Off the Kuff Rotating Header Image

The Lege

The limitations of Plan B

A helpful and timely explainer from the Associated Press.

WHAT ARE EMERGENCY CONTRACEPTIVES?

Emergency contraceptives are used to prevent pregnancy after unprotected sex or if a method of birth control fails.

Two types of medications, sometimes referred to as “morning after pills,” are available: levonorgestrel, known by the popular brand name Plan B; and ulipristal acetate, known under the brand ella. They should be taken as soon as possible after unprotected sex.

The pills prevent ovulation, which is when an egg is released from an ovary, said Dr. Jonah Fleisher, director of the Center for Reproductive Health at the University of Illinois in Chicago. If an egg is not released, it cannot be fertilized.

ARE THEY THE SAME AS ABORTION PILLS?

No. Emergency contraceptives prevent a pregnancy. The abortion pill, mifepristone, ends a pregnancy after a fertilized egg has implanted in the lining of a woman’s uterus. It’s commonly administered with the drug misoprostol and can be taken up to 11 weeks after the first day of a woman’s last period.

DOES EMERGENCY CONTRACEPTION WORK?

Not 100% of the time. The pills’ effectiveness improves the sooner they are taken after unprotected sex, doctors said. The drugs won’t prevent pregnancies if they are taken before sex, Fleisher said.

The Food and Drug Administration has approved Plan B for use up to 72 hours, or three days, after unprotected sex. Ella is approved for up to 120 hours, or five days.

Timing is important because sperm can live inside a woman’s body for up to five days, so a woman can still get pregnant if ovulation occurs after intercourse, said Dr. Dana Stone, an OB-GYN in Oklahoma City. If a woman has ovulated prior to intercourse, the pills are unlikely to help.

“So that’s where the failure comes in. It’s based on the timing,” Stone said.

[…]

WHAT ABOUT RAPE VICTIMS?

Most rape victims don’t report the crime to law enforcement, according to Jude Foster, advocacy medical forensic and prevention programs director for the Minnesota Coalition Against Sexual Assault. Many also may not go in for immediate medical care. Not everyone knows that emergency contraceptives are an option and part of a routine rape exam, or that such an exam is free.

“Why is sexual assault used as a political football when you are talking about access to reproductive care?” Foster said. “Please don’t. It just really frustrates me.”

Stone said the belief that a woman can just take Plan B if she is raped is misguided.

“We need all kinds of options for women because nothing is a one size fits all,” Stone said. “People have transportation problems, they have financial problems. There are always barriers to some percentage of women that will keep them from accessing this in the short time frame that they have.”

See here for the reason I’m blogging about this. Note also the mention of cost in that last section. Cost is a legitimate concern.

Plan B One-Step usually costs about $40-$50. Generics like Take Action, My Way, Option 2, Preventeza, My Choice, Aftera, and EContra generally cost less — about $11-$45. You can also order a generic brand called AfterPill online for $20 + $5 shipping. (AfterPill can’t be shipped quick enough to use if you need a morning-after pill right now, but you can buy it and put it in your medicine cabinet in case you need it in the future.)

The brand of EC you buy or how much you pay for it doesn’t matter — all brand-name and generic levonorgestrel morning-after pills work just as well.

You may be able to get the morning-after pill for free or low cost from a Planned Parenthood health center, your local health department, or another family planning clinic. Call your nearest Planned Parenthood to see if they can help you get emergency contraception that fits your budget.

If you have health insurance or Medicaid, there’s a good chance you can get Plan B for free — you just have to ask your nurse or doctor for a prescription so your health insurance will cover them (even though you don’t need a prescription to buy these types of morning-after pills over-the-counter). The staff at your local Planned Parenthood health center can also help you figure out if your health insurance will pay for your morning-after pill. Read more about using health insurance to pay for emergency contraception.

Boy, it sure is a good thing that everyone has either health insurance, or Medicaid, or easy access to a Planned Parenthood near them in Texas, isn’t it? This sure would be a much bigger problem, one that would require engagement and compassion from our state leaders to solve otherwise. So clearly, anyone who needs Plan B can get it any time they want, right?

There are many variables affecting what might happen with abortion law in Texas

Another way to put this: What can Beto do as Governor with a Republican legislature to make abortion laws less bad in Texas?

Toward the end of a virtual campaign event last month, one of Beto O’Rourke’s supporters asked how he would fulfill a key pledge: overturning the Texas ban on abortion.

The Legislature is virtually certain to remain under Republican control next year, leaving O’Rourke with no clear path to restore abortion access if he were to defeat Gov. Greg Abbott in November. But the Democratic nominee insisted he could bring lawmakers around.

“The shockwaves that it will send through this state to have a proudly, boldly pro-choice Democrat win for the first time in 32 years … will give us the political capital, the leverage we need to make sure that we can restore protections for every single woman in Texas to make her own decisions about her own body,” O’Rourke said.

He would also use “the power of the governor’s veto to stop bad ideas that are coming down the pike already,” he said.

But the proposals that most animate O’Rourke’s base — abortion rights, gun restrictions, expanded voting access — would likely face stiff resistance from Republican lawmakers, many of whom will return to Austin with no desire to rescind laws they passed as recently as last year.

Under those conditions, O’Rourke’s ability to enact core parts of his agenda would require a near-impossible level of legislative savvy, and unsparing use of the governor’s limited tools to influence the lawmaking process, such as vetoing bills and budget line items, veterans of Texas politics say.

[…]

On paper, Texas governors have limited power to shape public policy, with no cabinet and less control over state agencies than most of their counterparts around the country.

In recent years, though, Abbott and his predecessor, Rick Perry, have expanded their sway through sheer longevity — each staying in office long enough to stock boards and commissions with allies. Abbott has also used disaster orders to bypass the Legislature and steer policy on border security, the state’s COVID response, Texas National Guard deployments, and more.

Governors can also influence how laws are interpreted and enforced, through their appointments to state boards and commissions and directives to state agencies via executive order.

But governors cannot fire even their own appointees, let alone those of former governors, meaning O’Rourke would be stuck with thousands of Abbott appointees until their terms expire.

He could appoint their replacements between legislative sessions without immediate oversight, though each appointee would eventually require approval from the Republican-majority Senate once the Legislature is in session.

O’Rourke’s most potent tool to influence the lawmaking process would likely be his power to veto laws and spending he opposes, which governors have historically wielded as a powerful bargaining chip. O’Rourke said he would use that power, if necessary, to nix policies like private school vouchers, which Abbott has supported.

“Being able to stop that is incredibly important,” O’Rourke said. “But it also affords the governor leverage, in a broader sense, to bring people to the table and to make sure that we find that common ground, we get to that consensus, and we make some progress.”

The veto argument is one I was making about Wendy Davis back in 2014, before some of the worst anti-abortion legislation was passed. It’s still salient today, though the context is now very different. At the very least, it would be a hard stop against the vengeance fantasies of sociopaths like Briscoe Cain.

I think we can safely put aside any ideas about Beto reaching across the aisle for bipartisan compromise legislation on almost anything. Not that he wouldn’t sincerely try, and he could lead with things that under other circumstances might have genuine bipartisan appeal, like improving broadband access or drought mitigation. I just don’t believe that Republicans will move an inch even on things they have championed in the past to give him a legislative victory – their primary voters will not stand for it. I’d love to be too cynical about this, but it’s very much a prove-me-wrong situation. There may be some opportunities in the budget, where he will have line item veto power and where a lot of sausage making goes on behind closed doors, but don’t look for anything bigger than that. At least one chamber will need to be Democratic-majority before anything like that could realistically happen.

The use of executive power is an interesting possibility, and one where recent history is of much better use than past history. Abbott and Perry have absolutely pushed the bounds on what a Texas Governor can do, though to be fair they have had a docile and largely submissive legislature and a mostly compliant Supreme Court abetting them, neither of which Beto would have. All of the contradictions and hypocrisies that will result when those institutions suddenly decide that maybe there should be some limits on executive power won’t mean much given how little that kind of thing engages the public. All that said, Beto should look for every opportunity to push the envelope. He has little to lose by doing so.

Now, to complicate my earlier assertions about bipartisan legislation and compromise, we do have one slim possible avenue for such a thing.

Republican state Sen. Robert Nichols of Jacksonville said Friday that he’d support a change to Texas’ abortion laws to allow victims of rape to legally obtain the procedure.

“If I get a chance to vote for an exception to rape, I will vote yes,” the East Texas senator said during a panel of Republican lawmakers at the 2022 Texas Tribune Festival. “I think instead of us telling women what to do, we should show our support for women of this state.”

Nichols is one of the first anti-abortion lawmakers to say he would support loosening the abortion laws when lawmakers meet in January.

[…]

Texas is competing against private companies who are willing to bus their employees out of state for “pregnancy care,” said Nichols. “And what are we doing?”

At the least, Nichols said, the state should provide a minimum of four weeks of paid maternity leave for state employees.

Nichols self-identifies as “pro-life” and has voted in favor of the state’s abortion laws, including the “fetal heartbeat” law that went into effect last September. The law prohibited most abortions after an ultrasound could detect cardiac activity in a embryo, about six weeks into a pregnancy. Nichols’ office did not immediately respond to questions about whether the senator would support any other exceptions to the abortion law, such as for incest.

I would point out that as an actual Senator, Nichols could author such a bill himself and perhaps even try to persuade his fellow Republicans to vote for it, including in the House, rather than wait for such a bill to magically appear before him. Crazy talk, I know, but it’s what I do. The question here, as above, is whether Nichols would still support such a bill even if it would then be sent to Governor O’Rourke for a signature, or whether that would be out of bounds as per the same politics I discussed above. My guess is the latter is more likely, but we’ll see. For what it’s worth, signing a bill that merely allowed for a rape exception to the current ban, without at least clarifying the “life and health of the mother” exception that is causing so much chaos and mayhem in the hospitals now would not be a clear win for Beto in my estimation. I believe it would garner at best grudging support from reproductive rights advocates, even if it was clearly the best we could get under the circumstances, just because it’s so incremental and would give some form of approval to that strict a legal regime. I could be wrong about that, I’m just saying that this stuff is more complicated than it looks and there are way too many variables to support making any kind of prediction. We’ll know a bit more after the election, but for now almost anything could happen. We need to do what we can to put ourselves in the best possible position to affect the outcome.

Interview with Cam Campbell

Cam Cameron

I have spoken to many candidates for office over the years, from all walks of life. I don’t believe I had spoken to one who is called “Coach” before, but that ends today with Cameron “Coach Cam” Campbell, the Democratic nominee for HD132. Campbell is a University of Houston graduate and public speaker/entrepreneur. He has been a basketball coach and athletic director at KIPP Houston High School and now serves as a Play Safe Coach for the Houston Texans. He won a close primary this March and now faces a tougher challenge in a district that went from swing to more Republican after redistricting. Here’s what we talked about:

PREVIOUSLY:

All interviews and Q&As through the primary runoffs
Michelle Palmer – SBOE6
Chuck Crews – HD128
Stephanie Morales – HD138
Robin Fulford – CD02
Laura Jones – CD08

As always, everything you could want to know about the Democratic candidates can be found at the Erik Manning spreadsheet.

The Biden student loan forgiveness plan will help a lot of Texans

Hope they’re all voters, because it’s very clear who is on their side and who is against them.

More Texans would benefit from President Joe Biden’s plan to forgive student loan debt than residents of nearly any other state — and 1.6 million would have their balances completely cleared — according to new White House estimates released as Republicans call it an unconstitutional giveaway to the elite and seek to derail it.

More than 3.3 million Texans would be eligible to have at least $10,000 forgiven and most people in that group, 2.3 million, would have $20,000 forgiven. Texas is second only to California in the number of residents that would benefit from the debt forgiveness plan, according to the estimates, which were compiled by the U.S. Department of Education.

[…]

Officials have said they plan to have applications available early next month, but the plan is likely to face a long legal battle.

Texas is among the red states looking for ways to stop it from becoming a reality. Attorney General Ken Paxton said in a recent interview on Fox News that Texas is “definitely looking at a strategy.”

It is the first time a president has sought to unilaterally cancel swaths of student debt and whether the administration has the authority to do so has been the point of heated debate. The administration says it can, citing a 2003 law that grants the secretary of education authority to offer loan relief during times of war or national emergencies.

But Republicans say Biden is going too far.

“The reality is, I don’t actually think Joe Biden thinks he can do this,” Paxton said. “We are absolutely looking at something we can do to protect the American people from a president that is just making up his own rules as he goes along.”

Republicans argue the plan is unfair to those who have already paid off their debt, as well as the vast majority of American adults who do not have student loans. They say the plan will cost too much — with some estimates as high as $600 billion — and will help those who need it the least.

“College may not be the right decision for every American, but for the students who took out loans, it was their decision: able adults and willing borrowers who knowingly agreed to the terms of the loan and consented to taking on debt in exchange for taking classes,” Gov. Greg Abbott wrote in a letter to Biden with other Republican governors last week. “For many borrowers, they worked hard, made sacrifices, and paid off their debt. For many others, they chose hard work and a paycheck rather than more school and a loan. Americans who did not choose to take out student loans themselves should certainly not be forced to pay for the student loans of others.”

Paxton and Abbott are gonna do what they’re gonna do, and we’ll have to deal with it as we always do. There are absolutely root-cause issues here that are not addressed, but one of the big ones is the underfunding of state universities, which is why they’re so much more expensive now than they were even 20 years ago. Remember tuition deregulation, which the Lege did under Tom Craddick back in 2003 as an exercise in budget-cutting? Not much the President can do about that, and I don’t see Greg Abbott lining up to offer solutions. Anyway, policies that offer a lot of people a tangible benefit are usually good, and certainly attractive from a vote-getting perspective. I hope everyone involved in this remembers that.

DMN/UT-Tyler: Abbott 47, Beto 38

Insert shrug emoji here, and insert link to the unreadable DMN story here. I’ll give you the main results of interest and then a few comments after that.

Abbott 47, Beto 38
Patrick 39, Collier 28
Paxton 37, Garza 30
State House GOP 50, Dem 48

The August poll had Abbott up 46-39. As I said in other posts while resisting the urge to attribute “momentum” to Beto, I find the claim that a one point shift for each candidate represents a “gain” for Abbott to be a bit tendentious. Like with other polls, the subsample that I tend to look at when considering these results is the partisan subsamples. Here, Beto wins Democrats by a lethargic 77-12, with Abbott at 85-8 among Republicans. It was 81-12 for Beto in August, with Abbott at the same level among Rs. I find the claim that more than ten percent of people who would credibly self-ID as Democrats support Greg Abbott to be implausible. I’ll just leave it at that.

I know that the Lite Guv and AG races are lower profile, but as I’ve said before, poll results this late in the cycle that can’t give me a better idea of how many people will vote for “the Republican” versus “the Democrat” are not ones I put much weight in. It is possible to do better than that. It’s especially humorous to me given the near-100% response rate for the Texas House race. The conjunction of these things doesn’t make much sense to me.

One last thing, in their suite of issues questions, this poll finds slightly less support overall for abortion rights, as approval for overturning Roe v Wade went from 42-49 in August to 46-46 in September, while the question on abortion being mostly or completely illegal versus mostly or completely legal went from 44-55 in August to 49-50 in September. This stands at odds with other recent polling. Which doesn’t mean it’s wrong, just that I will cast a skeptical eye at it. The claim I saw in the snippet of the story I could read that this had to do with Abbott doing a lot of advertising strikes me as not very likely. Polls can be weird, which is why we try to look at them in bunches where possible.

UPDATE: I missed on first reading that this was a poll of registered voters, not “likely” voters, which is what all of the other recent polls have been. That explains the lower response numbers in the Lt. Governor and AG races. With their likely voter screen, this poll has Abbott up 50-39. My stated concerns about the likelihood of so many self-described Democrats saying they will vote for Greg Abbott remain.

Ken Paxton keeps trying to kill the SAISD vaccine mandate

On brand, always on brand.

Texas Attorney General Ken Paxton has filed another petition seeking to reverse a Bexar County judge’s decision that rejected the state’s bid for a temporary injunction to block the San Antonio Independent School District’s staff vaccine mandate.

Even though SAISD’S vaccine mandate remains on pause despite the court’s ruling in its favor, Paxton said he will “continue fighting for medical freedom.”

“Nobody should be bullied, coerced, and certainly not fired because of their COVID-19 vaccination status,” said Paxon in his announcement, adding the decision is not only an affront to individual liberty, but “illegal under Texas law.”

“The governor’s executive order specifically protects workers from the type of mass firings that San Antonio ISD is seeking, and I will continue to fight in court to defend GA-39 and Texans’ medical freedom,” he said.

The petition was filed Sept. 7 with the Texas Supreme Court.

An SAISD spokeswoman said in a statement that the vaccine mandate remains suspended and that no employee was ever disciplined for refusing to get the vaccine.

See here and here for the previous updates. There’s a recitation of the long history of this legal saga in the story if you want that. I remind you that this mandate was never enforced and remains on pause, not that these things matter to Ken Paxton. The appellate court ruling that Greg Abbott doesn’t have the power he claimed to have when he forbade these mandates seems pretty clear to me, but you never know what SCOTx will do. Now we wait to see if they’ll take this up.

Fifth Circuit upholds Texas’ ridiculous social media censorship law

Back to you, SCOTUS.

A Texas law prohibiting large social media companies from banning users’ posts based on their political viewpoints will go into effect after a federal appeals court on Friday lifted a block placed on the statute.

NetChoice and the Computer & Communications Industry Association sued Texas after the law, known as House Bill 20, was passed last year, arguing that internet companies have a First Amendment right to curate content posted on their platforms and decide which types of speech they saw fit to be there.

In its ruling, the 5th U.S. Circuit Court of Appeals disagreed with the plaintiffs’ argument that the law was unconstitutional, saying they were seeking protection to “muzzle free speech.”

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the ruling says.

The CCIA said the ruling forced tech companies to give equal treatment to all manners of speech, including extremist views.

“We strongly disagree with the court’s decision. Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk,” the group said. “‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”

See here for the previous update, in which SCOTUS blocked the law pending the Fifth Circuit’s ruling on the appeal, and here for a copy of the opinion. I think this sums it all up:

You and me both. We’ve now reached that point, and as everyone expects this to be appealed it will be back to SCOTUS for the final word. I have no idea what to expect. The Chron has more.

Broader injunction issued to halt DFPS investigations of trans kids’ families

Good.

Texas’ child welfare agency is once again blocked from investigating parents who provide gender-affirming care to their transgender children. The injunction applies to any family that belongs to PFLAG, an LGBTQ advocacy group with more than 600 members in Texas.

The injunction also specifically protects a handful of families named in the suit, including the Briggles, outspoken advocates for transgender youth who were among the first to be investigated under this directive.

This is the latest chapter in a monthslong legal battle over whether providing medically indicated gender-affirming health care, under the guidance of a doctor, could result in a finding of child abuse by the state.

In February, following a nonbinding legal opinion from Attorney General Ken Paxton, Gov. Greg Abbott directed the Department of Family and Protective Services to investigate parents who provide gender-affirming care to their transgender children.

The Texas Supreme Court has ruled that Abbott had no grounds to direct DFPS to investigate these families but overturned a statewide injunction on procedural grounds.

The American Civil Liberties Union and Lambda Legal brought another lawsuit after that first injunction was overturned, seeking protections on behalf of all members of PFLAG. Travis County District Judge Amy Clark Meachum granted that injunction Friday, three months after hearing arguments.

See here for the previous update and here for a copy of the ruling. This injunction will benefit a lot more families as noted by the story, but we know that it will be appealed and ultimately the Supreme Court will have the final word, so celebrate responsibly. Assuming it hasn’t been mooted by that point, there will be a trial on the merits in Judge Meachum’s court next June. The ACLU, Lambda Legal, Amber Briggle, and the Chron have more.

State delays report on maternal mortality until next year

Sorry, didn’t get to it, other things to do, you know.

Texas health officials have missed a key window to complete the state’s first major updated count of pregnancy related deaths in nearly a decade, saying the findings will now be released next summer, most likely after the Legislature’s biennial session.

The delay, disclosed earlier this month by the Department of State Health Services, means lawmakers won’t likely be able to use the analysis, covering deaths from 2019, until the 2025 legislative cycle. The most recent state-level data available is nine years old.

In a hearing this month with the state’s Maternal Mortality and Morbidity Review Committee, DSHS commissioner Dr. John Hellerstedt said the agency wanted to better align its methodology with that of other states, and that there hadn’t been enough staff and money to finish the review for a scheduled Sept. 1 release.

“The information we provide is not easily understood, and not easily and readily comparable to what goes on in other states,” Hellerstedt told the committee. “And the fact it isn’t easily understood or easily comparable in my mind leaves room for a great deal of misunderstanding about what the data really means.”

In a statement, DSHS spokesman Chris Van Deusen said the agency is reviewing its “internal processes” to try to develop more timely data.

“I expect we’ll be having conversations with legislators about what could be done to speed up the lengthy review process,” he said.

The setback comes four months before the start of the legislative session and two months before the midterm election, which has been dominated in part by the state’s new Republican-led abortion ban. Those restrictions have placed more scrutiny on the state’s maternal mortality rate, which is among the 10 highest in the country, according to national estimates that track pregnancy-related complications while pregnant or within a year of giving birth.

“There are a lot of us that want to know whether or not pregnancy in Texas is a death sentence,” said state Rep. Ann Johnson, a Houston Democrat and member of the Texas Women’s Health Caucus. “If we’ve got a higher rate of maternal mortality, we sure want to figure it out. You can’t figure it out if somebody’s sitting on the numbers, and that’s my worry.”

Like in other states, maternal outcomes in Texas are worse for Black women, who have died at about three times the rate of non-black women. This year’s findings were expected to drill further into the causes behind those disparities.

Rep. Shawn Thierry, a Houston Democrat who has described going through her own dangerous birthing experience, said the data is critical for understanding the role cesarean sections play in maternal deaths and whether implicit bias is playing a factor in the quality of maternal care for Black women.

“There is so much to unpack from the data,” Thierry said, adding that “no woman who chooses life should have to do so in exchange for their own.”

Members of the state’s maternal mortality committee, which compiles the official report, said they were disappointed by the decision to hold the preliminary findings.

“(We) do the work to honor the lives of women who lost their lives, and families that are forever impacted by the loss of a mother,” said Dr. Carla Ortique, the committee chair. “So there’s disappointment on both fronts: that we’re not honoring those women and families, and that we may be negatively impacting efforts to improve maternal health outcomes in our state.”

Pathetic. And typical. But don’t worry, even if the Lege has no current data on maternal mortality to take action on in the next session, they will be fully prepared to make abortion more illegal, because that’s what they care about. Daily Kos has more.

Republican Commissioners skip out again

Cowards.

Harris County’s two Republican commissioners skipped Tuesday’s Commissioners Court meeting, preventing county leaders from passing a property tax rate and proposed budget for the next fiscal year beginning on Oct. 1.

State law requires four members of the court be present to set the tax rate. With only the court’s three Democrats present, the county was forced to adopt what is known as the no new revenue rate, a levy that brings in the same amount of property tax revenue as last year.

[…]

County Judge Lina Hidalgo said the two Republican commissioners “don’t have a plan, they have a campaign ad.”

Hidalgo added that Ramsey and Cagle’s decision to skip the budget vote defunds law enforcement by millions of dollars.

[…]

With the adoption of the no new revenue rate instead of the proposed rate, the Harris County District Attorney’s Office will lose out on $5.3 million in proposed increases. The Sheriff’s Office will lose $16.6 million for patrol and administration, plus another $23.6 million for detention.

In response to that funding difference, Dane Schiller, spokesperson for the Harris County District Attorney’s Office, said in a statement: “It is crucial that our criminal-justice system be properly funded – the right number of deputies, courthouse staff and prosecutors – and it is up to our elected leaders to set funding priorities.”

Overall, the $2.1 billion budget will be $108 million less than the county had proposed.

The loss of the proposed increases for law enforcement comes after efforts by Texas Comptroller Glenn Hegar that briefly blocked the county from considering its $2.2 billion budget proposal.

The court had moved forward last week with the budgeting process after a lawyer for the state acknowledged in a Travis County courtroom that the comptroller had no authority to block the county from approving its budget. Hegar can take action only after the budget is approved and if it violates a new state law that bars local governments from reducing spending on law enforcement.

See here for the background. Yes, the Republican Commissioners have done this before. The Constitution allows for this form of minority rule. That doesn’t mean I have to respect it. The main thing I will say here is that I never want to hear any Republican whine about “defunding the police” again, not after the ridiculous bullshit we’ve had to endure from the Comptroller and now from these two clowns, who will be fully responsible for cutting the Sheriff and District Attorney’s budgets. Move on to something else, this has lost all meaning.

UT/Texas Politics Project poll: Abbott 45, Beto 40

Feels kind of familiar.

Gov. Greg Abbott leads his Democratic challenger Beto O’Rourke by 5 percentage points, according to a new poll from the Texas Politics Project at the University of Texas at Austin.

The survey found that Abbott received 45% of support among registered voters, while 40% supported O’Rourke and 4% supported third-party candidates. Three percent of respondents named “Someone else” as their choice, and 8% said they have not thought about the race enough to have an opinion.

The result is almost identical to the margin from when the pollsters last surveyed the race in June, finding Abbott ahead of O’Rourke 45% to 39%.

The latest survey also gave Republican incumbents single-digit leads in two other statewide races. Lt. Gov. Dan Patrick led Democrat Mike Collier by 7 points, and Attorney General Ken Paxton registered a 5-point advantage over Democrat Rochelle Garza. More voters remain undecided in those contests than in the gubernatorial election — 20% in the lieutenant governor’s race and 21% in the attorney general one.

See here for the previous UT/TPP poll, and here for the pollsters’ report. The Lite Guv and AG numbers are 39-32 for Patrick and 38-33 for Paxton, and I just don’t give much weight to results that have such high numbers of non-responses. Joe Biden clocks in with a 40-52 approval rating, up from 35-55 in June. Abbott was at 46-44, up from 43-46 in June.

You may look at this and conclude that there’s been no noticeable boost in Democratic fortunes since the Dobbs ruling. Based just on post-Dobbs polls (minus that Echelon poll) that may be correct. I will note, however, that Abbott has slowly been losing ground to Beto in this particular poll over time:

February: Abbott 47-37
April: Abbott 48-37
June: Abbott 45-39
August: Abbott 45-40

I will also note that this poll, like previous ones, has generic US House/Texas House questions. If you look in the crosstabs for this poll (questions 21 and 22), those numbers are 47-43 and 46-43 in favor of Republicans, respectively. It was 46-41 GOP for both in June, and 48-39 (Congress) and 47-39 (The Lege) for the GOP in April. So while maybe not a sharp turn, there has been a gradual bend all along.

Interview with Stephanie Morales

Stephanie Morales

After redistricting, there is at this time one swing State House district in Harris County, and that’s HD138. HD133 was closer in 2020 at the Presidential level, but no other Dem statewide candidate did better than 44%. HD132 is a notch or two behind, and no other district is close. If there’s one seat to flip, it’s this one where Stephanie Morales is running against freshman incumbent Lacey Hull. Morales, who was one of the first Dem candidates out there this cycle, is a former assistant District Attorney in Harris County who now runs her own criminal and juvenile defense firm. She’s been a substitute teacher in HISD and a volunteer for Rodeo Houston, and was a member of the Texas A&M Fighting Aggie band, which I as a longtime Rice MOBster respect. Here’s the interview:

PREVIOUSLY:

All interviews and Q&As through the primary runoffs
Michelle Palmer – SBOE6
Chuck Crews – HD128

As always, everything you could want to know about the Democratic candidates can be found at the Erik Manning spreadsheet.

Interview with Chuck Crews

Chuck Crews

This week I have two interviews with candidates for State Representative. Chuck Crews knows that he’s running in one of the reddest districts in Harris County in HD128, but he’s also running against one of the worst people in the Legislature. I’m talking about Briscoe Cain, avid election denier and forced-birth fanatic whose stated priorities for the next session are to punish everyone who has ever had anything to do with abortion. You couldn’t find a better contrast in Crews, a chemical engineer who has also worked in the insurance business before joining the Beto for Senate campaign in 2018 and becoming a fulltime activist, and who has both a deep understanding of issues as well as actual compassion and empathy. He has a tough challenge ahead of him but he’s facing it head on. You can hear us talk about it all here:

PREVIOUSLY:

All interviews and Q&As through the primary runoffs
Michelle Palmer – SBOE6

As always, everything you could want to know about the Democratic candidates can be found at the Erik Manning spreadsheet.

The one big question DPS still hasn’t answered about Uvalde

The Trib gets at something that I’ve mentioned a couple of times.

Ever since the Uvalde elementary school shooting left 19 students and two teachers dead, blame for the delayed response has been thrust on local law enforcement. The school police chief was fired and the city’s acting police chief was suspended.

But the only statewide law enforcement agency, the Texas Department of Public Safety, has largely avoided scrutiny even though it had scores of officers on the scene. That’s in part because DPS leaders are controlling which records get released to the public and carefully shaping a narrative that casts local law enforcement as incompetent.

Now, in the wake of a critical legislative report and body camera footage released by local officials, law enforcement experts from across the country are questioning why DPS didn’t take a lead role in the response as it had done before during other mass shootings and public disasters.

The state police agency is tasked with helping all of Texas’ 254 counties respond to emergencies such as mass shootings, but it is particularly important in rural communities where smaller police departments lack the level of training and experience of larger metropolitan law enforcement agencies, experts say. That was the case in Uvalde, where the state agency’s 91 troopers at the scene dwarfed the school district’s five officers, the city police’s 25 emergency responders and the county’s 16 sheriff’s deputies.

The state police agency has been “totally intransparent in pointing out their own failures and inadequacies,” said Charles A. McClelland, who served as Houston police chief for six years before retiring in 2016. “I don’t know how the public, even in the state of Texas, would have confidence in the leadership of DPS after this.”

Instead of taking charge when it became clear that neither the school’s police chief nor the Uvalde Police Department had assumed command, DPS contributed to the 74-minute chaotic response that did not end until a Border Patrol tactical unit that arrived much later entered the classroom and killed the gunman.

“Here’s what DPS should have done as soon as they got there,” said Patrick O’Burke, a law enforcement consultant and former DPS commander who retired in 2008. “They should have contacted [the school police chief] and said: ‘We’re here. We have people.’ They should have just organized everything, said, ‘What are all of our resources?’ And they should have organized the breach.”

[…]

[Despite testimony from DPS director Steve McCraw], DPS has sprung into action time and again when disaster strikes in Texas, which has proved key during mass shootings and public emergencies, local officials across the state said.

More than three decades ago, for example, state troopers helped local law enforcement confront a gunman after arriving within minutes of a shooting at a Luby’s Cafeteria in Killeen, about 60 miles north of Austin. The shooter killed himself after a brief exchange of gunfire.

“They knew that people were dying, and so they acted,” said Suzanna Hupp, a former Republican state representative whose parents died during the 1991 Luby’s massacre. She said that didn’t happen in Uvalde, adding that “clearly there was a command breakdown there.”

In a 2013 chemical explosion in West, about 70 miles south of Dallas, state troopers immediately took control of the law enforcement response at the request of the county’s emergency management coordinator. And in the 2018 shooting at Santa Fe High School, about 30 miles south of Houston, state troopers quickly fired at the gunman, according to local law enforcement officials who initially responded. The rapid engagement by school police and DPS was key to the gunman surrendering, district and county officials said.

“DPS had a tremendous role in Santa Fe of stopping the killing because they were among the first to arrive and they actually did what they were supposed to,” said Texas City Independent School District trustee Mike Matranga, the district’s security chief at the time of the shooting. He added that, in Uvalde, DPS supervisors “should have essentially asked [Arredondo] to stand down due to his ineffectiveness and taken over.”

Police experts and lawmakers pointed to clear signs that they believe should have alerted emergency responders that no one was in control. Arredondo, who resigned from his elected City Council seat in July and was fired from the school district on Aug. 24, remained inside the hallway on the phone during the shooting. He said he was trying to find a key to the classroom that the gunman was in. Investigators later determined that the door was likely unlocked. The school police chief did not identify himself as the incident commander and told The Texas Tribune he never issued any orders; his lawyer later said his firing was unjust. In a letter, Arredondo’s attorneys said the police chief “could not have served as the incident commander and did not attempt to take that role” because he was on the front lines.

Separately, no command post was set up outside of the school, which lawmakers noted should have been an indicator to responding officers that no one was in charge.

[…]

The disconnect over who should take charge and when exemplifies a need for detailed planning and frequent training between larger law enforcement agencies and smaller departments, police experts told ProPublica and the Tribune.

Larger agencies with more personnel, equipment and training should have agreements with school districts that clearly state that they will assume command upon arriving at critical incidents that include active shooters, hostage situations and explosive devices, said Gil Kerlikowske, a former Seattle police chief and CBP commissioner until 2017. He and other experts said that even if school police are designated as the lead, the role of every law enforcement agency in the region should be specified.

San Antonio, one of the state’s biggest police departments, has such agreements with local school districts and universities that name the bigger city police agency as the incident commander in the event of a mass shooting. After the Uvalde shooting, San Antonio police Chief William McManus met with school officials in his city and reminded them that his agency would take charge in an active shooter situation.

McManus, whose officers arrived in Uvalde after the gunman was killed, said in an interview that because of the confusion at the scene, he felt the need to emphasize how his department would respond to such an incident in San Antonio.

It is unclear what, if any, involvement DPS or another law enforcement agency had with the Uvalde school district’s mass shooting plan because those governmental bodies declined to release such documents or answer questions. The state police did not have a written memorandum of agreement with the school district outlining its role in such situations, according to DPS records.

Who’s in charge in these situations is a question I’ve raised a few times in writing about this, when the legislative report was released and when the HISD board addressed the question. This is an area where I believe the Lege can and should take action, by requiring school districts (and hell, colleges and universities and community colleges) to have some kind of agreement with either local or state law enforcement agencies and ensuring some minimum standards are met. It’s also a big question for DPS to answer: Why didn’t you take over at Uvalde? Steve McCraw has addressed that already, but I don’t think we should believe him. Certainly, not as long as DPS is being sued over its refusal to release its information to the public about their actions, anything McCraw says should be taken as self-serving first and foremost. And those same questions also go to Greg Abbott, who is McCraw’s boss and patron. Both of them have gotten away with doing nothing for a long time. We need to make sure that time runs out.

Five DPS agents being investigated for their Uvalde actions

It’s a start. It just can’t be the end.

Five Texas Department of Public Safety officers who responded to the Uvalde school shooting in May will face an investigation into their actions at Robb Elementary, the agency said.

The officers were referred to the inspector general’s office, which will determine if they violated any policies in their response to the deadliest school shooting in Texas history, said DPS spokesperson Travis Considine. The inspector general’s office will also determine if the five officers will face disciplinary actions.

The investigation was first reported by the Austin American-Statesman and KVUE.

[…]

The announcement of an investigation into five DPS officers coincided with the first day of classes for Uvalde students, which marks 15 weeks since the shooting. Following Arredondo’s firing, residents called for further accountability from public officials, including the firing of school district employees.

Arnulfo Reyes, a Robb Elementary teacher who was shot and injured in Room 111, said the investigation into DPS officers “will give the families a sense of accountability” that they’ve demanded.

Reyes didn’t go back to teach his fourth-grade class Tuesday because he is still mentally and physically recovering from injuries to his left arm and lower back. Before the gunman was confronted, Reyes could hear officers outside of his classroom trying to negotiate with the 18-year-old. When officers stopped talking, Reyes thought the officers had “abandoned” him and his students.

He added that he hopes other agencies’ officers are also investigated.

“It’s a glimmer of hope that there will be justice served,” Reyes said.

The story goes into the House committee investigation and report, and the responses from DPS director Steve McCraw, among other things with which we are familiar. I say this is a good start because there needs to be a transparent investigation into everyone’s actions on that horrible day. It’s not just Pete Arredondo and the local cops, and it’s also not just DPS. We need a full accounting of what happened, with consequences as needed for those who should face them. Until then, this is all unfinished business.

SCOTx maintains judicial bypass rules for abortion

Good news.

The Texas Supreme Court has opted to keep in place a legal process that allows minors to seek a judge’s approval to have an abortion without parental consent, though state law now bans the procedure in most circumstances.

Chief Justice Nathan Hecht had asked an advisory committee to the high court to make a recommendation on the matter last month, citing the U.S. Supreme Court ruling in June that overturned federal protections for abortion as the reason for the reconsideration.

The committee unanimously voted to keep in place the process, known as judicial bypass, and add new language spelling out that it will only be available to minors in the extremely limited circumstances allowed by Texas law: when their life or major bodily functions are at risk.

See here and here for the background, and here for the actual rules. I’m glad to see that my initial fear that this would be a disaster was off base. That said, while this is good news it’s not great news, and that’s because the judicial bypass process is even rarer than it was before the Lege passed that vigilante bounty hunter law. As the story notes, in the last month before that law was passed, 20 minors were able to obtain a bypass. In the first month after it passed, that number was two. I guarantee you, the need for this didn’t drop by ninety percent. Just the ability to get the care these girls need. The fact that it didn’t fall all the way to zero counts as a win these days.

Comptroller caves on phony “defunding” claim

In the end, he folded like a lawn chair.

Harris County is moving through the process of passing a fiscal 2023 budget with a 1 percent dip in the property tax rate, after the specter of the state blocking its approval eased in a Travis County courtroom Tuesday.

Prospects for approval of that $2.2 billion budget and the new tax rate next week remain unknown, however, hinging on whether enough members of Commissioners Court show up.

Texas Comptroller Glenn Hegar, despite recently threatening to block Harris County’s proposed budget over its alleged defunding of law enforcement, has not formally determined that the county violated state law or otherwise taken action to prevent county leaders from adopting a budget for the upcoming fiscal year, a state attorney said in court Tuesday.

The acknowledgment came as part of a county lawsuit challenging Hegar’s claims, including those from a letter last month in which the Republican comptroller told county officials they would need voter approval to pass their budget for the fiscal year starting Oct. 1.

Commissioners Court moved ahead with its budgeting process in the meantime, meeting Tuesday to consider the county’s property tax rate — a procedural step before the court can vote on next year’s budget. Officials first must propose the tax rate, the step taken Tuesday, then hold a public hearing, scheduled for Sept. 13. At that meeting, provided enough commissioners show up, the court can approve the rate and the budget.

On a 3-2 vote, the court on Tuesday proposed the overall tax rate for the county — comprising four rates covering county operations, the Harris Health system, the flood control district and the Port of Houston — at 57.5 cents per $100 of assessed value. That represents about a 1 percent decrease from the current rate of 58.1 cents per $100.

[…]

In an emergency hearing before Travis County state District Judge Lora Livingston, attorney Will Thompson of the Texas Attorney General’s Office — which is representing Hegar and Gov. Greg Abbott in the lawsuit by the county — said the dispute “may be a situation where there’s much ado about nothing and the parties are in more agreement than they realize.”

“The comptroller just has not made a final determination,” Thompson said. “He has not done anything that binds Harris County at this stage. Harris County remains free to adopt a budget, in its normal process, following its normal rules for having public meetings and things like that.”

Instead of ruling on Harris County’s request for a temporary order preventing Hegar from blocking Harris County’s budget, Livingston told attorneys for the county and state to, essentially, put Thompson’s comments in writing in a formal court filing. She gave the two sides until Wednesday afternoon to submit the document.

The statement from Thompson came a week after Harris County Administrator David Berry sent Hegar a letter asking him to clarify whether he had “made or issued a determination that Harris County’s proposed budget violates the law” or prevented the county from adopting a budget.

Hegar responded by encouraging Berry to resolve the issue with the Harris County constables who initially complained about their funding.

“I understand that you want assurances from my office, but only Harris County can resolve this issue and clear the path to adopt its budget,” Hegar wrote.

See here and here for the background. It’s very clear from the state’s response to the lawsuit is that they were bluffing the whole time and they knew it. This is why the lawsuit was the right response, despite the whining from Constables Heap and Herman. You don’t concede when you’re right. Kudos to Judge Hidalgo, Commissioners Ellis and Garcia, and County Attorney Menefee for properly fighting this.

The rest of the story is about whether the two Republican members of the Court will break quorum again in order to prevent the budget and property tax rate from being passed. I don’t feel like deciphering their eleven-dimensional chess strategy this time around, so let’s just wait and see what happens. If we get the election results we want, we won’t have to worry about these shenanigans again.

Plan B

I have three things to say about this.

On Friday, Gov. Greg Abbott told The Dallas Morning News that rape victims can take emergency contraception, like Plan B, to prevent a pregnancy. With abortion now banned in Texas, even in instances of incest or rape, the governor recommended the use of emergency contraception to ensure a victim of rape does not become pregnant.

But for the lowest-income people in Texas, emergency contraception isn’t widely accessible, advocates said — a consequence of the significant number of people of childbearing age who are uninsured and the state’s lack of programs that provide access to treatment like Plan B.

During a pre-recorded segment of Lone Star Politics, Abbott said of rape victims, “By accessing health care immediately, they can get the Plan B pill that can prevent a pregnancy from occurring in the first place. With regard to reporting it to law enforcement, that will ensure that the rapist will be arrested and prosecuted.”

[…]

After signing Senate Bill 8 into law last September, which banned abortions after about six weeks of pregnancy and didn’t provide exceptions for rape or incest, Abbott said the state’s goal was to eliminate rape. Abbott’s office did not return a request for comment on Saturday.

In 2020, Texas ranked 16th in the nation for total number of forcible rape cases per capita.

Emilee Whitehurst, the CEO of Houston Area Women’s Center, said a significant number of rapes aren’t reported, and the actual number of victims is higher than those that seek treatment at a hospital.

Whitehurst added that emergency contraception is not a substitute for abortion access in any way, but those responsible for the abortion ban in Texas have left victims of sexual assault with few options. She said it was insulting to hear that Plan B should be relied on to prevent pregnancies given the dangers victims of sexual assault already face.

“To presume Plan B could be a substitute for abortion care represents such a fundamental misunderstanding of the reality of women’s lives and our biology,” Whitehurst said.

While emergency contraception is available for purchase over the counter, it can cost $50 at a pharmacy. Some insurance plans cover the cost of emergency contraception, but those who are uninsured have to pick up that additional expense.

For women of childbearing age in Texas, more than a quarter had no health insurance in 2017 — the highest rate in the nation. This is caused, in part, because Texas has not expanded Medicaid and has one of the lowest eligibility standards in the country. A single parent with three children would have to earn less than $400 a month to qualify for Medicaid.

In addition to the lack of coverage, the state’s programs that target women’s healthcare don’t provide emergency contraception. Neither the Family Planning Program nor the Healthy Texas Women Program provide emergency contraception.

Title X clinics remain one of the few options for low-income people to access emergency contraception at an affordable cost. However, these federally-funded reproductive health clinics don’t operate in every community in the state.

1. How’s that plan to eliminate rape going, Greg? Making any progress on it?

2. Boy, it sure is a good thing that health care is so easily and affordably accessible in this state, especially for women and people of color and people who don’t have insurance.

3. It is true that Plan B remains legal in Texas, and that the author of SB8 insists that he doesn’t want to make Plan B illegal – for now, anyway. But come on, does anyone believe that the forced-birth fanatics don’t have the various types of emergency morning-after contraception in their sights? Those people already think Plan B is an abortifacient. It’s just a matter of time, unless there are other laws in place to ensure that it remains legal. In the meantime, here’s a question Greg Abbott will not want to answer: If a bill to ban Plan B passes the Legislature, would he sign it or veto it? We know what Beto would do. I think we can also be pretty sure about Abbott.

“Safe haven” laws are also not a replacement for abortion

Continuing a theme.

What are safe haven laws?

flurry of Houston baby abandonments in the ’90s led Texas to become the first state to enact a safe haven law in 1999.

Created as an incentive for parents in crisis who are unable to care for their newborns, the law allow parents to drop off babies 60 days or younger at any hospital, fire station or EMS station in the state, no questions asked.

The baby will then be protected and given medical care until a permanent home is found. Provided the baby arrives unharmed and safe, the parents avoid prosecution for abandonment or neglect.

Do people actually use the laws?

Roughly 400,000 babies are born in Texas each year, but data shows that a small fraction of people actually utilize the option.

Just 172 infants have been relinquished under the state’s safe haven law since 2009, according to data from the Department of Family and Protective Services.

Why?

Most families have likely never heard of it, said Sheila M. Katz, a sociology professor at the University of Houston.

This is especially true for middle- and low-income families who may not have the “extra bandwidth” to explore something until they’re in the situation, Katz said.

[…]

Katz said safe haven laws are “very good” at doing what they’re designed to do, but weren’t created to be an option for people unwilling to continue pregnancies.

“It’s taking a law and trying to make it look like a band-aid for bigger issues,” she said.

“If a woman is in an unhealthy relationship and decides to get an abortion to sever ties,” Katz added, “a safe haven law will not help in this situation.”

Or, to put it another way, people who choose to get abortions do so because they don’t want to be pregnant. There’s a separate decision made about what to do after giving birth once that one has been made. The impression I get is that the kind of person who would dump a baby at a fire station is someone who felt truly desperate and trapped and without any other option. While it is very likely that the post-Dobbs criminalization of abortion in Texas will increase that population, the availability of abortion pills and the still-robust abortion access network may mitigate that. I could be wrong, of course – we may in fact see enough of an increase in that population to drive an equivalent increase in the number of babies getting deposited at these locations. If you think that’s something to cheer about, well, you know what I think of you.

All interviews and judicial Q&As with nominees so far

Back in February, right before the primary, I posted a list of all of the candidate interviews and judicial Q&As I had done. A couple more Q&A responses came in after that, and I did some further interviews for the primary runoffs, so that post is out of date and also now contains people who will not be on the November ballot. So with that in mind, here’s a full updated list as I prepare to bring you more of these for November. Enjoy!

Interviews

Duncan Klussman, CD38

Jay Kleberg, Land Commissioner
Janet Dudding, Comptroller

Staci Childs, SBOE4

Sen. John Whitmire, SD15

Jolanda Jones, HD147

Lesley Briones, Harris County Commissioners Court Precinct 4
Carla Wyatt, Harris County Treasurer
Marilyn Burgess, Harris County District Clerk (Incumbent)

Judicial Q&As

Cheri Thomas, 14th Court of Appeals, Place 2

Gemayel Haynes, 183rd Criminal District Court
Katherine Thomas, 184th Criminal District Court
Andrea Beall, 185th Criminal District Court
Beverly Armstrong, 208th Criminal District Court
Judge Chris Morton, 230th Criminal District Court
Angela Lancelin, 245th Family District Court
Judge Hilary Unger, 248th Criminal District Court
Judge Dedra Davis, 270th Civil District Court
Dianne Curvey, 280th Family District Court
Teresa Waldrop, 312th Family District Court
Judge Natalia Oakes, 313th Family District Court
Judge Leah Shapiro, 313th Family District Court
Veronica Monique Nelson, 482nd Criminal District Court

Manpreet Monica Singh, County Civil Court At Law #4
Porscha Natasha Brown, County Criminal Court At Law #3
Judge Kelley Andrews, County Criminal Court At Law #6
Judge Andrew Wright, County Criminal Court At Law #7
Erika Ramirez, County Criminal Court At Law #8

Steve Duble, Justice of the Peace, Precinct 1 Place 2
Dolores Lozano, Justice of the Peace, Precinct 2 Place 2
Judge Lucia Bates, Justice of the Peace, Precinct 3 Place 2

As before, you can see a full list of my interviews and a whole lot more info about the Democratic candidates on the Erik Manning spreadsheet. Look for many more to come starting tomorrow.

Investigating abortions is Houston’s “lowest priority”

So says Mayor Turner, and I’m glad to hear it.

Mayor Sylvester Turner

Mayor Sylvester Turner said Thursday that investigating abortions under the state’s near-total ban is the city’s “lowest priority” when it comes to crime.

Turner said the city would continue to marshal its limited law enforcement resources toward driving down violent crime. While the city cannot ignore the law, Turner said, he wanted to assure medical professionals and pregnant Houstonians that police here will not seek to interfere in sensitive health care decisions.

“I want women to get the best health care that we can offer in this city, and I don’t want doctors or health care providers or practitioners to second-guess themselves in providing the best health care,” Turner said at a City Hall news conference. “We cannot undo the law, it is on the books. It is what it is. We cannot supersede it, but we certainly can prioritize how our resources will be used in this city.”

[…]

Matt Slinkard, the city’s executive assistant police chief, acknowledged the city is duty-bound to enforce the law, but said Houston Police Department officers would remain “laser-focused” on violent crime. Police officials told City Council this week that violent crime is down 10 percent year-over-year, though it remains above pre-pandemic levels.

Slinkard said he was not aware of any complaints filed with the department since the law took effect last week. The mayor also sent a letter to District Attorney Kim Ogg outlining those priorities.

Turner spoke at City Hall along with members of the city’s women’s commission and council members, a majority of whom are women.

Like I said, good to hear. As you know, multiple other Texas cities have taken similar action, via the passage of an ordinance called the GRACE Act. Those have spelled out the things that the city and its law enforcement agency intend to de-emphasize to the extent that they can. One thing those cities have in common is that they all operate under the weak mayor/city manager form of government. I feel pretty confident that’s why they passed these ordinances via their city councils – their mayors don’t have the executive authority to set those policies on their own. It’s possible there could still be a Council vote of some kind on this, but for the most part I’d expect this to cover it. I really hope it’s all an academic exercise, that in a few months we’ll have a Congress and a Senate that can pass a national abortion rights law. Until then, every bit of local action is appreciated.

Of course the redistricting lawsuit trial will be delayed

All we ever get is delays.

The legal fight over the shape of Texas political representation for the next decade won’t be decided until next year after a federal panel agreed Tuesday to delay a trial over new political maps.

The federal three-judge panel hearing the case pushed the start of the trial, which was originally scheduled for Sept. 28, following a flurry of disputes over discovery that left both the state and the various plaintiff groups questioning whether they’d have enough time to prepare to make their cases in a federal court in El Paso.

The court said it would announce a new trial at a later time.

The maps passed by the Legislature in 2021 have already gone into effect and are being used for the first time in this year’s elections, but the litigation could decide whether those maps need to be changed to ensure that voters of color have a fair say in choosing their representatives in elections for years to come.

The state faces a broad catalog of challenges to its four political maps, including its congressional and statehouse maps, that could affect a litany of districts. The legal claims, stemming from nearly a dozen consolidated lawsuits, include allegations of intentional discrimination, vote dilution and racial gerrymandering. The Republican-drawn maps largely serve to bolster the party’s dominance, giving white voters greater control of political districts throughout the state.

At issue in the delay were ongoing fights to compel Gov. Greg Abbott, the Texas attorney general’s office and other Republican elected officials to turn over thousands of documents that the state has been fighting to keep concealed. With less than a month until the scheduled start of the trial, the state and the plaintiffs groups were also jostling over various depositions in which state lawmakers relied on asserting legislative privilege to avoid divulging information on how the maps were drafted.

Redistricting cases are complex, with plaintiffs carrying the burden of proving wrongdoing by the state. The release of the disputed documents, the plaintiffs argued, could reveal new facts that could require additional depositions.

“Were the September 28 trial setting to hold, the Court could rule in advance of the upcoming legislative session. This would have been a clear benefit to all parties. But a ruling on only partial evidence does justice for none,” some of the plaintiffs wrote in a joint advisory filed with the court last week.

But the delay is not without risk.

This is the joint lawsuit with multiple plaintiffs; the Justice Department lawsuit, which survived a motion to dismiss in June, is being heard separately. The plaintiffs in this lawsuit scored a couple of wins recently relating to documents that must be disclosed to them. Those rulings obviously weren’t the end of the dispute, and so we have delays. The risk mentioned is that a final ruling would not be made in time for the Lege to make any required adjustments to the maps for the 2024 election. Remember, unless the primaries get moved back, which would affect the Presidential races, we need maps by October or so, to accommodate filing season and any updates that county election officials need to make. That’s not a lot of time. We’ll see when the new trial date is scheduled, but keep that time frame in mind. Unless we want to wait until 2026 – which, as we know from previous decades’ experience, is hardly out of the norm – the clock is very much ticking.

Harris County approves the option of suing Comptroller over baloney “defunding” claim

Good.

Harris County Commissioners Court on Wednesday authorized a pair of private law firms to sue Texas Comptroller Glenn Hegar, who accused the county of defunding law enforcement last week, forcing a halt to consideration of its $2.2 billion budget.

The move, approved by a 3-1 vote, came a week after Hegar sent a letter to county officials saying the court could not approve its proposed fiscal 2023 budget without approval of voters because of a change in policy that he said would result in the county funding two constable offices at a lower level in violation of a new state law.

The constables — Precinct 4 Constable Mark Herman and Precinct 5 Constable Ted Heap — had complained to Gov. Greg Abbott last year after the county changed its policy to do away with “rollover” budgeting that had allowed departments to keep unspent funds and use them in future budget cycles. Hegar’s letter said the change would result in the county, under its proposed budget, cutting funding to the two constable offices by $3 million.

[…]

In a letter to Hegar on Tuesday, County Administrator David Berry asked the Comptroller’s Office to clarify its investigation and whether it prevents the county from adopting a tax rate and budget.

The comptroller responded Wednesday by modifying his claim, alleging the proposed budget would result in a cut in law enforcement spending for a different reason — by comparing the proposed spending plan to this year’s 2022 short fiscal year budget, when broken down by month.

In addition to eliminating rollover budgeting, the county is changing its fiscal year to begin Oct. 1 rather than March 1. To accomplish that, Commissioners Court planned to pass two budgets this year. The first, a shortened budget, was approved in February and runs through September. The second, beginning Oct. 1, will span a full year.

Berry criticized the comptroller for using “fuzzy math,” saying the short fiscal year budget covered 16 pay periods.

“There’s no other reasonable way to do it,” he said. “When you properly annualize the budget, it’s clearly higher in FY23 (the proposed budget).”

County Judge Lina Hidalgo said Hegar’s second letter suggests the Comptroller’s Office is walking back its original defunding claim.

“They’re beginning to realize that the allegations they made make little sense,” Hidalgo said. “They’re moving away from talking about the rollover. They know that that’s absolutely nonsensical and are trying to take a different tack that also doesn’t make sense.”

Berry also took issue with the comptroller’s assertion the county should work the issue out with the constables.

“We believe we’ve complied with the law,” Berry said. “If the comptroller doesn’t, they have to explain. All we’ve gotten so far is some fuzzy math.”

At Wednesday’s meeting, Commissioners Court hired two law firms to represent the county — Yetter Coleman LLP and Alexander Dubose & Jefferson LLP — in a split vote, with the court’s three Democrats in favor and Republican Precinct 4 Commissioner Jack Cagle opposed. Precinct 3 Commissioner Tom Ramsey was absent.

Hidalgo said she is willing to move forward through legal action or negotiation, but the county needs to be careful in how it responds to allegations of violating the new state law.

“I am pretty opposed to giving in to any kind of extortion,” Hidalgo said. “I don’t know what precedent that would set.”

See here for the background. This new explanation is even dumber and more insulting than the original one. Of course an eight-month budget is going to have less of pretty much everything in it than a 12-month budget. If the Comptroller had been at all serious about this, the matter could have been easily resolved. Instead, they charged ahead with this stupid allegation, which unfortunately comes with the power to prevent the county from passing a budget, a situation which as noted would result in an actual decrease in funding to the Sheriff and Constables. It’s like they looked around to make sure there was a rake in easy stepping distance before they moved forward.

The response from Harris County – minus Commissioner Cagle, of course – and Judge Hidalgo was entirely appropriate. The county cannot take lightly an accusation that it is violating the law. The fact that the accusation itself is completely specious is almost beside the point, but given that it is there are only two acceptable resolutions: The Comptroller retracts its claim and absolves Harris County of any alleged wrongdoing, so that it can pass its budget as planned, or we go to court and let them try to prove their foolish claims. No concessions, because there’s nothing to concede.

Which brings me to this:

Herman and Heap said the court’s action on Wednesday took them by surprise. The two Republican constables said they had met with county officials late last week and Monday and thought they had come up with a solution.

The pair, Herman said, had agreed to write letters saying their concerns had been resolved. Hegar would have to write his own letter rescinding his previous communications with the county.

“Both sides were agreeing,” Herman said. “We agreed to put this thing to rest.”

Then, he said, he learned that Hidalgo had put an item on the agenda for Wednesday’s special meeting to pursue possible legal action against Hegar.

“It’s almost like a slap in the face,” he said. “We’re kind of disappointed. We’ll see what happens.”

Herman said if the county continues forward with a strategy of suing Hegar, he and Heap would request their own legal counsel to represent their interests in the broadening fight.

In a brief text message, Heap confirmed he had met with county officials in recent days and echoed Herman’s frustration.

“We have been in negotiations with the office of budget management for several days and I was very encouraged with the progress,” he texted. “However, the actions of Commissioners court today as well as some of their post on social media platforms disappoint me.”

You dudes started this fight. If you don’t like the way the Court is finishing it, that’s tough. Maybe don’t be such crybabies next time.

Abbott weasels on raising the minimum age to buy an assault weapon

Typical.

Gov. Greg Abbott said Wednesday that it would be unconstitutional to increase the minimum age to buy assault-style rifles from 18 to 21 years old — a key proposal Uvalde parents have called for after an 18-year-old gunned down their children’s school in May.

“It is clear that the gun control law that they are seeking in Uvalde — as much as they may want it — has already been ruled as unconstitutional,” Abbott said at a reelection campaign event in Allen.

The gunman in Uvalde bought two AR-15-style rifles days after he turned 18, the legal purchasing age in Texas, and used those weapons to kill 19 students and two teachers at Robb Elementary.

In the aftermath of the shooting, Texas Senate Democrats have asked for a special legislative session to increase the minimum age to purchase a semi-automatic rifle. Families of Uvalde victims and survivors also have pushed for a three-year increase to the legal purchasing age.

[…]

In the days after the shooting in Uvalde, Abbott was asked if he would consider banning assault-style weapons for 18-year-olds. The governor at the time appeared hesitant.

“Ever since Texas has been a state, an 18-year-old has had the ability to buy a long gun, a rifle. Since that time, it seems like it’s only been in the past decade or two that we’ve had school shootings. For a century and a half, 18-year-olds could buy rifles and we didn’t have school shootings. But we do,” Abbott said. “Maybe we’re focusing our attention on the wrong thing.”

Abbott that day was immediately interrupted by state Sen. Roland Gutierrez, D-San Antonio, who said, “Your own colleagues are telling me, calling me and telling me an 18-year-old shouldn’t have a gun. This is enough. Call us back, man.”

“Simply doing nothing is about as evil as it comes,” Gutierrez later said in June.

See here for the ruling Abbott refers to. I’ll get to the legal stuff in a minute, but first as you might imagine, not everyone cared for this response.

A video of Abbott making the claim circulated on social media, drawing reactions from Texas leaders and Uvalde parents. Brett Cross, father 8-year-old victim Uziyah Garcia’s father, tweeted a video in response to Abbott, noting the “parents matter” signs.

“What parents are you referring to actually? Because it’s not us in Uvalde,” Cross said. Cross also claimed that during a conversation he had in person with Abbott, the governor shut down any talks about changing gun laws because it wouldn’t have changed anything. Abbott allegedly pointed to the 17-year-old gunman from the Santa Fe High School shooting in 2018, Cross said.

“Except it would have,” Cross said. “You see that piece of s–t that murdered our children legally bought that damn gun. You could do something about it. You’re just too chicken s–t to do it. So don’t sit there and act like you’re for the people, that you’re for the parents, that you’re for the children, because you don’t give a damn.”

Cross continued: “But I implore you, make a liar out of me. Call a special session. Or don’t and prove me right. The choice is yours buddy.”

Abbott’s office did not immediately on Wednesday return a request for comment on his conversation with Cross.

The video also drew reactions from other Texas leaders. Austin Mayor Steve Adler tweeted in response: “Seven states have raised the minimum age to 21. It is possible.”

Abbott’s Democratic gubernatorial opponent Beto O’Rourke denied the governor’s claim, writing on Twitter: “Yes, it is. And thanks to the leadership of the families in Uvalde, we are going to do it.”

David Hogg, gun control activist and survivor of the Stoneman Douglass High School shooting tweeted: “Bulls–t we did it in Florida.”

The most obvious thing to point out here is that this ruling can be, and should be appealed. Indeed, the judge in question put his ruling on hold for 30 days pending appeal. That stay can be extended by the appeals court or SCOTUS, and at this point we don’t know what a final ruling will be. That ruling was about carrying handguns, and the demand here is about buying assault weapons, so even if the ruling in this case is eventually upheld, it doesn’t mean that a law raising the age to 21 for assault weapons would be illegal under it. Actual legal experts agree with me on these points!

At least seven states — California, Florida, Hawaii, Illinois, New York, Vermont and Washington — have passed legislation raising the legal purchase age for sales of long guns, and several are still cases regarding those laws are winding their way through the courts.

“It’s an unsettled question whether states can restrict guns to people under 21,” said Adam Winkler, a UCLA law professor who studies gun policy. “There are court cases going both ways … This is one of many issues the Supreme Court is going to have to take up in the coming years.”

[…]

David Pucino, deputy chief counsel for the Giffords Law Center to Prevent Gun Violence, said there is a well-grounded case to be made that age restrictions are lawful and in keeping with historical laws.

“There is really strong law and strong history to support the principle that you can have these restrictions,” Pucino said. “Historically, the age of 21 was the age of majority (legal adulthood); it’s only a far more recent development that it’s been lowered to the age of 18.”

Pucino added that the cases to which Abbott refers had to do with carrying of handguns, not purchasing of assault weapons.

“An important distinction is that handguns are recognized by the Supreme Court as being the quintessential weapon for self-defense, and that is absolutely not the case with assault weapons,” Pucino said. “These rifles in particular have offensive capabilities, and that’s their distinguishing feature is the fact that they can be used to inflict an incredible and horrifying amount of damage in a very short period of time.”

Greg Abbott is a lawyer and he knows these things perfectly well. He just doesn’t want to deal with them, and so he dodges the question. Oh, and did I mention that the state of Texas is the defendant in that handgun lawsuit? The state of Texas is the party that would be making the appeal of that ruling. If it chooses to, of course, which is also a thing Greg Abbott has a say in. Don’t believe his “we can’t do anything” baloney.

Pension reform law reinstated by appeals court

A win for the city.

Mayor Sylvester Turner

A state appeals court on Tuesday tossed out a ruling that jeopardized part of Houston’s pension reform plan, reversing a victory the firefighters’ pension board had scored in late 2020.

The Houston Firefighters’ Relief and Retirement Fund had argued that legislation passed in 2017 as part of Mayor Sylvester Turner’s pension reform package prevented the board from determining “sound actuarial assumptions” — projections of future pension costs and benefits — by itself, which it said violated the Texas Constitution.

Texas’ 1st Court of Appeals ruled Tuesday that the Constitution does not give the board an exclusive right to determine those assumptions, upholding the law.

[…]

The dispute involves Turner’s landmark pension reform legislation passed in 2017. Among other things, the legislation affected how much money the city contributes to the police, fire and municipal pension funds each year. The changes to that part of the law dictated some of the actuarial assumptions that must be used in that calculation, including a 7 percent assumed rate of return on investments. It also set a process for determining the rate when the pension board and the city actuaries offered differing proposals.

The board, though, argued that the Texas Constitution gives it “exclusive authority” to choose actuarial assumptions, and therefore the new law violated the Constitution by giving the city a role in that process. The Constitution says pension systems “shall… select… an actuary and adopt sound actuarial assumptions to be used by the system or program.”

In Tuesday’s ruling, Justice Richard Hightower said that is not the case. The ruling marks the second time the challenged provision has been upheld by appeals courts.

“(T)he word ‘shall’ does not, by itself, mean or imply ‘exclusive authority,’” Hightower wrote. “The commonly understood meaning of ‘shall’ does not imply that the party with a duty to perform — who ‘shall’ perform — does so exclusively or that the duty cannot be regulated.”

See here for the previous update, and here for the opinion. Given that it apparently turns on the definition of “shall”, I did not read it, on the expectation that my eyes might permanently glaze over. The firefighters have vowed to appeal to the Supreme Court. Given that it took almost two years to get an opinion on the previous appeal, you can guess for yourself how long it will likely be before the next update.

Harris County looks to sue over Comptroller’s BS “defunding” claim

Tell it to the judge.

Harris County Commissioners Court this week is expected to hire an outside law firm to take legal action against the state and Comptroller Glenn Hegar, who accused the county of defunding law enforcement in violation of state law.

The accusation by Hegar, delivered in a letter to county Judge Lina Hidalgo last week, blocks Harris County from approving its proposed $2.2 billion budget for the fiscal year that begins Oct. 1.

The court will hold a special meeting Wednesday to consider hiring the law firm of Alexander Dubose & Jefferson LLP to pursue legal action against Hegar and other state officials.

Hegar threw the curveball just before county officials presented their proposed spending plan last tuesday, saying the county should reconsider its budget plan or gain voter approval for it. The letter, however, was sent on Monday, the last day the county could get a measure onto the November ballot.

Senate Bill 23, passed by the Texas Legislature and signed by Gov. Greg Abbott last year, bars counties with a population of more than 1 million from cutting law enforcement spending without the approval of voters.

The defunding accusation was sparked by two Republican Harris County constables — Precinct 4 Constable Mark Herman and Precinct 5 Constable Ted Heap — who had complained to Gov. Greg Abbott after the county changed its policy last year to do away with “rollover” budgeting that had allowed departments to save unspent funds and use them in future budget cycles.

Herman and Heap did not respond to requests for comment.

In his letter, Hegar said doing away with the rollover funds resulted in a loss of $3 million previously dedicated to the constables office in fiscal 2021. However, by preventing the county from adopting its proposed budget, the letter could cost the sheriff, constables and district attorney’s office an additional $100 million in funding included in the new spending plan, county officials said.

On Wednesday, Commissioners Court could vote to authorize two outside law firms to file a lawsuit against the comptroller. If the county does pursue legal action, other state officials could be named, as well.

See here for the background on this completely ridiculous claim. The vote in Commissioners Court is today; I’ll be interested to see if it’s unanimous or not. I also have no idea what to expect from the courts, but I sure hope they get it right, because this is a terrible precedent to set otherwise. Finally, a special shoutout to Constables Herman and Heap for going radio silent after leaving this bag of poop on the Court’s front porch. Mighty courageous of you two there.

The gaps in Texas’ background check law

From Pro Publica:

In the spring of 2009, Elliott Naishtat persuaded his colleagues in the Texas Legislature to pass a bill that he believed would require the state to report court-ordered mental health hospitalizations for Texans of all ages to the national firearms background check system.

Nearly two years had passed since a student with a history of serious mental illness had gone on a deadly shooting rampage that left 32 dead at Virginia Tech. And Naishtat, then a Democratic state representative from Austin, argued that Texas was as vulnerable as Virginia had been to such mass shootings because it didn’t require the reporting of involuntary mental health commitments to the FBI’s National Instant Criminal Background Check System, known as NICS. Federally licensed dealers are required to check the system before they sell someone a firearm.

“This bill will ultimately save lives, and I hope you’ll give it your most serious consideration,” Naishtat said when he introduced the measure.

But 13 years after the legislation became law, following a string of mass shootings carried out by troubled young men, an investigation by ProPublica and The Texas Tribune has uncovered a major gap in the law and its implementation.

Despite language in Naishtat’s bill that says local courts should report to the state’s top law enforcement agency any time a judge orders any person, regardless of age, to receive inpatient mental health treatment, the news organizations found that they are not reporting juvenile records because of problems with the way the law was written, vague guidance from the state and conflicts with other Texas laws.

[…]

When it comes to the reporting of adult mental health records, the Texas law has been highly effective. By the end of 2021, the state had sent more than 332,000 mental health records — the sixth-highest number in the country — to the national background check system, according to FBI data.

Unlike adult records, juvenile records are tightly controlled under state law, which includes criminal penalties for officials who release them unlawfully. That has likely contributed to widespread confusion about the reach of the 2009 law, which does not differentiate between adults and minors, said Dru Stevenson, a South Texas College of Law professor whose research focuses on gun violence and regulation.

“Anybody dealing with either health records or juveniles are super skittish about preserving privacy and confidentiality,” he said.

Mike Schneider, a former Harris County juvenile court judge, said the 2009 law fails to account for nuances in the juvenile code. For example, the law requires the reporting of all court-ordered mental health commitments. But Schneider and other juvenile officials say that in many cases juveniles end up in inpatient treatment not through a judge’s order, but via treatment plans agreed to by mental health professionals working on their cases. Additionally, Schneider said he interprets the law to directly address only the mental health commitments of juveniles already in lockup, not those first entering the system.

As a result, he estimated that some 99% of juvenile mental health commitments in the state are not the result of the kinds of judicial orders spelled out in the 2009 law.

“It’s just a really, really, really tiny sliver and would miss most of the people who are juveniles who have court-ordered mental health services,” he said.

The Office of Court Administration convened a task force of clerks, judges and various state officials more than a decade ago to figure out how to increase the number of all mental health records being sent to DPS.

The resulting report, published in 2012, found that “DPS lacks the resources to assist the district and county clerks with reporting mental health information.” It made a number of recommendations for ensuring better reporting across the state, including that OCA distribute a reporting manual to clerks detailing the law’s exact requirements. But neither the report nor the resulting manual addressed the reporting of juvenile records.

The agency has since moved to remedy that.

“Recently, because of increased questions, we decided to update the quick reference table to make it even more clear that juvenile records should be included under those provisions, and an updated FAQ section will be going in the manual,” spokesperson Megan LaVoie wrote in an email last month.

Amid a lack of clear direction, courts across the state aren’t following the law as Naishtat intended.

[…]

Schneider, the former Harris County juvenile judge, said the Legislature should address the narrowness and ambiguity that has resulted in the widespread failure to report juvenile mental health records, though he said such an effort will require lawmakers to answer difficult questions about how to handle sensitive records. In his mind, the law should cover young Texans with troubling histories of bullying, animal cruelty and sexual assault, behavior that foreshadows what experts call “future dangerousness.”

“What do you do with kids who have tortured a cat or a dog or done something really cruel, sexually or not, to another kid?” he said. “Those are, I think, the ones that people really worry about, because that seems to be so strongly correlated with really, really bad outcomes in the future.”

This is a long story with a lot of detail, so go read the rest for yourself. I think I’ve captured the main points in my excerpts, so the real question is whether the Lege is even interested in trying to address the gaps in that law. On that score, there was no comment from either Dan Patrick or Dade Phelan, so at the least there’s a lot of work to be done to even get it on the radar. And in keeping with what I’ve suggested before, this isn’t a whole solution but a part of one. Combining a fix to the Naishtat law with a ban on most types of gun purchases by anyone under the age of 21 would be a start. But first, the will to act has to be there. We can have a say in that this November.

The Lege sure thinks a lot of companies need to be coddled

It’s kind of amazing, actually.

Texas banned 10 financial firms from doing business with the state after Comptroller Glenn Hegar said Wednesday that they did not support the oil and gas industry.

Hegar, a Republican running for reelection in November, banned BlackRock Inc., and other banks and investment firms — as well as some investment funds within large banks such as Goldman Sachs and JP Morgan — from entering into most contracts with state and local entities after Hegar’s office said the firms “boycott” the fossil fuel sector.

Hegar sent inquiries to hundreds of financial companies earlier this year requesting information about whether they were avoiding investments in the oil and gas industry in favor of renewable energy companies. The survey was a result of a new Texas law that went into effect in September and prohibits most state agencies, as well as local governments, from contracting with firms that have cut ties with carbon-emitting energy companies.

State pension funds and local governments issuing municipal bonds will have to divest from the companies on the list, though there are some exemptions, Hegar said.

“The environmental, social and corporate governance (ESG) movement has produced an opaque and perverse system in which some financial companies no longer make decisions in the best interest of their shareholders or their clients, but instead use their financial clout to push a social and political agenda shrouded in secrecy,” Hegar said in a written statement on Wednesday.

New York-based BlackRock, which has publicly embraced investing more in renewable energy, criticized Hegar’s decision.

“This is not a fact-based judgment,” a spokesperson for the company said in a written statement. “BlackRock does not boycott fossil fuels — investing over $100 billion in Texas energy companies on behalf of our clients proves that.

“Elected and appointed public officials have a duty to act in the best interests of the people they serve,” the spokesperson added. “Politicizing state pension funds, restricting access to investments, and impacting the financial returns of retirees, is not consistent with that duty.”

The other nine companies banned completely are: BNP Paribas SA, a French international banking group; Swiss-based Credit Suisse Group AG and UBS Group AG; Danske Bank A/S, a Danish multinational banking and financial services corporation; London-based Jupiter Fund Management PLC, a fund management group; Nordea Bank ABP, a European financial services group based in Finland; Schroders PLC, a British multinational asset management company; and Swedish banks Svenska Handelsbanken AB and Swedbank AB.

[…]

Texas energy experts said the intent of the law, and Wednesday’s announcement, was to punish financial firms that don’t want to invest in the backbone of Texas’ economy — oil and gas.

“But at the end of the day, it’s all about a rate of return,” said Ed Hirs, an energy economist at the University of Houston. “Quite honestly, fossil fuel companies, in particular oil and gas companies, have not been great performers in the (stock market) prior to this year.”

The Lone Star Chapter of the environmental group Sierra Club said Hegar’s “climate-denying publicity stunt will be costly for taxpayers.”

​​“Major financial institutions like the ones on this list are beginning to recognize that investments in fossil fuels bring significant risk in the face of an inevitable clean energy transition, and that addressing the financial risks of the climate crisis is essential to good business,” said Sierra Club Fossil-Free Finance Campaign Manager Ben Cushing. “The fact that the Texas Comptroller has arbitrarily picked a handful of companies that, despite their climate commitments, continue to have massive fossil fuel investments, shows that this is nothing more than a political stunt at Texas taxpayers’ expense.”

We’ve already determined that Comptroller Hegar is math-challenged, so this shouldn’t come as a surprise. We’ve also seen the Lege make similar laws to protect gun manufacturers and the country of Israel, about which more in a minute. I suppose one could make a protectionist case for this kind of legislative cherry-picking, and as someone old enough to remember the efforts to divest from South Africa in order to pressure it to abandon apartheid, there is certainly a moral case for this kind of law, if not for these specific ones. But if you’re going to go that route, you need to be clear about what you’re aiming at.

The firms on Hegar’s list are BlackRock, UBS Group, BNP Paribas, Credit Suisse Group, Danske Bank, Jupiter Fund Management, Nordea Bank, Schroders, Svenska Handelsbanken, Swedbank, and UBS Group.

Of the six firms that responded to the Houston Chronicle’s inquiries by press time, four deny that they are “boycotting” the oil and gas industry, even if they admittedly have some investments that reflect the growing influence of — and consumer and investor interest in — the environmental, social and governance (ESG) movement.

“As we noted in our response to the Texas Comptroller, Credit Suisse is not boycotting the energy sector as the bank has ongoing partnerships and strong client relationships in the energy sector,” said a spokesperson for Credit Suisse, based in Zurich. Spokespeople for BlackRock, UBS Group, and Schroders made similar points in disputing the comptroller’s “boycotting” label.

[…]

This is a different approach than the one taken by BlackRock, for example, which had $287 billion in assets invested in energy companies globally as of June, $108 billion of which is invested in Texas energy companies, a spokesperson said.

There are “many similarities” between BlackRock’s approach to investing in the fossil fuel industry and that of other major firms, such as JP Morgan, didn’t make the list, said Andrew Poreda, senior vice president and senior ESG Research Analyst at Sage Advisory Services, an investment firm based in Austin.

A “frequently asked questions” document prepared by Hegar’s office, raises questions itself about the state’s methodology, Poreda said. For example, the comptroller’s initial criteria included whether a firm had made public pledges to the Net Zero Banking Alliance or Net Zero Asset Managers Initiative, which call for net-zero greenhouse gas emissions by 2050, nearly three decades from now.

That’s not exactly radical territory. Oil and gas companies are openly talking about plans for the energy transition — including getting to net-zero emissions.

“Envisioning a different world in three decades hardly classifies as a boycott, and at this point is so far away that it is largely aspirational,” Poreda argues.

It doesn’t have to make sense, it just has to make the base think they’re owning the libs. That’s Republican policy in a nutshell these days.

To bring it back to the Israel example for a minute, that law has been mostly blocked by a federal judge, who ruled that an engineering firm that couldn’t get a contract with the city of Houston had its free speech rights violated by the Texas law. I Am Not A Lawyer, but it sure looks to me like the laws banning “boycotts” of fossil fuels and gun manufacturers are at least in the same neighborhood as the anti-Israel boycott law is. Credit Suisse and Blackrock probably don’t need the state of Texas’ business, but other red states are adopting similar laws, and at some point it does start to cost them real money. When that happens, the lawyers usually get involved. I don’t know what happens from there, but I won’t be surprised if that’s where it goes. The Chron has more.

Libertarians will remain on the ballot

Too bad, Republicans.

The Texas Supreme Court on Friday rejected a Republican effort to remove a host of Libertarian candidates from the November ballot, saying the GOP did not bring their challenge soon enough.

In a unanimous opinion, the all-GOP court did not weigh in on the merits of the challenge but said the challenge came too late in the election cycle. The Libertarian Party nominated the candidates in April, the court said, and the GOP waited until earlier this month to challenge their candidacies.

On Aug. 8, a group of Republican candidates asked the Supreme Court to remove 23 Libertarians from the ballot, saying they did not meet eligibility requirements. The Republicans included Lt. Gov. Dan Patrick and others in congressional and state legislative races.

State law requires Libertarian candidates to pay filing fees or gather petition signatures, the amount of each depending on the office sought. The Libertarian Party has been challenging that law in federal court, arguing it is unfair because the fees do not go toward their nomination process like they do for Democrats and Republicans.

Republicans also tried and failed to kick a group of Libertarian candidates off the ballot in 2020. In that case, the state Supreme Court said the GOP waited until after the deadline to challenge candidate eligibility. This time, the Republicans filed their challenge before that deadline but apparently still did not satisfy the court’s preference to deal with election challenges as soon as the alleged issues arise.

In its opinion Friday, the court suggested the “emergency timeframe” argued by the GOP “is entirely the product of avoidable delay in bringing the matter to the courts.”

See here for the background, and here for the Court’s opinion. Basically, SCOTx is saying that the GOP should have filed their challenge in or closer to April, when the Libertarians nominated their no-fee-paying candidates, and that claiming something is an emergency doesn’t make it one. They did not rule on the merits, as noted, so the question of whether this kind of challenge could be successful – so far, we haven’t seen a successful challenge, but in the prior cases that was due to timing and technical matters, so there’s still no precedent – remains unanswered. Maybe in 2024, if the federal lawsuit the Ls have filed doesn’t make it moot. The Chron has more.

Judge rules Texas cannot ban handgun sales to 18-to-20-year olds

WTAF?

A federal court in Fort Worth on Thursday struck down a Texas prohibition that limited adults under 21 from carrying handguns.

Texas law bars most 18- to 20-year-olds in the state from obtaining a license to carry a handgun or carrying a handgun for self-defense outside their homes. Two plaintiffs, who fall within that age range, and the Firearms Policy Coalition Inc., filed a lawsuit against the state to challenge the statute. The suit says the Texas law prevented the plaintiffs from traveling with a handgun between Parker, Fannin and Grayson counties, where they lived, worked and went to school.

U.S. District Judge Mark Pittman wrote that the Second Amendment does not specify an age limit and protects adults under 21 years old.

“Based on the Second Amendment’s text, as informed by Founding-Era history and tradition, the Court concludes that the Second Amendment protects against this prohibition,” Pittman wrote in the ruling.

The order will not go into immediate effect. Pittman stayed the ruling for 30 days pending appeal.

I didn’t know this lawsuit existed; it was filed last November, apparently. The under-21 law is nothing new, I guess it was just a matter of someone deciding that now was the time to sue. I find the reasoning specious – if there’s no age limit in the constitution, then why allow the restriction for anyone under 18 as well? Sure, there are plenty of laws restricting other things that minors may want to buy, but if we are talking about Our Sacred God-Given Unalienable Right To Own Guns, then who cares about that? Eighteen is just as arbitrary as 21 when you get right down to it.

The ruling is on hold pending appeal, and I have questions about whether it actually will get appealed. Do you expect Greg Abbott and Ken Paxton to want to appeal this, and to have their hearts in it if they do? Color me suspicious. We’ll see what happens next.

Paxton issues deranged opinion on access to ballots

This is utterly chaotic. And completely out of the blue.

Best mugshot ever

A legal opinion released by Texas Attorney General Ken Paxton last week will almost certainly throw county elections offices into chaos after November, experts say, exposing election clerks to possible criminal charges and materially reducing the security of every ballot cast in the state.

Federal and state law require that ballots be kept secure for 22 months after an election to allow for recounts and challenges — a time frame Texas counties have had set in place for decades. Paxton’s opinion, which doesn’t stem from any change to state law, theoretically permits anyone — an aggrieved voter, activist or out-of-state entity — to request access to ballots as soon as the day after they are counted. Such requests have been used by activists all over the country as a way to “audit” election results.

The opinion from Paxton doesn’t carry the force of law, but experts say it will almost certainly serve as the basis for a lawsuit by right-wing activists. The opinion has already impacted elections administrators across the state, who told Votebeat that they’ve seen an onslaught of requests since Paxton released it.

“[Paxton’s office wants] to throw a monkey wrench into the operations of vote counting, especially if they think they might lose, and Paxton is in a close race as far as I can tell,” said Linda Eads, a professor at Southern Methodist University’s Dedman School of Law and a former deputy attorney general for litigation for the state of Texas. She said she was “shocked” by the opinion.

[…]

Paxton’s office sought input from the secretary of state’s office prior to issuing the decision, which was requested by state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans. In no uncertain terms, the secretary of state’s office  — which is run by a Republican appointed by Gov. Greg Abbott — recommended keeping the current waiting period.

“The voted ballots are the core of the election process and the prohibition on disturbing the ballots (except in limited circumstances as permitted by the Election Code) preserves the integrity of the election itself,” wrote Adam Bitter, general counsel for the office, in a letter obtained by Votebeat through a public records request. “Handling of the voted ballots themselves opens up the possibility of accidental or intentional damage or misplacement that could call into question the election after the fact.”

Paxton’s office did not respond to specific questions about why he disagreed with Bitter’s conclusion, nor did he respond to requests for comment.

For months, election administrators in Texas and across the country have been fielding records requests from activists intent on re-examining every ballot cast in every election since November 2020 — or, in some cases, even earlier. In Tarrant County, volunteers with a conservative group occupied a room in the elections office for weeks this summer, examining 300,000 ballots from the March 2020 primary, which were made available by the county 22 months after the election.

Ballots are kept in secure lock boxes for 60 days, and then transferred to another secure facility for the remainder of the waiting period in order to comply with the Civil Rights Act of 1960, a federal law which, in part, requires ballots be securely stored for 22 months. In 2017, the Republican-dominated Texas Legislature even amended state law to specify “22 months,” updating state standards to mirror federal requirements.

In the letter to the attorney general’s office, Bitter, the general counsel for the secretary of state’s office, wrote that an election clerk may effectively have to break state law in order to comply with a request for ballots so soon after an election.

Texas law says that if the ballots’ legal custodian, typically a local election official, “makes unauthorized entry into the secure container containing the voting ballots during the preservation period, or fails to prevent another person from making an unauthorized entry, the custodian has committed a Class A misdemeanor,” Bitter wrote.

Paxton’s opinion, experts say, does not appropriately address the potential criminal exposure.

Matthew Masterson, who previously served as the Trump administration’s top election security official and now is Microsoft’s director of information integrity, said that Paxton’s opinion will make it impossible for election administrators to appropriately ensure that ballots are kept secure. The security controls exist for a good reason, he said, and undermining them has serious implications.

“If you open up the floodgates and give anyone access to the ballots throughout that process, you have broken that chain of custody to the point where you would not be able to prove that this was the ballot a given voter cast,” Masterson said.

The opinion itself provides little guidance as to how long or for what reasons election administrators can block access to such ballots, leaving administrators across the state concerned about their ability to appropriately comply.

“If I read this literally as a layman, I think I’m required to provide ballots the day after an election before the results have even been canvassed,” said Chris Davis, elections director in Williamson County, who said such a release would make it impossible for counties to confidently conduct recounts that would stand up to legal scrutiny.

“I don’t know if the drafters of this opinion have a firm grasp on how ballot security and ballot processing is done at the county level,” he said.

There’s more, go read the whole thing, and add on this tweet thread from story author Jessica Huseman. There’s absolutely no justification for this – state and federal law are clear, and nothing has changed about them. It’s just chaos intended to give a boost to Big Lie enthusiasts, and as the story notes later on, it’s potentially a conflict of interest for Paxton since he himself is on the ballot this year, and everyone agrees it’s likely to be a close race.

County election officials around the state are already reporting getting a bunch of requests, some of which appear to be part of a coordinated effort. I think Harris County has the right response here.

Harris County Attorney Christian Menefee says the county is not releasing the ballots, arguing the opinion Paxton issued in the name of election integrity last week runs afoul of the law.

“Attorney General Ken Paxton is distorting the law to fuel conspiracy theories, encouraging reckless behavior that erodes public trust in our democratic process,” Menefee said in a statement. “The law is clear that these voted ballots are confidential and it’s a crime for anyone to access them unless authorized by law.”

Menefee said Harris County had received more than three dozen requests to inspect ballots since Paxton issued his opinion. The county attorney’s office did not respond to a request for more information about the requests, including who submitted them.

[…]

Federal and state laws requires ballots be securely stored for 22 months after an election, in part to preserve them for recounts or challenges to election results. Menefee said Paxton’s opinion “directly contradicts” a separate opinion his office issued last month, as well as an opinion issued by the AG’s office more than 30 years ago, which both concluded that ballots are confidential for 22 months following an election.

“Our election workers should not have to fear being criminally prosecuted because the attorney general wants to play politics and try to rewrite laws,” Menefee said. “Everyone who has closely read the law agrees the ballots are confidential: the Secretary of State’s Office, counties across the state, and his own office just a month ago. Harris County will continue to follow Texas law, not the Attorney General’s ‘opinion.’”

That’s what I, a non-lawyer who has no responsibilities in these matters, would have done. It is highly likely that a lawsuit will result. No one wants that, but sometimes having the fight is the most straightforward way to resolve the dispute. If that’s what we have to do, then so be it.

Arredondo fired

Took awhile, but there it is.

The Uvalde school board agreed Wednesday to fire Pete Arredondo, the school district police chief broadly criticized for his response to the deadliest school shooting in Texas history, in a vote that came shortly after he asked to be taken off of suspension and receive backpay.

Arredondo, widely blamed for law enforcement’s delayed response in confronting the gunman who killed 21 people at Robb Elementary, made the request for reinstatement through his attorney, George E. Hyde. The meeting came exactly three months after a gunman killed 19 students and two teachers at the school.

“Chief Arredondo will not participate in his own illegal and unconstitutional public lynching and respectfully requests the Board immediately reinstate him, with all backpay and benefits and close the complaint as unfounded,” Hyde said in a statement.

Arredondo didn’t attend the meeting, citing death threats made against him.

But about 100 people, including relatives of the shooting victims, showed up for the vote. Many chanted “coward” and “no justice, no peace.” Four people spoke during a public comment period before the seven-member board went into closed session to deliberate Arredondo’s employment, criticizing the decision to not discuss the matter in front of the public.

[…]

In his statement Wednesday, Arredondo’s lawyer said that the school district violated his constitutional due process rights by failing to provide him notice of the complaints against him and conduct an investigation of his response to the mass shooting ahead of the termination hearing.

Arredondo’s lawyer said that he received an email from the district on July 19, recommending his termination based on his failure to establish himself as the incident commander during the shooting, but argued the letter should have been sent earlier and in a physical format.

Arredondo was listed in the district’s active-shooter plan as the commanding officer, but the consensus of those interviewed by the House committee was that Arredondo did not assume that role and no one else took over for him, which resulted in a chaotic law enforcement response.

See here and here for some background. I wasn’t particularly inclined to be sympathetic to Pete Arredondo, though I do agree that not all of the blame for the law enforcement response at Robb Elementary is his and I will push back against DPS’ self-serving efforts to scapegoat him, but that’s about as far as I’ll go. Seeing him refer to this as a “lynching” and whining about his “constitutional rights” in an employment matter confirms to me that I’m in the right place. Go away and find another line of work, dude. We’ll all be better off that way.

There’s still a lot of confusion about how Texas’ abortion ban will be enforced

There will be chaos, in addition to the fear and danger to pregnant people that already exists.

Abortions are already effectively outlawed in Texas, where clinics closed after the U.S. Supreme Court decision overturning Roe vs. Wade. But a new law takes effect Thursday that makes performing the procedure a felony, punishable by up to life in prison and fines of at least $100,000. There are no exemptions for rape, incest or fetal anomaly — only for when the pregnant person’s life is in danger.

It’s not clear how many prosecutions will materialize or even how police will handle complaints. But the first cases will test the bounds of a sweeping new law that is prompting fear and confusion for patients, their families and the medical community alike. Experts say the few abortions that do occur in Texas are now carried out in hospitals during emergencies, or at home with medication obtained online or through other means. Pregnant women cannot be prosecuted.

“Are they going to be going after doctors who perform emergency abortions? What does that look like?” said Joanna Grossman, a professor at Southern Methodist University Dedman School of Law.

So far, Attorney General Ken Paxton has been the most bullish about enforcement. His office can only enforce the six-figure civil fines, but he offered to help local prosecutors bring criminal charges under the state’s abortion ban.

“I will do everything in my power to protect mothers, families, and unborn children, and to uphold the state laws duly enacted by the Texas Legislature,” Paxton, aRepublican up for a third term in November, said in an advisory.

[…]

In Tarrant and Denton County, officials said prosecutors will evaluate each case and present it to a grand jury only if the facts warrant prosecution. Neither office specified what circumstances might qualify.

“Prosecutors do not make the law – we follow it,” Tarrant County Criminal District Attorney Sharen Wilson said in a written statement. “We followed Roe v. Wade when it was the law and we will follow Texas state law now.”

“Police agencies bring us cases, we don’t go out and investigate cases ourselves,” said Denton County First Assistant District Attorney Jamie Beck. “If an agency brings us a case that deals with this issue and these laws, we will treat it like any other case.”

Yet, how the police will handle complaints remains a question mark.

Some city councils, including in Dallas and Denton, voted to restrict the resources that can be used to investigate abortions or request that police deprioritize those cases. Several police groups said they don’t know how enforcement will work, and one questioned whether law enforcement would want to be involved at all.

“They are extremely difficult investigations and there’s all kinds of politics surrounding it,” said Kevin Lawrence, executive director of the Texas Municipal Police Association. “It’s a lot easier to say something is illegal than to actually prosecute someone for it.”

In Dallas, Police Chief Eddie García said that depending on priority and call type, there will be instances “that we may have to respond and take a report.” But he echoed the uncertainty, saying it’s “too soon to tell how the state plans to enforce this new law, and who will be enforcing it.”

While almost every felony complaint is looked into, final decisions about how to proceed rest with district attorneys, said James McLaughlin Jr., executive director and general counsel for the Texas Police Chiefs Association. “What proof would they want to see in order to accept a case?” he said. “We’re pretty used to filing burglary cases, robbery cases, homicide cases, but this is different.”

We’ve talked about this in various forms. Dallas County’s DA, along with several other large county DAs (not, as far as I know, including Harris County, at least at this time), has said he won’t pursue prosecutions of abortion-related charges. Which is nice and noble and morally correct and certain to be turned into roadkill by the next Legislature if they have the power to do so. It’s interesting to see what these cops are saying about investigating abortion-related allegations – as we have discussed, they can seek out evidence in various privacy-intruding ways, but we just don’t know yet what they actually will do. Again, the Lege is sure to meddle in this if they can. We also have the TDCAA’s analysis and guidance on Texas’ new laws that criminalize abortion, which among other things show that the zeal to continuously be passing anti-abortion laws has introduced quite a bit of chaos and more than a little potential for contradictions and double jeopardy possibilities. The courts are going to have so much fun with all this. That touched on the vigilant bounty hunter law SB8, which so far as served only as a tool of intimidation rather than of enforcement. But with the “trigger” law going into effect today, it’s a whole new ball game. And just a matter of time before someone gets arrested.

UPDATE: The Trib now has a story on the enabling of the trigger law. The 19th notes that four other states have similar laws coming online this week.

Abortion funds file First Amendment lawsuit for their right to assist others access abortion

We’ll see what SCOTUS does with this one, because for sure that’s where this will end up.

Reproductive rights groups on Tuesday filed a federal class-action lawsuit to head off possible prosecution from Texas officials for helping Texans gain access to legal abortions in other states.

The suit filed in Austin names Texas Attorney General Ken Paxton as well as a class composed of the county and district attorneys who could enforce the state’s near-total abortion ban, which goes into effect on Thursday.

The law, known as House Bill 1280, was passed last year. It is “triggered” into taking effect on Thursday by the U.S. Supreme Court’s ruling in June on Dobbs v. Jackson, which overturned Roe v. Wade’s constitutional protection for abortion access.

The plaintiffs want a federal judge to issue an injunction barring Paxton and prosecutors from using that law and other statutes to target those reproductive rights groups for activities the groups say conservative state leaders may politically oppose but are still legal.

The groups want the court to confirm that “the Trigger Ban cannot be enforced by any Defendant … in a manner that violates Plaintiffs’ rights to freely travel, freely associate, freely speak, and freely support members of their communities through financial assistance, as guaranteed by the United States Constitution and federal law,” according to the suit.

The named plaintiffs are Fund Texas Choice, the North Texas Equal Access Fund, the Lilith Fund for Reproductive Equity, Frontera Fund, The Afiya Center, West Fund, Jane’s Due Process, Clinic Access Support Network and Dr. Ghazaleh Moayedi, an outspoken Texas provider.

They’re asking for legal protection to continue fundraising and paying for out-of-state abortion expenses, including raising funds for travel or other costs or for the procedure itself, as well as helping pregnant Texans with logistical information about legal abortions out of state, according to the lawsuit.

[…]

The suit argues that Paxton, along with “activist legislators and their associates,” are waging a coordinated effort to harass organizations exercising their right to free speech by defending access to abortions and helping pregnant Texans seek them legally under the current bans. Most of the latter involves financial or logistical help in obtaining an abortion in another state where the procedure is still legal.

The court filing points to, as an example, several statements in late June by state Rep. Briscoe Cain, R-Deer Park, asserting that donors, volunteers, employees and anyone else connected to these groups are guilty of violating the law for helping people legally outmaneuver the Texas ban. He also has suggested that the constitutionally protected right to travel interstate for any reason doesn’t translate to the right to pay for someone else to do it, such as for an abortion.

To set the table a bit here, in their amicus brief to a writ of mandamus that blocked a lower court order that would have enjoined the 1925 state law criminalizing abortion, 70 Republican legislators argued that criminal penalties should apply to people who help others get an abortion. I’m sure we can comprehend how far they believe that definition of “help” should be pushed; we need only note what spurts out of Briscoe Cain’s mouth if we’re ever uncertain. There is also a separate federal lawsuit filed by Wendy Davis making similar claims about her right to donate to abortion funds. I don’t know if there has been any action on that front. Two abortion access funds had previously filed lawsuits against anti-abortion activists to protect themselves from SB8-related litigation. There’s a lot going on.

If you for some reason believe what the justices in the majority of the Dobbs opinion said at the time, the right to travel for an abortion should still be upheld on constitutional grounds. As you can tell, I don’t have much faith in anything those charlatans say, but they did say it. Litigation like this will be the first test of that proposition, and whether SCOTUS allows an injunction against the trigger law to stand will give us an early indication. Place your bets now.