flashbacks to the 2008 economic crisis. Financial institutions granted bad loans, good loans – some even made fake loans – knowing that the instruments would eventually be wrapped into a package and sold off. If the debt went bust, some other sucker would be stuck holding the bomb.

The global economic system ended up as the big loser in that game of hot potato.

Now the Texas Legislature is asking voters to tear down some regulations that help keep lenders in line. We recommend voting against.

[…]

State of Texas, Proposition 3: Against

The governor selects hundreds of unpaid appointees to serve on state boards and commissions, most of which run for four- or six-year terms. But if the term expires and no replacement is appointed, that volunteer is allowed under the state’s “holdover” provision to remain until the slot is filled. This amendment to the state Constitution would force out the incumbents even if there’s no new appointees and render the positions vacant.

We have no quarrel with the current “holdover” rule and recommend voting against.

There are seven of these in total, so I presume this was part one of two. I did receive a mailer the other day in favor of one of these, so there’s at least one active campaign involved. I don’t remember which one it was, though. This is why you need to send more than one piece of mail to ensure that your message penetrates, kids.

Moving a bit outside the usual boundaries, the Chron casts a virtual vote in favor of Katy ISD’s bond referendum.

Katy needs more schools.

That simple fact becomes obvious to anybody who looks at the Katy Independent School District’s explosive growth. During the decade between 2005 and 2015, Katy ISD’s enrollment rose by a whopping 47 percent.

Take a deep dive into the numbers and you’ll discover another telling insight from the state comptroller’s office, which diligently tracks data on Texas school districts. Between 2006 and 2015, Katy ISD’s tax-supported debt per student actually declined by a little less than 1 percent.

Now one of the fastest growing school districts in Texas wants voters to authorize a bond issue allowing them to borrow another $609 million. Katy ISD officials have earnestly made a compelling case for passing this referendum. Even some longtime activists in the district who’ve opposed previous bond issues fully support this one. Voters should, too.

As the piece notes, despite being one of the hardest-hit areas by Harvey, KISD’s enrollment was up this year, highlighting just how rapid its growth has been. This is one of those “you can pay now, or you can pay later” situations, and paying now – especially when interest rates remain low – is almost always the better choice.

Yes, there will be constitutional amendments on the November ballot

They’re not very interesting, which in this environment is a blessing, but they will be there.

House Joint Resolution 21

What will be on the ballot: “The constitutional amendment authorizing the Legislature to provide for an exemption from ad valorem taxation of part of the market value of the residence homestead of a partially disabled veteran or the surviving spouse of a partially disabled veteran if the residence homestead was donated to the disabled veteran by a charitable organization for less than the market value of the residence homestead and harmonizing certain related provisions of the Texas Constitution.”

House Joint Resolution 37

What will be on the ballot: “The constitutional amendment relating to legislative authority to permit credit unions and other financial institutions to award prizes by lot to promote savings.”

House Joint Resolution 100

What will be on the ballot: “The constitutional amendment on professional sports teams’ charitable foundations conducting charitable raffles.”

Senate Joint Resolution 1

What will be on the ballot: “The constitutional amendment authorizing the Legislature to provide for an exemption from ad valorem taxation of all or part of the residence homestead of the surviving spouse of a first responder who is killed or fatally injured in the line of duty.”

Senate Joint Resolution 6

What will be on the ballot: “The constitutional amendment authorizing the Legislature to require a court to provide notice to the attorney general of a challenge to the constitutionality of a state statute and authorizing the Legislature to prescribe a waiting period before the court may enter a judgment holding the statute unconstitutional.”

Senate Joint Resolution 34

What will be on the ballot: “The constitutional amendment limiting the service of certain officeholders appointed by the governor and confirmed by the Senate after the expiration of the person’s term of office.”

Senate Joint Resolution 60

What will be on the ballot: “The constitutional amendment to establish a lower amount for expenses that can be charged to a borrower and removing certain financing expense limitations for a home equity loan, establishing certain authorized lenders to make a home equity loan, changing certain options for the refinancing for home equity loans, changing the threshold for an advance of a home equity line of credit, and allowing home equity loans on agricultural homesteads.”

You can click over to see the brief explanation of what these mean, but honestly none of it is that interesting. This is the reason why you didn’t hear about any of this during the session. Only a few narrow interests care about any of this, and it’s unlikely there will be much of a campaign for any of it. Don’t expect there to be much turnout in places that don’t have some other elections on their November ballots.

Uptown lawsuit filed

I suppose we should have expected something like this.

The city’s Uptown Development Authority and the economic development zone that feeds it were created in violation of the Texas Constitution, two critics allege in a lawsuit that seeks to void all resulting actions and block Uptown from collecting or spending another dime.

The Galleria-area agency’s controversial, $200 million effort to widen Post Oak Boulevard and add dedicated bus lanes down the middle is a key focus of the lawsuit. It was filed Wednesday on behalf of restaurateur Russell Masraff and condominium resident Jim Scarborough, who was also was a plaintiff in another, since-dismissed lawsuit seeking to block the bus plan.

The suit argues that Uptown officials repeatedly violated the Texas Open Meetings Act in pricing and purchasing land to widen Post Oak – including tracts in which some Uptown board members had a financial interest – and that the agency’s subsequent decisions should be voided or reversed, to the extent possible.

The plaintiffs’ attorney, Joe Larsen, said he views the filing as having broader significance beyond the bus plan.

“We’re asking the court to order Uptown to make no further payments because all the money involved has been collected through an unconstitutional tax regime,” Larsen said. “The bottom line is the Constitution requires equal taxation.”

He added that the only reason tax increment reinvestment zones, or TIRZs, “are not unconstitutional is that there’s a different provision in the Constitution that allows them.”

“In order to meet that other provision in the Constitution that allows TIRZs to be constitutional, they have to be in an area that’s ‘blighted, undeveloped or underdeveloped,’ Larsen asserted. “That’s it.”

This is not the first lawsuit related to this project; that one was subsequently dismissed, though without a comment on its merits. In this case, the plaintiffs asked the judge for an injunction blocking the Uptown Development Authority from spending money or issuing bonds while the litigation was in progress, but that request was denied. I feel like it’s also in the Constitution that we cannot have a non-freeway expansion transportation project in this town without at least one lawsuit. I’m not qualified to assess the legal argument being made here, so instead let me bring you a video of “Uptown Funk”, since that song has been lodged in my brain since this story first broke.

With all due respect to “Uptown Girl”, I say this song should be played at the beginning of all court hearings in this case. Who’s with me on this? Swamplot has more.

Two “faithless electors”

In the end, Donald Trump got thirty-six of Texas’ 38 electoral votes.

All but two of Texas’ 38 electors voted Monday to officially put Donald Trump in the White House, with one elector casting a ballot for Ohio Gov. John Kasich and another casting a ballot for a fellow Texan, former U.S. Rep. Ron Paul.

The votes from Texas were the ones that clinched the presidency of the United States for Trump, pushing the real estate mogul past the 270-vote threshold, according to Politico.

Elector Chris Suprun of Dallas had previously announced he would not support Trump. Another elector, Art Sisneros of Dayton, resigned as an elector, also in protest of Trump.

As electors voted, protesters’ chants picked up outside and could be heard from in the House chamber. They appeared to be saying specific electors’ names, followed by, “Save our democracy!”

The vote was unusually closely watched but largely expected: Both Suprun and Sisneros had shared their plans weeks in advance of the meeting. Suprun, however, did not announce until hours before the vote that he would instead vote for Kasich.

It was not immediately known who voted for Paul, the longtime congressman from Lake Jackson and three-time presidential hopeful. The process is secret ballot, meaning electors’ votes are not public unless they choose to disclose them.

According to the Statesman, the other maverick was a fellow named Bill Greene. As far as I know, he has not said why he did what he did. Art Sisneros was replaced as expected, as were three others who were apparently ineligible to serve.

I didn’t expect anything more exciting to happen, mostly because there was no one else out there joining Chris Suprun in his little exercise of conscience. I admit I harbored a teeny bit of hope that the Electoral College would Do Something about this, but I never really expected that. While I believe that the original intent of the founders was precisely for the Electoral College to prevent a man like Donald Trump from winning this election and that any legislative attempts to coerce them into voting a particular way are thus inherently unconstitutional, I agree that referring to such an intervention as being in any way “democratic” was misguided. The Electoral College is what it is, and we either accept that or we amend the Constitution to get rid of it. The extreme divergence between the popular vote and the electoral vote in this race is as strong an argument as one could want to make a change, but don’t hold your breath waiting for it.

You can’t stop the faithless electors

So says Carolyn Shapiro, associate professor at IIT Chicago-Kent College of Law, where she is co-director of the Institute on the Supreme Court of the United States.

Earlier this week, in a New York Times op-ed, Texas presidential elector Chris Suprun announced that he would not be casting his vote for Donald Trump. Even though Texas voters chose Trump, Suprun—along with a small group of electors from around the country calling themselves “Hamilton Electors”—will vote for a yet-to-be-identified compromise Republican. As Suprun explained in his op-ed, and as I and others have detailed elsewhere, Donald Trump’s conduct since the election has demonstrated that he is dangerously unqualified and unfit to be president.

Can electors legally do this? While the nearly universal expectation is electors’ votes will reflect the popular vote in their states, the Constitution doesn’t require them to. As others have explained, Alexander Hamilton’s justification for the Electoral College in Federalist No. 68 shows that the Framers intended for electors to exercise their own judgment when necessary.

Many states, however, have laws that prohibit these so-called “faithless electors” (perhaps a better term would be “conscientious electors”) from bucking the state popular vote. This week, two electors filed suit in federal court arguing that Colorado’s version is unconstitutional. (Hillary Clinton won Colorado, but the plaintiffs hope that a victory in their lawsuit will effectively invalidate all such laws, allowing electors in Trump states to defect.) In addition to arguments based on the Framers’ intent, there is a strong argument based on constitutional structure and text, and on Supreme Court precedent, that these electors should prevail.

The Constitution gives the states authority over how to choose electors. Article II, Section 1 provides that “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors…” But the Constitution does not authorize states to tell the electors, once selected, how to vote.

The Twelfth Amendment, which was ratified in 1804, spells out the electors’ duties in more detail. And it, too, defines the duties of electors without giving the states or state officials any role in defining or enforcing those duties. “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President …,” it says, and then goes on to explain that the electors should each cast two ballots: one for president and one for vice president. The electors, and only the electors, are directed to count, certify, and seal their votes, and to send the results directly to Washington. This allocation of responsibilities suggests that the Framers wanted to insulate the electors from the states’ influence or interference once they are appointed.

See here for the background, and be sure to read the rest. I kind of doubt Dan Patrick’s effort to bound electors will go anywhere, mostly because I doubt he’ll care enough to spend time and effort on it when he has much bigger fish he wants to fry, but you never know. What I do know is that I welcome the conversation about the role of the Electoral College, both as originally envisioned and in today’s world. Either we own and embrace what it was designed to do, or we should admit that it’s an anti-democratic anachronism and get rid of it.

City loses in appeal against firefighters’ pension statute

Here’s a pension fund-related litigation update for you.

Houston can’t overhaul a state-governed firefighter pension system that the mayor claims is pushing the city towards insolvency, a Texas appeals court ruled.

Houston sued the Houston Firefighters’ Relief and Retirement Fund in January 2014, seeking a declaration that a state law setting how the fund is operated, and giving the city no control over the amount of its contributions, is unconstitutional.

The city paid $350 million in pensions to firefighters, police and city workers in 2015, but its unfunded pension debt is $6 billion and growing.

A state judge sided with the fund in May 2014 and granted it summary judgment.

The city appealed, pressing its argument that the subject state law, passed in 1997, gives too much power to the pension fund’s board that is comprised of a majority of firefighters who are beneficiaries of the fund, and thus are inherently self-interested in maximizing firefighter pension benefits to the detriment of the city’s financial health.

The 10-member board is made up of six active or retired firefighter fund members who are elected by other firefighters, the mayor or an appointed representative of the mayor, the city treasurer and two citizens who are elected by the other trustees.

Houston claimed on appeal the state law violates the separation-of-powers principle in the Texas Constitution by delegating authority to a nonlegislative entity, the fund board.

The city cited Texas Boll Weevil Eradication Fund v. Lewellen. In that case, the Texas Supreme Court ruled in 1997 that a foundation established by the Texas Legislature to exterminate boll weevils that were threatening to destroy the Texas cotton industry unconstitutionally gave too much authority to the foundation to tax private farmers to pay for weevil killing.

But the 14th Texas Court of Appeals decided Thursday that the boll weevil foundation is fundamentally different from the pension fund board because the board includes public employees.

“The purpose of that [boll weevil eradication] foundation may be construed as protecting a private industry from a blight, albeit with an indirect benefit to the public. In contrast, eight of the 10 trustees of the fund’s board are current or retired public employees…We would have difficulty classifying the board as a private entity when the mayor and city treasurer also serve as trustees in order to administer benefits to public employees,” Judge John Donovan wrote for a three-judge panel.

The panel also rebuffed Houston’s argument that the state law is unconstitutional because it only applies to incorporated municipalities with a population of at least 1.6 million and a fully paid fire department. Houston is the only Texas city that qualifies.

The city claims the special treatment violates the Texas Constitution’s ban on the Legislature meddling in local affairs.

But the appeals court agreed with the fund’s contentions that Houston is uniquely dangerous for firefighters compared to the other four big cities in Texas—Austin, San Antonio, Dallas and El Paso—so sweeter pension terms are necessary to attract and retain firefighters.

See here for the background, and here for the ruling. There have been multiple lawsuits related in one way or another to the firefighters’ pension fund; it’s hard to keep track of them all because they go multiple months without any news. The city could appeal this to the Supreme Court, but I don’t think they will, for two reasons. One is that I doubt they’ll get a different outcome, and two is that while this lawsuit was filed by the Parker administration, the Turner administration has a much less contentious relationship with the firefighters, and is working on a pension fund deal with them. It would be a show of good faith, if not a bargaining chip, for the city to quit pursuing this lawsuit, and seek to settle or drop any other ongoing litigation for which the HFRRF is an opponent. The Chron story says the city “continues to believe the state statute is unconstitutional because it allows the firefighters’ pension fund to determine contribution levels”, and that the city intends to “seek further review”. We’ll see what happens.

UPDATE: Woke up this morning, and the following announcement was in my inbox: “Mayor Turner will unveil preliminary points of understanding with the Houston Firefighters’ Relief and Retirement Fund, the Houston Police Officers’ Pension System and the Houston Employees Pension System. The proposed plan will form the basis for a package of pension reforms that will be submitted for approval to the governing boards of the pension systems, City Council and the state legislature.” That’s happening today at 2 PM. So maybe this won’t have any effect on the negotiations one way or the other.

SCOTUS declines to hear Ted Cruz birther lawsuit

Not that it really matters at this point.

Not Ted Cruz

Not Ted Cruz

The Supreme Court declined Tuesday to hear a lawsuit arguing that Texas Republican Sen. Ted Cruz is ineligible to be president because his Canadian birth means he is not a “natural born citizen.”

The justices upheld a lower court ruling from March that found Walter Wagner, a retired attorney in Utah, did not have standing to file a lawsuit over the issue. Wagner was one of several individuals nationwide who sued to challenge Cruz’s eligibility to run for president.

In the March ruling, U.S. District Judge Jill Parrish noted that other challenges were similarly dismissed. Parrish never ruled on the underlying question of whether Cruz was eligible to be president.

See here for the background. A similar suit filed in Texas was dismissed shortly after dismissal of the Utah suit was appealed to SCOTUS. We all know that Cruz isn’t going away, so I expect this issue to come up again in 2020 or whenever he tries to run for President again. As I’ve said before, while the question raised by these claims isn’t ridiculous, I believe the “natural-born citizen” requirement has long outlived any usefulness it once had, and should be tossed. Perhaps the courts can take that up next time, since the odds of the Constitution being amended are basically nil. In any event, there is now one fewer bits of effluvia floating around the campaign this year. Let us be thankful for that.

Meyers’ voter ID lawsuit gets appellate hearing

I hope he gets to keep it going.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

[Court of Criminal Appeals Justice Lawrence] Meyers filed his state lawsuit in October 2014, while another legal challenge to the state’s voter ID law was pending in federal court in Corpus Christi. A federal judge overturned the law, but it has remained in effect during the state’s appeals to higher courts.

Meanwhile, state and local officials in Texas tried to get Meyers’ challenge dismissed. A Dallas trial judge — former state lawmaker Dale Tillery, a Democrat — refused that request. Now those officials are asking the state’s 5th Court of Appeals in Dallas to toss it. That hearing is set for Tuesday.

Meyers is lapping this up. His challenge is the sort of technical thing you would expect from a long-time judge. He points to this sentence in the Texas Constitution (emphasis added): “In all elections by the people, the vote shall be by ballot, and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box; and the Legislature shall provide by law for the registration of all voters.”

“It does not include ‘prevent,’” he says, adding that the voter ID law is “a prior restraint against your constitutional right to vote.”

As he put it in his original filing, the voter ID law forces voters to prove they are innocent before they cast their ballots rather than requiring the state to prove that someone is actually guilty of voter fraud once they have voted. Someone who doesn’t have the required identification “will be denied his right to vote and will be presumed to be guilty of voter fraud,” he wrote.

Proponents of the voter ID law say it’s no more burdensome than presenting identification in routine commercial transactions, and say the law has built-in workarounds for people who don’t have drivers’ licenses to show voting officials.

Meyers contends that the state’s effort to prevent voter fraud — he doesn’t think such fraud exists in any serious way — creates an obstacle to voting that does more harm than good. Voter fraud is already illegal, he points out, and the state can and should prosecute it whenever it occurs.

“We’re just asking that our Constitution be enforced,” he says. “Voter ID is almost identical to what the old poll tax was. … It suppresses the vote.”

In its legal filings, the state argues that Meyers doesn’t have grounds to sue because he hasn’t shown how he the voter ID law has done him any harm. Those state lawyers also contend that the law does not add to the “qualifications” of voters but is more akin to other requirements, like when the polls are open or when elections are held.

See here and here for the background. Obviously, I agree with Meyers on the merits; the questions about standing are beyond my non-lawyerly capabilities to analyze. Meyers has said that he’ll drop this lawsuit if the federal courts uphold the ruling that Texas’ voter ID law was unconstitutional. We may have some indication by July of that. In the meantime, I’m rooting for the courts to allow this challenge to keep going.

The Scalia effect on current cases

The Trib highlights a few cases pending before the Supreme Court that could be affected by the death of Justice Antonin Scalia.

Antonin Scalia

Texas abortion law

On March 2, the court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, which challenges Texas’ 2013 abortion law. Beyond deciding the constitutionality of a law that could shut down about half of the state’s 19 remaining abortion clinics, the Texas abortion case gives the Supreme Court an opportunity to clarify how far states can go in restricting abortion.

In 1992, the court ruled that states can impose abortion restrictions as long as they do not place an undue burden on a woman’s ability to obtain an abortion.

Lower courts across the country have disagreed, however, on what constitutes an “undue burden.” Activists on all sides are hoping the high court will provide a clearer definition in its decision in the Texas case. That case centers on the state’s requirement that abortion clinics meet hospital-like ambulatory surgical center standards — which include minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications. In June, a three-judge panel of the U.S. 5th Circuit Court of Appeals largely upheld the new abortion restrictions, saying the new law does not impose an undue burden on a majority of Texas women seeking abortions.

Justice Anthony Kennedy could be the swing vote. If he sides with the conservatives on the court, the resulting 4-4 tie would affirm the lower court ruling.

The lower court also granted the relatively remote Whole Woman’s Health in McAllen an exemption to some narrow elements of the ambulatory surgical center requirements and from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

Barring a tied vote, a decision in the Texas case could also determine the constitutionality of restrictions in place in other areas of the country. As of November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those states, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities. Those restrictions were not in effect in two of those states.

Immigration

The high court also agreed to hear the state’s case against the Obama administration’s controversial executive action on immigration that was announced in November 2014.

Known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, the action would shield more than 4 million undocumented immigrants in the country from deportation proceedings and allow them to apply for three-year work permits. Lower courts have ruled to halt the policy three separate times.

The Supreme Court agreed to hear the case in January but has yet to schedule arguments.

[…]

UT-Austin’s affirmative action policy

The death of Scalia cast uncertainty on many important cases before the Supreme Court, but probably won’t have a major impact on the decision in Fisher v. the University of Texas at Austin, which is a case about the constitutionality of affirmative action.

Justice Anthony Kennedy is still the likely swing vote, just as he was before Scalia died.

Abigail Fisher, who is white, contends she was unconstitutionally denied admission into UT-Austin in 2008 because of her race. UT-Austin considers the race of a small portion of its applicants, and black and Hispanic students often get a slight advantage in that pool of admissions. If Fisher wins her case, UT-Austin might be unable to consider the race of its applicants in the future. A broad ruling against UT-Austin could even end affirmative action nationwide.

Scalia, a longtime opponent of affirmative action, was almost certain to vote against UT-Austin. He was in the dissent in Grutter v. Bollinger in 2003, when the Supreme Court upheld the practice of affirmative action in a limited way.

[…]

Redistricting

Finally, the justices heard arguments last year on a Texas case that questions a basic idea in American election law. In Evenwel v. Abbott, the plaintiffs argue that their voting power is diluted by the way Texas draws its state legislative districts, saying those lines should be based on the number of eligible voters in each district and not on population.

Congressional districts are based on population, as directed in the Constitution. The Evenwel case challenges Texas Senate district lines; a decision allowing states to use eligible voters as a base could shatter current lines here and in other states that want to make the change, remaking the distribution of power in state legislatures. That decision is pending.

The court has already accepted those four cases, among others, but doesn’t have to do anything this term if the justices decide to change course.

If the justices don’t want to rule on a case they’ve already accepted, they can announce it was “improvidently granted,” which means lower court ruling holds, [Sanford Levinson, a constitutional law expert at the University of Texas at Austin] said. They can hold over any unheard cases they want until they have a ninth colleague, and they can rehear oral arguments with a ninth colleague if they want to wait or they think a ruling with a four-person majority would be too controversial.

“It certainly wouldn’t surprise me if they hold over some stuff where time really isn’t of the essence,” Levinson said. “You can make this argument of the election case [Evenwel]. If they hold it over, the world won’t come to an end.”

There’s a lot of good commentary out there about What This All Means, at least in the short term – see Think Progress, SCOTUSBlog, and Rick Hasen, for example. The main point to keep in mind is that in any case where SCOTUS winds up splitting 4-4, the ruling of the lower court would stand. From my perspective, that’s a good thing in some cases – Friedrichs being one example, Evenwel being another – and not so good in others, specifically Whole Woman’s Health and the DAPA case. In addition, in some cases that kind of result could also mean a split in the appeals courts. There are plenty of abortion restriction lawsuits out there, over laws similar to what Texas passed, and a number of other federal courts have struck them down. It’s not hard to imagine at least one appeals court upholding the lower court on those rulings, thus making laws like Texas’ legal in some states but not in others. Texas’ law is currently on hold thanks to SCOTUS, so one way to avoid this problem would be for the Court to delay hearing the appeal until they’re back at full strength. Or maybe the good Anthony Kennedy will show up and Texas’ law will get struck down on a 5-3 vote. Let’s just say that John Roberts has a lot to think about and leave it at that.

One other thing: Justice Scalia’s death has revived the idea of term limits for Supreme Court justices, an idea that has fairly broad support. Ted Cruz is a proponent of the idea, though as is always the case with Cruz, he has bad reasons for doing so. I’m perfectly fine with the idea of limiting Justices to 18 years on the bench. It’ll take a Constitutional amendment, so the odds of it happening are infinitesimal. but if it gains momentum that will be okay by me. For what it’s worth, prior to Scalia’s death, there were five Justices who had already served more than 18 years, and three of them were appointed by Republican Presidents: Scalia, Kennedy, and Clarence Thomas, along with Ruth Bader Ginsburg and Stephen Breyer. Make of that what you will.

Resign to run has kicked in for Council members

Another change that our new term limits law has wrought.

Houston elected officials who become a candidate for another elected office are now automatically required to resign their current seat, uncharted territory for city officeholders who previously had not been subject to the so-called “resign-to-run” provision of the Texas Constitution.

The requirement that has long applied to county officials also covers officeholders in municipalities whose terms are longer than two years. Voters extended the terms of Houston elected officials to four years, from two, last November, triggering the change.

The “resign-to-run” clause pertains to those with more than one year and 30 days left in their terms who announce their candidacy or become a candidate in any general, special or primary election.

The provision does not appear immediately to affect three City Council members – Dwight Boykins, Jerry Davis and Larry Green – who have expressed interest in the late Harris County Commissioner El Franco Lee’s seat, because it would not kick in until Democratic precinct chairs select someone to replace Lee on the November ballot.

[…]

Executive committee nominations aside, a memo sent Tuesday by City Attorney Donna Edmundson and obtained by the Chronicle defines “announcing candidacy for office” as “making a written or oral statement from which a reasonable person may conclude that the individual intends, without qualification, to run for an office.”

Edmundson added: “A statement made in a private conversation does not constitute an announcement of candidacy for the purposes of the ‘resign to run’ provision. Likewise, a statement indicating an interest in an office is not considered an announcement of candidacy.”

[Mark] Jones said the new rules further constrain elected city officials.

“Previously, they effectively could have their cake and eat it, too, in that they could run while keeping their City Council position,” Jones said. “Now, they’re going to have to actually make a hard choice, which in some cases may be a risky move.”

Yes, but let’s not go overboard. Not that many people that would have been affected by resign-to-run took advantage of their prior exemption from it. Going back a decade, I can think of six sitting municipal officeholders who were also candidates for other offices. Three of them were in the last year of their final term – Bill White in 2009, Wanda Adams in 2013, and Ed Gonzalez in 2015 – and thus had less than a year and a month remaining in office. Only three people would have had to resign to run – Shelley Sekula Gibbs, who ran for Congress in 2006; Adrian Garcia, who ran for Sheriff in 2008; and Mike Sullivan, who ran for Tax Assessor in 2012. Sekula Gibbs and Garcia resigned after winning their November elections, thus triggering special elections to succeed them the following May, while Sullivan resigned after winning his primary, which allowed the special election to fill his seat to happen that same November.

The rest of the story is about filling Commissioner El Franco Lee’s spot on the November ballot, and it’s mostly stuff we already know. The main thing here is that this change probably won’t have much effect, though it could alter how some incumbents view the rest of the election cycle. If anyone decides to run for something in 2018, we’ll know.

The Prop 7 funds are already being claimed

Get ready for a lot more road construction in the near future.

Voters have a little more than a week to decide whether to give Texas highways a $2.75 billion annual funding boost, but Houston-area officials are already making plans to spend the money.

In the event Proposition 7 passes – the proposal has silent, token opposition – officials with the Houston-Galveston Area Council on Friday approved a revised 10-year spending plan that reflects when area road projects could begin, using the new money.

“Readiness will be the name of the game,” said David Wurdlow, program manager for short-range transportation planning at H-GAC. “We are going to be real aggressive to move projects forward.”

Without Proposition 7 the amount of money available for regional transportation projects is roughly $2.1 billion for the next decade, according to the current 10-year plan. Though not the only source of highway money, the funds directed by H-GAC’s Transportation Policy Council are among the most significant to build or rebuild highways.

Adding Proposition 7, officials estimate, increases that total to more than $4.6 billion, taking long-sought projects and moving them much closer to reality much sooner. In fiscal year 2018, for example, Proposition 7 would increase highway spending in the Houston area from $211 million to $696 million.

In 2018 alone, Proposition 7 means an earlier start to two segments of widening Interstate 45 near NASA Bypass 1 in Webster and earlier construction on FM 2100 east of Atascocita.

Another project accelerated by planners is a long-sought widening of Texas 36. Though the road isn’t a major commuting bottleneck, widening it is a major focus Freeport and Waller County officials who contend the highway is a natural truck bypass for the Houston area.

[…]

Like Proposition 1, the money comes with some conditions. Officials cannot pay off any of Texas’ highway debt, which is how many previous transportation programs were paid. All of the funds must be used on state highways – meaning no tollways, transit or alternative modes such as bicycling can benefit.

Some non-highway projects, however, could benefit, if regional officials approve. The transportation council is made up of local elected leaders and the heads of transportation agencies such as the Metropolitan Transit Authority and TxDOT’s Beaumont and Houston offices. Council members use a formula that divides the federal and state funds spent by the agency, which caps spending on non-highway projects, called alternative modes, to between 18 percent and 25 percent of total funds.

If the Proposition 7 windfall gives officials hundreds of millions of dollars more for highways, they could restructure.

“We might be able to move those (highway projects) to the proposition side and move some of those funds to alternative modes,” Wurdlow said.

Prop 7 isn’t raising any new money to spend on transportation, because we don’t do that sort of thing in Texas. It simply mandates that $2.5 billion of sales and use tax revenues in Texas specifically to transportation – in other words, it takes money from one pocket of the budget and puts it in the other. If you’re wondering why legislators who have been writing the state’s budget over the pasty few years were unable to allocate extra funds for transportation on their own, or thinking that this is just another band-aid that doesn’t actually solve anything, you would not be alone. Streetsblog and the Rivard Report present a more comprehensive case against Prop 7, but I doubt it will have much effect. Like it or not, we’re going to see a lot more highway construction in the near future. Better get used to it.

Endorsement watch: The state propositions

There are seven constitutional amendments awaiting your vote on the November ballot. The Chron evaluates them.

Constitution

Proposition 1

The amendment would boost homestead exemption amounts for school district property taxes from $15,000 to $25,000. It also would reduce the amount of taxes that could be levied on the homesteads of elderly and disabled Texans and would prevent public officials from reducing or eliminating already-approved property tax exemptions. In addition, it would keep the state from charging a transfer tax on the sale of the property.

Proposition 2

This amendment extends the property-tax exemption for spouses of deceased veterans who were 100 percent disabled. Voters approved a similar exemption in 2011, but that one applied only to spouses of veterans who died on or after Jan. 1, 2010. The current proposal eliminates the date restriction.

Proposition 3

This proposal would repeal the requirement that state officers elected by voters statewide reside in the state capital.

Proposition 4

This proposal authorizes the Legislature to permit professional sports teams to raise money through raffles during games for charity.

Proposition 5

This amendment would authorize counties with a population of 7,500 or less to perform private road construction and maintenance, raising the population cap from the current 5,000.

Proposition 6

This amendment “recognizing the right of the people to hunt, fish and harvest wildlife subject to laws that promote wildlife conservation” is the most ridiculous on the ballot.

Proposition 7

In an effort to address the state’s huge transportation needs, this amendment would require the Texas comptroller each year to dedicate the first $2.5 billion of vehicle sales use and rental taxes to the General Revenue Fund, dedicate the next $2.5 billion to the State Highway Fund and split between the two funds all revenue above that. The plan will generate an estimated $3 billion per year by 2020.

Not much to go on there, I admit. VoteTexas has the full statement of each amendment, and public radio station KUT in Austin has been doing a series of reports on each proposition; they’ve done one through five as of yesterday, so check back again later for the last two. The Chron opposes numbers 3 and 6 and supports the others. I’m “not just no but HELL NO” to those two, I’m leaning No on one and seven, and I’m fine with #s 2, 4, and 5. Kevin Barton argued against Prop 7 a few days ago. If you know of any good arguments for or against any of these, leave a link in the comments.

One side note: Proposition 1, which is basically a tax cut (and significant spending increase, not that anyone in our Republican leadership would ever admit to that), has an actual campaign behind it, as it is considered a top priority for the real estate industry and the Texas Association of Business. As such, I received a pro-Prop 1 mailer at home last week. You may note that the HERO referendum is also called Proposition 1. It’s City Proposition 1, whereas this is State Proposition 1, and it appears at the end of the ballot while the tax cut referendum is up front, but they’re both still Proposition 1. I can’t help but think that a few people will be moved to vote for the latter on the belief that they are voting for the former, or at least something related to the former. I can’t imagine there will be many people like this, but the number is surely greater than zero. Given that, I suppose it’s a good thing that the city lost its fight to word the referendum in such a way that a No vote was a vote in favor of HERO. So thanks, Andy Taylor, for seeing through the Mayor’s nefarious ploy and ensuring that this little bit of luck would favor the pro-HERO side. I’ll be sure to drink an elitist craft beer, served with quinoa chips and organic, locally sourced salsa, in your honor.

How much do you hate same sex marriage?

Not as much as this guy does.

RedEquality

Ammon J. Taylor of San Antonio is so vehemently opposed to same-sex marriage that he took the unusual step of forming a federal super PAC to fight it.

The 27-year-old salesman is taking a seldom-tried — some would say improbable — approach. He wants to muster a convention of states to amend the Constitution to enable states to quash the Supreme Court’s June ruling that legalized same-sex marriage.

On July 16, Taylor registered the Restore Marriage PAC with the Federal Election Commission, naming himself president and treasurer. Moving methodically, he opened a bank account, issued a news release, created an Internet presence, and began seeking volunteers and support among fellow conservatives of all creeds.

“Most Americans think that since the Supreme Court decision allowing same-sex marriage, the issue is settled. It is not,” Taylor said when he announced the PAC.

With Congress not acting against same-sex unions, a convention of states “is our only constitutional recourse to save marriage,” he said.

For Taylor, the effort is part of living his Mormon faith. As a boy, he watched his father lead Nebraska’s initiative to define marriage as being between a man and a woman, which passed overwhelmingly in 2000 but was nullified by the court decision.

[…]

Taylor concedes it’s unlikely that enough states could be persuaded to “pass an amendment that would protect and restore marriage nationwide. We do believe we can get 34 states to come together to hold a convention to propose an amendment that allows each state to define for itself.”

With most states under Republican control, he said, “now is the best time ever to return to the states the right to determine key social and economic events that Washington has allowed to run out of control — like balancing the budget, stopping abortion and protecting traditional marriage,” Taylor said.

“How do we put the pressure on Congress to call for an amendment now? The answer is we hold a mock convention,” he said. Taylor hopes to conduct the “People’s Convention” around a July 2016 meeting of lawmakers at the American Legislative Exchange Council in Indianapolis.

A key motivation for Taylor was a Mormon leader’s prophesy that those outside Washington, D.C., would someday save the Constitution.

I’m not going to waste any time on Amman Taylor’s hateful nonsense, which he of course denies is motivated by hate because how could legally classifying millions of people as second-class citizens be anything but loving? The fact that he hopes to put his grand plan in motion at an ALEC conference is…I can’t even. Seriously. What I will do is go off on a brief rant about the difference between prophecy and prophesy, which are not only two different words that have two different pronunciations, they’re even two different kinds of words. Prophecy is a noun. It is the work product of a prophet. Prophesy is a verb. It is the action taken by a prophet to produce a prophecy. I don’t know if I blame the reporter or the copy editor (if they still have them at newspapers these days) more for this annoying and annoyingly common error, but either way, please get this right. It makes me twitch like Herbert Lom in the Pink Panther movies when I see “prophesy” used as a noun. You don’t want to do that to me, do you? Thanks.

No, we shouldn’t have any kind of elections for SCOTUS justices

Your junior Senator, ladies and gentlemen.

Not Ted Cruz

Not Ted Cruz

Dismayed by a pair of Supreme Court decisions upholding Obamacare and gay marriage, Republican Ted Cruz presided over a packed Senate hearing Wednesday calling for judicial elections and term limits to rein in what he called “judicial tyranny” and “the abuse of judicial power.”

While term limits or recall elections for Supreme Court justices are considered a distant long-shot, both ideas have gained traction with some legal theorists – and especially with social conservatives who are a key part of Cruz’s strategy to win the 2016 GOP presidential nomination.

As chairman of a Judiciary subcommittee on the federal courts, Cruz took center stage in an afternoon hearing that aired a host of conservative grievances with recent high court decisions that have remade the political landscape on health care and same-sex marriage.

“So long as justices on the Court insist on behaving like politicians, acting like a political body, and making policy decisions instead of following the law, they should not expect to be exempt from the authority of the voters who disagree with their policy decisions,” Cruz said.

The idea of retention elections has been widely panned by critics on the left and right, many of whom fear it would politicize the highest echelon of the judicial branch and expose the justices to unseemly political campaigns.

Delaware U.S. Sen. Christopher Coons, the ranking Democrat on the panel, suggested that the proposal is an overreaction to a pair of court decisions that went against the views of conservatives.

“We cannot decry judicial activism and create a Constitution crisis every time that a big case comes out against us,” Coons said. “The Supreme Court has been a vital arbiter of political interests precisely because it is insulated by the vagaries of politics and political interests.”

Coons and other opponents of Cruz’s plan argued that the current Supreme Court has delivered a string of conservative victories on guns, voting rights and campaign spending limits.

I’ve said it before and I’ll say it again: For a guy that’s supposed to be so freaking smart, Ted Cruz sure says a lot of stupid things. Putting aside the obviously sore-lose-crybaby motivation for this proposal and the fact that the Founders intended Supreme Court justices to be above politics (hence the lifetime appointments; you’d think a self-styled “Constitutional conservative” would have some respect for that), electing Supreme Court justices is an objectively terrible idea. The public will be woefully under-informed about the candidates, who will necessarily be limited in what they can campaign on. All of the conflict-of-interest problems with judicial elections at lower levels will exist times a billion. And speaking of “billion”, the amount of super PAC/special interest money that would flood into these campaigns would be enough to choke a Koch brother. There’s just nothing to recommend this.

Now, some people have suggested perhaps limiting SCOTUS terms to something like 18 years, which would allow for regular turnover while still shielding the Justices from electoral politics. (Which is not to say they’re not themselves political, just that they could continue to make rulings without wondering about their existential future.) I could be persuaded to support such a plan, if I thought there was a chance it could be approved. But Cruz isn’t interested in improving anything other than his own side’s advantage. I suppose that much is smart, but so would be having a plan that had a chance of actually succeeding.

SCOTUS rules for marriage equality

Boom.

RedEquality

Handing gay rights advocates a monumental victory, the U.S. Supreme Court on Friday ruled that marriages between couples of the same sex are constitutional, a decision that overrides Texas’ long-standing ban on gay marriage.

In a 5-4 ruling, the high court found that same-sex couples have a constitutional right to marry and that states must license a marriage between two people of the same sex.

“Today’s victory will bring joy to tens of thousands of Texans and their families who have the same dreams for marriage as any others,” Chuck Smith, executive director for the gay rights group Equality Texas, said in a statement. “We hope state officials move swiftly to implement the Constitution’s command in the remaining 13 states with marriage discrimination.”

Though the Supreme Court ruled specifically on four gay marriage cases out of a Cincinnati-based federal appeals court, its decision legalized gay marriage nationwide, dismaying Texas’ Republican leaders.

The ruling is here. I for one am thoroughly enjoying the bitter, bitter tears of those dismayed Republican leaders; you can see those and some other reactions here. Seriously, every time Ted Cruz says something hilariously apocalyptic, an angel gets its wings.

Texas’ ban, which had been on the books for a decade, defined marriage in the state Constitution as “solely the union of one man and one woman.” A legal challenge to Texas’ constitutional ban was making its way through the courts.

Two same-sex couples had sued Texas over its gay marriage ban, arguing that it did not grant them equal protection as intended by the 14th Amendment. Attorneys for the state of Texas defended the ban, saying it met equal protection laws and that the courts should not undermine a state’s sovereignty to impose such restrictions.

The Texas case was among dozens of challenges to state same-sex marriage bans that cropped up and barreled through the judicial system after the U.S. Supreme Court struck down part of the federal Defense of Marriage Act in 2013.

The Texas case was among the last to be heard at the appellate level, and it was left pending before the U.S. 5th Circuit Court of Appeals at the time the Supreme Court ruled on the issue.

I wonder again, will the Fifth Circuit ever issue a ruling on that appeal, or will they simply point to SCOTUS and say “never mind”? What is the legal precedent for this? The good news is that Judge Orlando Garcia, who issued the original ruling knocking down Texas’ anti-gay marriage law, has officially lifted the stay on his ruling. There’s no legal force holding anyone back, just the obnoxiousness of some small-minded officials here.

June 26 was already a historic day for gay rights activists. On that same day in 2003, the Supreme Court struck down Texas’ sodomy ban, invalidating it and similar laws across the country. A decade later on the same day, the high court struck down key portions of the Defense of Marriage Act, ruling that same-sex couples were entitled to federal benefits if they lived in states that allow same-sex marriage.

On Friday, Mark Phariss, a plaintiff in the Texas case, expressed joy at the Supreme Court ruling. “After almost 18 years together, we can soon exchange vows, place rings on each other’s finger, look each other in the eye and say, ‘I do,'” Phariss said in a statement, “all at a wedding surrounded by family and friends.”

Yes, I had thought this would wait till Monday, since there are several other decisions yet to be released, and I fell for the argument that this decision would be released last. Apparently, June 26 really is a magical day. I couldn’t be happier about it.

Look, we know that the legal wrangling is far from over, and the reactions from those bitterly crying Republican officials confirms that they are not about to give up just yet. I nearly got whiplash following the story of whether or not Harris County Clerk Stan Stanart would issue same-sex marriage licenses, and he was far from the only one dragging his feet. I’ll write up what I can for the next post. This one is all about the big accomplishment. It’s a huge step forward, one many people can’t believe they lived to see. I can hardly believe it was less than ten years ago when Texas voted to add that hateful anti-gay-marriage amendment to its constitution. I sure didn’t believe this day would happen so quickly, if a decade can be considered “quick”. But here we are, and while there will be more obstacles going forward, there’s no going back. So celebrate, rejoice, get married if that’s been on your do list, and forget the haters for a day or two. They’ll be with us always, but this weekend will only happen once. Mazel tov and God bless, y’all.