Politics Among the Elephants

When everyone in public office is in the same political party and playing nice, you can forget that this is a competitive business.

And then it’s time to look at open seats, to talk about running for office, and the good will evaporates.

A tax bill got stuck between two potential candidates for comptroller, with Rep. Harvey Hilderbran, R-Kerrville, sending it over to the Senate and Sen. Glenn Hegar, R-Katy, sending back something completely different with a take-it-or-leave-it topspin. That got worked out, but it might just be the first page.

Two senators who might be running for statewide offices are snarling over budget votes, with Tommy Williams, R-The Woodlands, peeved at Dan Patrick, R-Houston, after Patrick voted against a conference committee report on the floor of the Senate after voting for the budget at every stop up to that point; a bit of a for-it-before-he-was-against-it situation, in Williams’ eyes. Williams then smiled on a playground putsch that would have combined Patrick’s Senate Public Education Committee with Kel Seliger’s Higher Education Committee and put the Amarillo senator in the chair, with the Houston senator on the bench. Williams is interested in running for comptroller. Patrick is considering a run for lieutenant governor. If both hit their marks, the 2015 session could be a real blast, at least for spectators.

And a governor who, if he decides to run again, could be battling another staunch conservative — the attorney general — and who started the week by telling budget conservatives their numbers were fishy. A Rick Perry-Greg Abbott race would have two headliners from the same part of the GOP battling for the state’s top job. Perry generally is a hero to groups like the Texas Public Policy Foundation. So is Abbott. But the governor found himself sideways with the group this week over its calculation — picked up in a stinging editorial in The Wall Street Journal — that the state government and Perry himself spent the first five months of 2013 on a spending binge. “I did read some of the criticism, and I’m not sure that those who were making that criticism have a really good handle on the Texas budgeting process,” Perry said. “Frankly I don’t understand their math.” Lots of people are betting this particular confrontation won’t take place, but political races are made of differences among competitive people.

This goes on, rippling through the races that are already setting up. Lite guv could involve Patrick and three statewide officials, including the incumbent. Two of the prospective candidates for attorney general — Rep. Dan Branch of Dallas and Sen. Ken Paxton of McKinney — are from the same part of the state but from different sectors of the GOP. Former Rep. Tommy Merritt might be in the race for agriculture commissioner, with Rep. Brandon Creighton among the other contestants. Same party, different subgroups.

The next nine months — assuming the GOP primaries are held in March, as scheduled — could strain the family ties in the Republican Party. In some ways, they already have.

The Democrats have not stepped up, so far. They have a second-mouse-gets-the-cheese problem, in that nobody wants to be the first to test whether the Republicans have enough weaknesses to lose a statewide seat to a Democrat. Taking the risk is hard — that’s the second mouse’s dilemma. The first mice lose everything, until one of them makes it through the traps. That one will have the jump on all the other mice.

Meanwhile, the Republicans are making their own primary elections more and more interesting every year. The big show is in their big tent.

* * * * *

The finance primary started this week. Unelected candidates like Debra Medina and George P. Bush have been free to raise money all year, but state officials have been under a blackout during the session that ends on Sunday. They have until the end of the day on June 30 to raise the balances in their political accounts in time to brag on the July 15 mid-year reports. And since those will be the last look at warchests until January, it’s important to show some strength. It’s a good time not to be rich.

* * * * *

Perry has cut off the flow of new subjects onto the special session agenda, at least for this special session. Not to predict the future, but something will have to change for everything now on the plate to get finished before this session ends on June 25. Redistricting is on its way in the Senate and bumpy in the House. Both sides are nervous about voting on abortion restrictions, but that issue is inching along. Transportation funding is hard because it requires supermajorities — it’s a constitutional amendment, needing two-thirds from both houses. The idea in the works is from the upper chamber, but involves the Rainy Day Fund. At least a third of the House is allergic to that, and some of the others are whispering about trading support for transportation against their desire not to vote on the abortion omnibus bill. 

Lawmakers Ponder Sentencing Fix for Teen Murderers

Instead of answering constitutional questions that sparked the capital murder legislation under consideration in the current special legislative session, some juvenile justice advocates say lawmakers might just make more.

Lawmakers are trying to remedy constitutional problems with current sentencing options for 17-year-olds convicted of capital murder, but the proposed solution the Senate approved in a 27-0 vote Friday might have some of the same problems, because it wouldn't leave the judges and juries much discretion in sentencing teenagers convicted of capital crimes.

The Senate approved Senate Bill 23 by state Sen. Joan Huffman, R-Southside Place, which would require a life sentence for 17-year-olds convicted of capital murder. On Tuesday, the House Criminal Jurisprudence Committee will discuss SB 23, along with two other measures, including House Bill 72 by state Rep. Terry Canales, D-Edinburg, which would allow juries and judges to issue sentences ranging from 25 to 99 years.

Advocates say they are concerned that Huffman's bill creates more problems than it solves.

“We still will have automatic sentencing, and it’s going to run afoul of the court’s dictates,” Kameron Johnson, Travis County’s juvenile public defender, told the Senate Criminal Justice Committee during a hearing last week on SB 23.

Gov. Rick Perry expanded the agenda of the special session to include legislation establishing a mandatory sentence of life with parole for 17-year-olds convicted of capital murder. Prosecutors argue they need lawmakers to quickly address sentencing options for those criminals after the U.S. Supreme Court ruled last year that juveniles could not be sentenced to mandatory life without parole.

In Texas, 17-year-olds have faced the same sentencing options as adults convicted of capital murder: the death penalty and life without parole. In 2005, the Supreme Court prohibited the death penalty for anyone younger than 18, deciding that the less-developed brains of juveniles render them less culpable for their behavior. That left only the possibility of life without parole as punishment for 17-year-olds found guilty of capital crimes.

After last year's Miller v. Alabama ruling, prosecutors said they were left with no sentencing options for 17-year-old killers.

“They need you to do something,” Shannon Edmonds, director of government relations for the Texas District and County Attorneys Association, told the Senate committee. “The courts need you to do something.”

SB 23, by Huffman, a former prosecutor and criminal court judge, would subject 17-year-olds to the same sentencing options used for 14-, 15- and 16-year-olds certified as adults and convicted of capital murder: mandatory life with the possibility of parole after 40 years. 

“This is a reasoned approach, taking the Miller decision into consideration but still honoring Texas’ historical position on those who have committed the most heinous crime in our state,” Huffman told the Senate commitee.

Edmonds said that the high court's ruling only prohibited life without parole for juveniles and does not prevent states from mandating other sentences as long as the juvenile has a chance to get out of prison.

"The younger they are when they get to prison, the more likely they are to see 40 years and get out," he said.

Johnson and other critics of Huffman’s bill, however, argue that it does little to address the court’s key concerns in the Miller case. The justices indicated their displeasure with the mandatory nature of life without parole sentences in their opinion, writing, “The mandatory penalty schemes at issue here, however, prevent the sentencer from considering youth and from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender.”

Lauren Rose, juvenile justice policy associate at the nonprofit advocacy organization Texans Care for Children, said the court’s opinion indicates that juries and judges ought to have more latitude in deciding sentences for youth offenders. They should be able to consider whether factors such as age, home environment, peer pressure or other influences mean that an offender should receive a lesser sentence than life. They should also be able to weigh the greater likelihood of a young person to be rehabilitated, she said.

“Individualized sentencing, I think, is really necessary to address the crux of the Miller decision,” Rose said in an interview.

Additionally, critics of Huffman’s bill say that because the youths would be required to serve at least 40 years before they are eligible for parole, the sentence would practically be the same as life without parole.

State Sen. José Rodríguez, D-El Paso, who prosecuted juveniles in his previous role as the El Paso county attorney, said he would vote for Huffman’s bill despite his concerns. But he said statistics indicate that the average life expectancy for inmates who enter prison at a young age is much less than for those on the outside.

“This is essentially a life without parole sentence,” Rodriguez said. “The likelihood is that you ain’t getting out.”

Instead of requiring mandatory life with parole sentences for 17-year-olds, Rose and other advocates said lawmakers should view the court’s ruling in Miller as an impetus to give juries and judges more discretion in choosing sentences for all juveniles. That would mean eliminating the mandatory life sentences for 14-, 15- and 16-year-olds, too. That is what Canales' HB 72 would do: allow courts to assess punishments ranging from 25 years to 99 years in prison for convicts younger than 18.

If lawmakers don’t give judges and juries more discretion in juvenile cases, advocates said they expect to see constitutional challenges to the mandatory sentencing requirements.

A preferable option, they say, would be to treat juvenile capital murderers the same way the law treats juveniles convicted of lesser murder charges. In those cases, they can be sentenced from five years to life in prison.

“It’s not to say a life sentence shouldn’t be an option,” Rose said. “It’s just that they should be able to consider other things.”

Pharmacists Push Transparency in Medicaid Pricing

As a business owner, would you sign a contract that requires you to purchase a product, give that product away and then request payment from a third party without knowing how much you’d receive? What if you also didn’t know how much you’d be reimbursed before signing the contract, and that the other party could change that reimbursement rates without notice?

That’s the situation facing Texas pharmacists participating in Medicaid managed care.

“The lack of transparency there makes it very difficult for an independent pharmacist to find out what they’re going to be reimbursed,” said state Sen. Charles Schwertner, R-Georgetown, a surgeon and fourth-generation pharmacist. 

With his help, the Texas Pharmacy Business Council and other pharmacy associations negotiated a deal this session to enhance transparency on how Medicaid health plans determine pharmaceutical reimbursements.

“The ongoing challenges from the movement to Medicaid managed care still linger, but I think we’ve got plenty to celebrate from this legislative session,” said Michael Wright, executive director of the Texas Pharmacy Business Council, which represents more than 1,100 pharmacies. “The art of negotiations in the session were in full bloom.” 

Under Medicaid managed care, the state contracts with health plans to cover Medicaid beneficiaries’ health services, and in turn the health plans contract with pharmacy benefit managers to handle pharmacy benefits covered by the plan. The drug payments determined by the PBMs come in two parts: The pharmacist is reimbursed the “maximum allowable cost” for the ingredients in the drug and is also paid a dispensing fee.

The average dispensing fee for Medicaid prescriptions dropped from $7.13 to $1.53 when the state expanded managed care statewide in March 2012. In the first month, pharmacists received $12.7 million less in dispensing fees than they would have under the previous system.

That put tremendous pressure on pharmacists — particularly those running small businesses that primarily serve Medicaid clients — and makes it nearly impossible to turn profits or break even on the reimbursements for ingredient costs.

If pharmacists accept multiple health plans, they often have to stock a wide range of medications, as each offers reimbursements for different drugs. The prices pharmacists pay to stock those medications isn’t a factor in the ingredient reimbursements determined by the PBMs. And the PBM can constantly re-evaluate the ingredient costs, so if the ingredient cost changes or the PBM determines that a medication costs less than the pharmacist paid, the pharmacist is out of luck.

Schwertner’s Senate Bill 1106 would create some consistency in the companies’ lists of reimbursable drugs by requiring them to use drugs rated “A” or “B” by the federal Food and Drug Administration, and enhance transparency by requiring the companies to provide pharmacists information about the sources that were used to determine the ingredient costs for drugs. To ensure pharmacists aren’t caught off guard by price changes, the companies are also required to update those lists at least once a week. Pharmacists will also be able to challenge a drug price under the new rules, and the companies will be required to respond within 15 days.

“The significance is in the pharmacies having more knowledge to be able to react to pricing changes,” Wright said.

The bill takes effect Sept. 1. In a memo to the state health department's Medical Advisory Committee, which met Thursday to discuss rules to implement the provisions in SB 1106, Andy Vasquez, deputy director of the Medicaid and CHIP vendor drug program, wrote that there could be costs associated with the measures.

“However, HHSC has no data to calculate the cost for S.B. 1106 because the agency lacks data on maximum allowable costs for each MCO,” the memo states. An agency representative later clarified that the state does not anticipate any costs to implement the changes.

Even with the passage of SB 1106, independent pharmacists did not get everything they asked for this session. 

Each PBM has multiple “MAC” lists used to reimburse the ingredient costs, which means pharmacists don’t know if they’re being paid the same rates at their neighboring competitors. Some independent pharmacists have alleged that one of the PBMs contracted by the health plans — CVS Caremark — has used different “MAC” lists to give CVS pharmacies a competitive advantage.

CVS Caremark strongly denies the allegations.

“With regards to reimbursement rates for Medicaid, CVS Caremark reimburses our participating network pharmacies at competitive rates that balance the need to fairly compensate pharmacies while providing a cost-effective benefit to our client plan,” Christine Kramer, a spokeswoman for the company, said in an email.

State Rep. Doug Miller, R-New Braunfels, offered a measure this session to require the PBMs to report each quarter the number of different drug lists used, the number of providers reimbursed according to each list and the average prices for the 100 most commonly prescribed drugs.

Although the House approved Miller’s measure as an amendment to SB 1106, it was taken off in conference committee. The pharmacy groups that had negotiated the original deal in SB 1106 feared the PBMs and managed care organizations would put pressure on the governor to veto the whole thing if the amendment was included. It also carried a significant fiscal note detailing the added costs associated with the change.

While there's still room for improvement, Schwertner said the state shouldn’t outlaw business relationships, such as the one between CVS Caremark and managed care organizations. In the future, he said, the state could “dictate some of the rules and regulations of how these PBMs operate,” such as regulating which drugs may be reimbursed and how those prices may be determined.

Newsreel: Special Session, Special Items, Clock Ticking

This week in the Texas Weekly Newsreel: It's week three of the special session, and Gov. Rick Perry has added a few more items to the agenda, including abortion restrictions, transportation and criminal sentencing for teenagers.

Inside Intelligence: About that Ultimatum...

Gov. Rick Perry sent word to Travis County District Attorney Rosemary Lehmberg that she could either resign from her post or lose $3.7 million in annual state funding for the public integrity operation in her office. That’s the unit that handles state cases — everything from tax fraud to the criminal transgressions of state officeholders, appointees and employees.  Lehmberg’s own transgressions led up to this; earlier this year, she was arrested for drunk driving and served a short jail term for it, all while remaining in office.

That’s the story behind this week’s questions to our political and government insiders. They overwhelmingly think she should resign from her post, with 73 percent backing that idea. But a smaller number — still a solid majority at 56 percent — thinks she should resign in the face of the governor’s ultimatum. And three insiders in five think Perry was out of line threatening to cut off the public integrity funding if she stays.

Finally, we asked whether the public integrity function ought to be in the local prosecutor’s office in the state capital anyway: 64 percent think it should be left alone, while 30 percent said those functions should be moved to a state agency.

As always, we collected comments along the way. A full set is attached, and a sampling of those remarks follows:


Should District Attorney Rosemary Lehmberg, who served jail time earlier this year on a drunk driving charge, have resigned from that job?

• "This simply should not be a partisan issue. How can the chief prosecutor in a county have any credibility when caught engaging in reckless, illegal conduct? I don't want Republicans to gain political advantage, but the integrity and credibility of the DA's office should take precedence."

• "Under the circumstances, yes."

• "DA has to have a higher standard. She needs to go."

• "The DA should step down and deal with her problems. I wish her much health and success, but I don't think any DA should be able to serve jail time while in office."

• "Because Prosecutors hold a very unique role in our society -- far different the role of the thousands of other 'non-prosecutorial elected officials' (i.e. - legislators and policy makers), they should be held to higher standard. If you commit a crime during your time in office as a prosecutor, your time should be up."

• "She violated the trust of the voters. And it's not just the DWI (although at .23 BAC, it's more than enough), it's the other issues associated with the incident: coercion, oppression, abuse of official capacity. We've all seen the video--threatening sheriff's deputies, spitting at officers, kicking and necessitating being bound, etc. If you answer no to this question, riddle me this: Based on what we know and have seen, are you proud she's your DA and why would you want her to continue in that capacity?"

• "There is a legal process in place to remove her from office. She will receive due process. That process should be allowed to work to its conclusion, whatever that may be. Failure to do so violates the separation of powers, as our courts are a co-equal branch of government (despite years of propaganda to the contrary). It bears noting that the electorate hasn't been marching in the street and calling for her removal. The pitchforks have instead been wielded by those who could fall under the Public Integrity Unit's scrutiny."

• "As sad as it is for me to say, she should have resigned. But I am selfish and DO NOT want the Governor to have the opportunity to appoint yet another person to an office!!!"


Gov. Rick Perry threatened to veto funding for Travis County’s public integrity unit unless the district attorney resigns. Was he right to do that?

• "We can't have someone head the public integrity unit who does not have integrity."

• "RP keeps finding new ways to bring an icky feeling to the office."

• "A rare moment where I agree with governor good hair."

• "No, he should let the legal system play itself out. The wheels of justice grind slowly and all that, but ain't nobody got time for Perry's grandstanding."

• "It's within his right!"

• "No, this is a ploy by Perry to use the Lehmberg controversy as a smokescreen to shutdown the ongoing CPRIT investigation in the PIU. The criminal investigation into the CPRIT scandal may very well uncover wrongdoing by those closest to Abbott and Perry and they are trying to covering their rear ends."

• "If governor can condition funding based on who is holding the office, we are one step removed from conditioning funding based on the activities of the office. And that would be the end of any oversight function."


Should Lehmberg resign now that the governor has threatened her office’s funding if she doesn’t?

• "She should have resigned before and still should resign, regardless of the governor's threat."

• "That’s not why she should resign. The reason she needs to resign has not changed. All Perry has done is introduce a new angle that can be broadcast as political."

• "She should resign, but she can't give in to blackmail."

• "Her resignation should be based on her behavior, not the funding threat."

• "Despite her personal transgressions, resigning in the face of this unseemly threat would represent a terrible and dangerous precedent."

• "Travis County should pick up the tab if he does."

• "Either way, she stands to lose. You'd think she would want to maintain a shred of dignity."

• "She has to stay now - we all know why he wants that appointment."


Should public integrity investigations and prosecutions of state officials be handled by the state itself or by local prosecutors in the county, as it’s done now?

• "There is no reason for voters of one liberal county to control ethics investigations for the entire state."

• "Prosecute wherever the offense occurs."

• "If you made it a state function, there would never be another prosecution."

• "So let's see: the state investigating the state? I'll spare you the obvious fox/hen house comparison. Just because the person who happens to hold the office stumbles doesn't mean a structural change is necessary - the Public Integrity Unit has operated professionally for forever. That legislators of both parties have been mad at them since the earth cooled is strong indication that they do their job just fine."

• "Really, have the state police itself? That's a laugh!"

• "Centralizing authority is not a good idea."

• "Not sure that local government oversight of state government is an ideal solution, but the highly politicized office of Attorney General or a toothless Ethics Commission is not preferable."

• "It doesn't really matter whose roof it's under, the office will only be as respected as the person who runs it."

Our thanks to this week's participants: Gene Acuna, Cathie Adams, Brandon Aghamalian, Jenny Aghamalian, Clyde Alexander, George Allen, Jay Arnold, Louis Bacarisse, Charles Bailey, Dave Beckwith, Andrew Biar, Allen Blakemore, Tom Blanton, Chris Britton, Jay Brown, Kerry Cammack, Marc Campos, Thure Cannon, Snapper Carr, William Chapman, Elizabeth Christian, Elna Christopher, Harold Cook, Beth Cubriel, Randy Cubriel, Denise Davis, Hector De Leon, June Deadrick, Roberto DeHoyos, Nora Del Bosque, Tom Duffy, David Dunn, Richard Dyer, Jeff Eller, Jack Erskine, John Esparza, Wil Galloway, Neftali Garcia, Norman Garza, Dominic Giarratani, Bruce Gibson, Stephanie Gibson, Eric Glenn, Jim Grace, John Greytok, Clint Hackney, Anthony Haley, Wayne Hamilton, Bill Hammond, Adam Haynes, John Heasley, Ken Hodges, Laura Huffman, Deborah Ingersoll, Richie Jackson, Cal Jillson, Jason Johnson, Mark Jones, Robert Jones, Lisa Kaufman, Richard Khouri, Tom Kleinworth, Nick Lampson, Pete Laney, Dick Lavine, James LeBas, Luke Legate, Richard Levy, Ruben Longoria, Matt Mackowiak, Robert Miller, Bee Moorhead, Mike Moses, Steve Murdock, Keir Murray, Nelson Nease, Keats Norfleet, Pat Nugent, Sylvia Nugent, Nef Partida, Gardner Pate, Jerry Philips, Tom Phillips, Wayne Pierce, Richard Pineda, Allen Place, Gary Polland, Jay Pritchard, Jay Propes, Bill Ratliff, Patrick Reinhart, Kim Ross, Grant Ruckel, Jason Sabo, Andy Sansom, Stan Schlueter, Bruce Scott, Robert Scott, Steve Scurlock, Ben Sebree, Bradford Shields, Christopher Shields, Julie Shields, Ed Small, Todd Smith, Larry Soward, Leonard Spearman, Dennis Speight, Tom Spilman, Bob Strauser, Colin Strother, Charles Stuart, Michael Quinn Sullivan, Sherry Sylvester, Jay Thompson, Russ Tidwell, Gerard Torres, Trent Townsend, Trey Trainor, Vicki Truitt, Ware Wendell, Darren Whitehurst, Seth Winick, Alex Winslow, Peck Young, Angelo Zottarelli.

The Calendar

Friday, June 14

  • Senate Nominations, 8:30 a.m.
  • Senate Finance, 11 a.m.
  • Senate Health and Human Services, 11 a.m.

Monday, June 17

  • House Insurance, 10 a.m.
  • House Homeland Security and Public Safety, 11 a.m.
  • House Redistricting, 1 p.m.
  • Fundraiser for Reps. Dwayne Bohac, Brandon Creighton, John Davis, Dan Huberty and Debbie Riddle; Austin Club, 4:30-6 p.m.
  • Reception for freshman members of House Appropriations; Austin Club, 5-7 p.m.

Tuesday, June 18

  • Fundraiser for Sen. Dan Patrick; Austin Club, 11:30 a.m.-1 p.m.
  • Fundraiser for Sen. Kevin Eltife; Austin Club, 4:30-6:30 p.m.

Wednesday, June 19

  • Fundraiser for Rep. Bobby Guerra; Austin Club, 11:30 a.m.-1 p.m.
  • Fundraiser for Sen. Donna Campbell; Austin Club, 4:30-6 p.m.
  • Fundraiser for Sen. Leticia Van de Putte; Austin Club, 4:30-6:30 p.m.
  • Fundraiser for Sen. Carlos Uresti; InterContinental Stephen F. Austin, 4-5:30 p.m.
  • Yeller Dawgs event for House candidate Celia Israel; 1705 Rabb Road, Austin, 5:30-7:30 p.m.

Thursday, June 20

  • Fundraiser for Rep. Charlie Geren; Austin Club, 4:30-6:30 p.m.
  • Fundraiser for Rep. John Otto; Austin Club, 4:30-6:30 p.m.

Guest Column: Red State, Purple Legislation

Mark P. Jones
Mark P. Jones

On Nov. 6, Texas reaffirmed its status at the ballot box as the reddest of the nation’s major states, with Mitt Romney winning 57 percent of the vote to Barack Obama’s 41 percent. Simultaneously, Republicans garnered 24 of 36 seats in the congressional delegation, 19 of 31 in the state Senate and 95 of 150 of the seats in the state House.

Texas Democrats exercised considerable influence over the legislative process during the 2013 regular session this spring, in contrast with their relative impotence last fall. While the November election results were unequivocally red — Democrats won a mere 12 of 31 senators and 55 of 150 representatives — the legislation passed during the session was decidedly purple.

In the state Capitol’s west wing, House Democrats brokered a tacit alliance with the GOP’s moderate/centrist conservative bloc, led by Speaker Joe Straus, R-San Antonio. Liberal-Conservative Scores were calculated for legislators using their regular session roll call vote behavior (final 2013 House and Senate ideological scores and rankings will be published following the end of this summer’s special session or sessions). These scores indicate that virtually all of the most prominent Republicans on the speaker’s leadership team either were located in the GOP’s moderate conservative wing (i.e., representatives with Lib-Con Scores significantly less conservative than those of more than one-half of their Republican colleagues) or, and less commonly, in its centrist conservative wing (i.e., representatives with Lib-Con Scores neither significantly more conservative or less conservative than over one-half of their fellow Republicans).


This alliance allowed a relatively cohesive and disciplined Democratic delegation to block the passage of most legislation opposed by its members. In a similar vein, the moderate conservative Republicans prevented the passage of almost all legislation they objected to either on pure policy grounds and/or because they believed it would damage the Texas GOP brand and in doing so undermine their long-term goal of maintaining the party’s grip on power in the state. Finally, this informal alliance pushed through bills that addressed several, though certainly not all, of these legislators’ most pressing policy concerns in areas ranging from public education to water infrastructure.

On the other side of the Capitol, by remaining relatively united and skillfully taking advantage of the Senate’s two-thirds rule, Democrats blocked the passage of most legislation they opposed. Under the two-thirds rule, even bills backed by all Republicans still needed the support of at least two Democratic senators to pass. Like their House counterparts, Senate Democrats in many instances worked with moderate conservative and centrist conservative Republicans to pass legislation over the objection of the Senate’s most conservative members.


The above dynamics are illustrated in the two figures which for each chamber array the legislators along the X-axis from most liberal to most conservative based on their Liberal-Conservative Score and include on the Y-axis the proportion of non-lopsided final passage votes (FPVs) where the legislator voted on the winning side.

The figures reveal the informal alliance that existed during the regular session between Democrats and the moderate conservative and, to a somewhat lesser extent, centrist conservative wings of the Republican Party. This alliance produced predominantly purple legislation that was frequently opposed by the House and Senate’s more conservative Republicans. The end result was legislation that on average was closer to the policy preferences of the median Texas voter than to those of the median Texas Republican Party primary voter, an outcome viewed as positive by a majority of the 181 legislators, the editorial boards of the state’s leading newspapers and the Austin lobby, but perhaps not by a majority of the 1 to 1.5 million Texans who regularly participate in the GOP primaries.

The figures reveal that the odd men and women out during the regular session were most commonly the more conservative Senate and House Republicans. In the Senate, six Democrats and four Republicans (including the GOP’s three least conservative senators) had win rates on Final Passage Votes above 95 percent: Juan "Chuy" Hinojosa, D-McAllen, and John Carona, R-Dallas, at 99 percent; Kevin Eltife, R-Tyler, and John Whitmire, D-Houston, at 98 percent; Robert Duncan, R-Lubbock, and Leticia Van de Putte, D-San Antonio, at 97 percent; Wendy Davis, D-Fort Worth, Royce West, D-Dallas, and Eddie Lucio Jr., D-Brownsville, at 96 percent; and Bob Deuell, R-Greenville, at 95 percent.

The FPV win rates of the most conservative Republican senators were substantially lower than those of these 10 pivotal senators, who virtually never found themselves on the losing side of a FPV, and lower than those of every Democrat. Nine Republicans, including the eight most conservative, had win rates below that of Sylvia Garcia, D-Houston, who was both the most liberal senator and the Democrat with the lowest win rate (85 percent). The four most conservative GOP senators were on the losing side of over a quarter of the FPVs in 2013: Dan Patrick of Houston, Brian Birdwell of Granbury, Kelly Hancock of North Richland Hills and Donna Campbell of New Braunfels.

Senate Democrats had a median win rate of 95 percent, 10 percent higher than the Republican median. While the consensual Senate saw relatively few instances where the majority of the members of either party were on the losing side of a final passage vote (i.e., where the party was “rolled”), the Republicans’ 7 percent roll rate was more than double the Democrats’ 3 percent. The same pattern detailed above for the final passage votes also was observed for the “two-thirds rule” votes cast during the regular session.

A similar dynamic existed in the west wing. Democrats rarely got rolled, with the majority on the losing side of only 5 percent of FPVs. In addition, the party’s FPV win rates were uniformly high, with a median of 94 percent and a narrow range of 97 to 88 percent.

House Republicans were rolled twice as often as Democrats (10 percent). Furthermore, the Republicans’ median win rate, 84 percent, was 10 percent lower than that of Democrats, with a much wider range, from Allan Ritter of Nederland (99 percent) at one extreme to Matt Schaefer of Tyler (34 percent) at the other. While the unusually low win rates of Schaefer and a few of his movement conservative colleagues (e.g., Jonathan Stickland of Bedford, David Simpson of Longview and Matt Krause of Fort Worth) were possibly the product of a somewhat exaggerated tendency to cast nay votes, almost a quarter of the GOP House delegation had a win rate below 75 percent, including GOP House Caucus Chairman Brandon Creighton of Conroe.

In the Senate, 47 percent (nine of 19) of the Republicans had win rates below that of the Democrat with the lowest win rate. In the House, the proportion was even higher, with 61 percent (57 of 94; Straus generally does not cast roll call votes) of Republicans possessing a FPV win rate below the lowest win rate registered by a Democrat. Included among these 57 were, with one exception, every Republican possessing a Liberal-Conservative Score to the right of the party’s ideological median.

The special session presently under way is all but certain to yield legislation that is notably less purple in tint than that produced during the regular session. This transformation is due in large part to Gov. Rick Perry’s decision to include on the special session agenda issues (e.g., abortion, redistricting) that are problematic for the informal alliance between Democrats and moderate/centrist conservative Republicans, Lt. Gov. David Dewhurst’s success in eliminating the two-thirds rule for the special, and the more limited ability of the speaker’s leadership team to utilize its control over the legislative calendar and procedures to prevent legislation that splits its informal coalition from reaching the floor. Over the past few weeks, Perry and Dewhurst have together thrown a monkey wrench into the legislative machine that had been smoothly producing purple legislation during the regular session, with the likely product being heightened inter-party discord and a more crimson-colored legislation emerging from the damaged machine later this month.

Mark P. Jones is the James A. Baker III Institute for Public Policy’s Fellow in Political Science, the Joseph D. Jamail Chair in Latin American Studies, and the Chairman of the Department of Political Science at Rice University.


The Week in the Rearview Mirror

The ink has dried on House Bill 5, which sharply reduces the number of high-stakes tests in Texas high schools. But the legislation ignored a battery of so-called benchmark tests that students take before they ever reach high school. Meanwhile, high school students won't have to retake standardized exams they failed in the six subjects that newly signed House Bill 5 eliminates from the state's testing requirements, the Texas Education Agency announced.

A complaint being filed with the U.S. Department of Justice seeks to declare that a Dallas County court’s process of prosecuting truancy as a crime is unconstitutional. But officials in the county say the initiative has been a model of success.

As the Texas Department of Criminal Justice adjusts to both a tighter budget and a smaller prison population, it has decided to end operations at two privately run Texas prison facilities — the Dawson State Jail in Dallas and the Mineral Wells Pre-Parole Transfer Facility — at the end of the summer.

The Federal Emergency Management Agency — FEMA — is refusing to send more money to West to help with damage from the fertilizer plant explosion there, saying the explosion fell short of the “severity and magnitude that warrants a major disaster declaration.” Millions in aid has already been sent, and now state officials are weighing in to say the federal government should do more. 

A second University of Texas System regent has lashed out at fellow Regent Wallace Hall, following Hall's latest request for information from the University of Texas at Austin. In an email to Gene Powell, the chairman of the UT System board, Regent Bobby Stilwell wrote that he endorsed the views expressed earlier in the day by Regent Steve Hicks, who called Hall's actions of late "an abuse of power."

The NBA Finals are underway, and so is another round of trash talk from the mayor of San Antonio.

Political People and their Moves

Texas Monthly’s list of 10 best and 10 worst legislators is out. Start the argument:

Best: Jimmie Don Aycock, R-Killeen; Sen. Wendy Davis, D-Fort Worth; Sen. Robert Duncan, R-Lubbock; Rep. Charlie Geren, R-Fort Worth; Sen. Juan “Chuy” Hinojosa, D-McAllen; Rep. Trey Martinez Fischer, D-San Antonio; Rep. Jim Pitts, R-Waxahachie; Speaker Joe Straus, R-San Antonio; Sen. Leticia Van de Putte, D-San Antonio; Sen. Tommy Williams, R-The Woodlands.

Worst: Rep. Lon Burnam, D-Fort Worth; Sen. John Carona, R-Dallas; Comptroller Susan Combs; Rep. Naomi Gonzalez, D-El Paso; Sen. Kelly Hancock, R-North Richland Hills; Rep. Harvey Hilderbran, R-Kerrville; Sen. Joan Huffman, R-Houston; Sen. Dan Patrick, R-Houston; Rep. Ron Reynolds, D-Missouri City; Rep. Van Taylor, R-Plano.

Bull of the Brazos: Rep. Sylvester Turner, D-Houston.

Honorable mentions: Rep. Drew Darby, R-San Angelo; Rep. Mark Strama, D-Austin; Kirk Watson, D-Austin; Rep. John Zerwas, R-Simonton.

Dishonorable mentions: Rep. Lois Kolkhorst, R-Brenham; Rep. David Simpson, R-Longview; Rep. Steve Toth, R-The Woodlands.

Furniture: Rep. Roland Gutierrez, D-San Antonio; Rep. Stephanie Klick, R-Fort Worth; Rep. George Lavender, R-Texarkana; Sen. Jose Rodriguez, D-El Paso.

Caution, elections ahead

  • Rep. Rafael Anchia, D-Dallas, says he will seek reelection.
  • Rep. Debbie Riddle, R-Tomball, says she will seek reelection.

Deaths: Houston construction exec and Texans for Lawsuit Reform co-founder Leo Linbeck Jr., who was also an outspoken advocate for replacing federal income taxes with a national sales tax. He was 78.

Quotes of the Week

I guess we could add a lot of things to the call, but the fact is the House is out until Monday. I think from a practical standpoint those last issues that we put on the call are the last practical things that can be done.

Gov. Rick Perry, asked whether he'll add to the special session agenda

We thank the senators outside of Texas for this vote, but we are very disappointed with the 'no' votes of both Senator John Cornyn and Senator Ted Cruz. Political rhetoric claiming to support farmers does nothing to help the future of agriculture. This "no" vote on a major farm bill cannot be justified as pro-farmer in any way.

Kenneth Dierschke, head of the Texas Farm Bureau, after the U.S. Senate passed a farm bill this week

I would just say that while I do have a good head of hair for a 90-year-old, I do not have the quantity of hair, nor the inclination, to let it down.

The Republican congressman from Rockwall, after accidentally going to an LGBT reception and drawing a "Ralph Hall Lets His Hair Down" headline from Roll Call

There are only so many missile systems and Apache attack helicopters you can sell. This push toward border security fits very well with the need to create an ongoing stream of revenue.

Dennis Hoffman of Arizona State University, on the border security interest from military contractors, in The New York Times

Mary’s the only woman on this floor who can palpate a cow.

Rep. Poncho Nevarez, D-Eagle Pass, on colleague Mary Gonzalez, D-Clint, in the Austin American-Statesman

Who knew, when you were watching the Verizon ad and the guy said, 'Can you hear me now,' that was really just a mic check for the Obama administration.

Rick Perry during a speech in San Antonio on Friday

I think he has Obamaphobia.

U.S. Sen. Bob Menendez, D-N.J., knocking Sen. Ted Cruz for calling the president the "biggest obstacle" to passing immigration reform