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Cynthia Bailey remains on District B runoff ballot

For now, at least.

Cynthia Bailey

A felon may remain on the runoff ballot in the Houston City Council District B race, a Harris County judge ruled on Friday, despite state law that may bar residents with felony convictions from seeking public office.

On Election Day, Cynthia Bailey qualified for the second and final runoff spot in District B, edging third-place finisher Renee Jefferson-Smith by 168 votes. Jefferson-Smith last week sued to remove Bailey from the ballot, arguing her 2007 conviction for theft of more than $200,000 made her ineligible to run.

Harris County 270th District Court Judge Dedra Davis on Friday denied Jefferson-Smith’s request to remove Bailey from the ballot, which would allow her a place in the runoff, said Oliver Brown, Bailey’s attorney.

The Texas Election Code is unclear on whether a felon may run for office. It bars candidates who have been “finally convicted” of a felony or who have not been “pardoned or otherwise released from the resulting disabilities,” though the law does not define these disabilities.

Brown said Bailey’s conviction is well known to voters, who can make an informed decision about whether this disqualifies her. He said District B residents can open the door to other felons to run for office if they elect Bailey.

“They can send a message to the city and state, that regardless of a candidate’s past, they believe in the redemption of citizens after they’ve been released by the Department of Corrections.”

See here for the background. Renee Jefferson Smith did not comment in the story, so we don’t know if she intends to appeal or let this be. Neither her campaign nor personal Facebook pages say anything about it, and her campaign hasn’t tweeted since May. We’re less than two weeks out from the start of early voting, and I presume mail ballots are being sent out as well, so it’s not clear to me that she could get a change now regardless. What happens after the election should Cynthia Bailey win is a matter we’ll address if and when it happens. In the meantime, the lesson I take from this is file the lawsuit after the August deadline and hope the issue gets decided then. And for Pete’s sake, let’s lobby the Lege to clean this up. I say that felons who complete their sentences should be free to vote and run for office as they see fit, but that notion will take a lot of work to pass. Better to start on that sooner than later.

Fifth Circuit overturns “motor voter” lawsuit verdict

Bummer. Totally expected and completely on brand for the Fifth Circuit, but a bummer nonetheless.

Still the only voter ID anyone should need

A federal appeals court has overturned a previous ruling that could have opened the door to online voter registration in Texas.

In a Wednesday court order, the 5th U.S. Circuit Court of Appeals reversed a federal district judge’s ruling that Texas was violating federal law by failing to register residents to vote when they updated their driver’s licenses online. The panel of three federal judges that considered the case did not clear the state of wrongdoing but instead determined that the three Texas voters who had brought the lawsuit did not have standing to sue.

The case revolved around a portion of federal law, often called the motor voter law, that was designed to ease the voter registration process by requiring states to give residents the opportunity to register to vote at the same time they apply for or renew their driver’s licenses.

The legal dispute came after three Texas voters who moved from one county to another were unable to reregister to vote when they updated their driver’s licenses through the state’s online portal. Although the state follows the law for individuals who renew their driver’s licenses in person, Texas does not allow for online voter registration.

[…]

Two of the voters who sued the state believed they had registered and didn’t discover they were not on the voter rolls until they tried to vote in 2014. They were allowed to cast provisional ballots, but their votes were not counted. The third voter also believed he was registered to vote and only discovered he wasn’t when he sought help from county officials to determine his polling location for a 2015 election.

But the 5th Circuit sided with the state’s argument that the voters could not take the issue on in court because they had since successfully registered to vote and were no longer harmed by the state’s practice.

The federal appeals court found that [District Court Judge Orlando] Garcia erred when he reasoned that court-ordered compliance with federal law was needed to “prevent repetition of the same injury” to the three voters and others because the state’s challengers had not sufficiently proved the online system would continue to be a problem for them in the future.

I have a lot of links for this. The lawsuit in question was filed in 2016, and the initial ruling came two years later. Judge Garcia ordered the state to come up with a fix, which could have led to a partial implementation of online voter registration to comply. (Note how the main opposition to this, in mid-2018, came from the Harris County Clerk’s office. Elections matter, y’all.) The state said “nah, we’re good, no fixes needed or offered”, appealed the ruling, asked for an emergency stay of the order, which they received, thus putting everything on ice. And now here we are.

The fact that this was overturned on grounds of standing rather than on the merits suggests that maybe another go at this might be successful, if the right plaintiffs can be found. Which is still kind of ridiculous, since the claim wasn’t that people couldn’t get registered at all but that the state wasn’t following federal law and thus made it more of a pain to register and more likely that people would honestly think they had had their registration updated when they hadn’t. One of the plaintiffs was denied the opportunity to vote in the 2014 election, which sure seems to me to be a legitimate harm for a court to address. I’m not sure what a “correct” plaintiff looks like in this context. Be that as it may, it took over three years to get from the original filing to this ruling, and with no guarantee that a second try would work, or would succeed at SCOTUS even if it got past the Fifth Circuit, this is once again something that’s just gonna have to be solved by winning elections and passing laws, and in this case maybe also installing a DPS director that cares about complying with federal law. I wish it didn’t have to be this hard to secure basic rights and services from our state government, but it is, and we’re the only ones who are going to be able to do something about it. The Texas Signal has more.

Lawsuit filed over District B candidate eligibility

All right then.

Cynthia Bailey

Renee Jefferson-Smith, who trailed Cynthia Bailey by 168 votes in unofficial returns, sued the city of Houston and Harris County Thursday, contending that Bailey’s 2007 conviction for forging a $14,500 check makes her ineligible to appear on the ballot.

The Texas Election Code says candidates are eligible to run for office if they have not been “finally convicted” of a felony from which they have “not been pardoned or otherwise released from the resulting disabilities,” though the law does not define “resulting disabilities.”

In the state district court lawsuit, which seeks an injunction and temporary restraining order to bar Bailey from appearing on the ballot, Jefferson-Smith also argued that Bailey may have committed perjury by affirming in her candidacy application that she had not been convicted of a felony.

Though the law appears to prohibit convicted felons from seeking office, candidates with felony records successfully have reached the ballot in HoustonAustin and San Antonio, and the law has yet to be thoroughly tested in court.

For now, Bailey is set to face Tarsha Jackson in the District B runoff. The district, which covers several north Houston neighborhoods including Fifth Ward and Acres Homes, currently is represented by term-limited Councilman Jerry Davis. Jackson finished atop the 14-candidate field with 20.8 percent of the vote in Tuesday’s election.

[…]

In the petition filed Thursday, Jefferson-Smith also contended that Bailey’s criminal record “will guarantee a victory for the other runoff candidate and deny voters in District B a real choice.”

Replacing Bailey in the runoff, Jefferson-Smith argued, would give voters “the opportunity to choose between two eligible candidates for the position of Council member for District B, thus ensuring that District B voters are not disenfranchised.”

Jefferson-Smith declined to comment through a spokesperson, though she posted about the lawsuit on Facebook Thursday.

“I had a decision to make, and believe me it was extremely tough, so please understand; this lawsuit and fight is not about me, it’s about the people in District B,” she wrote.

Jackson said she was disappointed Jefferson-Smith filed the lawsuit, and argued that Bailey should not be kept off the ballot.

“I’ve spent my whole life fighting for criminal justice reform and fighting for people to have a second chance. All the candidates knew she had a criminal record when the story came out,” Jackson said, referring to a Chronicle story published last month. “She finished second despite the story, and I think she should be able to finish the race.”

As you well know, I Am Not A Lawyer, so I have no idea what the courts will make of this. I expect we will get a quick decision, likely followed by a quick appeal to the 1st or 14th Court of Appeals, which in turn will either rule or refuse to take up the matter in short order.

Bailey’s status was reported by the Chron in October in a story that was primarily about residency requirements. You will note that three other candidates who were on the ballot were in the same boat, though none of them came close to advancing. You may also recall that former Geto Boy Willie D decided not to file in District B over concerns about his own status. I wonder what he’s thinking right now.

I don’t have a problem with the filing of the lawsuit, especially if one believes that Bailey would be prevented from taking office in the event she won because of her status. We don’t know that would happen, but it could and it seems likely that someone would take legal action to force the question. I would have preferred to adjudicate the question before the actual election, precisely to avoid issues like this, but the courts in their wisdom prefer to only get involved after elections. I’d also prefer for people like Bailey and Willie D to be able to run for office after they finish serving their sentences, but at the very least the law in Texas is unclear on that. I’ll keep an eye on this and we’ll see what the courts have to say.

TEA announces its takeover intent

Here it comes.

In a move that is unprecedented in scope, Texas state officials announced Wednesday they plan on taking over the state’s largest school district, yanking power from Houston Independent School District’s elected school board members to “prevent imminent and substantial harm to the welfare of the district’s students.”

Texas Education Commissioner Mike Morath sent a letter to Houston ISD Interim Superintendent Grenita Lathan and Board President Diana Davila giving two principal reasons for the decision: the school board’s “failure of governance” and the repeated low academic performance of Wheatley High School, which received its seventh failing rating this year. In addition to appointing a board of governance to replace the elected school board, Morath will also appoint a superintendent to lead the district. The timeline of the takeover action is unclear.

“Given the inability of the board of trustees to govern the district, these sanctions are necessary to protect the best interests of the district’s current and future students,” he wrote. The decision means the state will be taking over its largest public school district, which contains more than 270 schools and educates more than 200,000 students.

Houston ISD officials still have a slim chance at averting the takeover and have two weeks to request a formal review challenging it, according to a Texas Education Agency spokesperson.

[…]

During its temporary replacement of the elected board, a board of managers has all the same powers and duties to oversee the school district. Once the state determines it has fixed the specific problems it is charged with, Morath will gradually transfer power back to the elected board.

See here and here for the background. You can see Morath’s letter to HISD here. If for some reason you want to serve on that Board of Managers, the application is here. This decision came a day after the denial of the Wheatley appeal, which was not a surprise. There is the lawsuit filed by HISD to stop the TEA from taking over, which still feels like a longshot to me but which could slow things down. Be that as it may, you can see where this is going.

I’ll just say this much. Despite the problems the Board has had, HISD is overall a pretty good-performing school district. There are problems, of course, as there always are with large, diverse urban districts that serve a population that is mostly low-income and that has a large number of non-native English speakers. I won’t defend the current Board, though after Tuesday’s elections I’d argue it’s already improved, but I’m not at all convinced that the TEA can do a better job with academic performance at schools like Wheatley than the Board has done. I’ll be happy to be proven wrong about that – I hope all of the schools improve while the TEA is in charge – but if I’m right, I don’t know what there is to be done about it. The Chron has more.

Lawsuit filed over bill banning temporary voting locations

Of interest.

Worried about the suppression of young voters in 2020, national and Texas Democrats are suing the state over a newly implemented election measure that’s triggered the shuttering of early voting places, including on college campuses, in various parts of the state.

In a federal lawsuit filed Wednesday in Austin, the Texas Democratic Party — joined by the Democratic campaign arms for the U.S. House and Senate — alleges that the state’s move to effectively end the use of what were known as temporary or mobile early voting sites is unconstitutional because it discriminates against young voters by shrinking their access to the ballot box.

Republican lawmakers pushed the law, introduced during the last legislative session as House Bill 1888, to curb what they saw as abuse in school bond elections by requiring voting sites to remain open for all 12 days of early voting. Despite warnings from local election officials, HB 1888 was crafted broadly enough to outlaw the long-established practice of moving polling places during the early voting period to reach as many voters as possible near where they live, work or go to school.

As a result, both young and rural voters are losing access to early voting sites that were legitimately used to offer a day or two of early voting to places in places where it wasn’t practical or cost-efficient to maintain a site open for all of early voting.

“HB 1888 now mandates that, based on where they live, some voters will enjoy the same consistent access to early voting they had previously, but voters who live near now defunct temporary voting sites, especially young voters, will suffer reduced or eliminated access to the franchise,” the Democrats claimed in the lawsuit.

Citing violations of the First, 14th and 26th Amendments, the Democrats are asking a federal judge to block the state from implementing HB 1888.

See this Observer story and this earlier Trib story for the background. I mentioned this new law, along with a link to the Observer story, in a post that was more about the likely effects of no straight ticket voting. I’m always happy to see a pro-voting rights lawsuit, and I have zero doubt that the intent of this law was primarily to make it harder for students to vote, but I’m just not going to be optimistic about any voting rights litigation in federal court at this time. The Fifth Circuit, and SCOTUS if it comes to that, are just too hostile to voting rights. We are just going to have to add this to the ever-growing to do list for the next Democratic government in Texas, however long that may take. Yes, yes, I Am Not A Lawyer, and maybe this is a slam dunk case. It’s not the law or the Constitution I’m evaluating here, it’s the courts and the justices. Believe me, I wish I could be more optimistic and less cynical about this, but not on this kind of case. A statement from the TDP about the lawsuit is here.

City wins final judgment in revenue cap lawsuit

Wow, is this ever a blast from the past.

The city of Houston has prevailed in a lawsuit challenging the amount it can collect in property taxes, ending 14 years of litigation over a set of measures approved by voters in 2004.

At issue in the suit were two ballot measures from 2004, specifically Proposition 1, which limited the annual increases in property tax and utility revenues to the combined increases in population and inflation for Houston, or 4.5 percent, whichever is lower.

Prop 1 was approved by voters in 2004, as was was another measure, Proposition 2, that further limited the city’s ability to collect revenue. The city, under then-Mayor Bill White, abided by the first measure because of a directive in it that stated whichever cap received more votes would be the one adopted.

Individuals from a conservative group then filed suit, accusing the city of violating the caps by not also adopting Proposition 2.

After years of court battles, a state district judge has ruled that the city has “fully complied” with Proposition 1.

See here for the city’s statement. The most recent update I can find in my own archives is from 2008 (!!), though it is likely there has been more action on the lawsuit that either wasn’t reported or went unremarked upon by me. However you look at it, this is some old, old business, and now it is done. Think of it as an alternate thing the city of Houston can celebrate now that the World Series didn’t work out the way we’d hoped.

TEA recommends HISD takeover

Not finalized yet, but you can see the way it’s going to go.

The Texas Education Agency is recommending that the state take over Houston Independent School District — the state’s largest public school system — due to its elected school board’s “demonstrated inability to appropriately govern,” according to a 318-page final investigative report sent to lawmakers Wednesday.

TEA’s Special Investigations Unit Director Jason Hewitt found that school board members violated state open meetings law by discussing district business without notifying the public of their discussions, attempted to influence how contracts were awarded, and took action on district issues individually without consulting other board members. It substantiates most of the allegations made in a preliminary August report.

District officials and board members, whose responses are included in the final report, dispute many of the agency’s conclusions and argued the allegations were not investigated properly. The Texas Tribune obtained a copy of the report, which is public, late Wednesday. TEA officials confirmed that they had sent it to legislators.

Hewitt recommended Texas Education Commissioner Mike Morath appoint a board of managers to oversee the school district, replacing the elected school board.

[…]

Houston ISD received a B from the state this year, largely based on student test scores, but Wheatley High School failed in August for the seventh year in a row. The TEA is separately considering penalizing the district because of Wheatley’s repeated low performance.

The findings in the report are final and cannot be appealed. Morath will make the final determination on whether to replace Houston ISD’s board.

See here for the background. Remember that this is about the ethics investigation – this is the final version of the August report, which means this version was written after HISD had a chance to respond to the initial report, which also recommended a takeover. The accountability ratings issue is still pending, with the Wheatley rating being half-heartedly appealed, and that decision by Morath – a decision between replacing the Board and closing Wheatley, the latter of which everyone expects will not happen – is not due till early next year. I presume Morath has more discretion in this matter, but given that a takeover is basically inevitable at this point I’m not sure how much it matters. I suppose it may make a difference in terms of how long it may take HISD to get back in control of its own governance, and what it needs to do to get there, but in the short term it’s a distinction without much difference.

In the meantime, there’s this.

Lawyers for Houston ISD’s school board have asked a federal judge to preemptively stop the Texas Education Agency from stripping power from the district’s elected trustees and allow board members to select a permanent superintendent, the latest maneuver in a growing legal battle between the district and state.

In a motion filed Tuesday, the HISD board’s lawyers argued agency officials have discriminated against voters in predominantly black and Hispanic cities, overstepped their authority in suspending the district’s superintendent search and misinterpreted a new state law that requires dramatic intervention in districts with long-struggling schools.

[…]

In their motion for a preliminary injunction, HISD’s lawyers said Texas Education Commissioner Mike Morath is attempting to “unlawfully supplant the democratically-elected board of trustees” and replace it with a state-appointed governance team. The district’s lawyers noted that 10 districts subject to major state intervention in recent years all serve large majorities of black and Hispanic students, illustrating discrimination under the Voting Rights Act.

“You could argue that it’s a coincidence. I think it’s not,” Kevin O’Hanlon, a lawyer for HISD trustees, said Wednesday.

In addition to discrimination claims, HISD’s lawyers argued that a state-appointed conservator overseeing the district’s operations of long-struggling Kashmere High School overstepped her legal authority in suspending HISD’s superintendent search last March. HISD has been without a permanent superintendent since March 2018, when Richard Carranza abruptly left to lead New York City’s public schools.

HISD’s lawyers claim the conservator, former Aldine ISD administrator Doris Delaney, only had the power to dictate matters related to Kashmere.

“Delaney was appointed to be a campus-level conservator over the performance of one of (HISD’s) schools, and was to implement and ensure compliance with getting the resources necessary to extract it from its low-performing status,” O’Hanlon said.

However, state law grants broad authority to conservators, including the ability to “direct an action to be taken” by a district’s board of trustees.

I Am Not A Lawyer, but let’s just say I have my doubts about the likelihood of success here. It’s worth a shot, but I wouldn’t go betting the rent on it. We’ll see how this goes, and how long it takes – would anyone be surprised if this is still in the courts when the TEA is handing power back to HISD? I don’t think it’s likely to go anywhere, but that’s just my guess at this time.

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.

Another ReBuild Houston lawsuit

Gotta say, this puzzles me.

Mayor Sylvester Turner

A pair of Houston residents filed a lawsuit against Mayor Sylvester Turner and city council Monday, accusing them of failing to follow the will of voters who approved a charter amendment last year for funding drainage and street repairs.

The lawsuit accuses city leaders of shortchanging the dedicated drainage fund by failing to transfer the full amount required by last year’s ballot proposition.

The proposition, which essentially was a “do-over” vote on the city’s 2010 street and drainage repair program known as Rebuild Houston, requires the city to dedicate 11.8 cents of its property tax rate to the street and drainage fund. The city, under former mayor Annise Parker and Turner, has transferred less than the full amount generated by the 11.8 cents for the last five years.

The plaintiffs allege a roughly $44 million discrepancy in what the city currently has budgeted compared to the amount generated by 11.8 cents of property tax rate. Over 10 years, the funding shortfall could exceed $500 million, the plaintiffs say.

Turner’s office issued a statement disagreeing with the premise of the lawsuit, saying that transferring the full amount generated by 11.8 cents of tax rate would require moving some $50 million more annually and would “cripple” city services.

“That would mean cuts to essential services like police, fire, solid waste, and other services,” the statement said. “Mayor Turner doesn’t support that.”

The plaintiffs, Allen Watson and Bob Jones, are engineers who were part of the campaign that put the program, then known as ReNew Houston, on the 2010 ballot. It later was renamed Rebuild Houston.

They said they were suing because the city had failed to meet the expectations outlined in Proposition A, which 74 percent of voters approved last year. They are seeking a court order to force the city to direct more money and “to fund the things they said they were going to fund,” Jones said.

“Houstonians spoke loud and clear just one year ago when they voted to create a fund to fix our streets and drainage,” Jones said in a later statement. “…We are undertaking this suit to ensure that the law is upheld, that the promised funding is protected so that our street and drainage infrastructure receives the investment necessary to repair, replace and upgrade our street and drainage systems throughout the city over the next 20-30 years.”

Here’s what I wrote in 2018 about the ReBuild re-vote. You can click the links to the Chron stories, but there’s nothing in either of them that mentioned a percentage of property taxes. The story mentions this was a part of the original mix of funding for ReBuild Houston, and here I have to confess I don’t remember that. There was so much noise and drama about the drainage fee that anything and everything else got overpowered. If this is what’s supposed to happen, then the consequences will be unpleasant. On the plus side, maybe it’ll take another decade to get settled via the courts.

So are there any legal consequences to the Bonnen tape?

Probably not, but maybe a little. Does that help?

It was, according to his critics, “hurtful,” “vindictive” and “unbefitting of the high office he holds.” But was House Speaker Dennis Bonnen’s June 12 meeting with conservative activist Michael Quinn Sullivan illegal?

In June, when Bonnen met with the hard-charging Tea Party activist, he asked Sullivan to stay out of, and get into, certain electoral battles — “help us out, and maybe kill off one or two or three [moderate Republican House lawmakers] that are never going to help” — and in return offered Sullivan media credentials for the news arm of his organization — “If we can make this work, I’ll put your guys on the floor next session.”

During that meeting — a recording of which was released to the public Tuesday — Bonnen seemed to blur the line between the official and the political. It prompted the Texas House General Investigating Committee, which has subpoena power, to request a probe by the state’s elite investigative unit, the Texas Rangers.

With that investigation ongoing and little word from Brazoria County District Attorney Jeri Yenne, who is expected to make the decision on whether to bring a criminal charge, there’s been ample room for speculation — which only escalated after the secret recording was made public Tuesday morning. In Capitol circles, the rule is generally: Don’t offer official tit for political tat. But whether the smudging of those boundaries constitutes criminal activity is a case-by-case consideration, a decision ultimately made by a prosecutor and, if it gets that far, a jury.

“With just the information we know at this time, it’s not clear that a crime was committed,” said Buck Wood, an Austin ethics lawyer who helped rewrite the state’s restrictions in the 1970s after a major political scandal. “But it’s also not clear that a crime wasn’t committed.”

See here for the background. Long story short, while the DPS is still doing its investigation, it seems unlikely that any criminal charges will ever result. The law in question is narrowly tailored to be about personal financial gain, and it would take a pretty broad reading of it to try to get an indictment. Unless there’s new evidence to uncover, I don’t see any danger for the Speaker here.

What about a civil case, though?

Democrats were in court in Travis County Tuesday pressing forward with their lawsuit arguing that Sullivan’s recording revealed serious violations of Texas campaign finance law. The party, along with state Rep. Ana-Maria Ramos, D-Richardson, sued Sullivan in August, demanding the release of the full recording of the meeting.

The lawsuit was also filed against an “unknown political committee” that the lawsuit said includes Bonnen and Burrows. But the two lawmakers are not named defendants. At the hearing, attorney Chad Dunn argued for the Democratic Party that the newly released recording confirms there was discussion in the Capitol about political spending and requested the release of more documents about the meeting.

He said if the judge orders the information released, the party will use those documents to decide if Bonnen and Burrows should also be named as defendants in the lawsuit.

Under Texas election law, a political contribution can’t be made or authorized inside the Capitol. A violation of the law could result in up to a year in jail and a $4,000 fine. In civil court, it could mean having to pay back targeted candidates or opposing PACs. Dunn said the recording contains “a whole lot of authorizing.”

“If we live in a state of laws, there’s not going to be private conversations with the Speaker in the people’s Capitol authorizing illegal political contributions and expenditures,” he said.

Roark said in the August memo to the Texas Rangers that there was no political contribution authorized at the June meeting, so the law was not applicable in this case.

See here for the background. I don’t have enough information to make a reasoned guess about this one. I will say, one thing the next Lege could do is review the existing laws on what constitutes bribery and political contributions, to see if they could be improved. That would never get through Dan Patrick’s Senate, but as was the case with ethics-related bills last session, it would still be worth the effort. Would be more likely to happen with a different Speaker, that much is for sure.

The Bonnen tape is out

It’s a doozy.

During a June conversation at the Texas Capitol, Republican House Speaker Dennis Bonnen urged hardline conservative activist Michael Quinn Sullivan to target members of their own party in the 2020 primaries and suggested he could get Sullivan’s group media access to the House floor, according to a secret recording of the conversation released Tuesday.

Bonnen could also be heard speaking disparagingly about multiple Democrats, calling one House member “vile” and suggesting that another’s “wife’s gonna be really pissed when she learns he’s gay.”

The 64-minute recording of Sullivan’s June meeting with Bonnen and another top House Republican, then-GOP caucus chair Dustin Burrows, was posted on Sullivan’s website and the website of WBAP, a talk radio station in Dallas on which Sullivan appeared Tuesday morning. The recording largely aligned with Sullivan’s initial description of that June 12 meeting — and with what certain Republicans who listened to the audio before it was public had described.

While its release prompted immediate outcry from Democrats and silence from Republicans, Bonnen said in a statement that the audio makes clear he did nothing criminally wrong in the conversation, adding that the “House can finally move on.”

Roughly nine minutes into the recording, after discussing Sullivan’s recent trip to Europe, Bonnen tells Sullivan he’s “trying to win in 2020 in November.”

“Is there any way that for 2020 we sort of say … let’s not spend millions of dollars fighting in primaries when we need to spend millions of dollars trying to win in November,” Bonnen says. “I wanted to see if we could try and figure that out. … If you need some primaries to fight in — I will leave and Dustin will tell you some we’d love if you fought in. Not that you need our permission.”

Roughly five minutes later, the speaker said, “Let me tell you what I can do for you. Real quick, you need to hear what I want to do for you.”

“I don’t need anything,” Sullivan responded.

[…]

Before Bonnen made his offer, he also disparaged a number of House Democrats. The speaker said state Rep. Jon Rosenthal, a Houston Democrat, “makes my skin crawl” and is “a piece of shit.” Bonnen, after saying he’s”begging this is all confidential,” then recounted a meeting with the freshman, after which he asked his chief of staff, Gavin Massingill, what he thought about the new House member.

“Massingill said it best,” Bonnen recalled. “Well, his wife’s gonna be really pissed when she learns he’s gay.”

The room dissolved in laughter before Bonnen turned to discuss other members of the lower chamber’s minority party.

“We’ve got Michelle Beckley, who’s vile,” he said, referring to the freshman Democrat from Carrollton who unseated a Republican in 2018. He exhorted Sullivan to help target these Democrats in competitive districts.

See here for the previous update. I kind of don’t think there’s going to be any “moving on”, except in the sense that no Democrat has any reason to support Bonnen’s re-election as Speaker now. All well and good if Dems take the House in 2020, and still theoretically possible even if they come up a member or two short. Remember, Bonnen was also targeting ten of his fellow Republicans, who may well want to keep their own options open. It’s hard to imagine a Republican in a Republican-majority House backing a Democrat for Speaker, but at this point I think we can all agree that crazier things have happened.

By the way, in regard to those ten targeted Republicans, the Rick Casey theory that they were in Bonnen’s crosshairs because they opposed a bill to ban local government entities from hiring lobbyists sure looks on the money given this quote from the tape: “My goal is for this to be the worst session in the history of the legislature for cities and counties.” Quite the sentiment, no?

Anyway, there’s plenty more out there. The Signal has some clips, the Trib – which is all over this – has choice excerpts, and other outlets like the Chron, the Observer, Texas Monthly, and the Dallas Observer are going to town. If that’s still not enough, go search the #txlege hashtag on Twitter. On a side note, the TDP claimed victory in their lawsuit now that the tape has been released, but there was still a court hearing about it. All that’s left – before the next election, anyway – is for the DPS to finish their investigation. Hope this helps with evidence collection, guys.

Ogg continues to have problems with the bail settlement

I don’t like this.

Kim Ogg

District Attorney Kim Ogg is rallying police officers across Harris County to show up in federal court en masse to oppose to a landmark bail reform agreement at a final hearing set for this month.

She emailed about 100 police chiefs to invite them to attend an Oct. 28 court proceeding before Chief U.S. District Judge Lee Rosenthal to lend support on an issue she says “endangers the public.”

In addition to recruiting top brass to the hearing, Ogg also requested that her lieutenants be present to support her concerns about portions of the settlement that allowed most defendants arrested on minor offenses to await trial at home without posting up-front cash bail, according to her spokesman, Dane Schiller.

Ogg expressed misgivings about the proposed consent decree approved last summer by Commissioners Court after months of intensive meetings between county leaders, judges and the lawyers for the plaintiffs in the 2016 class action.

Ogg, who is not a defendant in the lawsuit, is among a number of parties, including many from the bail bond industry, who submitted concerns about the settlement in court during the summer.

“The district attorney has always supported bail reform, so that nobody is held just because they are poor, but she also says public safety should always be considered,” Schiller said.

[…]

The county public defender, who has been friends with Ogg since law school, said he suspects Ogg’s approach will be perceived as overkill by Rosenthal, the region’s highest ranking lifetime appointee to the federal bench.

“A courtroom full of police officers is not going to intimidate her,” said Harris County Public Defender Alex Bunin. “She might be insulted that they would do that to her.”

“It’s over the top, and this kind of bravado backfires every time,” Bunin added. He said the majority of the concerns Ogg raised were resolved by a judicial rule passed in January.

See here and here for the background. I agree with Alex Bunin here, this is not going to help and will serve as fuel for Ogg’s primary opponents. The fears being expressed are overblown, and frankly it’s fine by me if the county has to experience a little inconvenience to accommodate a non-violent offender who need assistance getting back to court. As I’ve said before, I’d much rather pay for an Uber for that guy than pay to feed, clothe, and house him for some number of weeks or months. Maybe – stay with me here – we could arrest fewer of these non-violent mostly drug offenders in the first place, which would go a long way towards reducing inconvenience for everyone. In the meantime, the bail agreement is in place and it is going to be the law. Let’s all do what we can to make it work.

MQS says he will release the Bonnen tape

Well, well, well.

Hardline conservative activist Michael Quinn Sullivan said Thursday he will release a secret recording of his controversial meeting with House Speaker Dennis Bonnen and another top GOP member next week.

“I have been given the green light to do so by my legal team,” Sullivan wrote in his morning “Texas Minute” email to subscribers. “Later today I will announce that the audio will be released next week.”

Sullivan could share the recording ahead of an already-scheduled House GOP caucus meeting on Oct. 18, which will mark the first official Republican gathering since the head of Empower Texans accused the speaker of planning to politically target members from his own party. That allegation has, for the past couple of months, thrown the 150-member House into turmoil.

[…]

In August, at the request of a House committee, the Texas Rangers Public Integrity Unit launched an investigation to look into the allegations surrounding that June 12 meeting. It’s been unclear when that investigation could wrap up. Earlier this week, the Rangers were hand-delivering letters to House offices at the Capitol requesting members to provide “any testimony, recordings, documents, records, or other information relevant” to the investigation by Oct. 17.

Before then, on Oct. 15, Sullivan is scheduled to appear in a Travis County court as part of a lawsuit spearheaded by the Texas Democratic Party, which has sued over the recording. A couple of days later, the House Republican Caucus will be in Austin for its annual retreat, which was on the books before Sullivan’s allegations first surfaced.

See here for more on that Travis County court action, and here for previous blogging on this saga. It has always been my belief that MQS would release the tape when and if he decided it was better for him to have it out there than to have people continue to speculate about it. I still believe that, and while it’s possible that the court could have forced him to turn it over, that hasn’t happened yet, and he’s not known for walking away from a fight. So we’ll see what this means. The Texas Signal has more.

Here now comes my favorite lawsuit of the year

OMG.

The “lawsuit” was filed on Monday, and the forum in question was last night. The document, which is an ALL CAPS, no punctuation marvel, may or may not have involved an actual attorney; only the first four pages are shown in the tweet, so we don’t know who signed it, or if any supporting items were submitted along with it. Why HPD Chief Art Acevedo, Sheriff Ed Gonzalez, and Precinct 1 Constable Alan Rosen were included as defendants is a question that I at least cannot attempt to answer. I leave it to you to read and admire, for we may never see its like again.

Lawsuit filed against Texas drone law

This ought to be interesting.

By Josh Sorenson, archived on 20 May 2018 at the Wayback Machine, CC0

A federal lawsuit filed Thursday in Austin seeks to strike down Texas laws that restrict what can legally be photographed by drones.

Filed by two journalism organizations and a reporter, the lawsuit argues that a 2013 law places improper limits on news gathering, violating the First Amendment by making it a crime to capture images of private property, or a person on that property, no matter where the drone is flying.

The law bans the use of drones with the “intent to conduct surveillance,” a phrase that is not defined and is vague enough to include most news-gathering activities, allowing for arbitrary and discriminatory enforcement, the lawsuit argued.

“Visual journalists have faced great uncertainty about their permitted use of drones to gather the news in Texas,” forcing some to abandon drones, the least expensive and safest way to capture aerial images of great impact, the lawsuit said.

[…]

Although the law was updated in 2015, 2017 and earlier this year to add exceptions for permissible drone photography — allowing, for example, the professional use by engineers, land surveyors and insurance company employees — similar protections were not extended to journalists, the lawsuit said.

The lawsuit also challenged a provision added in 2015 that bans all drone use below 400 feet above sports venues, prisons and “critical infrastructure facilities,” including oil fields, pipelines, refineries and animal feedlots.

Because Federal Aviation Administration regulations ban drones from flying above 400 feet, “the no-fly provisions function as a near absolute ban on the use of (drones) in these locations,” the lawsuit argued.

Although lawmakers said restricting drone use over critical facilities was an essential safety provision, the lawsuit argued that the law was intended to suppress potentially embarrassing news coverage, such as environmental problems at oil or chemical plants.

“The no-fly provisions inevitably single out journalists for disfavored treatment by prohibiting the use of drones for news-gathering purposes over facilities of public interest, while broadly excepting governmental and commercial uses of (drones) in these same zones,” the lawsuit said.

Here’s a story about the bill’s passage. You can see a copy of the lawsuit here. One example of the law’s effect cited in the story was an effort to document conditions of a facility that houses immigrant children that drew threats from the San Marcos police. Based on what’s presented here, it sounds to me like the plaintiffs have a good case, but we’ll see what the defense from the state looks like. The Dallas Observer has more.

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.

Suing ERCOT

Interesting.

Panda Power built three power plants earlier in this decade, investing billions of dollars based on projections from the state’s grid manager that Texas desperately needed more generation to meet growing electricity demand. But those projections turned out to be wildly wrong — Texas, in fact, had plenty of power — and Panda ended up losing billions of dollars and putting one of the plants into bankruptcy, unable to sell electricity at prices sufficient to cover debts.

The Dallas company is now in court, alleging that the Electric Reliability Council of Texas intentionally manipulated the projections to encourage new power plant construction and relieve the political pressure that was building on the grid manager to increase generation in the state. The case has implications that reach beyond whether Panda gets its money back to issues as profound as the reliability of power grid, the integrity of the wholesale electricity market and the accountability of an organization whose decisions affect thousands of businesses, millions of people and billions of dollars.

The Texas Supreme Court is considering whether ERCOT, a private, nonprofit corporation, is entitled to its sovereign immunity, a well-established legal principle that protects governments and their agencies from lawsuits. The high court’s decision, expected later this year, could determine whether electricity buyers and sellers can hold the grid manager responsible for pricing errors, mistake-ridden forecasts or life-and-death consequences of power outages.

These problems aren’t just hypothetical. After a data error this spring forced electricity buyers to pay millions of dollars more than they should have, ERCOT declined to reprice the power, arguing that such errors are so frequent that continual repricing would disrupt the electricity market.

Case details are here. I have no idea how this may play out, but it’s one of those things that no one is paying attention to that may turn out to be a big deal, so I figured it was worth noting. I’ll keep an eye on it.

Galveston ordered to provide counsel at bail hearings

Sure seems like the proper thing to do.

Add Galveston to the list of Texas counties that have been court ordered to change their bail practices.

A federal district judge on Wednesday issued a temporary injunction in a 2018 lawsuit where attorneys for inmates have called Galveston County’s money bail system discriminatory against poor criminal defendants. The court’s order doesn’t target the entire pretrial system — which has largely changed since the suit was filed after federal rulings against Harris County. But it requires poor arrestees to have a lawyer at their first court appearance, where their bail is set to determine the monetary or other conditions under which an arrestee can be released from jail before trial.

The ACLU of Texas, which represents Galveston County inmates in the lawsuit, said in a statement after the order that it was the first court in the country to conclude that the Sixth Amendment, which guarantees a right to counsel, requires defense attorneys to be provided at initial bail-setting hearings.

“It’s a matter of basic fairness that you should get a lawyer before a judge decides whether to lock you in jail,” said Trisha Trigilio, senior staff attorney for the ACLU of Texas. “Unsurprisingly, without lawyers to advocate for their release, many people wind up in jail who shouldn’t be there. And even a short time in jail can have devastating repercussions on someone’s life.”

[…]

Since the lawsuit was filed — and as the two most populous counties in the state were repeatedly slammed by federal judges for their bail practices — Galveston County has transformed its pretrial practices. The district attorney’s office still recommends bail amounts from a schedule, but the judicial officer setting bail now has financial information the defendant provided before the first court appearance. Defendants who want to request a lower bond amount for financial reasons can get a second bail review hearing, typically within 12 hours of their first court appearance, where a defense attorney is present to represent all the defendants before the judge in that time slot.

U.S. District Judge George Hanks Jr.’s injunction, however, said the county needs to have a lawyer not just at the review hearings, but at the initial court appearance. He clarified that the order applies to those arrested without warrants and that are first seen in court through Galveston County jail. Hanks adopted the recommendation of magistrate judge Andrew Edison, who said having a defense attorney at a hearing where the court determines how, if at all, to release a defendant before trial, is “a no-brainer.”

See here and here for the background. A copy of the ruling is here and a copy of the magistrate’s recommendations is here. I have to say, I don’t know what the argument against providing an attorney for defendants at bail hearings is, but we’ll find out if there’s an appeal. The Chron has more.

The San Antonio Chick-fil-A lawsuit

Oh, good Lord.

In a lawsuit citing a controversial new state law, five area residents are suing the city of San Antonio over its decision to prevent Chick-fil-A — a franchise known for opposing same-sex marriage — from opening a location in the city’s airport.

“The continued religious ban on Chick-fil-A by the San Antonio City Council has by left citizens with no choice but to take this case to court,” Jonathan Saenz, president of Texas Values Action, said Monday at a news conference with the plaintiffs in announcing the lawsuit. “Any other vendor that tries to replace Chick-fil-A at the airport will be doing so under a major cloud of long and costly litigation with the city.”

The lawsuit, which also seeks the city to pay the plaintiffs’ legal fees, calls for an injunction preventing San Antonio from taking adverse action against Chick-Fil-A or others “based wholly or partly on that person or entity’s support for religious organizations that oppose homosexual behavior.”

It cites Senate Bill 1978, a law passed this year in the Texas Legislature, that outlaws government retaliation based on “membership in and support to religious organizations.”

Laura Mayes, chief communications officer for the city of San Antonio, said in an email that the lawsuit “is an attempt by the plaintiffs to improperly use the court to advance their political agenda.”

“Among the many weaknesses in their case, they are trying to rely on a law that did not exist when Council voted on the airport concessions contract,” Mayes said. “We will seek a quick resolution from the Court.”

State Rep. Mary González, D-Clint, chairwoman of the Legislature’s LBGTQ caucus, said in a statement that it is disappointing that SB 1978 has “created the space for discriminatory lawsuits, such as the one against San Antonio” and commended San Antonio City Council for supporting inclusion.

“LGBTQ Texans are routinely denied fair and equal access to education, healthcare, housing, and economic opportunity — that is what the government should be protecting Texans from,” González said.

See here, here, and here for the background. The Current explains how silly this is.

The suit, filed in Bexar County district court, argues that a recent Texas law dubbed the “save Chick-fil-A bill” makes it illegal for the city to bar the fast-food purveyor from the airport. The problem with that, points out St. Mary’s University Law Professor Michael Ariens, is that the law passed after the city’s decision, and courts are almost never willing to retroactively apply statutes.

“I didn’t see any statement in the petition explaining why it is permissible for a court to apply retroactively the statute which serves as the basis for the plaintiffs’ claim,” Ariens said, “And I know the City of San Antonio will raise this as a defense, so I’m not sure what is going on.”

[…]

Also likely dooming the suit is the concept of standing, which requires plaintiffs to show they suffered damages, Ariens said. To that end, the petition only explains that the plaintiffs “use the San Antonio airport for travel and would patronize Chick-fil-A at the airport if it were allowed to operate there.”

Yes. Really.

It’s difficult to imagine any court considering an unmet craving for fried chicken — no matter how tasty — as a legitimate damage.

Yeah, that’s pretty weak, but Chick-fil-A is the golden calf of the zealot faction these days. If nothing else expect there to be a lot of posturing, and it’s only a matter of time before Ken Paxton invents a reason to get involved. This will go on for awhile.

Life after the Voting Rights Act

A good long read from the Trib about where we are with redistricting and what may lie ahead.

Since Congress passed the Voting Rights Act in 1965, Texas has been barred by law from discriminating against voters of color. Yet in every decade since then, federal judges have ruled at least once that the state violated federal protections for voters in redistricting.

Now, as Texas Republicans are facing the possibility of losing their political dominance, the state is gearing up for a new cycle of mapmaking. The House Redistricting Committee [held] the first of more than a dozen hearings Tuesday in advance of what’s expected to be a contentious legislative session in 2021, when new political boundaries will need to be drawn to account for the state’s booming population.

But because of voting rights advocates’ repeated court losses over the past decade, state lawmakers facing an incredibly pivotal and politically fraught moment will instead have much more freedom to set those lines — and the power that comes with them — without any federal government oversight. And once they’re enacted, the voters of color and civil rights groups that have fought the maps in the past may not have the same tools with which to challenge the discrimination that may tarnish them.

“It’s just extremely disappointing as far as they went to sort of kick us down and kick minority voting rights down,” [civil rights attorney Jose] Garza said after the Supreme Court ruling came down.

That was the ruling that upheld the Texas Congressional and legislative maps; the subsequent SCOTUS ruling that batted away partisan redistricting claims was just another ton of dirt on the coffin. It’s very likely that Republicans will pursue maximal advantage through redistricting in 2021, including drawing districts based on Citizen Voting Age Population instead of just population – this is what the Census fight and the Hofeller project were about. The only possible kink in that plan would be a Democratic-majority House, which might force some compromises. Anyway, read the story and brush up on your history, because we’re all going to be living it again soon.

One more step towards the bail lawsuit settlement

We’re almost there. I know it feels like we’ve been there for awhile and are just waiting for it all to become official, but there were still a few checkpoints to get through first, and this is one of them.

In a move that signals she will likely approve a landmark bail agreement, a federal judge in Houston issued a lengthy opinion Thursday meticulously addressing concerns raised by outside parties to the proposed consent decree that would govern bail practices in Harris County for the next seven years.

The 55-page document from Chief U.S. District Judge Lee H. Rosenthal is not the norm in that preliminary approvals at this point in most class action suits usually take up half a page, at most two pages, according to lawyers familiar with typical dockets.

In the opinion, the judge addresses whether the deal was properly negotiated, whether it addressed the needs of all parties and whether the solution was adequate given the potential delays, costs and impact on public safety.

Specifically, she said the plan hit on the key factors required: it addressed the constitutional violations, protected poor defendants, safeguarded the public and reduced the chances that defendants would miss hearings.

While atypical, Rosenthal’s comprehensive memorandum and opinion are in keeping with how the judge runs her office, according to a former law clerk who served in the Houston federal courthouse.

“I’d say this is pretty standard for a judge who is thorough to a fault,” the former clerk said. “It definitely signals ultimate approval, but the point isn’t to telegraph.”

The clerk, who asked to remain anonymous, continued, “It’s simply to respond to the filings in a complete and timely way.”

[…]

Two county commissioners who opposed the resolution — Jack Cagle and Steve Radack — submitted their concerns to the judge along with District Attorney Kim Ogg, the Pasadena police chief and several organizations. The objectors included the Harris County Deputies’ Organization, the Houston Area Police Chiefs Association, the Texas School District Police Chiefs’Association, the Professional Bondsmen of Harris County, Equal Justice Now, Crime Stoppers of Houston, Inc. and the Harris County Domestic Violence Coordinating Council.

The parties directly involved in the case then submitted detailed responses to these amicus or “friend of the court” briefs.

Rosenthal said “the amicus briefs and objections do not identify an adequate basis to deny preliminary approval of the proposed settlement and consent decree.”

See here for the background. Ogg, who continues to talk about the imminent settlement in a way that makes one think she’s asking for trouble in her forthcoming primary election, made a statement about how it’s now all up to the judges to make this work. It’s always been all up to the judges, it’s just that in the past they did a lousy job of that. There’s a “final fairness hearing” set for October 21, and I’m guessing we’ll get the officially signed and sanctioned settlement agreement some time after that. I’m ready for this to be over and done.

The felony judges who abused the bail system

Shame on them all.

Three sitting judges and eight former district judges in Harris County were publicly admonished by the State Commission on Judicial Conduct in response to complaints that for years they violated state law and judicial cannons by ordering hearing officers to deny no-cost bail to thousands of poor defendants.

But the actions this week came too late to affect most jurists’ behavior on the bench. Seven left their district seats last year either because they didn’t run or lost elections. One lost re-election back in 2016.

The misconduct probes of all 11 judges began in February 2018, when the Houston Chronicle obtained copies of memos and notes that showed that for a full decade most of Harris County’s felony court judges had provided different types of written or verbal instructions to the county’s hearing officers to routinely deny no-cash bail to all or most newly-arrested defendants.

The agency’s findings confirm most bans were in effect for years and largely went unnoticed and unchallenged until 2017 when Harris County judges and other officials were civilly sued in federal court for allegedly violating the rights of poor defendants by routinely failing to provide no-cost bail in many misdemeanor as well as felony cases.(The county is now in the process of settling that lawsuit).

In its August disciplinary orders, the commission concluded that through various actions all 11 Harris County district judges willfully violated judicial cannons and also “failed to comply with the law and failed to maintain competence in the law” by instructing hearing officers not to issue personal bonds even though under state law the hearing officers had the authority and duty to do so, the orders say. Under state laws and ethical cannons, the hearing officers are supposed to consider each defendant’s case and circumstances individually.

Let’s be clear here: These judges were found by the State Commission on Judicial Conduct not just to have violated rules of conduct that they are expected to follow, they actually broke the law by systematically denying personal recognizance bonds to poor defendants. This is serious stuff.

You may say “but these are FELONY defendants!” Sure, but it’s still the case that some number of them will never be convicted of a crime. Some of them will agree to a plea deal for a misdemeanor or lesser felony for which the sentence includes no jail time. Some, regardless of how their case gets adjudicated, represent little to no risk to public safety. How big a risk they are to public safety is completely unrelated to how much cash or collateral they can scrape up to buy their way out of jail. Again, Robert Durst got bailed out. There remains a bail lawsuit in Harris County over the practices in the felony courts, and there’s a similar lawsuit in Dallas that’s working its way towards a resolution. Standard practices are going to change, because they have to change.

The judges who were admonished included former longtime Harris County District Judge Michael McSpadden, who retired last year after many years presiding over the 209th District Court. The commission found McSpadden had, like many other longtime judges, issued blanket instructions to deny all personal recognizance or PR bond requests from Nov. 20, 2009 to Feb. 1, 2017. McSpadden had previously written a letter to the Houston Chronicle in March 2018 where he admitted that “it is true I have instructed the magistrates not to grant these bonds in our felony cases to all defendants, never specifying a certain race or gender.”

McSpadden told the Chronicle on Thursday that he stands behind his decision to deny PR bonds even if it violated the law.

“I have great respect for the work of the commission. But I still feel the same way. I, as the elected judge, would like to make the decision on free bonds for accused felons rather than turn those important duties over to the magistrates. And it would take one more day to do this,” he said.

[…]

The three active Harris County District Judges who were admonished were: Hazel Jones, of the 174th District Court, Herb Richie of the 337th District Court and George Powell of the 351st District Court.

Michael McSpadden’s first duty as a judge was to follow the law. He did not do that. I don’t give a crap what his feelings were. He failed to do his job, and I am glad he is no longer on the bench.

I am not happy that three Democratic judges were also found to be doing this. All three are up for election next year, and there are no more Republican judges on the district or county courts for Democrats to aim for. But we can still perform upgrades, and these courts are at the front of the line for that. Democrats with a criminal justice background, an interest in becoming a judge, and a commitment to following the law, should look here first.

(Obligatory copy editing nitpick: A “cannon” is a big gun. A “canon” is a fundamental principle or general rule, and is the thing that these judges violated. Spelling counts, y’all.)

Who gets to perform marriages?

In Texas, the answer to that question is quite limited, and a lawsuit to change that just suffered a legal setback.

Texas couples who hope to marry — and leave religion completely out of it — suffered a setback last week.

A Texas judge ruled on Friday to dismiss a civil suit challenging the state’s long-standing law that says only government officials and clergy can perform marriages in the state.

The Center for Inquiry, a New York-based nonprofit that promotes secular values, filed the suit last year against Dallas County Clerk John Warren. In its complaint — brought on behalf of two Texas members of the nonprofit group who want to officiate weddings — the center charged that the law is unconstitutional because it violates nonreligious Americans’ rights as spelled out in the First and 14th amendments, as well as the establishment clause.

In her decision, U.S. District Judge Jane Boyle conceded that the Texas statute may provide a “benefit to religious groups and their adherents over nonreligious ones” but said no “constitutional rights are violated” by the law.

She wrote that “the state has an interest in … ensuring the respect, solemnity, and gravity of marriage ceremonies” and that the “Statute in this case rationally serves that purpose.” Only judges and religious leaders can “reasonably be expected” to maintain the appropriate ceremonial dignity, Boyle wrote.

The center, which has forced two other states to allow secular officiants through similar lawsuits over the past decade, said it would appeal the ruling. Warren’s office did not respond to a request for comment.

Nicholas Little, the center’s vice president and general counsel, said he was shocked by the judge’s ruling, which he called “ridiculous.”

“What business is it of the state of Texas what the level of solemnity in your marriage ceremony is?” Little asked in an interview. “What if you want to get married by an Elvis impersonator? That’s not the state’s business!”

Many years ago – circa 1991, as best I can recall – I attended the wedding of a friend of mine and her then-boss at the We’ve Only Just Begun Chapel of Love in (of course) Las Vegas. This was, as the proprietors of said chapel took pains to note, including via a document acknowledging such, a 100% legally binding marriage. That didn’t deter my friend or her soon-to-be-legally-wedded-husband, who were in Vegas and thought “hey! we should get married at one of these silly chapels! won’t that be fun!”, because they were a couple of dumbasses. My friend later got another friend, a lawyer who specialized in maritime law, to help her get this marriage annulled. My point here is that the level of solemnity has never had anything to do with how legal a marriage is.

(For the record, we were all in town to attend COMDEX, and the “let’s get married!” idea sprung from having too much free time after the exhibition halls closed. My friend and her boss had traveled in from California, and I had happened to run into them one evening, the evening they decided to do this dumb stunt. My main regret from all this is that I didn’t have a camera.)

“It’s obviously unconstitutional because it gives a benefit to religious groups and denies that same benefit to comparable secular groups,” said Noah Feldman, a Harvard professor of constitutional law. “However — and this is a big ‘however’ — this is also an exemplar of the kind of law that might well survive judicial scrutiny.”

Courts may not want to declare state marriage laws like Texas’s unconstitutional because “it’s such a well-established tradition” and they “don’t want to rock the boat,” Feldman said. Laycock agreed, noting he was “pleasantly surprised” to learn of the center’s lawsuit.

“This hasn’t come up very often before because everyone is so used to it and because it just seemed the natural order of things,” Laycock said.

Little said the center, which began authorizing nonreligious Americans to perform weddings in 2009, wants to “fight this battle now” because the country’s shifting religious demographics demand action. He pointed to statistics suggesting that the United States is increasingly less religious — including in a recent Gallup poll that found the number of Americans belonging to a church, synagogue or mosque hit an all-time low of 50 percent in 2018.

The center plans to file more lawsuits against a range of states in the coming months, Little said.

“There’s this growing number of secular people, of agnostic or atheistic people who follow no particular religion, who want to have their wedding reflect their values,” Little said. “So we’re saying, ‘Hey! Add an extra category of people who can solemnize marriages!’ ”

[…]

That’s another reason Little is determined to advocate for the legalization of secular wedding officiants across the country. He said that there aren’t enough paths for nonreligious men and women to wed in the United States, and that Internet ordination, which is legal in Texas but was recently barred in Tennessee, isn’t a fair alternative. Little called it ludicrous that some nonreligious people must profess false sentiments online to earn a possibly bizarre religious affiliation — all in pursuit of the wedding they want.

That’s another reason Little is determined to advocate for the legalization of secular wedding officiants across the country. He said that there aren’t enough paths for nonreligious men and women to wed in the United States, and that Internet ordination, which is legal in Texas but was recently barred in Tennessee, isn’t a fair alternative. Little called it ludicrous that some nonreligious people must profess false sentiments online to earn a possibly bizarre religious affiliation — all in pursuit of the wedding they want.

Another wedding I once attended was in 1992, in Arizona, in which two dear friends were married by another dear friend, who had written off to some mail-order church in which one could get quickly ordained, for the express purpose of being able to perform this ceremony. This was the opposite of the Vegas wedding in that it was planned and involved many family and friends who came in for the celebration; the happy couple remains wedded to this day. It was the celebrant, who achieved ordination via an outfit that ran ads in the back of magazines and comic books (this was 1992, the Internet wasn’t a thing yet), and was legally empowered by the state of Arizona to join them or any other couple together as husband and wife as a result. The wedding was beautiful and solemn and if you didn’t know any better you’d have had no idea that the celebrant was performing her first (and as far as I know, only) marriage. It’s just that this was not exactly what one would call traditional.

All of this is my typically long-winded way of saying that I support the Center for Inquiry in their quest, and I agree that this ruling was ridiculous and built on an extremely shaky foundation. I wish them well in their appeal and in their other lawsuits on this topic around the country. See here and here for more.

Ogg’s objections

This kind of came out of the blue.

Kim Ogg

Harris County District Attorney Kim Ogg — who has been aligned with bail reformers during an ongoing legal conflict over the disparate treatment of poor defendants — filed a brief Thursday opposing portions of the consent decree governing the misdemeanor bail system, prompting fellow Democrats on the bench to question why Ogg is raising her concerns at the eleventh hour.

Ogg’s amicus brief landed on the docket this week amid a flurry of eight or nine pleadings and letters from individuals and groups opposing the bail agreement, including briefs by Republican Commissioners Steve Radack and Jack Cagle, who both voted against the settlement and have opposed what they consider “bells and whistles” the parties added which they say extend beyond the scope of the lawsuit.

[…]

The district attorney said in her court filing that the bail deal disproportionately favors the convenience of defendants over the needs of victims, witnesses and other stakeholders.

Ogg also expressed concern that the settlement removes the role of the prosecutor in getting defendants to show up for court and sets sanctions for noncompliance with the new bail process without providing clarity about what’s expected from prosecutors.

“It is fundamentally unfair to expose the District Attorney and her employees to federal sanctions for noncompliance with the proposed settlement absent appropriate clarity on her rights and responsibilities under the Proposed Settlement,” it says.

In addition, the DA objected to the “unfettered and unreviewable discretion” allowed to judges to delay or “outright excuse” defendants from appearing in court, which Ogg says violates Texas law.

Judge Darrell Jordan, the presiding jurist on the County Courts at Law, said he and his fellow judges welcome all criticism, but he said Ogg had ample opportunity to give this input while the settlement was being hammered out.

Jordan said Ogg’s office played an essential role in developing rule 9.1, which allows about 85 percent of defendants to be released on no-cash bond.

“Her former First Assistant Tom Berg was a great asset during the entire process,” Jordan said. “Once he left the office Kim Ogg was a ghost.”

“She has not attended any meetings or sent a representative since Mr. Berg’s departure. I have called, texted and emailed the District Attorney and she does not respond,” Jordan continued. “Government cannot function the way it should when there is no communication.”

Jordan said the judges have set an emergency meeting for the misdemeanor judges to review Ogg’s brief “line-by line” and “address all concerns raised by the District Attorney.”

You can read her filing here. I skimmed through it and it seemed more superficial than substantive, but I Am Not A Lawyer so take that for what it’s worth. Alec Karakatsanis, who is a lawyer and in fact represented the plaintiffs, is quoted in the story saying these are “some minor objections that are not significant issues”, so take that for much more than what my comments are worth. They have until Sunday to respond to this and any other brief. Judge Rosenthal will get the final say, presumably some time in September. Grits for Breakfast has more.

We have a new SOS

Yippie.

Still the only voter ID anyone should need

After losing his last chief election officer over a botched review of the state’s voter rolls, Gov. Greg Abbott on Monday appointed a new secretary of state: Ruth Ruggero Hughs.

Ruggero Hughs is moving from the Texas Workforce Commission, which she has chaired since August 2018. She joins the secretary of state’s office nearly three months after Democratic senators blocked the confirmation of her predecessor, David Whitley, who questioned the voter registration of thousands of naturalized citizens.

Whitley resigned on May 27, lacking enough votes in the Texas Senate to keep the job after he oversaw an effort to scour the voter rolls for supposed noncitizens. The review instead threatened the voting rights of tens of thousands of voters of color, landed the state in federal court and prompted a congressional inquiry into voting rights violations.

[…]

Ruggero Hughs is likely to face a challenge in repairing the secretary of state’s relationship with the hundreds of local officials it depends on to run elections. Some county officials have said they’re still waiting for an explanation from the secretary of state’s office on how they got the review so wrong.

I wouldn’t hold my breath on that. Abbott took his sweet time naming a replacement, because he’s Greg Abbott and he does what he wants. Whether Ruggero Hughs winds up being a better SOS than David Whitley was isn’t a high bar to clear, but the real question is whether she’ll be Abbott’s flunky or an honest broker. We’ll have to wait and see, and keep a very close eye on her in the meantime. Because the Lege is not in session, she’ll get to serve until 2021, at which point she’ll need to have won over at least a couple of Dems if she wants to stay in that job. The Chron has more.

HISD has a lawsuit against the TEA over that ethics investigation

I missed the first act of this story, but that’s okay because this is where it gets interesting.

Lawyers for Houston ISD’s school board are seeking to stop the Texas Education Agency from replacing the district’s elected trustees following a state investigation into alleged misconduct, arguing the agency conducted a “one-sided investigation” that reached conclusions “unsupported by any credible evidence.”

In an amended lawsuit filed Friday, lawyers for the nine-member board cite several ways in which agency leaders violated trustees’ rights and failed to fully investigate allegations of wrongdoing. The lawsuit comes two weeks after TEA investigators determined several trustees violated the Texas Open Meetings Act, improperly influenced district contracts and overstepped their governance role — allegations denied by the HISD board’s lawyers.

The 49-page complaint argues that TEA officials were determined from the outset of the inquiry to oust HISD’s school board, failed to fully investigate allegations and incorrectly applied the law to their findings. In addition, the lawsuit alleges the agency is violating federal civil rights laws by only replacing school boards in districts where a majority of residents are people of color.

“TEA intends to punish the district by replacing Houston ISD’s elected board of trustees with an unelected board of managers — a sanction that is unavailable under the law and facts of this case,” David Campbell, a lawyer hired by HISD’s school board, wrote in the complaint.

[…]

TEA officials already had appointed a conservator to oversee the district due to chronically low performance at several campuses. Appointing a state board of managers is considered the next most serious sanction at the agency’s disposal. Morath has not issued a final decision, which likely will come in the next several weeks.

The HISD board’s lawsuit, however, seeks to negate virtually all of the TEA’s findings and stop Morath from replacing the board. Trustees originally filed the suit in June, seeking to preempt possible state sanctions resulting from any finding that board members violated the open meetings law. Friday’s amended petition expands trustees’ defense in response to specific allegations by TEA investigators.

Lawyers for the trustees argue that board members did not violate the Texas Open Meetings Act because they did not meet together as a group of five or talk about replacing Lathan.

“At the time of these discussions, no board members discussed any terms of employment, or any other matters regarding the potential appointment of Dr. Saavedra as interim superintendent,” Campbell wrote.

As noted, this lawsuit is about the results of the ethics investigation. That investigation began in January and expanded to include things beyond the original open meetings complaint. The lawsuit was filed in June, and if there was a story about that I missed it. I’m not going to comment on the merits of this lawsuit or its likelihood to succeed – in addition to Not Being A Lawyer, I haven’t had a chance to read the thing yet – but as noted even if this succeeds then the HISD Board is still not out of the woods because of the accountability ratings. Oh, and yesterday was the filing deadline, and none of the four trustees up for re-election had filed as of the weekend; I don’t know yet who’s in and who’s not, but will have an update on that by tomorrow. Never a dull moment, that’s for sure.

Here come the Rangers

I don’t know where this is going to go, but it sure will be fun getting there.

Rep. Dennis Bonnen

The Texas House General Investigating Committee voted Monday to request that the Texas Rangers look into allegations against House Speaker Dennis Bonnen and one of his top lieutenants in the lower chamber.

The committee vote, which was unanimous, followed roughly an hour of closed-door deliberations among the five House members who serve on the panel. At issue is whether Bonnen, an Angleton Republican, and state Rep. Dustin Burrows, R-Lubbock, offered hardline conservative activist Michael Quinn Sullivan media credentials for his organization in exchange for politically targeting a list of fellow GOP members in the 2020 primaries.

[…]

State Rep. Morgan Meyer, a Dallas Republican who chairs the House committee, said Monday that the Texas Ranger’s Public Integrity Unit “will conduct an investigation into the facts and circumstances surrounding” that meeting between Sullivan, Bonnen and Burrows. Meyer also requested that the Texas Rangers provide a copy of its final investigative report to the committee at the end of its investigation.

See here for the background. What might happen next could get complicated.

Aside from the quid pro quo aspect of the scandal, exchanging money in the Capitol or directing expenditures from a Capitol office has been a Class A misdemeanor ever since the Legislature reacted to a 1989 public outcry over the late chicken producer Lonnie “Bo” Pilgrim handing out $10,000 checks to nine senators in the Senate chamber during a hearing on workers compensation reform.

Besides the issue of whether there was bribery involved, there are also potential election law crimes, including not disclosing the source of campaign contributions directed by Bonnen. The Texas Democratic Party filed a lawsuit against Sullivan on Thursday, alleging nine different potential criminal violations of the Texas Election Code, each a Class A misdemeanor. The lawsuit seeks to preserve evidence and damages of $100,000.

Given the potential for criminal wrongdoing, what happens next?

First, consider the dramatic changes that the Texas Legislature made to how public corruption cases are handled in Texas. Under a state law passed in 2015, the Travis County public integrity unit no longer has jurisdiction over elected officials at the Capitol. Potential criminal cases must be investigated first by the Texas Rangers. As of Thursday, the Rangers had not been asked to investigate the Bonnen/Sullivan controversy, nor had they initiated an investigation on their own, according to a Texas Department of Public Safety spokesperson.

If the Rangers do investigate and decide further action is warranted, the case is referred to the home county of the public official. That means any corruption charges against Bonnen would have to be brought by the Brazoria County DA. For Burrows, it would be the Lubbock County DA. Travis County would retain jurisdiction only over Sullivan. In cases of multiple jurisdiction, the Texas attorney general’s office can take charge.

Funnily enough, Attorney General Ken Paxton is under indictment on securities fraud charges in his home territory of Collin County. Paxton is accused of failing to register as a securities agent as part of his private law practice. He claims he is innocent and that the case is politically motivated. Paxton counts among his allies the funders of Empower Texans. (The plot always seems to thicken in this scandal.)

You know what this would mean: Special prosecutors would be needed. Nothing could possibly go wrong with that approach. It’s almost as if abolishing the prosecutorial power of the Public Integrity Unit was a bad idea with all kinds of potentially unwanted consequences. We are getting way ahead of ourselves here, so let’s reel it in a bit and say we can’t wait to see what happens next. Ross Ramsey has more.

Lawsuit filed over mail ballot practices

We haven’t had a good voting rights lawsuit in a few months.

In a federal lawsuit filed Wednesday in San Antonio, [two] voters — George Richardson of Brazos County and Rosalie Weisfeld of McAllen — alleged that the state law that allows “untrained local election officials to arbitrarily and subjectively” reject mail-in ballots based on mismatching signatures violates the Fourteenth Amendment, the Americans with Disabilities Act and the Rehabilitation Act of 1973.

Joined by groups that represent Texans with disabilities, veterans and young voters, they are asking a federal judge to either block election officials from rejecting mail-in ballots over signature doubts or require Texas to notify voters about an alleged mismatch in time for them to “cure” their ballot.

“Even though Texas’ mail in-ballot process should make voting easier for voters from these underrepresented groups, the current flawed process leads to the unlawful disenfranchisement of these Texas voters,” the lawsuit says.

Like other states, Texas offers voting by mail to various kinds of voters — people with disabilities, Texans who are 65 and older, voters who will be outside of the county during an election, such as college students, and those in jail during an election.

Before they are counted, a committee of local election officials reviews mail-in ballots to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.

But because the state election code does not establish any standards for review, the plaintiffs argued that law is applied unequally with each county “necessarily” developing “its own idiosyncratic, arbitrary, and ad hoc procedure to determine that a ballot should be rejected” with no requirement to notify voters about the rejections until 10 days after Election Day.

The lawsuit claims at least 1,873 mail-in ballots were rejected on the basis of mismatched signatures during the 2018 general election; at least 1,567 were rejected in 2016.

See here for the TCRP press release, which contains a link to the lawsuit and a video explaining things. Ideally, this should lead to a settlement. Both parties make use of mail ballots, so it’s not a partisan issue the way voter ID is. And objectively, the standard being applied, such as it is, is ridiculously arbitrary. I can tell you that my signature has changed over the years, from something that was readable as my full name to a basically meaningless scrawl. I noticed it as it was happening, but it happened anyway. I doubt I could replicate one of my older signatures even if I tried. It’s still my hand scrawling it, and it makes no sense that some bureaucrat could decide that it didn’t represent me. I don’t think Ken Paxton’s office knows how to settle lawsuits like this, though, so I expect it to be fought out in the courts. I’ll be keeping an eye on it.

TDP sues over Bonnen-MQS secret meeting

Here’s an interesting turn.

Rep. Dennis Bonnen

The Texas Democratic Party is suing House Speaker Dennis Bonnen and conservative activist Michael Quinn Sullivan, alleging they created an unregistered political action committee and violated other state election laws.

The lawsuit, filed in Travis County District Court on Thursday, stems from a June 12 meeting Sullivan had with Bonnen and Republican Caucus Chairman Dustin Burrows in Bonnen’s Capitol office. In the meeting, Sullivan has said, Bonnen and Burrows offered to give writers at his website, Texas Scorecard, House media credentials in the next legislative session in exchange for Sullivan’s political group targeting 10 Republican incumbents in next year’s primary elections. Sullivan said he rebuffed the offer.

But Democrats allege that meeting and any agreements reached in it show a coordinated effort “between political actors intended to influence the election or defeat of specific candidates” and amounts to an unregistered political committee as defined by state law.

The Democrats also allege that Bonnen and Burrows directed Sullivan to make political contributions or expenditures at their request under his political action committee, Empower Texans, which is illegal under Texas campaign finance law. They further claim that the alleged quid pro quo Bonnen offered Sullivan of public benefits in return for targeting elected officials amounts to a violation of state law.

The complaint says any contribution proposed at the meeting violated state law because it was made in the Capitol and during the Legislature’s fundraising moratorium.

[…]

As part of their lawsuit, the Democrats request that Sullivan produce the entire recording of the June meeting and any other recordings Sullivan has of Bonnen and Burrows. The Democrats also ask Sullivan to produce a list of all the people who have listened to the June recording and any documentation relevant to that meeting.

Ramos, a Richardson Democrat, is a plaintiff in the case because the Democratic Party says she “is one of the candidates mentioned in this recording as a target of the coordinated political efforts between the Speaker and Sullivan.” It is unclear whether she was named as a target, though multiple people who have heard the recording confirm Bonnen called her “awful.”

“Texans deserve to know exactly what happened on June 12, 2019 and they deserve accountability from their elected officials,” Ramos said in a prepared statement. “There needs to be accountability for any violations of ethics or the law that occurred during a meeting between a Republican activist and the Speaker of the House.”

You can see the TDP press release here, and a copy of the lawsuit here. We know about the tape. There’s no argument I can see for keeping it secret, though I’m sure MQS will come up with something. The Texas House General Investigating Committee investigation may also serve as a way to get the tape released, though I’d put more faith in the courts to serve as a fulcrum if it comes to that. One caveat about the House investigation:

But the actions of the committee – which can issue subpoenas, hire outside investigators or tap the state’s existing criminal investigative capability, such as the Texas Rangers – may complicate matters.

Under state law, a person testifying about incriminating behavior before the Legislature may not be prosecuted or indicted for any actions about which they truthfully testify, potentially giving Bonnen, Burrows and Sullivan immunity in any further legal actions if they testify before the committee.

If we didn’t have complications, we wouldn’t have anything. That said, MQS will not be able to delete the recording while the litigation is active, either, so we’ve got that going for us. Juanita and the Trib have more.

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.

Mediation fails again

Not really a surprise.

A third round of mediation between Mayor Sylvester Turner and the Houston firefighters union concluded in an apparent impasse Thursday afternoon, ending another attempt to resolve the long-running contract dispute and sending a lawsuit over the matter back to a state appellate court.

The mediation session, ordered by Texas’ 14th Court of Appeals, ended around 2 p.m. at the office of the Baker Botts law firm. After leaving the meeting, Houston Professional Fire Fighters Association President Marty Lancton said city officials “walked” and “absolutely decided they were not going to continue” the session.

“It was crystal clear to myself and to our team that this mayor was not interested in resolving this,” Lancton said. “This is a game of politics by this mayor trying to get past the election.”

See here for the background. This I think sums up the situation well:

The story says that the 14th Court of Appeals will likely not render a verdict until after the election. And let’s be clear, if this election was illegal as the lower court ruled, then there really isn’t much basis for mediation. The city’s position can and should be that any negotiations should be done in the context of the normal collective bargaining process, as the firefighters have been operating without a new agreement for a couple of years now. The firefighters have a good argument that some form of pay parity should be the goal of those negotiations, since the people did vote in favor of Prop B. Unless the 14th Court eventually decides that the lower court ruling was wrong, I’m honestly not sure what else there is to talk about at this point.

UPDATE: Here’s the longer version of the Chron story.

Commissioners Court approves bail lawsuit settlement

Excellent.

Harris County Commissioners Court approved a historic settlement Tuesday fixing a bail system a federal judge found unconstitutional and ushering in a new era for criminal justice in one of the nation’s largest metropolitan areas.

The deal resulted from months of intensive negotiations between the county and lawyers for indigent misdemeanor defendants who sued over a two-tiered system that jailed people prior to trial if they couldn’t pay up front cash bail but allowed people with similar backgrounds and charges to resume their lives and await trial at home.

“This was the result of careful negotiation,” County Judge Lina Hidalgo said just before the commissioner’s voted 3-2 to approve the deal.

The vote split along party lines. Commissioners Jack Cagle and Steve Radack, the only Republicans now on the the commissioners court, voted against it.

The settlement agreement — which still must be approved by a federal judge — installs a monitor to oversee the new bail protocol for seven years. It provides comprehensive public defense services and safeguards to help ensure defendants show up for court. It will allow about 85 percent of people arrested on misdemeanors to avoid pretrial detention. The settlement also calls for transparent data collection, which will allow the county to keep better track of what’s working and what isn’t.

You know the background, so see here for the previous update. I can only wonder what would have happened in a world where Democrats swept the judicial races but failed to win those two seats on Commissioners Court. I feel pretty confident saying that as of July 30 in that alternate universe, there would not be an agreement in place. Elections, they do have consequences. Congratulations one and all for getting this done.

Final bail settlement reached

We are coming to the end of a very long road.

A long-awaited settlement in Harris County’s historic bail lawsuit won tentative approval Friday from all parties, setting up a possible end to a contentious system that kept poor people behind bars on low-level charges while those with money could walk free.

The agreement — if approved by a federal judge and county officials — would formally adopt the judge’s findings and modernize the way local officials handle bail hearings for the steady stream of people arrested every day on misdemeanors.

Key reforms in the lengthy consent decree include revised judicial protocol, access to more public defense services, open court hours for defendants to clear or prevent warrants, as well as text reminders about hearings and a bail education program for officials and the public. The county will have a court-appointed monitor for seven years to oversee implementation.

The county also would agree to pay about $4.7 million in legal costs for the plaintiffs, on top of the $9.1 million already spent to contest the lawsuit. An additional $2.1 million in legal fees has been waived by the Susman Godfrey firm.

Commissioner Rodney Ellis, who has championed bail and criminal justice reform for decades, called the agreement one of the highlights of his career.

“It’s a major civil rights victory that will have national implications,” Ellis said. “This fixes a broken system that has traditionally punished people based on how much money they have before they are convicted of a crime.”

The deal could provide a road map for other jurisdictions around the country to rethink their bail systems amid widespread overcrowding and a nationwide push for criminal justice reform.

Commissioners Court is set to vote Tuesday on the proposed deal. Chief U.S. District Judge Lee H. Rosenthal could then consider approving it after a hearing Aug. 21.

See here for some background. I got a press release from the Texas Organizing Project on Thursday about this, so I’ve been eagerly awaiting the news story. I can predict with confidence that Commissioners Court will approve this by a 3-2 margin. Elections have consequences. Kudos to everyone who worked hard to make this happen.

No bail in

No surprise, I’m afraid.

Texas won’t have to seek federal approval when state lawmakers draw new election maps in two years, a three-judge panel in San Antonio decided Wednesday. The judges, however, cautioned Texas that its next process will “undoubtedly” be subject to judicial scrutiny.

“Texas would be well advised to conduct its redistricting process openly,” U.S. District Judge Xavier Rodriguez wrote in the 27-page opinion.

The decision is a blow to civil rights groups that had asked for Texas to again face federal oversight, known as preclearance, following a years-long legal battle over Texas political maps drawn after the 2010 census, which federal courts have found intentionally discriminated against minority voters.

The plaintiffs have yet to decide what they will do next, said Jose Garza, lead counsel for the Mexican American Legislative Caucus. Garza noted the decision’s “strong language.”

“If you read the opinion in its entirety, the state doesn’t come up smelling very well,” he said.

See here, here, and here for the background, and here for a copy of the ruling. This doesn’t foreclose future litigation against the sure-to-be rigged maps the 2021 Lege will come up with – and if not them thanks to Democratic control of the House, the Legislative Redistricting Board – but it’s one less tool in the bag. The simple fact remains that Dems are going to have to win some elections while fighting uphill, and then once they have sufficient control of state government taking whatever steps are necessary to fix this. And if some time during the next decade we wake up in a world where Dems do have control of both chambers and the Governor’s office, redrawing all the maps a la 2003 would be a high priority in the subsequent session. Rick Hasen, the DMN, the Trib, and ThinkProgress have more.