Off the Kuff Rotating Header Image

Texas

SB8 litigation will stay with SCOTx

Another game of Calvinball, same result.

The U.S. Supreme Court denied on Thursday abortion providers’ latest request to intervene in the ongoing legal challenge against Texas’ restrictive abortion law, cutting off one of their few remaining paths to a speedy victory.

The case is currently before the 5th U.S. Circuit Court of Appeals, which sent the case to the Texas Supreme Court. That is expected to add months to the legal proceedings.

Abortion providers were hoping the U.S. Supreme Court would direct the 5th Circuit to send the case to federal district court, where a judge previously blocked the law.

[…]

“It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four Texas abortion clinics. “This law is cruel and unconstitutional, and I am deeply disappointed that our judicial system has done very little to stop it.”

The fix is in. The law means nothing. It’s about to get worse. Have a nice day.

Sid Miller’s political consultant indicted

Well, this is interesting.

Todd Smith, a top political consultant to Agriculture Commissioner Sid Miller, was indicted Tuesday on felony charges of theft and commercial bribery related to taking money in exchange for state hemp licenses that are doled out through Miller’s office, according to Travis County district attorney José Garza.

Smith was arrested in May, accused of taking $55,000 as part of the scheme, according to an arrest warrant affidavit. Smith and others were accused of soliciting up to $150,000 to get an “exclusive” hemp license from the Texas Department of Agriculture. Smith allegedly said $25,000 would be used for a public poll on hemp. A hemp license from the state costs $100, according to the arrest warrant.

“We are holding accountable powerful actors who abuse the system and break the law,” Garza said. “Our community needs to know that no one is above the law and will face justice.”

Smith could not immediately be reached for comment but his attorneys said in a statement that their client has not broken any laws.

“We are disappointed that the Travis County District Attorney has obtained an indictment against Todd Smith, he was not invited to address the grand jury. He is not guilty of these charges and intends to vigorously defend himself against the allegations made by the Travis County District Attorney’s Office,” attorneys Sam Bassett and Perry Minton said in a statement.

[…]

Miller on Tuesday evening declined immediate comment, saying he was just learning the news of the indictment from the Tribune reporter. He later went on conservative radio host Chad Hasty’s show and said he’s gonna review indictment, but he’s “not ready to throw [Smith] under the bus” and is “not surprised,” suggesting it’s politically motivated. Miller says he still doesn’t believe Smith did anything wrong.

Smith has faced scrutiny before over his conduct and ties to the Department of Agriculture. In 2018, the Austin American-Statesman reported that Smith promised a San Antonio businessperson an appointment with the Department of Agriculture in exchange for a $29,000 loan. And in 2016, Miller gave Smith’s wife a newly created assistant commissioner position, one of the highest-paying roles in the department.

Miller is unlikely to take this seriously, though he did dump Smith shortly afterwards. His Republican opponents have been all over the story, and I suppose it’s always best to be proactive. As for the indictment itself, I think we all know that this sort of thing either gets resolved very quickly, via a plea deal or (more likely) the charges getting tossed, or it drags out for months if not years. To whatever extent this has an effect on Miller’s re-election chances, it will be because of what has already happened. We already know what kind of a person Sid Miller is, but it never hurts to have a reminder. The Chron and Reform Austin have more.

Have I mentioned that we need to get more kids vaccinated?

Seriously, y’all.

Since November, 693,345 Texas elementary-age children have received at least one dose of the vaccine, accounting for about 24% of the state’s 2.9 million children ages 5-11 — and a figure in line with the national rate. Nearly 390,000 of the 5-11 group are fully vaccinated, while more than half of Texans ages 12-15 are fully vaccinated.

Texas’ child vaccination rate is higher than in many other Southern states, where rates as low as 10% are being recorded. In the first two weeks after the shot was approved for emergency use in the younger age group, some 100,000 children showed up to Texas school clinics, pharmacies and pediatricians’ offices to get inoculated.

[…]

At Texas Children’s Hospital in Houston, positive cases among patients went from zero in early December to some 70 patients with COVID-19 a month later, mostly among unvaccinated children, said Dr. Jim Versalovic, pathologist-in-chief for the hospital. Their hospitalizations of children with COVID-19 broke all previous pandemic records, and at breakneck speed, he said. Just weeks after omicron was first detected in Texas, it was causing more than 90% of new cases showing up at his hospital — less than a month after the vaccine was approved for young kids.

“We have staggering numbers here during this omicron surge,” Versalovic said in a news conference in early January.

That same day, the state broke its own record of children hospitalized with COVID-19, reporting 350 — five more than the previous peak a few months before.

On Friday, the state health department released data on 3.8 million confirmed cases of COVID-19 in Texas in the first two years of the pandemic. Almost 19% of them — 722,393 — were diagnosed in residents under age 20. The demographics do not include cases reported in 2022.

During the first week of January, the Texas Department of State Health Services and the Texas Education Agency reported that about 26,500 students and 11,800 staff members had been infected with COVID, according to data released Friday.

While the numbers of student cases are nearing levels not seen since the start of school last fall, there are more cases of COVID-19 among staffers than at any other time in the pandemic. The numbers are likely to increase as more districts report their numbers to the state. The current numbers include only about half of all of the state’s 1,200 districts, and the number of districts reporting any numbers is inconsistent from week to week.

Meanwhile, on Wednesday, the state reported 471 children in Texas hospitals with COVID-19. Most of them are unvaccinated, hospital officials have said. But there is no state data detailing how many COVID-19 child patients are in Texas pediatric intensive care units.

Yes, I’ve said this before. The numbers have climbed a bit since then, but there’s so much farther to go. As was the case with previous iterations of the vaccine, there was a large initial burst of activity, as the folks who had been eagerly awaiting the day that it became available for that group rushed out to get it, then it leveled off. The difference is that this time that initial burst was much smaller. Gotta say, I have no idea why. Get your kids vaccinated. What are you waiting for?

Beto starts strong on fundraising

Good start, needs more of same.

Democratic gubernatorial candidate Beto O’Rourke raised $7.2 million in the first 46 days of his campaign, while Republican incumbent Greg Abbott raked in $18.9 million over the last six months as his war chest topped $65 million.

Both campaigns announced their latest fundraising figures Tuesday morning, hours ahead of the deadline to report them to the Texas Ethics Commission. O’Rourke’s campaign went first, touting his opening haul — which covers Nov. 15 through Dec. 31 — as unmatched by any Democratic campaign in state history.

Abbott said in a statement his contributions “show just how excited Texans are for this campaign.”

The figures confirm what has long been considered the case: O’Rourke is a strong fundraiser, but he is up against a juggernaut in Abbott, at least when it comes to the money the governor has saved up. O’Rourke did not release his cash-on-hand number, but he was effectively starting from scratch when he launched his campaign in November, and his $7.2 million period means his cash on hand remains a fraction of Abbott’s reserves. Abbott had $55 million saved up for his reelection campaign at the end of June.

O’Rourke’s campaign said he got over 115,600 contributions over the 46-day period, while Abbott’s team said it received nearly 159,000 donations from July through December. Abbott’s campaign said it had an average contribution of “just over $119,” while O’Rourke’s team did not volunteer that number.

O’Rourke’s latest fundraising number includes $2 million that his campaign said he collected within 24 hours of announcing his run. Expectations have been high for O’Rourke’s fundraising after he proved a fundraising phenom during his 2018 run against U.S. Sen. Ted Cruz, R-Texas, when he raised more than $80 million. O’Rourke was subject to federal campaign donation caps in that race; Texas has no such restrictions.

Abbott’s haul was not entirely surprising. His campaign already reported raising $9.5 million on a series of reports that were due around the three, roughly monthlong special legislative sessions that occurred during the half-year period.

If you want to look at it on a rate basis, Beto’s $7.2 million in 46 days would equate to almost $29 million over six months. Easy to say, of course, harder to do. And yes, Abbott is currently sitting on a mountain of money, some of which he’s spending now on ads during the NFL playoffs. (When I am named dictator for life, I will ban all political ads on live TV events that I personally want to watch.) Beto doesn’t need to equal Abbott in fundraising – that would be nearly impossible in any event – he just needs to raise enough to run the campaign he wants to run. I wish he’d gotten started sooner, but he’s on the right track now. Don’t let up on the gas.

I’ll be posting summaries of campaign finance reports over the next couple of weeks as they come in and I have the time. I’m very interested to see what some certain Harris County candidates have done.

You (probably) still have to get vaxxed if you work in Houston

I’m glad to see this, but there’s a huge question that this story doesn’t address, much less answer.

Local companies say they will maintain their vaccination policies despite last week’s Supreme Court ruling that struck down the Biden administration’s vaccination mandate for firms with more than 100 employees.

The Houston software company Hewlett Packard Enterprises, for example, said vaccinations are still required for employees to enter offices, work at clients’ sites, travel for business, or required for team members to enter work sites, work at third-party sites, and to travel or attend events on business. Those who decline to be vaccinated are required to work from home.

More than 90 percent of the company’s workforce is vaccinated, a company spokesperson said. The company has not yet decided whether to require booster shots.

[…]

The Houston chemical company LyondellBasell and CenterPoint, the Houston utility company, have not adopted vaccine mandates. They said they have COVID protocols in place and will continue to monitor them.

Corporate vaccine requirement increased the rate of vaccination among employees by 20 percent, according to a recent survey by the National Safety Council. The survey found 95 percent of workers at businesses with vaccine mandates were inoculated, compared to 75 percent among those at businesses without requirements.

At BakerRipley, employees are required to get vaccinated or tested weekly, the Houston charity said. Nearly 90 percent of its 1,200 employees are fully vaccinated.

Camden Property Trust, a national real estate company headquartered in Houston, put in vaccine requirements over the summer before Biden announced the mandate. Of its 746 Texas employees, 718, or about 96 percent, are vaccinated, said Ric Campo, CEO of Camden Property Trust said.

“We just had this discussion about safety and it’s about keeping teammates safe. We’ve done all the analysis and that’s what we think,” Campo said, “And once people had a rational discussion, and it wasn’t political, and it wasn’t ‘You do this or else’ people chose to vaccinate.”

The few who aren’t vaccinated must wear masks at work, Campo said.

Whether to require vaccinations is now in the hands of companies, said Seth J. Chandler, a professor at the University of Houston Law Center. It’s unlikely that Congress would pass new laws to give OSHA the authority that the Supreme Court says it now lacks to impose workplace vaccination requirements.

The story is about the effect of the SCOTUS ruling that blocked the Biden employer vaccination mandate. I’m happy that employers are mostly moving forward with whatever vaccine policies they already had in the works, but I have to ask: What about the state ban on such mandates? The original story line was that employers would be caught between conflicting orders, but that’s no longer the case. The thought that these employers are ignoring Abbott or have found a way around him is delightful, but how is it possible? What are their legal risks here? Is there a lawsuit against the Abbott’s order?

So I did some googling. While Harris County Attorney Christian Menefee urged businesses to sue Abbott over this order, as far as I can tell none have done so yet. Maybe they were waiting to see what happened with the federal mandate first. On the question of what Abbott’s order actually means, I found some interesting writing. For example:

The Order provides enforcement via fines. Specifically, non-compliant entities may be fined up to $1,000 per offense, while jail time is specifically excluded as a penalty. The Order’s language makes no exception for health-care providers such as hospitals and other related entities.

The Order also contemplates its own sunset upon the passage of overlapping legislation. Specifically, in the Order, Governor Abbot states that he is “adding this issue to the agenda” for an upcoming session of the Texas legislature, and that he “will rescind this [Order] upon the effective date of such legislation[.]”

Notably, the Order contradicts both the Governor’s own statements on the rights of private businesses within the state, and legal consensus regarding the ability of employers to mandate vaccinations in most cases. For example, in August, Governor Abbot issued an executive order banning public and governmental entities from enacting vaccine mandates, but explicitly left private entities to make their own decisions regarding the matter. At that time, a spokesman for the Governor’s office also commented that private businesses would be left to make their own decisions regarding the matter. The Order essentially closes that loophole.

The Order also contravenes existing legal precedent within the state regarding employer vaccine mandates. For example, in June 2021, the Federal District Court for the Southern District of Texas dismissed a lawsuit by 117 employees of Houston Methodist Hospital; who claimed Methodist’s policy requiring employees to be vaccinated against COVID-19 amounted to wrongful termination under the law, because the vaccine(s) are “experimental and dangerous.” Bridges v. Houston Methodist Hosp., CV H-21-1774, 2021 WL 2399994, at *1 (S.D. Tex. June 12, 2021). In no uncertain terms, the Order squarely contradicts the holding in Bridges.

[…]

The immediate impact of the Order on businesses who implemented vaccine mandates is unclear—especially in light of conflicting Federal mandates. For example, Texas-based Southwest Airlines and American Airlines have stated publicly that—regardless of the Order—they will continue to implement plans requiring employees be vaccinated, citing federal mandates for contractors and the forthcoming OSHA rule for private business with 100 or more employees. While nothing is certain, it is somewhat likely that OSHA rules and regulations would preempt the Order. But Texas businesses with fewer than 100 employees would still be subject to the Order, or future, related State legislation.

Regardless, in light of the Order’s language, any Texas business entity that previously required employees or customers be vaccinated should seek counsel and reexamine its accompanying policies or risk non-compliance with the Order. At a minimum, Texas businesses should—for now—consider adding exemption language to vaccine policies that mimic the Order’s “personal conscience” and “prior recovery from COVID-19” carve outs.

The fact that the order only calls for what appears to be a modest fine (though that may depend on how an “offense” is counted; if it’s per employee, that would quickly add up) and conflicts with an existing federal court ruling may be the reason for the lack of action on it. Here’s more:

Additional questions loom, such as whether the governor’s Order exceeds his authority – his prior Executive Orders regarding vaccinations and so-called vaccine passports governed only public employers and private companies who were receiving state funds. Additional uncertainties include likely legal challenges to the Order; possible conflicts with federal law; and how and to what extent EO-40 will be enforced. It is also unclear to what extent, if any, the State will actually enforce EO-40, which provides for fines of up to $1,000 per violation.

Companies with employees in Texas who have already begun requiring vaccinations can take a relatively low risk approach to dealing with the governor’s Order by modifying their policies to provide accommodations to employees who object to being vaccinated on the basis of “personal conscience” (which is not defined in EO-40) and for “prior recovery from COVID-19.” These practices can be modified as new federal rules are issued and/or legal challenges play out. Other options for responding the Order are discussed in more detail below.

[…]

EO-40 departs from the governor’s prior orders in other ways. The Vaccine Passport Ban prohibits state agencies from adopting policies or requiring proof of vaccination as a condition of receiving services. In a notable contrast, EO-40 does not expressly forbid proof of vaccination as a condition of employment. Instead, it specifically forbids an entity from “compelling receipt of a COVID-19 vaccine.” By aiming squarely on the act of receiving a vaccination as opposed to policies requiring proof of vaccination, the Order gives rise to more ambiguity. In other words, employers may argue that they are not “compelling receipt” of a vaccine so long as that they do not intend to strap an employee down to a chair and force a vaccine needle into a worker’s arm, which they do not. Instead, that worker always has a choice: they can refuse to get vaccinated, but the consequence is that they will lose their job. Thus, another question is whether employer policies requiring vaccination as a condition of employment would be considered coercive enough to be deemed a violation of EO-40’s bar on compelling receipt of a COVID-19 vaccination.

In a larger context, considering the Texas’ at-will employment environment and the narrow availability of a “wrongful termination” cause of action in Texas, it is not clear that an employer “compels” an individual to be vaccinated by making it a condition of employment.

That last bit was a key component of that Methodist vaccine lawsuit. My interpretation of all this – and you lawyers out there, feel free to tell me why I’m wrong – is that businesses that want to get their employees vaccinated see a way forward, and so far the state hasn’t tried to make an example out of anyone. Abbott’s order was primarily about politics and his need to appear maximally troglodytic for the primary. If he scares a few businesses into abandoning any pro-vaccination plans, so much the better, but the point was to make the order. Optics come first, and on that score Abbott got what he wanted. The details don’t matter. Very much on brand for him, in other words.

SB8 lawsuit moves to SCOTx

Like I said, the fix was always in.

The 5th U.S. Circuit Court of Appeals on Monday sent the legal challenge to Texas’ restrictive abortion law to the state’s Supreme Court, a move that is expected to significantly delay the case and that abortion opponents had hoped would occur.

“This decision now keeps the case in limbo — and abortion after 6 weeks in the nation’s second-largest state — a dead-letter, indefinitely,” wrote Steve Vladeck, a University of Texas School of Law professor, on Twitter.

The U.S. Supreme Court has largely declined to intervene in the Texas case three times, most recently in December when justices kept the ban in effect while allowing a legal challenge to move through a lower state court.

[…]

A divided Supreme Court found that most challenges against the Texas law should be dismissed, except for one filed against medical licensing officials. That case was sent that to the 5th Circuit, one of the most conservative appellate courts in the country, rather than a federal district court as abortion providers and supporters had hoped.

The three-judge federal panel, based in New Orleans, wrote in their 2-1 decision Monday that the Texas Supreme Court must certify the case and decide whether the U.S. Supreme Court was correct in allowing a challenge to proceed against the licensing officials. Circuit Judges Edith H. Jones and Stuart Kyle Duncan, both appointed by Republicans, said the state’s highest court should determine whether the Texas attorney general, the Texas Medical Board and other licensing officials can enforce the law if it is violated.

Judge Stephen A. Higginson, a Democratic appointee, argued the U.S. Supreme Court had already decided that matter.

“This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” he wrote in his dissent.

State supreme courts do not have to take up cases that are sent to them by federal courts, but it’s likely Texas will this time. Lawyers said it’s unusual to ask the Texas Supreme Court to make this decision after the U.S. Supreme Court has already weighed in.

See here, here, and here for the background. I still don’t have anything to say that I haven’t said before. I’m fresh out of invective. The following is part of a longer thread, but these two tweets sum it up nicely:

SCOTUS doesn’t even care about the insult to their authority, because in the end it serves their larger goal. Burn it all down. The Chron has more.

Sure, let’s blame the supply chain for voter registration problems

I have a simple solution for this, if anyone wants to hear it.

Still the only voter ID anyone should need

The Texas Secretary of State’s office is having more trouble than usual getting enough voter registration cards to groups who help Texans register to vote.

Sam Taylor, assistant secretary of state for communications, said supply chain issues have made it harder and more expensive to get paper, which means the Secretary of State’s office will be giving out fewer voter registration forms to groups ahead of elections this year.

“We are limited in what we can supply this year, because of the paper shortage and the cost constraints due to the price of paper and the supply of paper,” he said.

Grace Chimene, the president of the League of Women Voters of Texas, said it is not unusual for the Secretary of State to not have enough forms to fill all the requests it gets from groups like hers ahead of elections. This particular shortage, however, is affecting an important part of her group’s work: registering thousands of newly naturalized citizens.

Chimene said in previous years, her group, which has chapters across the state, has been able to get enough forms to pass out at naturalization ceremonies. Often, she said, the group partners with the state to give out several thousand forms at each ceremony.

“The League in Houston registers about 30,000 new citizens every year through these ceremonies in the past,” Chimene said.

[…]

Taylor said the Secretary of State’s office has been forced to limit each group to 1,000 to 2,000 registration forms per request. He said this shortage is coming at a time when many groups are seeking out new voter registration forms because of a change in Texas’ voter registration laws created under Senate Bill 1, a controversial voting law that went into effect last month.

“The voter registration application changed this year for one reason: It’s because the legislature decided to increase the penalty for illegal voter registration from a class B misdemeanor to a class A misdemeanor,” he said.

Previously, Taylor said that change had to be reflected on registration applications in order for them to be approved. But, after this story was published Tuesday, he clarified that’s not necessarily the case.

“While we have made clear to officials and groups that they should not be distributing the old version of the Voter Registration form, county voter registrars may accept completed voter registration applications on the old form, so long as the application is otherwise valid,” Taylor said in a statement Tuesday. “In other words, using last year’s form in and of itself is not fatal to the voter’s registration application.”

Chimene said all these constraints present serious issues for her group as they try to get voter registration materials together ahead of these large naturalization ceremonies.

“We are treating all organizations that request these the same,” Taylor said. “We are trying to fulfill these requests as fast we can. But the fact is we simply don’t have the supply to honor every single request for free applications.”

According to Chimene, this is one of the pitfalls of Texas being among the few states in the country that does not have online voter registration. Supply chain issues are not as big of a problem when you can just direct someone to a website.

I mean, give me a break. First, as noted before, there is no reason to trust John Scott. Do not take him at his word. News folks, you need to push him a lot harder on this.

Second, I know we’re only allowed to do online voter registration in certain limited circumstances, and we’re not going to get a special session to get the Lege to authorize further uses of it. You can, however, fill out the form on the SOS website, which you then have to print and sign and mail in, because that’s how we roll here. What it appears that you can’t do is just download and print the form itself, on your own paper, for use at things like voter registration drives. The LWV could bring iPads or laptops to those naturalization events and have the new citizens do the form-filling online, but then each one would have to be printed as they go. Not very conducive to such efforts. We are absolutely committed to doing this in the least convenient and most stupid way possible.

Oh, and we also have the absentee ballot rejection issue, and a lack of training materials, and other issues. Not all of this is the SOS’s fault, but it is their job. And either they failed to communicate to the Republicans in the Lege and Greg Abbott just how much they were about to screw things up, or (more likely) failed to get them to listen and care. And here we are.

So sure, blame the supply chain. Anything to distract from the real problem.

Bypass the GLO

Heck yeah.

All five members of Harris County Commissioners Court signed onto a letter Friday asking the local congressional delegation to ensure that future disaster relief bypasses the state government and goes directly to large counties.

The letter is the latest round of bipartisan outrage in Houston triggered by the Texas General Land Office’s decision last May to initially shut out the city and the county — the epicenter of flooding caused by Hurricane Harvey — from $1 billion in flood control dollars later awarded to Texas after the 2017 storm.

The letter suggests that Congress or a federal agency require future disaster relief go directly to counties with at least 500,000 residents, instead of being administered by state agencies.

The court’s two Republicans, Commissioners Jack Cagle and Tom Ramsey, joined the court’s Democratic majority — County Judge Lina Hidalgo and Commissioners Rodney Ellis and Adrian Garcia — in signing the letter. Cagle and Ramsey had been sharply critical of fellow Republican George P. Bush, who runs the GLO, after the agency declined to award any money to the city or county.

In the letter, the five court members wrote that a direct allocation of federal aid would “bypass potential bureaucratic delay caused by various Texas agencies and by other entities that will harm our ability to have quick and efficient implementation.”

They did not mention the GLO by name, though the letter was sent to Harris County’s nine-member congressional delegation one week after federal officials halted the distribution of nearly $2 billion in flood control funds to Texas because, they said, the GLO had failed to send in required paperwork detailing its plans to spend the money.

I mean, based on past experience, why would we want to do it any other way? The GLO isn’t just not adding value here, they’re actively reducing it. It’s not a surprise that even the Republican commissioners signed on to this.

On a more philosophical note, a lot of federal relief funds that are targeted at cities and counties and school districts and whatnot have had to go through the state first. For the most part, with COVID funds, the Lege mostly rubber stamped it without much fuss. I know there had been concerns with the pace at which Harvey recovery funds had been spent and homes were being repaired – indeed, there are still a lot of unrepaired homes after all this time – but it seems that a big part of that problem has been having multiple layers of government involved, which led to conflicts and delays and issues getting funds to the people who needed them the most. Indeed, that story also cites issues with the way the GLO interacted with the city of Houston. With COVID relief there were issues with unemployment funds having to go through rickety state systems, no direct way to get other relief funds to people who didn’t have bank accounts, and so forth. There are bigger issues, having to do with underlying infrastructure, that are a big part of this. But even factoring that out, putting states in charge of distributing federal relief funds to localities has been a problem. More so in some states than in others. I don’t know what we can do about that, given everything else going on right now. But we really should do something.

Lots of mail ballot applications are being rejected now

This is a feature, not a bug.

Hundreds of Texans seeking to vote by mail in the upcoming March primary elections are seeing their applications for ballots rejected by local election offices trying to comply with stricter voting rules enacted by Texas Republicans last year.

Election officials in some of the state’s largest counties are rejecting an alarming number of mail-in applications because they don’t meet the state’s new identification requirements. Some applications are being rejected because of a mismatch between the new identification requirements and the data the state has on file to verify voters.

Under Texas’ new voting law, absentee voters must include their driver’s license number or state ID number or, if they don’t have one, the last four digits of their Social Security number on their applications. If they don’t have those IDs, voters can indicate they have not been issued that identification. Counties must match those numbers against the information in an individual’s voter file to approve them for a mail-in ballot.

In Harris County, 208 applications — roughly 16% of the 1,276 applications received so far — have been rejected based on the new rules. That includes 137 applications on which voters had not filled out the new ID requirements and 71 applications that included an ID number that wasn’t in the voter’s record.

In Travis County, officials said they’ve rejected about half of the roughly 700 applications they’ve received so far, with the “vast majority” of rejections based on the new voting law.

In Bexar County, officials have rejected 200 applications on which the ID section was not filled out. Another 125 were rejected because the voter had provided their driver’s license number on the application, but that number was not in their voter record.

“It’s disturbing that our senior citizens who have relished and embraced voting by mail are now having to jump through some hoops, and it’s upsetting when we have to send a rejection letter [when] we can see they’ve voted with us by mail for years,” said Jacque Callanen, the Bexar County election administrator.

[…]

Throughout last year’s protracted debate over the new voting law, state lawmakers were warned about potential issues that could arise from the new ID matching requirements, in part because the state does not have both a driver’s license and Social Security number for all of the roughly 17 million Texans on the voter rolls. Voters are not required to provide both numbers when they register to vote.

Last summer, the Texas secretary of state’s office indicated that 2,045,419 registered voters lacked one of the two numbers in their voter file despite the office’s efforts to backfill that information in the state’s voter rolls. Another 266,661 voters didn’t have either number on file.

Those numbers have since dropped. As of Dec. 20, 702,257 voters had only one number on file, while 106,911 didn’t have either, according to updated figures provided by the Texas secretary of state’s office.

Meanwhile, 493,823 registered voters didn’t have a driver’s license on file, which is the first number voters are asked to provide on both applications to register to vote and applications to vote by mail.

The new law is also tripping up voters who may be unaware of the new ID requirements. Callanen said she had to reject 30 voters who submitted an outdated application form that didn’t include the new ID field. Election officials in Williamson County, which has processed a total of 305 applications to vote by mail, said the same issue plagued a chunk of the applications that they rejected.

The sources of the outdated applications are unclear. While the Legislature banned county election officials from proactively sending out applications to vote by mail, even to voters who automatically qualify, voters can still receive unsolicited applications from campaigns and political parties.

This was both easily predictable and widely predicted. Since this election is a primary, and people have to request a specific party’s ballot, it would be very interesting to know how many rejections came from each party, and what percentage of the total number of requests for each party were rejected. Most likely it’s more or less evenly split, but you never know. Unintended consequences are everywhere.

I want to extend a little bit of grace to the employees of the Secretary of State’s office, who have had to do a massive update of their guidance for elections officials in a very short time. The fault lies entirely with the Republicans that shoved this travesty through, and with the raving lunatic former occupant of the White House, whose narcissism and dishonesty compelled his minions to pass such laws. But the lion’s share of the grace goes to the various elections administrators, who are on the business end of this mess. If you want a mail ballot, make sure you fill out the current form correctly, and get your request in ASAP.

Some commentary from Twitter:

That last one is more of a general comment, but you get the idea. In the meantime, Common Cause tells you how to take some control of the situation:

Voters who have applied for a mail ballot can check their status online at https://teamrv-mvp.sos.texas.gov/BallotTrackerApp/#/login. Voters who do not have internet access can call their county clerk’s office for information.

For voters planning to vote by mail in the March 1 primary election, the deadline for mail ballot applications to be received by the county’s Early Voting Clerk is Friday, February 18, 2022.

There’s more, so read the rest. Campos has more.

On primarying the quorum breakers

Of interest.

Working Families Party, a political party and relative newcomer to Texas politics that backs Democrats aligned with their platform, aims to spend in the ballpark of half a million dollars this cycle, WFP Texas Co-director Pedro Lira told the Signal.

Much of that money will go to door-to-door canvassing.

“At the end of the day, when you can really connect with people face to face, that’s really what motivates people to get out to vote,” Lira said. “We’re trying to build a real base of working class people. You can’t do that without involving those people.”

[…]

In partnership with CWA and Texas Organizing Project, WFP is also bankrolling “Texans for Better Dems,” a new political action committee that will primary Democrats in the state legislature who returned from Washington D.C. to restore quorum, a move that caused a rift in the state party and led to the creation of the Texas Progressive Caucus.

“We were incredibly proud of the Democrats who fled the state to deny Republicans quorum. It’s exactly the kind of leadership that we need from our elected officials,” Lira said. “We were also just as disappointed to see some of those Democrats come back. And it’s because those Democrats gave Republicans quorum that bills like the abortion ban and the anti-voting legislation were able to pass.”

Lira said the PAC was created specifically to primary those Democrats.

This was a thing I wondered about, and had seen some speculation about a few months ago when the quorum was freshly broken and tempers were high. I tried to keep an eye on it during the filing process, but there was a lot to keep up on, and if any WFP-backed candidates were out there, they didn’t make their presence known in a way that was visible to me. Now that we’re well past the filing deadline, let’s revisit this.

The first question is who the potential targets would be. I did a little digging into who among the Dems were here during the quorum break in Special Session #1, and who came back during Special Session #2 to bring the attendance count to the required level – this was in response to a private question I was asked. Long story short, I trawled through the daily journals on the Texas Legislature Online site, and found enough record votes to mostly fill in the picture.

For the first special session, I identified the following Dems who were present in Austin: Ryan Guillen, Tracy King, Eddie Morales, John Turner, Abel Herrero, Terry Canales, and Leo Pacheco. (There’s one I can’t identify; I suspect it was Harold Dutton, but he shows up in the next session, so it doesn’t really matter.) Guillen is now a Republican, Pacheco has since resigned, and Turner is not running for re-election. According to the SOS Qualified Candidates page, none of the others have primary opponents.

For the second special session, we can add these legislators, who were either there from the beginning or who showed up while the quorum was still not established: Dutton, Art Fierro, Mary Gonzalez, Bobby Guerra, Oscar Longoria, Eddie Lucio Jr, Joe Moody, James Talarico, Garnet Coleman, Armando Walle, and Ana Hernandez. Lucio and Coleman are not running. Talarico is running in a different district, HD50, which is open now that Celia Israel is running for Mayor of Austin. Fierro was paired with Claudia Ordaz Perez in redistricting. Of the rest, only Dutton and Gonzalez have primary opponents, and Dutton was a target well before the quorum break issue. Gonzalez, who has had primary challengers in the past as well for other reasons, faces someone named Rene Rodriguez, about whom I could find nothing. If the goal was to primary these Democrats, it sure doesn’t look like that goal was achieved.

Now, the WFP may well be playing a longer game. As we know, there wasn’t much time between the passage of the new maps and the start of filing season. Maybe they decided it was better to wait until 2024, or maybe they decided to focus more on races like CD35 (they have endorsed Greg Casar) and CD30. Maybe they’ll back Ordaz Perez and David Alcorta, the other candidate in HD50. Who knows? If they intended to make a bigger splash than that, I’d say they came up short. We’ll see what happens after this election.

Austin aims for pot decriminalization

We’ll see how this goes. I suspect the measure will pass, but I’m not sure it will be allowed to take effect.

As greater numbers of Texas voters sour on harsh punishment for marijuana offenses, Austin voters will likely decide in May whether to effectively decriminalize the drug.

The ballot measure, pushed by the group Ground Game Texas, would forbid Austin police officers in most cases from ticketing or arresting people on low-level pot charges like possessing small amounts of the drug or related paraphernalia — unless the offenses are tied to more severe crimes. The city also would not pay to test substances suspected to be marijuana — a key step in substantiating drug charges.

Both practices have already been informally adopted in Austin, but advocates want to solidify them at the May ballot box.

“The primary effect is that it would make the decriminalization that exists in Austin today actually long term and would put the force of law behind it,” said Chris Harris, policy director at Austin Justice Coalition.

[…]

But the measure faces one big obstacle: Although marijuana laws in Texas have loosened somewhat in recent years, the drug remains illegal at the state level.

Public support for harsh marijuana laws and prosecutors’ willingness to bring charges for minor offenses has waned in recent years.

The number of new charges for misdemeanor marijuana possession fell by 59% from 2016 to 2020, according to figures from the Texas Office of Court Administration, as prosecutors in the state’s major urban areas have increasingly deprioritized marijuana prosecutions.

Most Texas voters support decriminalizing marijuana in some form. Three-fifths of Texas voters say at least a small amount of marijuana should be legal, according to a University of Texas/Texas Tribune Poll last year.

That support cuts across partisan lines. Nearly three-fourths of Democrats and independents think marijuana should be legal. So do 43% of Republicans, a plurality of that group.

It’s against that backdrop that Ground Game Texas — a progressive group focused on issues of “workers, wages and weed” — plans to mount decriminalization campaigns in Killeen and Harker Heights.

As the story notes, there’s an effort by Ground Game Texas to put a similar measure on the ballot in San Marcos. The City Council in Denton recently voted down an ordinance to do the same there, a move that perhaps validates this approach. The Austin police union, which has been resistant to the earlier efforts to decriminalize pot, is staying out of this election, but who knows what they might do afterward.

So what happens if this passes, as I expect it will? One obvious possibility is legal action to require the enforcement of the state laws. I’m sure there’s someone who’d be willing to be the plaintiff in such a filing, and no one has to encourage Ken Paxton to swing a bat in Austin’s direction. Legislative action is also possible – again, there’s nothing a Republican likes more these days than filing a bill to stop a city from doing something that legislator doesn’t approve of. A complicating factor in all this is that Greg Abbott is mumbling a few words in favor of being less harsh about pot, likely in recognition of the polling on this issue and Beto’s stronger pro-pot stance. I don’t know how much that complicates things for the keep-pot-criminal crowd, but it’s another dimension. I don’t know which way this will go, but it all starts with the measure being passed, and I feel pretty confident about that.

Interviews and judicial Q&As through January 14

Updating from last week. This is to put all of the interviews and judicial Q&As in a single post for your convenience, in case you missed something. This past week was Commissioners Court Precinct 4. Starting Monday will be the County Treasurer and District Clerk races, and the week after that will be Senate District 15 and (I hope – it’s still in the works) Candis Houston from HD142. After that is CD38, and probably statewide candidates.

Here’s the interview list so far, followed by the judicial Q&As. As a reminder, much more information about Democratic primary candidates, including links to the interviews and judicial Q&As, can be found on Erik Manning’s spreadsheet. Let me know if you have any questions.

Interviews

Aurelia Wagner, HD147
Danielle Bess, HD147
Jolanda Jones, HD147
Nam Subramanian, HD147
Reagan Flowers, HD147

Ben Chou, Harris County Commissioners Court Precinct 4
Ann Williams, Harris County Commissioners Court Precinct 4
Gina Calanni, Harris County Commissioners Court Precinct 4
Lesley Briones, Harris County Commissioners Court Precinct 4
Clarence Miller, Harris County Commissioners Court Precinct 4

Judicial Q&As

Judge Abigail Anastasio, 184th Criminal District Court
Lema Barazi, 189th Civil District Court
Judge Scott Dollinger, 189th Civil District Court
Judge Chris Morton, 230th Criminal District Court
Judge Tristan Longino, 245th Family District Court
Judge Hilary Unger, 248th Criminal District Court
Judge Chip Wells, 312th Family District Court
Teresa Waldrop, 312th Family District Court
Judge Natalia Oakes, 313th Family District Court>,

Porscha Natasha Brown, County Criminal Court At Law #3
Judge Kelley Andrews, County Criminal Court At Law #6
Judge Andrew Wright, County Criminal Court At Law #7
Judge Michael Newman, County Probate Court #2

Judge Lucia Bates, Justice of the Peace, Precinct 3 Place 2
Herbert Alexander Sanchez, Justice of the Peace, Precinct 3 Place 2

Paxton accused of violating open records law

Put it on his tab.

Best mugshot ever

The Travis County district attorney has determined that Attorney General Ken Paxton violated the state’s open records law by not turning over his communications from last January, when he appeared at the pro-Trump rally that preceded the attack on the U.S. Capitol.

The district attorney gave Paxton four days to remedy the issue or face a lawsuit. The probe was prompted by a complaint filed by top editors at several of the state’s largest newspapers: the Austin American-Statesman, The Dallas Morning News, the Fort Worth Star-Telegram, the Houston Chronicle and the San Antonio Express-News.

In a letter hand delivered to Paxton on Thursday, the head of the district attorney’s public integrity unit said her investigation showed the attorney general’s office broke state law by withholding or failing to retain his own communications that should be subject to public release.

“After a thorough review of the complaint, the (district attorney’s) office has determined that Paxton and (his office) violated Chapter 552 of the Texas Government Code,” wrote Jackie Wood, director of the district attorney’s public integrity and complex crimes unit, referring to the open records statute.

The district attorney’s office will take Paxton and his agency to court if they do not “cure this violation” within four days, Wood warned. For open-records complaints against state agencies, the law says the Travis County district attorney or the attorney general must handle them. The newspapers filed the complaint with the district attorney.

[…]

Jim Hemphill, the immediate past president of the Freedom of Information Foundation of Texas, said Paxton may take issue with the DA’s investigations — or he could voluntarily choose to release this and other records to the public.

“It’s a rare occurrence where a requestor actually has tangible evidence,” Hemphill said. “It will be interesting to see how the attorney general responds to this.”

The Texas Public Information Act guarantees the public’s right to government records, even if those records are stored on personal devices or public officials’ online accounts. The attorney general’s office enforces this law, determining which records are public and which are private.

On March 25, six news outlets jointly published a story that raised questions about whether Paxton was breaking open records laws.

On Jan. 4, five newspaper editors filed a complaint asking the district attorney to investigate the alleged violations. Anyone can file a complaint with a local prosecutor if they believe a public agency is withholding information in violation of the Public Information Act.

Wood’s notice to Paxton said the district attorney’s office concurred with the allegations in the editors’ complaint.

First, the editors raised concerns that Paxton’s office was using attorney-client privilege to withhold every single email and text message sent to or received by him around the time of the Jan. 6 rally, which preceded the attack on the U.S. Capitol. Paxton and his wife were in Washington that day and appeared at the rally.

Wood said withholding all of Paxton’s communications during that week violated the law. As evidence, she noted the attorney general’s office released nearly 500 pages of communications sent to or received by First Assistant Attorney General Brent Webster — including some emails that included Paxton as a recipient.

The newspaper editors also said the attorney general’s office had no policy for handling work-related records kept on personal devices or accounts.

When a Morning News reporter sent Paxton a work-related text message and another reporter requested all his messages that day, Paxton’s office responded that no responsive messages existed. A spokesman for Paxton later said the attorney general doesn’t have to retain “unsolicited and unwelcome text messages to personal phones.”

Wood noted that the attorney general’s office stated in the past that the communications of government officials were subject to retention policies and the open records law.

Finally, the editors raised concerns that Paxton was turning over other people’s communications in response to requests for his own text messages.

The DA’s investigation agreed that Paxton had not provided his own text messages with officials at the attorney general’s office in Utah — where Paxton and his wife traveled during the February freeze — and instead turned over a copy of another person’s text to Paxton. The attorney general’s office did not explain why Paxton didn’t provide his own version of the text exchange.

See here for some background. The answer to how Paxton will respond is obvious: He’ll denounce the Travis DA’s actions as unfair, biased, and partisan, and he’ll not only not comply he’ll do everything in his power to delay a court decision that might force him to comply. Honestly, even then I doubt he’ll actually comply – I’d bet he destroys records first, and dares everyone to do something about it. I don’t think anything short of handcuffs and a jail cell will move him. What in his past record suggests otherwise? As the Trib notes, the January 6 commission in Congress is also seeking records relating to communications between Paxton and Donald Trump at that time. What do you think are the odds he’ll comply with them?

We know who and what Ken Paxton is. He’s shown us, every day. I commend the newspapers for pursuing this, and the Travis County DA for taking action. It’s just that it will take more than a lawsuit to make him budge. He’s going to require a consequence he fears. We’re nowhere close to that. The DMN and the Statesman have more.

Former Railroad Commissioner Ryan Sitton sues a blogger

Obviously, a story like this is going to attract my attention.

Ryan Sitton

A former Texas oil and gas regulator has accused a blogger of helping derail his 2020 reelection campaign by falsely claiming he had an extramarital affair.

In a lawsuit filed last month in Galveston, Ryan Sitton said the blogger, Joshua Matthew Pierce, had claimed in two online posts that Sitton sought to engage in “racial fantasies” with an unnamed Jamaican woman. The piece also included a supposed picture of them together, though the photo was later shown to be a generic, unrelated image used on several websites, according to the suit.

The second post alleged that Sitton had referred to fellow Texas Railroad Commissioner Christi Craddick with an ethnic slur. Both were published during early voting in the 2020 primary, which Sitton lost in a huge upset to fellow Republican Jim Wright.

“He published a hit piece, containing salacious lies about an upstanding businessman and public official,” the lawsuit says. “Unfortunately, his silly and false story gained some traction, and influenced an election.”

The complaint also suggests Pierce may have been working for Wright’s campaign at the time, though it does not present any clear evidence.

Pierce responded to the lawsuit over the weekend in a series of tweets, saying, “And to think that little old blogger down here in #CorpusChristi, #Texas could influence an election.”

“Lets get this right out of the way—you can deny, deny but the proof of the “infactual basis” is on plaintiff,” he wrote.

Sitton is seeking $10 million in damages. I went looking on Twitter to see if there was any commentary on this. Didn’t find anything, but I did come across this Yahoo News story that added a couple of details as well as a link to the lawsuit. The main thing I learned there is that Sitton is represented by Tony Buzbee, because of course he is.

My very basic take on all this is as follows: I have no trouble believing that this “blogger” printed false information. I have no idea whether someone who was a public figure has a chance at collecting from a person who while probably not a “journalist” from a legal perspective was nonetheless engaging in political speech, however crappy it was. I also have some real doubts about how much this “blogger” might have affected the election. How big an audience did that guy have? How much were his claims being amplified and repeated, in a way that Texas GOP primary voters might have seen or heard it? I’m not exactly plugged into that world, but if it had gotten real traction there might have been some reporting or even gossip about it in places I could have seen. Maybe it was there for me to see and I just missed it. All I’m saying is, you’re going to need to show me some data to convince me that this effort moved votes, especially enough votes to knock Sitton out. Not saying that can’t be done, just that extraordinary claims require extraordinary evidence. If that exists, I can’t wait to see it. I just won’t be expecting to see it.

The cities and the freeze

Well, at least some government entities are trying to learn from the February disaster, even if they’re having a rough go of it.

Ten months after the freeze, Texas cities have made some headway on storm preparedness, an oft-neglected area of local government. They have bolstered reserves of bottled water for residents in case of water outages, bought tire chains for city emergency vehicles, and implemented measures intended to shorten potential power outages for residents and keep electricity flowing to critical facilities.

But as winter approaches and the electrical grid remains vulnerable to blackouts, cities are still short on two key fronts: making sure their most vulnerable residents have the information they need to survive a similar calamity and that the water stays on. Many preparations cities are undertaking to protect residents against future disasters will take months, if not years, to put in place, city officials have said.

And worries abound that officials didn’t learn the lesson and will neglect to adopt new readiness measures — as they have after past disasters.

Austin officials failed to make emergency preparations before February that may have helped during the winter storm, despite past recommendations to do so, according to a recent report conducted by city auditors. Austin has adopted only a sliver of the recommendations made in the wake of other recent calamities, the report says.

“It’s extremely frustrating, and we need systems in place that don’t let that happen again,” Austin City Council member Alison Alter said during a meeting on the report’s findings last month.

Emergency officials say part of the reason those calls haven’t been entirely heeded is that large-scale disasters are becoming increasingly common as climate change worsens, making it more difficult to learn from the last one before the next one hits. On top of that, responding to the COVID-19 pandemic has stretched emergency responders thin.

“There hasn’t been enough time in between them to look at all those corrective actions,” Juan Ortiz, who heads Austin’s Office of Homeland Security and Emergency Management, told a council committee in November. “That really has caused the congestion in work that needed to be done.”

[…]

In San Antonio, city and utility officials are scheduled to deliver a joint emergency communications plan at the end of the month. An important question they are expected to address is how to communicate ahead of and during a storm with residents who don’t have internet access to begin with — like many residents on the city’s South Side.

Those residents can’t be left out in the cold, said council member Adriana Rocha Garcia.

“A preparation checklist should be on a door hanger for every vulnerable community to be able to just literally go out and get it from their doors so that they know exactly what to do, exactly who to call in case of an emergency during a winter storm,” Rocha Garcia said.

Now do the story about what Greg Abbott has learned from the experience and what he’s doing about it. Oh, wait…

On the campaign trail again

It’s good to be back.

In the 2020 election cycle, many campaigns in Texas went fully virtual as the coronavirus pandemic, then a new and uncertain threat, bore down on the state. They held virtual rallies, phone banks and fundraisers, trading in clipboards and walking shoes for webcams and microphones.

As the weeks went on, though, Republicans resumed in-person campaigning and managed to stave off a massive Democratic offensive in November. Democrats later admitted that their decision to suspend door-knocking and other in-person activities hurt them.

Now, nearly two years later and with a new COVID-19 variant surging across the state, Democrats appear set on avoiding the same mistake. Few, if any, Democratic campaigns have gone fully virtual, and many are pressing forward with in-person campaigning while taking some precautions.

“Like everyone else across the globe, we are keeping a close eye on the Covid-19 Omicron Variant and assessing the risks associated with this surge,” Texas Democratic Party spokesperson Angelica Luna Kaufman said in a statement. “However, there is a lot at stake this midterm election and in-person campaigning will be a critical component to engaging voters and winning these races.”

She emphasized the country is “not in the same situation as we were in 2020.” Vaccines are widely available, and people are well-practiced in how to stay safe in public.

Still, the omicron variant looms large, and the campaign trail has not been immune to it. Some forums are still being held virtually, and candidates, staffers and volunteers are having to deal with the logistical challenges that come when one of them tests positive amid the fast-spreading variant.

[…]

Democrats’ most celebrated candidate this cycle, gubernatorial contender Beto O’Rourke, has been regularly campaigning in person since launching his bid in November. He has been holding larger events outside, and his campaign asks attendees to wear masks and encourages them to be vaccinated. The campaign has made rapid testing available to attendees at some events.

“Speaking with Texans one-on-one is at the heart of our campaign,” O’Rourke’s campaign manager, Nick Rathod, said in a statement. “After holding 70 events in 30 cities during the first weeks of our campaign, we remain committed to meeting Texans where they are and will continue to closely follow” public health guidelines.

O’Rourke’s first campaign event since omicron began surging in Texas was Saturday in El Paso. Attendees were told “masks are strongly encouraged regardless of vaccination status” and that they would be provided for those who need them. On event sign-up pages, attendees were also told that by attending, “you understand and accept the risks associated with COVID-19.”

O’Rourke’s campaign is already block walking, though those who volunteer to do so have to sign a “COVID-19 Block Walk Safety Agreement Form.” Among other things, the form requires volunteers to wear masks when not eating or drinking and maintain their distance from voters “at all times possible.”

O’Rourke was among the Democrats who lamented the party’s refusal to campaign in person ahead of the 2020 election. He had been deeply involved in the fight for the Texas House majority through his Powered by People group, which shifted virtually all its activities online because of the pandemic. Writing to supporters days after Republicans swept Texas in the election, O’Rourke said one of the lessons was “nothing beats” talking to voters “eyeball to eyeball” and that “there is a safe way to do this, even in a pandemic.”

Not much to add here. To whatever extent the virtual campaigning of 2020 led to lesser outcomes than we might have had otherwise, no one wants to do that again. Most in-person events right now are being done virtually, but that is temporary. I’m certainly ready to see a bunch of my political friends in person again, in our natural environment. To that, here’s a little song you might know:

Happy trails, y’all.

Beto for legalizing weed

I do think this is a winning campaign theme.

Beto O’Rourke

At a crowded rally in downtown Austin, Beto O’Rourke ticked off his usual laundry list of campaign promises: stabilizing the power grid, rolling back the state’s new permitless carry law and expanding health care access.

But the El Paso Democrat got some of the loudest cheers of the night when he promised to legalize marijuana in Texas, something he said “most of us, regardless of party, actually agree on.”

“I’ve been warned that this may or may not be a popular thing to say in Austin, Texas,” O’Rourke said to the crowd gathered in Republic Square Park in December. “But when I am governor, we are going to legalize marijuana.”

The support is nothing new for the gubernatorial candidate. O’Rourke has championed legalization efforts throughout his political career, ever since his time as a member of the El Paso city council. He also nodded at the policy throughout his failed campaigns for U.S. Senate and for president.

But in his early run for governor, O’Rourke, who declined to be interviewed for this story, has repeatedly mentioned legalizing marijuana on the campaign trail across Texas. Advocates hope the increased attention will give momentum to legalization efforts in a state with some of the harshest penalties and highest arrest rates for marijuana possession.

[…]

If O’Rourke becomes governor, his plans to legalize marijuana would face another set of hurdles in the form of the Texas Legislature, particularly Lt. Gov. Dan Patrick, who leads the state Senate.

After the House in April 2019 gave preliminary approval to a bill that would have reduced criminal penalties for Texans possessing small amounts of marijuana, Patrick declared the measure dead in the Senate.

There’s been some momentum for more progressive marijuana policies within Patrick’s party in recent sessions. In 2019, state Rep. Stephanie Klick, R-Fort Worth, and state Sen. Donna Campbell, R-New Braunfels, filed bills that would relax laws restricting medical cannabis access. Both of those reforms failed to become law. But Gov. Greg Abbott in May did sign a watered-down expansion of Texas’ medical marijuana program to include people with cancer and post-traumatic stress disorder.

Patrick did not comment for this story. In a previous statement to The Texas Tribune, a Patrick spokesperson said the lieutenant governor is “strongly opposed to weakening any laws against marijuana [and] remains wary of the various medicinal use proposals that could become a vehicle for expanding access to this drug.”

Abbott didn’t answer questions on his position regarding marijuana legalization.

Legalization advocates hope O’Rourke’s candidacy can move opinions among state leaders on relaxing marijuana restrictions.

“Hopefully with Beto O’Rourke presumably being the Democratic nominee, we can push the other candidates in the race to talk about this issue more, to come to the table and have a conversation about how these policies are having negative impacts on our state,” said Heather Fazio, director of Texans for Responsible Marijuana Policy.

Marijuana legalization draws some broad support across the state. According to a June 2021 University of Texas/Texas Tribune Poll, 60% of Texas voters say at least a small amount of marijuana should be legal. That figure includes 73% of Democrats, 74% of independents and 43% of Republicans.

Mike Siegel, the co-founder of Ground Game Texas, a nonprofit focused on supporting progressive policies around “workers, wages, and weed,” said the issue is an opportunity for O’Rourke to reach independent or nonaligned voters.

“[Marijuana policy] is a major opportunity for [O’Rourke] to reach out to middle of the road, independent or nonaligned voters and even some Republican voters,” Siegel said. “A governor’s race that’s high-profile like the one that is coming up, where it could be Beto O’Rourke versus Greg Abbott, that’s the best opportunity to push these populist wedge issues.”

But Joshua Blank, research director for the Texas Politics Project at UT-Austin, said marijuana legalization isn’t a “terribly important issue” for voters on its own. Its political salience depends on the issues tied to the policy, he said, whether that is the economy, criminal justice system or health care.

As the story notes, this is a longstanding issue for Beto, going back to his days on El Paso City Council more than a decade ago as well as his time in Congress. I do think this is an issue that can move votes and motivate less reliable voters, though of course it has to be part of a bigger structure. I could see the overall message as being basically that Abbott is out of touch with what typical Texans want, with “not freezing to death because of massive power grid failures” being the first item on that list. Basically, how effective this will be as a campaign issue is largely what Beto can make of it. For now, I’m happy to see stories like this one.

We are so screwed if there’s a real cold front

[bangs head on desk].

During Texas’ first strong cold front of the winter this past weekend, natural gas production in the state’s top energy-producing region dropped by about 25%, according to a report from S&P Global. And while the lights largely stayed on across the state, the gas system’s performance during a brief cold snap raised more questions about the grid’s ability to handle extreme winter weather.

A separate Bloomberg report said gas production in the Permian Basin region of West Texas plunged to its lowest levels since last February’s deadly winter storm.

A number of natural gas companies reported to the Texas Commission on Environmental Quality that they had to unexpectedly flare off gas last weekend because their equipment froze.

Meanwhile, the Railroad Commission, which regulates the oil and gas industry, said it didn’t know anything about the sudden drop in gas production. An agency spokesperson said the commission is “currently evaluating available data on natural gas production during the weekend of Jan. 1 and 2.”

Natural gas fuels a majority of power generation in Texas, and some power generators reported disruptions to their gas supply — but they said it was not enough to impact generators’ ability to produce electricity. Gov. Greg Abbott said the state’s main power grid operator was prepared with extra power supply online.

The Electric Reliability Council of Texas, the grid operator, said there were no significant power outages around the state.

But the disruptions to the natural gas supply during a typical Texas cold front calls into question whether the state’s gas companies are ready for extreme winter weather, a concern energy experts and power company executives have expressed in recent months after lawmakers didn’t require gas companies to immediately prepare their equipment for extreme cold.

“I think it means the gas system’s not ready for another cold snap,” said Michael Webber, an energy resources professor at the University of Texas at Austin. “It wasn’t even really cold. It was cold, but nothing close to Winter Storm Uri [in February].”

Who are you gonna believe, Greg Abbott or your lying eyes? At this point, all I can say is it would be best to prepare for winter like you prepare for hurricane season. Assume a disaster is coming, and act accordingly. Abbott doesn’t care if you live or die, so it’s everyone for themselves. Godspeed and good luck.

Supreme Court rejects mandamus over Commissioners Court redistricting

The primary will proceed as scheduled, but the issue could be revisited sometime after the 2022 election.

The Texas Supreme Court rejected an effort by Republican commissioners and voters to block Harris County’s recent redistricting plan on Friday, suggesting another challenge still in the works will meet a similar fate.

In their challenge, the petitioners argued that the new maps amounted to illegal Democratic gerrymandering. The new precincts approved by Harris County leaders last year resulted in dramatic shifts that the challengers argued would disenfranchise voters in the upcoming primaries.

But in a narrow ruling, the justices found that they likely couldn’t provide any relief to the challengers because the wheels of the election were already in motion.

“(N)o amount of expedited briefing or judicial expediency at this point can change the fact that the primary election for 2022 is already in its early stages,” their opinion read. “This Court and other Texas courts are duty-bound to respond quickly to urgent cases that warrant expedited proceedings, but even with utmost judicial speed, any relief that we theoretically could provide here would necessarily disrupt the ongoing election process.”

The result is that the new precinct maps will be allowed to stand. The Democratic majority on commissioners court adopted the maps on a 3-2 party line vote in October.

See here and here for the background, and here for a copy of the opinion, which is also embedded in the story. It’s fairly brief and pretty straightforward, so let me summarize:

– The current map violates federal law because of population differences among the four precincts. It was not an option for the court to order that the current map be used while the appeals played out.

– The court ruled that their role in redistricting is limited, and that they did not have nearly enough facts to go on, as many of the plaintiffs’ claims remain in dispute. The burden required to make them step in and halt or change the election, which is already underway, was far too high for them to take action on such a short notice.

– Regarding the (ridiculous) claim about people being disenfranchised because they would have to wait until 2024 to vote when they had been expecting to vote in 2022, the court noted that some number of people will always be in that position when redistricting occurs. The Constitution requires the State Senate (which like Commissioners Court has staggered four-year terms) to have everyone run after redistricting, but there’s no such requirement for Commissioners Courts, which moved to four-year terms by an amendment in 1954. Ordering all four precincts to be on the ballot in 2022 was rejected because of the limited time for anyone who might run in the other precincts to get going. The court also noted that any short-term remedy for Harris County might cause problems with other counties, if people could make similar claims about being disenfranchised.

– Given all that, the court said it had no choice but to reject the writ of mandamus and allow the 2022 election to go forward as planned. The court did not make any claims or judgments about the merits of the plaintiffs’ arguments, and said that if the matter comes back to them after going through the lower courts, they can evaluate them at that time.

So there you have it. There is still the Radack lawsuit out there, but as the story notes it seems extremely unlikely that will succeed at affecting this election based on this ruling. The Cagle/Ramsey lawsuit was dismissed in Harris County district court, so I presume the next step would be for the dismissal, which was made on the grounds that the plaintiffs lacked jurisdiction (this is what the story said, perhaps this should be standing), to be appealed. Success for the plaintiffs would mean sending the case back to a district court, hopefully (for them) to get a hearing and ruling on the merits, which would naturally be appealed by whoever lost. My guess is that this whole process would take a few years if everything proceeds at its normal pace. While the Supreme Court allowed for the possibility of an all-precinct election (under another new map) in 2024, or even a special election presumably before then, I wouldn’t hold my breath on it. Same thing for the Radack lawsuit, which as far as I know has not had an initial hearing yet.

Finally, while this story does not mention it, I wonder if this may also signal the death knell for the two state court redistricting challenges, on the same grounds of not having enough time to do something before people begin voting. That last update suggested the possibility of a trial this week, but I am not aware of any news to that effect. The cases are in Travis County district court, if anyone wants to try to figure that out.

Feds halt Harvey relief funds over GLO error

The continuing saga.

The Department of Housing and Urban Development on Friday halted the distribution of $1.95 billion in aid awarded to Texas after Hurricane Harvey because it said the state has failed to send the federal agency required paperwork detailing its plans to spend it.

The delay is the latest in a series of hold-ups; almost four years after Congress approved $4.3 billion in HUD aid for Texas, about half of it remains unallocated.

HUD said in a statement its formal action gives the Texas General Land Office 45 days to submit the missing document, which the agency said is an analysis explaining how the state’s proposed list of disaster mitigation projects helps the most vulnerable residents.

“We look forward to receiving and reviewing Texas’s submission of the additional information needed for approval,” the HUD statement said. “We are hopeful that Texas will take the steps needed to begin much-needed, forward-looking mitigation projects in the state.”

The decision prevents Texas from distributing $1.2 billion in flood mitigation grants to local governments it had selected through a funding competition, as well as $750 million to Harris County, which was awarded nothing from that contest.

HUD in 2020 signed off on the GLO’s plan for the funding competition, which selected 81 projects, and said it welcomed the subsequent proposal for Harris County. The agency on Friday, however, said moving forward with those plans depends on whether GLO provides the missing report.

[…]

Harris County Judge Lina Hidalgo said she looked forward to GLO completing the paperwork. She said county staff are prepared to answer any questions from HUD about how its planned projects will help vulnerable residents. Hidalgo still is hoping for additional aid.

“This $750 million is a start, but more is needed since Harris County and the city of Houston took over 50 percent of the damage from Hurricane Harvey, and because millions of residents remain vulnerable to natural disasters,” Hidalgo said.

Mayor Sylvester Turner raised the same point about the unequal distribution of aid. He said he was pleased with HUD’s action Friday, and awaits the response from the Land Office.

We’ve been down this road before. The reason this is a problem for the GLO, and why they reacted so bitterly to HUD’s letter, is that they don’t have a good explanation for why they did the funding formula that they did. It was designed to screw the big Democratic cities and counties in favor of the rural Republican counties. That’s not the explanation HUD is looking for, so here we are. Tune in later in February to see how they try to wriggle out of it.

The hospitals are getting slammed again

Take precautions, y’all.

Pandemic forecasters in Texas say the state’s current surge of omicron infections and hospitalizations is likely to get much worse before it gets better, with hospitalizations expected to continue climbing for at least three weeks if social behaviors don’t change and slow the trend.

Across the nation, hospitalizations are already on the verge of breaking new pandemic records. In Texas on Thursday, according to state data, about 9,200 people were hospitalized with COVID-19 — far short of the record 14,218 hospitalizations from Jan. 11, 2021.

But with current numbers climbing exponentially each week, hospitalizations of Texans with COVID are likely to follow national trends and surpass previous levels in the state before they start to decline, said Anass Bouchnita, a researcher at the University of Texas COVID-19 Modeling Consortium, which uses data and research to project the path of the pandemic nationally.

The number of Texans testing positive for the virus every day is already at an all-time high, reaching a seven-day average of almost 44,000 confirmed cases on Friday. The seven-day average of new confirmed cases during the peak of the delta surge back in September was over 15,000.

That trend is likely to continue for at least another week, Bouchnita said.

“The situation in Texas is that it probably won’t reach the peak [for cases] until the second half of January,” he said.

Experts say the extremely high case count is why so many people are showing up in the hospital even as medical evidence suggests that the omicron variant — responsible for most new and active cases in Texas — is less severe than the previously dominant delta variant.

Bouchnita talked to The Texas Tribune on Friday, the same day the UT consortium released a report with the research team’s latest calculations about omicron’s projected path nationally. The report, which looked at eight scenarios in which omicron had varying degrees of severity, infectiousness and resistance to immunity, suggests the nation could see its new cases of this more contagious but less severe strain peak by mid-January before decreasing by half in early February.

The report called the current surge the largest COVID-19 wave in the United States to date.

[…]

Intensive care units at more than 50 hospitals are at 100% capacity, according to state reports, and some regions of the state, including El Paso, are reporting no ICU beds available in the area.

Already, the state’s children’s hospitals have more patients with COVID-19 in their beds than at any other time in the pandemic — 351 statewide on Thursday, which is higher than the last peak during the delta variant surge of 345 in early September.

“It’s pretty crazy,” said Frisco pediatrician Dr. Seth Kaplan, immediate past president of the Texas Pediatrics Society. “Our volume is way up.”

It’s mostly omicron now, very little delta in Texas, though there’s still a fair amount of delta in other parts of the US. It is true that omicron is less severe than delta, but it’s also true that it’s far more transmissible, and it’s affecting far more vaccinated people. Even with less severity, the sheer number of people being infected is driving the higher number of hospitalizations.

And while more vaccinated people are being infected by COVID, there’s still a big difference in outcomes between the vaxxed and the unvaxxed.

Omicron is sending a larger share of vaccinated people to the hospital that any previous COVID-19 variant, but unvaccinated people are still more likely to need critical care, according to Houston-area hospital officials.

Twenty-two of the 27 COVID patients in Harris Health System’s intensive care units are unvaccinated. At Houston Methodist, roughly 60 percent of the 80 COVID patients in the ICU are unvaccinated, and a high percentage of the remaining patients have underlying health conditions, said Dr. Faisal Masud, the hospital’s medical director of critical care.

It’s a similar story at St. Luke’s Health and Memorial Hermann Health System, both of which say 70 percent of ICU patients are unvaccinated.

“The vast majority of the people who are critically ill are either unvaccinated or have significant comorbidities,” said Dr. James McCarthy, chief physician executive at Memorial Hermann. “We are not seeing middle-aged, healthy, vaccinated individuals in the ICU like we did in the previous wave.”

[…]

Statewide, the number of patients in the ICU has been steadily rising since Christmas Eve, from 1,030 to 1,711 on Wednesday, according to the Texas Department of State Health Services. That’s about half of the patients in the ICU at the peak of the delta wave, but some Houston hospitals are already seeing ICU rates double over the last week.

The number of incoming ICU patients could exceed all previous peaks, said Dr. Esmaeil Porsa, president and CEO of Harris Health System. While the vaccines may not be as effective as they were initially, the current ICU population indicates that “they are still extremely effective against severe disease,” he said.

“More and more breakthrough infections are going to happen,” Porsa said. “We’re going to get a higher percentage of people who are vaccinated, but that number is never going to be a big number. It’s always going to be minority of people.”

Overall, doctors say omicron is not damaging the lungs as much as earlier strains. Fewer COVID patients in the Harris Health ICU require mechanical ventilation compared to delta, said Porsa, but other health issues like kidney and heart failure are becoming more common.

At Methodist, Masud has observed a similar pattern. A large portion of ICU patients Masud has treated ended up in the unit because the virus exacerbated an existing disease. The risk of facing such complications is higher for unvaccinated people, he said.

“This is eliciting an immune response, which is not only limited to lungs but which makes the patients sicker, with existing disease becoming much worse,” he said.

Masud said that now is a critical time to wear a well-fitted mask in public, especially for people who are not vaccinated.

It’s the same as before, in that the things you can do to mitigate your risk haven’t changed. Get vaxxed, and get your booster. Wear an N95 or KN95 mask when out with people. Avoid large indoor events and gatherings. Stay home if you’re not feeling well. This will pass, but how bad it gets before it passes is still up in the air. For more on the national picture, see TPM, Mother Jones, and Daily Kos.

Paxton asks Supreme Court to toss that pesky whistleblower lawsuit

Same argument, different court. Either Ken Paxton can be held accountable, or he gets a free pass to do whatever he wants.

Best mugshot ever

Texas Attorney General Ken Paxton has asked the Texas Supreme Court to toss out a whistleblower lawsuit by four former officials who say they were improperly fired after accusing Paxton of accepting bribes and taking other improper acts.

Paxton told the court that his agency “enjoys … the right to fire its employees — especially employees whose political appointments require they act on behalf of the duly elected Attorney General — at will.”

Paxton also argued that he can’t be sued because the Texas Whistleblower Act was intended to protect government employees from on-the-job retaliation by another public employee.

“The Attorney General is not a ‘public employee,'” said the appeal, filed Wednesday and made public Thursday. “Like the Governor, the Lieutenant Governor, and members of this Court, he is an elected officer, chosen by the people of Texas to exercise sovereign authority on their behalf.”

Paxton made similar arguments before the Austin-based 3rd Court of Appeals, but that court allowed the lawsuit to continue, ruling in October that the whistleblower act protects government workers from being fired for making “a good-faith report of illegal conduct … by the employer.”

Interpreting the act to exclude elected officials as employers would create a substantial loophole that runs counter to the law’s purpose of improving transparency and accountability, the 3rd Court ruled.

[…]

In his appeal to the Texas Supreme Court, Paxton characterized the complaints as matters involving policy disagreements — not a good-faith report of potential crimes as required by the whistleblower act.

“Plaintiffs were political appointees of the Attorney General who were dismissed from their posts following several policy disagreements. These disagreements each regarded duties well within the Attorney General’s authority, such as whether to retain outside counsel, issue a legal opinion, investigate potentially criminal acts and intervene in pending litigation,” the appeal said.

Paxton urged the all-Republican Supreme Court to reject the whistleblowers’ “vague, conclusory and speculative allegations,” saying they do not constitute a good-faith report of wrongdoing.

Lawyers for the whistleblowers will have the opportunity to respond to Paxton’s appeal in the coming weeks.

See here for the previous update. Paxton made the same argument to the Third Court, while also arguing that none of the whistleblowers had actually accused him of a crime, which meant they weren’t really blowing the whistle. I’m sure the plaintiffs will mostly repeat their earlier arguments as well. As for what the Supreme Court will do, or when they might do it – I for one will not be shocked if they wait until after the election – your guess is as good as mine. Reform Austin and KVUE have more.

It would seem that the San Marcos Police Department has some major problems

Geez.

The city of San Marcos admits in new court documents to text exchanges among its police officers about the Joe Biden bus incident in October 2020.

But it denies what it calls a “characterization” of the exchanges by the original complainants.

In documents filed in federal court Dec. 30, attorneys for the defendants denied almost all of the 173 allegations laid out in the original complaint. The defendants include the city’s public safety director, Chase Stapp; an assistant police chief, Brandon Winkenwerder; a police corporal, Matthew Daenzer; and the City of San Marcos.

In the lawsuit, which originally was filed in June 2021 by campaign staffers and volunteers for then-presidential candidate Joe Biden, the plaintiffs say the Police Department refused to provide a police escort or assistance for their campaign bus after it was surrounded by a pro-Trump caravan on Interstate 35 in October 2020.

The lawsuit alleges that Biden staffers called 911 and “begged” for help from police, but the police “privately laughed and joked about the victims and their distress, including by calling them ‘tards,’ making fun of a campaign staffer’s ‘hard’ breathing, and retorting that they should just ‘drive defensively’ or ‘leave the train.’”

Attorneys for the campaign staffers and volunteers obtained text messages via a public records request between Stapp, Winkenwerder, Daenzer and other police officers that they said showed the officials mocking and laughing at the bus occupants.

In the defendants’ response to the complaint filed last week, attorneys for Stapp, Winkenwerder, Daenzer and the city denied almost all the allegations in the lawsuit or said that they did not have enough “knowledge or information sufficient to form a belief” about them.

They did admit that the text exchanges occurred, but they denied the “characterization of the communication” contained in the complaint.

In one text exchange, an officer asked “did Kamala show?” — a reference to Biden’s vice presidential running mate, Kamala Harris — and another officer answered, “no, just a couple other yards,” which the plaintiffs’ lawyers claim was a misspelling of his intended word, “tards.” Lawyers for the city denied that characterization.

In another text, Stapp said: “from what I gather, the Biden bus never even exited I-35 thanks to the Trump escort.” Lawyers for Stapp and the city admitted that text was factual.

See here and here for the background. I have nothing against the city of San Marcos, but they have a real problem on their hands, and they need to do something about it. The trial is scheduled for November. I’ll be rooting very hard for the plaintiffs. The Current has more.

Interviews and judicial Q&As through January 7

Putting these in one place for your convenience and mine. I’ll try to do this on a weekly basis so you don’t have to hunt for the previous engagements I’ve had with candidates. It’s going to be pretty much wall-to-wall through the primary period. Next week I’ll be running the Commissioners Court interviews, and the week after that will be the Treasurer and District Clerk interviews. After that will be SD15 and hopefully HD142, and I’m working on CD38 as well. After that, I will probably be reaching out to some statewide candidates.

Here’s the interview list so far, followed by the judicial Q&As. As a reminder, much more information about Democratic primary candidates, including links to the interviews and judicial Q&As, can be found on Erik Manning’s spreadsheet. Let me know if you have any questions.

Interviews

Aurelia Wagner, HD147
Danielle Bess, HD147
Jolanda Jones, HD147
Nam Subramanian, HD147
Reagan Flowers, HD147

Judicial Q&As

Judge Abigail Anastasio, 184th Criminal District Court
Lema Barazi, 189th Civil District Court
Judge Scott Dollinger, 189th Civil District Court
Judge Tristan Longino, 245th Family District Court
Judge Hilary Unger, 248th Criminal District Court
Judge Chip Wells, 312th Family District Court
Judge Natalia Oakes, 313th Family District Court>,

Porscha Natasha Brown, County Criminal Court At Law #3

Judge Lucia Bates, Justice of the Peace, Precinct 3 Place 2
Herbert Alexander Sanchez, Justice of the Peace, Precinct 3 Place 2

Fifth Circuit gets set to put the final nail in SB8 legal challenges

The fix was always in.

In a contentious hearing Friday, a federal appeals court indicated it is likely to send Texas’ restrictive abortion law to the state supreme court, a move that could add months or longer before the case is resolved.

Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas through a novel law that empowers private citizens to sue anyone who “aids or abets” in a prohibited procedure. The law explicitly removes enforcement authority from state officials, making it extremely difficult to challenge in court.

In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law.

On Friday, a three-judge panel from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case goes next. Judges Edith H. Jones and Stuart Kyle Duncan indicated they believe there are state law questions that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson strongly disagreed, arguing the case should be remanded to federal district court.

In a move that surprised court watchers, Jones also raised the idea of taking no action on the case for months, until the U.S. Supreme Court has ruled on a Mississippi abortion case that could overturn the constitutional protection for the procedure.

Lawyers for the abortion providers believe the federal district court route is the best hope to getting the law, originally passed as Senate Bill 8, struck down. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect.

This is exactly what abortion opponents are hoping for.

See here and here for the background. There’s nothing I can say that I haven’t already said. The only way forward is winning more elections, both to change the laws in Texas and to get some court reform at the federal level. I wish I had something more hopeful, but this is all I’ve got. The 19th and the Chron have more.

Third Court of Appeals upholds Harris County mask mandate

Savor the win, for it’s off to SCOTx next.

A state appeals court on Thursday upheld a lower-court injunction that allowed Harris County to impose mask requirements despite Gov. Greg Abbott’s executive order banning such mandates.

The Austin-based 3rd Court of Appeals rejected arguments by Abbott and Texas Attorney General Ken Paxton, who claimed state law lets the governor overturn local health mandates imposed to mitigate the spread of a dangerous virus.

Abbott hasn’t budged:Texas parents pleaded for Gov. Abbott to allow mask mandates in schools

“The Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by local governmental entities or officials that contradict his executive orders,” said the opinion, written by Justice Chari Kelly.

The appeals court also said the disaster act does not allow, as Abbott and Paxton argued, the governor to suspend state public health laws that give local leaders the power to impose safety rules during declared emergencies.

“(The disaster act) does not give the governor carte blanche to issue executive orders empowering him to rule the state in any way he wishes during a disaster,” Kelly said in an opinion joined by Chief Justice Darlene Byrne and Justice Gisela Triana. All three justices are Democrats.

[…]

The appeal before the 3rd Court hinged on whether language in the Texas Disaster Act empowered Abbott to ban local rules enacted to protect public health.

Paxton and Abbott argued that the act:

• Designates the governor as “commander in chief” when addressing statewide disasters.

• Says local officials act as the governor’s designated agents during emergencies.

• States that executive orders issued under the act have the “force and effect of law.”

The appeals court, however, said Paxton and Abbott took the act’s provisions out of context.

The disaster law designates the governor as commander in chief of “state agencies, boards and commissions having emergency responsibilities” — not counties, Kelly wrote. In addition, nothing in the law limits the authority of county and local officials to respond to local disasters or public health crises, Kelly said.

“Even a statewide disaster may have distinct and disproportionate impacts in each of the state’s 254 counties and that, as a result, some measures for addressing a disaster in some counties may not be necessary or even appropriate in other counties,” Kelly wrote.

What’s more, she wrote, the disaster act lets the governor suspend “regulatory” laws that pertain to conducting state business. But Abbott sought to suspend a state law that lets local officials set public health rules in emergencies, and that law is not regulatory, the appeals court concluded.

“The Act empowers and recognizes that the Governor may issue statewide disaster declarations and that certain local officials may also issue local disaster declarations,” Kelly wrote.

“Nothing in the Act, however, suggests that these authorities are mutually exclusive,” she added.

As noted, the Third Court upheld a ruling issued in August by a Travis County district court. Note that there’s a second case, involving HISD and some other school districts, that was not part of this appeal. In this case, the three justices made the same points in the opinion that plenty of people, myself included, have been making all along about the Governor’s powers. Those judges are Democrats, and the judges on the Supreme Court are not, so we can’t just expect them to employ such thinking. Maybe they will, you never know, but you sure can’t assume it. For now, at least, the good guys have won. And even if SCOTx reverses this opinion, it’s still the case that Abbott and Paxton, by their own admission, don’t have the power to enforce Abbott’s no-mask mandate. Let’s not forget that.

Interview with Reagan Flowers

Reagan Flowers

We wrap up the week of speaking to candidates in HD147 today by talking with Reagan Flowers, who currently serves as HCC Trustee in District 4. I had a conversation with her a few months ago, as she was running for a full term on the HCC Board; that interview can be heard here. Flowers is an educator and entrepreneur, the founder of C-STEM Teacher and Student Support Services, Inc., and Chief Knowledge Officer for Education Consulting Services, LLC, having previously been a science teacher at Yates High School. I should note that there were a couple of times when the Zoom session froze for a few seconds – this has happened with a couple of interviews. Doing Zoom interviews has mostly been great, but technology can be fickle. Here’s the interview:

As with the judicial Q&A’s, more information about Democratic primary candidates, including links to the interviews and judicial Q&As, can be found on Erik Manning’s spreadsheet. I will periodically round up the links to these posts as well.

Paxton still wants to be supreme prosecutor

Please hold firm, CCA.

Best mugshot ever

Texas Attorney General Ken Paxton has asked the state’s highest criminal court to reconsider a recent decision that stripped his agency of the power to prosecute election law violations.

The Texas Court of Criminal Appeals, in an 8-1 ruling issued Dec. 15, struck down the state law that gave the attorney general’s office the authority to pursue criminal violations of the Election Code.

That 1985 law, the all-Republican court determined, violated the Texas Constitution’s separation of powers doctrine by granting Paxton’s executive branch office the prosecution authority that is reserved for district and county attorneys, who are members of the judicial branch.

Paxton, in a motion for rehearing filed electronically Sunday, asked the appeals court to reconsider, arguing that the ruling improperly stepped on the Legislature’s ability to delegate power to his agency.

[…]

In its December ruling, the Court of Criminal Appeals said the Texas Constitution gives district and county attorneys the power to prosecute criminal law violations, with the ability to seek help from Paxton’s agency if needed.

On the other hand, the court ruled, the constitution limits the attorney general’s powers to inquiring into charter rights of private corporations, suing in state court to prevent private corporations from exercising unlawful powers, seeking judicial forfeiture of charters, and providing legal advice to the governor and other executive officers.

“Notably absent from these enumerations is a specific grant of authority to the Attorney General concerning the prosecution of criminal proceedings,” said the ruling, written by Judge Jesse McClure III.

“In the Texas Constitution, the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally,” McClure wrote.

Paxton said the ruling upends about 70 years of practice and jeopardizes the prosecution of election law violations by leaving it to local prosecutors — including some who, he said, can’t be trusted with the job.

“Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution,” he said.

See here for the background. We all know what it is that Paxton wants to do, and I’m sure the CCA is aware as well. Their ruling was clear and it wasn’t close, and given Paxton’s plainly stated motivations, the only possible explanation for a reversal at this point – again, a reversal of their own 8-1 ruling, handed down less than a month ago – would be pure partisan politics. Is the CCA able to withstand that kind of pressure? I sure hope so.

Another lawsuit filed over Commissioners Court redistricting

What a bunch of crybabies.

A former county commissioner is suing Harris County Judge Lina Hidalgo, claiming Hidalgo and the county violated state law when they met to approve redistricting maps.

Former Commissioner Steve Radack argues the commissioners violated the Open Meetings Act because they did not make public the map that ultimately was approved within 72 hours of the meeting.

The lawsuit seeks to invalidate the court’s adoption of the new maps.

County Attorney Christian Menefee dismissed the suit as “meritless.” The Open Meetings Act requires governments to post public notices about meetings at least three days before they occur. Courts and attorneys general have said the notices have to be sufficiently specific to let the public know what will be addressed. It does not require them to post supporting documents, although governments sometimes do.

The county posted a timely notice of the meeting and met on Oct. 28 to take up redistricting. The lone item on the agenda said: “Request to receive public input regarding Harris County Commissioners Court redistricting plans, and consider and possibly adopt an order approving a new district/precinct plan for Harris County Commissioners Court, including any amendments thereto.”

This lawsuit was filed on December 31, just a few days after the first lawsuit was dismissed. Funny how this wasn’t an issue before then. This is another Andy Taylor joint, and how sweet it must be for him to get another ride on the ol’ gravy train. But seriously, cry me a river, fellas.

Interview with Danielle Bess

Danielle Bess

Next up in HD147 we have Danielle Bess, a native Houstonian and real estate professional. Bess has been involved in politics for a long time, having worked with campaigns ranging from Obama for America, Sheila Jackson Lee for Congress, Annise Parker for Mayor, and Ron Kirk for Senate. Her work has included affordable housing and community development projects, and rebuilding or repairing homes damaged by floods. Here’s what we talked about:

As with the judicial Q&A’s, more information about Democratic primary candidates, including links to the interviews and judicial Q&As, can be found on Erik Manning’s spreadsheet. I will periodically round up the links to these posts as well.

Three comments about three vaccine mandate news stories

Item one:

A U.S. district judge in North Texas has blocked a mask mandate and vaccine requirement for staff and students in the Head Start program that was issued by President Joe Biden.

Head Start is a federal school readiness program for young kids in low-income families that is administered nationally by the federal Health and Human Services department, but run locally by nonprofits or schools. Biden previously ordered that staff running Head Start programs must be vaccinated and all students over the age of 2 had to wear masks. Texas Attorney General Ken Paxton and Lubbock ISD sued the Biden administration to stop enforcement of that order.

U.S. District Judge James Wesley Hendrix, a 2019 appointee of Republican President Donald Trump, ruled Friday that the Biden administration could not enforce its mask and vaccine mandates for the Head Start program in Texas, although the mandates would continue in other states.

Hendrix wrote that the process by which the Biden administration implemented the mask and vaccine rules was in violation of federal law because such rules could only be put in place through a detailed process or with the authorization of Congress. The order applies until the judge holds a trial and issues a final decision on the full merits of the case, or if it is lifted by a higher court.

Item two:

In the state’s latest push against federal vaccine mandates, Gov. Greg Abbott on Tuesday announced plans to sue the Biden administration for requiring Texas National Guard members to get vaccinated against COVID-19.

The suit would be the latest in what has been a slew of litigation against federal vaccine mandates that Texas has either brought forth or taken part in during the pandemic.

In a letter issued Tuesday to Maj. Gen. Tracy R. Norris, the adjutant general of the Texas National Guard, Abbott claimed authority to exempt Texas guard members from receiving the vaccine.

Item three:

A federal judge in Fort Worth granted an injunction Monday against the Department of Defense and the Biden Administration that temporarily halted the U.S. Navy’s COVID-19 vaccine mandate.

The mandate is challenged by a group of U.S. Navy SEALs and other Naval special warfare personnel who say the mandate violates their religious freedom and they have been denied religious exemptions from receiving the vaccine.

U.S. District Judge Reed O’Connor of the Northern District of Texas signed the injunction order after hearing testimony from several Navy SEALs in December as part of the group’s lawsuit. The suit is against President Joe Biden, the Department of Defense, the Secretary of Defense and the Secretary of the Navy Carlos Del Toro.

My comments:

1. It is impossible to overstate how much Greg Abbott and Ken Paxton are on the side of the COVID virus. They themselves are vaccinated, because they are not stupid and want to stay alive, but they absolutely do not care how many people die as a result of COVID. They see only political advantage in making the pandemic worse.

2. They will always be able to find Trumpy judges to plead their cases to, and will generally get favorable rulings from them as a result.

3. The only way to stop the state of Texas from filing these lawsuits is to elect a Democrat as Attorney General. Electing Beto O’Rourke as Governor would also help, as he would be less likely to impose pro-COVID executive orders.

Any questions?

Interview with Aurelia Wagner

Aurelia Wagner

Today’s candidate for HD147 is Aurelia Wagner, who had run in the primary for this seat in 2020 as well. Wagner is a teacher and graduate of Texas Southern University, where she participated on the debate team. She served in the United States Navy Reserve while in college, and had grown up in different places around the country as her father had served in the US Air Force. Wagner has volunteered with Constable May Walker and with the Texas League of Young Voters. Here’s the interview:

As with the judicial Q&A’s, more information about Democratic primary candidates, including links to the interviews and judicial Q&As, can be found on Erik Manning’s spreadsheet. I will periodically round up the links to these posts as well.

SB8 plaintiffs want their lawsuit moved back to district court

As is usually the case, the lawless Fifth Circuit is the problem, with a generous assist from SCOTUS.

With the 5th U.S. Circuit Court of Appeals set to hear arguments about Texas’ restrictive new abortion law Friday, abortion providers have asked the U.S. Supreme Court to again intervene and instead send the case to a lower court.

Abortion providers filed the request Monday, along with a motion to expedite the high court’s ruling on the matter ahead of Friday’s hearing. Lawyers for the providers argue that the 5th Circuit should send the case to district court, which in October temporarily blocked enforcement of the law.

[…]

In December, the Supreme Court threw out most of the providers’ challenges to the law and allowed only one narrow challenge, against medical licensing officials, to proceed. The court also allowed the restrictions on the procedure to remain in place.

Then, in an additional blow to abortion providers, the Supreme Court sent that one remaining challenge to be reargued before the 5th Circuit, considered one of the most politically conservative circuit courts in the nation. Providers had been expecting it to be sent to the district court, which was seen as a more favorable venue. They argued in Monday’s filing that district court is the proper venue for the case to proceed.

“It’s unconscionable that the Fifth Circuit Court of Appeals is defying the Supreme Court’s ruling last month by refusing to send our case back to the district court so that we can continue fighting Texas’ six-week abortion ban,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “The Supreme Court must step in to prevent the appeals court from needlessly delaying our lawsuit against Texas’ bounty-hunting scheme and compounding the harm this ban has already inflicted on Texans.”

Rather than remanding the case to the district court, though, the 5th Circuit decided in a split decision to hear arguments in the case on Friday and will consider whether the case should be sent to the Texas Supreme Court to proceed. Legal experts say certifying a case to the state supreme court can extend the appeals process by months, if not years.

Circuit Judge Stephen A. Higginson dissented from the majority, arguing that the Supreme Court’s ruling does not require reargument before the 5th Circuit and should not be sent to the Texas Supreme Court. Higginson also wrote that he believes the Supreme Court ruling indicates that the medical licensing officials should be blocked from enforcing the law.

But Higginson noted that he had been “unpersuasive,” and unless the Supreme Court weighs in before Friday, the case is likely to proceed at the 5th Circuit. Abortion providers argue that this delay is harming women seeking abortions.

See here for the background. The plaintiffs had also asked the Fifth Circuit to just send this back to the district court, but they declined and instead scheduled this hearing, which is not a thing that appellate courts normally do. It’s clear that the purpose of this is to just flat-out delay if not deny sending the case back to the district court judge, who will surely enjoin it for the duration of the lawsuit, and wait for SCOTUS to officially throw out Roe v Wade in the Mississippi case. The Fifth Circuit is rogue and lawless and needs to be gutted. Simply calling it some variation of “very conservative” does not accurately describe it. The news media needs to wake up and get with the program. The 19th has more.

Get ready for more construction in 2022

Happy New Year! Here are the places you’ll want to avoid driving in 2022.

Flush with green, Houston area transportation officials have a whiteboard full of highway and transit projects poised to start in 2022, but rolling out all that blacktop will mean drivers see many more orange cones and construction zones, leaving some feeling blue.

Texas Department of Transportation construction spending is expected to top $2.2 billion for the Houston region for fiscal 2022, which began Sept. 1, nearly double the 2021 total. The projects that money pays for are spread across the region, said James Koch, director of transportation planning and development for TxDOT in Houston, during a discussion with local transportation officials.

“(2022) is going to be a very big year for our region, for the contractors and whatnot,” Koch told members of the Houston-Galveston Council’s transportation advisory committee on Dec. 9. “You will see a lot of barrels and cones out.”

Among the major projects set to break ground in the year are new bridges across Texas 288 to remove many at-grade crossings from the highway and transition more of it to a freeway-like form. Across five different projects, TxDOT has teed up $135.6 million worth of work on overpasses in Brazoria County, along with a $70.9 million planned widening of Texas 36.

[…]

Upcoming construction, meanwhile, does not reflect work spurred by the recently approved federal infrastructure bill. The federal framework, which continues many of the same methods for funding highways and transit, is likely to jump-start a litany of other projects, officials said. Tapping those federal dollars, however, will mean as drivers see more construction zones, local and state officials — along with the engineering and planning firms they hire — will be preparing for even more work.

Much of that work is already planned for Metro, which received voter approval for $7.5 billion in new projects and upgrades in 2019, weeks before COVID changed commuting patterns worldwide. Since, Metro officials have prepped for many of the projects to proceed, with some of the earliest work likely unveiled this year.

Metro is likely to choose a preferred route and potential station locations for a planned busway along Interstate 10 in the next two or three months, allowing transit officials to get in line for federal transit money by mid-2022 as they continue design.

The project is the linchpin in Metro’s expansion of rapid transit from downtown west into Uptown, which is crucial to park-and-ride service in western and northwestern parts of Harris County, officials said.

“The benefits extend beyond those seven miles,” said Amma Cobbinah, a senior transit planner with Metro overseeing the project, noting how the lanes connect downtown to the Northwest Transit Center at I-10 and Loop 610, a major stop for park and buses.

Now past the transit center, those commuter routes crawl along I-10 with car and truck traffic to and from downtown, making them far less efficient and timely.

Provided the project stays on pace, officials said they hope to begin construction by late 2023 and start service in 2027.

Work on the so-called Inner Katy is just one of two major bus rapid transit projects Metro is moving forward on in 2022. Transit officials in December unveiled an online open house outlining plans for the University Corridor project, a 25-mile BRT line planned from the Tidwell Transit Center north of Kashmere Gardens, south through Fifth Ward and the Eastside. The line then turns west through Third Ward and Midtown and then through Greenway Plaza and south of Uptown where it connects to the Silver Line that runs along Post Oak.

Eventually, the University Corridor will connect to the Westchase Park and Ride near Westpark and Beltway 8.

And all this also includes the ongoing projects like the 610/59 interchange and I-10 widening out west around Brookshire, not to mention some non-freeway zones. I’m excited about the two BRT projects, both of which will be with us for a couple of years. If we can live through it all, the end results should be well worth it. Drive safe, y’all.