Supreme Court

First the voters will vote, then as needed the lawsuits will happen.

The Texas Supreme Court ruled Friday that any legal challenges to a proposed charter amendment on policing reforms must wait until after voters weigh in on the measure in the May municipal election.

While the court did not expressly deny the idea that the charter amendment could violate a state law prohibiting multi-subject charter amendments, Justice Jane Bland wrote that “voters injured by an election irregularity have remedies to address their injury after the election.”

The proposal brought forth by Act 4 SA and other progressive groups seeks to decriminalize marijuana and abortion, ban police chokeholds and no-knock warrants, expand the city’s cite-and-release program for nonviolent, low-level offenders, and create a city justice director to oversee the implementation of those changes.

The measure will be on the May 6 ballot as Proposition A.

Bland also suggested that an effort by three Northside councilmen to skip the City Council vote approving the measure for the ballot could have an impact on its future. Manny Pelaez (D8), John Courage (D9) and Clayton Perry (D10) left the dais shortly before the pro forma vote in February, viewing the measure as unenforceable.

“Sufficient post-election remedies exist that permit the voter to challenge any infirmity in the proposed amendment and its placement on the ballot — after the voters have had their say,” Bland wrote.

[…]

Council approved the ballot 7-0 in the absence of the three council members.

That move triggered a second challenge from TAL’s lawyers, which petitioned the court to remove the charter amendment from the May ballot on the grounds that the San Antonio City Charter prescribes a 10-day delay for ordinances that pass with fewer than eight votes to go into effect. That deadline was Feb. 17, a day after the council vote.

“Our role is to facilitate elections, not to stymie them, and to review the consequences of those elections as the Legislature prescribes,” Bland wrote. “We can readily do so in this instance through a post-election challenge.”

A dissenting opinion from Justice Evan Young pointed to the decision of the three councilmen who were absent from the vote as a pivotal move.

“None of the Court’s stated reasons apply here because they all depend on the same mistaken premise: the existence of a lawfully ordered special election,” Young wrote.

Young noted that in order to hold a special election, a city council must order it at least 78 days beforehand.

“The city council clearly failed to follow that binding legal requirement here,” wrote Young, who was joined by Justices John Devine and Jimmy Blacklock.

In a written response to TAL’s petition, outside lawyers for the San Antonio City Council argued that the city’s 10-day delay doesn’t apply to putting the Justice Charter on the ballot because Texas Election Code supersedes the city’s authority on the matter. The election code doesn’t stipulate the margin by which measures setting an election must be approved, the lawyers wrote.

See here and here for the background. I believe this was the correct ruling, and I agree with Justice Bland’s reasoning. I also think this proposition will face some significant legal headwinds if it does pass, but that’s a fight for another day. Until then, we’ll see how it goes in May. The Current has more.

So now we start processing what happened and what will happen with the TEA takeover

Mar 17th, 2023

by Charles Kuffner.

2 comments

The Chron editorial board points to three key items.

Still, if this takeover must happen — and Texas Education Agency announced Wednesday that it is indeed happening — we want it to work. Houston’s schoolchildren don’t have time for another failure. There’s no re-do for high school; these are precious years that even the most cynical politician shouldn’t endeavor to squander. Hear us on that, Governor Abbott.

Our skepticism and worry for the schoolchildren in the path of this takeover are tempered by other things: curiosity about how this experiment will work and even a glimmer of hope about what it could accomplish if TEA’s commissioner, Mike Morath, keeps his word to put kids first.

It won’t stand a chance, though, if there’s not some measure of buy-in from kids, parents and the greater Houston community. Right now, there seems to be largely outrage and fear. Trust, if it comes at all, will require transparency and integrity from Morath and the district’s new leaders.

So, how will we know if this takeover is really about improving schools and the future of Houston’s schoolchildren? Three things:

Leadership: Who will lead the district?
Morath said the next superintendent to lead the 187,000-student district would be appointed in the summer but the name of the person is less important than his or her qualifications and character. Ideally the person would have knowledge of Houston or at least Texas. Most important, though, is experience running a large district and overseeing a successful turnaround. The next HISD leader should be reform-minded but not for reform’s sake. Morath has acknowledged that much is working well in the state’s largest district and many kids are “flourishing,” as he told The Houston Landing’s Jacob Carpenter. The next leader should build on that and endeavor to scale it up across the district so that more kids can know the rigor and high expectations of a Carnegie Vanguard High School, the expertise of a Michael E. DeBakey High School for Health Professions and the inspiration of a Kinder High School for the Performing and Visual Arts.

As for the board of managers expected to replace HISD’s elected board of trustees in June, we implore Abbott to keep the cronies to a minimum. The state should appoint a good mix of educators, parents, business leaders – all of them ideally from the Houston area. They should have a stake in the results but be free of conflicts that could compromise their judgement. We’re glad to see that Morath, in his interview with The Landing, encouraged “people of integrity and wisdom” who are “interested in supporting kids, who truly love kids” to apply “soon” at the TEA website for positions on the board. When this takeover was initially announced in 2019, a diverse group of nearly 250 people applied to serve on the board of mangers and some underwent training. In the three years since, the process was paused by lawsuits. TEA is beginning anew, but not from scratch, given the pool of volunteers who have raised their hands to help.

Strategy: Is the plan based on evidence or politics?
We know what works in education, and no, it’s not merely more money, smaller class sizes or even parental involvement. Those things can help but only in certain contexts, as Amanda Ripley wrote in her 2013 bestseller The Smartest Kids in the World: and how they got that way. Generally, the ingredients to quality public education, according to research, are higher standards, better trained, supported and paid teachers to implement the higher standards, plus accountability to ensure that they do. The state, via the new leaders chosen, will have the space to innovate and perhaps make bold decisions that would normally be politically unpopular if an elected board were still calling the shots. But the guiding star must be best practices. What has truly been proven to work, not just in this country, but in other nations where student performance far outpaces our own.

[…]

End game: This takeover should lead to reform, not purgatory.
There’s a reason “independent” appears in the names of districts across this state. We believe, as do many Texans, that local public school should be run locally, by elected leaders accountable to the public. The TEA must outline a clear plan of action and a timeline to get the work done promptly. Morath told The Landing that he doesn’t expect state control over HISD to last longer than the typical two to six years. But how will we know when the problems that triggered this takeover are solved? It should be clear to all based on clearly defined standards and benchmarks that TEA sets for gauging success. The state agency has already articulated some of these: no campus should receive a D or F state rating for multiple years, the district’s special education program must comply with federal and state requirements, and, more generally, more time during school board meetings should be devoted to discussing student outcomes versus discussing administrative factors, the Chronicle reported. More specificity is needed but these terms seem relatively modest and doable.

I think we’ll know a lot from the announcement of the Board of Managers, and from the naming of a Superintendent. As I noted yesterday, three current Board members, all elected since that initial round of recruitment, were on that list of 243 names. We could get some decent selections, or we could get a bunch of hacks and cronies. The same is true for the Superintendent, and while Mike Morath says he’s bound by the law to pick someone, I don’t see why he can’t name Superintendent House as his choice. We’re in uncharted territory, if you really want to do what’s best then do the obvious here.

The other two items will flow from the first. A decent Board will want to follow best practices and implement genuine improvements – and here I will say that I’d like to hear what that Board ought to do that wasn’t already at least being discussed by this Board – and want to get out in a timely fashion. The first of these should again be clear to us from the beginning, the second may take time to become clear, though having clear objectives and metrics to determine them up front will help a lot. The less we hear from Greg Abbott and the usual crowd of enablers the better. I do actually think Mike Morath wants this to work, if only for his own legacy, and the best way for that to happen is for him to be more or less left alone by Abbott. Like I said, go put your own name forward for this Board if you can. Let’s put that first principle to the test now.

And keep up the pressure wherever you can.

With the news today of the Texas Education Agency taking over Houston Independent School District, Democrats in the Texas House warned that Houston ISD was set up to fail through a lack of funding and state support and that it could be the precursor to other state takeover attempts of districts around the state for political reasons.

“When it comes to TEA, you can’t be the arsonist and the firefighter,” said Rep. Trey Martinez Fischer, a San Antonio Democrat and chair of the House Democratic Caucus.

Democrats argued during a Wednesday afternoon press conference that school funding in Texas has lagged behind inflation for years, that teachers are paid so poorly they’re leaving the profession in droves and that retired educators are languishing in poverty because of the lack of inflation adjustments to their benefits over the last several decades.

The underfunding has brought huge challenges for schools, especially those in large school districts like Houston ISD where there are many children from lower-income families, they said.

They pitched a plethora of fixes, including increasing the basic per-student funding number by far more than Republicans have proposed, shifting the funding model from one based on attendance to one based on enrollment and giving retired teachers significant benefit bumps.

Although Democrats are the minority party in both the House and the Senate, Martinez Fischer said he believes the House will need to vote on certain measures that require 100 votes to pass.

Since Republicans don’t have enough votes to do that on their own, he thinks he has leverage to press for some priorities — with investment in public education “at the top” of that list.

One bill they said they hoped to win bipartisan support for was brought by Rep. Alma Allen, a Houston Democrat and vice chair of the House Public Education Committee. It would give the TEA the option to decide against the takeover of school districts, as is happening now with Houston ISD. The agency says its hands are tied legally, and it must move forward with the takeover.

As we have discussed, there’s not much that can be done about the current situation other than holding Morath and the TEA and the future Board of Managers to the promises that have been made about what the goals are of this whole thing, but using whatever leverage Dems have to pass the takeover modification bills is a good use of their time. At least we can try to prevent this from happening again. The Trib and the Texas Signal have more, as do Stace, who fears that any good people on the Board of Managers will be tainted by the bad things it is likely to do, and Campos, who encourages “good, smart, and decent folks to sign up”, have more.

Appealing the injunction that halted DFPS investigations of trans kids’ families

Mar 17th, 2023

by Charles Kuffner.

No comments yet

Just keeping you informed.

Attorney General Ken Paxton, in an appeal, is asking the courts to lift an injunction that stopped the state from conducting child abuse investigations over transition-related medical care for transgender youth. Paxton argued that the families — belonging to PFLAG, an LGBTQ advocacy group — did not suffer injuries as a result of the Department of Family and Protective Services’ investigations.

A June lawsuit against the state, filed by the American Civil Liberties Union and Lambda Legal representing the families of transgender youth, resulted in a temporary injunction which paused the DFPS investigations, ordered by Gov. Greg Abbott earlier last year.

Paxton filed the brief on Friday in response to the plaintiffs’ request that the injunction be upheld in January. In his reply, Paxton sought to overturn that court-order injunction issued in September.

The 3rd Court of Appeals will determine if the injunction will hold up, either by hearing from both sides in oral arguments or simply ruling on the briefs filed. Until then, the injunctive relief will remain in place, according to Karen Loewy, senior counsel and director of constitutional law practice for Lambda Legal.

“There was nothing new about the State’s arguments at all, and thus far, they’ve been rejected by every court that has heard them,” Loewy said in an email.

If the court sides with Paxton, it’s not clear if the DFPS investigations of parents of trans kids would resume. The agency declined to comment on the litigation.

[…]

Paxton said the families have not experienced specific injuries stemming from these investigations, arguing that parents have not lost custody of their children as a result of the investigation and therefore that claim has no standing.

“Thus, [families] have not been injured and their suit is not ripe until their injury is imminent or has already occurred,” Paxton wrote in his appeal.

PFLAG asserted that the state interfered with their parental rights, which are guaranteed in the Texas Constitution. Abbott’s directive ordering DFPS to investigate families has instilled fear in LGBTQ youth who are afraid the state will separate them from their parents. Abbott’s order even forced one family to flee the state.

Paxton also said that PFLAG, which has 600 members, shouldn’t be allowed to stand in for families who could be investigated for child abuse. He said the individual families must participate in the lawsuit in order to provide evidence of injury by the particular investigations directed by Abbott.

See here for the background. I don’t even have the words to respond to the claim that the targeted families have not “experienced specific injuries” from these investigations or the threat of them; that the argument is being made by the guy who fled from a process server because he “feared for his safety” just adds to the mind-melting gall of it. This will make it to the Supreme Court, assuming that one of the many anti-trans bills currently polluting the Lege doesn’t make it all moot. Anyway, there’s your update.

The TEA takeover has begun

Mar 16th, 2023

by Charles Kuffner.

3 comments

At least the suspense is over. That’s the extent of my optimism about this.

State education leaders notified the Houston Independent School District on Wednesday that they are resuming the process of stripping all power from the district’s elected school board and giving it to a soon-to-be appointed governance group – a long-anticipated move that faces strong opposition from many Houston-area politicians, educators and families.

The announcement, which largely stems from a state law mandating sanctions against districts with chronically low-rated campuses, follows a Texas Supreme Court ruling in January that lifted a temporary injunction blocking the elected board’s ouster. It now sets the stage for the largest state takeover of a public school district in modern American history, while also throwing the future of HISD into further doubt after years of board dysfunction and leadership upheaval.

“In each of these cases, we have to look at what is in the best interest of students and what are the root causes that require state intervention in the first place,” Texas Education Commissioner Mike Morath said. “In this particular case, it’s about the leadership at the top. Making sure that we have a school board that is focused on ensuring that all kids in Houston, not just some kids in Houston, have access to great schools.”

The replacement governance team, known as a board of managers, will assume responsibility for setting HISD’s budget and districtwide policies, among other tasks. State leaders have not announced who will serve on the board of managers, though Morath told the Houston Landing this week that he expects to name replacements and transfer control to them no earlier than June 1.

Morath also confirmed that he plans to replace HISD Superintendent Millard House II – an authority given to him when appointing a board of managers – with a yet-to-be-named district leader once the replacement board takes power.

Boards of managers in Texas historically have held power for roughly two to five years before transferring authority back to elected trustees. Morath said he sees no reason to expect the HISD board of managers’ reign would extend beyond that range.

The state’s planned takeover is primarily tied to a state law passed in 2015 with bipartisan support. The law mandates one of two sanctions – the appointment of a board of managers or closure of low-rated campuses – in any district with a school that fails to meet state academic standards for five straight years. HISD’s Wheatley High School triggered that law in 2019 when it received its seventh consecutive failing grade.

In moving to replace HISD’s elected board, Morath has also cited the prolonged presence of a state-appointed conservator in the district and a state investigation that found multiple instances of trustee misconduct, such as violations of Texas’ open meetings laws and improper attempts to steer vendor contracts. Morath has the legal authority to install a board of managers on both fronts – though he’s not required to do so.

[…]

Morath said state officials will soon reboot their process for identifying replacement board members, an undertaking they began in late 2019 before the issuance of a court injunction. He reiterated a commitment to appointing a replacement board composed of HISD residents, and added that he would “prefer people who do not have ideological blinders, one way or the other.”

“They need to come in with wisdom and eyes wide open and make decisions in a very complex environment that are in the best interest of kids,” Morath said. “And this requires people that can think very, very clearly. That have an understanding of creating a culture of servant leadership and systems leadership. There’s not any specific agenda other than what is in the best interest of kids that we want to see pursued.”

However, hundreds of attendees at several recent protests opposing the takeover have voiced fears about Abbott’s education commissioner appointing managers who will push for charter school expansion and other policies favored by Republicans.

“Ultimately, I am really confused about what the end game is for Morath and Abbott,” state Rep. Gene Wu, D-Houston, said earlier this month. “If your objective is to make sure schools are run correctly, this is not the right way to do it. The takeover of school districts in the past, in my experience, have been school districts that are completely dysfunctional.”

Ultimately, the appointed board will have some incentive to implement policies that curry favor with local residents. If the board of managers defies the popular consensus in HISD on major issues, the elected board could immediately reverse those decisions upon retaking power in the coming years – a scenario that would cause even more disruption in a district craving stability. Morath said he expects the replacement board to remain engaged with HISD residents, leaders and trustees.

Elected board members will retain their seats, though they will not hold any power. Board elections will continue uninterrupted, with four races still scheduled for November.

“We don’t know who’s going to be on the board of managers, what connections they will have to the community, so I’ll be making sure they have somebody letting them know what the community wants and playing an advisory role,” HISD Board President Dani Hernandez said.

Much of this article is taken from their interview with Morath. Heck of a scoop, I guess. We did have some indications of this late on Tuesday, as there were takeover docs briefly posted on the TEA’s website; they were later removed from view as this was apparently jumping the gun.

The Chron story on those prematurely-released documents also included a link to the list of people who had applied for the Board of Managers in 2019, which was the last time we went through this exercise, before the HISD litigation put it all on hold for what turned out to be three years. Of interest, and as a reminder that there’s been quite a bit of turnover on the HISD Board since then, three of those applicants are now incumbent Trustees: Patricia Allen, Kathy Blueford-Daniels, and Judith Cruz. Current HCDE Trustee Amy Hinojosa is in there as well. I recognize some other former candidates, and a parent of some former classmates of my daughters. I wonder if Morath had any favorites from that list, if there’s anyone that the TEA will encourage to apply again. Be that as it may, I’d say anyone who’s mad about this ought to apply to be on the Board themselves. May as well make sure there are at least a few people we can trust in the process.

On a related note, here’s another story about how state takeovers of school districts usually don’t accomplish anything worthwhile, not just in Texas but around the country.

From Massachusetts to Mississippi and California to Kentucky, state officials in recent decades have increasingly responded to school districts struggling with poor academics or financial woes by usurping local control and pledging to turn around the schools.

But these state takeovers, according to a recent study, are mostly ineffective.

“The best evidence we have shows that takeovers don’t often achieve their intended results, don’t improve student achievement and don’t yield better outcomes for kids,” said Josh McGee, an economist at the University of Arkansas. “There are cases where we have seen improvement — but those are few and far between.”

McGee, associate director for the university’s education policy office, was referencing a 2021 study conducted by Beth Schueler from the University of Virginia and Joshua Bleiberg at Brown University. In the first cross-state comparison of its kind, the researchers examined all state takeovers from 2011 to 2016 and, on average, found “no evidence that takeover generates academic benefits.”

The study shows varying results among districts across the country. In general, state takeovers are far from uniform since officials making different policy choices within different contexts. Research shows that some schools appear to have benefited from takeovers while others have tanked.

The TL;dr of this is that the situations in which state takeovers tended to do best are those with school districts that are well below standards. HISD, with its overall B rating and 94 percent of schools rated C or better, does not meet that criteria. The main issues with schools that perform poorly are poverty and other socioeconomic factors, which are best dealt with via greater resources. I’m sure you can surmise what the odds of that are with HISD. Beyond that, and again stop me if you’ve heard this before, most state education departments don’t have the experience or the tools to make a difference. The best you can say is that they don’t really do any damage while they’re in charge.

We’re in uncharted territory here. I encourage you to read that Houston Landing interview with Mike Morath, and their FAQ about what it means. Whatever else I might say, he just doesn’t sound like he’s thrilled to be in this position. I don’t know if that means anything, but it was my impression. The takeover happens in June. In the meantime, apply to be on the Board, make a pledge to hold that Board’s feet to the fire, and let’s try to finally knock Harold Dutton out of the Lege next year. The Chron, Reform Austin, the Press, and the Trib have more.

The Lege still doesn’t want to pay for Paxton’s whistleblower sins

Mar 14th, 2023

by Charles Kuffner.

No comments yet

Who can blame them?

A crook any way you look

Now midway through the legislative session, Paxton and state lawmakers are at a standstill, and taxpayers are caught in the middle.

Lawmakers have so far declined to include the settlement money in any budget bills, while Paxton argues that the agreement would ultimately save taxpayers from funding a lengthy court case that may end with a higher price tag.

The whistleblowers’ accusations have prompted an ongoing Department of Justice investigation of Paxton, who has denied any wrongdoing. Paxton’s office did not respond to a request for comment.

Political experts say the Legislature’s reluctance to embrace the agreement could be a tactic to pressure Paxton to either pay for the settlement himself or answer for the corruption allegations in court.

“It’s like the Legislature is telling Paxton that this is his problem to take care of,” said Brandon Rottinghaus, a political science professor at the University of Houston. “This is as close as Paxton will come to a political sanction from his party for his actions. … The party is not going to directly say that they think that he’s done wrong, but they certainly don’t want to be on the hook to foot the bill.”

Lawmakers suggested at a budget hearing last month that Paxton should use his own campaign funds to settle the case, as the state’s election laws allow. But a Paxton staffer interjected, noting that whistleblower laws hold the office accountable, not the officeholder.

[…]

As of January, Paxton had $2.3 million in his campaign war chest and $1.3 million in outstanding loans. He would have to fundraise to pay off the rest of the settlement — a “horrific” option for the attorney general, Rottinghaus said.

The whistleblowers on Wednesday requested that the Texas Supreme Court lift its temporary pause on the case. If Paxton and the whistleblowers remain at an impasse through the end of legislative session in May, they’ll all head back to court.

Chris Hilton, the general litigation division chief and a lawyer for Paxton, accused the whistleblowers on Thursday of trying to “undo the agreement by filing a misleading brief with the Texas Supreme Court, all the while coordinating with the media to create drama.”

“We’ll continue to seek a cost-efficient resolution, even while the plaintiffs needlessly drag this process out,” Hilton said.

Turner pushed back on that claim, pointing to a court filing by the attorney general’s office in which Paxton’s attorneys agreed that “should the parties prove unable to obtain funding,” they would jointly ask the Texas Supreme Court to resume the case.

“As we negotiated the formal agreement, the attorney general backtracked and would not agree to a deadline for legislative approval,” Turner said. “Anyone reading this can easily decide for themselves who is being misleading and who is dragging this process out.”

Cal Jillson, a political science professor at Southern Methodist University, said Paxton is essentially giving the Legislature an ultimatum: “‘Pay to clean up my mess, or as I stall on this set of corruption charges brought against me by my former employees, that could sum up to a great deal more than $3.3 million.’”

The only reason the attorney general’s staff knows the cost could be higher, Jillson said, “is because they intend to stretch this thing out as far as possible.”

With two months left in the legislative session, there’s still plenty of time for lawmakers to change their minds, but it’s a touchy subject.

See here for the background. I remain fine with the stance that the Lege has taken so far, however doubtful I am about their resolve. Put simply, don’t bail out Ken Paxton. I recognize that this puts a burden on the whistleblowers, who did us all a favor by coming forward like this, and I regret that they are caught in the middle. I also maintain that approving the settlement and cutting the AG’s budget by an equivalent (or greater!) amount would be fine, but I have yet to see any suggestion of that in any of these stories. Changing the law to allow Paxton to pay this with his campaign funds might be OK, and there are other ideas that could work. All I care is that no one takes Paxton off the hook. If that means the taxpayers face a bigger payout down the line, so be it. The point is that he should own it all. The Trib has more.

The next frontier in forced birth litigation

Mar 12th, 2023

by Charles Kuffner.

1 comment

This is truly wild, and potentially very scary.

A Texas man is suing three women under the wrongful death statute, alleging that they assisted his ex-wife in terminating her pregnancy, the first such case brought since the state’s near-total ban on abortion last summer.

Marcus Silva is represented by Jonathan Mitchell, the former Texas solicitor general and architect of the state’s prohibition on abortions after about six weeks of pregnancy, and state Rep. Briscoe Cain, R-Deer Park. The lawsuit is filed in state court in Galveston County, where Silva lives.

Silva alleges that his now ex-wife learned she was pregnant in July 2022, the month after the overturn of Roe v. Wade, and conspired with two friends to illegally obtain abortion-inducing medication and terminate the pregnancy.

The friends texted with the woman, sending her information about Aid Access, an international group that provides abortion-inducing medication through the mail, the lawsuit alleges. Text messages filed as part of the complaint seem to show they instead found a way to acquire the medication in Houston, where the two women lived.

A third woman delivered the medication, the lawsuit alleges, and text messages indicate that the wife self-managed an abortion at home.

The defendants could not immediately be reached for comment. Silva’s wife filed for divorce in May 2022, court records show, two months before the alleged abortion. The divorce was finalized in February. They share two daughters, the lawsuit said.

[…]

The lawsuit alleges that assisting a self-managed abortion qualifies as murder under state law, which would allow Silva to sue under the wrongful death statute. The women have not been criminally charged. Texas’ abortion laws specifically exempt the pregnant person from prosecution; the ex-wife is not named as a defendant.

The legality of abortion in Texas in July 2022 is murky. The state’s trigger law, which makes performing abortion a crime punishable by up to life in prison, did not go into effect until August. But conservative state leaders, including Cain and Attorney General Ken Paxton, have claimed that the state’s pre-Roe abortion bans, which punish anyone who performs or “furnishes the means” for an abortion by up to five years in prison, went back into effect the day Roe v. Wade was overturned in June.

The legal status of these pre-Roe statutes remains a contentious question. In 2004, the 5th U.S. Circuit Court of Appeals ruled that those laws were “repealed by implication,” which U.S. District Judge Robert Pitman reaffirmed in a recent ruling. But Cain and others have repeatedly argued that the Legislature restored those laws into effect with recent abortion legislation. This issue went before the Texas Supreme Court, but the case was dismissed before a final ruling.

In 2021, the Legislature passed a law making it a state jail felony to provide abortion-inducing medication except under extremely specific circumstances.

Joanna Grossman, a law professor at SMU Dedman School of Law, said this lawsuit is “absurd and inflammatory.” Since the pregnant patient is protected from prosecution, there is no underlying cause of action to bring a wrongful death suit in a self-managed abortion, she said.

“But this is going to cause such fear and chilling that it doesn’t matter whether [Mitchell] is right,” Grossman said. “Who is going to want to help a friend find an abortion if there is some chance that their text messages are going to end up in the news? And maybe they’re going to get sued, and maybe they’re going to get arrested, and it’s going to get dropped eventually, but in the meantime, they will have been terrified.”

But it’s possible this lawsuit could get traction, said Charles “Rocky” Rhodes, a law professor at South Texas College of Law.

“It’s scary to think that you can be sued for significant damages for helping a friend undertake acts that help her have even a self-medicated abortion,” Rhodes said. “Obviously, the allegations would have to be proven, but there is potentially merit to this suit under Texas’ abortion laws as they exist now.”

Mitchell and Cain intend to also name the manufacturer of the abortion pill as a defendant, once it is identified.

“Anyone involved in distributing or manufacturing abortion pills will be sued into oblivion,” Cain said in a statement.

At first I thought this was an SB8 lawsuit, but it’s not. This is a lawsuit under the “wrongful death” laws, which would make this a lot broader, not to mention not having a $10K cap on how much you can sue for. Among other things, if the plaintiff wins, it would legally establish that a third party can claim an injury when a woman has an abortion. If the alleged father can do that – and bear in mind, the father could be a rapist or an abuser – then who’s to say that a would-be grandparent couldn’t make a similar claim. There are free speech implications as well, if even discussing abortion with a pregnant woman could land you in legal jeopardy. There’s some existing litigation out there about the First Amendment rights of abortion funds, but nothing has been decided yet. All this may sound far-fetched and overly dramatic, but look at the lawyers leading this charge, and what Briscoe Cain – who has said before that he doesn’t just want to make abortion illegal, he wants to make it “unthinkable” – is saying. If anything, I’m not being dark and paranoid enough.

What happens from here is hard to say, but one thing for sure is that these three women are going to be facing many thousands of dollars in legal bills, which among other things may put pressure on them to settle. Again, I’m quite certain that’s all part of the plan. This needs to be much bigger news, and not just in Texas. I’d really like to see national groups and national political figures make a big deal out of this, and not just for fundraising purposes, except to assist the defendants. This is what SCOTUS has unleashed on us, and it’s what these zealots want. We can’t afford to give an inch. The Chron has more.

Chron story on the anti-Open Beaches bill

Mar 12th, 2023

by Charles Kuffner.

Comments are off for this post

Glad to see it.

A bill that would reshape future legal battles over Texas’ public beach boundaries is stirring backlash from advocates and former state leaders, who claim the proposal would give beachfront property owners the green light to vacuum up pieces of the state’s public beaches.

Senate Bill 434, filed last month by state Sen. Mayes Middleton of Galveston, would give private property owners the upper hand in legal disputes over public beach access between their residences and the Gulf of Mexico.

Such disputes are governed by Texas’ Open Beaches Act, which has long established the public’s right to use privately owned beach area extending from the vegetation line — the beach’s inland boundary, where sand gives way to foliage — to what’s known as the “mean high tide line” along the water.

Under current law, property owners can only scrap a public easement in front of their property — thus blocking the public from passing through it — if they offer legal proof that the area shouldn’t be covered by the easement.

Middleton’s bill would upend the law, shifting the legal “burden of proof” to the state or anyone looking to establish that a public easement exists on someone’s beachfront property. Critics say the change would embolden property owners to fence off beach area long accessed by the public — access that could only be regained through legal action.

Middleton did not respond to a request for comment. He defended his legislation in a statement to the Galveston County Daily News last month, arguing it would “not in any way take away our open beaches or limit them.”

“Right now, all over the state of Texas, if the state claims your land as theirs — then they have to prove it. But, sadly, on beachfront property, if Texas claims the property as theirs, it’s presumed to be the state’s — unless the landowner is able to refute the rebuttable presumption,” Middleton said. “My bill is a beachfront private property rights bill that makes beachfront land treated like land in the rest of the state and changes the presumption so that the state must prove it is state lands and the landowner no longer has the burden of proof.”

See here for the argument against, as presented by former Land Commissioners Dewhurst, Patterson, and Mauro. I have no reason to trust Sen. Middleton on this, and that’s even without me already being a steadfast Open Beaches Act supporter. I don’t know what the odds are of this bill passing, but I would take it seriously, as it’s the kind of thing that may get by because no one gives it all that much thought. To that end, the sunshine may help. Reform Austin has more.

HISD ends lawsuit against TEA

Mar 11th, 2023

by Charles Kuffner.

Comments are off for this post

A formality at this point.

The Houston Independent School District board voted on Thursday night to end its lawsuit against the Texas Education Agency, effectively ending the district’s legal fight against an attempted state takeover.

The motion passed with support of eight of the nine trustees following a brief closed session. Trustee Kathy Blueford-Daniels, who represents District II which includes Wheatley High, voted against the measure.

Superintendent Millard House II said he does not know what the board’s decision will mean for the state’s takeover effort because that agency has made no announcement or decision.

“That was a board decision in an effort to get to the table to have conversations with TEA,” he said in an interview following the meeting. “There hasn’t been conversation.”

Dani Hernandez, board president, said the board remains committed to students and student outcomes.

“We are now at the point where it is time for us to move forward,” she said during the meeting. “It is in our students’ and our employees’ best interest for us to end this lawsuit between HISD and TEA and navigate and build relationships between all the parties. … We look forward to bringing both organizations to the table soon for the best interest of children.”

The district is withdrawing from the lawsuit to “end further expenditure of district resources, as there is no further legal recourse,” according to the motion.

[…]

In theory the district could file for a rehearing and continue the legal battle. HISD did request more time to file a motion for a rehearing in late January, but never ended up following through on it.

Given the Texas Supreme Court decision, the board’s decision to stop putting resources toward the lawsuit makes sense, said attorney Christopher L. Tritico, who has represented three Houston-area districts — North Forest, Beaumont and La Marque — in takeover hearings.

“A rehearing is one in a million, and it’s just not worth it. I think they are making a prudent decision in public funds at this point in recognizing the decision is over,” Tritico said. “It doesn’t necessarily mean that they aren’t conceding that they think the commissioner is right, they just don’t have any legal maneuvering.”

I agree with the Board’s actions here. The one trustee who voted against was Kathy Blueford-Daniels, whose district contains Wheatley. I can’t blame her for that.

We have reached the weekend and still no word from the TEA. According to Campos, “there was supposed to be a meeting in Austin yesterday that had to be postponed”. No rush, y’all, take all the time you need. The Press has more.

The whistleblowers’ un-settlement

Mar 10th, 2023

by Charles Kuffner.

1 comment

Plot twist!

A crook any way you look

The whistleblowers who sued Attorney General Ken Paxton say they’re headed back to court unless he agrees that the Legislature must approve their proposed $3.3 million settlement before the current legislative session ends in May.

They are the four former aides to Paxton who allege he fired them in retaliation for reporting him to federal authorities for bribery and abuse of office. Paxton has denied all wrongdoing. Their lawyers said Wednesday they were “forced” to file a motion in an Austin appellate court Wednesday asking for the case to resume.

In a joint statement, the lawyers said a deadline of the end of session for payment was the “fundamental premise upon which they asked us to negotiate in the first place.”

“So we’ll go back to court, where the taxpayers will end up paying more to defend (the Office of the Attorney General) than they would to settle this case,” the lawyers said. “We would still settle the case if the Legislature approved the payment this session, but we cannot and did not agree to give OAG the benefit of a settlement while the whistleblowers wait in perpetuity for legislative approval.”

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

Some members of the Legislature, including Texas House Speaker Dade Phelan, have expressed opposition to approving the settlement. Earlier this month, Phelan said in an interview with CBS DFW that he did not think it was a “proper use of taxpayer dollars.” Taxpayers are already on the hook for $600,000 in legal fees for Paxton’s defense.

[…]

The case now returns to the Texas Supreme Court, where it landed after Paxton appealed in December 2021 a decision by the 3rd Court of Appeals that upheld a lower court’s finding that the state’s whistleblower protection law should have prevented the employees from being fired.

The all-Republican court had not yet decided whether it would grant the case when the whistleblowers and Paxton asked them to hold off on any decisions while the parties finalized their settlement agreement. The court could decide to grant or deny at any time; it is not subject to a deadline.

In addition to the $3.3 million payment, the settlement, which the parties announced last month, would have required Paxton to remove a news release from his website that is critical of the employees. He also would have had to state in the agreement that he “accepts that plaintiffs acted in a manner that they thought was right and apologizes for referring to them as ‘rogue employees.'”

See here, here, and here for some background. The Trib adds some details.

The multimillion-dollar settlement, announced last month, would give back pay to the four former employees and would include an apology from Paxton as well as other concessions. But the agreement needs to be approved by state lawmakers, who have expressed an unwillingness to use taxpayer dollars to settle Paxton’s case. At the request of the parties in January, the Texas Supreme Court put the whistleblower case on pause while the two sides looked to finalize the deal. But without a deadline, the case could be on pause indefinitely, attorneys for the former employees said on Wednesday.

“Sadly, we have not been able to reach a final settlement because [the Office of the Attorney General] will not agree to include in the formal agreement a deadline for the legislature to approve funding this session, even though that was the fundamental premise upon which they asked us to negotiate in the first place,” the attorneys said in a statement. “So we’ll go back to court, where the taxpayers will end up paying more to defend OAG than they would to settle this case.”

Paxton’s office did not immediately respond to a request for comment. He has denied wrongdoing.

Attorneys for the former employees said they would still settle the case if lawmakers approved the $3.3 million settlement this session.

“But we cannot and did not agree to give [the Office of the Attorney General] the benefit of a settlement while the whistleblowers wait in perpetuity for legislative approval,” they wrote.

The fired employees’ attorneys have urged lawmakers to approve the settlement, but its funding looks bleak after top legislators, including House Speaker Dade Phelan, came out against the use of state funds to settle the case. The Legislature’s top budget writers did not include the settlement in their first draft of bills to resolve miscellaneous legal claims.

In a filing to the Supreme Court on Wednesday, attorneys for the former employees said the attorney general’s office has told them verbally that they have put the whistleblowers in a “gotcha position.” If lawmakers do not approve funding for the settlement by the end of this legislative session on May 29, the attorney general’s office has said the whistleblower case should remain on pause until the next legislative session in 2025. If it is not approved again, the filing reads, the attorney general’s office has said the case should remain on pause until the following session in 2027.

“And so on in perpetuity. [The Office of Attorney General] tells Respondents the case will never resume; they have given up their claims forever, even if legislative approval is not forthcoming,” the filing reads. “[The Office of Attorney General] thus reaps all benefits of a settlement, and [the former employees] achieve none.”

In written communications, the fired employees’ attorneys say Paxton’s office has been “craftier,” arguing that it is still researching what would happen if the Legislature refuses to approve the settlement and will not address that potential outcome until it happens.

The fired employees’ attorneys blasted both positions as “preposterous,” arguing that they would have never agreed to put the case on pause indefinitely or for a lengthy time period.

The motion to pause the case — which was requested, drafted and filed by the attorney general’s office with agreement by the fired employees — was “intended to briefly postpone” any potential ruling while the two sides sought legislative approval for the $3.3 million settlement. But attorneys for the fired employees say Paxton’s refusal to set a deadline is preventing the two sides from completing the settlement agreement while at the same time not letting their case against him move forward.

Couple things. First, let’s remember that SCOTx was going to rule on the question of whether Paxton could be sued at all under the Texas Whistleblower Act. Paxton had argued that he could not be sued under that law because he’s not public employee, because elected officials don’t count under that law. By asking SCOTx to resume their deliberation on that question, the four plaintiffs are risking that their answer will be to rule in Paxton’s favor and toss the lawsuit altogether. And even if they win on that question, it just means that the lawsuit can go back to a district court and be heard on its merits. Which, again, they could lose, or they could get a lesser amount awarded to them. And the whole thing will then have to go through the appeals process, because of course Paxton will fight it for as long as he’s in office, and the verdict could get overturned or the award could be reduced, and the whole thing could take years. Whatever else you may think about their case and the initial settlement, these guys are taking a substantial risk by doing this.

But you can see why they’re willing to take that risk. Paxton, who has always been able to turn a bad situation of his own making into an advantage, is using the Lege’s understandable unwillingness to pay for his sins as an indefinite stalling tactic. As things stand now, he has zero incentive to take any action. The case is frozen in amber. And even if SCOTx ultimately rules that the lawsuit can proceed, if there’s one other thing (besides criming) that Paxton is good at, it’s delaying legal reckonings. Who knows how long he could draw this out, assuming he remains in office?

All of which suggests a fairly easy way out for SCOTx, if they want to take it. They can rule that the Lege doesn’t have to apportion any money to pay the settlement, and let Paxton pay for it out of whatever budget the Lege sees fit to give him. This is of course what I have been arguing they should do, as it is the most fair and just solution at this point, so I’m a little biased. But, you know, it really is a good solution – it allows the whistleblowers to get their back pay and their apology, it guards against a much larger potential verdict while also not putting the public on the hook, and it makes Paxton bear the brunt of the financial penalty. It might damage the AG office’s ability to do its job, but that’s just too bad. This is what happens when you put a crook in charge of law enforcement. I hope SCOTx comes to the proper conclusion and saves us all a multi-year saga.

Wheatley’s fate

Mar 10th, 2023

by Charles Kuffner.

3 comments

We may learn today of the TEA’s intentions with HISD. Whatever does happen, let’s remember that in the end this will affect a lot of people, and some of them are not happy with the position they’ve been put in.

Samuel Ollison, a junior at Phillis Wheatley High School, already has started working on his back-up plan.

He spends his free time looking into schools he should attend senior year because Houston ISD may be taken over by the Texas Education Agency at any moment, and he has heard rumors his school may close.

“I’m nervous, honestly,” Ollison said. “They say my school is the No. 1 factor in why TEA is taking over HISD …We just need to do better at this school because I really don’t want Wheatley to get shut down, or for the TEA to take over.”

It’s an uncertain time for students at Wheatley High School, as the 96-year-old Fifth Ward campus continues to be thrust in the spotlight for its multiple failing accountability grades that puts the district at risk of losing its superintendent and elected board. Meanwhile, rumors are circulating about what will come of a possible state intervention, leaving parents and students alike in fear of the school’s closure.

Ollison grew more concerned when read an article in which Mayor Sylvester Turner said Texas Education Agency Commissioner Mike Morath told him he has two options — appoint a board of managers or close Wheatley high school. Other public figures since have made similar comments.

State code indicates that closing a school is an option, but the TEA never has stated that it plans to. Morath has spent years pursuing the other option — appointing a board of managers, which temporarily was blocked by an injunction. However, the TEA declined to comment on the mayor’s remarks or if intends to close Wheatley.

[…]

Throughout the years, the school’s enrollment began to drop, and subsequently the dollars tied to that enrollment. By 1976, the school was in the bottom 12% for reading scores, according to a 1978 Texas Monthly article. In 1995, the Fifth Ward school had the highest dropout rate and lowest math score of the high schools in the Houston ISD.

From 2014 to 2017, it earned an “improvement required” rating from the state, and in 2019, under a revamped accountability system, the school earned an ‘F.’ Ratings were paused in 2018 for Hurricane Harvey and in 2020 and 2021 for COVID.

In 2022, the school earned a ‘C,’ but some argue that the standards were lowered.

Either way, the previous streak of failing ratings, in part, triggered a takeover battle that has been slowly making its way through the courts.

Joseph Williams took the helm of the school as principal in 2018, not long after the district was put on alert for a potential takeover. When Williams first took the job — he knew “time was of the essence.” His first priority was to improve the school’s culture and the morale.

“In some cases, there was apathy with some of the scholars,” Williams said. “We just wanted to revive the spirit. When you just keep hearing your name and its associated with this negative thing, it can kind of wear on you.”

He tightened up the attendance policy, restructured the classroom layout to make sure grades were grouped together, allowing administrators to better monitor students.

They implemented an online merit system, where teachers could award students points for good attendance or high scores. They could cash in the points they earned for snacks or a free hoodie. The school saw some modest improvements on test scores and earned a C for its most recent accountability rating. This is a point many education advocates, lawmakers, and critics of state intervention make when talking about the potential takeover.

There’s more in the story from current students and their parents, who are trying to figure out what their options would be if Wheatley is closed. I don’t think that will accomplish anything positive, especially with the school on a better path now. You know my feelings on this, so I’ll just leave this here. And I hope that tomorrow, and the next day and the day after that, I don’t have to write about what happens next in a post-takeover world.

“Shall” versus “may”

Mar 9th, 2023

by Charles Kuffner.

Comments are off for this post

Houston Landing touches on a subject I’ve mentioned before.

As concerns grow about the Texas Education Agency ousting the Houston Independent School District’s elected board, a question with major practical and political implications has emerged: Are state officials legally mandated to take over Texas’ largest school district?

Despite multiple years of legal and legislative battles, there’s still no definitive answer to this fundamental query – setting the stage for even more litigation that could delay or derail any state efforts to strip power from the district’s school board.

A strange confluence of recent events has left it unclear whether TEA officials must, or merely may, take drastic action against the state’s largest school district due to persistently poor academic performance at Wheatley High School, according to a Houston Landing review of state law and court rulings. While the uncertainty has lingered for the past several weeks, it’s taken on greater importance as the state nears a decision on whether to punish HISD for past failings.

The murkiness stems from state appellate rulings and legislative actions in the past several months that were supposed to clarify the state’s responsibility for punishing HISD, yet failed to plainly answer one key question: Did Wheatley trigger a state law requiring sanctions against the district when it received a seventh consecutive failing grade in 2019?

[…]

HISD finds itself in legal limbo largely due to a peculiar disconnect between Texas’ legislative and judicial branches.

The saga began in 2015, when Texas legislators passed a law that said the TEA must replace a district’s school board or close chronically low-performing campuses in any district with a single school that failed to meet state academic accountability standards for five consecutive years. The bill, championed by state Rep. Harold Dutton Jr., a Houston Democrat whose legislative district includes Wheatley, aimed to punish school boards for neglecting long-struggling campuses.

However, the law spelled out specific years – including 2018 – for which schools must fail to meet state standards to trigger sanctions. And as a result of Hurricane Harvey, Wheatley received a “not rated” designation in 2018, which didn’t count as a failing grade.

Still, state officials moved to oust HISD’s school board after Wheatley fell short of state standards in 2019, its seventh consecutive failing grade without a passing mark. (TEA leaders have said closing Wheatley would not remedy the root causes of the school’s poor results.)

Wheatley’s “not rated” mark in 2018 set off a legal skirmish over whether the school technically triggered the law with its seventh straight failing grade the following year.

A Travis County judge issued a temporary injunction in HISD’s favor in early 2020, halting the takeover, but she did not elaborate on the rationale for her decision. Then, in late 2020, the Texas Third Court of Appeals ruled that Wheatley did not violate the accountability law because the “plain language of the statute” required a failing grade in 2018. TEA officials subsequently appealed the decision to the Texas Supreme Court.

While the case was pending before the Texas Supreme Court, state legislators passed a bill in mid-2021 clarifying that a “not rated” grade doesn’t count as a passing score for the purposes of calculating whether a school scored five consecutive failing grades. If a school receives four straight failing grades, followed by a “not rated” mark, it must meet state standards the next school year to avoid triggering a state takeover or campus closure. Texas legislators, however, did not make the law retroactive to the Wheatley situation.

“It was our legislative intent not to include any language that would have done that,” Dan Huberty, a Republican former state representative who helped usher the bill to passage, said in an email last week. Huberty added that lawmakers wanted to leave Wheatley’s fate to the courts – a point echoed this week in a statement by another key figure in the law’s passage, state Sen. Paul Bettencourt, R-Houston.

Yet the Texas Supreme Court, when given the chance, didn’t clearly address the unanswered question about Wheatley.

In an October 2022 written opinion, the justices unanimously overturned the temporary injunction, finding the TEA has the legal right to install a replacement board on two unrelated matters: the lengthy presence of a state-appointed conservator in the district; and multiple findings of misconduct by some board members, including violations of the state’s open meetings laws and attempts to steer vendor contracts, following a TEA investigation in 2019. On both fronts, state law says Morath can appoint a new board, but he’s not required to.

But for reasons never made clear, the justices didn’t explicitly rule on whether Wheatley triggered mandatory sanctions. The justices seemed to defer in their opinion to the Texas Legislature’s new law, which could bolster the state’s case for mandatory sanctions, but they never issued an unequivocal directive.

I’ve noted the “shall” versus “may” distinction before. I see two ways of looking at this weaseling by the Lege and the courts. One is that this is all a very thin technical reed on which to hang an argument that the TEA doesn’t have to intervene. I wouldn’t want to have to defend that in court. The other is that despite it being very clear that the Lege wanted SCOTx to be the decider, they declined to say one way or the other if the TEA was required to act. Thin it may be, it’s an easy to grasp reason for the TEA to take more limited action, which is at least what the locals want, and probably what they would prefer given the scope of the issue.

Will they do it? Like I said, it can’t hurt to have people talking to Mike Morath to try to persuade him to back off. Maybe the bills filed to prevent the takeover, along with such lobbying efforts, are enough to push him to that way of thinking. Or maybe not. Campos is “hearing the HISD takeover will be announced on Friday”. Which, I guess, still comes down to the meaning of “takeover”. But if you phrase it that way, I know where my mind is going. We’ll maybe find out tomorrow.

Bills filed to stop the TEA takeover of HISD

Mar 8th, 2023

by Charles Kuffner.

5 comments

Feels too late to me, but it can’t hurt to try.

State senators have filed the first bill to soften the law that triggers school district takeovers.

State Sens. Carol Alvarado, Borris Miles and John Whitmire filed Senate Bill 1662 in response to the threat of a possible takeover of Houston Independent School District by the Texas Education Agency. State Rep/ Alma Allen has filed companion legislation in the Texas House.

The bill modifies the current state law to provide TEA additional tools to address low performance ratings such as hearings before the commissioner, academic achievement plans, appointing agency to monitor, but not replace trustees, among other items. Under SB 1662, the TEA commissioner will have broader discretion to choose an alternative that does not require a school closure or the appointment of a board of managers.

Given Phyllis Wheatley High School improvement to a C and the district’s overall B rating, the TEA’s reason for initiating a takeover bid in 2019 is no longer valid, Alvarado said.

“It is unjust and unwarranted for TEA to move forward with a takeover,” Alvarado said in a statement. “S.B. 1662 offers the agency options to work collaboratively with HISD to address any current deficiencies instead of subjecting nearly 200,000 students and 27,000 teachers and employees to a takeover.”

Other leaders also made promises to get answers. NAACP president Bishop James Dixon said he plans to call a meeting with TEA commissioner Mike Morath. U.S. Rep. Sheila Jackson Lee said she intends to bring the issue to the Biden administration and the U.S. Department of Education.

HISD Trustee Patricia Allen said the trustees, administrators and other HISD representatives will let their grievances be known when they go to the legislator March 20.

“We have been in this fight before we even came in office,” Trustee Patricia Allen said at a community meeting at North Main Church of God in Christ in the Heights. “The board has been working since we were elected. We have a lone star governors coach, a TEA program — we have tried our best, hired the best superintendent.”

See here for the previous update, and here for my discussion of things that could be done to stave this off. As I said then, even if these bills have the support to pass and are allowed to come to the floor, it would be at least weeks and more likely months before they would take effect. Thus, unless Mike Morath is agreeable to wait it out, the legislative process is just too damn slow. I appreciate the effort, but let’s not put our hope in something that can’t work unless Morath and the TEA are willing to let it work.

Now having said that, it’s Tuesday afternoon and the TEA hasn’t taken over HISD yet, so maybe Morath is waiting until something happens to take him off the hook. Stranger things and all that. I would encourage Trustee Allen and Bishop Dixon and whoever else can get a meeting with Morath to ask him nicely if he’d at least talk to these legislators before he does anything. As with the bills themselves, it can’t hurt. Getting the feds involved has a chance of achieving something, and it could be done quickly, but it would also be super antagonistic, so let’s try the “ask very nicely for a delay” option first, since it surely won’t work if we do it the other way around. Throw everything at the wall, but do so in the proper order.

Oh, and why wasn’t a bill like this filed in the last Lege? Well, maybe there was one – I’d have to look, I don’t know offhand. That would have solved the timing issue, but only if it was allowed to pass, as with this one, and we didn’t know we’d need it because of the then-ongoing litigation. I think it’s at best a tossup whether these bills get even a committee hearing now, and I’d say that was never in the cards in 2021. That’s easy to say, and if we give credit for trying now we do have to ask what we tried then. We’re in this situation now regardless, so let’s not waste too much energy on what could have been. What it is now is what matters.

The past history of TEA takeovers

Mar 7th, 2023

by Charles Kuffner.

1 comment

As of Monday afternoon there’s still no word from the TEA about the fate of HISD, so while we wait we ponder what history can teach us. Assuming that history doesn’t contain anything gay or CRT-related so we’re allowed to learn from it, of course.

As rumors of a looming state takeover of the Houston Independent School District cause uncertainty and anxiety for educators and families, many are looking to previous examples of the Texas Education Agency imposing control of local school systems.

There are 15 such instances over the course of three decades, according to state records. None likely offer a case study that would compare to a takeover of HISD, the largest school district in the state and the eighth largest in the nation. Still, some have likened the potential takeover of diverse HISD to that of the other school systems, all of which served predominantly Black and Hispanic student bodies or children from families considered to be “economically disadvantaged.

“I’ve been getting a lot of calls from HISD teachers asking me for advice,” said Jennifer Jermany, a former North Forest ISD teacher who was laid off when the district was absorbed into HISD. “Our cases are similar, but not exact. My heart really goes out to those teachers because we really don’t know what is going to happen.”

[…]

Of the 15 previous state takeovers, four — Kendleton, Wilmer-Hutchins, North Forest and La Marque ISDs — closed entirely after regaining local control. El Paso, Beaumont, Edgewood and Southside ISDs remain open after local control was restored.

Progreso, Pearsall, Hearn, Harlandale and Snyder ISDs each came to a settlement or did not proceed with a board of managers.

Two districts — Marlin ISD and Shepherd ISD — still have a state-appointed board of managers in place.

Seven of those districts were predominantly Black, including multiple districts with schools significant to Texas’ African American history. Another seven of the districts taught mostly Hispanic student bodies. Only one district — Shepherd ISD — was predominantly white. Around 66 percent of students in that district are economically disadvantaged.

Of HISD’s 187,000 students, 62 percent are Hispanic and 22 percent are Black. Nearly 80 percent of its students are economically disadvantaged.

None of the districts previously taken over by TEA come close to comparing in size to HISD. The smallest of those districts, Kendleton ISD, had less than 100 students and the largest, Beaumont ISD, currently has around 17,000.

In the previous takeovers, TEA gave reasons such as financial issues, administrators violating the law, fraudulent test score data, inability of school boards to properly govern, loss of accreditation status and poor academic ratings, among other causes.

See here, here, and here for the background. Beaumont ISD was taken over because of fiscal mismanagement. That at least would be an understandable reason, with clear goals for being returned to local control. Most of the rest of the story is about the takeover of North Forest, which followed a few years later by North Forest being absorbed into HISD. They had serious, long-term issues with their board of trustees, which again is a different issue than what HISD faces. It’s also a reminder that we didn’t have any real mechanism in place at the time to track the former NFISD students as they made their way through HISD. That was long enough ago that I’d expect none of those original students are still in HISD schools. Sure would have been nice to know what their outcomes were, or how those who followed them into HISD have been doing.

Anyway. The one reason why I think HISD might maybe avoid a full takeover is that the TEA cannot possibly be prepared to handle the responsibility of running HISD, even if they outsource it to a board of managers. I don’t think they want it, and I think they will look for an exit ramp. I agree with Mayor Turner and Judge Hidalgo and many others that politics is at play, and I freely admit I am thinking wishfully when I say stuff like this. It’s what I’ve got, and until the TEA tells us what they’re doing we can at least hope for the best.

So is there anything that can be done to derail the TEA takeover?

Mar 5th, 2023

by Charles Kuffner.

3 comments

Probably not. I mean, I really appreciate the engagement and the passion, but we’re at the end of the road here, a road that started almost six years ago. Sometimes you just run out of things to do.

With time seemingly running out, Houston politicians vowed on Friday to file lawsuits and legislation — whatever it takes — to stave off a possible state takeover of Houston ISD that has been in the works for four years.

Mayor Sylvester Turner and state Rep. Alma Allen announced earlier this week that they’d heard reports that the takeover could happen as early as March 6. The Texas Supreme Court gave the Texas Education Agency final authority to assume control of the school system in January but has yet to take formal action to do so.

“We as a body, as state legislators, are standing before you to say ‘We are not asleep at the wheel,’ ” state Rep. Jarvis Johnson, said Friday during a protest at Discovery Green, one of a series of events held to highlight the urgency of the situation. “We are in the process of rewriting legislation. We are looking at every lawsuit we can bring to the doorstep of the governor, and the TEA, to thwart the efforts of the TEA.”

Turner called on TEA Commissioner Mike Morath and state legislators at the protest and earlier this week to amend the law so the state doesn’t appoint a board of managers.

During their conversations, Morath did not confirm nor deny takeover plans, but cited a provision in state code that he says requires the TEA to take over a district or close a school that has failed five consecutive years.

Turner is advocating a different option. “If there is something that is not in the best interest of the kids, you can go to the Legislature now, and make any modification that is needed and we can move further down the road,” the mayor said.

[…]

Friday started with a few dozen protesters in front of the district’s central office, also wondering why HISD should be taken over by the state instead of other lower-performing districts. They pointed to HISD schools’ current ratings, which show that 94 percent of schools earn a grade of A, B or C.

“Those who cannot stand on the right side of history, don’t deserve our shopping, don’t deserve our worship, they don’t deserve our tithes and offerings,” James Dixon, president of the Houston NAACP, said. “If you can’t stand up for public schools and for education, you don’t deserve our support financially, you don’t deserve our votes and you do not deserve our respect.”

Speaking via the phone from the U.S. Capitol, U.S. Rep. Sheila Jackson Lee, D-Houston, said she could not attend the protest in person but fully supported its mission.

“I’ve said to the Department of Education and to the president United States … this is a test case and we must win this case,” Jackson Lee said.

See here and here for the background. We’re where we are now because of a Supreme Court ruling, so a state lawsuit seems extremely unlikely to bear fruit. A federal lawsuit could be possible, and maybe there’s some way for the US Department of Education to intervene, but that all feels vague and undefined. Better odds than a state lawsuit, but nothing I’d want to bet on. And as far as legislation goes, we’re barely even into the committee-hearings part of the legislative session. Any bill to stop this takeover, assuming it had majority support in both chambers and wasn’t opposed by Speaker Phelan or Dan Patrick or Greg Abbott, would be at least a month away from getting signed. And even then, unless it passed with a two-thirds majority in both chambers, it would be another 90 days before it went into effect. This just cannot happen in time.

The one possibility I can see is someone convincing Mike Morath that the Supreme Court ruling just means that the TEA “may” take over HISD, not that it “shall” take it over. I don’t know what provision he’s citing, I’m not a lawyer, and I don’t know what’s in his head or what legal advice he’s receiving, but at least this is a plausible path. If Morath believes he has discretion, then we just have to persuade him to do something less drastic. How good are the odds of that? We’ll find out soon.

Superintendant House speaks about the looming TEA takeover

Mar 4th, 2023

by Charles Kuffner.

3 comments

Not much one can say in this position.

Superintendent Millard House II said it’s business as usual in the state’s largest school system until the Texas Education Agency pulls the trigger on its rumored takeover plan.

He used the start of a school board meeting to address the rumors regarding a potential intervention by the Texas Education Agency.

“As of today, the district has not received any official notice from the TEA,” House said Thursday. “I remain laser-focused on fulfilling my duties as Superintendent alongside our Board of Trustees to provide the best possible educational outcomes for all HISD students. My team and I will continue to implement our community informed strategic plan, which is delivering results for HISD students and families.”

He vowed to keep students, families and community updated.

[…]

The mayor publicly announced on Wednesday that he is hearing rumors regarding an imminent takeover, calling on the Texas Education Agency to clarify its plans. The Supreme Court also issued a mandate on Wednesday — the final legal step necessary — to allow the state takeover, if the commissioner believes it to be appropriate.

“He’s in a very uncomfortable position,” Turner said of the superintendent. “His future, like the district, is in the hands of the TEA, and it’s unclear. If you didn’t know you were going to hold on to your job, and the power was not in your hands to decide, I think you would be reluctant to say anything publicly.”

Turner reiterated that the TEA should make a statement publicly, due to the uncertainty around the situation.

“This is what I would say to the state: if there is no intention of (taking over) state your position clearly,” Turner said. “If you intend to do it there should be a certain amount of community engagement and transparency and not hiding behind office walls.”

See here for the background, and here for coverage of a protest about the takeover. In a different story, Superintendent House says he doesn’t know what the future will bring, which is not a great place for any of us to be.

The TEA is gonna do what they’re gonna do, and it looks like we’ll first hear about it from them when they do it. This sucks and is very likely to be harmful, but we have no control over the situation. All we can do is say it loudly. So let me be as clear as I can: There’s no good reason for the TEA to step in at this point. Nearly all of the HISD Board is different than it was when the issues that led to the takeover conditions occurred. The schools whose performance triggered the takeover conditions are now meeting the needed academic standards. HISD overall got a B grade from the TEA in the last accountability ratings. There’s nothing for the TEA to fix. But there’s plenty for them to break. The TEA won the legal battle to say that they could take over HISD. Please take that victory and be satisfied with it. The Press, the Trib, and Campos have more.

Former Land Commissioners oppose anti-Open Beaches bill

Mar 3rd, 2023

by Charles Kuffner.

2 comments

From the inbox:

Among coastal states Texas is unique. The 1959 Texas Open Beaches Act (TOBA), as well as time-honored common law and tradition in existence since long before 1959, provides that Texas beaches are open to the public. In 2009, Texans voted by a 77% to 23% margin to enshrine TOBA into the Texas Constitution.

Unfortunately, public access to Texas beaches may soon end if legislation filed in Austin passes into law.

Senate Bill 434, by Senator Mayes Middleton of Galveston, would strip the authority of the Texas General Land Office (GLO) to define the boundaries of the public beach and would allow the upland beachfront property owner to make that determination. The property owner could then deny access to the public beach easement that existed between the line of vegetation (LOV) and the mean high tide mark. That would then limit Texas beachgoer’s access to only what is known as the “wet beach” – the area between the low tide and the high tide lines. When that area is washed by waves during periods of high tide, SB 434 would result in there being no beach at all for Texans to use.

If SB 434 passes, don’t be surprised if you show up at your favorite beach spot and you’re confronted with a fenced off beach or no trespassing signs. The only remedy available to you then would be a suit against the adjacent upland landowner. Yes, on your next trip to the beach you should consider bringing along your lawyer. You should also be prepared to drag your kids, your cooler, and your beach gear through the shallow tidal waters in order to enjoy the beach.

Beachfront property owners can’t claim ignorance of the public beach easement. Since 1986 they have received notice of the public beach easement in the documents they signed at closing.

Ironically, SB 434 doesn’t just hurt Texas beachgoers, it hurts beachfront property owners as well. Public money must be spent for a public purpose. The GLO and local governments will be unable to spend money on improving property with no public access. There will be no beach renourishment projects, no beach cleanup, and no beach maintenance in areas where property owners claim the beach has no public access easement. There is currently an expansive beach renourishment project ready to go at Jamaica Beach on Galveston Island that will be cancelled. In addition, developers of coastal property will be handicapped if the GLO is no longer able to determine survey data needed to designate set back lines for coastal construction.

Please join us in opposing SB 434. Contact your State Senators and State Representatives. You can find their contact information at Texas Legislature Online at www.capitol.texas.gov.

God Bless Texas,
David Dewhurst, Garry Mauro and Jerry Patterson, Former Texas Land Commissioners

I get a lot of unsolicited requests to run op-eds here, the vast majority of which come from bots and SEO-addled PR flaks who wouldn’t know me from a Buzzfeed listicle. This one came from someone I do know, former Land Commissioner Jerry Patterson, who I spoke to several times during his tenure. We absolutely disagree on a lot of policy matters, but I always respected him as Land Commissioner, and he ran an open and transparent office. On the matter of the Texas Open Beaches Act, we are in firm agreement. I’ve blogged about it before, most recently after a couple of lousy SCOTx opinions that weakened the Open Beaches Act. I’m happy to cosign this.

Here’s SB434. I have not seen any public statements from the current Commissioner, Dawn Buckingham, about this bill, but all indications are that she opposes it and supports public beach access along with these three and unlike her immediate predecessor, George P. Bush. Hopefully that will carry some weight. In the meantime, it can’t hurt to tell your legislators that you also oppose this bill and hope that they will stand for keeping Texas’ beaches open, as they should be.

UPDATE: The op-ed is in the Chron as well. But you saw it here first.

So it looks like that TEA takeover of HISD is going to happen

Mar 2nd, 2023

by Charles Kuffner.

4 comments

Welp.

Mayor Sylvester Turner sounded alarm bells Wednesday when he announced that he has heard from multiple sources that the state intends to take over Houston ISD as early as next week.

“I’m talking to legislators, and what they’re saying to me is that the state intends to takeover the district, replacing the entire board, replacing the superintendent … And they intend to do it next week,” said Turner, who spent three decades as a state representative.

Turner questioned how the state would take over 273 schools successfully, and urged the community to sound speak out against the takeover.

“We can’t be silent on this one. The state is overreaching on this one,” Turner said. “It is a total obliteration of local control, and when you take it, you own it… You are destroying the public education system.”

Rep. Alma Allen, who had also been hearing various rumors of a soon-to-be takeover, asked TEA commission Mike Morath about the possibility at a Public Education Committee meeting Tuesday.

“The streets have it…that it’s going to be March 6, and there are already persons that have already been asked to take over the position of superintendent,” Allen said. “Do you have any idea (if this is true)?”

Morath did not give a timeline.

“All I will say is we’re waiting to evaluate the Supreme Court’s ruling that has not yet been finalized,” Morath said during the meeting. “What we’re going to do is going to be a mandatory action under state law, not a discretionary action.”

Houston ISD did not immediately respond to requests for comment.

The Texas Education Agency said: “TEA continues to review the Supreme Court’s decision in order to determine next steps that best support the students, teachers, parents, and school community of the Houston Independent School District.”

See here and here for the background. The Trib also quotes Morath at that same hearing saying they “have not made any final decision and not announced any final action”. There’s nothing here to contradict what Mayor Turner says, but it’s not totally clear what Morath means. This Chron story lays out some possibilities.

What is the TEA’s likely first step?

The Texas Education Agency likely would choose one of the following options: It could:

1) Appoint a conservator, effectively a state-appointed manager to oversee district operations.

2) Replace Houston ISD’s 9-person elected board with a state-appointed “board of managers.” If this happens, based on previous experience, Texas Education Commissioner Mike Morath would select those new trustees and potentially pick a new superintendent.

3) Allow the district to remain autonomous but retain a degree of oversight.

The state agency will have to release the details after they pull the trigger on the takeover.

Door #3 is the obvious choice, if we have one. My thought on trying to parse Mike Morath’s words is that the TEA and its lawyers want to read the SCOTx decision before they do whatever it is they will do. Depending on whether that decision says or implies that the TEA “shall” take over HISD or that it “may” take over HISD could be the difference between a conservator and an appointed Board on one hand, and a monitoring situation on the other. Or maybe I’m full of hopium and Morath already has a full-on takeover plan at the ready and he’s just waiting for the ink to dry on the SCOTx decision before they hit Send on the press release. Hell if I know. But if the Mayor’s threat intel is accurate, and I tend to think he has the goods, then we’ll know very soon what’s up. Reform Austin has more.

Abortion funds’ lawsuit against the “sanctuary cities” guy tossed by SCOTx

Mar 1st, 2023

by Charles Kuffner.

Comments are off for this post

Unfortunate.

The Texas Supreme Court upheld the right of an anti-abortion activist to call abortion advocacy groups criminal enterprises and emphasized the state’s 1921 law criminalizing abortion is in force.

In the majority and the concurring opinions issued Feb. 24, the Supreme Court took on three abortion advocacy groups that hoped to proceed with defamation claims in state trial courts against anti-abortion activist Mark Lee Dickson and his organization Right to Life East Texas.

Two courts of appeals came to different conclusions, with the Seventh District finding the defendants’ statements protected political speech and the Fifth District finding Dickson’s statements inconsistent with the Penal Code and permitting the defamation suit to continue.

Justice Jane Bland, writing for the court, held the statements “are protected opinion about abortion law made in pursuit of changing that law, placing them at the heart of protected speech under the United States and Texas Constitutions.”

Dickson, during the course of a “Sanctuary City for the Unborn” campaign meant to get local municipalities in Texas to pass resolutions declaring themselves sanctuary cities, used promotional materials and social media that included statements such as abortion groups were criminal organizations and murderers.

During oral argument last October, Jennifer Ecklund of Thompson Coburn, the attorney for Lilith Fund for Reproductive Equity, Texas Equal Access Fund and Afiya Center, said, “People are afraid to express their view for fear that they will also be called literal criminals who might be prosecuted, based on things that they believe were totally constitutional based on this court’s pronouncements and the U.S. Supreme Court’s pronouncements.”

Bland noted the statements were made before Roe v. Wade was overturned and amid decades of fervent debate regarding the morality and legality of abortion.
“Equally apparent is that such statements reflect an opinion about morality, society, and the law,” Bland wrote. “The collective impression is not that Dickson was disseminating facts about particular conduct, but rather advocacy and opinion responding to that conduct. Dickson invited the reasonable reader to take political action.”

[…]

The majority opinion affirmed the Seventh District appeals court ruling and reversed the Fifth District’s ruling, remanding both to their respective trial courts for entry of dismissal orders.

See here and here for the background. I was obviously way too optimistic about this one. I can see the Court’s reasoning but I think they got it wrong. Not much else to say. Bloomberg Law has more.

Paxton makes his plea to the Lege

Feb 22nd, 2023

by Charles Kuffner.

Comments are off for this post

It’s more accurate to say that one of his assistants pleaded for him while he mostly sat silent, but whatever.

The only criminal involved

Days after the Texas house speaker openly opposed using taxpayer dollars to settle a whistleblower suit against Attorney General Ken Paxton’s office, a top agency lawyer said avoiding the payout would only end up costing the state more.

“It’s ultimately in the interest of the state from a financial perspective” to pay the settlement now, Assistant Attorney General Chris Hilton told a panel of House budget writers. “Financially speaking, there is no upside for the state to this case; even total vindication at trial results in a significant expenditure.”

Hilton said the agency has already racked up $600,000 in legal fees fighting the lawsuit. The agency is required to use outside lawyers in the case because of the conflict of interest, which has driven up the cost, Hilton said.

[…]

Paxton, a Republican, was present Tuesday but deferred to his team for most answers.

State Rep. Jarvis Johnson, D-Houston, asked Paxton directly whether he would use his own campaign dollars. Hilton interjected, noting that the lawsuit is against the agency, not Paxton personally.

“There is no whistleblower case where any individual has paid anything because the individual is not liable under the terms of the statute,” Hilton said. He added, “Under the terms of the settlement, there is no admission of fault or liability or wrongdoing by any party.”

Under the state’s election code, Paxton is allowed to use campaign funds to cover his legal defense. Since he was sued in his official capacity, those costs are not considered a “personal use.”

It’s a different scenario than in 2016 when Paxton wanted to use out-of-state gifts to cover his legal defense in the ongoing securities fraud case against him. The Texas Ethics Commission at the time warned Paxton he would violate the law if he used those funds because the accusations in that case did not stem from his officeholder duties.

On Thursday, state prosecutors said the Department of Justice had transferred the most recent corruption case out of the hands of federal attorneys in Texas and into the Washington-based Public Integrity Section. The reason for the shift was unclear, though Paxton’s attorneys had requested it.

Tuesday’s budget hearing was the first time Paxton has faced lawmakers since the settlement was announced. Some House members seemed resigned about their options.

Texas Rep. David Spiller, R-Jacksboro, and Rep. Steve Allison, R-San Antonio, said the state seems to lose no matter if they pay now or after a hypothetical trial concludes.

“Even if you win, there is no ‘win,’” Spiller said, referring to how the state would still owe outside lawyers.

“We’re kind of in the proverbial rock and a hard place,” Allison said.”Either we pay $3.3 million now or pay far more than that either in additional legal expenses or (because of) an unfortunate result.”

State Rep. Mary González, an El Paso Democrat who chairs the subcommittee, questioned whether Paxton is acting in the public’s interest.

She noted Paxton has declined to represent some state agencies, a key duty of his office, leaving them to pay for outside legal counsel out of their own budgets and at an additional cost for taxpayers. An ongoing case by a conservative activist against the Texas Ethics Commission, for instance, has cost the state more than $1 million.

Hilton said that occurs only in a “tiny percentage” of cases, about 60 in the last year, most of which he said were because the agencies had asked for their own counsel. Others were because the statute did not allow the office to represent an agency, Hilton said, and a smaller amount were because a case conflicted with the state’s obligation to “uphold the Constitution.”

A lot of similarity to what the whistleblowrs’s attorneys were saying, though without any reference to their quest for justice against a crook, as that would have been super awkward. I’m beginning to wonder if any member of the Legislature is going to arrive at my proposal to pay off the settlement and then cut Paxton’s budget by a commensurate amount or if I’m going to need to hire a lobbyist to explain it to them. It’s not that hard, y’all! You can do it.

The Statesman adds a few extra bits.

Hilton argued the cost to taxpayers could exceed $3.3 million if the lawsuit were to continue, in part because the case is procedurally in the early stages, although “it has been pending for a while.” He said the discovery process has yet to begin and that undertaking is lengthy, intensive and costly.

“It strikes me that we’re kind of between the proverbial rock and a hard place in that we either pay the $3.3 million now, or pay far more than that, either in additional legal expenses or an unfortunate result,” said subcommittee member Rep. David Spiller, R-Jacksboro.

[…]

When asked by lawmakers Tuesday what would happen if the Legislature does not approve the settlement payment, Hilton said it’s “difficult to predict” exactly what the next steps would be.

“Because it’s pending litigation, I don’t want to get into too many details,” Hilton said. “Under the terms of the settlement, it is contingent upon all necessary approvals.”

[…]

On Tuesday, Paxton also asked House lawmakers for additional money in the next biennium to hire more staff and to offer competitive pay.

Paxton said in recent years the agency has faced increasing turnover due to staff leaving for other state jobs that in some cases can nearly double their salaries at the attorney general’s office.

Maybe part of the problem is that Paxton is a terrible manager in addition to being the kind of corrupt boss that eight of his trusted lieutenants felt the need to sue, I dunno. My advice to the Lege for how to handle this stands. At the very least please don’t give him any more money. Surely by now we have all the evidence we need that he can’t be trusted with it.

Why should Ken Paxton’s whistleblowers suffer for his sins?

Feb 21st, 2023

by Charles Kuffner.

2 comments

That’s the question their lawyers ask in a DMN op-ed.

The only criminal involved

The whistleblower suit is currently pending at the Texas Supreme Court on appeal of an esoteric argument made by the attorney general. Recently, the Office of the Attorney General and the whistleblowers reached a settlement where the whistleblowers would receive $3.3 million to compensate them for lost wages, compensatory damages and attorneys’ fees incurred in the 2-year-old court battle.

The Texas Legislature must now decide whether to approve payment of the settlement. If the Legislature does not approve payment, the case will return to court, taxpayers will pay millions more in attorneys’ fees and even more for damages and plaintiffs’ attorneys’ fees if, as expected, the whistleblowers win a jury verdict. The attorney general’s office has already paid its private lawyers approximately $500,000 in attorneys’ fees and the parties have yet to even conduct discovery because of the appeal.

Some have criticized the settlement as “hush money” or argued that it would prevent the public from learning the details related to the accusations. This is incorrect. The whistleblowers have already provided tremendous detail in their 129-page lawsuit, which is a public document. Also, the settlement does not prohibit the whistleblowers from discussing the case or cooperating with law enforcement.

The suggestion that the whistleblowers should be forced to continue their lawsuit so discovery in the suit can be used to investigate the attorney general’s conduct is also unfair. The whistleblowers did their part. They reported illegal conduct to law enforcement and, in return, lost their careers. It is law enforcement’s job to investigate these allegations, which it appears they continue to do. Likewise, the Legislature has tremendous authority to demand documents and testimony from Paxton and those in his office, but it has not.

Why should the whistleblowers, who have already sacrificed their employment and already spent more than two years in court, be asked to spend even more resources and time to investigate the alleged conduct, when the FBI and the Texas Legislature have a mandate and countless resources available to do so?

See here and here for some background. The assertion about the Lege holding Paxton accountable aside – you probably heard my guffaw from the comfort of your home – they do made a decent point. That said, it is well within the Lege’s purview to approve the settlement and then cut the AG’s budget by an equal amount, which is what I would argue. We’ve heard some tough talk from some legislators and from Speaker Phelan. It’s all talk for now, and their track record isn’t too encouraging. But there is a clear path that does honor what the whistleblowers did – and by the way, y’all should keep on talking about it, in lots of detail and in front of crowds, as often as you can – while still exerting a modicum official disapproval on the waste of space known as Ken Paxton. It’s on the Republicans in the Lege to take it.

So will the Lege pay off Paxton’s whistleblowers or not?

Feb 19th, 2023

by Charles Kuffner.

2 comments

It’s maybe a bit more complicated than I thought at first.

Always a crook

Texas House Speaker Dade Phelan says he is against using taxpayer money to pay Attorney General Ken Paxton’s $3.3 million settlement agreement in a whistleblower lawsuit filed by four former employees.

In an interview with CBS DFW on Wednesday, Phelan said it would not be “a proper use of taxpayer dollars” and that he does not anticipate that the $3.3 million cost will be included in the House budget.

“Mr. Paxton is going to have to come to the Texas House,” Phelan said. “He’s going to have to appear before the appropriations committee and make a case to that committee as to why that is a proper use of taxpayer dollars, and then he’s going to have to sell it to 76 members of the Texas House. That is his job, not mine.”

Lt. Gov. Dan Patrick, who presides over the Texas Senate, has so far remained silent on the issue. Patrick’s office did not respond to an American-Statesman request for comment Thursday.

[…]

In a statement released Friday, Paxton said he agreed to the settlement to limit the cost of continuing the litigation.

“After over two years of litigating with four ex-staffers who accused me in October 2020 of ‘potential’ wrongdoing, I have reached a settlement agreement to put this issue to rest,” Paxton wrote. “I have chosen this path to save taxpayer dollars and ensure my third term as Attorney General is unburdened by unnecessary distractions. This settlement achieves these goals. I look forward to serving the people of Texas for the next four years free from this unfortunate sideshow.”

The whistleblowers filed the lawsuit against the Office of the Attorney General, not Paxton personally, so the Legislature will have to decide whether or not to appropriate public money to pay the bill.

See here for the background and my well-earned skepticism that the Republican legislature would ever hold Ken Paxton accountable for anything, and here for the original story. Before we get into the details, there’s this to consider.

Attorneys for four former employees who accused Attorney General Ken Paxton of corruption urged lawmakers on Friday not to oppose their $3.3 million settlement — which must be approved by the Legislature because it’s being paid out with taxpayer money.

The attorneys for Blake Brickman, David Maxwell, Mark Penley and Ryan Vassar — all former top deputies to Paxton in the attorney general’s office — said their clients “courageously reported what they believed to be corruption and put the investigation in the hands of law enforcement where it belongs” and were now asking lawmakers to back their efforts to report wrongdoing.

Rejecting the settlement could discourage others from coming forth to report wrongdoing in state agencies in the future, they said.

“No Texas legislator should oppose these whistleblowers’ hard-fought claim for compensation to which they are entitled under the Texas Whistleblower Act,” the attorneys wrote. “State employees cannot be expected to report government corruption in the future if they know the Legislature won’t back their rights under the statute it passed for the very purpose of protecting them.”

[…]

The settlement agreement was announced last Friday and would include the $3.3 million payments to the four employees who were fired and lost wages after reporting what they believed to be Paxton’s crimes. It would also include an apology from Paxton, the retraction of a news release that called the former deputies “rogue employees” and a statement that neither side admits fault in the case.

But the proposed settlement has garnered some opposition from the public and lawmakers because it would be paid out of state funds. Budget writers in the Senate, like Dallas Democrat Royce West, have also expressed skepticism about the agreement.

Under the Texas Whistleblower Act, plaintiffs are allowed to sue the employing agency where the retaliation happened, but not a specific employee in their personal capacity. That is why the payment would be paid out of state funds and not Paxton’s personal funds.

In their statement, the attorneys told lawmakers that the former employees had unfairly lost their jobs and been smeared by Paxton in news stories for reporting what they believed to be serious crimes.

On Thursday, the Supreme Court of Texas, which had been considering a Paxton appeal to the whistleblower suit, put the case on hold to give the parties time to finalize the agreement. The parties have until April 3 to figure out whether lawmakers will agree to the settlement and must notify the court about any changes in the proceedings.

While I could be persuaded that some number of Republican legislators might be a bit low on patience with Paxton, the four whistleblowers will be much more compelling to them. They were all conservative Republicans in good standing themselves, and agreeing to a settlement does sweep this contentious and embarrassing matter under the rug. If they have to take it to court and eventually win, the price tag will be much higher, and as before the state would be on the hook for it. As far as that goes, from a risk management perspective, approving the settlement makes sense.

That said, I don’t see why the Lege has to appropriate an extra $3.3 million to the AG’s office to pay it off. I do think they are well within bounds to appropriate whatever they would have without this, and tell Paxton to figure out his budget on his own. If that means he has to make some uncomfortable choices, that’s his problem and the consequences of his own actions. I think Speaker Phelan has the right idea here, but it wouldn’t hurt to spell it out to the members who might think that they have to explicitly cover this cost. The budget for the AG’s office will have more than enough funds to cover this check. Ken Paxton can do the work to make it happen. That’s the best way forwawrd.

Last chance to file Winter Storm Uri lawsuits

Feb 17th, 2023

by Charles Kuffner.

Comments are off for this post

The two year anniversary of the big freeze of 2021 is upon us, and the statute of limitations for civil actions in this sort of thing is two years, so you know what that means.

When Cherrilyn Nedd left her uncomfortably cold Summerwood home during the February 2021 winter storm to stay with her in-laws — who had a generator — she never expected that she would return to find the house ruined. She left the faucets dripping and her cabinets open. Hurricanes worried her, not freezes.

But a hissing noise greeted Nedd, 53, when she and her husband came back the next day to check on their house. Water spewed from a broken pipe in the collapsed ceiling, flooding every room on the first floor — their bedroom, the kitchen, the dining room and the living room.

“What is going on?” Nedd asked herself, in shock, stepping through the water.

The couple shut off the water to the house and swept out as much as they could. They would spend nearly a year and some $90,000 fixing the home, but they would never get back the ruined photos of a family cruise and their nephew as a baby; the computer equipment Nedd used for her consulting work was destroyed.

Lawyers representing storm victims like Nedd are working to file the final lawsuits related to the disaster as its two-year anniversary arrives this week — and the two-year statute of limitations for filing suit begins to expire. Thousands are accusing power companies, distribution companies, electric grid operators and others of failing to prepare properly for it, creating a catastrophe that caused property damage, countless injuries and hundreds of deaths. One expert estimated the cost of the freeze was as high as $300 billion.

[…]

Nedd and others see the lawsuits as another way to force change. The defendants would likely need to see that it costs more to fail than to do what’s needed to keep the power on, said Greg Cox, a plaintiffs’ liaison counsel. The various lawsuits are being directed to one judge in Harris County who will handle all of them.

The plaintiffs include a person whose house caught fire when power was restored, another who had both feet amputated after getting frostbite and a disabled person whose ceiling collapsed on him while he was in bed, Cox said.

“This catastrophe was not caused by an act of God, but instead was caused by intentional decisions by individual Defendants made both before and during Winter Storm Uri that were known to other Defendants and caused multiple operational failures which combined to cause the failure of the ERCOT grid,” one lawsuit states.

The story notes the so-far feeble efforts to enact reform and the big legal question of whether ERCOT can be sued. Some number of lawsuits will not survive if the answer to that is no. More from the Chron:

This week’s anniversary of the crippling storm — blamed in the deaths of more than 200 and which left millions of Texans without power, heat and in some cases water — means that the two-year legal deadline for filing related lawsuits is about to take effect.

The result is that lawyers representing more than 1,500 Texans and businesses have filed more than 80 wrongful death, personal injury and property damage lawsuits against more than 360 energy companies, insurance companies and the Electric Reliability Council of Texas, the state’s grid manager, since Thursday. Dozens more lawsuits are expected to be filed in Texas courts this week. The deadline depends on the date of the injury to the plaintiff.

The new lawsuits will be combined with the 230 cases lodged in 20 counties across Texas. Those cases, which include more than 1,500 individuals and businesses, have been consolidated into one multidistrict litigation docket in Harris County for the purpose of case management. The plaintiffs seek billions of dollars in damages.

[…]

But the individual cases represent just a slice of the legal disputes involving Texas energy companies. A couple dozen power companies have sued ERCOT and the Texas Public Utility Commission challenging their decision to increase the wholesale price of electricity by 650 percent to $9,000 per megawatt-hour. A decision could come this week.

Two other cases pending before the Texas Supreme Court challenge ERCOT’s claim that it is immune from civil lawsuits. A decision on that point is expected this spring.

Meanwhile, three energy companies — Brazos Electric Coop, Just Energy and Griddy — filed for corporate bankruptcy and restructuring.

“This litigation is massive, unlike anything we have ever experienced in Texas,” CenterPoint Energy Executive Vice President Jason Ryan said. CenterPoint is one of the companies being sued.

“What happened during those four to five days in February 2021 was the largest transfer of wealth in Texas energy history,” Ryan said. “The legal issues surrounding Winter Storm Uri are incredibly complex. Billions and billions of dollars are at stake.”

Scores of Texas electric companies asked a Houston appeals court Friday to dismiss the cases against them, saying the claims against them are without legal merit, would “upend the state’s electricity markets” and would “allow for ‘ruinous’ liability for entities that don’t contract with or deliver electricity to consumers.”

“This litigation is as unprecedented as the 2021 winter storm that spawned it,” lawyers for the power generators, such as Dallas-based Luminant and Houston-based NRG, argued in legal documents filed last week. “The stakes are exceedingly high. If permitted to proceed, this litigation will upend the state’s electricity markets, stretch Texas negligence and nuisance law beyond recognition, and make the state a national outlier.”

See here, here, and here for some background on the bankruptcies and the lawsuits related to them. The expectation is that the cases before the appeals court will be allowed to proceed, according to the story. We’re going to have this litigation for a long time. I don’t know how much of that wealth will be transferred back, but it sure needs to be a lot.

AG argues for separating that San Antonio criminal justice reform proposition into multiple questions

Feb 17th, 2023

by Charles Kuffner.

1 comment

Not a surprise, but an aggressive position to take.

Attorney General Ken Paxton’s office is urging the Texas Supreme Court to side with opponents of a proposed charter amendment that seeks to decriminalize marijuana and abortion, as well as enact a host of other police reforms.

Solicitor General Judd Stone submitted a letter to the court Wednesday calling the proposal a “grab-bag of provisions” that “flagrantly violates” a state law prohibiting multi-subject charter amendments.

Stone urged the court to grant a petition filed by the anti-abortion group Texas Alliance for Life Inc. (TAL) requesting that the city reject the proposed ballot language, and instead require a vote on each provision individually.

“While the substance of this proposed charter amendment conflicts with multiple substantive provisions of state law, this mandamus proceeding concerns a procedural problem: the charter amendment plainly violates Texas law’s longstanding prohibition on municipal charter amendments that ‘contain more than one subject,’” Stone wrote.

[…]

City Attorney Andy Segovia told reporters last week he believed most of the charter amendments’ provisions were at odds with state law and therefore unenforceable by the city even if they’re approved by voters.

Stone’s letter agreed with that assessment and accused San Antonio officials of “abuse[ing] their discretion by certifying and including this charter amendment on the ballot.”

In a written response to TAL’s petition Tuesday, Segovia defended his decision to place the amendment on the ballot as written because city officials “plausibly read the proposed charter amendment language to encompass only ‘one subject’ as required by statute.”

Segovia added that opponents should challenge the validity of the amendment after the election, not before.

Stone’s letter disagreed, and asked the Texas Supreme Court to take swift action against the proposal in its entirety. He suggesting the court has long favored stopping such charter amendments before they’re voted on, something that’s still possible if it can prevent San Antonio from including it on the ballot this week.

“When there is an opportunity to correct a ballot before the election, waiting to address the issue through a post-election contest and, potentially another election, is not an adequate remedy,” Stone wrote. “Because respondents can correct the ballot now, [TAL’s] mandamus is appropriate.”

See here for the background. I still think, based on past history, that SCOTx would prefer to not get involved at this time, but I’m somewhat less confident of that now. Both sides of this argument are defensible, so it really is a question of whether SCOTx wants to step in now or just wait for the inevitable lawsuit later. For sure, if this passes it will be a quick matter before they have to rule on a temporary restraining order one way or the other about enforcement. Breaking it up into its components means there will be multiple lawsuits instead of one. I don’t know what they’ll do, but as I said before, we’ll surely find out quickly. San Antonio City Council approved it for the ballot as is, which was also as expected. Now we wait to see what if anything SCOTx does. The Current has more.

San Antonio marijuana decriminalization referendum already facing a legal challenge

Feb 14th, 2023

by Charles Kuffner.

1 comment

Don’t think this one will work, but after that who knows.

Opponents of the so-called Justice Charter have filed an emergency petition asking the Texas Supreme Court to require separate votes for each of its provisions, including decriminalizing marijuana and abortion and banning police chokeholds and no-knock warrants.

Progressive groups last month submitted roughly 38,000 petition signatures to get the proposed charter amendment included on the May municipal election ballot, a move San Antonio City Attorney Andy Segovia signed off on last week.

On Friday the anti-abortion group Texas Alliance for Life Inc. (TAL) filed a petition requesting that the city reject the proposed ballot language, which it says violates a state law prohibiting multi-subject charter amendments, and require each issue to be listed and voted on separately.

“Respondents have no discretion to force voters to approve or reject, all or nothing, charter provisions dealing with issues as varied as theft, graffiti, or prohibiting cooperation with state agencies regulating abortion providers,” wrote attorney Eric Opiela, a former executive director of the Republican Party of Texas.

City Council is expected to order that the ballot proposition appear on the May 6 ballot Thursday, a formality they don’t get to exercise judgment over. The deadline for setting the May ballot is Friday.

“Once Friday’s deadline passes, it is impossible for Respondent, San Antonio City Council to add additional measures to the May 6, 2023, ballot, preventing the separation of the proposed charter amendments into their separate subjects as required by law,” Opiela wrote.

“The tens of thousands of residents who signed this petition understood that each of these police reforms are part of a comprehensive approach to public safety, and we expect to vote on them in the same way they were presented — as one unified package,” Act 4 SA Executive Director Ananda Tomas said in a statement Sunday night.

Segovia said the city would defer to the amendment’s authors.

“We have until noon on Tuesday to respond to the Texas Supreme Court. Our position remains that the Council will put the petition on the ballot as one Justice Policy proposal because that was the way it was presented to those who signed the petition,” Segovia said in an email Sunday.

See here for the previous entry. I Am Not A Lawyer, but I don’t know offhand of any successful recent efforts to split up a ballot proposition like this. These are all criminal justice reform measures, and if the law is usually interpreted broadly then I don’t think there’s a leg to stand on. I also think that SCOTx would prefer to wait until the voters have their say, as then they have a chance to duck the question. If they’re going to act I’d expect it to happen before SA City Council votes to put the measure on the ballot on Thursday. So we’ll know soon enough. TPR has more.

Paxton settles with whistleblowers

Feb 11th, 2023

by Charles Kuffner.

5 comments

Meh.

The only criminal involved

Attorney General Ken Paxton and four of his former top deputies who said he improperly fired them after they accused him of crimes have reached a tentative agreement to end a whistleblower lawsuit that would pay those employees $3.3 million dollars.

In a filing on Friday, attorneys for Paxton and the whistleblowers asked the Texas Supreme Court to further defer consideration of the whistleblower case until the two sides can finalize the tentative agreement. Once the deal is finalized and payment by the attorney general’s office is approved, the two sides will move to end the case, the filing said.

“The whistleblowers sacrificed their jobs and have spent more than two years fighting for what is right,” said TJ Turner, an attorney for David Maxwell, a whistleblower and former director of law enforcement for the attorney general’s office. “We believe the terms of the settlement speak for themselves.”

Paxton, a Republican who won a third four-year term in November, said in a statement that he agreed to the settlement to save taxpayer money and start his new term unencumbered by the accusations.

“After over two years of litigating with four ex-staffers who accused me in October 2020 of ‘potential’ wrongdoing, I have reached a settlement agreement to put this issue to rest,” Paxton said. “I have chosen this path to save taxpayer dollars and ensure my third term as Attorney General is unburdened by unnecessary distractions. This settlement achieves these goals. I look forward to serving the People of Texas for the next four years free from this unfortunate sideshow.”

The tentative agreement would pay $3.3 million to the four whistleblowers and keep in place an appeals court ruling that allowed the case to move forward. Paxton had asked the Supreme Court to void that ruling. The settlement, once finalized, also will include a statement from Paxton saying he “accepts that plaintiffs acted in a manner that they thought was right and apologizes for referring to them as ‘rogue employees.’”

The attorney general’s office also agreed to delete a news release from its website that called the whistleblowers “rogue employees.” The news release had been deleted as of Friday morning.

[…]

Two weeks ago, three of the four plaintiffs in that lawsuit – Penley, Maxwell and Vassar – asked the Texas Supreme Court to put their case on hold while they negotiated a settlement with Paxton. Brickman initially sought to oppose the motion but signed onto the settlement agreement filed with the court Friday.

See here for the previous entry. Good for the fired guys getting paid – Paxton did them wrong, and they made him pay for it, which is as it should be. And as this stands, the ridiculous argument that Paxton as an elected official is exempt from the Texas Whistleblower Act remains a crackpot theory and not an official opinion of the Supreme Court. Someone may try that again some day, but maybe this demonstrated the weakness of that claim. We can only hope.

On the other hand, all of the details of what happened here are going to be forever swept under the rug. Did Paxton do any of the things that he was alleged to have done – as a reminder, the list includes “bribery, tampering with government records, obstruction of justice, harassment and abuse of office”, as well as blatantly lying about the charges on the campaign trail? We’ll never know for sure, unless the FBI gets off its rear end and files criminal charges against him. And, um, not to put too fine a point on it, but where is that three million bucks to settle this going to come from? If the answer to that is “your tax dollars and mine”, well, I’m not so sure Paxton will be incentivized to actually learn a lesson from all this, you know? It’s true that a verdict and judgment against Paxton would have run into a lot more dough, also your taxes and mine, but I have this nagging feeling that Paxton was basically playing with house money. The asshole got away with it again.

Okay, maybe not:

The payment for the settlement would come out of state funds and has to be approved by the Legislature. After the tentative agreement was made public, state representative Jeff Leach, the Republican from Plano who oversees the House Judiciary and Civil Jurisprudence Committee, said he was “troubled that hardworking taxpayers might be on the hook for this settlement between the Attorney General and former employees of his office.”

“I’ve spoken with the Attorney General directly this morning and communicated in no uncertain terms that, on behalf of our constituents, legislators will have questions and legislators will expect answers,” Leach said in a statement to the Texas Tribune.

Yeah, well, I’ll believe that when I see it. The next time the Republicans hold Ken Paxton accountable for anything will be the first time that happens. The Chron has more.

Paxton seeks settlement with some of the whistleblower plaintiffs

Feb 1st, 2023

by Charles Kuffner.

Comments are off for this post

Very interesting.

The only criminal involved

Texas Attorney General Ken Paxton’s legal team is in settlement negotiation talks with three of the four former employees who filed a whistleblower lawsuit against him for firing them after they accused Paxton of criminal acts.

Paxton’s lawyers, in a joint filing last week with attorneys for Mark Penley, David Maxwell and Ryan Vassar — Paxton’s former deputies — asked the Texas Supreme Court to put the whistleblower case on hold to give the parties time to negotiate a settlement. The lawyers wrote they were “actively engaged in settlement discussions” with mediation set for Wednesday.

Lawyers for a fourth plaintiff, Blake Brickman, opposed the motion in their own filing and urged the court to move forward with its consideration. The news was first reported by The Dallas Morning News.

[…]

Paxton has argued in state court that he is exempt from the Texas Whistleblower Act because he is an elected official, not a public employee and that he fired them not in retaliation for their complaint, but because of personnel disagreements. An appeals court has ruled against him and allowed the case to move forward. But last January, Paxton appealed his case to the Texas Supreme Court.

The joint filing by Paxton’s lawyers and the three plaintiffs says the court should defer its review of the case until Feb. 9 to give the parties an opportunity to resolve the issue outside of the courtroom.

Paxton’s office did not immediately respond to a request for comment.

Brickman’s lawyers, Thomas Nesbitt and William T. Palmer, said in their filing that Paxton’s team has been delaying the case for two years and “there is no reason for abating this case.” They argued that the other plaintiffs sought the pause only because they intended to settle the case, but since Brickman was not involved in those negotiations, his claims still needed a quick resolution.

“Brickman respectfully requests that this Court deny the request for abatement,” they wrote. “It imposes further needless delay of the adjudication of Brickman’s claim.”

See here for my last update, in June. I am unabashedly rooting for Blake Brickman here. I respect that Messrs. Penley, Maxwell, and Vassar wish to settle. If they think that’s in their best interests, then godspeed and good luck. But if Brickman wants to pursue the case, there’s no reason to make him and SCOTx wait until they come to an agreement – if indeed they do. The question of whether Paxton as Attorney General can be sued at all in this context matters, and we deserve to get a ruling on that. (Yes, I may end up regretting this request, but such is life.) From a slightly more selfish perspective, the only way to ensure that the more sordid allegations from this complaint get an airing is if there’s a trial. Sure, if the FBI ever charges Paxton with a crime we may find out more, but given how long that has already taken and the amount of time Paxton has been able to evade trial for his state crimes, we may all be dead by the time that happens. So yeah, let this lawsuit continue. We all deserve some answers.

HISD in TEA limbo

Jan 24th, 2023

by Charles Kuffner.

1 comment

No one knows how long this might take.

Houston ISD is in limbo as the Texas Education Agency weighs how to proceed with a possible takeover of the state’s largest school system allowed under a recent Texas Supreme Court ruling.

The court lifted an injunction on Jan. 13 that had halted Education Commissioner Mike Morath’s 2019 move to take over the HISD school board, after allegations of trustee misconduct and repeated failing accountability ratings at Phillis Wheatley High School.

The state agency is now tight-lipped about the possible next steps, saying only that the “TEA continues to review the Supreme Court’s decision in order to determine next steps that best support the students, teachers, parents, and school community of the Houston Independent School District.”

While the state Supreme Court kicked the decision back to the lower courts, the Texas Education Agency could take action independent of the court. Experts say a few possibilities could play out: the TEA could appoint a conservator, replace the elected board with a board of managers, or allow the district to remain autonomous.

Even when well-intended, takeover efforts cause a great deal of chaos for parents, students and teachers, said Cathy Mincberg, president and CEO for the Center for the Reform of School Systems, a Houston-based nonprofit that provides consulting services for school boards.

“My impression when you look at takeovers across the country, they have not yielded the results that people wanted,” Mincberg said. “They swoop in trying to make a huge change in the system, and sometimes that’s just not possible.”

Mincberg, who has worked with school districts during takeovers, describes them as resulting in “highly confusing times.”

[…]

Attorney Christopher L. Tritico has represented three Houston-area districts — North Forest, Beaumont and La Marque — through their takeovers and due process hearings, which he described as “not a winning proposition.”

HISD will have a right to due process hearings, per state code, a move Tritico anticipates it will take. However, that hearing will be held by the TEA and overseen by a hearing officer the commissioner selects, making it difficult for school districts to get a ruling in their favor, he said.

Action may come soon, Tritico said.

“The time they are trying to buy is over,” he said. “I expect to move forward fairly soon now. There is nothing really standing in the way of (the TEA) moving forward in what the commissioner wants to do.”

[…]

In Houston ISD’s case, some legal and education experts raised the question of whether its still appropriate for the state to attempt a takeover. They say the issues that triggered a takeover — Wheatley’s failing accountability grades and board dysfunction — are now dated after the case has been deliberated in the courts for the last four years.

Since the initial announcement of a takeover, and the following lawsuits, Wheatley has increased its accountability grades to a passing score, and most of the board has been replaced.

Mincberg, president and CEO for The Center for the Reform of School Systems, said the threat of takeover gave the issues the public attention they deserved, and resulted in the board members being voted out.

“To me the Houston (ISD) problem got fixed,” Mincberg said. “The board members who were doing things that the TEA had trouble with were turned out and the district has become a lot more stable.”

See here for the background. As you know, I am of the same mind as Cathy Mincberg. I’m not even sure what the TEA would try to accomplish with a takeover. It seems very unlikely that they would be able to achieve any measurable improvement that wouldn’t have happened anyway. That’s assuming that the takeover would be about tangible results and not political aims. It’s hard to say at this point, and won’t be any clearer until the TEA says or does something. Until then, we wait.

SCOTx removes injunction blocking TEA takeover of HISD

Jan 14th, 2023

by Charles Kuffner.

Comments are off for this post

I don’t know what happens next, but there’s a lot more of this to play out.

The Texas Supreme Court cleared the way Friday for the state to potentially take control of the Houston Independent School District, which state education officials say has been plagued by mismanagement and low academic performance at one of its high schools.

Texas Education Agency Commissioner Mike Morath first moved to take over the district’s school board in 2019 in response to allegations of misconduct by trustees and years of low performance at Phillis Wheatley High School.

Houston ISD sued and, in 2020, a Travis County district judge halted Morath’s plan by granting a temporary injunction. The injunction was upheld by an appeals court, but the TEA took the case to the state’s highest court, where the agency’s lawyers argued last year that a 2021 law — which went into effect after the case was first taken to court — allows for a state takeover.

The Texas Supreme Court sided with TEA on Friday and threw out the injunction, saying it isn’t appropriate under the new law. The decision could allow TEA to put in place new school board members, who could then vote to end the lawsuit.

TEA told The Texas Tribune that it is reviewing the court decision. The agency didn’t immediately respond to questions about whether it has plans to install a new school board right away.

The Texas Supreme Court also remanded the yearslong case back to a trial court.

Houston ISD’s lawyers have already said they would welcome returning to a trial court so the temporary injunction can be considered under the updated law, adding that the district has been ready to make a case for a permanent injunction since 2020.

Houston ISD Superintendent Millard House II said in a press release Friday that the district’s legal team is reviewing the court’s ruling. He also touted the school district’s recent improvements, including at Phillis Whitley High School. The historic school received a passing grade last year from TEA — like a majority of the district’s schools — for the first time in nearly a decade, prompting a celebration at the school.

“There is still much more work to be done, but we are excited about the progress we have made as a district and are looking forward to the work ahead,” House said in the release.

Judith Cruz’s time as a Houston ISD trustee and as the school board’s president has been consumed by this fight. She was elected as a trustee shortly before Morath’s takeover attempt, and her term as president ended Thursday, the night before the Texas Supreme Court’s decision.

Hours after the ruling, she told the Tribune that it’s still too early to determine whether or how TEA would implement a takeover — as well as how district officials would respond to such a change. She said she hopes any potential changes would cause the least amount of disruption to students in the district. Houston ISD trustees will continue to serve as elected representatives for their community, she said.

“Whether elected or appointed, the focus should always be the children,” Cruz said.

Houston ISD trustee Daniela Hernandez, the board’s current president, said the community has generally supported elected representatives instead of appointed ones, citing the pushback that TEA saw from local parents when the state agency first attempted the takeover.

She added that both the board and the school district have changed for the better since 2019.

“We have been in an upward trajectory, and we can keep on improving,” Hernandez said.

See here for the most recent update. The Chron adds some details.

The takeover case has been long in the making. Education Commissioner Mike Morath first made moves to take over the district’s school board in 2019 after allegations of misconduct by trustees and Phillis Wheatley High School received failing accountability grades.The following year, HISD sued and a Travis County district judge provided the district some relief by granting a temporary injunction, bringing the Texas Education Agency’s plan to a halt. An appeals court upheld the injunction, but the TEA took the case to the Texas Supreme Court.

The justices heard arguments from both TEA and HISD in October over whether Morath had the authority to appoint a board of managers. The state argued that he does under a bipartisan law, enacted in September 2021, known as Senate Bill 1365, that gives the education commissioner authority to appoint a board of managers based on a conservator appointment that lasts for at least two years. The law became effective after the case was first taken to court.

The state appointed Doris Delaney to be a conservator for Kashmere High School due to its low academic performance in 2016.

HISD’s counsel argued that wasn’t enough to count under the law. The purpose of a campus conservator is to help make an improvement and Kashmere High School now has a passing rating, HISD’s lawyers said in October.

The latest Supreme Court opinion says that the school district failed to show that the TEA’s actions would violate the law.

“Because Houston ISD failed to show that the Commissioner’s planned actions would violate the amended law, the Court vacated the temporary order and remanded the case for the parties to reconsider their arguments in light of intervening changes to the law and facts,” according to the case summary.

The court’s opinion is here; I have not yet read it. One point I made in that last update is that seven of the nine Trustees that were on the Board at the time of the TEA directive in 2019 are now gone; Cruz and Hernandez replaced two of the members that the TEA had cited in their open meetings investigation. Replacing the Board now would be largely taking out trustees who had nothing to do with the original problems, and the one school whose then-failing grade was the fulcrum for the TEA is now passing. Whatever you think of the takeover idea or the conditions under which it was imposed, things are very different now and it just feels wrong to me to impose this now. I assume that will be the argument that HISD makes when the case is remanded back to the district court. I also presume that the TEA will wait until that court holds a hearing before taking any action. We’ll see. Reform Austin and the Press have more.

It’s re-redistricting time

Jan 13th, 2023

by Charles Kuffner.

1 comment

More amusing than alarming, with a bit of annoying as well.

The Texas Senate voted unanimously on Wednesday to again take up the decennial process of redrawing the boundaries of the state’s political districts a year and a half after the Legislature completed the process and yielded new districts. Those newly drawn districts increased the Republican majorities in both the Senate and the House and reduced the voting strength of voters of color.

The redistricting process this year is mostly procedural and is not expected to produce very different results.

Sen. Joan Huffman, R-Houston, said she was taking the step “out of an abundance of caution” to ensure that Legislature had met its constitutional requirement to apportion districts in the first regular session after the federal census, which is done every 10 years. Because of the pandemic, census numbers were not released until after the end of the last regularly scheduled legislative session on May 31, 2021. Redistricted maps were passed in a subsequent special session that year.

Two Democratic lawmakers, Sens. Roland Gutierrez of Antonio and Sarah Eckhardt of Austin sued, saying that violated the Texas Constitution because the census numbers weren’t received until Aug. 12, 2021. That would make the current legislative session, which kicked off on Tuesday, the first regular session since the release of those numbers.

Eckhardt said the Senate’s decision to take up the issue again proves she and Gutierrez were right on the law, but she said she didn’t expect much change in the maps drawn by the state in 2021.

“I think this will be a check-the-box exercise,” she said. “I would have liked to have seen in the first go-around a substantive discussion and taking the input of constituencies into account.”

[…]

Huffman, who led the redistricting committee in the 2021 legislative session and will again lead its efforts this year, said the procedure would follow similar rules to those applied last session and would create an opportunity for “regional hearings” to be held in the Capitol that will be streamed on the internet for the public across the state. The public will also have an avenue to testify in those hearings virtually. Those hearings will be held between Jan. 25 and 28.

See here, here, and here for some background. While this resolution is only for the Senate, the same exercise will need to occur for the House and the SBOE as well; Congressional redistricting is exempt because the constitutional provision only applied to state offices. I think Sen. Eckhardt is correct in her assessment, and it’s a shame that the State Supreme Court did not see it the same way, but here we are. I presume the federal litigation over Texas’ maps and processes will be unaffected by this – the legal issue in question was one of state law. As noted I don’t expect much to change, but anytime there is redistricting there is the potential for shenanigans, so stay alert. Reform Austin.

SCOTx to decide if ERCOT can be sued

Jan 11th, 2023

by Charles Kuffner.

1 comment

Big decision to come.

Lawyers argued before the Texas Supreme Court on Monday over whether the state’s power grid operator should be protected from lawsuits, a question that has become especially important after the deadly February 2021 freeze.

Individuals and insurance companies have filed lawsuits against the Electric Reliability Council of Texas and power generators since the storm, which left millions of Texans without power in bitterly cold temperatures and hundreds of people dead after electricity was cut in large portions of the state. How those cases proceed will depend on what the Supreme Court decides in the coming weeks or months.

Lawyers for the ERCOT — the nonprofit that manages the state grid — argued Monday that it should receive the same “sovereign immunity” that largely shields government agencies from civil suits.

Because ERCOT is empowered by the state to fulfill a public function and is overseen by a state agency — the Public Utility Commission of Texas — ERCOT should not be held liable, they argued, saying legal claims against ERCOT should instead be the responsibility of the PUC.

ERCOT “has no function other than what the state assigned,” attorney Wallace Jefferson said. “It has no autonomy from the state. … It has no private interest. Its interest is in furthering the public’s interest in a reliable grid. The state controls its bylaws. And the state sets the fee that funds the organization.”

The opposing argument from attorneys in two separate cases was that giving ERCOT such immunity was inappropriate.

Attorneys for Panda Power Funds, a Dallas-area private equity firm that develops and operates power facilities, and CPS Energy, San Antonio’s energy utility, argued that just because ERCOT is regulated by a government entity doesn’t make it part of Texas government.

CPS Energy attorney Harriet O’Neill said the state Legislature has the power to make ERCOT explicitly part of the government, “but despite many opportunities, including after the winter storm, the Legislature has never conferred government status on ERCOT, which it knows how to do.”

Supreme Court Justice Jeff Boyd offered an analogy to explain the lawyers’ arguments: Imagine the state Legislature decided that all the yellow stripes on highways needed to be repainted red. If the Texas Department of Transportation did the work and was accused of doing it wrong, it would be protected from lawsuits.

But if the Legislature instead told TxDOT to authorize another entity to do the work and TxDOT set the prices and dictated how to paint the stripes, would the contractor then be considered a government entity?

See here, here, and here for some background. Note that the original Panda Power lawsuit was filed in 2019, well before the infamous freeze, and is over their claim that ERCOT intentionally manipulated projections of energy demand to encourage new power plant construction. I think Justice Boyd’s analogy is a good one and I can see the merit in either side. On balance, though, I think we overextend the principle of sovereign immunity in this state, and as such I’m rooting for the plaintiffs. But this could go either way. We ought to know in a few months.

Mayor Turner’s final year

Jan 3rd, 2023

by Charles Kuffner.

4 comments

The big local political story, besides whatever violence the Legislature commits to Houston and/or Harris County, will be the 2023 Mayor’s race. The incumbent still has a full year to go, though, and he has his plans for what he wants to do with his remaining time in office.

Mayor Sylvester Turner

Mayor Sylvester Turner plans to focus his final year in office on moving existing projects across the finish line, with an emphasis on housing, crime, parks and community facilities.

Turner said he wants to accomplish his administration’s goal of helping to build 10,000 new housing units in his second term, while also continuing the city’s progress since 2012 in reducing homelessness. His “One Safe Houston” plan to address violent crime has several elements that are funded through the rest of his tenure, including expanded crisis response teams. And there are renovations underway in 22 community parks that he wants to see through before his term ends in January 2024.

“It’s about finishing up many of the priorities and projects that are currently on the books,” said Turner, who revealed recently that he worked this summer while battling a cancer diagnosis. He now is cancer-free.

Next year, though, could force confrontations with structural issues at City Hall that Turner is satisfied to leave to his successor, such as a potential adjustment to the city’s revenue cap, and the resolution of a yearslong contract stalemate with firefighters that has spanned nearly his full tenure, and which now rests with the Supreme Court.

[…]

Turner has said a garbage fee — Houston is the only city in Texas without one — is necessary to sustain Solid Waste operations, though he is not likely to take that on in his final year. He likewise has argued an adjustment to the revenue cap is necessary. The most recent discussion of the cap came in October, after it forced the city’s eighth rate cut in nine years. At-Large Council Member Michael Kubosh wondered aloud how the city could afford its growing police and fire budgets with those restraints. Turner said he would present an adjustment to the cap if council desired it.

Turner said that adjustment proposal still is in the works but acknowledged he is not “100 percent on it.”

“Some of the these things need to be left for the next mayor,” he said, and the ruling in the firefighters dispute could affect his calculus, as well. “A modification of the revenue cap may not be adequate to address it. In that case, I won’t present it. I’ll leave it up to the next mayor to address how he or she, and the people in this city, should deal with it.”

Turner argues he has done his part tackling intractable problems facing the city. The 2017 pension reforms he ushered in have slashed the city’s daunting debt in that arena from a $8 billion liability to about $1.5 billion. The issue that once dominated city government and politics now is mostly an afterthought. The city’s liability for retirement benefits likewise was expected to grow to $9 billion over 30 years, but cuts Turner implemented are expected to reduce that at least in half.

“I can’t fix everything, but we’ve fixed a whole lot,” Turner said.

Turner and other elected leaders in the city long have said the cap strains the city’s finances and hinders its ability to provide adequate resources to residents. It has cost the city about $1.5 billion in revenue since it first hit the cap in 2015. In that time, it has saved the owner of the median Houston home about $946, or about $105 per year.

I’m not sure I have any hope left about raising the revenue cap. If there actually is some action on it, the most likely scenario is what we have done before, which is to carve out a limited exception for public safety spending. That’s more likely to pass a public vote, and less likely to get cracked down on by the Legislature. It’s at best a band-aid, if it even happens, but you know nothing significant will ever happen until we have a different state government, and we know that ain’t happening for at least another four years.

As for the firefighters, there are two issues that need to be resolved by the courts before anything gets left as a mess for the next Mayor, and those are the pay parity lawsuit and the HFD collective bargaining lawsuit, both of which just had hearings before SCOTx. I have no prediction for either – we may or may not get rulings on them before the November election, but if we do there will be a big new issue for the candidates to talk about. Modifying the revenue cap in some form would leave the next Mayor a bit of leeway in how they try to resolve whatever they need to resolve with these issues. I don’t need more reasons to support modifying the stupid revenue cap, but other people do, so there you have it.

As for the long-discussed trash fee, I support the idea as long as the funds are used to really improve solid waste collection in the city. There’s plenty of innovation out there, but just making sure everything gets picked up in a timely fashion, which is a labor and equipment issue at its core, is the first priority. I think this has a better chance of passing this year than in the future just because some number of people who won’t be facing re-election can vote for it, but we’ll see. Just have a productive last year in office, that’s all I ask.

And now we have a judicial loser contesting the election

Dec 9th, 2022

by Charles Kuffner.

8 comments

The Republicans did warn us they’d be sore losers.

Republican judicial candidate Erin Lunceford filed a petition Wednesday seeking a new election in Harris County’s 189th judicial district court race after losing by 2,743 votes out of more than 1 million ballots cast.

Lunceford’s opponent, Democrat Tamika Craft, won the election by 0.26 percent of the vote.

The petition, which names Lunceford as the contestant and Craft as contestee, claims numerous violations of the Texas Election Code, including a failure to provide a sufficient amount of ballot paper to 25 polling locations.

Harris County Republican Party Chair Cindy Siegel indicated there could be more election contests to come.

“During the last month, we’ve had a lot of our candidates that were in very close races that have been talking to us wanting to know the information that we’ve accumulated and have reported,” Siegel said. “Several of them are considering election contests.”

Andy Taylor, general counsel for the Harris County GOP, is representing Lunceford.

Taylor accused Harris County Elections Administrator Cliff Tatum, who took over the office starting in August, of intentionally causing ballot paper shortages in Republican-leaning neighborhoods.

“If it was just mismanagement, it was just gross incompetence, wouldn’t one think that the lack of paper would apply equally and uniformly across the map, so that there would be roughly an equivalent number of Democratic stronghold precinct neighborhoods as well as Republican precinct stronghold neighborhoods?” Taylor said. “And, yet, that’s not the way it’s breaking.”

Taylor alleged 80 percent of polling places with paper shortages on Nov. 8 were in areas considered Republican strongholds.

“I want to send a message to the Harris County elections administrator,” Taylor said. “Mr. Tatum, your day of reckoning has just started.”

In a statement, Harris County Attorney Christian Menefee said his office will keep a close eye on Lunceford’s election contest.

“I’m disappointed to see another losing candidate challenging the results of their election. Judge Lunceford previously served on the bench, so I trust she understands the seriousness of asking a court to disregard the votes of over a million residents across Harris County,” Menefee said. “This case will focus on the details of every aspect of the November 8 election in Harris County. My office will be involved in the case every step of the way to ensure people’s votes are protected.”

The petition is filed in Harris County, but the case will be heard by a judge from outside the county, according to Menefee’s office.

So many things to say, so I’ll bullet-point it:

– This is different from the ridiculous election contest filed in HD135 by a candidate that lost by 15 points and over 6,000 votes. That one would be heard in the House by a House committee, if Speaker Phelan for some reason doesn’t toss it as a frivolous waste of time. This one will be heard in a courtroom.

– As a reminder and a general principle, never believe a word Andy Taylor says.

– To put it another way, good luck proving intent. Also, reports from the field on Election Day about paper issues were very much coming from Democratic sites. The Texas Organizing Project didn’t file its lawsuit to extend voting hours because of problems in The Villages and Cy-Fair.

– Random fact: In 2020, Democrat Jane Robinson lost her race for Chief Justice of the 14th Court of Appeals by 1,191 votes out over over 2.3 million cast, a margin of 0.06 percent of the vote. You know what she did? She conceded gracefully and went on with her life.

– Another reminder: There were 782 voting locations on Election Day, and you could vote at any of them. There were a half-dozen voting locations within walking distance of my house on Election Day. Anyone who ran into a problem at one location could have gone to another. By all accounts, there were maybe 20-25 sites that have paper issues. That left a mere 750 or so alternatives, including ones that would have been very close by.

– In other words, please find me the people who showed up to vote at a location that was having paper problems, and did not wait for them to be fixed, did not go to another location, did not come back later, and as a result did not vote. You really gonna claim that there were over two thousand of them, and all of them were going to vote for Erin Lunceford?

– Did I mention that the Republicans opposed the extension of voting hours in Harris County (and not in red-voting Bell County, which also had voting location issues), and also opposed the counting of provisional ballots cast by people who voted after 7 PM? As I said before, the obvious way to deal with delays in opening a given voting location is to push back the closing time for it. But the Republicans opposed that at every turn.

– Can you imagine what the Republican response to this would be if it were a Democrat complaining about voting location problems? You could have voted elsewhere! You could have voted early! It’s your own damn fault you didn’t vote! Look at how zealously they opposed all of the efforts to expand voting access in the pandemic, including the third week of early voting that Greg Abbott ordered. You’re immunocompromised and you want to vote by mail or from your car because you’re afraid of a deadly disease? Too bad!

– The remedy, if they somehow win on these laughable claims, would be to redo the entire damn election. To say the least, that is a massive, massive upending of the regular democratic order. The amount of evidence they’d need to provide to come close to justifying such an ask, I can’t even begin to comprehend.

– But really, this is all about making noise and trying to cast doubt on the election administrator’s office and government in general in Harris County. It’s just the Big Lie in a slightly sanitized package.

SCOTx hears firefighter pay parity arguments

Nov 30th, 2022

by Charles Kuffner.

2 comments

Lots at stake here.

More than four years after Houston voters approved a measure that would grant firefighters equal pay with police officers, the legal battle to decide the referendum’s fate landed Tuesday in the hands of the Supreme Court of Texas.

The state’s highest justices heard oral arguments regarding Proposition B, the charter amendment pushed by the firefighters’ union and approved by voters in 2018. It would grant firefighters pay parity with police officers of a similar rank and seniority.

Justices also heard arguments in a similar case that stems from the city and union’s preceding contract stalemate.

It did not take long for the justices to probe the city’s divergent arguments in the two cases, which the fire union long has said conflict each other. One justice told attorneys representing the city they were operating on “a knife’s edge” between the two cases.

The court’s rulings, which likely will not be released for months, could have drastic consequences for the city’s roughly 3,900 firefighters, the annual City Hall budget and next year’s city elections. If it rules in favor of the union, it would give underpaid firefighters their biggest salary hikes in years, while introducing a hole in the city budget likely worth hundreds of millions of dollars.

The long-running legal dispute has its roots in a contract stalemate dating back to 2017, when the latest pact between the city and firefighters expired. The two sides were unable to reach a new deal in negotiations and mediation, and they have been locked in contentious court battles since.

Voters approved Prop B, the pay parity measure, by a 59-to-41 margin in 2018, but the city and the police union have contested its legality. The city has not implemented the measure, although City Council has given firefighters 6 percent raises in each of the last two budgets, with a promise to do so again next year.

The Prop B case centers on whether equal pay with police would conflict with the existing framework to pay firefighters, enshrined in state law and adopted by Houston voters in 2003.

After voters approved Prop B, the city and police union argued its new standard, comparing pay to police officers, conflicts with the state standard that compares pay to the private sector. That would run afoul of the law’s preemption clause, they argued, and the Texas Constitution, which says cities cannot pass laws or charters that conflict with state law.

The city, however, has made an incompatible argument in the other case heard Tuesday, which was consolidated with the Prop B hearings before the Supreme Court. In that case, the city has argued there is no private comparison to firefighters. And it has contended that phrase of the state law is unconstitutional, along with the judicial mechanism to enforce it, which the firefighters have sought to use.

In the Prop B case, the city says the pay parity measure is blocked by the state law. In the other, it argues that state law is unconstitutional.

You can read on for the details. This is the consolidation of two different lawsuits. I suppose under other circumstances the city would have a bit more leeway to make these apparently divergent arguments. The law can be weird like that sometimes. If the firefighters win, it’s going to cost the city a lot of money, though the firefighters say it won’t be as much as the city claims. I hope we don’t have to find out. We’ll likely get a ruling sometime next year, and I’m sure all of the people now running for Mayor will be keeping a close eye on it.

SCOTx allows provisional votes to be counted

Nov 23rd, 2022

by Charles Kuffner.

10 comments

Good.

The Texas Supreme Court ruled Tuesday that Harris County can include about 2,100 ballots cast during an extra hour of Election Day voting when officials certify the midterm results. But the state’s highest civil court also ordered Harris County to determine whether those late-cast ballots would affect the outcome of any races — and kept alive Attorney General Ken Paxton’s challenge to counting them.

It’s a win, at least temporarily, for Harris County officials in a fight against Paxton’s attempt to discard thousands of midterm ballots as election results are set to be certified Tuesday.

In an interview Tuesday, Harris County Attorney Christian D. Menefee said that about 2,100 provisional ballots cast after 7 p.m. Election Day should be counted. Those ballots were cast after a district court judge ordered Harris County polling places to remain open an extra hour because many locations had opened late that morning.

“The votes that were cast during that time period pursuant to a court order are still perfectly legal. And there’s nothing in the law that prohibits them from being counted,” Menefee said. “So our perspective is that those provisional ballots are no different than any other provisional ballots — they are to be counted.”

Harris County officials argued as much in a filing to the Texas Supreme Court on Tuesday. That came one day after Paxton petitioned the Supreme Court to toss the late-cast ballots.

[…]

In at least one race, the provisional ballots could impact the outcome. After provisional and mail-in ballots were counted, the incumbent for Harris County’s 180th Criminal State District Court, DaSean Jones, went from trailing Republican Tami Pierce to leading by less than 500 votes, the Houston Chronicle reported.

See here for the background and here for the court’s order. It’s just one page long, and the gist of it is this:

In this mandamus proceeding, which challenges Harris County election officials’ processing of the “later cast votes,” we grant the following temporary relief under Rule of Appellate Procedure 52.10(b):

Respondents are directed to conduct the canvass of the November 2022 election as required by the Election Code.

As part of the canvass, respondents are ordered to separately identify in the vote tabulations the number of “later cast votes” for each candidate in each race and for or against each proposition, so that candidates, the parties, and this Court may ascertain whether the “later cast votes” would be outcome-determinative and so that the parties can assess the extent to which further litigation is warranted.

Respondents are ordered to provide the Court with a copy of the canvass results, including the separately tabulated “later cast votes,” as soon as they are available.

The petition for writ of mandamus remains pending before this Court.

I presume that last line is there in the event the provisional ballots have an effect on the 180th Criminal District Court race, in which event (again, I presume) the merits of the arguments will have to be addressed. Lawyers, please feel free to correct me as needed. The only other race that is close enough to be even theoretically affected by the provisional ballots is the County Criminal Court #3 race, where Porsha Brown trails by the even smaller margin of 267 votes. However, given that the provisional votes cast on Election Day favored Democrats, it’s even less likely for that race to be affected, and it would be impossible for both of them to be in a position to change.

I maintain as I said yesterday that it is highly unlikely that the 180th Court will be affected. If you throw out all of the Election Day provisional ballots, DaSean Jones still leads by 89 votes. There are apparently 2,100 provisional Election Day ballots in question, out of 2,555 total E-Day provisionals and 2,420 that included a vote in this race. The odds that Jones could lose the entire 360 vote net he got from the E-Day provisionals plus another 90 votes in this subset of the total ballots just strike me as extremely remote. I wish the stories that have been published about this would go into more detail about this as I have done – yes, I know, math is hard, but you could at least use “highly unlikely” language to offer some context. By the time this runs in the morning we’ll know what the official canvass says, and from there we’ll see if an election challenge will follow.

The Chron story, from a bit later in the day, has more details.

While the provisional ballots are included in the official count certified by Commissioners Court, the Supreme Court also is ordering the county to include in the final canvassed results a separate report that details the votes of the “later cast votes for each candidate in each race.” That way, candidates can determine whether this group of ballots would change the outcome of their race and “assess the extent to which further litigation is warranted.”

Given that Harris County voters cast more than 1.1 million ballots overall, the 2,000 provisional ballots have little chance of changing most election outcomes. However, a handful of candidates in tight races may consider legal challenges over election results.

“At this point, we do not anticipate that it impacts the outcome of any races,” Harris County First Assistant County Attorney Jonathan Fombonne said. “Of course the [Texas Supreme Court] proceedings remain pending and the court could rule on something. And of course there can always be election contests. Many of those races were close, and it wouldn’t surprise us to see candidates filing election contests.”

[…]

On Election Night, the Texas Organizing Project, Texas Civil Rights Project and ACLU of Texas obtained a court order from a judge requiring all Harris County polling locations to extend voting hours until 8 p.m. after the groups argued in a lawsuit that late openings at some polling locations prevented some residents from voting.

Voters who were in line by 7 p.m. were able to vote normally, while those who arrived between 7 and 8 p.m. were allowed to cast provisional ballots.

That evening, in quick succession, Paxton’s office filed its writ of mandamus asking the Texas Supreme Court to vacate or reverse the court order, and the Supreme Court responded by staying that order, saying votes cast after 7 p.m. “should be segregated,” without specifying whether they must be excluded from the final count.

Because the proceedings are still ongoing, it is too soon to know whether the ability to extend voting hours in the future could be impacted.

“The court hasn’t specified whether or not that’s legal,” Fombonne said. “The proceedings are pending. There may be an opinion in the future that addresses that question.”

Hani Mirza, legal director of the Texas Civil Rights Project’s voting rights program, was part of the team that sought the court order extending voting hours this year. The group also filed a lawsuit in 2018 obtaining a similar court order in Harris County. Mirza said in the case four years ago, Paxton’s office did not ask the Texas Supreme Court to intervene.

Nor did Paxton’s office intervene this year when voting hours were also extended by one hour in Bell County because of early morning glitches with check-in systems. The Bell County attorney confirmed last week that a court order there had not been challenged by the Attorney General’s Office or another party.

“It doesn’t make any sense outside of, obviously, cynical partisanship and these targeted actions against Harris County, the most diverse county in the state” Mirza said.

That sort of addresses my question above about the last line in the SCOTx order. We’ll just have to keep an eye on that. The election has been certified by Commissioners Court, which if nothing else avoids the drama of any further delays. As to who might file a contest, again we’ll have to see. Seems like a lot of fuss for something that is unlikely to go anywhere, but who knows.

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