A House committee bungled its votes on divorce and abortion bills, killing a couple of the session's most controversial issues.

House State Affairs Chairman David Swinford, R-Dumas, called for a vote with six of the nine members of his committee gathered around his desk on the House floor. There were three bills up for approval, and each got four Yups and two Nopes.

But you have to have a hard majority to move a bill. That's five votes in this case. And because the two legislators who voted no won't change their votes, two of the bills are finished and the third is alive only because its Senate twin passed.

The so-called "trigger bill" that outlaws abortion in Texas if the Roe v. Wade decision is overturned by the U.S. Supreme Court won't go to the full House. That legislation, HB 175, had other problems — keep reading — but Rep. Warren Chisum, R-Pampa, hoped to get it to the floor of the House for a debate.

Next was another Chisum bill — one that made it to the floor only to be sent back to committee on a point of order. He wanted to make marriage more durable by making divorce more difficult, slowing the time between breakups and legal divorces, and allowing couples to speed up the proceedings by going through counseling or by proving there'd been violence at home. The conflict resolution training, he and other supporters figure, would keep couples together. Opponents said it would create an unreasonably long wait — two years — before couples could split. The bill, HB 2684, made it to the floor earlier this month but a rules violation sent it back to Swinford's committee, where it died. Chisum said he hopes to attach the bill as an amendment to something else before the session ends.

The third bill killed in Swinford's committee lives on, but only because the Senate's version passed. It would require doctors to report abortions and details about them to state health officials, and would require the state to put out an annual report on the statistics. Rep. Geanie Morrison, R-Victoria, is still playing because the Senate narrowly okayed SB 785 by Sen. Florence Shapiro, R-Plano. That's on its way to the House.

The goof gets House members off the hook on two big controversies; they don't have to vote one way or the other on those issues. That inspired some speculation that somebody was trying to protect the House from voting on the bills, but Swinford insists he screwed up and that he had intended to vote all three measures out of his committee.

Two Democrats — Jessica Farrar, D-Houston, and Marc Veasey, D-Fort Worth — voted against all three bills. At least one and maybe all three members who missed the vote — all of them Republicans — could have been counted on to provide the fifth vote to move the bills to the floor. But the only way to repair the vote is to get someone on the prevailing side to allow reconsideration.

Veasey said he'd been asked, but he said no. He's winning.

A Price Tag on Roe v. Wade

It would cost more than $500 million annually in state and federal funds to make abortions illegal in Texas, according to an estimate from the Legislative Budget Board.

That's the price tag that agency put on a so-called "trigger bill" that would make abortions illegal in Texas if the U.S. Supreme Court overturns its decades-old ruling in Roe v. Wade.

Put another way — a less delicate one — that's the legislative estimate of how much money the state's taxpayers save because of Texas' current abortion laws.

It would cost around $200 million annually in state funds and another $300 million in federal funds if abortions were illegal in the state, according to the LBB's fiscal note on HB 175. That's based on the cost of the state medical and aid services those children would require if they were born, and doesn't include schooling and other programs.

The arithmetic is macabre. The analysts took the state's abortion rate from 2003 and estimated the number of abortions that would take place in the future based on that rate and the number of child-bearing-age women in the state in the future; their calculation is that there will be 78,718 abortions in 2008, rising to 82,828 by 2012. They assumed 20 percent of pregnant women seeking abortions would go out of state if abortions were illegal here, and that another one percent would have abortions here based on health of the mother or the fetus. The other 79 percent? More babies would be born; for the year 2010, they estimated 64,224 more births.

Where's the cost to the government? Medicaid and other services. More than half of the births in Texas — around 55 percent — are paid for Medicaid (or were in 2005, the year used for the estimate). The analysts assumed some percentage of those kids would be eligible for Medicaid and other aid programs and services beyond their first birthday. They didn't include costs like public schools and the like.

In the first full biennial budget after such a change in law, the LBB estimates the state would spend $416.5 million in state funds and another $591.4 million in federal funds on those programs. The total tab, which would rise each year after that, starts at $1.01 billion.

The high numbers alone probably killed the bill's chance of becoming law, though it died in committee because of a mistake described elsewhere. And it's unusual that the LBB hit it with the big price tag, since the sponsor is Appropriations Chairman Warren Chisum, R-Pampa, who shares oversight of the LBB with his Senate counterpart. Chisum said he's not concerned about the fiscal note and said the flip side of the argument is that the state is saving money by allowing abortions. He'd rather pay, he said.

The Senate's Budget Team

The Senate's Five Budgeteers will be Steve Ogden, R-Bryan, Judith Zaffirini, D-Laredo, Robert Duncan, R-Lubbock, John Whitmire, D-Houston, and Tommy Williams, R-The Woodlands. Ogden chairs the Senate Finance Committee; Zaffirini is the vice chair.

Lt. Gov. David Dewhurst announced his picks more than a week after the House team was named, and a day after the Senate passed its version of Jessica's Law; the two bills had become politically entwined despite the differences in subject matter. Jessica's Law is Dewhurst's pet issue this session and he wanted votes. Republicans in particular were lobbying for a conservative makeup on the budget conference committee.

In the end, a conference committee seat that might have belonged to Sen. Kip Averitt, R-Waco, went to Williams, who is regarded by some Republicans as the more conservative of the two. A handful of those conservatives lobbied against reappointing Averitt and Duncan — both of whom were on the committee two years ago — in favor of someone further to the right. Dewhurst, asked by a reporter whether whining is the best way to get on the conference committee, said he considered several possibilities before making his decision about who gets to play. "Whine to the lieutenant governor? I don't know that I've ever heard Sen. Ogden, or Sen. Williams, or Sen. Duncan whine to the lieutenant governor."

The five senators will start talks this week with their counterparts from the House: Warren Chisum, R-Pampa, chairman of the Appropriations Committee; Dan Gattis, R-Georgetown; Ryan Guillen, D-Rio Grande City, vice chairman of appropriations; Lois Kolkhorst, R-Brenham; and Sylvester Turner, D-Houston.

The Legislative Budget Board has posted a simplified side-by-side comparing the two bills. The bottom lines are $2.1 billion apart, largely because the Senate included money to pay for increased health and human services for children to satisfy terms of a federal lawsuit settlement. The upper chamber also included across-the-board cuts in state government to pay for that settlement, so their budget would still be bigger without the court orders. The difference in general revenue spending — that's most of the state money in the budget — is $592.7 million. So they're close. But there's plenty to fight over.

Some key differences in the bills: The House voted for across-the-board pay raises for teachers in place of incentive pay; the Senate wants to build prisons that the House didn't include; the House included a "Quality Assurance Fee" on nursing homes that senators regard as a politically dangerous "granny tax"; and the two bodies disagree on how often people should reapply for benefits from the Children's Health Insurance Program, which is both a policy and finance decision. The Senate put more money into school buildings, while the House spent more on education technology. The House would raise the state's contributions to teacher retirement by $160 million and state employee retirement by $58 million. The Senate has more money in state employee health insurance programs. The Senate wants more for community colleges and health-related higher education.  The House put more into medical grad schools and border security. The Senate has more money on criminal justice for teens, including fixes for the Texas Youth Commission. The Senate included money for water and air plans, the House has contingency funding for the film industry.

Shots Across the Bow

Legislators agreed on a ban on gubernatorial orders to vaccinate pre-teen girls against human papillomavirus, or HPV. That legislation goes next to Gov. Rick Perry, whose mandate is being challenged here. Perry wants girls vaccinated against HPV before they enter sixth grade (unless their parents, for whatever reason, opt out). His order, issued as the Legislature began the session, angered some conservatives (HPV is a sexually transmitted disease, in addition to being a leading cause of cervical cancer) as well as some legislators, who don't think the Guv has the power to force the shots or to order the state to pay for them.

That sends the bill to the governor with plenty of time for lawmakers to overrule him if he decides to veto it. And the votes are there: The Senate approved the bill 30-1; the House concurred with a vote of 135-2. It takes two-thirds to override a veto.

The version sent to Perry includes a four-year ban on mandates from the governor to vaccinate Texas girls against human papillomavirus. Perry wanted to make the three-shot vaccinations a condition for girls entering the sixth grade in Texas public schools. The House's version of the state budget has another version of the ban in it; it says none of the money in that spending plan can be used to pay for vaccinations ordered by Perry.

Card 'em

Now that the House voted to require voters to show photo identification and a voter registration card to vote, that's off to the Senate, where an absent senator at the right moment could decide the outcome. The House tally was a party-line affair, nearly, with the Democrats in the room voting against it and all but two Republicans voting for it. The two Republicans who sided with the Democrats were Reps. Delwin Jones, R-Lubbock, and Tommy Merritt, R-Longview. The bill passed, 76-68.

Now it gets really interesting. When the late Sen. Greg Luna, D-San Antonio, was dying, he got then-Lt. Gov. Rick Perry to agree to a deal: Perry would give him 24 hours notice if the Senate was going to vote on a voucher bill carried by then-Sen. Teel Bivins, R-Amarillo.

Fast forward to the present day: Sen. Mario Gallegos, D-Houston, has asked Lt. Gov. David Dewhurst for the same deal on the voter ID bill. Gallegos, who had a liver transplant earlier this year, has sporadically attended this regular session. And in the Senate, business is business: If a senator who can block your bill isn't in the room, it's time to ask the Lite Guv to let you bring that bill up for a vote.

Dewhurst is giving the Luna precedent a narrow reading. He wrote to Gallegos in January, saying he's "happy to provide you with 24 hours notice one time for a vote on a single piece of legislation you designate in writing."

Dewhurst said he "can't imagine" a scenario — other than on redistricting issues in special sessions — when he would waive the Senate's rule that requires a two-thirds vote of the members present before a piece of legislation can come up to a vote. (There are some legal workarounds, but they're politically unsound.)

A Short-lived Tax Bill

So much for the Brimer Theory.

Sen. Kim Brimer, R-Fort Worth, managed to amend a transportation bill to include a clause indexing state gasoline taxes to inflation. The big deal — as pointed out by Sen. Florence Shapiro, R-Plano — is that tax bills have to originate in the House.

Brimer's gasoline tax amendment — added to omnibus transportation legislation authored by Sen. John Carona, R-Dallas — drew nays from Shapiro and Sen. Robert Nichols, R-Jacksonville. Sens. Rodney Ellis, D-Houston, and Tommy Williams, R-The Woodlands, did not vote. But everyone else voted for it.

According to "The Brimer Theory," tax language can originate in the Senate so long as it does not constitute the main body of the bill.

"Are you sure?" asked Shapiro.

"I don't have to be sure," answered Brimer.

"It will be an interesting parliamentary discussion," Carona said. "But one worthy of having."

Not mollified, Shapiro said, "I'm not in the business of spending time debating whether it's their turn or our turn. I think the Constitution — it's pretty clear on this issue."

Shapiro did succeed in blocking a second tax amendment by Brimer that would have allowed Dallas and surrounding counties to bust the sales tax cap (currently at 8.25 percent) and raise it to 8.75 percent to fund roads. Not wanting any amendment that would preclude his bill from passing committee unanimously, Carona asked Brimer to withdraw that one.

Senate Parliamentarian Karina Casari-Davis weighed in on Brimer's two amendments, telling Carona before the meeting that the gas tax should not originate in the Senate, but the sales tax cap buster could. The committee held up a vote on the bill to go to session — giving Brimer enough time to ruminate, chew a cigar or two, and change his mind.

"It's been overridden by the Parliamentarian. It was a short-lived theory," he said. "Sounds like a Brimer theory," laughed House Ways & Means Committee Chair Jim Keffer, R-Eastland, when told about Brimer's initial reasoning.

Brimer said the gas tax amendment won't be included in SB 1929 when it goes to the full Senate, and said he was trying to prompt the House to improve transportation funding. Keffer said he's not aware of any desire in the House to either increase the statewide gas tax or the sales tax in the Metroplex.

Carona's bill, covered here last week, includes the two-year private toll road moratorium prescribed by Nichols' SB 1267, already approved by the Senate.

It restricts non-compete clauses in road contracts, requires transparency in bidding, includes a landowners' bill of rights, gives local authorities more power to control road projects and creates rural planning organizations like the ones already in place for cities.

The bill also allots $25 million in money from TERP (a clean-air initiative) to start fixing the morass called Tower 55, a major rail intersection in downtown Fort Worth. Brimer, backed up by Union Pacific's Ron Olsen, said trains from all four corners of the compass have to wait their turn to cross Tower 55, idling all the while, blocking automobile traffic and constituting hazardous playground equipment for nearby elementary school kids. Ellis added an incentive program for people to buy hybrid vehicles.

Three things to keep an eye on that could become part of the bill: 1) a study of metropolitan planning organizations, suggested by Shapiro; 2) a limit on the number or total dollar amount of comprehensive development agreements entered into by the state; and, 3) a provision by Eliot Shapleigh, D-El Paso, blocking TxDOT from "staking out" a road project indefinitely, preventing anyone else from building that particular road.

—by Patrick Brendel

Hunting Cornyn, and Money, Too

The Democratic Senate Campaign Committee has a poll that says U.S. Sen. John Cornyn, R-Texas, is beatable in next year's elections. And while they were sending that to reporters with one hand, their other hand was sending the same info to Texas donors, suggesting they send some money to the Washington, D.C. outfit to get some Democrats elected.

According to the DSCC, Cornyn would get 47 percent to a generic Democrat's 38 percent in an election held now. The pollsters — Hamilton Beattie & Staff — said voters are split when asked if they'd be better off with Republicans or Democrats in charge of Congress. About half think the country's headed the wrong way, while a third think thins are on the right track. Cornyn's name ID is 39 percent — three-fifths of Texans can't identify him (but probably know who Sanjaya Malakar* is). Of those, however, 41 percent have a favorable impression of the state's junior senator as against 19 percent who think negatively of him.

Their spin: Cornyn's vulnerable.

Cornyn spokesman David Beckwith said his guy's 2-to-1 favorable to unfavorable rating is a strong sign. "The national Democratic campaign committee is looking to sap Texas trial lawyers for their money to be used in other states. They know Cornyn is strong because they haven't been able to find anyone to run against him."

Other stuff of interest: Gov. Rick Perry is viewed favorably by 52 percent of the people surveyed, unfavorably by 39 percent. He's only unknown by 5 percent, compared to 33 percent for Cornyn. The survey (attached) indicates the firm tried out five other names on respondents but didn't share them with the press.

The poll was done April 11-15. Pollsters got responses from 800 self-identified registered voters who are "certain" to vote in 2008. They said the survey's margin of error is +/- 3.5 percent.

The poll comes on the heels of a fundraiser for DSCC at the San Antonio home of attorney Mikal Watts where the organization says it raised $1.1 million. Texas Democrats say they've had some assurances that money will be used in Texas if Cornyn has a viable opponent. A bunch of names have been floated, though nobody has publicly jumped into the race.

Cornyn, meanwhile, put out a list of the people who are helping him raise money around the state. It includes: John Nau, state finance chair, Houston; John Schweitzer and Karen Johnson, Austin; Robert Rowling and George Seay, Dallas; Kit Moncrief and Dee Kelly Jr., Fort Worth; Ned Holmes and Jim Grace, Houston; John Steen and Rob Finney, San Antonio; Herb Wade in Central Texas; Bill Hartley, Gaylord Hughey, Whit Riter in East Texas; Sam Susser on the Gulf Coast; Granger MacDonald in the Hill Country; Clyde Seibman in North Texas; Four Price in the Panhandle; Nick Serafy in South Texas; and Robert Brown in West Texas.

* Sanjaya was voted off American Idol after a baffling run of success that dominated Thursday morning office conversation for several weeks. Now get back to work.

Fresh Meat

Former U.S. Sen. Fred Thompson of Tennessee would tie for second with U.S. Sen. John McCain of Arizona in a Texas Republican presidential primary held today, according to a survey by Austin-based Baselice & Associates.

His survey, done April 16-19, has former New York City Mayor Rudy Giuliani in the lead, with 24 percent, followed by Thompson and McCain with 19 percent each, former U.S. Rep. Newt Gingrich of Georgia with 12 percent, former Massachusetts Gov. Mitt Romney with 8 percent and a mess of people with less than that.

Undecided got 12 percent, tied with Gingrich.

One interesting thing about the poll (831 respondents, +/- 3.4 percent margin of error) is how it compares with an earlier survey that didn't include Thompson. While he was going from zero to 19 percent, everyone but Romney was losing numbers, possibly to Thompson, possibly to each other. Compared with the earlier poll, Giuliani lost four percentage points, McCain lost seven, and Gingrich lost five. Even undecided lost some, falling from 16 percent in the earlier poll.

Flotsam & Jetsam

Sometimes, you'll see reporters bear down on their notebooks when they're expecting something to happen.

Some were paying attention when Rep. Jim Keffer, R-Eastland, asked colleagues to approve a calendar rule to keep the crows from pecking his tax bill to death. That's the legislation that "fixes" mistakes in last year's tax bill, and it's a potential magnet for lobbyists who want to score a tax break for their clients. But Keffer's mojo was good. He got his rule with a comfortable 109-26 margin. The reporters put their notebooks down, a good sign for Keffer.

That bill comes up next week. It would let about 60,000 businesses out of the margins tax by raising the annual gross receipts floor to $600,000 (it's currently $300,000; the National Federation for Independent Business is pushing for a $1 million floor and for a lower tax rate). It changes a mistake on taxes paid by property leasing partnerships, another for banks and securities sellers, and another big one for businesses applying prior year losses against their taxes.

• Legislators are for it, so far, but the Texas Association of Business says a two-year moratorium on new toll roads would be bad for bidness. They say a stall could hurt economic development.

• Special Session — the weekly public television on politics and government — is doing a show on the status of bills you might be watching or cringing over. It's on Sunday in most markets, but check your listings for days and times.

• Department of Corrections: House rules require only one member to ask for a record vote; we had it as three last week... One more rule thing (see what happens?): A two-thirds vote on legislation only gives that law immediate effect when there's no date specified in the legislation. If there's a date in there, that's the effective date. Sorry, sorry, sorry.

Political People and Their Moves

Bruce Gibson, a former state representative and until recently, the chief of staff to Lt. Gov. David Dewhurst, will become the director of public affairs for Dallas-based Ryan & Co. next month. That's the same tax-consulting firm that employs former Comptroller John Sharp, the Democrat who lost to Dewhurst in a hard-fought election in 2002. Gibson has been consulting and lobbying since leaving Dewhurst's staff before the legislative session. Most of Ryan's business with the state revolves around tax cases with the comptroller's office.

Rolling, after a wait of almost two months: Albert Hawkins, who — if the whole Senate goes along with its Nominations Committee — will have another term as the state's health and human services commissioner.

Gov. Rick Perry named Mike McCullough and George Schrader of Dallas to the Texas Woman's University board of regents. McCullough is a senior partner with the Thompson & Knight law firm. Schrader, a former Dallas city manager, owns and runs an investment company.

And he appointed April Nixon, a manager with the City of Arlington, to the Texas Municipal Retirement System's board of trustees.

Charged: Rep. Harold Dutton, D-Houston, with driving while intoxicated in downtown Austin. His lawyer is former Rep. Terry Keel of Austin, who's also a former sheriff.

Deaths: Former state Rep. Jean Edmond Hosey, who served in the late 1950s and also practiced law with former Sen. A.R. "Babe" Schwartz of Galveston. He was 86... Mike Lopez, chief of staff to Rep. Paul Moreno, D-El Paso, after colon cancer surgery. He was 59.

Quotes of the Week

U.S. Sen. and presidential candidate John McCain, asked by the Washington Post why no senator has been elected president since John Kennedy: "Knowing most of the Senate, I can understand that."

Rep. Jim McReynolds, D-Lufkin, talking to The Dallas Morning News about the number of religion-related bills filed this session: "I probably know more second verses to hymns than anyone in the Legislature, but I wouldn't want us to overreach."

Rep. Borris Miles, D-Houston, singing on stage at a party when someone threw red ladies' underwear at him, quoted by the Austin American-Statesman: "Those are some big panties."

Rep. Betty Brown, R-Terrell, presenting her voter ID bill and its requirement for photo identification to the House: "Polls show that voters are losing confidence in the integrity of our elections and that people are more likely to vote if they believe their ballot may be fairly counted."

Sen. Rodney Ellis, D-Houston, who cast the lone vote against Jessica's Law because of its provision for the death penalty, in the Fort Worth Star-Telegram: "At some point, we have to draw the line between what is politically right and morally wrong."

Robert Kaiser, who runs a company that makes automated political calls, defending the robo-calls in The New York Times: "You might not think there would be a segment of the public that would want the calls, but there probably is."

Rep. Chuck Hopson, D-Jacksonville, telling the Houston Chronicle he doesn't bring his concealed handgun (he's got a license) on the floor of the House: "But if somebody starts shooting from the gallery, I wouldn't mind if someone was able to shoot back."

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Texas Weekly: Volume 23, Issue 43, 30 April 2007. Ross Ramsey, Editor. Copyright 2007 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (512) 302-5703 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 288-6598.

State officials are agitated about a new line on Sprint and Nextel bills telling customers of that phone company that a new charge has been added to cover the costs of the state's new business tax. The language from the bill goes like this: "Texas Margin Fee Reimbursement. Effective January 2007, Sprint will begin charging Texas customers a 1% Texas Margin Fee Reimbursement in the Additional Sprint Charges section of the invoice. For details on fees, see the Subscriber Agreement..." That has won the attention of legislative leaders, the attorney general and comptroller, who are digging around to see whether the pass-through is legal. The company says it's doing with this tax what it does with an array of other fees added by various governments Lt. Gov. David Dewhurst raised the issue, without naming the company, at a press conference, protesting that the tax isn't even due until 2008. Texas businesses that owe the tax won't pay it until May 2008, but the amount they owe will be based on their 2007 business year. That'd be the business reason to pass it along to customers now. But no business in the state will owe tax collectors 1 percent. The tax maxes out at 0.7 percent, and that's where the state lawyers and tax experts are focusing their attention. It might be okay to pass along the tax, but not to over-collect and blame it on the state. The company says it has the right to add a surcharge to phone bills to cover the cost of the new tax, and that the surcharge doesn't have to exactly match the tax as long as the company doesn't collect more than it'll eventually owe. The surcharge on wireless bills is higher than the maximum rate of the new business tax. But the surcharge on bills for wired phone services is lower. They added a one percent fee on wireless bills for Sprint and Nextel customers (the companies are in the middle of a merger) and a 0.6 percent fee on "wire-line" bills (long distance and other services involving phones that actually plug into the wall). When it nets out, a spokesman said, the company will have collected in surcharges about what it will owe for the state's new margin tax next year. No matter which calculation the company uses, the maximum margin tax is 0.7 percent of its gross revenues in Texas. Put another way: The company will owe a maximum of $0.70 on every $100 in revenues. It added a $1 surcharge for every $100 it gets from mobile customers and $0.60 for every $100 it gets from wired customers. The bill for the margin tax isn't due until next year, but businesses are being taxes on their activities in fiscal 2007. For many companies, like Sprint, the fiscal year matches the calendar year. They're collecting the taxes along with the business being taxed, and they'll pay up on the due date in May 2008. "The average Texan pays nearing 18 percent of their wireless invoice in taxes, surcharges and fees," said Sprint spokesman John Taylor of Reston, Virginia (An industry group, CTIA, puts the Texas number at 19.7 percent). He said the company "considers it good business" to tell customers which part of their bill is for the phone and which part is for various taxes, and said only six states (Illinois, Florida, Nebraska, New York, Rhode Island, and Washington) hang more charges on cell phones than Texas. "What we decided to do was to pass on that tax to our customers in the form of a surcharge," he said. He said the company never added a surcharge to bills for the current corporate franchise tax, and so won't be giving a rebate when that one expires and is replaced by the new margins tax.

Comptroller Susan Combs is asking Sprint to get rid of the line on its bill seeking customer "reimbursement" for the state's new margins tax.

The company doesn't intend to honor her request.

Combs says her office never signed off on the charge (it's not clear they have the power to do that anyway). And she's not happy that the rate charged on some customers' bills is higher than the highest rate for the new tax. The tax can't go higher than 0.7 percent of any company's gross receipts; on bills sent to Sprint and Nextel wireless customers, the company has set the reimbursement at 1 percent (it's at 0.6 percent on the bills sent to the company's wire-line customers).

A spokesman says the company will end up under-collecting the amount needed to cover the tax, and welcomed a review of the company's tax return when it's filed in 16 months.

This is the first public faceoff over how the state's new business tax will actually be administered. Companies will owe the tax based on business done in their 2007 fiscal years, but it's not actually due until May 2008. They and the state's tax collector are feeling their way through a new minefield.

Combs also isn't happy that the company is seeking "reimbursement" for taxes it won't pay for more than a year.

The new comptroller wants the company to take the charge off its bills until the Legislature has a chance to take a look. If they won't do that, she's threatening "audit and collection action by this office and a possible injunction by the attorney general."

A company spokesman, John Taylor, said the company is reviewing the letter from Combs, that they'll continue to collect the surcharge, and that the comptroller doesn't have the power to regulate what the company puts on its bills. Sprint, he said, wants to be "open, honest and up front with everyone involved," and explained the charge to customers on their bills, on the company's website, and with live operators if people call in and ask about the fees. He said the Legislature already addressed the tax issue and didn't do anything to prevent what the phone company is doing. He ended with a line that'll probably appear, in some form, in the company's official response: "We are absolutely in compliance with state and federal law."

A national taxpayer group's report says Texas' new business tax is really a bastardized income tax.The report from COST — the Council on State Taxation — attacks gross receipts taxes at the state level but lets Texas off the hook, sort of, by saying our new tax isn't exactly what they're fighting. "Texas also enacted a new business tax in 2006, to become effective in 2008... This tax is not included here because it is more a badly designed business profits tax, like those that emerged in the newly independent states of the former Soviet Union, than either traditional or newer gross receipts taxes." The Texas tax starts with a company's gross receipts but lets the taxpayers deduct either their cost of goods sold or their payroll before figuring their tax. A classic gross receipts tax wouldn't have those deductions. But the Texas tax, like a gross receipts tax, is due even when the taxpayer didn't have a profit. Income taxes are typically levied against profits. Texas politicos who don't want to be tagged by voters say the Texas tax isn't an income tax because it's due even when companies are losing money. COST's assessment is packaged in a footnote in the 16-page report. They don't spend much time on it, but they got downright snarky about state business taxes — in Texas, New Jersey, and Kentucky — that are hybrid receipts/income levies. "These taxes combine all the problems of minimum income taxation in general—excess compliance and administrative cost, penalization of the unsuccessful business, undesirable incentive impacts, doubtful equity basis—with those of taxation according to gross receipts."

The House and Senate will hash out their differences over electric utility regulations in conference committee. Several bills are in the legislative digestive system, and two are on the way to negotiators. The bills are semi-related, but the conferees are different.

On SB 483, the Senate is sending five Republicans: Troy Fraser of Horseshoe Bay, Kip Averittof Waco, Kevin Eltife of Tyler, Chris Harris of Arlington, and Kyle Janek of Houston. The House hasn't named its team for that one. That legislation would limit electric generators' share of markets in the state in an effort to promote competition and lower prices. State regulators would have the power to order refunds and fines for companies that manipulate markets to keep prices high. It also forces utilities and distribution and transmission companies to seek Public Utility Commission approval when they're about to be sold or merged.

SB 482 will be worked out by a Senate crew that includes Fraser, Harris, Eltife, Kim Brimer of Fort Worth and John Whitmire, a Houston Democrat. The House has five negotiators — four Republicans and a Democrat — for SB 482: Phil King, R-Weatherford, Will Hartnett, R-Dallas, Sid Miller, R-Stephenville, Joe Straus, R-San Antonio, and Sylvester Turner, D-Houston. That one's supposed to promote retail electric competition.

Give Jim Keffer his due — he got a tax bill through the House without getting skinned or junking up the bill in the process. The Eastland Republican's bill patches three holes in the state's new business tax and frees about 60,000 taxpayers who otherwise would have paid it.

Now it's off to the Senate for Round Two.

The bill adds about $200 million in taxes for partnerships that own and lease property. That's a difference between a gross margins tax, which lawmakers intended, and a net margins tax, which would have been more forgiving to the taxpayers, to the tune of 200 million samolians each year. It fixes the formula for calculating securities and other sales by banks and brokerages with offices outside state lines, and it repairs the rules for charging a company's losses against future profits for tax purposes.

To make sure they weren't raising taxes, Keffer & Co. raised the trigger on the new tax from gross annual revenues of $300,000 to $600,000, meaning companies can make that much more money before they have to pay the state any taxes at all. The state comptroller's number-crunchers say that frees about 60,000 Texas companies from having to pay.

Sprint got popped for adding a reimbursement for the new business tax to bills its customers are paying now. The tax applies to this tax year, but it isn't due until next year. State officials want Sprint and others to hide the tax — to stop putting it on the bill where customers can see it and blame it on the Legislature.

But if they do have a line item "billing or invoicing the tax as a fee, charge, reimbursement, or other item," they have to hold the money gathered to pay the tax in trust "for the benefit of the state." Any and all money collected that way goes to the state, regardless of the tax owed.

Sprint got lawmakers' attention earlier this year by adding a "reimbursement" for the state tax to customers' bills (The original stories are here and here). That company's in a tussle with the state's attorney general now as a result, and the Keffer tax bill could make the practice stupid, if not illegal.

They're Running for the Roses this week in the 133rd Kentucky Derby beneath the Twin Spires at historic Churchill Downs in Louisville, Kentucky. Under the historic Pink Dome in Austin, Texas, they're on the backstretch at the 80th running of the Texas Legislature. Derby favorites? Street Sense, Scat Daddy and NoBiz Like ShoBiz. Session odds? Kevin Kennedy went Out There to see.

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Poll Tax... In The Race Or Out?

Vince Leibowitz at Capitol Annex finds some fun in the Texas House, where the 24th Amendment to the U.S. Constitution was ratified on the same day members voted for a voter ID bill he calls a new poll tax. Meanwhile, Paul Burka posted talk of a compromise on a controversial voter registration bill. The Burkablog had Rep. Phil King, R-Weatherford, talking with key Democrats about the legislation. That deal didn't pan out, but the bill passed the House and moved on toward the Senate.

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School Prayer Breezes Through House

The Texas Observer Blog reports Rep. Charlie Howard, R-Sugar Land, had a fairly easy time passing his "freedom of religious expression" legislation this session. The Senate hasn't taken a crack at it, but the bill passed the lower chamber 110-33. Blogger Ed Cognoski doesn't seem to think this is a real big deal and only instructs schools to do what they are supposed to do, i.e., protect the First Amendment.

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Could Be A Sleeper

Grits for Breakfast captured the debate on HB 312 on the House floor and thinks it might be a winner for supporters of criminal justice reform. The bill, from Rep. Sylvester Turner, D-Houston, addresses probation revocation for some offenders and puts the burden on the state to prove a defendant could have paid fees assessed in their sentencing but chose not to.

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Keel-Hauling TxDOT

Eye on Williamson County posted the State Auditor's report on the Texas Department of Transportation's funding gap numbers. EOWC says TxDOT officials seem to be proud they were caught apparently cooking the books.

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Early Primary Bill is Late, but Alive

Burnt Orange Report posts there are life in the effort to move up the date of Texas' primary elections so the Lone Star State could be a major player in the presidential election. Republican Senators are supposedly cool to the move, but former Rep. Glen Maxey, a Democrat, says this is one to watch.

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NoBiz Like ShoBiz

That's the name of a top horse at this year's Kentucky Derby. Critics of this colt say they want to see a little more biz and a little less show out of this colt. You can hear that the same criticism applied to freshman Sen. Dan Patrick, R-Houston, but the Observer Blog says they find themselves agreeing with the rookie sometimes.

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Dallas Morning News Fading In The Stretch?

Right of Texas took obvious pleasure in posting the latest (dismal) circulation audits of major newspapers. Especially the part about the declining circulation of the Dallas Morning News. The blog claims the DMN is leaning to the left these days and is losing readers because of that shift.

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Roll Some Heads

The Sharpstown scandal pales in comparison to the mess at the Texas Youth Commission, according to Brains & Eggs. Perry Dorrell says the governor and the attorney general are among those who ought to pay, politically, for the foul-ups there.

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Back In The Blogosphere Again

It seemed like Billy Clyde was too busying making money lobbying over at the Big Pink to do much blogging. But he has resurfaced to find that his beloved pine trees are dirty polluters in this installment of Billy Clyde's Political Hot Tub.

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This edition of Out There was compiled and written by Kevin Kennedy of Austin. We cherry-pick the state's political blogs each week, looking for news, info, gossip, and new jokes. The opinions here belong (mostly) to the bloggers, and we're including their links so you can hunt them down if you wish. Our blogroll — the list of Texas blogs we watch — is on our links page, and if you know of a Texas political blog that ought to be on it, just shoot us a note. Please send comments, suggestions, gripes or retorts to Texas Weekly editor Ross Ramsey.

The strongest tool in the box for House minorities — and here we're talking about political minorities — is the rulebook.

It's the great leveler, making it possible for someone on the losing side of a bill to find and exploit the majority's errors, maybe to kill the legislation and maybe just to buy some time before it's up for final consideration.

And they came within an inch of tossing it out, during a debate over a homeland security/border protection bill authored by State Affairs Chairman David Swinford, R-Dumas.

Three or four hours into a long debate, Rep. Abel Herrero, D-Robstown, called a point of order on the bill after finding a defect in the bill analysis. Some time later, House Speaker Tom Craddick came out and sustained the point of order. Swinford went to the front microphone with a most unusual request, asking the House to suspend its rules, to ignore the point of order, and to pick up the debate where Herrero cut it off. Craddick spoke, saying it was an important bill, that time is running short, and that he thought it would be a good idea to continue. He said he'd leave it to the House, and he said he wouldn't entertain similar motions whenever someone's bill got knocked down. All it would take, he said, was a nod from two-thirds of the members present in the House.

That's potentially a huge deal. It would allow a supermajority — two-thirds — to toss the rules whenever someone on the other side called a legitimate foul. It would defang the opposition, and let a ruling majority get sloppy about the rules and about the way things run. The purists around the Capitol — you'd be surprised at the number — were standing up and pacing while this was in play.

But the House didn't get a chance to set that precedent. A tearful Swinford went back to the microphone and withdrew his motion. He said the bill he was carrying was much more important that "some silly little thing" and said he was ashamed of the House for knocking it down with a technicality. It'll go back through his committee, through the Calendars Committee that puts things on the House agenda and could be back, Craddick said, by Monday or Tuesday. But the House will have to start the debate all over again and then hope the Senate moves relatively quickly.

Points of order have a long and honored tradition in the Texas House, though they're rarely called in the Senate. A member calls a foul and the chair has to rule on whether it's a real rule violation or not. It's often not in the chair's interest to honor the foul, but they honor them anyhow. Craddick honored this one. His predecessor ruled in favor of a point of order at the end of the 1997 legislative session that killed 52 bills. This year, Rep. Robert Talton, R-Pasadena, has been the gunslinger with the rulebook, calling points of order on bills with such regularity that he reminded people of a previous assassin at the back mike, Rep. Warren Chisum, R-Pampa. And of Rep. Ron Wilson, D-Houston, before that. And Jim Nugent before him, and so on.

But the decision is up to the Speaker (or whoever is in the chair at that moment). We couldn't find anyone on short notice who could recall a precedent for what Swinford and Craddick were advocating, but another way to flip the result has been used. Then-Speaker Billy Clayton once sustained a point of order and was over-ruled when the House — after some quick work — appealed the ruling and voted him down.

• The substantive fight over Swinford's bill — at least part of it — has to do with who's in charge. Swinford has the authority going to the governor's office, and some legislators say they'd prefer to put it somewhere less political, like with the Texas Department of Public Safety. The Texas Observer caught some noisy traffic between the Guv's homeland security director and one of the three legislators who've gone off to war in the last few years. Steve McCraw's letter to Rep. Rick Noriega, D-Houston, questions the legislator's commitment to border security; Noriega's letter to Rick Perry says McCraw's letter is evidence that there should be more distance between law enforcement and politics in the state. You have to read the letters to catch the heat; they're on the Observer's website.

With less than four weeks left in the session, legislators and lobbyists are watching things wither. And freestanding bills are turning into amendments to legislation that's still moving.

House committees have to have House bills out by the end of Monday, and they have to be on the calendar for consideration by Tuesday night. House bills that haven't made it to the floor by midnight next Thursday are dead. (Local bills have an extra week or so). The same House countdown begins for Senate bills on the 19th and everything that's still out on the town after the 23rd turns into a pumpkin. There's a copy of the calendar in our Files section.

The governor wants to tap that budget surplus...

The Legislature left a lot of money unspent when they were assembling the budget. The budget folks say they want to keep that in the piggy bank as insurance against the property tax cuts and new business taxes that go into effect over the next year. Their fear is that the business taxes might not cover the cuts and they don't want to come up short.

But the governor has designs on that surplus. He is reiterating his February call for a $2.5 billion tax cut. Legislative budgeteers socked away more than $7 billion — some in the Rainy Day account and some just available but unspent — and Perry views that as an overcharge that should be refunded.

"If the session were to be over with today, we could point to precious few accomplishments on behalf of the taxpayers," he said. "... taxpayers have pretty much been shut out to date.

"Both the Senate and the House budgets leave roughly $8 billion sitting on the table," Perry said. "I think it's reasonable to take a third of that, give it back to the people."

Perry said he doesn't believe talk that the new state tax will fall short of expectations. House Speaker Tom Craddick will probably give tax cut legislation a shot, but Lt. Gov. David Dewhurst — who wants to squirrel away some acorns against the tax cut — wants to leave the surplus alone in case there's a shortfall.

Perry "hasn't decided" what he'll do about a road moratorium and legislation blocking mandatory HPV vaccinations.

A two-year moratorium on toll roads (HB 1892) went to the House on a vote of 138-to-Krusee. That'd be Mike Krusee, R-Round Rock, the chairman of the House Transportation Committee. He's the author of the legislation that allowed the current privately built long-term concessions on toll roads, and he's been one of the few legislative opponents of braking development.

The moratorium started in the Senate, where the author, Sen. Robert Nichols, R-Jacksonville, is a former Texas Transportation Commissioner.

The House action sends the legislation to Gov. Rick Perry, who hasn't said publicly whether he'll veto it, sign it, or let it become law without his signature. He told reporters he hasn't made up his mind yet. But if he chooses a veto, he has to do it within ten days. The legislative session ends on Memorial Day, so there's plenty of time for lawmakers to override a veto if they're so inclined.

The Legislature's ban on mandated HPV shots is also on the governor's desk, with the same dynamics in place. Perry's not saying what he'll do with that one, either. It overturns his executive order that girls get vaccinations against human papillomavirus before they enter sixth grade in public schools. Parents could opt out, but the public — and the lawmakers listening to it — revolted when Perry announced his order in February. For his part, the governor says he can't see why they oppose a shot that would block a leading cause of cervical cancer.

Slow voting, trash talk, cancer and debt, sonograms, oysters and a mess of other stuff...

The House and Senate are working on voter ID and registration bills to make sure Americans with photo ID cards are the only people who cast ballots. But nobody's breaking down the doors for a chance to vote in the state's May 12 elections, according to figures compiled by the Texas Secretary of State. In the first two days of early voting, only 81,172 people voted in the state's top 15 counties. That's out of 7,861,081 registered voters in those counties. On the ballot: A constitutional amendment that allows elderly homeowners in Texas to get their share of the property tax cuts approved by the Legislature a year ago.

• Lawmakers are still trash-talking the governor, but they don't want to take his "emerging technology fund" away. A proposal that would have moved control of that economic development money from the governor to the comptroller got swatted down in the House by a 79-55 margin. The Yup side was predominantly Republican, with a handful of Democrats; the Nopes were mostly Democrats, with a handful of Republicans.

• Remember the $3 billion cancer research idea? The state would put $300 million annually into cancer research, partly to focus the attack on that disease and partly to make the state a center for the medical and economic development that would result. Gov. Rick Perry took that idea (it started outside of government) and proposed selling or leasing the state lottery to pay for it (and other programs). The lottery notion fell flat, but more than 100 House members have signed on to legislation creating the program and paying for it with bond money. Now that's stuck, in part because House Speaker Tom Craddick and other legislative leaders don't like the financing. Perry understands, to a point: "I don't like to borrow money when I can pay cash for it." But doing nothing, he said, would leave a "dark stain" on the state: There's money available, he said, and "an opportunity to do something really big and important."

• The Senate okayed "informed consent" legislation that would require women seeking abortions to first have sonograms showing the progress of their fetuses. The legislation by Sen. Dan Patrick, R-Houston, originally required the women to look at the images, but that was changed. The doctor has to tell the woman she's not required to look at the sonogram, but senators turned down an amendment that would have blocked the doctors from charging the patients for the sonogram. Under the Senate's final version, patients do have to pay for the sonogram (which is normally part of the procedure anyway), but have to be told they're not required to look at the pictures.

• The Senators who'll huddle with the House to fix differences in the state's proposed new child rape law are: Bob Deuell, R-Greenville, Kim Brimer, R-Fort Worth, Juan "Chuy" Hinojosa, D-McAllen, Steve Ogden, R-Bryan, and Florence Shapiro, R-Plano. That's the Jessica's Law promoted by Lt. Gov. David Dewhurst, among others; it would add the death penalty to the list of sanctions against violent child abusers. The House conferees, named a few days earlier: Debbie Riddle, R-Tomball, Joe Deshotel, D-Beaumont, Dan Gattis, R-Georgetown, Jerry Madden, R-Richardson, and Aaron Peña, D-Edinburg.

• Beware the bivalve. The Texas Senate added oysters to the list of things that are so obviously dangerous that you can't sue the sellers for products liability if you find Hell on a Half Shell. Oysters, if this goes through, will join sugar, castor oil, alcohol, tobacco, and butter as an item that is "inherently unsafe and... known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community."

• The Senate okayed a first step toward putting public notices — long the bread and butter of newspaper classified sections — on the Internet. Robert Duncan's SB 1812 would allow the state's Office of Court Administration to contract with a single website where legal notices could be officially posted. That posting would be in addition to required postings in newspapers, so it doesn't kill the print folk so much as create an alternate way to get the notices. But unlike the papers, it would create one spot where all state notices (and presumably, local and regional ones) could be published. If that works, it'll raise a logical question: Why pay for both?

• Legislation designed to allow Indian gaming — run by the Tigua Indians in El Paso and the Alabama Coushatta tribe in East Texas — died in the House, first by one vote, then on a tie. After a long debate, the measure failed by one vote. When they recounted to make sure, it came up 66-66, with five members present but not voting. That killed it.

• It's not unusual to hear about presidential candidates this far in front of primaries, but it's creeping down the ballot. Austin district court Magistrate Jim Coronado — who ran unsuccessfully for the state's 3rd Court of Criminal Appeals last year — will run for a spot on a newly created state district court. He says he'll be on the ballot next March (or, if they move the primaries, next February). Larry Joe Doherty, an attorney and Houston Democrat, filed to run against U.S. Rep. Mike McCaul, R-Austin. Doherty's treasurer is Jim "Mattress Mac" McInvgvale. Doherty will face Dan Grant of Austin, who has a civilian tour in Iraq on his resume. He's an international relations consultant.

Albert Hawkins won another term as the state's health and human services commissioner on a 24-7 Senate vote.

Hawkins is a veteran bureaucrat with years of budget experience, stints in the Bush Administrations in both Austin and Washington, D.C., and a term in his current post. But his agency has won unfriendly attention from lawmakers angry about the failure of a multi-million state contract with Accenture, a turbulent conversion to a new integrated eligibility system, and at Gov. Rick Perry's attempt to order the agency to start vaccinating public school girls against human papillomavirus before they can enter sixth grade.

The Senate Nominations Committee grilled Hawkins earlier in the session, then sat on the appointment for weeks before giving him the nod. With this vote, he's got another term.

Shelley Kofler, last seen in this space a few days ago taking a PR job with the Texas State Teachers Association, got a sweeter offer and is leaving Austin for Dallas, where the former TV reporter will be the news director at KERA, the public broadcasting outfit there. She'll be involved in radio, television and web stuff there.

The former CFO at Texas Southern University, Quentin Wiggins, was found guilty of misapplication of more than $200,000 and faces five to 99 years in prison as a result. Prosecutors said he allowed TSU money to be spent on former President PriscillaSlade's home. Her trial is scheduled for later this summer.

Meanwhile, TSU's regents all resigned, an exodus capped when the chair, Belinda Griffin, sent her resignation to Gov. Rick Perry. He had suggested putting the school into a conservatorship; now he and legislators are trying to find a way to take over and fix the school without threatening its accreditation.

Deaths: O. Roy Hurst, the president and executive director of the Texas Hospital Association for 30 years, starting in 1956. He was 82.