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January 11th, 2023:

Dade Phelan easily re-elected Speaker

Jan 11th, 2023
by Charles Kuffner.
Comments are off for this post

No drama, as expected.

Rep. Dade Phelan

Texas House of Representatives members on Tuesday voted 145-3 to elect state Rep. Dade Phelan, R-Beaumont, to a second term as speaker — the most powerful position in the lower chamber.

He defeated state Rep. Tony Tinderholt, R-Arlington, who was nominated by ultraconservative members who feel Phelan is unreasonably accommodating of Democrats in the chamber. Tinderholt cast a ballot for himself, as did two Republican members who nominated him, Nate Schatzline of Tarrant County and Bryan Slaton of Royce City.

[…]

Phelan guided the House through the 2021 legislative sessions, which some observers called “the most conservative” in state history. Lawmakers passed new laws banning almost all abortions and allowing permitless carry of handguns.

But conservative grassroots activists said the House had not gone far enough on conservative priorities like banning gender-affirming care for transgender children and have often butted heads with Phelan. Critics attacked him for appointing Democrats to leadership positions in the chamber, following a long-held chamber tradition to appoint members of the minority party as committee chairs. Phelan has not budged on the issue, indicating he once again plans to allow some Democratic chairs and arguing that the Texas House operates better on a bipartisan basis and eschewing the divisiveness seen in Washington, D.C.

See here for the background. The two main differences between Speaker Phelan and Speaker Tinderholt is that Tony Tinderholt is an asshole, and Dade Phelan will appoint some Democratic committee chairs. In terms of outcomes, the Lege is still going to pass brutal right-wing legislation, with no real limit on their id beyond their own capacities for shame and empathy. I suppose there’s a chance that Speaker Phelan might help bottle up a particularly noxious bill that some Republican members would rather not have to vote on, but I wouldn’t expect much. This is where we are.

SCOTx to decide if ERCOT can be sued

Jan 11th, 2023
by Charles Kuffner.
1 comment

Big decision to come.

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

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

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

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

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

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

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

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

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

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

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

Is trap-neuter-return illegal?

Jan 11th, 2023
by Charles Kuffner.
1 comment

A question that could affect a lot of cities, including Houston.

Trap, neuter, return programs are popular across Texas as a way to control feral cat populations. But one local official is now posing a thorny question: Are they legal?

Brazoria County District Attorney Tom Selleck has asked the attorney general’s office to determine whether the initiatives run afoul of animal cruelty laws that criminalize abandonment.

Selleck insists he is not trying to put an end to the programs, but instead wants clarification as several cities in his area consider their use.

“We’re certainly not saying it’s a bad program, quite the contrary, I think it has some excellent benefits,” he said. “I just don’t want somebody getting arrested over it. I’d like to know what my parameters are as a prosecutor.”

Attorney General Ken Paxton has yet to issue the opinion that could have sweeping implications for animal control efforts in Dallas and other cities. In addition to managing stray cat populations, the programs are also credited with cutting back on nuisance mating behaviors like fighting, yowling and marking.

Generally the programs work like this: Stray cats are trapped, then sterilized and vaccinated by a veterinarian before being returned to where they were found. Animals that have been through the process are often marked with a clipped ear.

In his November letter, Selleck questioned whether the programs may conflict with a state law that makes it a crime to abandon “unreasonably an animal in the person’s custody.”

“Returning the animal into the wild, without making reasonable arrangements for another individual to take custody of said animal, operates as a form of abandonment, by letter of the law,” he wrote. “If the abandonment is made unreasonably, such as leaving the stray in an open and unsafe environment, then that may support a conviction.”

Danielle Bays, a senior analyst for cat protection and policy at the Humane Society of the United States, pushed back on that notion.

“It’s not as if these cats are being left to fend for themselves,” Bays said. The stray cats are returned to the same place they were trapped, she said, often where they’re being fed or cared for by people.

“I don’t know of anywhere where people have actually been charged with abandoning cats when they return them to where they were found,” she said. “If you’re taking those cats and releasing them somewhere else, if you were just dumping them somewhere, that’s not the same thing.”

I get where DA Selleck is coming from – certainly as an officer of the court he wants to make sure he’s in compliance with the law – but I dunno, if the issue has never come up before and so many cities have been doing this without any problems, maybe it’s not an issue? Houston is one of those cities, so we have some skin in this game. Selleck says that he hopes the AG’s office will return an opinion in time for the Lege to take action if needed, a sentiment with which I agree. That said, if there really is a concern, there’s no reason not to ask a legislator right now to craft and carry a bill that would clarify the law and remove the potential conflict. Why take the chance on the opinion landing after the bill filing date, or the Lege not having the time to move it after the opinion drops? If it’s an issue, take action now. That’s my opinion.