The state's top lawyer has taken to the phones to promote a constitutional amendment against gay marriage. "This is Attorney General Greg Abbott. A shadowy group is making deceptive phone calls to trick you on how to vote on Proposition Two. Let me be clear. A vote for Proposition Two is a vote for traditional marriage. Early voting ends this Friday. Please protect marriage by voting early for Proposition Two so we can keep marriage between a man and a woman." The shadowy group he's referring to is No Nonsense in November, which was set up weeks ago to oppose the constitutional amendment. They didn't identify themselves in their ads. Neither did Abbott's sponsor, but his aides say he did the recording for the Republican Party of Texas, which paid for the phone calls. A spokeswoman for the GOP wouldn't say how many calls were made, or to whom. Other Republicans have taped messages, apparently, and some voters will be hearing those comments on their answering machines between now and Election Day next week. Abbott's message started hitting answering machines -- at least those in reporters' offices, where we got ours -- a day after the No Nonsense group did a round with people reading judicial comments from Abbott himself and from Justice Nathan Hecht, Abbott's former colleague on the Texas Supreme Court. the two Republicans initially scheduled a press conference to protest the use of their words, but decided against it. Abbott did the ad, while Hecht issued a statement saying his words were taken out of context. The anti-2 folks say the wording of it is sloppy and would accidentally outlaw marriage of any sort, if read literally. Abbott contests that, as do the authors of the amendment, who say opponents are trying to confuse voters. But the opponents pulled out an Abbott opinion -- he used to be on the high court -- where he said judges should rely on the words before them over the intent of the Legislature. Hecht's quote was taken from an interview in which he was defending Harriet Miers. He told the Austin American-Statesman that the personal views of judges are outweighed by the laws they interpret: "When you're construing the Constitution or statute, you're stuck with what's there." Abbott, as you can see, is taking a position on the amendment. Hecht, who might eventually hear a case stemming from the thing, has no public position on it. 

Now that Tom DeLay has successfully removed a Democratic judge who was set to preside over DeLay's trial, Travis County District Attorney Ronnie Earle wants to recuse the Republican judge who is supposed to name a replacement. The motion is in our Files section. Or you can click on this address to download it directly: www.texasweekly.com/documents/MotionToRecuseSchraub.pdf.
The Austin American-Statesman was first up with the story:
  Earle doesn't want regional judge to pick court/District attorney files motion to keep Schraub from selecting judge for DeLay case  By Laylan Copelin, Austin AMERICAN-STATESMAN STAFF  In an unprecedented move, Travis County District Attorney Ronnie Earle filed a motion Thursday asking a Republican presiding judge to remove himself from the decision about who will be the trial judge in the conspiracy case against U.S. Rep. Tom DeLay, R-Sugar Land. 

The judge who was going to pick a new judge to hear Tom DeLay's trial recused himself after prosecutors pointed out his Republican bonafides, kicking the impartiality mess up to Wallace Jefferson, the chief justice of the Texas Supreme Court. But Jefferson's political conflicts are as thorny as anyone's in this particular food chain. Judge B.B. Schraub, the administrative judge for the district that includes Austin, was set to appoint a judge to replace Bob Perkins, who was recused after a hearing on his contributions to Democratic political organizations and groups considered hostile by DeLay's team. Before Schraub picked a judge, Travis County prosecutors said he should step aside for the same reason Perkins was ousted -- he's made political contributions that could potentially raise questions about his impartiality. Schraub recused himself within a matter of hours, sending the case to Jefferson. Jefferson hasn't acted as this is written, but he's got several things on his record that raise similar questions. His campaign treasurer in 2002 was Bill Ceverha, who was also the treasurer for Texans for a Republican Majority Political Action Committee at the time. That's the DeLay-founded group that helped elect a GOP majority in the Texas House and also triggered the campaign finance investigation that produced the charges that have been leveled against DeLay. Jefferson's fundraiser in that campaign was Susan Lilly, who also raised money for TRMPAC. DeLay is accused of conspiring to run corporate money through the national GOP, which then contributed non-corporate money to Texas candidates. The arm of the GOP that did that -- the Republican National State Elections Committee -- gave Jefferson $25,000 on March 6, 2002. All of those transactions occurred in the same election cycle. The template for TRMPAC came from Americans for a Republican Majority PAC, another DeLay creation that operates mainly in federal elections. ARMPAC contributed $2,000 to Jefferson's judicial campaign on October 10, 2002. Jefferson wasn't a contributor to political causes and candidates like Perkins and Schraub were; his only two political donations on record with the Texas Ethics Commission were made to the Harris County Republican Party. One was for $1,500 in July 2001; the other was for $300, paid in March 2002. 

Pat Priest, a senior judge in San Antonio, is Wallace Jefferson's choice to hear the DeLay case.  Jefferson, the chief justice of the Texas Supreme Court, sent a letter to Priest at the end of a day of judges trying to keep their personal politics separate from their judging. At about the same time Jefferson was tapping Priest, Travis County prosecutors filed papers asking Jefferson to remove himself from the case because of his own ties to groups and people involved in the campaign finance case that produced indictments against U.S. Rep. Tom DeLay and several associates. Priest, born in 1940, is a former district judge who now roves the courts as a visiting judge. He's a former adjunct prof at St. Mary's in San Antonio (that's also where he got his law degree) and was a criminal defense lawyer before he first put on the robes in 1980. Priest wrote a book -- Texas Courtroom Criminal Evidence -- compiling the rules of operation in those courts.
  Priest has made three political contributions since 2000, according to the Texas Ethics Commission, each for $150 and each to San Antonio Democrats in the Texas House: Ruth Jones McClendon, Trey Martinez Fischer and Carlos Uresti. He shut his own political campaign accounts down in 1994, after losing a Democratic primary for a spot on the 4th Court of Appeals in San Antonio. 

Finding evidence of politics in the Texas judiciary is like finding chicken in Bo Pilgrim's refrigerator. They're chosen in partisan elections or appointed by partisan officeholders (the judges, not the chickens) and their fates rise and fall with those of the political parties.  When somebody in Texas wants to be a judge, they either cozy up to an officeholder with the ability to appoint them, or they get involved in local judicial politics and start raising money and giving money and getting and giving favors, just like constables and sheriffs and governors. A tired line from redistricting -- "you can't take the politics out of politics" -- applies to judges, too, when they're elected or appointed by politicians. None of this is a defense of state district Judge Bob Perkins of Austin, removed from a campaign finance trial after lawyers for U.S. Rep. Tom DeLay pointed out Perkins' contributions to various Democratic causes. But it makes for interesting cocktail conversation: Perkins ran as a Democrat, gave to Democrats, and was ousted because some of the groups he supports have spent at least some of their time vilifying DeLay, a national figure in the GOP. A final once-and-for-all replacement judge might have been chosen by the time you read this, but remember: Every state judge in Texas was either elected as a Democrat or a Republican or was put in office by someone elected as a Democrat or a Republican. It's difficult to find what lawyers refer to as a "bright line test" in all of this. What's the thing a judge has to do to upset the balance? Perkins got bounced after a four-hour hearing that featured Republican consultants, a state representative, a couple of Democratic Party officials from Austin, a former chief justice of the Texas Supreme Court and a law firm researcher. The short version: He contributed to Democratic candidates, the party, and to MoveOn.org. DeLay's lawyers say that's completely legal and even respectable, but they said the pattern of giving would raise questions about Perkins' impartiality outside of the courtroom. State Rep. Terry Keel, R-Austin, said he's known Perkins for years and thinks the judge would give DeLay a fair trial. But he said "the majority of my constituents will think this was unfair in light of his contributions." Perkins recused himself from Kay Bailey Hutchison's trial more than ten years ago because he had given $300 to Democrat Bob Krueger, who ran against her. He hasn't given money to any DeLay opponents, but DeLay's lawyers said some of the groups that Perkins has supported have worked against DeLay and that, they contend, amounts to the same thing. John Hill Jr., the former chief justice of the Texas Supreme Court, was one of the witnesses for DeLay's team; Duncan shut him down when he began winding his way through what sounded like a ruling on the case from the witness box. Before that, Hill went over some of the earlier testimony -- he and other witnesses sat through the hearing -- and then talked about the law, and then said Perkins' conduct clearly called for a recusal under the law. "He gave money to an organization that was involved in the subject matter of this case," he said. Duncan shut him down and said he'd judge the thing himself; the lawyers stopped their questions for Hill pretty quickly after that. Some of the lawyering that led up to the dispatching of Perkins was more about appearances than about whether he had a bias that might affect the outcome. Travis County District Attorney Ronnie Earle argued against any change in judges: "There is no basis, no precedent, for a recusal based on a judge's political contributions." He said recusing on such grounds would spiral into "sectarian fighting" that would "turn us into Shiites and Kurds and Sunnis." Richard Keeton, one of DeLay's lawyers, asked Duncan to pull Perkins to preserve respect for the courts. "You can save him from himself here... For the good of Texas, that's not the Luling Press and the Hutto Hippo out there, that's the national press, that's the international press."?
Within a couple of minutes, Duncan said simply that "the motion to recuse is granted." That was that. 

The committee that will poke and prod the state's tax system, searching for something more lucrative and less painless, has swollen to nearly two dozen Texans, and we've been able to snag most of the names (it's hard to keep a secret when that many people get involved). Gov. Rick Perry is hoping to finish the list and make it public within the next few days, and the panel could get in a couple of meetings before the holidays shut government down.  Former Comptroller John Sharp, a Democrat who ran against Perry in 1998 and against Lt. Gov. David Dewhurst in 2002, will chair the panel. He'll be joined by an assortment of business and policy people from around the state. No elected officials will be on the committee, but both Dewhurst and House Speaker Tom Craddick were able to name at least one ally to the list. That list wasn't complete when we went to print, but we've checked these names with some reliable folks: • Truman Arnold of Texarkana, a Democrat who's in oil and gas and used to own a chain of convenience stores; • Bill Blaylock, tax director at Texas Instruments in Dallas; • A. J. Brune III, the CFO of Wagner and Brown in Midland and Craddick's pick for the panel; • Randy Cain, a tax consultant with Ernst & Young in San Antonio; • Alonzo Cantu of McAllen, who's in construction, banking and other businesses; • James Dannebaum of Dannebaum Engineering Corp. of Houston; • Wendy Lee Gramm, an economist with the Mercatus Center in Washington, the wife of former U.S. Sen. Phil Gramm, and the only person on this list with a Wikipedia entry (http://en.wikipedia.org); • Hunter Hunt, an executive with Hunt Oil in Dallas; • Woody Hunt, chairman and CEO of Hunt Building Corp. of El Paso; • Kenneth Jastrow of Austin, Chairman and CEO of Temple-Inland Corp.; • Jodie Jiles, chairman of the Houston Partnership and an executive with First Albany Capital; • Judy Lindquist, vice president and general counsel for San Antonio-based H.E.B.; • William McMinn of Houston, a businessman and Republican donor; • Ernie Morales, co-owner of Morales Feedlots in Devine; • Jan Newton, president of SBC-Texas; • Dennis Patillo, who runs a Houston real estate company and is the incoming chairman of the Texas Association of Realtors; • John Roach, chairman emeritus of Fort Worth-based Tandy Corp.; • Robert Rowling of Dallas, owner of Omni Hotels, Gold's Gym International and other enterprises, and the 43rd person on Forbes Magazine's list of richest humans; • Ron Steinhart of Dallas, a former exec with Bank One and several other banks; • Dr. David Teuscher, a Beaumont doctor and a member of the State Republican Executive Committee; and • Howard Wolfe, a Houston attorney and close friend of Dewhurst's. A footnote: Dewhurst wasn't happy when Perry named Sharp to head the panel and still hasn't met with his former adversary, though it looks like a thaw is underway. But you can get a measure of his ire if you know who he initially suggested for a spot on Perry's tax panel: Jim Francis of Dallas, an outspoken Republican critic of the governor who was urging U.S. Sen. Kay Bailey Hutchison to run against Perry. Francis won't be on the panel, and Dewhurst and Sharp are apparently trying to put together their first meeting since the rancorous 2002 contest for Lite Guv. 

Early voting has been heavier than some people were expecting. One constitutional amendment -- a proposed ban on gay marriage -- is a draw for voters, but there's not much else around the state to get the blood flowing. Houston's city elections correspond with the amendment elections, but there's not much fight in that. With a couple of days of early voting uncounted, turnout in the 15 biggest counties in Texas totaled 3.3 percent of the registered voters. Harris County accounted for almost a fourth of the overall total, but the big turnouts on a percentage basis have been in Travis County (7.1 percent with two days uncounted) and neighboring Williamson County (6.3 percent had voted early). Secretary of State Roger Williams is predicting a 16 percent turnout when it's all over. That stinks, but it's a high number for this kind of election. Only 12.2 percent of the voters showed up for constitutional amendments in 2003. • Gov. Rick Perry would beat all comers according to a Zogby Interactive poll from mid-September. The surprise in the bucket of numbers is that Kinky Friedman out-polls Tony Sanchez, the Laredo Democrat who spent almost $70 million losing to Perry in 2002. By Zogby's lights, Perry would pull 40 to 41 percent of the vote in any three-way general election race with potential opponents Friedman, Sanchez, Chris Bell, John Sharp, or Jim Turner. Comptroller Carole Keeton Strayhorn would get 32 to 35 percent of the vote in any of those general election scenarios, but would come out in first place. They didn't test the Republican primary featuring Perry and Strayhorn. They got responses from 1,227 people between September 16 and 21 and say their margin of error is +/- 2.9 percent. • U.S. Rep. Tom DeLay, R-Sugar Land, had a good week. He got a Democratic judge -- Bob Perkins -- knocked out of his trial, and he reported raising $318,020 during the third quarter for his defense fund. He spent $278,466 from that fund during the same period. Contributions are capped at $5,000. • Kinky Friedman's campaign says they raised $170,000 at a fundraiser featuring singer Willie Nelson and former Minnesota Gov. Jesse Ventura. Separately, that campaign is trying to get people to watch a reality TV show on Country Music Television about the campaign to better their chances of keeping it on the air. That prompted Jason Stanford with Democrat Chris Bell's campaign: "We hear that on the last episode Kinky gets voted off the island." • Endorsements: Gov. Rick Perry picks up the San Antonio Police Officers Association, the Texas Society of Professional Engineers, and U.S. Rep. Michael Conaway, R-Midland. Susan Combs, running for comptroller, got a nod from the Texas Civil Justice League. • Robert Sanchez, a Republican who had started a campaign against U.S. Rep. Charlie Gonzalez, D-San Antonio, announced he won't run after all. He began the effort last March and said in a note to supporters that "many of the necessary elements of the campaign did not develop as needed." • Oliver Bell, an Austin Republican, tells the local paper he's decided not to run for the Texas Senate after all. Democratic attorney Kirk Watson -- former mayor and current president of the chamber of commerce -- is the only candidate at this point who's announced he'll run for the spot left by Gonzalo Barrientos' decision not to seek another term. Republican Ben Bentzin, who challenged Barrientos in 2002, had already decided against a contest with Watson when a House seat opened up. Bentzin will run for that against three or four Democrats; Watson might get a cakewalk. • Donna Howard, one of the Democrats who wants to represent Austin's HD-48, says she'll run in the special election to replace Rep. Todd Baxter, R-Austin, who resigned. The Democrats made some efforts to keep their numbers down in that special election -- the better to fend off Republican Ben Bentzin. We won't know if that worked until they start signing up. Howard, Andy Brown, Kathy Rider and Kelly White have all expressed interest in running. Gov. Rick Perry hasn't called a special election yet. • Analyzing legislative and congressional districts? You'll need numbers from the 2004 elections cranked by the Texas Legislative Service. They sent us files listing election results by congressional, Senate and House districts and you can download them in the Files section of our website. 

The state's top civil jurist refused to recuse himself from picking a judge for Tom DeLay's trial today, saying there's nobody else to do the job and saying the proper target of a recusal motion is a trial judge and not the guy who picks him. In a letter to the lawyers in that case, Texas Supreme Court Chief Justice Wallace Jefferson said his selection of San Antonio senior Judge Pat Priest will stand. Jefferson said he can't find anything in the law that requires him to step aside, and wrote that "I have a duty to ensure that the judicial process is not paralyzed any time a recusal motion challenges a judicial officer who is performing a purely administrative function." If they lawyers don't like Priest, they can challenge him, Jefferson wrote: "The recourse is to challenge not the power to assign, but the assignment itself." 

Robert Howden, a former aide to Gov. Rick Perry who has done freelance lobbying, worked for the Texas Association of Automobile Dealers and the Texas office of the National Federation of Independent Business, will be the staff director for what's been officially dubbed the "Texas Tax Reform Commission." The policy chops will be provided by Karey Barton and James LeBas, two former comptroller employees brought in for subject matter expertise. LeBas, now the CFO for the Texas Water Development Board, was chief revenue estimator for Comptroller Carole Keeton Strayhorn. Barton, most recently a tax consultant, was director of state tax policy for Strayhorn and for her predecessor, John Sharp. Sharp will head the 24-member commission. The names of most people on the panel made the current Texas Weekly, but not all of them. Add: • Prentice Gary, managing partner of Carleton Residential Properties in Dallas; and • Victor Leal of Canyon, owner of a chain of four family restaurants in the Panhandle. See yesterday's item -- Just Look at the Size of this Thing -- for the rest of the members. And make one amendment: Howard Wolf is no longer an attorney from Houston, though that was once true. He retired from Fulbright and Jaworski and now has a solo practice in Austin. He also serves on a couple of boards: Stewart & Stevenson Services, and Simmons & Co. International.