SUNDAY MORNING 10 AM CENTRAL TIME GOVERNMENT HOMEWORK DUE

PART ONE

GREETINGS to all…let’s take a break from the exam by now –all those darn numbers and demographics, then start in with the next “block” of the course. Get out the roadmap… First where are we? And a brief review…In chapter 3 section 4 of the etext reference, the course system diagram illustrates the 3 blocks, based on the nature of the essential subtopics, or elements for each block. We have been dealing with STRUCTURAL elements in weeks 1-4, that is, the building blocks for a modern society–thus the need to cover the state constitution in the Structure. The constitution represents the people, the economy and the political culture.

 Block 2 is all about THE POLITICAL elements, that is, where a democratic government is chosen (elections) and shaped/influenced by the people and economy (interest groups, political parties). The political block is fascinating because it is always churning, always in motion. Think about a football game–this is the line of scrimmage, or the “trenches” for you die hard fans (players too) I used to play rugby, and was a member of the scrum, and believe me, I know a trench when I see it! To continue the analogy in politics, the political block is where people participate in their government, in the most frequent and most efficient manner. We are members of groups, we vote, we are represented.

INSIGHTS:  We often think the government (the top block on the diagram) is in control of us, but that’s not really true. The POLITICAL ELEMENT is. The minute the political system is controlled by the actual rulers, we no longer have a democratic republic. Lets look at how, by first reading section 2 of chapter 3 in the e-text, and all of chapter 21 in American Democracy Now.

There is a step-by-step on how interest groups emerge in a democracy, with a capitalist/free market economy. We are a nation of groups, dating to the earliest days of the new nation…to appreciate this, read over the excerpt from Federalist #10, in section 3 of the e-text.

PART 1 ASSIGNMENT:  Think and list a modern (contemporary) version of each of the “interests” Madison presents… an example of a money interest would be bank owners–and of course there are others in this interest area (credit union, pawn shops, etc). You can be very creative in thinking of a few “lesser interests” keeping in mind that Madison knew that other things would emerge in the economic and non-economic realms.  Just write out your list of modern version, on the submit window.

Next, move to section “types of interest groups” in AMD text and read carefully about the types of interest groups–ECONOMIC, and NON-ECONOMIC. Try to realize the the subtle distinctions among the sub-groups–what makes them different from the other subgroups? What is the common denominator they share? The most important observation is–when are they in competition or conflict with each other. 

For example, Labor groups are typically those that organize as unions, and who work for a business/employer. They aren’t businesses themselves. Professional groups are all members of a career that requires a license or certificate to “practice”…they may be their own boss, but that is secondary. We all have to establish the most salient aspect of WHO WE ARE…  What defines us the most important ways in the politics of governing.

For

PART 2

 of the assignment, list two examples of economic groups that would tend to conflict, and two examples of non-economic groups that would conflict. In other words, how dogs & cats are “natural enemies”…In interest group politics, the core purpose of a group will likely make it compete or conflict with the core purpose of another group. Also, think back to political subcultures from block 1.  Ask yourself, who or what exactly does the group represent?  This also helps you avoid the temptation of opinion, versus using an objective, evaluative process

PART 2

For part 2 of this assignment, let’s look at some actual groups.You are going to adopt 2 interest groups–one economic, and one non-economic. PLEASE DON’T CHOOSE ONE OF THE EXAMPLES FROM THE TEXT. You will be searching and looking over the websites for various interests in Texas. For reference about types of groups, please read section 5 of chapter 3.

 For an economic interest, you may want to choose a professional or agribusiness group, that reflects your degree plans or current employment arena.  You can search “Texas professional associations” or “agriculture associations” “energy associations”, etc.

To find non-economic interests, try searching under “public service associations or groups”, wildlife conservation, tax justice, civil liberties, race or ethnic equality, women’s health/safety, church groups, or any issue area you might be interested in..P.S. don’t forget to type Texas in the search phrase!

After you choose your groups, find their websites, and submit the URL (address) for each, for WEEK 5 part 2 assignment.  Along with the address, include your overall evaluation of the group.  Can you quickly determine the key issues the group is focused on?  Does the website express the benefits of membership?  Would you join it, if it appeals or pertains to you/your family/profession?

Texas State and Local Government
Sandra Gieseler

Chapter 1:
The Structure of the Lone Star State… ……………………………………… 1

Chapter 2:
Texas Higher Law – The Constitution in Perspective …………………. 33

Chapter 3:
Groups and Special Interests in Texas …………………………………….. 55

Chapter 4:
Voting and Elections in Texas ………………………………………………… 81

Chapter 5:
Political Parties in Government and State Politics ……………………. 111

Chapter 6:
The Texas Legislature …………………………………………………………. 137

Chapter 7:
The Texas Governor, Executive and Bureaucracy …………………… 179

Chapter 8:
The Law and State Courts ……………………………………………………. 217

Chapter 9:
Local Governments in Texas ………………………………………………… 243

Chapter 10:
Taxes, Education and Roads – All Together Now, or Never? ……. 271

Chapter 1
The  Structure  of  the  Lone  Star  State…

The economy of a social system is a broad, somewhat
permanent reflection of the crossroads of people, geography
and culture – thus it is part of the structure of the social system.
Economic  aspects  of  any  society  are  huge  “building  blocks”  of  
political relevance as well, because they convey much about
that the government will respond to, be shaped by, and will
decide.   It’s   not   to   say   that   any   government   can   precisely
manage an economy, or economic conditions, for that matter.
However, one hallmark of American economic superiority has
always been the responsiveness and adaptability by government, to accommodate and
encourage growth.

What that means varies from era to era, and it should be no surprise to anyone that
our state and national economies have drastically changed in the past two decades.
Think of economies as you would populations – a teeming stew of individual abilities,
diversities, and tendencies – acting in the aggregate.   That’s   how   sociology,   political  
science, and of course, how economics works to define, illustrate and conclude (even
though  often  after  the  “fact”  in  historical  terms).  Regardless,  all  governments  have  a  role  
in economic possibilities, and outcomes, often to the tune of the survivability and true
sovereignty of the place itself.

Texas’  story  is  an  exceptionally  good  example  of  the  links  between  government  and  
economy, in fact, one might view a study of Texas as a microcosm of America itself: the
vast, diverse acreage and resources within; great wealth and great poverty; the human
spirit of individualism, opportunity, and buck-wheat toughness. And in a cultural sense,
all reflected in the trends of policy and politics.

At the onset of this chapter, and the following nine chapters, we will preview the
essential elements feature – a simple block presenting the finite concepts – the essence
– of each subtopic/institution/process. This is not an outline, but a tool that should assist
you in organizing and retaining specifics about the chapter. Think of the essence as the
core, the simplest denomination of the broader topic.

Genesis: The Land and Economy

Economic considerations stem from the natural characteristics of the place itself –
the   land   mass,   water,   climate,   soil,   and   treasures   below.   All   are   the   “movers   and  
shakers”  of  any  society,  because  such  are   things  people   fight  over,  grow   rich  or  poor  
from, travel vast distances to obtain and subsequently place the results at the foot of
government. In other words, the demands and challenges for those in government are
the result of the important economic factors which people are most concerned and
affected by – and economic factors always revolve around the concept of scarcity.

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Economic factors are the core elements of economic production and consumption
– land (including buildings/homes), labor (employment) and capital (finance,
machines, equipment). These elements are in demand, but there is never enough for
everyone, everywhere, at any time. One may view the concept of demand as greed, but
that’s   not   how   economies   work   – there are markets, which accommodate demand.
Thus, government, especially political government, is the broker for these vital and
unstoppable exchanges. Typically, political governments determine, in the famous
aphorism  of  political  scientist  Harold  Lasswell,  “who  gets  what,  when,  where  and  why”.  
Explaining how this happens will require the rest of this book. We will start first with that
comes first  naturally,  the  economic  staples  from  the  state’s  vast  territory.

Traditionally  the  state’s  economic  vitality  revolved  around  one  product,  an  economic  
staple, which is usually predetermined by the availability of the item, and the demand for
it (this is known as natural advantage). If that product – wheat, cattle, steel, etc – sold
profitably, the state or region experienced economic prosperity. Conversely, economic
hardship was unavoidable when the production and marketability of that product was
diminished or changed entirely.

Cotton was the product that drove southerners into the rich soils of East Texas.
Endless   rows  of   cotton  plants   pumped  money   into   the   state’s   economy  until   the  Civil  
War brought the industry to an eventual halt. Although cotton would continue to reap
profit in Texas, the postwar economy would
soon be bolstered an ever-increasing demand
for beef – especially in the commercially viable
North and mid-Atlantic markets. This presents
economic diversity for those involved with the
choices – what to use the land, labor and capital
to produce, and which crop presents the best
terms of trade.

Texas’  natural  advantage  – vast acreage and a ready supply of feed proved a worthy
drawing card for the post Civil War economy. The cattle industry would become the
state’s  mainstay  crop  as  millions  of  longhorn  were  driven  to  Midwestern  stockyards.  The  
culture of this industry, of course, became permanently marketable as well – cowboys,
trail rides, risk; reward would only draw more of the same. Another crop – crude oil –
would also present economic diversity and another wave of adventurers. Interestingly,
the overall potential for wealth, based on the terms of trade, continued to rise in Texas.
What set Texas apart from other states, however, is that the commercial production was
based solely on natural advantages, as opposed to comparative advantages evident in
industrial regions.

“Texas  Oil”
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At   the   century’s   turn,   the   discovery   of   Spindletop   in   East   Texas   diverted   the  
economic  elites  and  adventurers  to  a  new  “frontier”  of  possibility  in  oil  and  natural  gas.  
The  extraction,  refinery  and  marketing  of  these  ready  staples  dominated  Texas’  modern
economy,   until   the   oil   bust   of   the   1980’s.   The   challenge   continues   at   present,   with  
choices again presenting themselves. At the start of 2008, Texas was the leading
producer of wind-generated  energy…more  on  that  topic  later  in  this  chapter.

Since the   bust   of   oil   production   in   the   early   1980’s,   Texas   has   become   a   highly  
diversified economy. The economic factors of land, labor, and capital have been
successfully adapted to the expansion of other markets, i.e., the transition from one
primary economic mainstay to production many other different goods and services.
What creates this comparative advantage? Typically, several aspects of a state or
other definable region will prove beneficial to business and industry. These factors
include a dynamic list headed by low taxes, viable infrastructure (roads, rail, ports, etc),
availability of labor/workforce, office and warehouse space, and of course – financial
capital to accommodate growth. Simply, producers have options and incentives here.
The essentials of this chapter describe the changed economic landscape, and provide
new insights about the evolving economy – the so-called New Economy -, which
revolves around trends in high technology, digital innovation, and the benefits of
research-driven competitive advantage.

Natural Advantage: Texas

Before   the   oil   crisis   of   the   early   1980’s,   Texans   could  
proudly  boast  that  the  state’s  oil  industry  contained  30%  of  
nations  oil  reserves,  produced  30%  of  the  nation’s  domestic  
oil supply, comprised 28% of the nation’s   refineries   and  
employed close to 400,000 people. All this generated 6.7
billion in salaries, and accounted for 28% of the states
revenues (from severance taxes only). The disposable
income generated by oil & gas employment helped all
sectors of the economy, including finance, construction,
manufacturing, retail sales and services. Million of dollars
contributed   from  major   oil   companies   to   the   state’s   public  
and private universities helped to fund petroleum-related
business and scientific academic programs.

The  euphoric  economic  highs  of  the  70’s  and  early  80’s  came  to  a  grinding  halt  when  
Texans saw the price of crude oil drop drastically and dangerously low in the mid
1980’s.  Even  more  frustrating  was  the  realization  that  the  self-sufficient Texas oil baron
now had to confront the powerful currents of globalization. The oil industry by the late
1980’s  had  become  part  of  a  fully  integrated  international  market,  controlled  largely  by  a  
cartel called the Organization of Petroleum Exporting Countries (OPEC). Thirteen
member nations comprise OPEC, including eights Arab countries, as well as Asian,
African and Latin American nations. Despite extreme pressure from the U.S. and other
importing nations, OPEC decided to drastically cut the per-barrel cost of crude oil. In the
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early  1980’s,  the  price  of  crude  was  at  an  all-time high of 51.02 per barrel, up from the
24.28  price  during  the  1979  Iranian  Revolution.  However,  OPEC’s  creative  slicing  drove  
the price down to $16.51 per barrel in 1986. A slight recovery was experienced in 1991,
only to see the price fall to $11.90 in 1994.

The entire state economy was vise-gripped   by   the   drastic   slide   in   oil   prices.   “The  
Texas economy lost nearly 300,000 jobs in Natural resources and manufacturing
between 1981 and 1987, with most of this loss occurring in the oil and gas industry. In
1986   alone,   80,000   nonagricultural   jobs   were   lost.”   Within   a   six-month period,
unemployment went from single to double digits. The Gulf Coast area was extremely
hard-hit by the depressed  oil  market.  “In  1982,  the  oil  industry  provided  one  if  five  of  all  
jobs  in  the  Gulf  Coast.  In  1987,  it  accounted  for  only  one  in  seven.”

Of course the depressed oil industry caused an adverse domino effect in every
sector  of   the  state’s  economy. Many unemployed workers defaulted on mortgage and
personal loans. Retail business suffered due to lack of demand. The construction
industry declined as the number of new housing starts dropped drastically.

Insight Question: What is the difference between the economic problems caused
by oil prices in the eighties, and problems facing Texas residents in the mid-
2000s?
Energy in Transition

In 1999, crude oil prices bottomed out at just above $12 per barrel. At the same time,
the US economy was soaring, due to massive changes in international trade, relative
peace, and Internet-based   “e-commerce”,   resulting   in   the   term   “New   Economy”.   All
economic trends place demand on state and local government to respond, either to
insulate   the   negative   impact,   or   to   “accentuate   the   positive”   So,   in   March   1999,   the  
Texas Legislature moved to assist oil operations by repealing the severance tax on oil
and gas, providing incentive for producers to reap profits. What a difference a few years
would make!

The Bush Administration ushered in a made-to-order climate for
energy as an economic priority, which grew increasingly prone to
international political forces after the terror attacks in 2001, the
invasion of Iraq in 2003, and the emergence of alliances between
major oil producers Iran and Venezuela. Texas has obviously
benefited from the vast amount of federal spending in support of
the war in Iraq, but the effect on the oil & gas sector itself has not
been significant, especially in terms of production. In fact, the
mining sector overall has declined in state production, between
2000 and 2006 (see Table 1.1) Employment in this area has
fluctuated, but remains lower than 1998 in numbers of jobs.

Regardless of the smaller role crude oil and refining plays in the state economy,
Texas still leads all states in petroleum reserves and potential sources of renewable
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energy.   In   fact,   “Texas  crude  oil   reserves represent almost one-fourth of total U.S. oil
reserves, and Texas natural gas reserves account for almost three-tenths of total U.S.
natural  gas  reserves.”  Additionally,  Texas  crude  oil,  concentrated  in  the  Permian  Basin  
of west Texas, continues to serve as the benchmark grade of domestic oil production,
due  to  its’  “light  consistency  and  low-sulfur content, the quality of WTI is considered to
be high, and it yields a large fraction of gasoline when refined.

The natural gas sub-sector continues to dominate the US market, also supplying
around 25% of annual demand. With humble beginnings as a waste by-product of crude
oil drilling, natural gas would eventually be distributed through converted oil pipelines,
and  now   laces  across   the  US.  Today,   “an  expansive network of interstate natural gas
pipelines extends from Texas, reaching consumption markets from coast to coast,
including those in California, the Midwest, the East Coast, and New England. Texas has
10 natural gas market hubs located in both East and West Texas, more than any other
State.”  

“Texas  Panhandle  Natural  Gas  Irrigation  Pump”

In addition to oil & natural  gas,  Texas’  natural  advantages  include  large  deposits  of  
bituminous and lignite coal. Given the technological progress on clean burning coal as
an   alternative   energy   source,   the   state   could   find   another   “black   gold”.   If   the   state’s  
private and public leaders pursue this potential market along with (ironically enough,
Vice-President   Dick   Cheney’s   home   state)   Wyoming   which   leads   the   nation   in   coal  
production. It remains unclear how Texas will fare as a producer of alternative and
renewable energy. For the student of this subject it’s   important   to   marry   up   the  
economic concepts of natural, comparative and competitive advantage, within the
context of this text – that is, how politics in many ways does dictate economic
reality.

We will review the potential for alternative & renewable energy in the Emerging &
High   Technology   section   of   this   chapter,   for   now   let’s   continue   to   profile   natural   –
advantage – what exists in surplus, and in large quantities – as   in   the  state’s   longest  
running staple: agriculture.

Table 1.1
Year 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Agriculture 6.47 6.39 7.46 8.09 9.79 8.47 8.35 8.53 8.67 8.7 8.74
Mining 45.18 44.07 39.22 57.92 68.98 97.72 100.73 110 113.45 114.04 114.29
(Oil and Gas)
Construction 36.88 40.26 41.87 43.47 45.08 51.59 57.85 62.86 66.23 69.35 75.27
Manufacturing 92.98 92.27 94.46 93.16 118.84 127.44 139.79 148.09 154.91 161.38 168.85
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Total Goods 181.51 183 183.01 202.64 242.69 285.21 306.72 329.48 343.26 353.46 367.15
(Current Dollars)
Wholesale 53.79 54.5 54 55.05 60 65.65 70.75 71.67 77.03 81.82 85.41
Retail 51.74 54.66 57.24 58.63 59.61 63.34 67.26 70.43 75.18 79.93 83.39
Transportation 50.25 51.63 53.48 57.07 60.21 63.51 67.86 71.67 77.11 81.12 85.59
and Utilties
Information 35.86 36.99 36.53 36.04 38.81 40.27 42.52 44.72 47.36 49.11 50.8
Financial 117.2 125.93 128.22 133.44 139.75 145.28 160.1 170.68 180 191.32 204.13
Activities
Professional
and 73.21 82.2 83.94 88.72 95.56 105.83 117.21 127.37 137.91 150.71 163.61
Business
Services
Educational and 42.36 46.8 51.38 54.76 59.04 63.17 67.22 70.68 75.31 80.26 85.27
Health Services
Leisure and 23.11 23.99 25.49 26.48 27.71 29.32 31.96 34.02 36.34 38.73 40.98
Hospitality
Other Services 17.6 18.11 18.68 19.64 19.91 20.7 21.99 22.99 24 25.39 27.02
Government 80.59 84.45 91.51 96.33 101.1 107.06 112.95 117.92 124.23 128.91 135.9
Total Services 545.71 579.25 600.47 626.17 661.71 704.13 760 805.19 854.47 907.3 962.08
(Current Dollars)
Total Gross
Product 727.23 745.33 760.59 770.98 808.09 831.79 867.86 896.51 923.78 951.27 983.93
(CY2000 Dollars)
Total Gross
Product 727.23 762.25 783.48 828.81 904.41 989.34 1066.71 1134.67 1197.73 1260.77 1329.23
(Current Dollars)

Agribusiness

Agribusiness, i.e., agriculture based on science, technology and economics, is still a
major  player   in  Texas’   economy.  Again,   the  natural  advantage  of  enormous  acreage,  
climate (growing season, soil) and access to unlimited markets has kept Texas at or
near the top of numerous crop productivity levels. Although the growth patterns are
shifting, Texas still leads the nation in cotton production, cash receipts from livestock,
and total number of farms and ranches. In 2005, the state was second only to California
in total receipts, 16,355 million dollars, up from 13, 621
in  2002.  Texas’  agronomic  advantage  is  reflected  in  the  
success of livestock production, while the comparative
advantage presents itself in other crops. The state
Comptrollers  “Rural  Texas in  Transition”  report  explains  
how   a   “landscape   as   vast   and   varied   as   Texas’  
supports a variety of agricultural production.

The largest source of agricultural revenue in Texas
comes from the sale of beef cattle. Texas produces
about 20% of the nation’s beef cattle and ranks #1 in
the country in the value of cattle raised. Other important
livestock products include broilers (young chickens) and
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dairy products, followed by chicken eggs and hogs. Sheep and lambs and turkeys are
also commercially raised in Texas. Texas raises more sheep and produces more
mohair from angora goats than any other state.

The   Panhandle   produces   the  majority   of   the   state’s   wheat   corn,   cotton   and   beef.  
Texas’  top  four  agricultural  counties  in  terms  of  sales  – Castro, Deaf Smith, Parmer, and
Erath counties – are home to major livestock operations. The poultry industry is
concentrated primarily in east Texas. The Lufkin-Nacogdoches area supplies the vast
majority  of  the  state’s  commercial  timber.  San  Angelo  is  the  center  for  Texas’  goat  and  
sheep industry, while the Killeen-Temple-Waco  (Stephenville)  is  the  state’s  largest milk
producer.  Coastal  Texas  is  the  state’s  rice  bowl,  while  South  Texas  is  the  citrus  capital  
and largest vegetable producer.

Despite  the  variety  of  crops,  cotton  is  still  king  in  Texas.  “Since  1880,  Texas  has  led  
all states in cotton production in most years, and today the annual Texas cotton harvest
amounts to approximately a third of total production in the U.S. The annual cotton crop
has  averaged  3.81  million  bales  since  1983.”

Cotton is Texas’ most valuable crop, generating 9% of the state’s total agricultural
receipts and 29% of the nation’s cotton revenues. In fact, the state named cotton their
official state fiber/fabric in 1997. Other important crops in this category are greenhouse
and nursery products, corn for grain, hay (#3 among the states), and wheat. Texas is a
leading (#3) producer of greenhouse and nursery products (flowers, ornamental shrubs,
young trees).

Other major field crops in Texas are sorghum grain (#2 among the states), peanuts,
rice (#5 among the states), and cane for sugar. The leading fruits produced in Texas are
watermelons, grapefruits (official state fruit) and cantaloupes. Important Texas
vegetables include onions (official state vegetable), potatoes, and cabbages. Texas is
the #1 producer of cabbages among the states.

The economic impact of agriculture in Texas is vast, and often overlooked in its
overall reach. That is, its web of related industry and of course, employment potential.
Consider   that   “one   in   five   Texans   works   in   some   form   of   agriculture. Agricultural
commodities   add   about   $14   billion   to   the   states’   economy,   making   agriculture   the  
second largest industry. For every dollar spent on agricultural commodities, more than
three dollars are pumped into other sectors of the economy – generating $45 billion a
year. 16 Additionally, agricultural research and development at Texas A & M University,
along with its partnership Agricultural Extension Service program represents the cutting
edge of progress and increased productivity – factors which are vital to this highly
competitive industry.

The competitiveness of agriculture has also been affected by the shifting landscape
of free market forces and even greater changes in international trade and shifting labor
markets. Two emerging trends need to be emphasized at the time of this writing,
midway through 2007. The first is the confounded issue of immigration reform, which
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will likely remain unresolved for the next several years. The second is alternative fuel
production which often is referred to as simply ethanol. What is so interesting about the
topic is that, especially in Texas, ethanol-based  gasoline   isn’t  an   “oil  &  gas”   issue  as  
much as an agricultural one. Consider the following report, issued by the USDA
Economic Research Service:

Expansion of the U.S. ethanol sector has large and far-reaching effects
throughout the agricultural sector. The corn market is affected directly
by the increase in ethanol production. Corn used to produce ethanol
rises rapidly over the next several years and is expected to reach 4
billion bushels annually by 2010/11.

Other crops are affected as movements in relative prices trigger supply
and demand adjustments. Effects are also seen in the livestock sector
due to higher costs of feeding animals. And all of these changes have
implications for farm income and retail food prices. Most of the
adjustments in agriculture occur over the next several years, during the
largest expected increase in ethanol production.

“Myth:  Corn  Ethanol  is  Great”

Direct Effects for Corn

As the ethanol industry absorbs a larger share of the corn
crop, higher prices for corn will intensify demand competition
among domestic industries and foreign buyers of feed grains.
USDA’s  2007   long-term projections show average corn prices
reaching $3.75 a bushel in the 2009/10 marketing year and
then declining to $3.30 by 2016/17 as the ethanol expansion
slows.

Livestock Production Reduced

Higher   corn   prices   affect   the   livestock   sector   because   of   corn’s   importance   as   an  
animal feed. In response to higher corn prices, red meat production declines and growth
in poultry output slows in the United States, particularly during the next several years as
ethanol production ramps up. Higher corn prices reduce the profitability of meat
production, although the greater availability of distillers grains from dry-mill ethanol
production  partly  offsets   this  effect…with   reduced  production,  prices   for  meats at both
the producer and retail level rise, and per capita consumption declines.

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Agribusiness and related industries will always represent the nature of Texas,
literally and figuratively, because the present and future trends will continue to reward
this sector. Regardless of the challenges facing agribusiness – climate extremes, shifts
in the labor market, and food safety – Texas is positioned to minimize the dangers and
continue to maximize potential. The traditional economy has influenced responsive
government and public-private partnerships that will keep the state in its position as a
national and international leader in agriculture.

A Diversified Economy – The Comparative Advantage in Transition

Throughout   the   1990’s,   Texas’   economic  
potential continued to expand, by growth driven
largely   by   the   state’s   rapidly   increasing  
population. The North American Free Trade
Agreement (Nafta) also shaped the changing
economy. As Texas lost manufacturing jobs, the
export/import sector, retail and wholesale trade
increased, as finished goods move across
borders. The same dynamic, along with
population growth, and a high performing national economy set the stage for an
explosion of service and service-related business. This section will detail how the
changing nature of our economic demands and international political economy have
required changes in measuring and classifying services. The following feature is an
excerpt from the Federal Reserve Bank in Dallas, which provides a succinct look at the
status  of  Texas’  robust  service  sectors:

While agriculture and goods industries remain vital to the state’s
economic health, the service sector today accounts for roughly 80
percent of jobs and 63 percent of output (Chart 1). Texas matches the
U.S. in the share of employment in services. The state’s share of output
in services is less than the nation’s 70 percent because of Texas’
importance as an energy producer and growing role in manufacturing.

Measured by employment or output, services are expanding faster in
Texas than in the U.S. (Chart 2). The sector has emerged as the state’s
leading engine of job creation. Since 1990, it has added more than 2.4
million jobs on net and more than doubled the pace of employment
growth in goods-producing industries.

For Texas as well as the U.S., the increasing importance of services
reflects a long-term evolution, driven by the capacity of free enterprise
economies to reinvent themselves. Agriculture’s dominance faded with
the rise of manufacturing, and today the factory era has given way to
services. The transition shows the ability of businesses and workers to
adapt to ever-changing circumstances, including rapid technological
progress and an increasingly competitive world economy.
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Sizing up Services

Truckers making deliveries, technicians maintaining Internet sites, brokers selling
insurance, architects designing shopping centers, managers running businesses,
nurses caring for patients, waiters serving diners – all these and many others are
service jobs. To make sense of this sprawling sector, government agencies aggregate
services into groups of related businesses. In 2003, they adopted the North American
Industry Classification System (NAICS) to replace the Standard Industrial Classification
(SIC). An important reason for the transition to NAICS was rapid growth in service
industries that weren’t well defined under SIC codes. The NAICS information category,
for example, includes communications, publishing and the online services that have
emerged in the information-based economy.

Under NAICS, the service sector’s diverse members are grouped into seven private-
industry categories and government. Texas’ share of employment in each of them is at
or below the nations – with one notable exception. The state has 24.3 percent of its total
employment in trade, transportation and utilities, compared with 22.9 percent for the
U.S. as a whole. From 1990 through 2006 – a period that includes vigorous expansion,
recession and recovery – each of Texas’ major service categories outperformed its U.S.
counterpart in job growth (Chart 3).

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Transportation Services

This category owes its importance to Texas’ strategic location on the Mexican border
and in the center of the U.S. These attributes have spurred expansion of transportation
networks, which have attracted firms in such industries as retail and wholesale trade,
airlines, trucking, pipelines, rail and cargo transportation, and warehousing – all of which
add to employment in this large sector.

Among the major transportation firms headquartered in Texas are Southwest
Airlines, American Airlines, Continental Airlines and Burlington Northern Santa Fe Corp.
The Port of Houston is the country’s second-busiest deepwater facility, and Dallas/Fort
Worth International Airport ranks sixth in the world for passenger traffic and 27th in the
world for cargo volume. Houston’s Bush Intercontinental Airport is the nation’s ninth
busiest in passenger traffic. Fort Worth’s Alliance Airport, a purely industrial airport, is
one of the country’s largest intermodal facilities.

“Dallas/Fort  Worth  International  Airport  – Texas”

Professional and Business Services

The state’s second-largest service category, with almost 15 percent of Texas jobs, is
the top performer in job growth. Professional and business services include many
knowledge-based positions in law, accounting, architecture, engineering, software
design, management and consulting. The industry has added 655,900 jobs since 1990
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– an average annual pace of 5.7 percent, more than a percentage point faster than the
nation.

Professional and business services have played an important role in the state’s
current expansion. Since the recovery began in July 2003, the industry has added over
228,000 jobs on net – more than any other – accounting for roughly 28 percent of the
state’s private job gains. Employment has risen sharply for many professional services
related to energy and construction, including architectural and engineering services and
management, professional and scientific consulting. Employment in computer systems
design has also been raising at a fast clip, likely the result of firms outsourcing software
development.

Education and Health Services

The second-fastest-growing service category includes private university and
education workers, training center employees, doctors, nurses, medical technicians and
social workers. It has added 571,900 jobs since 1990. Health care dominates the
category, with about 1.1 million jobs, or 88 percent of the total and roughly 12 percent of
Texas private employment.

Health care demand is rising nationwide as the population ages and new technology
changes the delivery of medical services. In Texas, the rapidly growing population is
another driver for health care employment. The second-most-populous state, Texas has
been adding residents twice as fast as the nation, in part because of migration. Along
the Texas – Mexico border, health care-related jobs have been multiplying as many
Mexicans cross the Rio Grande to meet their medical needs.

A key factor in the category’s growth has been the rise of ambulatory care – more
commonly known as outpatient services. Managed care and new medical technologies
helped reduce the average hospital stay nationally from 7.6 days in 1980 to 5.6 days in
2004. Visits to outpatient facilities have climbed. In Texas, employment in ambulatory
care has increased a vibrant 8 percent a year on average since 1990, and the segment
now makes up more than 50 percent of total health care jobs. Employment has also
been steadily increasing at hospitals and nursing homes. As the Texas population
grows and ages along with the baby boom generation, demand will continue for workers
in these service areas.

Leisure and Hospitality Service Employment Increases

Texas boasts a wide range of attractions – the Alamo, Galveston and Padre islands,
Space Center Houston, Big Bend National Park, the Fort Worth Stockyards, the State
Capitol and the rolling Hill Country, to name just a few. Add in business travel and
entertainment, and it makes for a healthy industry. The leisure and hospitality category
– which includes hotels, eating and drinking establishments, and recreation services –
makes up 11.4 percent of Texas’ economy and employs about as many workers as the
state’s factories.
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Most leisure and hospitality industries have
been adding jobs at a steady pace each year.
Since 1990, job growth has averaged 3.8 percent,
outpacing the nation’s 2.7 percent. The lion’s share
of leisure and hospitality employment is
concentrated in food-service and drinking
establishments, which make up almost 80 percent
of the total. This segment continues to add workers
at a moderate pace, though job growth has slowed
from the 1990s’ pace.

Clearly,   Texas’   economic   transformation   owes   much   to   the   unprecedented  
population  growth  in  the  1990’s.  It  is  obvious  that  the  sheer  volume  of  people,  and their
characteristics (especially age) have directly impacted the Education & Health sector.
We will look at this perspective, known as demographics, later in this chapter, as it is
impossible to understand economics without looking at the consumer and labor
component.  For  now,   let’s   finish   the  discussion  of  economic  production,  by  examining  
the other sectors of goods – construction and manufacturing, along with the fascinating
emerging market sector – high-technology – which represents a nexus of both goods
and services.

The Construction Industry

Economists often look at the activity in the construction
industry to gauge the state of the entire economy. A
depressed housing and commercial trend indicates a slow,
sluggish economy as individuals and businesses alike are
reluctant to invest in expansion activities. The Texas
construction industry came to a near standstill during the oil
crunch  years,  and  the  national  recession  dips  of  the  mid  80’s  
and  early  90’s.  Jump  started  by  lower  interest  rates  and  rapid
population growth, 1992 figures finally indicated a pattern of
steady  recovery  with  a  “22  percent   increase   in  housing  starts  at  an  annualized  rate  of  
70,000 houses in the first few months of 1993, residential permits were up another 15
percent for early  1993.”

In   fact,   “construction   of   large   projects   took   off   in   2006,   including   office   buildings,  
condominiums, hospitals, hotels, schools and entertainment venues. Nonresidential
contract values jumped 52 percent in 2006, their strongest growth since 1981 (see
Chart  3).  Unlike  the  1980’s  when  growth-driven construction often led to overblown and
unmanageable  lending,  Texas’  “most  recent  building  boom  took  a  quiet  backseat  to  the  
house-price boom that occurred elsewhere in the country. While concerns grew that
home prices along the coasts were soaring beyond fundamentals, inflation-adjusted
median sales prices in Texas were relatively unchanged .As a result, some people were
left   with   the   impression   that   construction   in   the   state   also   hadn’t   accelerated…that  
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wasn’t  the  case. Anecdotal reports suggest job growth could have been stronger with a
more  educated  workforce.”

Manufactures Keep Pace

Following  an  extremely  dismal  future  in  the  early  1990’s,  manufacturing  in  Texas  has  
made a remarkable recovery. Between 1991 and 2001, over 84,000 new manufacturing
jobs were added in Texas, making it the fourth largest employment sector. By 2006, in
fact, the manufacturing sector continued to out-perform the national average, adding
26,300 factory jobs, an increase of roughly 3%. Not surprisingly, manufacturing jobs
have  continued  to  increase  similar  to  the  state’s  overall  growth,  around  the  metropolitan
suburbs.  Consider  that  “a  third  of  the  state’s  manufacturing  jobs  are  in  North  Texas  – 22
percent in the Dallas area and 11 percent in the Fort Worth area. Houston and its
environs account for 24 percent. Austin and nearby Round Rock are at 6 percent, San
Antonio at 5 percent.

Border counties have a below-average share of manufacturing jobs, most likely
because of the proximity of less expensive production in Mexico. Only 14 Texas
counties   report   no  manufacturing   at   all.   The   state’s   metropolitan areas differ in their
industrial profiles. Dallas leads in primary metals, furniture, wood, paper, printing, food,
textiles and nonmetallic mineral products, such as brick, glass and cement. Houston
has  half  of  the  state’s  petroleum  and  chemicals  manufacturing jobs and roughly a third
of the workers making fabricated metals, machinery and electrical equipment. Houston
also leads the state in jobs for workers making beverages, with 27 percent. San Antonio
has the next largest concentration – 16 percent.

Houston and Dallas are each home to slightly more than 20 percent of workers
making   rubber   and   plastics   products.   While   Austin   is   one   of   the   nation’s   high-tech
capitals,   Dallas   has   Texas’   largest   concentration   of   workers   making   computer   and  
electronics products,   with   43   percent   of   the   state’s   employment.   Austin   employs   26  
percent of these workers. Fort Worth–Arlington leads the state in rolling out
transportation equipment, with 36 percent of jobs. Dallas also is home to a good number
of factory jobs making  transportation  equipment,  with  21  percent.”

“Made  in  America;;  A  Whitney  Texas  Manufacturing  Company  Show”

Insight Question: What does this statistical information have to do with state
government?  Aren’t  the  results  achieved  by  the  businesses  and  laborers alone?

The answer is subtle but constant – government at all levels contributes to overall
conditions affecting economic growth and employment. Sometimes that means new
jobs and opportunities; otherwise it can mean job losses and shrinking sectors. Two
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trends  of  the  1990’s  have  been  greatly  assisted  or  shaped  by  governments  – free trade
agreements and technological advancements. Texas manufacturing has benefited from
both  trends.  Consider  that  “international  exports  underlie  and  increasing  share of Texas
manufacturing   activity,   and   exports   more   than   doubled   during   the   1990’s…Over   the  
next decade, Texas exports will more than double again, reaching $200 billion in 2008.
The Internet has allowed even the smallest businesses to expand their customer base,
their hours and their geographic market.

The outlook for manufacturing is good overall, and it is very telling of current and
future   trends   in   the   state’s   economic   expansion.   In   the   next   two   sections   we   will  
examine two other aspects of economic   growth   that   virtually   guarantee   the   state’s  
vaunted position in production and exports. Emerging technologies (often called high-
tech) and Industry Clustering are the engines of a competitive advantage, fueling growth
in jobs and productivity, as well as inviting educational advancements, research %
development,  etc.  The  state  government’s  role  is  an  absolute  must  in  creating  the  best  
conditions  achievable…and  Texas  is  no  “slouch”  in  this  regard!

21st Century Trends

If  you  are  reading  this  book,  chances  are  you’re  a  college  student  – taking a course
actually   required   by   an   act   of   the   Texas   Legislature.   It’s   no   doubt   as   a   student   or  
anyone considering continuing education, the prospect of a challenging, well-paying
career in some sort of technology-savvy field is alluring (and well advertised!).
Culturally, we are very interested in anything technologically advanced – for function,
achievement,  or  glamour  for  that  matter!  Economically  and  academically,   let’s  first  sort
out this topic by considering what IS high-tech, and where does it fit in across Texas?
What types of jobs and employers are most invested? It is a fascinating subject from an
academic standpoint, and one that involves government at every level.

It’s   important   to   remind   the   student   and   observer   that   high-technology is not an
economic sector itself, although it is possible to identify industries that produce primarily
high-tech outputs. Previously, the definition of these industries was conservative, thus,
calculating the number of new jobs, and tracking the performance of high-tech was
unrealistically low. Fortunately, the Texas Legislature (with much encouragement from
Texas Governor Rick Perry and other state leaders) approved the Emerging
Technology Fund in 2005. This fund allocated close to 400 million dollars, for a variety
of goals, and provided a more comprehensive framework and definition for high-tech
development. Specifically, HB (House Bill) 1765 defines the scope of emerging tech as:

1. expediting innovation and commercialization of research;
2. attracting, creating, or expanding private sector entities that will promote a
3. substantial increase in high-quality jobs; and
4. increasing higher education applied technology research capabilities;

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And the legislation defines emerging technologies as:

1. semiconductors;
2. information;
3. computer and software technology;
4. energy;
5. manufactured energy systems;
6. micro-electromechanical systems;
7. nanotechnology;
8. biotechnology;
9. medicine;
10. life sciences;
11. petroleum refining and chemical processes;
12. aerospace;
13. defense, and
14. other pursuits, as determined by the governor in consultation with the lieutenant
governor and the speaker of the house of representatives.

The legislation is unique in several ways, which also help explain how trends in
Texas’  politics  benefits  economic  opportunity.  First,  the  fund  illustrates  the  concentration  
of  economic  planning  in  the  Governors’  Office,  a  goal  that  Rick  Perry  quickly   inherited  
after assuming the governorship in 2001. Next, note item 14, from the list above – that
“other  pursuits,  as  determined”  – may qualify for funding from the ETF. This is indeed a
wide  mandate  for  the  state’s  Chief  Executive  to  interpret.  In  chapter  9  of  the  text,  Gov.  
Perry’s   inroads to trade relations and other commerce will be featured. For now, the
best we can note about the Emerging Tech Fund is the significant emphasis on
education and its partner – research & development.

Specifically, the ETF is administered by the   Governor’s   Office,   the   Workforce  
Commission (TWC), the Education Agency (TEA) and the Higher Education
Coordinating  Board.   For  much   of   the   1990’s   and   into   the   current   decade,   a   constant  
concern in attracting high-tech development has been a shortfall in the labor market – a
situation true of the US overall. Of course, markets such as Austin and Dallas have
been magnets for research & development and churning out qualified graduates into the
labor pool; overall, however, Texas education system has lagged in this regard. The
Emerging Tech Fund includes specific goals to encourage innovation by allocating fund
as   “for incentives for private or nonprofit entities to collaborate with public or private
institutions of higher education in this state on emerging technology projects with a
demonstrable economic benefit to this state.”

Interestingly, an analysis of the ETF shows the distinction between it and the older
Texas Enterprise Fund which authorized close to $300 million for stated goals such as
the governor’s   “deal-closing   fund”   (200   million),   a   provision   to   retain   Austin’s  
International Sematech research consortium (40 million), and the balance for
endowments to university technology & biotechnology research. The Enterprise Fund
was approved and implemented in 2003, a year when the Texas Legislature found itself
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facing a 10 billion dollar budget deficit, which resulted in serious cuts to most public
school employees both secondary and higher, and to the state government employees
as well.

Regardless of definitions, high-tech obviously is not a typical economic sector, but
one  which   infuses  other  sectors’  productivity   – much like telephones and combustible
engines infused earlier economies. The high-tech   industry,   much   like   the   “new  
economy”   itself, suffers in comparison as it tends to be regarded through the
applications and measurements of the old economy. High-tech is the wild card of the
new economy – it greatly enhances productivity, quality measurement, and changes
estimates of profit, wealth and investment.

High Tech Industry and Emerging Technology

The  Progressive  Policy  Institutes’  comprehensive  “Technology  
and  New  Economy  Project”  contributes  very  useful  suggestions  
and insight for state government to pursue. The following
excerpt details eight key steps to development strategies in the
New Economy, useful to government, students, and families.
The report also touches on a related aspect of economic health
– state budgets – always an item of great concern in Texas.
Keep  in  mind  that  the  state’s  budget  has  undergone  wild  swings  
from a record $10 billion budget deficit in 2003, to a surplus of
approximately 4 billion in 2007. Spending wisely is the challenge
for any government budget effort, to avoid the harmful effects of
budget deficits.

Consider   that   “some   of   these   shortfalls   result   from   the economic slowdown, but
sates  are  poorly  positioned  to  respond.  In  spite  of  the  good  times  of  the  1990’s,  virtually  
all sates ignored the advice of any sage financial planner to save for the future and
instead focused their efforts on cutting taxes and expanding  spending…collectively,   if  
states  are   to  grow   their   revenues,   there’s  only  one  way   to  do   it:  grow   the   incomes  of  
their  residents,  who  will  then  pay  more  in  taxes.”

Economic Development Strategies for the New Economy –
Spring 2002

Focus On The Quality, Not Just The Quantity Of Jobs: For most states, the
central focus of economic development should shift from adding new jobs to boosting
incomes and creating better jobs for all of the state’s residents…to do this, states should
replace, or at least supplement, the chief metric success used today – job creation –
with a new one: income growth.

Know Your State’s Function In The Global Economy: A state should develop an
in-depth and ongoing understanding of its economy, including how the major economic
sectors work and what these economic strengths and weaknesses are. Too often
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decision makers think they already know what’s going on (e.g., “everyone knows that
we are strong in venture capital”) and skip this essential stage in the eagerness to “get
on with it.” But this is a critical mistake. States should also not be afraid to take off the
rose-colored glasses and examine their strengths and weaknesses, opportunities and
threats. Too often states confuse economic development strategies with marketing
documents, wanting to put forward their best face. But the best strategy is an honest
one. Marketing the state’s strengths can come later. But there is another key step. After
analysis, a state must organize to help translate its knowledge into action, at both the
private and public sector levels.

Get Smart About Business Incentives: While most states have added New
Economy economic development policies in the last few years, many still maintain
expensive and usually wasteful industrial recruitment and retention incentive programs.
Collectively, states spend more than $15 billion annually on firm-specific incentives.
Economic development incentives are seldom targeted to specific economic
development goals, other than to “shoot anything that flies,” while “claiming anything
that falls.” For example, several years ago, half the jobs created by companies in
Minneapolis that got tax subsidies paid less than $8 per hour – surely not the route to
raising incomes in the Twin Cities.

It’s not that incentives are a bad idea all the time, it’s that they mostly go to zero-sum
activities. The lion’s share of incentives is spent to convince particular companies to
stay put or to move in. They do nothing to encourage firms to boost training, R&D, or
investment in new capital equipment, all things that would increase their productivity or
innovative capability.

Co-invest in the Work Force Skills: States need to adopt policies to ensure that
American companies have the skilled workers they need to be productive, while
simultaneously ensuring that American workers have the skills they need to navigate,
adapt, and prosper in the New Economy. States can do several things to improve the
skills of the workforce.

Co-invest in an Infrastructure for Innovation: In an economy increasingly
powered by technology and innovation, the ability of states to create an environment in
which innovation thrives is critical to economic growth. But universities are not the only
knowledge incubators; in fact, most knowledge is produced
by companies. States need to foster strategies that
enhance the ability of companies to produce and use
knowledge.

Support Industry Clusters: In regional economies, the
whole is often greater than the sum of the parts. In other
words, firms in related industries often cluster together in a
particular region, allowing them to take advantage of
common resources (e.g., a workforce trained in particular
skills; technical institutes; a common supplier base). But
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clusters are important for another reason – in a knowledge-based economy, having
knowledge is not enough; it must be shared, and in some regions clusters of firms that
network and communicate are able to raise the overall knowledge levels that they can
draw upon. Perhaps the best known cluster is California’s Silicon Valley, where a large
agglomeration of high-tech firms makes it the world’s most vibrant technology region.
But it’s not just Silicon Valley that has industry clusters, and many clusters do not
consist of “high-tech” firms. As a result, states should reorient their economic
development programs to support regional industrial clusters, both based on existing
groups of firms but also around emerging clusters where the region has some initial
capabilities (e.g., several firms and university research capabilities).

“Silicon Valley and the Culture of Entrepreneurship”

Boost Quality of Life: Because a skilled workforce is now the most important factor
of production, a region’s pool of skilled workers is a key factor determining success. In
the old economy, workers used to move to be near jobs. In the New Economy,
companies increasingly look to move to where knowledge workers live. Because they
are in greater demand and have more ability to be particular about who they work for
and where they work, knowledge workers often choose to live in places that provide a
high quality of life in addition to a good job. Most states face a number of challenges in
creating a great quality of life, with high amenities, low crime, and good transportation.

For many states, boosting mobility in the state’s crowded metropolitan areas is the
most important task in improving quality of life. States like Washington, Georgia,
California, Maryland, New York, and Massachusetts have major metropolitan areas that
are near gridlock. Besides making life miserable for millions of commuters, road
congestion severely reduces the economic attractiveness of a place. In spite of this,
little has been done to solve road congestion. Between 1987 and 1998, while vehicle
miles traveled on freeways or principal arteries in urban areas increased by 42 percent,
lane miles increased only 16 percent (with almost all coming from reclassifying rural
areas as urban). No wonder congestion has worsened.

Help More Regions Succeed in the New Economy: In many states, the story of
the 1990s was a common one: The state’s major metropolitan areas boomed, while
other parts of the state, including rural regions and smaller cities dependent on
traditional manufacturing, lagged behind. Such development patterns hurt state
economies by raising costs in congested metro areas and unemployment rates in other
areas. As a result, it’s incumbent upon states to develop and implement strategies that
ensure that more regions thrive in the New Economy.

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Abstract from Robert D. Atkinson, PhD
The 2002 State New Economy Index: The Progressive Policy
Institute, New Economy Project, June 2002.

The primary message of the PPI report is obvious – state and local
government, and economic leaders must continue to refine, or actually
change the way they perceive economic development. Knowledge jobs,
quality of life factors and clustered economic development all work
hand-in hand with high tech industry. Clustering occurs when
companies  in  “a  particular  industry  physically  locate  near each other. A
cluster of companies can include competitors, suppliers, customers,
and   distributors”.   26   Thus,   defense   contractors,   especially   aerospace  
industries, and communications companies will continue to be propelled
by high-tech innovation and clustering. A perfect example of industry
cluster happened in San Antonio, with the transformation of Kelly Air
Force Base into Kelly U.S.A. and then into the Port of San Antonio, as a
major transportation hub. Also, the state-of-art Toyota truck plant, on
the   city’s   southwest   side,   has   ushered   in   competitive   clustering   of  
supporting industries. In short, technology companies thrive in areas
where the supply of highly skilled specialists and innovative research
are in abundance (think California Polytech, Stanford, and
Massachusetts Institute of Technology) State and local governments
are keenly in position to court and develop partnerships with research
entities, often referred to as consortiums.

Texas, at the start of 2008, remains especially well-positioned to attract
new   or   expanding   high   tech   ventures.   Although   the   state’s   property  
taxes are amongst the highest in the United States, other tax incentives
known as abatements are virtually guaranteed to new businesses. The
low-cost availability of energy in Texas is a welcome drawing card,
compared to cost factors for energy in other high-tech regions such as
California and New England. Summarily the state has managed to cast
a wider net, in terms of economic development incentives for
technology industries, by funding the Emerging Technology Fund and
other incentives in the 2007-08 state budget.

Keys to the Future

A dynamic a readily available workforce is essential to business and economic
development.   Key   industries   do   not   want   (or   can’t)   spend   months   or   years   training  
potential employees. A turnkey labor force is an absolute necessity. The state education
system in making great progress in meeting the technological job training skills needed
for a service-driven, high-tech job market. However, businesses seeking to relocate or
small start-ups are increasingly focused on quality of life issues. Relocating employees
requires good public schools systems, residential areas with affordable housing, public
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safety, libraries, parks, recreational facilities, and even less tangibles such as
sustainable assets (alternative energy, public transit, and bike routes).

The factors of economic planning are obvious, as previously mentioned. Though the
natural characteristics of the region dictate most of the wise or efficient economic
decisions for governments, the same cannot be said for other aspects of public policy.
The most important, and dynamic aspect of these decisions starts with the people (in
socio-economic terms, the population). Just as the economy is measured by economic
factors and indicators, the population is studied in terms of demographics, a statistical
summary of the people, which is more than a bunch of numbers. Demographics allow
government and other planners (businesses, and even the military) to study trends, in
order to successfully create present-day and future public policy goals. For example, will
there be enough single-family housing, and viable highway or mass transportation. How
many elementary schools will accommodate projected growth, if the growth is in the
segment of the population likely to have babies. Where are people moving to, or leaving
from? The people, to paraphrase James Madison, are a great beast – the best we can
do to measure it starts with the census data.

The People – Who is Texas, and who will be the Future?

Like economics, population trends reflect much about the
political, social, and cultural features of a given region (recall the
sections in the previous chapter that detail these). Typically, data
used to develop and discuss population derives from the
decennial United States Census, which is conducted nationally,
every ten years. Regardless of the best efforts, the census is
subject to an undercount ranging from 2-12% (for distinct
categories of the population). As the name implies, the
undercount is persons not counted, which really means groups
(a cohort) of persons not counted. What sorts of groups, you may
wonder. Anyone having filled out a census, or observed census
results of some nature can attest to the categories – which define
all of us in some way. Simply stated, the census questions form
the basis for measuring a population, just as we measure the economy by looking at
different categories.

21

Table 1.4: Percent Change in U.S. Population, 2005-2005

Total population, i.e., size, growth rates (including negative results) age, gender,
race and ethnicity, and a variety of income measurements will provide governments,
businesses and families a powerful source of insights and determinants. Imagine, for
example, you have just graduated from college. You have interviewed for a variety of
employment opportunities, but many are outside the area, or in other states. How will
you base your decision? Or, after reading the previous section, you want to try your
hand at e-commerce and start your own business. How will you know what to offer, or
produce, and in what varieties? The answers start with using demographic data to base
your decisions – even  if  it’s  just  picking  a  location  you  want  to  target.

Now imagine you are the government of 24 million state residents. Governments
must also use demographics to determine a variety of complex and far-reaching
decisions. Unlike individuals, however, governments must consider population data
combined with other data, such as economic growth, labor/employment, education data,
to determine demographic trends. In order to better serve governments and planners,
The  Census  Bureau’s   has  devised   the  American  Community  Survey,   to   augment   the  
base data, in an effort to better define how we live and other dimensions of socio-
economic  order  in  the  2000’s.

“How  to  Use  Demographic  &  GIS  Mapping  with  PolicyMap”
22

Trends are very important indicators for governments at all levels, basically because
governments need to plan well, and well in advance, to better maintain the quality of life
and other vital needs within their spheres of responsibility. Of course, government may
not plan well, or, more accurately, see the risks relative to the costs. Often, the political
culture of the governed adds to the lack of comprehensive planning and civic
responsibility (again, reflect back to the discussion of culture in chapter 2).
Unfortunately, trends and estimates often are evident only in assigning blame or merely
accounting for things after the fact. Most often, efforts by individual elements (a city
council, a public school Superintendent, a governor) to plan ahead, or prevent get
scuttled  by  mainstream  political  hype.  For  example,  Gov.  Rick  Perry’s  coup  at  the  start  
of the 2007 Legislature, to implement a mandatory vaccine for girls, as an effort to
prevent  genital  herpes.  One  could  argue  Perry’s  initiative  was  based  on  well-established
demographics  about  the  teen  birth  rate…regardless,  the  politics  of  public  education,  the  
state Legislature, and others put an abrupt halt to the measure.

For students and taxpayers alike, the main purpose of demographics is establishing
and analyzing choices. We can use statistics to help us make choices, but for academic
purposes, we should focus on how demographics are or  aren’t  part  of  the  government’s  
choices.  For  now,  let’s  establish  the  individual  categories  of  Texas’  population,  and  how  
of each of these related measurements affects government planning.

Growth or Stability?

Immigration, migration and natural population
growth   account   for   the   state’s   27     percent  
increase   during   the   1990’s,   and   13   percent  
increase from 2000 through mid-2006.* The US
Census Bureau 2006 American Community
Survey estimates the total population of Texas at
23,507,783. Natural population growth is the
extent to which live births exceed deaths.
According to the Vital Statistics Bureau of the
Center for Disease Control (CDC), the preliminary
estimate of total births in the U.S. for 2006 was 4,265,996, a 3 percent increase – or
127,647 more births than in 2005. As a result of the increases in the birth rates for
women aged 15-44, the total fertility rate – an estimate of the average number of births
that a group of women would have over their lifetimes – increased 2 percent in 2006 to
2,101 births per 1,000 women. This is the highest rate since 1971 and the first time
since then that the rate was above replacement – the level at which a given generation
can  replace  itself.”  Texas  is  contributing  to  these  totals,  in  some  age  groups,  more  than
any  other  state.  Table  1.5   illustrates  Texas’  percentages  of  natural  growth,   leading  all  
three categories amongst the most populous states.

23

Table 1.5
CDC Vital Statistics Bureau
Top 10 Most Populous States 2005
State Birth Rate Fertility Rate Teenage birth rate
California 15.2 71.3 38.8
Florida 12.7 65.6 42.4
Illinois 14.0 66.4 38.6
Michigan 12.6 61.0 32.5
New Jersey 13.1 63.9 23.4
New York 12.8 60.3 26.5
Ohio 12.9 63.0 38.9
Pennsylvania 11.7 58.7 30.4
Texas 16.9 77.6 61.6
Virginia 13.8 65.1 34.4
(Birth rates are live births per 1,000 estimated population in each area; fertility rates are
live births per 1,000 women aged 15-44 years estimated in each area; teenage birth
rates are live births per 1,000 women aged 15-19)

Overall,  only  Utah,  the  nations’  youngest  state,  exceeds  Texas’  birth rate. In terms
of actual numbers, 386,000 babies were born in Texas, while California – with a
population of 36.5 million, 13 million more than Texas – produced 550,000 newborns.
Regardless of this  emerging   trend,  Texas’  exponential  growth  still  means   that  a   lot  of  
folks are migrating here – from other US states, and obviously from other countries.
Observers should also bear in mind the factors of migration, and their influence on the
undercount, while determining the actual conditions in states receiving migrants (more
on migration later in this section).

Table 1.6

24

It’s   no   surprise   then,   that   Texas   passed   New   York   as   the   second  most   populous  
state  during  the  1990’s.  A  useful  exercise  for  students  is  to  compare  Tables  1.4  and  1.6.  
Observe the states with the highest rates of growth versus the total number of the
population increase (1.6) Now look at the percentages on the map (1.4) You get a larger
“view”  of  growth  patterns,  as  well  as   the  states   losing  ground.  The  western  states  are  
experiencing the greatest overall gains, but when one considers the small populations
of  these  states  (except  CA  and  TX),  the  growth  rate  doesn’t  seem  as  significant.  It  is,  of  
course, especially given that the water supply is already strained in a number of these
states, especially the top two growth states, Nevada and Arizona.

“Growth in Rockwall,  Texas”

For  these  same  reasons,  Texas’  growth  is  a  two-edged sword. The most significant
point the tables indicate is that Texas growth rate is very high, and since it is already the
2nd most populous state, well, do the math as the saying goes! What this simply means
is   that   a   lot   of   folks   are   moving   to   Texas,   and   it’s   happening   very   quickly.   What   is  
beneficial about this scenario? First off, the next Census will grant more U.S.
Representatives in the Congress, in the Electoral College (the number of votes a
presidential candidate gets if he or she wins the most votes in our state), and also in
granting various federal grants and programs.

State and local governments gain revenues with growth. There are more sales and
services to tax, more demand for consumer goods, more labor for businesses, more
houses to build, more children to educate, and more highways for commuting. Hold on,
you  might  think…don’t  kids  and  roads  “cost”  the  government a lot of money (as well as
parents   and   taxpayers!)   That’s   correct   – more people do cost government more
revenues, but the returns on these expenses are many. In short, this is the challenge for
government  at  the  state,  and  especially  local  level…much more on this later! For now,
keep  in  mind  the  culture  notes  from  the  previous  chapter.  Texas’  traditional,  piecemeal,  
and minimalist approach to government has been experiencing the stress of exponential
growth for over a decade. Teacher shortages, urban sprawl and gridlock, shifting
inflation and economic growth, air quality, hazardous waste and environmental
concerns   form   unprecedented   challenges.   Let’s   now   look   at   certain   demographic  
measurements, such as age, race, and gender, and make some creative predictions.

The People

A  population,  as   “a  people”  are   referred   to   in   the   language  of   social   science,   truly  
forms the basis of all things economic and political. A population represents the
essence  of,  and  the  greatest  challenge  facing  a  state’s  public officials. It represents the
“who”  of  political  scientists  Harold  Lasswell’s  explanation  of  political  power:   “who  gets  
what,  when,  where  and  why.”  In  short,  different  sectors  of  the  population  have  different  
25

“what’s,   and   “why’s,   etc.   Of   course   these  
implications are rooted in political culture,
again   from   the   previous   chapter.   Thus,   let’s  
consider   the   “where”   part   of   Lasswell’s  
equation,  in  terms  of  the  distribution  of  Texas’  
people.

According to the 2000 Decennial Census,
84.8   percent   of   Texas’ population lives in
metropolitan areas. This is underscored by
recent population growth trends – the   state’s  
27 metro areas accounted for over 91 percent of Texas population growth between
1990-2000.  Growth   in   the  state’s  metropolitan  statistical  areas  or MSA’s is not evenly
distributed, however. It is concentrated in the largest cities and their surrounding
suburbs, even whole counties. Dallas, Houston, San Antonio and Austin have all
witnessed the growth trend known as exurbia. The Brookings Institute defines exurbs
as   “communities   located   on   the   urban   fringe   that   have   at   least   20   percent   of   their  
workers commuting to jobs in an urbanized area, exhibit low housing density, and have
relatively  high  population  growth.”  

The common denominator amongst exurbs is the combination of growth and
employment, resulting in the need to commute. Other areas with significant growth, but
not   in   the   job  market   are   the  MSA’s   located   along   the   border   with  Mexico.  McAllen,  
Brownsville and Laredo and the Lower Rio Grande  Valley  (generally  referred  to  as  “The  
Valley”)   together   added   235,000,   between   2000   and   2006,   making   it   the   4th highest
growth area in Texas – behind Dallas-Ft. Worth-Arlington (837,424), Houston-
Sugarland-Baytown (770,311) and Austin-Round Rock (269,457).

For government purposes, county-level data is also a very important demographic,
since   counties   carry   out  much   of   the   state’s   administrative   functions   (more   on   this   in  
chapter 10) Table 1.7 shows the growth patterns since the 2000 Census, for the ten
most populous counties in Texas. The patterns described earlier (urban growth centers)
are affirmed, but with greater clarity as county-level data illustrate migration to the
suburbs adjacent to municipalities, and often the counties adjacent to the largest of
Texas’  cities.

26

Texas Future Population

Government and public policy, as well as business, industry and investment all tend
to  rely  on  “projections”  or  educated  hypotheses,  (or  both)  about  future  realities.  Will  the  
population shift, age more or live longer, develop new vital needs, migrate out, have
more  children,  etc…it  is  obvious  that  growth  is  anticipated  for  generations  to  come.  One  
need only observe changes, especially in the largest metro areas to conclude what the
future of Texas will look like, at a minimum. Not surprisingly, growth and migration
patterns are difficult to project, yet the importance of these efforts cannot be overstated.
Planning   (especially   at   the   state   level)   is   contingent   on   accurate   estimates,   thus   it’s  
good  sense  to  have  a  “plan  B”  or  “C”  for  that  matter.

To effectively project future population trends, the following study produced by The
University of Texas at San Antonio uses county level data to account for the recent pas,
and projected patterns of migration. In the UTSA study, the net migration assumptions

Geographic area

Table 1.7–Population Estimates

Estimates
Base

Census
2000

July 1,
2006

July 1,
2005

July 1,
2004

July 1,
2003

July 1,
2002

July 1,
2001

July 1,
2000

April 1,
2000

April 1,
2000
United
States 299,398,484 296,507,061 293,638,158 290,796,023
288,125,97
3
285,226,28
4 282,216,952 281,424,602 281,421,906
Texas 23,507,783 22,928,508 22,517,901 22,134,047 21,762,430 21,357,926 20,951,848 20,851,790 20,851,820

COUNTY
1 Harris County 3,886,207 3,762,844 3,695,348 3,634,744 3,571,841 3,490,589 3,415,527 3,400,554 3,400,578
2 Dallas County 2,345,815 2,308,527 2,290,710 2,282,284 2,276,489 2,264,243 2,225,945 2,218,843 2,218,899
3 Tarrant County 1,671,295 1,619,666 1,586,277 1,556,747 1,526,307 1,489,516 1,454,612 1,446,174 1,446,219
4 Bexar County 1,555,592 1,516,586 1,491,049 1,464,691 1,441,452 1,415,534 1,397,846 1,392,931 1,392,931
5 Travis County 921,006 889,542 869,359 854,283 846,602 843,203 819,899 812,299 812,280
6 El Paso County 736,310 721,183 712,481 702,281 694,078 687,915 681,572 679,622 679,622
7 Hidalgo County 700,634 678,652 657,394 635,533 613,400 591,578 574,095 569,463 569,463
8 Collin County 698,851 660,926 628,757 597,536 569,438 538,200 500,224 491,772 491,675
9 Denton County 584,238 554,994 531,054 510,292 488,311 463,681 438,869 432,966 432,976
10
Fort
Bend
County
493,187 466,231 444,141 421,352 399,901 377,223 359,079 354,471 354,452
27

made for three scenarios are derived from 1990-2000 patterns which have been altered
relative to expected future population trends. This is done by systematically and
uniformly altering the adjusted 1990-2000 net migration rates by age, sex and
race/ethnicity. The fourth scenario uses 2000 to 2004 estimates of net migration with
the 2004 population values being taken from the Texas State Data Center age, sex and
race/ethnicity estimates.

The Zero Migration (0.0) Scenario

The zero scenario is a scenario, which assumes that immigration and outmigration
are equal (i.e., net migration is zero) resulting in growth only through natural increase
(the excess or deficit of births relative to deaths). This scenario is commonly used as a
base in population projections and is useful in indicating what an area’s indigenous
growth (growth due only to natural increase) will be over time. In general, this scenario
produces the lowest population projection for counties with historical patterns of
population growth through net immigration and the highest population projection for
counties with historical patterns of population decline through net outmigration.

The One-Half 1990-2000 Migration (0.5) Scenario

This scenario has been prepared as an approximate average of the zero (0.0) and
1990-2000 (1.0) scenarios. It assumes rates of net migration one-half of those of the
1990s. The reason for including this scenario is that many counties in the State are
unlikely to continue to experience the overall levels of relative extensive growth of the
1990s. A scenario which projects rates of population growth that are approximately an
average of the zero and the 1990-2000 scenarios is one that suggests slower than
1990-2000 but steady growth.

The 1990-2000 Migration (1.0) Scenario

The 1990-2000 scenario assumes that the trends in the age, sex and race/ethnicity
net migration rates of the 1990s will characterize those occurring in the future of Texas.
The 1990s was a period characterized by rapid growth. It is seen here as the high
growth alternative because its overall total decade pattern is one of substantial growth
(i.e., 22.8% for the 1990-2000 decade for the State). Because growth was so extensive
during the 1990s it is likely to be unsustainable over time and thus this scenario is
presented here as a high growth alternative. For counties that experienced net
outmigration during the 1990s, this scenario produces continued decline.

The 2000-2004 Migration Scenario

The 2000-2004 projection scenario provides a scenario that takes into account post-
2000 population trends. In the State overall and in some counties the post-2000 period
has resulted in reduced levels of net migration. In other counties post-2000 net
migration rates have been greater than those of the 1990s. Under this scenario the
2000-2004 age, sex and race/ethnicity specific migration rates are assumed to prevail
28

from 2000 through 2040. This scenario allows those users who believe that the 2000-
2004 period has produced fundamental long-term changes in population patterns to
ascertain the likely future size and characteristics of the population.

Even   to   the   novice,   it’s   obvious   that   a   lot   of   statistics   are   churned   out   by  
demographers and research entities. Often, it may seem like a case of too much
information; furthermore, should Texans concern themselves with predictions of this
nature? In other words, will race and ethnicity even matter that much as we forge ahead
in   our   lives   and   careers?   If   only   it   weren’t   for   those   troublesome numbers because,
except  for  them,  what  differences  are  there  anyway?  Let’s  move  to  an  overall  snapshot  
of Texas, in its current pose, and put the previous sections of this chapter together.

Trends: The New Texas Order

Economic and population trends are entwined, as we have
touched on numerous times in this chapter. The role of
elected/appointed officials and key sectors of the business,
health care, education and law enforcement community
continues to turn on evolving realities of this huge state. Texas
has always been affected by migration trends, as well as
culture, technology and shifting global markets. Since 1996,
the US Census Bureau has administered the American
Community Survey, to capture the evolving nature of American
society. Table 1.8 is a brief excerpt from the 2006 survey,
regarding Texas:

Table 1.8
American Community Survey
(2006) Demographic Estimates–Texas Estimate Percent U.S.
Margin of
error
US
rank
Total population 23,507,783 *****
Male 11,705,673 49.8 49.2% +/-7,159
Female 11,802,110 50.2 50.8% +/-7,159
Median age (years) 33.1 (X) 36.4 +/-0.1
Under 5 years 1,922,227 8.2 6.8% +/-3,768
18 years and over 17,004,929 72.3 75.4% +/-3,409
65 years and over 2,329,442 9.9 12.4% +/-3,768

One race 23,091,163 98.2 98.0% +/-15,720
White 16,405,937 69.8 73.9% +/-47,857 39th
Black or African American 2,718,515 11.6 12.4% +/-10,979 19th
American Indian and Alaska Native 111,511 0.5 0.8% +/-6,501 23rd
Asian 787,208 3.3 4.4% +/-6,461 15th
Native Hawaiian and Other Pacific Islander 14,047 0.1 0.1% +/-2,865 9th
Some other race 3,053,945 13.0 6.3% +/-46,784 3rd
Two or more races 416,620 1.8 2.0% +/-15,720 17th
Hispanic or Latino (of any race) 8,385,118 35.7 14.8% *****

29

Economic Characteristics Estimate Percent U.S. Margin of Error
In labor force (population 16 years and over) 11,617,834 65.6 65.0% +/-24,827 38th
Mean travel time to work in minutes (workers 16
years and over) 24.6 (X) 25.0 +/-0.1 17th
Median household income (in 2006 inflation-
adjusted dollars) 44,922 (X) 48,451 +/-287 37th
Median family income (in 2006 inflation-adjusted
dollars) 52,355 (X) 58,526 +/-275 27th
Per capita income (in 2006 inflation-adjusted
dollars) 22,501 (X) 25,267 +/-121
Individuals below poverty level
(X) 16.9 13.3 (X) 9th

The ACS also measures social characteristics, such as education levels, marital
status and the number of military retirees. In short, the tables give clear indications of
trends of the present. Another source of analysis (cited in the economic section of this
chapter)   is   the   Dallas   Federal   Reserve’s   “Changing   Face   of   Texas”   social   and  
demographic summary. The following depicts the combined influence of teen birth rates,
economic forces, and education on incomes:

Although  Texans’  incomes  improved  during  the  ’90s,  succeeding  years  
have seen a reversal of this phenomenon. According to 2003 data, the
Texas poverty rate rose to 16.3 percent and Texas nominal per capita
income fell to 93 percent ($29,372) of the U.S. average ($31,632) as
the Texas economy slumped into the recession that started in 2001 and
lasted until mid-2003.  The  state’s  higher  concentration  of  high-tech and
transportation industries, which were the hardest hit, intensified the
recession’s  impact.  Hence,  these  industries  shed  a  substantial number
of high-paying   jobs,  pushing  down   the  state’s  per  capita   income  more  
so  than  the  U.S.  average.  Also,  Texas’  recovery  from  the  recession  has  
been unusually weak.

Among ethnic groups, Hispanics are undoubtedly the largest segment
in poverty in Texas. In 1999, more than 1.6 million (25.4 percent)
Hispanics in Texas were poor. Their median household income was
$29,873, far below the Texas average of $39,927. This is an alarming
number,  given  the  importance  of  this  segment  to  Texas’  future.  Blacks  
had the second-highest poverty rate (23.4 percent) with a median
income less than that of Hispanics. Anglos fared best, with the lowest
poverty rate (7.8 percent) and the highest median household income
($47,162 in 1999) in Texas.

The disparity among ethnicities when it comes to income and poverty is
not surprising. Natives (predominantly Anglo) are far more likely to have
a high school diploma and some college education than immigrants
(predominantly Hispanic). Less-educated individuals tend to be lower-
skilled workers employed in low-paying jobs. In addition, because the
30

javascript:openGlossary(‘glossary_i.html%23income’)

non- Anglo population in Texas is far younger than the Anglo
population, a large percentage of non-Anglos are in their early earning
years, have scant work experience and thus are more likely to have
lower incomes.

In conclusion, the intertwined forces of culture, economy and people have revealed
the constant challenge for state government, in the most diverse of settings. In order to
allow  Texas’  growth  and  future  to  reflect  a  more  equitable distribution of wealth, political
power and quality of life, the present-day  population  must  quickly  and  emphatically  “arm  
itself”  the  investment  and  development  of  its  whole,  not  of  its  parts.  Fortunately,  for  this  
represents  evolution  of   the  state’s entire modus operandi, the challenges of supplying
energy, environmental considerations, and security may pave the way for greater
cooperation and change.

The formulation and implementation of public policy will be discussed in detail later in
the text, for now it is most important to recognize that as, and where the population
grows and diversifies, more competing demands must be accommodated by various
levels of government and the agents. The operative were is competition, in its market
and economic usage, as an element of dynamics and innovation. Forward-looking
governments often use business models or trends to improve its ability to respond – and
that is the best indication we have, for education overall is a strong force in creating the
competitive advantage.

References

Curtis S. Dubay and Chris Atkins,  “State  Business  Tax  Climate  Index”  (Fourth  Edition),  
The Tax Foundation Washington, D.C. 2006
George  N.  Greene,  “The  Oil  &  Gas  Industry  in  Texas,  The  Texas  Heritage,  Ben  Procter  
and Archie P. McDonald, eds. Forum Press, 1980
Gerry Riposa, Texas Energy Policy: Texas Tea is Still the Favorite Drink, Texas Public
Policy, Gerry Riposa ed., Kendall Hunt Pub. Do., 1987
Kenneth Maldenka and Kim Quaile Hill, Texas Government: Politics and Economics, 2d
ed, Brooks/Cole Pub. Co., 1989
Martin   t.   Katzman   and  Patricia   J.  Osborn,   “Energy   Policy,”   Texas   at   the  Crossroads:  
People, Politics and Policy, Texas A & M University Press, 1987
Sam  Fletcher,  “Industry  Retains  Primary  Position  in  City’s  Fortunes,”  The  Houston  Post,  
May 1, 1994
TR Ferenbach,  Texas  Mythology:  Now  and  Forever,”  Texas  Myths,  Robert  F.  O’Connor,  
ed. Texas A & M University Press, 1986

31

http://www.taxfoundation.org/staff/show/15.html

http://www.taxfoundation.org/staff/show/4.html

Featured Links

http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=Search&geo_id=&_geoCon
text=&_street=&_county=&_cityTown=&_state=04000US48&_zip=&_lang=en&_sse
=on&pctxt=fph&pgsl=010
http://www.cdc.gov/nchs/pressroom/07newsreleases/teenbirth.htm
http://www.census.gov
http://www.dallasfed.org/research/swe/2007/swe0703b.cfm
http://www.ers.usda.gov/StateFacts/TX.htm
www.ieeeusa.org/volunteers/committees/cwpc/Oct05/files/11.2-Texas_briefing
www.window.state.tx.us/specialrpt/energy/pdf/96-1266-1-EnergyExecSummary

32

http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=Search&geo_id=&_geoContext=&_street=&_county=&_cityTown=&_state=04000US48&_zip=&_lang=en&_sse=on&pctxt=fph&pgsl=010

http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=Search&geo_id=&_geoContext=&_street=&_county=&_cityTown=&_state=04000US48&_zip=&_lang=en&_sse=on&pctxt=fph&pgsl=010

http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=Search&geo_id=&_geoContext=&_street=&_county=&_cityTown=&_state=04000US48&_zip=&_lang=en&_sse=on&pctxt=fph&pgsl=010

http://www.cdc.gov/nchs/pressroom/07newsreleases/teenbirth.htm

http://www.census.gov/

http://www.dallasfed.org/research/swe/2007/swe0703b.cfm

http://www.ers.usda.gov/StateFacts/TX.htm

http://www.ieeeusa.org/volunteers/committees/cwpc/Oct05/files/11.2-Texas_briefing

http://www.window.state.tx.us/specialrpt/energy/pdf/96-1266-1-EnergyExecSummary

Chapter 2
Texas Higher Law – The Constitution in Perspective

Constitutionalism: Synonymous with the rule of law, may defined as correct
procedure…describing how leaders are to be selected and what powers they are to
exercise…

In January 2007, Governor Rick Perry issued an
“executive order” that would require all female students
enrolled in Texas public schools to be vaccinated for HPV,
human papillomavirus, as a preventive measure for
cervical cancer. The reaction from parents, school
administrators, elected officials and ideological
associations was quick and loud. For various reasons,
most voices were negative, but the silent words of the
Texas Constitution determined the outcome of Perry’s
sweeping measure. In short, Texas governors are not
granted this sort of power by the state Constitution.

Often, the phrase “a government of laws, not men”
keeps the voice of reason in American democracy –
especially when the passions of politics cloud the current issues. Therefore, references
to constitutional duties, or constitutional anything, reflect the existence of this type of
law, known as higher (constitutional) law.

Americans have traditionally displayed great confidence in, and placed great value in
“the rule of law”. This state of mind, and law, is made possible by adopting a contractual
form of government, a constitutional democracy. Officials or political scholars may
acknowledge constitutions, but the government cannot write them because constitutions
create government. Each American state has a constitution, which, in theory and in fact,
is the by-product of the Constitution of the United States (although Massachusetts and
New Hampshire have constitutions that predate the U.S. Constitution.

The U.S. Constitution created the national government in 1787, in the near-sacred
Constitution Hall in Philadelphia. Ratified (accepted by vote in ¾ of the states) in 1789,
the governing institutions (Congress, president, etc) procedures, powers, limits and the
federal system of sharing power with the states was expressed in seven sections called
articles. The relationship between the new national government and the states would
thus be termed federalism, and future states (including Texas of course) would adopt
their constitutions within this legal context.

“U.S. Constitution”
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The relationship of federalism is actually one of three systems a government may
adopt; the others are the unitary and confederal systems. The systems are
distinguished by concepts of authority and sovereignty. In each of these systems, the
authority to govern is wielded in different ways. In a federal system, power is divided
(shared) between national and state governments, meaning that each has a sphere of
authority, but one must maintain sovereignty (the ultimate authority, or supremacy). In a
confederal system, the members, states, provinces, etc. retain sovereignty, and are
voluntary members in the national or international entity (the best example of this is the
United Nations).

Article IV of the U.S. constitution states that “the Constitution, and the Laws of the
United Sates…shall be the supreme law of the land, and Judges in every State shall be
bound thereby, anything in the Constitution or Laws of any State [to the contrary]
notwithstanding. The federal system was later tested and bolstered by the Civil War,
which resulted in three monumental changes (amendments) to the Constitution, aptly
titled the Civil War Amendments. What did and does this mean for state governments?
Why even have state constitutions if federal laws prevail? The answers lie in the nature
of federalism, which empowers each level of government with different areas of
responsibility; hence the term federal system implies that the components work together
to accomplish the business of government.

In this chapter, we shall discuss the origins of federalism by virtue of the principle of
higher law. In the American tradition of democracy, written constitution holds a special
place because of the notion of sovereignty. In practical terms, that means that the
constitution is the final word in governing, not an element of government like a governor
or a state law. To understand fully the Texas constitution in perspective, the following
elements will be presented and explained:

The purposes of constitutions, and higher law, with regards to the role of
government
The division of powers between the national and state governments
The Texas Constitutional Legacy
Amending the Texas Constitution: a true original
Reform

Constitution and Democracy:
The Necessary Ingredient

Constitutions written or informal are a necessary condition of democratic
government. There are very few “musts” in the study of government, and this is one of
them! It’s pretty simple in theory – Constitutions represent “The People” who are the
true sovereign in a contractual “democratic” government. The governed agree to be
governed, but this immense transfer of power is granted with conditions, which are
spelled out in a constitution. In other words, the conditions include

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1. The structure and form of the government
2. The powers of the government
3. Limits on the powers of each level of government
4. The way governing institutions are to be chosen
5. Procedures for change (amendment)
6. Rights and privileges of the governed

Whether it is the national constitution, that of a state
or even a city (which are called charters) this body of
higher law should be by its very nature, a classic,
enduring and prudent “trustee” of the people.
Constitutions, it should be concluded, reflect the timeless
principle of the general will, or the will of the people.
Often, we hear a politician make vague references to an
election or a controversial decision as something that
reflects the will of the people, but a student of this topic
should know that such statements are not in context. Mostly, the general will means that
the long-term consensus of how we want to be governed, the values we do agree on,
and the areas of public and private life we most need protection from, are the basis of
the constitution. Last, the ability to abolish or change a constitution must reside with the
voters as well…in the formal process of ratification and amendment.

Federalism:
The American Way in Texas

Unlike unitary systems, which place sovereignty in a central government, federal
systems divide power among various layers of government. Other examples of
federalism exist in nations such as Canada and Mexico, Germany, India. These nations,
like the U.S. are large and culturally diverse – with emphasis placed on the regional
individuality. Ultimately the federal system involves a formal division of power, while a
unitary model involves administration of the central government, at the local level.
Unitary systems, such as England and Japan, are far simpler in most ways, but need to
be used where the culture supports the central government mentality. Also, both of
these examples are smaller, island nations with less regional variance.

Our system is more complex, but the
outlines are fairly clear when the observer
uses the constitution as structure. Article 1 is
the origin of the federal system, because this
part of the U.S. Constitution spells out the
powers granted to the national government.
These powers are given to Congress, and
are referred to as expressed powers.
Terminology is everything in law, of course,
and that applies very much to a full
understanding of the constitution is it’s legal
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framework. Expressed powers are specific, as opposed to general powers that grant a
broad array of actual items that fit the office or position they’re granted. For example, a
babysitter may be granted express duties (feeding bathing, safety) during the period he
or she is hired, while a parent or caregiver would have general powers over the child
(investing, educating, buying clothes, etc)

Expressed powers in government include those functions essential to maintaining a
large capitalist economy and a federal democracy. Expressed powers were intended to
give the Washington government a few strong tools, but leave most general powers to
the states. The expressed powers include:

Levy taxes and spend funds from the Treasury
Raise and support armies and navies
Regulate interstate commerce
Coin and borrow money,
Declare war

The expressed powers are listed in Article 1, Section 8 of the U.S. Constitution,
which closes with what is known as the necessary and proper clause. This clause
basically empowers the national government to perform implied powers – the powers
that are needed (necessary) to fulfill the expressed powers. Thus, the national powers
are both expressed and implied. What powers, the student may ponder, are left for the
states to carry out?

The states are empowered to fulfill vast areas of responsibility, limited only by what
is expressly delegated to the national government. The Tenth Amendment states “the
powers not granted to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states and the People.” What this means is that state
governments may create law or policy in any area not “off limits” to the states; the term
reserved powers is thus applied to all areas of law and policymaking a state may
choose to adopt.

Insight Question: How do we know what the “off-limits” are? Where is this rule
found?

There is however, a gray area where states’ powers overlap with national powers.
These are known as concurrent, or shared powers. In other words, there exists certain
areas of governmental responsibility that are vitally important to both layers of
government. These duties simply take place indifferent ways, depending on which
government performs them. Individual states are free to define themselves legally and
through their policy initiatives; each however, will provide the same vital services and
duties by virtue of its concurrent power. In general, concurrent powers can be
categorized in this manner:

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1. The power to levy taxes and spend public funds (revenues)
Most Americans are taxed far more by state and local governments, which rely heavily
on general sales taxes and property taxes. Texas is one of only two states that do not
tax incomes.

2. The power to regulate the state’s economy
This is accomplished by managing the state’s property and assets, including, of course,
land ownership. The right of eminent domain is shared with the national government,
meaning that private property (typically real estate) may be “taken” by government if it
serves the public interest, such as building a rail system or highway. Consent by the
owner, and compensation, are prerequisites for exercising this type of power, which is
described in Article 1 of the Texas Constitution.

However, a U.S. Supreme Court ruling in 2004 has strongly shifted the balance of
power to local government, in situations where economic development requires the use
of private property. Although the case, Kelo v. New London, is not a Texas eminent
domain issue, it does set a precedent for cities and other local entities to follow. This
exactly the two-edged sword America’s federal system creates: federal case law can
overwrite our state constitution. More about this in Chapter 10, but keep in mind the
challenge to the effectiveness of state government, when “higher law” isn’t necessarily
the domain of the state alone.

States, especially the larger ones share with the
national government the power to regulate
commercial activity. While the national government
deals with interstate commerce, states promote and
regulate intrastate commerce. In other words, state
governments may regulate the production and
distribution of goods within the state’s borders; for a
state such as California or Texas, this responsibility
looms large. (*From the landmark case Gibbons v.
Ogden (1824) Chief Justice John Marshall defined
“interstate commerce” as “every species of
commercial intercourse…to that commerce which
concerns more states than one.”)

Consider for example, how much of a state’s goods and/or services remain local,
that is within the state. Texas is the leading producer of natural gas in the U.S., and
produces significant amounts of crude and refined oil, sulfur, cotton, corn soybeans,
wheat, beef timber, and various other products. To accommodate the state’s vast size
and economy, more highway miles have been built in Texas than any other state. All of
these elements pertain to regulating intrastate commerce, which is accomplished by the
Texas Railroad Commission and the Texas Department of Transportation. Basically, the
TRC monitors and promotes the production and shipment of oil and gas within Texas,
and regulates the trucking industry, while TxDOT regulates highway safety and they
both are involved with moving hazardous cargo.
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Regulating land usage is a third aspect of intrastate commerce. Zoning is the most
obvious example of the state’s power to influence commercial activity. Zoning, which
local units of government usually do, is the process of determining how certain areas of
land will be used. Urban planning and economic development tend to benefit from well-
devised zoning strategies. For example, Houston eventually adopted a zoning policy,
after years of criticism about the city’s hodgepodge appearance. Zoning is thus an
enormous “power tool” for local governments, and carries a high premium. The 2001
legislative session flirted with the idea of requiring local governments to compensate
property owners if zoning changes decreased certain property values. The debate
illustrates the distinct differences between property owners and government regulation,
and the immutable quality of individualist culture in Texas – when and where land is
concerned.

3. The state’s police powers
The term “police powers” evokes images of badges,
uniformed agents and authoritarian figures; however, law
enforcement is only one of several important state
functions. Police powers may be categorized into four
broad areas of state law: public health, law enforcement
(civil and criminal); education and family/morality laws.
Taken as a whole, a state’s police powers are the truest
“thumbprint” of the state’s values, priorities, and overall
orientations.

The states have always retained their legal and social
cultures through the adoption of many areas of state and
local law. Law enforcement policy deals with everything
from creating a professional force to prisons to amending the state’s penal code. Texas
is known for its romanticized Texas Rangers, its vast prison system and record-setting
pace of administering the death penalty.

“Solutions to Texas’ Prison Capacity Crisis”

Public health powers deal with managing hospital zones and
other facilities, performing inspections, and providing services to
certain categories of citizens. Abortions during the second and third
trimesters of a pregnancy may be restricted or banned by state law.
Education policies, likewise, reflect the state’s priorities on areas
such as curricula, teachers’ salaries, athletics, and the cost of higher
education. Finally, each state develops a body of common law and
statutory law dealing with morality issues and family relations. Some
states enforce “blue laws”, which ban alcohol sales and other
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activities on Sundays, while others permit certain forms of legalized gambling. Each
state determines the legal drinking age, and the conditions of marriage and divorce.
Child custody, adoption, and probate (wills and estates) procedures are also determined
by state family laws.

One can easily observe the vast and meaningful
areas of lawmaking that comprise a state’s concurrent
power. That they overlap with national powers is
nothing strange, especially when one considers that
each of these policy areas is administered through
partnerships between state and federal governments,
appropriately titled cooperative federalism. More will
be said in Chapter 12 about revenue sharing and
grants in aid; for now, suffice it to say that state and
national powers overlap on the most important and costly areas of public policy.
Although public policy itself is not determined by a constitution, the legal authority to
establish policy and law derives from broad, inclusive foundations in constitutional law.

Insight Question: What is public policy, and how is it different than law?

Another reality about the framework is that powers – though legal and necessary –
don’t always translate into policy. Human beings, after all, accomplish government and
politics is written into the script. In chapter 11, the problems associated with cooperative
federalism are further discussed, but for now consider the origin in the nature of the
state-federal relationship when consensus in the federal part doesn’t happen. In 2006
and counting forward, immigration law and identity-related security concerns have
produced a wave of controversial reforms. As always, Texas and other border states
have a natural conflict in both of these areas, due to the state’s population and the vast
border territory.

The federal government’s role is clearly delineated in the constitution, but it can’t
typically demand compliance in areas of law shared with the states. The result is simple,
and powerful – states and local governments do what they always have, in a common
law-commonwealth tradition. Here is a valuable summary of the proactive efforts of
state governments:

State lawmakers are increasingly stepping into the void created by the
failure of Congress to approve sweeping changes to immigration policy,
a new report finds. Legislatures have passed bills dealing with a range
of immigration issues, from employment and health care to driver’s
licenses and human trafficking – creating a sometimes uneven
patchwork quilt of immigration law across the country. Arkansas
approved a law barring state agencies from contracting with businesses
that hire illegal immigrants. Louisiana has a new law barring the state
from issuing driver’s licenses to foreigners until their criminal
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background has been checked. Oregon made it illegal for anyone other
than lawyers to perform immigration consultation work.

While the states have been taking action, Congress failed this summer
to pass President Bush’s immigration plan, which would have legalized
as many as 12 million unlawful immigrants while fortifying the border. In
any event, state lawmakers have little choice but to step into the
immigration fray, said Leticia Van de Putte, a state senator from Texas
and NCSL president.

“This is that one glaring issue that continues to tax our state budgets
because of the lack of comprehensive immigration reform at the federal
level,” she said. A top issue in her home state is human trafficking. One
of the nation’s main trafficking routes runs through San Antonio and
Houston, and a new law set to take effect in September in Texas
increases penalties and creates a more exact definition of human
trafficking. Immigrant rights advocates say that while some of the
legislation is welcome, they fear some legislators will overreact.

The Texas Constitution in Perspective:
Comparing the State and Federal Constitutions

Earlier, we discussed that the state constitutions of New
Hampshire and Massachusetts were in existence prior to
1789, the year the US Constitution was ratified. State
constitutions were modeled after the national constitution in
the years to follow, primarily in the creation of institutions
(separate branches of government) “checks and balances”
between the branches, and promoting individual liberties,
the true “hardware” or framework of a government.

Both Texas and the US Constitutions established three branches of government with
separate duties and responsibilities. The state constitution created a bicameral (two-
chambered) legislature, fashioned after the US Congress. The Texas Legislature is
comprised of a “lower” chamber, the Texas House of Representatives, and an “upper”
chamber, the Texas Senate. The legislative process, drafting and passing statutory
laws, is very similar to that performed in Washington, as are several other legislative
duties.

The similarities, however, stop with this governmental “hardware”. The software of a
government, that is, what its specific powers are, is vastly more detailed at the state
level. The following comparison will illustrate this point: The US Congress is described
in Article 1 of the national constitution, in all of nine sections, or five pages. Conversely,
the Texas Legislature is described in Article III of the state constitution, which spans
forty-two pages and sixty-five sections! More will be said about the detailed character of
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the state constitution; for now, le us continue to focus on the differences between the
hardware and software of governments, by virtue of their respective constitutions.

The US Constitution created an executive branch is Article II, which is essentially a
description of the presidential powers. Article II creates the hardware of the executive
basically by charging the president “to faithfully execute the laws”: it says nothing about
how this shall or should or shouldn’t be accomplished. The state constitution however,
describes the Executive, in Article IV, which authorizes the various departments of the
executive (i.e., the Attorney General, the Comptroller, the Agriculture Commissioner,
etc.). Thus, the executive function is referred to as a plural executive, with no one
person charged to faithfully execute the law. Texas’ Article IV requires twenty-six
sections, whereas the US executive branch is described in four sections.

In the area of rights and liberties, the state constitution is also more inclusive. The
first ten amendments to the US Constitution, commonly referred to the Bill of Rights,
actually form the basis of the Texas bill of rights. These provisions are listed in Article 1
of the Texas Constitution. Article 1 incorporates the elements of the national Bill of
Rights, in some cases verbatim, except for the second and tenth Amendments. Other
inviolable rights are listed here as well, including protection from monopolies and from
religious “tests” as a qualification for office. In short, Article I reaffirms and augments the
individual protects of the US Constitution’s Bill of Rights, and includes the ultimate right
of the people in democratic settings to abolish or change their government.

Some scholars of government do not advocate comparing a state constitution with its
national counterpart, for various reasons. Although each constitution applies to a
different government, at different levels, the student is exposed to key aspects of
constitutional governments by virtue of the comparison. This allows us to use the classic
model created by the US Constitution to evaluate other constitutions (and other
governments), and to compare the Texas model to other states. One of the most
significant aspects to compare is length, as in numbers of pages and articles. As stated
in the previous paragraphs, state models tend to be very lengthy. Professor Norman
Luttbeg comments on the nature of state constitutions, if we are making comparisons:

What was included in such lengthy documents? It was obvious to
southern whites that there was no protection in “balanced” government.
The Reconstruction constitutions “balanced” governors against the
legislature, but that did not keep the government from, as thy saw it,
excessive actions against white…the basic idea is to restrict sharply
state government, including both the legislature and the executive, with
constitutional restrictions. Only when the voting public approved a
constitutional amendment to allow an act could the legislature enact it.

Ultimately, constitutional democracies are government by, for, and of “the people:
which cannot be overlooked or dismissed as mere rhetoric. When one considers any
constitution, the government created thereby will undoubtedly be a reflection of the
general consensus of the people. The groups and individuals most determined and
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influential will shape a newly created government to their liking, or at least to their
acceptance. This was evident at the founding of the US Constitution, and even more so
when the Texas Constitution of 1876 was written. We can understand constitutions only
to the extent we can understand the people, and the historical context of their fears,
desires, goals and philosophies. The remainder of this chapter will focus on the far-
reaching undercurrents, and their lasting effects.

The Constitutional Legacy of the Lone Star State

Since colonization in 1821, Texas has existed as a Mexican state (1827), an
independent republic (1836), an American state (1845), a Confederate state (1861) and
again an American state (1869). It’s useful to examine the state’s constitutional past by
virtue of three distinctive eras: The Republic of Texas and Early Statehood, 1836-1860,
the Civil War era 1861-1868, and the Reconstruction and Reform era, 1869-1876. Key
events, conditions, and leadership, and always, the political culture of Texas distinguish
each. On March 2, 1836, at the insistence of Sam Houston and other key leaders, a
delegation of fifty-nine men assembled in Washington on the Brazos, to begin
establishing the constitution of the Republic of Texas. Some delegates were reluctant to
devote time and energy to drafting a constitution, given the urgency of the advancing
Mexican Army, but cooler and wiser heads prevailed. The advisability of establishing a
constitution prior to engaging hardship and hostility had been clearly demonstrated by
the American colonists’ establishing the Articles of Confederation in 1776.

The delegates quickly wrote the Republic’s first and only constitution, which was
adopted on March 16, 1836. Not surprisingly this document very much resembled the
US Constitution. Essentially, it created a
bicameral legislature, with members of the
Senate serving three-year terms, while House
members served for one year. Like the U.S.
executive, an elected president, who was granted
powers of appointment and clemency, and the
authority to negotiate treaties, would lead the
Republic. Unlike the US model, the Texas
president would be directly elected by the voters
(as would members of the Texas Senate) for a
single three-year term.

With the constitutional government in place, the new Republic attempted to establish
and develop itself, though some scholars conclude that Texas was simply grooming
itself for statehood. Regardless, the Constitution of 1836 was a concise, effective
instrument, which established a stable government per se, despite the fact that Mexico
would continue to repudiate the Republic’s right to its territory. Without a strong
economy, and lacking military clout, the appeal of American statehood grew stronger.
President-elect James K. Polk favored annexation of Texas, and in 1846, Texas was
admitted to the United States.

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The major differences between the Constitution of the State of Texas, 1845, and its
previous form were significant. First, as a condition of statehood, Texas’ constitution
authorized slavery, but imposed certain conditions upon slaves and owners. For
example:

…the Legislature was forbidden to make any provision for freeing
slaves without the consent of owners. However, the legislature was
given authority to enact legislation that would allow owners to free their
slaves. The legislature was prohibited from passing any act that would
forbid owners of slaves from bringing their slaves into the state.

The second major difference involved the executive branch. Obviously, there could
be no presidential selection or duties such as conducting foreign relations. Instead, this
constitution created an executive headed by an elected governor. Governors served a
two-year term, and were authorized to appoint the attorney general, the secretary of
state, and all state judges. Other executives, such as the comptroller, the lieutenant
governor, and the land commissioner (and later the attorney general) were elective,
thereby extending the tradition of a plural executive.

The Constitution of 1845 retained a bicameral legislature,
though the terms were changed to four years for Texas
senators and two years for members of the House of
Representatives. The legislature was authorized to been in
biennial sessions (every two years) another example of
Texas’ “small government” political culture that is still in
evidence today. Finally, this document sent other enduring
precedents such as prohibiting state-chartered banks,
protecting homesteads from foreclosure, and recognizing
separate property rights for married women. All things
considered, the Constitution of 1845 was comprehensive
and, given the era, innovative as well as sufficiently
reflective of the state’s political climate.

The Civil War Era

Just as the 1845 Constitution recognized Texas as a state in the United States
federation, the Constitution of 1861 established Texas as a state of the Confederacy.
This constitution was very similar to its predecessor, except for the inclusion of several
wartime, pro-Confederacy provisions. For example, the legislature was banned from
passing any law to free slaves or allow owners to free their slaves. Also, anyone holding
public office was required to pledge allegiance to the constitution of the Confederacy.
Another feature, the right of the people to withdraw from membership of a national
government, was included to protect individual states. Effectively, this meant that states
of the Confederacy retained sovereignty, or states; rights, an observation, which had
greatly contributed to the outbreak of the Civil War itself. To this day, the legacy of
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states’ rights looms large, as many conservative politicians believe state governments
should enjoy greater power and latitude.

In 1866, however, Confederate states were relatively powerless due to ravages of
war, the terms of surrender at Appomattox (Virginia), and the imposition of military rule
by Union forces. In Texas, a new constitution was adopted to implement the mild
Reconstruction programs required for readmission to the United States.

Insight Observation: Military rule is often referred to as martial law

The programs, devised by Lincoln then Andrew Johnson’s administration, were
geared toward integrating the defeated Southern states as smoothly as possible. The
Texas constitution of 1866 embraced the requirements, “the abolition of slavery, the
repudiation of the secession ordinance of 1861, and the
repudiation of all debts and obligations incurred under the
Confederacy”. For the most part, the new Confederacy
was essentially the same as the Confederacy of 1845.
The major differences were the inclusion of a separate
article dealing with newly freed slaves, an extension of
gubernatorial (governors) powers, and a few provisions to
stimulate economic growth.

“The Abolition of Slavery Movie”

Newly freed slaves were granted a few civil rights, such as property rights, trial by
jury, and the right to testify in a court of law (unless the accused was a white person).
African-Americans were not allowed to vote; however, nor were they considered as
population in determining state senatorial and representative districts. Regarding other
changes, the Texas governor would now serve four-year unlimited terms and was
granted a line-item veto, which is the authority to veto parts of budget proposals.
Governors would no longer appoint judges; from 1866 to the present, all state and local
judges would be popularly elected. The new constitution was adopted in June 1866.
By the following year, however, these progressive measures would be swept away
by the Radical Republican agenda in the US Congress, who took control of national
politics in November 1866. This clique of hard-liners was convinced that the Lincoln-
Johnson Reconstruction was completely inadequate, and that the former Confederacy
would shirk the tough measures of Reconstruction. Therefore, the radicals began
harsher rule, insisting on some of the most oppressive mandates in the history of
American public policy.

Insight Question: Compare oppressive measures of other post-war eras (World
War II, for example), to the Reconstruction effort in the American South.
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Beginning in 1867, the Radicals invalidated the Texas C of 1866, and restored
military rule by passing the Reconstruction Acts. The Lone Star State, among others,
would be occupied for almost two years, ruled by a military governor. There can be no
doubt that Texans’ already skeptical, disdainful view of government quickly hardened
into outright hostility towards Washington politics and officials.

The Constitution of Texas, 1876 to the Present

Now that the factors that shaped Texas’ constitution so powerfully have been
addressed, we will now briefly summarize what was actually put forth. Though the
founders did use the Constitution of 1845 for the basic structure, significant additions
and emphasis were included in the new document, we will discuss the major Articles
and key provisions, in order to capture the most unusual and troublesome aspects of
the existing constitution.

Article I: As stated earlier, Article I includes the Texas Bill of Rights, as well as
several interesting constitutional reference points. For example, the sovereignty
of the state is clearly acknowledged,
implying that Texas’ membership in
the Union was conditional upon the
right to maintain local government.
Also, the people would retain ultimate
sovereignty, with the right to change
or abolish their government.

Article II: This Article briefly describes
the structure of the state government,
that is, the separation of powers, and
limitations on those serving public
office.

Article III: The Texas Legislature, and its plethora of duties and responsibilities
are itemized in Article III, the lengthiest article of the state’s basic law. Forty-
three sections detail the structure of the Legislature and the legislative process
(statutory lawmaking and amendment of statutory law). The remaining twenty-
two sections describe other legislative provisions ranging from the teacher’s
retirement system to water storage facilities; from aid to persons improperly
fined or imprisoned, to state building funds, to provisions guiding local
governments, the state debt, and worker’s compensation insurance. Obviously,
no detail was, or would be left to chance or interpretation regarding vast areas
of public policymaking. The new constitution imposed significant changes on
the legislative branch. Key provisions include limiting the legislature to amateur
status, that is, it would meet biennially, and the members would be authorized a
mere pittance for their services. Aside from these huge shackles, the detailed
nature of Article III itself places great constraints on the Legislature. Since the
only way to change the constitution is by amendment, many areas of
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responsibility remain “micromanaged” by the constitution. These constraints will
be further discussed in later chapters.

Article IV: The plural executive of the 1845 constitution was revived, as the
appointive powers of the Governor were vastly reduced. This article establishes
the Lieutenant Governor the Attorney General, the Comptroller, the
Commissioner of the General Land Office, the Commissioner of Agriculture,
and the Treasurer as elective offices; terms were reduced along with the
Governor’s, from four to two years. For the most part, however, Article IV is
about the Governor’s limited though detailed powers. The Governor is
recognized as the state’s chief executive officeholder, yet few real powers were
granted in the wake of E. J. Davis’ centralized governorship. Governors were
granted some legislative powers, such as a veto and the ability to call the
legislature into special session; they would be denied, however the ability to
appoint anyone but the Secretary of State, and were granted no removal
powers. (Governors would eventually be granted more extensive powers of
appointment, as will be discussed in chapter 9.) Governors would have the
power to appoint most vacancies, including judges. Finally, governors were
granted few powers of the purse. For the most part, the
legislative leadership controls the budget process. Not until
1987 was the governor granted budget executive authority
by the Legislature, which is the power to make necessary
adjustments to the state budget between legislative sessions
(approximately one and one-half years).

Article V: The state judiciary is established in this article. No
longer would the governor appoint judges; instead, all state
(and local) judges would be elective. In reality, however, the
governor still retains significant impact on the state courts, as
all vacancies (at the county level and higher) are appointed
by the Governor, for the remainder of the judge’s term.
Article V established Texas’ court structure, featuring a bifurcated supreme
court, that is, a system with two supreme courts. In keeping with the times,
other limitations on the judiciary are spelled out in Article V including removal
procedures, jurisdictions, and the duties and qualifications of other key law-
enforcement officials (district attorneys, sheriffs, clerks, etc).

Article VII: Spells out in enormous detail all aspects of public education,
including higher education.

Article VIII: All aspects of taxation and revenues are listed in this article. Not
surprisingly, as much detail as possible was provided, including limitations on
tax rates, increases in rates, tax exemptions, and uses of certain taxes
revenues.

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Article IX: Describes the exact dimensions of county governments, literally, and
provides the authority for establishing hospital districts, airport districts, and the
county seat.

Article XVI: This is titled “General Provisions” (though “Miscellaneous” would
be more appropriate) and like Article III, is very lengthy and random. It appears
that anything and everything held either in high esteem or with some degree of
doubt would be included in this article, in order to promote or protect Texas’
“quality of life.” Some of Article XVI’s provisions seem worthy of constitutional
regard, such as the long-standing homestead laws (protecting homeowners)
and community property rules. Others, such as “fence laws” and a provision for
“public printing and binding, repairs and furnishings may cause one to ponder
the founders’ collective states of mind!

Article XVII: This article details an oft-used procedure: how the state
constitution would be amended. Article XVII also authorized the constitutional
revision convention of 1974.

In summary the Constitution of 1876 represented the fears, concerns, dislikes, as
well as the goals and aspirations (both economic and ideological) of post-
Reconstruction Texas. The mood in Texas, as well as many other parts of the country,
was decidedly antigovernment. Many middle- and working-class Americans were
experiencing the same concerns that so powerfully influenced the Texas Constitution: a
well-founded fear of an increasingly powerful government, which promoted the rising
entrepreneur-industrialist class. Railroads and banking enterprises were the most hated
by the emerging Populist party, a strong third-party movement that articulated the
concerns of small farmers, small businesses, and labor. In Texas, the Grangers typified
the national Populist movement.

Granted, Texas’ Constitution is very lengthy and overly detailed (in fact, the section
authorizing airport districts contains a sentence over 500 words long!). True, many
items in the current constitution read not like basic law, but like statutory or codified law.
The state’s statutory laws can be located in Vernon’s Annotated Statues (which is civil
law) or in the Texas Criminal and Penal Codes. Ultimately, however, one can empathize
with and justify the efforts of the convention delegates when one considers the
unprecedented social, political, and economic conditions of the day. They sought to
include every limitation, protection, and requisite detail of their new government.

Given the vast inclusiveness of the Constitution of 1876, the only way to adapt it to
changing times would be by amendment. Constitutions can only be changed by formal
amendment, which is a tedious, time-sensitive challenge at best and nearly impossible
to achieve at worst. At the time, the founders sought this reality as “insurance” against
tyrannical leaders, volatile changes, and the vagaries of the national government. One
hundred years later, however, the constitutional insurance would beget a very high
premium for the nation’s second largest and most populous state.

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Amendment and Reform: The Seeds of Change

The citation at the beginning of this chapter relates constitutions with “correct
procedures.” In keeping with this mandate, effective constitutions will include
procedures for changing (amending) or revising (reforming), and, as with the United
States Constitution how the document or revised document will be approved (ratified).
Article XVII of the Texas Constitution details the amendment procedure.

As mentioned above, amending a constitution may
prove difficult. This is no unintended consequence; by
design, amendment of a government’s basic law should
not happen without the benefit of due process, as well as
careful consideration. Amendment of a constitution
typically requires a significant amount of time, which
buffers the influence of momentary passions, fears, or
fads. Amendment also requires procedural hurdles. The
Texas Constitution requires a two-step procedure. Both
chambers of the legislature must approve an amendment
proposal by a two-thirds majority; if approved, the
proposal will appear on the ballot as a numbered
“proposition” which may be adopted by a plurality (more
“yes” than “no”) of votes cast by the people.

Typically, constitutional amendment propositions appear on the ballot in November
of odd-number years; not surprisingly, these are called “constitutional amendment
elections.” If warranted, however, propositions (such as the infamous school finance
reforms in 1993) may be balloted along with other contests in a special election. In
2003, the Legislature approved a measure to move the constitutional amendment
election to the September special election date. The change was hotly debated, as the
following Lone Star Report explains:

Supporters of the September date say that holding the constitutional amendment
election in November gives Houston a disproportionate role in what passes or fails.
About 1/6th of Texas’ population is in Harris County. In the last two general elections,
Harris County cast roughly 15 percent of the statewide vote, with its turnout percent in
the middle of those for Texas six largest counties…Opponents of the September date
counter that switching the constitutional election to that date would diminish minority
turnout. “This represents the second or third time this session we’ve seen legislation
that is specifically designed to have a negative impact on the voters’ participation in the
process,” said Representative Lon Burnam (D-Fort Worth).

Also typical of Texas’ amendment proposals is a penchant for vague, often
misleading wording despite the fact that the constitution itself requires that “a brief
explanatory statement of the nature of a proposed amendment…shall be published
twice in each [officially qualified] newspaper in the State.” For example, a proposition in
1993 would have provided capital improvement funds to minority and women-owned
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businesses. However, the proposition stated “for historically under-utilized businesses,”
a term not readily interpreted by most voters. The chances those Texas voters would
approve spending state funds for something they don’t recognize would be slim indeed.

Due to its detailed, inclusive nature, Texas’ constitution has experienced continuous
amending. No discussion of the state constitution would be complete without one final
comparison to the national document. The US Constitution has existed for more than
230 years, during which time it has been amended 27 times. Actually since the first ten
amendments are the Bill of Rights, and the 21st Amendment cancelled the 18th
(Prohibition), there are only fifteen true amendments to the national constitution. By
contrast, Texas constitution has existed for only 120 years, yet it has been amended
over 400 times! Many amendments were offered to repeal archaic, useless provisions,
while others have been necessary to adapt the constitution to modern conditions. The
past three (78th, 79th, and 80th) Legislatures have increasingly proposed amendments
that either exempt items subject to property tax, or include items previously exempt from
the state sales tax (many services like real estate, are exempt). Ultimately, “legislating
by amendment” is a very inefficient, random, and at times, undemocratic method of
policymaking.

Examples are not difficult to find. In 2007, the 80th Legislature used an amendment
(Proposition 4) as a back-door budget tool, by proposing an amendment that if enacted,
would allow the State of Texas to issue general obligation bonds to borrow funds to pay
for DPS and other state agency construction projects. Though this may sound like a
good investment, and it apparently is, the obvious question must be, “why not just
budget these expenditures the usual way?” There are always reasons, but they just
aren’t good ones. Here’s the actual wording of Proposition 4:

“The constitutional amendment authorizing the issuance of up to $1
billion in bonds payable from the general revenues of the state for
maintenance, improvement, repair, and construction projects and for
the purchase of needed equipment.”

Next, past legislatures have been notorious for sidestepping important, though
controversial areas of policymaking by corralling them into amendment propositions. In
1993, the 73rd Legislature placed a protective barrier around themselves and future
“leggies” by proposing an amendment that would prohibit a state income tax without
voter approval. In other words, the amendment relieved the legislature of ever being to
blame for adopting a new, although potentially more effective and fair tax structure; the
amendment easily passed. With this amendment in place, it is highly unlikely that any
real tax reform will take place, at least in the near term. No matter which legislative
majority (Republican or Democrat) or governor promising a better education funding
system, the reality is that Texas voters have the onus on themselves – to approve of
any form of income tax by amendment.

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The tax “Gordian knot” was further tangled in a May 2007 constitutional amendment
election (which coincided with a special election date – see chapter 6), which featured
Proposition 1 for voter approval:

Proposition 1 would specify, for homeowners who were age 65 or older
or disabled and received a limitation on school property taxes in the
2007 tax year, that the Legislature could provide for a reduction in the
limitation amount to reflect a reduction in the tax rate from tax year
2006. The Legislature also could provide for a reduction in the limitation
amount to reflect a rate reduction that occurred between tax year 2005
and tax year 2006 and the Legislature could provide for the continuation
of the limitation amount until the limitation expired. In a nutshell this
amendment provides tax relief to those whose school taxes had been
frozen. It allows the amount to be reduced proportionally to reflect
school tax reductions granted by the Legislature for all other property
owners.

Finally, the November 2005 constitutional amendment election provides a good
example of all types of shortcomings. An excerpt from The Elections Advisory
Committee Observers Report matter-of-fact depiction of the election is an insight in
itself…

The hot-button proposition, No. 2 – writing the state’s
ban on same-sex marriages into the constitution – drew
such a large turnout that 15 counties ran out of ballots.
This election-day development was the major problem,
but high turnout is a good problem to have.
Forced to use paper ballots, counties had to
tabulate these by hand instead of using
computers, so delays in counting votes
pushed final totals into Wednesday. With 18
percent of 12,577,545 registered voters participating, this
was the largest turnout since 1991 for a constitutional
election. Prop. 2 had the largest number of votes, 2.26
million, with 76 percent voting for and 24 percent against. Other
propositions that passed include (Prop. 1), rail facilities funding; (Prop.
3), economic development; (Prop. 4), denying bail for pretrial release;
(Prop. 6), adding judicial conduct commission members; (Prop. 7), line
of credit advances under reverse mortgages.

By early 2008, the patch implemented above has already shown its inadequacies.
The tax reduction is connected to the school funding formula, and it doesn’t raise
enough revenue in a number of instances. Consider this summary from the Center for
Public Policy Priorities:

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Replacing property taxes with sales taxes is the wrong answer for Texas families
and public schools…. Recently, some have proposed that Texas replace local school
property taxes by increasing the rate of the state sales tax or expanding the sales tax to
more goods and services. Such a tax swap would be a bad deal for businesses,
families, and public education.

Most families would pay more if a higher sales tax replaced property taxes.

The sales tax is extremely regressive, meaning it takes a much larger percentage of
the income of a low- or moderate-income family than of a higher-income family. For 80
percent of Texans, replacing the school property taxes with a higher sales tax would
mean a much larger overall tax bill. Only families earning more than $110,000 would
benefit.

To generate enough money without raising the sales tax rate, the tax would have to
cover necessities.

Families would have to pay sales taxes on currently untaxed items like groceries,
doctors’ visits, medicine, and natural gas, electricity and water used in the home.
Businesses would also have to pay on essential business and professional services.

Texas has better choices for reducing property taxes than trading for more sales taxes.

The tax that best reflects a family’s ability to pay is a state personal income tax. With
a personal income tax, school property taxes could be reduced to next to nothing,
families would contribute to supporting schools directly in keeping with their ability to
pay taxes, and we could make the investments we need in the future of Texas by
meeting the educational needs of our children. If Texas is not yet ready to adopt a
personal income tax, however, our state should at least not make our tax system worse
by an ill-advised trade of property taxes for sales taxes.

Conclusion: Reforms Past and Future

Texas’ nineteenth-century constitution served its purpose well through the close of
that century, and the first decade or so of the twentieth century. The state was
predominantly rural and agrarian, therefore representative of the same interests which
shaped the Constitution of 1876. With developments like Spindletop, the automobile,
and commercial enterprise, the state began a rapid transformation into a combination of
metropolis and huge tracts of privately developed enterprises. The population grew in
both numbers and diversity. As more and more people moved into the state’s largest
cities, others moved outward to sprawling suburbia, and all of these changes meant
increasing demands on Texas’ low-octane government.

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With so many limits placed on governmental
powers, and with so much detail crammed into the
Constitution the state’s ability to respond to rapid
growth was vastly impaired. By the 1970’s Texas was
truly a national powerhouse; it became painfully
obvious that change was needed in keeping with the
times. A handful of concerned and influential Texans,
led by former state Chief Justice Robert W. Calvert,
formed the Constitution Revision Commission in 1973.
The Commission made its recommendations to the
voters of Texas, and in 1974 a Constitutional
Convention was convened in Austin. The major flaw in
the reform effort was the composition of the
convention: the delegates were the 181 members of
the Legislature itself!

Insight Question: What is undemocratic about elected officials writing the
constitution that will form the state’s government and official proceedings?

The following passage characterizes the failed 1974 “Con-con,” as it came to be
known:

… on the other hand, most legislator-delegates were
concerned about their prospects for nomination and re-
election to the House and Senate. This concern
influenced their voting positions on major issues before
the convention. House members were also distracted
by the campaign for the office of speaker for the next
legislative session. After an April recess to allow
campaigning for the March primaries, it was difficult for
delegates to pick up the major convention issues that
had been left unresolved . . . before the gavel’s sound
had faded at the conclusion of the convention, there
was mounting public criticism of the delegates; failure
to produce a constitution that could be offered to the
voters in 1974.

Considering Texas’ individualistic-traditionalistic politics, change comes slowly,
piecemeal, and usually in a narrow, specifically tailored fashion (which obviously can be
accomplished by amendment) Though none of the proposed 1970’s reforms were
adopted outright, some change and challenge to the Texas Constitutions’ distribution of
powers has occurred in the past several years. In 2003, the 78th Legislature witnessed
several rulings by the Texas Attorney General, regarding redistricting and the
Comptroller’s duty to certify the state budget. Also, a significant increase in the
Governor’s powers was adopted by legislative act, under the rubric of “government
reorganization” (conveniently by-passing the constitutional amendment process).
52

Though needed, the expanded powers should have constitutional limits, to avoid being
“elastic” and subject to interpretation.

In 2005, the 79th Legislature passed a small number of amendments, the most
visible being a state-level defense of marriage act, to validate the definition as “one
man, one woman”. The other constitutional issue that session was property tax reform,
which would result in an eventual Texas Supreme Court ruling, as the state constitution
bans state property taxes. The conflict lie in the fact that nearly all Texas’ school
districts had topped out their tax authority to finance public schools, thus resulting in a
“de facto” state property tax, which the Court ruled as unconstitutional. An amendment
to adopt a state property tax as an alternative source of school funding failed to be
adopted in 2005, but a special session in 2006 provided enough tax relief to turn back
the constitutional tide.

The 80th Legislature adopted numerous routine constitutional amendment proposals,
but the real fireworks came from the Texas Governor’s use of a constitutionally invisible
gesture – an executive order. Early in February, Gov. Rick Perry issued an executive
order requiring the HPV vaccine for all female students in public schools. What is critical
to understand academically is that the problem in such cases isn’t the subject of the
action, but the manner – the process. The following article from the Dallas Morning
News emphasizes the problem:

A lot of lawyers and legislators and some judges don’t think Gov. Rick
Perry is as powerful as he thinks he is. And basically, they have the
absence of law on their side.

In three well-publicized executive orders, Mr. Perry has directed 65
percent of school districts’ spending into the classroom, faster
consideration of coal plant permits, and vaccinations against the
cancer-causing and sexually spread human papillomavirus.

But barring a bona fide emergency, there is no language in state law
that gives the governor authority to tell a state agency what to do, legal
experts said. And Texas’ constitution makes the governor one of the
weakest in the nation.

As a result, a state district judge this week rescinded the coal plant
order, a lawsuit to nullify the HPV vaccination order was filed Thursday,
and lawmakers said they might craft legislation that will better define
what the governor can do with executive orders. And it won’t be much.

“The bottom line is that an executive order is a statement by the
governor of Texas about what he thinks is in the best interest of the
state. But he can’t issue an order and tell that agency or hearing
examiner that, ‘You have to do this,’ ” said University of Texas law
school professor Steve Bickerstaff, who has served as director of
53

constitutional research for the Texas Legislative Council and is one of
the foremost authorities on the Texas Constitution. “Essentially, most or
all executive orders are nothing more than the expression of the view of
one citizen of the state,” Mr. Bickerstaff said. The governor disagrees;
he argues that the Texas Constitution gives him the power by virtue of
proclaiming him “the Chief Executive Officer of the State.”

“Texas Gov. Rick Perry on Border Security”

Although the current regime in the state’s highest offices will likely continue (or
attempt) to mold the Texas Constitution, not much will change. Actions like the
Governor’s executive agreement serve to bring the realities of the constitutional
framework into focus. In the upcoming chapters, a variety of instances of constitutional
interpretation, and unprecedented state-federal wrangling will be fully examined.
Regardless of its’ patchy and restrictive nature, the current and future political winds
bring change of a more profound nature to the Texas Constitution “in perspective”.

References

Constitution of the State of Texas, Texas Advisory Commission of Intergovernmental
Relations, Texas Legislative Council, 1974
Eugene W. Jones et al, Practicing Texas Politics, 9th Ed (Boston: Houghton-Mifflin,
1995)
J.E. Ericson, “The Delegates to the Convention of 1875: A Reappraisal” Southwestern
Historical Quarterly (July 1963)
Norman R. Luttbeg, Comparing the States and Communities (NY: Harper Collins 1992)
Randall W. Bland et al, Texas Government Today, 5th Ed, (CA: Brooks/Cole 1992)
T.R. Fehrenbach, Texas (NY: Portland House, 1985)
www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/022307dntexguv
power.13596b3.html
www.usatoday.com/news/nation/2007-08-06-immigration-states_N.htm

Featured Links

http://www.cppp.org/files/7/PolicyPointSalesvspropertytax308
http://www.sos.state.tx.us/elections/forms/nov2005report
Texas Legislature Online: http://www.legis.state.tx.us/
The Texas Attorney General: http://www.oag.state.tx.us/
The Texas Legislative Council: http://www.tlc.state.tx.us/

54

http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/022307dntexguvpower.13596b3.html

http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/022307dntexguvpower.13596b3.html

http://www.usatoday.com/news/nation/2007-08-06-immigration-states_N.htm

http://www.cppp.org/files/7/PolicyPointSalesvspropertytax308

http://www.sos.state.tx.us/elections/forms/nov2005report

http://www.legis.state.tx.us/

http://www.oag.state.tx.us/

http://www.tlc.state.tx.us/

Chapter 3
Groups and Special Interests in Texas

The First Amendment to the United States
Constitution describes, among other things, the
right of the people to “petition the Government for a
redress of grievances”. The clause seems
appropriate enough; after all, a feature of political
democracy is that government be responsive to the
people. But what happens when the government
responds more to some voices and less to others?
Can we say that the government is thus responsive
to “the People”? Furthermore, is this surprising at
all, given the political nature of American democracy from the very Founding? Why does
mainstream American perceive interest-group politics as a contemporary malady, when
they have basically been a fact of American political life since the eighteenth century?
Finally, do groups and special interest politics mean something different for state and
local government? Are most states the same, or do they differ with regard to special
interest and other organized groups?

These questions are intended to rivet attention toward the reality of groups in Texas
politics, as well as elsewhere. This chapter will describe and discuss the following
essentials of groups and special interests:

The Essentials of Special Interest Politics

The Nature of Interest Groups: Participation, expression, representation

Divisions and Competition: Natural classifications of groups, and their methods of
organization & operation

Access and Effectiveness: How groups and lobbyists influence elected officials & the
public sentiment

Focus: Applied Knowledge – Students of government and politics truly must
understand organized interests in a variety of contexts or orientations. In chapter 2, the
concept of political culture was presented through three different orientations,
cognitive, affective, and evaluative. Similarly, we must observe the variety of contexts,
or “levels” that interest group politics evokes. On one level, they are at the core of
pluralism, which is the view that competing groups shape policymaking in the United
States. On another level, they represent the scourge of electoral politics, being the
source of staggering, encompassing, campaign financial offerings. On a third and
increasingly alarming level, they represent a significant challenge to the legitimacy of
American representative democracy. In order to accommodate these complex
understandings, let us begin with a study of groups in relation to power, government,
and politics.
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1. In a democracy, the people retain the ultimate power over their government.
2. Power is granted to governments in political democracies.
3. People want, need, and demand things from their empowered government.
Modern societies want, need, and demand different or competing things
(interests) from government.
4. Groups tend to form around these diverse interests.
5. Groups seek resolution through the political process.
6. Politics is the peaceful resolution of conflict through compromise. Governments,
through the political process, are the agents of compromise.

In this scenario, a useful definition of interest groups is perceivable. Quite simply,
they are organized groups of men and women attempting to influence their government
for specific goals. Often the term “interest group” is confused with the acronym for
political action committees, or PACs, which are committees existing only to funnel
money and influence from donors to a candidate, political party or to a specific issue
area. All groups perform the quintessential “lobby” and campaign-related functions on
behalf of the organization- whether the organization is a business, a ranch, or the
people of certain ethnic group. The functions, or tactics, and organization of groups and
PACs will be detailed later in this chapter, for now, let us concern ourselves with the
natural occurrence, and consequence of special interests.

The Nature of Interest Group Politics

Senator Ted Kennedy’s observation (introductory quote) was designed to focus
attention on interest groups relative to the concept of representative government.
Although it refers to the United State Congress, other elective institutions, such as
presidents and state judges, are susceptible as well. It
is important to stress here that interest group activity
is focused on all three branches of government, at
different states in the political process. Since,
however, congresses and legislatures are the elected
representatives of people in the truest governing
sense, we shall primarily focus on their relationship to
group politics, and then present the coordinated
nature of group influence on the process as a whole.
However, we Americans (and Texans, Ohioans,
Houstonites, etc.) are accustomed to the notion that
congresses and legislatures are the elected representatives of the people, and are
charged with speaking or acting on behalf of those people. For this reason, we shall
focus this chapter on interest groups and their primary target, elected legislative
representatives.

Background: Participation and Expression

Special interests were originally referred to as factions. Feared and greatly
discouraged by the Framers, factions have been ominously present since pre-
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Revolutionary colonial times. Along with the newly formed
nation, the harmful effects of factions became a topic of
grave concern at the Constitutional Convention on 1787. For
the first time, sweeping powers were granted to the national
government to govern over thirteen separate, diverse
entities. With incredible accuracy, the Framers, (especially
James Madison) anticipated the effect of special interests on
the powerful national, government. From the Federalist
Papers (Number 10), Madison frames an oft-cited notion:

…the most common and durable source of factions has been the
various and unequal distribution or property. Those who hold, and those
who are without property, have ever formed distinct interest in society.
Those who are creditors, and those who are debtors, fall under a like
discrimination. A landed interest, a manufacturing interest, a mercantile
interest, a monied interest, with many lesser interests, grow up of
necessity in civilized nations, and divide them into different classes,
actuated by different sentiments and views.

Insight Question: Can you think of present-day examples, of the “distinct
interests” Madison described in this brilliant passage?

The paradox is (and has always been) that factions, however feared and
discouraged, cannot be outlawed. In other words, to abolish different “sentiments and
views” would run counter to the individual liberties so sacred to Americans of every
generation. In fact, the First Amendment to the US Constitution guarantees the
constitutionality of not only lobbying elected representatives, but the act of donating
campaign contributions, The Supreme Court ruled in Buckley v. Valeo (1976) that”…
limits on candidates contributions to their own campaigns, limits on campaign
expenditures by candidates…were all restrictions on the First amendment right of free
speech and therefore, unconstitutional.” Clearly, the founders could not have envisioned
such an application of the First Amendment. Money in campaigning has launched
special interest politics to an unprecedented dimension, and has magnified greatly since
Sen. Kennedy issued his observation – twenty years ago. First Amendment freedoms
further the likelihood that individual Americans would approach their government for
specific actions. Hence, factions would take their place in American politics. In no way,
however, could the Framers have imagined the place of special interests in electoral
politics, which is exactly what Senator Kennedy, was concerned about in his
observation, seventeen years ago.

Why worry about what happens in far-off-Washington, one might muse, especially in
ruggedly independent Texas? Who cares what a Massachusetts aristocrat observes
about Washington politics in the United States Congress, especially in a textbook about
government in Texas? The answers are simple and compelling: states are politicized
and acculturated in ways similar to the national example. Political cultures and habits
were transplanted as the nation expanded, and have much to do with the realities of
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power, politics, and government in every inhabited ways played a huge role in Texas
politics, for good and plenty reasons. For example, the dominant political cultures in
Texas emphasize and enhance the relationship of economic elites with state and local
government from the Austin colony onward.

A Political Institution: Representation

This chapter is about interest groups, and thus will introduce the first of three
political institutions. (See Figure 3.1) Regarding this political “system” diagram, we
have now moved into the component of the “political”, which includes interest groups,
followed by elections and political parties. These institutions are appropriately titled,
because they represent the translation of different (and competing) needs and demands
from the structure (popular & economic), into specific requests from the government.
Political institutions are in the middle of the political process; they are brokers, or
gatekeepers to the keys of government. Interest groups are the first and most basic
extension of the people and economy of any government, especially a political
democracy.

In a society founded on tolerance of different views, and propelled by government-
sponsored growth and economic possibilities, politics has played the role of who gets
what, when, where and why. Over the decades, the flow of political powers in America
has been regarded in different ways. We shall introduce three different theories of
political power to better evaluate our Texas surroundings, and to further our
comparative analysis of American politics. The political theories of elitism, pluralism,
and hyper pluralism are valuable as they have been recognized (that is, accepted)
through several decades of unprecedented growth and change.

Figure 3.1

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Elitist Theory

This line of political analysis locates power and influence within a small “network” of
business, military, and professional elites. Sociologist C. Wright Mills and others have
provided a well-substantiated view that those in control of large corporations (including
media moguls) and key governmental decision-makers form and control the American
political agenda. Access to decision-makers is limited to the “plutocracy”, the ruling
elite. Woodrow Wilson provided the following summary of elitism:

Suppose you go to Washington and try to get at your Government. You
will always find that while you are politely listened to, the men really
consulted are the men who have the big stake – the bankers, the big
manufacturers, and the big masters of commerce…The masters of the
Government of the United States are the combined capitalist and
manufacturers of the United States.

And to recall that Wilson described elitism before the rise of the New Deal
bureaucracy! Basically, elite concerns are synchronous with national concerns, that is,
capitalist economics and strong national defense. From the start, the national
government has protected and curried cozy relationships with the “masters” of
commerce, industry, and the military. These relationships are commonly referred to as
iron triangles. In chapter 9, iron triangles are explained along with a discussion of
bureaucracy in Texas government.

Elitism in Texas is certainly not without recognition,
consider the TV series, “Dallas”, the Academy Award-
winning movie “Giant” and, on a different chord, the
distinction of being called “the Land of the Big Rich and the
Big Poor”. The individualistic and traditionalistic political
cultures (including, of course, the pardon system common
in predominantly Hispanic communities) are powerful
breeding grounds for elitism in power relationships.
Examples of various ruling elites in Texas are abundant. A
few huge family ranches (i.e., the King and Waggoner
Ranches) dominate agribusiness; oil by the likes of Ed Cox
Jr. and Clayton Williams, and high-tech industry by H. Ross Perot and Michael Dell.
Municipal governments have been dominated by cliques such as the Good Government
League in San Antonio, the Suite 8F Crowd in Houston, as well as various Chambers of
Commerce.

“Dallas HIStory!!!”

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Finally, a small but powerful corporate cliques known as “interlocking
directorates” dominate the directorships of the state’s major corporations and banks.
Consider the following report from USA Today and The Corporate Library, explaining
how

…the boards of the nation’s leading companies have a startling amount
of overlap. Behind the controls of the nation’s top businesses lurks an
inner sanctum of friends, colleagues and partners who sit on corporate
boards together. This clique of powerful people is supposed to oversee
corporations and protect the rights of millions of shareholders. For
instance, Pfizer, the giant drug maker, shares at least two board
members each with MetLife, J.P. Morgan Chase, Williams, Prudential
Financial and Dell Computer. Procter & Gamble is similarly connected
with General Motors, Alcoa and Rockwell Collins, which makes
electronics for airplanes.

In all, one-fifth of the 1,000 largest companies in the USA share at least
one board member with another of the top 1,000, says Gerald Davis,
governance expert and professor at the University of Michigan school of
business. Four share at least two board members with another of the
15 biggest companies. Telecommunications giant Verizon is linked this
way with seven other companies, including other giants such as Procter
& Gamble and ExxonMobil.

Pluralism

Unlike elitism, pluralism has been a more recent and truly political theory of power
distribution. By the 1970’s political scientist Arthur Bentley, David Truman, and Robert
Dahl has refined the concepts of groups and political participation. David Truman made
the important distinction between interest groups and government itself, that “an interest
group is a shared-attitude group that makes certain claims upon other groups in the
society. If and when it makes its claim through or upon any of the institutions of
government it becomes a political interest group.” Group participation and its attendant
activities exist on one level of social relations, whereas influencing the political action
committees. In this rhythm, more or less, interest groups form and begin influencing the
distribution of political power. Groups occur naturally, values and goals are articulated
internally, and political action committees engage the government in a variety of ways,
to advance the values and goals.

How dominant or effective groups are in the shaping of public policy is difficult to
assess. What is easy to observe is which groups are dominate and effective, relative to
other groups. The pattern of pluralism in Texas is clear, through somewhat ironic.
Business and professional organizations are by far the most successful, although big
business and big government were both feared and discouraged by the state’s
constitutional founders, the Husbands of the Grange. Furthermore, Texas’ weak political
party structure has tended to facilitate pluralistic tendencies in the overall distribution of
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political power. In other words, group participation supplants party identification and
membership, hence causing government to respond to group demands, issue by issue.
Discussion of political parties is offered in detail in chapter 7.

Hyper Pluralism

Many functions of government and politics originate
under circumstances, which eventually become far
more complex, causing a “perverse” or misapplied
version of the original. Welfare “as we know it” is an
excellent example of perversion in public policy. Hyper
pluralism is another good example. Supporters of
pluralism view competing interest as beneficial to
American democracy, as it opens the access channels
to government and the policy agenda. Conversely,
hyper pluralists perceive that interest group
representation is out of control; that too many competing demands have clogged the
distribution of power. Hyper pluralism adds to the “gridlock” factor already built into
American politics. Too many narrow interests – directly or indirectly competing – make it
impossible to compromise on policy formulation; the result is stalemate. For example,
for nearly three years the Edwards Underground Aquifer essentially went ungoverned
as no unit of government could claim jurisdiction and properly regulate aquifer water
policy. Attempting to influence the eventual outcome were ranchers, residents,
developers, the Sierra Club, voting rights advocates (MALDEF), commercial business,
and of course, local government officials. Eventually a federal court order to develop a
viable water plan forced compromise on development and pumping rights; meantime,
the district’s representation and jurisdiction were finally determined in 1996 (see
Chapter 19 for detailed analysis).

How power actually flows in Texas is not a subject for simple, or exact, reckoning.
Depending on what is at stake, and when issues arise, all three-power distribution
theories are viable. In other words, the nature of a political conflict has a great deal to
do with how special interest, conflicts, and organizational patterns.

Division and Competition: Sources, Types, and Patterns

Since the earliest days of colonization, Americans have been in conflict and
competition with each other. Different interests (as well as ideologies) were manifest
during the Founding. In Federalist 10, Madison sought to remind us about…a landed
interest, a manufacturing interest, a mercantile interest, a monied interest, and lesser
interests.” These interests were concerned with economic gain and property, also
known as private goods, which the government should promote and protect.
Therefore, our oldest and most efficacious interest groups formed over conflicting views
of what governments should do for business, industry, and agriculture.

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As society advanced and grew more diverse, other interests emerged which were
concerned with values, equality, and standards. These interests are not concerned with
economic gain per se; hence, they are referred to as public goods, which affect
American quality of life in other ways. Not surprisingly, these groups compete with each
other, as well as with economic interests. In Texas, conflict over private and public
interests is just as sharply defined. Interest group representation can thus be broken
down into two major categories: economic (private) interests, and non-economic (public)
interests.

Economic Interests in Texas

Relative to the industrial north and eastern seaboard, commerce and industry have
just recently diversified in Texas. Nevertheless, the state has continually presented
opportunity for economic gain and prosperity – from a variety of resources. Texas’
individualistic culture reflects the “proper relationship” between business (on any stripe)
and government; the state would henceforth grow and diversify with the same keen
angle on governmental affairs. Currently, the diverse elements of Texas’ economic
groups may be categorized as follows:

1. Business groups
2. Professional groups
3. Agricultural groups
4. Labor and Trade groups

The phrase “business as usual” is very applicable
to special interest politics in Texas. Businesses may
be divers, yet they are experts at organizational
techniques and tend to be very cohesive in the face
of other competing interests. The state’s corporate
giants (Exxon, SBC, USAA, and Valero) share
similar concerns and voice similar views of
governmental affairs. They also employ armies of well-paid lobbyists to represent their
individual preferences. Business interests have always been well attended to by the
state’s political leaders, as businesses tend to organize, mobilize, and articulate uniform
and specific goals from them. The Texas Association of Business and the state’s
Chamber of Commerce top the list of organized business interests; the Texas Research
League (TRL) assists these and other business groups by supplying date and
information (though the TRL is considered a nonprofit “think tank”).

Closely related to business are professional interests. Professions define
themselves by their requirement for licensing and operations; therefore, they are
concerned with regulatory policies and other aspects of state law that affect their ranks.
Although most professional groups (for example, the Texas Medical Association and the
Texas State Teachers Association) have national or regional affiliation, the state
legislature and executive have everything to do with the identity and environment of
each profession. Large and powerful professional groups, such as the Texas Trial
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Lawyers Association, influence many aspects of state politics – including candidate
recruitment, and campaign support – and weigh on key legislative acts. In 2007, for
example, the Texas Medical Association lobby (TEXMED) achieved numerous
significant changes in Medicaid policies for the uninsured, and to promote “healthier
lifestyles” and other benefits for the network of health services in Texas. Like business,
professional groups experience results because they typically present a cohesive,
focused stance towards legislative proposals and other regulatory policies.

“Texas Medical Association”

The state’s oldest and most established interests are those relating to agriculture, or
agribusiness. In fact, the Grangers themselves represented the state’s first successful
interest group. Although the number of small farms has dwindled, the power of the
state’s myriad agricultural industries has grown in sophistication. Most agricultural
industries have grown in sophistication. Most agricultural industries are represented by
individual groups, such as the Cattlemen’s Association or the Dairy Farmer’s
Association; however, there are a handful of “umbrella” organizations, which represent
many interests. The Farm Bureau Federation is agriculture’s foremost group, which is
assisted by the research arm of Texas A & M University and its Agricultural Extension
Service. Similar to business interests, agricultural interests concern themselves with
regulatory policies, which affect their profit, margins – policies often sought by non-
economic advocacy groups. More will be said about such conflicts in the next section.

Finally, organized labor associations round out the spectrum
of economic interest in Texas. Though relatively powerful
nationally, labor has never established the strong, widespread
powerbase that business and agriculture enjoy. In fact, only two
effective labor organizations exist in the Lone Star State; the
American Federation of Labor-Congress of Industrial
Organizations (AFL-CIO), and the Texas Oil and Chemical
Workers Union. Labor organizations typically seek to influence
legislation about minimum wage issues and improvement of
working condition, and are opposed to right-to work laws. Although there are upwards
of 300,000 union workers in Texas, they have heretofore remained scattered and
organizationally weak in the face of powerful business interests. This perception tends
to be reinforced by labor’s lake of electoral mobilization; for example, although Texas’
AFL – CIO endorsed both Chris Bell and Barbara Ann Radnofsky, neither was
successful at the polls in 2006.

Ultimately, economic interests are characterized by shifting alliances and conflicts
between and among themselves. Labor is, by nature, likely to compete and conflict with
the interests of big business. Certain professions themselves experience friction within
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their own ranks. For example, the Plaintiff’s Bar and the Criminal Defense Attorneys
Association, as well as the Texas Medical Association and other provider groups, will at
times harshly differ in their interests. Conversely, certain issues (such as health care or
tort reforms) will give rise to alliances and shared interests. Economic interests are a
reflection of business itself – they are concerned with pragmatic, low-cost solutions to
gain an advantage over the competition – even when the competition is the consumer
or society itself. Economic interest groups stem from conflicts over the distribution of
material wealth and access to resources, whereas other groups are formed over
conflicting beliefs, values, and ideological goals.

Non-Economic Interest

Given its diverse economy, geography, and population, Texas is home to an array of
interests, which are not primarily concerned with profit margins. Such interests are
included in the following categories:

1. Public Interest (Advocacy) groups
2. Ethnic/Race/Equality groups
3. Religious/Miscellaneous

Consumer advocate Ralph Nader and the Sierra Club are both emblematic of
advocacy: protecting the public interest. The idea that a somewhat unsuspecting and
under informed public might be abused or otherwise injured by unsafe products and/or
polices gave rise to a host of these “non-economic” groups. Many public interest groups
form over a single issue, such as Mothers Against Drunk Driving (MADD), while others
represent overall policy areas such as taxing (Homeowners-Taxpayers Association), the
environment (Natural Resources Defense Council), governmental affairs (Texas for
Public Justice), animal rights (People for the Ethical Treatment of Animals), and law
(American Civil Liberties Union). Regardless of orientation, public interest groups in
Texas have provided much depth in the pluralistic value of conflicting interests.

In other words, the concerns of public interest groups tend to enliven the outcome of
public policy-making in Texas in the true spirit of compromise. These groups serve as
lightning rods for public awareness. Advocacy groups will express an unfettered, clear
message to the public about an ongoing policy, or official misconduct, or the net result
of a new proposal (i.e., the facts we’re not hearing about a new tax, or a new arena). In
fact, such groups are at the crux of what political scientist Hugh Heclo called issue
networks. According to Heclo, issue networks are “an amorphous system
of…widespread participation in bureaucratic policy-making. [M]any of the participants
have technical policy expertise and are interested in issues because of intellectual or
emotional commitments rather than material interest.” Issue networks which have
formed in recent years include water management (especially Edwards Aquifer and
Barton Springs), education reform (including school finance), and increasingly, health
care/costs, and insurance rates. Local governments, especially in large metropolitan
areas, are experiencing issue networks over limit to growth (Austin) and control over
community venues/sports arenas (San Antonio).
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Ethnic/Race/Equality Groups

Unlike public interest groups, whose efforts directly or indirectly affect all citizens,
equality groups focus their efforts on a narrowly defined segment of society. By
definition, these groups are exclusive in their membership; however, their histories,
goals, and methods are resonant and reinforcing. In Texas, the most visible ethnic/race
action groups include the Mexican-American Legal Defense and Education Fund
(MALDEF), the League of United Latin-American Citizens (LULAC), the National
Association of Colored Persons (NAACP), the Human Rights Campaign, Mexican-
American Democrats (MAD), and student organizations such as the Movimiento
Estudiantil Chicano de Aztlan (MEChA) and Mexican-American Students Organization
(MASO). Although women are not a minority, women’s groups such as the National
Organization of Women (NOW) have heretofore sough similar goals of equality in
representation and social/cultural identity.

Equality groups primarily concern themselves with political and governmental
structural barriers to equality, such as education and affirmative action policies, voting
right issues, and other areas of law (such as property and real-estate laws). Toward
these ends, equality groups have historically found empowerment and access through
the legal system. In other words, while representative bodies such as the legislature are
reluctant or unable to consistently advance equality issues, the courts are positioned to
rule on specific cases, creating momentum for change. In 1989, the Texas Supreme
Court overturned an earlier decision in the landmark case Edgewood vs. Kirby,
declaring the state’s school finance system unconstitutional. Numerous violations of the
Voting Rights Act of 1965 have been decided in Texas courts, typically, when Mexican
or African-American voting strength is dispersed by districting plans. In general, equality
groups provide unity, political access, and legal empowerment for minorities; they will in
all likelihood entail different roles and challenges in the next century.

Religious and Miscellaneous

Formerly, religious groups were somewhat of a hybrid lot – serving both as social
organization and special interest groups – because they typically did not employ the
hard-core lobbying and electioneering functions. Instead, groups such as the Christian
Life Commission would “weigh-in” on key value/morality issues such as gambling and
blue laws as a means of representing the “interests” of their groups. In the past several
years, this limited role has changed dramatically.

The meteoric rise of the Christian Coalition began
with televangelists like Jerry Falwell and Pat Robertson
in the 1980s and ushered in hundreds of grassroots
religious groups, which tend to reflect local conservative
views. The leaders of these groups began aligning
themselves with conservative politicians and
businessmen, as well as state and national Republican
Party organizations. Ralph Reed, the Coalition’s
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Executive Director in the 80’s & 90’s, had close ties with a host of influential
Republicans, including former House Majority Leader Tom DeLay, George W. Bush
political advisor Karl Rove, and ex-lobbyist Jack Abramoff (currently serving a 5-year
sentence for fraud and other felony convictions)

One of the most significant aspects of Reed’s tenure with the Christian Coalition is
the nature of “religious organization” with regards to Federal Campaign Finance laws.
As fundraising has emerged as the primary electoral mobilization “tool”, many groups
have emerged to accommodate political contributions, for both symbolic and legal
reasons. Campaign finance law will be discussed further in this chapter and elsewhere,
but for now suffice it to say that for many groups regarded as “religious” or “ideological”,
a specific legal and/or tax status dictates how it can collect, and donate political
contributions. During the 1990’s, for example the Federal Elections Committee (FEC)
brought a number of enforcement actions against the Christian Coalition, one of which
produced the following explanation of contribution types:

The most influential case attempting to distinguish between
“independent” and “coordinated” expenditures is FEC v. Christian
Coalition, 1999). Because the Christian Coalition is a corporation, it is
not permitted to make contributions to federal candidates. Because
coordinated expenditures are treated as contributions under federal
law, any coordination of Coalition spending with its favored candidates
would violate the law.

The Christian Coalition case is important for two reasons. First, the
court recognized that election-related spending coordinated by
candidates and supporters counts as a contribution, even if the funds
are not spent on “express advocacy.” “The fact that the candidate has
requested or suggested that a spender engage in certain speech
indicates that the speech is valuable to the candidate, giving such
expenditures sufficient contribution-like qualities to fall within the Act’s
prohibition on contributions.” This holding is very important, because a
ruling to the contrary would allow those seeking to influence elections to
coordinate unlimited amounts of spending as long as they craftily
avoided certain kinds of advertising and thus open a huge new loophole
in federal campaign finance law.

Ultimately, what has evolved from the general orientation of religious “values” has
been a host of other ideological PAC’s (political action committees) that have found a
niche for contributing, at least temporarily within the limits set forth in the current
Federal law. Many of these groups retain a tax-exempt status (the tax classification
“527”). Opensecrets.org, a website dedicated to special interest data, explains how “527
groups are tax-exempt organizations that engage in political activities, often through
unlimited soft money contributions. Most 527s on this list are advocacy groups trying to
influence federal elections through voter mobilization efforts and so-called issue ads
that tout or criticize a candidate’s record.”
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Several of these groups have earned a great
deal of notoriety and public scrutiny. One in
particular, Swift Boat Veterans for Truth*
actually gave rise to a term for the significant,
even drastic results these groups render.
Accordingly, the term “Swift Boating” (or
“swiftboating”) has become a common
expression for a campaign attacking opponents
by questioning their credibility and patriotism.
The term is most often used with the pejorative
meaning of a smear campaign, but has also
been used positively by conservatives.

Swift Boat Veterans for Truth was eventually fined 300,000 by The Federal Election
Committee, for charges that they failed to register and file disclosure reports as federal
political committees, and accepted contributions in violation of federal limits and source
prohibitions. The Commission also fined MoveOn.org Voter Fund, and The League of
Conservation Voters 527 in the same cause and manner.

Another type of miscellaneous groups is those representing government itself, such
the Texas Municipal League, the Texas Association of Counties, and various
government employee unions. A recent court case has clarifies the use of contributions
and the extent of lobbying activities. Similar to the non-profit groups described above,
these groups’ actions are scrutinized due to their nature – that is, governing for sale by
a government itself. In this case, the Texas Association of Counties was the target of a
lawsuit, preventing them “…from lobbying lawmakers in Williamson County.

State District Judge Ken Anderson ruled the group can’t use tax money for that
purpose. If the group collects no dues, there’s no regulation. If it does (and it has in the
past) it has to segregate taxpayer-funded dues from its other monies, and those other
monies have to be used for any lobbying done by the group. TAC does have other
sources of income: investments, licensing fees, educational seminars, and the like.
More will be discussed about the web of religious issues, and business entities in
the essay section of this chapter. In short, it is impossible to truly discern any
“separation of church and state” in the subtle but enormously powerful network of
religious group interests.

Patterns of Organization

Organization is a unique aspect of special-interest politics. On the one hand, groups
tend to create organizational patterns by their inherent qualities. For example,
professional interests are likely to coexist at both state and national levels, whereas,
certain ethnic or advocacy groups occur more naturally at the local level. The nature of
the interest has much to do with the size and organizational pattern of the group.

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“James Madison on the Problem of Special Interest Politics”

On the other hand, organization itself tends to create groups. Organization gives
certain fundamental purposes to interest group activities, which are sometimes referred
to as “internal functions”. The cliché that “Americans are a nation of joiners” relates to
the natural tendency to bond, to create a union, to assemble for a common goal –
behaviors Americans have displayed from the earliest colonial experience to the
present. After they are formed, groups provide a dynamic of activity with their members,
which allow the group to fulfill its overall mission – to influence government. James
Lamare describes this dynamic in the following manner:

In order to be politically influential, an interest group must be aware of
all political matters affecting its members. It must be able to achieve a
modicum of cohesiveness among all the constituent parts of the group;
an internally divided group is easily dismissed or neutralized by political
officials. Finally, it must be able to politically mobilize members or
clients virtually on call.”

Solidarity, cohesiveness, and awareness are thus achievable through interest group
participation. These are known as internal benefits, and are the most basic dynamic
for interest group participants. Additionally, membership often includes material external
benefits which accrue to successful lobbying efforts – benefits which all members enjoy,
even though a handful actually participate. Potentially, all lawyers practicing in Texas
could benefit from liberal tort laws, though it was the Texas Trial Lawyers Association
who actually lobbied toward this end during the 74th Legislature (and lobbied against tort
reform in other years, especially the 78th Legislature in 2003). Often, groups with a small
potential-actual ratio (the number of possible members versus the number of actual
group members) prove more successful, as the “cohesiveness and mobility” qualities
described above are powerful tools in the groups’ efforts to influence government.
Mancur Olson described this condition in The Logic of Collective Action (1968), which
takes note of the individual effort in large groups versus small groups:

The larger the groups’ membership, the more likely it would be for one
or more members to withhold their efforts or monetary contributions
without being noticed or arousing animosity of the contributing
members. This is called the free-rider effect.

In other words, lawmakers (as well as administrators and judges) may respond more
readily to small highly mobilized groups because they are more actively resourced and
functional. Another author relates these aspects to the groups’ ability to gain access to
the political process. Professor Alan Isaak provides this view:
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Access is a dependent variable to be explained. We would like to know
why some groups have more access than others. Group theorist usually
cite such factors as group cohesion (how much of its individual
members’ total loyalty it commands) and organization as important
determinants of access. The more cohesive and highly organized a
group is, the access it has.

To best evaluate and conclude about the influence of groups on today’s political
currents, one must consider these factors:

1. The group’s size
2. The group’s status
3. The group’s pattern of organization

Interest groups organize themselves in one of four basic patterns, depending on the
nature of the groups’ membership (which includes, or course, the “free riders” who
benefit from the activists of the organization).

The first pattern-type are issue groups or, as they are referred to in Washington DC,
staff or national groups. Staff groups dominate the scene in Washington, operating in
a no-nonsense corporate environment along “K” Street there. These groups are highly
resourced, and headquarter themselves at one level – hence the term “national” – like
the National Rifle Association. Issue groups, on the other hand, tend to originate locally
or regionally, and occasionally spread to the national level. These groups are easy to
spot as issues are generally advertised by the news media and some talk-show hosts,
as well as the group itself. Many issue groups develop at the local level, simply enough,
as those “for” or “against” an item such as public debt (bond issues) or a proposed
constitutional amendment. Other issue
groups such as MADD, pro-life/choice, and
gun-control groups, develop a semi-
permanent, national identity which adapts
group goals to changing conditions.

The next pattern is the single-member group. This pattern type is unique in that the
group represents a corporation, a company, or a local industry. In other words, the
group may concern itself with a number of overall goals, all of which will benefit the
employees and management of the company (at one time or another). For example, the
insurance giant United Services Automobile Association (USAA) has its own political
action committee (PAC), which maintains a presence in Washington and Austin to
protect the various interest of the company. Similarly, a union “local” organization may
lobby for changes in policy, which would improve labor-management relations or
working conditions.

Other groups organize more generally, by forming membership organizations.
Typically, membership is more or less “a function of” one’s business, professional, or
fraternal associations, which potentially includes everyone in that particular association.
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All teachers, for example, are potential members of the National Education Association;
all autoworkers are potential members of the United Auto Workers Union, and so on.
Membership organizations therefore tend to be very large, and the possibility of the
free-rider effect increases. This is not to say that these groups are not successful or
powerful – many most certainly are – it is simply impossible to mobilize and
communicate effectively with such large, dynamic, and diverse groups. Conversely,
state or regionally organized groups are much more likely to represent their
membership successfully.

“Association Professionals Throughout the Ages”

Finally, even larger groups exist which are sometimes referred to as “organizations
of organizations”. These are umbrella organizations (a group comprised of related
groups). The AFL-CIO is the best-known example of an umbrella organization; it is
comprised of myriad labor unions. Other examples include the Mid-continent Oil & Gas
Group, and the newly established National Cattlemen’s Beef Association. Umbrella
organizations are highly influential when the constituent groups are united in their
overall goals, and are able to mobilize their voting strength successfully (umbrella
groups tend to represent huge blocs of the electorate, in any given election cycle).

Regardless of size, pattern, or type, interest groups have a well-defined niche in
American politics and government. Groups occupy an enhanced niche in Texas
politics largely due to the limited legislative session and lack of competitive
resources. Although they exist on social and cultural levels as well, a group interaction
with government is what makes a group a “special interest”. Professor Sandy Maisel
summarizes the unique value of group participation as a function of power relationships:

The decision of whether or not to become involved in politics – through
either the policy-making process or the electoral process, or both – is a
significant one for an organization. As the leaders of an organization
see that heir group’s interest is affected by government action, they
must decide on the role they wish to play. If they decide to become
politically involved, they take on a new status…if they stay out of
politics.

Heretofore we have examined the internal characteristics of groups – why they form,
how they organize, and so on – in order to explain their role and value in a pluralistic
society. We shall now examine the relationship between such groups and the
government, that is, the connection between what groups do, and what is granted in
return. We shall begin with the quintessential figure in special interest politics – the
infamous, and often misunderstood, lobbyist.

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Access: The Great Un-equalizer

Engaging the legislator is truly the most challenging task the
lobbyist must accomplish to succeed. Of course, access is not
without its price, quite literally. Contributions to an officeholder or
candidate’s campaign fund, or to national or state political parties
has become increasingly important to gaining access – which gets
the lobbyist or group “noticed.” The question of influence is not
that the contribution equals a bribe – it does not. The question has
become, increasingly, how much mileage does the contribution
warrant? An article in the Austin American Statesman used the
term “degree of separation” to examine the degree of influence,
especially where corporate money is involved:

It’s one thing for the Republican Party to finally take over the Texas
House of Representatives. It’s another if coordinated business interests
used corporate money illegally to capture the House. There are
symptoms that point to potential problems.

In addition to donations, the successful lobbyist will also establish rapport with
individual lawmakers, which largely rests on the lobbyist’s credentials. Access is clearly
greater for the lobbyist who is either connected, (for example former Texas House
Speaker Billy Clayton, or former Governor Ann Richards) or who is a reliable source of
information and insight. One’s technical or professional expertise, for example, having
been a rancher or chemical engineer, will enhance one’s credibility. Basically, it pays to
be perceived a “known quantity”, as access to state lawmakers enables the lobbyist to
pursue the goals of the interest group.

Lobbyists also employ a number of other techniques to establish and facilitate
communication with key legislators. Knowing when and where to find the lawmaker is
important. Typically, this means waiting in the “the lobby” of the Capitol, in order to chat
with Mr. or Mrs. Legislator, since state law prohibits visitors on the floor of either
chamber. Lobbyists also attend social functions – dinners, fundraisers, golf or other
recreational outings – in order to establish rapport with key lawmakers. Finally, the
everyday ritual of luncheon engagements provides ample opportunity to gain all-
important access to many of the state’s decision-makers.

Ethics and Legal Limits

Despite appearances, it is difficult to “pin down” direct influence. More will be said
about the appearances of wrongdoing described in the article above, but for now let’s
look at what legal limits and reforms have recently been put forth. It’s important here to
distinguish a few items about campaign finance laws. First, the US Congress will
determine (with the “approval” of the US Supreme Court) the campaign finance laws for
federal offices – US representatives and senators, and presidential candidates. These
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laws are typically referred to as Federal Election Campaign Act (FECA), first passed in
1971, and amended several times.

The current reform known as Bipartisan Campaign Reform Act of 2002, limits
individual donations to a candidate’s campaign to $2000 and $25,000 for political action
committees (PACs). These donations are known as hard money, while previously
unlimited donations to political parties, known as soft money, have been banned. The
BCRA also limits the use of “issue ads” that s, TV, and radio advertisements on behalf
of a particular candidate, typically designed to attach his or her opponent. These ads
(which save the candidate huge sums of money) may not run 60 days before a general
election, or a shorter period for other types of elections.

The new federal law rightfully does not address state campaign finance issues,
although it does allow soft money to state-level political parties/committees. During the
recent 80th Texas Legislative session, a number of significant elections and campaign
reform bills were on the table, only to be gutted by the end of the session.

The just-adjourned session of the Texas Legislature accomplished one
of its primary unspoken objectives: killing seven major political-reform
bills. This road kill includes legislation to limit campaign contributions,
restrict corporate campaign ads, apply brakes to the revolving-door
lobby and establish a citizen redistricting commission. Most of these
reform bills never emerged from the purgatory committees to which
they were assigned.

“The legislature’s failure to act on political reform reveals that Texas
lawmakers are their own most cherished constituency,” said Texans for
Public Justice Director Craig McDonald. “Convincing politicians to give
up money and power always has been a tough sell. But this
legislature’s failure to act on significant reforms just months after voters
protested ruling-party corruption in Washington and Austin is quite a
feat.”

Only one significant reform proposal cleared the legislature: a
weakened constitutional amendment requiring that votes on a bill’s final
passage be recorded will be sent to voters for approval in November
(HJR 19). Several minor disclosure bills cleared the legislature during
the session. Following national ridicule of the state Ethics Commission’s
ruling that officials need not report the monetary value of cash gifts, a
bill mandating such disclosure passed although the Senate rolled back
a House provision that the market value of all gifts be disclosed
(SB129). A bill by Lon Burnam (HB 2451) to give the Ethics
Commission explicit authority to make rules cleared the House but was
buried in the Senate. The legislature also enacted a bill by House
Elections Committee Chairman Leo Berman (HB2489) that requires
better reporting of lobby revenues. A bill by Vicki Truitt (HB 3066)
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clarifying that legislators may not use campaign funds to pay rent to
spouses was also enacted.

The Political Voice of Interest Groups
Lobbying and Electioneering

The perception that special interest politics dominates the decisions of public officials
may be somewhat overstate and misapplied. As we have discussed so far, many
factors shape the outcome of public policy. What is not overstated, however, is the
sheer volume of money and energy spent in the endless battle to influence decision-
makers. The lobbyist, of course, is the lynchpin to the dynamic of special interest
politics, as he or she seeks access to policy movers and shakers. Powerful people are
enlightened people, which are exactly why lobbyists seek them, and why, however
discretely, they seek the lobbyist.

Lobbying

In every sense of the word, lobbyists are basically
informants. Lobbyists inform individual legislators about the
technical nuances of a particular bill or provision, as well as
to inform the legislator about their position on the bill.
Consider the following passage from Texas Observer’s
feature report on the state’s key lobbyists:

This is an adversarial process. Everyone talks about the huge power of
lobbyists. But there are severe limitations on what a lobbyist can
achieve. When talking to a legislator, [Dick] Brown says he relies on
fact sheets and information to show the legislator that “what I am
advocating is good for the state and for his district.”

Lobbyists provide legislators, both in Washington and Austin, with “insights” about a
certain proposed bill or amendment, as well as views about overall policy goals.
Lobbyists are usually lawyers, with the requisite skills and technical abilities of that
profession, making them perfect candidates for the crafting of complex legislative items.
In other words, lobbyists are able to articulate clearly the impact of a bill or amendment
on their particular interest, company, or profession, or to actually supply draft proposals
to the legislator. The following excerpt from Texas Weekly details how close the 80th
Legislature’s tax reform bill served as a “potential magnet for lobbyists who want to
score a tax break for their clients:

[The] bill…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
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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.

“The Onion: Are Politicians Failing Our Lobbyists?”

A point should be re-emphasized here: the role and purpose of lobbying is
significantly enhanced by the political culture and economic climate of Texas, relative to
that of Washington or many other states. Specifically, the fact that the legislative
session is short (five months, every two years) and that legislative staffs are not well
funded (therefore under-resourced) allows an even greater voice for the lobbyist in
Texas politics. Providing well-crafted draft proposals and a variety of data or
information, lobbyists are able to assist the individual legislator and the legislative
process as well. The ruling against the Texas Association of Counties helps clarify this
aspect of lobbying, i.e., where the line is drawn legally.

The ruling “made a distinction between lobbying and advocacy on one hand, and
providing information to the Legislature, on the other. That second bit’s legal no matter
who’s paying for it. As for lobbying, he included direct contact and indirect – like telling
counties how to persuade lawmakers and issuing press releases advocating a particular
position on legislation. That’s a no-no, at least with dues dough. And the ruling doesn’t
apply to individual counties…” In short, Austin, Texas, is a fertile place for the ambitious
lobbyist. Regardless of ambition or ability, lobbyists are inconsequential without one
thing – access to the legislator (and to bureaucrats as well).

Electioneering

Interest groups, through their political action committees (PACs) and to a lesser
extent, their teams of lobbyist, perform other functions, which enhance the group’s
ability to influence decision makers. These functions, referred to as electioneering,
generally fall into three categories: (1) recruiting and supporting candidates, (2)
mobilizing voters, and (3) shaping public relations.

Recruiting candidates is a sure-fire way for special interests to establish a rapport
and access to individual legislators. In other words, finding the “best” candidate means
finding the candidate who will best represent the views, goals and interests of the group.
The next step, of course, is to help this candidate get elected – which often means to
help defeat his or her opponent. In fact, negative campaigning seems to be the most
effective (though roundly criticized) way to win, especially when campaign contributions
are pouring in to assist the purchase of airtime.

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Earlier in this chapter, the evolving nature of ideological and religious organizations
provided vivid examples of electioneering in the 21st century. That discussion (see p.
104) was about the changed nature of types of groups, and the role campaign finance
laws plays and is played in turn by groups, based on their legal status. In this section,
again we see the significant shift away from the pluralistic, open and recognizable role
of interest groups to a blurring of the lines between the goals, and benefits to a groups’
membership. In short, recruiting candidates for office has become more about winning
than serving…the focus has shifted indeed, which underscores the fact that groups play
an even greater role in the actual governing of Texas. This also means that a group’s
leaders and key lobbyists command greater salaries, and join the elites in Texas’
political power circles.

In 2002, for example, one of the best examples of groups and recruitment of
candidates manifest in the November general election. The story is complex of
governing and political action. It illustrates the immense power a focused and well-
resourced network can achieve, regardless of the general participation of a much larger
group of folks – the voters. Let’s start with the results, and look backward (the next
several chapters will add more to the story, as it moved through four more years of
elections, two Legislatures, and countless court rulings). Despite the fact that in 2000,
George W. Bush’s name appeared at the top of every ballot in Texas, Democrats still
held on to a 78-72 majority in the state House of Representatives. However, in
November of 2002, the Republicans managed to unseat 16 Democrats, and claim an
88-62 majority in the Texas House. Meanwhile, in both 2000 and 2002, Texas continued
to elect the same number of Democrats to US House of
Representatives, incidentally, a 17-15 majority. What
happened to the State House of Representatives, to
cause such a drastic change? Early in 2003, a series of
legal actions began in Austin, charging that campaign and
other state laws had been violated in 2002 “team effort” to
elect Republicans. The Texas Association of Business
was at the core of these issues, and it’s leadership out in
front:

Throughout the legislative session, Texas Association of Business
President Bill Hammond fought a grand jury investigation into whether
his statewide organization illegally used secret corporate donations to
elect a business-friendly Legislature.

After a Republican sweep at the polls in November, Hammond boasted
that the association’s advertising campaign, financed by unknown
corporate donors, made the difference in several legislative campaigns.
Hammond said he sought corporate donations – instead of money from
individual business leaders – because it was easier to get money from
corporate coffers.

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The association has argued that the ads were issue ads, not
electioneering, and thus are protected by the First Amendment. Free
speech, the association says, is not covered by the state laws barring
corporation donations and requiring donors to be disclosed. In mid-
January, Hammond received his first subpoena. Taylor said at the time
that the association would cooperate with the investigation. Instead, the
group has rebuffed investigators by going to federal courts, fighting the
subpoenas in front of Lynch and appealing to the state appellate courts.

So far, however, no Texas court has agreed to stop the grand jury
investigation, and Taylor has vowed to take the case to the U.S.
Supreme Court if necessary. But he already has lost one plea to that
court. Earle said he has never seen anyone try to prolong a grand jury
investigation as the association has done.

In addition to recruiting, groups influence elections through
endorsements. If the field of candidates for a particular race is
already formed, groups will seek out and endorse the “best”
candidate. Endorsements made by the largest groups (peak
organizations) are highly publicized affairs, since they indicate the
group’s overall position and represent a large number of potential
votes. Occasionally, a group will endorse an incumbent
officeholder, as a way of showing gratitude for particular actions or
decisions. For example the Texas State Trooper’s Association (TSTA) endorsed by
Gov. Rick Perry during the 2002 general election, predominately because of his veto of
a new law prohibiting arrests for traffic violations. Police unions will typically support (as
most unions) Democratic candidates, but this time it was action, instead of ideology that
swayed the endorsement.

Mobilizing voters is truly the realm of the political action committees. In this regard,
they perform a role much like party activists. PACs however, are designed to focus their
efforts more specifically, therefore more effectively. PACs usually have direct links to
actual or potential group members, which facilitate effective fundraising and other
campaign support activities. Occasionally, PACs will also mobilize the electorate to
“pressure” elected representatives (hence the term pressure group) about a certain
bill, policy, or issue area. Often the PAC will provide form letters stating the group’s
position (for or against) to group members or the general public, in an effort to create a
referendum (an indicator of public support or opposition). If crafted effectively, such
referenda can hardly be ignored by elected representatives, especially in or around
campaign seasons.

Finally, shaping public relations is less immediately related to typical lobby
activities, although it can be very pervasive and enduring. Sometimes referred to as
“going public,” public relations campaigns pave the way, so to speak, for the interest
group’s overall concern – whether to prevent abortions or drunk driving, or to promote
petrochemical companies, beef, or milk products. Through careful marketing and
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advertisement, special interests attempt to portray their product or goal in the most
positive light, that is to subtlety build public approval and to downplay the negative.

The petrochemical industry, which contributes to the Gulf Coast East Texas
economies, exemplifies the use of public relations campaigning to sway the public
mood. Products such as plastic, aluminum, fertilizers, and paint have been glorified
through clever advertisements for their “role” in improving our quality of life. Of course,
the fact that these industries tend to violate environmental regulations and contribute to
air and water pollution is not as readily publicized. Beef and certain milk products are
presented as healthy, hearty, and delicious, yet the consumer may not realize the
harmful nutritional aspects of these foods. Consider the summary from The New York
Times feature about “fox guarding the chicken hen” public relations:

The stated mission of the American Dietetic Association, the country’s
largest professional organization of dieticians, is “to improve the health
of the public”. But the group, which has more the 65,000 members and
influences the public through its Consumer Nutrition Hotline…is being
increasingly criticized for its aggressive pursuit of cash and in-kind
contributions from trade groups like Sugar Association and the National
Livestock and Meat Board…critics say that the association’s most
fundamental position “there are on good foods or bad foods” is a wishy-
washy stance that derives from the industry money.

Indeed, the public mood may be swayed by those with the incentives – and the huge
resources – to launch public relations campaigns. The swayed public mood, in turn,
allows elected officials to accommodate the interests’ goals and needs without
affronting the mass public.

Summary:
The Reality of Special Interest and Public Policy

Has the power of special interest in Texas grown out of control? Are our elected
officials mere puppet representatives to their constituencies, controlled instead by
various aspects of lobbying? How much of what interest groups seek actually finds its
way into public policies, which affect virtually all Texans? After systematically observing
this area of government, it is important for the student to build perspective by
considering these compelling possibilities. It is also important that the observer realize
all the forces in motion, which serve to mitigate the powerful focus of special interest
politics.

The reality is that, however pervasive and effective the work of professional lobbyist,
elected officials in Texas (and Washington, for that matter) are subject to other
competing forces – at least some of the time. The proliferation of interest groups
throughout the 1970s and 1980s has given rise to what political scientist Theodore Lowi
titled “interest group liberalism”, which expanded the spectrum of special interest goals.
In other words, other sources of political conflict, such as ideology or values, emerged
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to essentially compete with the prevailing powerhouses of big business and the military-
industrial coalition. Lowi referred to these rivals as the “New Politics Movement”, which
initially formed in protest to the Vietnam War. The following passage illustrates the
nature of these groups, relative to the existing hierarchy”

New Politics activists also played a major role in securing the
enactment of environmental, consumer, and occupational health and
safety legislation. This represented a dramatic change in the thrust of
federal regulatory policy. In addition, environmental and community
activists defeated numerous public works projects and along with
antinuclear activists, they have played an important role in bringing a
multi-billion dollar industry – the nuclear power industry – to its knees.

These groups, which were categorized earlier in this chapter as advocacy groups,
serve – along with investigative journalists and more moderate intelligentsia – to
mitigate the overall effect of interest groups in shaping public policy. Such arrangements
are known as issue networks, a term coined by political scientist Hugh Heclo in the
1980’s. Issues networks and another relationship known as iron triangles or sub
governments will be fully discussed and compared in chapter 9 of this text. For now,
suffice it to say that special interest politics will continue to reshape itself, given the ebb
and flow of political power, the issues of the day, and most importantly, the astuteness
of the American voters.

References

Alan C. Isaak, Scope and Methods of Political Science (Illinois: Dorsey Press, 1985)
Hugh Heclo, “Issue Networks and the Executive Establishment, The New American
Political System, Washington: American Enterprise Institute, 1978
James Madison, Alexander Hamilton and John Jay. The Federalist Papers (New York:
Modern Library, 1937)
Mahood, H. R. Interest Groups in American National Politics (New Jersey: Prentice Hall,
2000)
Maisel, Sandy. Parties and Elections in America, 3d Ed. Lanham MD, Rowman &
Littlefield Pub, 1999, p. 161
Michael Parenti, Democracy for the Few, 6th Ed. New York: St. Martin’s Press, 1995
Volume, Issue, and Publication Date: Volume 23, Issue 43, 30 April 2007
Volume, Issue, and Publication Date: Volume 24, Issue 19, 29 October 2007
Volume, Issue, and Publication Date: Volume 24, Issue 19, 29 October 2007
http://www.brennancenter.org/dynamic/subpages/ch.6%202004.final
http://www.fec.gov/press/press2006/20061213murs.html
http://www.statesman.com/blogs/content/shared-
gen/blogs/austin/capitolpressreleases/entries/2007/05/29/tpj_legislature_strangles_
poli.html

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http://www.brennancenter.org/dynamic/subpages/ch.6%202004.final

http://www.fec.gov/press/press2006/20061213murs.html

http://www.statesman.com/blogs/content/shared-%20gen/blogs/austin/capitolpressreleases/entries/2007/05/29/tpj_legislature_strangles_poli.html

http://www.statesman.com/blogs/content/shared-%20gen/blogs/austin/capitolpressreleases/entries/2007/05/29/tpj_legislature_strangles_poli.html

http://www.statesman.com/blogs/content/shared-%20gen/blogs/austin/capitolpressreleases/entries/2007/05/29/tpj_legislature_strangles_poli.html

Featured Links

http://www.sos.state.tx.us/texreg/index.shtml
www.opensecrets.org
http://www.theyrule.net/

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http://www.sos.state.tx.us/texreg/index.shtml

http://www.opensecrets.org/

http://www.theyrule.net/

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Chapter 4
Voting and Elections in Texas

Participation, when and if effective, has a particularly crucial relationship to all other
social and political goals. It represents a process by which goals are set, and means are
chosen in relation to all sorts of social issues.

As in Dickens’ A Tale of Two Cities, Election 2000 was indeed
the best of times and the worst of times. For political science and
government instructors, the epic elections drama in Florida proved
quite an asset. Students piled up questions and observations,
each new wrinkle became a proving ground of concepts and
knowledge about the electoral process. The United States
Supreme Court’s penultimate decision, however, left a trail of
cynicism, anger and seething resentment in its wake. However, it
also left clearly stated guidelines to the nation’s electoral
administrators that for all states to thoroughly review (and reform)
elections laws to hopefully prevent “another Florida.”

“Election 2000: What Really Happened In Florida”

In Texas, a number of initiatives about some aspects of elections reform have been
pursued by public officials. Other aspects of this complex activity have received far less
attention and typically remain that way until a crisis occurs. Texas (like Florida) features
A variety of cultural (that’s the way we do it here) influences on the electoral process,
along with (also like Florida) a number of constitutional barriers to deal with. What’s all
the fuss about at this point? One may wonder as the time seems to have passed.

There lies the vulnerability of the whole system – that the true participants of our
democracy are not watching, or aware of the hosts of electoral influences in play.
Basically, this chapter is about the most important, vital and frustrating institution of
American democracy. Just as medical science concerns itself with evaluating biological
vital signs, so the study of politics attempts to evaluate the vital signs of a political
system. Participation is typically regarded as the most important ingredient of
democracy, and thus deserves to be fully explained, not simply critiqued. We will
examine this topic, like the others, in a systematic fashion to learn first the essentials.

Understanding these will provide the student citizen the ability to view voting,
campaigns, and elections as separate parts of the whole, the “whole” being the political
process itself. Other chapters involve the principal agents of this process – political
parties and interest groups-both of which attempt to influence the outcome of the
process, in order to exert greater control over public policy.
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Understanding voting and elections as separate components of the electoral process
will enhance the student’s ability to evaluate the political process. In other words, we
must first understand the components to be able to evaluate the system itself-a method
we will also apply to the components of government, referred to as institutions (chapters
6, 7, and 8). The system diagram should assist the student in associating the functional
areas of the political process.

The Essence of Voting and Elections in Texas

Voting
The status and meaning of participant, in a democratic society
The keys to access and participation in the electoral process

Elections
Transfer of political views & goals into government, or administration

Electoral Structure
Election and voting reforms, redistricting issues
When & how elections are conducted
Types of elections & electoral tactics

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The American Voter in Texas

The right to vote, and what it means (or could mean) is the
single most indispensable ingredient of a democratic society.
Although various forms of participation provide links between
the governed and their government, voting is undoubtedly the
most basic.

The link is simple: Constitutions, which are the contract of
consent between a people and their government, must be
approved by voters. State constitutions, and three
amendments to the United States Constitution, establish
the framework for voting rights as well as limitations. Ultimately, both the United States
and Texas Constitutions specifically empower the people to “abolish,” or change, their
form of government. (of course, by a ratification election) Legitimacy in democratic
governments, however large or small, must be achieved through free and fair elections,
with the most widespread means of participation. Democratic government thus
proceeds under the assumption that people and governments respond to each other.
The following passage frames the assumptions of democracy, in terms of participation:

Those holding power are willing to concede the right to participate in the
hope that it will encourage citizens to give their consent to being
governed. This is a calculated risk for citizens. They give up their right
to revolt in return for the right to participate regularly.

They can participate, but only in ways prescribed by the government.
Outside the established channels, their participation can be suppressed
or disregarded. It is also a calculated risk for the politician, who may be
forced into certain policy decisions or forced out of office altogether by
citizens exercising their right to participate. This risk is usually worth
taking, since in return, governments acquire consent, and through
consent citizens become supporters of government action.

Voting in this context is an abstraction, an idea about how to achieve democracy.
Ideas have shaped the United States and Texas as well, but as one scholar of politics
observed, “the relative prestige of an idea” as “what are thought to be its achievements.
These are embodied in people, institutions and organizations.” Where they cease being
abstractions, and translate into existing institutions, is by virtue of the election. We must,
therefore, view elections as the end of voting, as the nexus between democratic
principles and democratic government. Voting, apart from elections, is certainly not
meaningless. On the contrary voting is the ultimate individual right, acting as the levers
of a democratic society. The right to vote is recognition of the individual, as postulated
by philosopher John Stuart Mill, apart from the state. The vote legitimizes the manner of
government, as well as the individual in society.

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Who should be granted this privilege? Who should grant the privilege? The answer
to the second question seems handy enough; if the people could not grant the privilege,
they would cease to be in control of their government. But what if “the people” really
turns out to be a minority (thus unrepresentative of) the populace? Must the
government still respond to them? Or should government attempt to seek greater
numbers of participants? History will show that at times, governments may indeed
influence who “the people” are, in the ongoing attempt to gather support – and
ultimately ensure its survival. A national government typically will seek such expanded
suffrage. Other governments, that is, state and local governments, have run counter to
this by attempting to limit, or exert control over participation.

Voting in the Lone Star State

As discussed in Chapter 3, state governments determine virtually all voting and
election laws, because the vast majority of those elected are to state and local offices
(who in turn draft, implement, and enforce state and local laws). Later in this chapter,
we will briefly review the role of the national government in elections. For now the
discussion shall remain focused on various aspects of voting in Texas.

Suffrage

Under Texas’ first constitution as a United States’ state (1845), the right to vote was
granted only to males who were twenty-one years old, except those of African or Native
American descent. There was no requirement for property ownership, and no other
prerequisite until a poll tax was adopted in 1902. The electorate was changed by the
dreaded constitution of 1869, which granted African Americans the right to vote (in
fulfillment of the 15th Amendment of the United States Constitution), but which
disfranchised all ex-confederate volunteers and supporters. This ban was repealed in
1873, and the electorate remained the same until women were granted the right to vote
in 1920. After World War II, and especially during the Vietnam era, the likelihood of
extending the vote to eighteen-year-olds was widespread; in fact, some states had
already done so. Included in the Voting Rights Act of 1970 was a general provision to
franchise eighteen-year olds for national, state, and local elections. The United States
Supreme Court later ruled this provision unconstitutional, in Oregon v. Mitchell (1970).

Finally, the Congress proposed a constitutional amendment to franchise eighteen-
year-olds, which was ratified by the states in 1971.

Barriers

Despite the fact that universal suffrage existed in Texas after 1920, and to all Texans
above the age of eighteen, after 1971, significant restrictions were an unlovely reality of
Texas politics until the mid-1960s. Currently, the Texas Constitution still itemizes
“classes of persons not allowed to vote” as

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First: Persons under eighteen years of age
Second: Idiots and lunatics
Third: All paupers supported by any county
Fourth: All persons convicted of any felony, subject to such exceptions
as the Legislature may make

Insight Question: What is a pauper, and why would these people be denied the
right to vote?

Although there exists some rationale for the second and third clauses, it would seem
more appropriate if the legislature defined these exceptions through statutory law!

For the most part, Texas’ barriers to voting were more a
function of economic class and party politics, than actual de
jure (by law) restrictions. The barriers “by the fact” (de
facto) were the poll tax and the all-white primary. The poll
tax created a barrier based on class: adopted in 1902, the
tax was set at $1.50 to $1.75 per voter – a significant fee in
those days. Indirectly but powerfully, the poll tax served to
exclude many low-income or minority voters from the
electorate. Some scholars view this as a deterrent to the
Populist movement by Texas’ elite ruling class (often called
the Establishment). How ironic this was, since the
Grangers-who were part and parcel of Populism – had
dominated the constitutional foundation just twenty-five
years before!

When reflecting on the circumstances of the poll tax, it is easy to observe the
influence of socioeconomic status in Texas’ electoral politics. Unlike other states of the
former Confederacy, Texas’ barriers to voting were not specifically geared toward
repressing African-American participation. Other Southern states adopted an array of
Jim Crow Laws – formal and informal barriers to voting – such as literacy tests and
physical violence. In the Lone Star state, however, the poll tax tilted the electoral table
in favor of those who could afford to vote and those who could not. During the Civil and
Voting Rights movements, the poll tax would finally meet its doom. In 1964, the poll tax
was abolished by the 24th Amendment to the United States Constitution. Texas
retained the tax, however, for all state and local elections. The Supreme Court struck
down the tax as unconstitutional in United States v. Texas (1966). Thereafter, Texas
voters approved an amendment to the state constitution ending the poll tax once and
for all.

The all-white primary was a barrier of a different stripe, Texas, like most Southern
states, authorized the Democratic Party to restrict access to its primary elections. In the
next section we will discuss the significance of primaries in one-party states; for now,
suffice it to say that restricting access to the Democratic primary drastically restricted
African-Americans’ access to the electoral process. Since primary elections have
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always been a function of political parties, they were viewed more or less as private
affairs. In the 1920s, establishing primary rules–including of course, who may attend –
seemed common enough, because the primary election itself was newly emerging from
the previous era’s corrupt, inclusive party caucus/convention systems. In other words,
party business had always been extremely political, fraught with deal-making and the
infamous “smoke-filled rooms.” It was not unlikely that primaries would follow suit,
despite their status as popular elections. At first, the United States Supreme Court ruled
these primaries as unconstitutional, citing the 14th Amendment in Nixon v. Herndon,
(1927). The Court ruled similarly in Nixon v. Condon, (1932), striking down the
authority of the state’s Democratic Party Executive Committee to establish primary
election rules. Despite these opinions, the all-white primary remained a fact of life in
Texas electoral politics. Why continue this peculiar tradition?

For the most part, the all-white primary was a convenient barrier, as was the poll tax,
for those wanting to retain power and control over the governance of Texas. This is not
to say that state government was filled with crooks, charlatans, or party insiders.
Candidates elected to office would, however, be more likely to share similar views,
goals, and needs with those responsible for nominating and electing them. Once again,
individuals comprising Texas’ business and political upper crust-the Establishment
would seek to influence government in a number of ways, beginning with influencing the
nomination process. The all-white primary was one way to ensure that those outside the
Establishment would not be able to (1) be nominated, or (2) affect whoever would be
nominated. This barrier existed in Texas from 1923 to 1944, when it was finally ruled
unconstitutional by the United States Supreme Court in the landmark case Smith v.
Allwright.

By the mid-1960s the most glaring barriers to the electoral process had been
eliminated, including Texas’ requirement for property ownership in order to participate in
bond referenda elections. In retrospect, the Lone Star State has only recently
endeavored to promote widespread participation. Despite the removal of formal barriers,
other inequities have emerged that also tip the electoral scales in favor of certain groups
or individuals. The Voting Rights Act of 1965 was geared toward achieving greater
equality as a function of electoral outcomes. In other words, equality in the
representation of the voting public had become a new issue, due to changes in the
nation’s demographic profile in two distinct aspects: America had become an urban
place, and our population is reflected by large and growing minorities. Although it
powerfully affected these areas, the Voting Rights Act has been continually violated and
misrepresented since its implementation in 1966, especially, as you may have
surmised, in states or localities with large minority populations.

Voting Rights

“The right of citizens of the United States to vote shall not be denied or abridged…by
any State…on account of race, color or previous condition of servitude.” Although the
Fifteenth Amendment to the United States Constitution clearly indicates that voting be
extended to certain groups, simply achieving the right to vote does not translate into
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meaningful participation. The aforementioned barriers to voting are glaring examples of
tactics assumed by state and local governments to prevent meaningful participation by
minority and low-income “voters” in Texas.

Insight Question – What is meaningful participation?

In an inclusive, functional democracy, there needs to be a clear connection between
having the ability to vote, and that ability creating results. In short, diverse groups of
voters should be able to realize results of similar diversity. Urban voters, rural voters,
minority voters, amongst other groups should be represented in more than name only,
and that representation should be the result of the electoral system created by state
government. The federal government eventually undertook to create a level field for
various discriminated or underrepresented categories of voters (“under-represented”
means the proportion of a certain category of a population, such as women or African-
Americans, is less than its proportion of a representative body, such as the Legislature).
The Voting Rights Act of 1965 (followed by amendments in 1970, 1975 and 1982)
provided numerous provisions to protect and promote equality in voting-for all
Americans, in all fifty states. The legislation was a testimonial to the diversity of the
American people, after nearly 200 years of growth. President Johnson summarized the
detriment of exclusion and discrimination, after signing the landmark bill:

The right to vote is the most basic right, without which all others are
meaningless. It gives people – people as individuals – control over their
destinies…the vote is the most powerful instrument ever devised by
man for breaking down injustice and destroying the terrible walls which
imprison men because they are different from other men.

The Voting Rights Act of 1965 eliminated the use of
illiteracy tests and other disqualifiers, and authorized
wholesale registration drives for minority voters in the
Southern states. Thousands of African Americans were
registered in just a few months after the Act was passed.
When it was amended in 1982, the Voting Rights Act also
required that representative districts be constructed, when
and where possible, to accommodate representation of
minority populations, “special communities” and incumbents.
What the amendment intended was to facilitate the election
of minority representatives, that is, to create a more
representative congress or state legislature. For example,
not until 1992 – largely due to the new amendment – was an
African-American elected to the United States Congress in North Carolina, South
Carolina, Alabama, Florida, and Virginia, since the end of Reconstruction.

In Texas, the Voting Rights Act has also played a role in minority politics. Since
1975, Texas has been included under the Act’s provision which requires state
redistricting plans be submitted to the United States Department of Justice for approval.
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Minority groups, among others, have continually challenged Texas’ redistricting plans,
as well as other problems in the electoral system, in federal courts. More will be said
about the pitfalls for minorities in Texas electoral politics later in this chapter. For now,
we may conclude that voting has never been an easy or effective form of participation
for many Texans, for many years. We may also conclude that government has had a
distinct role in restricting, and attempting to extend, as well as to protect, the
fundamental right to vote. Voting and elections also illustrate the nature of “modern
federalism” where both state and federal government are able to exert influence,
although it is unclear as of this writing, which government will have the final say in
shaping the way Texans are able to vote for the state’s 32 members of the US House of
Representatives, into the next decade.

Can I See Your I.D. Please?

How often does the average Texan hear this, especially in the post-nine-eleven,
digital, credit-card, identity fraud 21st century? We all understand and hopefully respect
the need to protect ourselves and our undertakings, with so much at stake. However,
outside the danger zones described above, how central is the question of identity to
other activities? Let’s compare the role of ID verification to a basic activity, like buying
cigarettes or beer, to another – yes, voting.

Let’s say a man in his 40’s asks for a pack of smokes at the grocery checkout, and
has no proof of ID when asked by the cashier, who knows she’s being watched by the
regional manger visiting the store. The customer states the obvious – he looks old
enough – but our employee stands firm. The man leaves without his cigarettes, even
though he IS legally qualified to buy them. Life goes on, although inconvenienced, he
can go across the street and very likely buy them somewhere else. He has the privilege
of buying cigarettes as he has achieved the age limit the law calls for. Now, what was
that about voting?

Is voting a privilege, like buying a glass of wine or being licensed to drive a motor
vehicle, or is it fundamentally different. Voting in our form of democratic government has
traditionally been viewed as a right, so much so that countless Supreme Court actions,
and numerous amendments to the US Constitution have clarified the point. How can
this right be taken away at a polling place, if one lacks the proof of ID?

Many people see no problem in theory, with voter ID requirements. This is wrong-
headed however, as not everyone who can vote has a state-issued drivers’ license or ID
card. Many seniors especially, who may lack birth certificates and/or drivers’ licenses,
find themselves at a disadvantage in casting their vote in voter ID states. Of course, one
has eligibility in Texas with one’s voter registration card, but often these may lack
correct information, or simply not arrive in the mail in time to vote. Why should this
prevent a legally qualified voter from not casting his/her vote? Unlike the smoker
described above, one can’t just go to the next polling place down the road and get to
vote there. It’s a one-shot opportunity that can’t be replaced.

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Let’s now take a brief glimpse at how the Help America Vote Act has influenced this
significant voting rights dilemma. The Voter Tech Project provided an analysis of Voter
Identification laws on rates of turnout (participation) using data from the last four
election cycles. The following graph reflects the increased restriction on ID forms:

Figure 4.1: Voter Identification Laws, 2000-2006

Darker shades correspond to more stringent authentication
requirements. In general, identi
between 2000 and 2006.
http://vote.caltech.edu/drupal/files/working_paper/vtp_wp57

Next, consider the basic fact that turnout in both the South and West is historically
lower than that of states in the Northeastern and Midwestern regions, and that close
examination of the figure shows that states in the Southern and Western regions are
more likely than states in the Northeast to have strengthened their voter identification
requirements over the six-year period.

The maps indicate that Texas hasn’t formally changed its Voter ID requirements,
although a strong effort was made during the 2007 Legislative session to do so. In the
Texas Senate, a bloc of Democrats blocked a bill that had passed in the Texas House,
requiring picture ID, or 2 forms of identity to be eligible to vote.

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http://vote.caltech.edu/drupal/files/working_paper/vtp_wp57

Voter Turn Out (Turn-Off?)

For reasons just outlined, as well as the powerful influence of political culture, voter
turnout in Texas has been characterized by much lower-than-average participation.
Additionally, there exist distinct patterns of participation among minorities, lower-
income, and younger Texans. Turnout levels themselves tend to fall into fairly
predictable levels, depending on which election and election cycle is involved. During
the past thirty years, voter turnout for presidential elections in Texas has ranged
between 42 percent and 52 percent at times this was 22 percent lower than the national
average. In 2004, with George W. Bush seeking re-election in a very tight and
contentious race, over 56% of Texas’ registered voters went to the polls.

Turnout for gubernatorial and midterm elections has been significantly lower, ranging
from a mere 18.4 percent in 1974, to 36.2 percent in 2002, again much lower than the
national average. Although much more difficult to track, local elections and primaries
tend to draw even smaller percentages of the vote.

Texas’ record of low participation, similar to its austere voting laws of previous eras,
is very much the norm for states of the former Confederacy, For example, of the bottom
ten states (in terms of voter turnout) for the presidential election of 1984 and the 1986
midterm elections, six were ex-Confederate states. Texas ranked forty-fifth in both
elections. It appears that despite Texas’ size and stature, the influence of traditionalistic
and individualistic political culture remains very much in evidence.

Voter turnout in Texas has also been influenced by other factors. The post-E.J.
Davis reforms included eliminating many appointive government offices, requiring they
be elective instead-hence the term long ballot. The
primary election system, as well as elective special
district governments (boards of trustees, water boards,
etc.) requires frequent trips to the polls. Voters may be
frustrated by not knowing many of the candidates on the
ballot, especially judges, and/or not knowing about a
runoff election, or a less-visible local election. These
conditions are less an issue of turn-off and more likely a
matter of “burn-out.”

Qualifications to Vote

By the 1990s, access to the polls has become quite basic in Texas. Through
numerous United States Supreme Court rulings, and changes mandated by Congress,
the Texas Legislature, and of course, by constitutional amendment, Texas residents
need only meet these criteria in order to vote:

The voter must be at least eighteen years old by election day.
The voter must be registered to vote in Texas at least thirty days prior to
election day.
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The voter must have established residency in Texas at least one month prior to
election day. In fact, a new resident may register immediately after he or she
moves to Texas; however no one may register within thirty days of an election.
The voter must have established residency in the county at least thirty days
prior to election day, and establish residency in his or her voting precinct by
election day.

These requirements seem simple enough, but whatever happened to the idiots,
lunatics, felons, and paupers mentioned in Article VI of the state constitution? Despite
the anecdotal quality of the Article, these restrictions do exist each has been regulated
in some manner by state law. For example, mental competency may be established by
“hearing for that purpose, and most convicted felons may qualify if their sentence has
been served (with certain conditions).

In addition to establishing and administering the registration process/ the state
(through each county government) must also accommodate voters unable to be
physically present on election day. Absentee voting pertains to residents of Texas who
are away from their precinct on a semi-permanent basis, for example, military
personnel. Prior to 1,988, absentee voting was done by mail, for those persons either
absent from the area, incarcerated, or too ill or incapacitated to visit the voting precinct.
Since 1988, however, a person may vote “absentee” or before the election for the sake
of convenience, which is known as early voting, without having to state why. Early
voting takes place at designated precincts and polling places, beginning twenty days
prior to election day, and ceasing four days before the election. Since early voting has
quickly become a favorite among some Texas voters, campaign strategies have
required adjustments. Skillful campaigners have focused their energies on those likely
to vote early; they then readjust based on polls to mobilize the remaining electorate. As
political scientist Tucker Gibson explained, “a campaign must “peak” twice.”

Updated 2008: The Politics of Voting and Elections

A 2003 New York Times headline read “Election Reform, Meet Politics,” indicating
the challenges facing government’s role in protecting the right to vote. The article well
described one aspect of election reform, that the raw, vital and violent social upheaval
of the 1960’s voting activism is gone. Instead, “in its place is what civil rights groups say
are subtler forms of disfranchisement: purging voters from registration lists, requests for
multiple forms of identification; invalidation of a disproportionate number of ballots cast
by black [African-American] voters, This is the legacy of Gore v. Bush, of “count every
vote”; of chads and butterfly ballots, of Florida in 2000, of course. Why is this so
relevant to Texas voting issues? The answer is simple – the subtle and myriad forms of
disfranchisement also exist in Texas. Recall from p. 118, that these are de facto
barriers to voting, which will always challenge the political side of elections. Let’s update
the progress – but mostly the lack of it – based on the 2004 Presidential contest.

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2004 – Ohio Looks like Florida

Viewed dispassionately, the national elections ran much more smoothly than in
2000,” said Charles Stewart III, a professor at the Massachusetts Institute of
Technology and a specialist in voting behavior and methodology. Because of improved
technology “nationwide, we counted perhaps 1 million votes that we would have lost
four years ago.”

But much work remains. Congress imposed only the minimal
national standards and included too few dollars. Tens of thousands
of machines – including 70 percent of Ohio’s machines – still use
punch-card ballots, which have a high error rate. A patchwork quilt
of state rules governs voter registration and provisional ballots.
(Provisional ballots are given to voters whose names do not appear
on registration rolls – studies show that minorities and poor voters
cast a disproportionate number of such ballots.) Ohio recorded
153,000 provisional ballots. But in Georgia, one-third of the election
districts did not record a single provisional ballot in 2004.

Republican Secretary of State J. Kenneth Blackwell, who was co-chairman of the
Bush campaign in Ohio, decided to strictly interpret a state law governing provisional
ballots. He ruled that voters must cast provisional ballots not merely in the county but in
the precise precinct where they reside. For cities such as Cleveland and Cincinnati,
where official’s long accepted provisional ballots cast in the wrong precinct, the ruling
promised t-o disqualify many voters. “It is a headache to take those ballots, but the
alternative is disenfranchisement,” said Michael Vu, director of the Cuyahoga County
Board of Elections, which includes Cleveland.

In Florida, ground zero for 2000’s election meltdown, professors and graduate
students from the University of California at Berkeley studied this year’s voting results,
contrasting counties that had electronic voting machines with those that used traditional
voting methods. They concluded, based on voting and population trends and other
indicators, that irregularities associated with machines in three traditionally Democratic
counties in southern Florida may have delivered at least 130,000 excess votes for Bush
in a state the president won by about 381,000 votes. The study prompted heated
critiques from some polling experts.

Stewart of MIT was skeptical, too. But he ran the numbers and came up
with the same result. “You can’t break it; I’ve tried,” Stewart said.
“There’s something funky in the results from the electronic-machine
Democratic counties.”

How does Texas compare to these examples, and is it useful to make comparisons,
for that matter? It is, and that is the stated purpose of this section. Regardless of
individual states in the process, American politics will always be a result of the wave of
power flowing between the Federal government and select elements at the state and
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local levels. Not to beat a dead horse, but nowhere in our political history did this
happen so effectively than in Florida, in 2000. Interestingly enough the next best
example may just be from the Lone Star state.

In Texas, a series of political, legal and socio-economic factors has produced a
complex swirl of voting and elections, at the close of the 2007 Legislative session. The
past six years have witnessed an enormous upheaval in the political and legal results,
and coupled with intense pressure for security after the 2001 terror attacks, sweeping
changes for identity verification have created a trio of challenges to voting. The
challenge and reforms can best be observed in three overall areas:

1. Formal voting reform (2002 Help America Vote Act)
2. Political and Legal tactics (redistricting and the Federal courts)
3. Identity and the right to vote (the status of the Real ID act in Texas)

Obviously, each of these areas affects the others in some way.
Since this is not a graduate course, we will focus on the core
aspects of each, and the results in the recent most (2006) election
cycle. As stated may times in the previous chapters, it’s necessary
to look at the “what should be” element, that is, the intended laws
and policies, and then look at what actually or will likely happen.
We will start first then, with Federal law, The Help America Vote
Act.

In 2002, President Bush signed HR (House Resolution) 3295,
the Help American Vote Act. This federal legislation creates many
new mandates for state and local government. Some of the central
requirements of HAVA are:

By November 2006, the state and counties must work from a single,
centralized, unique statewide voter registration list. Additional information will be
required on the voter registration application beginning January, 2004
New requirements for electronic voting systems, and new voter educational
requirements for counties using paper ballot, central count optical scan, and
punch card voting systems are required by January 2006
The state must file a “State Plan” explaining how the state and counties will
meet the new requirements

The Texas Secretary of State’s Office began the reforms by drafting a statewide
plan, and empowering committees to implement the Federal mandate (Incidentally, the
Federal government has provided grant money to the states to accomplish the
mandate) The following excerpt from the Secretary of State Elections division
addresses Texas’ plan:

The Elections Division administers and maintains the Texas Election
Administration Management (TEAM) System, which is an online, HAVA
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compliant, voter registration application designed for county officials to
maintain accurate and efficient voter registration rolls. Currently, over
200 counties utilize the TEAM application to maintain their daily voter
registration requirements. The remaining counties comply with current
state and HAVA requirements by updating the state database on a daily
basis through a file transfer.

A contract was signed with IBM on 22 October 2004 that initiated the
project to develop the TEAM System for the Elections Division of the
Texas Secretary of State’s Office (SOS). Additionally, the SOS
engaged a full-time project manager from Cooper Consulting through
the Department of Information Resources (DIR) to manage the project
for the state.

Has HAVA helped the voter, and the process of administering elections? Let’s look
at the big picture, which stems from the first HAVA requirement (centralized voter
registration lists) The Voting Technology Project (VTP) of California Tech, along with
many other public research entities have pinpointed the challenges thus far. Marc
Collette of the Galveston County Daily News provided an excellent summary:

State Voting Systems under Scrutiny

Texas just completed a stress test of its beleaguered statewide voter registration
database, hoping to answer critics of the system and to simulate the pressures it might
face in the November election, and in the big one: November 2008.

Texas is not alone. At least 11 states missed a federal deadline for establishing
centralized voter registration databases, and the problems they face could make or
break voter confidence in the presidential election, observers say.

A 2005 report from the Pew Center on the States, a nonpartisan government policy
think tank that runs the Web site Electiononline.org, said “clean” voter lists “can prevent
a repeat of the morass of Florida 2000 and 2004, as well as troubles in a number of
other states and localities where bad lists have led to frustrated citizens, disputed
results and doubts about the integrity of the election system as a whole.”
The California Institute of Technology’s voting technology project estimated that of
the 4 million to 6 million lost votes in the 2000 presidential election, between 1.5 million
and 3 million were due to registration mix-ups.

Not Every Vote Counts

Texas Election Administration Management spans the tenure of three secretaries of
state. In 2003, Geoff Connor awarded a $12 million contract to IBM and Hart InterCivic
of Austin to produce the statewide database. According to the Pew Center, IBM was re-
entering the elections industry after a hiatus of more than 30 years. In 1965, after
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problems with punch card machines, tabulators and
unproven allegations that IBM was trying to promote its
president for a possible candidacy, the company left
the business.

Some have criticized Connor for awarding the
contract to IBM after an advisory panel that included
county elections administrators recommended Votec,
in the business more than 20 years. The Texas system
went online with little publicity one year past the
original federal deadline of Jan. 1, 2006, under the watch of then-Secretary of State
Roger Williams. County officials are in a wait-and-see mode, weighing the cost of
abandoning the state interface and establishing their own databases, but hoping for
improvements on the state system.

No voting system is perfect, and no election cycle happens without problems. What
needs to be kept in focus, however, is the combinations of issues that can drastically
affect the next big test of the states’ biggest political challenge – general election 2008 –
due to be rife with contention, passion and concern. Consider that states not in
compliance with the HAVA voter registration requirement include the three most
populous states (California, Texas and New York) and three of the 4 states bordering
Mexico (New Mexico is the sole exception) What does this have to do with? While more
will be discussed about minority and immigrant populations later, for now consider
simple geographical trends in voter participation, as we keep in mind future scenarios.

Redistricting: A Vote Right, or Wrong?

For 230 years, Americans have initiated, changed debated and fought for the ability
to realize a republican form of democracy, that is, to create cornerstones of
representative government. Voters elect representatives and senators to carry their
demands, needs and wants into the arena of government itself – to be their voice – in
the debate over which policies will be adopted, changed etc. Just remember the famous
chant from the Boston Tea Party – no taxation without representation – to keep a good
perspective of how important being functionally represented is to our fulfillment of
democracy.

Representation occurs by way of districts, or state boundaries. Maps have always
held a special place in our lives, so it is with the formation of districts. Maps are used to
draw the districts – for whatever purpose the district represents. That is, for all the
offices in government that are filled by the single member method (see CH. 5 for
details), districts must be created on a map. The voters in each district choose between
two or more candidates in a general election – the winner takes all – which means that
individual now represents the whole district. The most vital connection between voters
in a republic is electing members to the representative body – meaning the state
legislatures, and the U.S. Congress.

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Thus, state representatives and senators serve geographical districts or the
state itself, for all Texas voters elect the US Senators. This is functional representation,
stemming from the characteristics of the district – is it a city, suburb or rural area? Is it
an industrial zone, or a high-tech haven? Are the residents of a certain ethnicity,
nationality or race? From the first decades of the republic, officeholders have
represented districts with certain characteristics – which unfortunately also included the
predominant political affiliation. Is it wrong-headed to associate (or correlate) the
political party, with the other characteristic of a district? Not at all – in fact, it makes a lot
of sense.

Think about it-for the most part, the Republican party has traditionally represented
business and energy, and more recently agriculture, while Democratic representation
includes most minority and elderly populations, labor, environmental and other urban
issues. One should be represented in the context of where one lives, because this
typically corresponds to the common interests listed above. In fact, redistricting
guidelines call for the maintenance of such common denominators, that districts should
be drawn “with compactness, contiguity, and respect for political subdivisions in mind.”

How should redistricting plans be drawn? Until the
1960’s, there were few if any guidelines. Then changes
came forth at a furious pace . . . Certain sections of the
1965 Voting Rights Act, and its several amendments, deal
with considerations of redistricting, as it relates to minority
populations and the strength of their vote. A number of
Supreme Court decisions, Baker v. Carr, (1962), Reynolds
v. Sims, (1964), and later Shaw v. Reno, (1993) set
precedents which deal with equal, or appropriate
representation between rural and urban areas of a state;
previously, rural districts were very overrepresented, meaning that the number of
elected representatives from rural districts was disproportionate to the number of
representatives from urban areas. In Shaw v. Reno, Justice Sandra Day O’Connor
describes how a “reapportionment plan that includes in one district individuals who
belong to the same race, but who are otherwise widely separated by geographical and
political boundaries, and who may have little in common with one another but the color
of their skin bears an uncommon resemblance to political apartheid: In other words, the
Court was acknowledging that rambling, spread-out districts, drawn solely to create a
minority-majority district, were ill devised and flew in the face of redistricting principles.

All in all, redistricting is a major political and governmental issue, which has
repeatedly thrust Texas into the national spotlight since 2003. Twice that year, the
Texas Legislature came to a standstill as 51 Democratic representatives and later, 11
senators left the state to stop the aggressive pursuit of redistricting plans put forth by a
complex of Republican political strongmen. Three years later, the US Supreme Court
would decide on the voting rights ramifications of redistricting, which resulted in an
unprecedented series of electoral “corrections” by December 2006. We will further
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explain redistricting in the context of the next two chapters, because again – it is both a
political and governmental issue.

Primaries and Other Types of Elections

As discussed in the previous section, voting, although a symbolic and fundamental
component of democracy is a highly political function. In the past, many groups and
individuals were excluded from voting or from certain elections, or their votes counted
for less than another’s in terms of equality. To the extent that voting is political the same
could be said for its object, the election. Despite the fact that state and federal laws
strictly control the administration of elections, everything else about the electoral
process is politically charged: There are two basic reasons for this condition:

American politics revolves around a two-party system (with certain variations)
Electoral campaigns are fraught with financial liabilities, loopholes, and
influence peddling.

The first factor (two-partyism) plays a huge role in electoral polities, a role that will be
detailed further in the next chapter, political parties. The parties control many aspects of
elections, the most significant aspect being “nominating elections” known as primaries.
The second factor (campaign finance) exemplifies the role of money and special
interests in electoral politics at every level. We will thoroughly review these factors later
in this text; presently, let us begin the journey through Texas’ electoral “scene” by
discussing the oft-maligned party elections-the primaries.

When asked point blank, many Texans (as well as Americans in general) cannot
adequately describe the function of primary elections. With the exception of presidential
primaries, which are more complex though highly visible elections, many do not realize
the import of nomination elections. Primaries are the route to electoral victory, because
they are the routes to general (November) elections. Unlike the general election,
primaries are private elections; each party conducts its primary “for members only.”
Primaries are the outgrowth of party politics. They represent the evolution of the party,
which has experienced a gradual recession of power and control over government in
the twentieth century. Things were vastly different, however, in earlier periods where
nominations were determined by party elites, or party bosses.

Before 1906, when Texas’ first direct primary was held, much of the nomination
procedure was carried out by small groups of party leaders; in fact, there were no
nominating elections. From the time the two-party system first began to emerge at the
close of the eighteenth century, key individuals from each party gathered, or caucused,
to discuss and decide who would be the best nominee-for any number of elective
positions. This system, appropriately titled the party caucus, flourished during the early
1800s.

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“Does the Caucus Mess with Texas?”

The party system, as with many things political, was very
exclusive and prone to the designs of a few powerful
individuals. The infamous specter of boisterous men gathering,
drinking, and making deals in “smoke-filled rooms” aptly
describes the nature of the party caucus. The caucus served to
solidify the party’s goals and views, since the nominee would be
someone with a similar orientation; also, the nominee was
beholden to party bosses for the “privilege” of being nominated.
Change was imminent, however with the expansion of the
electoral process known as jacksonian democracy.

During the 1830s, President Andrew Jackson ushered in a new era in electoral
politics, during which time the nomination process was soundly reformed – especially
presidential nominations. The Jackson Democrats initiated the party convention system,
which Texas adopted upon statehood. Under the convention system, voters of each
party chose convention delegates, who would eventually gather at a convention for the
purpose of nominating candidates. The delegates were free to choose anyone, though
typically the preferences of party bosses held sway over the gathering. Basically, it was
“Smoke-Filled Rooms, Part II,” which would not survive the reforms of the turn-of-the-
century Progressive era. The average voting citizen would finally have a truer role in
determining the outcomes of elections. In 1906, the first direct primary was held in
Texas, as well as certain other states. The direct primary was a logical progression in
terms of electoral politics; it advanced the role of individuals and groups, while lessening
the parties ‘role in electoral politics. In this sense, the direct primary advanced the cause
of pluralism, and set the stage for the modern era of campaigning by fundraising. More
will be said about this in the next section.

In short, the direct primary empowered voters to nominate their party’s candidates for
every applicable elective position. This may sound democratic enough, but the reality is
that in one-party states (most ex-Confederate states, and a handful of western states)
primary elections take on a much more significant role. For all intent and purpose,
primaries are the decisive elections in one-party states. For example, the winner of
a Republican primary will almost certainly defeat a Democratic opponent (if there is one)
in the general election. One might argue here that the direct primary still empowers the
voters to nominate, regardless of the party system. The problem is that primary
elections in most one-party states have been molded to benefit the Establishment
(despite the elimination of the all-white primary). This condition can be attributed to
three major drawbacks:

1. Primary elections are not well attended. Turnout rates usually hover between
12-15 percent of Texas’ registered voters
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2. Texas’ primaries are characterized as “dual primaries,” which means that if no
candidate receives a majority of votes cast, a run-off election is held between
the top two finishers of a primary election.
3. Texas’ primary election rules accommodate the use of election tactics, such as
raiding.

Direct primaries themselves are not prone to these drawbacks; it must be
emphasized that the underlying problem is the nature of one-party politics. It must also
be emphasized that Texas has developed into a two-party state, but the change is very
recent and not fully realized. The discussion of primaries must, for all practical intent,
focus on what we know of at the present.

Texas’ Dual Primary System

To be victorious in a dual primary system, a nominee must receive a majority of the
votes cast in his or her party’s primary. A majority is 50 percent of the votes cast, plus
one vote. States that do not employ the dual primary require that a nominee simply
achieve a plurality (the most votes) to win. Nine southern states (including Texas)
require a runoff election when no candidate receives a majority of votes cast during the
primary. Many critics, among them the eminent political scientist V. O. Key and the
Reverend Jesse Jackson, acknowledge the problems with dual primaries in one-party
states.

The dual primary system was initiated in the former Confederacy shortly after the
direct primary was adopted (the early 1900s). Some observers attribute this to a
Democratic strategy “of assuring that the party was united behind one candidate and
could thwart any…challengers.” Others see things differently:

Analysts differ over whether racial discrimination was a factor in
creating runoff primaries. On the one hand, blacks [African-Americans]
were denied the right to vote through a whole series of Jim Crow laws
and rules at this time; adding still one more discriminatory obstacle to
effective African-American participation would seem to have been
superfluous. On the other hand, almost all-legislative action dealing with
elections at the time was undertaken’ with the awareness of racial
implications. It is difficult to imagine that those involved in establishing
run-off primaries were incognizant of the fact that these could have an
effect on the chances of African-Americans seeking office.

In Texas, the dual primary has not affected minority electoral successes per se,
though it has generally benefited conservative Democrats. Conservatives have
dominated the Democratic Party in Texas for most of its one-party history. If a liberal
Democrat received enough votes to cause a run-off election, conservatives could
consolidate their power in time to defeat the liberal in the run-off. As Texas has moved
into a two-party, Republican-dominated state, the dual primary will continue to benefit
candidates in either party, depending on which race is at stake. Ultimately, the more
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visible, moderate and well-financed candidate will emerge victorious from most run-off
situations. For example, former Dallas mayor Ron Kirk defeated well known but less
funded Victor Morales for the Democratic nomination for US Senate in 2002.

Texas’ Primary Rules

The term dual primary, or dual election, relates to the margin of victory-majority or
conditional plurality-and the subsequent run-off election. A state’s election laws, in
terms of who may participate, also classify primaries. Since virtually all primaries are
“for members only,” this means that election laws actually define party membership – at
least in terms of voting participation. Some states conduct open primaries where voters
may participate in more than one primary, or choose either party’s ballot. Sometimes,
one party may offer an open primary even if the other party does not. In the 2000
presidential primaries, the Republicans held open primaries in South Carolina and
Michigan (in order to encourage independents and/or Democrats to “cross over”) while
the Democratic primary remained closed. Most states (thirty-eight), including Texas,
Offer closed, or modified closed primaries.

Closed primaries require some degree of party
identification on the part of the voter. California requires
the voter be registered with his or her party almost one
year in advance of the primary, whereas other states
allow party identification on the day of the primary.
Texas employs this approach, allowing the voter to
affiliate with one party or the other by virtue of voting in
its primary. The registered voter needs only show up on
primary day and follow these basic rules:

1. Participation is limited to one primary only; if one votes in the Republican
primary, he or she is “Republican” for the primary season.
2. After voting in a primary, the voter cannot attend another party’s runoff election.
3. If the voter did not attend any primary, he or she may vote in either party’s run-
off election.

Twelve states employing the closed primary require the voter to declare party
affiliation by the candidate-filing deadline, to reduce the bandwagon effect. Two states
offer the blanket primary, the polar opposite of closed nominations. Alaska and
Washington allow primaries with one overall ballot, where the voter may choose any
one candidate for each race on the ballot. The top finishers then compete in the general
elections. Occasionally these all featured as “beauty contests,” as in California’s 2000
presidential primary, when state party officials wanted to indicate who the most popular
candidates were – and the percentages of support as well. The United States Supreme
Court, however, ruled that California’s blanket primary was unconstitutional on the
grounds that it infringed on the parties’ 1st Amendment’s freedom of association.

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The direct primary is a prime example of America’s political landscape; although
many nominees are elected to make laws for all Americans, they come from different
states with different electoral circumstances. Some states attempt to encourage
widespread participation in all elections, while others directly or indirectly discourage
voter turnout. The primary is often a reflection of the state’s political culture and history,
which explains why election laws prohibit certain things and encourage others. In Texas
and other predominantly one-party states, voting strategies or tactics have been
accommodated by the dual primary system. The ruIes allow party loyalists to vote in
such a way that will enhance their party’s position, one way or another.

The Tactics of Voting In Texas

Texas’ history of one-party Democratic politics was logically a response to the scars
of the Civil War, Reconstruction and, of course, those responsible – radical or any type
of Republicans. It was illogical however, in terms of ideology. It’s not a risk to state that
a majority of Texans have been and remain conservative in their political views, a
subject which will be discussed later in this text. The illogic of the situation is that the
Democratic Party has traditionally been the party of liberal or progressive thought, in
some particular sense. To accommodate this situation, the Texas Democratic Party split
into liberal and conservative factions, which are groups within a political party.

Presently, the conservative faction of the Democratic party is obsolete-it has been
co-opted into the Republican party (though it should not be construed that conservative
Democratic officeholders are gone from the scene-they have managed to be re-elected
due to their record of service) Factions have also existed in the Republican party. One
faction is commonly referred to as economic, or “country club” Republican; indicating a
common denominator based on income and socio-economic status. The other faction is
much more recent, forming in the mid-1980’s as the Moral Majority, giving rise to the
Christian Coalition and other “social conservative” groups. These factions, like any,
have at times been at odds but have tended to co-exist with some success in Texas
(the national party scene is somewhat different – see Chapter 7).

Raiding and Crossing Over – Electoral Tactics

Texas’ history of one-party Democratic politics has created a tradition of voting
“maneuvers” designed to influence (for the most part) the outcomes of primary
elections. Within a one-party system are factions, which are divisions or groups formed
around different ideological orientations. Conservative Democrats have typically held
sway in Texas, despite periods of liberal dominance, largely because many Texans,
including Republicans, have long supported conservative interests: hr other words, the
Republican presence in Texas, though officially ‘invisible,” has continued to influence
elections by virtue of would be Republican voters crossing over to support conservative
Democratic candidates during primary session: Crossing over, one could postulate, is
the next best thing to successful two-party politics!

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In the past century, the Republican presence has been so weak and scattered that
many counties offered no Republican primary. Voters had no choice, then, but to attend
the Democratic primary and vote for the conservative candidate with the greatest
likelihood for victory. Crossing over is voting for the other party’s candidate when the
voter’s party has no real chance to win a general election, or the voter just prefers the
other party’s candidate. Eventually, in situations where Republicans could field a
competitive candidate, Republican voters would attempt to improve their candidate’s
chances in the general election by raiding the Democratic primary. Raiding a primary
means voting for the other parties perceived weakest candidate who would be easier to
defeat in the general election. Of course, this means that Republicans would not vote in
their own primary, which was inconsequential because there hadn’t been enough
Republican candidates to incur competition among themselves.

The 2008 primaries provided interesting
opportunities for raiding and crossing over. For
example, right wing radio host Rush Limbaugh
presented the novel idea that Democratic Senator
Hillary Rodham Clinton would be easier to defeat in the
2008 presidential election, thus he urged Republicans to
vote for her in their state’s primaries. Conversely, some
Clinton supporters vowed to support the Republican
nominee John McCain, in protest of the controversial
nominations process. Finally, a number of Republican leaders and former officeholders
such as former Secretary of State Colin Powell have crossed over to endorse Democrat
Barack Obama in October 2008.

However, a lot of what would appear to be crossing over (see the definition above) is
actually an example of the most perverse voting motivation – to simply defeat a
candidate. The irony is that these voters rarely even realize their truest sentiments,
which is exactly the conundrum facing any true democratic system. This issue is
especially and vitally at stake in primary elections, where the goal is supposed to be
choosing the best candidate to actually serve in office, not simply to win the contest. No
matter the emotional plug, raiding and some examples of crossing over are wasted
votes.

Other Elections

Thus far, we have explained the particulars of primary elections, which are the heart
and soul of electoral “politicking.” It is not that other types of elections are without
political influence; they most certainly are subject to various political behaviors. The
reason is that primaries are private elections, held by political parties to nominate
candidates, whereas other elections are state and local public elections, funded and
administered by the state, through the county governments. Local elections (municipal,
or city elections, school board, and special district elections) are administered by the
appropriate local government. Local elections are nonpartisan; that is, they do not list
candidates by party label.
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General Elections

These are the “November elections,” which Texans
most relate to electoral participation perhaps because
these elections are held to fill every elective public
office from the presidency to the local constable.
General elections are held on the first Tuesday after
the first Monday in November of even-numbered years,
for United States congressional and state legislative
races, and some state offices (six-year elective offices
the eighteen state Supreme Court Justices, Texas
Railroad Commissioners, and United States Senators
are staggered every two years, to ensure some degree of continuity). Every four years,
the general election in Texas is held in conjunction with the presidential election or the
election for the Texas governorship and key executive and judicial posts. Of course,
other races may be featured on a general election ballot, such as county-level offices,
and, occasionally, a proposition to amend the Texas Constitution.

The ballot used for general elections in Texas is selected by the county
commissioner’s court. The ballots may be one of four styles-paper (punch-card) ballots,
manual-lever voting machines, optical scan or electronic (DRE) voting machines. Paper
ballots list the candidates’ names left to right by patty columns, depending on which
party receives the highest number of votes in the previous governor’s race. That party’s
candidates occupy the leftmost column, which many experts believe to be
advantageous. Voting machine ballots list the candidates by parry, but the listing is from
top to bottom (the party with the highest number of votes in the previous governor’s race
will be listed highest, with the other parties and independent candidates listed below).

Special Elections

In order to accommodate situations that require speedy resolution, special elections
may be held on one of four designated dates each year. The following items warrant a
special election:

Filling a vacancy for United States senators and representatives
Filling a vacancy for Texas senators and representatives
Bond issues (public debt) for local government usage
Constitutional Amendment proposals, for both Texas and United States
constitutions

Special elections allow some flexibility in the electoral process, which is important in
fact (in order to increase state revenues, for example), and in principle (members of the
United States Congress and state legislators should not be appointed since they are
representatives of the people). The four dates prescribed by state law for special
elections are the third Saturday in January, the first Saturday in May, and the second
Saturday in August, in addition to the general election day in November. Special
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elections are unique in that they are nonpartisan; thus, if no candidate receives a
majority of the votes cast, a runoff is scheduled for the top two finishers. In fact,
seventy-one candidates ran in the special election held in 1961 to fill the United States
Senate seat vacated by Lyndon Johnson. Typically, however, special elections are held
for less spectacular situations; it is not surprising that these elections attract lower
turnout than other elections. The special election in November 1995, which produced a
constitutional amendment to abolish the state’s Office of Treasury, drew less than 8
percent of Texas’ voters.

Local elections should not be confused with special elections, although it may be
asking much of the average citizen to account for so much electoral activity! Local
elections may or may not be held on special election dates, although typically they are
held in April or May of odd-numbered years. Local elections, sometimes referred to as
municipal elections, are held to fill a variety of municipal posts such as mayor, city
council, and school boards, or to decide local bond issues or other referenda. Often a
substantive or controversial public policy issue (such as a tax increase for a sports
arena) will result in a referenda election where voters are basically indicating
acceptance or rejection of the proposition. These “props” as they are sometimes
referred to, should not be confused with constitutional amendment propositions, which
are found on every ballot in the state, and almost always held in November of odd-
numbered years.

At the local level, Texans may bring issues to referenda elections, by initiative.
Initiatives, also known as “ballot drives,” require a petition to garner a certain number
of signatures, and then it is balloted and voted on. These elections have been very
popular with voters in most Western states, but not in Texas. A local issue occasionally
has the purpose and timing to succeed, for example, voters in San Antonio caused a
development project to reconsider, under the banner of “Save Our Aquifer” in 2002. In
2008: voters in Hays County approved the sale of alcoholic beverages in a “dry”
precinct. Bond issues, on the other hand, are geared toward routine improvements for
roads, bridges, or improvements for schools. Unlike referenda, bond issues are geared
toward authorizing public debt, in order to build or repair public infrastructure projects.
For example the Alamo Community College District has undergone significant
improvements, with the passage of a $450 million bond issue. Bond elections are often
misperceived by the public, or have such little visibility that they tend to draw a small
turnout of voters. In summary, the cultural orientation towards politics, combined with so
many various elections often leaves the outcome of races in the hands of a small but
determined group of voters…these elections, similar to special elections, rarely involve
more than 1.0 percent of the voting populace.

Presidential Primaries:
The Nexus of Parties and Elections

It is not surprising that presidential aspirations, nominations, and, of course,
campaigns are the most popular and visible races, considering the extent of media
coverage (not to mention the subject of countless discussions, cartoons, and jokes).
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Despite their high profiles, however presidential
contests are probably least understood in terms
of electoral procedure. Originally, the Electoral
College, whose members were chosen by state
legislatures, elected the president. The “people”
were very indirectly involved with electing
presidents. The process has drastically changed
since that time and continues to change with
respect to the primary nominating procedure.
Both the state legislature and the national party
committees have a voice in determining various aspects of the procedure. For example,
the Texas Legislature approved changing the state primary date to coincide with
eighteen other states (including all Southern states) in the Super Tuesday primary,
starting in 1988.

“2008 Presidential Primaries in Review”

Twenty years later, the choreography of primary elections would get another jolt,
especially on the Democratic side. In 2008, Super Tuesday was scheduled even earlier,
on February 4th, but Texas did not follow suit, opting to stay with the traditional March
date. This decision made for a surprising result – that Texas would play a decisive role
in determining the Democratic nominee for president. We shall attempt to explain the
nominating process for both parties, based on the rules adopted by the Texas
Democratic and Republican state organizations, for the often misunderstood and
historically overlooked primary election.

The National Committee of each patty, which meets every four years, adopts rules
determining the presidential nomination procedure. Each party continues to approach
the procedure in a different fashion, for practical as well as principled reasons. The
Democratic Party has endeavored to “open up” the presidential nomination procedure
since the mid-1960s, in order to allow minority candidates an entry point they had
historically been denied. In other words, the Democrats adopted a combination
method of selecting delegates, to the National Convention, a method, which allows
local as well as statewide preferences to translate into delegate selection. The method
is definitely complicated, but it has been hailed as the fairest way to select delegates,
who in turn will pledge to a certain presidential nominee. The Republican method is
much simpler, relying only on the results of the Texas primary.

Both parties’ national committees determine how many delegates each state will
send to the nominating convention. In 2008, the Democratic Party in Texas was
allocated 228 delegates, while Republicans sent 140 delegates to their National
Convention. The 228 Democratic delegates were chosen as follows:

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A total of 126 delegate positions (three-quarters of the base delegation) are
distributed to presidential candidates based on the results of the primary. The
proportional method is what determines the number of delegates the Democratic
candidates (Clinton, Obama, etc) receive of the 126 base delegates. For example if a
candidate received 60% of the vote in a state senatorial district, he or she received 60%
of the delegates from that district. Depending on voter turnout in the previous
presidential primary, between 4-8 delegates will be distributed to the nominees. In 2008,
Senate District 14 (most of Austin/Travis County) has the highest delegation, 8;
although the next largest counties (Harris and Bexar) determine a larger number of
delegates, they are split amongst several senatorial districts. 42 delegate positions
(one-quarter of the base delegation) will be distributed based on the number of people
attending the party’s conventions at the state senatorial district (there are 31 of these
districts in Texas, based on population). The delegates themselves will be elected at the
State Convention.

At the Democratic State Convention, the
remaining 60 delegates (the so-called “super
delegates”) and the 42 at-large delegates
described above are voted in by the Nominations
Committee. 25 of the super delegates are pledged
party and elected officials who qualify as super
delegates, while the 35 unpledged delegates are
set by national party rules as:

1. Members of the Democratic National Committee from Texas;
2. The former Speaker of the United State House of Representatives and the
former Chair of the Democratic National Committee; and
3. All Democratic Members of the United States House

At the time of this writing, much interest and speculation has been made about
Texas’ complex formula. Some observers have pointed out that depending on certain
factors, the Democrat winning the popular vote could actually garner fewer delegates
than the losing candidate! On a broader view, the 2008 Democratic primaries will serve
as a proving ground to either part with tradition, or to retain the basic purpose of the
super delegate, which was adopted after the bitter fight between Ted Kennedy and
Jimmy Carter for the Democratic nomination in 1980.

In 2008, the Republican Party of Texas has no similar complexity in its nominating
process. Basically, the method grants three delegates to candidates receiving a majority
of the votes cast in each United States congressional district (for a total of 96
delegates). The nominee winning at least 50% of the vote statewide was granted the
remaining 44 at-large delegates for a total of 140 delegates to the National Convention
in St. Paul Minnesota.

Two points should be emphasized here. First, the rules guiding the presidential
primaries tend to change frequently, subject to a number of politically important
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considerations (to enhance minority participation or perhaps “a favorite son”). Second,
the results of preference primaries in no way determine how many delegates the
candidate will actually receive, which may not be known until the national conventions
take place. The initial procedures simply indicate how many delegates a candidate is
entitled to receive.

Summary and Conclusions

Although elections held every two or four years produce hundreds of national
officials including the president and vice-president – there are no “national” elections.
Except where restricted or regulated by the United States Constitution and the Voting
Rights Act, voting and elections are state and local creatures. Voting and elections
reflect the political culture, the political history, and the demographics of these
governments. This is a very compelling and at times paradoxical aspect of American
politics because so much of what happens in Washington influences the states, and
who (or what) the states elect affects what happens in Washington. How different the
institution of voting in free and fair elections would be, were there no national
government. Or would there be free and fair elections in all fifty states? We must
attempt to analyze elections and voting in Texas, and to do so we must examine the
political landscape of the state and the forces which have shaped it, including of course,
the oft-criticized national government that has intervened throughout Texas’ 150 years
of electoral politics.

Federal interventions have created universal suffrage in all fifty states, and have
eliminated numerous barriers to voting. Federal intervention has made it easier to
register and vote, by initiating “motor-voter” registration, and working with state and
local party officials in ways such as federal election campaign donations. Federal
interventions also restrict campaign financing and donations by groups and individuals.
At the time of this writing, federal legislation is pending that will again attempt to clean
up campaign finance practices. Directly or indirectly, the national government has
affected the extension of the vote, the accessibility of the vote, the meaning of elections
(such as primaries), and the limits of campaigning. Why, then, do Americans fail to
participate more than any other industrial democracy, and even less so in some states?

The answers are many and complex, but they relate to the fact that voting and
elections is the product of each state’s political and cultural realities. As the august
former United States Speaker Thomas (Tip) O’Neill stated, “all politics is local politics.”
In Texas, voting and elections have distinctly reflected the state’s culture including the
enormous imprint of Reconstruction – which generated the state’s one party democratic
electoral system. In Texas, participation in electoral politics has been severely restricted
until recent times. Meaningful participation is still hampered in a number of ways, such
as the endless battle over how representative district lines should be drawn.

In addition to political and cultural traditions, voting and elections also reflect
economic interests in the Lone Star State. This is manifest in two ways. First, a person’s
socio-economic status provides a salient indicator of his or her electoral behavior.
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Political scientists Sidney Verba and Norman Nie cite the fact “that citizens of higher
social and economic status participate more in politics. This generalization holds true
whether one uses level of education, income, or occupation to measure social status.
This is also reinforced by Texas’ traditionalistic-individualistic political culture, which
reflects the economic superiority of organized special interests on electoral politics here.

Special interests have routinely dominated the electoral scene in Texas by recruiting
worthy (perhaps “receptive” would be a better term) candidates, assisting their
nominations through financial contributions, and mobilizing the voters to some extent.
These practices, which will be detailed in thing next chapter, have loomed large in
Texas because one-party systems are more susceptible to special interest activities; the
lack of competition (at least heretofore) reduces the role of the political party, which
opens the door for special interests. Instead of responding to the party and being
supported by it, candidates have basically been free to conduct their own campaigns,
beginning with a solid financial and political power base. Special interest politics
provides the candidates with a “launch pad,” along with a particular, narrowly defined
orientation instead of an overall ideological one.

And now the most important point of all: despite numerous drawbacks, electoral
politics appears to be on a path to reform (at least to some extent). Again, the coattail
effect of national politics will likely filter down to states such reforms as campaign
finance, professional lobbying and more broadly, a huge shift in the party system known
as realignment. These factors will likely produce even greater change. Depending on
how quickly and to what extent the actual reforms take place, changes such as a viable
third party, which would create a significantly stronger (and more functional) party
system, could result in greater participation. Much may or may not change in the near
future, depending on national trends and realities. Although Texas’ own electoral system
has evolved more in the last twenty years than any time before, voting and elections
remain underutilized and unrepresentative of the state’s massive and diverse
population. The results of November 2008 may hold surprises, not so much for the
results for national officeholders, but at the state and county level, as it should be, if
anything is true about “all politics is local”

References

Dahl, Robert A. Polyarchy (New Haven: Yale University Press, 1971)
Sandy L. Maisel, Parties and Elections in America, 2d Ed. (New York: McGraw-Hill,
1993)
Shaw v. Reno, 113 S. Ct. 2816, 125 L. Ed. 2d 511, 1993
Sydney Verba and Norman H. Nie, Participation in America (New York: Harper & Row,
1972)
Theodore Lowi and Benjamin Ginsberg, American Government, (New York: Norton,
1993)
Thomas R. Dye and Harmon Zeigler, The Irony of Democracy, 10th Ed (California:
Wadsworth, 1996)
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Tucker Gibson and Clay Robison, Government and Politics in the Lone Star State, 2d
Ed., (New Jersey: Prentice-Hall, 1995)
http://thehill.com/leading-the-news/internal-dem-memo-faults-party-message-2007-10-
26.html
http://vote.caltech.edu/media/documents/wps/vtp_wp57b
http://vote.caltech.edu/news/VTP_GlvstNws_8-07
http://www.tshaonline.org/about/index.html
http://www.txdemocrats.org/page/-/Convention08/howto08

Featured Links

http://www.sos.state.tx.us/elections/index.shtml
http://www.usdoj.gov/crt/voting/
http://www.votexas.org/

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http://thehill.com/leading-the-news/internal-dem-memo-faults-party-message-2007-10-26.html

http://thehill.com/leading-the-news/internal-dem-memo-faults-party-message-2007-10-26.html

http://vote.caltech.edu/media/documents/wps/vtp_wp57b

http://vote.caltech.edu/news/VTP_GlvstNws_8-07

http://www.tshaonline.org/about/index.html

http://www.txdemocrats.org/page/-/Convention08/howto08

http://www.sos.state.tx.us/elections/index.shtml

http://www.usdoj.gov/crt/voting/

http://www.votexas.org/

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Chapter 5
Political Parties in Government and State Politics

A party isn’t a fraternity. It isn’t something that you join because you like
the old school tie they wear. It is a gathering together of people who
basically share the same political philosophy… Ronald Reagan

We Democrats are all under one tent. In any other country we’d be five
splinter parties…Thomas P. “Tip” O’Neill

Like interest groups and elections themselves, political parties are institutions –
political institutions – which serve some role in shaping and carrying out the political
process. Parties also tend to reflect the history culture and orientations of the governed
(or the local area). Unlike the other institutions, political parties are distinct and defined
groups seeking much broader, far-reaching avenues of influence on government at all
levels. Parties are the true gatekeepers of the political process, as well as the system of
representation, in all democracies. In fact, it should be noted that next to elections,
democratic societies’ most important vital sign is the strength and competitiveness of its
political parties.

This chapter should rightfully begin with much needed definition and terminology,
since this chapter deals with a technically-challenged and at times, obscure topic. What
is a political party? At the top of this page is President Reagan’s description. However, it
falls a little short for academic purposes. For now,
Anthony Downs’ version should prove the most
simple and useful, that ‘a political party is a team of
men seeking to control the governing apparatus by
gaining office in a duly constituted election.” This
definition makes the clearest distinction between
parties and interest groups – that party “members”
focus predominately on winning and implicitly, to hold
public office. However, aren’t political parties vast
amorphous groups? What about the huge throngs on
display during a national convention? Of course,
these people do not want to hold office themselves. They represent one “leg” of the
party tripod, known as party organization. The other legs are party in government,
and party in the electorate.

Political scientist V.O. Key emphasized the important distinctions among party “legs.”
He explains how “the term ‘parry in the electorate’ refers to voters who generally align
themselves with a particular party, the party’s supporters at the polls. ‘Party
organization’ is the formal structure of the party, the elite that leads the party in election
campaigns. Finally, ‘party in government’ is composed of the individuals who serve in
the government as a result of having run on a party label, or having been appointed by
someone who ran on a party label.”

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Each of these distinct legs contribute to the whole meaning of political parties, and of
course, rely on each other for their existence. We will analyze the overall concept of
political parties, their traits, functions and history, while emphasizing the related
components of the party. To keep it simple, think along the lines of “who does what,” as
we learn about the party as a whole. For example, let’s go back to that national
convention scenario, as all three party legs are involved directly.

Stage One: Party in the electorate votes for presidential candidates in primary
elections, which results in

Stage Two: Sending delegates from each level of party organization – precinct,
county and state–to the national convention-where the candidate will be formally
nominated.

Stage Three: The candidate will then appeal to the party in the electorate to vote for
him, or her, and (if elected) begin forming the party in government.

That’s how the general idea of parties as gatekeepers is supposed to work. In a true
democracy, they more or less “transfer’ the popular will (of the people) into an actual
slate of candidates who, if elected, will, carry out the popular will by, virtue of the party’s
platform.

The party platform is simply the prioritized policy goals the party stands for during
that particular year. Both major parties, and occasionally a minor party, put forth their
goals in a very specific, finite matter in building the platform. More will be said about this
later, but for now it is very important to grasp this essential concept, that voters are
supposed to be signaling support for a distinct package of ideas–the platform-which
they generally favor over another platform. Imagine buying a computer system, or car
for that matter. The buyer signals which package of ideas (about a computer or car) he
or she prefers. There are many similarities between the packages, but something in
particular determines their actual choice. Believe it or not, parties and government are
capable of a similar expectation. Let’s now look at how party systems operate in other
democracies to better understand why American politics seems to fall short of the
computer analogy-by a long shot!

Political Parties – Comparing Traits & Characteristics

As stated elsewhere, understanding something is often made easier by
understanding what it is not. True, all political parties basically perform the same roles;
and all parties have component “legs” as described in the previous section. They differ
vastly, however, in the systematic application of the party’s characteristics, or traits. If
we were comparing computer systems, we would probably include the same basic
‘traits’ such as memory, speed, and the type of processor. With parties, the traits are
described as follows:

The basis or orientation of the party-meaning the goal, or ideal of the party
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The control, or discipline the party is able to exert over its members

The frequency or number of truly competitive parties in the system

Parties in America are distinct, and indeed unique when comparing the traits of other
party systems. At both the state and national levels, American parties are based on
political expediency, instead of ideology (basis) Next, they are decentralized, in that
control is divided between different levels of organization (local, state, national;
(control) and they are two-party as opposed to several, or multiparty systems
(frequency) Comparatively, other democracies are structured quite differently.

Table 7.1 illustrates the different traits, point for point. While the U. S. system is
centered on two major parties, other systems are known for highly functional multiparty
arrangements. Multi-party systems are based on ideology, which actually gives identity
and purpose to such parties, whereas American parties are focused on the glaring
realities of election, and subsequent re-election. Finally, multiparty systems retain
control over their members, and demand support and discipline; hence, they are
referred to as responsible party systems.

Conversely, American parties evolved as very loose-knit coalitions, where the
national level organizations wield no formal claim over state and local units. References
to other systems are valuable sources of understandings that are not often easy for a
student of American and state government, as our system lacks the simplicity of
multiparty democracies. One thing must be remembered, however, while observing
different systems or styles of government: what works is what is usually remembered
and retained. This is especially relevant to an understanding of Texas’ state and local
government, beginning with its “adaptive” political parties.

Two-party Systems

Since its inception America’s political party system has been dominated by two major
parties. Although challengers (usually referred to as third or minor parties) have often
fielded candidates and established platforms, none has ever achieved any real political
success. In the U.S., “political success” for a party means
to obtain a numerical advantage – a majority – in the
legislative body. It also means achieving success by
victory in any election. However, the most basic
characteristic of a party system is its presence and
function in the legislative institution; in other words,
how representation takes place most defines what
political parties are really all about, in any democracy and
at any level (national, state, or local). Representation
happens through the electoral process, of course, but
representation in the American system happens in a way
that accommodates two-party competition; that one
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person is the winner in a political contest, and that individual represents the district that
elected him or her.

This is known as the single-member, winner take-all method of electing officials,
described in the previous chapter. Essentially, the two-party system itself has molded
the functions American parties fulfill: to nominate candidates and win elections, and
subsequently to organize and “run” the government. These functions and other roles
performed by political parties will be discussed later in the chapter. To summarize the
systematic nature of parties, it is vitally important to observe the critical links between
two-partyism and electing officials, who then run the government by “representing” the
people who, by majority or plurality of votes cast, have elected them to public office.
Despite much criticism, the two-party system has persisted, largely due to these very
links.

“Coca-Cola: Political Parties”

Insight Questions: How is forming a government accomplished – by
rules/tradition, or by personal preferences of those in office (for example, a
governor)

Insight Questions: What is the difference between a majority and a plurality?

Background

The two major parties in the United States have experienced many challenges,
transitions, and adaptations; despite the turmoil, however/ they have basically retained
their shape to some extent. A thorough discussion of the roots of the major parties
(Republican-Democrats and Federalists) is not possible here, but it is important to
acknowledge the natural evolution of parties from what were originally two distinctly
different points of view. These disparate views immediately and instinctively translated
into competing demands on the newly formed government and the struggle has simply
continued to evolve in such a fashion.

We are culturally “used to” these different points of view which become identified,
with modifications, as belonging to one camp or the other. Perhaps we, as a society,
enjoy the simplicity of Us-versus-Them politics; furthermore, given that political
participation in America has been sketchy and in decline, perhaps two parties (two
choices) are all that the market will bear.

As stated above, the parties (Republican-Democrat became Democratic; Federalist
and Whigs were eventually replaced by the Republican Party) have had to adapt to
survive. In a system with only two parties, adapting means becoming increasingly
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appealing to an expanding American society-to assimilate a wider range of interests
(specific aspects of social, cultural, or economic preferences). By “appealing to more
sectors of society, the parties have tended to become less ideological, though they will
always exhibit a core set of beliefs and views about the relationship between people
and their government.

Political sociologist Max I. Skidmore describes ideology as “a form of thought that
presents a pattern of complex political ideas simply and in a manner that inspires action
to achieve certain goals.” The goals, in this definition are needs, wants, and demands
placed by people on their government. Like many words that convey complex ideas,
ideology tends to be overused or misapplied. For an understanding of government, one
must look to the roots of the definition-politics and goals-and observe how the parties
represent the different views about what (if anything) the government should be
concerned with.

After reviewing the differences between liberal and conservative orientations, one
may wonder why these terms are being described after our earlier reference that
American parties are not ideological! This contradiction is not surprising once simply
explained: liberalism and conservativism, as ideologies, have always existed to some
degree in the views and goals of our elected officials. The ideological orientation of the
parties borrows heavily, as does much of our governing structure, from the British model
where the Tory party represents conservative goals and Labor seeks liberal outcomes.
The problem is that two-party American politics elects its officials from single-member
districts (whereas the British system features multimember districts), meaning that only
one individual is elected per district, to represent that particular district’s citizens, or
constituents.

As a result, candidates attempting “to gain office in a duly constituted election” must
attempt to appeal to as many voters as possible in order to secure either a majority (50
percent plus one vote) or a plurality (the most votes) of the votes cast from that
particular district. This requirement bears directly upon the second trait of American
parties: they must be expedient to win, especially in districts that tend to have very
competitive political contests. In a nutshell, two-partyism by its very nature has
continually had to revise its membership to accompany growth and an ever-changing
ever-demanding society.

Political Expediency

Basically, the characteristic of expediency means that
American political parties must do whatever they can to
nominate qualified candidates and win elections. While
democracies in Europe and Japan are governed by
ideology-based parties, American parties are focused on
electoral success (election and subsequent re-election).
For simplicity’s sake, one might conclude that electoral
success guides the actions of American public officials,
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while ideology guides the actions of elected officials elsewhere. As stated earlier,
ideology does have a role in American politics-it basically gave rise to, and now
sustains, our two-party system. From that point on, however, the system has continually
had to conform to Americans truly diverse social setting, by attempting to satisfy many
different groups or sectors of the mass public.

Other democracies (especially Japan, Italy, and France) accommodate the needs
and ideological viewpoints of diverse groups through their multiparty systems. In other
words, parties form around specific ideological orientations, without regard to success
measured by mass appeal or “winning” elections. It is rather obvious how parties in
America attempt to include as many voters (instead of members) as possible-by
appealing to the “center” (sometimes referred to as mainstream America). This makes
sense, since the center is made up of many individuals and groups. The essence of
political expediency–mass appeal to individuals and groups, always planned in
conjunction with election cycles – may sound simple to the point of being cynical, but it
summarizes the will of two-partyism to survive. Exactly how a party incorporates
different groups has never been an exact science, but, instinctively, two-partyism
accommodates a very loose-knit coalition of voters. As long as a group can find some
significant identity in one party, versus less significant identity in the other, the group will
have no real choice but to vote for the more supportive party. This arrangement is easy
for the parties, as political scientist William J. Keefe explains:

The policy orientations of the parties are rarely so firmly fixed as to
preclude a shift in emphasis or direction to attract emerging interests
within the electorate. Moreover, each party is made up of officeholders
with different views. Almost any political group, as a result, can discover
some officials who share its values and predilections and who are
willing to represent its point of view. The adaptability of the parties and
the officeholders not only permits them to siphon off support that
otherwise might contribute to the development of third parties but also
creates a great deal of slack in the political system (emphasis added).
Groups pressing for change know that there is always some chance
that they can win acceptance for their position within the existing party
framework.

Additionally, as American voters have
become increasingly focused on candidates
positions on certain issues (instead of party
affiliation), it becomes even easier to appeal to
many groups, however diverse they may be in
the larger society. A successful candidate will
appeal, issue by issue, to as many groups as
possible, while alienating only a few. Another
tactic is to simply avoid (or remain precariously
neutral about) the most volatile, emotional
issues surd as abortion, gay rights, or school prayer.
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Does this mean that there is no real difference in American political parties? The
answer, especially in light of the explosive 1994 midterm and the 2000 presidential
elections, is a definite no. The astute observer will weigh the tactics of two-party
electoral politics and realize that, despite the few similarities, these are very separate
worlds. Campaigns are at times very bewildering and/or illusory; elections are not.
They produce new administrations, new government which will then begin pursuing a
distinct agenda. However lacking in their value to the average citizen, campaigns and
elections permanently affect the policies rendered by two competing sets of
policymakers at every level of government.

Decentralized

An understanding of this trait is like the all important puzzle piece which connects the
other pieces in some meaningful fashion. The meaning of de-centralized is fairly simple:
control of American parties is divided among the national, state, and local organizations.
This division appeals to our American sensibilities; after all, federalism (divided
government) is ingrained in American government, and is the only successful way to
govern a nation as large and diverse as the United States. Basically, decentralized
means each parry organization is independent of the others there is no meaningful
control mechanism (in a manner of speaking, there is no Party discipline).

This is unheard of in other democracies, whose parties demand strict discipline from
its members (hence the term party discipline). Party discipline means that members
tend to vote together as a bloc, and that power flows from the top of the party’s
organization to the lower elements. In other words, these parties are hierarchically
organized, while American parties are not. Party discipline is the key element to what is
referred to as responsible party government.

In other words, elected officials are responsible to, the citizens they represent in a
multiparty system and to the ideology of the party itself. It makes perfect sense because
citizens vote for the party, not the candidate, in multiparty systems. American
representatives, on the other hand, are responsible only to their districts’ citizens. When
faced with a choice between the wishes of the voters and the wishes of the party, the
former will almost always prevail. The parties recognize this; furthermore, there is no
real control mechanism to encourage party unity or to punish uncooperative party
members (see Figure 5.1).

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Figure 5.1 – The De-Centralized Nature of U.S. Political Parties

As Figure 5.1, suggests, the flow of information and/or resources in the American
system tends to be more or less “optional” and symbolic, whereas other systems are
characterized by compliance and group-reinforcing behavior. Why have American
parties evolved in such a manner?

As with so many other aspects of American politics, the influence of local culture
figures strongly in the development of a system. A high premium has always been
placed on the individuality of local governments, and the needs and demands of local
constituencies. This feature underscores the dispersion of power in the party system.

A pervasive spirit of localism dominates American politics and adds to the
decentralization of political power. Local interests find expression in national politics in
countless ways. Even the presidential nominating process may become critical for the
settlement of local and state political struggles.

Party
Chairs
National
Party
Committees

State Parties

Local Party Organizations:
County and Precinct

Resources:
Funds
Volunteers
Strategies
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Ultimately, parties in the United States, as well as in Texas, tend to be dominated by
local influence and tradition. This tendency is not unlikely, because local settings are
where the voters are – the individuals, families and groups who pay the taxes, who are
affected in countless ways by public policy, yet who often choose not to participate.
Often, the parties are to blame. The party system, itself does not impress upon the daily
lives of Texas citizens; however, it does perform a few critical functions, which most
certainly impact the lives of many, many Texans.

Functions

Regardless of the sophistry of the party’s methods or the extent of political
participation in any given region, a political party fulfills four distinct functions, at least to
some degree of effectiveness. The functions are:

1. To nominate and (hopefully) elect their candidates,
2. To identify and present issues,
3. To encourage and facilitate political participation, and
4. To organize and run the government (at the state or national level, as Texas
law prohibits partisan politics at the local level)

“Kinky Friedman: Save Your Vote for Kinky”

Nominate & Elect Candidates

Professor Walter Burnham once stated frankly that “parties are in charge of
governments to the extent that they win elections.” The link between parties and
elections, especially in America’s two-party (and one-party variations) system is easily
the most salient aspect of American “politics.” The word politics is emphasized here
because parties and elections represent the most political aspect of government here-
beginning with the nomination process.

The evolution of the primary election was discussed earlier in the text. However, the
role of the two-party system is more fully realized through the lens of primary tactics,
rules, and traditions. As described in the previous chapter, the goal of the direct
primary was to give voters a chance for greater participation, as well as access to the
political process. Since the 1920s, when basically all states had adopted the direct
primary, both parties have continued to revise the “rules” and other tactics to
accomplish two goals: to achieve
greater support from citizens, and to
achieve a distinct advantage over the
other party’s candidates.

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Political parties in Texas, as well as in other former one-party Democrat states, have
less influence over the primary field of candidates than do states with greater partisan
competition because parties tend to be weaker in these former one-party states. One
must not underestimate the lingering effects of one-party dominance, despite the fact
that the once “solid Southern” Democratic states are now dominated by Republican
officeholders. The venerated political scholar V. O. Key, in a series of propositions
about Southern one-partyness, described how:

Competitive party systems induce higher voting participation that
disorganized one-party systems, especially groups in lower
socioeconomic brackets whose interests are ignored if they do not vote.
Organized parties, by virtue of their systems of selection, socialization,
incentives, and constraints, do better than a disorganized politics in
producing candidates and public officials who are technically
competent, personally stable and trustworthy, and capable of working
with others to carry through long-term governmental programs.

Texas’ record as a one-party state reinforces Key’s views – competition had been
virtually non-existent in many parts of the state until the late 1970’s and early 80’s.
Although it appeared that a semblance of two-party competition was emerging through
the 1990’s, no clear evidence is available as we consider Texas’ party system in 2003.
For a brief period, roughly speaking between 1996-2002, it did appear that a Texas
version of two-party strength emerged, in a pattern that reflected certain “electoral
markets” or strongholds. In 1996, Republicans were in the Governor’s mansion, and
had one-seat majority in the state Senate. Democrats had a sizeable majority in the
House, and occupied some of the statewide executive posts such as Attorney General
and Lieutenant Governor.

What has emerged, by the 2006 midterm election is a pattern of one-party division,
based on the following determinants:

the district (especially Texas and U.S. House of Representatives)
the office or position (executive, judicial)
an “index” of characteristics (the Sweet Sixteen*)

Regardless of the cause, it should be emphasized that one-
party division is not same thing as a one-party system. The
pattern of division means that one party dominates in some
circumstances, while the other party wins in others. What causes
this? In Texas, it has typically been a pattern of electing
Democrats locally, and Republicans nationally (or at the
statewide level). During the 1990’s, Texans voted Republicans
into all six state offices (Governor, Lieutenant Governor, Attorney
General, Land Commissioner, Comptroller, Agriculture
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Commissioner) every year except 1990. Meanwhile, the Legislature remained largely
Democrat, as did local offices (County Commissioners, County Judge, Sheriff, District
Attorney, etc).

After the turn of the century, new dynamics sharply began influencing Texas pattern
of division. At present, we can conclude that redistricting (see chapters 6 & 8) is the
most obvious and formal factor, as it’s modus operandi is to determine the party of the
winning candidate in any given district. From that point on, however, let’s examine an
interesting pattern put forth by Texas Weekly journal, titled Sweet Sixteen, to account
for current trends in more detail.

What the pundits for the Weekly did is combine the factors listed above (i.e.,
legislative, which are from districts, and executive, those elected state-wide) to form an
index explaining the voter’s tendencies, based on 2004 and 2006 outcomes. Republican
“state-wides” win in districts where their legislators can’t hold on; Democrats win in
legislative districts where their statewide candidates can’t sell ice cream on hot days.

“We created what we called the Texas Weekly Index, averaging the
percentage results for statewide Republicans and Democrats in the last
two election cycles and subtracting the Republican average from the
Democratic average. We only included races that had a candidate from
each of those parties to avoid skewing the results with uncontested and
mildly contested races. That gives you an average margin of victory,
and we hoped, a snapshot of the partisan environment during those
elections in each of those districts.

We stumbled into something. Democrats running for statehouse seats
usually win in districts where statewide Republicans win, if the Texas
Weekly Index is under 16… Democrats won in a bunch of districts that
you’d suppose – based on what happened at the top of the ballot –
would have gone to the GOP”.

The index looks at the results of executive officeholders, whose names appear at
the top of the ballot (after national candidates like US Senators) and compares them to
results in districts where those candidates won a majority of votes. If the formula results
in a Texas Weekly Index of less than 16, the office was likely won by a Democrat.
Here’s a sample of the index, showing the district number on the left column (HD), and
the ballot position (rank). Blue indicates Democrats, and Republicans are in red…

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Both parties must continue to assert their identities, as well as their methods and
rhetoric. This may prove to be a bumpy ride, as public expectations and awareness are
magnified through media and other public advocacy efforts. Ultimately, party leaders as
well as Texas voters have much to gain with the advent of a highly competitive two-
party system, especially given the mood for change in an “anything is possible” era. The
leaders have an opportunity to further realignment within their respective parties; the
voters have a chance to improve the atmosphere around the soul of democratic
government political participation – which might be facilitated by a functional two-party
system.

Simplify Issues

Typically, political parties “simplify issues” by describing and prioritizing different
views about what the government should or should not do. While earlier American
parties tended toward expedient practices, ideological orientations are the root of the
disparate positions adopted by candidates in two-party America. The clearest example
of how parties simplify issues (meaningless “for” and “against” generalities do not
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qualify) is during the construction of the party platform. The platform then serves as a
blueprint for actions the party’s candidates will pursue if they gain office.

Although this simplification may sound beneficial to the electorate (potential voters),
issue simplification in a one-party system may tend to be oversimplification, that is,
stating campaign goals in a manner that will alienate as few voters as possible, instead
of sounding a finite view of the policy area. This, of course, adds to voter turn-off, which
means more “politics as usual.” In a competitive two-party setting. However, issue
orientation (usually based on ideology) and party loyalties are far more salient
measures of healthy electoral politics. V. O. Key explains:

Normally, a political party has its foundation in sectional, class, or group
interests. One party draws its strength principally from certain sectors of
the population another depends for its support on other groups within
the population however, discontinuity [inconsistency] of factions within
the party both confuses the electorate and reflects a failure to organize
the voters into groups of more or less like-minded citizens with
somewhat similar attitudes toward public policy”.

Rational voters want substantive options
which serve to reinforce identification with the
party “of choice.” In other words, although
multiparty systems offer the clearest opportunity
for Party identification, a competitive two-party
setting at least allows a more profound choice by
voters who identify the choice with the party, not
necessarily the candidate. This is not to imply that candidates in Texas do not differ in
their views and goals-they do. What has been and will continue to be (without a rigorous
overhaul of the party organizations) the major stumbling block to greater competition
and increased participation in Texas is the lack of clarity and resolve exhibited by
fractious, bewildering one-Party politics.

Organize the Electorate

In the past, parties have performed this function quite well, as they were the lynchpin
in the political process. Before the direct primary was adopted, the state’s parties chose
nominees as candidates for every office except the presidency. Political rallies, parades,
and other social events were usually party functions, and people (especially in the
Northeast and Midwest) flocked to participate. The parties’ work was not to mobilize the
electorate in general, but to run a system of favors and loyalties known as political
patronage, and keep participation away from certain groups in society.

Now, everything has changed, especially with regard to mobilization. A few major
hurdles stand to the fore, and have become more obvious with each electoral cycle.
First, to mobilize the modern electorate, parties need to know who their electorate is,
i.e., who is most likely to identify with and support that party (or its lead candidate). No
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surprise – money in campaigning has enormously affected the mobilization of voters.
Though money (recalling chapter 4) stems largely from interest groups and PACs,
Texas has never lacked elite, super-wealthy donors who tend to “network” throughout
state government circles. The following excerpt from the Houston Chronicle serves as a
milestone in the efficacy of well-financed campaigns, in terms of party success

“Just 48 wealthy Texas families paid more than half the cost of the key
campaigns that convinced 2.6 million voters to solidify the Republican
hold on state government in last month’s elections. A Houston
Chronicle study of campaign records found these wealthy few donated
$34 million of the $64 million used to finance top Republican state
campaigns. The donors are an elite group including oil and gas
producers, petrochemical industrialists, telecommunications executives,
and developers…”

Next, parties must compete and shuffle, so to speak, with interest groups and PAC’s
(political action committees), that are often far more resourced and focused toward
certain sectors of the electorate. Special interest endorsement and financial
contributions clearly have carved out an increasingly larger niche in Texas politics,
especially right-wing, social conservative interests. As described in the previous chapter
essays, direct mail and other sophisticated marketing techniques, along with
contributions and loans into the millions of dollars are successfully mobilizing a segment
of the electorate. It is precisely these reasons (especially the latter) which have, to the
preoccupied masses/ rendered the parties as somewhat archaic, hollow, and without
purpose. But the parties are the vital link between the electorate and those serving
public office. The parties are the gatekeepers; and despite the tendency for candidates
to reach out to “other” groups of voters, candidates run for office as a member of a party
which cannot, and will not represent every group equally once they’re in power.

“Political Action Committee = PAC”

Third, state level parties always feel the winds of national-
level political dynamics. Earlier versions of this text cite virulent,
anti-Clinton sentiment as a factor enabling Republican success
in Texas. Similarly, strong support for George W. Bush has built
on and solidified these dynamics – thus the “coattail effect”
long noted in American politics. These dynamics also affect
voters, whether it’s to cause them to actually vote, or to vote a
certain way. The following article from the Dallas Morning News
concisely explains the party line in the wake of 2002 midterm
elections:

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“What President Bush did and what the National Republican Senatorial
Committee did is to make sure that each of us had the resources we
needed to fight a good campaign.”
GOP Sen. John Cornyn on why he won

By fall of 2007, however, the winds have shifted as widespread controversy about
the Bush Administration’s decisions and policies have fractured Republican incumbents
and candidates to be. The 2006 midterm elections provided key examples of the effects:

Despite the fact that her son, Mark McClellan served as White House
spokesman from 2003-2006, Carole Keeton Strayhorn only garnered 18% of
the votes cast for Texas Governor. Strayhorn, with a long tenure as a
Republican officeholder, chose to run as an independent, instead of compete
against incumbent governor Rick Perry.
Political fallout from the demise of former U.S. House Speaker Tom DeLay (see
chapters 3 & 4), a staunch Bush ally, affected 5 redistricted U.S. House races,
and contributed to the victory of Democrat Nick Lampson in DeLay’s
(predominately Republican) District 19.
U.S. Senator Kay Bailey Hutchison (R-TX) has formally stated that she will not
run for a 4th term in 2012. Strong rumors have followed, that she will instead
run for Texas Governor in 2010, leaving her seat open if successful. U.S.
Senator John Cornyn faces a significant challenge to re-election in 2008, and is
similarly vulnerable to the swirl of sentiments in play during a presidential
election year.

Clearly, the stage is set at both national and state levels, for the sorting-out pattern,
which tends to be called re-alignment, or it’s alternative, de-alignment. Keep in mind
that these terms apply to the U.S. political system, as a whole. It is very useful,
however, to look for a similar sorting-out of the political system in Texas, to understand
the alignments between social, economic, and geographic divisions and party identity,
and then, between these alignments and specific parts of the government (legislative,
executive, etc.)

Running the Government

The fourth function of political parties is actually the
result of effectively performing the others. ln short, running
the government is the function of successful party politics
due to the structure of American democratic government.
The branches of government – legislative, executive and
judicial are influenced by majoritarian political forces. This
correlation is more clearly visible when one considers
national governmental institutions. The party of the
successful presidential candidate will “run” the executive
government, given the presidents’ broad authority to
appoint his administration. Furthermore, the party winning
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the most seats in the House of Representatives and the Senate is awarded “majority
party” status. The majority party retains privileges such as the speaker’s position in the
House of Representatives and chairships of all committees and subcommittees.

Ultimately, these powers and privileges enhance the party’s ability to run the
government, that is, to carry out its agenda. The agenda begins, of course, with the
adoption of the party’s platform during the national convention where presidential
nominees pledge their support of the party’s goals. Or, we may see pledges like the
Republican “Contract with America” being offered by congressional or national party
leaders.

These may seem like gimmicks, and an argument could easily be made that party
platforms and agendas are relics of previous eras. They are not, and understanding this
notion is probably the most challenging and abused corner of American politics. The
most recent and glaring example is the informal rule of thumb employed by a blizzard of
actions in the first year of the Bush Administration. The rule was something to the effect
of “A.B.C.” (Anything but Clinton) The agenda was to repeal or reverse many policies,
agreements, treaties, etc put in effect during the Bill Clinton regime, regardless of the
importance or relative success of such policies.

In Texas politics, the party’s governing role is much more obscure, due to several
key factors. The most overriding influence is cultural, i.e., the state’s strong conservative
tradition, which has always favored small, incremental steps in establishing direction
and change (if any). The next factor is structural, meaning that much of the state’s day
to day governing is bound by Federal spending guidelines, in that much of Texas’
budget is infused with Federal grants and/or mandates. Similar restrictions flow from
the Texas Constitution, as discussed in chapter 4 of this text.

Last, the state’s political history – the lack of a functional party system – explains the
reality of power circles in Texas government. As the 1990’s ushered in sweeping
changes, one-party dominance caused new dynamics to form, and old ones (economic
interests) to carry even more clout. Much more will be explained in the next section, as
we look at Texas’ government institutions. In summary, the political party’s role in
state governance can best be viewed as a vehicle for individuals to enter into
government office, by electoral success, or by appointment to office by an official of the
same party. Governing “agendas” are set largely by the state’s myriad of state
agencies, boards, and commissions, in response to the demands of special interest; the
iron triangle networks are explained in detail in chapters 3 and 7 of this text.

The 1990’s ran the table of party dynamics, in Texas as well as in the nations’
capital. In the early part of the decade, liberal Democrats, including the colorful, popular
Ann Richards as governor, swept five of the six state executive posts. Though no far-
reaching liberal agenda was pursued, the factional divide in the Democratic party began
to split broadly by 1994, when the national Republican presence wiped out Democratic
majorities in the U.S. House & Senate. Strong anti-Clinton sentiment, and the presence
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of viable candidates such as Kay Bailey Hutchison for U.S. Senator, and George W.
Bush for governor ushered in the Republican wave in Texas.

But would that mean a comprehensive set of political goals
– a platform – would emerge as a function of the party in
power? Attempts were made, especially by an electrified social
conservative element. However, from 1995-200, George W.
Bush’s hallmark style of bipartisan cooperation kept “running
the government” basically in the same patter it had always
been in Texas, with the exception of tort reform (shifting the
burden in legal responsibility), granting greater home rule
authority to school districts, and tax cuts for oil production. As
the Bush dynamic receded in early 2001, no policy agenda
emerged to take its place. In general, the past seven years
have mostly reflected national and international priorities,
combined with a distinct “hands-off” approach in most other policy areas. The priorities
set forth in fact by Governor Rick Perry, have mostly been to favor the private sector in
numerous ways. A significant number of taxpayer-funded initiatives such as the
Emerging Technology Fund, as well as “contracting out” ,or privatizing various
government activities have been the arc of the Perry administration.

Again, the question for this chapter of Texas government, is this an example of the
party in power “running the government”, or are individual officeholders narrowly
responding to other factors of influence? (More on this in Chapter 7) Are they paying
back campaign donors, political supporters, or even family members? Are they being
affected by other elements of government, federal power brokers, or international
business dynamics? To answer this question, we have to consider the nature of political
parties in American government. In some states, the parties are comparatively powerful,
and more unified. The elements of the party tripod are basically in sync with each other;
they reinforce each other in many ways.

Conversely, former and current one-party states like Texas are characterized by
weakness in the party identification and control of its members. The 2006 Governor’s
race is a good example where unified party control would have likely seated a different
officeholder. As it were, Carole Strayhorn and Kinky Friedman both ran as
independents, and split votes between Republicans and Democrats alike. What all this
means is that the success or failure of the party’s candidate has far more to do with the
individual campaign machines, instead of a competing set of ideas (platform) being put
forth by the party, to be carried out by the winning officeholder.

The parties’ ability to run the state government will continue to reflect a curious mist
of local, state and federal currents, combined with initiatives put forth by coalitions of
special interests. At the time of this writing, Texas politics has been positively injected
with energy flowing from the 2008 presidential race. Unlike in 2000, this year’s
dynamics have strong benefits for the Texas voter, taxpayer and student alike, in that
the focus on politics has ushered in education, awareness, and greater openness. Folks
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in Texas are feeling the responsibility of democracy, in a sense that there are clear
differences between candidates, and that choices make results.

Roots and Tradition:
Texas’ One-Party Past

All political systems reflect the culture that has formed and sustained them. It’s no
surprise that Texas’ distinct individualistic culture would impress a number of unique
wrinkles on the evolution of its political parties. These strong cultural patterns have, and
to some degree will continue to shape all aspects of the political landscape here. The
wise student of state and local government will, however, observe the historical settings
of other governments with a weather eye for changing skies.

Texas, along with the other states of the failed Confederacy, underwent enormous
upheaval following the Civil War. Although bitter feelings of defeat and humiliation
towards Union officials were not as strong here as in several other Southern states,
Texans nonetheless began their own brand of partisan loyalties in response, of course,
to the dreaded administration of Edmund Jackson (E.J.) Davis. The defeat and removal
(literally) of Davis represented the end of rule by despised Radical Republicans.

Obviously, this emotionally scarring experience would give rise to a tradition of
support for the Democratic Party, and (with few exceptions) support for Democratic
candidates of every stripe. Over one hundred years would pass before another
Republican would be elected as Texas’ governor – in 1978, Bill Clements defeated
liberal Democrat John Hill. Similarly, it was not until 1961 that a Republican, John
Tower, would a seat in the United States Senate.

What has this – one-party tradition meant for democracy in the states of the former
Confederacy? Does it mean that opposition does not exist in the electoral process, or in
the Legislature for that matter? By examining these questions, we shall uncover the
roots of any party system-political ideologies-that, at least heretofore, have been
accommodated by one-party systems.

“Texas Republican Party Platform 2006”

Ideologies and Factions

The purpose of this section is straightforward, to underscore the simplicity of
ideologies – complex systems of attitudes, beliefs, and values that play a huge role in
every government. Of course/ the discussion of ideology here is focused on its role in
Texas and American politics, in an effort to first examine the fundamental difference in
human realities with regard to the proper role of government, and then to project those
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differences to the assimilation of one-party factionalism, in a state heretofore bound by
tradition and status quo politics.

To better understand the basis of Texas’ one-party, factional past, we should first
examine the function sand distinctions of ideologies. Professor Skidmore offers this
explanation for ideology’s pervasive and compelling role:

…it offers rules of conduct, it defines roles in society, and it provides
identification with the group. An ideology helps evaluate, explain and
provide understanding by asserting answers to basic questions such as
these: What is the nature of human beings?…what is the nature of
society? What is the appropriate role of the state? What are the
appropriate property arrangements for a society? What methods are
appropriate to achieve political ends? Moreover, it is ideology that
supplies a rationale for existing institutions or for attempts to revise
them.

In other words, ideology points the business of living in. one of two polarized
directions: toward change (reform of the existing way, or order of government); or
toward the status quo (preservation of the existing order). These overall directions, not
surprisingly, are portrayed as “liberal” and “conservative,” respectively. From this
understanding, one can then begin generalizing about the nature of Texas’ party
orientations.

Chapter 2 detailed the “retrenchment and reform” basis for the Constitutional
Convention of 1875. We can deduce that reform was accomplished, as the existing
order was changed and a new one installed. That does not mean that the Grangers and
other convention delegates represented liberal ideology as we know it; instead, a
returning (retrenchment) to a basic form of governance was sought – after years of
turmoil and socio-political upheaval. From this point on, one party (Democratic) would
capture the loyalties of a vast majority of Texans.

The state grew, diversified and industrialized; times
changed, and the nation as a whole was transformed from a
Republican (Presidents Harding, Coolidge, Hoover),
freewheeling era into the New Deal of Franklin D. Roosevelt.
Consequently, new groups began emerging politically and
economically. The needs and demands from different sectors
of Texas’ population and economy became too much for one
party to represent, therefore, the Democratic Party split into
liberal and conservative factions. What do the factions
represent? Are they still present, given the recent transition into a two party state?
These questions need to be addressed before one can adequately view the politics of
Texas in (and beyond) the closing years of this decade.

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The liberal Democrat faction has been subordinate to the Conservative faction for
much of Texas’ post-Reconstruction history. For the most part, Liberal Democrats tend
to be more supportive of minority politics, civil rights issues, and public assistance/fiscal
redistribution programs. Liberals have enjoyed spotty electoral success during the one-
party era. As with many other aspects of party politics, national political trends/eras tend
to be reflected by partisan battles in the states.

With the stock market crash of 1929 and the subsequent Depression, the Republican
era came to a bitter end. Liberal Democrat Franklin D. Roosevelt was elected in 1932;
he carried Texas that year and in all three re-election bids. In the meantime, Liberal
Democrats in Texas were bolstered by the prevailing political mood, beginning with the
election of Liberal James Allred for governor, in 1934. By the mid-1940s, however, the
Conservative Democrats had retrenched in Texas politics, making their full comeback in
the landmark 1946 election for the governor’s mansion.

Not surprisingly, Conservatives continued to rule Texas convincingly until the late
1970s. In 1978, a year many consider to be a watershed moment in Texas’ party
landscape, Liberal John Hill defeated incumbent Dolph Briscoe as the Democratic
gubernatorial nominee. Although Hill, the former state attorney general, lost the general
election to Republican Bill Clements, his victory over a Conservative incumbent was
indeed a triumph. With Hill’s loss to Clements, the die of Texas party politics had been
cast, that is, the transition to two-partyism had begun, because Conservative Democrats
would rather switch than lose. Conservatives had waited patiently until the liberal wave
had passed during the 1930s; they did not jump ship to the Republican fold. In the
1930s the Republican presence was still very weak, and conservatives were used to
winning elections and running the political show in Texas.

By the late 1970s, conditions had changed indeed,
enough so that a Republican could gain control of the
Governor’s mansion for the first time in 10 years! During
the 1950s and 1970s, Texas had become diverse in its
population; with a steady influx of persons from other
states, of minorities, and an overall increase in younger
(les anti-Republican) people, the cleavage between a well-
developed liberal faction and a functional Republican-
Conservative Democratic coalition emerged. For the
liberals, the die was cast even further four years later, with
the election of Ann Richards as state treasurer, Jim
Hightower as commissioner of agriculture, Garry Mauro to the General Land Office, and
Jim Mattox as state attorney general. This election was a clean sweep of the state’s key
executive posts (except the governor) by Liberals for the first time in the state’s history.
In 1990, Ann Richards was elected governor after a notoriously hectic and colorful race
with conservative businessman Clayton Williams. Liberal Democrats continued to head
the state’s agencies, except for the Agriculture Department, which gained Republican
Rick Perry as commissioner. ln the meantime, the Republican presence continued its
gradual, but ever-growing pattern.
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Resurgent Republicans

Through many avenues and doors, the Republican party has slowly and strategically
kept a foothold on politics in Texas. The party went from symbolic importance to
functionally coalitional to full-fledged operations in a matter of twenty-five years. ln 1961,
Republican John Tower, a college professor from Wichita Falls, edged out seventy
rivals for the United States Senate post vacated by Lyndon Johnson (the new Vice
President). Interestingly, some scholars ‘attribute Tower’s victory as a function of Liberal
Democrats, that is, to plant the seeds of two-partyism in Texas. Political scientist
Chandler Davidson describes the scenario this way:

There is information to suggest that Liberal Democrats, in retaliation for
having been locked out of the power centers of their party and in
anticipation of an ideological realignment of the party system, supported
Tower in this election. Another scholar describes how ” the Texas
Observer, an influential liberal publication endorsed Tower with an
argument for a two-party system. How many liberals voted for Tower
will never be known, nor will it be known how many ‘went fishing”‘ wrote
Republican campaign consultant and author John R. Knaggs.”

Ultimately, the election and subsequent re-election of John
Tower proved the possibilities for Republican successes, and
breathed new life into the minority party. As more Republicans
were elected, the opportunity for greater power and presence
became obvious, if the party (as an organization) could
continue to mobilize the voters precinct by precinct. This feat
was possible because more Republican transplants (from
states with active political cultures) arrived here, especially
during the early and mid-1980s. Also, Conservative
Democrats began to formally “crossover” as the Liberal
presence in Austin continued to swell.

In keeping with this response, former Democratic Representative Phil Gramm
resigned his post in the Congress to run for the United States Senate, as a Republican.
Gramm, who left the House after being ostracized for supporting President Reagan’s
budget cuts, handily won the election to fill the seat vacated by John Tower. Nine years
later, former Treasurer Kay Bailey Hutchison defeated Bob Krueger in a special election
to fill the Senate seat vacated by Lloyd Bentsen (who served as President Clinton’s
secretary of the treasury until 1995). Hutchison was later indicted on three counts of
abuse of the Treasurer’s office, but never stood trial as a district judge dismissed the
case. Despite this, Hutchison easily defeated conservative Democrat Richard Fisher in
the 1994 general election, thus giving Texas two regularly elected Republican U.S.
Senators, in addition to a newly elected Republican governor.

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“Phill Gramm ‘We’re a Nation of Whiners’”

Regardless of the numerous factors influencing them, the past five elections (1998,
2000, 2002, 2004, 2006) have both validated and explained the nature of Republican
success in Texas politics, which is not to say in Texas governance. More will be stated
in the next section about shifting issue dynamics and the affect of various priorities
throughout the state, on outcomes in the 2008 elections. At present, it appears that
Republicans’ strengths/weaknesses are still defined by national and regional
momentum, in specific, attitudes about the Bush Administration, Iraq and other military
concerns, immigration/border security – which is increasingly divisive amongst
Republican officeholders, party activists, and voter support. Governing successfully
requires other skills, including leadership, compromise and the ability to administer the
most important functions of government, not just advancing the issues of select groups
or individuals.

Update 2008: Balancing Act, Or System Correction?

Several examples of how party identity, support and success or failure in the basic
function of winning elections have become clearer, following the 2006 general elections
and a spate of special elections and runoffs. First, the backlash against the blatant
gerrymandering of US House districts and certain Texas House districts indicates how
court-mandated maps tend to do just that – mandate election results. Or do they?
Perhaps re-forming districts allow a “correction” to what the districts’ voters prefer in the
first place. Former Congressman and Democratic Caucus Chair Martin Frost provided
this analysis in December 2006:

Against all odds, Texas Democrats picked up five seats in the Texas
House of Representatives (closing the Republican edge to only six
seats), swept every contested county-wide race in George Bush’s real
home county (Dallas), the second largest county in the state, won Tom
DeLay’s Congressional seat and forced another Republican
Congressman, Henry Bonilla, into a Dec. 12 run-off that he could lose.

This all happened in a state where everyone had declared the
Democrats dead and buried, and it happened because of the dogged
determination of the state Democratic Party, local Democrats local
Democrats in North Texas and the behind-the-scenes work of a little-
known entity, the Lone Star Project

Dallas, a long-time bastion of Republican power in Texas, has gradually
been becoming more Democratic in recent years as a result of
Republican white flight to the neighboring counties to the north, east
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and south. In 2004, Bush-Cheney only won Dallas County 51 percent to
49 percent. Democrats that year won the sheriff’s office and several
countywide judgeships. This year, the Democratic Party swept all 42
contested judicial positions (elected county-wide) and all five contested
county offices including county judge (the presiding officer of the county
commissioner’s court), district attorney, county clerk and county
treasurer.

These victories were put together by a carefully coordinated and
targeted get-out-the-vote effort which was run professionally and
funded by money from the state party, a local Democratic North Texas
PAC (TXVAC), the county party and local candidates. The Lone Star
Project helped recruit experienced political operatives to augment the
new strong party leadership in Dallas County and help construct a
winning campaign plan and insure that the coordinated campaign was
professionally managed.

The two Congressional races – the 22nd District (former DeLay district)
won by former Democratic Rep. Nick Lampson and the 23rd District
being contested by former Democratic Rep. Ciro Rodriguez in this
week’s runoff – are both extraordinary stories of perseverance.

Let’s also look at the changes between 2002 and 2006, in statewide party-in-
electorate terms, to complete our analysis of how the state’s political landscape is
changing. Earlier in this chapter, the Texas Weekly’s Index indicated the distribution of
legislative districts that tend to lean Republican, to lean Democrat, or are up for grabs
basically. The Index connects success for statewide candidates with likely success for
Republican representatives, based on voter turnout in those districts. The following
maps help to get an overall glimpse at these shifts in voter support based on the last
two contests for Texas Governor.

2002 General Election – Texas Governor

Map Key

> 40%
> 50%
> 60%
> 70%
> 80%
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http://www.uselectionatlas.org/RESULTS/IMAGES/key.gif

2006 General Election – Texas Governor

Map Key

Source: http://www.uselectionatlas.org/RESULTS/state

One can see that areas of Republican dominance have thinned, based on the
spread of areas colored pink, green, or light blue, while areas that have been strongly
Democrat have remained that way, or supported the Independent candidate Carole
Keeton Strayhorn. Given the patterns of population growth, it seems inevitable that
2008 elections will not favor more of the “same old, same old”.

In summary, party politics is far from being decided at this historic turning point; 2008
elections at all levels are showing increased rigor and clarity. The confluence of local
and national partisan factors which spawned the 1994 realignment are coming full
Candidate Party Total Votes % of Votes Cast
Rick Perry Republican 2,632,541 57.81%
Tony Sanchez Democratic 1,819,843 39.96%
Jeff Daiell Libertarian 66,717 1.47%
Rahul Mahajan Green 32,187 0.71
> 30%
> 40%
> 50%
> 60%
Candidate Party Total Votes % of Votes Cast
Rick Perry Republican 1,716,803 39.03%
Chris Bell Democratic 1,310,353 29.79%
Carole Keeton Strayhorn Independent 797,577 18.13%
Richard ‘Kinky’ Friedman Independent 546,869 12.43%
James Werner Libertarian 26,748 0.61%
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http://www.uselectionatlas.org/RESULTS/IMAGES/key.gif

http://www.uselectionatlas.org/RESULTS/state

circle, as things often do in American politics. In the Lone Star version, three
overlapping issues – Iraq/military deployment, immigration/border security, and
economic needs – are realigning party dynamics. America’s 2-party system has
remained, largely because it recognizes the need for pragmatism, for realities borne of
the parties’ control of electoral results.

As always, redistricting has also served to focus attention and produce a mixed bag
of results. This passage from Texas Weekly reflects the upcoming election year, in
terms what’s at stake:

For state government, it’s not shaping up to be the most exciting
election year. But the speakership is at stake in the House. If you’re
playing a long game, this is the first of two elections that’ll determine
who draws the redistricting maps for Texas after the 2010 census.

The Legislature that makes the first attempt at that will be elected using
the current maps. Republicans control both chambers now and it would
take something seismic to change the Senate from Red to Blue. But
House Republicans have lost ground in two straight elections, dropping
from a high of 88 seats to the current 79 (they can retain number 80 if
they win a special election in Fort Worth this month). They’ve got their
fingers in the dike, but a five-seat swing would give the two parties
exactly equal footing.

The 2010 election will determine who’s on the board that draws political
maps if, as happened in 2003, the Legislature locks up and can’t do it.
The Legislative Redistricting Board includes five officeholders:
lieutenant governor, speaker, attorney general, comptroller and land
commission. The GOP’s got all five of those.

What does all this mean to a student in a state government course? After all, hasn’t
Texas been moving along, weathering the hard economic times, growing and
developing? Why worry or care about belonging to or supporting one particular party?
The answers to such questions are only of value to those with a systemic understanding
of parties and democratic government. That’s where the student part is, after all. The
links between individuals, like Barack Obama, John McCain, Gov. Perry, Senator Kay
Hutchison, Texas Representative McClendon, etc, events, and institutions are the
system this text built around. The links are political, of course, but more importantly,
they form the flow of public policy.

Competitive political parties enhance participation and solidify the policy process by
representing demand – from the voter blocs, groups etc – and accountability and clarity
of results. With some degree of ideological orientation, with greater awareness of
choices between party positions, and with national trends reflecting a resurgence of
responsibility, the party system in Texas will gradually play a large role in shaping public
policy.
135

References

Chandler Davidson, Race and Class in Texas Politics (Princeton: Princeton Press,
1990)
David R. Mayhew, Why Did V.O. Key Draw Back from His Have-Not’s Claim? Milton C.
Cummings ed. (Washington DC: American political Science Association, 1988)
L. Sandy Maisel, Parties and Elections in American, 3rd Ed (New York: McGraw-Hill,
2000)
Max J. Skidmore, Ideologies: Politics in Action (Ft. Worth: Harcourt-Brace-Jovonovich,
1993)
Texas Weekly: Volume 24, Issue 12, 10 September 2007
Texas Weekly: Volume 24, Issue 24, 5 December 2007
Tucker Gibson and Clay Robison, Government and Politics in the Lone Star State, 2d
Ed., (New Jersey: Prentice-Hall, 1995)
Walter Dean Burnham, V.O. Key Jr., and the Study of Political Parties, Milton C.
Cummings, Ed. (Washington DC: American political Science Association, 1988)
William J. Keefe, Parties, Politics and Public Policy in America, 6th Ed. (Washington, DC
Congressional Quarterly Press, 1991)
William Maxwell and Ernest Crain, Texas Politics Today, 7th Ed (St. Paul: West,
1995)http://www.foxnews.com/story/0,2933,235935,00.html
http://www.uselectionatlas.org/RESULTS/state.php?year=2006&off=5&elect=0&fips=48
&f=0

Featured Links

Harris Poll Interactive:
http://www.harrisinteractive.com/NEWS/allnewsbydate.asp?NewsID=1278
Political Parties in America: http://reference.howstuffworks.com/political-parties-
american-encyclopedia-channel.htm
Republican Party of Texas: www.texasgop.org
Texas Democratic Party: www.txdemocrats.org

136

http://www.foxnews.com/story/0,2933,235935,00.html

http://www.uselectionatlas.org/RESULTS/state.php?year=2006&off=5&elect=0&fips=48&f=0

http://www.uselectionatlas.org/RESULTS/state.php?year=2006&off=5&elect=0&fips=48&f=0

http://www.harrisinteractive.com/NEWS/allnewsbydate.asp?NewsID=1278

http://reference.howstuffworks.com/political-parties-american-encyclopedia-channel.htm

http://reference.howstuffworks.com/political-parties-american-encyclopedia-channel.htm

Home

http://www.txdemocrats.org/

Chapter 6
The Texas Legislature

The Texas Legislature consists of 181 people who meet for 140 days
once every two years. This catastrophe has now occurred [eighty]
times…The Legislature is, among other things, the finest free
entertainment in Texas…but the Leggie is considerably more than a
motley collection of clowns, crooks, racists and fools. There have lived
and worked therein many men and women of honor and decency who
are committed to the people’s interest.

Much of what has been discussed heretofore has to do with the “supporting cast” of
Texas government. We will now begin looking at the institutions – governmental actors
contributing distinct and vital role to the public policy process. We will examine the
inherent purpose for each institution (the Legislature, the Executive and the Judiciary)
and critically examine how that purpose is carried out in Texas. In other words, we will
look at each institutional purpose, or essence, so that we acquire a sense of expectation
about:

Institutional Essentials

The Legislature: To represent a constituency a geographic district
The Executive: To provide leadership and responsibility; accountability
The Judiciary: To enforce laws and legal remedies

For students, learning about these institutions can prove to be a true challenge
because of the very nature of democratic politics. The challenge is learning and thus
knowing what is supposed to be, then become aware of the way it really is. In no way
should this seem odd, because we are dealing with human beings placed in public
office-being in positions of authority and power-and spending other people’s money.
Also, in no small way does it mean that nothing changes. All governments experience
cycles of challenges and success, failure and renewal. The goal of this chapter will be to
explain the legislative function of representation; to describe the strengths and
weaknesses of Texas’ unique lawmaking arena; and to focus on the critical challenges
facing this institution at the turn of the 21st Century.

Article IV, Section 4 of the United States Constitution guarantees “a republican form
of government” to every state. Clearly then, the idea of republicanism – that is,
democracy based on representation – was of such importance to the founders that it
warranted a constitutional guarantee. Representation is the cornerstone of democratic
governments, and is always the most salient, and/or critical indicator of any particular
government’s place in a particular society. It is no surprise that the representative
institution (a Congress or a Legislature) is placed before the others in their constitutions,
as well as in political science textbooks!

137

What does representation mean, and how does it occur? Are the men and women of
our Legislature in Austin and the Congress in Washington elected to represent a state,
a county, or the metropolitan areas? What about the hordes of lobbyists described in
Chapter 5? What about the interests of the representatives themselves, especially those
who are lawyers and business executives? Basically, all of these apply to
representation. We shall begin our discussion with the most basic and important link to
representation – the local or geographic district the legislator is elected to serve.

Redistricting: How, When, and Why All the Fuss?

In previous chapters, the electoral concept of district
representation was discussed in terms of how primary and
general elections produce a representative for each district in
the single-member, winner take-all method. In this chapter we
will examine the political and constitutional relevance of
districts from a legislative perspective. Representation was
intended, through the constitutional founding of American
government, to focus on local and regional consideration –
especially in the “lower chamber” (House of Representatives)
which are usually larger assemblies.

In order to accommodate numerous local issues. As a result, states have configured
themselves into districts of various numbers, depending on how many elective offices
require districts (unlike at-large elective offices, which represent an entire county or
state). For example, Texas has thirty-two United States Representatives, based on the
state’s population as of 2000; therefore, thirty-two United States Representative districts
were established to accommodate these offices. The United States Constitution is silent
on how districts would be established; naturally this function would be determined by
the state’s population and each state legislature. Each state would then establish its
own legislative system and the districts to accommodate the state houses of
representatives and senates.

The problem for representative government occurs, then, not because of districts but
in spite of them. In earlier chapters the tendency was for all things governmental to
become political depending on who’s involved, what the traditions are, and most of all
how much public awareness exists. Districting and redistricting are no exception.
Establishing district boundaries in such away as to enhance electoral victory dates back
to the early 1800s. This practice, known as gerrymandering, happens because it can,
i.e., those who stand to gain from the process are typically the same people who are
responsible for it. Article III of the Texas Constitution places this responsibility with the
Legislative Redistricting Board, who in concert with the Legislative Redistricting
Committee, establish redistricting “plans” after each decennial census.

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“Hightower in ‘The Big Guy:’ Gerrymandering Texas”

Gerrymandering occurs when various
populations, usually perceived as likely to support a
particular party or candidate, are “watered down” or
“diluted” in their numbers, in order to take away
their voting strength (their ability to elect a preferred
candidate). The opposition will create an advantage
by establishing a majority of their supporters in other
districts. Occasionally, a population will be
“concentrated” into one district, if the population is
too large to be diluted. What does all this mean?
What populations are subject to this practice?

Depending on the demographics of a particular state or region it is fairly easy to
determine which populations will support a particular political party. In urban areas, this
is especially visible, and highly prone to the science of gerrymandering. Certain portions
of Bexar, Dallas and Harris counties, for example, are considered Republican or
Democratic “enclaves,” depending on the demographics of the area, and voting results
from previous elections. Given Texas’ racial and ethnic diversify, however, the likelihood
that gerrymandering occurs based on race or ethnicity is both unavoidable AND highly
prone to legal considerations. Discrimination may be claimed by either side – Democrat
or Republican – depending on whose plan is adopted and the strength of the evidence
involved with the redistricting effort.

In other words, minorities have successfully cried foul in the past when district plans
violated portions of the federal Voting Rights Act (which include districting as a function
of affirmative action). Eventually, Republicans would use the same reasoning to bring
suit against districting plans-that is, that districts based on race or ethnicity are by
definition discriminatory. Either way, gerrymandering was rampant in the 1990s, and
has continually affected the outcomes of primaries and general elections. We shall first
discuss the net result of redistricting “wars” after the 1990 census, then look at the
results of re-districting in 2001 and conclude with the final results, evidenced in the 2006
Congressional elections. The focus for this discussion of redistricting is its effect on
representation, and legislative power (see Chapters 6 & 7, for other aspects of this
situation).

Evaluating the redistricting function and its effects on representation in the past two
decades is far more than political wrangling. It is a complex of functionality, economics
and beliefs about the raw power of electoral government more so than at any other time
in Texas’ political history. This can be attributed to a number of factors:

139

Growth, and the patterns of growth
Party realignment
Court rulings regarding affirmative action and redistricting

Growth – Are All Populations Equally Represented?

During the 1990’s, Texas’ population grew (Census-wise) from just under 17 million
to nearly 21 million, by 2000. Of course, that growth warranted two more seats in the
US House of Representatives. Growth and migration patterns, described in CH 3, in
general reflect a continued pattern of movement away from rural counties, and into
metro areas, specifically into suburbs or rural suburbs. The two new US House districts
reflect this pattern-but one can’t help but note where the new districts would be created.
Although a number of areas experienced rapid growth, especially in the Valley/Border
regions, the Federal, three-judge panel drawing the congressional map chose
otherwise. “One of the two new districts will be based entirely in Dallas County and take
portions of [former] Majority Leader Dick Armey’s current district. The other new district
will stretch from Houston’s western suburbs to areas north and east of Austin.
Republicans had hoped the new boundaries would allow them to gain more political
ground in rural areas of the state and Democrats wanted to secure at least one
predominantly Hispanic district. Neither happened.”

Why? The emerging centers of political and economic power in Texas appear to be
the high-property value suburbs ringing the state’s major cities…especially Austin,
Houston and Dallas. Although Collin County, north of Dallas, experienced the fastest
rate of growth, taken as a whole, the Border/Valley as homogenous region, experienced
greater population increase overall. Had Democrats been in the majority, the new
congressional map would likely have created a new district in the Valley. Conversely,
rural Republican areas took a back seat to the suburban enclaves – which may doom
any chance for meaningful changes to the congressional plan.

Party Realignments – Natural Selection or Redistricting Boondoggle?

Clearly Texas has transitioned from one-party Democrat to Republican dominance,
as explained in the previous chapter. Recall that party-in-electorate casts the votes, but
party-in-government means that viable candidates exist for the votes to be cast, and
that requires money, and organization. The results should, and indeed were reflected at
the polls – Republicans were successful. That’s fine for a casual observer, but for a
study of the topic, how do we evaluate the results? As discussed in the previous
chapter, the US party system doesn’t allow for proportional representation. We
can’t say that 65% of the votes cast were for Republicans, therefore, 65% of the
officeholders should be Republican. If this were true, there would be a number of Green
party state representatives, and possibly a Libertarian or two in the state senate.

What we do know is that in our system, changes in the party identity, or preference
of the voters will show at the polls – when all other elements of the electoral process are
“controlled”, that is, kept neutral. Again, we know from the previous chapters that
140

redistricting is the polar opposite of neutral, given that it is conducted by a handful of
political hard-liners in all three branches of government. Let’s look at the recent past for
insights on evaluating the results…

The article on the previous page explains however, an interesting perspective-the
difference between status quo and arbitrary or aggressive strategies. The Democratic
majority exercised control over redistricting in 1991, yet Republicans seeking court-
drawn districts actually gained strength in the Senate. By the mid-1990’s the rapid
growth of Republican support showed at the polls, yet another round of judicial relief
was sought in 1995 – again by playing the race card. Shouldn’t the voters in each
district not be the judge, or at least have their voting patterns or strength be respected?

Both Parties Carry the Torch – FOR JUDICIAL ACTIVISM

Throughout the 1990’s only one year – 1998 – was free of either primaries or general
elections (or both) being conducted under legally challenged redistricting maps. The
challenges came from both parties, and – no surprise here, just endless confusion –
with the same basis for the complaints. Democrats sued using the Voting Rights Act of
1965 in the earlier part of the decade. This basis was acknowledged by the US Justice
Department which…”objected to H.B. 150, citing the effect of the plan on Hispanic
voting strength in Bexar, Dallas, and El Paso counties and certain areas of South
Texas.”

Republican legal action was based on the 14th Amendment to the US Constitution,
citing race as the sole basis for determining districts. “Thomas v. Bush” was filed in
federal court challenging 13 senate districts and 54 house districts as unconstitutionally
racially gerrymandered. On September 15, 1995, the court ordered an agreed
settlement under which eight senate districts and 36 house districts were changed.”

Redistricting has been used by both parties and individuals, for both
questionable and worthwhile goals (racial/ethnic diversity), and has
survived many different legal renderings. What should be an
administrative function has tended to become a drama that is clearly
counter-productive. Some see the situation as simply the back-and-
forth of American politics, but others call for changes. Texas Senator
Jeff Wentworth has offered a bill to establish a redistricting commission
primarily comprised of private citizens, which would take the process
out of the hands of the Legislative Redistricting Committee and the
oligarchic Legislative Redistricting Board. Incidentally, Senator Wentworth has
introduced the same proposal during the past four legislative sessions.

The Texas Legislative Council posts the following acknowledgement of this
committee, and its constitutional purpose:

The Legislative Redistricting Board (LRB), composed of the lieutenant
governor, speaker of the house, attorney general, comptroller, and land
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commissioner, was created by constitutional amendment in 1951, at
least in part to provide legislators with an incentive to redistrict after
each federal decennial census. If the legislature fails to redistrict house
or senate districts during the first regular session following release of
the decennial census, Section 28, Article III, of the Texas Constitution
requires the board to meet within 90 days of the end of that regular
session and, within 60 days of convening, to adopt its own house or
senate plan to fill the void left by the legislature’s failure. The Legislative
Redistricting Board’s duty to redistrict is also invoked if a house or
senate plan passed by the legislature at that regular session is vetoed
or held invalid in court.

Let’s consider also the fact that in 2001, 4 of the 5 members of this committee were
Republicans, and all were officeholders with significant ambitions for higher office
and/or consolidating the power of their party. The results were predictable – highly
partisan maps which mostly changed the demographics of Texas’ house and senate
districts to the disadvantage of rural communities, and majority-minority Hispanic
strongholds. (The maps were based on the “Cornyn plan” referring to then-Attorney
General of Texas John Cornyn, who was elected to the US Senate in 2002) What
happened next? The U.S. Department of Justice requires redistricting plans to be
approved, or “pre-cleared” before being implemented for the next elections cycle
(primary and general elections in 2002). Not surprisingly, the Texas House of
Representatives plan (using every tactic available to defeat incumbent Democrats) was
not approved.

During the fall of 2001, the state senate districts drawn by the LRB were approved,
and upheld by a Federal District court. The House plan was eventually adjusted by the
US District Court for East Texas. After its implementation for 2002 primary and general
elections, redistricting resulted in a net gain of 16 House seats, and 3 Senate seats for
the Republicans. However, the results were not similar for the 32 races for U.S.
Representative (congressional districts). These districts were not redrawn by the
LRB, and the results were very telling – Democratic incumbents kept their majority, by a
slim 17-15 margin. The voters don’t always base votes on party identity, in our system,
thus name recognition or familiarity, satisfaction, or trust may determine the voter’s
choice.

This state of affairs would not satisfy the ambitions of several Republicans in power
roles, namely Governor Rick Perry, Texas House Speaker Tom Craddick, U.S. House
Majority Leader Tom DeLay, and significantly, Bush political advisor Karl Rove. After
securing a majority in the Texas House of Representatives, DeLay and Rove began
pressuring members of the 78th Legislature to redraw the 32 U.S. House districts, to
assure Republican gains in the U.S. Congress. Ironically Delay justified this goal by
referring to our non-existent “proportional representation” concept.

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“2003 Texas Redistricting and Tom DeLay”

Meanwhile Perry, who refused to call the legislature into a 30-day special session in
2001, in order to fulfill the redistricting process, began calling special sessions during
the summer of 2003, to force the congressional re-draw. The rest of the story is as
melodramatic as it is generally misunderstood. Here is the summary posted by the
Legislative Council, in the best manner of legal prose:

Lawsuits on Congressional Redistricting (2003 – 2006)

Ten lawsuits relating to congressional redistricting were filed in Texas in 2003.
Before passage of PLAN01374C, two state court actions relating generally to the duty of
elected lawmakers to attend legislative sessions and the state’s authority to compel their
attendance were filed: Van de Putte v. Dewhurst (Travis County District Court) and In re
Perry (Texas Supreme Court). Two federal court actions asserting various Voting Rights
Act and constitutional challenges to the redistricting process and to the state’s attempt
to compel attendance of absent legislators were also filed: Raymond v. State of Texas
and Barrientos v. State of Texas.

After the passage of the legislature’s congressional plan (PLAN01374C), four federal
court actions were filed in mid-October 2003, seeking relief against the plan:

1. GI Forum of Texas v. State of Texas and Perry
2. Session v. Perry
3. Jackson v. State of Texas
4. Session v. Perry

The U.S. District Court for the Eastern District of Texas heard the [Sessions] case
from December 11-23, 2003. On January 6, 2004, the federal court upheld the validity
of the congressional plan enacted by the Texas Legislature (PLAN01374C). Various
parties in the Session case appealed the district court’s decision to the Supreme Court
of the United States.

On October 18, 2004, the U.S. Supreme Court remanded the Texas congressional
redistricting plan (PLAN01374C) to the U.S. District Court for the Eastern District of
Texas for further consideration in light of the June 2004 supreme court ruling in Vieth v.
Jubelirer, the partisan gerrymandering case from Pennsylvania. The district court heard
oral arguments on January 25, 2005, and issued the opinion in the remand of Session
v. Perry, that they would “adhere to our earlier judgment that there is no basis for us to
declare the plan invalid.”

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On December 12, 2005, the U.S. Supreme Court scheduled a March 6, 2006,
hearing on the LULAC v. Perry challenge to Texas’ 2003 redrawing of congressional
districts. On June 28, 2006, the Supremes issued a decision finding that the district
court’s judgment was affirmed in part, reversed in part, and vacated in part, and
remanded the cases to the district court. The Court found that Congressional District 23
violated Section 2 of the Voting Rights Act and that the creation of a new District 25 did
not remedy the problem.

On August 3, 2006, the U.S. District Court for the Eastern District of Texas heard
oral arguments and on August 4, 2006, issued its opinion, order, and map
(PLAN01438C), which redrew five congressional districts (15, 21, 23, 25, and 28).
Elections for these five districts were held in a special election concurrent with the
general election on November 7, 2006.

Summary and Outlook

Despite three special sessions, two separate
“walk-outs” by Democrats in the state house and
senate in 2003, and innumerable legal filings, the
obsession over redistricting has ceased – six years
into the decade it was intended to serve. In the
mean time, Democrats have gained back 6 seats in
the state house, although Republicans gained one
seat in the senate. In the 5 congressional districts
ordered redrawn because of gerrymandering, 4
were won by the Democratic candidate. What about
the powers that be regarding all this drama?

Former congressman Tom DeLay lost to Democrat Nick Lampson in his Sugarland
house district, after resigning his post as the U.S. House Majority Leader in early 2006.
Karl Rove left the White House in 2007, after a series of investigations by a US Special
Prosecutor, regarding his role in a CIA-White House scandal. Tom Craddick is
technically still the Speaker of the Texas House of Representatives, but barely escaped
a call for his dismissal in May 2007 (more will be said about this in the next section of
this chapter) Finally, Gov. Rick Perry survived the 2006 gubernatorial race, against two
Independent candidates and Democrat Chris Bell – winning with 39% of the votes cast.
In late 2007, his endorsement of pro-choice, gay-rights and gun-control candidate
Rudolph Giuliani for Republican presidential nomination has the rumor mill churning.
Perry might not finish his term, if other opportunities beckon.

Of course, backlash in politics is natural, just like other cycles in business, sports,
and the weather. What is interesting is that the stakes get higher and higher, given the
amount of money circulating in and out of the states’ budget, and the number of people
and economic interests affected by political blitzing in the past six years. What is lost in
translation is continuity and buffering between the other dynamics at play in Texas.
Fortunately, solid cores of legislators from both parties have been shaping the present
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and near-term setting. In the Texas House, Democrats Patrick Rose of Dripping
Springs, Jim Dunham of Waco, and Garnet Coleman of Houston, and Republicans Pat
Haggerty of El Paso and Jim Keffer of Eastland, and Leticia Van de Putte and Jeff
Wentworth of San Antonio in the Texas Senate have been proactive and consistent in
providing leadership, while addressing significant statewide issues and serving their
districts as well.

Background and Structure

In 1875, the delegates to the Constitutional Convention sought to limit considerable
the scope and powers of state government; the founders certainly crafted the Texas
Legislature in this mold. It was widely believed that less government was best;
therefore, the Constitution on 1876 created the “amateur” legislature, which would meet
for five months out of every two years. Additionally, the Legislature would only be
subject to recall by the Texas Governor, for limited sessions determined by the
Governor.

Structure

Article III of the Texas Constitution describes the parameters of the Legislature
(terms, qualifications, powers, etc.). The Constitution created a bicameral (two
chambered, or two houses) legislature modeled after the United States Congress. The
lower chamber would be called the House of Representatives, and would consist of 150
members, while the upper chamber (always a smaller group) would be called the
Senate, and would consist of thirty-one members.

Bicameralism, by design, implies that the chambers shall differ in their nature (terms,
duties, methods, etc). For example, the Senate retains the duty of approving
gubernatorial appointments, while the House is the chamber where all revenue (tax)
bills must originate. Other distinctions shall be made later in this chapter.

Sessions

The state Legislature meets for no more than 140 days, beginning in January of odd-
numbered years, and ending by May 31st. This is known as the regular session.
Special sessions, mentioned above, can extend no longer than thirty consecutive days.
However, the governor may call as many special sessions as he or she desires. Directly
or indirectly, the brief regular session and unlimited frequency of special sessions have
shaped the culture of the legislature. This amateur, adaptive method of governing has
come under fire by political pundits; the criticism is certainly not limited to Texas. In a
comparative study of state governments, Professor Norman Luttbeg states:

Reformers recommend nearly full-year sessions to avoid the repeated
special sessions common in limited session’s states. They would
advocate commensurate salary increases, to provide a livelihood for
individuals who are exclusively legislators…Generally speaking,
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reformers would like the state legislatures to follow the path of
Congress as it became an active, professional, and high paying
legislature.

“Special Session:
Freshman Class”

The amateur, limited legislature
was designed for a primarily rural
state with an agrarian economy and
an individualistic, skeptical political
culture. It is fairly obvious that these
conditions are obsolete. Considering
the enormous growth and diversity in
both the population and the economy,
and given that the state has moved
beyond the one-party conservative
dominance, some reform of the
legislative structure seems inevitable.

During the late 1980s and 1990s,
calling the Legislature to special
sessions was increasingly popular.
Fox example, Governor Bill Clements
called a total of six special sessions
of the 70th Legislature (1989-1990)
and Governor Ann Richards called
total of four sessions during her
tenure 1991-94. Although special
sessions are theoretically unlimited,
the complexity of the issues they tend
to be called for (school finance, water
use, budgets, crime, etc.) and limited
funds render these sessions rather
impotent. During his tenure, George
W. Bush called no special sessions;
although midway through the 77th
term, some lawmakers indicated
support for calling a special session
to accomplish the redistricting
function.

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By the end of the 79th Legislative term in 2006, Gov. Perry has called a total of five
special sessions. Three were held during the 78th Legislature, as described earlier, to
force the congressional redistricting plan. The other two sessions were called after the
79th Legislature failed to adequately re-work the state school funding formula, which had
incurred a Texas Supreme Court order in September 2004. The state had to revise the
formula to relieve property tax burdens, in violation of the Texas Constitution, by
October 2005, or face mandatory school closings. Though the system was temporarily
adjusted, much of the reform is unclear and inadequate. Is it any surprise that 30-day
special sessions could accommodate such an enormous task?

These factors alone underscore the inadequacies of the existing legislative structure
rather clearly. Perhaps the continued growth of Texas’ economy and population will
provide incentive in the near term to begin considering a comprehensive legislative
overhaul.

Salary/Expenses

In keeping with the goal for a citizen legislature, lawmakers in Texas are offered a
pittance of a salary – $7,200 per annum. This amount was increased by constitutional
amendment in 1975, up from $4,100 per annum (Texas is one of the only six states with
constitutional control of legislators’ salaries). The legislators are authorized $85 per
diem expenses, and up to $25 for daily travel expenses. Of all the larger, more
populous states, Texas spends the least to compensate its lawmakers.

As state governments have faced unprecedented
demands – emergency management scenarios like
Hurricane Katrina and WMD (weapons of mass destruction)
terrorist events – legislatures have naturally been pressed
into service. The following table illustrates a new
classification for Texas’ legislature, which indicates a de
facto change in its “amateur” status. In other words, time
commitment for lawmakers has increased from a one-half, to
two-thirds spent for all aspects of their elective jobs.
Amongst other “two-thirds” states, Texas remains near the
bottom, second only to Alabama. The only other large state
in this group, Florida, pays its lawmakers four times more
than Texas – $30,000 per annum.

What this means is tellingly familiar. Though the increase in time spent
“representing” is obviously needed, the formal session has not increased from its 140
days per two-year term. Time means money, as the saying goes, and that’s the danger.
What has resulted is a piecemeal, and narrow pattern of involvement, empowering
special interests, and small cliques of lawmakers, including of course, the presiding
officers, committee chairs and those positioning themselves for power roles.

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Legislative ethics will be discussed more fully later in the chapter; for now, it is
sufficient to allow that most Texas legislators feel the lure of special interest politics
more keenly than their professional counterparts in other states of the United States
Congress. Analyzing the demographic profile of most Texas legislators will help to paint
a more robust picture, as will later discussions of ethics and clique-like relationships
known as “iron triangles”.

Qualifications

Formal qualifications are simply the requirements for service as a public official. As
stipulated in Article III of the state Constitution, to qualify for service as a Texas senator,
an individual must be twenty-six years old by the general elections date, mush have
resided in the represented district for one year, and must have been a registered voter
in the state of Texas for five years. Conversely, person serving in the House of
Representatives must be twenty-one years old, and must have been a registered voter
in Texas for two years. Representatives, like senators, must have resided in the district
they will represent for at least one year. Compared to other states, Texas qualifications
mirror the national average for state House members (twenty-one years of age), and
are slightly higher for state Senate members (twenty-five being the median age
nationally). Lastly, any conflict of dispute about the formal qualifications for office will be
resolved by the chamber, in determining who will actually be seated.

In contrast to these criteria, informal qualifications for prospective candidates exist
in an unwritten, though highly salient, manner. Informal qualifications (for any public
office) have more to do with personal and/or socio-economic qualities of the individual.
Personality traits such as communications skills and charisma certainly enhance the
candidate’s chances for success; however, these factors are incidental to the
individual’s socio-economic status (SES).

In other words, one must consider a variety of factors to adequately conclude which
attributes the “average” Texas legislator tends to possess. Political and social scientist
call these factors demographics, which include the above-mentioned socio-economic
status and other factors, such as age, gender, and religion. SES is a fairly accurate
measurement of any individual’s “status” in society, which includes the following
aspects: educational background, annual income, occupational field, and the prestige of
the occupational field.

Informal qualifications can be described by simply surveying the demographics for
the membership of the Legislature (over a period of years, of course), and drawing
some relatively obvious conclusions. Bearing in mind that the most fundamental
purpose of any legislative body (city councils, boards of trustees, Congress, etc.) is to
represent a constituency (citizens of a district), the student of government should
compare the demographics of his or her state with that of the legislative body – in this
case, the Texas Legislature.

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Gender

Not surprisingly, most Texas lawmakers are male. Without a lengthy discussion of
the political acculturation of the state, this point cannot be fully explained. Traditional
and cultural “habits” form for logical reasons, at an earlier era, and tend to persist.
Sociologist L.P. Hartley provides this insightful view about gender and politics, that “the
past is a foreign country…they do things differently there.” The following passage is a
clear reminder of the forces of cultural norms:

People coming of age in the 1940s, 1950s, and 1960, – that is, those people most
likely to be at the height of their political careers in the 1990s – would have developed
their political and social beliefs at a time when current feminist ideals stressing women’s
equality with men were hardly imagined by the average American citizen, male or
female.10

Given that the Legislature was exclusively male
until 1970, when Barbara Jordan and Frances
Farenthold were elected to the Texas Senate and
House of Representatives, respectively, the
number of women serving the Legislature was
sizably increased. Though the Legislature remains
predominately male, the 80th Legislature witnessed
an unprecedented number of women in the
Legislature, thirty-three in the House, and four in
the Senate. Also, women were named as chair or
vice-chair to 12 House Committees, and 5 Senate
committees (including one Joint Committee) The appointments were to some of the
most powerful committees, including Education, Higher Education, Heath & Human
Services, Business & Industry and procedural committees such as Calendars and
House Rules.

Race, Ethnicity and Party Identification

Currently, twenty-three, or around 71 percent of the Senate are Anglos, seven are
Hispanic, and two are African-American. The House, however, is much more reflective
of the state demographics; fourteen members are African-American. The House,
however, is much more reflective of the state demographics; fourteen members are
African-American, thirty Hispanics and 105 Anglos comprise the 77th Legislature. There
is one Asian-American but not Native Americans in the current Legislature, although
together they account for approximately 5 percent of the population (around 600,000
people).

Thirty-five years ago, the 57th Texas Legislature was comprised entirely of
Democratic lawmakers. As stated in the previous chapter, the ration of Democrats to
Republicans has continuously dropped, compared to the 62nd and 71st Legislatures. The
Senate has experience the most drastic shift, from one Republican in 1971 to fourteen
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in 1995 and ultimately established a majority of sixteen by 1977, whereas the House
has a larger Democratic majority – seventy-eight Democrats to seventy-two
Republicans.

Party identification (ID), when combined with race and gender distinctions, allows
interesting conclusions on affiliation. For example, in the Texas Senate, all seven
Hispanic members are Democrats, but party ID and gender seem to have less obvious
correlations – two female Senators are Republican and two are Democrats. Regarding
party ID and ethnicity, the Texas House membership has noticeably shifted since the
Republican coup in 2002. At present, all African-American and Hispanic rep’s of both
genders are Democrats; of the female house members, 13 are Republican (down from
20 in ’02) and 20 are Democrats. In conclusion, it appears that the House is far more
reflective of the current political winds, while the Senate reflects a more stable and
incumbent-favored environment.

Socio-Economic Status (SES)

As of 1985 (the 69th Legislature), the Texas Senate had no members who were not
either lawyers or businessmen. About 75 percent of the House members belonged to
these occupational fields; a handful of educators, realtors, ranchers, and four individuals
who were solely legislators completed the occupational range of Texas lawmakers.
Since then, business and legal profession continue to dominate as the careers of choice
– for good reasons.

First, these are professions that afford a degree of flexibility in schedules. Most
professions do not accommodate the lengthy absences required for legislative sessions
and associated duties. Second, individuals in these occupations tend to have fairly well
developed networks of influence and cooperation, which bodes well for both
campaigning and service in office. The third and most discomforting reality is that these
professions often have a large stake in the shaping of legislative acts.

The term “lawyer-legislator” is a topic of many ethical doubts, but a remarkably
effective way to serve a clientele on a number of fronts (please note the use of the term
“clientele” instead of constituency). What does all this mean? To understand the
nuances of lawyer-legislator, we must first introduce a few terms.

Many lawyer-legislators are on retainerships from their clients,
whether the client is an individual or a corporation. Retainers are fees
paid to legal counsel for services, usually on a year-round basis.
Hence, a fine line emerges where the counsel (advice) of the lawyer
stops and the influence of the legislator begins. In other words, it is
one thing to give legal counsel to a client about new or existing state
laws or regulations. It is vastly another for the legislator to “represent”
his/her clients by influencing the writing and outcome of bills, which
may affect thousands or millions of Texans. In effect, then, the
lawyer-legislator acts as a lobbyist, toward him or herself.
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Using access to public office for one’s personal gain is illegal under most
circumstances, but the hazy quality or retainership, and a situation known as the
revolving door are legal, though highly cynical, aspects of public service. Revolving
doors are basically the implied promise of future (usually very lucrative) employment
with a corporation whom the legislator “took care of” while in office, and who will
continue to benefit from the ex-legislator’s contacts and insight. This concept will be
explained further in the follow chapter, as it also pertains to state bureaucrats and
executives.

Ultimately, unless the amateur legislature is replaced by a full-time, professional one,
these questionable practices will continue to thrive in and around Texas government. A
full-time, appropriately compensated body, however, would open the door to individuals
across the range of professions, and reduce the influence of special-interest lobbyists.

Organization and Leadership

The manner in which a legislative body is organized says a great deal about the flow
of power and resources, both within the body itself, and in the larger society in general.
Regarding the chaos we often associate with legislators at every level of government,
one might conclude that there is no organization! (Perhaps that is because the media
tend to focus on arguments, tirades, rhetoric, and other “hype” behaviors).

One must bear in mind that conflict, debate, and relative chaos are natural by-
products of a representative body; it is vital to the sense of legitimate representation,
especially in a large, diverse place like Texas. Furthermore, there is indeed
organization, both formally and informally crafted. Legislative bodies are bound by rules
and parliamentary procedures – the traditional and ritualized method of
accommodating an exchange of views or the crafting of legislation.

The individuals empowered to control the procedures and organizations of the Texas
Legislature are called the presiding officers. The Legislature is organized through a
division of labor and expertise known as the committee system. We will discuss the
committee system first, because understanding this system will allow a more meaningful
discussion of the presiding officer’s leadership.

The Committee System

Even a casual observer of any organization – a hospital, a department store, or the
Congress – knows that each contains some method or arrangement of products and/or
services. The Texas Legislature, like the Congress, is divided into committees for two
major reasons. First, committees distribute the legislative workload to accommodate the
vast number of bills and resolutions that are introduced each session (usually around
4,500-5,000 per session). Second, this “division of labor” allows a division of expertise
crucial to the legislative process.

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In other words, the committees are based on different areas of public policy, by the
subject matter of a proposed bill. These committees are called substantive
committees, and they do the business of lawmaking. Other committees, known as
procedural committees, are formed to deal with the organization and functions of the
chamber itself. Together, these types of committees are referred to as standing
committees, which simply means that they are permanent; they remain in effect
throughout the legislative session.

The committee system includes other types of committees, which are not
permanently established; they are temporary by design. They are interim, ad hoc, and
conference committees (See Table 8.3). Interim committees are exactly what their
name implies – they are formed to study a certain policy area or specific issued
between legislative sessions. Ad hoc committees are appointed to reconcile the
difference between the House and Senate versions of the same bill. Conference
committees play a critical role in the legislative process, and will be detailed later in this
chapter.

Table 8.3. Summary of Committee Types

I. Standing Committees:
Substantive Committees (having jurisdiction over specific policy areas)
Procedural Committees (having jurisdiction over Legislative operations,
rules and administration

II. Temporary Committees:
Interim Committees (between sessions)
AD Hoc Committees (titled special in the House, select in the Senate)
Conference Committees

III. Subcommittees:
Theses committees vary from session to session, since they are formed at the
discretion of a committee chair. There are not subcommittees in the House of
Representatives and two subcommittees in the Senate during the 77th session.

Presiding Officers

Each chamber has its own presiding officer, though they are chosen in different
ways. The House of Representatives is led by the speaker of the Texas House; the
leader of the Senate is the state’s Lieutenant Governor. By most accounts, these
individuals are (if the governor is relatively weak) the two powerhouses of government;
their influence and favor are courted rigorously by the private sector and other elite
pockets of Texas society. What must be remembered throughout the remainder of this
chapter, and with any consideration of state government, is that the powers these
individuals wield are granted to them by the membership of each chamber – and for
good reason.
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The Speaker of the House is chosen by the entire membership of the House of
Representatives. The election of the speaker is usually the first accomplishment of a
new legislature; often, however, the choice has already been made (when the
incumbent speaker wants to retain his/her post). Regardless of whether the contest is to
elect a new speaker or to re-elect the incumbent, the vote is done “for the record” – by
an open vote, – which means, of course that the victor knows exactly who supported
him or her.

Heretofore, this practice, although subject to much criticism, has accommodated
power-concentration “networks” that strongly characterize the Texas House. Observers
of politics may conjure the “good-old-boy” stereotype from this practice, although that
term is not quite accurate. As stated above, the House members themselves agree to
this rule. Why continue to orient the legislative structure this way?

Since its inception, the Texas House has traditionally been dominated by
conservative Democrats. As with many organizations, there exists a natural tendency to
seek the status quo, or to “clone” the organization (especially its leadership structure), in
an effort to institutionalize its power and permanence. By choosing the Speaker openly,
the House has adopted an effective, if somewhat dramatic, method of establishing a
power/loyalty pattern that will flow through all aspects of the legislative function. The
power network also accommodates the brief legislative session. Political scientist Neal
Tennahill, in a comparative sense, stated how “…the [Texas] legislature still out-
performs Congress, where power is relatively decentralized. Today’s Congress should
accomplish nothing in 140 days.” 11

Texas speakers of the House become the focal point of various sources of influence
and loyalty. Within the House itself, they immediately establish a “team” of key
supporters, to each of whom the speaker “owes one” for the role in the election. From
that point on, the network develops, that is, those in the private sector who seek
influence from, and who influence, the Legislature. As we examine the actual duties and
functions of the legislature (starting with the presiding officers), the network will become
much easier to recognize and evaluate. Also, an examination of the current leadership
structure will reiterate the blunt and divisive redistricting function.

The current House Speaker is Tom Craddick
(Republican) of Midland. Craddick replaced James E.
“Pete” Laney, a conservative Democrat from Hale Center.
Laney served four terms as speaker, 1993-2002; he may
have kept his post but for the shifting dynamics of partisan
power, and the lack of formal rules regarding party
organization in both chambers of the Texas Legislature.

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“Texas’ House Speaker”

It can’t be emphasized enough that current, post-2002 Republican cabal represents
another defining moment in Texas’ colorful political history. This one is unique however,
in comparison, in the remarkable absence of true leadership – all other factors being
equal. For the past century and a half, leadership (especially in the House) has been
characterized by informal attributes, rather than formally established ones. Most
speakers have been conservative Democrats, given the one-party situation, who were
skillful in forming consensus between the factions (diverse groups) in the Texas House
of Representatives. Though the number of Republican members increased, the House
held the same basic characteristics in its liberal-conservative spectrum of issues and
goals. Thus, Rep. Laney fit comfortably into the role as consensus-builder-a trait
reflected by the legendary Lt. Governor Bob Bullock, as well as Gov. George W. Bush.
The trio created a bi-partisan, consensual political dynamic for five years, culminating in
Bush’s run for the presidency. Enter now a new era, bringing conflict and opportunity,
and change.

Insights: The Embattled House Speaker, 2007

After securing his post as House Speaker, Tom Craddick aggressively revamped the
culture of the state house, along the lines of his colleague in the U.S. House, Tom
Delay. Craddick first realigned the House chairships, by taking advantage of a rule
removing seniority as a factor in assigning members to the powerful Appropriations
Committee. It wouldn’t be the last rule Craddick would wrangle to enhance his power
and authoritarian style. Next, he helped move the redistricting ball forward throughout
the 2003 special session nightmare, while using private sector/special interest
contributions to his advantage. For example, the Travis County investigation into
campaign finance and money laundering charges in 2005 also “inched toward Texas
House Speaker Tom Craddick, R-Midland.

…Craddick was not indicted, but it was disclosed for the first time that
he accepted a $100,000 corporate check on behalf of the Republican
political action committee from a nursing home alliance that was
indicted. Craddick’s lawyer, Roy Minton, confirmed that his client
accepted the check, even as John Colyandro, the PAC’s former
executive director, was indicted for collecting the same check.

Minton said he didn’t agree with the indictments and didn’t think the
speaker ultimately would be indicted. “Tom has been handed millions of
dollars in checks just like (former Speaker) Pete Laney has,” Minton
said. “If that’s a crime, we are a little late deciding that. If they are going
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to decide that’s a crime, they ought to be indicting 15,000 or 20,000
people.”

The 79th Legislature came and went with no resolution on school funding and
property tax reform, but that wasn’t a priority for the House leadership after all. Instead,
two special sessions would pass during summer 2005, mostly to accomplish other
items. The following summary explains how…

“it’s been three weeks since the session took a tumble off the Ugly Tree
when the House revolted against the Speaker. It became clear then
that the House couldn’t pass a property tax cut bill. That effectively
ended the special session. But Gov. Rick Perry and Lt Gov. David
Dewhurst insisted on pushing ahead (in part, we suspect, so they could
pass the SBC/telecom bill). Relations between the House and Senate
got so bad that neither chamber wanted to adjourn until the final day of
the session for fear of incurring blame for the failure. Instead they
pathetically waited until the session expired, wasting tens of thousands
in taxpayer funds in the process. Whatever happened to fiscal
conservatism? Here’s a further accounting of the two special sessions
(with apologies to MasterCard’s ad agency):

Days in session: 60

Added cost to taxpayers: More than $3 million

Bills passed: 5, by our count (wind power, TEA budget part II,
eminent domain, judicial pay raise, and telecom).

B-movie analogies circulating the Capitol: 2, “Groundhog Day” and
“Weekend at Bernie’s”

Filibusters: 2

School finance bills passed: 0

Making the state’s leadership look incompetent: Priceless (16)

The article underscores the large cracks
beginning to open in the current leadership,
including Gov. Perry. A mere trace of consensus on
the school/tax reform issue was nowhere in sight,
while other factors gathered momentum. The level of
discontent within the House, the corruption
investigation against his contemporaries, and
negative opinions regarding Bush/Delay cronyism
propelled the Speakers’ future into a black box of
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unknowns. More will be explained in the next chapter, regarding the outcome of the
attempted ouster. Regardless, the Speaker issue has strongly galvanized the state
House for wholesale change, whether that means a party realignment, or simply a
change of personnel in general, is not clear at present. Meanwhile the other presiding
officer, Lt. Gov. David Dewhurst, has a different realm, but not without issues to claim.

The Lieutenant Governor controls his/her Senate somewhat differently from the
Speaker of the House. First, the Senate is much smaller, the terms twice as long, and
the general mood of the institution more deliberate. Secondly, the Lieutenant Governor
is not chosen by the state senators; he or she is elected by the voters of Texas to serve
a four-year term. The result of this combination is power – coming from two sources.
Since the Lieutenant Governor is elected “at large”, he or she has a power base from
voters throughout the state. The position also derives power from the Senate – that is,
the formal and informal powers bestowed to the office itself. No other public office can
boast such a combination, hence, may view a successful lieutenant governor as the
most powerful public office in Texas.

As the title suggests, the Lieutenant Governor of Texas is
second in command, behind the Governor, as the state’s
chief executive. In the event of the death, resignation, or
removal of the Governor, the Lieutenant Governor would
fulfill the remained of the governor’s term, and would
necessarily have to appoint his own successor. Otherwise,
the Lieutenant Governor’s sole focus is to preside over the
Texas Senate. Comparatively speaking, the position is not
analogous to the Vice President of the United States, since
that individual presides over the Senate only in theory
(usually entering the Senate building only to cast a deciding
vote in case of a tie). The Lieutenant Governor is David Dewhurst, the former Land
Commissioner. Dewhurst, a businessman from Houston won a close race for the
Lieutenant governorship in November 2002, defeating Democratic former comptroller
John Sharp. The new Lt. Governor assumed the helm of a state senate characterized
by seniority, consensus and bi-partisan deliberation – a very self-controlled a collegial
chamber, regardless of the party ID of its members.

With just four-years in a state-level government at the low-visibility Land Office,
Dewhurst was considered a political lightweight by many observers. Stepping into the
most powerful post in Texas, Dewhurst seemingly took the approach of his
predecessors – Lieutenant Governors Bob Bullock (1991-1998) and Bill Hobby (1973-
1990) – who exemplified the role of Texas’ “lite” governor as conservative, effective and
flexible leaders who were able to hammer out consensus. Theirs are truly big boots to
fill. Thus, the new Lt. Governor began the 78th establishing individual relationships with
the senators, promoting collegiality and consensus – which resulted in a unanimous
vote for his school finance reform bill. Unfortunately, the goodwill was soon lost when
Dewhurst parted with a prized Senate tradition, the 2/3rds rule, during 2003 special
sessions for redistricting.
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From that point, the Lt. Governor has mostly been an advocate of get-along, and
move-along, but without making momentum and difficult decisions either. The following
item depicts the selectivity Dewhurst has refined to art form:

Profile in Statesmanship

Once upon a time, Texas Lt. Governor David Dewhurst seemed the
only member of the Republican triumvirate running the show in Austin
who cared about bipartisanship and cooperation. In contrast to
Governor Rick Perry and Texas House Speaker Tom Craddick,
Dewhurst embraced the collegial tradition of the Texas Senate during
his first two legislative sessions by seeking compromise and preserving
the rules (with one big exception on redistricting, courtesy of some
serious strong-arming by Tom DeLay.)

The “two-thirds” rule is an important Senate tradition that has protected
the minority party for decades. It in effect requires a two-thirds vote of
the body to suspend the rules and consider each bill. Republicans
currently hold a 20 to 11 advantage in the Senate, one short of the
required two-thirds majority. Dewhurst has been under tremendous
pressure from GOP activists to break with tradition and do away with
the two-thirds rule and ease passage of the party’s legislative agenda.
Dewhurst, to his credit, has largely resisted, which has put him on less
than solid footing with his party’s conservative base.

This session, however, it’s been a different David Dewhurst. He is
clearly interested in a 2010 gubernatorial run, and much of his behavior
during the 2007 session seems colored by that ambition. For one thing,
Dewhurst has been obsessed with passing Jessica’s Law – a perhaps
well-intentioned, but poorly crafted piece of legislation aimed at
executing child sex predators. Prosecutors and criminal experts have
decried the bill’s potential to reduce reporting of such heinous crimes,
most of which are committed by family members, but no matter.
Dewhurst must have his Jessica’s Law. His tactics on CHIP, the Texas
Youth Commission scandal, and recently trying to snuff Houston Mayor
Bill White’s (another potential 2010 rival) anti-pollution policy have
shown him a much harsher partisan light.

More will be said about the historical patterns of the presiding officers, as well as the
current leadership, as we progress. For now, let us discuss the formal and informal
powers of the presiding officers, on the whole, because that is the nature of political
organization. Functionally, Lieutenant Governor Dewhurst has more in common with
House Speaker Craddick than he does with rank-and –file Senator, because they are
“the leadership” (along with committee chairs, and on a different level, the Governor).

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Powers of the Presiding Officers

To describe meaningfully the powers vested in the legislative leaders, it is important
to classify different types of powers. Incidentally, the same classifications are used to
describe other officials, such as the president, the governor, and the attorney general.
The first distinction we will discuss is that of formal versus informal power.

Informal powers, like informal qualifications, are those intangibles that enhance the
official’s formal powers and increase the likelihood for successful results. These powers
have more to do with the individual’s personal attributes and an occasional stroke of
luck, than with the structure of the office. As with any intangible, often the best way to
realize informal powers is by observing what they are not – you may not realize an
especially smooth leader, but you will definitely recognize an unqualified or incompetent
one!

Informal powers of the presiding officers include the following:

Political skills: These include the ability to develop and maintain a power
base, and a loyal, trustworthy nucleus of support, thus greatly enhancing one’s
ability to be elected to office.

Legislative skills: A good presiding officer is usually a very good
parliamentarian (one familiar with the rules and procedures).

Powers of persuasion: The skillful use of an informal IOU system, where give-
and-take must be remembered, is important, along with the ability to “use the
office” (its status and dignity) to sway decisions by hesitant or recalcitrant
lawmakers.

Seniority: Having “been around” and being experience in legislative and other
state matters provides a shared history and increased legitimacy in the eyes of
the rank-and-file.

Other attributes could certainly be listed here, but these bear most heavily upon the
duties of the presiding officers.

Formal powers of the presiding officers differ from informal powers, because they
are very specifically described somewhere, in writing. In other words, somewhere in the
station constitution, or in rules adopted by each chamber, the presiding officers’ “job
description” will be spelled out. Formal powers vary in their magnitude and nature;
hence, it is important to separate them into two categories – procedural and
administrative.

Procedural powers are distinct in their application to the legislative process. The
presiding officers of the Texas Legislature possess significantly more procedural powers
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than their counterparts in the United States Congress, as the rules have changed over
the years to de-centralize power (as well as to water down seniority).

The procedural powers include:

1. Committee assignments
2. Appointment (but not removal) of all committee chairs and vice-chairs
3. Appointments to Conference Committees
4. Referral of bills to committees
5. Scheduling of bills for deliberation and vote (calendars)
6. Interpreting House or Senate rules
7. Controlling access to the floor (recognition)

Committee Assignments

In the House of Representatives, the Speaker appoints half of the membership of
each substantive committee, all members of the six procedural committees, and all
members of appropriations committee. Within each chamber, the committee system
serves to organize the members into committees of eight to ten persons, including a
chair and a vice-chair. Committee assignments are of great importance to lawmakers, at
any level of government. It is crucial that the legislator serve on a committee that best
accommodates the needs of his/her district; for example, a member from inner-city
Houston would best serve on Urban Affairs, Business and Industry, or Public Health
committees.

Unlike the Congress (where committee assignments are done by established
procedures), the speaker of the Texas House appoints at least a simple majority (half
the membership, plus a chair and vice-chair) to every committee in his/her chamber.
The Lieutenant Governor officially appoints all thirty-one senators to committees,
although informally a few of the most senior senators may choose their committee.
Clearly, the presiding possess great influence over the committee system – a perfect
opportunity to reward loyal supporters and other key players.

Appointment of Committee Chairs/Vice-Chairs

Committee chairs, in most representative forms of
democracy, are very powerful individuals who can directly or
indirectly influence the outcome of many a prospective law
or resolution. The will of the chair, unless it is steadfastly
opposed by the presiding officers, is generally accompanied
by the committee members. Chairs are part of the group
referred to as “the leadership”; they tend to be very well-
established senior members of the Legislature whose
influence is courted by key state executives, as well s by the
private sector.

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Appointment of Conference Committees

The presiding officer of each chamber appoints five legislators to serve on
conference committees for every bill requiring one. The conference committee wields
great control over individual bills; in fact, some bills will not get past this “step” of the
legislative process.

Referral of Bills to Committee, Scheduling (Calendars),
Interpreting the Rules and Recognition

These powers closely bear upon the “technical procedures” of the legislative
process, and like conference committees, often make the difference between the life
and death of a bill. All of these technical, procedural powers will be more fully detailed in
a later discussion of the legislative process.

Administrative Powers

The presiding officers are bestowed one other type of power, which is administrative,
or “institutional” in nature. That is, administrative powers are oriented towards the
routine and specialized functions of the House and Senate. These powers are
important, but out of the limelight of the legislative process. Such powers include:

1. Appointments to the Legislative Budget Board
2. Membership on the Legislative Redistricting Board
3. Appointments on the Legislative Council
4. “Perks of Office”

Appointments to the Legislative Budget Board

This board, referred to as the LBB, bears primary responsibility for the formulation of
the state’s biennial budget. The LBB is comprised of four members from each chamber,
plus the chair from each of the seven “revenue” committees. In the House, this
committee is called Ways and Means; its counterpart in the Senate is the Finance
Committee.

The LBB, along with the governor and his or her full-time staff, develops and
monitors the budget on a year-round basis. The LBB presents a budget proposal to the
legislature after nearly one full year of development. The budget process will be
carefully described in the policy section of this text; for now, it is important to recognize
the pervasive and encompassing influence the presiding officers wield, whether the
legislature is in session or not, over the most critical and far-reaching aspects of
governance: taxing and spending.

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Membership on the Legislative Redistricting Board

The Speaker and Lieutenant Governor, along with the Attorney General, the
Comptroller of Public Accounts, and the Land Commissioner, form the Legislative
Redistricting Board. As stated earlier, the responsibility for drawing district lines falls
upon the entire legislature, which routinely cannot fulfill this function. Hence, the state’s
political leaders (curiously minus the governor) conclude the redistricting process after
the legislature is adjourned.

Appointments to the Legislative Council

This is the research arm, or “think tank” among the
membership of the legislature. Five senators and ten
representatives, along with their presiding officers, are
charged with overseeing state agencies, drafting bills,
(for all legislators), and conducting issue studies geared
toward each upcoming legislative session. Given the
limited staff and resources of Texas’ lawmakers, these
services are highly functional and tend to offset the
ever-biased services of special interest representation.

“Perks of Office”

The presiding officers control the assignments of office space and parking privileges,
and so on. These trappings of office are not as insignificant as they may seem. The key
members of the presiding officers’ “team” (especially in the House) will be
distinguishable in a variety of ways!

Heretofore, we have discussed the background of the Texas Legislature, the
organization, and the leadership structure. Much of this effort is geared, intentionally, to
enlighten students of government (and every other field) to the realities of power and
politics in a fiercely traditional, yet rapidly transforming state. Given these factors,
conclusions are not exactly necessary or desirable, except for the obvious: change
(reform) is imminent in some areas of Texas government and likely to occur in others.

We shall now present three separate, but related observations about the Legislature
for critique and consideration. They deal with the void of leadership, the prospect of
sweeping changes, and the impact of amateurism – all with unique implications for the
Legislature and the state as well.

“Inside the Texas Speaker’s Apartment”

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Update 2003: Setting the Stage

The previous sections clearly described the self-inflicted nature of Texas-style power
arrangements in the state Legislature. There typically has been consensus and comfort
in the culture of each chamber, due to the experience and skills of the presiding officers.
Currently, the capitol and state as well, are experiencing major upheaval and
unprecedented events & outcomes. A brief background of insights is useful in
interpreting the present situation, especially the problem of politics and weak leadership.

After eight years of the late Bob Bullock as a Democratic lieutenant governor and six
years of Republican George W. Bush as governor, the heavy control of the past decade
is gone. Whom or what the political planets will orbit is up for grabs. Bullock amassed
such an awesome reputation of respect and fear after 16 years as the state’s
comptroller that he had control of the Texas Senate before he was sworn in. He
exercised that power enormously over his two terms, before retiring in 1999.

His successor was Republican Rick Perry, elected with the
considerable help of the Bush’s coattails. In contrast to Bullock, Perry
has almost no agenda – viewed as a probable short-timer who would
move up if Bush won the presidency. Bush’s presidential run was a
blanket over the Texas Legislature that masked the absence of
Bullock – a man into everything. Many legislators – even Democrats –
allowed bush the things he though he needed for his presidential run.
These included a tax cut (which many regret), parental notification for
abortion when a minor is concerned and even bottling up a hate-
crimes bill (although the Democrats didn’t help on that)…

Chaos and Controversy

Next, factor in the relationship of the Governor and state comptroller – both wield a
significant degree of clout over the Legislature. Rick Perry acceded to the Governor’s
post when George W. Bush won the presidency…and quickly established himself as a
hands-off, ineffectual leader. Perry did not engage the leadership of the previous (77th)
Legislature, abruptly vetoed 82 bills after the session ended. And was perceived as
closely “beholden to interest groups”. Nonetheless, he was re-elected in 2002. The state
comptroller, Carole Keeton Strayhorn, entered her second term by dropping the
bombshell n the new 78th Legislature – in January, she announced that the 5 billion
dollar budget shortfall (for the 2004-05 biennium) was actually close to 10 billion dollars.
She distinguished her position by challenging the leadership and holding the line
against spending revenues that weren’t there – playing hardball with Republican
fellows.

Meanwhile, the House of Representatives is a wash in new faces, and a brand new
Speaker. Remember also that the Speaker Generally re-configures the “deputies” of the
House – The Chairs, which Craddick did wholesale… “In his most extensive public
remarks since taking over as the first Republican House speaker in modern times,
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Craddick said he will replace most of the holdover members of the budget-writing House
Appropriations Committee and will give leadership positions to first-term lawmakers. He
wouldn’t say whether he will take the unusual step of naming freshman members –
most of whom are Republicans – to committee chairs. But he did promise to “spread the
leadership across the House and include everybody”.

Thus, the 78th Legislature convened with little to no continuity, significantly lacking
seasoned leaders; what little institutional “memory” that did exist would be sharply
challenged by party politics (especially in the large, high-turnover House of
representatives). Facing an enormous budget and revenue shortfall, and a tax system
shredding over school-finance (property taxes), the new “Leggie” muddled through
reasonably well – until the hidden agenda of the Governor, Speaker and US House
Majority Leader Tom DeLay began a storm of controversy. The walkout of 53 House
Democrats in May 2003 drew national attention…only to be repeated by the Senate in
late July, when Gov. Perry called another special session to force the congressional
redistricting. The standoff is now heading for legal grounds; the possible outcome may
be surprising.

Professionalism in Legislating

The weakness of an amateur legislature has been a topic of comparative research,
as well as political science textbooks. Talk of changing the legislative orientation dates
to the early 1970s, more or less in step with constitutional reform efforts (detailed in
Chapter 4). Consider the following recommendations provided by The Citizen’s
Conference on State Legislatures:

Burdened by restrictions from another century, the Texas Legislature
has been unable fully to rise to the challenges of the present age.
Instead of a strong legislature performing its intended tasks of
representation, problem resolution, and oversight of state
administration, the present Legislature is a weakened boy constrained
by a limited biennial session, by its inability to review vetoed bills after
adjournment, or to call itself into special sessions. These limitations
together with constitutionally prescribed salaries, a Senate presided
over by an executive branch official, and a multitude of constitutional
legislation that restricts the Legislature’s power to act effectively should
be among the targets for revisions to articles.

Despite the consensus about obviously needed reforms, not much has been
changed or initiated in the past thirty years, save the measures described in the
previous section. There have been suggestions to extend the legislative session by
convening a sixty-day session (to accommodate the budget cycle) during the even-
numbered, interim year. Others recommend granting the legislature the power to
convene special sessions (up to fifty-five days) to resolve budget problems. The 76th
legislature did not offer any direct initiatives for legislative reform, nor were any changes
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offered in the Constitutional Reform Amendment proposition. Ultimately, the saving
grave for reform may be realized with the maturing of a competitive two-party system.

The Role of the Legislature

Like its national counterpart, the Texas Legislature performs a number of functions
critical to representative democracy. One only needs to recall two infamous clichés to
capture the most critical elements of the legislative function: “It takes an act of
Congress”, and “Write your Congressman” refer to the duties we most closely attach to
our lawmakers.

More specifically, these clichés refer to the constituency service (representing
citizens from one’s district) and legislative process (how a bill becomes law). Elected
representatives in Texas perform other duties, some of which have already been
described; however, the above-mentioned roles consume a vast majority of the
legislators’ time and attention. It is a somewhat simple concept, often clouded with
corrupt politics and media-cultural desensitization, but the essence of any legislative
body is to represent its citizens by making
law.

Hopefully, the laws that are crafted are
enforceable and fair (constitutional); the other
institutions (the Executive and Judiciary) are
charged with these responsibilities, which will
be discussed in the next two chapters. The
legislative body, however, was intended to be,
and must remain, the “hopper” of government
– the institutionalized “access point” for a
people and those empowered to represent
them.

Constituency Service

A constituent is a legal resident of the representative’s district – regardless of party
affiliation. Therefore, certain legislative acts will affect (hopefully for the better) all
constituents, for example, laws to improve roads or protect the water supply. Often,
however, the individual or family needs some form of assistance from their elected
representative. The assistance is typically to “cut the red
tape” the constituent may be snarled up in – public
assistance checks that have not been sent or granted to
qualified individuals, problems with claims against state
agencies where a judgment has been rendered in favor of
the constituent, and so on. Staff members carry out the
work of the request; hence, constituency service is
sometimes referred to as “casework”.

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On a different level, constituency service implies the not-so-simple act of
representation. Since the emergence of representative democracy, politicians and
pundits alike have disagreed over the properties of representation. Should the elected
official act as an agent, or “hired gun”, of the people, and carry out his/her duties as
they see fit? This view is known as agency representation. Individuals who embrace
these views believe that average citizens are too busy, careless, or under informed to
articulate their views to their representative. Survey data often indicates the validity of
this view – many citizens do not know who their representatives are, or how to contact
them!

Others argue differently. Some politicians see themselves as delegates, or
instructed representatives of their constituents whose duty it is to carry out the needs,
demands, and wants of his/her “boss” – the people of the district. This view seems to be
logical, provided of course that the members knows to some degree what the needs,
demands, and wants are. Therefore, districts that reflect clear and somewhat uniform
goals play perfectly into this scenario; the representative simply reflects the wishes of
his/her district. What happens, however, when the constituency is diverse in its
composition, wrought with competing and/or conflicting goals? Whom does the member
represent? And what about the special interest factor?

A third style of representation attempts to combine the selling points of the other two.
Politico representatives are those who act as agents when dealing with very narrow,
technical issues requiring an informed, sophisticated understanding of the policy area.
Otherwise, the politico will attempt to reflect his/her constituency when dealing with
morality or other issues pertaining to public goods, such as environmental regulation,
education, and infrastructure (roads, bridges, rapid transit, etc.).

Ultimately, a representative at any level of government must reconcile a rather
daunting host of demands. The presiding officers and well-resourced, focused lobbies
compete with the member’s constituency. Who might you expect would prevail here?

Many would argue that the “leader-lobby” combination is by far the pacesetter of
Texas politics, as we have discussed earlier. What must be remembered here is that
the “leader-lobby” pace reflects the amateur legislature of Texas’ formative years; this is
how the political “game” has been played here, for various compelling reasons. One can
surmise, however, that when and if the representatives hear a clear and loud voice from
their people, they will respond – or face the consequences. For a full-time professional
legislator, the consequences mean the difference in one’s overall success or failure in
politics, which would also happen to be their career field!

Other functions of the Texas Legislature include:

Oversight: This is a sweeping, highly critical function in American politics,
whereby the legislative body monitors (oversees) the implementation and
effectiveness of the laws it makes. Auditing the accounts of a state agency
would be an example of oversight.
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Budgeting: As stated earlier, the legislature as a
whole is responsible to reach consensus on what
exactly the state’s biennial budget will entail.
Thousands of bills are signed into law each legislative
session; the scope and intent of these bills shape the
final budget, which of course must satisfy a majority of
both chambers.
Constitutional Amendments: Amending either the
United States Constitution or the Texas Constitution involves the approval of
the legislature. A two-thirds majority of each chamber must approve
propositions to change the State Constitution; a simple majority must approve
amendment proposals for the United State Constitution.

The Legislative Process: How a Bill Becomes Law

Any discussion of the legislative process in the Texas Legislature should be prefaced
in a manner that will clarify and capture the essence of lawmaking in the Lone Star
State. The student of Texas government will greatly benefit from a two-sided view of the
legislative session. The first view is simply what the process calls for (by constitutional
design or each chamber’s rules). The second view is what tends to happen in reality (by
strategy, custom, or downright blatant disregard for rules). Each phase of the legislative
process will be described from both points of view.

“School House Rock – I’m Just a Bill”

Rules

Rules, as previously stated, are adopted by the membership of each chamber and
interpreted by its presiding officer. A thorough grasp of the rules is imperative for an
effective presiding officer, whose gavel controls the ebb and flow of each day’s
business. A parliamentarian is hired in each chamber to assist the Speaker and
Lieutenant Governor in interpreting and applying rules. These individuals sit
immediately to the left of the leaders; their expertise is often called upon and very
necessary.

The Process

The phases (or steps) of lawmaking are actually quite simple. In fact, only six distinct
steps (unique from the others) exist in theory, along with a few routing procedures.
Therefore, each step will be described based on its essential purpose, and according to
the strategies, habits, or deviations that occur there. To assist the reader, Table 8.4
captures the overall parameters of this interesting process.
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Step One: Introduction

Introduction requires the following actions:

1. A bill is introduced by a legislator. This individual is usually the bill’s sponsor or
someone from the committee responsible for the bill. The bill is introduced by
filing twelve copies with the chief clerk or secretary of the chamber. Prior to the
Legislative session (i.e., November and December of even-numbered years),
bills may be pre-filed with the clerks of either chamber. These are bills which
may have been introduced in previous Legislative session, or items drafted by
lobbyists on behalf of a particular lawmaker. This is another indicator of how the
Leggie has adapted to its limited session. Prior to January 1999, upwards of
600 bills had been pre-filed for the 76th session!

2. A bill may be introduced in either chamber. Revenue (tax) bills can only
originate in the House. Upon introduction, the bill is given a number, which
indicates the originating chamber. Bills originating in the House are called
House Bills, (H.B. 10); bills originating in the Senate are Senate Bills (S.B. 2). In
addition to bills, members of the Legislature may also introduce resolutions.
Simple resolutions are those originating and remaining in one chamber;
abbreviated by H.R. (with a number, or course) or S.R.; simple resolutions are
not sent to the Governor for signatures. They are typically introduced to adopt
rules, and to extend recognition to visitors or acknowledgements to other
distinguished constituents.

Concurrent resolutions (titled H.C.R. or S.C.R.) are sent to the governor for
acceptance, after being approved by both chambers. These resolutions typically are
intended to initiate or require action of some sort. For example, to establish a select
committee to study an issue, to establish an honorary “day” or to request a specific
response from the United States Congress. For example, H.C.R. 9, filed in the 76th
session, to “memorialize Congress to not make federal claims against the proceeds of
the Texas tobacco settlement. “The lawmakers may also adopt Joint Resolutions,
which must be approved by both chambers, but do not require the governor’s signature.
These are predominantly used to adopt amendments to the state constitution or to ratify
a proposed amendment to the United States Constitution, after it has been adopted by
both houses of Congress by two-thirds majority.

Curiously, Governor Perry attempted to involve his office on a certain constitutional
amendment proposed during the 76th session. The Texas Senate passed a resolution to
amend the state constitution, in order to adopt a two-year moratorium on the death
penalty. Governor Perry began insisting that he have a role in the process, even though
there is no historical precedent where the governor’s approval was needed to adopt an
amendment proposal. This issue was dropped eventually. Similarly, H.J.R.s or S.J.R.s
for state and national amendments require two-thirds majority in each chamber for
placement on ballots of constitutional amendment elections.

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3. All bills introduced are given a first reading. The state Constitution requires
that bills be “read “three times, on three separate days. The first reading is
designed to inform all members present of the bill’s intent. Regrettably, this
reading is often the only one a bill will receive (given the volume of work
overall). The clerk or secretary reads a caption of the bill aloud, and then gives
the bill to the speaker or lieutenant governor, who refers the bill to a committee.

4. All bills and resolutions must be introduced by day sixty of the biennial session,
(roughly by the first week of March), though typically days 30-60 are devoted to
committee deliberations. Emergency bills filed by the governor may be
introduced any time during the session.

Routing or Detour – Referral to Committee

This routing procedure is performed by the Speaker and the Lieutenant Governor.
Unlike the United States Congress, there are no rules to guide referrals to a committee
in the Texas Legislature. Generally speaking, bills are routed to the standing committee
that has jurisdiction (based on subject matter) over it. The presiding officers, however,
may refer the bill to any committee. Logically enough, if the Speaker or Lieutenant
Governor particularly favors or frowns upon a bill, it will find its way to the committee
that mirrors the leader’s wishes, regardless of merit or subject matter.

Step Two: Committee Hearing and Report

Committee hearing and report is the actual “crafting”
step, where the vast majority of legislative governance takes
place. All things considered, this is the most definitive
moment of lawmaking, especially since most bills will not
make it past the committee. For example, during the 2001
(77th) session, 5,712 bills/amendment proposals were
introduced, but only 1,490 were approved by the Legislature;
the vast majority of the bills were “killed” in committee.

Committee staff members assist in the “weeding-out”
process by preparing a summary of the bill’s intent and major
talking points, and by attaching (often at the insistence of the chair) a brief fiscal impact
statement – the costs, in terms of dollars, time, and human resources. Also, a statement
may be included on how the particular bill will affect the state’s most sensitive policy
areas – natural resources, education, and crime. Obviously, the contributions of the
committee staff are critical to the effective use of time for the overburdened committee
member. It also provides a tool to begin isolating the most (usually unwelcome)
controversial and divisive bills from this vantage point.

Committees may do a number of things to eliminate bills

1. Ignore, or pigeonhole a bill (eventually killed).
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2. Totally re-configure the bill. It may have the same number, as the bill that was
introduced, but it will be unrecognizable, even to the bill’s sponsor (effectively
killed).

3. Issue an unfavorable report. If a simple majority of the committee does not
approve a bill (even after revision), it will receive an unfavorable report (killed).

Committees may do other things to actually craft a bill

1. Referral to subcommittee. Some standing committees have subcommittees to
further refine the jurisdiction of the committee. A subcommittee and its chair are
appointed by the committee chair, which may then refer bills, usually for
legitimate legislative purposes (although occasionally bills are pigeonholed
here).

2. Hearing and testimony. Most bills will be provided an opportunity for hearing by
the committee or subcommittee. Notice will be given five days in advance for
public (open) hearings, where any interested party may attend. Hearings are
often focused on the rendering of expert testimony, to assist in the committee’s
deliberation. Not surprisingly, those called to testify may be affiliated with, or
speak on behalf of, special interests; often they are lawyers or bureaucrats who
are very familiar with the policy area. (Indeed, they may eventually be from an
agency charged with implementing the law!)

3. Amendment. Draft legislation is shaped and molded in
committee/subcommittee, through a process called “mark-up”, which is really an
informal amendment process. Committee members write all over the draft –
mark it – then eventually vote on the revised bill. If a simple majority of the
committee agree (especially if the chair and/or the presiding officer agree), the
bill is given a favorable report and will be scheduled for debate and vote before
the full House or Senate. Scheduling is done by the Calendars Committees in
the House.

Calendars Committees – The Schedule Agency of the House

Although calendars committees do not constitute a distinct phase of the legislative
process, they are a particularly critical element in the ebb and flow of House business.
The Calendars committees (there are two separate committees – House Calendars and
Local/Consent Calendars) are appointed by the speaker and obviously maintain a
certain loyalty to him. Technically, Calendars committees classify bills coming from
committee by two factors. The factor is the scope and nature of the bill, i.e., does it
affect the entire state? – If so, is it an emergency? To accommodate various scenarios,
the scheduling function is organized by six different calendars:

1. Emergency: Bills placed on this calendar are obviously those dealing with
unforeseen crises (a natural disaster or sweeping social upheaval). Often, these
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bills will be filed at the behest of the governor, who has a formal role in most
emergency situations. Additionally, emergency bills may be introduced and
voted on at any point during the legislative session.

2. Major State: Bills that affect the whole state, and deal with the most critical
policy decisions will be placed on the Major State Calendar. Examples would
include revenue and budget bills or legislation dealing with the Penal Code or
school finance.

3. General State: This calendar schedules legislation that will affect the entire
state, but is not a legislative priority (during that particular session). As a
reminder, the presiding officers and the governor tend to set the legislative
priorities for any given session.

The above-mentioned calendars are maintained by the House Calendars committee.
Conversely, the following three calendars are the jurisdiction of the Local and Consent
Calendars committee:

4. Local: As the name implies, this calendar schedules bills that only affect one or
a few districts. An example would be Senate Bill 589, introduced in February
1999, “relating to the creation of a municipal court of record in Farmers Branch”.

5. Consent: Bills place on this calendar are routine in nature, for example, the
landscaping arrangement for the capitol grounds.

6. Resolutions: Resolutions are a motion or a gesture that the legislature
extends, to horror, recognize, or declare its views about something or someone.
For example, on April 3, 1995, the Senate passed a resolution to recognize the
life of slain Tejano singer Selena. Another example is the 1999 House
Resolution to establish Jasper Day at the State Capitol and paying tribute to
slain citizen James Byrd, Jr.

In addition to the six calendars maintained by committee, a seventh one, Constitutional
Amendments, exists for proposals to change the state’s Constitution.

Scheduling in the Senate: A Parliamentary Triumph

Heretofore, we have discussed the role of powerful Calendars committees in the
House of Representatives. The much smaller Senate has adopted a much simpler
method of scheduling bills for debate and vote. There are no calendars in the Senate,
except an informal one called the Intent Calendar. This calendar is actually more of a
“holding area” for bills that have received a favorable report from committee and are
awaiting their hearing before the full Senate. Senate bills then advance in the order
received (the Senate’s secretary maintains the Intent Calendar).

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Not surprisingly, rules have been established over the years to create a more
efficient way to bring forward more important and/or time-sensitive bills “out of order”.
After the first sixty days of a session, the debate and vote phases begin (in both
chambers). In the Senate, the first bill to be introduced (S.B. 1) will always be a routine
item, which will then become the blocking bill for the entire session. To bring another
bill to the floor ahead of the blocking bill, two-thirds of the Senate must approve, which
would indicate the relative priority of such a bill. All other bills brought forward are
subject to the same procedure. Of course, the blocking bill (sometimes referred to as
the stopper) will eventually pass as well. Blocking bills in the past have been about
“methods of composting”; or landscaping for the state capital.

In parliamentary terms, the blocking process is called suspending the rules.
Usually a suspension of rules indicates that the chamber sees it necessary to do
something outside of the normal procedure – for legitimate reasons. However, there are
political reasons why senators will occasionally vote to floor a bill out of order. They may
actually be opposed to it and have not intention to vote for it but they are trying to delay
the flooring of another bill, which they know will probably pass. This is known as
chubbing. They may want to indicate support for a bill by voting it to the floor, but will
actually vote against it, knowing it only takes a simple majority of the Senate to pass. In
other words, a senator could lay claim to both supporting and opposing the bill,
depending on who is listening!

The Texas Senate has thus been far more
likely to posses a culture of collegiality and
consensus. Until, that is the 78th Session in 2003,
when a combination of party politics and outside
forces combined with money and risky business
created the “perfect storm” in Austin. Though it is a
rule adopted by the Senate in the early 1900’s and
insulated by tradition, the 2/3 suspension is not a
constitutional requirement. As stated earlier in this
chapter, the Lt. Governor (or presiding officer) may
cancel the rule, reverting to the by-the-numbers calendar. During the second special
session in July 2003, Lt. Governor Dewhurst did just that, adding to the boycott fire
burning the 11 Senate Democrats, who left Texas for Albuquerque NM at the beginning
of August – denying the Senate a quorum.

The standoff that followed, at times, focused more attention on the rule that the
reason for the boycott (the governor’s decision to call a special session for re-
districting). Thurs, a second issue emerged – the viability of the Texas Senate, due to
the vainglorious actions of a Lt. Governor – just seven months into his first term. Many
observers sense that Dewhurst could lose a great deal of credibility; and some attribute
his indifference to aspirations for higher office – as in Washington, D.C.

As the boycott wore on, and the second session expired, the Democratic Senators
had achieved an enormous outpouring on national support and funds totaling close to 1
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million dollars (raised by the email network MoveOn.org.) On day 37, however, Sen.
John Whitmire of Houston decided to break ranks and return to Austin. Whitmire,
considered the “dean of the Texas Senate” shocked his colleagues, as he gave no
warning of his intentions. He had this to say regarding the difficult decision,
acknowledging the importance of the 2/3rds rule:

“The real danger in staying in New Mexico or relocating to Washington
– there’s a real possibility that we would lose the two-thirds rule
altogether,” he said, after returning to Texas. That’s the rule that 21 of
the 31 senators have to approve before a bill can be brought up for
consideration. Lt. Gov. David Dewhurst said before the democrats left
the state that the rule wouldn’t be in place in a second called special
session. As the first session ended and the second one began at the
end of July, the Democrats left for Albuquerque to stop consideration of
congressional redistricting.

“If there’s one thing that I could point to, it is to protect the two-thirds
rule for future matters. If sixteen senators can pass bills, a lot of
progressive groups are in trouble,” Whitmire said. “Redistricting is real
important, too, like higher education, and school finance, and criminal
justice”.

And he apparently tired of what he was seeing on the other end: A
holdout with no resolution in sight, and increasing attention to national
issues in what started as a Texas fight. Whitmire said he didn’t make
any deals and didn’t succumb to pressure from outside or inside. He
repeated what he said on the first day, that his constituents don’t like
redistricting but want the fight to take place on the Senate floor. “My
concern was for my district and for the Senate. The most important
matter is to save the Senate. Every day we’re out there (in New
Mexico), it’s getting worse”.

Step Three: The Floor (Debate and Vote)

As previously stated, bills are eligible for debate (sometimes referred to as “hearing”)
and vote after the first sixty days of the session. Although procedures vary somewhat
between the House and Senate, activity on the floor is conceptually the same.

Debate

In either chamber, debate is controlled by the presiding officer. Bills brought to the
floor are initiated with the second reading, which is basically the opening of debate. As
stated before, the Speaker and Lieutenant Governor reserve the power of recognition,
which is basically permission to speak (debate) about a bill or a rule. In the House,
debate is limited to no more than ten minutes per representative; twenty minutes is
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usually granted to the bill’s sponsor (or the originating
committee’s chair) to open, and other twenty minutes to
close debate.

I In the Senate, debate is unlimited, which means that a
senator can employ a tactic called filibuster. Filibuster is a
parliamentary procedure that allows the legislator to speak
as long as physically able – the individual must remain at
the podium and may not stop speaking.

Unlike the United States Senate, where filibusters have been known to last almost
three months, a Texas senator must conduct the filibuster alone. Therefore, filibusters
do not have the same “kiss of death” quality, unless, of course, the filibuster happens
near the end of the session. Filibusters are sometimes used
for other purposes; they can delay the flooring of another
controversial bill, or may just serve as an attention getter, to
bargain for amendment of the debated bill. Ultimately,
filibusters add more to Senate storybooks each session. In
1993, an urologist addressed the Senate about “the
Urological Considerations of a Filibuster”, featuring a display
of certain space-suit technology that might be greatly useful
to the filibuster!

Debate is a fascinating aspect of democratic politics;
parliamentary procedure can be a powerful legislative tool.
However, the limited session of the Texas Legislature
hinders lengthy but thorough discussion of a bill’s content.
Most of the time (especially in the House), debate will
actually be an advertisement campaign for the bill’s
originating committee. Individual representatives will usually
respond more to appeals by the bill’s sponsor than to the
actual content of the bill. Occasionally, representatives will
introduce amendments to a bill, although the typical Texas House member is already to
overburdened with his or her own committee to thoroughly prepare an amendment for
someone else’s bills. Debate comes to a close in either chamber, usually accompanied
by last-minute encouragement by the bill’s sponsors and call for “no” by the bill’s
opponents.

The Vote

In the House, voting is done electronically. A representative will push a green button
for “yes” and red for “no”. The votes are tallied on a huge board behind the speaker’s
dais, which lists each member’s name and how that member voted. There are
occasions where a vote is less open, that is, only the totals will show, along with who
actually voted. Again, only a simply majority of those members present is required to
pass a bill and send it to the other chamber. A quorum must be present for the vote to
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take place; in the House, a quorum is one-half the members, plus one (76); in the
Senate, twenty-one members must be present.

In the Senate, the vote is conducted with a simple roll-call procedure. The secretary
calls and records the vote of all senators present for the vote. There is no button
pushing or flashing lights; a hand signal is given instead – one finger raised means
“yes” two fingers mean “no”. At this point, if the bill has already passed through the
other chamber, it is eligible for action by the governor; however, both versions of the bill
must be identical before it becomes a law. Most bills are not identical; in fact, often they
are significantly different, considering the amount of mark-up and amendment a bill is
likely to undergo. To reconcile, or iron out the differences, a bill is sent to conference
committee (or simply conference).

“Texas Legislature Remix”

Step Four: The Other Chamber

The bill is forwarded to the other chamber for action; a repeat of steps 1-3.

Step Five: Conference Committee

The presiding officers appoint five members from their respective chambers to form
the Conference Committee for each bill requiring one. At least one member of the bill’s
originating committee will be among the ten conferees. Generally speaking, if a bill
warrants its way through bother chambers, it will be carefully attended to by the
Conference Committee. The committee reconciles the different versions, and refers the
final bill, called the conference report, back to each chamber for approval. The bill
must be approved by a simple majority of each chamber in an “up-or-down” manner,
meaning that the bill may be sent back to conference for further reconciliation, or simply
rejected (which would kill it). The bill may be sent back and forth indefinitely, although
the scarcity of time Texas lawmakers have generally precludes such torture.

Step Six: The Governor’s Desk

Actions by the Governor are the clearest example of checks and balances between
the legislative and executive branches. When a bill reaches the governor’s desk, it
represents either the culmination of the legislative process, or the legislative powers of
the governor, depending on who is listening. Heretofore, we have detailed the sources
of influence on the legislative process – actions by the chief executive will round out the
list.

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Texas governors, similar to their presidential counterparts, have three basic options
when presented with a bill (which has miraculously cleared both chambers of the
legislature). The Governor may sign it, may not sign it, or may veto the entire bill.

The Governor may sign a bill into law. Governors, like the president,
occasionally create a media event with the signing of important and especially
favored, legislation. In late February 1995, for example, the New York Times
featured a photo of Governor George Pataki signing a bill to reinstate capital
punishment in New York. The Governor was shown signing the bill with tow
pens (one in either hand) which had belonged to police officers slain in the line
of duty; behind the governor, the officers’ wives
looked on. Clearly, this particular signing included
many small be very significant symbols – and
symbolism is certainly expected of a state’s political
leaders. By mid-June, 2001, Governor Perry had
signed close to 1,500 separate bills, which are then
“sent to the Secretary of State” to become effective.
Perry’s pet goal of raising transportation funds died in
committee, though another, a math education initiative
easily passed.

The Governor may not sign a bill. Unlike a bill sent to the United States
president (who may employ a pocket veto), a non-endorsed bill will become law
automatically, ten days after it reaches the Texas Governor’s desk. If, however,
there are less than ten days remaining in the legislative session, the bill
becomes law twenty days after adjournment. The Governor may veto the
unsigned bill after the adjournment, which means that the veto cannot be
overridden (the legislature must be in regular session). Ultimately, both signed
and unsigned non-vetoed bills become effective law ninety days after the
legislative session adjourns. Exceptions include emergency and/or
appropriations measures, which may be implemented earlier, with two-thirds
majority approval by both legislative chambers.

The Governor may veto a bill. Texas governors may veto a bill during session
(thereby killing it for that session), although the veto may be overridden by an
absolute two-thirds majority of each chamber. Logically
enough, governors almost never veto bills during session, and
risk having it overridden (the governor’s image and leadership
ability would be degraded). Why not wait, if possible, until the
legislature adjourns to veto the bill instead? Typically, Texas
governors will veto upwards of forty or fifty items after the
session is over.

No governor in Texas history, however, has wielded the veto pen quite like the
current occupant of that office. By June 17, 2001, Perry, an unelected Governor, vetoed
eighty-two bills. In journalistic circles, the action became known as the “Father’s Day
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Massacre”, given that the holiday fell on the last day Perry could veto a bill. A litany of
criticism, if not downright outrage followed, from journalists, students, groups, and most
understandably, from the state Representatives and Senators who had crafted the laws.

Amongst the vetoed measures was a Medicaid reform item, which would have
streamlined administration of the program. The bill’s sponsor was dismayed. “It’s bad
public policy to indicate how big your muscles are through the use of the veto pen.
Public policy means engagement in the process. It’s easy to hide behind a bush and
shoot a gun; it’s much harder to try to reason through it, “ said Rep. Garnet Coleman, D-
Houston, a sponsor of the Medicaid bill, which would have saved the state $417 million
over five years through administrative and budgetary changes within the Medicaid
system.

Given the magnitude and circumstances of theses actions, the following section
summarizes aspects of the other vetoed measures:

House Bill 396 would have allowed undocumented immigrants to get driver’s
licenses. Supporters of the bill included Mexico’s President Vicente Fox and the
United Farm Workers’ Texas Chapter, which is already considering a lawsuit
against the state claiming that it is stepping into federal territory.
House Bill 546 was a bill relating to judicial training in ethnic and racial
sensitivity. Perry rejected the bill on the grounds that judges already can
volunteer to take this training, and that training decisions lie with the judiciary
and the voters, not the Legislature.
House Bill 2430, the so-called ombudsman bill, would have created a program
to help consumers better understand their health insurance options and
responsibilities.
Senate Bill 173 would have required defendants to pay the full amount of bail in
cash up front, pay a bondsman’s fee or stay in jail. Currently, defendants can
pay a percentage of their bond as a deposit.

Some lawmakers said the vetoes were striking for a Governor who was not elected
into office. “If the Governor had problems with pending legislation, it would have been
nice to have his input while there was still time to address his concerns,” said state
Senator Gonzalo Barrientos, D-Austin. “Instead he sat by until the session expired, and
then, remarkably, overrode the judgment of elected lawmakers of both parties.”

Conclusion: The Texas Legislature in Focus

Few functions of democratic governance have as mush symbolism, responsibility,
controversy, and opportunity – for success or failure – as the not-so-average legislative
body known as the Texas Legislature. It may be more a question of ethics than outright
ability; that is, can individuals be granted so much responsibility and power (though
some have more than others) and so many competing and/or conflicting sources of
influence, without forming a culture of questionable practices? All told, the Texas
Legislature – badly in need or leadership, cultural and structural reform, and lacking in
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resources – has managed to skirt through precarious circumstances. The following
excerpt from the even-handed Texas Monthly illustrates the cracks in no uncertain
terms:

Texas Republican Leaders Score a Failure Trifecta

Perry, Dewhurst and Craddick make Texas Monthly “worst” list
For more than two years, the Lone Star Project has used hard facts to detail the failure
of one party Republican control in Texas. This failure has been illustrated most often by
the highest ranking Republican elected officials in our State. Lone Star Project reports
have documented: Governor Rick Perry – playing to cameras while neglecting Texas
kids; Lt. Governor David Dewhurst – failing to file tax forms while berating single
mothers and adding unnecessary paperwork for Children’s Health Care; and House
Speaker Tom Craddick’s history of blind partisanship and corruption

Texas Monthly Includes GOP Leaders on List of Lame
Today, the highly respected non-partisan publication Texas Monthly reinforced the Lone
Star Project’s conclusion by awarding Texas Republicans with a failure trifecta. For the
first time in the magazine’s 34 year history, it named all three of Texas’ highest ranking
political leaders – Governor Rick Perry, Lt. Governor David Dewhurst, and House
Speaker Tom Craddick – to its list of the ten worst legislators in Texas. Some of Texas
Monthly’s critical but accurate comments on the failed Texas Republican leaders are
listed below, along with additional observations by other Texas publications.

On Rick “39%” Perry
Gov. Rick Perry, who last year tried to increase his executive powers without legislative
backing, fared poorly this session. The Legislature overturned his order that most girls
be vaccinated against the virus that causes cervical cancer and placed a two-year
moratorium on some private toll-road projects.
– Houston Chronicle Editorial, May 30, 2007

“It seemed as if Perry had made a conscious decision to mimic all the bad qualities of
the governors he has known”
– Patricia Kilday Hart, Texas Monthly

On David “Lite Guv” Dewhurst
“Senators from both parties sent delegates to have a private sit-down with Dewhurst
and tell him he should behave himself. They also told him that his desires to run for
higher office someday were clouding his judgment in the here-and-now.”
– Fort Worth Star-Telegram Editorial, May 23, 2007

“Lieutenant Governor Dewhurst’s penchant for treating senators as if he were
the team owner instead of the coach soured his relationships with members of the
upper chamber.”
– Paul Burka, Texas Monthly

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On Toxic Tom Craddick
“The No. 1 problem in state government is Tom Craddick. His abuse of power is out of
control and he needs to be stopped.”
– Kaufman Herald Editorial

“He clings to his office, not because a majority clearly wants him there but thanks to his
questionable use of House rules to block any attempt by the House to vote on whether
to keep him.”
– Austin American Statesman Editorial, May 29, 2007

It’s anybody’s guess how the events of the past five years shape the Texas
Legislature. In chaos, as the cliché goes, lies opportunity. With the financial resources
garnered by the Democrats’ several boycotts, and the message power and focus it
provides to leaders and numerous special interest groups, the Democrats may have
found a mechanism for reforms. Serious issues await the colorful representative body –
but it’s ability to re-establish its “cultural orientation” away from tough-talking, good old
boy, cravenness to special interest and toward a more responsive, even-handed public
policy driver institution will require the public to show its hand and demand reform, not
simply respond to lip service and crisis management solutions.
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Chapter 7
The Texas Governor, Executive and Bureaucracy

You can easily spend ten to twelve million and a year’s worth of sixteen-hour days
winning the job, and in the process, be subjected to all kinds of ridicule and personal
attacks. Once elected, you may catch all kinds of flak for developments over which you
have little or no control…

In state politics, the role of governor is a curious mix of personality, executive
authority, and ceremonial leadership; it is the pinnacle of state-level electoral politics,
and the subject of media attention and celebrity appeal. And that was before the
summer of 2009, when Californians orchestrated a recall election to retain or dismiss
current Gov. Gray Davis…thus unleashing a “circus” of
sensation-as nearly two hundred candidates attempt to
capture the governorship of the US most populous and
economically productive state. Regardless that the
winner was actor Arnold Schwarzenegger, observing
how a state’s populace relates to their governor is an
indication of the office itself. Governors, like presidents,
are expected to lead – to make it happen – and to
represent the whole state, somehow appealing to the
body politic at the same time.

This unique mixture has produced interesting outcomes in US politics in 1998,
Minnesotans elected former professional wrestler Jesse Ventura as governor, and of
course Ronald Reagan began his path to the presidency as California’s Governor in
1962. Governors hold a special place in national-level politics, often being appointed to
a cabinet post or executive agency directorship. For example, President George W.
Bush chose Governors Christie Todd-Whitman, Tommy Thompson, and Tom Ridge to
various posts, Bush himself a former governor. In fact, since 1976, four governors have
won the presidency: Jimmy Cartel, Ronald Reagan, Bill Clinton and George W. Bush.
Numerous others have been candidates, and in 2008, Governors Mike Huckabee of
Arkansas, and Mitt Romney of Massachusetts had strong campaigns as Republican
presidential nominees.

This trend is somewhat unprecedented – the vast majority of earlier presidents had
served as US senators, Representatives, or military leaders. Why is this? What do
governors bring into the dynamics of US state and national government? The
connection is that offices, governor and president, epitomize the institution known as the
executive. The term implies leadership and, above all, accountability for the
organization – whether it is a nation, a software corporation, an Army brigade, or the
state of Texas. Governors and presidents share similar duties, dilemmas, and Powers.
This was very much on display during the Republican National Convention in 2008,
when Vice-Presidential nominee Governor Sarah Palin stated “…before I became
governor of the great state of Alaska, I was mayor of my hometown. I guess a small-
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town mayor is sort of like a “community organizer,” except that you have actual
responsibilities.”

In order to fully realize the concept of the executive in American politics, one must
examine the relationships between the governorship and other branches (the legislature
and the courts) AND those between the governor and his/her own branch. At the federal
level, the branch is usually referred to as the administration, or the federal (Washington)
bureaucracy. In Texas, the branch is known simply as the executive.

This chapter will, therefore, examine both the governorship and the executive as
functional elements of an overall goal-to execute the governance of or simply to “run the
state.” The second article of the United States Constitution summarizes that concept
concisely, as the founders empowered the president “to take care that the Laws be
faithfully executed.” In other words, constitutions tend to make brief or vaguely worded
reference to the intent of the chief executive; from that point on, individuals and history
begin to fill in the blanks of “how to govern.” Understanding the executive in democratic
governments requires an understanding of the constitutional (formal) powers granted to
the Governor, and the power relationship (informal) between the Governor and other
branches, as well as the Governor and the media. This chapter will cover the following
in order to systematically build upon the student’s understanding of the complex
executive:

Essential Elements of the Governor and Executive

The Governor (legislative, executive, and informal powers)

The Plural Executive (origins, structure, elected executives, appointed
executives)

Texas Boards and Commissions (functions, categories, elected and appointed
boards and commissions)

Organization and Bureaucracy (characteristics of bureaucracy, comparative
perspectives, iron triangles

Part One: The Texas Governor

The Texas Constitution, in Article IV defines the “Executive Department.” As was
explained in previous chapters, the 1876 Constitution placed many restrictions on the
powers of the governor, in a state reeling from the authoritarian E. J. Davis regime. The
Fourth Article defines the plural executive, that is, the five elected executives in addition
to the governor, and describes the governor’s formal qualifications and powers. We
shall augment the constitutional description with a discussion of all-important, though
elusive, informal powers of the governor.

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Formal Qualifications and Powers

Article IV, Section 4 of the Texas Constitution defines the few qualifications for the
governorship. Texas governors are elected to four-year terms, scheduled to coincide
with the national mid-term elections (elections two years after the presidential election).
A candidate must be at least thirty years old, a citizen of the United States, and must
have resided in this state at least five years immediately preceding his/her election.

The governor’s formal powers fall into two overall categories: legislative and
executive. The former are listed in Article IV, Section 1.4; they confer upon the
governor his or her most significant powers.

Legislative Powers of the Governor

In the latter part of the previous chapter, “actions by the
governor” were detailed in terms of the legislative process.
These actions, along with the authority to call the Legislature
into special session, represent the Governor’s legislative
powers. They are “the veto options”: the veto itself, the
threat of veto, and the line item veto. In short, these powers
directly or indirectly provide Texas Governors the ability to
shape the legislative agenda. In terms of overall
effectiveness, one should consider the scope of
gubernatorial power to best evaluate legislative outcomes. In
other words, what may appear to be hard-nosed decisions
by Governors really could have been dealt with differently;
conversely, what seem like tough, firm, or bold statements
may be more along the lines of bargaining. Texas Governors
must weave their legislative powers in a careful, continuous
pattern.

Veto Power

This action may be rendered to any bill reaching the governor’s desk, at any time
(regardless whether the Legislature is in session or not). Vetoes can be overridden,
however, if two – thirds of each legislative chamber agrees to do so. Rarely if ever does
the governor apply his or her veto power while the legislature is in session risking an
override. The wise Governor will wait until the Legislature has adjourned (provided the
bill reached the Governor within ten days of adjournment), and then veto the bill. Vetoes
are undoubtedly very effective – the legislative item is terminated, at least until the next
regular session convenes. They are not, however, very efficient obviously, a bill must be
of significant value if it has survived the many “kill zones” of the legislative process, and
has probably undergone revision and amendment, after much deliberation. This is not to
say that bills should never be vetoed. It would seem, however, that “preventive
medicine” in the form of gubernatorial and legislative leadership might preclude an
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otherwise missed opportunity. The next two items are tools that help governors avoid
last minute veto actions.

Threat of Veto

This action is really a form a bargaining, at which some governors are more skillful
than others. Though bargaining itself is not a formal power of an executive, threats to
veto are considered formal due to their “leverage.” What a skillful governor attempts
with veto threats is actually to “shape” the legislation to better accommodate his or her
policy goals. A well timed threat is especially important when the governor is opposed
by one or both presiding officers on a certain legislative proposal. In other words,
threats to veto are not usually necessary to shape legislation when the three leaders are
in agreement. Ultimately, threats are not necessarily effective (the threat may be
ignored), but they are fairly efficient–the proposal will become law in one form or
another!

Line ltem Veto

Unlike the United States president, most state governors are granted the line item
veto. The Texas Constitution describes this power (along with veto, and not signing
bills) in Section 14 of Article IV. The Article specifies that only bills “containing several
items of appropriation” are subject to portions of the bill being vetoed, “if he may object
to one or more of such items, and approve the other portion of the bill.” An
appropriations bill is usually referred to simply as a “money bill,” which authorizes
state funds for every legislative act that requires funding.

The appropriations bill is basically a companion to
the budget bill, which tells us how and where state
funds will be spent (while appropriations tells us how
much is actually authorized). Line item veto usually
gives an executive great leverage over what becomes
public policy. In other words, he or she may actually
stop a program’s implementation by vetoing its funds,
while approving the rest of the money bill. As with
vetoes, however, the Legislature may override, with
two-thirds of each chamber approving, a money bill
that contains a line item veto.

“Will Legislators Control Spending?”

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Special Sessions

As stated in earlier chapters, special sessions are a formal legislative power vested
only in the governor. The authority is granted in Article IV, Section 8 of the state
Constitution. Again, a special session must be called for a specific reason posed by the
Governor, and the sessions may not extend past thirty consecutive days.

What makes special sessions such a gubernatorial power? The Governor can lead
the lawmakers back to the capital, but he or she can not make them create good laws.
Why are these sessions called at all? Often, the clever governor is able to focus
attention and visibility on a certain policy area or a specific legislative item by calling the
session. Some term this kind of maneuver a version of “going public,” which will be
described in the next section. Simply stated, calling a special session is a sure-fire way
for Texas Governors to point fingers at an occasionally reluctant legislative effort and to
help inform constituents about the overall service of their legislators.

Sessions have been called in previous years to focus attention on controversial such
as school finance and workers’ compensation, but during the first few years of his
tenure, current governor Rick Perry used special sessions for highly politicized function
of congressional redistricting. In fact, the first legal challenge to the issue was whether
redistricting actually met the standard for calling special sessions. During the summer of
2003, the Senate Democrats’ lawsuit alleged that Perry had no authority to call a special
legislative session on congressional redistricting because the constitution limits that
power to “extraordinary occasions”.

Perry called a special session in 2004, to focus
attention on the inadequate school funding system,
and two more in 2005, ostensibly for the same
reason. None produced any effective results (see
Ch. 6). Finally, the special session in April 2006
presented the governor’s plan (after appointing a
special commission headed by former Comptroller
John Sharp to craft the proposal) yielded acceptable
results.

Executive Powers

Executive powers are unique in their variety and encompassing authority. These are
the more traditional “head of state” duties we tend to equate with our elected chief
executive. Executive Powers derive of course, from Article IV of the state Constitution,
from statutory authority (United States Congress), and from executive authority
(executive order of the President). Governors use their executive powers to the best of
their ability, although some governors benefit from circumstances during their tenure
more than others. For example, former Governor John Connally gained immense
national and international attention when he was shot along with President John F.
Kennedy.
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Although the circumstances were grievous, Connally gained exposure and “name
power” after the devastating events of November 1963. On a different vein, former
Governor Ann W. Richards was able to exert her diplomatic Powers more than other
governors, as she received Mexican President Carlos Salinas de Gortari in support of
the campaign for the North American Free Trade Agreement (NAFTA)

Regardless of circumstance, Texas governors can enhance their overall power by
aggressively Pursuing executive opportunities in a way consistent with their overall
policy goals. The most visible and effective of the Texas Governor’s executive powers
begins with his or her appointments to the state’s executive leadership positions.

Appointive Powers

Although the state’s constitutional founders intended for gubernatorial authority to be
limited, the power of appointment is actually more substantial than it seems (when one
considers appointments to fill elective vacancies). Furthermore, the office was granted
certain removal powers in 1980, by constitutional amendment.

At the time of the constitutional founding, the executive branch basically consisted of
the Governor the Lieutenant Governor, a handful of elected officials, and two key
elective boards-the Railroad Commission and the State Board of Education. This
arrangement was the heart of the plural executive intended by the founders. Power was
fragmented into several areas of responsibility, especially with the assignment of
Lieutenant Governor as president of the state Senate. Where did that leave the
Governor with regard to staffing his or her agencies? Section 2 of Article IV basically
states that the Governor would fill “all vacancies in State or district offices, except
members of the Legislature…with the advice and consent of two-thirds of the Senate.”

In other words, the Governor has no direct power of appointment; instead, he or she
fills vacancies of those state and/or district offices that are not elective positions. During
a four-year term, a Governor will make about 3,000 appointments. Most appointments
are one of the following:

State officials and members of state boards, commissions and councils that
carry out the laws and direct the policies of state government activities;
Members of task forces that advise the Governor or executive agencies on
specific issues and policies; and
State elected and judicial offices when vacancies occur by resignation or death
of the office holder

Therefore, as time passed and the Legislature created more and more agencies
(usually referred to as boards and commissions), the Governor’s power of appointment
became institutionalized, as vacancies occur whenever the official’s six-year term
expires. One significant barrier to a Governor’s making sweeping changes is that the
six-year executive terms are staggered every two years. In practice then, Texas
Governors are able to fill (appoint) positions on the state’s numerous (over 250t boards
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and commissions, although it takes three years before a governor has appointed a
majority (approximately two-thirds) of the posts. Another possible barrier to this power is
that senatorial courtesy is extended to every one of the governor’s appointments.

Senatorial courtesy basically gives the senator from the appointee’s district the right
to voice any truly legitimate objection to the appointment; usually, senators are
cooperative with the Governor here, although rough edges crop up when an outgoing
governor’s appointee faces objections by a newly formed Senate. Interestingly, one of
Governor Perry’s first appointees, Henry Cuellar, a Democrat, felt the “pinch” of party
affiliation. Although he was readily confirmed, rumors about Cuellar’s changing parties
surfaced a few months later. Secretary Cuellar immediately refuted the allegation, and
that he in-tended to run for another office in 2002.

Regardless of political expedience, or necessity, one thing is obvious – governors
are able to better influence the public policy process when they are able to appoint
dynamic, competent and like-minded individuals to as many key posts as possible.
Despite the potential for effective appointments, a governor has very little formal
authority to force personnel changes of compliance with his or her directives. Another
hindrance is limited removal powers – granted in a 1980 amendment to the Texas
Constitution. Prior to that year the Governor had no removal powers. Currently he or
she may only remove their own appointees, with the approval of two-thirds of the state
senate. It is somewhat axiomatic that Texas governors must rely on public and informal
political skills to shepherd the vast state bureaucracy to some degree of success
(bureaucracy is another term for the executive branch government).

In addition to the appointive boards and commissions, the governor fills vacancies of
aII elective posts (including judges), with the following exceptions:

County, municipal, and Justice-of-the-Peace judges
State senators and representatives
The 30-member Texas delegation to the U.S. Congress

For Congressional vacancies, special elections are called by the governor. If a
United States senator from Texas leaves office, the governor appoints an interim
senator who serves until a special election takes place, again at the governor’s call. All
other “elective appointees” serve until the next general election (November of even-
numbered years). As one may observe, Texas governors – depending on
circumstances – are in fact able to appoint many individuals to a variety of important
positions. The appointee generally tends to gain name recognition, and (at least
heretofore) the “incumbent advantage” if he or she decides to retain the position by
election. In 1995, Governor Bush appointed Antonio Garza as his Secretary of State;
Garza subsequently ran a successful campaign for Railroad Commissioner, (the
Railroad Commission also serves as a stepping stone for higher office).
Good, bad, or insignificant, a governor often leaves the legacy of his or her tenure in
the shape of appointed executives. For example, many observers regard the distinction
of Ann Richards’ term as having appointed a large number of women and minorities to
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positions of authority in state government. Current governor Rick Perry originally
retained a number of appointees from the George W. Bush era, though signs of a
distinct pattern would emerge by 2003, with Perry’s appointment of Houston uber
lobbyist Mike Toomey. Thus began the flow of private donations, in an unprecedented
manner and volume, into the inner circle of the state’s top executive.

That private money and influence factor into appointments is a given for any
administration. Where the current regime has gone, represents a different degree. Mike
Toomey, like most folks leaving private business for a state job, would be paid
considerably less in government service. Instead, Toomey received salary supplements
from political donations to Perry, of at least $100,000 in 2003. When questioned about
this, the Governor’s office responded in typical stonewalling tones…

By 2007, these observations have been affirmed and the conclusion simple – that
the current path to success through Austin will be reserved for the very wealthy.
Interestingly, this fact is parallel to the far-wider income gap that’s evolved in the past
several years (wealth is concentrated in an increasingly smaller number of households).
The following article by Wayne Slater of the Dallas Morning News sums it up:

Perry’s Top Donors Get Business, Appointments

A handful of super-rich political contributors, giving at least $25,000 a year, will
put at least $10 million into Gov. Rick Perry’s re-election treasury – forming an
elite fundraising corps that the campaign calls the Century Council. In
exchange, donors who pledge to give at least $100,000 get invitations to private
luncheons with the governor. And many are beneficiaries of government
business, plum appointments and other state largesse.

Three Century Council members have lucrative contracts to help build Mr.
Perry’s multibillion – dollar toll-road initiative. The state has deposited millions in
investment funds operated by three other top-tier givers. And 16 are Perry
appointees to coveted boards, including the Parks and Wildlife Commission and
state university regent boards.

A Perry campaign spokesman says the donors get no
special treatment. But the number of super-donors
dwarfs anything that Mr. Perry’s three most recent
predecessors had, according to a computer-generated
review of contribution records.

Mr. Perry has attracted twice as many $25,000
contributions as fellow Republican George W. Bush did
in 1994 or 1998. Mr. Perry has more than five times as
many as Democrat Ann Richards had in her 1990
campaign and Republican Bill Clements had in 1986,
according to the records.
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Advocates of campaign finance reform say the big money is designed to buy
access. “The kinds of people who step up to the plate to give this kind of money
tend to be people who want something from government,” said Andrew Wheat
of Texans for Public Justice, a nonprofit group that tracks campaign
contributions.

Robert Black, a Perry campaign spokesman, denied the charge, saying donors
give money because they support his stewardship as governor. “They believe in
his leadership, his vision for the future and where he wants to lead the state,”
Mr. Black said. “If they have any ulterior motives, they need not give.”

Among Mr. Perry’s donors, at least 85 are members of the Century Council,
who have contributed at least $25,000 a year toward Mr. Perry’s re-election
since his last campaign in 2002. Some have given much more. His biggest
contributor, Houston homebuilder Bob Perry (no relation), has given more than
$700,000 since Rick Perry became governor.

In 2003, the Legislature created a state agency to resolve construction disputes
between homebuilders and consumers. The governor appointed the Houston
homebuilder’s corporate counsel to the agency’s governing board.

Three highway contractors benefiting from the Trans-Texas Corridor have been
major Perry contributors since the late 1990s. H.B. Zachry, whose San Antonio
construction company is a partner in the project, began giving annual
contributions of $10,000 after Mr. Perry was elected lieutenant governor in
1998. After Mr. Perry succeeded Mr. Bush as governor, the contributions grew
to at least $25,000 a year.

Century Council Makeup
Here’s a look at some members of Gov. Rick Perry’s Century Council,
a group of regular high-dollar donors, and their interest before the
state or appointed position:

Contributor Hometown/occupation State interest
Bob Perry Houston homebuilder
Employee appointed to
agency regulating
construction disputes
H.B. Zachry San Antonio highway contractor
Partner in Trans-Texas
Corridor project
Larry Anders Dallas insurance executive
Texas Tech Board of
Regents
J. Frank Miller Dallas developer Texas Tech Board of Regents
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Military Powers

At the time of the Constitutional founding, the term “militia” was especially important
to state government, although the states of the former Confederacy basically gave up
their jurisdiction over the state’s military forces (now, of course, known as the National
Guard). Most states, Texas included, have a much smaller State Guard, which is under
the governor’s control. Otherwise, the National Guard falls under the jurisdiction of the
United States president, who basically delegates this power to the state governors. If a
president orders National Guard troops into action, the governor must comply.

Governors typically must request the mobilization of National Guard assets, in
response to natural disaster or riot control, but a president may (through the Secretary
of Defense) deny a mobilization. National Guard troops are paid with federal funds,
which, of course must be approved on declaration of natural or other
disaster/emergency response.

“Texas State Guard 39th Civil Affairs Deploy on Hurricanes”

The state of Texas, due to its size and vulnerability to flood, hurricane, and other
emergency situations (not to mention its 1,500-mile border with Mexico) provides ample
opportunity for the governor to command his/her forces. In fact, National Guard troops
Robert
Rowling Dallas investor
University of Texas Board of
Regents
Erle Nye Former Dallas utility executive
Texas A&M Board of
Regents
Tom Friedkin Houston Toyota wholesaler
Parks and Wildlife
Commission
L.E. Simmons Houston investor
Nearly $100 million in state
deposits with his investment
firm
James
Huffines Austin mortgage banker
University of Texas Board of
Regents
James
Leininger
San Antonio
businessman
Governor’s support for
school vouchers

Notes: Contributors have given at least $100,000. Donations cover
the period from January 2003 to June 30, 2006. SOURCES: Dallas
Morning News research; Texas Ethics Commission

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were quietly involved in numerous drug interdiction efforts in concert
with local law enforcement and federal agents in an operation called
Task Force 6, in the early 1990s. The Texas National Guard’s 49th
Armor Division distinguished itself by performing g a task force
command over the United States peacekeeping mission in Bosnia
2000, as well as numerous mobilizations and deployments to Iraq.

In addition to serving as Guard commander-in-chief, the governor also appoints the
active duty National Guard Commander, who is usually a Major General, to the position
of Adjutant General.

Judicial Powers

These powers are basically divided between the governor and the state’s eighteen-
member Board of Pardons and Paroles. The actions include granting pardons (or
conditional pardons), paroles, reprieves, commutations, and remissions of
fines/forfeitures. The board, which is appointed by the Governor, is responsible for
granting paroles (an early release from prison). The Governor, independent of the
board, may perform acts of executive clemency (lenience, or mercy) which are limited to
pardons (being cleared of charges and restoring the individual’s civil rights), and a one-
time, thirty-day reprieve (a stay of execution) for a capital sentence. Governors may
grant additional reprieves and commutations (reduced sentences), and remit fines and
forfeitures, upon the recommendation of the board.

Governors in Texas and other states have been criticized in previous eras for
excessive lenience and/or mercy on criminals. Given the overall fear of violence and the
intolerance of crime in the 1.990s, such accusations are not likely to be voiced in the
Lone Star State. Former Governor Richards granted no reprieves during her tenure, and
George W. Bush granted few commutations – including the infamous serial killer Henry
Lee Lucas – though he refused dramatic pleas to spare the life of Karla Faye Tucker
earlier in 1998. Despite their personal views about criminal justice, the elected leaders
of Texas will demonstrate toughness on crime, in the present and foreseeable future,
despite federally mandated restrictions on the death penalty. During his seven years in
office, Gov. Perry has commuted only one inmate, other than 28 inmates he spared in
response to U.S. Supreme Court rulings barring the execution of juveniles and the
mentally retarded. During his tenure, Perry has allowed 163 executions, more than any
other Texas governor.

Planning and Budgeting

In the past fifteen years, state governors have acquired an increasingly vital function
as the state planning officer. Planning Powers are not described in the constitution;
instead, they accrue to the Governor by virtue of being the chief executive. In this
period, roughly coinciding with Free Trade Agreements, shifting global markets and
other issues like immigration security, state governments have become increasingly
responsible for the direction and purpose of federal expenditures.
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Each state has a different mixture of grants-in-
aid in recent years. In 2002, the emerging
homeland security programs, which Pour billions of
dollars into various corners of the state’s spending
and services effort (grants will be discussed in
chapter 12). Often, states must qualify and/or
compete with each other for such funds; generally
speaking, the greater the “planning” system, the
more competitive the state. In other words, states
with strong centralized administrative networks
tend to attract federal dollars for certain programs/projects, as they appear to be better
equipped to achieve the goals of such projects.

Basically, Texas’ planning authority consists of the Office of State-Federal
Relations (OFSR), the Budget, Planning and Policy Division, the State Grants
Team, and the Texas Health Care Policy Council. The longest-serving entity, the
OSFR is the state’s advocate in Washington, DC, representing state government with
the Administration, Congress, and federal agencies to advocate the interests of Texas,
especially as interests relate to the missions and functions of Texas State Government.
Similarly, the mission of the State Grants Team is to increase Texas access to available
federal funds. Created through the Federal Financial Assistance Management
Improvement Act of 1999, State Grants Team has effectively demonstrated the
necessity for greater management of federal funds (especially in large, populous states)

Given that this policy area entitles the largest amount of federal funds, The Texas
Health Care Policy Council was created as a new entity within the Office of the
Governor through HB 916, 79th Legislature. The mission of the Council is to research,
analyze and provide recommendations on ways to improve the quality, safety,
efficiency, and effectiveness of the health care system in Texas. Other new entities
involved in planning include The Military Preparedness Commission, and the Emerging
Technology Fund described in Chapter 1 of this text.

The importance of these entities illustrates the culmination of the vast changes in
government and economics, as well as attitudes about the role of government in an
individualistic and traditionally independent state like Texas. It may be seem odd to
younger students, but as recent as the early 1990’s; the Lone Star state of mind was to
ignore federal initiatives, due to restrictions imposed by them. In other words, we’d
rather do things our way, with less! In response to Texas traditional indifference to
federal funds, former Comptrollers John Sharp and Carole Keeton Strayhorn directed
improvements in ways public finance could be adopted and coordinated.
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Since taking office in 2001, Governor Perry has been actively involved in continuing
the further empowerment of the Governor’s Office in planning and budgeting. This trend
has grown increasingly visible, although contentious, in the years following the
September 11 terror attacks, and the widening net of border, finance and identity
security. Very similar to the pattern of tools used by President George W. Bush, with
regards to the need for greater central authority, Gov. Perry has used a variety of
resources to shape and endow his key areas of concern.

The Governor’s budget powers are an interesting mixture of other formal Powers,
along with the constitutional requirement to “account to the Legislature for all public
monies received … and present estimates of the amount of revenues required. …”
(5) In reality, Texas Governors’ budget
powers are marginal at best, given the rigid
structure of state finances. Governors
(through their budget staff, the Office of
Budget and Planning) typically submit a
budget proposal, along with the proposal of
the Legislative Budget Board, by December
of even-numbered years (which will then be
presented to the new Legislature).
Occasionally, the Governor will not even
bother to submit a budget.

In the past, this inattention would not have been unusual, as the state budget tended
to reflect the Legislative Budget Board’s plan – until the 78th Legislature convened in
2003, facing a 10 billion dollar budget deficit (twice the size reported at the end of
2002). Gov. Perry and the presiding officers quickly seized the opportunity to drastically
alter the budgetary method for 2004-05 budget cycle. The term zero-based budget
(see chapter 13) became commonplace, as Perry directed all state agencies to re-
validate spending from “the bottom up.” Although this practice is highly effective, it is not
very efficient in terms of time management-especially when the change is imposed
during the brief 140 – day Legislative session. Half-baked initiatives rarely produce
effective results. The agencies and the Legislature rallied to the task, and the
Governor’s office froze a number of grants to schools and health care programs. The
state comptroller, Carole Keeton Strayhorn, carved a niche for her office by cutting the
agencies’ budget, upstaging the Governor and presiding officers by critiquing their plans
and methods – and continuously updating the state’s fiscal condition.

As economic conditions continue to affect state budgets, the relationship between
the Governor, Comptroller and Legislature will take center stage at the start of the 81st
Legislature in 2009. The public sentiment toward lax oversight of programs, and
wasteful or inappropriate spending has been sharpened in the past few years. Texas
finances haven’t yet reflected the pockets of economic downturn and housing/mortgage
collapse of other states, but by January ’09, another wave of reform may be in store.

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Law Enforcement Powers

Larry McMurtry’s final sequel to the Pulitzer Prize winning epic “Lonesome Dove”
accurately summed up the unique nature of law enforcement prior to statehood in 1846.
The-President Sam Houston addressed the perils facing the
vast territory of the new Texas Republic by empowering a
group of former soldiers and adventurers as “rangers”
whose duties were to protect the lives and property of all
Texans – using whatever means possible. One scene
captured all this in a simple statement that “a Ranger’s
jurisdiction is wherever we are.” Since then the rugged,
independent and adaptive nature of the state’s law
enforcement regimen has come under more direct control of
the Governor than ever before.

“Lonesome Dove Trailer”

When the Constitution of 1876 was written, no formal law enforcement powers were
granted to the Governor. However, the tradition of commanding the Rangers is still a
governor’s prerogative, although many other elements of law enforcement exist under
the umbrella organization of the Public Safety Commission. The governor appoints the
three-member commission which oversees and directs over 5,000 state employees of
the Department of Public Safety (TxDPS).

The DPS, in turn, is comprised of major elements: Drivers License, Highway Patrol,
Administration, Ranger Division, and Criminal Law Enforcement. Ultimately, the
governor may assume direct control of this institution, in times of emergency or to
simply maintain law and order against social upheaval (riots, terroristic acts, etc). As
stated earlier, Gov. Perry has significantly increased the governor’s role in public safety
roles, given the sense of urgency created by terror incidents, hurricane Katrina, and
concerns over border security. The changes have mostly been with regards to
reorganizing, which typically means “creating new departments to more specifically
address emerging needs”. The first and most obvious example is state-level emergency
management (not to be confused with the now-infamous FEMA – Federal Emergency
Management Agency)

The Governor’s Division of Emergency Management (GDEM) was previously
called the Emergency Management Service and was a part of the Administration
Division. The change was approved in November 2005. The Division is home to the
State Operations Center, located underground in DPS Headquarters in Austin. The
SOC serves as the focal point for the state of Texas response to man-made and natural
crises, including hurricanes, tornadoes, floods, wildfires and terrorism.
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The SOC is also home to the Emergency Management Council, which includes 32
Texas state agencies and the Red Cross and Salvation Army when fully activated to
respond to various threats. The Division has grown
considerably in recent years, especially by increasing
the number of Regional Liaison Officers (RLOs) to work
extensively with cities, counties and other state
agencies in carrying out emergency response. They
also activate the State Amber Alert Network for missing
children and the State Silver Alert network in
conjunction with the DPS Criminal Intelligence Service
and various other agencies.

The second major change is in the area of identity fraud and crime-related data
management (intelligence). Briefly, Perry and his immediate security advisors had
attempted to move the new data management under the governor’s direct control. The
state’s top law enforcement leaders quickly adjusted this initiative, as did a number of
key Legislators during the 2007 session. The result was a reorganized Criminal Law
Enforcement (CLE) entity, the Bureau of Information Analysis.

Effective September 13, 2007, the Public Safety Commission approved a high level
reorganization plan for the Criminal Law Enforcement Division that includes
components of the Texas Ranger and Driver License Divisions. This plan provides for
the consolidation of all Department crime analytical resources under a single command
called the Bureau of Information Analysis (BIA) which reports to the Chief of Criminal
Law Enforcement.

Historically, the Department’s analytical personnel had been centered within the
various specialized units and provided service and products predominantly to a narrow
customer base. Under the new structure, BIA will allow more flexibility to provide the
entire range of services to all of the Department’s enforcement units and other entities.

Informal Powers of the Governor

In addition to the itemized formal powers just discussed, state chief executives also
wield a variety of informal powers. These powers are viewed by most political pundits as
the true keys to success in executive governing, especially in states where the office of
the governor is structurally weak or fragmented. Typically, informal powers derive from
two basic sources – the privileges and access channels of the office itself, and from the
intangible, circumstantial qualities of the governor as leader. These two sources of
informal power are entwined in a web of factors, which may serve to vastly enhance the
role of the chief executive, or to basically stifle or hinder the ability to influence public
policy. Though leadership is an intangible trait, sources of informal power can be
categorized as follows.

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Official Powers

These powers include the governor’s role as the “First Texan,” the leader of all
Texans, and the governor’s privileged position with the media, that is, to conduct press
conferences and to address the state through his or her right to present “messages.”
These duties are very symbolic and powerful, and very similar to those performed by
the president of the United States. In other words, the chief executive (at either level) is
elected by the voters of the state (or the nation), which warrants a special relationship
with the citizens. This relationship is commonly referred to as a mandate, which elected
leaders may use to their advantage, conditions permitting. One way to “use” a mandate
is by the results of the election itself, especially if the margin of victory is sizeable. The
governor will acknowledge that the people indicated what they (of course/ very loosely)
wanted when they cast their ballots for him or her. As we all know, this is a very inexact
science, as voters often vote against something (an anti-abortion candidate) or
someone (the voter simply does not like the other candidate, or the other candidate’s
party).

In any event, governors are able to reach the people, to connect with them, given
their position as the elected chief of state. Of course, not all governors use this power –
often referred to as “the bully pulpit” pit,” as they may not shine in front of a camera or a
throng gathered for a public address. Other times, the position lends itself to strengthen
the governor’s popularity, and therefore their power, when
people look to the chief for leadership during trying times.
Citizens feel “taken care of” or bonded with a governor
when he or she speaks about a natural disaster. Violent
catastrophes like the attacks on the World Trade Center
and Pentagon, 2001 or Hurricane Katrina in 2005 are
especially prone to the need for social leadership and
comfort. Governors George Pataki of New York and
Frank Keating of Oklahoma (after the Oklahoma City
bombing 1995) were very visible and effective in
rendering ceremonial leadership during crises.

Situations like these bring together several aspects of informal gubernatorial power,
where position itself creates opportunities for enhancing one’s power base (by helping,
sharing, or appealing to the people).

lntangible Informal Powers

These powers are sometimes referred to as “tools of persuasion” as they enhance
the governor’s ability to influence public policy by influencing other people. Certain
factors, especially when combined, make huge differences in the governor’s ability to
sway things political. They include:

Political Skills – Basically, these have to do with making unlimited contacts and
developing a network of mutual support with others in different political markets. One’s
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record and credibility play an important role in developing political skills, as does the
ability to make good decisions which is referred to as “using political capital”- while
learning to compromise.

Media Skills – Clever governors maintain good relations with the press. As discussed
earlier, some governors truly enhance their ability to influence through the media by
staging public relations events to promote their policy goals or by casting a spotlight on
areas his or her detractors would rather keep under cover. For example, former
Governor White was known as “Media Mark,” as he had a knack for integrating
televised coverage into his campaign and tenure as governor. White ran an aggressive
campaign geared toward popular reforms, which often shed light on aspects of then-
Governor Bill Clements’ administration. George W. Bush has also made effective use of
media exposure in familial settings, attempting to enhance his “compassionate
conservativism” by conjuring images of his large and popular political family. Bush, not
surprisingly, benefitted from national reporting as the Republican presidential nominee.
National media exposure is truly a two-edged sword, as the opportunity for hype and
sensation increases, while the “favorite son” reporting mentality decreases.

Personality and Charisma – Ann Richards is the truest embodiment of these “tools of
persuasion” to ever occupy the governor’s mansion. Richards’ personification of Texas
political wit and homegrown, “good old girl” politics put her on a fast track to national
and international recognition. Even after her defeat, Richards retained a very high
popularity rating (over 70 percent, rendered
by a Texas poll in March 1995). Though
George W. Bush originally lacked the
magnitude of Richards’ appeal, the
charisma of his family greatly benefited his
campaign for the governorship, which
further enhanced his charisma toward the
presidential arena. In short, personality is
the type of power that can truly enhance
“back-room politics” and rubbing elbows
with national and international political and
cultural leaders.

Good Timing (Luck) – As the saying goes, “the times make the man” which is
especially applicable to those in positions of power and authority. Politics reflects
history; thus, a gubernatorial candidate may encounter circumstances that create an
opportunity for huge successes, and/or equally huge failures. Examples abound. James
V. Allred was fortunate to serve during the liberal era of Franklin D. Roosevelt, which
invigorated his liberal politics. Mark White, however, inherited a devastated economy
during the mid 1980s. George W. Bush ran for governor during a season where
Democratic politics were anathema and former Lieutenant Governor Rick Perry
inherited the governor’s mansion after George W. Bush left in 2000. Although most
administrations are not impacted by sweeping historical events, good luck is always an
element of politics. Perhaps a rival falls from grace with the public or a detractor may
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accept an appointment elsewhere in the political world-there is no way of estimating
good fortune, but it is generally an element of successful service.

Section Two: The Plural Executive

Thus far, we have examined the focal point of “the executive” function in Texas
politics-the governor. This section is dedicated to explaining the rest of the executive in
Texas politics, the separate and diverse array of agencies known as the plural
executive. Since the executive is a very large place, we’ll direct our discussion toward
the following goals:

Identify and discuss the elected, single-headed agencies

Identify and discuss the appointive, single-headed agencies

Identify and discuss the elective boards and commissions

Categorize and discuss the appointive boards and commissions.

With a greater understanding of these specific elements, the abstract concept of the
executive becomes more applicable, therefore more meaningful. The governing
contribution of these elements is policy implementation – for the most part – which has
many compelling, at times cynical, attributes. In Section 3, we will examine what
executiveness means in terms of implementation by discussing the bureaucratic
phenomenon and subgovernments. For now we shall look at the huge, multifaceted
government of the Lone Star State by identifying the actors – the plural executive.

Elected Executives of the Plural Executive

In addition to evaluating state governments by how strong or weak the office of the
governor is, one may also evaluate executive power by the number of elected officials-
a-given state has, compared to other states. Norman Luttbeg acknowledges the range
of possibilities among the states – only Maine and New Jersey empower their governors
to appoint all other executives (similar to the powers of the United States president).
Otherwise,

[O]n the average the governor shares executive power with ten other
elected executives – a downward trend from 1956 when the average
was fourteen. North Dakota leads with nine executives plus two
statewide elected commissions in addition to the governor. Typically,
southern states – not surprisingly, since their constitution writers’
desires to weaken all government – have the most executives. On the
average they have two more executives than do northern states.
Clearly, many who wrote state constitutions saw multiple, elected
executives as a means for weakening the powers of the governor.

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In addition to the Governor, Texas is served by five elected executives, the
Lieutenant Governor, the Attorney General, the Comptroller, the Land Commissioner,
and the Commissioner of Agriculture. Additionally, there are two powerful elected
boards – the Railroad Commission and the State Board of Education.

The Lieutenant Governor

Unlike most other states, Texas’ Lieutenant Governor enjoys broad, flexible
authority, by constitutional design. As stated earlier, he/she possess both executive and
legislative powers, and are elected independent of the governor (thus, the two may be
from different parties). Previous Lieutenant Governors/William Hobby (1973-1991) and
Bob Bullock (199t-1998), have wielded great power and leadership through a very
demanding, turbulent era in Texas government. In fact Hobby, when asked if he would
run for governor, asked why, “after holding the strongest position in Texas, that of
lieutenant governor he would be interested in running for the number two office, that of
governor.”

In keeping with that spirit Texas’ new Lieutenant Governor, David Dewhurst, moved
into the job with a proactive and innovative style. He distinguished himself from the
Governor, Comptroller and House Speaker by floating different methods to increase
revenues, and use of the Rainy Day fund (which was close to a billion dollars) to help
ease the current year budget deficit. By April 2003,
Dewhurst led the Senate to adopt (by a 30-0 unanimous
vote) a school finance/tax plan which would reduce
property taxes 50 percent, while raising and expanding
the state sales tax. Meanwhile, the Governor and House
Speaker expressed slight contempt and irritation in Lt.
Gov. Dewhurst. Gov. Perry made comments to the effect
that Dewhurst was “too green” for such major initiatives,
while Speaker Craddick’s issue was that tax items must
begin in the House of Representatives (and that
Dewhurst was “showing him up”).

Dewhurst’s honeymoon with leadership and true productivity was short lived, as he
would fall in step with Perry and Craddick a few months later. During the 2003 special
session dramas, the Lt. Governor turned on his senate’s long-held and functionally
cherished tradition of “2/3rds” calendaring (see Chapter 8’s legislative process) This
method had proved itself worthy for decades, as a way of bringing forth bills that have
enough consensus to pass with a simple majority. Faced with Dewhurst’s arbitrary and
highly partisan move, eleven Democratic senators refused to form a quorum, leaving
the state for Albuquerque N.M. and remaining there for the 30 day session. Dewhurst
then joined Gov. Perry in a lawsuit to force the senators to return (the suit was quickly
dismissed)

In this environment, the Lt. Governor cast his die as nothing more than another
wealthy Republican partisan, doing the party’s bidding, while occupying an office that is
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supposed to serve all Texans, and presiding over a legislative body that represents all
Texans. In subsequent (79th and 80th) sessions, the Lt. Governor has pursued a few pet
projects, such as Jessica’s Law (tougher sentences for child molesters) and a new
mandate to test high school athletes for steroid use. A number of observers have
acknowledged that Dewhurst has put forth a limited agenda, that is, one that wouldn’t
require tough decisions or risk political controversy, as a signal that he is very interested
in running for Texas Governor in 2010.

Lieutenant Governors have other responsibilities in addition to the role of vice-
governor and president of the Senate. They serve, ex officio, on a number of significant
boards (especially the Legislative Redistricting Board, the Legislative Budget Board,
and the Legislative Council). As state governing becomes increasingly complex, it will
be interesting to speculate about restructuring not only the Governor’s office (and the
Legislature), but the rest of the plural executive, beginning with the Lieutenant
Governor.

The Attorney General

State attorneys general are usually considered the third most powerful executive,
given their opportunities to impact or direct the flow of public policy. At the federal level,
the Solicitor General performs duties most analogous to the state attorney general, as
the “nation’s lawyer.” In other words, the most salient functions both perform are to
represent the state, usually in civil lawsuits, and to present “pleas” in the Supreme Court
of the State in which the State [Texas] may be a party” (Article IV, Section 22 of the
Texas Constitution). The Texas Attorney General (AG) is basically the state’s civil
lawyer, unlike the United States attorney general who heads numerous criminal law
enforcement activities. At the state level, criminal law is enforced through the district
attorney (DA) of each county (this process will be detailed in the next chapter).
Attorneys general thus concern themselves with a few highly influential areas of legal
expertise.

First, the AG is responsible to issue advisory
opinions, whether requested or not, about the
constitutionality of statutory laws/regulations established by
the state. Often, members of the legislature do seek the
opinion of the AG while drafting or debating complex state
laws. Most of the time, however, advisory opinions are
requested by a state board or agency. Late in 2008, the
Texas Public Safety Commission originally asked for an
advisory, regarding the legality of a proposed statewide
random checkpoint proposal to check licenses/ID’s. The
plan got the media and a group of Legislators’ attention,
and the Commission withdrew the request.

Second, the AG also is the state’s advocate for consumer protection and anti-trust
laws. In the early 1990s, former Attorney General, Dan Morales, took an aggressive
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position on sniffing out consumer protection issues, especially with regards to worker’s
compensation insurance, environmental protection and child support. During 1995 and
1996, a number of state attorneys general, including Morales, filed lawsuits against
tobacco manufacturers on behalf of smokers “injured” by the irresponsible marketing of
tobacco products. Their success has set precedence for other consumer issues; for
example, fighting against monopolistic Microsoft in 1999, and in conjunction with several
municipal governments (none in Texas) some AG’s have brought suit against hand-gun
manufacturers.

Third, the Attorney General is the legal advisor to the office of the Governor, the
legislative leadership, other key executives, and local government executives. The
position obviously lends itself to high visibility status, as the direction and position of the
state’s top lawyer touch virtually all areas of state government and state politics as well.

“TX Attorney General Greg Abbot at RNC”

It is in this role that the current Attorney General has been very active, due to the
large volume of lawsuits amongst elected officeholders, and situations where the state
constitution has required a ruling, due to conflict or the need for interpretation. Greg
Abbot replaced John Cornyn as state AG in 2003, and has followed his predecessor’s
footsteps as a strong partisan of Republican views and goals. For example, Abbott has
formally upheld every action of the Governor, Lt. Governor and eventually the House
Speaker (see chapter 8 discussion of Tom Craddick) where their constitutional authority
or legal relevance has been challenged. The latest example is a recent ruling allowing
Tom Craddick to remain as House Speaker, despite the efforts of state representatives
to bring a motion for his removal during the 80th session. At the time, Craddick refused
to recognize the representatives during a floor session. The question for the AG had to
do with use of the House rules, which Abbott would find decisive in the December 2007
ruling. The following response from the key Craddick-ousters was cited in the Austin
Statesman:

In football terms, the Attorney General’s advisory opinion has punted
this issue to the courts and has fumbled in its attempted summary.
Craddick is elected from his Midland district which is only 1/150th of the
people of Texas. Based on this, we strongly disagree with the
unprecedented contention that the office of Speaker is a statewide
officer. Furthermore, it is unprecedented to contend that the House
Speaker is subject to removal by a vote of the Texas Senate. Sadly, the
Attorney General’s advisory opinion only reaffirms the adage: ‘Power
corrupts and absolute power corrupts absolutely.’ Tom Craddick’s
declaration of ‘absolute authority’ is an abuse of power and undermines
the basic premise of democracy in Texas government. We firmly
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believe Craddick’s application of ‘absolute authority’ has violated
constitutional rights of members of the legislature and the constituents
they serve. It is our understanding of the state constitution that the
Speaker is a legislative post constructed to serve the members of the
Texas House of Representatives as a presiding officer over its
operation. Because of the Attorney General’s own admission of a lack
of clarity by past Court cases, it now appears that the integrity of Texas
Government is still at a critical crossroads. (emphasis the authors”) *

*Note: The one instance of a negative ruling was an informal
advisement issued against Gov. Perry’s executive order mandating the
HPV vaccination of all female students in Texas public schools, in
February 2007. The Attorney General responded to a request from two
Republican legislators to “seek guidance in the form of an informal
response”.

Comptroller of Public Accounts

Presently, the Comptroller is the state’s auditor, accountant, and tax
collector/administrator. The Comptroller sets up tax accounts and issues the legislature
an estimate of state revenues for each biennial budget cycle. The office also audits
state agency expenditures and issues warrants for state spending. Additionally, the
Comptroller works together with legislative committee in the establishment of
appropriations levels. During the last month of each legislative session the Comptroller
will certify exactly how many billions of dollars are available for funding state programs.

As one may observe, the Comptroller’s office is a busy place.
Although many (including the former Treasurer Martha Whitehead)
supported the reorganization of treasury into the Comptrollers’ office,
others viewed it as presenting a conflict of interest. In November
1995, Texas voters approved a constitutional amendment
proposition to merge the two offices.

The Texas Comptroller is former Agriculture Commissioner
Susan Combs, a rancher from Brewster County, whose strong
record of proactive fiscal management of that agency gave her a solid base of support
and experience. Since assuming the Comptroller’s responsibilities, she has enacted a
number of reforms, such as concise economic planning forecasts, and creating greater
clarity and accessibility of tax data for industries and citizens alike. Combs’ release of
Texas in Focus: A Statewide View of Opportunities indicates her focus on planning and
responsiveness in an atmosphere of constant change…

“One of my responsibilities as Texas Comptroller is to analyze factors affecting the
state’s economy,” Combs said. This report is designed to give local and statewide
leaders detailed statistics and research that paint a full picture of where Texas stands
today and how it is positioned for the future. These reports will examine each of the
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regions’ demographic characteristics, including population and education,” Combs said.
“As with this report, the regional reports will look at the major issues facing businesses
and communities, tailored in detail to each region.”

Commissioner of the General Land Office

The Land Commissioner does not exactly steal the spotlight of state politics, but this
is indeed a critically important executive function (Texas maintains over twenty million
acres of state land). The Land Commissioner is responsible for the sale and lease of
such lands, and the rights to mineral exploration under them. Not surprisingly, oil and
gas exploration leads the list of mineral substances, and grazing “leases” (hunting is a
distant second) account for much of the state’s non-tax revenues (around 6 percent of
the state’s overall revenues). Included in that portfolio are the beaches, bays, estuaries
and other “submerged” lands out to 10.3 miles in the Gulf, institutional acreage, grazing
lands in West Texas and timberlands in East Texas. The revenues and royalties are
funneled into the state’s Permanent School Fund; the interest and dividends generated
(appropriately titled the Available School Fund) are then distributed to school districts on
a per-pupil basis to offset local property taxes. The disposition of these revenues will be
further detailed in chapter 10, as they are the primary source of public school finances
(from the state).

The Land Office also maintains the Veteran’s Land Program, which provides low cost
loans to veterans wishing to purchase state lands or houses. The interest from these
*loan accounts represents between one-half to 2 percent of the state’s overall revenues.
For sixteen years (1982-1998), Garry Mauro had served as the Land Commissioner.
Mauro distinguished himself by completely reorganizing the Land Office during his first
term; also, Mauro had been an advocate of toxic waste clean-up and further protection
of coastal areas, as well as continued, careful wetlands management.

Mauro chose to leave the GLO in 1998, to run for governor. The current
Commissioner is Jerry Patterson, a former state senator and career Marine Corps
officer from Houston. Patterson assumed the GLO leadership after David Dewhurst left
in 2002, to run for Lt. Governor.

The Commissioner of Agriculture

Interestingly, the Texas Constitution calls (in Article IV) for the Commissioner to be
“a practicing farmer,” though it does not stipulate what exactly that means. The “Ag”
Commissioner directs over 500 employees of Texas’ Department of Agriculture – an
agency with many (apparently unrelated) hats
to wear. Most of the duties of the
commissioner are the myriad of promotional
and regulatory aspects of agriculture – in the
nation’s fifth largest crop-producing state. The
Ag commissioner promotes the agricultural
market-to include the ever-expanding organic
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producers – and provides “extension” services to farmers and ranchers (assisted by
Texas A&M University).

The office is also responsible for regulating everything from seed quality standards to
pest control to pesticides themselves in finding a balance between health and healthy
crops. Last, the commissioner of agriculture is in charge of maintaining all weight and
standardization measurements, that is, scales, pumps, and so on. In fact, former
Commissioner Rick Perry initiated an effort to calibrate every single gas pump in Texas
during the summer of 1996.

It is obvious that the nature of this agency lends itself to competing interests. Where
do public officials draw the line between what is good for consumers and what is good
for agribusiness? For example, former Agriculture Commissioner Rick Hightower
became embroiled in a heated battle between his promotional half and his regulatory
half during 1988-89. Hightower was attempting to assuage European importers (of
Texas beef) who refused to purchase beef from steroid-
enhanced cattle. Hightower enraged Texas ranchers by
attempting to mediate the use of steroids, a move that
began his fall from grace at the department – though in
retrospect his actions are prescient. The era of feedlot
livestock and “petroleum-based” growing is undergoing a
restructuring of a generational magnitude. Texas Ag
Commission and its leadership will no doubt be central to
keeping the state competitive and partnered with the
many sources of innovation ahead.

Key Appointed Executives

Prior to Ann Richards’ tenure, Texas governors were appointing five executives to
head state agencies – the Secretary of State, the Adjutant General, the Director of the
Department of Community Affairs, the Director of the Office of State-Federal Relations,
and the Labor Commissioner. To make the office more responsive, Richards appealed
to the Legislature to grant broader Powers of appointment, to create a cabinet-style
executive. The Legislature grudgingly granted Richards the authority to appoint the
Director of the Department of Commerce, the Insurance Commissioner, and most
importantly, the Commissioner of the newly-established Department of Health and
Human Services. The Legislature expanded another agency – Community Affairs – to
the Department of Housing and Community Affairs.

Let’s now look over the most significant executive agencies, and briefly describe the
others.

Secretary of State

This executive has no functional equivalency to the United States secretary of state;
instead he or she serves the governor and the state in a variety of ways. The Secretary
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is the governor’s right hand in all official transactions, certifying the governor’s signature
on all official documents, and maintaining the register of gubernatorial official acts and
proceedings. Otherwise, the Secretary is known as the state’s election officer. The office
of the secretary administers the state’s election laws-including the reviewing of local and
county election procedures, establishing voter registration activities, and certifying
election returns.

Finally, the Secretary is responsible for issuing “charters of
incorporation” to businesses and non-profit associations, and for
registering lobbyists and special interest expenditure reports
and officially posts new laws passed by Legislative act.
Currently, the Secretary is Esperanza “Hope” Andrade, Texas’
107th Secretary of State. She was appointed by Governor Rick
Perry in July 23, 2008. Secretary Andrade, a successful
entrepreneur and leader in the San Antonio business
community for more than three decades, oversaw the 2008
general election – which produced record turnout levels and
went remarkably free of controversy.

Commissioner of Health and Human Services

Increasingly, this agency is the focal point of much high-visibility policy, as the state
(as well as the nation) strives to reinvent public assistance programs, find ways to
accommodate the drastic rise of medical costs, and transform health care to
accommodate evolving areas of concern such as AIDS services, stress management,
and aging. Currently, the Commissioner oversees 12 separate agencies (which include
Mental Health/Mental Retardation, the Department of Health, the Department of Human
Services, and the Rehabilitation Commission), expending an estimated $19.5 billion per
year (from state and federal revenue sources) to administer over 200 programs.

The vast umbrella agency employs about 50,000 state workers, and operates from
over 1000 different locations across the state. Two landmark programs – Children’s
Health Insurance (CHIP) and Medicaid have experienced numerous findings of fraud,
waste and abuse in the past few years. Given the enormous cost of these programs, the
decentralized nature of the agency, and huge budget deficits, it was no surprise that the
78th Legislature (like a number of other states) reorganized the superagency, and a
number of others as well. The following feature is from the Health & Human Service
Commissions’ web site, detailing the newly streamlined organization:

Agency Consolidation

The operations of the existing 12 Health and Human Services Agencies have been
re-aligned by consolidating similar functions within 5 agencies. The agencies within the
health and human services system are:

Health and Human Services Commission (HHSC)
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Department of State Health Services
Department of Aging and Disability Services
Department of Assistive and Rehabilitative Services
Department of Family and Protective Services

Oversight and Accountability

An executive commissioner appointed by the Governor for a two-year term and
confirmed by the Senate will oversee the operations of the Health and Human Services
Commission. The operations of each of the other agencies within the health and human
services (HHS) delivery system will be supervised by a commissioner appointed by the
executive commissioner with the approval of the Governor.

These commissioners will report to the executive commissioner of HHSC. A council
composed of nine gubernatorial appointees will be created for each agency to advise
the agency commissioner on agency policies and programs. The commissioners of the
individual agencies will assist in the development of rules for their respective agencies,
although the authority to adopt rules for each HHS agency is delegated to the executive
commissioner of HHSC.

Transition Oversight and Public Input

A Health and Human Services Transition Legislative Oversight Committee will be
created to facilitate the HHS agency consolidation with minimal disruption of services
and to provide ongoing guidance on the health and human services delivery system in
Texas. The Committee will consist of two Senators appointed by the Lieutenant
Governor, two Representatives appointed by the Speaker of the House, and 3 public
members appointed by the Governor. The executive commissioner will serve as an ex-
officio member.

Serving as Commissioner of the HHSC has been a challenge for some appointed
executives, especially for William Archer III, who served two years during George
Bush’s second term. Archer left amid a sexual/racial harassment case brought by an
HHSC employee. Don A. Gilbert filled the post following Archer’s resignation and has
been followed by current Commissioner Albert
Hawkins. Prior to his appointment by the governor
as HHSC Executive Commissioner, Hawkins’ career
included the following positions: Assistant to
President George W. Bush and Secretary to the
Cabinet, Deputy Campaign Manager for the Bush-
Cheney Presidential Campaign State Budget
Director for Governor Bush, and Deputy Director of
the Texas Legislative Budget Board. Hawkins holds
a Master of Public Affairs and a Bachelor of Arts
from the University of Texas at Austin.

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Elective Boards and Commissions

Although there are over 250 boards and commissions serving the executive function
of Texas government, only two are elected by the voters – the Railroad Commission
(TxRRC) and the State Board of Education (SBoE). Of the two, only the Board of
Education is mentioned in the Texas Constitution (Article VII empowers the legislature
to create the SBoE).

The Railroad Commission

Four years after the United States Congress created the first regulatory agency, the
Interstate Commerce Commission (ICC), the Texas Legislature established a state level
counterpart, the Railroad Commission (RCC). Like the ICC, the Railroad Commission
was established to regulate commerce (“promote” might
be a better term), although only within the state’s borders.
This is known as intrastate commerce, which faces the
same dilemmas that interstate commerce does: when to
promote and when to regulate any of the myriad aspects
of commercial activity.

In Texas, the Railroad Commission originally concerned itself with regulating the
railroads, as they provided the only link between producers and distant markets.
Currently, the Railroad Commission fulfills-like the Department of Agriculture-a variety
of promotional and regulatory functions. The RRC regulates mining (coal, uranium, and
lignite) and the production of natural gas and oil-which is increasingly being done
deeper into the Gulf of Mexico, where huge surpluses exist. Through its regulatory role
of controlling allowables, that is, the quantity produced, the RRC is actually protecting
the market prices for oil and gas, and promoting new business. Additionally, the
commission grants permits to drill, enforces rates of production, and performs a number
of safety and transportation-oriented duties, especially those involving hazardous or
toxic waste. Of course, the RRC still regulates rail transportation and safety and
provides an array of services to all regulated industry (such as statistics, maps and
training). To accomplish these many diverse functions, over 900 Texans are employed
by the Railroad Commission.

Three full-time executives are elected, for six-year terms, to head the Railroad
Commission. The terms are staggered every two years, and the members rotate
through the position of chief commissioner. The current Railroad Commission includes
Charles Matthews, Michael Williams, and newcomer Victor G. Carrillo. Appointed by
Governor Rick Perry to fill the un-expired term of Tony Garza who became Ambassador
to Mexico, Carrillo joined the Texas Railroad Commission in February 2003.

The State Board of Education

The State Board of Education (SBoE) is mandated in the Constitution but the
Legislature has the authority to establish the panel “by law,” meaning the primary
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functions, terms, size, and so on. The Board is composed of fifteen members, who are
elected to staggered four-year terms and from single-member districts. The SBoE is
unique among the state’s boards and commissions in these regards. The State Board of
Education serves along with the Commissioner of Education (a gubernatorial appointee)
and the Texas Education Agency in developing education policy and implementing the
Legislature’s guidelines over a wide array of education-related topics, including, of
course, school finance and federally funded programs.

Since 1995, competing political dynamics have
rendered the SBoE on a somewhat precarious path.
During that year, the Legislature passed a number of
education reforms, including greater local control for
independent school districts. Previously, the textbook
selection process had been dominated by conservative
political activists, such as Norma and Mel Gabler of
Longview…” who frequently attacked books for what they
considered to be threats to traditional family values, and
the Board seemed to respond.” Textbook selection is now
in the hands of local districts, as long as the books contain
50 percent of the course curricula, and the books meet
physical manufacturing specifications.

The 77th Legislature continued the trend of reining in the Board. Investing the state’s
Permanent School Fund (see previous section “Land Commissioner”) is one of, if not
the Board’s most significant responsibilities. However, criticism over its discharge of this
duty had been building for the past few years. The following article by Maeve Reston of
the Austin American-Statesman illustrates the extent, to which some legislators
disapprove,

Members of the State Board of Education on Thursday assailed the credibility of
state auditors who authored a scathing January report that said proper procedures were
not followed in the oversight of the $19.5 billion Permanent School Fund. “Your greatest
asset is your credibility,” board member David Bradley, R-Beaumont, said at one point.
“You have none, Mr. Auditor.” The January audit is being used by some lawmakers as
evidence of the need to scale back the state board’s authority over the fund…In the
report, state auditors found that members lacked expertise to oversee the fund and that
some relied on an informal adviser who had a conflict of interest.

As discussed in chapter 3, special interests have increasingly been focused on the
SBoE. The elective board has been a lightning rod for right-wing conservatives to either
gain office there, or influence the goals and policies of the agency, especially regarding
textbook choice and other curricular decisions. In the aftermath of the presidential
campaign in 2008, a conservative member of the SBoE didn’t need an education-
related issue to create controversy.

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Section Three: The Bureaucracy, Power, and Policy

It has been the target of immense criticism and the object of countless academic
research. It has been called every name in the public administration book, but it can
stage a war, administer a $3.3 trillion federal budget, and in Texas, will provide
assistance programs to more poverty-level families and hurricane survivors than any
other state. What is it? It certainly takes more than riddles to describe the administrative
jumble of governmental entities known as “the bureaucracy”’ whether in Texas,
Washington, or Japan, for that matter. We will attempt, in this section, to define
bureaucracy, build perspective, and discuss the by-product of bureaucracy-sub-
governments – in the forming and execution of public policy.

What Is Bureaucracy, Anyway?

During a discussion over American federal politics, a
student – a Catholic nun from Ghana – appeared puzzled
over a term that was mentioned in that morning’s lecture.
The student raised her hand, and asked what exactly was
“red tape”? The answer was one word: “Bureaucracy.” The
student immediately beamed a smile of understanding,
followed by a chuckle.

While simply dismissing bureaucracy as “red tape” will
certainly not suffice here, it is interesting to note how a very
complex subject can be conveyed so simply in two words!
Many scholars have attempted to define bureaucracy, although it is easier to
understand what it is not. Toward that end, political scientist Theodore Lowi was careful
to distinguish between administration and bureaucracy. Lowi frames the more general,
abstract, term administration as “all the ways human beings might rationally coordinate
their efforts to achieve a common goal [in] private as well as public organizations.”
Conversely, bureaucracy “refers to the actual offices, tasks, and principles of
organization that are employed in the most formal and sustained administration.”

In other words, formal and sustained administration lends itself to the habits of
bureaucracy/ by its very nature. By their nature, governments require sustained and
formal administration, which was detailed in the first two sections of this chapter –
hence the connection between government and bureaucracy. It should be stressed here
that bureaucracy and administration follow from the governmental concept of “the
executive.”

Who Are Bureaucrats?

In the previous two sections, we discussed the composition of the executive branch
in Texas government; in essence, the source of government bureaucrats. However, not
all state employees are bureaucrats. The quintessential bureaucrat is a civil servant
who enters public service for a career. Although Texas lacks a standard program for
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qualification and entry to state employment, each agency is responsible for creating its
own system of merit, promotions, retirement, and so on. In general, bureaucrats
possess a fairly narrow, well-developed area of expertise which they apply on a daily
basis. Some are referred to as street level bureaucrats, whom we immediately
recognize as Border Patrol agents, DPS officers, and Corrections officials, to name a
few. These public servants are highly visible, and they operate with some independence
and discretion, given their expertise and function-oriented performance of important
tasks. Most bureaucrats, however, work in the offices of state agencies, although these
are found in a variety of sizes and places throughout the state.

What Does Bureaucracy Do?

The characteristics of bureaucracy reveal its unique and compelling nature. No
discussion of public policy can be truly meaningful without a rudimentary understanding
of these traits, which inspired sociologist Michel Crozier’s term “the Bureaucratic
Phenomenon.” Borrowing from Lowi, Table 6.2 on most concisely captures the unique
character of bureaucracy, which one might also recognize in private enterprise.

Table 6.2: The Six Primary Characteristics of Bureaucracy

Characteristic Explanation

Division of labor Workers are specialized. Each worker develops a skill in a
particular job and performs the job routinely and repetitively,
thereby increasing productivity.

Allocation of Each task is assigned. Division of labor is of little use unless
Functions each worker sticks to the assigned task. No one makes a
whole product each worker depends on the output of other
workers.

Allocation of Each task becomes a personal responsibility-a contractual
Responsibility obligation. No task can be changed without permission

Supervision Some workers are assigned the special task of watching
over other workers rather than contributing directly to the
creation of the product. Each supervisor watches over a few
workers (a situation known as span of control), and
communications between workers or between levels move in
a prescribed and orderly fashion (known as chain of
command).

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Purchase of full-time The organization controls all the time the worker is on the
Employment job, so each worker can be assigned and held to a task.
Some part-time and contracted work is tolerated, but it is
held to a minimum.

Identification of career Workers come to identify with the organization as a way of
life. Seniority, pension rights, and promotions are geared to
this relationship.

From American Government: Freedom and Power by Lowi and
Ginsberg. Copyright @ 1990 by W. W. Norton & Company, Inc.
Reprinted by permission

One may reason that these principles appeal to control, expertise, productivity, and
responsibility. Are these not desirable attributes for the organization? In theory they are
indeed appealing, and in some ways they are realized in day-to-day administration. The
problem is that not in every way, or every day does bureaucracy work efficiently-hence
the negative reference of “red tape.” We shall now turn our discussion toward reality,
that is, what tends to happen as theory turns into practice and as time changes the
landscape of administration.

The Life Cycle of Bureaucracy

The state Constitution, similar to the United States Constitution, makes no mention
of a bureaucracy, save for describing the five elected plural executives, and that the
governor “shall cause the laws to be faithfully executed…” From this point on
bureaucracy would eventually begin, as the natural progression of governmental
activities demanded more people and more functions to execute the laws faithfully. The
life cycle is fairly simple: as the Legislature sees fit to regulate, or to promote, or to
coordinate a governmental activity, it sees the need for an agent (agency) to execute
whatever law (which turns into programs, projects, activities) the legislature adopts. The
executive then implements the law, which is called policy implementation.

In Texas, a procedure for evaluating the laws and the implementation of them was
established in 1977. The Sunset Advisory Commission and the sunset process were
created by the legislature to periodically (every
twelve years) examine the effectiveness, value, and
costs of all state boards, commissions, and
agencies (including, of course, their components).
The Sunset Advisory Commission may make
recommendations to eliminate, to reorganize, or to
simply continue the reviewed agency (which
actually means that the agency was “recreated” or
reauthorized). A few obscure commissions have
been eliminated outright, such as the Burial
Association Rate Board and the Nimitz Memorial
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Naval Museum Commission, but most receive either no recommendation or are
continued. In fact, the sunset process has not reduced or, for that matter, reinvented
government in Texas.

Since 1977, the number of state employees has increased by nearly 30 percent, and
the number of agencies remains fairly unchanged. Some argue that the sunset process
is misappropriated. The following commentary helps to underscore the tenacity and
“realpolitik” (political realities) of bureaucratic government:

The sunset process is no substitute for legislative skill nor does it guarantee success
for any one group. Instead, it is meant to provide a continuing opportunity for the free
flow of competing ideas in the legislative process, which is the very thing most strongly
resisted by other players in the structure. [When] programs that sera/e little or no
purpose are assessed and abolition is recommended, those who receive benefits
scramble to save the program. When change is recommended in government programs
that are constructed to benefit one group over another, those who benefit from the
imbalance provide rationalizations as to why the imbalance…exists for the public good.
[Change] in government means someone will lose money and someone will be in a
better position to make money.

As of 1995, the Sunset Advisory Commission has reviewed over 250 agencies; forty-
three were abolished outright and twenty-eight others had been consolidated or
transferred. Ironically enough, in 1994, an interim committee considered legislation to
“sunset” the Sunset Commission, although it did not prove successful. Ultimately, the
state bureaucracy flourishes, despite tendencies for inefficient and/or unnecessary
activities, and for power-mongering,
special-interest overrepresentation,
which will be discussed next.

The Impact of Bureaucracy on Public Policy

Texas’ system of administration, while not exactly modeled after the United States
government, bears some resemblance to the federal civil service. It is (by design)
supposed to be a politically neutral, professional group of public servants who are
responsive to everyone, equally. To accomplish this ideal, the patronage-based spoils
system of nineteenth century politics was replaced by “career-oriented, merit-based
system that emphasizes specialization (division) of labor. It was believed that these
qualities would create an efficient system of administering government in an organized,
institutionalized manner. Again, the best of theories in public administration can never
account for “unintended consequences.”

Insight Questions: What is a spoils system? Has this really been prevented?

It is truly a paradox. On the one hand, if they want (or need) to, bureaucracies are
capable of performing duties as they are designed to be fulfilled. On the other hand
210

they, quite simply, have taken on a life of their own.
This is the bureaucratic phenomena, part of which is
attributed to the fact that bureaucrats are not
accountable to anyone but themselves. As they are
not elected, and most are not appointed, they owe
allegiance to their agency. Bureaucrats become very
protective of this fact, for obvious reasons, which tends
to facilitate other bureaucratic tendencies. Many bureaucracies continue to resist
change or attempt to increase their size and power (usually through their budget
requests). Another tendency is to develop power relationships called iron triangles (or
sub-governments), which smacks of questionable practices, preferential treatment,
and elitist networks known as the revolving door. It is easy to recognize that
bureaucracies aren’t necessarily neutral, equality-minded, or efficient when one
considers these practices!

Bureaucratic Tendencies and Service

Bureaucracies tend to grow. This fact alone should not seem unlikely, because the
state population has grown indeed. In fact, compared to other states, Texas ranks very
low in the number of state employees (131) per 10,000 citizens. Still, the number of
state employees has risen, meaning that agencies assume more functions, procedures,
output, and so on. Although adapting to new demands is desirable for public policy, the
dilemma of “sunsetting” goes unresolved. As was referred to above, there are always
fifty reasons why the agency needs to be continued and remain unchanged.
Bureaucracy has a life of its own. Interestingly, at the close of the 2000’s, government
as regulator, partner, and fixer-upper is back in vogue, due the current snarl of
economic, health, and educational challenges. Services performed by departments and
agencies will continue to reinvent themselves, but with more clearly defined roles and
accountability – they are needed.

Bureaucratic Tendencies and Power Relationships

To understand this aspect of administration is to strike at the heart of government
gone awry. It involves cozy, consensual relationships among the key actors in the
public-policy process. It also involves the regulatory process, as well as the close
quarters meshing of private enterprise and government officials. The relationships are
known as iron triangles, and if the judicial
branch is involved, iron rectangles. Iron
triangles began emerging in American politics
as early as the 1890s, around the powerful
areas of commerce, industry, and
transportation. The heydays, however, actually
occurred in the booming economic years
following World War II. During the 1950s and
1960s, mainstream America was busy
growing, buying, playing, and socially churning
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– and leaving government up to the experts! A career in the federal civil service was
considered a respected and prestigious path; with plenty of advancement…the
tendency to promote this vantage point is a natural one, especially if the private sector
provides a vital link.

The actors involved in iron triangles are very
recognizable and relatively few in number. It is an inclusive
arrangement and quite synonymous with sociologist C.
Wright Mills’ “power elite.” On one corner of the triangle is
the private sector, represented by lobbyists and political
action committees (PACs). Another corner represents the
legislative leadership, that is, the presiding officers and
committee chairs and vice chairs. On the third corner are
the myriad agencies, boards, and commissions, each
primarily represented by its key functionaries and
bureaucrats. The triangle is a network of close relationships,
all of which serve to enhance power by “helping” or
compromising with the others. The most compelling
relationship is between the bureaucracy and the private
sector.

“C Wright Mills”

This relationship is generally known as clientelism, where the bureaucracy “takes
care of” its client – the promoted or regulated element of the private sector. For
example, farmers and ranchers are considered the “clients” of the Department of
Agriculture, whereas trucking fleets and oil producers are the clients of the Railroad
Commission. Another term-capture-is used to depict relationships where the regulated
element actually dominates its agency. In Texas, one example of capture has been
between the utilities industry and the Pub1ic Utilities
Commission. Although conditions are likely to change
(a 1995 task force was charged with mediating utilities
issues), the PUC has typically deferred to utilities
companies over the disgruntled public. “Captured”
agencies, boards, and commissions are not likely to
go unnoticed, given a number of recent trends geared,
of course, towards better service, better government,
and better representation.

For example, privatization and free (or freer) trade
increase competition for the range of public services.
Competition is good for consumers, provided that
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essential standards of quality are met. Competition militates against traditional “closed”
relationships, favored contractors, and otherwise preferential treatment by government
officials (key legislators and bureaucrats). Other social forces challenge the effects of
subgovernments. The past few years have witnessed an emerging breed of
investigative reporters, in all comers of the media. These aggressive, appealing
reporters “sniff out” many a questionable situation and often bring official activities into
the public spotlight. Similarly, consumer or taxpayer “advocacy’ action groups serve to
voice opposition to a wide variety of government activities or proposed activities. These
are a few of the key actors is what political scientist Hugh Heclo termed “issue
networks.”

Issue networks, by definition, tend to be focused on one area of sociopolitical
controversy. They differ vastly from iron triangles as issue networks thrive on conflict
and competition. Issue networks are not closed or inclusive. They are porous and
encourage participation by any interested party. Because of this quality, issue networks
tend to “move” on to different aspects of the same controversy. For example, the
Edwards Aquifer Authority is (and has been) a
dynamic, complex and unsettling issue in Bexar,
Uvalde, and Medina counties, as well as in
Austin (a state issue) and San Antonio (an
urban issue). The web of interests involved in
the slippery issue of “corporate welfare” has
taken on the dimensions of an issue network.
Corporate welfare is basically the government
supports, (subsidies) and/or tax loopholes
(deductions or exemptions) businesses seek
and usually receive. Of course, this is reflective
of the American fondness for business, coupled
with the vast influence campaign contributions
will buy.

Although a lengthy discussion of the controversy is not possible in this section, it
provides the best clues on how issue networks develop and change to accommodate as
many actors or “sub-issues” as Possible. Issue networks are arenas for those who
affect, or are affected by, policies in a narrowly focused area of public life. Thus, the
actors tend to include the following groups:

Components of Issue Networks

1. The investigative and mass media
2. The agents of change (those who want a new or different policy, which
generally starts with new laws, or ordinances, or a repealing of an existing one)
3. The defenders of the status quo (these groups often promote the view that
there is “no problem” so why change policy?)
4. All three branches of government (state and federal)
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5. Academicians (they provide research, theories, and papers that serve as
“legitimizers” for other actor’s views, or to assist in developing successful policy
alternatives)
6. Advocacy, or “citizens’ rights” groups (they work hand-in-hand with investigative
reporting to embrace the everyday reality of a given issue, from taxes to toxic
waste)

Although iron triangles and issue networks are fairly complex arrangements, the
important thing to notice is that they represent the existing, real-life, everyday flow of
politics and government in Texas. In other words, the way the shifting (and always
competing) political aspirations actually come forth–the way it is. And the way it is right
now. At numerous points in previous chapters, the increasingly narrow, and enormous
influence of certain interest groups and political donors has been discussed. Recalling
that iron triangles (see chapter 3) include the following actors:

Components of Iron Triangles

1. Private sector: interest groups/ unions, research institutes, individual donors
2. Committees/subcommittees in the Texas House & Senate
3. Executive branch: all state agencies, departments, boards & commissions

Let us now consider the unprecedented trend in the executive branch, at the highest
levels, towards further entanglements between government and the private sector. Iron
triangles are “gravy” for elected and especially the appointed bureaucratic upper
echelon. Due to a practice referred to as revolving door, individuals leaving an influential
position in an agency or department find themselves courted by business, industry and
other private interests. Their employment is basically a dividend for accommodating
service while in office, and the inside knowledge gained from holding the office.
Occasionally, officials will leave positions in business or industry in order to serve in the
executive (or the legislature), then return to a lucrative position.

Conclusions and Outlooks for Administration

Volumes have been and will continue to be, written about executive government,
administration and bureaucracy. Texas, more than any other American state, is
arguably at the most complex and significant “watershed” moment in its unique history.
Never before have so many factors converged on the state’s agenda – rapid and
diverse population growth, free trade, economic dynamics, environmental and
immigration considerations, two-party competition, and above all, shifting politics in
Washington that are tugging and reshaping the federal-state relationship.

Texas faces enormous challenges because it is experiencing twenty-first century
issues with a nineteenth century government structure. California and Florida and New
York face serious issues as well, for example, rising Medicaid and law enforcement
costs, education reform, and immigration problems – but these states are better
equipped to administer these policy areas with full-time legislatures and greater
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centralization of executive power. (Note: Florida’s elected legislature is classified as
part-time, but it does convene every year)

Texas’ governors have great visibility, but weak formal sources of clout. The plural
executive worked well in the previous century but tends to lack responsiveness and
accountability to the state as a whole, and, of course, to the governor. AII areas of the
plural executive–especially the boards and commissions have tended to develop their
own “power bases,” which leads to clientelism, revolving doors, and, worst of all, a
decentralized, non-integrated approach to governing the state. A cabinet-style
executive, “with an empowered governor to appoint and direct the agency heads, along
with an increasingly functional Office of State and Federal Relations, would vastly (and
quickly) transform the nature of policy-making in Texas. Policy implementation is the
single most important aspect of a government because it reflects the extent to which a
government can control itself, its people, and its economy. Policy implementation is
the sum of what is good or bad about a government.

The dilemma is that even with the best of intentions and abilities, state government
will never fully succeed without reforming an amateur, inefficient, and unresponsive
governmental structure. In the meantime, the state faces great opportunities to change
the nature of executive government in a few important ways. The first is to fully reform
the budget methodology, in tandem with significant tax reform. In the area of budgeting
itself, the idea that laying off or underpaying these employees eliminates budget deficits
is counter-productive and wrong-headed. Smart reforms are the best way to proceed,
meaning to reorganize, or shuffle the deck, rather than choose arbitrary cutbacks. The
wave of energy from the victories of Barack Obama, Congressional Democrats, and
prospects of a new leadership team by 2010 in Texas government has opened the way
for greater accountability and innovation. Texas’ culture breeds on success and
opportunity, which should enable a natural reform of the executive from many corners of
the state.

References

Bill Hobby, “The Lieutenant Governor’s Job: An Incumbent’s View,” Fred Gannt et al,
ed. (New York: Crowell, 1974)
Hugh Heclo, “Issue Networks and the Executive Establishment”, The New American
Political System, Anthony King, ed. (Washington: American Enterprise Institute,
1978)
Norman R. Luttbeg, Comparing the States and Communities (New York: Harper-Collins,
1992)
Railroad Commission of Texas: http://www.rcc.state.tx.us) April 8, 2001
Tennahill, Neal. Texas Government, Policy and Politics. 6th Ed. (New York: Addison
Wesley Longman, Inc. 2000)
The Texas Sunset Advisory Commission, Sunset Review in Texas: Summary of
Process and Procedure (Austin 1993)
Theodore Lowi and Benjamin Ginsberg, American Government, (New York: Norton,
1993)
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http://www.rcc.state.tx.us/

Vaccine Meeting, Merck Donation Coincide LIZ AUSTIN PETERSON, The Associated
Press February 21, 2007
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/081706dntexperry
money.337216e.html
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/083107dntexexec
ution.8544bf20.html
http://www.hhsc.state.tx.us/news/78_post.html
http://www.msnbc.msn.com/id/26535811/page/2/
http://www.statesman.com/legislature/content/coxnet/texas/legislature/0803/0808redistri
ct.html
http://www.statesman.com/news/content/region/legislature/stories/05/27.html
http://www.txdps.state.tx.us/dem/pages/mission.htm
http://www.window.state.tx.us/news2007/080117texasfocus.html
www.statesman.com/news/content/region/legislature/stories/12/15/1215speaker.html

Featured Links

Fiscal Policy Report Card on America’s Governors
http://www.cato.org/pub_display.php?pub_id=6724
http://www.theyrule.net/
Texas State Agencies (TRAIL) http://www.tsl.state.tx.us/apps/lrs/agencies/

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http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/081706dntexperrymoney.337216e.html

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http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/083107dntexexecution.8544bf20.html

http://www.hhsc.state.tx.us/news/78_post.html

http://www.msnbc.msn.com/id/26535811/page/2/

http://www.statesman.com/legislature/content/coxnet/texas/legislature/0803/0808redistrict.html

http://www.statesman.com/legislature/content/coxnet/texas/legislature/0803/0808redistrict.html

http://www.statesman.com/news/content/region/legislature/stories/05/27.html

http://www.txdps.state.tx.us/dem/pages/mission.htm

http://www.window.state.tx.us/news2007/080117texasfocus.html

http://www.statesman.com/news/content/region/legislature/stories/12/15/1215speaker.html

http://www.cato.org/pub_display.php?pub_id=6724

http://www.theyrule.net/

http://www.tsl.state.tx.us/apps/lrs/agencies/

Chapter 8
The Law and State Courts

Let’s first raise the question of justice. Should not the law be just? Of
course. But the question really ought to be, what is the relationship
between justice and the law? The answer is there is NO NECESSARY
relationship between justice and the law…Justice is found in society; if
the law is just, it is because the lawyers are just.

That the vast majority of Texans and Americans are highly disillusioned with the
legal system may very well be an understatement. The past several decades’ worth of
plea bargaining, excessive and often frivolous civil lawsuits, vacillating rights of the
accused, loopholes, technicalities, backlogged courts, and a well documented
perception of systematic bias have perhaps terminally clouded the American system of
justice. One need only recall the case of the
People v. Simpson (1995) to capture the
essence of a largely failed system of law in the
closing years of the twentieth century. A toxic
admixture of race, politics, and technology
forever doomed the Simpson trial; this same
recipe – when applied to American legal
tradition – represents the flaws and challenges
of the judicial system overall. Appropriately
enough, the “trial of the century” has served as
a metaphoric turning point for judicial reform on
several levels.

As the new century has unfolded, factors such as advanced forensic science, law
enforcement professionalism, and citizens’ activism in common sense lawsuit reform
have made their mark on the “the system”. Conversely, other factors continue to plague
the judicial branch, especially in America’s most diverse and populous states. Texas,
especially, has faced an ever-growing prison population – the result of huge growth in
population, sentencing laws, and the “usual suspect” of widening areas of crime and
civil dispute. The death penalty has continued to underscore inequities in the justice
system, and the legal profession itself is continually a political hot potato with regards to
standards and accountability.

Since this text is an overview of state government, we need to keep in mind that the
judiciary is a separate branch of government, as are the legislature and executive, but
the judiciary is part of the governing system (recall the diagram in chapter 6). It is not an
autonomous entity without lines of accountability, but it is a very complex and constantly
shifting organism. Politics plays a huge role as well, as judges in Texas are elective
officials, and that key areas of law tend to be influenced by the federal government.
Thus, we need to divide and conquer this topic by presenting the components and by
explaining the essentials of:

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Law – systems, principles, forms, cases
Legal Proceedings – jurisdiction, judges, juries, the role of the District Attorney
The Courts in Texas – structure, qualifications for judges, issues and reforms

Perspectives:
The Role of Federalism in the American Legal System

Before we begin our analysis of law and the courts, it is critical that the role of
federalism be clearly understood in the context of administering justice. First, it must be
remembered that the vast majority of adjudication (legal proceedings) takes place at the
state level. On average, somewhere between 98-99 percent of all adjudication takes
place at the state (and local) levels. Why such a burden on state government? The
answer is simple – states and localities administer state and local law, which has always
played a dominant role in American society. Federal laws, which are administered by
federal courts, have a much narrower scope (for example, kidnapping, bank robbery,
tax evasion and environmental law). In other words, a precondition of American
federalism was that each state would retain much of its “sovereignty” and cultural norms
by virtue of its jurisdiction over the vast majority of legal arenas (family law, real estate,
property, education, child protection, marriage and divorce, banking, etc.).

To accommodate this division of adjudication the United States operates under two
parallel court structures-the federal courts and each state’s court system. Figure 10.1
illustrates the parallel nature of the American legal system. Both structures are based
on original, appellate, and supreme jurisdiction which will be discussed later in this
chapter. For now, it is important that the student understand where “law” happens, and
why the vast majority of “law” happens at the state and local level, and consequently,
why the vast majority of problems, issues, and controversy exist there as well.

Section One:
The Law

Heretofore, the word law has appeared in quotation marks, to indicate its relative and
often crude application (words like “democracy” or “rights” also receive this treatment).
The word law itself entails three different usages. The
overall concept of law is, of course, an abstraction: Law is a
guideline for behavior sanctioned by some governing
authority. In other words, law generally embodies those
“things” that are acceptable or unacceptable to any given
society. Societies tend to agree, for the most part, about
these basic laws, which then become systematically
enforced by the governing authority. The system employed
by any given society is also known as law, or sometimes
referred to as “the law of the land.” This second definition of
law (or “the law”) is a system of Iegal principles and,
practices.

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Figure 10.1: The American Judicial Structure

In the United States, the system is derived from the Anglo-Saxon legal tradition
established in England by William the Conqueror and propagated to the American
colonies largely by legal scholar William Blackstone. Anglo-Saxon law is characterized
by principles such as stare decisis (the basis of the common law tradition). Finally,
each system of law, however basic, is realized by its laws – the specific rules and
regulations created by the law (hence the term “bylaws”). In summary, law as an
abstraction becomes meaningful through the application of laws, which are created and
organized by the “law of the land”. In the United States, federal law and state law
(except Louisiana) is based on Anglo-Saxon principles. Louisiana, steeped in French
and Spanish (Creole) culture, is the lone exception; its state codes reflect elements of
the Roman law tradition.

Anglo-Saxon Law

The American colonists resumed the common law tradition of Anglo-Saxon law,
which derives from the principle of stare decisis (translated “let the decision stand”).
This principle evolves from the English custom of writing down the facts of each case,
which would then form a precedent for deciding other cases like the original one. Legal
precedence is the basis for common law (often referred to as case law) arguments
presented by lawyers and applied by judges. The arguments, or lines of legal reasoning,
form the basis of another Anglo-Saxon principle – adversary proceedings. This
principle was espoused by English legal scholars as the best way to bring out the facts
of a case.

By arguing as convincingly as possible, each side (at least theoretically) brings forth
all possible evidence to attempt to prove what really happened. In the absence of
absolute truth, adversary proceedings are intended to allow someone to judge the most
219

relative truth. Finally, Anglo-Saxon law requires standing (sometimes referred to as
standing to sue). Standing means that only “real cases and controversies” may be
adjudicated in a court of law, judges may not issue rulings over hypothetical situations,
nor do they issue advisory opinions (you may recall from the previous chapter that
attorneys general fulfill these functions). Another term that often accompanies standing
is justiciability, which simply means that the controversy is resolvable by legal
proceedings.

Forms of Anglo-Saxon Law

We have discussed the most distinctive form of Anglo-Saxon law – common law –
which is created by the decisions of judges over a period of time. In addition to common
law, judges are also able to create law where none exists (i.e., no precedence) or where
the law is inadequate (usually regarding punishment or compensation). This is known
as equity law. Thus, under the Anglo-Saxon system, judges “make” two forms of law –
common law and equity law – both of which apply only to state law. There is no federal
common law. States decide the common law traditions (including equity law), which
reflect the general will of its citizens, thus retaining its “sovereignty” to the extent
possible in a federal system.

Anglo-Saxon law and other legal traditions accommodate other forms of law created
by a governing authority and/or sanctioned by its citizens. Specifically, there are three
forms of government crafted law: statutory law, administrative law, and
constitutional (or higher) law. Although each of
these forms is unique in its source and nature,
they are alike in that none is created by judicial
rulings. A legislative, or representative body, such
as the United States Congress, the state
legislature, or a city council, makes statutory law.
Examples of statutory law include The Clean Air
Act, Texas Senate Bill (SB) 7, curfew ordinances,
and leash laws.

Administrative laws are those created by the executive, that is, by regulatory boards
and commissions. Usually referred to as rules or regulations, these laws tend to be
very technical and narrowly applied, as they are geared toward the successful
administration of given public policy area. For example, the Texas Department of
Transportation establishes regulations about allowable length and width of trailers,
whereas the Railroad Commission determines rules about the distribution of oil and
natural gas. Administrative law, like statutory law, is enforced through the power of the
courts.

Finally, constitutional law exists in a unique and superior realm, as it actually
represents the sovereignty of the people; in other words, it is the highest authority.
Constitutional law technically exists at both the state and federal levels, although the
United States Constitution embodies its true essence. Constitutional law is unique in
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that it creates a government, by definition, although it is continually interpreted by the
government through the process of judicial review. Higher law represents both the
government (including Supreme Court Justices) and the people, because all are
involved in establishing, interpreting, amending, and (if necessary) abolishing it.

Ballots that had been filled out (excepting the signature) by Republican Party
activists. When this happened in 1997, a judge decided that, since no specific statute
existed to determine what to do, all the absentee ballots were disqualified. This decision
is equitable – equity law – because no legal precedent existed to satisfy the dilemma.
That decision was reinforced the next year, by statutory law referred to as a voting
advisory. Both sources then become precedents for judges to apply in subsequent
contested elections. Ironically enough, the judges in the 2000 lawsuits ruled that the
ballots were valid. Why didn’t they rule according to the 1997 precedent and the
elections advisory?

The opinion from the 2000 case (Jacobs et al v. Seminole County) explained that the
new law didn’t absolutely require (mandate) that ballots missing the registration number
be invalidated. In other words, the judge applied the law exactly as it was written, thus
creating a precedent for absentee ballot tampering issues – similar to the 2000 issues.
Either the Florida Legislature will have to change the laws, or be satisfied with the equity
law set forth in the Jacobs case. Finally, the administrative law, or rules, should reflect
the statutory and judicial precedents set by these rulings. Administrative law occurs in
the executive branch of government in the case of elections law, county government
typically administers it.

In addition to its differing forms and origins, law also differs in the nature of what it
regulates. If the law regulates the morality of physical behaviors, it is generally regarded
as criminal law. Conversely, if the law stipulates responsible, or obligatory activity, we
acknowledge it as civil law. In Texas, civil laws are documented in Vernon’s Annotated
Civil Statutes, which are organized by the area of law (family, property, banking, etc.).
Criminal law is defined in the Texas Criminal Code and Texas Penal Code. Indeed, the
two types of cases differ in more ways than their source locations.

Criminal law is the realm of each county’s law
enforcement regime, beginning with the district
attorney, the county sheriff, and (in municipal areas) the
chief of police, and extending to every peace officer
therein. Criminal law is distinct in that actual cases are
always between the government (usually called the
prosecution) and an individual or individuals. Civil law,
sometimes referred to as private law, happens between
two individuals or corporations. Criminal law deals with violations, whereas civil laws
stem from disputes between individuals about contracts, responsibility or negligence.
When a criminal law is violated, a suspected individual may be charged with the
offense, which is determined by the district attorney’s office. The charges will then be
listed in an information (for lesser offenses), or an indictment. Civil disputes are
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conveyed and described in a petition, which is filed by the plaintiff the individual or
corporation bringing suit.

Regarding the proceedings, criminal cases are characterized by strict rules of
evidence, while civil cases require much less scrutiny it the collection and admission of
evidence. Ultimately, the goal in a criminal case is to
establish guilt beyond a reasonable doubt; otherwise, the
accused is considered innocent. Instead of guilt, civil cases
seek to determine responsibility, or relief from
responsibility. Basically, this means that “whoever has the
best story” wins; formally, this is known as preponderance
of evidence. Civil proceedings thus conclude with
compensation (fines or damages) required by the
responsible party, while criminal cases – when the
defendant is guilty – require punishment by fine,
imprisonment, or execution.

Each state compiles and codifies its own variety of laws, rules, regulations, and
ordinances. Whether they are statutes or common or equity laws, civil suit or capital
offense – all will at some time become the basis for legal resolution of some nature.
Paradoxically enough, to more fully understand or evaluate the Anglo-Saxon system in
America, one must understand not simply the law, but what happens when it is
transgressed. We will now discuss the fundamentals of the legal system in action,
beginning with the “great organizer” known as jurisdiction.

Section Two: Procedures, Practice, and Politics

Why was O. J. Simpson tried in Los Angeles County, in a California district court,
whereas the ‘DC Sniper” trial is being held in Richmond, Virginia? Why was the Rodney
King brutality case heard at both the state and federal levels, without being appealed?
These situations, and countless others, involve a question of jurisdiction. In the study of
government, the word jurisdiction takes on several connotations. Used casually,
jurisdiction tends to be understood as an authority over something-a committee in the
legislature, or an agency in the executive, for example. In a legal context, jurisdiction is
used primarily to distinguish among the following:

Geographical Areas: A kidnapping takes place in county A, and the kidnapper is
apprehended three counties away, for reckless operation of a vehicle. County A has
jurisdiction over the kidnapping violation, while county B has jurisdiction over the driving
offense.

Original and Appellate Jurisdiction: Original jurisdiction is the authority to hear a
certain case. In other words, a given court has the right to conduct trial proceedings,
depending on the facts of the case. Conversely, appellate jurisdiction simply means that
the appeals process may take place at a given court, again depending on the facts.
These “jurisdictions” will be further defined below.
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Limited, General, Special, and Supreme Jurisdiction: These jurisdictions differ in
the degree or nature of the transgression. For example, only misdemeanors are tried in
courts of limited jurisdiction, whereas juvenile crimes warrant a special court, that is,
special jurisdiction. These jurisdictions are applied in the state’s court structure itself,
which will be explained in the section of this chapter dealing with the courts of
Texas.

Original jurisdiction is trial jurisdiction – the right to try a case. It is this arena which
most Americans equate with the judicial process, understandably, since the
entertainment media have portrayed (often glorified) images of courtroom drama for
three generations. Trials, or hearings, are the functional
centerpiece of Anglo-Saxon law because the principles
unique to our system are carried out there. Adversary
proceedings take place between the litigants, usually
through their lawyers. The arguments presented by the
lawyers are shaped by precedents of common law
(stare decisis). The trial would not be taking place if
standing to sue had not been established.

Original jurisdiction is unique in that (at least in theory) it represents the opportunity
for truth and justice to coincide. Trials do not comprise the entire judicial process. They
do, however, allow the examination of findings, from the time of arrest, citation and so
on, as well as the examination of the transgression (fact) itself. Original jurisdiction is an
arena for the facts of a case to be unearthed by a variety of means. A trial is designed
to provide a “level playing field,” where the facts of a case are revealed through the
examination of evidence.

To accomplish this, judges and juries are charged with certain roles, or duties.
Although courtroom drama may appear confusing, it is basically simple: juries evaluate
the facts, while judges apply the applicable laws. In Texas, an individual may request
trial by jury for any criminal violation (except minor traffic citations). Juries are a
desirable aspect of our legal system, as they tend to bring elements of the community,
human relations, and morality into the judicial process. Juries, when properly seated
and advised, represent society – for it is society that has been victimized by crime (and,
for that matter, by frivolous lawsuits!).

When a jury is present, a judge’s primary role is to apply
the law, that is, to evaluate the facts in terms of what most
likely did or did not happen. In order to facilitate the most
accurate verdict and to mete out the most appropriate remedy
or punishment (or, if need be, to declare a mistrial), judges
must effectively control the flow of evidence (whether physical
or testimonial). Judges are legal referees and, hopefully, keen
legal experts; juries are the real “judges” regarding the
establishment of guilt or innocence (though judges will acknowledge a jury’s verdict,
they may choose to “find” for the other party, thereby overruling the jury). Summarily,
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original jurisdiction is an arena of opportunity for both the plaintiff and the defendant
have something to gain, depending on the outcome.

When the outcome is undesirable for the defendant (in either civil or criminal cases),
the individual or corporation may then file an appeal of the decision. Appellate
jurisdiction forms the basis of such an appeal, regarding where the appeal will be
heard, and what procedures take place. Unlike original jurisdiction, appellate jurisdiction
does not “try” or “re-try” a case. Appellate jurisdiction then, is the right to review the
judicial process which took place under original jurisdiction. Thus, appeals courts do not
establish guilt or innocence – they review the proceedings and either uphold or overturn
the lower court’s ruling.

Appeals proceedings are rather simple. Lawyers for each side
present written briefs or verbal arguments before the judge or
judges (appeals justices usually sit in panels of three). The briefs
or arguments focus on whether the judicial process was effectively
observed, or not-or, occasionally, if new evidence of a compelling
nature has been found. Jurisdiction is a complicated affair at the
state and local levels. Cases may be heard in a number of
different courts; geographical areas may overlap, and, ultimately,
appeals jurisdiction may be granted by the federal courts –
depending on the basis for appeal.

Jurisdiction is complicated in any state, but large ones like Texas and California, with
huge metropolitan areas, are presented with even greater hurdles to an effective
judiciary. Ultimately, it is incumbent on state and local government to shape the
direction of law enforcement and justice within a functional jurisdictional framework.

The Judicial Process in Texas Government

Although the actual genesis of the judicial process occurs at the time of arrest or civil
petition, the primary role of state and local government lies in the arraignment and
prosecution phases of criminal proceedings. In civil cases, the state’s actual tort laws
play a standing role regarding the politics of adjudication, that is, how easy it is to bring
suit, how much it will cost, punitive damages, and so on (tort law will be discussed in the
chapter’s readings). Criminal law, however, represents an opportunity for political gain –
for a number of elected individuals. The state’s legislators, the governor, and every
county’s district attorney, sheriff, and judges themselves all stand to gain by maintaining
the record (or appearance) of “being tough on crime.”

Increasingly, these same officials are being acknowledged for using innovation and
public awareness in their efforts to deal with crime, victim’s rights, rehabilitations, and so
forth. In this perspective, political gain can be productive for the community in general.
District attorneys and county attorneys, however, have the most political stake in the
judicial process, because they call the shots on which law enforcement issues will
receive the most attention which cases to pursue, and how severe (or lenient) the legal
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remedy should be. District attorneys in the largest metropolitan areas are often
challenged by the diverse problems and priorities of an urban setting.

The district attorney’s office is the county’s prosecuting authority. Establishing
charges and securing indictments are often slippery issues for the “DA,” as these may
become politically sensitive procedures, depending on who is involved and the
exactness of the judicial process. For example, retiring Travis County District Attorney
Ronnie Earle has burnished his legacy for pursuing government corruption, with
indictments against then-U.S. Majority Leader Tom DeLay in 2005. Earle successfully
brought state-level campaign finance charges because the activity involved state
organizations. Bexar County DA Susan Reed dealt with corruption charges surrounding
Sheriff Ralph Lopez in fall 2007. Reed responded quickly, commenting that “first of all,
he was not the victim of any witch hunt…he was a perpetrator of offenses in our
county”. The charges against Sheriff Lopez all stemmed from a questionable trip to
Costa Rica…paid for by the company Lopez hired to run commissaries in the jail. Ralph
Lopez accepted a deal from the District Attorney, pleading “no contest” to three criminal
charges – tampering with government documents, gift to a public servant, and failure to
report financial statements.

District attorneys are accountable to the voters of the county. They are often judged
by which battles they choose to fight and how many actual convictions are rendered
during their tenure. Conviction rates, and the frequency of capital punishment charges
and convictions, tend to dredge up a gravely disturbing aspect of justice in Texas–bias
toward minorities and the indigent. Although the
district attorney’s office is by no means the focal point
for this aspect, the perception of unequal justice is
likely to be directed towards a county’s DA, since
African-Americans, Hispanics, and the poor or
mentally impaired have historically been
overrepresented in the state’s convictions and capital
punishment rate. More will be said about bias in the
chapter’s readings section.

Grand Juries

Grand juries are chosen by the district judge in each of the state’s 411 judicial
districts. These juries serve for the entire district court term, usually three or six months.
The grand jury is responsible to determine indictments, which are basically the
charges that (based on evidence) warrant being prosecuted. Indictments are usually
reserved for felony offenses, although grand juries occasionally rule on misdemeanors,
lesser offenses handled by the county or city clerk, who lists the charges on information.

Grand juries must weigh the evidence and facts of each charge and vote whether or
not cases are prosecutable. Thus, grand juries are pre-trial court activities that take
place after the arraignment phase of the judicial process. The arraignment phase
primarily consists of establishing and expressing the charges to the accused, setting
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bail, filing reports by the law enforcement agency involved, and early determinations of
“work product” items such as witnesses, evidence, and possible defense positions (if a
psychological or competency ruling is needed). Pre-trial hearings (sometimes referred
to as evidentiary) typically occur before a grand jury ruling is made, to further refine
charges and what the case looks like, regarding evidence and the position of the
prosecution/law enforcement actors involved.

Grand juries can become politically charged, as in the Travis County hearings in
December 2005, indicting Rep. Tom DeLay on a money laundering charge. Another
grand jury had to be seated to re-indict DeLay, similar to indictments (also brought by
Travis County DA Ronnie Earle) rendered on then-state Treasurer Kay Bailey
Hutchison. For the most part, however, grand jury indictments are more often
administrative and routine in nature. Basically, if 9 of 12 grand jurors vote to indict, a
true bill is issued (without this consensus, a no-bill is issued)

Criticism of grand juries has been rampant at times, not just for politically charged
cases like those mentioned above, but for the lack of a definitive basis. Often, critics
charge that the grand jury simply “rubber stamps” the ruling based on the case put forth
by a prosecutor or the DA him or herself. Let’s consider the following excerpt from
Texas Criminal Code “Requisites of an Indictment”

1. It shall commence, “In the name and by authority of The State of Texas”
2. It must appear that the same was presented in the district court of the county
where the grand jury is in session.
3. It must appear to be the act of a grand jury of the proper county.
4. It must contain the name of the accused, or state that his name is unknown and
give a reasonably accurate description of him.
5. It must show that the place where the offense was committed is within the
jurisdiction of the court in which the indictment is presented.
6. The offense must be set forth in plain and intelligible words.
7. The indictment must conclude, “Against the peace and dignity of the State”.

Also, Texas Criminal Code 21.19 states that “an indictment shall be deemed
sufficient which charges the commission of the offense in ordinary and concise
language in such a manner as to enable a person of common understanding to know
what is meant, and with that degree of certainty that will give the defendant notice of the
particular offense with which he is charged, and enable the court, on conviction, to
pronounce the proper judgment…In other words, the elements of the crime need to
be laid out, not the evidence which needs to be proved so that defendant knows
with what he is charged.”

Petit Juries

Unlike grand juries, petit, or trial juries, are seated for each different trial. Also, they
may be smaller; courts of limited jurisdiction (county, municipal, and justice-of-the-peace
courts) seat juries of six persons, while district courts and higher require twelve jurors to
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conduct trial proceedings. In Texas, the right to jury trial is constitutionally guaranteed in
all criminal offenses, although it is frequently waived. Petit juries are chosen from a pool
of eligible candidates, drawn from lists of persons registered with either drivers’ licenses
or Department of Public Safety identification cards. Jurors must be at least eighteen
years old, and citizens of the United States and Texas to qualify for jury duty; exempt
are those over the age of sixty-five, full-time students, and individuals with legal custody
of children.

Petit juries are screened by the attorneys for each side, generally to eliminate the
possibility of bias contingent to the circumstances of the case. Attorneys are thus
entitled to a limited number of peremptory challenges, (dismissing a juror without having
stated why) and an unlimited number of dismissals, or challenges for cause. (Up to
fifteen peremptory challenges are authorized for each side in a capital murder case;
fewer challenges are authorized for lesser crimes.) One need only witness the incredibly
tedious process of jury selection for the case of the People v. O. J. Simpson to
recognize the bases for dismissal-bias regarding African-Americans, interracial
marriage, spousal abuse, Anglos, failed marriage, etc.; or the U.S. v. Timothy McVeigh
in seating an impartial jury altogether. In civil cases, dismissal tends to be founded in
the jurors’ relationship to either party, or because of bias or conflict of interest contingent
to the circumstances of the case.

“Choose Well: Jury Duty”

Plea Bargaining

Plea bargaining refers to negotiations between the prosecution and the defense in a
case involving criminal law (settlement is a term that applies to civil disputes). Basically,
the accused “agrees” to plead guilty to a lesser offense in return for the prosecutors’
dropping a more serious charge or charges. Plea
bargaining is beneficial in that it eliminates delayed
adjudication, as well as lengthy, drawn-out appellate
proceedings. However, justice may not be fully served,
for either side, by plea-bargained negotiations. How
does a murder victim’s family (or society in general)
justify the plea-bargained reduction of first degree
murder to manslaughter, for example? On the other
hand, is due process observed for the wrongfully
accused, who, fearing the death penalty, pleads guilty to a lesser charge? Plea
bargaining is at the crux of the legal dilemma facing most state courts, that is, how to
accommodate the backlog of cases resulting from the rising crime rates and increased
arrests (especially juvenile cases).

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An editorial in the Houston Chronicle clarifies how “the system all but guarantees
that some innocent defendants will choose not to gamble away years or decades of
their liberty in order to assert their innocence”. There are not enough courts to try every
person accused of a crime, so plea bargaining is a necessity. It is the job of the courts
to prevent or reverse miscarriages of justice when they come to light. The Texas Court
of Criminal Appeals’ acknowledgment of this duty is as welcome as it is overdue.

Update 2007: Priorities Elsewhere

Unlike the first two Legislatures of the 21st century, the recent 79th and 80th sessions
have produced few changes to the wide array of judicial topics. 2001 and 2003 sessions
undertook several major pieces of Legislation, for example the Civil Justice Reform Act,
which significantly re-worked the states’ rules regarding lawsuits (see the conclusions of
this chapter). In 2003, the 78th Legislature brought forth refinements and rules about the
use of DNA in criminal procedures, sentencing, etc.

For the most part, the 80th Legislature limited it’s efforts to increasing judges’
salaries and benefits, to adding a number of state district courts, county courts-at-law,
and of course, changes to various areas of civil and criminal law and the Texas penal
code. The high-visibility item here was passage of “Jessica’s Law”, named after a child
who was raped and murdered in Florida. The law, amongst other things, requires

A minimum sentence of 25 years for sexually violent offenses against a child
younger than 14 and eliminates the eligibility for parole for certain offenders;
Makes a second conviction for a sexually violent offense against a child
younger than 14 a capital offense;
Calls for global positioning system (GPS) monitoring for offenders committed
under sexually violent predator statutes.

“O’Reilly and Jessica’s Law”

Another focus for the states lawmakers came in the form of scandal over a litany of
abuse in the Texas Youth Commission at the Coke County facility in west Texas.
Reports began surfacing in February 2007, running the gamut of gross mismanagement
of the inmates, sexual misconduct, and neglect of oversight. The legislature moved
quickly and adopted a number of comprehensive reforms, including

More training for juvenile correctional officers; training will increase to 300 hours
from the current 80 hours;
Lower staff-to-youth ratios to 1:12;
Segregation of youth by age and crime; Youth age 19 and over will not be held
at TYC, going instead to parole or the adult system;
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The creation of an Office of Inspector General and Office of Ombudsman to
increase oversight;
Increased use of community-based alternatives to lower the TYC population
and rehabilitate youth in less restrictive environments.
Changes in the TYC leadership structure to include an Executive Commissioner
appointed by the governor with consent of the Senate and abolished on
September 1, 2009 and creation of a new advisory board;
Misdemeanant youth will no longer be committed to TYC facilities;
TYC will allow advocacy and support groups to provide on-site services to
incarcerated youth.
New county-based programs in large counties for some misdemeanant youth.

Section Three: The Courts in Texas

No account of Texas’ court system should be rendered without the following
infamous finding by the Texas Research League: The Texas Judiciary is in disarray with
the courts in varying parts of the state going their own way at their own pace…Texas
does not have a COURT SYSTEM in the real sense of word. In this section, we will
attempt to point up the structural factors that play a distinct role in the above-mentioned
situation (see Figure 10.2). From this point, it becomes easier to locate the responsibility
and effects of Texas government in reforming or at least improving, the state’s system
of justice. To relay the tiniest intricacies of the court system in this chapter would be
misplaced and distracting. Instead the focus will be on overall jurisdiction, judicial
qualification, and the fragmented nature of Texas’ courts.

Courts of Limited Jurisdiction

Courts of limited jurisdiction are also referred to as local courts, as they vary in their
size and composition (much like local governments). Regardless of setting-rural, urban
or suburban-all local courts are limited in the types of cases they may adjudicate.
Criminal violations heard in local courts are limited to misdemeanors only; on the civil
law side, only cases where the dispute does not exceed $10,000 will be tried in local
courts. Although local courts are limited to certain conditions, they are by far the most
overworked, under-qualified, and fragmented of the state’s courts, especially in the five
or six largest urban counties.

Municipal Courts

Municipal courts are established in general-law (less
than 5,000 occupants) and home-rule cities (5,000-plus
occupants). Municipal courts are limited to criminal
violations – class C misdemeanors only; the vast majority
of these cases are traffic violations. Municipal courts are
staffed by judges appointed by city government, who
serve terms of varying lengths. Some cities require judges
to have some legal training and experience, which is
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spelled out in the city’s charter or by ordinance. Other cities may set no formal
qualifications; in fact, the mayor of a general-law city likely will preside over the
municipal court in smaller Texas towns. Justice, like the qualifications for judgeship,
tends to vary dramatically among Texas’ municipal courts.

To make matters worse, most decisions (over 98 percent) from municipal courts
cannot be appealed. Only cases heard in courts of record may be appealed, as the
record becomes the basis and determinant for appellate proceedings. Over 70 percent
of Texas municipal courts are not courts of record, which means that appeals must be
made de novo, that is, with a new trial (Note: The Legislature occasionally will authorize
municipal courts to become courts of record.) Trials de novo are heard at the county
court or court-at-law, where they are often deferred over a year and tend to be
eventually dismissed. Municipal courts have no civil jurisdiction.

Justice of The Peace Courts

Justice of the Peace, or “JP” courts are a relic of the Anglo
Saxon tradition. They are occasionally referred to as “the people’s
court,” conjuring images of television’s Judge Judy, who actually
presides over a small claims court (which differs from JP courts,
although the two share certain jurisdiction). Justice of the Peace
courts are established by county government (the commissioner’s
court) and by state law, which authorizes the number of precincts
each county shall have. There must be at least one precinct per
county. For counties with populations of 18,000-29,999, there must
be two, but not more than five precincts.

At least four precincts are required in counties of 30,000 or more inhabitants; no
more than eight precincts may be established in any county. Usually one judge will
serve each precinct, although a county with more than 150,000 inhabitants is authorized
two judges per precinct. Justice of the Peace judges are elected to four-year terms, and
their salaries are determined by the county’s commissioner’s court. Like their municipal
court counterparts, Justices of the Peace reflect varying levels of qualification and skill.
In larger urban areas, many Justices of the Peace are practicing lawyers, although in
general, most lack formal legal training. For those who are not lawyers, Texas state law
requires a forty-hour course describing the performance of Justice of the Peace
judgeships.

Justices of the Peace perform a variety of functions, again depending on the size
and nature of the county they serve. Justices of the Peace are notaries public; they
perform marriages, and in many rural counties, they serve as county coroner (many
county governments lack a full-time medical examiner). Consider the implications:
outside of the larger metropolitan areas, an individual with no formal legal training will
render decisions and remedies for both civil and criminal cases; the same individual,
with no formal medical training, will determine cause of death (or refer wrongful death to
a state pathologist).
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Although many dedicated souls serve their counties as Justices of the Peace (and
granted the judges receive a week’s worth of preparatory training), the chance for
misapplied or ill-advised determinations remains a probability. Furthermore, the judges
cannot be made to attend the forty-hour, or subsequent training sessions, as there is no
enforcement policy to correct noncompliance. Regardless of precinct size or
qualification of the judge, Justice of the Peace courts have concurrent (overlapping)
jurisdiction in both civil and criminal cases within the county. Class C misdemeanors
may be heard at either municipal court or a Justice of the Peace precinct; provided the
offense occurred within city limits. Justice of the Peace courts also share civil
jurisdiction with the county court, and with the district court, in disputes involving $5,000
or less. Finally, Justice of the Peace jurisdiction is strictly original. Appeals are always
heard as trials de novo at a county court.

Constitutional County Courts (and Courts At-Law)

At the pinnacle of the local court hierarchy are the constitutional county courts,
obviously deriving from a constitutional mandate. Every county must operate at least
one county court, which is technically presided over by the county judge. These judges
are elected by county voters for a four-year term, but they do not actually involve
themselves in the day-to-day workload of the court. Instead, county judges perform key
administrative functions for county government, which is showcased by chairing the
county commissioner’s court. In other words, county judges act primarily as policy-
making judicial executives resembling the House of Lords in the British fused system of
Government. Some argue that this system is inconsistent with American separation-of-
powers doctrine. However, the Texas Constitution requires as qualification that
constitutional county judges simply be “well informed in the law of the State,” although
the legislature has subsequently added formal training by Supreme Court-approved
courses in evidence and legal procedures for county judges who are not lawyers.
Despite these provisions, many of the state’s constitutional county judges do not have
law degrees; however, judges presiding over county courts-at-law are required to be
lawyers, as determined by the legislature.

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Figure 10.2: The Texas Court Structure

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County courts-at-law are created by the legislature, which also establishes the civil
and criminal jurisdiction of these courts and qualifications for judgeships. Currently,
there are approximately 200 “statutory” county courts. Some counties have none,
whereas Harris County has nineteen – four of which are civil courts, while the rest only
hear criminal cases or appeals. Both constitutional and statutory county courts have a
hodgepodge of jurisdictions – they have both civil and criminal jurisdiction and original
as well as appellate jurisdiction (for the 30 percent of counties with municipal courts-of
record). Adding to the workload of these courts is,
of course, the responsibility of hearing trials de
novo, and, unbelievably, a movement to transfer
certain third-degree felony cases from district
courts. This movement has more or less been
camouflaged in the revised State Penal Code,
which reduced most DWI (driving while intoxicated)
offenses, and assault of peace officers/public
school teachers to Class A misdemeanors.
Summarily, it is somewhat obvious where the most
chaos, overlap, and overwhelming workloads exist
in Texas’ entire court structure.

Constitutional county courts have original criminal jurisdiction over Class A and B
misdemeanors and appellate jurisdiction over Class C misdemeanors from municipal
courts of record. These courts share civil jurisdiction with Justice of the Peace precincts
for disputes over $500 (and not to exceed $10,000). Appeals of civil cases where the
damages exceed $200 are heard in county courts where municipal courts of record
exist. County courts-at-law differ somewhat in that the legislature may define the
jurisdiction of these courts when they are created. Statutory county courts maybe limited
to either civil or criminal jurisdiction as well as the dollar amount of civil disputes. For
example, some courts may be limited to disputes under $2,500, while others are
authorized to hear cases up to $100,000. Criminal jurisdiction is the same as
constitutional county courts, as well as appellate and de novo jurisdiction.

Courts of General and Special Jurisdiction

These courts differ from courts of limited jurisdiction because they are not local
courts; instead, they are referred to as state courts. What this means, practically
speaking, is that courts of general and special jurisdiction are constitutional creatures
uniformly established throughout the state, by districts, and are further defined by
legislative acts. Secondly, these courts are not limited to certain criminal offenses or
dollar amounts of civil disputes, they may be granted special (specific) jurisdiction over
certain cases, that is, juvenile, or contested probate cases. Finally, these courts are
uniform in the qualifications for judgeships.

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District Courts

Most often referred to as general trial courts, these are the state’s workhorse courts,
which maintain original jurisdiction over a variety of cases. Each of the state’s 411
district courts is presided over by u district judge who is elected to a four-year term, and
who must be at least twenty-five years old and have four years experience as a
practicing lawyer or judge. Also, a district judge must have been a resident of his or her
district for a period of two years prior to assumption of duties. District courts have
original criminal jurisdiction over felonies of every degree, including capital murder.
They have original civil jurisdiction, concurrent with county and Justice of the Peace
courts, on disputes ranging from $200 to $5,000, and exclusively over disputes
exceeding $5,000.

Most civil disputes heard in district courts are divorces, disputes over land titles, and
suits for slander or defamation. District courts also hear cases over contested elections;
given that there are well over 2,000 electoral precincts in Texas, these situations occur
relatively often. Criminal cases heard in district
courts are most likely to involve drug
possession /sale, theft, burglary, and other
felonies (rape, manslaughter, assault etc.).
District courts designated as juvenile courts
handle roughly 80 percent of all juvenile
offenses, while county courts hear around 20
percent of such cases. Juvenile criminal justice
will be detailed below.

Finally, district courts may be granted special jurisdiction, by legislative (statutory)
authorization to handle specific types of cases. Juvenile, criminal district, and civil
district courts are those courts having special jurisdiction by being instructed by the
legislature to “give special preference” to certain types of cases. It becomes impossible
to conclude anything about the district court structure at this point, except that
jurisdictions are confusing, unorganized, and ill-conceived. In the words of one author,
“…such a hodgepodge of jurisdictions is but one indication that reorganization and
simplification of the Texas judicial system are needed.”

Juvenile Courts

In the past decade, Texas’ state district “juvie” courts have experienced a 16%
increase in new cases, and an historic high 24,000 cases currently pending. County
juvenile cases have increased over 26% in the same period, again adding to the
overworked county justice system. Another statistic of concern is the volume of juvenile
cases, relative to all cases filed in a given year Consider that over the last decade,
juvenile cases constituted a greater share of the caseload than in the prior decade. Prior
to 1993, juvenile cases accounted for less than two percent of total caseload. Since
1993, juvenile cases accounted for two to more than three percent of cases filed.

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Intermediate Courts of Appeals

As their title suggests, these courts are between the trial courts of general jurisdiction
and the state’s highest (supreme) courts. There are fourteen intermediate Courts of
Appeals in Texas, one in each of thirteen multi-county districts, the fourteenth court
having overlapping jurisdiction with the first court in Harris County. As their title also
suggests, these courts have exclusive appellate jurisdiction over cases originating in the
lower courts within each court of appeals district. Appeals courts hear both civil and
criminal appeals, except for capital appeals, which are filed directly to the Texas Court
of Criminal Appeals. Appeals courts are unique in their size, nature, and procedures.
Texas Constitution mandates that each court be presided by a chief justice and at least
two associate judges. The Legislature may expand the membership of each court by
statutory provision.

Although most courts of appeal have three judges, the large metropolitan districts
have at least seven, and the Fifth Court of Appeals (Dallas County) has a total of
thirteen judges. Unlike the lower courts, appellate judges are elected for terms of six
years. To qualify for service, the judge must be at least thirty five years old, and must
have ten years experience as a practicing lawyer or judge (in a court of record).
Relatively speaking, Texas’ courts of appeals are models of efficiency/ averaging
approximately eight months to dispose of civil appeals and nine months to rule on
criminal appeals. Although the number of judges has remained constant since 1985
(there are eighty appeals judges), the number of opinions written has steadily
increased; the number of civil dispositions has increased almost 12 percent, and
criminal appeals rulings have increased over 20 percent. One factor that has impacted
the courts’ ability to respond is that the Texas Supreme Court may shift cases from one
district to another, depending on caseloads. Typically, cases are shifted between
Dallas, the fifth court, and Houston, the first and fourteenth courts.

Court of Criminal Appeals

In 1891, Texas’ bifurcated court system was established, to expedite the appeals
process in the vast Lone Star State. Only one other state – Oklahoma – has a similar
system, which essentially calls for two supreme courts, or courts of last resort. The
Court of Criminal Appeals is the court of last resort for all criminal cases, and the court
maintains exclusive jurisdiction over capital appeals. The court is comprised of nine
judges who are elected for six-year, staggered terms (i.e., three judges run every two
years). To qualify for service, the individual must be at least thirty-five years old, and
have ten years’ experience as a practicing lawyer or judge, or a combination of both.
Decisions rendered by the Court of Criminal Appeals may qualify for appeal to the
United States Supreme Court (typically these cases involve a question of
constitutionality).

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The Texas Supreme Court

Unlike its criminal law counterpart, this court performs certain key administrative
functions, and has, however limited, original jurisdiction over certain cases. The
structure of the Supreme Court is the same as the Court of Criminal Appeals. Although
its caseload is somewhat less than the court of criminal
appeals, the Supreme Court performs administrative
duties such as determining rules of civil procedure,
which usually become law (the legislature may
intervene); appointing the board of law examiners, and
transferring cases between districts. Regarding actual
caseloads, the Court maintains original jurisdiction
over the retirement or removal of judges, ballot
placement disputes, and issuance of writs.

Most of the Court’s time is spent hearing appeals and issuing writs of error. These
writs are basically the state’s equivalent of judicial review, that is, an appeal based on a
misinterpretation of law may be granted a writ of error and subsequently granted oral
argument. Typically, the Court’s appellate jurisdiction evolves from these sources:

When there has been a disagreement among members of a court of appeals on
a material question of law
When a court of appeals renders a decision that conflicts with a decision of the
supreme court or another Texas court of appeals
When an act of the legislature has been held unconstitutional
When state revenue is involved
When the Railroad Commission is a party
When it appears that an error of substantive law affecting the judgment has
been made by a court of appeals, except when the legislature has conferred
final jurisdiction on those courts

Both courts of last resort have maintained fairly constant workloads in the past ten
years, although the criminal court has experienced an influx of writs from prisoners
(habeas corpus), and the Supreme Court has issued twice the number of “other than
error” writs and motions.

“Linda Yanez Runs for Texas Supreme Court”

Conclusions, Trends and Results

The past two decades have witnessed a significant volume of reform regarding the
judicial system in Texas. As with the other components of any government, politics,
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culture and the constitutional framework itself have shaped the changes, or lack of
them. For close to two decades, calls for comprehensive judicial reform have been
offered, and ignored. In 1991, the Texas Research League (at the request of Texas
Chief Justice Tom Phillips) promoted the “Texas Plan” which would have required
judicial elections to be non-partisan, would have the state, instead of counties, pay for
court administration, and called for a number of changes in court structure and
qualifications for all judges.

In 1993, the Citizens’ Commission of the Texas Judicial System proposed another
model that featured optional county courts, expanded district courts, and criminal/civil
divisions of the Supreme Court (eliminating the current bifurcated “two-headed”
supreme jurisdiction). Unfortunately, the trends reflect Texas’ pattern of piecemeal
change, which strongly reflects the state’s political culture of elitism, and response to
powerfully funded narrow interests – including
the legal profession itself. Let’s start with the
biggest piece in piecemeal, the 2003 Civil Justice
Reform Act – the latest and most significant re-
work of Texas’ civil law. While massive,
misleading advertising campaigns were launched
in order to sell the reform as a solution to the
“frivolous lawsuit tax”, significant changes on the
“burden of proof” as well as restrictive definitions
and damages (fines) were imposed instead.

The sad irony in this entire subject is that the so-called Texans for Lawsuit Reform
(TLR) “is a Republican-dominated group whose primary purpose is to go after trial
lawyers – not so much because of any policies, but because trial lawyers (by and large)
fund Democrats.” Every possible flavor of corporate and professional legal abuse was
strengthened by the Act, which was rolled into an amendment to the Texas Constitution
(see chapter 4 for details about the 2003 election)

Legal Profession

Next, factor another piece of the legal brew – the hollowed-out professional
standards and consumer protection against frivolous lawyers. In 2006 and 2007, a non-
profit group entitled HALT – An Organization of Americans for Legal Reform, published
report cards for all U.S. states. The 2006 report on Lawyer Discipline explained that
since 2002, Texas; standing has sharply fallen from 22nd to 38th in the nation, primarily
because rules adopted by the State Bar of Texas in 2004 made the system more biased
in favor of lawyers.” Figure 10.4 is the actual report card, with six graded areas, and the
overall assessment of a D+.

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In 2007, the Ft. Worth Star-Telegram’s Consumer Report series shed light on
another dark area for the Texas public – suppression of information about complaints
and grievances filed against attorneys.

“The Texas Legislature and Supreme Court, which share a role in
establishing ethics rules for attorneys, have made it so that the public
stays in the dark about thousands of lawyers accused of misconduct.
Bar confidentiality rules ensure that many sanctions are private and that
lawyers accused of felonies can continue practicing. The Bar doesn’t
require attorneys to report their criminal record or malpractice suits.

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The limited publicity also reflects the commission’s other priority:
sparing attorneys from needless embarrassment. Under today’s rules,
the public is not told if an attorney is being investigated, or the number
or nature of any grievances that are dismissed against an attorney. To
critics, the Bar’s concern with protecting its own has resulted in a
system that gives attorneys the upper hand. They say that’s why the
Bar tallies thousands of fewer grievances from the public than 10 years
ago, and fewer lawyers are disciplined, even as the number of licensed
lawyers has grown.

Ten years ago, one in 120 lawyers was disciplined; today, roughly one
out of every 250 is disciplined. Bar stats show that most grievances are
dismissed; of those that aren’t, most lead to no sanctions. When a
lawyer is sanctioned, the Bar rarely publicizes its disciplinary actions
except in publications for lawyers, such as the Texas Bar Journal.

Justice for Some

On the other side of the legal aisle, little work has been done to improve two issues
areas at the core of unequal justice. Wrongful convictions and indigent defense reform
have received “window dressing” in both substance and in budgeting, while new focus
has been given to an old concern – prosecutorial
misconduct – largely due to highly controversial
cases such as the 2007 “Jena Six” racially biased
case in Louisiana. Regarding the first area, no
progress has been made in adopting the Texas
Innocence Commission. The program was
introduced in 2003 by Texas Senator Rodney
Ellis, and revived during the 80th Legislature. An
article in the Dallas Morning News stated that
“according to the Innocence Project, a nonprofit
criminal justice resource center in New York,

200 people nationwide have been cleared through DNA testing after
they were convicted. In Texas, 29 men have been exonerated by DNA
testing, including 13 in Dallas County in the last five years. Just as the
National Transportation Safety Board investigates major accidents, the
innocence commission would try “to learn some lessons from the
tragedy” of a person who is wrongfully convicted, Sen. Ellis said.
Enough is enough. Day after day, week after week, we learn of more
innocent Texans who have had their lives torn from them in tragic
error.”

The most recent conviction recommended to be erased in Dallas
County occurred earlier this month. A judge ruled that James Curtis
Giles, 53, should be cleared of a 1982 gang rape that prosecutors now
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acknowledge was committed by a man with a similar name. The
exoneration must be finalized by the Texas Court of Criminal Appeals.
Dallas County has had more convictions overturned than any other
county in the nation since the first exonerations based on DNA testing
occurred in 1989.

Though the legislation passed by a wide margin the Texas Senate, distractions and
amendment maneuvering in the House of Representatives killed the Innocence
Commission’s chances for enactment in 2007. Meanwhile, the third element of the
injustice braid, prosecutor misconduct, saw new indignities hurled at Texas. The Giles
case mentioned in the previous paragraph was the product of prosecutorial misconduct,
hence the reason for his exoneration. Unfortunately, the misconduct is often overlooked
in exonerations, given the begrudging nature of the outcome (a civil damages award of
some amount not to exceed 500,000 dollars). What is the issue with prosecutors?

“Prosecutorial misconduct ranges from hiding, destroying, or tampering
with evidence, case files or court records; failing to disclose exculpatory
evidence; using false or misleading evidence during trial; to improper
behavior during grand jury proceedings.” The “Ten Worst Prosecutors”
list carefully researched and produced by the Bennett Law Firm (BLF)
in Houston, Texas, features a handful of recent occurrences where
federal and state prosecutors did not play “by the rules” with respect to
evidence in criminal trials and ruined the lives of innocent people to
further their own professional careers.

The BLF’s “Ten Worst” list exposes the harsh reality that bad
prosecutors are not always disciplined for such misconduct and, in most
cases, continue practicing law without missing a beat. The BLF and the
website strongly believe that the list will heighten public awareness and,
in turn, help curb unjust prosecutions and deter future prosecutorial
misconduct.

The Bennett Firms’ list of worst prosecutors for
2007 included four attorneys from Texas – more
than any other state. The most visible name was
Alberto Gonzales, the former US Attorney General
and Texas Supreme Court Judge, who made the
list due to his firing of nine US Attorneys for
politically motivated reasons. Also mentioned is
Texas ex-prosecutor Terry D. McEachern, who is
best known for seeking unlawful cocaine
possession charges against the African-American
community of Tulia, Texas, and withholding
exculpatory evidence. Governor Rick Perry
eventually pardoned the 36 convicts.

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References

Edwin R. Coulter, Principles of Politics & Government (Wisconsin: Brown& Benchmark,
1994)
Eugene W. Jones et al, Practicing Texas Politics, 9th Ed, (Boston: Houghton Mifflin,
1995)
Jacobs et al v. Seminole County Canvassing Board
(http://199.44.225.4/courtDockets/pdf)
http://bennettlawfirm.typepad.com/badprosecutors/2007/08/top-10-worst-us.html
http://seaxneat.blogspot.com/2005/10/indictment-requirements-and.html
http://www.austin360.com/aas/legislature/0601/061801/execution.html
http://www.burntorangereport.com/showDiary.do?diaryId=4155
http://www.courts.state.tx.us/pubs/AR2007/overview/2-statewide-activity-summary-
fy06.XLS
http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DN-
innocence_24tex.ART.State.Edition1.42ecbda.html
http://www.halt.org/reform_projects/lawyer_accountability/report_card_2006/
http://www.house.state.tx.us/resources/accomplishments80th
http://www.texanscareforchildren.org/innerpage.php?pageid=187
http://www.woai.com/news/local/story.aspx?content_id=f7a6af45-418a-46b4-993b-
89a2cfb479ee

References

Texas Judicial Blogspot: http://gritsforbreakfast.blogspot.com/
Texas Judiciary Online: www.courts.state.tx.us

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http://199.44.225.4/courtDockets/pdf

http://bennettlawfirm.typepad.com/badprosecutors/2007/08/top-10-worst-us.html

http://seaxneat.blogspot.com/2005/10/indictment-requirements-and.html

http://www.austin360.com/aas/legislature/0601/061801/execution.html

http://www.burntorangereport.com/showDiary.do?diaryId=4155

http://www.courts.state.tx.us/pubs/AR2007/overview/2-statewide-activity-summary-fy06.XLS

http://www.courts.state.tx.us/pubs/AR2007/overview/2-statewide-activity-summary-fy06.XLS

http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DN-innocence_24tex.ART.State.Edition1.42ecbda.html

http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DN-innocence_24tex.ART.State.Edition1.42ecbda.html

http://www.halt.org/reform_projects/lawyer_accountability/report_card_2006/

http://www.house.state.tx.us/resources/accomplishments80th

http://www.texanscareforchildren.org/innerpage.php?pageid=187

http://www.woai.com/news/local/story.aspx?content_id=f7a6af45-418a-46b4-993b-89a2cfb479ee

http://www.woai.com/news/local/story.aspx?content_id=f7a6af45-418a-46b4-993b-89a2cfb479ee

http://gritsforbreakfast.blogspot.com/

http://www.courts.state.tx.us/

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Chapter 9
Local Governments in Texas

Despite all of their problems, local governments seem to offer prospective residents
nearly everything that they might want in terms of taxes, services, employment
opportunities, climate, and so forth…

The political and governing actors,
events, and structures discussed thus far
pertain, for the most part, to the state
government in Austin. In other words, the
state’s capitol represents the nexus of
elected and appointed officials of many
different stripes, performing a myriad of
functions, acting on behalf of all Texans.
The vital and powerful role of state
government notwithstanding, it does not
tend to interact meaningfully with the people
on an everyday basis. Local government –
county, municipal, and special district – is the government closest to people. In a state
as large as Texas, local government often represents the only real identification with the
roles government plays for many rural or rural suburban communities. Legally speaking,
however, the state retains sovereignty over local governments; that is, cities and
counties are the creatures of the state legislature and the Constitution, respectively,
which authorize and defines their very existence.

In this chapter, we shall define and discuss the framework of local governments, the
relationship with state government, and the outstanding issues that will further illustrate
the dynamics of governing at “the user level.” To further enhance the discussion it is
important to view Texas’ local governments in perspective to other states and regions,
because Texas represents a crossroads of governmental cultures, styles, and issues.
We shall begin by examining the nature of local government, in order to empower
students (and residents) of Texas government to better evaluate the currents and
direction of changes in the Lone Star State. This chapter will focus on the following
aspects of local government:

Local government in perspective (roots, legal framework, attitudes)
The status of Texas’ cities (legal framework, methods of organization, issues)
The forms of city government in Texas
The role of Texas’ counties (legal framework, organization, issues)
The hidden government of special districts (legal basis, sources of authority,
issues)
Economics and local government (a profile of development in Texas, sources
of friction and resolution)

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Local Government: The Last Best Chance for Democracy – Or –
Administrative Agents of the State?

An underlying principle of democracy is that government
should be responsive to the needs, wants, and demands of its
citizens. In this scenario, local governments are highly qualified
or “good” governments because citizens have quick and
tangible access to local officials. Conversely, the American
Framers feared the idea of an openly democratic society, as
the “popular passions” of a large group would spell doom for
the new government. In the words of John Adams, “democracy
never lasts long. It soon wastes, exhausts, and murders itself.
There never was a democracy yet that did not commit suicide.”

Somewhere between these antithetical philosophies lies the actual role of local
governments! In other words, local governments (cities, counties, and special
districts) are, and always have been, empowered to provide essential services and
order to citizens everywhere. However, regulating the scope and nature of local
government reflects the sovereign authority of the state government. We may then
conclude that a unitary system of government exists between the state and local units of
government.

Although cities are legal entities with the authority to pass laws (ordinances) and to
tax certain items, they serve at the will of the state legislatures. That is, they have no
constitutionally granted authority. By definition this is a unitary system of government,
which is the essence of the Dillon Rule. The following summary of a case in Iowa
depicts the Dillon Rule in the state-local relationship:

The true view is this: Municipal corporations owe their origin to, and
derive their powers and rights wholly from, the legislature. It breathes
into them the breath of life, without which they cannot exist. As it
creates, so it may destroy. If it may destroy, it may abridge and control.
Unless there is some constitutional limitation on the right, the legislature
might by a single act, if we can suppose it capable of so great a folly
and so great a wrong, sweep from its existence all of the municipal
corporations in the State, and the corporations could not prevent it. We
know of no limitation on this right so far as the corporations are
concerned…they are, so to phrase it, the mere tenants at will of the
legislature.

This description of the legal relationship between municipalities and the states they
are geographically located in may sound appropriate, when logically applying the
concept of sovereignty (there has to be a clear line of authority). However, human
societies have for millennia been defined by the natural formation of the polis, or city-
state. In Texas, the presence of city-missions, so to speak, long predated its form as a
Republic and US state. It comes as no surprise to even a casual observer that massive
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metropolitan entities (corporate zones) would not coexist comfortably with their state
governments.

Anti government sentiment has been a hallmark of Texas culture since the early
settlement days. Whether the backlash was toward the state or federal government,
Texas counties and cities, and occasionally, even school districts have resisted
conforming regulation imposed on them. Certain events (9/11 terror attacks, hurricanes,
etc) and political realities have shaped the latest wave of resistance, and downright
defiance, against the Dillon Rule. In Texas,
economic downturn and budget shortfalls, combined
with an elitist political leadership and one-party
Republican dominance, has given new dynamics for
local governments to contend.

The Texas Municipal League (originally titled The
League of Texas Municipalities) is a
nongovernmental association that has served to
inform, organize and assist municipal governments
in Texas since 1913. The TML website posted this
unique translation of the Dillon Rule:

“City officials across the state are well aware of the fact that many
significant decisions affecting Texas cities are made by the Texas
Legislature, not by municipal officials. Newly elected mayors and
council members quickly realize that cities are indeed “creatures of the
state.” This subservient position of cities in the state’s
intergovernmental system means that the legislature can address
virtually any aspect of city government.

During the 2005 legislative session, more than 5,300 bills or significant
resolutions were introduced; at least 1,200 of them would have affected
Texas cities in some substantial way. In the end, more than 1,400 bills
or resolutions passed and were signed into law; approximately 105 of
them impacted cities in some way.

For example, both 2005 and 2007, the state continued to increase a vast array of
fees and fines, in lieu of adopting more visible and broad-based taxes, as a means of
increasing state revenues. Typically, local governments would keep a small portion of
the collected fee, and then send the rest to Austin. Now consider the following impact of
just one of these examples, the Municipal Court Fee:

“Municipal courts in Texas collect funds on behalf of the State of Texas
for a wide variety of state programs. These state programs range from
the Criminal Justice Planning Fund to the Crime Victims’ Compensation
Fund. In most cases, the fees are imposed on persons convicted of any
criminal offense; some are imposed only on traffic offenses. Many city
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officials contend that state court costs adversely impact municipal
courts in two ways. First, the state’s court costs are complicated and
costly to administer.

While cities can keep a small percentage of the costs
as an administrative fee, that amount is not sufficient to
reimburse the cities for the bookkeeping and
administrative problems connected with this function.
Second, when setting an appropriate fine for an
offense, a municipal judge must consider the fact that
the defendant will also be paying state court costs. As
a result, municipal fine revenue is often lower than it
would otherwise be, because the judge has considered
the state court costs when setting a defendant’s total
fine.

New State Fines, Fees, and Costs on a Traffic Conviction in Municipal Court

Other issues, such as the Real ID Act, the 2007
National Response Framework, and various
environmental incentives continue to place demands
on local government, but interestingly, a trend has
begun across the nation. Increasingly, cities “are doing
it for themselves” by taking the lead in providing
solutions to 21st century challenges in a manner more
effective for their unique settings. More will be provided
in the following sections, but the trend away from
federal and even state intrusion has boiled over in the
past several years, as evidenced in the almost
wholesale demise of the Bush Administrations’ No Child Left Behind program, and the
city-by-city resistance to the flawed 2001 U.S. Patriot Act.

Meanwhile, the Texas Legislature has given local governments a mixed bag of
changes in recent years. Let’s begin with the most significant item, the 2006 property
tax-school funding “plan”, which continues to display significant shortcomings. The
Municipal League’s 2007 Legislative Update provides this summary:

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Flip-Flopping on Voter Approval of Taxes
When the Texas Legislature reconfigured the state’s school finance
system in 2006, it enacted or increased state-level taxes in order to
reduce local school property tax rates. But the legislature also allowed
each school district to hold an election to increase the school property
tax rate to generate additional local funds. This system of requiring
voter approval of increased property tax rates
appeared to be exactly what some groups and some
publications had been clamoring for.

On the November 6, 2007, election date, in accordance with the new
law, nearly 120 school districts around the state asked voters to
approve higher property tax rates. In roughly 80 percent of these
elections, voters approved the higher rates. What was the reaction of
the organizations and publications that have supported popular
elections on property tax rates?

The Texas Public Policy Foundation, in an October 26, 2007, op-ed
piece in the San Antonio Express News, accused school districts of
“pilfering” the tax cut. This was despite the fact that any school property
tax rate higher than the rate set by the state had to be approved by
voters.

The Lone Star Report, in a November 16, 2007, op-
ed piece, claimed that voters who had approved the
higher tax rates across the state had been duped, that
they had “…succumbed to the blandishments of
education establishment spokesmen,” and that “some
voters may well not have known what they were doing.”
The op-ed concluded that “hardly any yea voters gave
the matter the attention it deserved.”

It’s obvious that many of those who want voter approval of property
tax rates – including municipal property tax rates – aren’t interested in
voter approval as an end in itself. They are interested in lower taxes
and smaller government at any cost. Voters who refuse to go along are
accused of not paying attention, not knowing what they’re doing, and
succumbing to the voices of big government.

Texas cities and regional entities called councils of government (COG’s) were
presented with a variety of security and emergency-related mandates from the federal
Department of Homeland Security, through the Texas Department of Public Safety.
Currently, local governments are in linen to receive considerable funding from Uncle
Sam, with strings attached of course. For example, the Texas Administrative Code
(proposed) lists the following criteria:

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Eligibility for Federal Incentive Programs
The Division of Emergency Management administers certain federal
assistance programs authorized under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act as amended, and other statutes.
To participate in these programs, a city or county must meet, as a
minimum, the following basic eligibility requirements:

Have a local emergency management agency
legally established by city ordinance or
commissioner’s court order or participate in
an inter-jurisdictional emergency agency
established by joint resolution of the
participating local government.

Have a local or inter-jurisdictional emergency
management plan that meets state planning
standards for minimum content and is current.

Have formally adopted and be implementing the National Incident
Management System (NIMS) as its incident management system.

A number of revamped emergency and other disaster-related reforms of Texas’
Emergency Management operations have breathed new life into the heretofore
toothless COG’s. These entities will are the “inter-jurisdictional” emergency agencies
mentioned in the first two stipulations above. Thus, even though state and federal
requirements are placed on local jurisdictions, they can also serve to empower them
legally and financially. As evidence of this, and the proactive nature in many cities
regarding clean energy and the environment, a new grant initiative came forth in late
2007. House Bill 6 is a “comprehensive energy bill aimed at moving the United States
toward greater energy independence and security:

The Energy Independence and Security Act
Among the provisions important to cities is a new $10 billion Energy
Efficiency and Conservation Block Grant program. Modeled after the
Community Development Block Grant program, the Energy Efficiency
and Conservation Block Grant program would provide grants to cities,
counties, and states for innovative practices to achieve greater energy
efficiency and lower energy usage. These grants would fund local
initiatives, including building and home energy conservation programs,
energy audits, fuel conservation programs, building retrofits to increase
energy efficiency, “smart growth” planning and zoning, and alternative
energy programs.

As outlined in the bill, any city with a population of at least 35,000
and any of the 10 most populous cities in the state would be eligible for
the block grant. The Act authorizes $2 billion for each fiscal year 2008
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through 2012. If and when funds are appropriated, 68 percent would be
designated for local governments (cities and counties), 28 percent for
states, two percent for Indian tribes, and two percent for competitive
grants to local governments that were not eligible based on population
or to a consortium of local governments. House Speaker Nancy Pelosi
(D-Calif.), who made energy policy a priority of her “New Direction
Congress,” said the measure was “groundbreaking in terms of what it
will do in savings to the consumer, protecting the environment, and
providing a new direction.”

To best view the span of control over local governments, students should reflect
back to the concepts of concurrent power, described in Chapter 2, the Texas
Constitution. The specific issues described in the articles above are real-time examples
of the legal concepts described in the state-federal constitutional framework. Or are
they? Often, this can only be determined by judicial rulings.

Municipal Government: The Status of Texas’ Cities

According to 2002 Census of Government figures, Texas has
1,196 cities, 254 counties, 1,089 school districts, and 2,245
special districts. During the past 20 years, the number of special
districts has steadily increased, due mainly to the rapid creation
of water districts in unincorporated areas. Conversely, the
number of school districts has steadily declined, as smaller
systems have consolidated with larger ones. The number of
counties has remained constant for 100 years, while the number
of cities is increasing at an average of about 10 per year. Local
governments in Texas are anything but predictable, as they
represent the most dynamic aspect of Texas’ political
government.

Just as cities are unique in their settings, architecture, culture, and moods, so they
are with their governments. By design, cities have been able to sow, diversify, and
employ innovation in response to changing times. Cities are granted general legal
authority by drafting a city charter, which is essentially the voter’s approval of the city’s
“blueprint,” or constitution. Just as the national and state constitutions serve as political,
social, and economic guidelines, charters serve to describe these same relationships for
municipal governments. Until the turn of the century, the Legislature granted authority
by general laws for all of Texas’ incorporated cities. That is, the general policies about
tax rates, services, annexation, and so on, were established by the legislature for all
cities-basically a “one-size-fits-all” framework for city government.

After a constitutional amendment in 1912, the legislature passed the Home Rule
Enabling Act of 1913, which provided for home rule authority for those cities with
populations of 5,000 or more persons, and whose voters approved the city’s proposed
charter. (Cities that do not seek home rule continue to be referred to as general law
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cities.) Home rule authority allows a city to determine, among other things, its own style
and variation of government (provided they do not conflict with state or federal laws).
The term “home rule” found its way into mainstream conversation in 1995, when the
Legislature approved home rule authority for school districts; these districts may now
determine certain aspects of education policy that were ‘ previously determined by
general state law.

Of Texas’ 1,196 cities and towns, over 350 have been granted home rule, and with
that the authority to annex adjacent unincorporated lands, and to establish a zone called
extraterritorial jurisdiction (ETJ). In Texas a home rule city may annex (acquire) up to
10 percent of its total acreage in any given year; furthermore, unused sums may be
carried over to the next year. Annexation is, and has been, a key factor in the effective
growth of Texas’ urban areas. Annexation provides two vital prerequisites for
development. First, the city is able to extend its boundaries in a natural, unimpeded
fashion, as annexation precludes suburban developers
from incorporating themselves. Second, the city is able
to expand its tax base by incorporating land that will
eventually incur taxation for a variety of purposes. If
the land is undeveloped, annexation is generally a
simple process (since 1975, Texas cities had to obtain
approval for annexation from the United States
Department of Justice to ensure that the voting
strength of the annexed area was not diluted, which
would not be a concern for undeveloped annexation).

Occasionally, however, occupants may object to the action, as they may be reluctant
to pay taxes to the city government and to conform to city laws (ordinances). While
annexing allows cities to add acreage, extraterritorial jurisdiction provides urban
planners the ability to control, and direct the development of an area extending up to
five miles outside the city limits. The ETJ “ring” may only extend one-half mile outside of
cities with 1500 or fewer inhabitants, while five miles is granted to cities over 25,000
inhabitants. Although development in ETJ zones is not subject to municipal taxes, the
city will benefit from the established jurisdiction in other ways. For example, within the
ETJ, cities may exercise the following options:

Annex land without a vote of either the city’s residents, or the
residents of the annexed area
Preclude annexation by other cities or incorporation by the people
within the extraterritorial jurisdiction
Require conformity with city codes governing streets, parks, utility
easements, placement, and building standards

The use of annexation and extraterritorial jurisdiction has been cleverly employed by
some Texas cities. For the most part, these measures provide an effective means to
direct or shape the city’s growth. Consider, for example, the following account of
Houston’s urban planning:
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Houston preserved its options in 1963 by annexing 10-
foot strips stretching as far as forty miles to the west,
north, and east of the city. Because Houston’s jurisdiction
extended five miles on either side of the strips, it thus
controlled much of the metropolitan area. Ultimately,
annexation – or growth in general – transcends the
function of urban planning and public administration. Like
many other things, politics plays a very unpredictable and
significant role in shaping Texas’ urban development. As
the state moves into the twenty-first century, development and growth will become
increasingly subject to political battles stemming from a variety of sources. In short,
gone are the days of simple, unimpeded growth.

More will be said about the nature of urban politics in the “issues” section of this
chapter; for now, it is sufficient to note that city governments and their politics have
legal, flexible sources of power, and can quickly and innovatively respond to challenges.
We will now compare and contrast the way city government is organized – a
combination of culture and efficiency.

Forms of City Government in Texas

Regardless of size, all cities in Texas have adopted one of three basic styles of
government. Home rule cities may create any organizational model they desire,
provided it does not conflict with state of federal law. General-law cities are further
restricted, although they may still determine which of the three styles to adopt. Styles of
government may fluctuate from city to city, as variations of each style have been
implemented throughout Texas. We will begin with the most common style of municipal
government found in Texas’ 1,196 cities and towns.

Council-Mayor

The council-major form of municipal government is, and always has been the most
prevalent style among American’s largest cities, and conversely, among Texas’ smaller
towns. Under this system, the mayor is chosen at large (by all the city’s voters); while a
city council (usually of seven to twelve members) is elected from single-member
districts. This style has tow distinct variations – the strong mayor (Figure 9.1) and the
weak mayor (Figure 9.2) – which vary the amount and nature of mayoral power. In the
strong-mayor variation, the mayor is granted the following powers:

The power to appoint and remove key department personnel (police
and fire chiefs, utilities directors, public health officials, librarians,
etc).
Extensive budgetary powers. Usually the city council plays some role
in adapting or endorsing the mayor’s budget).
Veto power over actions or programs of the council.
Shared policy making powers with the council
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Figure 9.1: Council-Mayor Plan – Strong Mayor Version

Figure 9.2: Council-Mayor Plan – Weak Mayor Version

Thus, strong-mayor cities grant both administrative and political policymaking
authority to the mayor. Supporters of this system claim that mayors should be
responsible and responsive to the voters, thereby justifying the extensive power focused
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on the city’s elected leader. The strong-mayor
system is obviously highly centralized, a feature,
which skeptical, individualistic Texas tends to
frown upon. Critics of strong-mayor government
have always pointed to the legendary abuses of
power found in northern, industrial cities such as
New York, Chicago, Philadelphia, and Cleveland
(especially during the nineteenth and early
twentieth centuries). The younger cities of the
south, especially Texas, have resisted this style of
government – wishing to avoid the patronage
based “ward-heeling” machine governments from
another time and place. Despite these images, most political scientist favor the strong-
mayor system as the most salient style of municipal governance, especially in the larger
urban areas.

They believe strong-mayor systems allow a savvy urban leader the tools to preside
effectively over city government and to build consensus and cooperation among the
diverse interests found in Texas’ largest metro areas. Benefits aside, only two of Texas’
major cities (Houston and El Paso have adopted the strong-mayor – council style.

The weak-mayor style is an attempt to retain the public-leadership role of the mayor
while limiting other sources of mayoral power. One or more of the powers listed above
is not granted in weak mayor systems. Instead, a certain power may be shifted to city
council or replaced by another method, that is, elective rather than appointive
department heads. Additionally, most weak-mayor systems reduce rather than remove
the mayor’s veto power (by requiring fewer council votes to override a veto). Weak-
mayor systems are more commonly found in Texas’ smaller municipalities.

Council- Manager City Government

This style of governance is very popular among Texas’ large and medium-sized
municipalities; in fact, 243 of the state’s 351 home-rule cities have council-manager
governments. Intended to counter the centralized, patronage-based mayoral “machine”
governments, council-manager systems separate policy making and administration, to
the extent possible in modern urban politics. Similar to mayor-council, the city council
members are elected from single-member districts, while the mayor is elected at large,
usually for two-year terms. Some cities do not elect a mayor; instead, the council
members choose a mayor from their own ranks, usually as a ceremonial leader. San
Antonio and Dallas are the two largest municipalities with council-manager systems;
both cities have mayors elected at large, and city council members elected from single-
member districts. Austin remains unique in its charter provision that council members be
elected at-large. Criticism of at-large representation is always expected, due to the
perception that a relatively small voter turnout can elect an entire council, and that it
perpetuates incumbency.
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Council-manager style (Figure 9.3) has been hailed as reformist, or progressive; it is
designed to place administrative authority in a professional city manager (chosen by the
city council). The council is free, therefore, to concentrate on representing the diverse
interests of the community, shaping, and directing public policy. In short, the city
manager is hired to run the various departments of municipal government efficiently,
while the council involves itself with the political struggles of urban society – a
separation of powers, so to speak. The manager assumes some of the functions
granted to mayors in mayor-council systems, that is, to appoint department heads and
supervise the preparation and execution of the city’s budget. The council initiates and
priorities the policy agenda, which may be influenced by powerful and creative mayors
like Ronald Kirk, former mayor of Dallas, or Henry Cisneros, former mayor of San
Antonio.

Figure 9.3: Council-Mayor Plan

Critics of these systems point out that city managers are never free of the council, as
he or she inevitably will be consulted by council members as they develop public policy.
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City council duty is basically voluntary; council members are paid a token fee ($25 per
week in San Antonio, for example) while the city manager is a full-time public
administrator. Hence, council members often rely on the manager for input and
guidance, even among an aggressive and proactive council. Without executive
leadership, council-manager governments run the risk of stagnation in policy making or
excessive public-private commingling by the communities’ elite interests.

Despite the lack of formal strong-mayor powers, the mayor in a council-manager
system can greatly influence the course of municipal government (especially in large
urban areas). The visibility and leadership potential of the mayoral position, coupled
with strong ties to the community and region, serve al levers of power for an energetic,
talented local official. From 1957 to 1988, former San Antonio mayor Henry Cisneros
was an embodiment of such power, as he led the city through transition and
development. The following recollection of columnist Roddy Stinson frames the
essentials of political leadership in council-manager city government.

Those of us who watched Cisneros closely
during the 14 years he was councilman/mayor are
wiser simply by osmosis. Anyone who didn’t learn
something about leadership in general and guiding
San Antonio in particular during Henry’s reign
wasn’t paying attention. Forget his public errors and
private peccadillos…concentrate on his successes.
And focus on the process by which the talented,
inventive politician led San Antonio from the
metropolitan minor league to the big time…During
Cisneros’ years at City Hall, he came up with at
least one community-improving brainstorm a day –
or so it seemed to those of us who received his
press releases, sometimes hand-delivered by
Henry.

The constant activity – though joked about in local newsrooms –
produced energy and created an idea-rich environment that eventually
led to giant economic/social steps forward. More than any other leader
in the history of San Antonio, Henry Cisneros tried mightily to include all
social, cultural, racial, religious, and economic groups in the town’s
decision-making process. The nonviolent, power-sharing revolution that
helped bring the Alamo City into the 20th century was result of Cisneros’
insistence that every group be provided a place at the community table.

In summary, council-manager city government is a potentially powerful and
progressive style of government – a movement away from old-style ward politics and
overly empowered mayors. However, without a formal chief executive, it is almost
incidental that council-manager systems successfully respond to the dynamics and
hurdles of big-city politics in the closing years of the twentieth century. Dynamic,
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proactive mayors in council-manager systems are a must to Texas’ diverse urban
settings, although the “voluntary” nature of the position may not always produce the
best field candidates. Perhaps the largest council-manager governments will creatively
adapt the mayoral post to changing urban needs.

Update 2008: More Growing Pains

Regardless of style, Texas cities continue to experience issues sustained by growth
and economic and security conditions of the late 20th century. As discussed in the
preceding chapters, conditions are hampered by the 21st century constitutional design,
and the equally regressive tax structure. However, each year brings forth the seed of
change – local governments stepping into the arena of innovation, of grassroots
activism, of adaptation. In previous editions of this text, issues such as urban sprawl, air
emissions (pollutions) and mass transportation would reflect the emerging trends and
progressive solutions to them. The first years of the new millennium have added new
demands – enormous ones at that – to local governments, effectively putting other
issues on back burners. Namely, homeland security requirements, a fundamental shift
in state policies, and major economic/budget weakness have all contributed to the
scuttling of local power in favor of select state & federal governing policies.

Although no reasonable person would oppose the overall
goal of effective security preparation, a few considerations
should be pointed out. First, will the funding from the US, or
especially the state government be adequate, to fulfill the
requirements listed above? Second , theses changes do not
address one of, if not the most glaring shortcomings –
sharing federal crime date bases with state & local law
enforcement. Third, and possibly the most significant, do the
state and federal requirements fundamentally change the
nature of local government in its most basic role – law
enforcement in the 21st century city.

More specifically, this brings us back to previous discussions of federalism – a
system of divided powers. The demands of the federal laws directly shifts the role of law
enforcement resources – especially manpower – away from prescribed roles of law &
order, and toward emergency response, early warning, and surveillance. Even librarians
are shifted to surveillance, under the Patriot Act! The point here is that the federal and
state roles are appropriate for the vast majority of
homeland security, whereas local units have a
narrow (though very important) role – not the other
way around.

Cities and counties have long employed tactics to
resist the mandates of higher government, especially
the federal government. Often this happens after a
landmark court case or act of Congress, such as
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refusal to racially integrate schools in the 1960’s and the recent widespread neglect of
the California “pledge of allegiance” lawsuit (striking “one nation under God”). Early in
2002, a handful of U.S. city governments passed resolution in protest of the Patriot Act.
The protest ranged from rejecting the u se of police personnel in support of the act, to
civil librarians. By summer 2002, the list grew to twenty cities, a year later to 140. The
following article expresses the sentiment at play in some of these cities….

Across the country, citizens have been forming Bill of Rights defense
committees to fight what they consider the most egregious curbs on
liberties contained in the Patriot Act. The 342-page act, passed by
Congress one month after the September 11, 2001, terrorist attacks,
with little input from the public still in shock, has been most publicly
criticized by librarians and bookstore owners for the provisions that
force them to secretly hand over information about a patron’s reading
and Internet habits. But citizens groups are becoming increasingly
organized and forceful in rebuking the Patriot Act and Homeland
Security Act for giving the federal government too much power,
especially since a draft of the Justice Department’s proposed sequel to
the Patriot Act (dubbed Patriot II) was publicly leaked in January.

“We want the local police to do what they were meant to do – protect
the citizens,” said Nancy Talanian, co-director of the Bill of Rights
Defense Committee in Florence, Mass., which gives advice to citizens
groups on how to draft their our resolution. Although cities across the
country passed antiwar resolutions before the attack on Iraq with little
notice from the administration, Talanian said that the anti-Patriot Act
resolutions are “not quite as symbolic” as those that passed against the
war.

Normally, the president and Congress don’t pay that much attention
when it comes to waging war”, she said. “But in the case of the Patriot
Act, the federal government can’t really tell municipalities that you have
to do the work that the INS or the FBI wants you to do. The city can
say, ‘No, I’m sorry. We hire our police to protect the citizens and we
don’t want our citizens pulled aside and thrown in jail without probable
cause.’

Other notable infringements include further restriction on a cities’ annexing power,
extraterritorial jurisdiction/zoning requirements, and limiting city governments’ authority
to ban concealed handguns on municipal property. As stated earlier, the session proved
very regressive and power hungry and Texas’ cities will be less served with these AND
OTHER DECISIONS. The one most significant omission – school finance and tax
reform – may get long overdue attention in a special session scheduled for March 2004.

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Texas’ County Governments – The Wards of the State

Unlike her cities, Texas’ counties are
constitutional subdivisions of the state. Thomas
Jefferson’s burning desire for popular, direct
democracy placed greater importance on county
government. In fact, his final years were spent
attempting to further democratize the states by
dividing the counties into wards (geographical
subdivisions of the county). In an 1824 letter,
Jefferson urged the Congress “to divide the
counties into wards of such size as that every
citizen can attend, when called on, and act in
person”. Ward governments “would deal with all
things relating to themselves exclusively, including
schools, law enforcement, judicial and welfare
functions, and the like. Such a scheme…would relieve the county administration of
nearly all its business, and would make every citizen an acting member of the
government…15 As one may observe, ward governments basically would perform the
roles of city government, although they would be constitutionally created divisions of the
county, and would serve to vastly equalize conditions from county to county.

Given American’s general disdain for government and direct participation (except in
some areas of the North and Northeast), the ward concept never took hold, nor was it
revived. In Texas, however, the functions listed above most certainly fell on county
government. Counties carry out many administrative functions of state government,
such as maintaining the state’s courts (district level and higher), recording deeds, births,
marriages, and divorces; collecting a number of state fees, fines, and taxes, and
supervising elections and voter registration. Even in the largest urban counties, the
county will always retain some authority over key “police powers” such as public health,
judicial functions, law enforcement, fire protection, and welfare programs. Counties also
look after local road and bridge maintenance, and other “local government” concerns
such as property appraisal, libraries, and pest control.

In short, one should observe that county government performs a dual role – one of
state administration and the other as a form of local government. “What’s the
difference?” the observer might ask. The answer is simply that county government was
originally intended to administer state government (policies, programs, laws, etc.) at the
local level, while urban local government – municipal and special districts – emerged to
administer local governmental functions. The following sections will allow a greater
understanding of these distinctions, as the organizational structure of Texas’ counties
versus that of its cities is both curious and problematic.

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County Organization in Texas

Sections 4 and 5 of Article XI of the Texas State
Constitution, which provides for the legal status of
Texas’ municipal corporations, states simply that “the
several counties of this State are hereby recognized as
legal subdivisions of the State,” whereas Article IX
actually describes establishing counties, along with
other specific features of county government. Basically,
the state Constitution bestows the legal authority for
county governments, but places significant restrictions
on them. For example, Texas’ 254 counties may not
establish laws (ordinances), because a county may not
be granted home rule status. Counties, therefore, are
limited to rates of taxation not to exceed 80 cents per
$100 of property valuation.

Given their general-law status, Texas counties are
not free to adopt a style of government. All counties
must maintain the same organization – to some extent,
(larger urban counties tend to add to the number of county officials, depending on their
needs and resources). Counties have had to adapt to changing needs, demands, and
issues in metropolitan areas, and have been hindered by the constitutionally imposed
structure. The vast majority of Texas’ counties, however, remain the cornerstone of rural
local government. Out of the states’ 254 counties, less than thirty are considered
metropolitan statistical areas (MSAs) with populations exceeding 75,000 people. These
urban counties experience a composite form of local government, which shall be further
discussed in the issues section of this chapter. For now, we will detail the organizational
pattern of county government as a primary unit of local government.

Elements of County Government

Regardless of size, all counties in Texas operate under the same plural-executive
style of government, which includes, but is not limited to, the following officials: the
county judge, commissioners’ court, sheriff, constable, district attorney, district judges,
district clerk, county clerk, tax assessor-collector, auditor, and medical examiner. As
one may observe, the most essential functions of government – representation, law
enforcement, taxing and spending, and public health – are maintained by these offices.

“County Government: Opening Scenes”

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“County Judge and Commissioner’s Court”

County Judge and Commissioners’ Court

In theory, the county judge presides over the county court,
as was discussed in Chapter Ten. In practice, however, much
of what the county judge does is executive in nature. The
judge actually presides over the commissioners’ court, a
four-member panel of elected officials (commissioners) who
represent the county’s policymaking body. The county judge
and commissioners are among the most visible and influential
officials of this local form of government. In many a rural
county, the commissioners are referred to as “road
commissioners”, indicating the high premium placed on
establishing and maintaining farm-to-market roads, county roads, and bridges in
agriculturally developed areas. Each commissioner is responsible for these services in
his or her precinct.

All counties are divided into four commissioner’s court precincts, although there may
not actually be four full-time commissioners. In tiny Loving County, for example, one full-
time employee serves the commissioner’s court and county judge. The court
establishes the geographic boundaries of the four precincts based as closely as
possible to equal populations. In addition to road maintenance, the county
commissioners perform a variety of essential duties, including setting the county tax
rate, adopting the budget, and overseeing county expenditures.

Additionally, the commissioners’ court is charged with the conduct and supervision of
virtually all elections, except municipal and special district contests. The commissioners
must establish the county voting precincts, which constantly fluctuate in areas of growth
and must acknowledge the results of elections therein. The court is the gatekeeper of
county government, fulfilling the most essential of duties as required by the state
Constitution. With the approval of the state Legislature, however, they can establish
additional countywide offices, based on the needs and priorities of the county, such as
flood and pest control, libraries, building supervisors, and social services. These
specialized county offices, appointive in nature, are subject to approval by the county’s
voters prior to being established.

“County Judges, County Commissioners”
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Law Enforcement

Obviously, the key law enforcement officer of the county is
its sheriff. Similar to other county officials, the sheriff is elected
to a four-year term. A highly visible community figure, the sheriff
is assisted by at least one constable, who serves as the
sheriff’s warrant officer, administrator of the justice of the peace
precinct, and functionary, In counties with more than 18,000
inhabitants, up to eight justice of the peace precincts may be
established, with a constable for each; in smaller counties, the
sheriff may declare the entire county as the precinct.

The county sheriff is the primary law enforcement agent in the state’s numerous rural
counties. He or she often serves in conjunction with state and federal agents, in a
variety of roles such as drug enforcement and illegal immigration operations. For
example, former El Paso Sheriff Hector Reyes distinguished himself by successfully
stemming illegal immigration in El Paso County, in a joint task-force operation with the
Border Patrol. More routinely, sheriffs staff and train their departments, administer the
district and county courts, and operate the county jail. More recently, Travis County
Sheriff Margo Fraser got good publicity from her successful management of the
department, and “jail streamlining” reforms at the Travis County Jail.

Despite the success stories, county-run jails have been the target of
much criticism, for a variety of shortcomings. Typically, overcrowding
leads the charges, along with sexual assault and unsanitary conditions.
Privatization of correctional facilities has been attempted in some
aspects of jail operations, but it appears that a full-scale reform may be
needed to fully divorce the Sheriff’s Office (in the metro area counties)
from this function. Privatizing some jail operations allowed the
bribery/conflict of interest issues in Bexar County.

The situation involved then-Sheriff Ralph Lopez, and “Lopez’s
longtime campaign manager and friend John Reynolds. Mr. Reynolds
was Lopez’s appointee to the Benevolent Fund board, which awarded
and oversaw the [Bexar County Jail] commissary contract. According to
court documents, Reynolds told Premier to contribute to Lopez’s
campaign and give charitable donations through Reynolds in exchange
for operating the commissary. Premier attorneys have insisted that
there was no wrongdoing in the way the company landed the contract.
Reynolds is awaiting sentencing…Lopez plead no contest to three
misdemeanor charges, and pay a $10,000 fine, and resigned his office.

All counties are required to establish a district attorney’s office, as the chief
prosecuting official. Actually, in this capacity district attorneys are state officers, as are
district judges, although the counties must maintain and resource these offices. Many
counties also staff a county attorney’s office, responsible for prosecuting lesser
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http://search.msn.com/images/results.aspx?q=texas+sheriff+badge&FORM=ZZIR7

offenses as well as representing the county in
all legal matters. In fifty Texas counties –
including metropolitan Bexar County – the
county attorney’s duties are performed by the
district attorney’s office or, in some instances,
by a criminal district attorney.

Finally, all counties must establish a
“competent” medical examiner to determine
cause of death in situations where the death is
not witnessed and is not apparent, and for
murder victims. In smaller rural counties, the justice of the peace acts as the coroner,
the agent responsible to investigate and determine if an autopsy is required.

“County Sheriff, District Attorney, County Attorney, Clerk”

Administrative Functions

Texas county governments require several essentials administrative offices, which
function both for the state and as agents of local government. The county clerk
performs a variety of duties, usually depending on the size of the county and its
government. The county clerk registers various legal documents: deeds, will, birth, and
death certificates, marriage licenses, and so on. Additionally, he or she handles daily
administrative duties for the county commissioners and the county court. In most
counties, the clerk also serves as elections administrator – the individual responsible for
certifying and placing candidates on the county’s ballot, and for registering voters (large
urban counties are served by an appointive elections administrator).

All counties with more
than 10,000 inhabitants are
required to staff a tax
assessor-collector and a
county auditor. The
functions of the tax
assessor-collector have
been somewhat reduced since 1980. Previously, the tax assessor-collector was
responsible for determining property values, a power which can be quite vulnerable to
rough-and-tumble politics. As a result of the Tax Relief Amendment or 1978, the
Legislature passed the states’ Property Tax Code, which “called for joint efforts of the
governing bodies of the taxing units in a county to establish an appraisal district by
electing members of an appraisal district board… The tax assessor-collector’s primary
duties now consist of certifying the tax roll, determining the ownership and amount of
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property taxes, and collecting such funds. In smaller counties, the sheriff will typically
perform these duties.

Unlike the other officials discussed so far, the county auditor is not an elective
position. The district judges of each county appoint the auditor for a two-year term, to
audit all county expenditures, issue warrants, and act as the county’s chief financial
authority and accountant. In fact, in counties with more than 225,000 inhabitants, the
auditor is the budget officer, with primary responsibility to establish the county’s budget
and to administer the county’s bond program. In some counties, the auditor also acts as
the county’s employee administrator and statistician. Two counties with less than
25,000 residents may agree to hire an auditor jointly to serve both governments, or the
functions may be performed by the county judge.

“County Treasurer, County Auditor”

Appointive County Officials

As previously mentioned counties may, depending on size, legislative permission,
and popular approval, provide for various other functions. For example, Bexar County
staffs a law library director, a building superintendent, a manpower director, and a
purchasing agent. These services are a priority to the San Antonio metropolitan area,
whereas other counties – Harris, for example – may choose to establish a mosquito
control director and toll road authority director. It should not be construed that these
offices are frivolous or excessive. Simple put, large urban counties differ vastly in their
needs and wants.

Summary: Pros and Cons of County Government

In a state as huge as Texas, county
government provides a myriad of state
services and programs. Essentially,
counties must maintain a standard of
living for their residents by promoting,
protecting, and providing (in some
cases) all governmental services. In
many rural counties, this is local
government, period. The agricultural
sector of Texas is large, and very well
adapted to county government as the
local entity. County government is
simple and uniform, making it easy to
identify and relate to, no matter where
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in Texas one may be standing. Also, county government is partisan; unlike
municipalities, candidates run for office under Democratic or Republican labels, which
help voters gauge the nature and orientation of potential officeholders. In many ways,
counties provide a measure of stability for all Texans.

Difficulties emerge, however, with the increasing demands and complexities of urban
and suburban living at the close of the twentieth century. Due to constitutional and
statutory limitations, county governments are unable to respond effectively to the
changing needs of metropolitan Texas. For example, counties may not establish
ordinances, as they are general-law units of government. Home rule for counties was
attempted once, during the first half of this century, but was subsequently repealed by
the Legislature because the provision was unclear and untested. This does not mean
that home rule in not necessary for county government – it most certainly is; ordinances
for compliance with zoning and development policies, for example, enhance property
values and revenue for the counties.

Another related hindrance is the lack of taxing authority. As
stated earlier, property taxes may not exceed 80 cents per $100 of
property valuation, which is almost one-half of what general-law
cities may assess ($1.50 per $100)! Counties may raise revenues by
issuing general-obligation bonds, although use of these funds is
restricted to construction and repair of farm-to-market roads.
Revenues may not be raised through the general sales tax, because
counties are not home-rule units of government.

In general, however, the most pervasive and intractable problem with county
government is its fragmented, parochial nature. When one considers the role county
government fulfilled throughout the nineteenth and early twentieth centuries, these
qualities were actually desirable. Residents in sparsely populated agricultural
communities related closely to their county officials; likewise, the officials (especially
commissioners) took care of their precincts, with little regard to other units of
government. There was no need to plan or coordinate activities. There was little or no
need to regulate or implement policies. Fragmented government appealed to
individualistic, skeptical Texas farmers and ranchers – thus the role were cast under
circumstances much different from the current hodgepodge or urban, suburban and
rural sociopolitical priorities.

A glaring example of fragmented policymaking is the road-and-bridge responsibility
of each county commissioner. Instead of planning and implementing roadwork county-
wide, the commissioners have tended to focus solely on their own precincts. In
essence, they are in competition with the other commissioners for road and bridge
funds, a situation both costly and ineffective. County economics thus then to follow this
pattern; that is, they are small-scale and parochial. With no formal “chief executive”,
comprehensive and efficient policymaking is unlikely (save when a charismatic county
judge uses his or her informal powers to direct a particular county goal).

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Proposals for reform of county government have been
floated for some time in the Lone Star State. Substantive
propositions went for naught with the failed constitutional
convention of 1975; others (home rule and consolidation
with municipal government) simply haven’t been seriously
pursued. The need for reform is obviously much more
critical in urban and suburban counties, especially those
experiencing growing and shifting populations. Regardless
of size, counties will continue to provide the same services and fulfill the same role as
the administrative arm of the state. With a few modest changes, that is, hiring a
professional county administrator and granting home rule status, urban counties would
be in a position to plan, coordinate, and implement policies for the betterment of the
whole county. In fact, a Kerr County candidate for County Treasurer has campaigned to
eliminate the office, if elected -an idea that seems to have appeal outside of Kerrville.
The San Antonio Express-News details how a “primary race is shaping up in Kerr
County, where one of the contenders does not want the job.

In fact, he wants the elected position abolished. Ed Hamilton, 77, is an
Air Force veteran and an accomplished real estate broker, and he’s
running for Kerr County treasurer, on the unique platform of getting rid
of the position. “I just like more efficient government,”
Hamilton said. To do that, Hamilton believes an efficient
county government does not need a treasurer. So that’s his
platform. Hamilton wants to let the county auditor and
accounting software do the work and save the taxpayers
some money, by having the money handled by those who
don’t have to mess with politics and running the county like a
business. “When you’re spending public money, you need to
really get your money’s worth,” Hamilton said. “You don’t hire
accountants to work for you for two years, and then you get
another one or you re-elect them.”

If elected, Hamilton says he won’t take any salary as treasurer. His idea
is nothing new. At least six other Texas counties, including Bexar
County, no longer elect a treasurer. However, it takes a change to the
Texas Constitution, and Hamilton wants to get that process going, even
though it could be years before the decision is put before voters.

Despite the failed city-county merger opposed by certain groups and Texas Senator
Frank Madla, a few Texas cities have forge ahead with consolidation at some level. El
Paso County is the most extensively consolidated, while Bexar County officials,
bolstered by the new county arena for the Spurs NBA franchise, and a new county
judge (former mayor Nelson Wolff) are renewing efforts to merge numerous services. All
aspects of government service – land use (especially zoning), water use, health care,
law enforcement, environmental regulation, to name a few – require professional
governments designed to accommodate twenty-first century realities. In the meantime,
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Texas continues to suffer from a twentieth century malady; excessive layers of
uncoordinated governments. The malady has been compounded by the presence of
“subgovernments” known as special districts.

Special District Governments:
Texas’ Junior Cities

Along with many other states, Texas has accommodated many emergent
governmental functions by creating a “special government that is a special district to
fulfill them. A special district is a local unit of government authorized to perform specific
or limited functions. The most visible and institutionalized of these are independent
school districts; others are somewhat obscure and peculiar, for example, noxious weed
control authorities or mosquito control districts. Regardless of their nature, special
districts continue to be present over 40 percent of all local governments in Texas.

Why these districts exist at all may not be very apparent to a vast majority of United
States citizens. We tend to identify our local, state, and national governments based on
geographical location and function. Where are special districts? A sound bit of advice
for students is to dismiss the geographical connotation of the word “district” and
substitute it with the word “purpose”. Article 7, Section 3 of the state Constitution,
amended in 1926, actually empowers the legislature “to provide for the formation of
school district by general laws”. Of course, amendments have been added to adjust the
general law tax and bond restrictions; as stated earlier, independent school districts
have been granted “home rule” status to better accommodate educational needs and
demands. Except for school districts and some utility districts, most of the state’s special
districts are special-purpose governments, some of which cover many counties (the San
Antonio River Authority), a few counties (the Edwards Underground Water District), or
parts of a county (the Alamo Community College District). Although school districts and
utilities districts also perform a special function, they are based on geographical
considerations.

Special districts owe their existence to several factors. The first special districts were
school districts, crated to de-politicize the educational process. In the late 1800s,
education reformers saw the need to provide educational independent from established
local government; hence, a special governmental “unit” was created (in each county) to
provide educational services. In this regard, districts are granted the authority to “rule”
that is, to provide, and regulate a service, in return for a tax or fee. Although special
districts may define their jurisdictions a number of ways, they are most characterized by
the service and attendant fees, for example, education, and property taxes, or air travel
and airport fees.

Another reason for establishing special districts is less admirable – economic
opportunism. This applies to those likely to gain from real estate or other development
projects. Municipal Utilities Districts (MUDs) are created to provide water and
sewage services to unincorporated areas, since county governments are not authorized
to do so. MUDs are typically governed by appointive boards or directors; not
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surprisingly, they tend to have ties with the realtors
or developers. For example, legislation was
approved during the 2001 Legislative session to
create several “water and impoundment districts” in
Hays County. These districts will be created
expressly to accommodate a golf course and large
residential development near Drippings Springs.

The scenario is a familiar one: economic
development versus municipal capability. Typically,
municipal governments have been supportive of
these special district governments, as they often are located in the city’s extraterritorial
jurisdiction. But the harsh realties of urban sprawl and water supplies has warped the
status quo, and are forming the resistance to development. The Hays Count issue and
another like it, involving a proposal for a PGA sanctioned golf course have caused great
concerns are actually empowering some local entities and encouraging change and
innovation.

Given their authority to govern, special districts may also incur debt to provide a
specific project or service (subject, of course, to voter approval). Sale of bonds is the
typical method to increase a district’s revenues, although at times the debt is hidden
from those who will eventually pay to service it. Ultimately, the stage is set for cozy,
elitist-style politics in certain special district settings. The local media and other
watchdog organizations have a significant role in creating awareness and providing
insights about the reality of MUD politics. Otherwise, special district governance will
continue to benefit the “development network” – politicians, realtors, architects,
investors, lawyers, contractors – at the expense of consumers and the environment.

Natural resources also factor into the creation of
special districts due to their lack of “jurisdiction”,
another reason for establishing special-purpose
governments. Certain natural resources (beaches,
rivers, underground aquifers, to name a few) present
numerous challenges for most local governments.
The basic problem is establishing jurisdiction, since
natural resources belong to all Americans, all
Texans, all Gulf Coast residents, and so on.
Furthermore, they tend to cross county lines, as well
as state and national borders. To accommodate this quality, special districts (sometimes
referred to as “authorities”) are created to monitor, regulate, and otherwise govern the
geographical resource (the San Antonio River Authority and Edwards Aquifer Authority
are examples of such districts). However, they are also susceptible to the undemocratic
nature of local, elitist politics.

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Pros and Cons of Special-Purpose Governments

For the most part, special-district governments do fulfill a unique role in Texas
government. This is not to say that special districts are desirable and progressive units
of government; they are, however, a way of accommodating special situations in a
pragmatic, immediate manner. Creating special districts has proven to be an easy way
for state and local governments to pass a political “football” (a politically unpopular
issue) to an obscure, little-supervised special government. Texas’ 1037 Independent
School Districts and hospital districts are highly visible units, geographically
determined and easily accessed by users or residents. Although school districts are
beginning to feel the heat of voting rights activism, at least their boards of trustees are
elective and highly accountable positions.

Unfortunately, the benefits of special districts are clearly outnumbered by criticisms
of these “hidden” governments. Most are poorly organized, inefficient, or highly prone to
special-interest politics. In other words, since special districts are small units of
government, finances tend to be small-scale, and revenues may be unpredictable.
Districts officials generally receive a pittance for their services, which does not
encourage qualified, professional management. Since they tend to be poorly supervised
(if at all), cronyism, and other influences are likely play a large role in the performance
of district functions. The heretofore-appointive nature of special-district boards smacks
of patronage, and is obviously undemocratic. In keeping with these drawbacks, a
situation developed in 2003 in south Bexar County – involving yet again, a water
management special district.

Finally, special districts have been historically invisible to the mass public. Except for
“celebrity” districts like Edwards or the VIA Metropolitan Transit Authority, most of the
state’s approximately 80 special districts are unnoticed, since they receive little or no
media coverage. As previously mentioned, the mass media and advocacy actors play a
large role in the continuing quest for more
accountable (and visible) government. Most
citizens routinely pay fees and taxes either
without being aware of it, or without knowing from
which special district the fees are being assessed.
For example, without thoroughly reading one’s
airline ticket (which may prove rather tedious).
one many not be aware of how much the airport
authority charges. Similarly, numerous fees are
collected through local utilities billing services,
without informing residents about either the fees of the services. It seems likely that
voter/citizen apathy has accommodated the prevalence and autonomy of special-
purpose governments, not to mention an antiquated, piecemeal approach to local
government in the nation’s second most populous state.

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Summary: Texas’ Kaleidoscope of Local Governments

In the past fifty years, the Lone Star State has
experienced growth, diversity, and transformation on a
truly grand scale. Such change has been both
welcome and sought, as it has placed Texas among
the leaders of American society and political economy.
The transformation is reflected in the sprawling
metropolitan areas – Texas cities and suburbs are
currently home to over 85 percent of the state’s
population. The transformation is also reflected in the
hodgepodge of local governments. There are no less
than four thousand units of local government – counties, cities, and special districts –
granted the authority to do something, somewhat in Texas.

Municipal governments in Texas have attempted to accommodate growth by
remaining flexible that is, using their home-rule options to increase geographically,
financially, and structurally. With this responsibility, the need for large-scale planning
has emerged as a function of internal and external pressures. Municipal governments
have developed economies of scale, that is, through central planning efforts that
coordinate the functions of development, finances, spending, and services. The problem
is that “master planning” tends to stop at the city limits. Unincorporated areas of urban
counties are left without the comprehensive rule of municipal government, leaving a
void that tends to be filled by special districts or inadequate county services.

Earlier in this chapter, the regional entities
called Councils of Government were discussed
as a function of the state’s emergency planning
system. Let’s take a look at one in particular, the
Alamo Area Council of Government (AACOG),
to understand the niche that has evolved for
regional governments in Texas. The general purpose of AACOG is to plan for the
unified, far-reaching development of the region, eliminate duplication of services, and
promote economy and efficiency through coordination. AACOG:

Organizes cooperative projects among local governments to save tax dollars
Provides technical assistance to member local governments in economic
development, grant applications, planning, management, and other areas
Administers federal and state programs that benefit from regional cooperation
Coordinates federal, state, and local projects and issues that cross the
boundaries of individual local governments
Plans for the orderly development of the region and for effective delivery of
public services
Reviews and coordinates federal, state and local programs of regional
significance

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The AACOG regional jurisdiction

The San Antonio region continues to celebrate the success of the Early Action
Compact, signed in 2002 by visionary local elected officials from governments in Bexar,
Comal, Guadalupe and Wilson Counties. The region has avoided a designation of
“nonattainment” under federal air quality law thanks to the local/state/federal partnership
established thru the compact and thanks to implementation of air quality improvement
measures put into place by local governments.

One of the clean air policies which benefited our community in 2004 has received
fresh state funding and is now available again in the San Antonio region. The Texas
Emissions Reduction Plan, or TERP, provides incentive grant packages to local
business owners interested in upgrading their heavy-duty on-road vehicles and off-road
equipment. Other factors have also carved new dimensions for municipal government
and their relationship with COG’s.

Situations like Hurricane Katrina, and dealing with
public health and medical care, have provided strong
incentives to plan, cooperate and coordinate efforts.
Having accepted large numbers of Katrina refugees
into the state, Texas’ local officials and residents alike
feel the everyday reminder of what can happen if
decisions are forced by state or federal agencies.
Simply establishing identification has created large
ripples throughout county functions such as elections
administration…resulting in a temporary state ID card
that accommodates driver’s licenses and registering
to vote. However, does this grant the individual
cardholder US citizenship, de facto? All told, the 2009 legislative session will continue to
fill-in-the blanks created by new issues, with old governing systems.
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Chapter 10
Taxes, Education and Roads –
All Together Now, or Never?

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In 1986, Harold Hodgkinson published
Texas: The State and It’s Educational
System, a report from the U.S.
Department of Education’s Institute for
Educational Leadership. The following
image is an exceprt from the report’s
conclusions. What is most impressive is
not necessarily that the findings were very
telling and accurate, but that twenty-two
years later, the forecasts have gone
mostly unheeded. Translated, the
STRUCTURE and FUNDING system have
both continued to languish or outright fail
over a period that has witnessed a host of
factors that should have proved beneficial
to improvement and reform efforts.

Texas population has experienced constant growth and development, in the depth of
the labor force, and tax/revenue sources. Texas population and geographical size both
factor in huge outlays from the Federal government, for highways especially. Driving
around Texas means a lot of fuel consumption, which again means a lot of fuel tax
revenues…some of which are earmarked for education funding. There it is, as plain as
mud, so to speak. Texas economy, taxes, education and highways, all together now!

Let’s get back to the first paragraph…the should have proved beneficial to reform
part. In the past twenty two years, two Texans have been elected president, two have
served as the House Majority Leader, and a Harris (Houston) County Superintendant as
US Secretary of Education. This means “trickle-down” political power for the state, but
to what avail? See Chapter 3 (Interest Groups) and Chapter 6 (Legislature) for most of
the answers. Regardless, we must account for where the Gordian Knot of taxes-roads-
education is at present.

On a different angle, several US and
Texas Supreme Court decisions have
powerfully impacted funding formaulae for
Texas public schools, as well as the
definitions and limits of property taxes
(the pillar of the funding formula). Judicial
prodding has always been a factor is
shaping Texas public policies. But the
American system of separate branches
with delegated, pre-determined roles
intended not for Supreme Courts to
create and implement governing policy.

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Thus, Chapter 10 will serve to present the various aspects of entwined economic
(taxes) entities and the areas most in need of thoughtful and effective reform: education
and roads. One can certainly make the argument that there is no shortage or total
failure in these areas, or that other functions, like health care are more “broken”. The
problem with these points is twofold – health care is far more a national topic, in terms
of how dollars and regulations flow, and second, entire generations and economic
opportunity directly flowl from the the educational platform, and a system to support the
freedom and efficiency of transportation. Here is the outline, to keep the discussion
current:

TAXES IN TEXAS: Concepts, considerations and the current setting
EDUCATION PRIORITIES: Status, issues and change
ROADS and INFRASTRUCTURE: The Big Picture is getting bigger

Taxes and Revenues:
Where and Who It Comes From

Taxes have been a staple of human governance for millennia, as an example of a
governor’s need (or wish) to extract revenues from the economy, to be hoarded or spent
as situations determined. Some see taxes as “the price of a civilized society”, a justified
burden. Others see nothing but the opportunity for waste and more often, abuse, as in
“the power to tax is the power to destroy”. No matter the view however, taxes will
always be arbitrary, and will always place a greater burden on someone or something.
Let’s look at the following terms and concepts to start this discussion.

The tax burden is a useful term that indicates
some measurement of how much of the tax effort is
paid, by an individual or other entity. Often, the burden
is a measurement of a total sum – one household, one
year, one economic class, etc. According to
Governing.com (published by the Congressional
Quarterly journal) “tax burden is a measure of the
taxes paid in a state relative to another constant
factor, such as total personal income, for example.”

A precise definition of burden is difficult to pin
down, as definitions vary. This is no surprise, because
the concept of taxation itself has different implications
amongst various users; economists, and business
academics will provide a different version of burden as opposed to a political leader or a
sociologist. Basically, it boils down to science or principle, i.e., what can be explained
and what we believe in (often symbolically). The problem for everyone involved is that
taxes must derive from elected legislatures, and depending on political culture and
business climate, are often constrained in using science over symbol.

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Tax burden is often used synonymously with tax incidence. For purposes of this
course in state and local government, blurring the two definitions isn’t effective.
Basically, tax incidence is “the analysis of the effect of a particular tax on the distribution
of economic welfare”, or “the burden of an individual tax on various subsets of the total
state population”. Let’s decide that for our discussion in this particular chapter, use of
the term burden will mean the overall impact of all taxes shouldered by subsets of the
overall population, and incidence will apply to the impact of a specific tax.

Fairness and Effectiveness

Taxes must produce revenue for government to use. We’re all familiar with the
essential services governments provide – law enforcement, health services, roads,
education – and know that these require a steady and sufficient flow of revenue. The
problems lie in who or what to tax.
Americans have long held taxes with
healthy skepticism…which has led to
the patchwork system in place for both
Texas and the federal government. In
other words, politics, events (like wars,
depression, technological progress)
and economic policies have converged
over the centuries, to produce three
overall methods to form the tax laws
and collection process. As with most
economic outcomes, the method involves a relationship between two things. Keeping in
mind the notion of burden, the relationship between income and the tax would support
some measure of fairness.

A tax that increases (by it’s rate) as income increases is called a progressive tax.
This tax feeds farness by addressing the so-called ability to pay question. One could
also argue that the affluent profit more from the stable, well-running subsystems of the
economy and transportation networks. Of course, business entities spurn taxes as a
disincentive to make profits. The federal (and some state) income tax is the best
example of a progressive tax.

Insight Question:
If the Texas or federal tax system is a “dis-incentive” to produce or
make profits, how has the U.S. been able to create the world’s largest
economy for over 60 years?

A proportional, or flat-rate tax is usually considered the fairest by conservatives.
The relationship between income and the tax is flat, i.e., it’s the same regardless of
income level. A billionaire and a low-income worker both pay the same tax rate for a diet
coke or a box of cookies, as the general sales tax is the best example of a flat tax. In
Texas , the sales tax rate is 6.24 cents per dollar of sale.

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What then, is a tax rate, if we are to make conclusions about the fairness and
effectiveness of a tax? Simply put, the rate is the amount per unit of production. For
example, if a hot dog from the convenience store costs $1, the rate would be 6.25 cents
and the sale is the unit of production. Sales are services that are produced. The term
base indicates the item taxed, thus the base is the total sale price for the general sales
tax.

Finally, the term regressive tax indicates a negative relationship between income
and the tax rate, i.e., as incomes increase, the tax decreases. The only structural tax
effort based on regressive method is the Federal Insurance Contributions Act or simply
FICA. According to Money-zine.com

FICA is used to provide for the federal system of old age, survivors,
disability and hospital insurance. The first three of these are funded by
the Social Security system, while hospital insurance is funded by a
Medicare tax. Both employees and employers are required to
contribute to FICA taxes through regular payroll deductions.

For tax year 2008, for example, employee
contributions were 7.65% of gross income, but
stops for income over $102,000. In other words,
the regressive quality is that the total tax burden is
disproportionately paid by lower paid workers. At
first glance, this type of tax appeals to the benefits
received principle of fairness. The tax is paid by
those receiving the benefits. Most low and middle
income households don’t have the means, or
propensity to invest and/or contribute to a private
pension or annuity. Since 1935, then, FICA tax has
formed the backbone of the safety net insurance
programs Social Security and Medicare. Despite
their drawbacks, these pillars have adapted and
proved their basic premise of insurance for those
without the means to other sources of economic
viability.

Regressive is also a term that applies to taxes, fees and fines that may not be
structurally designed, but in fact burden lower income households disproportionately.
Any tax or fee that is flat-rate will burden lower end incomes more, depending on what
the tax is based on – consumption or investment. Lower income households tend to
contribute all income toward consumed items like gasoline, tobacco, general sales,
ordinary services, real property (houses & land) etc. Upper income and the very wealthy
may actually contribute more toward consumption, but the burden still lies far more on
lower income households due to the propensity to consume, as a percentage of their
actual incomes. Most workers making less than 40,000 dollars annually have little if
anything left to save, and thus earn more income from dividends or interest.
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Regardless of the method of taxation, or the notion of fairness (benefits received
versus ability to pay), economists and other interested parties will always disagree
about the wisest tax policies to adopt. Most conservatives insist that any tax hurts
economic opportunity, while progressives see taxation as a social responsibility, or as
the phrase goes, “the price of a civilized society.” On the “fringes” of political views are
libertarian, those who don’t believe in taxes at all, and social justice liberals, who would
seek to aggressively “re-distribute” tax revenues from the wealthiest to other arenas
such as housing, education, health care and other public commonalities.

In keeping with Texas’ conservative, individualistic political climate, taxes have been
very closely held in check. Although fees for virtually all government services have
significantly increased, as have fines for every type of transgression, the state’s tax
rates have remained unchanged for many
years. The most common base – the general
sales tax – has been 6.25% of sale for eighteen
years, while the motor fuels tax (gasoline and
diesel) has been unchanged, at 20 cents per
gallon, since 1991. Since its inception,
however, the motor fuels tax has been tied
almost exclusively to the benefits received
principle, as ¾ of revenues are constitutionally
tied to roads & highways.

“Gas Taxes Go Off-Road”

According to the Texas Comptrollers website, “…fuels revenues have historically
been allocated primarily to highways.” Gasoline tax revenue is allocated one-half to the
state highway fund, one-fourth to the school fund and the remaining one-fourth to the
county and road district highway fund and/or the state highway fund. Diesel fuel and
liquefied gas tax revenues are allocated three-fourths to the state highway fund and
one-fourth to the school fund. We’ll get to the taxes-education connection in the next
section, but for now let’s return to the notion of fairness, when a tax rate is fixed, (flat)
instead of on an index, or ability-to-pay principle.

When the motor fuels tax was implemented in the late 1920’s, Texas was exclusively
an agriculture, logging and mining (oil & gas) economy. Shipping and transporting the
raw products, through a variety of transportation modes, obviously allowed the industry
and growers to profit. Using the system (especially RM ranch-to-market, and FM farm-
to-market roads) proved a vital link to encouraging growth and a stable setting for
production. The notion of benefits received is obvious. Of course, the Texas worker in
any job sector benefits from being able to drive to work, but is it not relevant to ask who
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benefits more, the worker, or the owner/manager class? What about when the “more” is
significantly more?

Typically, unions have played the role of income and
benefits broker for American workers, but Texas is a right-
to work state, as discussed earlier in the text. Union
membership is weak, voluntary or discouraged. Also, the
generally acknowledged hiring of undocumented
immigrants has kept wages and labor cost significantly
lower in states like Texas and California, in agriculture
and construction especially. The other side of this coin is
the state economy and employment markets have been
very strong for going on two decades – until the 2008
financial turmoil. The strains of the current setting are
likely to prove as inducements for change in a variety of
economic and tax policies, but this will come slowly and in
piecemeal fashion, in keeping with the state’s enormous
diversity (and unchanging political culture).

Highway to the Future, by Way of the Present

Our state’s legendary individualistic culture is a phenomena at times, given that
Texas economic trends have typically been unaffected by, or run counter to (i.e. the
1970’s) the national settings. Until the latter part of the 20th century, the state was
predominately rural. Low-taxing and largely self-sufficient, with unrestricted use of land
and off-shore drilling, Texas has (until recently) typically shunned the acceptance of
federal funds. However, the last several US Congressional terms have proved very
lucrative for Texas, especially in massive federal transportation bills. Congress and
President Bush approved $286 billion in 2005, titled the “Safe, Accountable, Flexible,
Efficient Transportation Equity Act” – which has been the subject of great debate over
the “earmarking” method of spending. Earmarking has long been a beneficial way to
ensure funding efforts are based on specific projects or goals. However, the process
has been greatly abused in the federal government, in order to eliminate debate and
amendment (the typical legislative process) and capture predetermined hunks of a
spending bill.

Who could forget the endless references to
Alaska’s “bridge to nowhere” during the 2008
presidential campaign, also illuminated by Senator
Ted Steven’s career-ending corruption scandal?
As a USA Today story noted last year, “the Senate
approved spending in a transportation and housing
bill that included money for a North Dakota peace
garden, history museum in Las Vegas and
baseball stadium in Montana – and they approved
it just six weeks after the fatal bridge collapse in
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Minneapolis.” It is something of a relief that such a project wasn’t pinned on Texas. In
fact, Sen. John Cornyn voted against the bill and reauthorization in 2008.

At the state level, elected officials have bitterly fought against the trend to use federal
highway fends for toll road projects. The lack of consensus resulted in a compromise bill
in 2007. According to toll road opponent Linda Stall of CorridorWatch,

the moratorium will keep Perry’s transportation officials from signing
any more comprehensive development agreements with private toll
road companies until after a study is done. Stall said the legislative fight
showed lawmakers were reacting to voters who disapproved of the
Trans-Texas Corridor plans.

“This legislative session really demonstrated that while the governor
may have a tight rein on transportation policy, the legislators have
heard their constituents, and recognize that the direction TxDOT has
been headed in over the last few years is not what the citizens of Texas
are interested in,” Stall said.

The bill will ensure that local toll road authorities have the first option to
build local toll roads and can use state rights of way as needed. Harris
County Judge Ed Emmett had been worried that state transportation
officials would sell local toll road construction rights to private vendors.

The bill also will limit development agreements with private toll road
companies so that the state can buy back the roads after 50 years, and
it lets the transportation department issue $3 billion in bonds to borrow
against future gas tax revenue as equity for state toll roads.

“Alaska Senator Ted Stevens Indicted on Seven Counts”

In the biennial appropriations bill passed by the
Texas Legislature in 2007, TxDOT was allocated
more than $8.721 billion for fiscal 2008, but the
funding has not developed as anticipated, and the
agency is having to cut back on what it intended to
spend for maintenance and new construction projects.

The spending plan outlined by the Legislature
called for approximately $3.5 billion in new
construction and $2.3 billion in maintenance for the
year, with $1.2 billion coming from the Texas Mobility
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http://www.corridorwatch.org/ttc/index.htm

Fund, $2.7 billion from the State Highway Fund and $3.3 billion from federal
reimbursements. Unfortunately, the revenue has not materialized as expected and
TxDOT is in the midst of adjusting its budget to squeeze out the most amount of money
for projects – but with maintenance work taking priority.

At the start of the 81st Texas Legislature in 2009, there are positive signs for
leadership and perspective. Lt. Governor David Dewhurst indicated the following
priorities to the Texas Weekly journal:

Some sort of property tax reform. The Legislature has knocked down
property tax caps – local governments argue that the state is trying to cut off
their revenue without any regard to costs of services. Taxpayers can force
rollback elections when taxes go up eight percent or more; Dewhurst would like
that lowered to five percent.

Improvements in public education. He and some
senators (Steve Ogden, R-Bryan, and Florence
Shapiro, R-Plano) want to revisit school finance
formulas this session though there are questions of
whether the Lege will go along when there’s not an
immediate crisis. The draft budget includes $2 billion
in new spending beyond what’s needed to cover
enrollment growth, he said. And he wants to create a
testing system that tracks individual student’s
“growth and achievement” as they go through
school, that “goes beyond just standardized testing,”
and he wants to “kill TAKS” – the state’s standard
test – and replace it with end-of-course testing.

“Eminent Domain Reform – An Interview with Lt Gov David Dewhurst”

Higher Education “needs more flagship universities… this is a decade-long
process… it is also important that we consider carefully tuition increases… we
can’t afford to price people out of college.” He said money will be too tight to do
all he wants, but said more money should go into funding formulas for colleges.

Texas Department of Transportation. Dewhurst wants to a revolving fund
levered to build new roads. He noted the $5 billion in bonds authorized but not
yet sold for transportation. He said he’s been pushing TXDOT for a list of
priority projects that started large and is now whittled “down to $20-25 billion.
That’s doable.”

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In summary, it’s anybody’s guess about specific projects and strategies early in a
very uncertain year and legislative session (2009). What is very clear is that the existing
tug of war – between Gov. Perry (toll roads rule), local constituencies (we already pay
taxes for road use) developers (any road is a good road) and the legislature, who must
authorize any portion of funding the state is responsible for – is coming to a close. The
legislature is facing a 2-3 billion dollar projected budget shortfall. (This means
prioritizing increases in spending, not necessarily cuts in current spending). Presently,
the state’s economy has cooled in many areas, and new home construction basically at
a standstill. Of course, this means rising unemployment – Texas Instruments and Dow
Chemical among others have recently laid off thousands of employees. How to assess
Texas’ employment conditions is difficult, ie, are these temporary layoffs, or a longer-
term shift in global economic activity?

What is clear is that the federal government’s Economic Stimulus concept will
provide opportunity for state and local governing entities to cash in – in some fashion.
As of this writing, the U.S. Senate is wrestling with the 8.25 billion dollar proposal
fostered by Barack Obama’s brain trust, which includes the added momentum of
Obama’s strong electoral mandate in November 2008, and very high approval ratings.
Whatever the outcome, a huge blizzard of federal dollars for key areas such as roads,
bridges, light rail, “green” technology and energy products, and numerous education
incentives could prove a deciding factor in Texas’ near term gains.

What it also should represent is an opportunity to re-shape the state’s basic system
of funding and implementing the enormous responsibility of secondary and higher
education. Long-term vision is desperately needed in this area. The Lt. Governor’s
priorities indicate that he gets it, but these are just words. Let’s look briefly at the state’s
educational profile, and the overall issue with taxation forming the basis of fairness and
effectiveness.

The Education Opportunity Zone

Always unique, and at times a contradiction, Texas governments have presented
visionary and principled goals for education. Article 7 of the state constitution states that
“a general diffusion of knowledge being essential to the preservation of the liberties and
rights of the people, it shall be the duty of the Legislature
to establish and make suitable provision for the support
and maintenance of an efficient system of public free
schools”.

Over the decades since then, a piecemeal approach
to encouraging growth an d development in the areas
most representative of the state’s funding has produced
very mixed results. The Legislature has typically allowed
politics and personality to determine the direction of
education. For example, the progressive influence of
businessman and US presidential candidate H. Ross
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Perot led to reforms established in House Bill 72, in 1984 (detail below). In the mid-
1990’s, social conservatives (especially James Leininger of San Antonio) poured
millions of dollars into drastically changing the system toward a voucher-based, private
system, in order to seize control of curricula, textbooks, etc. Translated, this effort
meant to eliminate establishment of religion protection mandated by the U.S. Bill of
Rights, and federal precedent.

Virtually all developmental twists and turns have addressed the funding system for
Texas public schools and universities. Numerous state and U.S. Supreme Court
decisions have made the difference, so to speak, in cutting through the political gridlock
facing the state Legislature and governors as well. With the likelihood of another legal
gavel falling, the current Legislature will no doubt revisit a number of education issues,
as the outline by Lt. Gov. Dewhurst indicates above. For now, let’s look at the path of
education thus far.

From the Texas Education Agency: An Overview

The Texas Constitution of 1876 set aside 45 million acres of public
domain for school support and directed that the income from the new
Permanent School Fund be invested in bonds. Today, income from
the Permanent School Fund provides approximately $765 million a year
to local school districts.

A series of additional laws gradually granted
cities and towns more freedom in the
development and administration of their schools,
resulting in the formation of independent
school districts. By 1900 there were 526 such
districts in which the high school replaced the
earlier academy. Today, there are some 1,039
independent school districts in Texas.

A system of accreditation was created in 1885 when high schools sent
selected test papers for examination by the faculty of the University of
Texas. If found satisfactory, the school was considered to be affiliated
with the university and its graduates were admitted without
examination.

In 1911, a rural high school law was passed which established
county boards of education and permitted creation of rural high schools
and the consolidation of common school districts. This effort to make
common or rural schools equal with those in the independent or urban
districts took another step forward with passage of a law in 1917
authorizing state purchase of textbooks. Expansion of rural aid to
schools, including state support for teacher salaries, gradually helped
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improve the education provided to children on the state’s farms and
ranches.

The drive for improved public education gained further momentum in
1949, with passage of the Gilmer-Aikin laws which created the
Foundation School Program to apportion state funds to local school
districts. The new legislation also reorganized the administration of
public education, created an elected State Board of Education that
appointed a commissioner of education, and reorganized the
administration of state public school policy through the Texas Education
Agency.

In 1984, the Texas Legislature passed what is commonly known as
House Bill 72, enacting sweeping reforms of the public school system.
House Bill 72 provided a pay raise for teachers, revamped the system
of public school finance to funnel more money to property-poor school
districts, and took many other steps aimed at improving the academic
achievement of students.

A second major reform to the Texas Education System occurred in
1995 with the complete overhaul of the Texas Education Code. Passed
by the 74th Legislature, Senate Bill 1 stripped the education code of
several state-mandated rules and returned more authority to local
school districts; gave the governor power to appoint the commissioner;
gave the State Board of Education authority to grant open-enrollment
charter schools, and established the separate State Board for Educator
Certification.

Open enrollment charter
schools are being established
as an alternative to traditional
public education schools.
Today, Texas has about 185
operating charter schools that
only have to comply with
minimum provisions of the
education code, but operate
with state funds and provide
alternative methods of
instruction.

“Pros & Cons of Charter Schools”
282

Equity spending (equalized funding on a per-student basis) among
school districts has been a driving force during the latter half of the 20th
century. From 1989 to today, the system of school finance has been
subject to both legislative volleys and on-going court battles between
those termed “property-poor” and those termed “wealthy” school
districts. In 1993, the Texas Legislature passed new legislation intent
on leveling the funding field for Texas schools.

Senate Bill 7 was passed to ensure that none of Texas’ school districts
had more than a set amount of property wealth per student. Those
districts that exceed the set limit, can choose among several options for
giving away some wealth, including merging tax bases with one or more
“property-poor” districts; sending money to the state; contracting to
educate students in other districts; consolidating voluntarily with one or
more districts, or moving some taxable property to another district’s tax
rolls.

In addition to establishing financial equity for schools districts, the bill
also created the state’s well-regarded education accountability system.
Now the model for the 2002 federal education plan, No Child Left
Behind, the Texas accountability system measures and holds schools
and districts accountable for student performance on assessment tests
and dropout rates. Campuses and districts each year receive an
accountability rating based on the percentage of all students and the
four student groups (white, Hispanic, African American and
economically disadvantaged) that pass the state’s assessment tests at
grades three through eleven. The rating also considers the overall
student dropout rate and each individual student group.

“No Child Left Behind Video”

Texas students continue to be held to ever-increasing accountability
standards through more rigorous curriculum and graduation
requirements, and implementation of a new, tougher statewide
assessment test, including the provision that third-grade students must
pass the test, along with their coursework, to be promoted. In the future,
additional grades will be required to pass the test, along with
coursework, to be promoted to the next grade. (7)
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In summary, Texas’ education
system shows increased
accountability, planning and reform.
Although the Texas Assessment of
Knowledge and Skills (TAKS) testing
has been roundly rejected for various
reasons, it has created a far more
immediate notion of accountability,
and results. As stated above, the
Bush Administrations’ signature
education law No Child Left Behind
(NCLB) followed from the basic plan of
Texas’ assessment and accountability
model. Both TAKS and NCLB have
many detractors in the nation’s education communities, but they also have provided a
platform to adjust education programs in the next decade or so.

Reflecting again on the priorities listed by Lieutenant Governor Dewhurst, education
issues translate into three specific goals: school funding formulae, assessment testing,
and the state’s system of higher education. One could make a good argument that this
outlook is too limited, but state budgeting is likely the overriding factor in the nature of
these reforms. Keep in mind, however, that education is also another huge component
of the Obama Administrations’ long-term economic stimulus plan. Re-working education
takes time, as Dewhurst’s statement indicates above, but it is a vital investment that
needs to happen quickly in order to produce results later.

Let’s now look at the core of education’s engine at present – the funding formula
based on property tax and other revenue sources – in order to evaluate the decisions at
present.

The Texas Constitution sets out five basic rules for the property tax:

Taxation must be equal and uniform.
All property, whether residential or commercial, must be taxed equally and
uniformly. No single property or type of properties should pay more than its fair
share of taxes.
Generally, all tangible property must be taxed on the basis of its current
market value. The Constitution provides certain exceptions, such as
productivity values for agricultural and timber land.
A property’s market value is the price it would sell for when both buyer and
seller seek the best price and neither is under pressure to buy or sell. Farm and
ranch land can be valued on its capacity to produce crops or livestock instead
of its market value.
All property is taxable unless a federal or state law exempts it from the
tax. The Texas Legislature may provide for Constitutionally approved
exemptions.
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Exemptions may exclude all or part of a property’s value from taxation.

Property owners have a right to reasonable notice of increases in
appraised property value.
Each property in a county must have a single appraised value.

How Does The System Work?

The Texas Comptroller’s “Window on Government” website provides that the Texas
property tax system has four main participants:

The property taxpayer, whether residential or business, is responsible for
paying taxes and has a reasonable expectation that the taxing process will be
fairly administered.
An appraisal district in each
county, administered by a chief
appraiser, sets the value of your
property each year. The appraisal
district’s board of directors hires
the chief appraiser. Local taxing
units appoint the directors and
fund the appraisal district
according to a tax-based formula.
An appraisal review board (ARB)
settles disagreements between
you and the appraisal district about your property’s taxability and value. The
appraisal district’s board of directors appoints citizens to serve as ARB
members.
Local taxing units, including the school districts, counties, cities and special
districts, decide how much money they must spend to provide public services.
Property tax rates are set according to taxing unit budgets. Some taxing units
have access to other revenue sources, such as a local sales tax. School
districts must rely on the local property tax, in addition to state and federal
funds.

Ok, so the process involves several
governing entities – the appraisal district,
the taxing unit-government, and the tax
assessor-collector (not mentioned above).
This isn’t a simple process from the start,
but that’s democracy! The process is essential to an understanding of the topic, just like
the legislative process in chapter 6, so we can factor in the “devil in the details”, i.e.,
politically controlled budgets.

285

The annual tax levy has four phases: property valuation, a protest
period, tax rate adoption and tax collection.

Each Jan. 1 marks the beginning of property appraisal, which depends
upon the use of the property as of Jan. 1 and current market conditions.

Between Jan. 1 and April 30, the appraisal district processes tax
exemption applications, agricultural appraisals, other tax relief and
property renditions. The appraisal district also makes value
determinations for all taxable property within its boundaries.

After May 1, the appraisal review board begins hearing protests from
property owners. When the ARB finishes its work, the appraisal district
gives each taxing unit a list of taxable property known as a certified
appraisal roll.

In August or September, the elected officials of each taxing unit
adopt tax rates. Several taxing units may tax your property. Every
nonexempt property is taxed by the appropriate county and local school
district. You also may pay taxes to a city and to special districts such as
hospital, junior college or water districts. The tax roll is created when
tax rates are applied to appraised values.

Tax collections begin around Oct. 1, when tax bills are sent to
property owners. Taxpayers have until Jan. 31 of the following year to
pay their taxes. On Feb. 1, penalty and interest charges begin
accumulating on most unpaid tax bills.

The process is significant, when one considers that Texas has the second largest
student population, enormous diversity in property values and lifestyle, and nearly ten
thousand governing entities. This is the challenge of administration. Ultimately, the
disparities in the education formula don’t show in this arena, since it is focused on the
massive task of annual surveying, collecting and providing the wave of financial viability
for schools to commence in August.

Behind this, however is the problem with property-taxed based education, because
of the huge disparities in property values across the state. This is the challenge of
equity financing, or equalization. Despite the landmark case Edgewood v. Kirby, and the
sweeping “Robin Hood” Equalization Plan (SB 7), legal and operational challenges have
continued to flow regularly. The notion of equity requires a predetermined dollar figure
per student, in each school district, based on the total value of property in the district. If
the district is “below the line” it is considered property-poor, and thus received funds
through the Comptroller, to bring it to neutral. Those deemed “property-rich” have an
option send some of the overage to the state, or to merge it’s property base with a poor
district, or send taxable property to a poor district. Most ISD’s opt to send the overage to
Austin.
286

Of course, it was just a matter of time before
the fairness fight would renew, from the
property-rich districts most constrained by
property tax rate caps. Welcome to Texas in
the mid 2000’s! The issues are
linked…because the system simply relies far
too heavily on the portion of education paid by
the local ISD, instead of the state or federal
government, for that matter. Again, visiting the
priorities listed by David Dewhurst – property tax rates must come down, to avoid the
legal disputes of the past several years.

This intractable situation began when the state adopted the general sales tax in
1961, more or less in lieu of a statewide property tax, and increasingly gave greater
budgeting power to the local ISD’s, and the slew of other tax entities classified as “local”
such as water districts, community college districts, and of course, municipal and county
governments. However, the Constitution of 1876 limited the property tax as a statewide
revenue source, the first ever restriction of this magnitude. One hundred years later, the
state was cornering itself with a patchwork tax system that increasingly provided the
largest portion of school finance system.

At a Joint Committee of the Legislature in 2003, all sorts of tax reform measures
were floated. Given that a decade had passed since the Equalization Plan was adopted,
the die was cast on the enormous shortcomings of the tax system. “John Kennedy from
the Texas Taxpayers and Research Association briefed the committee on the history of
property taxes in Texas. He said there was no reason for Texas to have ‘thousands of
jurisdictions collecting taxes’, and that some districts don’t come close to administering it
fairly. Attorney Ray Hutchins of Vinson and Elkins said that when a $25,000 home in El
Paso is taxed differently than the same home in Austin, the system is unconstitutional.”

Not much happened in reform for the next three years, and finally a special session
of the Legislature tinkered enough to satisfy a Texas Supreme Court mandate to ease
the capped out property tax burden being paid by the vast majority of ISD’s. Emphasis
should be placed on the term “tinkered” A state senator candidly presented the following
insight, about the resulting tax cut,

“The [property tax] legislation we passed in 2006 has
not given and will never give the relief that people
were promised,” said Sen. Kevin Eltife, R-Tyler,
referring to the school funding package that cut school
property taxes.

Eltife has proposed a measure that would give cities
and counties the right to levy up to a half-cent increase
in the sales tax and use the revenue to reduce
property taxes. Each could approve an extra quarter-
287

cent increase, subject to voter approval. The Senate Finance
Committee adopted the option last week.

“This is a way for voters to decide if they would rather pay more in sales
tax or property taxes,” Eltife said. The plan would allow a maximum
sales tax rate of 8.75 percent – an increase of half a percent.

A study by a leading tax research foundation last year indicated that a
big chunk of the school property tax relief approved in 2006 has been
wiped out by higher property appraisals and unprecedented tax hikes
by cities and counties.

Summary and Conclusions

It is impossible to gage taxes, as a system, based on the last play carried out. For
purposed of this overview and the course, the best we can and should do is take a
much broader view, since the political AND economic attention are so entwined at
present, and the atmospheric conditions for new direction. The following article from
Texas Center for Public Policy Priorities (cited elsewhere in this text) posits the vital
need for a different perspective:

The Texas tax system needs to change. But the current debate is not focused on
what is really wrong with taxes in Texas:

Texas taxes are not fair.
The current tax system doesn’t provide enough money to meet Texas’
basic needs.

Any proposed change in Texas’ tax system needs to be judged by whether it would
solve these two major problems in the current structure of state and local taxes.

What taxes do we pay?
More than three quarters of our state and local tax load is due to just
two taxes: the property tax and the sales tax. The largest tax paid by
most Texans is the local property tax, which accounts for more than 40
percent of our total state and local tax load. State and local sales taxes
account for another one-third of taxes paid by Texans.
288

Where do our taxes go?
About half of all our taxes goes to the state government; the other half
goes to local governments, primarily to school districts. The bulk of
state taxes goes to pay for public and higher education, and health and
human services, which together account for three quarters of the state
budget. Local taxes are divided about evenly between supporting public
education and funding services of cities, counties and special districts.
Schools receive about equal amounts of funding from state and local
taxes. The federal government has played an increasingly important
role in supporting state services, but future federal funding is very
uncertain, placing great pressure on state revenue sources.

Are our taxes too high?
Texans’ total tax load is light compared to other states, although our
property tax burden is heavier than in the average state. Our property
and sales tax rates are among the highest in the country, since most
Texas government revenue comes from just these two taxes. Other
states avoid high property and sales tax rates by spreading the tax
burden onto a third major tax, the personal income tax, which is not
levied in Texas. Another reason for high property tax rates is the
shrinkage in the value of taxable property. Taxable property values
have only recently surpassed their 1985 peak, in part because of the
growth in residential, commercial, and industrial exemptions.

Who really pays taxes?
The initial impact of state and local taxes falls mainly on business,
which pays almost 60 percent of the taxes collected in Texas. Property
taxes constitute nearly half the taxes initially paid by business, and the
sales tax accounts for another quarter. The state’s major business tax,
the corporate franchise tax, accounts for only 18 percent of taxes paid
by businesses. It is important to remember that taxes levied on
businesses are not ultimately paid by business. The cost of business
taxation may be passed on to consumers through price increases, to
289

workers through lower wages, or to owners and shareholders through
lower returns on investment.

Property taxes imposed on owner-occupied homes fall entirely on the
homeowner, who cannot shift the tax onto someone else. Taxes on
residential rental property may be borne by landlords or passed onto
tenants through higher rents, depending on the local rental market.

The sales tax is initially paid about equally by individuals and
businesses. However, businesses shift sales taxes onto their
consumers through higher prices. How much sales tax individuals pay
depends on how much of their income they spend and what they buy.
Because lower- and middle-income individuals generally have to spend
more of their income and can save less than persons with higher
income, the sales tax takes a bigger share of their income than it does
of a higher-income person.

Who doesn’t pay taxes?
All taxes offer exemptions – provisions that
allow certain taxpayers to pay lower taxes or
permit certain transactions to occur untaxed.
The major school property tax exemptions
are received by homeowners, owners of
agricultural land, and businesses. If property
receiving special tax treatment were fully
taxed, the statewide average school tax rate
could be reduced.

The sales tax exempts groceries and other
necessities, which aids lower-income
Texans. Many of the services that are
exempt from the sales tax, such as legal,
accounting and stock brokerage fees, are
used disproportionately by upper-income
households and by business. The
exemptions ease the relative burden on these groups.

How should we judge tax reform proposals?
The current Texas state and local tax system fails to provide a stable
source of adequate revenue from a balance of sources. Equally as
important, the system does not distribute tax burdens equitably. Any
change in the system should provide enough revenue to meet the
current needs of all Texans for adequate public services, and should
grow along with the growth of the state. Any tax reform also should
improve the equity of Texas taxes, which now fall disproportionately on
low- and middle-income families, who are least able to bear the burden.
290

One month into the new Legislature, the air is already churning with conflictive
currents, in terms of opportunity, motives and competing voices. Dollar figures are
beginning to emerge from Washington, as the U.S. Senate begins the final push toward
adopting Pres. Obama’s Economic Stimulus Plan. At present, the largest single outlay is
for education–$142 billion dollars. Of course, the devil is always in the details regarding
the terms, conditions, and timelines. The features thus far include requirements that
states must develop high-quality educational tests, develop ways to recruit and retain
top teachers in hard-to-staff schools; and implement longitudinal data systems that let
schools track long-term progress.

It would also be likely that the No Child Left Behind program be fully funded,
something that would greatly enhance testing requirements. It will be beyond temptation
for the Texas Legislature, Governor (and potential candidate Kay Bailey Hutchison) to
begin positioning the state to receive a massive influx of funds in an area already
experiencing shortages. The easy way shouldn’t be too quickly pursued, as the state’s
tax system will still be there with its figurative potholes and inefficient “creaky”
mechanisms. Awareness and activism will likely play a role, and it may come from
coalitions of groups as well as local leaders such as mayors and county judges, who
have little patience for the stagnant climate in the state’s capital.

References

H. William Batt, PRINCIPLES OF SOUND TAX THEORY As Have Evolved Over 200
And More Years, Albany, New York 2002
Harold Hodginson, Texas: The State And It’s Educational System, Institute for
Educational Leadership, Washington, DC. 1986
http://www.tea.state.tx.us/index2.aspx?id=150
http://replay.waybackmachine.org/…/http://www.governing.com/gpp/2003/gp3gloss.htm
http://www.laits.utexas.edu/txp_media/html/pec/features/0400_01/slide1.html
http://www.statemaster.com/index.php
http://www.statemaster.com/red/graph/eco_tot_tax_bur-total-tax-burden-per-
capita&b_map=1#
http://www.tshaonline.org/handbook/online/articles/HH/erh2.html
www.corridorwatch.org/ttc/cw-clippings.htm

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http://www.tea.state.tx.us/index2.aspx?id=150

http://replay.waybackmachine.org/20090430152919/http:/www.governing.com/gpp/2003/gp3gloss.htm

http://www.laits.utexas.edu/txp_media/html/pec/features/0400_01/slide1.html

http://www.statemaster.com/index.php

http://www.statemaster.com/red/graph/eco_tot_tax_bur-total-tax-burden-per-capita&b_map=1

http://www.statemaster.com/red/graph/eco_tot_tax_bur-total-tax-burden-per-capita&b_map=1

http://www.tshaonline.org/handbook/online/articles/HH/erh2.html

http://www.corridorwatch.org/ttc/cw-clippings.htm

Featured Links

ECS Education Policy Issue Site: Demographics:
http://www.ecs.org/html/issue.asp?issueID=31

Secondary Schools in a New Millennium, Harold Hodgkinson, 2000
http://www.ecs.org/html/IssueSection.asp?issueid=31&s=Overview

Statemaster – U.S. Statistics, State Comparisons:
http://www.statemaster.com

Texas Dept. of Transportation:
http://www.TxDOT.state.tx.us

Texas Education Agency:
http://www.tea.state.tx.us

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http://www.ecs.org/html/issue.asp?issueID=31

http://www.ecs.org/html/IssueSection.asp?issueid=31&s=Overview

http://www.statemaster.com/

http://www.txdot.state.tx.us/

http://www.tea.state.tx.us/

GeiselerTXGovPrintChapt00TOC
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Most families would pay more if a higher sales tax replaced property taxes.
To generate enough money without raising the sales tax rate, the tax would have to cover necessities.
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Perry’s Top Donors Get Business, Appointments
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