On The Lege

Development Devils

The vaunted development agreement forged in recent months by the Save Our Springs Alliance, Greater Austin Chamber of Commerce, and Real Estate Council of Austin was dealt a potentially fatal blow at the Capitol on Tuesday when the House passed a bill reinstating regulations that were inadvertently deleted during the last legislative session (see "Council Watch"). The House overwhelmingly passed HB 1704, authored by Rep. Edmund Kuempel, R-Seguin, which ensures that residential subdivisions and other projects can be completed under the local developmental regulations that are in effect at the time the project is begun.

The city of Austin strenuously fought the bill, and Rep. Sherri Greenberg, D-Austin, introduced an amendment designed to exclude Austin from its provisions. Speaking of the recent agreement, Greenberg told her colleagues that in Austin, "the lion has laid down with the lamb. Peace reigns in the valley. For five months, with blood, sweat, and tears, these groups discussed how Austin should increase certainty for development projects." She went on to say that her amendment and the agreement were "about local control. Will we allow a local community to craft local solutions to local problems?"

But Greenberg's amendment failed by a vote of 108-33, and Kuempel's bill was quickly passed by the House. The issue now moves to the Senate, where Sen. Florence Shapiro, R-Plano, has authored identical legislation and believes she has more than enough votes to pass it. Both Shapiro and Kuempel denied their bills are targeting Austin, but both also made it clear that they don't like Austin's development policies. "I don't believe it's fair for any city to change the rules in the middle of the game," said Shapiro.

In the wake of the vote, supporters of Austin's development agreement were quick to point fingers at local developer Gary Bradley and Stratus Properties, formerly known as FM Properties. "By forging alliance between the Chamber, RECA, and S.O.S., we have uncovered who is really pushing this legislation. That's Stratus and Bradley," said S.O.S. strategist and political consultant Mark Yznaga, who predicted dire consequences if Kuempel's bill becomes law. "Millions of square feet of development will go forward over the aquifer with no mitigation. So instead of working together, there is potential to start the warring again," he said. David Armbrust, the president of RECA who took part in the months-long negotiations over the development agreement, refused to speculate on what will happen if the bill becomes law. "I don't know where we go from here," said Armbrust, who just a few years ago was a lobbyist for FM Properties. If 1704 becomes law, it will likely help Stratus, which has a lobby list that's almost as long as the city's 14 lobbyists are registered for the real estate company, which owns the Barton Creek PUD and hundreds of acres at the Circle C development. According to records at the Texas Ethics Commission, Stratus will pay up to $517,500 for its lobby team. They may be getting the better deal the city is spending over $1 million on its lobby team, and yet the bill that they really wanted to kill appears to be on its way to becoming law.

Members of the S.O.S. Alliance are hoping that Gov. George W. Bush will veto HB 1704. The likelihood of that, however, appears small.R.B.

Crackdown on Cutting

Texas legislators say school officials should get tougher on truant teens in order to lower the disturbingly high dropout rates reported by independent studies of Texas schools. HB 440, co-sponsored by Vilma Luna, D-Corpus Christi, and Lon Burnam, D-Fort Worth, would forbid school principals to excuse students for missed classes without their parents' consent, and mandate truancy reduction programs in any district that fails to show an attendance rate of at least 94% the standard school districts are required to maintain to avoid being tagged "academically unacceptable" under the Texas Education Agency's accountability standards. The bill's sponsors note that more than half of Texas' 1,052 school districts had at least one or two schools that did not meet the 94% attendance requirement last year. By law, Texas students cannot pass a course if they miss more than one in 10 class periods during the school year, but district administrators currently have the discretion to excuse students for absences.

Burnam aide Sylvia Ortega says the truancy reduction programs required by the bill would be modeled after a Travis County program, whereby students who don't show up for class are reported to the county constable's office, which sends an officer to the student's home. Parents who fail to get their kid back in class can be served with a summons to appear in court for thwarting state truancy law. "Getting the constable to serve legal process really wakes the parent up. ... It just helps the school district in actually delivering the message," says Ortega. The legislation would not help schools create such a program by funding school personnel to liaison with the county; schools would have to assign a teacher or coach to that job. But the Texas Association of School Administrators saysit doesn't oppose the bill because school districts are already working with local law officials in many areas, and a universal enforcementstandard would be welcome. And Karen Soehnge, assistant director of governmental relations for TASA and a former school principal herself, saysschool administrators won't mind losing the discretion to excuse absent students, since HB 440 is targeted primarily at runaway kids. K.F.

Tattle Tale

Consensus in the Texas House of Representatives ought to give anyone pause. Like any mob action, it can escalate to a quorum before anyone stops to consider the consequences of what they're agreeing upon. Such may be the case with SB 30, the "parental notification" anti-abortion bill which passed smoothly through Senate chambers and looks to be headed for an easy ride through the House as HB 623. More than half the House's members have signed on as co-sponsors of the bill, authored by Temple Republican Dianne White Delisi. And there is general agreement that the bill which currently includes a "judicial bypass" allowing a girl to go to court to prove she is mature enough to obtain an abortion on her own is constitutional, or so explained Texas Attorney General John Cornyn, during late-night testimony on Monday. (Other representatives, including Galveston Democrat Patricia Gray, argued that girls ought to be able to go to counselors or clergy, instead of the intimidating legal system, for a bypass, but their protests will likely be shot down by the bill's supporters.)

The bill requires parental notification but not parental consent, as does similar legislation by Bay City Republican Tom Uher before a doctor may perform an abortion on a minor. The legislation, along with half a dozen other anti-abortion bills, is pending in Steve Wolens' State Affairs committee, where similar legislation has died more or less quietly in the past. But momentum in the House is solidly behind this legislation. And word from House Speaker Pete Laney's office is that the speaker generally supports parental notification measures, and expects the bill to come to the House floor for a vote this session.E.C.B.

The Ultimate Deterrent?

No one knows precisely how many mentally retarded inmates have been executed since Texas resumed the death penalty in 1982. Nationally, the total is at least 34, but that figure fails to account for sketchy reporting and the fact that state standards for reporting retardation vary widely. In Texas, death row inmates are not tested for retardation when they're brought to Ellis Unit 1, home of the state's death chamber, but nationwide according to testimony during a hearing on Houston Democrat Rodney Ellis' SB 326, which would ban the execution of mentally retarded defendants between 3% and 5% of the prison population is known to be mentally retarded. Death row in Huntsville
currently houses around 450 inmates, and dozens more join their ranks every year.

But the issue of executing the profoundly retarded who may be unable to understand the concept of culpability and are often unaware of what is going on in the courtroom during their trials is hardly the open-and-shut case it appears to be on the surface. As three hours of testimony demonstrated Wednesday, the question is almost as divisive as the issue of capital punishment itself.

Several attorneys who have represented mentally retarded defendants testified that their clients diagnosed with retardation in childhood, as required by law had such poor adaptive skills that they could not understand the concept of moral responsibility, much less the reality of execution. "The death penalty is supposed to be the ultimate deterrent. But when one doesn't understand that, when one doesn't understand the reason they're there ... that deterrent is really nonexistent," said Bill Allison, a capital defense attorney who defended Doil Lane, a mentally retarded man who confessed to murder in 1981. But district attorneys from around the state argued that defendants in murder trials have ample opportunity to bring up evidence of mental incompetency, which can encompass both retardation and insanity. Prosecutors claim that the legislation would addanother layer of procedure to the already lengthy capital litigation process. Capital murder "is not an intellectual exercise," said Brazos County DA Bill Turner. "Murder is about emotion ... The fact that you're intellectually challenged does not mean that you don't have morality."

Keith Hampton, an attorney who has represented retarded defendants on capital charges, harshly countered such claims. "The idea that if you pass this ... you're also saying that they're not morally responsible is confusing two things," he said. "You've found them guilty. We're just saying they're not getting the death penalty." Hampton also pointed out that 12 states and the federal government have passed laws to prohibit the execution of mentally retarded inmates. "Where is the evidence of all this litigation that's supposed to happen when the state bans the execution of the mentally retarded? They didn't bring you any, because there isn't any," Hampton told committee members.

Before the bill passed out of committee on Wednesday, the legislation looked to be a tough sell in the majority-Republican committee, which is bookended by two of the Senate's most conservative North Texas death penalty supporters: Flower Mound Sen. Jane Nelson, who hammered defense attorneys with requests for details of the crimes for which their clients were sentenced to death, and Plano Sen. Florence Shapiro, who opined that even very young mentally retarded children who show an early propensity for violence "ought to be put away."

Similar legislation in the House has gone nowhere this session; a subcommittee hearing on HB 2121, filed by Alpine Democrat Pete Gallego, was canceled in March and has not been rescheduled. E.C.B.

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