Big Jolly Politics

politics in Harris County and Texas

False Narratives and Legislative Walkouts Require a Statutory Solution

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Quorum busting via nonattendance is a legitimate exercise of political power.  The Harris County Republican County Commissioners recently denied Commissioner’s Court a quorum to avoid allowing a tax increase.  It’s a matter of personal responsibility – a person, elected or not, should have the ability to choose to not show up for their job.  However, having the ability to not show up for their job should be subject to consequences.  The Democrats will continue to push a false narrative to justify walking out of the legislature to prevent voting legislation.  It’s likely they will also walk out to deny redistricting so the issue is forced into the courts and away from the legislature.  A statutory solution is needed to remedy the situation.

False Narrative

The Democrats are pushing many false narratives to justify their walkout.  Rather than answer all of their specious allegations the Republicans need to focus on the false narrative regarding curbside voting (also known as motor voting.)  The Democrats are promoting the false narrative that increasing curbside voting will help the disabled and elderly.  This is a flat out falsehood.  Implementing changes to the curbside voting harms the disabled.  I’ve personally witnessed confusion and the attempt to abuse the process at Bayland Community Center.  To their credit, the election officials there acted in conformity with the law and only the disabled individuals were allowed to curbside vote.

To begin with, a look at current law shows how the disabled and elderly are protected.  Making changes to the Election Code will weaken the protections by opening up the process to others who are not currently protected.  Three provisions of the Election Code are telling: (if you don’t want to read the legal a summary follows immediately after the code sections)

Texas Election Code Sec. 43.034.  ACCESSIBILITY OF POLLING PLACE TO THE ELDERLY AND PERSONS WITH PHYSICAL DISABILITIES.  (a)  Each polling place shall be accessible to and usable by the elderly and persons with physical disabilities. To be considered accessible, a polling place must meet the standards established under Article 9102, Revised Statutes, including the following standards:

(1)  the polling place must be on the ground-level floor or be accessible from the ground-level floor by an elevator with doors that provide an opening of at least 36 inches in width;

(2)  doors, entrances, and exits used to enter or leave the polling place must have a minimum width of 32 inches;

(3)  any curb adjacent to the main entrance to a polling place must have curb cuts or temporary nonslip ramps;

(4)  any stairs necessary to enter or leave the polling place must have a handrail on each side of the stairs and a nonslip ramp;  and

(5)  the polling place may not have a barrier that impedes the path of a person with physical disabilities to the voting station.

 

Sec. 61.012.  ACCESS BY PERSONS WITH DISABILITIES.  (a)  Except as provided by Section 61.013, each polling place must provide at least one voting station that:

(1)  complies with:

(A)  Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Section 794) and its subsequent amendments;

(B)  Title II of the federal Americans with Disabilities Act (42 U.S.C. Section 12131 et seq.) and its subsequent amendments; and

(C)  the requirements for accessibility under 42 U.S.C. Section 15481(a)(3) and its subsequent amendments; and

(2)  provides a practical and effective means for voters with physical disabilities to cast a secret ballot.

 

Sec. 64.009.  VOTER UNABLE TO ENTER POLLING PLACE.  (a)  If a voter is physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health, on the voter’s request, an election officer shall deliver a ballot to the voter at the polling place entrance or curb.

(b)  The regular voting procedures may be modified by the election officer to the extent necessary to conduct voting under this section.

(c)  After the voter is accepted for voting, the voter shall mark the ballot and give it to the election officer who shall deposit it in the ballot box.

(d)  On the voter’s request, a person accompanying the voter shall be permitted to select the voter’s ballot and deposit the ballot in the ballot box.

 

In short, polling places have to comply with the ADA, be easily accessible for the elderly, and provide for curbside voting if an individual is unable to physically enter the polling location without personal assistance or the likelihood of injuring the voter’s health.  If curbside voting is appropriate, the voter using curbside voting can have an individual accompanying them select the voter’s ballot – this means assist them with the voting just like if they were inside the polling location.  The elderly and disabled have both ADA protections as well as curbside voting access if they are unable to enter the polling location.  Opening up the process to more individuals imposes extra burden on the elderly and disabled by granting access to people who presently do not qualify and accordingly create longer wait times for the elderly and disabled.

A Statutory Fix is Needed

Under the current rules nothing can be done about quorum busting unless the absent legislators are in state.  Texas law enforcement personnel can only exercise jurisdiction within the boundaries where they are empowered. The Democrats running to Oklahoma like they did to block redistricting in the past, or to DC now means they are beyond the reach of Texas law enforcement personnel.  They get a free pass until they arrive, and even then, despite all the noisemaking to the contrary if they act appropriately are free from being arrested.

The pertinent Texas Constitutional Provisions state: (summary follows)

Article III Section 14

Privilege From Arrest During Legislative Session

Senators and Representatives shall, except in cases of treason, felony, or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same.

Article III Section 40

Special Sessions; Subjects of Legislation; Duration

When the Legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such a session, or presented to them by the Governor; and no such session shall be of longer duration than thirty days.

Article III Section 10

Quorum; Adjournments From Day To Day; Compelling Attendance

Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such a manner and under such penalties as each house may provide.

Summary – legislators cannot be arrested if they are going or returning from the legislative session unless it is for a felony, treason, or breach of the peace.  Special sessions are limited to 30 days. Although each chamber can compel attendance of absent members under such penalties as they see fit, it cannot be in conflict with the Texas Constitution and that means no arrest for absent members heading to the legislative session.

To avoid arrest all the Democrats have to do is wait out the time on the current special session.  If (when) the Governor does call another special session all they have to do is to publicize they are traveling to the new session and they are protected from arrest.  Simple measures ensure they escape valid arrest, and if an unlawful arrest occurs they have ample ability to seek redress in the friendly district courts in Austin.

Solutions

 Both short term and long term solutions are needed to ensure the problem is prevented in the future.  In the short term, the legislature should enact penalties as they see fit to compel attendance.  As long as they do not run contrary to the Texas and/or United States Constitution the legislative chambers have very broad latitude.  A simple solution is to both dock the absent legislator’s budget each day they are absent AND forcibly close all of the absent legislator’s offices.  The legislature could act in this manner, and further they could use the daily budget docking to pay state troopers to stand watch over the offices and arrest anyone trying to enter the office for criminal trespass.  Cutting the absent member’s ability to do work on behalf of their constituents is a pressure point to get them to report back to Austin.

A long term solution is also needed to prevent a reoccurrence.  This was an organized effort with assistance from third parties.  When the next special session is called the Governor needs to add an agenda item of creating criminal penalties for being voluntarily absent for the purpose of denying a quorum.  Remember, the prohibition from arrest contains exceptions for a felony.

By making quorum denial a felony two goals are achieved.  First, the absent legislators can be arrested even upon returning for the crime.  More importantly, anyone assisting in the endeavor can be charged for assisting with the crime.  Future walkouts will be difficult to organize if the accessories are subject to arrest for a felony.  It’s hard to find a pilot to fly you or a hotel room to rent if the individuals involved are subject to criminal penalty.

These steps wouldn’t be a rock solid way to ensure no future walk outs occur. However taking these steps, along with codifying the Attorney General has prosecutorial authority in the venue of their choosing goes a long way to injecting fear and uncertainty to the process.

 

Charlie Gard and The Texas Advanced Directives Act

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Let me be clear from the outset – I think that Texas Health and Safety Code 166.046 is an unwise provision of law and in effect is an unregulated in-house hospital death panel. I don’t think it was intended to be an in-house death panel and operation has expanded beyond intent. I also think that measures along the lines of the code need to be present and that correction rather than repeal is the better course of action.

Fact Pattern

Charlie Gard has a rare mitochondrial disease which is likely going to kill him. However, others with similar diseases have been helped with experimental treatments. At the time of writing, a hospital in the US is willing to treat him with the experimental treatment. The Vatican has agreed to take him into one of their hospitals. The family has financing in place to bring him to the US for treatment and to pay for the treatment. The availability for treatment isn’t in question. Medical providers are willing to treat, his parents are willing to have the treatment, and financing is in place for the treatment. This is not a case of futile care treatment. It may become one, but right now is not. It’s also noteworthy that his court appointed guardian is involved with a “dignity in dying” association. The denial of available care with willing care providers and the particular appointment for court guardian is an affront to moral dignity. While the law in Texas is somewhat different, it’s easy to get in a scenario where the same “good of the patient” analysis is brought before the courts. It’s also not difficult to see a situation with equally bad optics for a potential court appointed guardian.

Ethical Considerations

The Journal of General Internal Medicine has an easy to read article, cited 81 times, discussing considerations in futile care treatment.

The article notes three types of futility: physiologic, benefits-centered, and operationalizing. Physiologic futility means no physiologic benefit results from the treatment. Benefits-centered means the treatment will not benefit the patient. Operationalizing futility is where the cost of treatment exceeds the benefits.

Problem with the Law

This brings us to the problem in the code – no standard for review is set forth. While it’s assumed that benefits-centered review will be used nothing in the code prevents operationalizing futility from being, in whole or in part, the standard of review by the in-house committee.

Let’s assume that a hospital is going to use benefits-centered review at their in-house review. This sets up a situation where they feel that they are acting in the best interest of the patient, and by definition any opposition is not in the best interest of the patient. It’s not a leap to have a hospital file for a guardian for the patient at that point. It fits in with the notion they are acting in the best interest of the patient. It’s presumed that the guardian will come to the same conclusion that the hospital reached, otherwise why file? Nothing in the law prevents an assisted suicide advocate from being the guardian. Now, we have a situation where the analysis is similar to what’s happening in the Charlie Gard proceedings.

If that’s where the situation is headed it’s better to have a jury decide what’s in the best interest of the patient. This is no different than any other civil dispute. The parties are opposed to each other and unable to reconcile without legal intervention. With the possible use of operationalizing review, rather than assume the hospital’s ethical panel is acting in the best interest of the patient, a jury should be making the best interest determination if the hospital wishes to no longer treat on best interest grounds.

Conclusion

We all die. Sometimes medical care is capable of sustaining life, but that medical treatment is futile. If the situation is questionable, then moral dignity requires that benefit of the doubt go to the patient. With the law allowing hospitals to use operationalizing any in-house determination that care cessation is in the best interest of the patient is suspect. A trial by jury is a middle ground compromise that protects moral dignity while preventing futile care.

Chosin Reservoir, Freedom Caucus, Straus, and the Special Session

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When the Chinese intervened in the Korean War they hoped to sweep south with overwhelming numbers and drive the UN forces back.  Simple plan, and the numbers were in their favor.  Success seemed likely.  However, from November 27 to December 13 fighting occurred at the Chosin Reservoir.  The Chinese achieved their goal of forcing UN forces from northeast Korea.  However, the UN forces were able to successfully withdraw, and in the process approximately one-third of the Chinese forces were casualties.   While the Chinese victory was not pyrrhic, it did significantly weaken the third-phase offensive and set up the stalemate that followed.

What does a 1950 Korean War battle have to do with the special session?  The “freedom caucus” lead a successful battle, dubbed the Mother’s Day Massacre, in the House leading to the special session.  This scorched-earth tactic had the desired result of getting conservative items on the agenda for the special session.  Hats off to the victors.  However, the overall political situation isn’t any more favorable to the freedom caucus now than at the Mother’s Day Massacre.  Although a new speaker needs to be elected for the session how likely is it that someone other than Straus is elected?  He will receive all 55 democrat’s votes for speaker.  With those in his back pocket he only needs 20 of the 95 republicans to side with him to hold on as speaker.

Right now, a campaign to replace Straus is ongoing.  The Texas Politics Project at the University of Texas at Austin polling shows 29{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} of republicans consider themselves tea-party.   The freedom caucus numbers 11 (11.5{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}), suggesting freedom caucus support is in concentrated areas diluting statewide influence.  They need to pick up 65 additional republican votes to unseat Straus.  With the ill-will floating around after the Mother’s Day Massacre, this is a tall order.

Straus has drifted from center-right to center-left in his governance of the House. If Straus is to be replaced, a compromise candidate will need to be found for a negotiated replacement.  The good of the party calls for such an action.  This means neither the freedom caucus nor the moderate republicans will be happy this special session.  However, with the political capital spent in the Mother’s Day Massacre the freedom caucus isn’t in a position to control the agenda.  They showed they can fight and win the tough fight.  Now, it’s decision time.  Will they compromise and capitalize to some degree on their victory?

Special Session and the Governorship

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Competition is a good thing and when you have two conservatives vying to be governor, it could be really good. Abbott is described by one Texas lawmaker as scheduling a “conservative home run derby” with the announced special session. The winner will be conservatives all over Texas who have waited for years for such an opportunity. Governor Abbott is playing catch up with Republican primary voters and Abbott’s 20 item special session is his way of getting ahead of Dan Patrick. Two questions remain: (1) will it succeed and (2) will the mainstream media recognize the subtlety.

Democrats have wrongly accused Governor Abbott of becoming unhinged based on the content of his special session call. Democrats see Abbott’s conservative call as a liberal disaster. What they do not see is that Lieutenant Governor Dan Patrick is planning to run against Abbott. Lt. Dan has been planning this since at least November 2016 when he and his political consultant Allen Blakemore openly discussed the opportunity at the Harris County Republican Party election night watch party. When all countywide republicans were defeated in one fell swoop in Harris County, Patrick saw opportunity.

Planning and success in politics requires opportunities, not unlike the business world. Darrell Royal once said, “Luck is what happens when preparation meets opportunity.” Sports metaphors work in politics too.

When Dan Patrick wakes up in the morning, he sees the President of the United States in the mirror, not the Lieutenant Governor of Texas. Lt. Dan sees the Governor’s Mansion as his next step to the presidency. The governorship of Texas provides a very important fundraising platform. While only thirteen presidents served as governors, four of the six latest presidents were governors: Jimmy Carter (Georgia), Ronald Reagan (California), Bill Clinton (Arkansas), and George W. Bush (Texas).

Lt. Dan’s plan requires getting rid of Governor Abbott. Patrick’s team has already begun to portray Governor Abbott as a nice enough guy, but someone who is not moving the conservative agenda forward. If you are active in Republican circles you have heard Patrick’s “Abbott has failed to show leadership” narrative. Governor Abbott is behind because he actually believed Patrick when he said that he would not run against Abbott.

This plan is being executed on a number of fronts. The bathroom bill was nothing more than a ruse to put Lt. Dan to the right of the Governor, and to get back into the good graces of Steve Hotze. The quest is to win over Republican primary voters. This will confound the Texas media. Most of the media that covers statewide politics covers it from the prism of Austin. This is the last place this fight will occur. Conservative enclaves in Houston, Dallas, Fort Worth, and San Antonio are about to be wined and dined in a way we haven’t seen in quite some time. Lt. Dan has been on a statewide tour explaining his great leadership skills.

The orchestration of the death of the sunset bill was by design. This was done to bait Abbott into calling a special session and the Texas Freedom Caucus was used by Patrick to further his agenda. Don’t get me wrong, the Texas Freedom Caucus is a group of  liberty and freedom loving patriots who are all about smaller government, but they need to be careful of Lt. Dan as well. Watching Lt. Dan throw every Houston taxpayer under the bus on the pension bill should be a cautionary tale to all.

Before he killed the sunset bill, Lt. Dan had to wait until the pension bill (SB 2190) passed the house so his law enforcement union friends (e.g., HPOU) would continue to support him and line his pockets. Patrick has always closely aligned himself with this union, which handed out more money to legislators this session than Donald J. Trump trying to get a building built in Manhattan. I hope that Governor Abbott was smart enough to cut a deal of his own before he signed this horrific legislation. Once the pension bill passed, Abbott and Straus played into Patrick’s hands – now it will be a fight.

One winner in this fight: Texas conservatives. Strong conservative legislation makes folks choose sides. This will not be good for Straus and his Republican henchman. Republican primary voters are about to learn a lot about their state representatives. Speaker Straus and his liberal house leadership, including his democratic committee chairman, are about to be whipsawed in a way not seen in these parts in a long time. Straus is unlikely to survive and the heat of the July Texas special session summer will burn through until the Republican primary.

Governor Abbott finally woke up to realize that Patrick was putting him in a corner and Abbott is fighting back with his special session call. Folks forget that your opponent gets to throw punches too. It is great to see the governor fighting back and doing his best to prove his conservative bona fides. Again, conservatives for the win.

This game is probably over for now and (unfortunately) Lt. Dan will have an advantage in a 2018 Republican primary against Abbott. Remember, the goal is for Lt. Dan to be in position to primary Donald Trump in 2020 or step into his shoes if something should happen. I was reminded of Dan Patrick’s press conference to announce that he was not running for governor. I was also reminded that Kay Bailey Hutchison denied 18 times (six times on television) that she was running against Rick Perry before she did.

Competition is a good and the real winners here will be conservatives. We need more conservative competition for ideas in Texas and nationally, it is healthy for our Republic.