Off the Kuff Rotating Header Image

Ken Paxton

The next bathroom bill

You can see it coming from here.

The Texas House LGBTQ Caucus is counting on Democrats flipping the Republican-held House to keep another possible ‘bathroom bill’ off the table during the 2021 legislative session.

Texas Republicans last week rallied around a child custody case of a Dallas 7-year-old whose mother says is transgender, pledging to intervene against children’s gender transition. Members of the caucus, who fought the controversial “Chick-fil-A bill”, said flipping the House will be key to winning the brewing battle over the care of transgender children.

“The only way we’re going to avoid that is by flipping the House,” Rep. Celia Israel, D-Austin, said at a caucus town hall at the University of Texas LBJ School of Public Affairs. “We are nine seats away from controlling the flow of legislation in the House so that we don’t feed that beast anymore.”

[…]

Rep. Julie Johnson, a freshman Dallas Democrat, said the government has no right to intervene in the “personal decision” for children to transition. The child lives in Johnson’s district.

She agreed that winning the House is the best strategy to combat bills such as the one promised by Rep. Matt Krause to ban puberty blockers for children to transition. Johnson noted that the Fort Worth Republican also authored the “Chick-fil-A bill” banning governments from taking “adverse action” against someone based on affiliation to a religious organization.

LGBTQ advocates say the law, which gained traction after San Antonio’s city council booted Chick-fil-A from its airport for its donations to Christian organizations that oppose expanding LGBTQ rights, gives a license to discriminate.

“He’s going to be filing those bills, so hopefully if Democrats are in charge those bills won’t get a hearing,” Johnson said.

See here for the background. I agree with Reps. Israel and Johnson, and I daresay Republicans also believe that whether a bill targeting trans kids gets a House hearing or not depends very much on which party has a majority. There’s not really anything else to say at this time, so let me encourage you to read this Twitter thread, and reflect on the fact that Greg Abbott et al would consider that man to be an abusive parent.

Last bail lawsuit hearing

At least I assume it’s the last one. I’ve been thinking this was all over but for the formality for months now, so what do I know?

Dianna Williams has witnessed the “collateral damage” of jailing on the fabric of a family. The 61-year-old criminal justice advocate told a federal judge Monday that for generations, her relatives lived paycheck to paycheck and could not afford cash bail when her father and then her brother and her son were held pretrial on low level drug charges.

Mary Nan Huffman offered an opposing take to the judge presiding over a deal upending Harris County money bail for low level offenses. She recounted how her friend was walking with her 3-month-old when a man in a red truck trailed her and later showed up in her yard, masturbating with a knife in his hand. Under the new bail deal, the man would never see a judge and no one would hear that he was a three-time felon who’d been to prison for rape, indecent exposure or kidnapping, said Huffman, a spokesperson for Houston Police Officers’ Union.

Ultimately, the sheriff who oversees the third largest jail in the country sought to assuage fears of constituents on both sides of this contentious issue, telling Chief U.S. District Judge Lee H. Rosenthal the consent decree approved last summer provides fundamental guarantees of justice enshrined in American law and warning against the inclination to let scary scenarios involving particular cases be the foundation of a bail system.

“I don’t think it’s effective for us to develop public policy on outliers,” Sheriff Ed Gonzalez said during the court gathering known as a fairness hearing. “We have to rely on research and facts.”

The hearing attended by six misdemeanor judges who support the historic settlement and three commissioners court members, two of whom oppose it, and about 100 stakeholders lasted three hours, with the judge saying she would consider the input and issue an order soon.

[…]

In a typical class action, a fairness hearing offers class members a chance to express concerns with a settlement. The hearing Monday was unique in that nearly all the speakers were not parties in the lawsuit.

Here’s a preview story of the hearing. I think we all know the basic outline at this point, so all I really care about is when we’ll get the final order from Judge Rosenthal. And then we can relitigate everything in the 2020 elections.

Abbott and Paxton threaten transgender child

I’m utterly speechless.

Top Texas Republicans have directed the state’s child welfare agency to investigate whether a mother who supports her 7-year-old child’s gender transition is committing “child abuse” — a move that has alarmed an already fearful community of parents of transgender children.

Gov. Greg Abbott declared via tweet Wednesday that two state agencies, the Department of Family and Protective Services and the Texas Attorney General’s Office, are looking into a dispute between divorced North Texas parents who disagree on whether their child should continue the process of transitioning from male to female, a path that could culminate, when the child is years older, in medical interventions.

In a letter Thursday to the state’s child welfare agency, First Assistant Attorney General Jeff Mateer declared that the child — who identifies as a girl, according to testimony from a counselor and pediatrician — is “in immediate and irrevocable danger.”

“We ask that you open an investigation into this matter as soon as possible and act pursuant to your emergency powers to protect the boy in question [from] permanent and potentially irreversible harm by his mother,” Mateer wrote, repeatedly referring to the 7-year-old as a boy. Mateer’s nomination to the federal bench was withdrawn in 2017 after revelations that he had called transgender children part of “Satan’s plan.”

A spokesman for DFPS said the agency’s “review of the allegations is already underway.”

The case’s path to public discourse began with the child’s father, Jeff Younger, whose blog has generated a maelstrom of right-wing outrage, including from U.S. Sen. Ted Cruz, R-Texas, who called the child “a pawn in a left-wing political agenda.” Younger, who also appeared at a rally at the Capitol this spring, does not agree with his ex-wife that his child is transgender. In blog posts, he has claimed his child could face “chemical castration.”

In reality, experts say, the transition process for prepubescent children does not involve medical intervention; instead, it consists of social affirmations like allowing children to wear the clothes they like, employ the names and pronouns they prefer, and paint their nails if they choose. During puberty, a transgender child might, with the consultation of a doctor, begin to take puberty blockers, reversible drugs that can stop puberty and the gender markers that come with it, like a deepening voice, the development of breasts or starting a period. Later on, experts say, transgender young adults might explore the option of surgery.

In a court ruling Thursday that granted the parents joint custody, Dallas Judge Kim Cooks noted that there was never a court order for the child to undergo medical treatment, according to The Dallas Morning News. Indeed, the mother, Anne Georgulas, had requested that Cooks require mutual consent before the child underwent any treatment, the Morning News reported.

So yes, this is Greg Abbott and Ken Paxton and Ted Cruz and the rest getting involved in a marital dispute. Am I the only one who remembers when Republicans claimed to be about getting government out of people’s lives? However true that may have been once, it sure isn’t the case now.

This is nothing short of an authoritarian move by Abbott. The governor appoints the head of the Department of Family and Protective Services. How much faith are you going to have in the outcome of that investigation? Or the investigation by the AG’s office, under Jeff “transgender people are satan’s spawn” Mateer, for that matter? Oh, and I haven’t even mentioned yet that they made the child’s name public, so everyone who agrees with them can force their own opinion on her as well. How lovely.

And all because they disagree with this child’s mother about what the child is allowed to wear, and they had the power to stick their noses in. They won’t stop this child from being transgender, any more than they could stop her from being left-handed or allergic to peanuts. They will cause a lot of damage trying, though. We cannot vote them out of office soon enough.

One thing our state loves spending money on

Defending unconstitutional anti-abortion laws in the courts.

As Texas defends abortion laws in federal court that mandate fetal burials and seek to outlaw certain medical procedures, the state has been ordered to pay pro-abortion attorneys $2.5 million — fortifying women’s reproductive rights groups that have repeatedly sued over restrictions passed by the state Legislature.

The August order from a federal judge in Austin is seemingly the final decision in a high-profile battle over a 2013 Texas abortion law the U.S. Supreme Court eventually struck down as medically unnecessary and thus unconstitutional. The law, which was in effect for three years, required abortion providers to comply with all the regulations for ambulatory surgical centers, forcing many to undergo expensive renovations, and required their physicians to obtain admitting privileges at a nearby hospital.

The judge’s order brings the state’s total cost for defending those now-defunct pieces of the law to an estimated $3.6 million.

“Passing regulations that are blatantly unconstitutional, and then wasting people’s resources to fight them, costs money and precious resources and time. And people are harmed in the process,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, an abortion provider and lead plaintiff in the case who notes that half of the state’s abortion clinics closed before the Supreme Court’s 2016 ruling. “That is a precious resource of Texans’ dollars being used toward that.”

Because the state lost the case, U.S. District Judge Lee Yeakel ruled it must pay the plaintiffs $2,297,860 attorney’s fees, $170,142 in nontaxable expenses and $95,873 in other costs. The amount represents nearly half of the $4.7 million in costs the plaintiffs say they incurred preparing and trying the case. The Texas attorney general’s office did not contest the judge’s ruling.

The award for the opposing attorneys is more than double the nearly $1.1 million the attorney general’s office reported spending on its own attorney’s salary, overhead, travel expenses and other costs associated with defending the law, according to open records obtained by the Texas Tribune in 2016.

Hardly the first time – that 2016 SCOTUS ruling cost the state even more – and until we get a different government, hardly the last time. The AG’s office declined to comment for the story, but we both know that Ken Paxton would gladly spend down the entire Rainy Day Fund in defense of these laws. It’s not really a cost, as far as they’re concerned. It’s an investment.

On a related note:

[Joe Pojman, executive director of the Texas Alliance for Life which advocates for stiffer abortion regulations,] said anti-abortion advocates need to think long-term if they want to overturn Roe v. Wade, which established legal precedent protecting a woman’s right to an abortion. The long-time activist said he is not confident the makeup of the U.S. Supreme Court is favorable to overturning Roe v. Wade — but it could be in a few years.

“We are telling our people that they need to stay focused on re-electing President Donald Trump because he has a track record of nominating justices who are possibly willing to take an honest look at Roe v. Wade,” said Pojman.

I’ve lost count of the number of times that people who voted for Ralph Nader in 2000 and people who voted for Jill Stein in 2016 have ridiculed the notion of judicial appointments as an electoral issue. Joe Pojman would like to thank them for their dedication to their principles.

Appealing the Crystal Mason illegal voting conviction

This continues to be an appalling travesty.

When Crystal Mason got out of federal prison, she said, she “got out running.”

By Nov. 8, 2016, when she’d been out for months but was still on supervised release, she was working full-time at Santander Bank in downtown Dallas and enrolled in night classes at Ogle Beauty School, trying, she said, to show her children that a “bump in the road doesn’t determine your future.”

On Election Day, there was yet another thing to do: After work, she drove through the rain to her polling place in the southern end of Tarrant County, expecting to vote for the first female president.

When she got there, she was surprised to learn that her name wasn’t on the roll. On the advice of a poll worker, she cast a provisional ballot instead. She didn’t make it to her night class.

A month later, she learned that her ballot had been rejected, and a few months after that, she was arrested. Because she was on supervised release, prosecutors argued, she had knowingly violated a law preventing felons from voting before completing their sentences. Mason insisted she had no idea officials considered her ineligible — and would never have risked her freedom if she had.

For “illegally voting,” she was sentenced to five years in prison. Now, as her lawyers attempt to persuade a Fort Worth appeals court to overturn that sentence, the question is whether she voted at all.

Created in 2002, provisional ballots were intended to serve as an electoral safe harbor, allowing a person to record her vote even amid questions about her eligibility. In 2016, more than 66,000 provisional ballots were cast in Texas, and the vast majority of those were rejected, most of them because they were cast by individuals who weren’t registered to vote, according to data compiled by the U.S. Election Assistance Commission. In Tarrant County, where Mason lives, nearly 4,500 provisional ballots were cast that year, and 3,990 were rejected — but she was the only one who faced criminal prosecution.

In fact, Mason’s lawyer told a three-judge panel in North Texas last Tuesday, hers is the first known instance of an individual facing criminal charges for casting a ballot that ultimately didn’t count.

Her case, now pending before an all-Republican appeals panel, is about not just her freedom, but about the role and risks of the provisional ballot itself.

Prosecutors insist that they are not criminalizing individuals who merely vote by mistake. Despite those assurances, voting rights advocates fear the case could foster enough doubt among low-information voters that they’ll be discouraged from heading to the polls — or even clear a path for prosecutors to criminally pursue other provisional ballot-casters.

“There are a lot of people who have questions about whether they can vote or where they can vote,” said Andre Segura, legal director of the American Civil Liberties Union of Texas. “You want all of those people to feel comfortable going in and submitting a provisional ballot.”

[…]

Tarrant County prosecutors have brushed off concerns the Mason case could lead to voter suppression. “The fact that this case is so unique should emphasize why this case should in no way have a ‘chilling effect’ on anyone except people who knowingly vote illegally,” Jordan said.

But during the 2019 legislative session, some Republican lawmakers pushed to erase Mason’s legal defense for future defendants by making it easier to prosecute people who cast ballots without realizing they’re ineligible.

Currently, to commit a crime, voters must know they are ineligible; under the proposed law, they would commit a crime just by voting while knowing about the circumstances that made them ineligible. In other words, Mason would have been illegally voting because she was aware of her past felony conviction — even if she was not aware her “supervised release” status made her ineligible.

The fact that Mason’s provisional ballot wasn’t actually counted would have also been ruled out as a legal defense under the proposed changes to state law. That legislation ultimately failed in the House amid major opposition from Democrats.

See here for some background. The appellate hearing was last week, and it drew national coverage. There are three legal justifications given by the ACLU on behalf of Crystal Mason why her attempt to vote was not illegal, but even if you think those arguments are insufficient, there’s still no possible justice in a five year prison sentence for this. I mean, there’s plenty of other crimes that are punished far, far less. This is about scaring certain people so they don’t feel confident about voting. This is why reversing the tide of voter suppression laws has to be a priority for the next Democratic Legislature. Further reading about the case from the ACLU is here and here, and the Observer has more.

Red flag

This seems like maybe it’s a problem.

A report out Wednesday by the San Antonio Express-News found that a gun owner in Texas had sent more than 100 pages of racist and violent letters to the Texas Attorney General’s office threatening to kill undocumented immigrants over the course of a year and a half, and that nothing was done to stop him or to communicate the threat to local authorities.

“We will open fire on these thugs,” the white man who allegedly sent the messages wrote in an email to the office. “It will be a bloodbath.”

Over the same period, local officers in San Antonio responded to 911 calls made by and about the man, and visited his house, on at least 35 occasions. However, because he had never seemingly committed a crime, police did not arrest him or take legal action. Nearby neighbors told the Express-News that the man’s home is covered in security cameras and that he often emerged holding a shotgun.

When alerted by a reporter at the Express-News of the threats made to the Attorney General’s Office, the police force did respond. “Since you’ve made us aware of those threats, our fusion center and our mental health unit have reached out to the AG’s office and are trying to work something to make a case against [the alleged suspect Ralph] Pulliam,” Sargent Michelle Ramos told the paper. “They’re going to investigate that.”

The threats and lack of communication by Republican Texas Attorney General Ken Paxton to local police takes on a new light in the wake of two mass shootings in Odessa and El Paso. The El Paso shooter had long written about his hatred for immigrants and his mother had reportedly called the police before the shooting because she did not think her son should own a gun.

“These messages are clearly threats of deadly force against San Antonians based solely on the color of their skin,” wrote State Representative Trey Martinez Fischer in a letter to Paxton. “It is deeply alarming to me that despite the large volume and explicit nature of the messages from Mr. Pulliam, the Office of Attorney General has taken so long to cooperate with local law enforcement.”

The story was published in the print edition of the Sunday Chronicle, but there’s no link for it yet on the Chron site and the E-N story is behind the paywall, so this is the best I can do. Do bear in mind that Ken Paxton has been actively encouraging people like this to report their complaints to his office, so it’s no wonder he’s being tight lipped about this. Dude’s one of his best customers. In the meantime, while we hope this guy doesn’t follow through on any of the many threats of violence he has made, let’s see if any of our Republican leaders, who have been trying to convince us that they might actually Do Something this time, will at least voice support for disarming this guy. I’m not going to hold my breath.

The Harris County bail lawsuit effect on Dallas County

The Trib looks to see if the recent Harris County bail lawsuit settlement might affect the bail lawsuit in Dallas County.

“Anytime one county settles, it could possibly provide a roadmap for another county, but I can’t say that it will,” said Dallas County District Attorney John Creuzot, whose county’s bail practices have also been slammed by a federal judge. “The landscape of this lawsuit is different.”

A big piece of that is because Dallas’ lawsuit, like another in Harris and one in Galveston, targets bail practices not only for misdemeanor defendants, but for felony cases, too.

[…]

“I’ve been studying very closely what’s happening in Harris County, and I think that it’s a step in the right direction and something that we should … modify or use as a blueprint for felony cases,” said State District Court Judge Brandon Birmingham, a Democrat and defendant in Dallas’ lawsuit. He was especially interested in the idea of an open-hours court.

Adding felonies to the lawsuit against bail practices in Dallas brought a new complication, however. The judges work for the state, not the county, and are being represented by the Texas attorney general’s office, which claims they have no jurisdiction over early bail decisions. County officials, who are largely Democratic, have said the attorney general’s office, run by Republican Ken Paxton, has stalled settlement talks and reform efforts.

“The fact that felony judges are part of the lawsuit complicates resolution,” said Dallas County Judge Clay Jenkins, a Democrat. “The AG office’s public positions on criminal justice reform and bail reform are not the same as the Commissioners Court or most of our elected judges.”

The attorney general’s office did not immediately respond to a request for comment.

In a court filing last month, Texas Solicitor General Kyle Hawkins wrote that the Dallas lawsuit goes too far by including felony judges. He said bail decisions are set by county judicial officers before felony judges assume jurisdiction over criminal matters.

“Despite tens of thousands of words spilled in this case so far, [the plaintiff] has yet to articulate just what she expects the felony judges to do, going forward, to remedy her alleged harm,” Hawkins wrote.

But things appear to be moving toward resolution. Two district judges, including Birmingham, recently began conducting their own bail hearings every morning and hired a lawyer to represent them instead of the attorney general. Jenkins and Creuzot confirmed that the parties are now headed to mediation to hopefully come up with a settlement proposal or consent decree.

See here for more on the second Harris County lawsuit, the one involving felony cases. It was filed in January and I haven’t seen any updates as yet, nor do I know if the AG’s office has gotten involved. Be that as it may, it seems to me that the underlying principle is the same, and should be viewed through a similar lens by the federal court. This time, Harris will follow behind Dallas, so we’ll see where they lead us.

Paxton wants to move his case back to Collin County

Of course they do.

Best mugshot ever

Paxton’s defense team has asked that the case be moved back to his hometown of Collin County, years after it was moved from there to Harris County. The case was moved hundreds of miles southeast after the prosecutors claimed that Paxton, a Republican who is well connected in that region and once represented it in the Texas Legislature, would not get a fair trial there.

But Paxton’s defense team argued this week that the judge who moved the case to Harris County two years ago didn’t have the authority to do so, as his term overseeing the case had elapsed.

[…]

That leaves [Judge Robert] Johnson, a Democratic judge overseeing the case, with several issues to mull before Paxton faces a jury. Johnson has not yet responded to either side’s motion.

On Monday, Paxton’s defense attorneys argued that if there is a hearing on the prosecutors’ fees, they should also be present — and asked that the judge rule on changing the venue before the pay issue.

The Team Paxton motions were in response to the prosecutors’ motion to confer with Judge Johnson – just them, Team Paxton is not invited – regarding their pay. I can understand that motion, but as the Observer notes, the argument to move the case back to Collin County is a rehash of the same arguments they made when the case was originally moved. That was seen at the time as a win for Paxton, since his team had moved to boot the original judge from the case. It seems unlikely to me that Judge Johnson will agree to just hand the case back to Collin County, but it’s a lead pipe cinch that Team Paxton will appeal that ruling and thus accomplish their main goal, which is delaying this trial from now until the heat death of the universe. Either way, they get something they want. The DMN has more.

We return once again to the Paxton prosecutor pay fight

This is an interesting argument.

Best mugshot ever

The prosecutors appointed years ago to take Texas Attorney General Ken Paxton to trial will continue to fight over their pay rate, lengthening a dispute that has already delayed the case for well over a year.

[…]

Prosecutors Brian Wice and Kent Schaffer had signaled they might withdraw from the case if they could not be paid. Instead, they are now asking a Harris County judge for a private, “ex parte” hearing over their fees — a meeting that would not include Paxton’s defense team. In a filing this week, they asked Judge Robert Johnson to “issue a new order for payment of fees.”

“The Attorneys Pro Tem’s payment is now an administrative matter for the trial court to decide,” an attorney for Wice and Schaffer wrote. “The Court of Criminal Appeals’ decision provides the court with the parameters necessary for the court to use its discretion in discharging its administrative duties.”

They added that “there is no authority suggesting that an adversarial hearing regarding the payment of fees … should be held” — arguing that Paxton’s defense lawyers should not be present for the hearing.

The judge has not yet responded to the request. A spokesman for Paxton did not return a request for comment.

See here for the last update. I’m glad they waited till after the legislative session to advance this argument, as I can easily imagine a hastily-written bill to cut this off at the knees getting rammed through. I’ve no idea if this brief, let alone the assertion that there doesn’t need to be a response from Team Paxton, has any merit or has ever been tried before. But it sure isn’t boring, and I can’t wait to see how Judge Johnson rules. The DMN has more.

The Fifth Circuit Obamacare hearing

Remember, the Fifth Circuit is where hope goes to die. Adjust your expectations accordingly.

It’s constitutional – deal with it

On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, a nominee of Donald Trump, and in the center sat Judge Jennifer Walker Elrod, the George W. Bush appointee expected to represent the critical swing vote on a three-judge panel now charged with deciding the constitutionality of the Affordable Care Act.

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the U.S. 5th Circuit Court of Appeals to strike down the sweeping health law known as “Obamacare,” a legal means to a political end that has eluded conservatives for the better part of a decade.

Texas won a major victory in its bid to end the law in December, when a federal district judge in North Texas sided with the state, declaring that the law is unconstitutional in its entirety after Congress in 2017 gutted one of its important provisions, a tax penalty for individuals who chose to remain uninsured. The U.S. Department of Justice, in a highly unusual move, has declined to defend the law.

A California-led coalition of blue states that has stepped in to oppose Texas in the lawsuit quibbles with that question of “severability,” arguing that even if one slice of the law must fall as unconstitutional, its other hundreds of provisions — including a host of popular patient protections — should stand. The question of how much of the law may rightly be salvaged was a focal point of court discussions on Tuesday.

Texas’ odds of total vindication remain in question after nearly two hours of questions before the three judges.

Most of the unusually-large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing — whether they have the right to participate in the lawsuit at all. And she seemed highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration.

Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.

The Senate, Engelhardt remarked, “is sort of the 800 lb. gorilla that’s not in the room.”

King, meanwhile, did not speak at all.

See here and here for the background. The legal basis of this lawsuit is so ridiculous that anything short of tossing it and its lawyers out of court is insufficient, but given where we are I could find a way to live with the idea of sending it back to the idiot district court judge for reconsideration. I fear we’ll get some kind of split-the-baby decision that strikes down parts of the law but leaves some crippled skeleton of it intact, which dumbass pundits will then call a “moderate compromise”, in the same way that the midpoint between “I murder you and burn down your house” and “I leave you alone” is a moderate compromise. Not much to do at this point but wait and work your ass off voting these morons out in 2020. NBC News, CNN, Daily Kos, Mother Jones, and Think Progress have more.

The lawsuit to kill Obamacare has its hearing at the Fifth Circuit today

Brace yourselves.

It’s constitutional – deal with it

Last year, after a federal judge in Texas declared the entirety of the Affordable Care Act unconstitutional, throwing into question millions of Americans’ health coverage, the state’s Republican leaders promised they would come up with a plan to replace it.

But on Tuesday, after a legislative session that seemed to have no room for issues other than property tax reform and school finance, Texas will ask a federal appeals court in New Orleans to end the law in its entirety — without offering a replacement plan.

The conservative crusade against portions of the act, known as Obamacare, has spanned a decade. But Texas’ latest lawsuit, filed in February 2018, became an existential threat to the law after U.S. District Judge Reed O’Connor ruled in December that it is unconstitutional in its entirety. At stake: the subsidized health coverage of roughly 1 million Texans, sweeping protections for patients with preexisting conditions, young adults staying on their parents’ insurance plans until age 26 and a host of low-cost benefits available to all people with health insurance, including those covered through their employers.

Texas already has the highest uninsured rate in the nation.

In a highly unusual — if not entirely surprising — move, the U.S. Department of Justice has declined to defend the federal law, leaving a California-led coalition of blue states to protect it. As the case proceeds, Obamacare has remained in place, and likely will until the litigation is finally resolved.

Attorneys for the state of Texas argue the health law cannot stand since the Republican-led Congress in 2017 zeroed out Obamacare’s individual mandate — a penalty imposed on people who chose to remain uninsured. Democrats had favored the penalty as a way to induce more people to purchase health insurance, with the goal of reaching near-universal coverage. Without it, Texas argues, the whole law must fall.

But the state’s Republican leaders have offered few ideas about what should replace Obamacare, a law that touches practically every aspect of health care regulations and includes several popular protections for patients. Gov. Greg Abbott — a vocal critic of the law — pledged in December that if the law remained struck down on appeal, “Texas will be ready with replacement health care insurance that includes coverage for pre-existing conditions.”

Since then, he’s been quiet on the issue, including during this year’s 140-day Texas legislative session. Abbott did not respond to questions for this story.

See here for the background. And of course Greg Abbott doesn’t have a single thing to say about reducing the extremely high uninsured rate in Texas. That’s because Abbott’s plan to reduce the uninsured in Texas, supported by Dan Patrick and Ken Paxton and the rest of the Republicans, is for more of them to die. Just as a reminder, Republicans have been in complete control of Texas government since 2003. Not once during that time have they taken any steps to improve access to health care in the state. Indeed, on multiple occasions, beginning in 2003 with the savage cuts to CHIP and continuing through their assault on women’s health via attacks on Planned Parenthood, they have time and time again make accessing health care harder. That’s what is at stake here. The only fix, regardless of the ruling in this case, is to vote them out. The WaPo, the Chron, and Think Progress have more.

Chip off the old block

Chip Roy, that is, the Ted Cruz minion in the House that no one said they needed.

Rep. Chip Roy

Freshman Rep. Chip Roy, who squeaked into office last year, has spent his first months in Congress establishing himself as a brash and unapologetic conservative — and someone who is utterly unconcerned about what his colleagues think of him.

The 46-year-old Texan was the lone Republican in May to block swift passage of a disaster-relief package for millions of Americans, including those in Texas. In recent weeks, he has spent several nights sitting in a mostly empty House chamber demanding roll-call votes on dozens of uncontroversial amendments in what he billed as an attempt to prod Congress into addressing the crisis at the Southern border.

The practical effect of Roy’s campaign was to delay the passage of a pair of Democratic spending bills, detain lawmakers of both parties on the House floor for several marathon voting sessions, and generate plaudits for himself in the conservative media as well as gripes on the House floor.

“This is an exercise in representative democracy designed to make lots of noise and not much else,” groused Rep. Frank D. Lucas (R-Okla.) amid a two-hour vote series.

[…]

Following veteran Rep. Lamar Smith’s retirement, Roy emerged from an 18-candidate GOP primary and narrowly beat Democrat Joseph Kopser in November’s midterm elections. He won with strong backing from political action committees affiliated with the Club for Growth and the House Freedom Caucus, a group that he has since joined and whose confrontational tactics he has fully embraced.

“He’s a sharp guy, and he’s not afraid to step forward and lead,” said Rep. Jim Jordan (R-Ohio), one of the group’s co-founders, who stood alongside Roy and other conservative hard-liners at a news conference pushing for action on the border.

But few Freedom Caucus members had as close a race as Roy, and Democrats have taken notice. The Democratic Congressional Campaign Committee has moved Roy’s seat up its target list, and a well-known Texas Democrat with proven fundraising potential — former state senator Wendy Davis — is mulling a 2020 challenge in a district that could be swinging away from Republicans.

“It’s a growing district with people who are not ideologically extreme, so it’s been a surprise that he’s taken some of the most right-wing positions in the Congress,” said Rep. Joaquin Castro (D-Tex.) who represents a neighboring San Antonio district.

I mean, the guy was a top henchman for both Ted Cruz and Ken Paxton, so I’m pretty sure he doesn’t much care about anything other than his own ideology. He’s gonna do what he’s gonna do, and it’s on the rest of us to take the scissors out of his hands. On that score, it’s been a bit more than three weeks now since Wendy Davis said she’s make a decision in about three weeks. Maybe we’ll hear something soon. In the meantime, I will remind you that there is a declared candidate in this race, Jennie Lou Leeder, who I can attest has been busy with the fundraising emails. We’ll know soon enough how successful she’s been at that. As long as we have someone who can give this guy a strong challenge, that’s all I ask.

Will Ken Paxton ever be prosecuted?

At this point, I’d have to say it’s very unlikely.

Best mugshot ever

After mulling the question for nearly six months, the nine Republican judges on Texas’ highest criminal court will not reconsider their 2018 ruling that threatens to imperil the criminal case against Texas Attorney General Ken Paxton.

In November, a fractured Texas Court of Criminal Appeals ruled that a six-figure payment to the special prosecutors appointed to take Paxton to trial for felony securities fraud fell outside legal limits for what such attorneys may be paid. A month later, the attorneys asked the high court to reconsider that decision in a spirited legal filing that went unanswered until this week.

The court did not provide any reason for rejecting the motion, nor did any judges write dissenting opinions. Few expected that the high court would reconsider its own ruling.

Payments for special prosecutors are based on strict fee schedules, but judges are permitted to approve payments outside those strictures in unusual circumstances, as a North Texas GOP judge did for the prosecutors in the Paxton case. But after Jeff Blackard, a Paxton donor, sued in December 2015, claiming that the fees were exorbitant, the Dallas Court of Appeals voided the prosecutors’ invoice and the payment has been in question. Meanwhile, the trial itself has been derailed again and again.

Wednesday’s ruling threatens the long-delayed prosecution of Texas’ top lawyer, as the prosecutors —unpaid in years — have signaled they may withdraw from the case if they cannot be paid. The prosecutors have also argued that the pay ruling, in limiting how much attorneys may be paid even in cases of extraordinary circumstances, threatens the state’s ability to adequately compensate lawyers representing indigent defendants.

See here, here, and here for the latest updates, and here for even more, if you want to do a deeper dive. We should all have friends as steadfast as Ken Paxton has in Collin County, both on their Commissioners Court and in the person of Jeff Blackard. Friends help you move, real friends help you game the criminal justice system to effectively quash felony indictments.

At this point, either the existing prosecutors decide to stick it out and maybe extract a bit of revenge via jury verdict, or they throw in the towel and the whole thing starts over with new prosecutors. Which in turn would open a whole ‘nother can of worms, thanks to the Lege.

Under Senate Bill 341, which moved quietly and without controversy through the Texas Legislature, only county attorneys, district attorneys and assistant attorneys general would be qualified to serve in the high-stakes, often high-profile affairs that require specially appointed prosecutors. Currently, judges may appoint “any competent attorney,” which some have argued is an insufficient standard.

The author of that bill, Houston Republican Sen. Joan Huffman, has presented it as a cost-saving effort for counties — special prosecutors will now be government attorneys who would not require additional funds — and also as a way to raise the bar of qualifications for special prosecutors.

That would limit the selection pool from the more than 100,000 practicing attorneys in Texas to a much smaller group of several hundred elected prosecutors or attorneys employed by the agency Paxton runs. The replacement for Wice and Schaffer would have to be either a Democratic district attorney, who might be seen as overly aggressive in her prosecution of a Republican statewide official; a Republican district attorney, who could be seen as overly sympathetic to a leader of his own party; or an assistant attorney general, who would be an employee of the defendant.

That law goes into effect September 1. This law does make some sense, and if the Paxton prosecution had been handed off to a DA or County Attorney there would not have been an issue with payment. I for one would argue that this case should absolutely be turned over to a big urban county DA’s office – Harris, Dallas, Bexar, or (oh, the delicious irony) Travis – since an aggressive prosecution is exactly what is needed, and the DAs in those counties will have less to fear from the voters than, say, the Denton or Tarrant or Montgomery County DAs would. I will be very interested to see what the presiding judge decides to do, if it comes to that. In the meantime, we need the voters of Collin County to start voting out members of their Commissioners Court, and the voters of Texas to start electing better jurists to the CCA. You want a lower-level cause to get behind in 2020, there’s two of them for you.

It’s not an apology that’s needed

This may make for good rhetoric, but it’s not what the goal should be.

Still the only voter ID anyone should need

Congressmen Joaquin Castro and Lloyd Doggett on Friday demanded Gov. Greg Abbott apologize to Texas voters for attempting to purge as many as 95,000 people from Texas voter rolls and said Congress should sue for state records that could show how the plan unfolded if state officials continue to stonewall.

The Texas Democrats said Congress should use every tool at its disposal to investigate the purge they said would have suppressed Latino voter turnout in hopes it will prevent a repeat before the 2020 elections.

“I want them to really put the screws on the governor’s office that it looks like has coordinated an attack on our democracy,” said Castro of San Antonio. “It’s important that we make sure this doesn’t happen again, because if they feel like they got away or they got away with it, then I think they’ll do it again.”

[…]

Castro said he expects the congressional committee to request documents from Texas state lawmakers who may have received some relevant records and signed non-disclosure agreements. After exhausting those and other options, he said he would urge the committee to take Texas to court for records.

“If they have nothing to hide, why wouldn’t they turn those documents over? If we don’t get it, then we should sue,” Castro said.

Doggett, whose district stretches from San Antonio to Austin, said “no tools will be off the table. We’re going to take whatever steps are necessary.”

[…]

Agencies have largely declined to release internal communications that could show how the attempted voter purge was conceived or how the error-ridden list of suspected non-citizens was vetted before its release. In declining to release its own emails, the governor’s office has cited broad exemptions, including attorney client privilege and deliberative process.

Joe Larsen, a first amendment attorney with Houston-based Gregor Cassidy, PLLC, said the governor’s office should have to provide those answers.

“There’s a vital public interest in the disclosure of this information,” he said.

The state also has not released the list of more than 95,000 registered voters that were flagged as potential non-citizens.

That’s a departure from 2012, when the state made public the records used to create an erroneous list of dead people it tried to purge from the voter rolls. Then, the Houston Chronicle found the state had mistakenly matched living voters with deceased strangers from across the country.

See here for some background. I’m mostly interested in the “urge the committee to take Texas to court for records”, because I think the only way to get these records is going to be via court order. There’s just no way Abbott et al will give them up voluntarily. They don’t think they need to, and they don’t see themselves as being answerable to Democratic politicians. Taking this to the courts, and voting these unaccountable princelings out of office at the next opportunity are the answers.

Paxton still holding on to bogus voter purge data

It’s all about secrecy. He doesn’t want you to know what he’s up to.

Best mugshot ever

More than a month after a legal settlement was reached to scrap the review, Paxton’s office has indicated it is keeping open the criminal investigation file it initiated based on the secretary of state’s referral. That’s even after the list was discredited when state officials realized they had mistakenly included 25,000 people who were naturalized citizens and admitted that many more could have been caught up in the review.

Paxton’s office made that indication in a letter this week denying The Texas Tribune’s request for a copy of the list of flagged voters.

The Tribune originally requested the list soon after Whitley announced the review. But the attorney general — whose office also serves as the arbiter of disputes over public records — decided that the list could remain secret under an exemption to Texas public information law that allows a state agency to withhold records if releasing them “would interfere with the detection, investigation, or prosecution of crime.” The office separately confirmed that it had opened a “law enforcement investigation file.”

Following the settlement in late April — and after the secretary of state’s office rescinded the advisory that launched the review — the Tribune re-upped its request with both the secretary of state and the attorney general’s office. But the secretary of state’s office in late May and the attorney general’s office this week asserted they would still withhold the list based on the law enforcement exemption.

“As the law, facts, and circumstances on which that ruling was based have not changed, we will continue to rely on that ruling and withhold the information at issue,” Lauren Downey, an assistant attorney general, told the Tribune in an email.

[…]

“It’s very troubling that the attorney general would base an investigation on a debunked list that we know contains tens of thousands of naturalized citizens,” said Nina Perales, vice president of litigation of the Mexican American Legal Defense Fund, which sued the state on behalf of several naturalized citizens. “If the only basis of the investigation is that voters are naturalized U.S. citizens, then that’s discriminatory and unconstitutional.”

See here for the background. Lord only knows what there might be to investigate, since the list in question was based on useless data, but that sort of trivia doesn’t stop Ken Paxton. Is there some kind of legal action people could take to force Paxton to fish or cut bait? If there is, I hope they pursue it. If not, I guess we just have to wait.

Paxton sues San Antonio over Chick-fil-A records

We really do live in strange times.

Best mugshot ever

It’s a red-meat issue, but it feeds on chicken.

San Antonio’s decision to exclude Chick-fil-A from its airport continues to resound in political circles. Legislators passed a religious freedom bill that gained steam after it was rebranded as the ‘Save Chick-fil-A bill.’ Gov. Greg Abbott beamed over its success on Twitter.

And Attorney General Ken Paxton, declining to wait for his own department to rule on a public records request, on Monday filed suit against the city to force it to hand over records he wants for his office’s investigation.

[…]

According to the suit filed in Travis County district court on Monday, Paxton’s office requested records on April 11 — including calendars, communications and records of meetings among City Council members, city employees and third parties — related to the city’s decision to remove the restaurant from its airport concessions contract. Paxton’s suit seeks to compel the city to release the records.

“The City of San Antonio claims that it can hide documents because it anticipates being sued,” Paxton said in a statement. “But we’ve simply opened an investigation using the Public Information Act. If a mere investigation is enough to excuse the City of San Antonio from its obligation to be transparent with the people of Texas, then the Public Information Act is a dead letter.”

Nirenberg said in a statement Monday that the city had asked Paxton for clarification on the request but never received a response.

“The fact that he went straight to filing a lawsuit instead of simply answering our questions proves this is all staged political theater,” Nirenberg said.

The deputy city attorney, Edward Guzman, responded to Paxton’s request April 24 saying the city was seeking to withhold some records based on 63 exceptions to the state’s public information act, according to the suit. In a May 2 letter, the city also argued the information is exempt because of litigation that was likely to come from Paxton.

State law exempts the release of information related to “pending or reasonably anticipated” litigation.

San Antonio City Attorney Andy Segovia said in a statement Monday that the city provided nearly 250 pages of documents for review by the Attorney General’s Open Records Division and is still waiting for a decision.

Segovia said the city will comply with any Open Records Division ruling. He also shed doubt on the motivation behind Paxton’s investigation.

“The State Attorney General’s office has not specified the legislative authority they are relying on to investigate the airport contract,” Segovia said. “Furthermore, it is clear from the strident comments in his press release that any ‘investigation’ would be a pretense to justify his own conclusions.”

See here, here, and here for some background. Any resemblance of the arguments in this case to those in the dispute between Paxton’s office and the House Oversight Committee are, I’m sure, totally coincidental. Whatever else happens in this ridiculous case, the Chick-fil-A follies have provided the wingnuts with the grievance they needed to get their “religious liberties” bill through the Lege, so in that sense Paxton et al have already won. The Rivard Report has more.

“Laggards”

You can do something about that, you know.

Best mugshot ever

The Maryland congressman leading an investigation into the error-filled effort to purge suspected noncitizens from Texas voter rolls referred to Texas officials as “laggards” who are taking a “minimalist approach” to satisfying demands on Capitol Hill for emails that could show the origin and motivation for the program.

Jamie Raskin, a Democrat who chairs the Oversight Subcommittee on Civil Rights and Civil Liberties, says his panel will continue to aggressively press Texas for documents despite the resignation last week of Secretary of State David Whitley after scrutiny of the botched effort. Whitley’s five-month tenure in the job ended after state Senate Democrats blocked his appointment.

Raskin said that Georgia, another state under investigation, has sent hundreds of thousands of pages of materials to Washington. But Texas, he said, is cooperating “minimally” and treating the congressional demand as “some kind of unlawful imposition.”

“We’re going to continue to press for meaningful disclosure,” he said. “The sudden departure of the Texas secretary of state only makes us that much more determined to get all the information we sought.”

[…]

A spokesman for the Texas secretary of state’s office said 3,600 pages have been turned over to the panel. In a letter to Raskin and Cummings on May 29, Adam Bitter, the office general counsel, wrote that barring a ruling from Paxton “we do not anticipate producing additional documents in response to your request.”

Raskin observed that his panel has subpoena power, albeit not yet invoked. The back-and-forth suggests an impasse that could wind up in the courts – a likely destination of other disputes simmering at present between Congress and the White House.

See here, here, and here for the background. I mean, this is one of those times where I do believe what Paxton’s office has to say. The only way the committee, and by extension the public, is going to get any more information out of them is by forcing them to cough it up. That starts with a subpoena, and ends with a court order. Seems to me there’s no reason not to get that process started now.

Will the next SOS be any better than David Whitley?

Anything is possible, but don’t count on it.

Still the only voter ID anyone should need

Voting rights advocates are celebrating Whitley’s forced departure, but said they have no illusions that his successor will be any more committed to upholding voting rights for all Texans.

“There is certainly every reason to believe that these types of voter suppression tactics will continue with the next nominee,” Anthony Gutierrez, executive director of the government watchdog group Common Cause Texas, told ThinkProgress.

Glen Maxey, legislative affairs director for the Texas Democratic Party, told ThinkProgress that Whitley had promised Democratic and Republican officials shortly after assuming office in January that he would run a fair election system.

Within weeks, however, Whitley drew up a list of nearly 100,000 people he wrongfully identified as non-citizens, saying they had to be deleted from voter rolls. Most, as it turns out, actually were U.S. citizens, and a federal judge blocked his plan to expunge the names.

Abbott — who himself has a long history of pushing voter suppression efforts — will now get to pick someone to replace Whitley as the state’s chief election official, a critically important position looking ahead to 2020.

Gutierrez said he was not overly optimistic that a change in personnel will lead to the end of Republican voter suppression efforts.

“Texas has a long history of using systemic obstacles to limit participation,” Gutierrez said. “I have no question that we’ll keep seeing a variety of voter suppression tactics until we have a greater number of legislators and statewide elected officials who want to see more Texans voting and participating in our democracy.”

[…]

Maxey said he believes the massive voter purge attempted by Whitley was probably the brainchild of Gov. Abbott or Attorney General Ken Paxton, and suspects that Whitley simply was carrying out orders.

“He did not come up with this plan on his own. He wasn’t even in office long enough to come up with it,” he said. “Either he was boldface lying to us or it was something that happened that was cast with his signature or his name attached.”

I think that’s probably right. At the very least, I think if Whitley had done all this on his own, and screwed it up in such spectacular fashion, he wouldn’t have Abbott and all the rest of the DPS-blaming enablers backing him. Ken Paxton surely had a hand in it as well. The best case scenario here is Abbott appoints someone competent and conscientious who actually does care about the integrity of the data, which leads them to stay away from hair-brained schemes to “cleanse” the voter rolls via noisy data and weak matches. The worst case scenario is that Abbott appoints someone who is competent at carrying out such a scheme. Either way, we can’t afford to ease up on vigilance.

On a related note, the Trib has a deep dive into how things went down in the Senate in the latter days as Abbott tried to get Whitley confirmed.

The pressure on the Democrats intensified as the legislative session pressed on. Some senators had received calls from business associates, clients and donors, who had apparently been nudged by the governor’s office to encourage them to back Whitley, and they were facing veto threats, said Sen. Borris Miles, a Houston Democrat who did not receive such overtures but said he heard from his colleagues about them.

But with the i’s dotted and the t’s soon to be crossed on Abbott’s top legislative priorities, his office made a final, last-minute push to sway Senate Democrats in the final days of the legislative session, multiple sources said.

And some Democrats whom Abbott hoped to turn were brought in individually. State Sen. Judith Zaffirini, D-Laredo, was called to Abbott’s office on Saturday, where the governor asked her, in a one-on-one meeting, to support his nominee.

“He said he would like for me to vote for David, and I said that I couldn’t — I wished I could, but I couldn’t,” Zaffirini said in an interview this week. “I like David … and he’s a good person. But he made a terrible mistake.”

On Monday, two of her bills were vetoed — one to increase transparency at the State Commission on Judicial Conduct and one to allow for specialized courts for guardianship cases. Both had passed both chambers with near-unanimous support and were championed by Republican sponsors in the House.

“I was surprised to see them vetoed, and I was surprised to see the veto so early,” Zaffirini said, and she “disagreed” with the reasoning Abbott gave.

[…]

Miles, who said he wasn’t facing threats of vetoes, said tit-for-tat menacing would seem out of character for Abbott — a governor the Democrats say is generally professional. But he confirmed that some of his colleagues had clearly been targeted with pressure.

“Yes, there were runs at individual members, and we had to secure them and let them know this was not something we could go on without,” Miles said. “There were some threats of vetoing bills.”

On Sunday evening, the day before the Legislature had to gavel out, [Sen. Jose] Rodríguez said the Senate GOP Caucus Chair, Paul Bettencourt, came by to test the waters.

“At one point, he came over and said, ‘Would y’all be okay with the lieutenant governor calling up Whitley to take an up and down vote? He doesn’t want any questions or speeches. We know you have him blocked, but the governor wants a vote on it,’” Rodríguez recalled.

Rodríguez told Bettencourt that if a vote were called, he and other Democrats were prepared with “pages and pages” of questions, enough to delay for hours — effectively killing the bills still sitting vulnerable on the calendar on the last day the Senate could approve legislation.

Ultimately, no vote was called.

It’s worth reading. I know Abbott really likes Whitley and all, but I continue to be amazed that no one ever thought to advise him to take responsibility, admit his errors, apologize, and promise to do better. Did they not think it was necessary, did they think that some combination of sweet talk and veto threats would be enough, did they have some other strategy in mind? I wish I knew.

One simple thing the Republicans could do to maybe get David Whitley confirmed

This is a long story about how Democratic Senators are being very careful to either be in attendance at all times or get a commitment that there won’t be a vote on Secretary of State David Whitley in the event they have to be absent. This is because it takes a two-thirds vote of the Senators who are present for him to be confirmed. With a 19-12 split in the Senate and all Dems committed to opposing Whitley, one Dem could be missing and preserve the margin, but if two are out then the Republicans could bring it up and push it through. Dems have not given them that opportunity, and want to keep it that way in the waning days.

Which got me to thinking there might be a shananigan-free way to resolve this that doesn’t put Dems like Sen. Menendez (who will miss his son’s fifth-grade graduation to maintain numbers) in a spot. I for one would be willing to let Dems vote for David Whitley if Ken Paxton fully cooperates with the House Oversight Committee, and turns over every document they ask for in a timely fashion. Paxton of course should do this without needing to be coerced, but that’s politics. Anyway, it’s a simple enough deal. We’ll give you Whitley, you give Elijah Cummings and Jamie Raskin the docs they seek. Your move, guys.

(Note: I am in no way authorized to speak for any Democratic Senator, nor do I intend to. Other people may well think this proposal is hot garbage. I’m just saying that we want things and they want things, and this is one possible way for both of us to get those things. Your mileage may vary.)

Anti-Israel boycott law amended

For whatever this is worth.

Gov. Greg Abbott this week signed a bill into law that limits the scope of a controversial anti-Israel boycott law, just weeks after a federal judge temporarily blocked its enforcement in an ongoing First Amendment lawsuit.

The 2017 law — which seeks to combat the Boycotts, Divestments and Sanctions movement, an international protest over Israel’s treatment of Palestinians — prohibits state agencies from investing in and contracting with companies that boycott Israel. It also requires anyone contracting with the state to pledge in writing that it will not boycott Israel.

The changes Abbott signed into law Tuesday make it only applicable to contracts of at least $100,000 with companies with 10 or more full-time employees. Legislators who support the law have said they never intended for it to impact individuals or small businesses.

Texas Attorney General Ken Paxton, who had appealed the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit, did not waste time in filing a motion to dismiss the federal lawsuit brought by several Texas contractors who claimed it violated their right to free speech.

In the motion filed Wednesday, Paxton argued that “this legislative enactment is exactly the kind of development that the Fifth Circuit has recognized will render a case moot.”

ACLU of Texas spokeswoman Imelda Mejia said the agency, which is representing some of the plaintiffs in the suit, said the agency is “analyzing the new law and its possible implications on our case.”

[…]

Federal judges have struck down laws in Arizona and Kansas and upheld one in Arkansas; all are on appeal but the Kansas law.

There, after the Kansas Legislature made nearly identical changes to those signed by Abbott on Tuesday, the American Civil Liberties Union, lacking an affected plaintiff, agreed to dismiss its lawsuit.

See here for the background. Given that the lawsuit in question involved an individual who would no longer be affected by the law, it probably is the case that a motion to dismiss would succeed. That said – and here I put on my I Am Not A Lawyer hat – I don’t think the change to the law fixes the underlying constitutional problem. We’ll see if the court agrees.

Paxton again refuses to comply with House Oversight Committee

It’s like he has no interest in oversight, or something.

Best mugshot ever

Texas Attorney General Ken Paxton’s office this week again denied a request for a records by a U.S. House panel seeking to investigate the state’s botched voter purge program.

[…]

While the Attorney General’s office has refused to release documents, Secretary of State David Whitley’s office said Tuesday it has released more than 1,000 pages of documents in response to the request and plans to produce more by the end of the week now that the federal lawsuit has been settled.

Whitley’s office continues to withhold other documents it says are exempt from disclosure because of attorney-client privilege.

First Assistant Attorney General Jeff Mateer in a letter Monday reiterated his claim that the House committee lacks the authority to force the secretary of state to produce documents.

Rep. Jamie Raskin, D-Md., chairman of the Oversight Subcommittee on Civil Rights and Civil Liberties, has rejected that claim but last month stopped short of threatening a subpoena if the Texas officials don’t hand over the documents requested — including emails with Gov. Greg Abbott and Trump administration officials about the attempted voter purge.

In the letter Monday, Mateer said the ability of Congress to pass laws to protect voter rights does not “override the inherent and reserved power” of the state to maintain its own voter rolls.

“Granting Congress the power to exercise ‘oversight’ over the constitutional officers of a state engaged in the lawful exercise of that state’s core authority would undermine the fabric of our system of dual sovereignty,” Mateer wrote. “In this case, that risk would be made particularly acute by the committee’s attempt to force the constitutionally-designated attorney for the State of Texas to divulge privileged and confidential communications with a client concerning the client’s enforcement of Texas law.”

Mateer added that the committee lacked a “valid legislative purpose” for the investigation, which the committee has disputed.

See here and here for the background. Note the similarity in the responses by Jeff Mateer and Donald Trump’s attorneys. It’s not an accident or a coincidence. I say it’s time to break out the subpoenas, and to go to court as needed to enforce them. If this is how they want to play this, then let’s quit fooling around and cut to the chase.

Undead “religious liberty” bill passes Senate

Ladies and gentlemen, I give you Scott Braddock:

Here’s the story.

Over the fierce opposition of Democrats, the Texas Senate on Wednesday advanced a significantly watered-down version of a religious liberty bill whose original form some LGBTQ advocates labeled the most discriminatory piece of legislation filed this session.

The bill requires one more vote from the Senate before it can return to the Texas House, whose LGBTQ Caucus killed a nearly-identical proposal on a procedural motion last week. But the House is likely to advance the measure if given a second pass, at least according to the lower chamber’s leadership.

As filed, Sen. Bryan Hughes’ Senate Bill 1978 contained sweeping religious refusals language that brought LGBTQ rights advocates out against it in force. Proponents, for their part, have labeled the Mineola Republican’s proposal the “Save Chick-fil-A Bill,” in reference to a provision that would empower the Texas attorney general to sue San Antonio for excluding the Christian-owned chicken franchise from its airport.

Senate Democrats used every means they had — long lines of questioning, a slew of proposed amendments and a procedural point of order — to fight the bill, or at least tweak it as it was debated. But ultimately, after three hours of discussion, the measure passed on a 19-12 vote, with Brownsville Democrat Eddie Lucio Jr. voting for it and Amarillo Republican Kel Seliger voting against it.

Still, the messy floor fight many advocates feared would load up the bill with discriminatory amendments did not materialize.

The original version of Hughes’ proposal prevented government retaliation against an individual based on that “person’s belief or action in accordance with the person’s sincerely held religious belief or moral conviction, including beliefs or convictions regarding marriage” — language advocates feared would embolden businesses to discriminate against gay Texans. The revision, which Hughes made on the floor, outlaws government retaliation against someone based on their association with or support of a religious organization. That revised language is largely duplicative of existing protections for freedom of religion and freedom of association.

But advocates — pointing to the bill’s origins, and to its roots as model legislation from anti-gay efforts across the nation — adamantly opposed the bill, lobbying lawmakers to do so as well. Samantha Smoot, interim director of the advocacy group Equality Texas, said this week the measure is “part of an insidious, coordinated strategy to advance anti-LGBTQ messages and discriminatory public policies.”

[…]

As senators slogged through the debate, one recurring theme from Democratic opposition was: Why spend time on a controversial measure when there are so many other priorities to complete? And, some added, if the bill is largely just a codification of existing protections, why bring it forward at all?

“Can you identify the shortcomings of the Constitution in protecting religious freedom?” asked Sen. Carol Alvarado, D-Houston.

“This is covered under the First Amendment, so I’m not sure what your angle is,” she added, after reading from it.

Responding to such questions, Hughes called the measure an important “vehicle for protecting those First Amendment rights.”

That vehicle could come in the form of a lawsuit from the Texas attorney general, who under Hughes’ legislation would be empowered to sue governmental entities accused of discriminating based on religious affiliations. One likely candidate for such a lawsuit is the fast food franchise Chick-fil-A, which was recently blocked from opening a restaurant in the San Antonio Airport after a member of the city council said he could not support a company with “a legacy of anti-LGBTQ behavior.”

See here for the background. Lord knows, if there’s one thing we need, it’s an excuse for Ken Paxton to launch another religion-fueled legal crusade. The main thing to keep an eye on here is the clock, as time is running down for this to be approved by the House. Call your State Rep and urge them to oppose SB1978. Every little bit will help.

(Also, too: How long has it been since I’ve wondered when the hell we’ll finally rid ourselves of Sen. Eddie Lucio? Because holy cow, he sucks.)

The SOS voter purge may be over, but Ken Paxton is unaccounted for

Keep an eye on this.

Best mugshot ever

After the judge approved the settlement, the original list of voters was scrapped. Under the agreement, Texas officials now will only flag names of people who have said they’re not citizens after they have registered to vote.

[Joaquin Gonzalez, a voting rights attorney with the Texas Civil Rights Project,] said the settlement requires that he and the other plaintiffs be able to oversee how the state carries out this more limited voter investigation.

“We get numbers of people that have been matched, so that we can tell if there is something that appears to be going wrong in the process,” he said.

[…]

But there’s one issue that wasn’t dealt with: Attorney General Ken Paxton’s plans.

When the original voter removal effort was announced, Paxton – the state’s top prosecutor – said he would “spare no effort in assisting” with those cases.

Because of that, plaintiffs named him in their lawsuits. A federal judge removed him, however, because he doesn’t have the power to actually cancel voter registrations.

Perales said it’s unclear what Paxton will do following the settlement.

“Ken Paxton has said contradictory things about this voter purge that came out of the Texas Secretary of State’s office,” she said.

For example, when lawmakers raised questions about the state’s effort earlier this year, Paxton said he didn’t have the time or resources to go through the list and investigate people.

“At the same time, Ken Paxton’s office has claimed that they are still investigating – or doing some kind of investigation – of registered voters who may be non-U.S. citizens,” Perales said.

Paxton’s Office also has been shielding documents related to the voter-removal effort from public view.

In a letter to media organizations and others, the open records division of his office has said, “the information at issue relates to an open criminal investigation conducted by the [Office of the Attorney General’s] Election Fraud Section of the Criminal Prosecutions Division. Further, the OAG states release of the information at issue would interfere with the pending investigation.”

See here for the background. I was wondering about this myself when the settlement terms were announced. It goes without saying that Ken Paxton cannot be trusted. If he has the opportunity to press forward with any of these cases, on whatever grounds, he will. I strongly suspect that all of the attorneys for the plaintiffs will need to keep their evidence files close at hand, ready to whip out for a new motion when and if Paxton strikes. Do not let him try to make wine from the fruit of the poisoned tree.

On a side note, this story also addresses the question of why the state settled instead of appealing, as they usually do:

Gonzalez said he thinks state officials did that partly because the legal challenge was looming over Whitley’s confirmation as secretary of state. He had only recently been appointed when he announced the voter list. Gonzalez said state officials backed off when Senate Democrats vowed to block his confirmation.

“Their opposition to the nomination, we believe, is [part of what] provided the leverage for the state to be willing to settle this in the first case, because the state doesn’t settle voting rights cases like this,” he said.

Maybe. Doesn’t seem to have helped, but I can see the logic. I still feel like there was more to it than this, but I can believe this was a factor.

House passes bill to legalize fantasy sports

Hey, what do you know?

The Texas House gave an initial stamp of approval Wednesday to a bill that would classify fantasy sports as games of skill, not of chance, that are therefore legal.

House Bill 2303 by state Rep. Joe Moody, D-El Paso, passed the chamber on a 116-27 vote. It still needs another vote from the House before it can be sent to the Senate for consideration. (Update, May 2: The House voted to give the measure final approval.)

Fantasy sports allows fans to draft real players from various sporting leagues to create a fictional team. The players’ real-time statistics are then compiled, and the team with the highest overall ranking wins. Fans can track their teams through websites or apps.

While critics say fantasy sports sites are hubs for illegal online gambling, others contend the games are based on skill and are therefore legitimate. Lawmakers have filed similar measures in the past, but to no avail.

Attorney General Ken Paxton issued a nonbinding opinion in January 2016 equating fantasy sports sites to online gambling, which is illegal.

“House Bill 2303 simply seeks to clarify state law and confirm that skill-based fantasy sports are legal and therefore not an act of gambling,” Moody said. “It’s very similar to what 19 other states in the country have done in recent years, and the United States Congress made this change in 2006.”

See here for the background. I hadn’t heard anything about this effort before this story was published, so it kind of came out of nowhere for me. Tiem is running down for bills to be heard in the Senate, and I have no idea where this is on the priority list. The odds always favor bills not getting passed. I’ll keep an eye on it.

A closer look at how Texas strongly discourages voting

Well, it strongly discourages some people from voting.

Still the only voter ID anyone should need

Julieta Garibay, a native of Mexico City, was brought to Texas by her mother when she was 12. For 26 years, she was told to assimilate and stay quiet so people wouldn’t hear her accent. Last April, she became a citizen and registered to vote.

In January the state flagged her as one of the 95,000 suspected non-citizens registered to vote, on a list that the state’s chief law enforcement officer, Republican Ken Paxton, trumpeted on social media in all caps as a “VOTER FRAUD ALERT.” It took less than a day for local election officials to find glaring errors on the list, noting many people, including Garibay, were naturalized U.S. citizens and were wrongfully included on it.

“They were trying to say a bunch of U.S. citizens had actually committed fraud,” said Garibay, Texas director and co-founder of United We Dream, an Austin-based immigrant rights group. She is also the lead plaintiff in a lawsuit filed by the Mexican American Legal Defense Fund against the state over the list she says illegally targeted herself and other citizens who are foreign born.

“That’s one of the new tactics that they’re using. How do you put fear into people to believe that there is voter fraud happening in Texas and in many other states? How do you make sure you keep them quiet?” she said.

Garibay was one of the speakers at The Summit on Race in America, a three-day symposium hosted by the LBJ Foundation in Austin featuring civil rights icons, leaders, activists, musicians and comedians examining the progress and failures of the past half-century. Among the biggest challenges discussed were state-led efforts to chip away at the Voting Rights Act of 1965 signed by President Lyndon B. Johnson.

The Texas Legislature now is considering a bill that would punish those who vote illegally with up to two years in jail. Even if the illegal vote was a mistake — for example, a felon who didn’t know he was ineligible to vote until his probation ended — the penalty would be the same as for felony charges such as driving drunk with a child in the car or stealing up to $20,000. It wouldn’t matter if the ballot was never counted.

“We don’t really understand the argument about the chilling effect that would have,” said Sen. Bryan Hughes, R-Mineola, who is sponsoring the bill. “We’re trying to thread the needle to make sure folks aren’t cheating while we try to protect the right of every eligible voter.”

The main intention of that bogus SOS advisory was to kick people off the voter rolls, without any real concern about accuracy. That much is clear from everything we have learned about how it proceeded. But that wasn’t the only goal. Threatening prosecutions of people who voted in good faith is all about sending a message to low-propensity voters, the kind that Democrats worked very hard to turn out in 2018 and hope to turn out in greater numbers in 2020. If even a few people who weren’t on that list look at the news and conclude that voting, or registering to vote, is too risky, then mission accomplished. Greg Abbott and Ken Paxton can understand the numbers when they’re explained to them as well. A smaller electorate benefits them. Why wouldn’t they exercise their power to keep it that way? If you think I’m being overly harsh or cynical, please tell me what in the recent history of Texas politics would motivate you to giving them any benefit of the doubt? They’ve been quite clear about their intentions all along. It’s on us to believe them and take them seriously. The Statesman has more.

Settlement officially reached in lawsuits over bogus SOS advisory

Great news.

Still the only voter ID anyone should need

Three months after first questioning the citizenship status of almost 100,000 registered voters, the Texas secretary of state has agreed to end a review of the voter rolls for supposed noncitizens that was flawed from the start.

The deal was announced Friday as part of an agreement to settle three legal challenges brought by more than a dozen naturalized citizens and voting rights groups against the state. The groups alleged that the voter citizenship review, which was launched in late January, was unconstitutional and violated federal protections for voters of color.

Secretary of State David Whitley — who has yet to be confirmed by the Texas Senate amid the fallout over the review — agreed to scrap the lists of registered voters his office had sent to county voter registrars for examination. Whitley’s office will instruct local officials to take no further action on the names of people it had classified as “possible non-U.S citizens,” and county officials will be charged with notifying voters who received letters demanding they prove their citizenship that their registrations are safe.

The state is also on the hook for $450,000 in costs and attorney fees for the plaintiffs’ lawyers.

The agreement must still be approved by the federal judge overseeing the case, and the state will have five days after the judge dismisses the plaintiffs’ legal claims to officially rescind the list. But the settlement amounts to a profound defeat for the state leaders who had defended the review even though it had jeopardized the voting rights of tens of thousands of naturalized citizens.

“Today’s agreement accomplishes our office’s goal of maintaining an accurate list of qualified registered voters while eliminating the impact of any list maintenance activity on naturalized U.S. citizens,” Whitley said in a statement Friday. “I will continue to work with all stakeholders in the election community to ensure this process is conducted in a manner that holds my office accountable and protects the voting rights of eligible Texans.”

See here for the background. I thought at the time that this was a resounding defeat for the state of Texas, and I very much still think that. Honestly, I’m stunned that the state gave up like this instead of taking their chances with the ever-pliable Fifth Circuit. Did they think their case was such a loser that even the Fifth Circuit wouldn’t bail them out? It’s mind-boggling. Anyway, here are the statements from the various plaintiffs in the suit, courtesy of the ACLU’s press release:

“After months of litigation, the state has finally agreed to do what we’ve demanded from the start — a complete withdrawal of the flawed and discriminatory voter purge list, bringing this failed experiment in voter suppression to an end,” said Andre Segura, legal director for the ACLU of Texas. “The right to vote is sacrosanct, and no eligible voter should have to worry about losing that right. We are glad that the state has agreed to give up this misguided effort to eliminate people from the voter rolls, and we will continue to monitor any future voter purge attempt by the state to ensure that no eligible Texan loses their voice in our democracy.”

“Three months after the state released a discriminatory and flawed voter purge list, they have finally agreed to completely withdraw the advisory that risked throwing tens of thousands of potentially eligible voters off the rolls,” said Beth Stevens, voting rights legal director with the Texas Civil Rights Project. “State officials have wasted hundreds of thousands of dollars and struck fear and confusion into thousands of voters in order to pursue their voter suppression agenda. We are glad that this particular effort was stopped in its tracks and we will remain vigilant to ensure that not one single voter loses their right to vote due to the actions of state officials.”

“While we are glad to see this program scrapped, it’s important to remember that the state not only began to disenfranchise tens of thousands of eligible voters, but also threatened them with criminal prosecution,” said Brendan Downes, associate counsel with the Lawyers’ Committee for Civil Rights Under Law’s Voting Rights Project. “Naturalized citizens are, by definition, Americans. It’s time for the state to start treating them that way.”

“Secretary Whitley’s agreement to scrap what the court called a ‘ham-handed’ process and implement these common sense changes will go a long way to protecting eligible naturalized citizens from being improperly purged from the rolls,” said Sophia Lakin, staff attorney with the ACLU’s Voting Rights Project. “We will continue to monitor the secretary and counties to protect eligible Texas voters from discriminatory barriers to the ballot box.”

“This settlement acknowledges that naturalized Americans have full and equal voting rights — they cannot be singled out and purged from the rolls due to their status,” said Chiraag Bains, director of legal strategies at Demos. “The settlement is a victory for our clients and all in Texas who were wrongfully deemed ineligible to vote. The secretary’s actions were reckless and misguided, and we hope that other states will take note and avoid similar unlawful actions.”

“The League regrets that it took a lawsuit to remind our state officials that naturalized citizens have a right to vote and to fully participate in our democracy,” said Grace Chimene, president of the League of Women Voters of Texas. “We are hopeful that new procedures will prevent naturalized citizens from being treated as second class citizens. We will continue to work with the secretary of state, as the chief election officer for Texas, to protect all citizens’ right to vote.”

“When the secretary of state tried to discriminate against eligible voters in a dangerous voter purge, we stood up to challenge this egregious act of voter suppression. Today, we won,” said H. Drew Galloway, executive director of MOVE Texas Civic Fund. “Young naturalized citizens no longer have to worry about this reckless voter purge impacting their constitutional right to vote. We will continue to fight for all young voters across the state.”

The whole thing is also visible at the Texas Civil Rights Project webpage. The Secretary of State – who by the way still needs to be someone other than the deeply incompetent David Whitley – will still conduct reviews of voter rolls to look for non-citizens, it will just need to be done under this new framework. The one remaining question is what will happen with the voters whose names were referred to AG Ken Paxton for possible criminal investigation. We’ll just have to see what Paxton does – I can’t imagine him turning down an opportunity to grandstand, but he may be just smart enough to decline to pursue cases that will be tough to win given the questionableness of the evidence. With him, it could go either way. The Chron, the Dallas Observer, and Slate have more.

Chick-fil-A follies, part 2

Noted for the record.

Best mugshot ever

The city of San Antonio voted 6-4 in late March to exclude Chick-fil-A from its renovation of the airport food court offerings due to the company’s “legacy of anti-LGBTQ behavior.”

Shortly after the city’s decision, public outcry in Buffalo, N.Y., led to a concessions company nixing the brand from its plans for the nearby Buffalo Niagara International Airport.

Chick-fil-A told Buffalo news station KBKW recent coverage of the company drives an inaccurate narrative about their brand. “More than 145,000 people from different backgrounds and beliefs represent the Chick-fil-A brand. We embrace all people, regardless of religion, race, gender, ethnicity, sexual orientation or gender identity,” the statement said.

Earlier this week, the city of San Jose, Calif., voted unanimously to settle the debate in an entirely different way — by flying rainbow and pride flags in front of Chick-fil-A locations both inside and outside of the airport.

On Thursday, the San Antonio city council will reconsider its previous vote. Councilman Greg Brockhouse said the city’s decision to exclude Chick-fil-A “embarrassed” the city, KTSA reported.

“Every day the Chick-fil-A removal decision is allowed to stand hurts our reputation nationwide as a welcoming and inclusive city. It sends a message we are anti-faith and we cannot stand by without speaking the truth and standing up for our principles,” he said.

See here for the background. I don’t know what the city of San Antonio is going to do at this point. There’s certainly a practical argument to be made that they have more to lose than to gain by picking this fight. But like Pete Buttigieg, I think there’s a lot of value in highlighting the moral bankruptcy of anti-gay animus, especially from Christian conservatives. Let the Chick-fil-As and their enablers explain why they choose to discriminate. Also, Greg Brockhouse can go jump into a vat of dipping sauce. Anyway, we’ll see what happens.

Congressional Republicans seek to halt SOS voter purge inquiry

I know, I’m as shocked as you are.

Still the only voter ID anyone should need

Republicans are challenging the authority of a U.S. House panel to investigate the Texas effort to purge thousands of suspected non-citizens from voter rolls, contending in letters Monday that a recent request for documents has no “valid legislative purpose.”

Rep. Chip Roy, R-Dripping Springs, and three other Republican members of the House Oversight and Reform Committee asked the committee to halt its investigations in Texas and related efforts in Georgia and Kansas.

“Your letters rely in large part on unverified media articles to suggest misfeasance or malfeasance in administering various state election laws and elections held in each of the three states,” the letter reads.

In separate letters to Texas Attorney General Ken Paxton and Texas Secretary of State David Whitley, the Republican congressmen suggest that Texas doesn’t need to comply with a request for documents because the “inquiry does not appear to have a valid legislative purpose and instead seeks confidential communications among state officials.”

[…]

[Committee member Rep. Jamie] Raskin, a law professor before he ran for Congress, asserted that Congress has the power and obligation to enforce voting rights under five separate constitutional amendments.

He said “indignant” Republicans might want to review letters written by the GOP-led Oversight Committee to states investigating the Affordable Care Act.

“It would be best if our GOP colleagues joined us in protecting voting rights, but at the very least they should stop trying to prevent us from doing our constitutionally mandated work,” he said in a statement. “Far from raising the ‘federalism concerns’ of Reps. Jordan, Hice, Cloud and Roy, this is serious federalism in action. Our colleagues should get used to it.”

See here, here, and here for the background. I say cry havoc and let slip the dogs of, um, subpoena power. The Republicans are gonna do what the Republicans are gonna do, so let’s just skip to the part where the courts sort it out.

Paxton gives the middle finger to House Oversight Committee

I’m sure you’re as shocked as I am.

Best mugshot ever

Facing an investigation over the state’s botched efforts to screen its voter rolls for noncitizens, the Texas Attorney General’s Office is declining congressional leaders’ request for information about the review.

In a Thursday letter to top officials with the House’s main investigative committee, Jeffrey Mateer, the state’s first assistant attorney general, indicated the state was brushing off a request for documents and communications from the Texas secretary of state and attorney general because the committee lacks “oversight jurisdiction.”

Instead, Mateer wrote, the state will treat the congressional inquiry as a public information request under state law, which grants the Texas attorney general’s office broad control over what information can be withheld from the public.

“We do not interpret your letter to be a subpoena issued under applicable House Rules. Nor do we consider it a request for information under any applicable federal law,” Mateer said. “For the foregoing reasons, and because the House Committee on Oversight and Reform and its subcomittees lack oversight jurisdiction over constitutional officers of the State of Texas, we must interpret your request under Texas state law.”

[…]

A spokesperson for the committee did not immediately respond to a request for comment regarding the AG’s letter. But in announcing the Texas investigation — part of a broader probe of voting irregularities in multiple states — Cummings and Raskin cited their authority to investigate “any matter” at “any time” under the rules of the U.S. House of Representatives. The committee has the authority to issue subpoenas. Raskin chairs a subcommittee on civil rights and civil liberties.

See here and here for the background. I wish I could say I was surprised by this, but it’s about as surprising as a humid morning in July. What happens next is probably a subpoena, but after that it’s anyone’s guess.

The committee said in response to Paxton’s letter that it still expects to receive the documents.

“The right to vote is guaranteed by the U.S. Constitution, and Congress is charged with protecting and defending the Constitution,” the committee said in a statement.

“Congress has an independent responsibility to investigate violations even when there may be separate litigation involving the same or similar matters. We expect full compliance with the Committee’s request.”

A committee spokesperson would not address a question about the use of a subpoena to obtain the emails and other documents.

[…]

Joe Larsen, a Houston lawyer and board member of the Freedom of Information Foundation of Texas, said even if the House does file a subpoena, the Attorney General could decline to cooperate.

The larger legal question of whether the committee has jurisdiction in a state matter may ultimately have to be solved by a court, Larsen said.

Normally, congressional oversight is for the executive branch, which does not include states, he said.

“It’s the idea that the federal government cannot be micromanaging what’s going on in the states unless that power is directly given to them by the Congress,” Larsen said.

But the committee could make the argument that it has the right under the “necessary and proper clause” of the Constitution to ensure that federal laws such as the Voting Rights Act aren’t being violated.

“That’s going to be a fight,” Larsen said. “It’s a fair argument on both sides.”

Better hope the courts are sympathetic to that line of reasoning. Our next chance to hold these amoral assholes accountable isn’t until 2022, and we can’t afford to wait that long.

Using floodplain rules to force environmental safety compliance

A county’s gotta do what a county’s gotta do.

Harris County officials are using flood control regulations passed after Hurricane Harvey to delay the reopening of two chemical companies where fires erupted in recent weeks, killing one worker and sending large plumes of black smoke into the Houston area.

The Harris County Attorney’s office cited the post-Harvey rules on floodplain construction and stormwater drainage in its civil lawsuits against KMCO and Intercontinental Terminals Co., where cleanup is still ongoing after the fires.

“We don’t shy away from going after the biggest, baddest companies out there,” said Harris County Attorney Vince Ryan. “It sends a message to everyone.”

The county is digging through maps and available data to determine if both companies are in a floodplain. The new regulations put chemical facilities that are in a 500-year floodplain under tighter scrutiny.

The drainage rules restrict discharges of hazardous materials into the county’s stormwater system. If a company is found to have discharged hazardous materials, it can be cited by the county. Larger releases could lead to additional legal action.

The floodplain rules apply to more than facilities with fires and toxic releases and can force companies to meet new requirements when seeking to expand or change an existing facility, said Rock Owens, managing attorney for the Harris County Attorney’s environmental section.

The story doesn’t go into detail about what compliance issues there are and how long they may take to resolve. You may be thinking “why doesn’t the county file a lawsuit against these companies to force them to fix their problems?” The answer is that this used to be how things went, but your Texas legislature has taken steps to shackle counties and their enforcement efforts.

But in 2015, the state Legislature started taking away authority from the local governments. Lawmakers approved a bill capping the amount of money a local government could receive from civil penalties sought in environmental cases.

In 2017, another bill passed forcing local authorities to ask permission from the Texas attorney general before seeking penalties. If the attorney general’s office does not file its own suit in 90 days, the local government can go forward with a civil suit.

Lawmakers are currently considering two bills that would restrict local governments even more.

House Bill 3981, filed by state Rep. Jeff Leach, R-Plano, would give the attorney general the authority to settle lawsuits started by the county, without the approval of the county.

House bill 2826, filed by state Rep. Greg Bonnen, R-Friendswood and three others, would let the attorney general prohibit the county from hiring outside attorneys on cases.

“The concern isn’t that the local governments are intentionally causing any problems with these suits, just that a more efficient state-led effort may at times be more desirable,” said Justin Till, Bonnen’s chief of staff.

More desirable for the polluters, that’s for sure. Let’s be very clear, the main reason why bills like these get passed are specifically to muzzle Harris County’s enforcement efforts. (The city of Houston’s efforts were killed by the Supreme Court.) It’s a pollution-friendly Republican Legislature taking care of bad actors, aided and abetted by the business lobby. You know what I’m going to say next: Nothing will change until we change who we elect.

Failing upward

Must be nice.

Still the only voter ID anyone should need

The day after David Whitley took office as Texas secretary of state on Dec. 17, he received a 49 percent pay raise thanks to his friend and political patron, Gov. Greg Abbott.

In a Dec. 18 letter to the Legislative Budget Board, the governor’s chief of staff said Abbott was using his authority to immediately raise Whitley’s annual salary to $197,415.

That’s almost $64,500 more than the $132,924 paid to Rolando Pablos, the Abbott appointee who was secretary of state before Whitley.

The raise, revealed in a footnote in a Legislative Budget Board document as part of the current budget process, meant Whitley still took a pay cut from his $205,000 salary as the governor’s deputy chief of staff — although the footnote said the letter was sent Dec. 8 instead of Dec. 18.

Whitley began working for Abbott in 2004 and spent almost four years as the then-attorney general’s travel aide, driving Abbott across Texas and helping him move from automobile to wheelchair. Abbott and his wife, Cecilia, grew to consider Whitley as almost part of their family, according to a recent Dallas Morning News profile of the secretary of state.

A priori, I don’t have an issue with bumping up the SOS salary so as to not give a guy a big pay cut. The problem is with the sheer incompetence. I mean, in a way I’m glad Whitley has been so bad at his job, because that has prevented him from doing any real damage so far. But the SOS has responsibilities beyond voter registrations, and I don’t see any reason to believe David Whitley will be good at any of them, either.

I’ll say this for Whitley, he’s staying positive in the face of all that pushback.

In his first public comments on the matter, acting Texas Secretary of State David Whitley last week pledged to cooperate with Congress, which has opened an investigation into his error-laden voter roll review that has Democrats howling voter suppression and has threatened his confirmation as the state’s top election officer. Whitley, on a visit to a school in the Rio Grande Valley, also expressed his confidence that he will ultimately be confirmed by the Texas Senate despite opposition by every Democrat in the chamber.

“I’m not worried about that. Those senators are my friends,” Whitley told reporters after speaking to several hundred students at Edinburg North High School about the importance of voting. Whitley added that he has worked with each state senator over the last four years during his previous job overseeing the governor’s appointments across the state. But now, “all I can do is do the best job I can as secretary of state.”

While fulfilling his duties as the state’s top elections official, Whitley said he will also “fully comply” with the U.S. House Oversight and Reform Committee investigation that was announced a day earlier. “We will fully comply. We have absolutely nothing to hide,” Whitley said. “We’ll read it thoroughly and make sure we turn everything over as required by law. Absolutely.”

See here for the background. I have no idea why Whitley thinks Senate Dems will change their minds about him, but hey, keep hope alive. In the meantime, those Congressional Dems have set a date for those documents they want.

“We want to get to the bottom of what happened in Texas,” Rep. Jamie Raskin, D-Md., chairman of the Oversight Subcommittee on Civil Rights and Civil Liberties, said in an interview.

The powerful committee, under Democratic control for the first time since 2011, gave acting Secretary of State David Whitley until April 11 to produce a host of documents related to his assertion in January that nearly 100,000 registered voters in Texas may not be citizens.

[…]

Raskin stopped short of threatening a subpoena if the many documents requested – including emails with Gov. Greg Abbott and Trump administration officials – aren’t turned over.

“We have the authority to order these documents to be produced and we have subpoena power if we need to use it. We’re very serious about this,” he said.

I have a hard time believing that Greg Abbott and Ken Paxton will just blithely hand over all their files to a bunch of Democrats. It’s just not consistent with everything we know about them. I think they will hand over as little as they think they can get away with, and will feel free to redact and claim executive privilege as it suits them. If this all goes off without subpoenas or a court fight, I will be surprised. We’ll know soon enough.

Chick-fil-A follies

I have three things to say about this.

Best mugshot ever

Texas Attorney General Ken Paxton is investigating the city of San Antonio for potential First Amendment violations after the City Council voted to prevent Chick-fil-A — a franchise known for opposing same-sex marriage — from opening a location in the city’s airport.

“The Constitution’s protection of religious liberty is somehow even better than Chick-fil-A’s chicken,” Paxton, a Republican, wrote in a Thursday letter to San Antonio Mayor Ron Nirenberg and the rest of the council. “Unfortunately, I have serious concerns that both are under assault at the San Antonio airport.”

In a 6-4 vote, the council voted last week to keep the franchise from opening at the San Antonio International Airport. The decision quickly drew national headlines and condemnations from conservatives across the country.

Chick-Fil-A, a national franchise with locations throughout Texas, is known for its leaders’ staunch Christian views and close ties to groups that worked to prevent the legalization of same-sex marriage. Its corporate purpose is “to glorify God by being a faithful steward of all that is entrusted to us and to have a positive influence on all who come into contact with Chick-fil-A.” It is, famously, “closed on Sundays.”

Paxton, a Christian conservative who has long billed himself as a crusader for religious liberty, has also asked U.S. Department of Transportation Secretary Elaine Chao to open an investigation into the city’s actions. Paxton said in a news release Thursday that federal regulations governing grant money that flows to the San Antonio airport prohibit discrimination.

1. If we must accept that corporations can have “religious beliefs” – I don’t, but SCOTUS has imposed it on us, so here we are – then we ought to be able to criticize those beliefs. Governments make policy decisions all the time based on who they do and don’t want to do business with (see, for example, the state of Texas picking a side in the Israel/West Bank conflict), for reasons one may or may not approve of. Often, these decisions are made in response to feedback from constituents. It’s a tool that activists have in their toolbox for holding corporations accountable for their actions. It’s messy and often contradictory, but it’s long been a part of the democratic process. I don’t think letting corporate “religious beliefs” serve as a get-out-of-consequences-free card is a good idea.

2. All that aside, isn’t the fact that Chick-fil-A closes on Sunday a factor here? Surely the city of San Antonio would like to have a full range of dining options for those who pass through its airport, as they can’t just go somewhere else if their needs aren’t being met. If the choice is between a restaurant that’s open seven days a week, and a restaurant that’s open six days a week, you’d think the former would be preferred.

3. San Antonio isn’t the only city cordially dis-inviting Chick-fil-A from its airport. However you feel about this issue, it’s not going away.

Explode, rinse, repeat

Here we go again.

A massive explosion at a chemical plant in northeast Harris County on Tuesday killed one person and sent two others to the hospital in critical condition, sparking a blaze that sent yet another plume of dark smoke into the sky and forcing residents to temporarily shelter in place.

The fire, ignited by a flammable gas called isobutylene at the KMCO chemical processing plant in Crosby, marked the third time in 17 days that a smoggy cloud of smoke emanated from a Houston-area chemical facility.

It is the first chemical fatality at a Houston-area plant since 2016, when a worker died in an incident at PeroxyChem in Pasadena. In 2014, four workers died at a DuPont plant in La Porte.

Responders extinguished the KMCO fire late Tuesday afternoon, while on-scene investigators with the Harris County Fire Marshal’s Office began conducting interviews to determine where the fire started and what caused the gas to ignite.

“There’s a lot of hot metal in there,” said Rachel Moreno, a fire marshal spokeswoman. “Until it’s safe for our guys to go in, they’ll continue doing interviews of everybody that was at work.”

The response will stretch Harris County’s resources, Moreno said, as the fire marshal’s office begins its second major investigation in less than three weeks. The site of an even larger conflagration at Intercontinental Terminals Co. in Deer Park less than 15 miles away on March 17 remains too unsafe for investigators to visit.

[…]

KMCO, a subsidiary of an Austin private investment firm, produces coolant and brake fluid products for the automotive industry, as well as chemicals for the oil field industry. Its facility, which has a history of environmental and workplace safety issues, sits about 13 miles away from the ITC plant, where Harris County officials continued to detect carcinogenic benzene this week.

The KMCO plant is less than three miles from the Arkema facility where a series of explosions spewed chemicals and sickened residents after Hurricane Harvey in 2017.

Let’s talk about that history, shall we?

“As long as I’ve been doing environmental work for Harris County, I’ve been involved in case with this company, either with the previous owner or the current owner,” said Rock Owens, managing attorney for the Harris County Attorney’s environmental section. “And I’ve been doing this for close to 30 years. This company has been around forever causing trouble.”

[…]

On Christmas Eve 2010, a runaway reaction sent three employees at the plant to the hospital. Workers there couldn’t lower the pressure in a reactor and, as they tried to fix a clogged line, they accidentally mixed a caustic solution with maleic anhydride, a normally stable chemical. The result was an explosion and fire. An explosion in 2011 sent two more workers to a hospital.

[…]

Since 2009, KMCO has paid out more than $4 million in fines or criminal penalties to local and federal regulators.

In 2017, the company pleaded guilty to criminal violations of the Clean Air Act filed by the Environmental Protection Agency and was ordered to pay $3.5 million. The violations were in connection to an explosion at its Port Arthur facility and air emissions at the Crosby plant.

The Occupational Safety and Health Administration has issued dozens of violations to KMCO since 2010 and fined the company about $250,000.

The facility is currently not compliant with the federal Clean Water Act. KMCO was in violation of the act for seven of the last 12 quarters, records show. It violated the Clean Air Act three times in the last 12 quarters. EPA data shows the facility also violated the Resource Conservation and Recovery Act in February 2018. That law regulates how facilities handle hazardous and non-hazardous solid waste.

[…]

Harris County first sued KMCO in 1987. The company was ordered to pay $49,750 for violations of the Texas Water Code.

The county sued the KMCO plant in 2008 for spills and fumes that gave neighbors headaches. The lawsuit ended in 2009 with a permanent injunction requiring KMCO to pay $100,000 in civil penalties and to give investigators easy access to the facility and prompt notification of releases.

The county sued again in 2013; that case is still ongoing. Owens said the county attorney’s office is still deciding whether to add Tuesday’s incident to the existing case or bring a separate case against the company.

“While there’s been actions before, it hasn’t been sufficient,” said Luke Metzger, executive director of Environment Texas, an environmental advocacy group. “We should, in the 21st century, be able to prevent these kinds of things from happening.”

A Houston Chronicle report from 2016 found that there’s a major chemical incident every six weeks in the greater Houston area.

You’d really like to think that we could prevent this kind of thing from happening, wouldn’t you?

Sunday, this editorial board demanded that state officials hold polluters accountable — and not just after a disaster.

We didn’t expect to be repeating ourselves so soon.

But this is what happens in a state where environmental regulators are toothless tigers. Where the TCEQ trusts polluters to police themselves — in part out of necessity, since lawmakers don’t adequately fund the agency. Where violators avoid sanctions and routinely endanger Texans’ health without our knowledge. Where Gov. Greg Abbott and Attorney General Ken Paxton talk tough, maybe even file a lawsuit after an incident makes headlines, but look the other way when the smoke clears.

At this rate, the smoke will never really clear. There will be another fire. And another.

Another round of parents fearing for their children’s safety. Another community fearing the effects of chemicals and pollutants they can’t pronounce. Another black eye to Houston’s already bad reputation as a place where one shouldn’t breathe too deeply, a place where profits outweigh concern for public health.

As we’ve pointed out, Texas facilities in 2017 reported releasing more than 63 million pounds of unauthorized air pollution — including chemicals linked to cancer, heart attacks and respiratory problems, according to a report by Environment Texas. But, in the past seven years, TCEQ issued fines in less than 3 percent of such events.

“These repeated, disastrous fires and explosions can no longer be called isolated incidents,” Luke Metzger, director of Environment Texas, told the editorial board Tuesday. “The Texas petrochemical industry has a serious, chronic problem, and Texas workers and citizens are paying the price. How many people have to die, get hurt, get cancer or suffer respiratory failure before the state takes this seriously and overhauls our broken system of oversight?”

Texans, these are questions for Abbott and our other state leaders. It’s up to us to demand the answers.

The only way to get the answers you need is to vote for those who will give them to you, and against those who won’t. If the choices aren’t clear by now, I don’t know what to tell you.

Trump goes all in against health care

Game on.

It’s constitutional – deal with it

The Trump administration wants the federal courts to overturn the Affordable Care Act in its entirety, an escalation of its legal assault against the health care law.

The Justice Department said in a brief filed on Monday that the administration supports a recent district court decision that invalidated all of Obamacare. So it is now the official position of President Trump’s administration that all of the ACA — the private insurance markets that cover 15 million Americans, the Medicaid expansion that covers another 15 million, and the protections for people with preexisting conditions and other regulations — should be nullified.

When combined with Trump’s endorsement of the various Republican legislative plans to repeal and replace Obamacare and other regulatory actions pursued by his subordinates, the Trump administration’s clear, consistent, and unequivocal position is that millions of people should lose their health insurance and that people should not be protected from discrimination based on their medical history.

The Justice Department had previously said that only the ACA’s prohibition on health insurers denying people coverage or charging people higher premiums based on their medical history should fall in the lawsuit being brought by 20 Republican-led states. But their latest brief removed that subtlety, saying that the entire law should go.

Legal experts dismiss the states’ argument as “absurd,” yet they have worried it could find a receptive audience among conservative jurists, given the prior success of anti-Obamacare lawsuits thought to be spurious that still found their way to the Supreme Court.

The argument has already won in the US district court in northern Texas, after all, though that decision is on hold pending appeal.

See here and here for some background. Did we mention this ridiculous lawsuit got its start in Texas? Bad lawsuits seem to be our main export these days. There’s not much we can do about what the Fifth Circuit and SCOTUS will do, but in the meantime, health care is once again a huge issue for the next election. We won once on that, we need to do it again.