Off the Kuff Rotating Header Image

Supreme Court

When might SCOTX rule on the line item veto thing?

The short answer to that question is “who knows, when and if they feel like it”. I’m just going to focus on the analysis part of this, because that is what interests me more.

Legally, the case hinges on whether the Texas Constitution allows a governor to cut off funding for an equal branch of government.

Politically, it’s unclear whether the court would be doing Abbott a bigger favor by upholding his veto power, or by extricating him from a stalemate that’s not going his way.

Either way it goes, the case will have broad implications for the future of Texas governance, said Brandon Rottinghaus, a political science professor at the University of Houston.

If the veto is upheld, it strengthens executive power, giving Abbott and future governors a new axe to wield over the Legislature.

“This is well beyond the Schoolhouse Rock version of how government works,” Rottinghaus said, referencing a children’s animated series that simplified political concepts into cartoons. “This is a political story as much as it is an institutional separation of powers story. So it’s going to really push the boundaries of what’s allowable in Texas, especially in its governor.”

And if Abbott’s veto is upheld it would likely deflate the Democrats who fled to Washington D.C, leaving them to shoulder part of the blame if about 2,100 legislative staffers lose their jobs come fall.

“It takes a lot of the wind out of the sails of the Democrats if the courts back the governor in this fight. So that’s really, I think, what they’re waiting for,” he said. “The bottom line is that they can’t keep doing this forever, that the Democrats are going to see that at some point, politically, they’re not getting any more purchase.”

And the court itself could face political repercussions when its members are up for reelection. Courts have not pushed back on executive power for decades, Rottinghaus said. The doctrine of separation of powers has been eroded over the last couple of decades, he says, and if the court takes Abbott’s side, then it’s likely to further blur the line.

“I’m a big believer in separation of powers. I don’t think this is a partisan argument,” Rottinghaus said, saying he wished the whole Legislature, both parties, would “stand up for itself collectively” against the move. “To boil it down, this is basically a question about which power’s more robust, the power of the executive veto or the separation of powers — institutions that have been weakened by political fights.”

[…]

Jeffrey Abramson, a University of Texas at Austin law and government professor, says he believes the veto infringes on the Texas Constitution.

“Like every other state constitution and the U.S. Constitution, the Texas Constitution is based on the fundamental principle that separating government power among three coequal branches of government is the best way to limit the possibility of tyranny,” Abramson said in emailed comments. “Gov. Abbott’s defunding of the Legislature, by vetoing the part of the budget that provides funds for the legislature, is a clear and frightening attack on separation of powers. It is an attempted executive coup.”

It’s unclear when the Texas Supreme Court could rule on the issue — or if it will at all. It could rule any day now, delay a decision or decide the court does not have the jurisdiction over the case at all. The justices could also rule to disallow part of the veto — for example, legislators are allowed a per diem payment under the constitution — or find that the issue is not yet ripe and punt it down the road to decide at another time. Attorneys for House Democrats asked for the court to expedite its decision “well before” the new budget comes into effect.

“If I had to really put money on it, I would say that the court would back the governor’s veto, in part because they might view this as being a temporary political skirmish that can be resolved,” Rottinghaus said.

[…]

If the veto is deemed constitutional, House Democrats warn it will set a dangerous precedent.

“People need to understand that going forward, every governor will be using this power. Every Legislative session will involve a list of demands, [and] it will be explicit or implicit that if the governor doesn’t get this legislation, and then the legislature won’t exist,” said Chad Dunn, attorney for the House Democrats who filed the petition to the Supreme Court, in an interview. “That is dangerous stuff, and it’s got to be remedied immediately.”

The House Democrats also warn the state’s top court: if it happens to us, it could happen to you, too. They argued in court filings that if the governor can defund the Legislative branch, a co-equal branch of government, for going a way he disagrees with, he could then turn around and do the same to the state’s top court.

Abramson agrees.

“Imagine a governor that stripped Texas courts of funding as a way of retaliating against a decision the governor did not like and as a way of pressuring the courts to do his bidding,” he said. “No one would think the governor had such power. But he has done the equivalent to the Legislature.”

Just for the record, I’ve already imagined that. It wasn’t hard at all to imagine. Doesn’t mean that the great legal minds that make up our Supreme Court have imagined it, or are capable of imagining it. But some of us can, and did.

Separation of powers is baked into the state constitution, Rottinghaus said. If Abbott’s veto is upheld, it could throw off the balance completely.

Charles Rhodes, a Texas constitutional law professor at South Texas College of Law Houston, agreed.

“Using the line item veto power as a sword to make the other branches yield to his will, that’s going to totally upset the original foundations of the very strict separation of power scheme that the founding fathers of the Texas Constitution of 1876 envisioned,” Rhodes said.

If the veto is deemed valid, then it will likely cause permanent change to the power structures in Texas, he said.

“Sometimes, Texas is referred to as a weak governor state,” Rhodes said. “But if the governor can start leveraging vetoes to control legislation and to control the courts, then our governor just became one of the most powerful gubernatorial officials of any state.”

I mean, what else is there to say? The state’s arguments in favor of the veto are total weaksauce. This really shouldn’t be a hard question. It’s just a matter of whether the Supreme Court has the guts, and the imagination, to properly address it.

Day 9 quorum busting post: See you in August

Here’s your endgame, more or less.

Texas House Democrats will not return to the state until after the special session of the Legislature is over, one of the leaders of their walkout confirmed Tuesday.

State Rep. Trey Martinez Fischer, D-San Antonio, said they expect to return to Texas on Aug. 7 — when the 30-day special session aimed at passing new voting restrictions is required to end.

“It will be our plan on that day — on or about — to return back to Texas,” Martinez Fischer told advocates of a group Center for American Progress Action Fund, that is led by former White House Chief of Staff John Podesta, a Democrat. “Then we will evaluate our next option.”

[…]

He said Democrats want to soften some of the “sharp edges” of the voting restrictions Republicans are proposing — specifically, how the GOP bill enables felony charges against election officials who violate its provisions, as well as for people who help voters fill out their ballots without the proper documentation, even for inadvertent offenses.

“There really has been no attempt to negotiate in good faith,” he said. “We are all putting our hopes in a federal standard.”

Other Texas Democrats have said their plan right now is to keep their caucus unified and focused on spurring national action. State Rep. Ann Johnson, D-Houston, said Abbott’s threats to have them arrested or to call more special sessions don’t mean much to her.

“Our presence here together ensures that those Texans who are not being heard by Gov. Greg Abbott continue to be stood up for,” Johnson said.

Democrats on Tuesday said while in Washington, they are pushing for a meeting with President Joe Biden and were continuing to meet with key leaders. That included a strategy session with U.S. Rep. James Clyburn, a top leader in the House from South Carolina.

But if the Texans are counting on Congress acting, they don’t have much time. The U.S. House goes on its annual August recess starting July 30 and the U.S. Senate leaves a week later. Neither returns to Washington until after Labor Day.

When Texas Democrats do finally return, Abbott has made clear he’ll call them back into special session again to pass an elections bill and other key priorities of Republicans who control the agenda in state politics. The Texas Constitution allows the governor to call as many special sessions as he wants, but each cannot last for more than 30 days.

It’s the Senate that matters, and their recess (assuming Majority Leader Chuck Schumer allows it in full) corresponds to the end of Special Session #1. The House is not the problem for the Dems. Same story, different day.

Timing may be a problem for Greg Abbott, as Harvey Kronberg suggests.

HK: Article X Veto may have compromised full Republican control of redistricting

In theory at least, Democrats may have leverage they should not otherwise have; Article X cannot be revived without a special and with a hard August 20 deadline looming, the Legislature is on the edge of mutually assured destruction

“The Democrats’ claims about the governor’s veto ‘cancelling’ the legislative branch are misleading and misguided. The Constitution protects the legislative branch, and as the Democrats well know, their positions, their powers and their salaries are protected by the Constitution. They can continue to legislate despite the veto” – Gov. Greg Abbott, responding to the Democrats’ Texas Supreme Court request to overturn his Article X veto.

Let’s be clear up front.

The conventional wisdom is that although there is a threat of arrest upon arrival, the House Democrats will come back at some point and watch Republicans pass some version of their election bill. A substantive question is whether the bill becomes more punitive due to Republican anger over the quorum break.

Let’s not bury the lede here. The House is boiling and Governor Abbott’s veto of legislative funding could conceivably lead to Republican loss of control in redistricting. While there is much chest beating and both feigned and real anger over the quorum bust, it camouflages a much bigger issue.

The rest is paywalled, but I was able to get a look at it. The basic idea is that per Comptroller Glenn Hegar, the state has until August 20 to reinstate legislative funding for the software to be updated in time to write checks for the next fiscal year beginning September 1. If that hasn’t happened by then, the Texas Legislative Council, which does all of the data crunching for redistricting, goes offline. No TLC, no ability to draw new maps. Pretty simple, as far as that goes.

What happens next is unclear. If the Lege can’t draw maps, that task falls to a federal court for the Congressional map. They wouldn’t have the needed data, and they wouldn’t have a default map to use as a basis, since the existing map is two Congressional districts short. The Legislative Redistricting Board draws the House, Senate, and SBOE maps if the Lege doesn’t, but they wouldn’t have data either, and per Kronberg “the LRB cannot constitutionally convene until after the first regular session in which census numbers have been received. (Article 3, Section 28).” Which is to say, not until 2023. You begin to see the problem.

Now maybe funding could be restored quickly, if Abbott were to call everyone back on August 8 or so. But maybe some TLC staffers decide they don’t need this kind of uncertainty and they move on to other gigs. Maybe Abbott declares another emergency and funds the TLC himself, though that may open several cans of worms when the litigation begins. Maybe the Supreme Court gets off its ass and rules on the line item veto mandamus, which could settle this now. Indeed, as Kronberg points out, the amicus brief filed by the League of Women Voters is expressly about the failure of the Lege to do its constitutional duty in the absence of funding for the TLC.

There are a lot of things that could happen here, and Kronberg is just positing one scenario. His topline point is that any outcome that includes a court drawing maps is a big loss for Republicans, for obvious reasons. Does that provide some incentive for “good faith negotiation”, if only as a risk mitigation for the Republicans? I have no idea.

One more thing:

When Texas Democrats staged a walkout at the end of the regular legislative session in late May, they successfully killed Republicans’ prized bill: a slew of restrictions on voting statewide. Or that’s how it seemed at the time, at least.

Less than three weeks later, Gov. Greg Abbott announced a special legislative session specifically aimed at passing an equivalent version of the so-called election integrity bill alongside other conservative legislative priorities.

The same day Abbott announced his plan for the special session, AT&T, whose CEO has said the company supports expanding voting rights nationwide, gave Abbott $100,000 to fund his reelection campaign.

[…]

In April, AT&T CEO John Stankey told The Hill that the company believes “the right to vote is sacred and we support voting laws that make it easier for more Americans to vote in free, fair and secure elections.”

In an email, an AT&T spokesperson said, “Our employee PACs contribute to policymakers in both major parties, and it will not agree with every PAC dollar recipient on every issue. It is likely our employee PACs have contributed to policymakers in support of and opposed to any given issue.”

How could the left hand possibly know what the right hand is doing? It’s a mystery, I tell you.

More briefs in the lawsuit over the line item veto

I sure hope this means a ruling is on the horizon.

Attorney General Ken Paxton’s office has asked the Texas Supreme Court to toss a lawsuit brought by House Democrats over Gov. Greg Abbott’s move to veto funding for the Legislature, arguing that lawmakers improperly blocked the issue from being resolved when they fled the state.

After Abbott vetoed the portion of the coming two-year state budget that funds the Legislature and its staff, known as Article X, more than 50 Democratic state House members filed a lawsuit accusing the Republican governor of violating a constitutional provision that provides for three separate and independent branches of government. In calling lawmakers back to Austin for a 30-day special session, Abbott gave them the option to restore the funding.

In a filing Tuesday evening, Solicitor General Judd Stone wrote that the special session is the “forum for addressing the very issue in dispute, yet it is (the Democrats) who are preventing that outcome by purposefully stopping the Legislature from being able to exercise its constitutionally granted powers.”

[…]

Stone went on to argue that the matter “is a political question unsuited for adjudication” that should instead be resolved by the legislature.

“By staging another walkout, …House Democrats are forcing the Legislature into the result they say would injure them—the lack of Article X funding,” Stone wrote. “Proceeding with this case would improperly reward (Democrats) for their misguided attempt to manufacture jurisdiction and would waste this Court’s resources.”

Democrats responded to the filing Wednesday, arguing there is no link between the lawsuit and Democrats’ quorum break. Chad Dunn, the Democrats’ attorney in the case, framed the court filing by Paxton’s office as an “attempt to blame the victim by putting the onus on the Legislature to rectify Governor Abbott’s unconstitutional conduct.”

“Governor Abbott’s veto violates the constitutional guarantee of separation of powers by effectively abolishing a co-equal branch of government. The recent events in the Texas Legislature do not change that fact,” Dunn wrote. “Rather, they confirm the need for this Court to decide whether Governor Abbott may threaten the Legislature’s existence — and hold hostage the more than 2,000 public servants who work for it — as a means of achieving his legislative objectives.”

See here and here for the background. I’m sorry, I Am Not A Lawyer and I clearly have a rooting interest in the outcome, but the state’s argument is transparently self-serving. Abbott is entirely the reason we’re in this situation. He vetoed the funding. Only he had the power to call a special session, and to set the agenda, to give the Lege a chance to respond. He could have only put Article X funding on the agenda, at least until that was resolved. The only way out of this conundrum that doesn’t give all the power to Abbott is to declare that he cannot veto the funding for the legislative branch. (And again, if he can do that, he can also veto the Supreme Court’s funding.) The state constitution makes no sense otherwise.

The Statesman gives more of the Democrats’ response.

“Governor Abbott’s veto violates the constitutional guarantee of separation of powers by effectively abolishing a co-equal branch of government. The recent events in the Texas Legislature do not change that fact,” their lawyers told the court in a response filed Wednesday.

If anything, the quorum break that has hamstrung the special session demands the court’s answer to the central question: “Whether Governor Abbott may threaten the Legislature’s existence — and hold hostage the more than 2,000 public servants who work for it — as a means of achieving his legislative objectives,” the Democrats argued.

What’s more, they said, Abbott has not said he will sign into law a bill restoring the money.

“There is good reason to think he will not unless and until the Legislature has first fulfilled his other agenda items,” said the letter signed by lawyers Jim Dunnam and Chad Dunn.

Instead of accepting the argument that Abbott’s veto is an improper intrusion on another branch of government, Republicans are working to “blame the victim” by putting the onus on lawmakers to correct Abbott’s unconstitutional action, they argued.

“It is the Governor’s unconstitutional veto that is harming (House Democrats) by defunding the Legislature — not the subsequent decision by some Members to push back on this unprecedented break in the constitutional structure by breaking quorum,” Dunnam and Dunn wrote.

I do sympathize with the Supreme Court not wanting to rule on this hot potato, but if they can’t stand the heat they shouldn’t have run for the Court in the first place. Put on your grownup pants and do what needs to be done.

Day 3 not as long omnibus quorum busting post

Let’s jump right in…

Who’s paying for Texas Democrats’ trip to DC? Beto O’Rourke has already raised $400K.

Beto O’Rourke’s political action committee has raised nearly half a million dollars to support Texas Democrats’ escape to Washington, D.C., he said Tuesday night.

O’Rourke, a former El Paso congressman and possible 2022 candidate for governor, has been soliciting donations for the Democrats on Twitter since they fled to the nation’s capital on Monday. It’s the second time House Democrats have broken quorum in about six weeks to kill a controversial elections bill championed by Texas’ GOP leaders.

The PAC, Powered By People, has raised more than $430,000 so far, O’Rourke said.

“Up to them to use it for whatever keeps them in the fight for as long as it takes,” he said.

The 60 or so fugitive Democrats have repeatedly said that no taxpayer dollars are funding the expenses for their stay in Washington, which could last as long as Aug. 7, the end of the special session in Austin. Legislators have been using campaign funds and personal funds, they said.

State Rep. Trey Martinez Fischer, D-San Antonio, said he paid for the first night of hotel rooms and meeting spaces for the group on Monday.

The effort has garnered national attention, and some celebrities have joined the fundraising push. Texas icon Willie Nelson and his wife, Annie, matched $5,000 in donations on Tuesday.

The Trib also covered this topic. Greg Abbott has been out there claiming the Dems are using taxpayer funds for this journey, which is nonsense. As I said up front, of course this is going to be a fundraising opportunity for the Dems, partly because firing up the base is a key component and partly because they’re going to need it. It’s pretty simple.

Behind the partisan drama lies a profoundly serious struggle over who gets shut out under Texas voting laws.

The dramatic exodus of Democratic Texas lawmakers to block a Republican voting bill has choked the political airways in a haze of confusion, posturing and finger-pointing.

But beneath the smoke, a fire rages.

Many Democrats, especially those who are people of color, are incensed, seeing the latest Republican voting bill as another moment of crisis in a state they believe has long marginalized people like them in the halls of power.

Many Republicans, passions stoked by unsubstantiated claims of widespread voting fraud, see their hold on political power slipping away, and are clamoring for a firewall.

The struggle over voting rights in Texas goes beyond the legislative theatrics of the moment. It is fundamentally a clash not just of elected officials, but of the two constituencies they represent. It is a fight over whose voices will be heard that began long before the Democrats shut down the Texas Legislature, and the stakes are not trivial.

The two days preceding the Democratic flight offered a microcosm of the standoff.

[…]

In the lead up to their quorum break, Democrats appeared frustrated at Republicans’ lack of consideration for the fallout voters of color could face from their proposals. Throughout the legislative debates, they’ve repeatedly pressed GOP bill authors on whether they’ve sought disparate impact studies to assess if their new voting rules would disproportionately harm voters of color. (Republicans have consistently responded they have not.)

But Democrats’ retort since fleeing the state — that their actions are an extreme but necessary effort at safeguarding their own communities from the Republicans in charge of the state — have underlined the reason behind their destination.

Conceding they don’t have the sufficient numbers to block the Texas legislation indefinitely, they have thrust their fight onto the national stage in hopes of helping increase pressure on Congress to pass federal legislation to restore sweeping protections for voters of color.

“Texas’ generations-long pattern of discrimination is not in the past; it is alive and present today in the anti-voter bills before the Texas State Legislature,” state Rep. Trey Martinez Fischer, D-San Antonio, said in a statement about the quorum break. “This is part of a calculated and deliberate Republican plan to chip away at the freedom to vote and to choose our leaders.”

Their remarks echoed the series of federal court rulings in recent years that found state lawmakers have repeatedly and intentionally discriminated against voters of color, often by diluting the power of their votes in selecting their representatives.

The high-stakes fight in Congress centers on a pair of federal bills, including one that could place Texas, and other states with a history of discrimination against voters of color, back under federal supervision of its election laws and redistricting.

For decades, that oversight — known as preclearance — proved to be a powerful mechanism for keeping Texas laws and political maps from going into effect until the Department of Justice or a federal court ensured they wouldn’t undermine the voting rights of people of color.

Before it was wiped out by the U.S. Supreme Court in 2013, preclearance forestalled the adoption of the state’s 2011 redistricting maps before they were revised by the federal courts. It also kept Texas from immediately implementing its stringent voter ID law, which was eventually slightly rewritten as a result of the legal intervention over the way it targeted Hispanic and Black voters who were less likely to have the one of the IDs that were not required to cast a ballot.

Texas Democrats have been able to easily align their efforts with calls for the restoration of those protections because they would wholly benefit the voters of color that are in the majority in most of their districts. Republicans’ political base is more likely to be made up of older, white Texans, while Democrats rely on a more diverse electorate with huge vote counts coming in from the state’s urban metros.

A lot of this is going to be about attention and headlines and winning hearts and minds and news cycles, but at the core there’s a serious policy issue, and Dems are giving it the level of commitment they believe it deserves. I hope that’s one of the messages that gets through to lower-information voters.

‘We are in a state of crisis’ Texas Black faith leaders speak against voter suppression legislation.

In a press conference on Tuesday highlighting Texas Republicans latest push on voter suppression bills, Black faith leaders from across the state asked Gov. Greg Abbott for a meeting to discuss voting legislation.

In addition to the meeting, leaders also asked constituents to participate in the Push Democracy Forward and the Austin Justice Coalition Prayer and Justice March on Voter Suppression at the steps of the Austin Capitol on July 15.

According to Dixon, buses will be provided in cities across the state for constituents who want to participate in the march.

“Texas is headed toward a dangerous tipping point,” Bishop James Dixon, President of the Houston chapter of the NAACP said. “We are indeed a state and a nation in crisis.”

The Black clergy said they are hoping to provide spiritual and moral leadership in the community regarding voting rights.

“We intend to make it clear that this issue is more than political,” Dixon said. “People are being misunderstood and the truth is being misrepresented.”

Dixon also said the Black clergy will be sending an open letter to non-Black clergy colleagues to meet and stand in solidarity.

“We all read from the same Bible thus we should be able to stand together for justice,” Dixon said.

Furthermore, Rev. Frederick D. Haynes III said Austin is the new Selma.

“We’re coming to Austin to say Texas, America, you must be born again,” Haynes said. “Voter suppression and democratic subversion taking place in Texas is a result of an addiction to the big lie and it’s connectected to the terrorist sedition of Jan. 6.”

Not much you can say to that except “Amen”.

Scenarios: Where Texas Dems go from here.

Texas Democrats made national news this week when they once again denied a quorum in the state legislature, preventing the Texas House from conducting business and thus preventing the passage of an egregious voter suppression bill.

So what happens next? Democrats have some options here.

1. LOBBYING TO PASS FEDERAL VOTING RIGHTS LEGISLATION
In flying to D.C. to break quorum, Democrats are continuing their work in a different forum. Their presence expresses urgency to President Biden, Senator Schumer, and Speaker Pelosi to use their majorities to pass federal voting rights legislation.

This is bigger than just Texas, because what we’re seeing in the Lone Star State is what we also saw in state legislative chambers around the country – Donald Trump’s claim that he lost the election due to unsubstantiated voter fraud, also known as “The Big Lie,” has become the basis for voter suppression laws around the country.

Things like limiting the number of polling places in cities but not in rural areas, limiting access to vote by mail, limiting voting hours, criminalizing clerical errors on voter registration cards, allowing judges to overturn elections simply based on claims and not evidence, and empowering partisan poll watchers to interfere with balloting are some of the more egregious efforts in these bills.

Democrats must use their national leverage to protect our free and fair elections, and neither Donald Trump nor state legislatures should be allowed to stifle those elections.

Door #2 is “Keep delaying the special session”, perhaps until the Supreme Court settles the legislative funding veto; Door #3 is “Republicans can negotiate”; and Door #4 is “Democrats return, nothing changes”. We don’t want to open Door #4.

That’s all for today. Tune in tomorrow when I may do another one of these.

Day 2 quorum busting omnibus post

Gonna round up a few stories here. Don’t know how often I’ll be this energetic, or how often there will be this many stories that I see that are worth commenting on, but it is Day Two. We’re just getting started, and there’s lots of people still paying attention.

The cops are almost certainly not coming for the wayward Dems. I mean, come on.

A showdown in the Texas House was locked into place Tuesday after the chamber voted overwhelmingly to send law enforcement after Democrats who left the state a day earlier in protest of a GOP priority elections legislation.

More than 50 House Democrats left Monday for Washington, D.C., to deny the chamber a quorum — the minimum number of lawmakers needed to conduct business — as it takes up voting restrictions and other Republican priorities in a special session.

That agenda, set by Gov. Greg Abbott, includes House Bill 3 and Senate Bill 1, the election legislation at hand that would make a number of changes to Texas’ voting system, such as banning drive-thru and 24 hour voting options and further restricting the state’s voting-by-mail rules. Over the weekend, both House and Senate committees advanced the election bills.

The impact of the House move is unclear since Texas law enforcement lacks jurisdiction in the nation’s capital.

Meeting shortly after 10 a.m., the House quickly established that it lacked the two-thirds quorum required to do business, with only 80 of 150 members participating in a test vote.

Then Rep. Will Metcalf, R-Conroe, chair of the House Administration Committee, moved to issue what is known as a “call of the House” to try to regain quorum. That motion passed 76-4. Metcalf offered another motion, asking that “the sergeant at arms, or officers appointed by him, send for all absentees … under warrant of arrest if necessary.” That motion also passed 76-4.

Metcalf’s motions were opposed by four Democrats who were present on the House floor Tuesday morning: Reps. Ryan Guillen of Rio Grande City, Tracy King of Batesville, Eddie Morales Jr. of Eagle Pass and John Turner of Dallas.

Axios noted Greg Abbott on Fox News shaking his fist and threatening arrest as well. It’s noise – remember, a big part of this is about the PR for both sides – and in all honesty, it’s what I’d do in the Republicans’ position. Let’s just say I will be extremely surprised if anyone is met at the airport by police on the way back.

If 58 Dems went to DC, then there were nine who did not. We know four of them, at least, and they make sense – Guillen and Morales represent districts carried by Trump in 2020, King’s district trended redder in both 2016 and 2020, and Turner is not running for re-election. I’ll be interested to see who the others are. Everyone will have their reasons for their choices, and bear in mind that family responsibilities may well be among those reasons.

The Chron adds a few tidbits.

Rep. Morgan Meyer, R-Dallas, asked [Speaker Dade] Phelan on the floor Tuesday whether Democrats could be removed from committee chair positions for breaking quorum. The speaker said they could not.

Morales, whose gargantuan district spans an area from Eagle Pass nearly to El Paso, said he chose to stay in Texas because he believes it was what his constituents, who tend lean more conservative even among Democrats, wanted from him.

“I felt, and I think what my constituents expected, was for me to be in the Capitol, to make sure that I’m fighting for their rights, and that I fight in opposition to this voter suppression,” he said. “Everyone can fight and they can fight differently. My way of fighting is being here because that’s what my constituents expect.”

Morales said it is clear Democrats would be “steamrolled” when the Republican majority did not give them 24 hours after a House committee hearing this weekend to offer amendments based on the testimony they heard.

“It was just fanfare. They had no intention of actually working and actually coming to play and actually making those modifications necessary to the bill,” he said. “ That is why Democratic leadership decided to take the actions that they did.”

Morales said he expects that Phelan will allow members who ask permission to be excused to leave the chamber on an individual basis. He’ll need to do so to be at work at his day job as a city attorney on Tuesday night.

The process of asking for permission to leave the chamber will likely be repeated every day.

Troopers will now go to the missing members’ homes in their districts and in Austin, and places of work and family and friends’ houses, Morales said.

The Texas Senate, meanwhile, had a quorum of 22 members and was expected to debate its version of the voting bill later Tuesday.

The home visits were a part of the 2003 walkouts as well. You never know, someone might try to sneak home for some reason.

The bit about the Senate having a quorum feels a little surprising even though it obviously isn’t. I don’t know how much incentive Senate Dems have to do anything other than screw around and try to make trouble as they can. As for the likely death of other bills, well, that was priced into the decision to break quorum.

Bills to restrict pretrial release from jail, ban critical race theory in schools and prohibit transgender public school students from competing on teams that correspond with their gender identity were up in the air after dozens of Democratic lawmakers chartered flights to Washington, D.C. But their departure also left in jeopardy more widely-supported measures, like giving more money to retired teachers and restoring vetoed funding for more than 2,100 legislative employees who could potentially go without paychecks starting in September.

[…]

Beside bills on voting and bail, other Republican priorities that are now in danger during Abbott’s 30-day session include efforts to stop social media companies from blocking users for their viewpoints, limiting pill-induced abortions and adding money for policing efforts at the Texas-Mexico border. But the governor also tagged lawmakers to tackle less partisan issues — like adding funds for foster care, property-tax relief and retired teachers. On Monday, he slammed Democrats for leaving those on the table.

One piece of legislation would provide what is known as a “13th check” to retired teachers across Texas. The bills would direct the Teacher Retirement System of Texas to distribute a one-time supplemental payment of up to $2,400 by January of next year.

Committees in the House and Senate unanimously advanced the legislation Friday in some of the earliest committee votes of the special session.

Tim Lee, executive director of the Texas Retired Teachers Association, said its members “desperately need help,” especially after the economic stresses caused by the coronavirus pandemic.

“I think there are mixed feelings,” Lee said of the potential demise of the 13th check proposal due to Democrats leaving the state. “I think that educators care about voting rights, educators care about the truth, they care about working together and compromising and listening — so that’s what they hope both sides of this policy spectrum will ultimately yield, that people will work together.”

As far as legislative employees — who earn a median salary of $52,000 per year — some staffers and a legal representative said there may be other ways to pay the employees of elected officials and those who help all lawmakers write bill drafts and provide cost estimates for legislation.

Lawmakers could potentially roll over money from the current fiscal year, if they have any, to pay their staffers. Or the Texas Supreme Court may rule in favor of the employees and House Democrats in a lawsuit arguing Abbott’s veto was a gubernatorial overreach. And Abbott has used his emergency power to move money around before, as he did by directing the transfer of $250 million from Texas prisons to a border wall down payment.

For Odus Evbagharu, chief of staff to state Rep. Jon Rosenthal, D-Houston, the onus to restore his and his colleagues’ wages is on Abbott.

“I don’t believe it’s on the House Democratic Caucus to answer for that. I think that’s going to be an answer that Governor Abbott’s gonna have to answer himself,” Evbagharu said. “My best guess is you hope he doesn’t further punish staff for decisions that lawmakers are making.”

Most of these bills are garbage, and their death (however fleeting) is a bonus as far as Dems are concerned. The legislative funding issue is entirely on Abbott for his temper-tantrum veto, and I hadn’t even thought about him using emergency powers to override himself. That’s if the Supreme Court doesn’t settle this, AS THEY SHOULD. The extra paycheck for teachers is a genuine shame, but it could be handled in any subsequent special session.

Again I want to emphasize, Greg Abbott has the primary responsibility here. He pushed these divisive, red meat issues, he called the special session to try again on the ones that failed, and he broke all precedent by vetoing the legislative funding. This is his mess.

One thing, though, seems clear: this comes at a very bad time for Governor Greg Abbott, who was already having a pretty bad week. Abbott is facing, so far, three challengers to his right in the Republican primary for governor. The charge from his Republican opponents is that he’s feckless and weak. The quorum break, which is designed to deny passage of one of his priority pieces of legislation, fits neatly into a narrative that he is getting outfoxed by an ostensibly powerless Democratic opposition. That the narrative is largely untrue—Democrats certainly believe they got the shaft this session—doesn’t matter much.

If the crisis resolves by offering concessions to the exiled Democrats, or otherwise weakening the bill, Abbott will catch hell. The best case for him is to “break” the Democrats and win the fight, but taking a hard line could also prolong the crisis. At first, messaging from his camp was uncharacteristically soft, perhaps because it’s not clear what he could say. In a statement Monday, Abbott said Democratic absences were standing in the way of “property tax relief” and other issues, a sign that the governor’s office was uncomfortable centering the election bill that’s the problem here. On Tuesday, he started talking tough, threatening them with arrest and “cabining” in the Capitol if they return to Texas, but both those threats reflect his underlying powerlessness. The main talking point so far, at least on social media, is that the Democrats brought beer with them.

[…]

Abbott’s predicament is one he seems uniquely unfit to solve. Unlike his predecessor, Rick Perry, he has never had much in the way of personal relationships with lawmakers. He has no credibility with Democrats to coax them back. But even Republican legislators don’t trust him very much. Abbott did not help the situation with his decision after Democrats walked out on the last day of the regular session to veto funding for the Legislature in retribution. He is holding Republican staffers and state employees hostage in order to coerce Democrats back to the chamber. That may make Abbott look “tough,” but hurting your allies to spite your enemies isn’t sensible politics.

The one thing Abbott does have going for him here is that the Dems will eventually come back, one way or another, and he will always have to call at least one more special session to deal with redistricting. He could just decide to wait and let the Dems figure out what they’re doing and mostly ignore them until they return. I don’t think he’ll do that, but he does do best when he mostly stays out of sight.

Whatever Abbott does or doesn’t do, things are happening in the Senate.

As Democrats fled the state to avoid voting on a GOP priority elections bill that would restrict voting rights in the state, the Texas Senate approved the bill Tuesday with a party-line vote of 18-4.

[…]

[Bill author Sen. Bryan] Hughes amended the bill to drop requirements for curbside voting that troubled advocates for people with disabilities. The original version of the bill required any person other than the voter using curbside voting to leave the car while the voter was casting their ballot.

Hughes removed that provision to “avoid confusion and not create hardship for anyone with a disability.”

Another amendment by Sen. Angela Paxton, R-McKinney, was intended to bring the bill into compliance with federal laws on voter assistance. It removed provisions from the bill that required people assisting voters to specify under oath how they were providing assistance to a voter and that they were doing so because the voter had a disability.

Sen. Brian Birdwell, R-Granbury, also amended the bill to allow for tents to be used as temporary polling places if a regular polling place sustained physical damage that rendered it unusable. The permission would only grant the temporary permission for one election and would have to be approved by a county commissioners court.

Another amendment by Sen. Paul Bettencourt, R-Houston, required poll watchers to be provided training manuals to educate them about their duties.

Note that eight Senate Democrats are also in DC, with a ninth on the way. That’s not enough to break quorum in the Senate, so on they go with that wretched business.

Meanwhile, what are the Dems trying to accomplish? I’ll give you a hint, it has to do with that other Senate.

At a press conference Tuesday in Washington, DC, the group of Democrats specifically called on Biden and Congress to demonstrate “the same courage” they had shown by traveling to the nation’s capital during a special legislative session that had been called by Texas Gov. Greg Abbott, who has since threatened to arrest the more than 50 Democrats who fled. As they did in a statement confirming their plans to boycott the session before hopping aboard two private planes on Monday, the group once again hailed both the John Lewis Voting Rights Act and the For the People Act as examples of model legislation for protecting voting rights at the federal level and implored Congress to pass them.

“We were quite literally forced to move and leave the state of Texas,” Texas Rep. Rhetta Bowers said in a press conference flanked by some of her fellow state Democrats. “We also know that we are living right now on borrowed time in Texas. And we can’t stay here indefinitely, to run out the clock, to stop Republican anti-voter bills.” Bowers said that although Texas Democrats would use “everything in our power to fight back,” they ultimately needed Congress to act with the same urgency.

“We are not going to buckle to the ‘big lie’ in the state of Texas—the ‘big lie’ that has resulted in anti-democratic legislation throughout the United States,” Rep. Rafael Anchia added.

[…]

Tuesday’s press conference came hours ahead of President Biden’s much-anticipated speech on voting rights in Philadelphia, where he’ll make a forceful condemnation of Republican efforts to enact voter suppression laws. His message, however, is not expected to include support for ending the Senate’s filibuster rules, which advocates say stand in the way of passing meaningful protections for voting rights.

They did get to meet with numerous key Senators, though not yet the two that hold this legislation in their hands. As Slate’s Christina Cauterucci puts it for when and if they do, what the Dems have is an emotional appeal.

The emotional appeal may be the only route left for [Rep. Senfronia] Thompson, her colleagues, and other Democrats who see this moment as a turning point for U.S. democracy. Manchin and Sinema already have all the facts. They’ve shown no willingness to budge. Now, they’ll have to tell a crowd of fugitive Texan legislators singing a civil-rights protest song that their extreme measures to protect the franchise will be for naught.

Like I said yesterday, that is the ultimate grand prize. I hope it has better odds than a Powerball ticket.

Finally, Houston Matters spoke to State Reps. Penny Morales Shaw, who is in DC, and Garnet Coleman, who is not because of health issues, though he is not in Austin. They also spoke to US Rep. Lizzie Fletcher about the subject, for which a YouTube clip is here. And here is the note I think we can all agree it would be best to end on:

Couldn’t have said it better myself.

Quorum broken again

And they’re off.

Democrats in the Texas House of Representatives left the state Monday afternoon en route to Washington, D.C., in a bid to again deny Republicans the quorum needed to pass new voting restrictions with 26 days left in a special legislative session called largely for that purpose.

Upping the ante in both the legislative fight at home and the national debate over voting rights, most House Democrats boarded two planes out of Austin headed for the U.S. capital without a set return date. At least 51 of the 67 Democratic representatives — the number needed to break quorum — were in the process of leaving Monday afternoon, most arriving at Austin-Bergstrom International Airport Monday to board chartered flights that departed around 3:10 p.m.

The House is set to reconvene Tuesday morning, but the absent Democrats would mean there will not be enough members present to conduct business under House rules.

“Today, Texas House Democrats stand united in our decision to break quorum and refuse to let the Republican-led legislature force through dangerous legislation that would trample on Texans’ freedom to vote,” Democratic leaders said in a joint statement released Monday.

With the national political spotlight on Texas’ efforts to further restrict voting, the Democratic exodus offers them a platform to continue pleading with Congress to act on restoring federal protections for voters of color. In Texas, the decamping will mark a more aggressive stance by Democrats to block Republican legislation further tightening the state’s voting rules as the GOP works against thinning statewide margins of victory.

Ultimately, Democrats lack the votes to keep the Republican-controlled Legislature from passing new voting restrictions, along with the other conservative priorities on Gov. Greg Abbott’s 11-item agenda for the special session.

Some Democrats hope their absence will give them leverage to force good-faith negotiations with Republicans, who they say have largely shut them out of negotiations over the voting bill. Both chambers advanced their legislation out of committees on party-line votes after overnight hearings, passing out the bills early Sunday morning after hearing hours of testimony mostly against the proposals and just a few days after making their revived proposals public. The bills were expected to hit the House and Senate floors for votes this week.

[…]

Even if Democratic lawmakers stay out of state for the next few weeks, the governor could continue to call 30-day sessions or add voting restrictions to the agenda when the Legislature takes on the redrawing of the state’s political maps later this summer.

Monday’s mass departure follows a Democratic walkout in May that kept Republicans from passing their priority voting bill at the end of the regular legislative session. For weeks, Democrats had indicated that skipping town during the special session remained an option as Republicans prepared for a second attempt at tightening the state’s voting laws.

House Speaker Dade Phelan, R-Beaumont, said in a statement later Monday that the chamber “will use every available resource under the Texas Constitution and the unanimously-passed House rules to secure a quorum…”

[…]

If a quorum is not present when the House convenes Tuesday, any House member can move to make what’s known as a call of the House to “to secure and maintain a quorum” to consider a certain piece of legislation, resolution or motion, under chamber rules. That motion must be seconded by 15 members and ordered by a majority vote. If that happens, the missing Democrats will become legislative fugitives.

“All absentees for whom no sufficient excuse is made may, by order of a majority of those present, be sent for and arrested, wherever they may be found, by the sergeant-at-arms or an officer appointed by the sergeant-at-arms for that purpose, and their attendance shall be secured and retained,” the House rules state. “The house shall determine on what conditions they shall be discharged.”

It’s unclear, though, what options Phelan may have to compel Democrats to return to the Legislature if they’re out of state.

Past experience would suggest that his options are basically nil. The DC police and the FBI are not going to be rounding them up and putting them on planes.

This is both a fast-moving story, and one that will play out over who knows how long. I’m probably not going to be able to keep up with every story and hot take out there, so feel free to browse the Internet or just scroll through Twitter – if you’re anything like me, you’ll have all the content you can consume and then some. I’m going to highlight what I think are the main salient points:

– What is the exit strategy here? That has always been my question. It was clear that the 2003 Senate Dems didn’t really have one, though one could argue that if they had held out a little longer they might have been able to scuttle the 2003 re-redistricting for the 2004 cycle. Maybe they can negotiate some concessions from Speaker Phelan in return for a promise that they’ll stay put for this session and the next one on redistricting. Maybe that’s a pipe dream. I have no idea. I hope they do.

– This is all about PR at this point. The main thing the Dems have going for them is that their action is extremely popular with their base – if this doesn’t help them with fundraising, nothing will – and there’s nothing on the special session agenda that has appeal to anyone who isn’t a Republican primary voter. (With one exception, which I’ll get to later.) The bottom line here is that they will portray themselves as fighting for a principle, while Republicans will claim they are cowardly running away. There’s no real question about how each side will perceive things, but there is room to affect the lower-information voters. If Dems can look good to them, they will have achieved a key objective.

– Does this help move Joe Manchin or Kyrsten Sinema on national voting rights legislation? I have no idea. It can’t hurt, I suppose. For sure, if an end result is the passage of a voting rights bill, which would necessitate some alteration to the filibuster, that would be a huge, titanic, earth-shaking victory for the Dems, no matter what else happens in Austin. I would not hold my breath, but the Dems are clearly shooting the moon. You can’t say they’re not giving it their all.

– How long can they hold out? Remember, being in Washington DC means not being home, not being with family, not having a whole lot of control over one’s daily routine. Once the adrenaline wears off, and the reality of having to hold out until at least August 6 kicks in, this can very easily become a slog, and just keeping morale up, while also trying to win that PR battle, will be a chore. It’s also got to be expensive – there are no accommodations in DC that will rival the Ardmore Holiday Inn, I suspect. Part of that exit strategy I mentioned above is making sure the inevitable return at least looks like it’s on their terms, and not because they had run out of options or money or resolve, or because they were losing the PR battle. That’s the other end of the spectrum from the “getting a federal voting rights bill passed” side.

– The issue of restoring funds for the legislative branch will remain unresolved while the Dems are away. Maybe the Supreme Court will feel compelled to address the matter, or maybe they will be like “hey, y’all could totally solve this without us, we’re gonna keep out of it”. I hope someone is communicating with the employees who are still out in the cold right now.

– Like I said, none of the rest of the agenda, including items that Abbott may be planning to add, are anything that the average voter cares about. It’s all terrible from the Dems’ perspective, and the fact that things like the anti-trans sports bill is also hung up is a bonus. That’s the one item that has polled reasonably well, however, and it would not surprise me to see the Republicans make some noise about it. I feel confident saying that’s a long-term loser for them, but all we care about right now is the next 30 days, and the next 15 or so months after that.

For now, Dems are riding high, and they will get a lot of positive attention as well as the usual hate. How long that lasts, we’ll see. Even by this time next week, they may be struggling to get news coverage. It’s going to be a hell of a month. The Chron, the Signal, and pretty much every other news outlet (for now) has more.

State House takes a step toward reinstating legislative funding

Good, but it’s just a first step.

Texas lawmakers are moving swiftly to reinstate funding for the Texas Legislature, vetoed last month by Gov. Greg Abbott, that affects the salaries of more than 2,100 employees across several state agencies

The House Appropriations Committee voted on Friday 21-0 to move forward a bill that would reinstate the funding after Abbott vetoed it to punish House Democrats who broke quorum in the final days of the session to kill two of his priority bills. The Senate Finance Committee heard testimony on a similar bill around the same time Friday afternoon, but did not take a vote.

House Appropriations chairman Greg Bonnen, R-Friendswood, who authored the bill, said the funding in it is identical to what the House and Senate had worked out in legislative funding during the regular session.

The bills hit close to home for lawmakers as funding for their staff hangs in the balance. Abbott’s veto of Article X of the state budget wiped out funding for the legislative branch. He said lawmakers who “walk off the job” should not receive compensation, but his action does not affect lawmakers, whose pay is constitutionally guaranteed.

The veto applies to the thousands of staffers who work directly for lawmakers and several state agencies. Those agencies include the Legislative Reference Library, which conducts research for the Legislature; the Legislative Budget Board, which develops policy and budget recommendations and provides fiscal analyses for legislation; the Legislative Council, which helps draft and analyze potential legislation; the State Auditor’s Office, which reviews the state’s finances; and the Sunset Advisory Commission, which reviews the efficiency of state agencies.

If funding for the legislative branch is not restored by September, when the new fiscal year starts, those employees would lose their jobs and benefits, like health care.

I have seen it suggested elsewhere that the Lege should not take any other action until this is signed by Abbott. I don’t expect that to happen, but it would be one way for the Legislative branch to assert its independence. As for the Supreme Court, I’m pretty sure if you listened closely, you could hear their thumbs twiddling. You’re on your own here, y’all.

Here’s your special session agenda

They call this “red meat”, but it’s really just bullshit.

Gov. Greg Abbott has announced the agenda for the special legislative session that begins Thursday, asking lawmakers to prioritize 11 issues that largely appeal to conservatives who wanted more out of the regular session.

The announcement of the agenda came just over 24 hours before lawmakers are set to reconvene in Austin.

The agenda includes Abbott’s priority bills related to overhauling Texas elections and the bail system, as well as pushing back against social media “censorship” of Texans and the teaching of critical race theory in schools. Those issues were anticipated after they did not pass during the regular session and Abbott faced pressure to revive them or had already committed to bringing them back.

[…]

The special session agenda also includes funding for the legislative branch, which Abbott vetoed last month. He did so after House Democrats staged a walkout in the final hours of the regular session that killed the priority elections bill. The inclusion of the legislative funding raises the possibility that lawmakers could restore paychecks for their staff — and other staff at the Capitol — before the next fiscal year begins on Sept. 1. More than 2,000 staffers are affected by the veto of the Legislative funding, which Democrats have called an executive overreach of power.

Late last month, House Democrats and legislative staffers asked the state Supreme Court to override it. The court had not ruled in the case yet.

The Democrats’ walkout prompted a flood of national attention, and now the minority members must decide how to try to derail it in the special session with their staff pay on the line. Republicans also have their work cut out for them in the special session, faced with preventing another embarrassing defeat of the elections bill and remedying two provisions they claimed after the regular session were mistakes.

The special session is set to start at 10 a.m. Thursday and could last up to 30 days, with the potential for Abbott to add more items as it proceeds. It is one of at least two special sessions expected this year, with a fall special session coming to address redistricting and the spending of billions of dollars of federal COVID-19 relief funds.

Abbott’s agenda for the first special session notably does not include anything about the state’s electric grid, which was exposed as deeply vulnerable during a deadly winter weather storm in February that left millions of Texans without power. Lawmakers made some progress in preventing another disaster during the regular session, but experts — as well as Patrick — have said there is more to do. Last month, calls for the Legislature to take further action to fix the power grid were renewed when grid officials asked Texans to conserve energy.

Despite Abbott’s recent claim that grid is better than ever, he sent a letter Tuesday to the state’s electricity regulators outlining a number of steps he would like them to take to “improve electric reliability.” But it appears Abbott does not want to reopen legislative debate on the issue for now.

Just to recap, I continue to expect the Supreme Court to delay and hope the legislative budget veto issue becomes moot. I don’t think there’s much if anything that Democratic legislators can do to stop any of these bills if Republicans are determined to pass them – it’s not out of the question that on some of them the Republicans are not sufficiently unified – so the best thing to do is to try to at least make sure everything has a real committee hearing first. Finally, I’m not surprised that Abbott has no interest in revisiting the power grid, not when he’s already staked his claim on everything being just fine now. The other piece of business for the Dems is to hammer this point over and over again, until it seeps into the public consciousness. Good luck, y’all. This is going to suck. The Chron has more.

The response to the lawsuit over the line item veto

I know, scintillating headline, but there’s plenty of action here.

The state is defending Gov. Greg Abbott’s recent veto of legislative funding as a bipartisan group of former state leaders — as well as more Democrats — weigh in against the governor.

The state faced a Monday deadline to respond to a Democratic lawsuit asking the state Supreme Court to overturn Abbott’s veto, which he issued after House Democrats staged a walkout that killed Republicans’ priority elections bill at the end of the regular session in May. Abbott has promised to bring back the bill in a special session and scheduled one to begin Thursday; he has not announced the agenda yet.

“The Governor properly exercised the veto power bestowed upon him by the Texas Constitution and acted consistently with this Court’s precedent,” the state said in its response. “Under the Texas Constitution, the Governor has the exclusive power to disapprove any bill.”

At the same time, three former state leaders filed an amicus brief arguing Abbott’s veto is “an attempt to intimidate members of the Legislature and circumvent democracy.” The brief was filed by former House Speaker Joe Straus, a Republican; former House Speaker Pete Laney, a Democrat; and former Lt. Gov. Bill Ratliff, a Republican.

The brief says Abbott’s move “should rebuked by people of all political persuasions.”

[…]

Another amicus brief surfaced Monday that argued against Abbott’s veto and was signed by all 13 Democrats in the Texas Senate, as well as a group of law professors and a few current and former Republican elected officials. The GOP signees included state Rep. Lyle Larson of San Antonio, as well as former state Reps. Jimmie Don Aycock of Killeen and Sarah Davis of West University Place.

See here for the background. All of the case information is here, with the response by the AG on behalf of Abbott’s executive clerk here. The first two amicus briefs, by Straus, Laney, and Ratliff and by various legislators and law professors, explicitly cite the constitution and the separation of powers doctrine, while the one by the League of Women Voters raises the issue of redistricting work not being done by legislative staffers.

The state’s defense essentially amounts to 1) It is too constitutional, 2) The Court lacks jurisdiction for boring technical reasons (specifically, the Governor’s clerk is not an executive officer of state government), and 3) The relators lack standing because the issue isn’t ripe yet, which is a fancy legal way of saying that since the legislative funding doesn’t run out until August 31 there’s no actual injury yet and thus no cause to sue. I Am Not A Lawyer and have no opinion on the first two items, but item 3 strikes me as technically correct but also beside the point. It should be possible to prevent an injury from occurring, not just waiting around for the disaster to happen and then trying to clean it up. The state’s argument is that because there’s already a special session on the docket, this can and should be fixed without the court getting involved. That may well be, and it would not surprise me at all if SCOTX were to sit on this for as long as possible, to give the legislative process a chance to patch this up without needing for them to issue a ruling. I think that would set a terrible precedent and would not address the “future Governor vetoes the funding for the Supreme Court in a fit of pique” scenario, but then no one ever claimed SCOTX was a profile in courage.

As far as the possibility of the Lege restoring funding before it runs out, there’s this:

If the Dems get what they asked for, that would undermine the case for their writ. It’s still what they have to do, and then hope that SCOTX sees the constitutional issue as more important than the practical one. We’ll see.

SCOTX and Facebook

Interesting.

The Texas Supreme Court will allow three human trafficking victims to move forward in litigation against Facebook that alleges the platform enabled their abusers to groom them into a life of prostitution.

In a 6-0 ruling, with two justices not participating, Justice Jimmy Blacklock rejected Facebook’s plea for mandamus relief, based on arguments that the federal Communications Decency Act said the social media giant couldn’t face liability for things that its users published or said on its platform.

“It was time for the court to adjust the way it looks at how the internet is regulated,” said plaintiffs attorney Annie McAdams, partner in Annie McAdams PC in Houston. “I think it will have a profound influence. This is the first major decision that puts a crack in absolute immunity for internet companies.”

A Facebook spokesman emailed a comment from the company that said it was reviewing the high court’s ruling.

“We’re reviewing the decision and considering potential next steps. Sex trafficking is abhorrent and not allowed on Facebook. We will continue our fight against the spread of this content and the predators who engage in it,” the statement said.

The ruling said the plaintiffs’ claims for statutory human trafficking can proceed, but the high court dismissed common-law claims for negligence, gross negligence, negligent undertaking and products liability.

Blacklock wrote in the ruling in In re Facebook that the Communications Decency Act doesn’t create a “lawless no-man’s land on the internet” that strikes a state’s power “to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking.”

Although the high court agreed that the federal statute wouldn’t enable the plaintiffs to hold Facebook accountable for its users’ comments, it decided this case poses a different situation.

“Holding internet platforms accountable for their own misdeeds is quite another thing,” said the opinion. “This is particularly the case for human trafficking.”

See here for the opinion, and here for all the filings related to the case. Note that the question here was whether or not the victims could sue Facebook, not whether they won their suit. At this point, everything goes back to the district court, where an actual trial can begin on the merits of the case. It will likely be some number of years before there is a final result.

I had not followed this case at all and wasn’t aware of it until I saw these stories. The Chron provides some background.

The lawsuits were brought by three Houston women recruited as teens through Facebook apps and trafficked as a result of those online connections. The young women said in court filings that the social media giant cloaked traffickers with credibility and provided “a point of first contact between sex traffickers and these children” and “an unrestricted platform to stalk, exploit, recruit, groom, and extort children into the sex trade.”

One young woman who sued was 15 when a friend of a mutual friend reached out to her on Facebook in 2012. The adult who began messaging her had images on his profile of “scantily-clad young women in sexual positions” with money stuffed in their mouths and “other deeply troubling content,” the justices wrote. She confided in him and he complimented her, offering her a modeling job. After they met in person, the trafficker posted photos of her in prostitution ads on Backpage, an online platform shuttered due to its promotion of human trafficking. The young woman said she was “raped, beaten, and forced into further sex trafficking.”

Another plaintiff was 14 in 2017 when a man contacted her on Instagram, another Facebook property. The pimp in this instance lured her with “false promises of love and a better future.” She said the easy access to her through social media made it possible for the man to traffic her, using Instagram to advertise her as a prostitute and set up “dates,” during which she was raped numerous times. After the teen was rescued from his operation, traffickers kept using her profile to lure in other minors, according to the ruling. In this case the family says the girl’s mother reported what had happened to Facebook and the company never responded.

The third girl who sued identified herself as being 14 on Instagram in 2016. A man of about 30 whom she didn’t know sent her a friend request on Instagram. They exchanged messages for two years in what plaintiffs said was a calculated effort to “groom” her and prepare her for sex-trafficking. In March 2018, the man asked the teen to leave home and meet him. He brought the girl to a motel, photographed her and posted images in Backpage ads, according to the opinion. The johns who responded to the post raped her.

Nasty stuff. This is a big ruling, but it is far from the end of the line, and there will be plenty of opportunity for Facebook to prevail in other ways as we proceed. The HuffPost has more.

Lawsuit filed over veto of legislative budget

Good. And necessary.

A group of Texas House Democrats and legislative staffers is asking the Texas Supreme Court to override Gov. Greg Abbott’s recent veto of a portion of the state budget that funds the Legislature, staffers there and legislative agencies.

More than 50 Democrats, a number of state employees and the Texas AFL-CIO have signed on to a petition for a writ of mandamus, which was filed Friday morning.

“The state is in a constitutional crisis at this moment,” said Chad Dunn, an attorney involved with the petition, during a briefing with reporters Thursday.

[…]

The petition argues that Abbott exceeded his executive authority and violated the state’s separation of powers doctrine. The parties involved with the petition are asking the all-Republican court to find Abbott’s veto unconstitutional, which would allow Article X of the state budget, the section at issue, to become law later this year.

State Rep. Chris Turner, a Grand Prairie Democrat who chairs his party’s caucus in the lower chamber, told reporters Thursday there are roughly 2,000 employees in the state’s legislative branch that would be affected by Abbott’s veto if it stands.

Lawmakers receive $600 a month in addition to a per diem of $221 every day the Legislature is in session for both regular and session sessions.

“This isn’t about [lawmakers’] paychecks,” Turner said during the briefing. “What he’s doing is hurting our staff and hurting our constituents.”

See here for the background, and here for a Twitter thread from Rep. James Talarico explaining the reasons behind the petition. Rep. Talarico notes that the effect of the veto “also includes nonpolitical staff like the custodians, cafeteria workers, landscapers, and parking attendants…[who] will also lose their pay and their health insurance on September 1”, which is the end of the fiscal year. The special session for July will almost certainly include action to restore this funding, but only if Abbott puts it on the agenda, which gives him quite a bit of leverage. Way too much, if you believe what the state constitution says.

The plaintiffs have asked the Supreme Court for a ruling before September 1. I have no idea what they will do, but consider this for a moment. Beto beats Abbott in November 2022. After taking office, he issues an executive order of some kind, maybe to kill the Abbott border wall. Doesn’t really matter, whatever it is he gets sued by Jared Woodfill, who gets a writ of mandamus from SCOTX blocking the order. And then, a few months later after the Lege passes its budget, Governor Beto uses his line item veto authority to defund the Supreme Court, which he says is payback for their dumb and disrespectful ruling against him.

You may say that’s ridiculous. I would agree, but the real question is what (other than a respect for norms and not being a petty tyrant like Greg Abbott) would stop Governor Beto if it came to that? If the Supreme Court says there are no limits on what a Governor can do to exert influence over another branch of government, then surely this too is fair game.

Those of you with memories that extend past last week may remember the precursor to all this, when Rick Perry threatened to veto funding for the Public Integrity Unit of the Travis County DA’s office if then-DA Rosemary Lehmberg didn’t resign following a drunk driving arrest. Lehmberg, whatever her faults, was an elected official who did not answer to the Governor, but Perry felt it was within his power to attempt to force her out and to use the threat of cutting off funding for a division of her office as the stick. Perry was subsequently indicted by a grand jury for an abuse of office charge, but the Court of Criminal Appeals came to his rescue and tossed the indictment, buying his argument that he was being arrested for exercising veto power. But it wasn’t that – indeed, he never did veto any PUI funding – it was the threat and the coercion. Abbott’s veto, done as retaliation against a legitimate legislative action that he just didn’t like, is the next step of this progression. It’s autocratic, it’s a huge abuse of power, it’s dangerous, and it must be stopped by the one branch of government that can stop it. If SCOTX doesn’t recognize the need to do this, they will have truly failed us all.

UPDATE: A statement from Abbott about the lawsuit can be found here.

City appeals firefighter collective bargaining case to Supreme Court

Here we go.

The city of Houston on Monday asked the Texas Supreme Court to weigh in on a recent appellate court ruling that rejected Mayor Sylvester Turner’s attempt to strike down a key provision of state law governing how firefighters negotiate their wages and benefits.

The case stems from a 2017 lawsuit filed by the Houston Professional Fire Fighters Association, which claims Turner’s administration did not negotiate in good faith during failed contract talks between the city and fire union that year.

As part of that lawsuit, the firefighters invoked a provision of state law that allows a state district judge to set their pay after Turner declined to enter contract arbitration. The city responded by arguing it was unconstitutional for judges to determine the pay of firefighters and police officers without firmer guidelines for doing so.

In an appeal filed Monday, attorneys representing the city asked Texas’ highest civil court to reverse a ruling last month by Texas’ 14th Court of Appeals, in which a panel of justices found the provision challenged by the city does not run afoul of the Texas Constitution’s separation of powers clause, which prohibits one branch of government — the judiciary, in this case — from exercising power that belongs to another branch.

Under state law, public employers must provide firefighters and police officers with “compensation and other conditions of employment” that are “substantially the same” as those of “comparable private sector employment.”

In the Supreme Court filing, the city contended that provision does not provide specific enough guidelines for courts to determine firefighter pay, an argument that was rejected by the appeals court in May. Still, city attorneys wrote in the latest filing that the law governing police and firefighter compensation has “existed under a legal cloud with respect to the unconstitutional delegation of legislative power accomplished by this judicial enforcement mechanism.”

See here and here for the background. This is too technical for me to have an opinion about the merits, but as I said before it would not have bothered me if the city had accepted the ruling and gone ahead with the judge setting the firefighters’ pay. I recognize that the downside risk of this for the city is getting a number they would not like, and if nothing else the appeal buys them some time. We’ll see how long it takes SCOTX to handle this.

One more thing:

Meanwhile, firefighters are collecting signatures for a charter amendment that would make it easier to bring contract talks with the city to binding arbitration. Union officials say they are aiming to place the measure on this year’s November ballot.

Insert your favorite GIF of someone shrugging their shoulders here.

Abbott follows through on veto of legislative funding

So here we go.

Gov. Greg Abbott followed through Friday on a threat to veto a section of the state budget that funds the Texas Legislature, its staffers and legislative agencies.

The governor’s move targeting lawmaker pay comes after House Democrats walked out in the final days of the regular legislative session, breaking quorum, to block passage of Senate Bill 7, Abbott’s priority elections bill that would have overhauled voting rights in the state. The move also killed bail legislation that Abbott had earmarked as a priority.

In a statement, Abbott said that “funding should not be provided for those who quit their job early, leaving their state with unfinished business and exposing taxpayers to higher costs for an additional legislative session.”

“I therefore object to and disapprove of these appropriations,” the governor said.

House Democratic Caucus Chair Chris Turner of Grand Prairie called the move by Abbott an “abuse of power” and said the caucus “is exploring every option, including immediate legal options, to fight back.”

“Texas has a governor, not a dictator,” Turner said in a statement. “The tyrannical veto of the legislative branch is the latest indication that [Abbott] is simply out of control.”

Since Abbott issued his threat earlier this month, other lawmakers and political leaders have raised concerns over how the move could impact staffers and legislative agencies that are funded by Article X, which is the section of the budget he vetoed, such as the Legislative Reference Library and the Legislative Budget Board.

“I’m just concerned how it impacts them because they weren’t the ones who decided that we were going to break quorum, it wasn’t their decision, right?,” said House Speaker Dade Phelan, R-Beaumont, in an interview earlier this month.

Questions have also been raised about the constitutionality of the move, which according to the Legislative Reference Library is unprecedented.

See here, here, and here for the background. I very much want to see a lawsuit filed to challenge this, because the constitutional questions this veto raises need to be answered. Someone might also point out that Abbott could veto funding for the courts under whatever pretext he wanted as well if this is kosher. Separation of powers has to mean something.

I’m going to turn the mike over to Scott Braddock for a minute:

Hard to know how people will react to something unprecedented like this, but it’s not a stretch to think there may be some anger at Abbott from people who had supported him in the past. How they express that, and whether it might extend beyond a primary are questions I can’t answer. More immediately, the impression I have gotten from reading the Twitter posts of more legislatively fluent people is that as long as there is a special session before the end of the fiscal year (I think that’s August 31 but could be wrong), then this funding can be restored before any staffer loses a paycheck. More likely than not that is what will happen regardless of any litigation. But as with the freeze and blackouts of February, this is for thousands of people another huge and unexpected disruption to their daily lives and the security and stability they thought they had. No matter what happens, that’s going to leave a mark. Texas Standard has more.

Supreme Court agrees that Texas Central is a railroad

Or at least, they declined the opportunity to say otherwise.

Texas Central Railroad, according to the Texas Supreme Court, is a railroad, ending a five-year legal battle over the controversial high-speed rail company’s right to use state eminent domain laws.

The ruling, unless a federal court intervenes or stops the company in another way, clears the path for backers of the Houston-to-Dallas bullet train to acquire land over the objections of landowners unwilling to sell.

The Supreme Court on Friday declined to review the Texas 13th Court of Appeals ruling last year that upheld Texas Central’s right to use state eminent domain laws.

“The court’s denial of review should put an end to over five years of contentious litigation and clear the path for Texas Central to bring the high-speed train to Texas,” Texas Central said in a statement.

[…]

At issue in the case, brought by Leon County landowners Jim and Barbara Miles, was whether Texas Central was classified as a railroad by state law. Despite claiming to be a railroad, Miles’ lawyers noted the company owns no trains, has no track and does not operate any service. Texas Central remains, after more than nine years, still in the planning stages, and continues to face stiff opposition from rural residents.

Being considered a railroad is important because only a railroad has a right to acquire property under eminent domain for a private purpose. Otherwise landowners simply could refuse to sell. Now, Texas Central must offer property owners fair market value, but can go to court to condemn land.

See here and here for the background. With the manufacturing contract, the final federal environmental approvals, surviving the legislative session, and now this, it’s been a few good months for Texas Central. Opponents still have some arrows in their quiver – they are challenging the environmental approvals, and it wouldn’t surprise me if Greg Abbott is asked to add consideration of eminent domain to a special session agenda – but the path forward is a lot clearer for them now than it was a year ago. Once they start actually laying track – and I know I’ve said this before, but it’s still true – they will be hard to stop.

Millard House officially approved as HISD Superintendent

Welcome aboard.

Millard House II will become Houston ISD’s new superintendent on July 1, following the district’s school board unanimously vote Monday to make his selection official.

The pro forma vote follows the naming of House as HISD’s lone superintendent finalist on May 21. Texas law mandates that school boards name a lone finalist, then wait at least 21 days before formally approving their selection.

Trustees approved a contract for House on Monday, but would not immediately release terms of the agreement. House’s predecessors, former superintendent Richard Carranza and current Interim Superintendent Grenita Lathan, both earned a base salary of $345,000.

[…]

House has made brief comments twice in the past several weeks about his selection as HISD superintendent, largely focusing on his commitment to working in collaboration with board members and the Houston community. He has not granted interview requests made by the Houston Chronicle.

See here and here for the background, and here for the HISD statement. He seems like a good hire, he seems to know what he’s getting into, and as yet there’s no direct threat to his term from the TEA, though that could change at any time with the Supreme Court. For now, I hope that he will schedule an interview with the Chronicle as soon as possible, so that we can all get a better picture of who our new Superintendent is and what he plans to do with the job. The Press has more.

Guzman to run for AG

Certainly makes that primary more interesting.

Eva Guzman

Eva Guzman, the former justice on the Texas Supreme Court, has filed paperwork to run for state attorney general.

On Friday, Guzman, a Republican, filed what is known as a campaign treasurer appointment form with the Texas Ethics Commission, saying she is seeking the office of attorney general, according to a copy of the form obtained by The Texas Tribune. Her treasurer is Orlando Salazar of Dallas, the vice chair of the Republican National Hispanic Assembly.

“Eva Guzman has served Texas for over 22 years honorably,” Guzman’s political consultant, Justin Dudley, said in a statement to the Tribune. “She looks forward to putting her experience and know-how to work in a new role. The campaign will have a formal announcement soon.”

[…]

A Guzman run would complicate the Republican primary already underway between incumbent Ken Paxton and Land Commissioner George P. Bush.

Bush announced his campaign for attorney general on June 2, sharply criticizing Paxton over his legal troubles. The attorney general has been fighting securities fraud charges for most of his time in office, and he more recently came under FBI investigation for claims he abused his office to help a wealthy donor. He has denied wrongdoing in both cases.

It remains to be seen if Guzman’s candidacy would change former President Donald Trump’s plans to get involved in the primary. Before Bush launched his challenge to Paxton, Trump issued a statement saying he likes “them both very much” and that he would make an endorsement “in the not-so-distant future.”

See here for the background. As you know, I doubt Guzman’s viability in a primary that features two prominent Trump humpers, but we’ll see if I’m right about that. Guzman does have the benefit of not being either a crook or a dilettante, and in a normal meritocratic world that would be a big asset. In a 2022 Republican primary in Texas, that remains to be seen.

For what it’s worth, of the three candidates Paxton has probably had the hardest primary race, when he first ran for AG in 2014 and faced Dan Branch and Barry Smitherman for the nomination, eventually beating Branch in a runoff. He was unopposed in the 2018 primary. Guzman easily dispatched Rose Vela in 2010, and had a closer race in 2016 against a Some Dude named Joe Pool, who had a previous Supreme Court primary challenge to incumbent Jeff Brown in 2014, and finished third in 2012 against John Devine and David Medina. I don’t get the sense that either of those races was particularly taxing, but they were both contested. Bush had a token opponent (I will give you one dollar right now if you can name this person without looking it up), and thus has had the easiest path. Don’t know if any of this previous experience matters – whatever else one may say, we’re in a different environment now – but there it is.

Supreme Court Justice Eva Guzman stepping down

Interesting.

Eva Guzman

Texas Supreme Court Justice Eva Guzman is resigning from her post effective Friday.

She informed Gov. Greg Abbott of the decision in a letter sent Monday. The news was first reported by the Houston Chronicle.

“With utmost gratitude for the opportunity and gift of public service, I write to inform you that I am resigning from my office,” Guzman wrote in her letter to Abbott, a copy of which was obtained by The Texas Tribune. “It has been the honor of a lifetime to answer this high calling.”

Guzman, a Republican, was appointed to the post in 2009 by then-Gov. Rick Perry as the first Hispanic female on the court. She ran for a full six-year term the next year before winning reelection in 2016. Her second term would have ended Dec. 31, 2022.

Before Perry appointed her to the high court, Guzman served on the 309th District Court in Harris County and the Houston-based Fourteenth Court of Appeals.

[…]

In her letter to Abbott, Guzman did not state a reason for her resignation, fueling speculation that she may have aspirations to run for another office during the 2022 election cycle.

Her resignation will create a vacancy on the state’s highest civil court, which Abbott will be able to fill with an appointment. The court is currently occupied by all Republicans.

I’ll get to the Chron story in a minute, but first two things to note. One is that Guzman was the high scorer in the 2016 election, winning 4,884,441 total votes. That’s over 75K more than the next highest candidate (Debra Lehrmann), and 200K more votes than Donald Trump. She was the strongest Republican in Latino districts, which is not a surprise. If she is running for something else, she will be harder to beat than most. Two, note that at every step of the way – district court, 14th Court of Appeals, Supreme Court – she was appointed first, and ran for a full term later. She’s far from unique in this, of course, I just noted it in this story. The ability to fill judicial vacancies is an underrated power of the Governor’s office. One does wonder what all the incumbent Republican judges and justices who are ready to step down and take a higher-paying job will do when the Democrats finally take that office.

And it usually is for a payday, if it’s not for retirement, when a judge or justice steps down like this. In this case, as that Chron story notes, the speculation is that she wants to run for something else.

One race that Guzman could be contemplating began heating up last week: the Republican primary for Texas Attorney General Ken Paxton’s seat. Land Commissioner George P. Bush — whose uncle, former Gov. George W. Bush, first appointed Guzman to the 309th District Court in Harris County in 1999 — opened up his campaign last week.

AG makes the most sense, at least in the abstract. I mean, she’s not going to run for Ag Commissioner. The question to me is, does she get into the “I Will Gladly Debase Myself For Donald Trump’s Endorsement” sweepstakes, or does she position herself as the non-Trump candidate, with actual accomplishments and conservative bona fides? This is where I admit I’m giving this speculation the side-eye. It’s hard to imagine, at this late date and with no record of sucking up to Trump in the past, that she could out-sycophant either Ken Paxton or George P. Bush. It’s also hard to imagine that there’s enough Republican primary voters who will prefer a non-Trump candidate in this – or almost any – race. I mean, you know who else didn’t do so well in that CD06 special election? Mike Wood, the anti-Trump Republican in that race, who got a whopping 3.2% of the vote. Eva Guzman would do better than that, but I see her as the odd person out in a three-or-more-way race. There’s no evidence that there’s a constituency for that kind of candidate, and as noted it’s awfully late for her to claim to be The One True Trump Candidate. Maybe I’m missing something – maybe she thinks the Lege will draw a Congressional district for her – but I don’t see how this makes sense. We’ll see if I’m right.

Supreme Court upholds Houston historic preservation ordinance

Blast from the past.

The Texas Supreme Court has upheld Houston’s ordinance regulating the preservation of historic districts, after residents argued it was an illegal zoning measure.

Two homeowners in the Heights challenged the law, arguing that it constituted zoning and therefore required a ballot measure approved by voters to take effect. Houston, the largest city in the country without zoning, requires voter approval to implement it.

Supreme Court justices declined on Friday to back that argument, though, affirming lower court rulings that the ordinance is not extensive enough to be considered a zoning regulation, and it does not regulate how people use properties.

“In sum, the Ordinance does not regulate the purposes for which land can be used, lacks geographic comprehensiveness, impacts each site differently in order to preserve and ensure the historic character of building exteriors, and does not adopt the enforcement and penalty provisions characteristic of a zoning ordinance,” Justice J. Brett Busby wrote in the opinion.

[…]

Houston adopted the ordinance in 1995, allowing the city to establish historic districts and requiring owners there to get approval to modify, redevelop or raze properties. If a city board declined a property owner’s application, though, the owner could wait 90 days and get a waiver to proceed with the desired changes, a gaping loophole that rendered the ordinance toothless.

The city revamped the ordinance in 2010 under then-Mayor Annise Parker, ending the waivers and making the regulations more enforceable. It allows only for modifications that are compatible with the area’s architecture, as defined by the Houston Archaeological and Historical Commission. Some backers of the ordinance since have argued the board does not uniformly apply its rules.

The lawsuit over this was filed in 2012. I confess, I had not given it a moment’s thought since then. For those of you who are interested in this sort of thing, now you know how it turned out.

HISD may have a reprieve

For one year, if this bill passes as is and if the Supreme Court doesn’t intervene.

The Texas House advanced a meaty education bill Tuesday that dramatically reduces the stakes of state standardized tests in 2021-22 and gives Houston ISD another year to raise scores at Wheatley High School before definitively triggering the district school board’s ouster.

House members backed SB 1365 by a voice vote after hammering out a compromise that earned the support of several top Texas education organizations. The proposed legislation, which passed the Senate in early May, still needs to pass a second vote in the House later this week.

The House version approved Tuesday differs significantly from the Senate version of the bill, making the legislation’s path to Gov. Greg Abbott’s desk unclear. The Senate version does not include an accountability reprieve for schools in 2021-22 and mandates the immediate replacement of HISD’s school board.

Under the House version, Texas public schools and districts would still be subject to state A-through-F accountability ratings in 2021-22, but the vast majority would not be penalized for poor performance. Schools and districts scoring A, B or C grades under the system would receive their scores, while those with D or F grades would be labeled “not rated.” Accountability ratings are largely based on state standardized test scores, as well as measures of seniors’ college and career readiness.

“Without the passage of Senate Bill 1365, schools will be expected to show two years of learning in nine months, during 2021-22, and will be penalized by the accountability system accordingly,” said state Rep. Dan Huberty, R-Kingwood.

However, districts still will face severe state sanctions, including the replacement of their school board or the closure of campuses, if any of their campuses have scored five “improvement required” or F grades since 2014 and fail to earn an A, B or C rating in 2021-22.

[…]

In essence, HISD and its new superintendent, who is expected to finalize a contract and begin work in the district next year, would have one year to turn the tide at Wheatley and notch a C-or-better grade under the House version.

The campus appeared on an upward trajectory before the coronavirus pandemic caused the suspension of accountability ratings in 2020 and 2021, but students likely will need intensive support in the upcoming school year after missing valuable in-person class time over the past 14 months.

Here’s SB1365. In its original form, it was identical to HB3270, the Harold Dutton bill that was intended to fix the law that the courts have said the TEA did not follow correctly in ruling to halt the takeover. The bill now goes to a conference committee, which could strip out the provision that gives HISD a one year reprieve, but we’ll see.

Regardless, the TEA is still pursuing its litigation against HISD, and the Supreme Court could still intervene. I think it may be more likely that they would choose to sit it out if the Huberty version of SB1365 passes, since in a year’s time either Wheatley has made the grade and HISD can continue on as is, or it hasn’t and HISD has no grounds to stop a takeover. Why stick your nose in when the calendar will resolve this for you? That’s just a guess, and I could easily be wrong. Or maybe SB1365 doesn’t pass in this form. HISD is in slightly better shape today than it was on Monday, but it ain’t over yet.

HISD names its Superintendent

Welcome to Houston, Millard House II. I hope the state lets you stay.

Houston ISD trustees unanimously voted Friday to name Millard House II as their lone superintendent finalist, tapping the leader of Tennessee’s Clarksville-Montgomery County School System to guide the district past a tumultuous period of instability.

House will arrive in Houston after spending four years as superintendent of Clarksville-Montgomery, a public school district home to about 37,000 students near the Tennessee-Kentucky border. House previously worked as chief operating officer of Charlotte-Mecklenburg Schools in North Carolina, deputy superintendent of Tulsa Public Schools in Oklahoma and as a school leadership consultant.

With the board’s nine members standing behind him at district headquarters, House announced his arrival Friday afternoon by focusing on his ability to lead, innovate and unite. He acknowledged the looming threat of state intervention in HISD, which could cut his tenure short, but said he remains focused on the opportunities for growth in the district.

“There are great people here in HISD,” House said. “I think we have the tools in our toolbelt to move beyond some of the drama, the issues that have plagued the school system. We’re really looking forward to building the capacity, building the united front.”

See here for the background, and here for the email sent by the Board to parents. HISD is a much bigger district than what House has worked with before, but that’s true of almost anywhere else. He seems to have good experience, and I appreciate the fact that he’s willing to come here despite the risk of the state booting him out in the near future. As far as that goes, we’ll have to see what the Supreme Court does, and whether the Lege will pass that Dutton bill. However long your stay in Houston is, Superintendent House, I wish you the best of luck.

Zombie same sex employee lawsuit denied again

Shuffling along like the undead flesh eater that it is.

A Texas appellate court struck a challenge Thursday to Houston’s policy giving same-sex spouses of city employees the same benefits as different-sex spouses, saying that the city was immune from the case and that three major U.S. Supreme Courtrulings barred the claims.

A split Fourteenth Court of Appeals panel affirmed a state trial court’s February 2019 ruling against Jack Pidgeon and Larry Hicks, who challenged the benefits policy in an October 2014 suit.

“Because appellants’ attempt to prevent the city from offering employment benefits to married same-sex couples on the same terms and conditions as married different-sex couples cannot be reconciled with the requirements of the U.S. Constitution, we reject it,” Justice Margaret Poissant said in an opinion for the panel.

Mayor Sylvester Turner is not liable for the plaintiffs’ ultra vires claim, a claim used to target government officials for acting beyond their authority, because the 2013 directive issued by his predecessor was discretionary, the panel found.

The plaintiffs had even conceded that point when they argued the mayor and other officials spurned state marriage law “because it conflicts with their personal beliefs of what the U.S. Constitution or federal law requires,” the panel noted.

Further, Houston didn’t waive the immunity it typically has in ultra vires claims, according to the opinion. For a city to be a party to such a suit, the case must challenge a statute or ordinance, but the plaintiffs instead alleged violations of state law.

The plaintiffs also failed to establish that the directive was made without legal authority, according to the opinion.

Justice Poissant said the plaintiffs were wrongly trying to relitigate the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges , which legalized same-sex marriage and made the Texas state laws at issue unconstitutional.

The panel also cited the high court’s 2017 ruling in Pavan v. Smith , which allowed same-sex parents the right to be listed on their children’s birth certificates, and its 2019 decision in Bostock v. Clayton County , which protected transgender individuals from discrimination.

The panel further denied the plaintiffs’ request for an injunction barring the city policy, saying their claim that the city used their tax dollars to “subsidize homosexual relationship,” which they believe is “immoral and sinful,” didn’t demonstrate imminent harm.

Justice Randy Wilson penned a partial dissent, saying the rest of the panel took the issue too far.

The trial court, Wilson said, had “paradoxically” dismissed the claims for lack of jurisdiction while essentially granting summary judgment on the merits. The appellate court should have addressed only the former and simply vacated the latter, he said.

See here for the previous update, and for the case information, including the opinion and concurrence and dissent from Justice Wilson. The original lawsuit was filed in 2013, for those keeping score at home. How much do you have to hate gay people to continue to pursue this eight years later? Jared Woodfill is their lawyer, if that helps you answer that question. Let us hope there is no further news to note on this.

Senate approves pointless appeals court

There’s more than one way to attack Democratic appellate court justices.

Sen. Joan Huffman

The Texas Senate passed a bill Wednesday to create a new statewide court of appeals that would hear cases that have statewide significance — including ones that challenge state laws, the constitution or when the state or its agencies are sued.

Currently, when such cases go to the intermediate appellate level, they are mostly heard by the 3rd Court of Appeals based in Austin. That court’s judges are elected by voters in Democratic-leaning Travis County. Senate Bill 1529, though, would send the cases to the new appellate court whose judges would be elected by voters statewide — an electorate that skews Republican.

Some of the state’s highest profile cases could be affected by this proposed court. Bill author Sen. Joan Huffman, R-Houston, said that recent lawsuits surrounding Gov. Greg Abbott’s pandemic emergency orders are examples of types of litigation the proposed court would have jurisdiction over.

Critics say the proposed new court is a Republican attempt to yank jurisdiction of these cases from Democrats.

The Austin-based 3rd Court of Appeals has five Democrats and only one Republican. Currently, all statewide elected judges are Republican, including on the Texas Supreme Court — and it’s likely the proposed court would also be all Republican.

“Since the [3rd Court of Appeals] deals with issues facing state government, it’s a thorn in the Republican Party side,” Mark P. Jones, a political science fellow at Rice University, said in an interview. “And so by transitioning that by moving that to a statewide election where Republicans have the advantage, they would be able to, most likely, flip from being a Democratic majority… to a [5-0] Republican advantage.”

Huffman maintains that she wrote the bill to promote consistency — not for partisan reasons.

“The new court has five justices elected statewide so that all Texans have a voice in electing those who decide cases of statewide significance,” she said from the Senate floor Tuesday. “It’s important for judges deciding cases of statewide importance to be familiar with specialized jurisprudence to provide consistent rulings for state litigants.”

[…]

Democrats on Tuesday raised constitutional concerns related to this bill, asking if the Legislature has the authority to create an appellate court with statewide jurisdiction, overlapping the current district system. Huffman maintains that it does.

“We’ll have to see you in court on this one,” Sen. Nathan Johnson, D-Dallas, said.

Darlene Byrne, chief justice on the 3rd Court of Appeals and a Democrat, said in an interview she thinks the bill is “bad policy and bad for statewide jurisprudence.”

Byrne also said the new structure would promote large campaigns.

“I don’t know of a Supreme Court race that costs less than a million dollars per candidate,” she said. “So this new statewide court is going to be mega-big donors infusing big money to influence the judiciary. And I thought we were trying to get away from that — but apparently not.”

Linda Thomas, a former Republican chief justice of the Texas Fifth District Court of Appeals, said she believed the bill was unnecessary.

“As a retired judge, I think it’s a little disingenuous, and in some ways, insulting to the sitting justices of this state to indicate that they are not capable of handling complex business cases,” Thomas said.

I noted this in passing in my initial post about appellate court redistricting, the bill for which has since been withdrawn for the time being. I tend to agree with Justice Thomas, and I also think that insult was a feature and not a bug. Sen. Huffman’s justification for this new court is ridiculous on its face, because all of the lawsuits in question start out in a district court, with a judge that was elected by local voters in far lesser numbers than for appellate court justices. That’s not exactly conducive to “consistent rulings for state litigants”. Why not go whole hog and create an entirely separate court system for “cases of statewide importance” (whatever that means, and I’ll bet that very topic becomes a contentious point of appeals in itself) so as to avoid local yokel judges making insufficiently erudite rulings? One could argue that Sen. Huffman is actually making a back-handed case for ending the election of judges in the first place. At least that would be a more honest approach to this.

I have no idea what the prospects are for this in the House, but I do feel confident that there will be litigation if and when this does pass. That lawsuit would eventually come before a district court of appeals, as one presumes it would be halted from taking effect pending the litigation, before ultimately being decided by the Supreme Court. I’ll leave it to you to sort out where that all lands on the Irony-o-Meter.

ERCOT roundup

Just a few stories of interest that I didn’t feel like putting in their own posts…

ERCOT will argue it is immune from lawsuits.

The Electric Reliability Council of Texas will argue that it has governmental immunity that protects it from the at least 35 lawsuits that have been filed against the operator after February’s disastrous winter storm which killed dozens of people and created millions of dollars of damages.

“ERCOT has and will continue to assert that it is entitled to sovereign immunity due to its organization and function as an arm of State government,” the organization wrote in a Wednesday court filing requesting to consolidate several of the lawsuits it’s battling.

Sovereign immunity grants protections for state agencies against lawsuits, with some exceptions. And this isn’t the first time ERCOT has made the argument — with some success — that it should be shielded from lawsuits due to its role acting upon the directives of state agencies and lawmakers.

In 2018, an appeals court in Dallas ruled that ERCOT, despite the fact that it is a private nonprofit, has sovereign immunity after Dallas-based utility Panda Power sued the operator over allegations of flawed energy projections.

That immunity was challenged at the Texas Supreme Court last month. However, the high court refused to rule on the issue, claiming it lacked jurisdiction because the original case that posed the question was dismissed — a hotly contested opinion with four of the nine justices dissenting.

See here for the previous update. I don’t know what practical effect this might have if ERCOT succeeds, but as a general principle I think this kind of legal immunity needs to be carefully limited. Maybe it’s appropriate here, but there needs to be a strong argument for it.

ERCOT: Blackout primarily caused by power plants freezing up:

The massive loss in power generation during the Texas blackout in February was caused primarily by power plants freezing up under historically cold conditions, according to a new report by the Electric Reliability Council of Texas Tuesday.

The state’s grid operator reported that on the morning of Feb. 16, the most severe moment of the blackout, 54 percent of the loss of power supply stemmed from weather-related issues at power plants, while 12 percent was due to a lack of fuel such as natural gas. Some 51,000 megawatts of generation — more than half of the system’s capacity — were offline at the height of the blackouts at 8 a.m. of Feb. 16, ERCOT reported.

The findings come as state officials are debating how to fix the state’s energy system to prevent a repeat of the power outages that left millions of Texans without power for days on end.

The report Tuesday offered a fairly limited perspective on what went wrong, failing to explain why specific types of generation were unable to operate during the winter storm or what happened. But it will add questions to how well prepared ERCOT and the state’s power plants were for cold weather, despite warnings from the Federal Energy Regulatory Commission to winterize following a less severe cold snap in 2011.

[…]

After weather-related problems, the second biggest loss of generation on Feb. 16 was caused by planned or unexpected outages prior to the cold snap that began sweeping Texas earlier in the week, accounting for 15 percent of lost power supply.

Another 14 percent of lost generation came from equipment failures unrelated to the weather. Only four percent of outages were due to transmission problems or a short drop in the frequency of the power grid that occurred early Monday morning.

I don’t know enough to say what this means in terms of figuring out the best path forward, but I sure hope that the Legislature has some people who know how to read a report like this available to explain it to them. We screwed this kind of response up last time. We have no excuse for screwing it up again.

Faulting ERCOT, insurer says it shouldn’t have to cover storm damages:

ERCOT’s insurance company is seeking a court ruling excusing it from defending Texas’ electric grid manager from lawsuits or covering damages stemming from the catastrophic power failure in February.

The Cincinnati Insurance Co. on Tuesday sought relief from the U.S. district court in Austin, arguing it does not have to defend the Electric Reliability Council of Texas because it does not view the power outages as an accident, defined by the insurer as a “fortuitous, unexpected, and unintended event.” As a result, the company said it has no obligation under its insurance policy to cover ERCOT, which faces a flood of lawsuits after the winter storm.

“The allegations in the Underlying Lawsuits allege ERCOT either knew, should have known, expected, and/or intended, that Winter Storm Uri would cause the same power outages which occurred as a result of previous storms in Texas, including storms in 1989 and 2011,” the insurer said in court documents. “The Underlying Lawsuits allege the power outages caused by Winter Storm Uri were a result of the exact same failures including failures of the same generators which failed in the previous winter storms, and therefore, the power outages were foreseeable, expected, and/or intended.”

[…]

ERCOT’s insurance policy with Cincinnati Insurance, effective until June 2022, states that the insurer “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages.’

The policy, however, says Cincinnati Insurance has no duty to defend ERCOT in cases in which the insurance policy does not apply, and retains the discretion to investigate any “occurance” and settle any claim or lawsuit that results from it. The insurer defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

In case you were wondering why ERCOT really doesn’t want to be sued. Also, when was the last time that an insurance company paid a claim without fighting it?

An open Texas power grid would boost reliability and renewables, experts say.

Since the February power outages, Texas legislators have been busy weighing a host of improvements for the state’s grid, from weatherizing equipment to shaking up oversight to partnering with the billionaire investor Warren Buffett on new emergency-use power plants.

But hardly any of them have focused on what some believe could be a more widespread fix: plugging into other U.S. power supplies.

While Texas has long opposed opening its grid to avoid federal oversight, and ostensibly to keep prices low, energy experts say the calculus is not what it once was and that the benefits of connecting to the outside world are at least worth examining, especially as renewable energy is poised for a major expansion under the Biden administration.

Not only is the state missing out on a potential lifeline in future blackouts, they warn, it also risks passing up billions of dollars in new investments for clean, marketable electricity.

“We export every form of energy you could imagine except electrons,” Michael Webber, a professor at the University of Texas at Austin, told reporters recently. “This is ridiculous,” he said. “Let’s at least study the option.”

There are some good arguments for this, and some reasonable ones for maintaining the independence of the Texas grid. Just because our setup is dumb and expensive and unreliable doesn’t mean it has to be that way, after all. But this is all an academic point, because there’s a zero percent chance this happens. Go ahead and write a report, but don’t ever expect Greg Abbott or Dan Patrick to read it.

HISD Board wins again in court

They’re still a thing, and Mike Morath can’t do anything about it right now.

The Houston ISD school board earned another win Friday in its effort to stave off Texas Education Commissioner Mike Morath’s plan to replace it with an appointed board, this time prevailing in a procedural battle before the state Supreme Court.

In an 8-1 decision, the Texas Supreme Court ruled that a state appellate court had the legal right to temporarily halt Morath’s move to oust HISD’s school board amid an ongoing lawsuit.

The ruling is not final victory for HISD in its fight with Morath. It merely means that the education commissioner cannot immediately move to replace trustees with a board of managers, which could vote to drop the lawsuit. The HISD board’s case remains pending, with an appeal related to the central issues of the case pending before the Texas Supreme Court.

Lawyers representing Morath and the Texas Education Agency argued that a state law precluded the courts from stopping state administrative actions — such as stripping power from school board members and appointing replacements — even if a trial court issues a temporary injunction. A Travis County judge overseeing HISD’s lawsuit issued such an injunction in January 2020.

An appellate court partially agreed with the TEA’s position, but the judges also found that they separately had the power to halt an administrative action under the state’s rules of appellate procedure, which they did in HISD’s case.

Lawyers for Morath and TEA disagreed and asked the state Supreme Court to overturn that finding, but the eight justices sided with the lower court.

See here and here for the background. This is a procedural ruling, which just means that the TEA does not get to take over HISD while the appeal of the ruling that said that the TEA did not properly follow the law while attempting to do the takeover is being litigated. HISD still has to win that appeal, and then have that upheld by the Supreme Court, to get out of the current situation. In the meantime, there’s the Harold Dutton bill that would make all of this moot, though it too would surely be subject to a lawsuit. I dunno, maybe the TEA should try to negotiate a settlement of some kind if they lose again, so we can all get on with our lives? Just a thought.

SCoTX punts on ERCOT lawsuit question

Wimpy.

The Texas Supreme Court punted Friday on a question dogging millions of Texans affected by last month’s catastrophic power failure: Can ERCOT, the state’s grid manager, be sued?

The state’s highest court ruled 5-4 that it won’t decide — at least not now — on closely-watched case between Dallas electricity generator Panda Power and the Electric Reliability Council of Texas. The $2.2 billion case filed by Panda Power in 2016 raised the question whether ERCOT is a governmental agency that has sovereign immunity protecting them from lawsuits. ERCOT, a private, nonprofit corporation overseen by the Texas Legislature and the Public Utility Commission, is the only grid manager in the country that has received such protection.

Five justices led by Justice Jeff Boyd said the Texas Constitution prohibits them from ruling on the case after the trial court issued a final judgment dismissing the case. Based on a finding of sovereign immunity by an appeals court, the Supreme Court narrowly ruled that the dismissal by the lower court made the case moot and that it no longer had the authority to rule in the case.

“Because the trial court’s interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek,” the majority opinion written by Boyd stated. “As a result, any decision we might render would constitute an impermissible advisory opinion, and these consolidated causes are moot.”

Four dissenting justices led by Chief Justice Nathan Hecht, argued they should rule on the case because the public has an interest whether ERCOT can be sued in the aftermath of last month’s storm. Several lawsuits have been filed against the state grid manager, including over the deaths of an 11-year-old boy and a 95-year-old man, who were both found dead in their freezing Houston-area homes.

“The answer to the immunity issue in this case has become perhaps more important to the public than even to the parties,” the minority opinion, written by Hecht stated. “The parties want to know. The public wants to know. The court refuses to answer.”

The ruling by the high court has widespread implications in the wake of last month’s deadly and devastating blackouts, which contributed to more than 50 deaths and billions of dollars of property damage.

David Coale, an appellate partner with Dallas-based law firm Lynn Pinker Hurst & Schwegmann, said the Supreme Court could still decide on ERCOT’s immunity as appeals from the Panda Power case come up through the legal system. In the meantime, ERCOT’s immunity — upheld by a Texas appeals court in 2018 — remains intact, but the state grid manage faces an onslaught of legal cases without any guidance from the Supreme Court.

“The court may have punted, but it didn’t walk away,” Coale said. “It acknowledged that another appeal involving the same parties is on its way up to them, and it can revisit these issues then.”

See here and here for some background. I guess I can understand the “let’s do this all in the correct order” idea, but as the story notes the question about whether ERCOT has sovereign immunity or not is very pertinent right now. Maybe if the ultimate decision is that ERCOT cannot be sued it would be nice to let all those folks who are now suing them know, so they won’t waste a bunch of time and money pursuing their cases. I’m not a lawyer, what do I know? You can find all the relevant opinions and concurrences and dissents here if you need a little light reading for the weekend.

UPDATE: Forgot to mention that Harris, Fort Bend, and Travis Counties submitted amicus briefs urging SCOTUS to find in favor of ERCOT not having sovereign immunity. This Bloomberg article, which is behind their paywall but which you might be able to see if you haven’t exceeded your monthly allowance, details those filings.

Paxton whistleblower lawsuit can proceed

First step in a long road.

Best mugshot ever

The 3rd Court of Appeals on Friday denied a petition from Texas Attorney General Ken Paxton’s office to stop a trial court hearing in a suit filed by whistleblowers who claim they were wrongfully terminated after reporting Paxton to law enforcement for alleged bribery and other public corruption.

Attorneys for the office did not immediately respond to a request for comment, but they are likely to appeal the decision to the Texas Supreme Court.

“We were pleased, but not surprised, by the 3rd Court’s ruling,” said Carlos Soltero, who represents David Maxwell, the agency’s former director of law enforcement who was fired in November. “This brings us closer to being able to move forward and present our case on the merits, which we are looking forward to doing.”

[…]

A Travis County trial court on March 1 heard a motion by Paxton’s attorneys to dismiss the case. When the judge left the issue under advisement and continued on to entertain an injunction hearing in the case, Paxton’s attorneys appealed, arguing she needed to first rule on the motion to dismiss before proceeding. The appellate court temporarily stayed all further action in the case; the stay was lifted with Friday’s order.

We know about the whistleblower lawsuit. Paxton’s response to the charges against him are that the Office of the Attorney General is not subject to the state’s whistleblower laws and thus this lawsuit is moot and should be dismissed. Travis County judge Amy Clark Meachum denied the motion to dismiss the lawsuit on March 1, and when she attempted to proceed to the next phase of the suit, which involved hearing from the plaintiffs, Paxton’s lawyers objected:

Bill Helfand, an outside lawyer hired to represent the agency in the whistleblower case, argued that the motion to dismiss raised questions about the appropriateness of the lawsuit that needed to be addressed before any other matters could be considered.

Meachum noted that she had made no ruling that could be appealed, but Helfand insisted that “diving into the substantive issues” of the case was no different from issuing a ruling denying the motion to dismiss, allowing him to file an appeal that should have ended matters until the 3rd Court of Appeals could rule.

Meachum disagreed and opened the second hearing, where for the first time a court heard from two of those who accused Paxton of misconduct.

The first was Jeff Mateer, the former second-ranking executive at the attorney general’s office who resigned Oct. 2, two days after joining six other top executives in telling FBI agents that he believed Paxton was misusing the powers of his office to help Austin businessman Nate Paul.

Mateer, a lawyer, said he stood by his accusations against Paxton, but when he was asked to discuss them, he was interrupted by repeated objections from Helfand, who said providing details would violate attorney-client privilege and get into internal office deliberations that could not be discussed in court.

Mateer also testified that the two executives who want to be reinstated to their jobs — David Maxwell, former director of the agency’s Law Enforcement Division, and Ryan Vassar, former deputy attorney general for legal counsel — had performed their jobs well when he ran the office.

The court also heard from Vassar, who was fired in November and testified that he had received no criticism of his job performance or reprimands before speaking to FBI agents last year. Vassar was in the early stages of his testimony and was set to resume Tuesday morning.

The Third Court of Appeals initially ruled for Paxton and halted any further testimony until it issued a decision. This was the decision, which will now be appealed to the Supreme Court. Remember how every little thing in the securities fraud case against Paxton got appealed all the way up to the Court of Criminal Appeals before anything could be done, which is why that case is more than five years old now? Yeah, that’s the likely situation here as well. The FBI can’t arrest his ass fast enough.

Dutton files bill to enable HISD takeover

Whatever else you may say, this is true to his beliefs.

Rep. Harold Dutton

Texas House Public Education Chairman Harold Dutton Jr. filed a bill Tuesday that, if it passes and withstands any legal challenge, would virtually guarantee the ouster of Houston ISD’s school board.

The Houston Democrat’s bill aims to clear the way for Texas Education Commissioner Mike Morath to strip power from all nine elected HISD trustees and replace them with a state-appointed board — an effort mired in an ongoing legal battle that has stretched more than a year.

[…]

Dutton’s bill seeks to remedy each issue raised by the Third Court of Appeals, while also explicitly stating that Morath’s decisions on school district sanctions cannot be litigated in courts.

Some parts of the bill would apply retroactively or punish HISD for past performance — which could prompt legal challenges.

For example, the bill states that Texas’ education commissioner must replace the school board in any district with a campus that has not received a passing grade under the state’s academic accountability system since 2010-11 and received more than five failing grades during that time. HISD’s Wheatley High meets that criteria.

“I don’t know if they can do that or not, but it certainly leads to an argument that it’s retroactive legislation,” said Kevin O’Hanlon, a lawyer representing HISD in its lawsuit against Morath.

See here for the last update on the takeover litigation. As noted, the issues that the court ruled on were that the TEA did not follow the law correctly in its takeover bid. I’ve no idea if Rep. Dutton’s retroactive fix will remedy that, but I feel confident we’ll find out if it gets that far. As noted, the original bill that led to the HISD takeover was a Dutton bill, as he has been a longtime critic of HISD for the poor performance of schools in hid district (including Wheatley) and others in predominantly black neighborhoods. It was very much an issue in his 2020 primary race, and I have no doubt it will arise again in 2022.

At least one of Rep. Dutton’s colleagues is not with him on this:

Rep. Wu notes that the TEA could simply take over Wheatley if they wanted to, as it is the sole school that is causing HISD to trigger the takeover law, but that is not what they chose. I have no idea if this bill will make it through, but Dutton is the Chair of the House Public Education Committee, so it will certainly get a hearing.

Court is now in session

Another aspect of the maskless mandate.

The Texas Supreme Court on Friday lifted most restrictions on in-person state court proceedings after Gov. Greg Abbott this week reopened Texas.

Almost all in-person court proceedings had been banned since the local onset of the COVID-19 pandemic, leaving courts no choice but to embrace remote hearings and appearances. With that requirement now ended, the Supreme Court is still encouraging judges to hold online trials and hearings, but will allow in-person proceedings if minimum health standard protocols and scheduling protocols are in place, according to the latest emergency order.

Local presiding judges also have the authority to require masks and impose social distancing requirements.

Harris County judges aim to solidify any changes to court operations by the end of next week, Administrative District Judge Robert Schaffer said.

“We have safety protocols in place that we’re going to continue with,” he said. “I think we’re going to take a breath, a deep breath, and read it (the order), and take another deep breath and read it again and try not to do a knee jerk response to it.”

[…]

Misdemeanor Judge Sedrick Walker, adminsitrative judge over the Harris County Criminal Courts at Law, said that based on his reading of the order, courts must take action to avoid spreading COVID-19. Masks are a way of doing that, he said.

“I can’t speak directly to the opinion of each individual misdemeanor judge at this time, however, I am confident that our judges would continue to require face coverings/masks in the courtroom,” he said. “In accordance with the guidance from the CDC and Harris County Public Health, the use of face coverings will continue to be required in my courtroom.”

The courts have been pretty backed up since the beginning of the pandemic – that has been a key factor in the high jail population in Harris County, among other things. I don’t know how much this helps, but maybe it moves things along a little. I hope there’s some effort to track COVID cases that may be related to in-person court hearings, just so that we can stop and make changes as needed.

TEA appeals HISD takeover ruling to Supreme Court

One way or the other, this should get a resolution.

Lawyers representing the Texas Education Agency filed an appeal Wednesday asking the state Supreme Court to overturn a temporary injunction that has slowed Education Commissioner Mike Morath’s plans to strip power from all nine Houston ISD school board members.

The filing comes nearly two months after the Third District Court of Appeals, in a 2-1 decision, ruled that Morath did not follow laws and procedures that would give him the authority to temporarily replace HISD’s school board with a state-appointed board.

TEA pledged in late December 2020 to appeal the ruling to the Texas Supreme Court. If the state’s highest court overturns the injunction, TEA leaders could install a new board that could vote to end HISD’s lawsuit.

[…]

In their filing Wednesday, state lawyers representing the state argued the Third District Court of Appeals erred in its interpretation of laws and regulations on all three fronts. The lawyers also claimed HISD should not be able to sue the state over an administrative matter.

“This case is of immediate importance to HISD students,” Assistant Solicitor General Kyle Highful wrote in the appeal. “And the court of appeals’ misinterpretations of the law endanger TEA’s future efforts to assist failing schools.”

Each of the three issues considered by the Third District Court of Appeals largely fell along technical lines.

See here for the previous update. The ruling in favor of HISD was bipartisan, so this isn’t an R-versus-D issue in the way some other recent lawsuits have been. No idea how long this may take, so just keep on keeping on until we know more.

Suing Griddy

This is going to be interesting.

A Chambers County resident filed a class-action lawsuit against electricity retailer Griddy on Monday, accusing the provider of price gouging customers during last week’s freeze. She is seeking $1 billion in relief for affected customers.

Attorneys for Lisa Khoury said in the lawsuit that her bill spiked to $9,340 the week of the storm, compared to her average monthly bills that range from $200 to $250. Griddy drafted payments from Khoury’s bank account several times, according to the lawsuit, pulling $1,200 before she blocked further charges from her bank. She still owes thousands.

Griddy passes wholesale electricity rates directly to customers, who in turn pay the company $10 a month. This differs from fixed-rate electricity plans which offer a consistent rate regardless of market conditions.

But because of a price hike fueled by a shortage of supply and skyrocketing demand, some customers were faced with bills charging tens of thousands of dollars. While electricity bills are likely to rise across the board, Texans on variable rate plans faced immediate and alarmingly high prices.

Texas’ Public Utility Commission, appointed by Abbott, raised the wholesale market price of electricity to $9 per kilo-watt hour — a 7,400% increase over the average 12 cents per kilo-watt hour — in response to rising demand. The hope was power generators would be enticed to produce more electricity.

“Energy prices should reflect scarcity of the supply,” the order stated.

Representatives for Griddy could not immediately be reached for comment. The electricity retailer addressed concerns of price gouging on its website and firmly placed the blame on the Public Utility Commission. The company states that it did not profit from raised prices.

A quick perusal of Griddy’s Twitter shows that they are blaming the PUC, and that they did suggest alternate electricity providers for their customers to switch to during freeze days; there are several news stories, including this one that ran in the Chron, about that as well.

This is one of those situations where the system is working exactly as designed – here are a couple of stories that explain the mechanics of this. I guess the courts could rule that what the PUC did violated the state’s laws on price gouging, but that seems like a stretch to me. I Am Not A Lawyer, so if you know better than me, please speak up.

More likely, there will be some kind of legislative solution to this. This Trib story goes into that option.

Gov. Greg Abbott and Texas lawmakers are promising relief for Texans hit with massive electric bills after a winter storm bludgeoned the state’s power grid, leaving millions of residents freezing without electricity.

But how they’ll accomplish that remains unclear. The state’s deregulated electricity market not only allows for staggering price spikes, but effectively compels them for some customers.

While many Texans are on “fixed rate” electricity plans that insulate them from market swings, others pay rates tied to the spot price of wholesale electricity, which skyrocketed during the storm.

As the bad weather bore down, it froze natural gas production and wind turbines, choking off the supply of electricity as demand skyrocketed. In response, the Public Utility Commission, appointed by Abbott, let the wholesale market price of electricity rise to $9 per kilo-watt hour, a 7,400% increase over the average 12 cents per kilo-watt hour.

The rate hike was supposed to entice power generators to get more juice into the grid, but the astounding costs were also passed directly on to some customers, who were suddenly being billed more for electricity each day than they normally pay in a month.

[…]

Kaiba White, an energy policy specialist with consumer advocacy group Public Citizen, said the costs would be passed on to customers one way or another.

“If they [the electric provider] don’t have a mechanism that allows them to do that in the immediate — like on the next bill or the next several bills — it’ll end up getting rolled into the overall cost of service,” she said. “It’s just a matter of whether it’s going to get passed on in an immediate way, in a shocking way … or spread out over time.”

Tim Morstad, associate state director with the Texas AARP, said “prices are going to rise” but with a delay for those not on variable rate plans.

“Forgive me for stepping back to say — this system is truly designed to have high prices and huge fluctuations. And putting consumers through that by design is a bad process. It’s setting people up for pain,” he said.

Texas has an unusually deregulated electricity market that’s touted for offering customers the ability to pick from hundreds of plans offered by dozens of electric providers. Parts of the state are carved out, including cities like Austin, that get energy from a municipally owned utility, or people served by cooperatives. Those too could see cost increases down the line.

Lawmakers and Abbott have pledged to protect consumers from the big bills, and excoriated the Electric Reliability Council of Texas for the outages last week. The reliability council, which operates the power grid that covers most of the state, is overseen by a Public Utility Commission.

Abbott’s office did not respond to a question about what options were on the table.

Lawmakers have demanded that the utility commission roll back its decision to allow the huge rate increases, or suggested cobbling together some package of emergency waivers or relief money to buffer Texans’ from the high bills.

“We cannot allow someone to exploit a market when they were the ones responsible for the dire consequences in the first place,” said state Rep. Brooks Landgraf, R-Odessa.

I have no idea what Abbott will suggest. He’s nobody’s picture of a creative thinker, and “solving problems” is not in his skill set. I’m hardly an expert either, but it seems to me that the first order of business is to prevent people from getting multi-thousand-dollar electric bills, and the simplest way to do that is probably just to order everyone’s bill capped at some value that relates to their usual experience, and have the state pick up the difference since the providers do in fact have the legal right to charge these amounts. That’s the easy part. The much harder question, at least for the leadership we are stuck with, is what to do about it for the future. That either involves some form of re-regulation that puts limits on how “free” the electricity market is, or ignoring it and hoping you survive electorally. I know what I’d do, but I’m not a Republican. Good luck with that.

One more thing, as long as we are talking about freeze/blackout-related lawsuits:

The family of an 11-year-old boy who died last week in Conroe during power outages while Texas endured a freezing winter storm is suing Entergy Texas and operator of the state’s power grid for a total of $100 million.

In the lawsuit filed Saturday, the family said Cristian Pineda died of hypothermia after the temperature in his house plunged due to the forced blackouts. Pineda’s family of five shared a single room for warmth, and Cristian shared a bed with his younger brother, the lawsuit states.

His family found Cristian unresponsive in the morning. The Houston Chronicle first reported news of the lawsuit.

The family is suing the Electric Reliability Council of Texas, which operates the decentralized electrical grid system. The Texas grid is not governed by federal regulations.

As the story notes, our old buddy Tony Buzbee is filing this lawsuit, along with at least seven others, against ERCOT. Whether or not he can do that is an open question.

ERCOT has sovereign immunity, a well-established legal principle that protects governmental agencies from lawsuits. ERCOT, a private nonprofit corporation overseen by the Texas Legislature and the Public Utility Commission, is the only grid manager in the country with such protections.

A pending decision by the Texas Supreme Court, however, could change that. Justices on the state’s highest court are expected to rule this year on a case between Dallas utility Panda Power and ERCOT that could strip the Texas grid operator of its sovereign immunity, leaving it open to lawsuits that ERCOT has said could cripple the agency.

The ruling by the high court will have widespread implications in the wake of last week’s blackouts. It would not only determine whether Texans can use the legal system to hold ERCOT accountable for power outages that led to more than 48 deaths and billions of dollars of property damage, but also the future of ERCOT and the state’s power markets if the court opens the door to the likely flood of lawsuits.

[…]

“The political rhetoric around ERCOT and the weather emergency has embraced transparency and accountability,” Rottinghaus said. “A ruling that holds ERCOT immune from such lawsuits may run against that. It could be a political liability.”

Panda Power filed suit in 2016 against ERCOT, alleging the grid operator issued “seriously flawed or rigged” energy demand projections that prompted the Dallas power company to invest $2.2 billion to build three power plants early last decade. The plants ended up losing billions of dollars, with one forced into bankruptcy.

ERCOT’s reports calling for more power generators came in the aftermath of a major ice storm in February 2011, which crippled Texas power plants and forced rolling blackouts across the state.

Panda Power’s case was halted in 2018 when an appeals court in Dallas asserted ERCOT was protected from lawsuits by sovereign immunity. The Texas Supreme Court in June 2020 said it would review the appellate court decision, heard the case in September 2020 and is expected to render a decision before it recesses in June.

We’ll see about that. There’s definitely some pressure, on the courts and on the Lege and on Greg Abbott, to Do Something about all this – and again, I remind you, that the “all this” in question is what was supposed to happen based on existing laws. How long that pressure lasts, and what happens if there are no legal or legislative outlets for it, that’s the big political question.

UPDATE: Multiple ERCOT board members have resigned. All are folks who did not live in Texas, which yes is one of the weirder things about ERCOT. Not directly related to this story, but this is as good a place as any to note it.

Precinct analysis: Fort Bend County, part 2

Introduction
Congressional districts
State Rep districts
Commissioners Court/JP precincts
Comparing 2012 and 2016
Statewide judicial
Other jurisdictions
Appellate courts, Part 1
Appellate courts, Part 2
Judicial averages
Other cities
District Attorney
County Attorney
Sheriff
Tax Assessor
County Clerk
HCDE
Fort Bend, part 1

This post is going to focus on the judicial races in Fort Bend County. There are a lot of them – seven statewide, four appellate, five district and county – and I don’t want to split them into multiple posts because there’s not enough to say about them, nor do I want to present you with a wall of numbers that will make your eyes glaze over. So, I’m going to do a bit of analysis up top, then put all the number beneath the fold for those who want a closer look or to fact-check me. I’ll have one more post about the Fort Bend county races, and then maybe I’ll take a crack at Brazoria County, which will be even more manual labor than these posts were.

The point of interest at the statewide level is in the vote differentials between the three races that included a Libertarian candidate and the four races that did not. Just eyeballing the totals and bearing in mind that there’s some variance in each group, the Republican candidate got an increase of a bit more than half of the Libertarian vote total in each district, while the Democrats were more or less around the same level. That comports with the general thesis that Libertarians tend to take votes away from Republicans more than Democrats, though the effect here was pretty small. It’s also a small sample, and every county has its own characteristics, so don’t go drawing broad conclusions. For what it’s worth, there wasn’t anything here to contradict that piece of conventional wisdom.

For the appellate court races, the thing I have obsessed over is the incredibly small margin in the election for Chief Justice of the 14th Court of Appeals, which Jane Robinson lost by 1500 votes, or 0.06 percentage points. We saw in Harris County that she trailed the two victorious Democrats, Veronica Rivas-Molloy and Amparo Guerra, who were part of a trend in Harris County where Latino candidates generally out-performed the rest of the ticket. That wasn’t quite the case in Fort Bend. Robinson again trailed Rivas-Molloy by a little – in overall vote total, Robinson trailed Rivas-Molloy by about two thousand votes, while Republican Tracy Christopher did an equivalent amount better than Russell Lloyd. But unlike in Harris, Robinson outperformed Guerra, by about a thousand votes, and Guerra barely beat out Tamika Craft, who was farther behind the pack in Harris County. I don’t have a good explanation for that, it looks to me just like a weird result that has no obvious cause or correlation to what we saw elsewhere. It’s also the case, as we discussed in part one of the Fort Bend results, that if Dems had done a better job retaining voters downballot, none of this would matter all that much.

Finally, in the district court races (there were four of them, plus one county court), the results that grabbed my attention were in a couple of contests that appeared one after the other. Republican Maggie Jaramillo, running for the 400th District Court, was the closest member of Team GOP to win, as she lost to Tameika Carter by ten thousand votes. In the next race, for the 434th District Court, Republican Jim Shoemake lost to Christian Becerra by twenty-two thousand votes. This was the difference between a three-point loss for Jaramillo, and a six-and-a-half point loss for Shoemake. Jaramillo was the top performing Republican candidate in any race in Fort Bend, while Becerra was sixth best among Dems, trailing Joe Biden, three statewide judicial candidates, and Sheriff Eric Fagan. You may have noticed that they’re both Latinos, though the effect appears to have been a bit greater for the Republican Jaramillo. Becerra was the only Dem besides Biden to carry Commissioners Court Precinct 1, though that may not have been strictly a Latino candidate phenomenon – Elizabeth Frizell had the next highest percentage, with Veronica Rivas-Molloy and Tina Clinton close behind. (Amy Clark Meachum and Staci Williams, both in three-candidate races, came closer to carrying CC1 than any other candidates, but their percentage of the vote was lower.) Again, no broad conclusions here, just an observation.

Click on for the race data, and remember I had to piece this together by hand, so my numbers may be a little off from the official state totals when those come out. County races are next. Let me know what you think.

(more…)

SCOTx allows Inforwars lawsuits to proceed

Good.

The Texas Supreme Court on Friday rejected, without comment, conspiracy theorist Alex Jones’ attempt to toss out four defamation lawsuits by parents of children killed at Sandy Hook Elementary in 2012.

The parents sued in Travis County, where Jones and his InfoWars website are based, arguing that they were defamed and suffered emotional distress after InfoWars broadcasts disputed the authenticity of the school shooting and the news coverage that followed.

Twenty young children and six adults died in the mass shooting at the Sandy Hook school in Newtown, Connecticut.

Friday’s action by the Supreme Court upheld rulings by two lower courts that had allowed the lawsuits to continue.

The state’s highest civil court also gave the green light to another defamation lawsuit against InfoWars and reporter Kit Daniels by a man mistakenly identified as a suspect in the 2018 shooting at a high school in Parkland, Florida.

[…]

Friday’s announcement by the Supreme Court noted that two members, Justices Jeff Boyd and John Devine, would have granted Jones’ petition for review in the Pozner lawsuit, but the court order provided no reasons for their dissent.

In briefs to the Supreme Court, lawyers for Jones argued that the InfoWars host was engaging in protected speech because he was addressing matters of public concern.

“The pursuit of so-called ‘conspiracy theories’ concerning controversial government activities has been a part and parcel of American political discourse since our Founding, and it is protected by the First Amendment,” they told the court in a brief for the Pozner and De La Rosa case.

Jones also argued that state libel laws required any harmful speech to be directed at specific family members, but the Sandy Hook families were not named in three InfoWars reports in 2017.

But a lawyer for the Sandy Hook families argued that Jones didn’t merely say the school shooting was staged by the government, he also generally accused family members of being actors to help sell a supposed coverup and exploit the event to attack gun rights.

As a result, Jones and InfoWars accused family members of collusion in a hoax “relating to the murder of their son … for nefarious purposes,” lawyer Mark Bankston told the court.

Jones also was reckless in publishing information that was so improbable that no reasonable publisher would have done likewise without substantial confirmation, Bankston argued.

“Mr. Jones’ fantasy about a shadowy government conspiracy to murder first-graders and then exploit the event with the help of the media and actors is the very definition of ‘improbable,'” he wrote.

The lawsuits are by the parents of two of the children that were murdered at Sandy Hook. You never know what can happen, but Jones’ record in defending himself so far isn’t great – he not only lost at the Third Court of Appeals earlier in the year, he was ordered to pay court costs for the frivolity of his appeal. He deserves to lose and to have the full weight of the consequences of his actions come down on him. Law and Crime has more.

TEA still barred from taking over HISD

Still in a state of limbo.

Texas is still temporarily barred from taking over Houston Independent School District, a state appellate court ruled Wednesday, upholding a lower court’s order.

In a 2-1 ruling, the Texas Third Court of Appeals upheld a temporary injunction that stops the Texas Education Agency from replacing the elected school board of its largest district with an appointed board of managers. The appeals court ruling sends the case back to the lower court that in January blocked the state’s takeover effort.

The appellate judges said Houston ISD had a “probable right to relief” since the TEA did not follow proper procedure and acted outside its authority as it moved to sanction the district. It also ordered the state to “pay all costs related to this appeal.”

The TEA plans to appeal the ruling to the Texas Supreme Court. “While the Agency is disappointed with the split ruling from the 3rd Court of Appeals, this is only a temporary setback,” the agency said in a statement. “We are confident that the Texas Supreme Court will uphold the Commissioner’s legally-authorized actions to improve the educational outcomes for the 200,000-plus public school students of Houston.”

[…]

[T]he appellate court’s ruling Wednesday said Texas’ “proposed actions are not authorized by the Education Code.” The opinion stated that the state did not have the right to appoint a conservator to oversee the entire school district in 2019, force Houston ISD to suspend its search for a new superintendent, or impose sanctions based on an investigation, among other things.

The opinion was written by Judge Gisela Triana, who was joined by Judge Jeff Rose in the ruling. In a dissenting opinion, Judge Thomas Baker wrote that Texas is authorized to take over Houston ISD, the injunction should be removed and the district’s claims should be dismissed.

See here and here for the background, and here for a copy of the opinion. The Chron story goes into the opinion in some more detail.

To start, HISD’s lawyers argued Wheatley High School did not trigger a state law requiring the school’s closure or the board’s ouster after the Fifth Ward campus received its seventh straight failing grade in 2019. While the law is intended to punish districts with campuses receiving failing grades in multiple consecutive years, the justices found that the TEA failed to take a technical step — ordering HISD to submit a campus turnaround plan for Wheatley — that it says was required under the statute.

The two justices also ruled that the TEA incorrectly interpreted a state law that says Morath can replace the school board in any district that has had a state-appointed conservator for more than two years.

State officials appointed conservator Doris Delaney to oversee long-struggling Kashmere High School in 2016, then clarified that her authority extended to district-level support in 2019. TEA officials argued Delaney’s presence since 2016 met the criteria for triggering the state law, but the two justices ruled that only her time as a district-level conservator counted toward the two-year requirement, which thus hasn’t yet been met.

Finally, the two justices found that TEA officials failed to follow their own procedures related to a special accreditation investigation, which Morath cited as a third reason for replacing HISD’s board.

For what it’s worth, the “affirm” opinion came from a Democratic justice (Triana) and a Republican justice (Rose), while it was a Democratic justice (Baker) who voted to overturn the district court opinion. I don’t know when this might be resolved – the appeal to the Supreme Court is of the injunction, while the case itself was sent back to the district court – but until there is a final ruling that says the TEA can install its Board of Managers, I’m going to operate on the assumption that there will be HISD Trustee elections this year. I guess there would be regardless, but at least for now those elections mean a bit more, since the Board of Trustees is still running things. The Press has more.

Abbott appoints another statewide judge

From before the holidays:

Judge Michael Keasler

Jesse McClure, a trial judge on a criminal court in Houston, will join the state’s highest court for criminal matters in the new year.

Gov. Greg Abbott appointed McClure, a Republican, to the Court of Criminal Appeals, where he will fill a seat being vacated by Judge Michael Keasler. Keasler, 78, is departing Dec. 31 under Texas’ mandatory retirement law for judges.

McClure was appointed to his current bench by Abbott in November 2019 but lost his reelection bid to Democrat Te’iva Bell last month in an election that saw Democrats sweep Harris County.

Previously, McClure worked as a prosecutor for the Texas Department of Insurance, as an attorney with the Department of Homeland Security and as an assistant district attorney in Tarrant County. He will serve the remainder of Keasler’s term, which lasts through the end of 2022, and then plans to seek reelection.

[…]

A Texas law that requires judges to retire within a few years of turning 75 forced Keasler to step down partway through his six-year term.

In Keasler’s case, the law caused a fair bit of confusion.

Last year, two Democrats pursued the nomination to run for Keasler’s seat, expecting an election, rather than an appointment, in a misunderstanding that even the Texas secretary of state’s office did not escape. Ultimately, given that Keasler served through the end of the year, the seat fell to Abbott to fill, not the voters.

Keasler said that did not influence his decision to serve through the end of the year.

“I know I’m in the fourth quarter, there’s no question about that, I just hope I’m not at the two-minute warning just yet,” he joked.

See here for the background on that confusion. I guess “within a few years of turning 75” does leave some room for interpretation. McClure was Abbott’s second appointment to a statewide bench in the last three months, following the well-timed resignation of now-former Supreme Court Justice Paul Green. For all the biennial debate we have about electing judges versus some other system for naming them, we sure do have a lot of judges on the Supreme Court and Court of Criminal Appeals who got there initially via gubernatorial appointment. Such selections come with no requirement for Senate confirmation, and in nearly every case the newbie judge gets two full years on the bench before having to face the voters. We can as always debate the merits of the system we have, but we should be honest about the way that system actually works.