Capitol Chronicle

State of Remorse: An Update on Work in Progress at the Lege

Great-grandfathered polluters
"Great-grandfathered" polluters (Photo By Doug Potter)

For the Texas Lege, this has been a session of many regrets.

No longer blinded by the light of the George W. Bush presidential campaign -- and taken aback by the portrait of Texas painted by the Gore campaign -- legislators of both parties have been having second thoughts about many high-profile items on the Bush agenda: reflexively punitive law and order, privatized education, voluntary pollution control, stingy health and human services, huge tax cuts. "The trance appears to have broken," said one Capitol observer early in the session. "Suddenly they realize the state has real needs that they've been ignoring."

Regrets, like bluebonnets, have a way of wilting with the heat -- and the budget -- and it's still too soon to tell whether any of these reconsiderations will bear fruit.

But it's not too early to be surprised at some positive developments. An ambitious indigent defense bill (vetoed last session by Bush in a much narrower version) has passed the Senate, with bipartisan support. A temporary pullback on lightly regulated, fly-by-night charter schools has considerable momentum (despite opposition from Bush's successor). Under the looming threat of losing billions in federal highway funds (some things are still sacred), the Lege will likely do something about epidemic air pollution -- though not much, so far. And there is building momentum both for statewide teachers' health insurance and better access to children's Medicaid -- although as yet no certain strategy to pay for either, at least at levels contemplated before the budget imploded thanks to the Bush tax cuts.

Most remarkably, a prominent Republican senator (Arlington's Chris Harris) has proposed a referendum for voters to roll back Bush's major property tax cuts (over $2 billion), which have hamstrung budget writers as they try to figure out ways to pay for all the state needs the Bush priorities left unaddressed. The rollback won't happen -- but looking forward to the next session, more than one legislator has been willing to at least pronounce the dreaded "I" word -- "Income Tax" -- heretofore a form of political suicide. Austin Rep. Glen Maxey -- who's been playing chicken with an income tax bill for several sessions -- says the issue of a fair and efficient tax structure won't go away, and his perennial tax bill "at least keeps people from saying, 'Nobody is talking about an income tax.'"

Here's an update on some major categories, and a few specific bills.

Criminal Justice

The headline item has been the successful post-conviction DNA legislation -- already signed into law by the governor and taking effect immediately. The law requires the preservation of DNA evidence and creates a mechanism to potentially allow convicted inmates to be exonerated when biological evidence is available. A necessary step, it remains to be seen how it will work in practice, and whether it is little more than a technophile's panacea for criminal justice inequities.

Of much wider implication, at least potentially, is the Indigent Defense Bill (SB 7, sponsored by Houston Democrat Rodney Ellis), which has passed the Senate and is pending in the House. The bill -- a very late recognition of the state's constitutional responsibilities -- would finally establish minimum statewide standards on timely appointment of counsel for poor criminal defendants, and also takes steps toward state standards on eligibility for counsel. It would establish a state task force on indigent defense, encourage counties to create more equitable appointment systems, and even establish a fund to help pay the lawyers (not exactly munificent -- the state's contribution would move Texas from 48th in per capita expenditure all the way up to 45th).

Bill Beardall of Texas Appleseed, the public interest organization whose research greatly influenced the development of the bill, had hoped for more support for an appointed counsel assistance program and less local judicial discretion on appointment of counsel. But, he says, he knew the initial progress on this issue would be incremental. He calls the bill "a very modest, very balanced step toward improving indigent defense, which does not adopt all the recommendations that people who care about reform feel ultimately need to be considered. But at the same time, it would represent the biggest step forward in the history of the state toward improving indigent defense, and would be a milestone first step in what we hope will be an ongoing process."

Ellis has also sponsored a bill (still in play) to increase monetary damages available to the wrongfully convicted, and Sen. Royce West, D-Dallas, and Rep. Senfronia Thompson, D-Houston, have bills under consideration banning racial profiling by police (see "Feeling the Heat,"). And see "Naked City" for an update on hate crimes.

Death Penalty

One of the surprises of the session has been the relative success of bills reconsidering the state's notorious infatuation with execution -- another reflection of the post-presidential hangover. It's not at all clear if any of these bills have the legs to run all the way to the governor's desk, and what Rick Perry will finally be willing to sign. But it's a reasonable bet that both houses will have some serious public discussion of the available alternatives to assembly-line death-by-injection.

On Monday, the House easily approved Rep. Juan Hinojosa's HB 236, which would allow a jury finding of mental retardation in capital cases to prevent execution; Ellis has a similar bill pending in Senate committee. Despite considerable opposition from prosecutors, a life without parole alternative (HB 365, Hinojosa) should at least reach the floor in the House -- Senate prospects, with a Republican majority, are dicier. Early on, Gov. Perry suggested he wanted to consider the life without parole legislation; with a Texas retardation case pending before the U.S. Supreme Court, the governor says he wants to see what the court does before Texas moves on the issue.

Even more surprisingly, bills to enable a constitutional referendum on a two-year execution moratorium (SJR 25, Sen. Eliot Shapleigh, D-El Paso, and HJR 56, Harold Dutton, D-Houston) have each made it out of committee (by party-line votes), accompanied by separate bills that would create a state commission to re-examine the process of capital cases in Texas. Sponsors and supporters are working the floor, but the likelihood of such bills actually passing both houses by the two-thirds vote necessary remains slim, and though referenda are supposed to go straight to the voters, the governor has already announced he believes (contrary to state law and tradition) that they require his signature first. That may have been woofing for the benefit of wavering Republicans, but the prospects are not great that the voters will see such an option -- yet.

But Scott Cobb of the Texas Moratorium Network ( points out that nobody expected the bills to make it this far, and he remains confident the issue will get a full hearing. Asked if he's concerned that a negative public vote might only entrench current execution practice, Cobb responded, "I think we're going to win the vote -- once the people get the information. I'm fully confident that there's going to be a vote on the moratorium, eventually."

One additional possibility is that in the absence of a consensus on the outright moratorium bills, the Lege might turn to Austin Rep. Elliott Naishtat's HJR 59, which would allow the voters to give the governor the power to declare a moratorium. The ball may have just enough spin to land, once again, in Perry's court.


Both the Texas House and Senate redistricting committees have now drafted their "working plan" maps of proposed legislative districts for the next decade, and at this point the earth does not appear to be shifting under the Travis County delegation's feet. That's bad news, at least temporarily, for our one GOP Rep., Terry Keel, who's thus far been trying to pair his Southside liberal neighbors Ann Kitchen and Glen Maxey into one district, leaving Maxey's current precincts open, presumably for a Hispanic candidate. Regardless of the outcome of that spat, the county is guaranteed a new Republican seat, which in the working plan sprawls northwest Travis County from Lago Vista to Pflugerville. Another new seat would stretch across northern Williamson County (including Georgetown and Leander) and east to Giddings.

On the Senate side, Travis County would be split somewhere around MoPac between the two current senators, Gonzalo Barrientos (D) and Jeff Wentworth (R), but Wentworth (who chairs the Senate redistricting committee) would give up all of Williamson County to his GOP colleague, Steve Ogden of Bryan.

For a preview, check out the Texas Legislative Council's redistricting information site (.; the REDViewer GIS application takes you to the maps.


The bad news is that NAFTA-sustained air pollution from Mexico continues to darken the skies over Big Bend; the good news is that with help from the Lege, Andrews County may soon be lighting up those West Texas skies with radiation.

That sort of black humor seems only too appropriate on environmental news this session, where one step forward, two steps back remains the standard operating procedure. On rad-waste, an already bad bill (SB 1541) to create a private "low-level" waste dump in Andrews County, directly over the Ogallala Aquifer, with liability running to the state -- essentially a corporate welfare gift to Waste Control Specialists -- was made worse in committee, with the current version calling for two dump sites, one for Texas/ Maine/Vermont Compact waste, and another for essentially unlimited Dept. of Energy waste, potentially making Texas the nuclear dumping ground (not to mention transit ground) for the entire nation. The bill's sponsor, Sen. Robert Duncan, R-Lubbock, hopes to bring the bill to the Senate floor Thursday -- opponents are looking for enough votes to block consideration. Duncan originally promoted this legislation as a necessary step to deal with Compact waste -- now even that fig leaf has been yanked away by the DOE dump site amendment (added by Sen. Teel Bivins, R-Amarillo) to support "economic development" -- even if it glows. (For more detail and updates on this battle, check the Lone Star Sierra Club Web site at

On the House side, last week's marathon session to pass the Texas Natural Resource Conservation Commission sunset legislation had very mixed results. If the bill makes it through the Senate, the TNRCC may get a new name and a new mission statement, to reflect a priority commitment to environmental quality over economic development. Thanks to floor amendments, there should be better procedures to deal with so-called "upset" emissions, and a new requirement that the agency consider cumulative impacts of existing pollution when considering new permits. Reformers also won a close vote to move the Office of Public Interest Counsel outside the agency, which should mean more independence from the commissioners as well as corporate influence -- i.e., the public interest counsel might begin earning its name. But an end to the "volume discount" on fees for big polluters was defeated.

And in an even more disastrous loss, environmental advocates were blindsided by a lengthy floor debate on the grandfathered air pollution issue. Rep. Zeb Zbranek, D-Winnie, attempted to attach his bill to close the grandfather loophole as an amendment, but was outmaneuvered by Pampa Republican Warren Chisum. Chisum's successful substitute amendment -- if it can't be strengthened or defeated in the Senate or conference committee -- would essentially continue the grandfathered exemption indefinitely, only requiring grandfathered polluters eventually to apply for "permits" for what they're already doing, with no hard deadlines to install pollution-control equipment. Chisum successfully persuaded the House that he was simply advocating "flexibility" and extended deadlines, though Zbranek reiterated in vain that there are no "deadlines" at all under Chisum's amendment. In the end, the House voted almost two to one with Chisum. (For more detail, see the Web site of Texas Campaign for the Environment,

Later, grandfather opponents lamented that they had insufficient time to educate legislators on the issue, but Zbranek told the Chronicle that he felt he had to bring the amendment forward, as it had become clear that his bill would not escape the Committee on Environmental Regulation (which Chisum chairs). Zbranek hopes that the Senate will show "some sense" on the issue, but if it doesn't, he said, "I think it's a major loss to the state of Texas. All we did was create a 'great-grandfathered' program, and decide to award permits to polluters." Referring to the heavy lobbying on the issue by grandfathered industries, Zbranek added, "Money talks -- and the citizens of the state of Texas are the ones paying the price."

-- Additional reporting by Mike Clark-Madison

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Legislature, Chris Harris, Glen Maxey, Rodney Ellis, indigent defense, Bill Beardall, Texas Appleseed, Juan Hinojosa, Eliot Shapleigh, Harold Dutton, Scott Cobb, Texas Moratorium Network, Elliott Naishtat, redistricting, Terry Keel, Teel Bivins, TNRCC, grandfathered pollu

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