Capitol Chronicle

Make Us a Proposition: Just 22 and they don't mind dying -- but Proposition 12 deserves death most of all

As civic-conscious Texans are no doubt well aware, our regular Sept. 13 constitutional amendment election arrives as expected next month.

You say, amidst all the hoopla about congressional redistricting, you somehow missed that crucial bit of political intelligence? And you're wondering why, perhaps, with the first Tuesday in November as a slightly more conventional day to hold elections (as we will this year), the 78th Legislature took it in its head to schedule another election -- costing millions in scarce dollars to counties across the state -- just a month before the traditional date?

Well, according to the argument shamelessly advanced by Mary Denny, R-Aubrey, on the floor of the House, these 22 amendments -- including such desperately needed proposals as confirming the tax exemption covering nonresidential travel trailers -- simply couldn't wait another month. So, if you were planning to do something more pressing on Saturday, Sept. 13 -- say, attend the Longhorn game with Arkansas, or wash your hair -- your Legislature calls on you to remember your civic duty, drop in at the polls, try to make sense of 22 mostly unnecessary or unintelligible propositions, and cast your vote.

In point of fact, the real reason the election is being held in September is much more consciously cynical -- the Republican leadership is hoping that fewer people will vote. By odd coincidence, there is a hard-fought mayoral election in Houston in November, and the GOP legislators are particularly concerned that too many inner-city Houstonians might be motivated to go to the polls, thereby undermining the natural advantage of more conservative suburbanites, notorious for automatically checking in at their neighborhood polling places every Saturday, rain or shine.

How Bad Could It Be?

What's the booby prize? The editorial board of the Chronicle is invariably jaundiced about constitutional amendment elections, which ask voters in vague and deceptive language to agree to generally pointless or actively regressive propositions, and whereby the Texas Constitution is weighed down with trivia or handcuffs that by rights should be confined to actual lawmaking by duly elected representatives. We have not yet discussed specific endorsements (early voting commences Aug. 28), although in the past we have offered two basic options: Vote no on everything; or, if you must pick and choose, we offer a thumbnail list of the least objectionable or ridiculous propositions.

In due course, after we've plowed through reams of turgid legislative reports, we will provide that helpful checklist. (To get started on your own, see, but don't say we didn't warn you.) But this time around, there is one big reason why the boys in the business lobby want so few of us to vote, and why you should mark your calendar now to defy them: Proposition 12, "The constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the Legislature to determine limitations on non-economic damages."

This blandly phrased persiflage, which seems to propose nice, friendly things for doctors and nurses, is in fact something else altogether -- an attempt to cement into the Constitution the omnibus "tort reform" legislation enacted under the guise of protecting health care providers from "frivolous" lawsuits, but which could extend that financial firewall for all corporations and any civil lawsuit. That's the actual meaning of the seemingly innocuous phrase, "and other actions."

During the session, the legislators insisted that they don't really need this amendment because they already have the power to do what it says. But they clearly are attempting to short-circuit any legal challenge to tort reform, along with trying to provide additional cover for further limitations on corporate liability. They managed to propose this constitutional amendment (HJR 3), which requires a two-thirds vote of both chambers, only with the help of a baker's dozen Democrats, who should be thoroughly ashamed of themselves.

Despite their greater warmth and fuzziness, the limitations on noneconomic damages in medical malpractice lawsuits, all on their lonesome, are quite bad enough. According to the Lege's House Research Organization, here's what's included in "non-economic" damages, and thus subject to a $250,000 ($750,000 with multiple defendants) jury-award limit: "past, present or future physical pain and suffering; loss of consortium, loss of companionship and society, disfigurement, or physical impairment." Review those items briefly, and ask yourself if $250,000 (less the legal fees necessary to exact it) is sufficient recompense for someone else's gross negligence.

Insult to Injury

Of course, if you're an ordinary citizen (for example, an injured worker) who takes a case to court, you're already diminished on the economic side -- because economic damages (beyond medical expenses) are largely based on how much you earn, or might have earned, over the course of a lifetime. A mechanic's life, let alone that of a mechanic's wife, is simply not worth as much as that of a doctor, a lawyer, or a corporate executive. And should you happen also to be elderly, you're worth even less, because we can't expect, say, a nursing home, to place much value on the economic life of some ancient crone riddled with bedsores.

If you're disfigured beyond recognition, endure constant pain, and are rendered celibate and solitary by someone or some company's gross negligence -- as has happened to witnesses, including policemen as well as factory workers, who testified before the Legislature -- you have become a cost-benefit statistic in an insurance company's actuarial tables. And if it costs more than $250,000 or so to take the precautions that would have prevented your injuries -- well, it would simply not be cost-effective to take those precautions, now would it?

This potential extent of Proposition 12 was emphasized by crime victims, who met with reporters last month to point out that corporations (for example, the owners of the I Can't Believe It's Yogurt! shop that was the scene of Austin's most notorious murder case) have been forced to improve safety conditions and procedures precisely because potential large damage settlements are more expensive than those precautions. If Texans vote yes on Prop. 12, it will provide the legislators (and their puppeteers in the owners box) one more weapon to diminish the legal rights and remedies of ordinary citizens.

That's the booby prize, and set against it, all 21 other propositions, good and bad, fade into unimportance. Vote no on Proposition 12. end story

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78th Legislature, tort reform, Proposition 12, Mary Denny, HJR 3, House Research Organization

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