This Film Is Not Yet Rated

Bob Hudgins talks to Katy Vine about the “Waco” controversy, tax incentives, and how to get your movie made in Texas.

July 2009By Comments

Photo courtesy of the Texas Film Commission

A few years ago, the Texas Legislature passed a law stating that no films showing Texas or Texans in a bad light would be given tax incentives. This law effectively put Bob Hudgins, director of the Texas Film Commission, in charge of determining what that meant. Nobody except Hudgins paid much mind to the law until this spring, when Hudgins denied incentives to a film called “Waco.” The initial complaint, as well as accusations, came in an Austin American-Statesman blog post on May 25, which stated, ”While attending the two-week Cannes festival…Emilio Ferrari and Tara Wood, executives at Los Angeles-based Entertainment 7, said that Hudgins had bowed to pressure from politicians.” Hudgins said he found inaccuracies but wouldn’t specify. Then, in a later Statesman story, Byron Sage, the FBI’s lead negotiator during the siege, outed himself as one of Hudgins’ fact-checking sources. “Sage contends that the new film makes him look good, even saintly,” the story said, “but [Sage is] more concerned that it paints the FBI as aggressors—and possibly at fault in the fatal fire.” The filmmakers defended their decisions. We haven’t read the script or fact-checked its contents, but we’re wondering along with a lot of other Texans: Just what good is this law to Texas?

I wanted to ask you about the incentives and the law about whether certain films showed Texas or Texans in a bad light.

That’s been with us from the beginning. 2007.

From what I understand, the law stems from the Texas-filmed 2006 sports drama, “Glory Road”?

It’s a little more complicated than that. We had no content provision, except pornography, in the language that was originally drafted. At that point it had already passed the House and gone to the Senate Finance Committee. And through the process of the hearing they had a lot of pointed questions, but specifically on content issues more than anything else. They took on faith the provision that this would create jobs and [have an] economic impact. That wasn’t in discussion. What came to the fore was, we want to be careful about who we’re giving money to. They decided a couple of issues. There were two that were the most relevant. The first is that, well, we don’t want projects to show Texas in a bad light like the way “Glory Road,” which I thought was a good movie, did. I was not aware of the nuance in the film. As films do, they took license but they were portraying this as actual events and they had a scene of a racially charged incident that took place at a basketball game. And that actual incident took place against a Kentucky school but in the truncated version of the two-hour movie, they showed it in a game against a Texas school. So the Texas school said, that didn’t happen in our school. We didn’t have that big racial event happen. They didn’t show all the games, they just showed highlights of a couple of games.

So it was this one scene that was at issue?

One scene was a very racially charged event where the white team on the other side threw epitaphs disparaging the black players. In the film they showed it as a game with UTEP [University of Texas at El Paso] against another Texas school. In reality it was UTEP versus a Kentucky school, not a UTEP school against another Texas school. So the school, which is now Texas A&M Commerce, was not happy. The movie portrays it as a factual event. So granted, that school was disparaged.

Any idea why the filmmakers of “Glory Road” made that decision?

No idea. From my point of view that’s not relevant to the conversation. They made their choice. Films take license. That’s their right and privilege. This isn’t about whether they had the right. The senators were not pleased that a Texas school was cast in a bad light by this film so their charge to me was, make sure that doesn’t happen. We don’t want to give money to films that do that. Then there was a second project discussed called “Varsity Blues,” a film shot in the Austin area. It was a fictional story to the point of showing high school football. Well, the filmmakers went to Georgetown ISD and told them this was a nice little PG-13 family movie. So they made the movie, shot it at the school facilities, and lo and behold, come to premiere, it’s R-rated and it’s not a family movie. It’s drugs, sex, rock n’ roll, and football. So to that point the senators were not happy because the film portrayed itself to be one thing but the final product was very different.

So these two comments end up being two points to our program. When we got the final language, it’s very vague. It basically says “things that are deemed inappropriate”—so vague that it was unmanageable. I was sitting with my head in my hands thinking, this could mean anything to anybody. One group could be offended by showing a prayer service. Another group would be offended by showing kids smoking pot. You name it, there is a group in Texas that would be offended. I went to the lawyers. We worked through general counsel in the governor’s office. We backtracked and went back to legislative intent: Why did [the senators] give us this provision and what are we supposed to do with it? They were talking about projects that portray themselves as a factual story but inaccurately portray the events that happened in Texas. Any project can come to the state and make their film. This is only specific to them getting money from the state of Texas. So this isn’t about, from my point of view, this isn’t censorship, this is about investing in the film. You have to look at Texas as an investor in the film that shows a great deal of discretion in what they invest in. Also, legally, there’s a Supreme Court case called NEA [National Endowment for the Arts] versus Finley. In that case, basically, Ms. [Karen] Finley was in an exhibit with Robert Mapplethorpe and both were recipients of NEA grants and after the exhibit came out the NEA said, we’re not going to give you money now because we find it offensive. The Supreme Court ruled that the NEA did indeed have the capacity of saying, no, we have discretion here. There are some things we find offensive and we don’t have to give public money for it. That is the legal standing. That gave us clear direction that we were on solid ground legally that no, we don’t have to give every project that knocks on the door this grant.

So moving forward we had to go, okay, how do we administer this? How do we determine these projects are or are not accepted in our program? So real clearly, anything considered pornography, that’s out. But we refined what is offensive to Texas as to the specifics of projects portraying Texas by their estimation accurately but they’re not. They’re taking license and showing Texas characters and events nonfactually. That became that part of the discretion. We also were given the provision that we have to look at everything twice. We have to look at the initial script and make determination, then the final product as well.

That’s a lot of work.

I was just honored to have this opportunity to look at everything twice. On movies and commercials, that’s straightforward, but we also do things for video games. So we had to go through the process of acquiring game equipment so we could play the game. We’re having to play games for the state of Texas to make sure they didn’t sneak some content in there that would be untoward. But going back to Waco. This was a story that when I read it, it was going to portray factual events. I read—I can’t even quantify how many scripts I read. Probably ten a week. So this is my life. When I saw it, I went, this is incredibly close to our territory. I have to check this out. It wasn’t anything that made me think, oh my, this is horrible. I didn’t know one way or the other but my due diligence was to get it to people who really did. It’s not about do you like it or not, but are the people accurately portrayed? The events? The response was no. In a strong way no. The gentleman who was my primary person was a guy named Byron Sage. He outed himself in Chris Garcia’s [Statesman] blog. I also talked to another person in the press. So it wasn’t just law enforcement.

Can you say who?

I’d rather not say who. I don’t like to have people become targets because I have to tell you, the response has been visceral. I go back to the point that this is a public money program and there are strings attached to a public money program. Any grant program on Earth has strings. This is not out of the realm of normal that there would be conditions on a grant program. My question went to, were these people portrayed in the film, these events, were they real? The answers came back no. I got this script in December 2008. It was sent by a producer who was just doing locations. So I read the script, did my due diligence, reached back out to the producer who had sent the script and they were no longer attached. They were off the project, had no idea if the movie was going to get made. Months later, the film cycled back around, new producers came on board and contacted my office. But I told them I didn’t believe their film was going to pass muster and they were probably not going to be accepted as an applicant.

And they never applied?

They never applied. They never asked for any official determination. The producer I spoke with said, yeah, I figured when I read your Web site that you might have problems with it so, thanks, we already budgeted for Louisiana anyway. It was like, no big deal. Regardless, the filmmakers, they’re going to find a way to make their movie. On May 8, I had a conversation with this producer. She called this other producer, Mr. Ferrari, at the Cannes film festival. So they were trying to raise money and do foreign distribution deals and the normal stuff. Mr. Charles Ealy, who blogs for the Statesman, was there and ran across these guys and had a conversation about this project and they’re saying they have this 30 million-dollar film they wanted to bring to Texas but not anymore because the Texas Film Commission is censoring the program and the very unfortunate part is they made an accusation that was unfounded, but was also really inappropriate. They accused me of succumbing to political pressure. That some state senator had declared the movie should not be made and I was acting on their behalf. No elected official knew anything about my decision.

So senators were getting phone calls and visceral reaction and making all kinds of wonderful accusations about my integrity. That’s how it got blown up in the press. Mr. Wainright made a lot of comments about how it was political pressure and at the end of it, it really came down to the point that this particular film fell into that narrow crack that we defined because of “Glory Road.” This was the first one I had to make the phone call and say, sorry, we’d love to have your film here, we’ll support you in other ways. This is exactly, exactly the point the senators were making in their determination that they gave me, and I didn’t have any choice to make the decision I made and to this day I feel like I had to make that call. The good news is I haven’t had to say no to anybody else on the second review. For us it’s all about getting work here but I have to enforce the provisions the Legislature gave us and I have to enforce those. So…yahoo.

So the incidents portrayed in “Glory Road.” Was there any documentation at all this may have happened with another Texas team?

So many people were familiar with the story. The first all-black team to go through the NCAA was UTEP. I didn’t know there was a nuanced section of that story. And Disney made no bones about it. And again, films take license on a regular basis.

But they could have been sued?

There were people that approached Disney and I don’t know. I don’t believe there was legal action. I know they asked Disney for an apology.

Did they get one?

I don’t think so.

And this law applies to both narrative and documentary?

Sure, commercials, video games and everything we touch. The good news is, we have yet to run one video game that is based on any reality. So if it’s a work of fiction I have no trouble. But “Varsity Blues,” that’s the reason for double review. That wasn’t a catalyst for initial determination but for second review. It was, oh we’ve got to watch these guys. We’d use the same content criteria for the initial process. You read the first version of “The Alamo” and it goes the way the story is historically told, and in the final version somehow all the Americans walked out.

But this is your call and your call alone?

Oh yeah.

And there is no distinction in the law between living or dead Texans?

No, I mean I have to say the other project I ran my due diligence on was a film called “Tulia” (read an excerpt from Nate Blakeslee’s book). That was the first one I ran the traps on. So “Tulia” came through first and it was my first test of this provision. A lot of the story and the script was based on court exchanges. I did Internet research and it was verbatim. Next, I contacted the lawyer. This is going to be Halle Berry and Billy Bob Thornton. John Singleton wrote the script. And I got [the lawyer] the story. He was well aware of it. He had interviewed them extensively and gave his thumbs up. Then I went to law enforcement and found out about the portrayal of the rogue cop and it was, well, we don’t like it but it’s accurate. So I got the thumbs up. Unfortunately, Halle Berry got pregnant so it never came to the point of me saying, you guys can come. I know their problem was our incentive was five percent versus Louisiana’s 25 percent. They were probably still going to go to Louisiana even though we said we’d love to have it. When you go historic on me, that’s going to be a little more difficult in some ways and easier in some way because we don’t have anybody alive who will come back after they’ve seen the movie and say, that’s not what happened. At some point I’m going to have to do historic research on some project and find out about some guy who died hundreds of years ago and was he a real scoundrel or not. But for works of fiction I have no problem.

As long as they stick with the original idea, right? If they have an R-Rated movie and the community says we’re good with that. No problem?

We’re not saying no to anybody except projects that are trying to portray what they’re saying as factual events but are in fact not factually portraying events as they happened. Some people are offended by certain things, other people are offended by other things. I could make an argument for everything being turned down if it were an arbitrary thing based on somebody not liking that movie. I wish “Tulia” had been made so I could say, look at this great movie. I said yes to Tulia. And that’s an unfortunate part of Texas history. But it’s true. We can live with truth. Yes we have scoundrels.

So let’s say somebody writes a script about something, for example a narrative feature about the El Paso border patrol agents Ignacio Ramos and Jose Alonso Compean. They were accused of shooting a drug smuggler in the back as he ran away, then they covered up the shooting. A federal jury found them in the wrong. Many people saw them as heroes. In the end, President Bush commuted their sentences. So if this script comes into your office and makes the Texas border patrol agents look bad, agreeing with the jury and not with Bush, with whom do you side with regard to the “truth”?

Nightmare. I would have to do due diligence.

And by that you mean what?

I’d get in touch with all the different people involved. The script is going to drive me to certain people. I don’t know much about the incident you’ve raised but I’d do my homework. I wouldn’t say, oh this sounds bad to me. No, I’d dig in, use the resources I have to get to the people involved.

And is the Legislature giving you resources? This is going to take a lot of time for you to be a state fact-checker. Do you get assistance?

We’re funded to administer the program but from my point of view it’s part of the program. Like the locations. There are things we do to facilitate the incentive program that are part of the job. As these things come up I will do whatever it takes to get to that determination.

Are there other states that do this?

The only other state that has something similar is Utah and they’re a lot more broad based in what they can say no to. I’m relieved I have this legal determination I can fall back on that is so specific. Theirs is much broader. They recently turned one down because there was bestiality. Not that I’ve said yes to bestiality! But I believe it was a fictitious story and they turned the project down. Funny thing is, they still made movie in Utah.

Let’s say you get a documentary that is pretty one-sided in its interviews. Do you tell them, you have to change X, Y, Z and fix that or you don’t get any incentives?

They would probably just get a no. We haven’t had anything that has required that kind of a determination.

But with “Waco,” let’s say they had come back and said, “What do we need to do?”

To work, they can come and we’d work with them in every way.

But to get incentives.

They’d have to apply and we’d make that determination. I would ask for a new script. I’d try and start with a blank page. I would do my best to be objective. I’m not going to pre-judge any project.

But if they don’t know what the problem is…

It has been well-documented. Mr. Wainwright is very clear on why this project was not going to be accepted into the program.

Right. But for other programs going forward, if somebody got a no and wanted the incentives. Let’s say they don’t have money to travel. There’s a small budget. Can they ask what the problems were?

Absolutely. This is a fluid conversation. From my point of view this is the slippery slope. I don’t want to be the censor.

That’s inevitable, though, isn’t it?

To date it hasn’t had to happen. The reality is all these stories are fiction. That’s the thing. Ninety-nine percent of the projects that come through this office are fictionally based and as long as they’re fictitious characters, even “based on” would get passed because they’re not portraying it as a factual event. That’s where the rigidity of that project being unapologetically, no, this is how it happened. That’s great, but there are people who were there who said, that is not how it actually happened. So I’m sorry. Yes, if they wanted to change the script and if they wanted to come back and reapply and have it be a “based on” or some “names have been changed,” then that would be a reconsideration.

What about “The Alamo”?

The provision is very clear. We weren’t Texas at that point. So I would have to say yes to any Alamo story.

What about features that are entirely fictional, like “The Texas Chainsaw Massacre”? Do those not count as depicting Texans in a bad light?

That wouldn’t count because it’s “based on.” That is the biggest disclaimer ever. “Based on” means we took incredible liberty.

What about a fictional feature that makes it appear as if Texas politics is corrupt? Something that generic would not be a problem?

Would not. I would not feel compelled to say no to that. Because it’s a fictitious account. One of the more challenging questions I was asked was, what about “JFK,” the Oliver Stone film? By all accounts there was a lot of license taken. I would have to say “JFK” would probably not be problematic.

Why?

Because there wasn’t this, you know, it was kind of a tale to be told. I don’t know. I haven’t read the script. I’d have to get into it but that one made me go, what would I do? It’s easy in retrospect. For me it’s the stories no one has heard yet. There are stories out there that are going to cause huge headaches as far as doing due diligence and in talking with all the right people. And we’ll see how it goes.

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